CDNL 8-K
Cardinal Infrastructure Group Inc. (CDNL)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 OR 15(d)
of The Securities Exchange Act of 1934
Date of Report (Date
of earliest event reported):
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation or organization) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
| (Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including
area code: (
Securities registered pursuant to Section 12(b) of the Act:
| The | ||||
| (Title of Class) | (Trading Symbol) | (Name of each exchange on which registered) |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR § 240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act.
| Item 1.01 | Entry into a Material Definitive Agreement. |
A.L. Grading Contractors Acquisition
On February 18, 2026, Cardinal Infrastructure Group Inc. (the “Company,” “Cardinal,” “we”, “us”, or “our”) and Cardinal Civil Contracting Holdings LLC, a controlled subsidiary of the Company (“Purchaser”), completed (the “Closing”) the acquisition (the “Acquisition”) of all of the equity interests in A.L. Grading Contractors, LLC (“ALGC”) pursuant to a membership interests purchase and contribution agreement (the “Purchase Agreement”), dated February 18, 2026, with Diamond Interests Group, LLC (the “Seller”), ALGC, Anthony L. Wood, Jr. (“Anthony Wood”) and Benjamin A. Wood (“Benjamin Wood” and, together with Anthony Wood, the “Seller Owners”). The Seller is wholly owned by Anthony Wood and Benjamin Wood. Pursuant to the Purchase Agreement, Purchaser paid aggregate consideration of $245.5 million consisting of (i) $128.6 million in cash (as may be adjusted pursuant to the terms and conditions set forth in the Purchase Agreement); (ii) 4,186,062 limited liability company units (the “Common Units”) of the Purchaser (including an equal number of shares of the Company’s Class B common stock, $0.0001 par value per share (the “Class B Common Stock”)), valued at $108.0 million based on the volume weighted average price of the Company’s Class A common stock, par value $0.0001 per share (the “Class A Common Stock”) over the fourteen trading days ended February 13, 2026 and (iii) 345,666 shares of Class A common stock, $0.0001 par value per share (the “Class A Common Stock”) which were issued to employees of, and service providers to, ALGC at the direction of the Seller. The cash portion of the Acquisition was funded through a combination of cash on hand and borrowings under the Purchaser’s credit facility. The equity issued to the Seller and the Class A Common Stock issued at the direction of the Seller are subject to lock-up agreements for 180 days following the Closing. ALGC is engaged in the business of providing infrastructure services to residential, industrial and commercial projects in the greater Atlanta, Georgia area.
The Purchase Agreement contains customary representations and warranties and certain covenants for transactions of this type. In connection with its entry into the Purchase Agreement, the Company also bound a customary buyer-side representations and warranties insurance policy (the “R&W Insurance Policy”) to cover certain losses arising out of a breach of the representations and warranties of the Seller and Seller Owners contained in the Purchase Agreement. The R&W Insurance Policy is subject to certain policy limits, exclusions, deductibles and other terms and conditions.
The representations and warranties of the parties contained in the Purchase Agreement have been made for the benefit of the other parties and should not be relied upon by any other person. Such representations and warranties (i) have been qualified by schedules and exhibits, (ii) are subject to materiality standards that may differ from what may be viewed as material by investors, (iii) are made as of specified dates, and (iv) may have been used for the purpose of allocating risk among the parties rather than establishing matters of fact. Accordingly, the representations and warranties should not be relied upon as characterizations of the actual state of facts.
The waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, expired on February 17, 2026.
In connection with the Purchase Agreement, Purchaser entered into employment agreements with, among others, Anthony Wood and Benjamin Wood. The Purchase Agreement also provides that after the Closing Date, the Board of Directors of the Company will (i) elect Anthony Wood, ALGC’s president, to serve on the Company’s Board of Directors and (ii) appoint Benjamin Wood, ALGC’s vice president, to serve as the Company’s Chief Operating Officer. See Item 5.02 below.
1
At the Closing, (i) the Seller became a party to the Registration Rights Agreement, dated December 9, 2025 (the “Registration Rights Agreement”), which contains customary registration rights with respect to the Company’s Class A Common Stock issuable upon exchange of the Company’s Class B Common Stock and the Purchaser’s Common Units, (ii) the Seller became a party to the Purchaser’s Second Amended and Restated Limited Liability Company Agreement, dated as of December 9, 2025 (the “LLC Operating Agreement”) and a member of the Purchaser, (iii) the Seller and the Seller Owners became party to the Tax Receivable Agreement, dated December 9, 2025 (the “Tax Receivable Agreement”), pursuant to which, among other things, the Company agreed to pay to the beneficiaries thereof 85% of the benefits, if any, that are realized, or deemed to be realized, as a result of (A) adjustments to the tax basis of the assets of the Purchaser and its consolidated subsidiaries as a result of certain exchanges of Common Units and (B) certain other tax benefits; and (iv) the Company and the Seller executed a Tax Benefit Agreement (the “Tax Benefit Agreement”) pursuant to which, among other things, the Purchaser agreed to pay to the Seller 85% of the benefits, if any, that are realized, or deemed to be realized, as a result of adjustments to the tax basis of the assets of the Purchaser and its consolidated subsidiaries as a result of the Acquisition.
The foregoing description of the Purchase Agreement and the transactions contemplated thereby is not complete and is qualified in its entirety by reference to the full text of the Purchase Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K (this “Report”) and is incorporated herein by reference. The foregoing description of the LLC Operating Agreement is not complete and is qualified in its entirety by reference to the full text of the LLC Operating Agreement, which is filed as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on December 12, 2025 (the “December Form 8-K”) and is incorporated herein by reference. The foregoing description of the Tax Receivable Agreement is not complete and is qualified in its entirety by reference to the full text of the Tax Receivable Agreement, which is filed as Exhibit 10.2 to the December Form 8-K and is incorporated herein by reference. The foregoing description of the Registration Rights Agreement is not complete and is qualified in its entirety by reference to the full text of the Registration Rights Agreement, which is filed as Exhibit 10.3 to the December Form 8-K and is incorporated herein by reference. The foregoing description of the Tax Benefit Agreement is not complete and is qualified in its entirety by reference to the full text of the Tax Benefit Agreement, which is filed as Exhibit 10.4 to this Report and is incorporated herein by reference.
Amendment to Credit Agreement
On February 18, 2026, Cardinal Civil Contracting, LLC, Purchaser, the other guarantors party thereto, the lenders party thereto and Truist Bank (“Truist Bank”), as administrative agent, issuing bank and swingline lender, entered into a first amendment to the credit agreement (the “First Amendment”), which amends the Credit Agreement, dated October 1, 2025 (the “Credit Agreement”), by and among Cardinal Civil Contracting, LLC, Purchaser, the other guarantors from time to time party thereto, the lenders from time to time party thereto and Truist Bank. The Company is not a party to the First Amendment or the Credit Agreement.
The First Amendment, among other things, increases the term loan facility under the Credit Agreement from $120.0 million in aggregate principal amount to $200.0 million in aggregate principal amount. A portion of the proceeds of the incremental term loans made pursuant to the First Amendment was used to pay the cash portion of the Acquisition purchase price.
The foregoing description of the First Amendment is not complete and is qualified in its entirety by reference to the full text of the First Amendment, which is filed as Exhibit 10.5 to this Report and is incorporated herein by reference. The foregoing description of the Credit Agreement is not complete and is qualified in its entirety by reference to the full text of the Credit Agreement, which is filed as Exhibit 10.2 to the Company’s Registration Statement on Form S-1 (333-292034), which became effective on December 9, 2025. Except as modified by the First Amendment, the terms and conditions in the Credit Agreement remain the same as previously disclosed.
2
| Item 2.01 | Completion of Acquisition or Disposition of Assets. |
The information set forth under Item 1.01 to this Report is incorporated herein by reference.
| Item 2.02 | Results of Operations and Financial Condition |
On February 19, 2026, the Company issued a press release announcing, among other things, the Acquisition and certain preliminary estimated results for the Company’s fiscal year ended December 31, 2025.
As provided in General Instruction B.2 of Form 8-K, the information in this Item 2.02, including Exhibits 99.1 and 99.2, shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall such information or Exhibits 99.1 or 99.2 be deemed to be incorporated by reference in any filing under the Securities Act of 1933, as amended (the “Securities Act”) or the Exchange Act, regardless of any general incorporation language in such filing.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant. |
The information set forth under Item 1.01 to this Report is incorporated by reference into this Item 2.03
| Item 3.02 | Unregistered Sales of Equity Securities. |
The information set forth under Item 1.01 to this Report is incorporated herein by reference into this Item 3.02.
The Common Units and shares of Class B Common Stock were offered and sold pursuant to an exemption from registration under Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”) as offers and sales not involving any public offering. In addition, the Seller and Seller Owners made representations and warranties to the Company in the Purchase Agreement regarding, among other things, each of their status as an accredited investor and investment intent.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Employment Agreements
ALGC has entered into an employment agreement with Anthony Wood pursuant to which he will continue to serve as ALGC’s president. Pursuant to the employment agreement, Mr. Wood will receive an annual base salary of $400,000, subject to annual review. Mr. Wood will also be eligible for a discretionary semi-annual cash bonuses of up to 37.5% of base salary with applicable performance goals determined by the Company’s Compensation Committee from time to time. Mr. Wood is entitled to an initial grant of long-term equity-linked incentive awards in such amounts and subject to such vesting requirements as are commensurate with similarly situated employees of the Company. Mr. Wood is also eligible for subsequent annual grants of long-term equity-linked incentive awards with the amounts and applicable performance goals determined by the Company’s Compensation Committee each year.
The Company has entered into an employment agreement with Benjamin Wood pursuant to which he will serve as the Company’s Chief Operating Officer. Pursuant to the employment agreement, Mr. Wood will receive an annual base salary of $400,000, subject to annual review. Mr. Wood will also be eligible for a discretionary semi-annual cash bonuses of up to 37.5% of base salary with applicable performance goals determined by the Company’s Compensation Committee from time to time. Mr. Wood is entitled to an initial grant of long-term equity-linked incentive awards in such amounts and subject to such vesting requirements as are commensurate with similarly situated employees of the Company. Mr. Wood is also eligible for subsequent annual grants of long-term equity-linked incentive awards with the amounts and applicable performance goals determined by the Company’s Compensation Committee each year.
3
Each of the foregoing employment agreements has a three-year term (the “Initial Term”) beginning on February 18, 2026, with an automatic one-year renewal unless either party provides advance written notice of non-renewal.
Subject to the signing of a release and compliance with the terms of his employment agreement, in the event of a termination without “cause” (as defined in the employment agreement) or for “good reason” (as defined in the employment agreement), Anthony Wood and Benjamin Wood will be entitled to “severance pay” equal to one year of his base salary and certain other benefits. In the event of certain terminations within twelve months of a change in control, as defined in the employment agreements, Anthony Wood and Benjamin Wood would be entitled to, among other things, 1.5x their base salary, if the termination occurs during the Initial Term or 1.0x their base salary, if the termination occurs thereafter.
Under the terms of the employment agreements, each of Anthony Wood and Benjamin Wood is subject to an ongoing confidentiality obligation, a 12-month non-competition covenant, a 12-month non-solicitation of employees of the Company covenant, and a 12-month non-solicitation of customers of the Company covenant.
In the event that any payments made contingent upon a change in control of the Company would be subject to the excise tax imposed by section 4999 of the Internal Revenue Code, then the amount of payments pursuant to the Executive Agreement would be reduced to the maximum amount that will cause the total amounts of the payment not to be subject to the excise tax, but only if the amount of such payments, after such reduction and after payment of all applicable taxes on the reduced amount, is equal to or greater than the amount of such payments Mr. Warren would otherwise be entitled to retain without such a reduction after the payment of all applicable taxes, including the excise tax.
Each of Anthony Wood and Benjamin Wood will be subject to the Company’s clawback policy, as amended from time to time.
The foregoing summaries of Anthony Wood’s and Benjamin Wood’s employment agreements do not purport to be complete and are qualified in their entirety by reference to the complete text of those agreements, which are attached hereto as Exhibits 10.6 and 10.7, respectively, to this Report and are hereby incorporated by reference into this Item 5.02.
Appointment of Director
The Purchase Agreement provides that the Board of Directors of the Company will elect Anthony Wood, ALGC’s president, to serve on the Company’s Board of Directors to hold office until the Company’s 2026 annual meeting and until his successor is duly elected and qualified or until his earlier resignation, removal, incapacity or death.
Anthony Wood co-founded ALGC in 1993. Mr. Wood has more than 35 years of experience with site development, infrastructure construction, and real estate investment. Mr. Wood also served as chairman of the board for Brookhaven Bank from its opening in 2007 until its merger with Georgia Commerce Bank (“GCB”) in 2014. He then served as a board member for GCB until its sale in 2015 to Iberia Bank where he served as an advisory board member. We believe Mr. Woods is qualified to serve on our board of directors due to his business expertise, extensive industry experience and strategic growth experience as President of ALGC.
Appointment of Chief Operating Officer
The Purchase Agreement provides that the Board of Directors of the Company will appoint Benjamin A. Wood, ALGC’s vice president, to serve as the Company’s Chief Operating Officer to serve until his successor shall have been duly elected or appointed and shall have qualified or until his earlier death, resignation or removal.
Benjamin Wood joined ALGC in 1998. He has served ALGC in numerous capacities, most recently as Vice President. Mr. Wood’s tenure at ALGC includes more than 28 years of leadership experience overseeing the company’s grading and underground utility construction services. Mr. Wood graduated from Rice University with a Bachelor of Arts degree.
4
Related Party Transactions
Anthony Wood and Benjamin Wood are brothers. Neither of such individuals are related by blood, marriage or adoption to any other director, executive officer or person nominated or chosen by the Company to become a director or executive officer.
In connection with the Acquisition, ALGC has entered into leases with respect to two facilities owned by companies owned and controlled by Anthony Wood and Benjamin Wood. Each of the leases has a fifteen year initial term , subject to early termination under specified circumstances, and ALGC has three (3) options to extend the term for a period of five (5) years each time. The leases provide for aggregate annual payments of $600,000 for the initial year increasing by 3% each year. ALGC also pays the property taxes for use of the facilities.
The foregoing summaries of the leases do not purport to be complete and are qualified in their entirety by reference to the complete text of those agreements, which are attached hereto as Exhibits 10.8 and 10.9, respectively, to this Report and are hereby incorporated by reference into this Item 5.02.
Other than as disclosed above, there are no related party transactions involving Anthony Wood that are reportable under Item 404(a) of Regulation S-K. Other than his appointment as a director, there are no material plans, contracts, or arrangements to which Anthony Wood is a party or in which he participates.
Other than as disclosed above, there are no related party transactions involving Benjamin A. Wood that are reportable under Item 404(a) of Regulation S-K. Other than his appointment as the Chief Operating Officer of the Company, there are no material plans, contracts, or arrangements to which Benjamin Wood is a party or in which he participates.
Further information with respect to the terms of these appointments as may be required to be disclosed will be provided in a subsequent Current Report on Form 8-K when they have been appointed to their respective positions.
| Item 7.01. | Regulation FD Disclosure |
On February 19, 2026, the Company issued a press release announcing, among other things, the Acquisition and certain preliminary estimated results for the fiscal year ended December 31, 2025. The release is furnished as Exhibit 99.1 to this Report.
On February 19, 2026, the Company posted an investor presentation to its website, www.cardinalinfrastructuregroup.com, and will hold a conference call with analysts and investors regarding the Acquisition and its preliminary estimated results for the fiscal year ended December 31, 2025. The presentation is furnished as Exhibit 99.2 to this Report.
As provided in General Instruction B.2 of Form 8-K, the information in this Item 7.01, including Exhibits 99.1 and 99.2 shall not be deemed to be “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liabilities of that section, nor shall such information or Exhibit 99.1 or 99.2 be deemed to be incorporated by reference in any filing under the Securities Act or the Exchange Act, regardless of any general incorporation language in such filing.
| Item 9.01 | Financial Statements and Exhibits. |
| (a) | Financial statements of businesses acquired. |
The financial statements required by this item will be filed by amendment to this t Report as soon as practicable, but no later than 71 calendar days after the date this Report is required to be filed.
| (b) | Pro forma financial information. |
The pro forma financial information required by this item will be filed by amendment to this Report as soon as practicable, but no later than 71 calendar days after the date this t Report is required to be filed.
5
| (d) | Exhibits |
| * | Certain schedules (and similar attachments) to this Exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5). The Company agrees to furnish supplementally a copy of any omitted schedule (or similar attachment) to the SEC upon its request. |
| ** | Management contract, compensatory plan or arrangement |
Cautionary Statement Regarding Forward-Looking Statements
This Current Report on Form 8-K and the exhibits hereto contain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 concerning, among other things, the Acquisition and the expected benefits of the Acquisition. Statements that are predictive in nature, that depend upon or refer to future events or conditions or that include the words “may,” “could,” “plan,” “project,” “budget,” “predict,” “pursue,” “target,” “seek,” “objective,” “believe,” “expect,” “anticipate,” “intend,” “estimate,” and other expressions that are predictions of or indicate future events and trends and that do not relate to historical matters identify forward-looking statements. These statements involve risks and uncertainties and Cardinal’s actual results could differ materially from the results expressed or implied by such forward-looking statements. The potential risks, uncertainties and other factors that could cause actual results to differ from those expressed by the forward-looking statements in this press release include, but are not limited to, the possibility that any of the anticipated benefits of the Acquisition will not be realized to the extent or when expected; the risk that integration of ALGC’s operations with those of Cardinal will be materially delayed or will be more costly or difficult than expected; the challenges of integrating and retaining key employees; the effect of the announcement of the Acquisition on ALGC’s and Cardinal’s business relationships, operating results and business generally; difficulty in sustaining rapid revenue growth, which may place significant demands on Cardinal’s administrative, operational and financial resources, fluctuations in Cardinal’s revenue and the concentration of Cardinal’s business in the Southeastern United States. Cardinal has based these forward-looking statements largely on its current expectations and projections regarding future events and trends that it believes may affect its business, financial condition and results of operations. The outcome of the events described in these forward-looking statements is subject to risks, uncertainties and other factors described in the section entitled “Risk Factors” in Cardinal’s Registration Statement on Form S-1 (333-292034) (the “Registration Statement”), and elsewhere in the Registration Statement. Accordingly, you should not rely upon forward-looking statements as predictions of future events. Cardinal cannot assure you that the results, events and circumstances reflected in the forward-looking statements will be achieved or occur, and actual results, events or circumstances could differ materially from those projected in the forward-looking statements. Although forward-looking statements reflect the good faith beliefs of Cardinal’s management at the time they are made, forward-looking statements involve known and unknown risks, uncertainties and other factors which may cause actual results, performance or achievements to differ materially from anticipated future results, performance or achievements expressed or implied by such forward-looking statements. Cardinal undertakes no obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events, changed circumstances or otherwise, unless required by law. These cautionary statements qualify all forward-looking statements attributable to Cardinal or persons acting on its behalf.
6
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: February 18, 2026 | CARDINAL INFRASTRUCTURE GROUP INC. | |
| By: | /s/ Mike Rowe | |
| Mike Rowe | ||
| Chief Financial Officer | ||
7
Exhibit 2.1
execution VERSION
MEMBERSHIP INTERESTS PURCHASE AND CONTRIBUTION AGREEMENT
by and among
DIAMOND INTERESTS GROUP, LLC,
as the Seller,
ANTHONY L. WOOD, JR.,
as a Seller Owner,
BENJAMIN A. WOOD,
as a Seller Owner,
A.L. GRADING CONTRACTORS, LLC,
as the Company,
CARDINAL CIVIL CONTRACTING HOLDINGS LLC,
as the Purchaser,
and
CARDINAL INFRASTRUCTURE GROUP, INC.,
as PubCo
February 18, 2026
THIS DRAFT IS INTENDED SOLELY TO FACILITATE DISCUSSION AMONG THE PARTIES. IT IS NOT INTENDED TO CREATE, NOR WILL IT BE DEEMED TO CREATE, A LEGALLY BINDING OR ENFORCEABLE OFFER OR AGREEMENT OF ANY TYPE OR NATURE, UNLESS AND UNTIL IT IS EXECUTED AND DELIVERED BY ALL OF THE PARTIES NAMED HEREIN. THIS DRAFT IS CONFIDENTIAL AND SUBJECT TO THE RESTRICTIONS SET FORTH IN THE CONFIDENTIALITY AGREEMENT WITH THE RECIPIENT HEREOF.
TABLE OF CONTENTS
| Page | ||
| ARTICLE 1. DEFINITIONS; INTERPRETATION | 2 | |
| 1.1. | Definitions | 2 |
| 1.2. | Additional Defined Terms. | 11 |
| 1.3. | Interpretation. | 14 |
| ARTICLE 2. PURCHASE, SALE AND CONTRIBUTION | 15 | |
| 2.1. | Purchase and Sale. | 15 |
| 2.2. | Contribution. | 16 |
| 2.3. | Determination of Net Working Capital. | 16 |
| 2.4. | Company Closing Certificate. | 16 |
| 2.5. | Unclaimed Bonus Grants; Post-Closing Calculations; Dispute Resolution; Etc. | 17 |
| 2.6. | Post-Closing Adjustment Amounts. | 18 |
| 2.7. | Payment of Post-Closing Adjustment Amounts. | 19 |
| 2.8. | Withholding Taxes. | 19 |
| ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY | 20 | |
| 3.1. | Authority. | 20 |
| 3.2. | Organization. | 20 |
| 3.3. | Capitalization. | 20 |
| 3.4. | No Conflicts; Consents and Approvals. | 21 |
| 3.5. | Real Property. | 21 |
| 3.6. | Title to and Sufficiency of Assets. | 22 |
| 3.7. | Intellectual Property; Data Privacy; Company IT Systems. | 22 |
| 3.8. | Financial Statements. | 24 |
| 3.9. | Absence of Changes. | 25 |
| 3.10. | Taxes. | 26 |
| 3.11. | Litigation. | 28 |
| 3.12. | Employee Benefits and Related Matters. | 29 |
| 3.13. | Material Contracts. | 31 |
| 3.14. | Insurance. | 33 |
| 3.15. | Employees. | 33 |
| 3.16. | Environmental Matters. | 35 |
| 3.17. | Compliance with Laws; Unlawful Payments; Permits. | 36 |
| 3.18. | Customers and Suppliers. | 37 |
| 3.19. | Related Party Transactions. | 38 |
| 3.20. | Certain Payments. | 38 |
| 3.21. | Brokers and Finders. | 38 |
| 3.22. | [Reserved]. | 38 |
| 3.23. | Accounts Receivable. | 38 |
| 3.24. | Warranty Claims; Products. | 39 |
| 3.25. | Indebtedness and Transaction Expenses. . | 39 |
| 3.26. | No Other Representations or Warranties. | 39 |
i
| ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF SELLER PARTIES | 40 | |
| 4.1. | Authority. | 40 |
| 4.2. | Ownership. | 40 |
| 4.3. | Organization. | 40 |
| 4.4. | No Conflicts; Consents and Approvals. | 40 |
| 4.5. | Brokers and Finders. | 41 |
| ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF PURCHASER PARTIES | 41 | |
| 5.1. | Authority of Purchaser. | 41 |
| 5.2. | Capitalization. | 41 |
| 5.3. | Consents and Approvals. | 42 |
| 5.4. | Brokers and Finders. | 42 |
| 5.5. | Securities Law Matters. | 42 |
| 5.6. | Orders; Actions. | 42 |
| 5.7. | Financial Ability. | 43 |
| 5.8. | Solvency. | 43 |
| 5.9. | Independent Investigation; Acknowledgement. | 43 |
| ARTICLE 6. COVENANTS | 44 | |
| 6.1. | Public Announcements; Confidentiality. | 44 |
| 6.2. | Records. | 44 |
| 6.3. | Insurance Policies. | 45 |
| 6.4. | R&W Insurance Policy. | 46 |
| 6.5. | Employment and Benefits Arrangements; Director and Officer Designees. | 47 |
| 6.6. | Covenant Not to Use Name. | 47 |
| 6.7. | Audit Cooperation. | 48 |
| 6.8. | Schuler Transaction. | 48 |
| ARTICLE 7. THE CLOSING | 48 | |
| 7.1. | Closing. | 48 |
| 7.2. | Deliveries of the Company. | 48 |
| 7.3. | Deliveries of Seller Parties. | 49 |
| 7.4. | Deliveries of Purchaser. | 51 |
| 7.5. | Further Assurances. | 52 |
| ARTICLE 8. TAX MATTERS | 52 | |
| 8.1. | Tax Matters. | 52 |
| 8.2. | Audits and Contests with Respect to Taxes. | 55 |
| 8.3. | Intended Tax Treatment. | 56 |
| 8.4. | Purchase Price Allocation. | 56 |
| ARTICLE 9. SURVIVAL; REMEDIES | 57 | |
| 9.1. | Survival; Indemnification. | 57 |
| 9.2. | R&W Insurance Policy. | 58 |
| 9.3. | Sole and Exclusive Remedy. | 59 |
| ARTICLE 10. MISCELLANEOUS | 59 | |
| 10.1. | Expenses. | 59 |
| 10.2. | Amendment. | 60 |
| 10.3. | Notices. | 60 |
| 10.4. | Waivers. | 61 |
| 10.5. | Counterparts. | 61 |
| 10.6. | Applicable Law; Jurisdiction. | 61 |
| 10.7. | Assignment. | 61 |
| 10.8. | No Third Party Beneficiaries. | 62 |
| 10.9. | Disclosure Schedules. | 62 |
| 10.10. | Incorporation. | 62 |
| 10.11. | Complete Agreement. | 62 |
| 10.12. | Currency. | 62 |
| 10.13. | Waiver of Conflict. | 62 |
| 10.14. | Waiver of Jury Trial. | 62 |
| 10.15. | Intentionally Omitted. | 62 |
| 10.16. | Non-Recourse. | 62 |
ii
Exhibits
Exhibit 2.3 Net Working Capital Example
Schedules
| Schedule 1.1(a) | Permitted Liens | |
| Schedule 2.1(b) | Class A Transaction Bonus Grants | |
| Schedule 3.3(a) | Ownership Interests | |
| Schedule 3.4(a) | No Conflicts; Consents and Approvals | |
| Schedule 3.7(a) | Owned Intellectual Property | |
| Schedule 3.7(b) | Licensed Intellectual Property | |
| Schedule 3.7(d) | Intellectual Property Exceptions | |
| Schedule 3.7(f) | Social Media Accounts | |
| Schedule 3.8(a) | Historical Financial Statements | |
| Schedule 3.8(b) | Interim Financial Statements | |
| Schedule 3.9 | Absence of Changes | |
| Schedule 3.10 | Taxes | |
| Schedule 3.11 | Litigation | |
| Schedule 3.12(a) | Employee Benefit Plans | |
| Schedule 3.12(h) | 280G | |
| Schedule 3.12(l) | Grandfathered Health Plan Coverage | |
| Schedule 3.13(a) | Material Contracts | |
| Schedule 3.13(b) | Material Contract Breaches | |
| Schedule 3.14(a) | Insurance Policies | |
| Schedule 3.14(b) | Insurance Claims | |
| Schedule 3.15(a) | Employees | |
| Schedule 3.15(b) | Independent Contractors | |
| Schedule 3.15(c) | Term Employment Contracts | |
| Schedule 3.15(d) | Employment Law Compliance | |
| Schedule 3.15(h) | Disability Claims | |
| Schedule 3.15(i) | Employment Agreement Violations | |
| Schedule 3.17(a) | Compliance with Laws | |
| Schedule 3.17(b) | Permits | |
| Schedule 3.18(a) | Material Customers | |
| Schedule 3.18(b) | Material Suppliers | |
| Schedule 3.19 | Related Party Transactions | |
| Schedule 3.24 | Warranty Claims and Terms | |
| Schedule 5.2 | Capitalization | |
| Schedule 5.3 | Consents and Approvals |
iii
MEMBERSHIP INTERESTS PURCHASE AND CONTRIBUTION AGREEMENT
THIS MEMBERSHIP INTERESTS PURCHASE AND CONTRIBUTION AGREEMENT, dated February 18, 2026, is made and entered into by and among Diamond Interests Group, LLC, a Florida limited liability company taxed as an S-corporation (the “Seller”), A.L. Grading Contractors, LLC, a Georgia limited liability company (the “Company”), Anthony L. Wood, Jr., an individual residing in the State of Florida (“ALW”), Benjamin A. Wood, an individual residing in the State of Georgia (“BAW” and, together with ALW, “Seller Owners” and, each individually, a “Seller Owner”), Cardinal Civil Contracting Holdings LLC, a Delaware limited liability company (“Purchaser”), and Cardinal Infrastructure Group, Inc., a Delaware corporation (“PubCo” and, together with Purchaser, the “Purchaser Parties”). The Seller, Seller Owners, Company and the Purchaser Parties are from time to time referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS:
A. Immediately prior to the Restructuring (as defined below), the Seller Owners were the owners, beneficially and of record, of all the issued and outstanding capital stock (the “Pre-Contribution Shares”) of A.L. Grading Contractors, Inc., a Georgia corporation (“Oldco”).
B. Prior to the date of this Agreement, the Seller, Seller Owners and Oldco consummated the following transactions: (i) at least three (3) days prior to the Closing Date, Seller Owners formed the Seller; (ii) at least one (1) day after Seller Owners formed the Seller and at least two (2) days prior to the Closing Date, Seller Owners contributed all of the outstanding Pre-Contribution Shares of Oldco to the Seller in exchange for 100% of the equity interests of the Seller, resulting in the Seller becoming the sole owner of the issued and outstanding capital stock of Oldco (the “Contribution”); (iii) on the date of the Contribution, and immediately following the Contribution, Seller Owners caused the Seller to elect to treat Oldco as a “qualified subchapter S subsidiary” within the meaning of Section 1361(b)(3)(B) of the Code by executing and filing (via certified mail) a valid IRS Form 8869, Qualified Subchapter S Subsidiary Election, effective as of the date of the Contribution, indicating on Line 14 of such Form 8869 that the election was being made in combination with a reorganization under Section 368(a)(1)(F) of the Code described in IRS Revenue Ruling 2008-18 (the “Q-Sub Election”); and (iv) at least one (1) day following the mailing of the Q-Sub Election and at least one (1) day prior to the Closing Date, Oldco converted from a Georgia corporation to the Company (the “Conversion”) and as a result, the Company was treated as an entity disregarded as separate from the Seller, in each case, for U.S. federal (and applicable state and local) income tax purposes (clauses (i) through (iv) collectively, the “Restructuring”).
C. As a result of the Restructuring, all of the issued and outstanding membership interests of Seller are held beneficially and of record by the Seller Owners, and all of the equity interests of the Company (the “Equity Interests”) are held beneficially and of record by Seller.
D. The Seller desires to contribute to the Purchaser, and the Purchaser desires to accept from the Seller, certain of the Equity Interests (the “Rollover Equity”) having an aggregate value equal to $108,000,000 (the “Rollover Amount”) in exchange for (i) 4,186,062 Common Units (as defined in the Purchaser LLC Agreement) of the Purchaser (the “Purchaser Units”), and (ii) the PubCo Shares.
1
E. The Seller desires to sell to the Purchaser, and the Purchaser desires to purchase from Seller, all of the Equity Interests other than the Rollover Equity (the “Purchased Equity”) in exchange for cash consideration in accordance with the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the Parties, each intending to be legally bound, hereby agree as follows:
ARTICLE
1.
DEFINITIONS; INTERPRETATION
1.1. Definitions. The following terms shall have the following meanings for the purposes of this Agreement.
“Affiliate” means, with respect to any specified Person, any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such specified Person. For the purposes of this definition, “control,” when used with respect to any specified Person, means the power to direct the management or policies of such Person directly or indirectly, whether through ownership of voting securities, by Contract or otherwise; and the terms “controlling” and “controlled” having meanings correlative to the foregoing.
“Agreement” means this Membership Interests Purchase and Contribution Agreement, including all Schedules and Exhibits hereto, as it may be amended from time to time in accordance with its terms.
“Business” means the business activities of the Company as currently conducted, including the business of grading, clearing and constructing site infrastructure for commercial, industrial and residential construction sites.
“Business Day” means any day of the year other than (a) any Saturday or Sunday, or (b) any other day on which banks located in Atlanta, Georgia are authorized or required by Law to be closed for business.
“CARES Act” shall mean the Coronavirus Aid, Relief, and Economic Security Act (Pub. L. 116-136), together with all rules and regulations and guidance issued by any Governmental Authority with respect thereto.
“Cash” means, without duplication, the total amount of unrestricted cash and cash equivalents that would be reflected on a balance sheet of a Person prepared in accordance with GAAP consistently applied. “Cash” (i) shall be calculated net of any uncleared checks, drafts, ACH transfers or wire transfers issued by such Person to the extent not otherwise included as an accrued current liability in the calculation of Net Working Capital; and (ii) shall include credit card receipts in transit and any cash, checks, ACH transfers, wire transfers and drafts subject to deposits in transit or available for deposit for the account of such Person.
2
“Closing Cash” means the Cash of the Company as of 12:01 AM, Atlanta, Georgia time, on the Closing Date.
“Closing Indebtedness” means the Indebtedness of the Company as of 12:01 AM, Atlanta, Georgia time, on the Closing Date, provided, that any Taxes included in Indebtedness will be calculated as of the end of the Closing Date.
“COBRA” means the requirements of Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code.
“Code” means the Internal Revenue Code of 1986.
“Company IT Systems” means all software, computer hardware, servers, networks, platforms, peripherals, and similar or related items of automated, computerized, or other information technology (IT) networks and systems (including telecommunications networks and systems for voice, data, and video) owned, leased, licensed, or used (including through cloud-based or other third-party service providers) by the Company.
“Company Transaction Expenses” means, without duplication, whether or not accrued, (a) all fees and expenses of Seller Parties and the Company incurred or payable by Seller or the Company as of the Closing (and not paid prior to the Closing) to any brokers, financial advisors, consultants, accountants, attorneys or other professionals engaged by Seller Parties or the Company in connection with pursing, structuring, negotiating or consummating the transactions contemplated by this Agreement and the other Transaction Documents (including the solicitation of other potential buyers and other strategic initiatives), (b) all severance, change in control payments, sale transaction bonuses, discretionary bonuses and similar payments payable to any current or former employee, officer, director or independent contractor of Seller or the Company in connection with the transactions contemplated by this Agreement (including the employer portion of any withholding, payroll, social security, unemployment or similar Taxes); and (c) one-half of the cost of the premium of the Run-Off Insurance Policies and (d) one-half of the cost of the premium of the R&W Insurance Policy (but expressly excluding any underwriting fees and legal fees of the R&W Policy).
“Company’s Knowledge,” or variations thereof, means the actual knowledge of ALW and BAW and Rick Leeson after due inquiry and reasonable investigation.
“Compensation Indebtedness Items” means any (a) unfunded or underfunded liabilities under any pension, retirement or nonqualified compensation plan or arrangement, (b) employer contributions required to be made by the Company under any Plan intended to qualify under Section 401(a) of the Code for any periods prior to the Closing that have not been remitted to such Plan prior to the Closing, (c) any obligation for amounts owed to any third party under any noncompetition, severance, change of control, retention, stay put or similar arrangement, whether triggered at or prior to the Closing, to the extent not actually included as a current liability in Net Working Capital, and (d) any earned but unpaid compensation (including salary, bonuses and paid time off, vacation, PTO or similar time off of employees) in respect of the period prior to the Closing Date to the extent not actually included as a current liability in Net Working Capital, together with the employer portion of any withholding, payroll, employment or similar Taxes, if any, associated with any amounts described in subclauses (a)–(d) hereof.
3
“Computer Software” means all computer software, including source code, operating systems and specifications, data, databases, files, documentation, and other materials related thereto.
“Contract” means any contract, agreement, indenture, note, bond, loan, instrument, guarantee, deed, mortgage, lease, sublease, license, sublicense, or other written arrangement or agreement, and including all amendments thereto, but excluding any purchase orders, invoices, rate sheets, price lists, terms and conditions, or sales quotes entered into in the Ordinary Course of Business.
“Controlled Group” means any trade or business (whether or not incorporated) (a) under common control within the meaning of Section 4001(b)(1) of ERISA with the Company or (b) which together with the Company is treated as a single employer under Section 414(t) of the Code.
“Desktop Software” means any off-the-shelf third-Person Computer Software that is licensed for use on desktop or laptop “PC-class” computers or related local area network servers other than by a written Contract executed by the licensee, including software licensed by shrink-wrap or click-wrap licenses.
“EIDL” means loans from the Economic Injury Disaster Loan program through the U.S. Small Business Administration.
“Equitable Remedies” means applicable limitations on the enforceability of obligations resulting from: (a) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other requirements of applicable Laws, orders or equitable principles now or hereafter in effect relating to or affecting the enforcement of creditors’ rights or debtors’ obligations generally; and (b) as to the remedy of specific performance and injunctive and other forms of equitable relief, the imposition of equitable defenses and the discretion of the Governmental Authority before which any proceeding therefor may be brought (regardless of whether enforcement is sought in a proceeding at law or in equity).
“Employee Retention Credit” means the federal tax credit provided pursuant to Section 3134 of the Code.
“Environment” means any of the following media: (a) land, including surface land, sub-surface strata and any natural or man-made structures; (b) water, including coastal and inland waters, surface waters, ground waters, drinking water supplies and waters in drains and sewers, surface and sub-surface strata; and (c) air, including vapors and indoor and outdoor air.
“Environmental Claim” means any claim by any third party alleging potential liability (including potential liability for investigatory costs, cleanup costs, governmental response costs, natural resources damages, property damages, personal injuries, or penalties) arising out of, based on or resulting from (i) the presence, Release or threatened Release of any Hazardous Substances at any location, whether or not owned or operated by the Company, (ii) circumstances forming the basis of any violation or alleged violation of any Environmental Law or Environmental Permit, or (iii) any other liability arising under Environmental Law or relating to Hazardous Substances.
4
“Environmental Laws” means all applicable Laws relating to (a) pollution or the protection, restoration or remediation of, or prevention of harm to, the environment or the protection of the natural environment, including natural resources, (b) the protection of human health and safety as it pertains to exposure to Hazardous Substances, (c) the manufacture, processing, registration, distribution, formulation, packaging or labeling of Hazardous Substances or products containing Hazardous Substances, (d) the transport or handling, use, presence, generation, treatment, incineration, landfilling, milling, storage, disposal, Release or threatened Release of or exposure to any Hazardous Substance, or (e) recordkeeping, notification, disclosure and reporting requirements respecting Hazardous Substances. Included within this definition is the following non-inclusive list of Laws: the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. Sec. 9601 et seq.; the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Sec. 6901 et seq.; the Toxic Substances Control Act, as amended, 15 U.S.C. Sec. 2601 et seq.; the Clean Water Act, as amended, 33 U.S.C. Sec. 1251 et seq.; the Clean Air Act, as amended, 42 U.S.C. Sec. 7401 et seq.; and any applicable United States federal, state or local Law having a similar subject matter.
“Environmental Matter” means: (a) pollution or contamination of the Environment or the occurrence or existence of Hazardous Substances in the Environment on the Leased Real Property or of an unpermitted Release, in each case, in violation of Environmental Laws; (b) the treatment, handling, storage, transportation, disposal or Release of any Hazardous Substance; (c) exposure of any person to any Hazardous Substance; and/or (d) the violation of any Environmental Law or any Environmental Permit.
“Environmental Permit” means any Permit issued, granted or required under any Environmental Law.
“ERISA” means the Employee Retirement Income Security Act of 1974, and the regulations promulgated thereunder.
“Escrow Account” means that certain escrow account held by the Escrow Agent pursuant to the terms of the Escrow Agreement.
“Escrow Agent” means Truist Bank.
“Escrow Agreement” means that certain escrow agreement among Seller, the Purchaser and Escrow Agent dated as of the Closing Date.
“Escrow Amount” means $2,400,000 held by the Escrow Agent pursuant to the terms of the Escrow Agreement in connection with determining the Final Purchase Consideration.
“Fraud” means the occurrence of all of the following with respect to any representation and warranty made by the Seller Parties in Articles 3 and 4: (a) such representation and warranty was inaccurate or untrue in any material respect when made; (b) the Seller Parties had knowledge that such representation and warranty was inaccurate or untrue in such material respect when so made; and (c) the Purchaser suffered injury as a result; provided, however, that for the avoidance of doubt, “Fraud” shall not include any claim for equitable fraud, constructive fraud, promissory fraud, unfair dealings fraud, fraud by reckless or negligent misrepresentations or any tort based on negligence or recklessness.
5
“GAAP” means United States generally accepted accounting principles.
“Governmental Authority” means any government or any agency, bureau, board, commission, court, department, official, political subdivision, tribunal, or other instrumentality of any government, whether federal, state, or local, domestic or foreign, as well as any corporations owned or chartered by any such governmental agency, bureau, board, commission, court, department, official, political subdivision, tribunal, or other instrumentality.
“Hazardous Substance” means, any (a) constituent, material, substance, chemical, or waste (or combination thereof) that is listed, defined, designated, regulated or classified as hazardous, explosive, corrosive, flammable, infectious, toxic, carcinogenic, mutagenic, radioactive, dangerous, a pollutant, a contaminant, or words of similar meaning or effect under any Environmental Law, (b) substance that requires removal or remediation under any Environmental Law, (c) substance that can give rise to liability under any Environmental Law or the presence of which requires investigation, clean up, removal, abatement, remediation or other corrective or remedial action under any Environmental Laws, (d) petroleum or petroleum by-products (including crude oil and any fractions thereof), natural gas, synthetic gas and any mixtures thereof, asbestos or asbestos-containing materials or products, per- and polyfluoroalkyl substances, polychlorinated biphenyls (PCBs) or materials containing same, radioactive materials, lead-based paints or materials, or radon and (e) chemical, material, substance or waste which is defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “toxic substances,” “restricted hazardous wastes,” “contaminants,” or “pollutants”, in each case as such definition is regulated under Environmental Laws.
“Income Taxes” means any Tax that is, in whole or in part, based on or measured by net income or profit.
“Indebtedness” means, without duplication, and as calculated in accordance with the GAAP consistently applied, (a) all obligations of the Company for borrowed money, whether short term or long term (including the principal amount thereof, any accrued interest thereon and any prepayment premiums or termination fees with respect thereto) but excluding trade payables or other current liabilities incurred in the ordinary course of business past due included in the calculation of Final Net Working Capital, (b) all obligations of the Company evidenced by notes, bonds, debentures or other similar instruments, (c) all reimbursement obligations of the Company under letters of credit to the extent such letters of credit have been drawn, (d) all obligations of the Company under capitalized leases to the extent any such lease is accrued as indebtedness in accordance with GAAP consistently applied (without giving effect to ASC 842), (e) any and all amounts owed by the Company to any of its Affiliates, including the Seller Parties or any of their Affiliates, (f) any Compensation Indebtedness Items, (g) all obligations relating to or arising under interest rate or other hedging Contracts, (h) all overdrafts, (i) deferred rent payments, (j) all obligations relating to “earn-outs”, incentive payments, deferred purchase price or similar obligations (assuming, in each case, for purposes of calculating “Indebtedness” that the full amount thereof is due and payable as of the date of such calculation), (k) all accrued and unpaid management fees, advisory and similar fees, including any amounts associated with termination of such arrangements on or prior to Closing, (l) all obligations under any PPP or EIDL loan, (m) any liability for Taxes deferred pursuant to Section 2302 of the CARES Act or any other COVID-19 laws, regardless of when payable, (n) all unpaid Taxes (accruing Taxes for this purpose through the Closing Date for the entire taxable period ending on the Closing Date or portion of such taxable period ending on, and including, the Closing Date), whether or not required to be accrued in accordance with GAAP (including the employer portion of any employment Taxes), (o) any liabilities and expenses in connection with Employee Retention Credits or associated refunds, including penalties, interest and any clawback by a Governmental Authority or any portion of an Employee Retention Credit or associated refund claimed by the Company, (p) the amount of any Taxes to the Company associated with the debt forgiveness, (q) obligations to pay any dividends or distributions to any Person, (r) credit balances within the Company’s aged accounts receivable related to customer prepayments, customer overpayments, and other balances owed to customers, (s) all obligations of the Company for guarantees of the indebtedness of another Person in respect of any items set forth in clauses (a) through (d) of this definition (other than guarantees that constitute Permitted Liens), (t) all accrued interest, fees and expenses (including prepayment premium obligations) resulting from any of the items set forth in clauses (a) through (e) of this definition, and (u) customer deposits, deferred revenue and similar liabilities. For the avoidance of doubt, (i) operating leases shall not be treated as Indebtedness, and (ii) Indebtedness shall not include any Company Transaction Expenses or any liability accounted for in the calculations of Net Working Capital.
6
“Indemnified Taxes” means, without duplication for amounts expressly included in calculation of Indebtedness, (a) any and all Taxes imposed on, arising in connection with, or otherwise attributable to the Seller Parties for any taxable period, (b) any and all Taxes imposed on, arising in connection with, or otherwise attributable to the Company for any Pre-Closing Tax Period, calculated by including in the Company’s taxable income any deferred revenue, prepaid amount or cumulative amount that remains payable as a result of an adjustment under Section 481 of the Code in a Pre-Closing Tax Period or any amount resulting from the Company’s use of the cash method of accounting in a Pre-Closing Tax Period, (c) withholding, payroll, social security, unemployment or similar Tax of the Company attributable to any payment that is contingent upon or payable as a result of the transactions contemplated by this Agreement, (d) the Seller’s portion of Transfer Taxes, (e) Taxes for which the Company (or any predecessor or transferor of the Company) is liable (i) under Section 1.1502-6 of the Treasury Regulations (or any similar provision of state, local or non-U.S. Law) because of the Company being included in any consolidated, affiliated, combined, unitary or similar group at any time on or before the Closing Date, or (ii) as a result of an express or implied obligation to indemnify any Person, or as a transferee or successor, by contract or pursuant to any Law or otherwise, which Taxes relate to an event or transaction occurring before the Closing Date, (f) professional fees and other third-party expenditures (including legal and accounting fees) incurred by Purchaser or the Company in connection with (i) the preparation and filing of any Tax Return or other required filings relating to Tax matters with respect to the Company or any Seller Party for any Pre-Closing Tax Period or (ii) the preparation for and defense or prosecution of any Tax audit, protest, examination, suit or other proceeding relating to Tax matters of any of the Companies or any Seller Party for a Pre-Closing Tax Period, (g) any and all Taxes resulting from the Restructuring, including any Taxes resulting from a failure of the Company to qualify as an entity disregarded as separate from Seller (within the meaning of Treasury Regulation Section 301.7701-2(c)(2)(i)) following the Conversion and immediately prior to Closing, and (h) any and all Taxes resulting from a SALT Election made by or with respect to the Company in a Pre-Closing Tax Period and/or relating to an event or transaction occurring on or before the Closing Date.
“Intellectual Property” means all of the following: United States and foreign (a) patents, patent applications, continuations, continuations in part, divisions, reissues or patent disclosures, (b) trademarks, service marks, corporate names, trade names or fictitious names (and all translations adaptations, derivations and combinations of the foregoing), together with all goodwill associated with each of the foregoing, (c) internet domain names, URLs and registrations thereof, (d) copyrights, whether registered or unregistered, together with all goodwill associated with each of the foregoing, (e) registrations and applications for any of the foregoing, (f) computer software and systems (including source code, executable code, data, databases, and documentation), (g) social media accounts, usernames and other digital identifiers, and rights in telephone numbers, together with all translations, adaptations, derivations and combinations thereof, (h) Trade Secrets, and (i) all other proprietary or confidential information or similar intellectual property rights (whether registered or unregistered, and any applications for the foregoing) that may subsist anywhere in the world and (j) all tangible embodiments of the foregoing.
“IRS” means the Internal Revenue Service.
“Kendall” means Kendall Development, LLC, a Georgia limited liability company.
“Law” means any law, statute, regulation, ordinance, rule, order, decree, judgment, consent decree or governmental requirement enacted, promulgated, entered into or imposed by any Governmental Authority.
“Lien” means any lien, security interest, charge, claim, mortgage, deed of trust, pledge, restriction on transfer, hypothecation, easement, right-of-way, encroachment, zoning restrictions, indenture, license to third parties, lease to third parties or any other encumbrance or other restriction or limitation on the use of real or personal property.
“Loss” and “Losses” mean all losses, liabilities, claims, damages, penalties, fines, dues, judgments, awards, settlements, Taxes, loss of Tax benefits, costs (including costs of investigation), defense costs, court costs, fees, expenses (including reasonable attorneys’ fees, interest and penalties, the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers) and disbursements.
7
“Material Adverse Effect” means any event, circumstance, change or effect that, individually or in the aggregate, has or would reasonably be expected to have a material adverse effect on the business, condition (financial or otherwise) or results of operations of the Company, the Purchaser or PubCo, as the case may be; provided, that, for purposes of this Agreement, none of the following shall be deemed to constitute, or be taken into account in determining whether there has been, a Material Adverse Effect: (a) changes to the United States economy or the global economy, in each case, as a whole, or that are generally applicable to the industry or markets in which the Company, the Purchaser or PubCo, as the case may be, operates; or (b) any adverse change, event, development or effect arising from or relating to (i) general business or economic conditions, including such conditions related to the Business or the business of the Purchaser or PubCo, as the case may be, (ii) local, regional, national or international political or social conditions, including any riots, military action or terrorism (including any escalation or general worsening of any such riots, military action or terrorism), (iii) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other nature disasters, disease outbreak, epidemic, pandemic, weather conditions and other acts of God, or force majeure events, (iv) financial, banking, or securities markets (including interest rates and currency exchange rates, or changes therein), (v) any failure by the Company, the Purchaser or PubCo, as the case may be, to meet any internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (but not, in each case, the underlying cause of such changes or failures), (vi) changes in GAAP, (vii) any change or amendment to any Law or any change in the manner in which any Law is or may be enforced, (viii) the announcement or performance of this Agreement or the transactions contemplated by this Agreement, including any reaction of any customer, supplier, employee, Governmental Authority, landlord, or similar relationships of the Company, the Purchaser or PubCo, as the case may be, or (ix) any actions taken, or omitted to be taken, in response to the foregoing to the extent such action or omission was or is reasonable and necessary to protect the health and safety of individuals who are officers, directors, managers, employees or other service providers to the Company, the Purchaser or PubCo, as the case may be (or individuals who interact with any of the foregoing in connection with the Business or the business of the Purchaser or PubCo, as the case may be) or otherwise to protect the business, operations, assets and financial condition of the Company, the Purchaser or PubCo, as the case may be, or as otherwise required to be taken, or omitted to be taken, under applicable Laws, except solely in the cases of clauses (a), (b)(i) – (iv), (b)(vi) – (vii) or (b)(ix) above to the extent such changes would reasonably be expected to have a materially disproportionate impact on the financial condition, business or results of operation of the Company, the Purchaser or PubCo, as the case may be, taken as a whole, relative to other affected participants in the industries in which the Company, the Purchaser or PubCo, as the case may be, conducts business.
“Multiemployer Plan” has the meaning set forth in Section 3 (37) of ERISA.
“Net Working Capital Target” means Fifteen Million Dollars ($15,000,000).
“Order” means any judgment, injunction, award, decision, decree, ruling, verdict, writ, or order of any nature of any Governmental Authority.
“Ordinary Course of Business” means (i) for the Company, the ordinary course of business of the Company, consistent with past custom and practice, and (ii) for the Purchaser Parties, the ordinary course of business of, respectively, the Purchaser and PubCo, consistent with past custom and practice.
“Payoff Letters” means customary pay-off letters from each holder of Closing Indebtedness in form and substance reasonably satisfactory to Purchaser that provides for the release of all Liens and the termination of all agreements and other security interests relating to such Closing Indebtedness following the payment in full of such Closing Indebtedness.
8
“Permitted Liens” means (a) Liens for Taxes not yet delinquent or the amount or validity of which is being contested in good faith by appropriate proceedings (if then appropriate), for which adequate reserves have been established, (b) Liens of carriers, landlords, warehousemen, bailees, mechanics and materialmen incurred in the Ordinary Course of Business, whether by Contract or arising under applicable Law for monies not yet due and not as a result of any breach, (c) zoning, building, entitlement and other land use and environmental regulations promulgated by any Governmental Authority that have been filed and appear in the public real estate records, in each case that do not prohibit or impair the current use, occupancy or marketability of title of the property subject thereto, (d) Liens of public record, (e) with respect to any Leased Real Property (i) the interests and rights of the respective landlords, lessors and/or owners with respect thereto, and (ii) any Lien expressly permitted under the applicable Lease and any ancillary documents thereto, (f) covenants, conditions, restrictions, easements, rights of way, encumbrances, defects, imperfections, irregularities of title that have been filed and appear in the public real estate records, in each case that do not prohibit or impair the current use, occupancy or marketability of title of the property subject thereto, (g) Liens created by Purchaser or its successors and assigns, (h) Liens reflected in the Financial Statements or set forth in Schedule 1.1(a), and (i) licenses to Intellectual Property rights granted in the Ordinary Course of Business set forth on Schedule 3.7(b).
“Person” means any individual, corporation, partnership, association, limited liability company, joint venture, trust, estate, Governmental Authority, agency, instrumentality or political subdivision or body or other entity or organization.
“Personal Information” means any information that identifies, or could be used to identify, an individual person or household, including as defined under applicable Privacy and Security Requirements (e.g., “personal data,” “personal information,” “personally identifiable information” or “PII”).
“Plan” means any employee benefit plan (as defined in Section 3(3) of ERISA, whether or not subject to ERISA), and any bonus, profit sharing, savings, deferred compensation, medical, dental, vision, life or accidental dismemberment, disability, accident, sick pay, sick leave, accrued leave, vacation, paid time off, holiday, termination, severance, incentive, commission, bonus, retention, pension, retirement, loan, collective bargaining, post-retirement health or welfare benefit, equity or equity-based compensation, or other fringe benefit plan, agreement, policy or arrangement (whether written or unwritten, formal or informal, insured or self-insured), including any trust, insurance contract or fund related thereto, in each case, that is maintained, sponsored, contributed to or required to be contributed to by the Company or any member of the Controlled Group, under which the Company or any member of the Controlled Group has any current or potential liabilities, or with respect to which the Company or any member of the Controlled Group has made or is required to make payments, transfers, or contributions in respect of any present or former employees, directors, officers, shareholders, consultants or independent contractors of the Company or any member of the Controlled Group.
“PPP” means the Paycheck Protection Program as described in the Coronavirus Aid, Relief, and Economic Security Act of 2020 and modified by the Small Business Administration and Department of Treasury guidance documents and FAQs, subsequent interim final rules, and the Paycheck Protection Program Flexibility Act of 2020.
“Pre-Closing Tax Period” means any Tax Period ending on or prior to the Closing Date and the portion of any Straddle Period ending on the Closing Date.
9
“Privacy and Security Requirements” means (a) any Law that regulates the processing of Personal Information; (b) provisions of Contracts between the Seller and any person that directly apply to the processing of Personal Information; (c) all written policies of the Company relating to the processing of Personal Information and (d) applicable standards published by the Payment Card Industry Security Standards Council.
“PubCo Shares” means 4,186,062 shares of the Class B common stock of PubCo, which is equal in number to the number of Purchaser Units to be issued by the Purchaser to the Seller as part of the transactions contemplated by this Agreement.
“Purchaser’s Knowledge,” or variations thereof, means the actual knowledge of Jeremy Spivey and Mike Rowe after due inquiry and reasonable investigation.
“R&W Insurance Policy” means that certain representations and warranties insurance policy to be obtained by Purchaser from the R&W Insurer with respect to this Agreement, in substantially the form delivered by Purchaser to Seller prior to Closing.
“Related Party” means (a) any officer, director, manager, equityholder, member, or Affiliate of the Seller Owners or of the Company, (b) any individual related by blood, marriage, or adoption to any of the Seller Owners or to any officer, director, manager, or employee of the Company, and (c) any Person controlled by any of the foregoing.
“Release” shall mean any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal or leaching of any Hazardous Substances into the Environment, and “Released” shall be construed accordingly.
“Schedules” means the schedules attached to this Agreement and forming part of this Agreement.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Seller Parties” means the Seller and Seller Owners.
“Straddle Period” means any Tax Period beginning before the Closing Date and ending after the Closing Date.
“Streamline” means Streamline Development, Inc., a Georgia corporation.
“Tax” or “Taxes” mean all taxes, charges, fees, duties, levies or other assessments, including Income Taxes, gross receipts, capital stock, net proceeds, ad valorem, turnover, real, personal and other property (tangible and intangible), sales, use, franchise, excise, value-added, stamp, leasing, lease, user, transfer, fuel, excess profits, occupational, interest equalization, unitary, severance and employees’ income withholding, unemployment and Social Security taxes, duties, assessments and charges (including the recapture of any tax items such as investment tax credits), which are imposed by any Governmental Authority, including any interest, penalties or additions to tax related thereto imposed by any Governmental Authority (including any interest or penalties with respect to such Taxes).
10
“Tax Period” or “Taxable Period” means any period prescribed by any Governmental Authority for which a Tax Return is required to be filed or a Tax is required to be paid.
“Tax Return” means all returns and reports of or with respect to Taxes required to be filed with any Governmental Authority, including any schedule or attachment thereto, and including any amendment thereof.
“Trade Secrets” means all inventions and discoveries (whether or not patentable and whether or not reduced to practice) and all improvements thereto, and trade secrets and other confidential and proprietary information, ideas, know-how, inventions, processes, formulae, models, research and development, compositions, manufacturing and production processes and techniques, technical data and information, designs drawings, specifications, customer and supplier lists, mailing lists, pricing and cost information, business and marketing plans and proposals and methodologies in each case that derive independent economic value from not being generally known to the public.
“Transaction Documents” means this Agreement and all documents executed and delivered by the Company, Purchaser, PubCo, Seller, Seller Owners, or any of them, in connection with the Closing.
“Transaction Tax Deductions” means, without duplication and regardless of by whom paid, the aggregate amount of Tax deductions, losses or credits economically borne by Seller attributable to the following items: (a) any and all compensation (including transaction payments, transaction bonuses (including any such bonuses paid in kind), severance or other similar payments) accrued or paid by the Company in connection with the consummation of the transactions contemplated hereby (either alone or in connection with any other event, whether contingent or otherwise), (b) payment of fees and expenses incurred by Seller Owners and/or the Company on or prior to the Closing Date in connection with the transactions contemplated by this Agreement; (c) payment of the Indebtedness of the Company in connection with the Closing; and (d) other expenses or deductions of the Company taken into account in computing the Final Purchase Consideration payable to Seller. To the extent allowed under applicable Laws, the Company will make any elections available to deduct rather than capitalize such items (including the election to deduct 70% of success-based fees provided by IRS Revenue Procedure 2011-29).
“Treasury Regulations” means the United States Treasury Regulations promulgated under the Code.
1.2. Additional Defined Terms. In addition to the terms defined in Section 1.1 above, the following additional defined terms are defined in the respective Section set forth opposite such term below:
| DEFINED TERM | SECTION | ||
| Accountant | 2.5(d) | ||
| Action | 3.11 | ||
| Adjusted Purchase Consideration | 2.1(a) | ||
| ALW | Preamble | ||
| Balance Sheet Date | 3.8(e) |
11
| BAW | Preamble | ||
| BAW Employment Agreement | 7.3(g) | ||
| Claim Notice | 9.1(c) | ||
| Class A Transaction Bonus Grants | 2.1(b)(ii) | ||
| Closing | 7.1 | ||
| Closing Date | 7.1 | ||
| Closing Date Net Working Capital | 2.5(b) | ||
| Company | Preamble | ||
| Company Closing Certificate | 2.4 | ||
| Company Employment Agreements | 7.4(j) | ||
| Consulting Agreement | 7.3(g) | ||
| Contribution | Recitals | ||
| Conversion | Recitals | ||
| Employment Agreements | 7.3(g) | ||
| Equity Interests | Recitals | ||
| Estimated Closing Cash | 2.4 | ||
| Estimated Closing Indebtedness | 2.4 | ||
| Estimated Company Transaction Expenses | 2.4 | ||
| Estimated Net Working Capital | 2.4 | ||
| Final Closing Cash | 2.6(a) | ||
| Final Closing Indebtedness | 2.6(a) | ||
| Final Company Transaction Expenses | 2.6(a) | ||
| Final Determination | 2.6(a) | ||
| Final Net Working Capital | 2.6(a) | ||
| Final Purchase Consideration | 2.6(c) | ||
| Financial Statements | 3.8(b) | ||
| Historical Financial Statements | 3.8(a) | ||
| Indemnified Party(ies) | 9.1(c) | ||
| Indemnifying Party(ies) | 9.1(c) | ||
| Intended Tax Treatment | 8.3 | ||
| Interim Financial Statements | 3.8(b) | ||
| Lease | 3.5(a) | ||
| Leased Real Property | 3.5(a) | ||
| Lessors | 3.5(a) | ||
| Liability Policies | 6.3(c) | ||
| M&M | 6.2(c) | ||
| Material Contract | 3.13 | ||
| Material Customer | 3.18(a) | ||
| Material Supplier | 3.18(b) | ||
| MPT | 6.8 | ||
| Net Working Capital | 2.3 | ||
| Notice of Dispute | 2.5(c) | ||
| Oldco | Recitals | ||
| Owned Intellectual Property | 3.7(a) | ||
| Party(ies) | Preamble | ||
| Permits | 3.17(b) |
12
| Perimeter | 3.5(a) | ||
| PIB | 3.5(a) | ||
| PPACA | 3.12(k) | ||
| Pre-Closing Tax Matter | 8.2(a) | ||
| Pre-Contribution Shares | Recitals | ||
| PubCo | Recitals | ||
| PubCo Rights Agreement | 7.3(e) | ||
| PubCo Shares Consideration | 2.2 | ||
| Purchase Consideration | 2.1(a) | ||
| Purchase Consideration Increase | 2.7(b) | ||
| Purchase Consideration Reduction | 2.7(a) | ||
| Purchase Price Allocation | 8.4 | ||
| Purchased Equity | Recitals | ||
| Purchaser | Preamble | ||
| Purchaser Closing Certificate | 2.5(b) | ||
| Purchaser Indemnified Parties | 9.1(b) | ||
| Purchaser LLC Agreement | 7.3(e) | ||
| Purchaser Parties | Preamble | ||
| Purchaser Units | Recitals | ||
| Purchaser Units Consideration | 2.2 | ||
| Q-Sub Election | Recitals | ||
| R&W Insurer | 6.4(a) | ||
| Records | 6.2(a) | ||
| Required Actions | 3.4(a) | ||
| Required Consents | 3.4(a) | ||
| Resolution Period | 2.5(c) | ||
| Restrictive Covenant and Release Agreement | 7.3(h) | ||
| Restructuring | Recitals | ||
| Rollover Agreement | Recitals | ||
| Rollover Amount | Recitals | ||
| Rollover Equity | Recitals | ||
| Run-Off Insurance Policies | 6.3(a) | ||
| Seller | Preamble | ||
| Seller Owners | Preamble | ||
| Seller Indemnified Parties | 9.1(c) | ||
| Shuler | 6.8 | ||
| Shuler Closing | 6.8 | ||
| Shuler Letter Agreement | 6.8 | ||
| Shuler Purchase Price | 6.8 | ||
| Surviving Covenants | 9.1(a) | ||
| Tax Benefit Agreement | 7.3(d) | ||
| Tax Receivable Agreement | 7.3(c) | ||
| Tax Return Objection | 8.1(b) | ||
| Third-Party Claim | 9.1(c) | ||
| Transfer Taxes | 8.1(i) | ||
| VRA | 3.21 | ||
| WARN | 3.15(g) | ||
| Wood Escrow | 6.8 |
13
1.3. Interpretation.
(a) Each of the Parties acknowledges that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that it has executed the same with the benefit of advice of said independent counsel. Each Party and its counsel cooperated in the drafting and preparation of this Agreement and the documents referred to herein, and any and all drafts relating thereto shall be deemed the work product of the Parties and may not be construed against any Party by reason of its preparation. Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against any Party that drafted it is of no application and is hereby expressly waived. The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Person.
(b) All references in this Agreement to Exhibits, Schedules, Articles, Sections, subsections and other subdivisions refer to the corresponding Exhibits, Schedules, Articles, Sections, subsections and other subdivisions of this Agreement unless expressly provided otherwise. Titles appearing at the beginning of any Articles, Sections, subsections or other subdivisions of this Agreement are for convenience only, do not constitute any part of such Articles, Sections, subsections or other subdivisions, and shall be disregarded in construing the language contained therein. The words “this Agreement,” “herein,” “hereby,” “hereunder” and “hereof” and words of similar import, refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The words “this Section,” “this subsection” and words of similar import, refer only to the Sections or subsections hereof in which such words occur. The word “including” (in its various forms) means “including, without limitation” and the word “or” need not be exclusive. Pronouns in masculine, feminine or neuter genders shall be construed to state and include any other gender and words, terms and titles (including terms defined herein) in the singular form shall be construed to include the plural and vice versa, unless the context otherwise expressly requires. Unless the context otherwise requires, all defined terms contained herein shall include the singular and plural and the conjunctive and disjunctive forms of such defined terms. Reference to any Person includes such Person’s successors and assigns to the extent such successors and assigns are permitted by the terms of any applicable agreement. Reference to a Person in a particular capacity excludes such Person in any other capacity or individually. Reference to any agreement (including this Agreement), document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof.
(c) In each case under this Agreement in which the Seller or the Company represents that it has furnished or provided Purchaser with, or made available to Purchaser, any documents or other materials (including Contracts, Financial Statements, and reports), such representation shall be deemed true to the extent such documents or materials were posted on the virtual data room administered by Firmex for “Project Terra” as of the date hereof (including if actually posted prior to the date hereof) and were located within the virtual data room in a place reasonably related to the subject matter of such disclosure.
14
ARTICLE
2.
PURCHASE, SALE AND CONTRIBUTION
2.1. Purchase and Sale.
(a) Subject to the terms and conditions contained herein, at the Closing of the transactions contemplated hereby, the Seller shall sell, assign and deliver to Purchaser, and Purchaser shall purchase and take assignment and delivery of the Seller’s right, title and interest in and to the Purchased Equity, free and clear of all Liens, other than restrictions arising under applicable securities Laws. The aggregate purchase price payable by the Purchaser to the Seller for the Purchased Equity shall be $134,000,000 (the “Purchase Consideration”). On the Closing Date, the Purchase Consideration shall be: (i) increased, dollar for dollar, to the extent of the Estimated Closing Cash (as set forth in the Company Closing Certificate); (ii) increased, dollar for dollar, to the extent that the Estimated Net Working Capital is greater than the Net Working Capital Target, or decreased, dollar for dollar, to the extent the Estimated Net Working Capital is less than the Net Working Capital Target (as set forth in the Company Closing Certificate); (iii) decreased by the amount of the Estimated Closing Indebtedness; (iv) decreased by the amount of the Estimated Company Transaction Expenses; (v) decreased by the Escrow Amount; and (vi) decreased by the value of the Class A Transaction Bonus Grants (the Purchase Consideration, as so adjusted on the Closing Date, the “Adjusted Purchase Consideration”). Following the Closing, the Purchase Consideration shall be (x) increased by any payments made by the Purchaser to the Seller Owners under or in respect of the Tax Receivable Agreement and the Tax Benefit Agreement, and (y) subject to further adjustment pursuant to Section 2.7 (relating to the Final Determination).
(b) At the Closing, Purchaser shall:
(i) pay the Adjusted Purchase Consideration to Seller, by wire transfer of immediately available funds;
(ii) cause PubCo to issue to the recipients listed on Schedule 2.1(b) the corresponding number of fully-vested shares of PubCo’s Class A Common Stock (the “Class A Transaction Bonus Grants”);
(iii) pay, by wire transfer of immediately available funds on behalf of Seller and the Company, the Estimated Closing Indebtedness in accordance with the Payoff Letters delivered pursuant to Section 7.2(a);
(iv) pay, by wire transfer of immediately available funds on behalf of Seller and the Company the Estimated Company Transaction Expenses in accordance with the payment instructions delivered by Seller prior to the Closing; and
(v) pay, by wire transfer of immediately available funds on behalf of Seller and the Company, the Escrow Amount to the Escrow Agent.
15
2.2. Contribution. Subject to the terms and conditions contained herein, at the Closing of the transactions contemplated hereby, the Seller shall contribute, transfer, assign and deliver to the Purchaser, and the Purchaser shall acquire and accept from the Seller, the Seller’s right, title and interest in and to the Rollover Equity, free and clear of all Liens, other than restrictions arising under applicable securities Laws. As consideration for the Rollover Equity, (i) the Purchaser shall issue to the Seller the Purchaser Units set forth on Appendix A (the “Purchaser Units Consideration”) and (ii) PubCo shall issue to the Seller all of the PubCo Shares, (the “PubCo Shares Consideration” and, together with the Purchaser Units Consideration, the “Rollover Consideration”), which Rollover Consideration shall, in each case, be issued, assigned, transferred and delivered, as the case may be, to the Seller free and clear of all Liens, other than restrictions arising under applicable securities Laws and the organizational documents of PubCo or Purchaser, as applicable, that are delivered to the Seller in accordance with Section 7.4. The Parties intend that the assignment, transfer and delivery of the Rollover Equity by the Seller to the Purchaser in consideration for the Rollover Consideration shall be treated for federal income tax purposes as an exchange qualifying for nonrecognition of gain under Section 721 of the Code.
2.3. Determination of Net Working Capital. The term “Net Working Capital” means the following calculations determined as of the Closing Date and in accordance with GAAP: (a) the sum of (i) the Company’s trade accounts receivable (excluding intercompany receivables) net of the amount of reserves, (ii) an amount equal to the Company’s (A) earned revenue greater than billings asset less (B) billings greater than earned revenue liability, and (iii) the Company’s prepaid expense to the extent Purchaser receives the benefit after Closing, less (b) the sum of (i) all accounts payable of the Company (excluding intercompany payables) date of such account payable, and (ii) any other accrued current liabilities of the Company, in each case generated in the Company’s ordinary course of business, consistent with past practice. Amounts in (b) shall exclude amounts included as Income Tax liabilities, Indebtedness, and Company Transaction Expenses of the Company, and deferred Tax assets and deferred Tax liabilities. “Net Working Capital” of the Company is shown and calculated in accordance with Exhibit 2.3. For purposes of calculating the Estimated Net Working Capital and the Final Net Working Capital, such determination will be made in accordance with the provisions of Exhibit 2.3. In the event of a conflict between the methodology of Exhibit 2.3 and the terms of this Section 2.3, the methodology of Exhibit 2.3 shall control.
2.4. Company Closing Certificate. At least two (2) Business Days prior to the Closing, the Company shall prepare and deliver to Purchaser a certificate (the “Company Closing Certificate”) setting forth its good faith estimates, in each case as of 12:01 AM, Atlanta, Georgia time, on the Closing Date, of: (i) the Net Working Capital of the Company (the “Estimated Net Working Capital”), (ii) the Closing Cash (the “Estimated Closing Cash”), (iii) the Closing Indebtedness (the “Estimated Closing Indebtedness”) and (iv) the Company Transaction Expenses (the “Estimated Company Transaction Expenses”). The Estimated Net Working Capital shall be prepared in accordance with the sample calculations and methodology set forth on Exhibit 2.3. In connection with the determination of the Estimated Net Working Capital, the Estimated Closing Cash, the Estimated Closing Indebtedness and the Estimated Company Transaction Expenses, the Company shall provide to Purchaser such information and detail as Purchaser shall reasonably request, including reasonable access to relevant personnel, books and records and work papers related thereto.
16
2.5. Unclaimed Bonus Grants; Post-Closing Calculations; Dispute Resolution; Etc.
(a) Any portion of the Class A Transaction Bonus Grant shares that are not granted to eligible recipients thirty (30) days after the Closing Date shall revert back to PubCo’s 2025 Stock Incentive Plan. Purchaser shall pay to Seller an amount equal to (i) the number of Class A Transaction Bonus Grant shares that are not granted to eligible recipients hereunder multiplied by (ii) $25.80, and such amount shall be added to Closing Cash for all purposes of this Section 2.5.
(b) As promptly as practicable following the Closing, but in no event later than ninety (90) days after the Closing Date, Purchaser shall prepare and deliver to the Seller a certificate (the “Purchaser Closing Certificate”) setting forth, in each case as of 12:01 AM, Atlanta, Georgia time, on the Closing Date, Purchaser’s good faith calculations of: (i) the Net Working Capital of the Company (the “Closing Date Net Working Capital”), (ii) the Closing Cash, (iii) the Closing Indebtedness, and (iv) the Company Transaction Expenses. The Closing Date Net Working Capital shall be prepared in accordance with the sample calculations and methodology set forth on Exhibit 2.3. In connection with Purchaser’s determination of the Closing Date Net Working Capital, the Closing Cash, the Closing Indebtedness and the Company Transaction Expenses, Purchaser shall provide to the Seller such information and detail as the Seller shall reasonably request, including reasonable access to relevant personnel, books and records and work papers related thereto.
(c) If the Seller disputes any of the items set forth in the Purchaser Closing Certificate, then as promptly as practicable following receipt of the same, but in no event later than thirty (30) days after the delivery to the Seller of the Purchaser Closing Certificate, the Seller shall deliver to Purchaser a written notice specifying in reasonable detail (to the extent reasonably possible) all disputed items and the basis thereof and setting forth any adjustments to the calculation of any of the items set forth in the Purchaser Closing Certificate that the Seller believes should be made (the “Notice of Dispute”). If Purchaser does not agree with the Notice of Dispute, Purchaser and the Seller shall negotiate in good faith to resolve the disputed items set forth in the Notice of Dispute within thirty (30) days following delivery to Purchaser of such Notice of Dispute (the “Resolution Period”), and any resolution by them as to any disputed items shall be in writing and shall be final, binding and conclusive.
(d) If Purchaser and the Seller are unable to resolve all disputed items with respect to the Purchaser Closing Certificate prior to the expiration of the Resolution Period, any items remaining in dispute shall be submitted, as soon as practicable, to Forvis Mazars, LLP or if such firm is unable to serve in such capacity or is not independent with respect to PubCo, Purchaser, the Company or Seller Owners, then to another national or regional firm of certified independent public accountants mutually acceptable to Purchaser and the Seller that is not the regular accounting firm of PubCo, Purchaser, the Company or Seller Owners (the “Accountant”). The Accountant shall act as an arbitrator to determine only those items with respect to the Purchaser Closing Certificate which are still in dispute. The Accountant’s determination shall be final, binding and conclusive against the Parties and enforceable in any court of competent jurisdiction. In resolving any disputed item, the Accountant (i) shall be bound by the provisions of Section 2.3 and this Section 2.5, including, without limitation, the defined terms and related methodologies, (ii) may not assign a value to any item greater than the highest value claimed for such item or less than the lowest value for such item claimed by either Purchaser or the Seller, (iii) shall restrict its decision to the disputed items included in the Notice of Dispute which are then in dispute, and (iv) shall render its decision in writing within thirty (30) days after the disputed items have been submitted to it.
17
(e) The fees and expenses of the Accountant in resolving the disputed items shall be borne and paid (i) by Seller, on the one hand, in the proportion that the aggregate dollar amount of the disputed items that are unsuccessfully disputed by the Seller (as finally determined by the Accountant) bears to the aggregate dollar amount of all disputed items, and (ii) by Purchaser, on the other hand, in the proportion that the aggregate dollar amount of the disputed items that are successfully disputed by Seller (as finally determined by the Accountant) bears to the aggregate dollar amount of all disputed items.
2.6. Post-Closing Adjustment Amounts.
(a) “Final Determination” means the final determination of the Net Working Capital, the Closing Cash, the Closing Indebtedness and the Company Transaction Expenses in accordance with Section 2.5. “Final Net Working Capital” means the Net Working Capital as of 12:01 AM, Atlanta, Georgia time, on the Closing Date as determined by a Final Determination. “Final Closing Cash” means the Closing Cash as determined by a Final Determination. “Final Closing Indebtedness” means Closing Indebtedness as determined by a Final Determination. “Final Company Transaction Expenses” means the Company Transaction Expenses as determined by a Final Determination.
(b) As part of the Final Determination:
(i) The Adjusted Purchase Consideration will be increased, dollar for dollar, to the extent Final Net Working Capital is greater than the Estimated Net Working Capital, or decreased, dollar for dollar, to the extent Final Net Working Capital is less than Estimated Net Working Capital.
(ii) The Adjusted Purchase Consideration will be increased, dollar for dollar, to the extent that the Final Closing Cash is greater than the Estimated Closing Cash or decreased, dollar for dollar, to the extent the Final Closing Cash is less than the Estimated Closing Cash.
(iii) The Adjusted Purchase Consideration will be increased, dollar for dollar, to the extent Final Closing Indebtedness is less than the Estimated Closing Indebtedness or decreased, dollar for dollar, to the extent the Final Closing Indebtedness is greater than the Estimated Closing Indebtedness.
(iv) The Adjusted Purchase Consideration will be increased, dollar for dollar, to the extent the Final Company Transaction Expenses are less than the Estimated Company Transaction Expenses, or decreased, dollar for dollar, to the extent the Final Company Transaction Expenses are greater than the Estimated Transaction Expenses.
(c) The adjustments to the Adjusted Purchase Consideration pursuant to clause (b) above may be netted against each other, as applicable, and the Adjusted Purchase Consideration following such adjustments shall be referred to as the “Final Purchase Consideration.”
18
2.7. Payment of Post-Closing Adjustment Amounts.
(a) If the Final Purchase Consideration, as determined in Section 2.6, is less than the Adjusted Purchase Consideration, as determined in Section 2.2 (a “Purchase Consideration Reduction”), then within five (5) Business Days following the Final Determination, (i) if the Escrow Amount exceeds the Purchase Consideration Reduction, Purchaser and Seller shall deliver joint written instructions to the Escrow Agent in accordance with the terms of the Escrow Agreement to (A) release to the Purchaser from the Escrow Account, by wire transfer of immediately available funds to an account designated in writing by the Purchaser to Seller and the Escrow Agent, an amount equal to the Purchase Consideration Reduction, and (B) release to the Seller from the Escrow Account, by wire transfer of immediately available funds to an account designated in writing by the Seller to the Purchaser and the Escrow Agent, the amount by which the Escrow Amount exceeds the Purchase Consideration Reduction, and (ii) if the Purchase Consideration Reduction exceeds the Escrow Amount, (A) Purchaser and Seller shall deliver joint written instructions to the Escrow Agent in accordance with the terms of the Escrow Agreement to release to the Purchaser from the Escrow Account, by wire transfer of immediately available funds to an account designated in writing by the Purchaser to Seller and the Escrow Agent, the Escrow Amount, and (B) Seller shall be obligated to pay to the Purchaser, by wire transfer of immediately available funds to an account designated in writing by the Purchaser, the amount by which the Purchase Consideration Reduction exceeds the Escrow Amount.
(b) If the Final Purchase Consideration, as determined in Section 2.6, exceeds the Adjusted Purchase Consideration, as determined in Section 2.2 (a “Purchase Consideration Increase”), then within five (5) Business Days following the Final Determination, (i) Purchaser shall pay to the Seller the amount of the Purchase Consideration Increase in immediately available funds to the Seller and (ii) Purchaser and Seller shall deliver joint written instructions to the Escrow Agent in accordance with the terms of the Escrow Agreement to release to the Seller the full Escrow Amount in immediately available funds to an account designated in writing by the Seller.
(c) Any payment made with respect to any adjustments made pursuant to this Section 2.7 shall be deemed to be, and Seller and Purchaser shall treat such payments as, an adjustment to the Purchase Consideration for U.S. federal, state, local and foreign income tax purposes.
2.8. Withholding Taxes.
Notwithstanding any other provision in this Agreement, Purchasers (and any of its Affiliates or agents), the Escrow Agent, and the Company shall be entitled to deduct and withhold from any payment pursuant to this Agreement such amounts as are required to be deducted and withheld under any applicable Law. To the extent that amounts are so withheld or deducted and paid over to the applicable Governmental Authority, such withheld or deducted amounts shall be treated for all purposes of this Agreement as having been delivered and paid to Seller or any other recipient of payment in respect of which such deduction and withholding was made.
19
ARTICLE
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Seller Parties jointly and severally represent and warrant to Purchaser that each of the representations and warranties in this ARTICLE 3 is true and correct as of the date hereof:
3.1. Authority. The execution, delivery and performance by the Company of this Agreement and the Transaction Documents to which the Company is a party have been duly authorized by all necessary corporate action of the Company, and the Company has all requisite corporate power and authority to enter into this Agreement and the Transaction Documents to which the Company is a party and to carry out the transactions contemplated herein and therein. This Agreement has been, and the Transaction Documents to which the Company is a party, when executed and delivered in accordance with the terms hereof, will be, validly executed and delivered by the Company and will constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with their terms, except as may be limited by Equitable Remedies.
3.2. Organization. The Company is a limited liability company which is duly organized, validly existing and in good standing under the laws of the State of Georgia. The Company is duly qualified to do business and is in good standing in each jurisdiction where the conduct of the Business or the ownership of the Company’s properties require such qualification. The Company has all requisite limited liability company power and authority to own, lease and operate the Company’s properties and carry on the Business as presently conducted.
3.3. Capitalization.
(a) All of the issued and outstanding Equity Interests are held beneficially and of record by Seller. Except as set forth on Schedule 3.3(a), the Company has any no subsidiaries, nor does the Company own or control, directly or indirectly, or have any direct or indirect equity ownership, participation or similar interest in any Person or joint venture. The Equity Interests have been (i) duly authorized and is validly issued and fully paid and nonassessable, (ii) issued in compliance with the governing documents of the Company, and (iii) issued in compliance with all applicable Laws. There are no outstanding (x) options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, rights of first refusal, preemptive rights, or other Contracts that require the Company to issue, deliver, sell, or otherwise cause to become outstanding any capital stock or other equity interests in the Company, or (y) equity appreciation, phantom equity, profit participation or similar rights with respect to the capital stock or other equity interests in the Company.
(b) Seller has the sole voting power and sole power of disposition with respect to the Equity Interests. The Equity Interests will be transferred to Purchaser pursuant to this Agreement, free and clear of any Liens other than restrictions arising under applicable securities Laws and the terms and conditions of Seller’s organizational documents, as amended.
20
3.4. No Conflicts; Consents and Approvals.
(a) Assuming (i) the payment of the Closing Indebtedness in accordance with Section 2.1(b)(ii), and (ii) the receipt of the consents, approvals and waivers listed on Schedule 3.4(a) (the “Required Consents”, and the foregoing (i) and (ii), collectively, the “Required Actions”), the execution and delivery by the Company of this Agreement and the Transaction Documents to which the Company is a party does not, and the consummation of the transactions contemplated hereby and thereby and the performance by the Company of its obligations hereunder and thereunder will not: (A) violate or conflict with, or result in a breach of, or default under (i) the articles of incorporation or bylaws (or similar governing documents) of the Company, (ii) any Material Contract to which the Company is a party, or (iii) any Law applicable to the Company; or (B) result in the creation of any Lien (other than Permitted Liens) upon any of the properties or assets owned by the Company.
(b) Assuming the completion of the Required Actions, to the Company’s Knowledge, no authorization, consent, permit or approval of, or filing with, any Governmental Authority or any Person is required to be obtained or made by the Company in connection with the execution and delivery of this Agreement or of any of the Transaction Documents to which the Company is a party.
3.5. Real Property.
(a) The Company does not own any real property. The Company leases the following real property as a tenant: (i) that certain parcel owned by 105 PIB Group LLC, a Georgia limited liability company (“PIB”), bearing Parcel Identification Number 7254 062, and located at 105 Peachtree Industrial Boulevard in Sugar Hill, Georgia, and (ii) that certain parcel owned by Perimeter Group Corporation, a Georgia corporation (“Perimeter” and together with PIB, the “Lessors”), bearing Parcel Identification Number 7253 008, and located at 110 Peachtree Industrial Boulevard in Sugar Hill, Georgia (collectively, the “Leased Real Property”). Other than the Leased Real Property, the Company does not lease as a tenant or occupy any other parcel of real property. Correct and complete copies of the leases for each Leased Real Property (each a “Lease” and collectively, the “Leases”) have heretofore been made available to Purchaser.
(b) Other than the Leased Real Property, the Company does not hold any options or other similar rights to purchase or lease any real property and has not agreed to purchase or lease any real property from any Person.
(c) The Company holds a valid usufruct in each Leased Real Property subject only to performance of the terms of each Lease and Permitted Liens, and each Lease for a Leased Real Property is in full force and effect, enforceable in accordance with its terms and conditions (except as may be limited by Equitable Remedies). The Company has not received written notice of any pending or threatened condemnation, eminent domain or similar proceedings, or litigation or other proceedings affecting the Leased Real Property or any improvements thereon.
(d) All of the Leased Real Property is used or occupied by the Company pursuant to a valid Lease free and clear of all Encumbrances, other than Permitted Encumbrances. The Company is the sole legal and equitable owner of its usufruct in each of the Leased Real Property, and is not a lessor or sublessor of, and has not assigned any Lease covering, any item of Leased Real Property. With respect to the Leased Real Property: (i) there is no existing breach or default by any party under any Lease which breach or default has not yet been cured, (ii) the Company has not received written notice of any default under any Lease which default has not yet been cured, and (iii) there does not exist any condition or event that with the lapse of time or the giving of notice, or both, would constitute such a breach or default under any Lease. No Lease is subject to any material defenses, setoffs, or counterclaims, and no material obligations of any landlords or sublandlords thereunder are delinquent.
21
(e) The Leased Real Property constitutes all of the Company’s leasehold interests in real property currently used in connection with the Business and is in good condition and repair, subject to ordinary wear and tear. The Leased Real Property is not subject to any rights of way, building use restrictions, title exceptions, variances, reservations or limitations of any kind or nature, except those that do not materially impair the current use or occupancy of the Leased Real Property. The Leased Real Property complies in all material respects with all requirements of Law, including zoning requirements, and the Company has not received any written notifications from any Governmental Authority of any violations thereof relating to the Leased Real Property. Except pursuant to one or more Leases, the Company is not a party to or bound by any Contract for the lease to or from the Company of any real estate interest. No person (other than the Company) is in possession of, any of the Leased Real Property. Neither the Company nor any Seller Party is a party to any loan or other financing arrangement currently outstanding that is secured by any of the Leased Real Property. There are no third party contracts in effect to which any Seller Party or the Company is a party for the performance of any repairs, work, and/or capital improvements at the Leased Real Property, and, there is currently no ongoing construction work in, on, or about the Leased Real Property other than normal, immaterial maintenance and repairs being performed in the ordinary course of business.
3.6. Title to and Sufficiency of Assets. The Company has good and valid title to, or a valid leasehold interest in, all of the material tangible assets of the Company, free and clear of all Liens. The assets and properties of the Company constitute all of the assets and properties required to operate the Business in all material respects in substantially the manner conducted on the date hereof by the Company. The tangible personal property assets are in good working condition subject to ordinary wear and tear and are sufficient in all material respects for the purposes for which they are used. None of such properties or assets are in need of maintenance or repairs immediately following the Closing Date except for ordinary, routine maintenance and repairs that are not material in nature or cost.
3.7. Intellectual Property; Data Privacy; Company IT Systems.
(a) Set forth on Schedule 3.7(a) is a correct and complete list of all (i) registered Intellectual Property owned by the Company, (ii) pending registrations of Owned Intellectual Property, and (iii) all internet domain names registered to the Company included in the Owned Intellectual Property and (iv) other Intellectual Property owned by the Company that is material to the business as currently conducted (collectively, the “Owned Intellectual Property”).
(b) Set forth on Schedule 3.7(b) is a correct and complete list of all written licenses pursuant to which the Company is a party, either as a licensee or licensor, and any other Contracts under which the Company grants or receives any rights to Intellectual Property that is material to the Business. Schedule 3.7(b) also lists all licenses for Computer Software (excluding Desktop Software) with license or user fees in excess of $25,000 on an annual basis.
22
(c) (i) the Company owns and possesses all right, title and interest in and to the Owned Intellectual Property and has the valid and enforceable right to use all other Intellectual Property used or held for use in or necessary for the conduct of the Business as currently conducted, (ii) the Owned Intellectual Property is valid, subsisting, and in full force or effect, and has not been cancelled, expired or abandoned other than in the Company’s reasonable business judgment, and (iii) the Company has, in the Company’s reasonable business judgment, filed all documents and paid all taxes, fees, and other financial obligations required to renew and maintain in full force and effect all patents or all applicable registrations with respect to such Owned Intellectual Property.
(d) Except as set forth on Schedule 3.7(d):
(i) In the two (2) years immediately prior to the date of this Agreement, (A) the Company has not received any written notice alleging infringement of any Intellectual Property of any third Person related to the conduct of the Business as presently conducted or alleging the misappropriation of any Intellectual Property of any third Person, (B) the Company has not infringed or misappropriated any Intellectual Property of any third Person, and (C) the conduct of the Business as presently conducted by the Company does not infringe upon any Intellectual Property owned or controlled by any third Person;
(ii) (A) to the Company’s Knowledge, in the two (2) years immediately prior to the date of this Agreement, no third Person has infringed or misappropriated any of the Owned Intellectual Property; and (B) no such claims have been brought or threatened against any third Person by the Company;
(iii) the Company owns, or has sufficient license to use, all Computer Software, including Desktop Software, currently being used by the Company; and
(iv) the Company does not own any proprietary Company Software.
(e) The Company maintains commercially reasonable physical, technical, and administrative security measures and policies, compliant with applicable Privacy and Security Requirements, to protect the confidentiality, integrity, security, and availability of (A) the Company’s software, systems, and websites that are involved in the collection and/or processing of Personal Information, and (B) all Personal Information in the Company’s possession or control. The Company has not experienced any failures, crashes, security breaches or incidents, unauthorized access, use, modification, or disclosure, or other adverse events or incidents relating to the Personal Information in its possession or control that would, in each instance, require notification of any Person pursuant to any Privacy and Security Requirement.
(f) Schedule 3.7(f) contains a correct, current, and complete list of all social media accounts used in the Company’s business. The Company has complied in all material respects with all terms of use, terms of service, and other Contracts and all associated policies and guidelines relating to its use of the social media platforms, sites, and services associated with the social media accounts identified in Schedule 3.7(f).
23
(g) All Company IT Systems are in good working condition and are sufficient for the operation of the Company’s business as currently conducted and as proposed to be conducted. In the past three (3) years, there has been no malfunction, failure, continued substandard performance, denial-of-service, or other cyber incident, including any cyberattack, or other impairment of the Company IT Systems that has resulted or is reasonably likely to result in disruption or damage to the business of the Company and that has not been remedied. The Company has taken all commercially reasonable steps to safeguard the confidentiality, availability, security, and integrity of the Company IT Systems, including implementing and maintaining appropriate backup, disaster recovery, and Computer Software and hardware support arrangements.
3.8. Financial Statements.
(a) Attached hereto as Schedule 3.8(a) are copies of the Company’s unaudited balance sheets and statements of income, shareholder’s equity and cash flows for the fiscal years ended December 31, 2022, December 31, 2023 and December 31, 2024 (the “Historical Financial Statements”).
(b) Attached hereto as Schedule 3.8(b) are copies of the Company’s unaudited balance sheet and statements of income as of November 30, 2025 and for the eleven-month period then-ended (the “Interim Financial Statements,” and together with the Historical Financial Statements, the “Financial Statements”).
(c) The Financial Statements have been prepared based on the books of account and related records, and fairly present, in all material respects, the financial condition of the Company as of the referenced dates and the results of operations of the Company for the periods presented, all in accordance with GAAP consistently applied; provided, however, the Interim Financial Statements are subject to normal year-end adjustments (which will not, individually or in the aggregate, be material) and lack footnotes and other presentation items. The Financial Statements have been prepared based on the books and records of the Company (which books and records are in turn accurate, correct and complete in all material respects).
(d) The Company has implemented and maintains a system of internal control over financial reporting sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP consistently applied, including, without limitation, that (i) transactions are executed in accordance with management’s general or specific authorizations, and (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP consistently applied and to maintain asset accountability.
(e) Except for the Company Transaction Expenses, the Company has no other liabilities, except (a) those which are adequately reflected or reserved against in the balance sheet prepared as of the date of the Interim Financial Statements (the “Balance Sheet Date”), and (b) those which have been incurred in the ordinary course of business consistent with past practice since the Balance Sheet Date and which are not, individually or in the aggregate, material in amount.
24
3.9. Absence of Changes. Since December 31, 2024, (a) no occurrence, fact, change, event, or effect has occurred that has had, or would reasonably be expected to have, a Material Adverse Effect on the Company, and (b) except as set forth on Schedule 3.9, the Company has conducted the Business in the Ordinary Course of Business of the Company. Without limiting the generality of the foregoing, since December 31, 2024, except as set forth on Schedule 3.9, the Company has not taken any of the following actions:
(a) sold, leased or otherwise transferred or disposed of any assets, properties or interests of the Company that are material, either individually or in the aggregate, to the Company (other than the disposition in the Ordinary Course of Business of the Company of obsolete assets or other assets not used by the Company during the twelve (12) months preceding the date hereof);
(b) acquired by merging or consolidating with, or by purchasing a substantial portion of the capital stock, equity interests or other equity securities or assets of, directly or indirectly, any business or any corporation, partnership, association or other business organization or division thereof;
(c) made any loan to any third party;
(d) transferred any material assets that are primarily related to the Business to Seller or any of its Affiliates;
(e) established, adopted, materially amended or terminated any Plan, or materially increased the benefits provided under any Plan to any employee (nor has any Affiliate of the Company taken any such action with respect to the employees);
(f) hired, terminated, or materially increased the base salary, wages or bonus opportunity of any employee with an annual base salary of more than $250,000 (nor has any Affiliate of the Company taken any such action with respect to the employees);
(g) terminated or materially adversely modified in any material respect any Material Contract;
(h) made any material change in the accounting methods or policies of the Company;
(i) other than in connection with the Restructuring, amended the organizational documents of the Company in any material respect;
(j) (i) granted, sold, transferred, assigned, abandoned, allowed to lapse, allowed to be dedicated to the public domain, licensed, sublicensed or otherwise disposed of any Intellectual Property owned by the Company (and not licensed from a third party) or (ii) disclosed any Trade Secrets to any third party, other than pursuant to a valid and binding confidentiality agreement entered into by the Company or any of its subsidiaries in the Ordinary Course of Business;
25
(k) made any commitment outside of the ordinary course of business or in excess of $250,000 in the aggregate for capital expenditures to be paid after the Closing or failed to incur capital expenditures in accordance with its capital expense budget;
(l) experienced any theft, damage, destruction or loss (whether or not covered by insurance) to its property or assets;
(m) mortgaged, pledged or subjected to any Lien any of its assets or properties;
(n) issued, created, incurred or assumed any Indebtedness involving more than $250,000;
(o) instituted, settled, canceled, compromised, waived or released any Action, claim or any Indebtedness owed to it;
(p) compromised any right or claim (or series of related rights or claims) either involving more than $150,000 or outside the ordinary course of business;
(q) failed to promptly pay and discharge current liabilities, except where disputed in good faith by appropriate proceedings and for which adequate reserves have been established;
(r) except to the extent set forth in the express terms of one or more Material Contracts, granted any pricing, discount, allowance, or return terms for any customer, subcontractor or supplier; or
(s) agreed to do any of the foregoing.
3.10. Taxes. Except as set forth on Schedule 3.10:
(a) (i) The Company has timely filed all Tax Returns required to be filed by the Company (taking into account applicable extensions), (ii) all such Tax Returns are correct and complete, in all material respects, and (iii) the Company has duly paid all Taxes due and payable in respect of such Tax Returns. Other than as indicated in Schedule 3.10, the Company is not currently the beneficiary of any extension of time within which to file any Tax Return or pay any Taxes.
(b) There are no Liens for Taxes upon the assets of the Company, other than Permitted Liens.
(c) The Company has not been a member of any consolidated, combined or unitary group for federal, state, local or foreign Tax purposes.
(d) The Company is not a party to any joint venture, partnership or other arrangement that is treated as a partnership for federal Income Tax purposes.
(e) The Company has withheld all required amounts of Taxes from its employees, agents, contractors, nonresidents, and other third parties, as applicable, and remitted such amounts to the proper agencies in compliance with the withholding Tax provisions of the Code as in effect for the applicable year and other applicable federal, state, local or foreign Laws.
26
(f) The Company has not executed or filed with any taxing authority (whether federal, state, local or foreign) any agreement or other document extending or having the effect of extending the period for assessment, reassessment or collection of any Taxes. The Company has not waived any statute of limitations in respect of Taxes.
(g) No federal, state, local or foreign Tax audits or other administrative proceedings, discussions or court proceedings are currently in progress or pending with regard to any Taxes or Tax Returns of the Company. No assessment or other deficiency of Tax has been proposed in writing against the Company or any of its assets or properties that has not been fully resolved.
(h) The Company is not a party to or has an obligation under any Tax indemnity agreement, Tax sharing agreement or similar arrangement for the sharing of Tax liabilities or benefits. The Company has never been a member of an affiliated group filing a consolidated, joint, unitary or combined Tax Return. The Company does not have any liability for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee or successor, by contract or otherwise.
(i) No claim has ever been made by any taxing authority in a jurisdiction where the Company does not file Tax Returns that the Company is or may be subject to taxation by, or required to file Tax Returns in, that jurisdiction.
(j) The Company will not be required to include any amounts in income, or exclude any items of deduction, in a taxable period (or portion thereof) beginning after the Closing Date as a result of (i) a change in method of accounting for a taxable period ending on or prior to the Closing Date, including by reason of the application of Section 481 of the Code (or any analogous provision of state, local or foreign Law), (ii) use of the cash method, modified cash method, or modified accrual method or any improper method of accounting for a taxable period ending on or prior to the Closing Date, (iii) any “closing agreement,” as described in Section 7121 of the Code (or any corresponding provision of state, local or foreign Law) entered into on or prior to the Closing Date, (iv) any installment sale or open transaction disposition made in a taxable period ending on or prior to the Closing Date, or (v) the receipt of any prepaid amount received or deferred revenue accrued on or prior to the Closing Date.
(k) [Reserved.]
(l) The Company is not, and has not been, a party to a “reportable transaction” within the meaning of Section 6707A(c)(1) of the Code and Treasury Regulation Section 1.6011-4(b).
(m) No private letter rulings, technical advice memoranda or similar agreements or rulings have been requested, entered into or issued by any taxing authority with respect to the Company. No power of attorney currently in force has been granted by the Company that would be binding on Purchaser with respect to Tax matters for taxable periods including, or beginning after, the Closing Date. The Company has no voluntary disclosure agreements or similar programs pending with any jurisdiction.
27
(n) Within the three-year period ending on the date of this Agreement, the Company has not been a “distributing corporation” or a “controlled corporation” in a transaction intended to be governed in whole or in part by Section 355 or Section 361 of the Code.
(o) The Restructuring has been properly consummated. True, correct, and complete copies of all documents, as executed or filed, relating to the Restructuring have been provided to Purchaser.
(p) The Company: (i) has never held an interest in a “controlled foreign corporation” as defined in Section 957 of the Code, (ii) has never held an interest in a “passive foreign investment company” within the meaning of Section 1297 of the Code and (iii) does not have a permanent establishment (within the meaning of an applicable Tax treaty) or otherwise have an office or fixed place of business in a country other than the country in which it is organized.
(q) For U.S. federal (and applicable state and local) income Tax purposes: (i) from January 1, 2008, until the date of the Q-Sub Election, Oldco was treated as an “S corporation” within the meaning of Section 1361 of the Code, (ii) from the date of the Q-Sub Election until the date of the Conversion, Oldco was treated as a “qualified subchapter S subsidiary” of Seller and (iii) since the date of the Conversion, the Company has been treated, and it is currently treated as of the date hereof, as an entity disregarded as separate from Seller within the meaning of Treasury Regulation Section 301.7701-2(c)(2)(i). The Company is not, or has not been, subject to either the built-in gains Tax under Section 1374 of the Code or the passive income Tax under Section 1375 of the Code or any comparable provision of state Law.
(r) The Company has collected all material sales, use, value-added and similar Taxes required to be collected, and have remitted, or will remit on a timely basis, such amounts to the appropriate tax authorities, or have been furnished properly completed exemption certificates and have maintained all such records and supporting documents in the manner required by all applicable Laws.
(s) The Company is in material compliance with applicable Laws relating to escheat and unclaimed property.
(t) Any reference to Company in this Section 3.10 shall include Oldco and any other predecessor entity (if any).
3.11. Litigation. Except as set forth on Schedule 3.11, there is no demand, claim, suit, audit, investigation, notice of violation or non-compliance, action, arbitration or legal, administrative or other proceeding (each, an “Action”) pending or, to the Company’s Knowledge, threatened against the Company involving any of the Company’s properties or assets which, in each case, if resolved adversely, would reasonably be expected to be material to the Business, taken as a whole. Except as set forth on Schedule 3.11, the Company is not subject to any Order.
28
3.12. Employee Benefits and Related Matters.
(a) Schedule 3.12(a) lists each Plan. The Company has no liability with respect to any plan, arrangement or practice other than the Plans. There has been no amendment to, announcement by the Company relating to any Plan which would increase materially the expense of maintaining such plan above the level of the expense incurred therefor for the most recent fiscal year.
(b) Copies of the following materials have been delivered or made available to Purchaser, to the extent applicable: (i) all current and prior plan documents for each Plan (including any amendments thereto) or, in the case of an unwritten Plan, a written description thereof, (ii) all determination or opinion letters from the IRS with respect to any of the Plans, (iii) all current and prior summary plan descriptions, summaries of material modifications, annual reports, and summary annual reports with respect to any of the Plans, (iv) all current and prior trust agreements, insurance contracts, and other documents relating to the funding or payment of benefits under any Plan, and (v) the most recent annual report and accompanying schedules; (vi) the most recent annual financial statements and actuarial reports; (vii) the most recent written results of all required compliance testing; (vii) copies of any material correspondence with the IRS, Department of Labor or other Governmental Authority, and (viii) any other documents, forms or other instruments relating to any Plan reasonably requested by Purchaser.
(c) Each Plan (and each related trust, insurance contract or fund) has been established, maintained, operated, funded and administered in compliance with its terms and any related documents or agreements and in compliance in all material respects with the applicable requirements of ERISA, the Code and other applicable Laws.
(d) All required reports and descriptions (including Form 5500 Annual Reports, summary annual reports and summary plan descriptions) have been timely filed and distributed in all material respects with respect to each Plan. The requirements of COBRA have been met with respect to each Plan that is a group health plan as described in Section 607(1) of ERISA or Section 5000 (b)(l) of the Code that benefits any current or former employee of the Company or any member of the Controlled Group. No Plan is or at any time was funded through a “welfare benefit fund” as defined in Section 419(e) of the Code, and no benefits under any Plan are or at any time have been provided through a voluntary employees’ beneficiary association (within the meaning of Section 501(c)(9) of the Code) or a supplemental unemployment benefit plan (within the meaning of Section 501(c)(17) of the Code). No Plan provides for post-termination medical life or other welfare benefits, except as may be required by Section 4980B of the Code and Section 601 of ERISA, any other applicable Law or at the sole expense of the participant or beneficiary.
(e) All payments, contributions and transfers (including all employer contributions and employee salary reduction contributions, distributions, reimbursements, premium payments and intercompany charges) that are due in respect of a Plan have been or are fully deductible under the Code. All payments or contributions for any period ending on or before the Closing Date will have been paid or made to each such Plan or accrued by the Company on or before the Closing Date. With respect to any insurance policy providing funding for benefits under any Plan, (i) there is no liability of the Company, in the nature of a retroactive rate adjustment, loss sharing arrangement, or other actual or contingent liability, nor would there be any such liability if such insurance policy was terminated on the date hereof, and (ii) no insurance company issuing any such policy is in receivership, conservatorship, liquidation or similar proceeding.
29
(f) No Plan is, and neither the Company nor any member of the Controlled Group, has ever sponsored, established, maintained, contributed to or been required to contribute to, or in any way has any liability (whether on account of an ERISA Affiliate or otherwise), directly or indirectly, with respect to any plan that is, subject to Title IV of ERISA or Section 302 of ERISA or Section 412, 430 or 4971 of the Code or a “defined benefit” plan within the meaning of Section 414(j) of the Code or Section 3(35) of ERISA (whether or not subject thereto).
(g) Except for the Class A Transaction Bonus Grants, the execution and delivery of the Transaction Documents and the performance of the Transactions will not (either alone or in combination with another event): (i) constitute a triggering event under any Plan that will result in any payment (whether severance pay or otherwise) to, forgiveness of indebtedness of, or acceleration, vesting or increase in the compensation or any benefits to any employee, former employee, consultant, director or manager of the Company (or dependents of such Persons), (ii) result in an obligation to fund or otherwise set aside assets to secure to any extent any of the obligations under any Plan.
(h) No payment or benefit that could be received (whether in cash or property or the vesting of property) by a “disqualified individual” (as such term is defined in Treasury Regulation Section 1.280G-1) could, individually or in combination with any other such payment, be characterized as an “excess parachute payment” (as such term is defined in Section 280G(b)(1) of the Code). No Person is entitled to receive any additional payment (including any Tax gross-up or other payment) from the Company as a result of the imposition of the excise Taxes required by Section 4999 of the Code.
(i) There has been no “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) with respect to any Plan. No “fiduciary” (as defined in Section 3(21) of ERISA) has any liability for breach of fiduciary duty or any other failure to act or comply in connection with the administration or investment of the assets of any Plan. No action, claim, lawsuit or other proceeding against or relating to the Plans, including with respect to the administration or the investment of the assets of any Plan (other than routine claims for benefits) is pending or threatened, nor, to the Company’s Knowledge, is there any basis for one. No Plan is presently under audit or examination (nor has written notice been received of a potential audit or examination) by any Governmental Authority.
(j) No Plan is, and neither the Company nor any member of the Controlled Group, has ever sponsored, established, maintained, contributed to or been, required to contribute to, or in any way has any liability (whether on account of an ERISA Affiliate or otherwise), directly or indirectly, with respect to any Multiemployer Plan or “multiple employer plan” within the meaning of Section 210(a) of the Code or Section 413(c) of the Code, or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA).
30
(k) All Plans subject to Section 409A of the Code comply in both form and operation with Section 409A of the Code and the rules and regulations thereunder, and no amount that is payable (whether in cash or property or the vesting of property) as a result of the Transactions will be includible in the gross income of any employee, officer or director of the Company as a result of the operation of Section 409A of the Code and the rules and regulations thereunder. The Company does not have any obligation to any Person to cause any Plan subject to Section 409A of the Code to comply with Section 409A of the Code or to provide any “gross up” or similar payment to any Person in the event any such Plan fails to comply with Section 409A of the Code.
(l) Schedule 3.12(l) sets forth each Plan that (i) provides a benefit package that meets the definition of “grandfathered health plan coverage” as set forth in 26 CFR § 54.9815-1251T and has not been amended on or after March 23, 2010 (other than as required under the Patient Protection and Affordable Care Act, as amended (“PPACA”)) or (ii) meets the requirements of the retiree-only plan exception set forth in Section 732(a) of ERISA and Section 9831(a) of the Code.
(m) Each Plan subject to PPACA in which current or former employees of the Company participate complies with, and is administered in accordance with, the requirements of PPACA.
(n) No Plan covers any Company employees working outside of the United States.
(o) Each Plan intended to qualify under Section 401(a) of the Code is and has since adoption been so qualified, and has a current determination or opinion letter from the IRS regarding such qualification upon which the Company can rely. Nothing has occurred with respect to the operation of any such Plan which could reasonably be expected to cause the loss of such qualification or the imposition of any material liability, penalty or Tax.
3.13. Material Contracts.
(a) Schedule 3.13(a) sets forth a correct and complete list of the following Contracts to which the Company is a party (each a “Material Contract”):
(i) any Contract which involves payment to or from the Company in excess of $250,000 during any twelve (12) month period;
(ii) any Contract which is not terminable, without penalty, on notice of ninety (90) days or less (but excluding any purchase orders, invoices, rate sheets, price lists, terms and conditions, or sales quotes entered into in the Ordinary Course of Business);
(iii) any Contract entered into in the two (2) year period immediately prior to the date of this Agreement relating to the acquisition by the Company of any assets of any other Person or any operating business or the capital stock of any other Person;
31
(iv) any Contract relating to any Indebtedness, guarantee, loan, advance (other than travel and entertainment allowances to the employees of the Company extended in the Ordinary Course of Business), or investment in any Person;
(v) any Contract granting or evidencing a Lien on any properties or assets of the Company, other than a Permitted Lien;
(vi) any leases, rental agreements, licenses, installment and conditional sale agreements, and other contracts or arrangements affecting the ownership of, leasing of, title to, use of, or any leasehold or other interest in, any real or personal property and involving aggregate payments in excess of $100,000 in any twelve (12) month period;
(vii) any written employment or severance agreements to which the Company is a party with respect to any employee or former employee of the Company which may not be terminated at will, or by giving notice of thirty (30) days or less, without cost or penalty, or involve aggregate payments in excess of $100,000 in any twelve (12) month period;
(viii) any Contract (other than this Agreement or any agreement or instrument entered into pursuant to this Agreement) between the Company, on the one hand, and (x) any Affiliate of the Company or (y) any officer, director or employee of the Company, on the other hand;
(ix) any Contract entered into in the two (2) year period immediately prior to the date of this Agreement involving any resolution or settlement of any actual or threatened Action involving an amount in in excess of $100,000;
(x) any joint venture, partnership or limited liability company agreements or other agreements (however named) involving a sharing of profits, losses, costs or liabilities, joint development or similar arrangement with any other Person;
(xi) Contracts containing covenants of the Company not to compete in any line of business or with any Person in any geographical area or covenants of any other Person not to compete with the Company in any line of business or in any geographical area;
(xii) excluding Desktop Software, any Contract containing a grant by the Company to a third Person of any rights to any Intellectual Property of the Company or any grant to the Company of any rights to any Intellectual Property of any third Person;
(xiii) any Contract which (A) purports to or actually restricts the Company from soliciting or hiring any person as an employee or consultant, (B) purports to or actually requires the Company to engage in an exclusive relationship with such person or (C) contains any “most favored nations” provision;
(xiv) any Contract involving the settlement of any Action against or involving the Company, pursuant to which the Company is subject to continuing payment obligations or material performance obligations or restrictions (other than confidentiality obligations or restrictions);
32
(xv) each Contract pursuant to which (A) the Company acquired any equity interests in or material asset of any other person or entity (other than the acquisition of supplies in the Ordinary Course of Business) or (B) the Company disposed of, sold or transferred any equity interests in or material assets of any other person or entity (other than the sale of goods and services in the Ordinary Course of Business);
(xvi) each Contract with (A) a service provider to the Company, and (B) Material Customer or Material Supplier;
(xvii) Contracts involving a dealer, franchise, distributor, sales representative, consultant or broker arrangement;
(xviii) each collective bargaining or similar labor agreement;
(xix) any Contracts with (A) customers or (b) Material Suppliers that expressly contain uncapped liability or uncapped indemnification obligations; and
(xx) any other agreement material to the Company, whether or not entered into in the Ordinary Course of Business.
(b) True and complete copies of each Material Contract, including amendments thereto, have been made available to Purchaser. Except as set forth on Schedule 3.13(b), the Company has not received any written claim of breach of any Material Contract that would reasonably be expected to constitute a material default thereunder by the Company. Each of the Material Contracts is in full force and effect and is a valid and binding obligation of and is enforceable by the Company in accordance with its terms, except as may be limited by Equitable Remedies. The Company is not in or, to the Company’s Knowledge, alleged by any counterparty thereto to be in, material breach or material default under any of the Material Contracts. No event has occurred which, with notice or lapse of time, or both, would constitute such a material default or violation of any Material Contract. To the Company’s Knowledge, the Company has not relinquished any of its rights under any Material Contract.
3.14. Insurance. Set forth on Schedule 3.14(a) is a correct and complete list of all insurance policies currently maintained by the Company. All such policies are in full force and effect and the Company is not in material default, whether as to the payment of premium or otherwise, under the terms of such policies. Except as set forth on Schedule 3.14(b), there are no outstanding claims pending under any of such insurance policies. There are no pending material claims under any such policy as to which the respective insurers have denied coverage. In the last three (3) years, there have been no material claims related to the Business under any such policies.
3.15. Employees.
(a) Schedule 3.15(a) sets forth as of February 6, 2026, a complete and correct list of each individual then employed by the Company, and for each: (i) name, (ii) current position or job title, (iii) primary work location, (iv) current base annual salary or hourly wage (as the case may be), (v) bonus/commission and total compensation paid by the Company for each of 2024 and 2025, (vi) most recent hire date, (vii) current treatment by the Company as exempt or non-exempt under applicable wage and hour laws, (viii) if currently on a leave of absence from active employment, the anticipated date of return (if known), (ix) employment status (i.e., whether full-time, temporary, leased, etc.), (x) active or inactive status (including type of leave, if any), and (xi) current amount of accrued but unused vacation.
33
(b) Schedule 3.15(b) sets forth as of February 6, 2026, a complete and correct list of each individual then engaged by the Company to perform personal services as a non-employee independent contractor, and for each: (i) name, (ii) nature of services provided, (iii) date of engagement, (iv) summary of payment arrangements, (v) total compensation paid by the Company for each of 2024 and 2025.
(c) Schedule 3.15(c) identifies any current employee of the Company with a contractually defined term of employment or whose employment cannot be terminated immediately without notice or cause and without further liability to the Company; and all other employees of the Company are employees at-will with no defined term of employment.
(d) Except as set forth on Schedule 3.15(d), (i) the Company is currently in compliance in all material respects with all labor and employment Laws applicable to the Company, including without limitation those relating to wages, hours, workplace safety, immigration, and equal employment opportunity, employment discrimination, civil rights, pay equity, employment of foreign citizens, worker classification, and the collection and payment of withholding and/or social security Taxes, (ii) the Company is not a party to any collective bargaining agreement having provisions covering any of the Company’s employees, and the Company is not currently negotiating such an agreement, (iii) no complaint is currently pending or threatened against the Company before the National Labor Relations Board, the Equal Employment Opportunity Commission, or any similar state or local agency alleging a violation by the Company of any labor or employment Law, and (iv) there are currently no labor strikes, requests for representation, slowdowns, or work stoppages pending or threatened against the Company by any of the Company’s employees.
(e) There are no claims currently pending or threatened against the Company by any current or former employee of the Company with respect to his or her employment with the Company (other than routine claims for benefits).
(f) All current employees of the Company who work in the United States of America are legally authorized to work in the United States of America. The Company has completed and retained the necessary employment verification paperwork under the Immigration Reform and Control Act of 1986 for all current employees of the Company. The Company is in compliance with both the employment verification provisions (including the paperwork and documentation requirements) and the anti-discrimination provisions of Immigration Reform and Control Act of 1986 for all current employees of the Company.
(g) The Company has not engaged in layoffs or employment terminations sufficient in number to trigger application of the notice provisions of the federal Worker Adjustment and Retraining Notification Act (“WARN”) or any similar foreign, state or local Law (including, but not limited to, any state WARN acts) applicable to the Company.
34
(h) The Company is not liable for any payment to any trust or other fund or to any Governmental Authority, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the ordinary course of business). Except as set forth in Schedule 3.15(h), there are no pending claims against the Company under any workers compensation plan or policy or for long term disability.
(i) To the Company’s Knowledge and except as set forth on Schedule 3.15(i), no current employee of the Company is in violation of any term of any employment agreement, non disclosure agreement, common law non-disclosure obligation, fiduciary duty, non competition agreement or restrictive covenant to or with a former employer of such employee.
(j) True and complete copies have been made available to Purchaser of the material written personnel manuals, handbooks, policies, rules or procedures applicable to any employee of the Company.
(k) All individuals who perform services for the Company have been classified correctly, in accordance with the terms of each Plan and ERISA, the Code, the Fair Labor Standards Act of 1938, as amended, and all other applicable Laws, as employees, independent contractors or leased employees, and the Company has not received notice to the contrary from any third person or Governmental Authority.
(l) During the past five (5) years, with respect to incidents of alleged or actual unlawful workplace harassment, retaliation or discrimination involving the Company or any present or former employees, directors, officers, shareholders, consultants or independent contractors of the Company (acting in their capacities as such for the Company), (i) to the Company’s Knowledge, no such incidents have actually occurred, (ii) no Proceedings pertaining to such incidents are pending, have been initiated or, to the Company’s Knowledge, are threatened against the Company, and (iii) the Company is not subject to any Order or settlement agreement in respect of any such incidents.
3.16. Environmental Matters.
(a) The Company has made available to Purchaser (i) all environmental assessments currently in the possession of the Company (including Phase I reports) and (ii) all material records and correspondence currently in the possession of the Company relating to Environmental Matters, Environmental Permits or compliance with Environmental Law, in each case with respect to the Leased Real Property.
(b) There is no Environmental Claim pending against the Company, and the Company has not received (i) any written notice of a threatened Environmental Claim against the Company under any Environmental Law, or (ii) any written notice that the Company could be responsible for a federal, provincial, municipal or local cleanup site or corrective action under any Environmental Law. There are no past or present actions, activities, circumstances, conditions, events or incidents taken by or affecting the Company or, to the Company’s Knowledge, any other person or entity, including the Release, threatened Release or presence of any Hazardous Substances, in each case which would reasonably be expected to form the basis of any material Environmental Claim against the Company.
35
(c) The Company is currently in compliance, and during the five (5)-year period immediately prior to the date of this Agreement the Company has complied, in all material respects with all Environmental Laws.
(d) The Company has obtained, and is in material compliance with, all Environmental Permits required for the operation of the Business. No additional Environmental Permits or other governmental authorizations or notifications under Environmental Laws will be required to permit Purchaser to conduct the Business of the Company immediately following the Closing as conducted on the date hereof in material compliance with Environmental Laws and Environmental Permits.
(e) No Hazardous Substances or other waste have been or are being generated, manufactured, used, processed, treated, stored, Released, distributed, transported or disposed of by or on behalf of the Company on, beneath or adjacent to the Leased Real Property or, to the Company’s Knowledge, at any other location currently or formerly owned, operated or leased by the Company (including any property used for the treatment, storage, disposal or Release of Hazardous Materials or other waste) except in compliance in all material respects with applicable Environmental Laws.
(f) (i) There are no underground storage tanks located at, on, in or under the Leased Real Property or, to the Company’s Knowledge, at any other location currently or formerly owned, operated or leased by the Company, (ii) there is no asbestos contained in or forming part of the Leased Real Property or, to the Company’s Knowledge, at any other location currently or formerly owned, operated or leased by the Company, and (iii) there are no polychlorinated biphenyls (PCBs) or per- or polyfluoroalkyl substances (PFAS) are or have been used or stored at, or contained in the Leased Real Property or, to the Company’s Knowledge, at any other location currently or formerly owned, operated or leased by the Company, which in each case would reasonably be expected to result in a material violation by the Company or material liability to the Company under Environmental Laws.
(g) The Company has not expressly (i) assumed or undertaken any liability, (ii) agreed to indemnify or (iii) become subject to any liability, including any obligation for corrective or remedial action, of any other Person relating to or arising from any Environmental Law.
(h) The operations of the Company have not given rise to exposure of employees or any other person to a Release of Hazardous Substances in excess of any applicable limits or standards under Environmental Laws.
3.17. Compliance with Laws; Unlawful Payments; Permits.
(a) Except as set forth on Schedule 3.17(a), the Company is currently in compliance, and, other than with respect to matters addressed in Section 3.15, during the five (5) year period immediately prior to the date of this Agreement the Company has complied, in all material respects with all applicable Laws.
36
(b) Except as set forth on Schedule 3.17(b), the Company is in possession of all permits, licenses, registrations, exemptions and government authorizations (“Permits”) required under applicable Law for the current operation of the Business as conducted by the Company or as necessary for the lawful ownership of the Company’s properties and assets. The Company is in compliance in all material respects with the requirements and limitations of such Permits. The operation of the Business as currently conducted is not, and has not been in material violation of, nor is the Company currently in default under, any Permit and, to the Knowledge of Seller, no event has occurred which would constitute a default or violation of any material term, condition or provision of any Permit.
3.18. Customers and Suppliers.
(a) Schedule 3.18(a) sets forth the ten (10) largest customers (as measured by revenues) of the Company for the fiscal years ended December 31, 2023 and December 31, 2024 (each, a “Material Customer”) and sets forth opposite the name of each such Material Customer the approximate dollar value of revenues attributable to such Material Customer for each such period. Except as set forth on Schedule 3.18(a), all Material Customers continue to be customers of the Company and since December 31, 2024, (i) none of such Material Customers have reduced materially its business with the Company, and to the Company’s Knowledge, no such reduction is intended by such Material Customers, (ii) no Material Customer has terminated its relationship with the Company outside of the ordinary course of business or has threatened in writing or, to the Company’s Knowledge, orally to do so, (iii) to the Company’s Knowledge, the prices paid to the Company by the Material Customers for any product or service have not materially decreased, individually or in the aggregate, (iv) no Material Customer has changed its payment terms or any other material terms with respect to the Company or threatened in writing or, to the Company’s Knowledge, orally to do so, and, to the Company’s Knowledge, there are no events, conditions or circumstances in existence that could reasonably be anticipated to result in any such changes, and (v) the Company is not subject to any claim, dispute or controversy with any of the Material Customers that, individually or in the aggregate, could reasonably be anticipated to materially or adversely affect the Business or the financial condition or results of operations of the Company.
(b) Schedule 3.18(b) sets forth the ten (10) largest suppliers (as measured by volume of purchases) of the Company for the fiscal years ended December 31, 2023 and December 31, 2024 (each, a “Material Supplier”) and sets forth opposite the name of each such Material Supplier the approximate dollar value of purchases attributable to such Material Supplier for each such period. Except as set forth on Schedule 3.18(b), all Material Suppliers continue to be suppliers of the Company and since December 31, 2024, (i) none of such Material Suppliers have reduced materially its business with the Company, (ii) no Material Supplier has terminated its relationship with the Company outside of the ordinary course of business or has threatened in writing or, to the Company’s Knowledge, orally to do so, (iii) no Material Supplier has materially increased its prices or changed its payment or other material terms with respect to the Company or threatened in writing or, to the Company’s Knowledge, orally to do so, and to the Company’s Knowledge, other than price increases directly attributable to the imposition of tariffs on a Material Supplier’s good or services, no such change will occur, and (iv) to the Company’s Knowledge, the Company is not subject to any claim, dispute or controversy with any of the Material Suppliers that, individually or in the aggregate, could reasonably be anticipated to materially or adversely affect the Business or the financial condition or results of operations of the Company. No Material Supplier to the Company represents a sole source of supply for goods and services used in the conduct of the Business.
37
3.19. Related Party Transactions. Except as set forth on Schedule 3.19, no Related Party: (a) has a direct or indirect interest in or is a party to any Material Contract with the Company, except as a shareholder of the Company or for compensation for services rendered as an officer, employee, or director of the Company; or (b) has any claim, express or implied, against or is indebted in any amount to, or is owed any amount by, the Company which would adversely affect the transactions contemplated by this Agreement.
3.20. Certain Payments. Neither the Company nor its officers, directors, employees, representatives or other Persons acting for or on behalf of the Company have directly or indirectly (a) made any contribution, bribe, payoff, influence payment, kickback, or other similar payment to any Person, private or public, regardless of form, whether in money, property, or services, (i) to obtain favorable treatment in securing business, (ii) to pay for favorable treatment for business secured, (iii) to obtain special concessions or for special concessions already obtained or (iv) in violation of any applicable Law, except for, with respect to the preceding items (i), (ii) and (iii), such payments or reimbursements for meals, travel expenses or reasonable entertainment expenses not in violation of any applicable Law, (b) accepted or received any unlawful contributions, payments, expenditures or gifts, and no Action has been filed, commenced or threatened or anticipated alleging any such payments, or (c) violated any provision of the Foreign Corrupt Practices Act of 1977, as amended, the International Anti-Bribery and Fair Competition Act of 1998, as amended, or similar Law.
3.21. Brokers and Finders. Except for VRA Partners, LLC (“VRA”), the fees and expenses of which shall be included in the Company Transaction Expenses as provided in Section 2.1(b)(iii), no broker or investment banker acting on behalf or under the authority of the Company or Seller is or will be entitled to any broker’s or finder’s fee or any other commission or similar fee from the Company in connection with any of the transactions contemplated herein.
3.22. [Reserved].
3.23. Accounts Receivable. The accounts and notes receivable of the Company represent bona fide claims, arms-length transactions, against debtors for sales, services performed or other charges arising in the ordinary course of business and are good and, to the Company’s Knowledge, collectible in the ordinary course of business at the aggregate recorded amounts thereof, net of any applicable allowance for doubtful accounts reflected in the Financial Statements which allowance is determined on a basis consistent with GAAP. There are no disputes, set-offs, defenses, adjustments or counterclaims, other than normal cash discounts accrued in the ordinary course of business and consistent with past practice, pending or, to the Company’s Knowledge, threatened. All of the accounts and notes receivable of the Company relate solely to sales of goods or services to customers of the Company, none of whom are any of the Seller Parties or Affiliates of the Company or any of the Seller Parties.
38
3.24. Warranty Claims; Products.
(a) Since January 1, 2023, except as set forth on Schedule 3.24, there have been no claims against the Company alleging any material defects in the Company’s products or services, or alleging any failure of the products or services of the Company to meet in any material respects applicable specifications, warranties or contractual commitments. During the last three (3) years, none of the products sold by the Company have been the subject of a product recall, withdrawal, suspension or other similar action from the market. The Company has no material liability for replacement or repair of any of their products or other material damages in connection therewith or any other customer or product obligations not reserved against in the Latest Balance Sheet. The Company’s products and services are free from material defects and perform in all material respects in accordance with all product specifications, express and implied warranties, contractual commitments and applicable Law, except where the failure of such conditions would not result in a material liability to the Company. Schedule 3.24 sets forth the terms of the Company’s standard warranty offered with respect to the Company’s provision of services, including with respect to any maintenance or installation services.
(b) The Company has no material liability, whether based on strict liability, negligence, breach of contract or otherwise, with respect to any product, component or other item designed, manufactured, assembled, produced or sold by the Company to others.
3.25. Indebtedness and Transaction Expenses. The Company has delivered to Purchaser a true, correct and complete list (indicating the amount and the Person to whom such amount is owed) of: (a) all of the outstanding Indebtedness of the Company; and (b) the Company Transaction Expenses.
3.26. No Other Representations or Warranties. NONE OF THE COMPANY, SELLER PARTIES, OR ANY OF THEIR RESPECTIVE AFFILIATES OR REPRESENTATIVES HAS MADE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY NATURE WHATSOEVER RELATING TO THE COMPANY, THE BUSINESS OF THE COMPANY, THE PURCHASED EQUITY, OR OTHERWISE IN CONNECTION WITH THE TRANSACTIONS OCCURRING PURSUANT TO THIS AGREEMENT OR THE TRANSACTION DOCUMENTS, OTHER THAN THOSE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS ARTICLE 3 AND IN ARTICLE 4. Without limiting the generality of the foregoing, except for the representations and warranties set forth in this ARTICLE 3 and ARTICLE 4 of this Agreement, none of the Company, Seller, or any other Person makes any representation or warranty, express or implied, as to: (a) the condition, merchantability, suitability, or fitness for a particular purpose of any of the assets of the Company or (b) the accuracy or completeness of any projections, budgets, forecasts, or other forward-looking financial information concerning the future revenue, income, profit, or other financial results of the Company. Any and all statements or information communicated by the Company, Seller, any of their respective Affiliates or representatives, or any other Person outside of this Agreement, including the documents provided in response to the Purchaser’s due diligence requests, whether verbally or in writing, are deemed to have been superseded by this Agreement. Notwithstanding anything to the contrary herein, the foregoing shall not limit, in any way, and nothing in this Agreement shall be deemed to be a waiver of, any claim for Fraud.
39
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF SELLER PARTIES
The Seller Parties jointly and severally represent and warrant to Purchaser that each of the representations and warranties in this ARTICLE 4 is true and correct as of the date hereof:
4.1. Authority.
(a) The Seller has all requisite limited liability company power and authority to own and hold the Equity Interests in the Company and to enter into this Agreement and the Transaction Documents to which the Seller is a party and to carry out the transactions contemplated herein and therein.
(b) Each of Seller Owners has all requisite legal capacity to enter into this Agreement and the Transaction Documents to which he is a party and to carry out the transactions contemplated herein and therein.
(c) The execution, delivery and performance by each of the Seller Parties of this Agreement and the Transaction Documents to which he or it is a party, and the consummation by him or it of the transactions contemplated hereby (including the sale, contribution, assignment and delivery of Equity Interests pursuant to this Agreement) and thereby have been duly and validly authorized on the part of each Seller Party. This Agreement constitutes, and the Transaction Documents to which a Seller Party is a party, when delivered in accordance with the terms hereof, will constitute, the legal, valid and binding obligation of the Seller Party, enforceable against him or it in accordance with their respective terms, except as may be limited by Equitable Remedies.
4.2. Ownership. The Seller owns free and clear of all Liens (other than restrictions arising under applicable securities Laws) and is the beneficial and record holder of all of the Equity Interests. Upon delivery to Purchaser of the membership interest contribution and assignment and other assignment instruments, representing the contribution of the Rollover Equity to Purchaser and the purchase of the Purchased Equity by and payment by Purchaser of the Adjusted Purchase Consideration at the Closing, as provided in this Agreement, the Seller will convey to Purchaser good and valid title to the Rollover Equity and the Purchased Equity, free and clear of all Liens, other than restrictions arising under applicable securities Laws.
4.3. Organization. The Seller is a Georgia limited liability company which is duly organized, validly existing and in good standing under the laws of the State of Georgia. The Seller is duly qualified to do business and is in good standing in each jurisdiction where the conduct of the Seller’s business or the ownership of the Seller’s properties require such qualification.
4.4. No Conflicts; Consents and Approvals. Assuming the completion of the Required Actions, the execution and delivery by each Seller Party of this Agreement and the Transaction Documents to which the Seller Party is a party, do not, and the consummation of the transactions contemplated hereby and thereby and performance by him or it of his or its obligations hereunder and thereunder, will not: (a) violate or conflict with, or result in a breach of, or default under (i) the articles of organization or any other organizational document of the Seller, (ii) any material Contract to which the Seller Party is a party, or (iii) any Law applicable to the Seller Party, or (b) result in the creation of any Lien upon any of the Equity Interests. Assuming the completion of the Required Actions, no authorization, consent, or approval of, or filing with, any Governmental Authority or other third Person is required to be obtained or made by a Seller Party in connection with his or its execution and delivery of, or performance by the Seller Party of his or its obligations under, this Agreement or the Transaction Documents to which he or it is a party.
40
4.5. Brokers and Finders. Except for VRA, which is engaged by the Company and whose fees and expenses will be included in the Company Transaction Expenses as provided in Section 2.1(b)(iii), no broker or investment banker has been engaged by any Seller Party, and no broker or investment banker will be entitled to any broker’s or finder’s fee or any other commission or similar fee directly or indirectly from any Seller Party in connection with any of the transactions contemplated herein.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF PURCHASER PARTIES
The Purchaser Parties, jointly and severally, represent and warrant to Seller Parties and the Company that each of the representations and warranties in this ARTICLE 5 is true and correct as of the date hereof:
5.1. Authority of Purchaser. PubCo is a Delaware corporation which is duly incorporated, validly existing and in good standing under the laws of its jurisdiction of incorporation, with all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. Purchaser is a limited liability company which is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, with all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. Each of PubCo and Purchaser has all requisite corporate power and authority to enter into this Agreement and the Transaction Documents to which it is a party and to carry out its obligations under this Agreement and the Transaction Documents to which it is a party. The execution, delivery and performance by PubCo and Purchaser of this Agreement and the Transaction Documents to which PubCo or Purchaser is a party have been duly authorized by all necessary entity action of PubCo and Purchaser, as applicable. This Agreement has been, and the Transaction Documents to which PubCo or Purchaser is a party, when executed and delivered by PubCo or Purchaser in accordance with the terms hereof, will be, duly and validly executed and delivered by PubCo or Purchaser, as the case maybe, and constitute or will constitute, as applicable, the legal, valid and binding obligation of PubCo or Purchaser, as applicable, enforceable against PubCo or Purchaser, as applicable, in accordance with their terms, except as may be limited by Equitable Remedies.
5.2. Capitalization. Schedule 5.2 sets forth a list of the authorized, issued and outstanding capital stock (or other equity interests) of PubCo and Purchaser. Except as set forth in Schedule 5.2, neither PubCo nor Purchaser has any subsidiaries, nor does PubCo or Purchaser own or control, directly or indirectly, or have any direct or indirect equity ownership, participation or similar interest in any Person or joint venture. The issued and outstanding capital stock or other equity interests of the PubCo and Purchaser has been (i) duly authorized and is validly issued and fully paid and non-assessable, (ii) issued in compliance with the governing documents of the PubCo and Purchaser, as applicable, and (iii) issued in compliance with all applicable Laws. Except as set forth in Schedule 5.2, there are no outstanding (x) options, warrants, purchase rights, subscription rights, conversion rights, exchange rights, rights of first refusal, preemptive rights, or other Contracts that require PubCo or Purchaser to issue, deliver, sell, or otherwise cause to become outstanding any capital stock or other equity interests in PubCo or Purchaser, or (y) equity appreciation, phantom equity, profit participation or similar rights with respect to the capital stock or other equity interests in PubCo or Purchaser. All shares or other equity interests of PubCo and Purchaser to be issued pursuant to this Agreement and the other Transaction Documents have been validly authorize and, when issued pursuant to this Agreement and the other Transaction Documents, as applicable, will be validly and legally issued, fully paid and non-accessible, and will be, at the time of their delivery, free and clear of all Liens and any preemptive or similar rights.
41
5.3. Consents and Approvals. The execution and delivery by PubCo and Purchaser of this Agreement and the Transaction Documents to which PubCo or Purchaser is a party, do not, and the consummation of the transactions contemplated hereby and thereby and the performance by PubCo or Purchaser of its obligations hereunder and thereunder, will not: violate or conflict with, or result in a breach of, or default under (a) the articles of incorporation or organization, bylaws, operating agreement, stockholders agreement or analogous organizational documents of PubCo or Purchaser, (b) any material Contract to which PubCo or Purchaser is a party, or (c) any Law applicable to PubCo or Purchaser. Except as set forth on Schedule 5.3, no authorization, consent, or approval of, or filing with, any Governmental Authority or other third Person is required to be obtained or made by PubCo or Purchaser in connection with the execution and delivery of, or performance by PubCo or Purchaser of their obligations under, this Agreement or the Transaction Documents to which PubCo or Purchaser is a party.
5.4. Brokers and Finders. No broker or investment banker acting on behalf of PubCo or Purchaser is or will be entitled to any broker’s or finder’s fee or any other commission or similar fee directly or indirectly in connection with any of the transactions contemplated hereby.
5.5. Securities Law Matters. Purchaser hereby acknowledges that the Equity Interests are not registered under the Securities Act or registered or qualified for sale under any applicable securities Laws of the United States or any state of the United States or any other country and cannot be resold without registration thereunder or exemption therefrom. Purchaser is acquiring the Equity Interests for its own account as principal, for investment purposes and has no present intention to dispose of the Equity Interests, in whole or in part, or of any interest in the Equity Interests to any other Person whether by public distribution or otherwise; provided, however, that the disposition of Purchaser’s property shall at all times remain within the sole control of Purchaser. Purchaser has sufficient knowledge and experience in financial and business matters to enable it to evaluate the risks of investment in the Equity Interests and has the ability to bear the economic risks of such investment.
5.6. Orders; Actions. There are no (a) outstanding or, to the Purchaser’s Knowledge, threatened Orders against PubCo, Purchaser or any of their Affiliates, which have or could have a material adverse effect on the authority or ability of PubCo or Purchaser to consummate the transactions contemplated hereby or (b) Actions pending or, to the Purchaser’s Knowledge, threatened against PubCo or Purchaser or any of their Affiliates, which have or could have a material adverse effect on the authority or ability of PubCo or Purchaser to consummate the transactions contemplated hereby. Purchaser has no knowledge of any valid basis for any such Order or Action.
42
5.7. Financial Ability. Purchaser has sufficient resources available for Purchaser to consummate the transactions contemplated by this Agreement, including (a) paying the Adjusted Purchase Consideration and any adjustments made thereto owing by Purchaser, (b) paying all out-of-pocket expenses incurred by Purchaser in connection with the transactions contemplated by this Agreement and (c) satisfying all other obligations under this Agreement and the other Transaction Documents. Purchaser has not incurred any obligation, commitment, restriction or liability of any kind, and is not contemplating or aware of any obligation, commitment, restriction or liability of any kind, in either case, which would reasonably be expected to impair or adversely affect such resources.
5.8. Solvency. After giving effect to the transactions contemplated by this Agreement, assuming that the accuracy of representations and warranties of Seller Parties in ARTICLES 3 and 4, Purchaser will be able to pay its debts as such debts become due and will own property having a value both at fair market valuation and at fair saleable value in the Ordinary Course of Business of Purchaser greater than the amount required to pay any indebtedness and other obligations as the same mature and become due.
5.9. Independent Investigation; Acknowledgement. Purchaser has conducted its own independent review and analysis of the Company and the Company’s businesses, assets, financial condition, liabilities, operations and prospects. In making the decision to enter into this Agreement and to consummate the transactions contemplated hereby, other than reliance on the representations, warranties, covenants and obligations of the Company and Seller Parties expressly set forth in this Agreement, Purchaser has relied solely on its own independent investigation, analysis and evaluation of the Company and each of the Company’s businesses, assets, financial condition, liabilities, operations and prospects. Purchaser (a) acknowledges that, other than as set forth in ARTICLE 3 and ARTICLE 4 of this Agreement, neither the Company nor Seller Parties nor any of their respective shareholders, directors, managers, members, officers, employees, Affiliates, agents or representatives, as the case may be, make or have made any representation or warranty, either express or implied, including, without limitation, any representation or warranty with respect to any projections, forecasts, estimates, plans or budgets of future revenues, expenses or expenditures, future results of operations (or any component thereof), future cash flows (or any component thereof) or future financial condition (or any component thereof) of the Company, whether contained in a Confidential Information Memorandum, data room or otherwise, and (b) agrees, to the fullest extent permitted by Law, except as expressly provided in this Agreement, that none of the Company, Seller Parties, nor any of their respective shareholders, directors, managers, officers, employees, Affiliates, agents or representatives, as the case may be, shall have any liability or responsibility whatsoever to Purchaser on any basis (including contract, tort, or otherwise) based upon any information provided or made available, or statements made, to Purchaser prior to the execution of this Agreement. Notwithstanding anything to the contrary herein, the foregoing shall not limit, in any way, and nothing in this Agreement shall be deemed to be a waiver of, any claim for Fraud.
43
ARTICLE
6.
COVENANTS
6.1. Public Announcements; Confidentiality.
(a) Purchaser and Seller shall cooperate to prepare a joint press release regarding the transactions contemplated by this Agreement to be issued on the Closing Date, which press release shall be mutually acceptable to Purchaser and the Seller. None of the Company, Seller Parties nor their respective Affiliates, on the one hand, nor Purchaser or its Affiliates, on the other hand, will issue any other public releases or announcements about the transactions contemplated by this Agreement without the prior approval of the other Party, as the case may be (which approval shall not be unreasonably withheld, conditioned or delayed). Notwithstanding the foregoing, the Parties shall, and shall cause their respective Affiliates to, keep all financial terms of this Agreement confidential, except: (a) to the extent required by applicable Law; provided that the disclosing Party shall, or shall cause its Affiliates to, provide the other Party or Parties with prompt written notice of such request so that the other Party or Parties may seek an appropriate protective order or other appropriate remedy and, if such protective order or remedy is not obtained, the disclosing Party or its Affiliates may disclose only such information which such Person is legally required to disclose, and the disclosing Party shall, or shall cause its Affiliates to, exercise commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to the information so disclosed; (b) to the extent necessary to prepare Tax Returns or other filings with Governmental Authorities or to defend or object to any reassessment of Taxes; (c) to the extent necessary to prepare and disclose, as may be required, financial and accounting statements; (d) to the extent necessary to assert, enforce or protect any rights or remedies under this Agreement or any related agreements; and (e) the Parties and their Affiliates may disclose such terms to their representatives, investors and other business relations on a confidential basis as necessary in the conduct of their respective businesses.
(b) For a period of two (2) years after the Closing Date, Purchaser shall not, and shall cause its Affiliates (including, after the Closing, the Company) not to, and shall instruct its representatives not to, directly or indirectly, without the prior written consent of the Seller, disclose to any third party any confidential information of the Seller Parties (excluding confidential information of the Company), or either of them, or any of their Affiliates, heirs, beneficiaries, agents, or representatives received in connection with this Agreement or the transactions contemplated hereby.
6.2. Records.
(a) Seller Parties may retain copies of all (i) correspondence, agreements, documents, books, records and files, including electronic files (collectively, “Records”) prepared in connection with the transactions contemplated hereby, including bids received from other parties and analyses relating to the Company, (ii) Tax Returns filed prior to the Closing Date, and (iii) Tax Returns filed after the Closing Date for periods through the Closing Date.
44
(b) For a period of three (3) years after the Closing Date, Purchaser shall use commercially reasonable efforts to (i) preserve and retain, or (ii) cause the Company to preserve and retain, all Records (including any documents relating to any governmental or non-governmental actions, suits, proceedings or investigations) relating to the conduct of the business and operations of the Company prior to Closing. During such three (3) year period, Purchaser shall, and shall cause its Affiliates (including the Company) to, to the extent reasonably requested by the Seller in connection with accounting or Tax needs, subject to appropriate confidentiality undertakings by Seller: (A) provide the Seller and its representatives reasonable access to the business records of the Company related to periods prior to the Closing Date, (B) furnish to the Seller and its representatives such financial and operating data and other information relating to the Company related to periods prior to the Closing Date, and (iii) cause the employees of Purchaser and its Affiliates (including the Company) to cooperate in a reasonable manner with the Seller and its representatives.
(c) Notwithstanding anything to the contrary in this Agreement, at and after the Closing, (i) Seller Parties shall be the sole and exclusive owner of all files of Miller & Martin, PLLC (“M&M”) pertaining to such firm’s representation of the Company and Seller Parties in connection with the transactions contemplated hereby, the files of VRA as advisers to Seller Parties, and all files and correspondence of Seller Parties in connection with the transaction contemplated herein; (ii) Purchaser, on its own behalf, and on behalf of the Company, hereby forever waives and relinquishes any ownership of or rights in or to such files; and (iii) neither Purchaser nor the Company shall retain any copies of such records or have any access to them. Each of the Parties to this Agreement further agrees to permit any privilege attaching as a result of M&M’s services as counsel to the Company or Seller Parties in connection with the transactions contemplated by this Agreement to survive the Closing and to remain in effect; provided that such attorney-client privilege from and after the Closing will be controlled by Seller Parties. Notwithstanding the foregoing, in the event that a dispute arises between or among Purchaser, the Company or any of their respective Affiliates and a third party (other than a Party to this Agreement or any of their respective Affiliates) after the Closing, Purchaser and the Company and their Affiliates may assert the attorney-client privilege to prevent disclosure of confidential communications by M&M to such third party; provided, however, that neither the Company nor any of their Affiliates may waive such privilege without the prior written consent of the Seller.
6.3. Insurance Policies.
(a) In connection with the Closing, Purchaser and the Company (on behalf of Seller Parties) will purchase a run-off (i) directors’ and officers’ liability insurance policy and (ii) employment practices liability insurance policy for the benefit of Seller Parties and the Company and the present and former shareholders, directors, and officers of the Company (collectively, the “Run-Off Insurance Policies”). Purchaser and Seller shall each pay 50% of all premiums paid or payable by Purchaser or the Company for the Run-Off Insurance Policies.
(b) For a period of three (3) years following the Closing Date, with respect to the Company, Purchaser agrees not to and shall cause the Company not to, (i) attempt to cancel or interfere with any of the Run-Off Insurance Policies nor (ii) amend the articles of incorporation, bylaws, or other analogous organizational documents of the Company in any way to reduce or eliminate the level of indemnification provided by the Company to the present and former shareholders, directors and officers of the Company.
45
(c) Until the third (3rd) anniversary of the Closing Date, Purchaser shall cause the Company to either (i) maintain the insurance policies described on Schedule 3.14(a) covering actions prior to the Closing Date (collectively the “Liability Policies”) or (ii) maintain replacement policies for the Liability Policies where such replacement policies provide for (x) coverage on an individual and an aggregate basis at least equal to the coverage levels under the Liability Policies, (y) provide for deductibles that are no greater than the deductibles under the Liability Policies, and (z) provide coverage for the same claims and damages as are covered by the Liability Policies.
(d) This Section 6.3 and the covenants made hereunder shall survive the Closing, and are expressly intended to be for the benefit of, and shall be enforceable by, Seller Parties and the former or present shareholders, directors and officers of the Company and their respective heirs and personal representatives. The rights provided for herein shall not be deemed exclusive of any other rights to which such person is entitled, whether under law, contract or otherwise. In the event that the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its respective properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of the applicable Company shall succeed to the obligations set forth in this Section 6.3.
6.4. R&W Insurance Policy.
(a) At or prior to Closing, Purchaser will take all necessary actions to bind Purchaser’s coverage under the R&W Insurance Policy, and Purchaser will provide a true and complete copy of the final R&W Insurance Policy to Seller. The R&W Insurance Policy shall provide that AIG Specialty Insurance Company (the “R&W Insurer”) (i) shall have no right of subrogation against Seller Parties, or any of them, or any of their respective Affiliates, heirs, beneficiaries or personal representatives and (ii) has waived any such right of subrogation, except in the case of Fraud. Purchaser will promptly pay, or cause to be paid, all premiums, underwriting costs, brokerage commissions, and other fees and expenses required for the full term of the R&W Insurance Policy, and will otherwise comply in all material respects with all of its obligations under the R&W Insurance Policy. Purchaser and Seller shall each pay 50% of all such premiums, costs, commissions and other fees and expenses related to the R&W Insurance Policy; provided however, Purchaser shall pay 100% of the R&W Insurer attorney costs and underwriting expenses.
(b) Purchaser shall not agree to any amendment, variation or waiver of the R&W Insurance Policy (or do anything which has a similar effect) which would adversely impact Seller Parties, or any of them, without the prior written consent of the Seller.
46
6.5. Employment and Benefits Arrangements; Director and Officer Designees.
(a) Until the first (1st) anniversary of the Closing Date, Purchaser shall cause the Company to provide employees of the Company with base compensation and benefits in the aggregate substantially similar to (or at least no less favorable than) the base compensation and benefits provided to such employees by the Company immediately prior to the Closing and, with respect to base compensation, as disclosed on Schedule 3.12(a) (excluding any compensation and benefits payable or accelerated as a result of the transactions contemplated by this Agreement); provided, however, that unless otherwise specified in this Agreement, nothing in this Section 6.5 shall be deemed to require Purchaser to provide employees of the Company with any equity-based awards, severance benefits, defined benefit pension benefits, retiree welfare benefits, or deferred compensation. With respect to any Plans in which any employees of the Company participate on or after the Closing, Purchaser shall cause the Company to: (a) waive all preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such employees, except to the extent such preexisting conditions, exclusions or waiting periods applied under the similar plan in effect immediately prior to the Closing; (b) provide each such employee with credit for any copayments and deductibles paid (to the same extent such credit was given for the year under the similar plan in effect immediately prior to the Closing) in satisfying any applicable deductible or out of-pocket requirements; and (c) recognize all continuous service of employees with the Company, as applicable, for all purposes (including, without limitation, for purposes of eligibility to participate, vesting credit and entitlement to benefits) under any Plan in which such employees may be eligible to participate after the Closing; provided that the foregoing shall not apply (i) to the extent it would result in a duplication of benefits, (ii) to the extent such service was not recognized or permitted under the corresponding Plan, (iii) for benefit accruals pursuant to any defined benefit pension plan, (iv) for purposes of any retiree health or welfare plan, or (v) to the extent adequate information was not provided to Purchaser sufficient to determine service of the employees. This Section 6.5 shall survive the Closing and shall be binding on all successors and assigns of Purchaser and the Company. The employees of the Company shall not be third party beneficiaries of this Section 6.5 and the Parties do not intend to permit any third party claims hereunder. This Agreement shall not be deemed to amend or modify any Plans of the Company or alter the “at will” nature of any of the Company’s employment relationships.
(b) In addition to, and not in limitation, of Section 6.5(a) above, at the first meeting after the date hereof at which of the Compensation Committee of the Board of Directors of PubCo approves equity incentive awards for employees of PubCo under PubCo’s 2025 Stock Incentive Plan, which meeting shall be no later than July 31, 2026, the Compensation Committee shall grant equity incentive awards to the employees of the Company, which continue to be employed by PubCo, either directly or indirectly by the Company or another entity controlled by PubCo, in such amounts and subject to such vesting requirements as are commensurate with, respectively, similarly situated employees of PubCo (taking into account such individuals go-forward roles and responsibilities) as determined in the discretion of the Compensation Committee.
(c) Promptly after Closing, the Board of Directors of PubCo shall meet to (i) elect ALW to serve on the board of directors of PubCo and (ii) appoint BAW to serve as the Chief Operating Officer of PubCo.
6.6. Covenant Not to Use Name. Following the Closing, Seller Parties agree that they will not, and will cause their Affiliates not to, include or use the names or trademarks “ALGC”, “A.L. Grading”, “A.L. Grading Contractors” or any derivative thereof or any name or trademark confusingly similar thereto as the name of any Person, on any advertising, logo or assets or otherwise use or assign any rights Seller Parties may have in such name or trademark to any Person without Purchaser’s prior written consent.
47
6.7. Audit Cooperation. Following the Closing, Seller Parties shall use provide all cooperation reasonably requested by PubCo in connection with enabling PubCo to prepare financial statements in compliance with the requirements of Rule 3-05 of Regulation S-X promulgated under the Exchange Act and enable PubCo’s accountants to audit such financial statements. Seller and the Seller Parties agree to provide such additional information which is deemed relevant and reasonably necessary (as determined by Grant Thornton LLP) to enable PubCo and its accountants to prepare and audit the financial statements of the Company in compliance with Rule 3-05 of Regulation S-X which audit may commence at any time after the Closing (provided that Seller shall upon request by PubCo during the two (2) week period prior to Closing compile audit documents such that the audit may commence promptly upon Closing). Seller and the Seller Parties agree to execute and deliver to Grant Thornton LLP audit representation letters, in customary form, to enable Grant Thornton LLP to issue an unqualified opinion on the Company’s financial statements.
6.8. Schuler Transaction. The Company entered into that certain Letter Agreement by and between the Company and J.D. Shuler Contracting Co., Inc. (“Shuler”), dated December 11, 2025 (“Shuler Letter Agreement”), pursuant to which the Company and Shuler agreed in principal for Shuler to sell to the Company, and the Company to buy from Shuler, certain assets of Shuler. In connection with the execution of the Shuler Letter Agreement, the Seller Owners deposited with Mahaffey Pickens Tucker LLP (“MPT”), counsel to the Company, $4,000,000.00 as escrow (the “Woods Escrow”) for the Purchase Price (as defined in the Shuler Letter Agreement) (the “Shuler Purchase Price”). Purchaser covenants to use best efforts from and after the Closing to cause the Company to consummate and close no later than March 11, 2026, the transactions contemplated by the Shuler Letter Agreement (the “Shuler Closing”). At the Shuler Closing, Purchaser agrees to (a) deliver, or cause the Company to deliver, to Shuler the Shuler Purchase Price and (b) instruct, or direct the Company to instruct, MPT to deliver the Woods Escrow to the Seller Owners. If the Shuler Closing does not occur on or prior to April 15, 2026, Purchaser will cause MPT to promptly refund the Woods Escrow to the Seller Owners in immediately available funds.
ARTICLE
7.
THE CLOSING
7.1. Closing. The closing of the transactions contemplated hereby (the “Closing”) shall take place concurrently with the execution of this Agreement on the date hereof (the “Closing Date”). The Closing shall take place through an exchange of consideration and documents using wire transfers, overnight courier service, and/or electronic mail. The Closing shall be deemed effective as of 12:01 AM, Atlanta, Georgia time, on the Closing Date.
7.2. Deliveries of the Company. At the Closing, the Company shall deliver to Purchaser:
(a) copies of the Payoff Letters for the Closing Indebtedness;
48
(b) evidence, in form reasonably satisfactory to Purchaser, that all Required Consents have been obtained;
(c) a certificate of good standing of the Company issued within ten (10) Business Days prior to the Closing Date by the Secretary of State of the State of Georgia;
(d) the original corporate and limited liability company record books and membership interest record books of the Company to the extent not in the possession of the Company at the Closing;
(e) a signature page, duly executed by the Company and dated as of the Closing Date, to each of the Transaction Documents to which the Company is a party except as otherwise provided in Section 7.4;
(f) signature pages, duly executed by each of the respective Lessors dated effective as of the Closing Date, to a Real Property Lease for each parcel of the Leased Real Property;
(g) signature pages, duly executed by each of Streamline and Kendall, as the case may be, dated effective as of the Closing Date, to those certain Labor Leasing Agreements for certain employees of Streamline and Kendall, as the case may be; and
(h) all other documents required to be entered into by the Company pursuant to this Agreement or reasonably requested by Purchaser to otherwise consummate the transactions contemplated by this Agreement.
7.3. Deliveries of Seller Parties. At the Closing, Seller Parties shall deliver to Purchaser:
(a) a membership interest assignment or other instrument of transfer duly executed in blank, evidencing the conveyance of each of the Rollover Equity and the Purchased Equity to Purchaser;
(b) resignations (effective as of the Closing Date) of all of the directors and officers of the Company specified by Purchaser in their capacity as such (in each case, in a form reasonably satisfactory to Purchaser);
(c) a joinder signature page, duly executed by the Seller and dated as of the Closing Date, to that certain Tax Receivable Agreement dated as of December 9, 2025, by and between PubCo, Purchaser and the other parties named therein, attached hereto as Appendix B (the “Tax Receivable Agreement”);
(d) a signature page, duly executed by the Seller and dated as of the Closing Date, to that certain Tax Benefit Agreement, by and between the Seller, PubCo and OpCo, attached hereto as Appendix C (the “Tax Benefit Agreement”);
(e) a joinder signature page, duly executed by the Seller and dated as of the Closing Date, to that certain Second Amended and Restated Limited Liability Company Agreement of Purchaser, in the form attached hereto as Appendix D (the “Purchaser LLC Agreement”);
49
(f) a joinder signature page, duly executed by the Seller and dated as of the Closing Date, to that certain Registration Rights Agreement dated as of December 9, 2025 by and between PubCo and the other parties named therein, in the form attached hereto as Appendix E (the “PubCo Rights Agreement”);
(g) signature pages duly executed and dated as of the Closing Date by (i) each of ALW, Rick Leeson and Jose De Carbajal, and by each key employee identified by the Company and Purchaser, to the Company Employment Agreements, (ii) BAW to an employment agreement with PubCo in form and substance satisfactory to Purchaser and BAW (the “BAW Employment Agreement”) and (iii) Bronwynn Michelle Schumacher to the Consulting Agreement between the Company and Bronwynn Michelle Schumacher (“Consulting Agreement”);
(h) signature pages, duly executed by Seller and each Seller Owner and dated as of the Closing Date, to a Restrictive Covenant and Release Agreement, in form and substance satisfactory to Purchaser and each Seller Owner (the “Restrictive Covenant and Release Agreement”);
(i) a signature page, duly executed by Seller and dated as of the Closing Date, to the Escrow Agreement;
(j) a duly completed and executed IRS Form W-9 from Seller;
(k) a certificate of non-foreign person status, prepared in compliance with Treasury Regulations Section 1.1445-2(b)(2), certifying that Seller is not a foreign person for purposes of Section 1445 of the Code and duly executed by Seller;
(l) a certificate of good standing of Seller issued within ten (10) Business Days prior to the Closing Date by the Secretary of State of the State of Georgia;
(m) a certificate, dated as of the Closing Date, signed by an officer of Seller, certifying as to (i) the organizational documents of the Seller, (ii) the incumbency of the officers executing the Agreement and the Transaction Documents to which Seller is a party and (iii) the resolutions of the members and managers of the Seller authorizing the execution, delivery and performance by Seller of this Agreement and each of the Transaction Documents to which it is a party;
(n) a signature page, duly executed by Seller and dated as of the Closing Date, to each of the Transaction Documents to which such Seller is a party;
(o) invoices for Transaction Expenses; and
(p) all other documents required to be entered into by Seller pursuant to this Agreement or reasonably requested by Purchaser to otherwise consummate the transactions contemplated by this Agreement.
50
7.4. Deliveries of Purchaser. At the Closing, Purchaser will take or will cause the following actions to be taken:
(a) make all payments and deliver all consideration required by the terms of Article 2 and deliver to each payee or recipient thereof confirmations of the wire transfers of immediately available funds in respect thereof or other applicable evidence thereof;
(b) make payment to the Seller to reimburse the Seller for all Company Transaction Expenses set forth on the Company Closing Certificate, up to a maximum amount payable under this clause (b) equal to $3,500,000;
(c) deliver to the Seller signature pages, duly executed by PubCo and dated as of the Closing Date, to the BAW Employment Agreement; and
(d) deliver to Seller and each Seller Owner a signature page, duly executed by Purchaser and dated as of the Closing Date, to the Restrictive Covenant and Release Agreement;
(e) deliver to the Seller a signature page, duly executed by PubCo and OpCo and dated as of the Closing Date, to the Tax Benefit Agreement;
(f) deliver to the Seller a true and complete fully-executed PubCo Rights Agreement;
(g) deliver to the Seller a true and complete fully-executed Purchaser LLC Agreement;
(h) signature pages, duly executed by the Company dated effective as of the Closing Date, to a Real Property Lease for each parcel of the Leased Real Property;
(i) signature pages, duly executed by the Company, dated effective as of the Closing Date, to those certain Labor Leasing Agreements for certain employees of Streamline and Kendall, as the case may be;
(j) signature pages, duly executed by the Company and dated as of the Closing Date, to an employment agreement for each of ALW, Rick Leeson and Jose De Carbajal in form and substance satisfactory to Purchaser and each such individual (collectively, the “Company Employment Agreements”);
(k) signature pages, duly executed by the Company, dated effective as of the Closing Date, to the Consulting Agreement;
(l) deliver to the Seller a true and complete copy of an amendment to PubCo’s certificate of incorporation, as certified by the Delaware Secretary of State, which amendment permits the Seller to hold the PubCo Shares;
(m) deliver to the Seller signature pages, duly executed by Purchaser and Escrow Agent, and dated as of the Closing Date, to the Escrow Agreement;
51
(n) deliver to the Seller a certificate of good standing of Purchaser issued within ten (10) Business Days prior to the Closing Date by the Secretary of State of the State of North Carolina;
(o) deliver to the Seller a certificate, dated as of the Closing Date, signed by the manager of Purchaser, certifying as to (i) the organizational documents of PubCo and Purchaser, (ii) the incumbency of the officers executing the Agreement and the Transaction Documents to which PubCo or Purchaser is a party and (iii) the resolutions of the board of directors, the members and managers of PubCo and Purchaser, as applicable, authorizing the execution, delivery and performance by PubCo and Purchaser of this Agreement and each of the Transaction Documents to which it is a party;
(p) deliver to the Seller a signature page, duly executed by PubCo or Purchaser, as applicable, and dated as of the Closing Date, to each of the other Transaction Documents to which PubCo or Purchaser is a party, as applicable; and
(q) deliver to the Seller all other documents required to be entered into by Purchaser pursuant to this Agreement or reasonably requested by Seller to otherwise consummate the transactions contemplated by this Agreement.
7.5. Further Assurances. Each Party agrees that it shall, from time to time after the date of this Agreement, execute and deliver such other reasonably requested documents and instruments and take such other actions as may be reasonably requested by any other Party to carry out the transactions contemplated by this Agreement.
ARTICLE
8.
TAX MATTERS
8.1. Tax Matters.
(a) Seller Parties, at their expense, shall prepare or cause to be prepared all Tax Returns for any Income Taxes required to be filed by the Company for any Pre-Closing Tax Period (other than any Straddle Period), and Purchaser shall file or cause to be filed all such Tax Returns in a timely manner. Seller Parties shall prepare such Tax Returns in a manner consistent with past practice, except as otherwise required by applicable Law. Seller Parties shall deliver to the Purchaser a draft of each such Tax Return (and related workpapers and other relevant information reasonably requested by the Purchaser) for its review no later than forty-five (45) days prior to its due date (including extensions). Seller Parties shall consider in good faith any reasonable comments provided by Purchaser to Seller Parties within fifteen (15) days of receipt of such Tax Return by the Purchaser. Seller shall promptly pay to the appropriate Governmental Authority all Taxes, if any, reported as due on each such Tax Return to the extent such Taxes are not included as an accrued Tax liability in determining Net Working Capital or otherwise taken into account as a reduction in computing the Final Purchase Consideration payable to Seller. Notwithstanding any other provisions to the contrary in this Agreement, Purchaser and Seller Parties agree that all Transaction Tax Deductions shall be taken into account in a Pre-Closing Tax Period, and Purchaser and Seller agree to prepare all Tax Returns in a manner consistent with such intent unless otherwise required by applicable Law.
52
(b) Purchaser, at its expense, shall prepare or cause to be prepared, and shall file or cause to be filed in a timely manner, all other Tax Returns required to be filed by the Company after the Closing Date. Purchaser shall prepare and file such Tax Returns for any Straddle Period in a manner consistent with past practice, except as otherwise required by applicable Law. Purchaser shall deliver to the Seller a draft of each Tax Return for any Straddle Period (and related workpapers and other relevant information reasonably requested by the Seller) for its review no later than forty-five (45) days prior to its due date (including extensions) to the extent that such Tax Return would reasonably be expected to impact the Seller Parties’ indemnity obligation for Indemnified Taxes pursuant to Section 9.1(b) (each such Tax Return, a “Straddle Period Tax Return”). If the Seller fails within fifteen (15) days of receipt of any such Straddle Period Tax Return to notify Purchaser of any objection with respect thereto, then Seller shall be deemed to consent to such Straddle Period Tax Return. If Seller objects to any portion of a Straddle Period Tax Return within the applicable fifteen (15) day period, the Seller shall provide written notice to Purchaser (a “Tax Return Objection”), setting forth in reasonable detail those items to which Seller objects, the adjustments proposed by Seller, and the basis for Seller’s suggested adjustments. During the ten (10) day period following delivery of a Tax Return Objection, Purchaser and the Seller shall negotiate in good faith with a view to resolving any disagreements over Seller’s suggested adjustments. If the Parties fail to resolve their differences over Seller’s suggested adjustments within such ten (10) day period, then Purchaser and the Seller shall jointly request that the Accountant make a binding determination based on the Accountant’s opinion of the proper treatment and allocation of items between the parties related to the Straddle Return as set forth in Section 8.1(d) below. The Accountant will, under the terms of its engagement, have no more than fifteen (15) days from the date of referral within which to render its written decision with respect to Seller’s suggested adjustments, as set forth in the Tax Return Objection. Upon the filing of any Tax Return for a Straddle Period, Purchaser shall provide the Seller with notice of such filing, and Seller Parties agree to reimburse Purchaser for any Taxes of the Company for the Pre-Closing Tax Period within ten (10) Business Days of the later of (i) the date such Taxes were due and paid by Purchaser or the Company, or (ii) the resolution of any Tax Return Objection by the Accountant as set forth above, to the extent such Taxes were not included as an accrued Tax liability in determining the Net Working Capital or otherwise taken into account as a reduction in computing the Final Purchase Consideration payable to Seller. The fees and expenses of the Accountant shall be allocated to be paid by Purchaser, on the one hand, and Seller, on the other, based upon the percentage that the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party, as determined by the Accountant.
(c) Except as otherwise contemplated by this Agreement or to the extent otherwise required by applicable Law, none of Purchaser or any of its Affiliates shall (or after the Closing, shall cause or permit the Company to), without the Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), (i) make, revoke, or change any Tax election of the Company that has a retroactive effect to a Pre-Closing Tax Period, (ii) amend, re-file or otherwise modify (or grant an extension of any statute of limitations with respect to) any Tax Return of the Company with respect to a Pre-Closing Tax Period, (iii) enter into any closing agreement, initiating any voluntary disclosure process, or similar process with any taxing authority, in each case, relating to the Company with respect to a Pre-Closing Tax Period, or (iv) settle any Tax claim, extend or waive the limitation period applicable to any Tax claim, or surrender any right to claim a refund of Taxes, in each case, relating to the Company with respect to a Pre-Closing Tax Period, in each case, that would reasonably be expected to result in an increase to Indemnified Taxes pursuant to Section 9.1(b) or a reduction in a Tax refund for which Seller would be entitled pursuant to Section 8.1(f).
53
(d) The portion of any Taxes for a Straddle Period allocable to a Pre-Closing Tax Period shall be deemed to equal (i) in the case of Taxes that (x) are based upon or related to income or receipts or (y) imposed in connection with any sale or other transfer or assignment of property, other than Transfer Taxes, the amount which would be payable if the taxable year of the Company (and any of its direct or indirect Subsidiaries) ended with, and included, the Closing Date, and (ii) in the case of other Taxes imposed on a periodic basis (including property Taxes), the amount of such Taxes for the entire period multiplied by a fraction the numerator of which is the number of calendar days in the period ending with, and including, the Closing Date and the denominator of which is the number of calendar days in the entire period. For purposes of computing the Taxes attributable to the two portions of a taxable period pursuant to this Section 8.1(d), the amount of any item that is taken into account only once for each taxable period (e.g., the benefit of graduated tax rates, exemption amounts, etc.) shall be allocated between the two portions of the period in proportion to the number of days in each portion.
(e) Each Party shall cooperate fully, as and to the extent reasonably requested by another Party, in connection with Tax matters related to the Company, including in connection with the filing of any Tax Returns pursuant to this Section 8.1 and any audit, litigation or other proceeding with respect to Taxes. Such cooperation shall include the retention and (upon a Party’s request) the provision of records and information which are reasonably relevant to any such audit, litigation or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder.
(f) Each Party, upon reasonable request by another Party, shall use all commercially reasonable efforts to obtain any certificate or other document from any Governmental Authority or any other Person as may be necessary to mitigate, reduce or eliminate any Tax that could be imposed (including with respect to the transactions contemplated hereby).
(g) Except to the extent included as an asset in computing the Final Purchase Consideration, any refunds or credits of Taxes of the Company for Pre-Closing Tax Periods actually received by Purchaser or the Company (or any of their respective Affiliates) after the Closing shall be for the benefit of Seller, provided, further, that Seller shall not be entitled to any such Tax refund or credit to the extent that such Tax refund or credit arises as the result of a carryback of a loss or other Tax benefits from a taxable period (or portion thereof) beginning after the Closing Date. Purchaser shall within fifteen (15) days of receipt thereof promptly pay over (or cause the Company to pay over) to the Seller all Tax refunds received, or applied to future payments, by Purchaser or its Affiliates related to any Pre-Closing Tax Periods, in any case, net of any cost (including Taxes) to Purchaser and its Affiliates (including the Company) attributable to the obtaining and receipt of such Tax refund or credit. To the extent such refund or credit is subsequently disallowed or required to be returned to the applicable Governmental Authority, Seller agrees to repay promptly to Purchaser or its Affiliates, as directed by Purchaser, the amount of such refund or credit, together with any interest, penalties or other additional amounts imposed by such Governmental Authority.
54
(h) Notwithstanding any other provision in this Agreement, all transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) (“Transfer Taxes”) incurred in connection with this Agreement (including any transfer or similar tax imposed by states or subdivisions and including costs and expenses related to preparing and filing Tax Returns with respect to such Taxes) shall be borne fifty percent (50%) by Purchaser and fifty percent (50%) by Seller. The Party responsible under applicable Law shall timely file all necessary Tax Returns and other documentation with respect to all such Transfer Taxes, and, if required by applicable Law, the other Party will join in the execution of any such Tax Returns and other documentation.
8.2. Audits and Contests with Respect to Taxes.
(a) Purchaser and Seller shall notify the other in writing (which, in the case of Purchaser, may be satisfied by notifying the Seller) within fifteen (15) days after receipt by Purchaser or Seller, as applicable, of written notice of any pending or threatened audit, claim or assessment with respect to Taxes of the Company relating to any Pre-Closing Tax Period (each a “Pre-Closing Tax Matter”). Such notice shall contain factual information (to the extent known) describing the applicable Pre-Closing Tax Matter and shall include copies of the relevant portion of any notice or other document received from any Governmental Authority in respect of any such Pre-Closing Tax Matter; provided, that the failure of Purchaser to notify or delay in notifying Seller will not relieve the Seller Parties of their obligations under Section 9.1(b), except to the extent a Seller Party is actually prejudiced as a result thereof.
(b) Within fifteen (15) days after Seller’s receipt of a notice of a Pre-Closing Tax Matter (other than any Pre-Closing Tax Matter relating to a Straddle Period), Seller may elect by written notice to Purchaser, to contest such Pre-Closing Tax Matter in the name of the Company. If Seller so elects, Seller shall conduct such Pre-Closing Tax Matter diligently and shall be solely responsible for the defense of such audit, claim or assessment at issue, except that Purchaser agrees to reasonably cooperate, and Purchaser will cause the Company and its subsidiaries to reasonably cooperate, in the contest of such audit, claim or assessment by making relevant documents and employees available to the Seller, and to execute such documents (including powers of attorney) as may be reasonably necessary to allow Seller to conduct the defense. If Seller elects to conduct a defense pursuant to this Section 8.2(b), then Seller (i) shall bear all costs relating to such defense and (ii) shall not settle or compromise any matter with respect to the negotiation, settlement, or litigation of the item or items at issue without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed). Purchaser shall have the right to participate in the defense of any matter controlled by Seller under this Section 8.2(b), and to employ counsel, solely at Purchaser’s’ own expense, separate from counsel employed by Seller.
(c) If a Pre-Closing Tax Matter involves a Straddle Period, Purchaser shall have the right to control any such matter at Purchaser’s expense; provided that the expenses of defending such audit, claim or assessment for a Straddle Period shall be allocated between Purchaser, on the one hand, and Seller, on the other hand, based on the manner in which the applicable Tax at issue is allocated under Section 8.1(c); and provided further, that Purchaser shall not settle or compromise any matter in such audit, claim or assessment that may give rise to liability of Seller under this Agreement without the prior written consent of the Seller (which consent shall not be unreasonably withheld, conditioned or delayed). Seller shall have the right to participate in the defense of any matter controlled by Purchaser under this Section 8.2(c) to the extent Seller would reasonably be expected to have liability under this Agreement with respect to such matter, and to employ counsel, solely at Seller’s own expense, separate from counsel employed by Purchaser.
55
(d) The Party controlling the defense of any Pre-Closing Tax Matter shall (i) keep the other Party reasonably informed on a timely basis and consult in good faith with the other Party with respect to any issue relating to such Pre-Closing Tax Matter, (ii) provide the other Party copies of all material correspondence, notices and other written material received from any Governmental Authority on a timely basis with respect to such Pre-Closing Tax Matter, (iii) keep the other Party apprised of substantive developments with respect to such Pre-Closing Tax Matter, and (iv) provide the other Party with a copy of, and an opportunity to review and comment on, all submissions made to a Governmental Authority in connection with such Pre-Closing Tax Matter prior to making such submissions.
8.3. Intended Tax Treatment.
For all applicable federal, state and local Tax purposes, the Parties agree that: (i) the Restructuring, taken as a whole, shall be treated as a reorganization pursuant to Section 368(a)(1)(F) of the Code and the documents effectuating such Restructuring shall be treated as a plan of reorganization, as contemplated by Treasury Regulations Section 1.368-1(c); (ii) as provided in IRS Revenue Ruling 2008-18, 2008-1 C.B. 674, the S corporation election of the Company shall not terminate and shall continue for Seller, (iii) the Company shall retain its employer identification number; (iv) Seller shall apply for a new employer identification number; (v) the contribution by Seller to Purchaser of the Rollover Equity in exchange for the Purchaser Units Consideration shall be treated as a transaction governed by Section 721(a) of the Code; and (vi) the sale by Seller to Purchaser of (x) the Rollover Equity in exchange for the PubCo Share Consideration and (y) the Purchased Equity in exchange for the Purchase Consideration, in each case, shall be treated as a taxable sale of a portion of the assets of the Company under Section 1001 of the Code (clauses (i) through (vi), collectively, the “Intended Tax Treatment”). The Parties and their respective Affiliates shall file all Tax Returns in a manner consistent with the Intended Tax Treatment and shall not take any position before any Governmental Authority, or in the context of any Tax proceeding involving any Governmental Authority, that is inconsistent with the Intended Tax Treatment, in each case, absent a final “determination” (within the meaning of Section 1313(a) of the Code and analogous provisions of applicable Law) or the prior written consent of Purchaser or Seller (as applicable).
8.4. Purchase Price Allocation.
Within ninety (90) days after the determination of the Final Purchase Consideration pursuant to Section 2.6, Seller shall prepare an allocation among the assets of the Company of the portion of the Final Purchase Consideration (and any other amounts treated as consideration for U.S. federal income Tax purposes) that is attributable to the sale by Seller to Purchaser of (x) the Rollover Equity in exchange for the PubCo Share Consideration and (y) the Purchased Equity in exchange for the Purchase Consideration, in accordance with the principles of Section 1060 of the Code and the applicable Treasury Regulations, as reflected in the allocation principles set forth on Schedule 8.4 (the “Purchase Price Allocation”). The Purchase Price Allocation shall be binding and conclusive upon the Parties hereto, unless Purchaser objects in writing to any item or items shown on the Purchase Price Allocation within thirty (30) days after delivery thereof to Purchaser. If Purchaser and Seller are unable to resolve any dispute with regard to the Purchase Price Allocation within thirty (30) days after delivery of Purchaser’s written objections, the matter or matters in dispute shall be submitted to the Accountant for determination in accordance with the allocation principles set forth in Schedule 8.4 and the procedures set forth in Section 2.6. The decision of the Independent Accountant shall be conclusive and binding upon Purchaser and Seller; provided, however, that nothing contained herein shall prevent Purchaser or Seller from settling any proposed deficiency or adjustment by any Governmental Authority based upon or arising out of the Purchase Price Allocation, and neither Purchaser nor Seller shall be required to litigate before any court any proposed deficiency or adjustment by any Governmental Authority challenging the Purchase Price Allocation. Each of Purchaser, Sellers, and their respective Affiliates shall file all Tax Returns in a manner consistent with the Purchase Price Allocation as so resolved and shall not take any position before any Governmental Authority, or in the context of any Tax proceeding involving any Governmental Authority, that is inconsistent with the Purchase Price Allocation as so resolved, in each case, absent a final “determination” (within the meaning of Section 1313(a) of the Code and analogous provisions of applicable Law) or the prior written consent of Sellers or Purchaser (as applicable).
56
ARTICLE
9.
SURVIVAL; REMEDIES
9.1. Survival; Indemnification.
(a) The representations and warranties of the Company and of Seller Parties contained in this Agreement shall not survive (and shall expire as of) the Closing. All of the covenants and agreements contained in this Agreement that are to be performed on or prior to the Closing shall not survive (and shall expire as of) the Closing, and all of the covenants contained in this Agreement that by their nature are required to be performed after the Closing shall survive the Closing until fully performed or fulfilled (“Surviving Covenants”), unless and only to the extent that non-compliance with such covenants or agreements is waived in writing by the Party entitled to such performance. Notwithstanding the foregoing, (i) claims made by Purchaser under the R&W Insurance Policy are not subject to the limitations in this Section 9.1, it being understood that any matter for which there is coverage available under the R&W Insurance Policy shall be subject to the terms, conditions and limitations, if any, set forth in the R&W Insurance Policy, and (ii) nothing in this Section 9.1 shall preclude Purchaser and its Affiliates from relying on any representation or warranty made in this Agreement (including ARTICLES 3 or 4) or on any other Transaction Document for purposes of determining the existence of Fraud or seeking or obtaining any remedy in the case of Fraud.
(b) The Seller Parties shall jointly and severally indemnify and hold harmless, Purchaser and its Affiliates (“Purchaser Indemnified Parties”) against any Loss, which Purchaser Indemnified Parties may suffer, sustain or become subject to as the result of (i) any Indebtedness of the Company or Company Transaction Expense, in each case that is not paid in full at the Closing or taken into account in the calculation of the Final Purchase Consideration, (ii) any claims by any current or past holder or alleged holder of equity interests or relating to any distributions of the Final Purchase Consideration, (iii) any Indemnified Taxes; (iv) any breach by the Seller Parties of the Surviving Covenants, or (v) Fraud on the part of the Seller Parties.
57
(c) The Purchaser Parties shall jointly and severally indemnify and hold harmless, each of the Seller Parties and their respective Affiliates (“Seller Indemnified Parties” and, together with Purchaser Indemnified Parties, each an “Indemnified Party” and, collectively, the “Indemnified Parties”) against any Loss which Seller Indemnified Parties may suffer, sustain or become subject to as the result of (i) any inaccuracy, misrepresentation or breach of any representation or warranty of the Purchaser Parties, or any of them, set forth in Article 5 of this Agreement, (ii) any breach by the Purchaser Parties of the Surviving Covenants or (iii) Fraud on the part of the Purchaser Parties.
(d) Any Indemnified Party must give to the parties which are obligated under this Article 9 to indemnify the Indemnified Party (each an “Indemnifying Party” and, collectively, the “Indemnifying Parties”) written notice of such claim describing such claim and the nature and amount of the Loss, to the extent determinable at such time (a “Claim Notice”), within thirty (30) days after the Indemnified Party receives notice from a third party with respect to any such claim (a “Third-Party Claim”) or otherwise discovers the Liability, obligation, or facts giving rise to such claim; provided, that the failure to notify or delay in notifying the Indemnifying Party will not relieve Indemnifying Party of its obligations under this Section 9.1, except to the extent such Indemnifying Party is materially prejudiced as a result thereof. By written notice by the Seller to the Indemnified Party within fifteen (15) days after receipt of a Claim Notice with respect to a Third-Party Claim, the Indemnifying Party may assume the defense of such matter; provided, that (i) the Indemnifying Party shall, at the Indemnifying Party’s expense, retain counsel reasonably acceptable to the Indemnified Party and in a manner that is reasonable under the circumstances, (ii) if the Indemnifying Party is a Seller Party, such Indemnifying Party shall not have the right to control any Third-Party Claim defended by the Indemnified Party that (A) involves (x) injunctive relief, specific performance or other similar equitable relief that, if granted, could reasonably be expected to adversely affect the Indemnified Party’s ongoing business, or (y) any claim made by a Governmental Authority against the Indemnified Party, (B) involves any criminal allegations, or (C) is one in which the Indemnifying Party is also a party and, in the reasonable opinion of legal counsel to the Indemnified Party, joint representation would be inappropriate or there may be legal defenses available to the Indemnified Party which are different from or additional to those available to the Indemnifying Party and (iii) the Indemnifying Party may not consent to the entry of judgment with respect to the matter or enter into any settlement with respect to the matter without the prior written consent of the Indemnified Party, unless such judgment or settlement requires only the payment of money by the Indemnifying Party. The Indemnified Party shall cooperate with the Indemnifying Party in all matters arising under this Section 9.1.
9.2. R&W Insurance Policy.
(a) Each of PubCo and Purchaser acknowledges and agrees that except for the matters set forth in Section 9.1(b), the R&W Insurance Policy (whether or not it is sufficient to cover the applicable claims and damages) shall be the sole and exclusive remedy and recourse of Purchaser and its Affiliates of whatever kind and nature, in Law, at equity or otherwise, known or unknown, which such Persons have now or may have in the future, resulting from, arising out of or related to any inaccuracy in or breach of any representation or warranty of the Company or of Seller Parties in this Agreement (including, without limitation, the representations and warranties contained in ARTICLE 3 and ARTICLE 4 of this Agreement). In the event the proceeds under the R&W Insurance Policy are insufficient to pay Purchaser or any of its Affiliates any amounts payable to such Person in respect of any breach of any representation or warranty of the Company or of Seller Parties contained in this Agreement or any other Transaction Document, no such Person shall be entitled to collect any remaining amounts not satisfied from the proceeds payable under the R&W Insurance Policy from the Seller Parties, or any of them, or any of a Seller Party’s respective Affiliates, except for Fraud claims subject to the limitations set forth in the immediately preceding sentence.
58
(b) Each of PubCo and Purchaser acknowledges and agrees that the limitations in this Section 9.2 shall apply regardless of whether (i) Purchaser obtains or maintains the R&W Insurance Policy prior to or following Closing, (ii) the R&W Insurance Policy is revoked, cancelled or modified in any manner after issuance, or (iii) Purchaser or any of its Affiliates makes a claim under the R&W Insurance Policy and such claim is denied by the insurer for any reason.
9.3. Sole and Exclusive Remedy.
(a) Except for the matters set forth in Section 9.1(b), notwithstanding anything else that may be expressed or implied in this Agreement, the sole and exclusive remedy (in lieu of any and all other rights and remedies any such Person otherwise may have had) of Purchaser or any of its Affiliates under, arising out of or resulting from or incurred in connection with this Agreement shall be (a) Purchaser’s right to recover under the R&W Insurance Policy, (b) recourse against any Person that is identified as a party to this Agreement for breach of any covenant or agreement set forth herein that is required to be performed following the Closing in accordance with its terms, subject to the limitations set forth herein, (c) recourse against any Person that is identified as a party to any other Transaction Document under and to the extent expressly provided for therein, subject to the limitations set forth herein and therein, and (d) the right to bring a Fraud claim, subject in all respects to the limitations set forth in this Agreement.
(b) With respect to the matters set forth in Section 9.1(b), notwithstanding anything else that may be expressed or implied in this Agreement, the sole and exclusive remedy (in lieu of any and all other rights and remedies any such Person otherwise may have had) of Purchaser or any of its Affiliates under, arising out of or resulting from or incurred in connection with this Agreement shall be the indemnification provisions set forth in this Article 9.
ARTICLE
10.
MISCELLANEOUS
10.1. Expenses.
(a) Subject to paragraph (b) of this Section 10.1, each Party hereto shall bear its or his own expenses with respect to the transactions contemplated by this Agreement.
(b) If attorneys’ fees or other costs are incurred to secure performance of any obligations hereunder, or to establish damages for the breach thereof or to obtain any other appropriate relief, whether by way of prosecution or defense, the Prevailing Party will be entitled to recover reasonable attorneys’ fees and costs incurred in connection therewith. A party will be considered the “Prevailing Party” if: (i) it initiated the litigation and substantially obtained the relief it sought, either through a judgment or the losing party’s voluntary action before trial or judgment; (ii) the other party withdraws its action without substantially obtaining the relief it sought; or (iii) it did not initiate the litigation and judgment is entered into for any party, but without substantially granting the relief sought by the initiating party or granting more substantial relief to the non-initiating party with respect to any counterclaim asserted by the non-initiating party in connection with such litigation.
59
10.2. Amendment. This Agreement may be amended, modified or supplemented only in writing signed by each of the Parties hereto.
10.3. Notices. Any written notice to be given hereunder shall be given in writing and shall be deemed given: (a) when received if given in person, (b) on the date of transmission (upon confirmation of receipt) if sent by electronic mail during normal business hours, (c) three days after being deposited in the U.S. mail, certified or registered mail, postage prepaid, and (d) if sent by an internationally recognized overnight delivery service, the second day following the date given to such overnight delivery service (specified for overnight delivery). All notices shall be addressed as follows (or at such other address for a Party as shall be specified by like notice):
If to the Seller Parties, addressed as follows:
Anthony L. Wood, Jr.
c/o Diamond Interests Group, LLC
110 Peachtree Industrial Boulevard
Sugar Hill, Georgia 30518
Email: [email protected]
with a copy to:
Miller & Martin PLLC
Regions Plaza Suite 2100
1180 West Peachtree Street, N.W.
Atlanta, Georgia, 30309
Attention: A. Josef DeLisle, Esq.
Email: [email protected]
If to the Purchaser Parties, addressed as follows:
Cardinal Civil Contracting Holdings, LLC
100 E. Six Forks Rd., Suite 300
Raleigh, NC 27609
Attention: Mike Rowe
Email: [email protected]
with a copy to:
Manning Fulton & Skinner, PA
3605 Glenwood Ave., Suite 500
Raleigh, North Carolina 27612
Attention: Thomas I. Lyon, Esq.
Email: [email protected]
60
and
Willkie Farr & Gallagher LLP
300 North LaSalle Street
Chicago, Illinois 60654
Attention: Edward S. Best, Esq.
Email: [email protected]
10.4. Waivers. Subject to the limitations contained in this Agreement, the failure of a Party to require performance of any provision hereof shall not affect the Party’s right at a later time to enforce the same. No waiver by a Party of any term, covenant, representation or warranty contained herein shall be effective unless in writing. No such waiver in any one instance shall be deemed a further or continuing waiver of any such term, covenant, representation or warranty in any other instance.
10.5. Counterparts. This Agreement may be executed and delivered in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart. This Agreement, each Transaction Document, and any signature page thereto may be executed and delivered via electronic mail (including PDF, DocuSign, etc.) or other electronic transmission method, and any such agreement or signature page so executed and delivered will be deemed to have been duly and validly executed and delivered and be valid and effective for all purposes.
10.6. Applicable Law; Jurisdiction. This Agreement shall be governed by and construed and enforced in accordance with the internal laws (both substantive and procedural), and not the laws of conflicts, of the State of Delaware. All Actions arising out of or relating to this Agreement shall be heard and determined exclusively in any state or federal court located in Wilmington, Delaware. Consistent with the preceding sentence, the Parties hereto hereby (a) submit to the exclusive jurisdiction of any federal or state court sitting in the State of Delaware for the purpose of any Action arising out of or relating to this Agreement brought by any Party hereto and (b) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated by this Agreement may not be enforced in or by any of the above-named courts.
10.7. Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, successors and permitted assigns. This Agreement may not be transferred, assigned, pledged or hypothecated by any Party hereto without the express written consent of the other Parties hereto; provided, that Purchaser may assign its rights, interests and obligations hereunder (a) to any direct or indirect wholly owned subsidiary of Purchaser or to any Affiliate of which Purchaser is a direct or indirect wholly owned subsidiary and (b) as collateral for the purpose of securing any financing of the transactions contemplated hereby; provided, further, that if Purchaser makes any assignment referred to in this Section 10.7, Purchaser shall remain liable under this Agreement.
61
10.8. No Third Party Beneficiaries. Except as expressly set forth herein, this Agreement is solely for the benefit of the Parties hereto and those Persons (or categories of Persons) specifically described herein, and no provision of this Agreement shall be deemed to confer any remedy, claim or right upon any third party.
10.9. Disclosure Schedules. Matters reflected in the Schedules to Articles 3 and 4 are not necessarily limited to matters required by this Agreement to be disclosed. Neither the specification of any dollar amount in any representation or warranty contained in this Agreement nor the inclusion of any specific item in any Schedule hereto is intended to imply that such amount, or higher or lower amounts, or the item so included or other items, are or are not material or could or could not reasonably be expected to have a Material Adverse Effect, and no Party shall use the fact of the setting forth of any such amount or the inclusion of any such item in any dispute or controversy between or among the Parties as to whether any obligation, item or matter not described herein or included in any Schedule is or is not material or could or could not reasonably be expected to have a Material Adverse Effect for purposes of this Agreement. Unless this Agreement specifically provides otherwise, neither the specification of any item or matter in any representation, warranty or Schedule contained in this Agreement nor the inclusion of any specific item in any Schedule hereto is intended to imply that such item or matter, or other items or matters, are or are not in the Ordinary Course of Business, and no Party shall use the fact of the setting forth or the inclusion of any such item or matter in any dispute or controversy between or among the Parties as to whether any obligation, item or matter not described herein or included in any Schedule is or is not in the Ordinary Course of Business for purposes of this Agreement.
10.10. Incorporation. The respective Schedules and Exhibits attached hereto and referred to herein are incorporated into and form a part of this Agreement.
10.11. Complete Agreement. This Agreement, the Schedules and Exhibits attached hereto, and the Transaction Documents constitute the complete agreement of the Parties with respect to the subject matter hereof and supersede all prior discussions, negotiations and understandings.
10.12. Currency. All references to “dollars” or “$” in this Agreement shall mean United States Dollars.
10.13. Waiver of Conflict. The Parties acknowledge that M&M, as counsel for the Company, has in the past performed, is now performing and may continue to perform legal services for Seller Parties and/or the Company, and that, upon the Closing, M&M’s representation of the Company shall terminate. Accordingly, the Parties hereto hereby acknowledge that M&M may continue to represent Seller Parties (and, if applicable, other Persons) in any and all matters whether or not related to this Agreement or the transactions contemplated hereby, including any matters that are or may become adverse to the interests of the Company, including claims arising under this Agreement. Effective upon the Closing, Purchaser and Seller Parties, on their own behalf and on behalf of the Company, hereby waive any actual or potential conflict of interest that exists or that may exist (including any conflict that exists or may arise by virtue of M&M’s possession of any information concerning the Company) as a result of M&M’s representation of Seller Parties or any other Person in any matter, including any matter that is or may become adverse to the interests of the Company, including any claims arising under this Agreement.
10.14. Waiver of Jury Trial. NO PARTY TO THIS AGREEMENT OR ANY ASSIGNEE, SUCCESSOR, HEIR OR PERSONAL REPRESENTATIVE OF A PARTY SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION PROCEDURE BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER AGREEMENTS OR THE DEALINGS OR THE RELATIONSHIP BETWEEN THE PARTIES. NO PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION, IN WHICH A JURY TRIAL HAS BEEN WAIVED, WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS SECTION 10.14 HAVE BEEN FULLY DISCUSSED BY THE PARTIES HERETO, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HERETO HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY HERETO THAT THE PROVISIONS OF THIS SECTION 10.14 WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
10.15. Intentionally Omitted.
10.16. Non-Recourse. This Agreement may only be enforced against, and any claim or cause of action based upon, arising out of or related to this Agreement or the transactions contemplated hereby may only be brought against, the entities that are expressly named as Parties herein, and then only with respect to the specific obligations set forth herein with respect to such named Party. No other Person (including any past, present or future director, officer, employee, incorporator, member, manager, partner, stockholder, Affiliate, agent, attorney, advisor or other representative of Seller Parties, the Company, or Affiliate of any of the foregoing) shall have any liability for any obligations or liabilities of Seller Parties under this Agreement or for any claim, action, suit or other legal proceeding based on, in respect of or by reasons of the transactions contemplated hereby, except to the extent such Person executes a Transaction Document in its individual capacity.
[SIGNATURE PAGES TO FOLLOW]
62
IN WITNESS WHEREOF, the Parties hereto have caused this Membership Interests Purchase and Contribution Agreement to be executed and delivered on the date first set forth above.
PURCHASER: | ||
| CARDINAL CIVIL CONTRACTING HOLDINGS LLC | ||
| By: | /s/ Jeremy S. Spivey | |
| Name: | Jeremy S. Spivey | |
| Title: | Authorized Representative | |
| PUBCO: | ||
| Cardinal Infrastructure Group, Inc. | ||
| By: | /s/ Jeremy S. Spivey | |
| Name: | Jeremy S. Spivey | |
| Title: | Authorized Representative | |
[SIGNATURE PAGE TO MEMBERSHIP INTERESTS PURCHASE AND CONTRIBUTION AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be executed and delivered on the date first set forth above.
| COMPANY: | ||
| A.L. GRADING CONTRACTORS, LLC | ||
| By: | /s/ Benjamin A. Wood | |
| Name: | Benjamin A. Wood | |
| Title: | Authorized Representative | |
| SELLER: | ||
| DIAMOND INTERESTS GROUP, LLC | ||
| By: | /s/ Anthony L. Wood, Jr. | |
| Name: | Anthony L. Wood, Jr. | |
| Title: | Authorized Representative | |
| SELLER OWNERS: | ||
| /s/ Anthony L. Wood, Jr. | ||
| Anthony L. Wood, Jr., an individual | ||
| /s/ Benjamin A. Wood | ||
| Benjamin A. Wood, an individual | ||
[SIGNATURE PAGE TO MEMBERSHIP INTERESTS PURCHASE AND CONTRIBUTION AGREEMENT]
Exhibit 10.4
TAX BENEFIT AGREEMENT
This TAX BENEFIT AGREEMENT (this “Agreement”), is dated as of February 18, 2026, and is among Cardinal Infrastructure Group Inc., a Delaware corporation (including any successor corporation, “PubCo”), Cardinal Civil Contracting Holdings, LLC, a Delaware limited liability company and its subsidiaries (“OpCo”), and Diamond Interests Group, LLC, a Florida limited liability company (“Seller”).
RECITALS
WHEREAS, the parties hereto have entered into that certain Membership Interest Purchase and Contribution Agreement, dated effective as of the date hereof (the “MIPA”), as a result of which the Seller (i) contributed to OpCo certain membership interests in A.L. Grading Contractors, LLC (the “Company”) in exchange for certain equity interests in OpCo in a tax-deferred transaction governed by Section 721(a) of the Code (the “Tax-Deferred Transaction”), and (ii) sold certain membership interests in the Company to OpCo in exchange for Class B common stock of PubCo and cash from OpCo in a transaction treated as taxable sale of a portion of the assets of the Company under Section 1001 of the Code (the “Taxable Transaction,” and together with the Tax-Deferred Transaction, the “Transaction”);
WHEREAS, PubCo is the sole managing member of OpCo, which is classified as a partnership for U.S. federal income Tax purposes;
WHEREAS, as a result of the Transaction, PubCo will be entitled to tax benefits relating to an undivided interests in each of the assets of the Company deemed purchased in the Taxable Transaction for U.S. federal income tax purposes;
WHEREAS, PubCo’s allocable share of the income, gain, loss, expense and other Tax items of OpCo may be affected by the (i) Basis Adjustments (as defined herein) and (ii) Imputed Interest (as defined herein) (collectively, the “Tax Attributes”); and
WHEREAS, the parties to this Agreement desire to provide for certain payments and make certain arrangements with respect to the notional effect of the Tax Attributes on the liability of PubCo for Taxes.
NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements set forth herein, and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. As used in this Agreement, the terms set forth in this Article I shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined).
“Affiliate” means, with respect 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 first Person.
“Agreed Rate” means a per annum rate of SOFR plus 100 basis points.
“Agreement” has the meaning set forth in the Preamble to this Agreement.
“Amended Schedule” has the meaning set forth in Section 2.2(b) of this Agreement.
“Basis Adjustment” means the adjustment to the Tax basis of a Reference Asset as a result of the Taxable Transaction.
“Basis Schedule” has the meaning set forth in Section 2.2 of this Agreement.
“Beneficial Owner” means, with respect to any security, a Person who directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares: (i) voting power, which includes the power to vote, or to direct the voting of, such security; and/or (ii) investment power, which includes the power to dispose of, or to direct the disposition of, such security. The term “Beneficial Ownership” shall have the correlative meaning.
“Blended Rate” means, with respect to any Taxable Year, the sum of the effective rates of Tax (for the avoidance of doubt, taking into account any U.S. federal benefit of the state or local tax deduction) imposed on the aggregate net income of PubCo in each state or local jurisdiction in which PubCo files Tax Returns for such Taxable Year, with the effective rate in any state or local jurisdiction being equal to the product of (i) the apportionment factor on the income or franchise PubCo Return in such jurisdiction for such Taxable Year and (ii) the maximum applicable corporate Tax rate in effect in such jurisdiction in such Taxable Year. As an illustration of the calculation of the Blended Rate for a Taxable Year, if PubCo solely files Tax Returns in State 1 and State 2 in a Taxable Year, the maximum applicable corporate Tax rates in effect in such states in such Taxable Year are 6.5% and 5.5%, respectively, and the apportionment factors for such states in such Taxable Year are 55% and 45% respectively, then the Blended Rate for such Taxable Year is equal to 6.05% (i.e., 6.5% multiplied by 55% plus 5.5% multiplied by 45%).
“Board” means the Board of Directors of PubCo.
“Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York are authorized or required by law to close.
“Change of Control” means the occurrence of any of the following events:
(i) any Person or any group of Persons acting together that would constitute a “group” for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended or any successor provisions thereto (excluding (a) a corporation or other entity owned, directly or indirectly, by the stockholders of PubCo in substantially the same proportions as their ownership of stock of PubCo or (b) a Person or group of Persons in which one or more Affiliates of Permitted Investors, directly or indirectly hold Beneficial Ownership of securities representing more than 50% of the total voting power in such Person or held by such group) is or becomes the Beneficial Owner, directly or indirectly, of securities of PubCo representing more than 50% of the combined voting power of PubCo’s then outstanding voting securities; or
2
(ii) the following individuals cease for any reason to constitute a majority of the number of directors of PubCo then serving: individuals who, on the IPO Date, constitute the Board and any new director whose appointment or election by the Board or nomination for election by PubCo’s stockholders was approved or recommended by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors on the IPO Date or whose appointment, election or nomination for election was previously so approved or recommended by the directors referred to in this clause (ii); or
(iii) there is consummated a merger or consolidation of PubCo with any other corporation or other entity, and, immediately after the consummation of such merger or consolidation, either (x) the Board immediately prior to the merger or consolidation does not constitute at least a majority of the board of directors of the company surviving the merger or, if the surviving company is a Subsidiary, the ultimate parent thereof, or (y) the voting securities of PubCo immediately prior to such merger or consolidation do not continue to represent or are not converted into more than 50% of the combined voting power of the then outstanding voting securities of the Person resulting from such merger or consolidation or, if the surviving company is a Subsidiary, the ultimate parent thereof; or
(iv) the stockholders of PubCo approve a plan of complete liquidation or dissolution of PubCo or there is consummated an agreement or series of related agreements for the sale, lease or other disposition, directly or indirectly, by PubCo of all or substantially all of PubCo’s assets, other than such sale or other disposition by PubCo of all or substantially all of PubCo’s assets to an entity at least 50% of the combined voting power of the voting securities of which are owned by stockholders of PubCo in substantially the same proportions as their ownership of PubCo immediately prior to such sale; or
(v) PubCo ceases to be the sole managing member of OpCo.
Notwithstanding the foregoing, except with respect to clause (ii) and clause (iii)(x) above, a “Change of Control” shall not be deemed to have occurred by virtue of the consummation of any transaction or series of integrated transactions immediately following which the record holders of the shares of PubCo immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in, and voting control over, and own substantially all of the shares of, an entity which owns, directly or indirectly, all or substantially all of the assets of PubCo immediately following such transaction or series of transactions.
“Code” means the Internal Revenue Code of 1986, as amended.
“Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.
“Cumulative Net Realized Tax Benefit” for a Taxable Year means the cumulative amount of Realized Tax Benefits for all Taxable Years of PubCo, up to and including such Taxable Year, reduced, but not below zero, by the cumulative amount of Realized Tax Detriment for the same period. The Realized Tax Benefit and Realized Tax Detriment for each Taxable Year shall be determined based on the most recent Tax Benefit Schedules or Amended Schedules, if any, in existence at the time of such calculation; provided, that, for the avoidance of doubt, the computation of the Cumulative Net Realized Tax Benefit shall be adjusted to reflect any applicable Determination with respect to any Realized Tax Benefits and/or Realized Tax Detriments.
3
“Default Rate” means a per annum rate of SOFR plus 500 basis points.
“Determination” shall have the meaning ascribed to such term in Section 1313(a) of the Code or similar provision of state, foreign or local Tax law, as applicable, and shall include any other event (including the execution of IRS Form 870-AD) that finally and conclusively establishes the amount of any liability for Tax.
“Early Termination Date” means the date of an Early Termination Notice for purposes of determining the Early Termination Payment.
“Early Termination Effective Date” means the date on which an Early Termination Schedule becomes binding pursuant to Section 4.2.
“Early Termination Notice” has the meaning set forth in Section 4.2 of this Agreement.
“Early Termination Payment” has the meaning set forth in Section 4.3(b) of this Agreement.
“Early Termination Rate” means the lesser of (i) 6.5% per annum, compounded annually, and (ii) SOFR plus 100 basis points.
“Early Termination Schedule” has the meaning set forth in Section 4.2 of this Agreement.
“Expert” has the meaning set forth in Section 7.9 of this Agreement.
“Future TRAs” has the meaning set forth in Section 5.1 of this Agreement.
“Hypothetical Tax Liability” means, with respect to any Taxable Year, the liability for U.S. federal income Taxes of PubCo using the same methods, elections, conventions and similar practices used on the relevant IRS Form 1120 (or any successor form) but, in the determination of the liability, (a) using the Non-Stepped Up Tax Basis as reflected on the Basis Schedule including amendments thereto for the Taxable Year, and (b) excluding any deduction attributable to Imputed Interest attributable to any payment made under this Agreement for the Taxable Year. For the avoidance of doubt, Hypothetical Tax Liability shall be determined without taking into account the carryover or carryback of any Tax item (or portions thereof) that is attributable to a Tax Attribute as applicable. For the avoidance of doubt, the basis of the Reference Assets in the aggregate for purposes of determining the Hypothetical Tax Liability can never be less than zero.
“ICC” has the meaning set forth in Section 7.9 of this Agreement.
“Imputed Interest” shall mean any interest imputed under Sections 1272, 1274 or 483 or other provision of the Code and any similar provision of state and local Tax law with respect to OpCo’s payment obligations under this Agreement.
“Independent Directors” means the members of the Board who are “independent” under applicable laws and the standards of the principal U.S. securities exchange on which the Class A Shares are traded or quoted.
4
“Interest Amount” has the meaning set forth in Section 3.1(b) of this Agreement.
“IRS” means the U.S. Internal Revenue Service.
“Material Breach” has the meaning set forth in Section 4.1(b) of this Agreement.
“Material Objection Notice” has the meaning set forth in Section 4.2 of this Agreement.
“MIPA” has the meaning set forth in the Recitals of this Agreement.
“Net Tax Benefit” has the meaning set forth in Section 3.1(b) of this Agreement.
“Non-Stepped Up Tax Basis” means, with respect to any Reference Asset immediately following the Taxable Transaction, the Tax basis that such asset would have had at such time if no Basis Adjustments had been made.
“Notional Tax Liability” means, with respect to any Taxable Year, the product of (i) the net taxable income, for U.S. federal income Tax purposes, of PubCo, assuming, solely for the purposes of this definition, that Pubco had been allocated 80% of OpCo’s total amortization and depreciation deductions for the Taxable Year in respect of any Basis Adjustments, irrespective of actual allocation(s), and (ii) the Blended Rate.
“Objection Notice” has the meaning set forth in Section 2.2(a) of this Agreement.
“OpCo” has the meaning set forth in the Preamble to this Agreement.
“OpCo Agreement” means, with respect to OpCo, the Third Amended and Restated Limited Liability Company Agreement of OpCo, dated on or about the date hereof, as such agreement may be further amended, restated, supplemented and/or otherwise modified from time to time.
“Payment Date” means any date on which a payment is required to be made pursuant to this Agreement.
“Permitted Investors” means any of the individuals or entities listed on Schedule I of the Tax Receivable Agreement and any of their Affiliates.
“Person” means any individual, corporation, firm, partnership, joint venture, limited liability company, estate, trust, business association, organization, governmental entity or other entity.
“PubCo” has the meaning set forth in the Preamble to this Agreement.
“PubCo Return” means the U.S. federal and/or state and/or local Tax Return, as applicable, of PubCo filed with respect to Taxes of any Taxable Year.
“Realized Tax Benefit” means, for a Taxable Year, the excess, if any, of the Hypothetical Tax Liability over the Notional Tax Liability. If all or a portion of the Notional Tax Liability for the Taxable Year arises as a result of an audit by a Taxing Authority of any Taxable Year, such liability shall not be included in determining the Realized Tax Benefit unless and until there has been a Determination.
5
“Realized Tax Detriment” means, for a Taxable Year, the excess, if any, of the Notional Tax Liability over the Hypothetical Tax Liability. If all or a portion of the Notional Tax Liability for the Taxable Year arises as a result of an audit by a Taxing Authority of any Taxable Year, such liability shall not be included in determining the Realized Tax Detriment unless and until there has been a Determination.
“Reconciliation Dispute” has the meaning set forth in Section 7.9 of this Agreement.
“Reconciliation Procedures” has the meaning set forth in Section 2.2(a) of this Agreement.
“Reference Asset” means an undivided interest in each of the assets which are held by OpCo, or by any of its direct or indirect Subsidiaries treated as a partnership or disregarded entity (but only if such indirect Subsidiaries are held only through Subsidiaries treated as partnerships or disregarded entities) for purposes of the applicable Tax, deemed purchased in the Taxable Transaction. A Reference Asset also includes any asset that is “substituted basis property” under Section 7701(a)(42) of the Code with respect to a Reference Asset.
“Schedule” means any of the following: (i) a Basis Schedule; (ii) a Tax Benefit Schedule (including an Amended Schedule, if any); or (iii) the Early Termination Schedule.
“Seller” has the meaning set forth in the Preamble to this Agreement.
“Senior Obligations” has the meaning set forth in Section 5.1 of this Agreement.
“SOFR” means for each month (or portion thereof) during any period, an interest rate per annum equal to the secured overnight financing rate, on the date two (2) Business Days prior to the first day of such month, as reported by the Wall Street Journal; provided, that at no time shall SOFR be less than 0%. In the event PubCo determines that SOFR ceases to be a widely recognized benchmark rate, PubCo and Seller shall jointly select an alternate benchmark rate (the “Replacement Rate”), in which case, the Replacement Rate shall, subject to the next two sentences, replace SOFR for all purposes under this Agreement. In connection with the establishment and application of the Replacement Rate, this Agreement shall be amended solely with the consent of PubCo and Seller , as may be necessary or appropriate, in the reasonable judgment of PubCo and Seller, to effect the provisions of this section. The Replacement Rate shall be applied in a manner consistent with market practice; provided that, to the extent such market practice is not administratively feasible for OpCo, such Replacement Rate shall be applied as otherwise reasonably determined by PubCo and Seller.
“Subsidiaries” means, with respect to any Person, as of any date of determination, any other Person as to which such Person, owns, directly or indirectly, or otherwise controls more than 50% of the voting power or other similar interests or the sole general partner interest or managing member or similar interest of such Person.
“Tax” or “Taxes” means any and all U.S. federal, state, local and foreign taxes, assessments or similar charges that are based on or measured with respect to net income or profits, including, for the avoidance of doubt, any corporate alternative minimum tax, and any interest related to any such Taxes.
6
“Tax Attributes” has the meaning set forth in the Recitals of this Agreement.
“Tax Benefit Payment” has the meaning set forth in Section 3.1(b) of this Agreement.
“Tax Benefit Schedule” has the meaning set forth in Section 2.3(a) of this Agreement.
“Tax Receivable Agreement” means that certain Tax Receivable Agreement by and among PubCo, Opco, and certain persons named therein dated as of December 9, 2025.
“Tax Return” means any return, declaration, report or similar statement filed or required to be filed with respect to Taxes (including any attached schedules), including, without limitation, any information return, claim for refund, amended return and declaration of estimated Tax.
“Taxable Year” means a taxable year of PubCo as defined in Section 441(b) of the Code or comparable section of state or local Tax law, as applicable (and, therefore, for the avoidance of doubt, may include a period of less than twelve (12) months for which a Tax Return is made), ending on or after the IPO Date.
“Taxing Authority” means any domestic, federal, national, state, county or municipal or other local government, any subdivision, agency, commission or authority thereof, or any quasi-governmental body exercising any taxing authority or any other authority exercising Tax regulatory authority.
“Transaction” has the meaning set forth in the Recitals of this Agreement.
“Tax-Deferred Transaction” has the meaning set forth in the Recitals of this Agreement.
“Taxable Transaction” has the meaning set forth in the Recitals of this Agreement.
“Treasury Regulations” means the final, temporary and proposed regulations under the Code promulgated from time to time (including corresponding provisions and succeeding provisions) as in effect for the relevant taxable period.
“Valuation Assumptions” shall mean, as of an Early Termination Date, the assumptions that in each Taxable Year ending on or after such Early Termination Date:
(i) PubCo will have taxable income sufficient to fully utilize the Tax items arising from the Tax Attributes (other than any items addressed in clause (ii) below) during such Taxable Year or future Taxable Years (including, for the avoidance of doubt, Basis Adjustments and Imputed Interest that would result from future payments made under this Agreement that would be paid in accordance with the Valuation Assumptions) in which such deductions would become available;
(ii) loss carryovers generated by deductions arising from any Tax Attributes that are available as of the date of such Early Termination Date will be used by the PubCo on a pro rata basis from the date of such Early Termination Date through the earlier of (x) the scheduled expiration date under applicable Tax law of such loss carryovers or (y) the fifteenth (15th) anniversary of the Early Termination Date;
7
(iii) the U.S. federal, state and local income Tax rates that will be in effect for each such Taxable Year will be those specified for each such Taxable Year by the Code and other law as in effect on the Early Termination Date and the Blended Rate will be calculated based on such rates and the apportionment factor applicable in the prior Taxable Year;
(iv) any non-amortizable assets (other than equity interest in any subsidiary that is treated as an association taxable as a corporation for U.S. federal income Tax purposes) will be disposed of on the fifteenth (15th) anniversary of the date of this Agreement and any cash equivalents will be disposed of twelve (12) months following the Early Termination Date; provided, that in the event of a Change of Control, such non-amortizable assets shall be deemed disposed of at the time of sale (if applicable) of the relevant asset in the Change of Control (if earlier than such fifteenth (15th) anniversary) (other than equity interest in any subsidiary that is treated as an association taxable as a corporation for U.S. federal income Tax purposes);
(v) with respect to Taxable Years where the Payment Date has passed, any unpaid Tax Benefit Payments and any applicable interest will be paid on the Early Termination Date at the Default Rate; and
(vi) each Tax Benefit Payment for the relevant Taxable Year will be due and payable and satisfied on the due date (without extensions) under applicable law as of the Early Termination Effective Date for filing of IRS Form 1120 (or any successor form) of PubCo.
ARTICLE II
DETERMINATION OF CERTAIN REALIZED TAX BENEFIT
SECTION 2.1 Basis and Tax Benefit Schedules.
(a) Basis Schedule. Within one hundred and eighty (180) calendar days after the due date (including extensions) of IRS Form 1120 (or any successor form) of PubCo for each relevant Taxable Year, PubCo shall deliver to Seller a schedule (the “Basis Schedule”) that shows, in reasonable detail necessary to perform the calculations required by this Agreement, (i) the Basis Adjustment with respect to the Reference Assets calculated in the aggregate, (ii) the Non-Stepped Up Tax Basis of the Reference Assets as immediately prior to the Transaction, (iii) the period (or periods) over which the Reference Assets are amortizable and/or depreciable and (iv) the period (or periods) over which each Basis Adjustment is amortizable and/or depreciable. A Basis Schedule will become final and binding on the parties pursuant to the procedures set forth in Section 2.2(a) and may be amended by the parties pursuant to the procedures set forth in Section 2.2(b) (subject to the procedures set forth in Section 2.2(b)). All incremental out-of-pocket costs and expenses incurred in connection with the provision and preparation of the Basis Schedules and Tax Benefit Schedules for Seller in compliance with this Agreement shall be borne by Seller.
(b) Tax Benefit Schedule. Within one hundred and eighty (180) calendar days after the due date (including extensions) of IRS Form 1120 (or any successor form) of PubCo for any Taxable Year in which there is a Realized Tax Benefit or a Realized Tax Detriment, PubCo shall provide to Seller a schedule showing, in reasonable detail, the calculation of the Realized Tax Benefit and Tax Benefit Payment or the Realized Tax Detriment, as applicable, for such Taxable Year (a “Tax Benefit Schedule”). Each Tax Benefit Schedule will become final as provided in Section 2.2(a) and may be amended as provided in Section 2.2(b) (subject to the procedures set forth in Section 2.2(b)).
8
(c) Applicable Principles. The Realized Tax Benefit (or the Realized Tax Detriment) for each Taxable Year is intended to measure a notional decrease (or increase) in the liability for Taxes of PubCo for such Taxable Year attributable to the Tax Attributes, determined using a “with and without” methodology, assuming an 80% allocation to PubCo of OpCo’s amortization and depreciation deductions in respect of any Basis Adjustments. For the avoidance of doubt, for purposes of calculating the Realized Tax Benefit (or the Realized Tax Detriment) for each Taxable Year, any deductions and losses attributable to the Tax Attributes (assuming an 80% allocation to PubCo of OpCo’s amortization and depreciation deductions in respect of any Basis Adjustments) shall be deemed used after all tax attributes covered by the Tax Receivable Agreement. Carryovers or carrybacks of any Tax item attributable to any of the Tax Attributes shall be considered to be subject to the rules of the Code and the Treasury Regulations or the appropriate provisions of U.S. Tax law, as applicable, governing the use, limitation and expiration of carryovers or carrybacks of the relevant type. If a carryover or carryback of any Tax item includes a portion that is attributable to any Tax Attribute and another portion that is not, such portions shall be considered to be used in accordance with the “with and without” methodology. The parties agree that (A) all Tax Benefit Payments (other than Imputed Interest thereon) attributable to the Basis Adjustments will be treated as subsequent upward purchase price adjustments with respect to an undivided interest in each of the assets of the Company deemed purchased in the Taxable Transaction that have the effect of creating additional Basis Adjustments to the Reference Assets for OpCo in the year of payment, (B) as a result, any additional Basis Adjustments will be incorporated into the current year calculation and into future year calculations, as appropriate, and (C) the Notional Tax Liability will take into account the deduction of the portion of the Tax Benefit Payment that must be accounted for as Imputed Interest.
SECTION 2.2 Procedures, Amendments.
(a) Procedure. Every time PubCo delivers to Seller an applicable Schedule under this Agreement, including any Amended Schedule, PubCo shall also (x) deliver to Seller supporting schedules and work papers, as determined by PubCo or as reasonably requested by Seller, providing reasonable detail regarding data and calculations that were relevant for purposes of preparing such Schedule and (y) allow Seller reasonable access at no cost to the appropriate representatives at PubCo, as determined by PubCo or as reasonably requested by Seller, in connection with a review of such Schedule. Without limiting the generality of the preceding sentence, PubCo shall ensure that any Tax Benefit Schedule that is delivered to Seller, along with any supporting schedules and work papers, provides a reasonably detailed presentation of the calculation of the Notional Tax Liability and the Hypothetical Tax Liability and identifies any material assumptions or operating procedures or principles that were used for purposes of such calculations. An applicable Schedule or amendment thereto shall become final and binding on all parties thirty (30) calendar days from the date on which Seller is treated as having received the applicable Schedule or amendment thereto under Section 7.1 unless Seller (i) within thirty (30) calendar days from such date provides PubCo with written notice of a material objection to such Schedule (“Objection Notice”) made in good faith or (ii) provides a written waiver of such right of any Objection Notice within the period described in clause (i) above, in which case such Schedule or amendment thereto becomes binding on the date the waiver is received by PubCo. If PubCo and Seller, for any reason, are unable to successfully resolve the issues raised in the Objection Notice within thirty (30) calendar days after receipt by PubCo of an Objection Notice, PubCo and Seller shall employ the reconciliation procedures as described in Section 7.9 of this Agreement (the “Reconciliation Procedures”).
9
(b) Amended Schedule. The applicable Schedule for any Taxable Year may be amended from time to time by PubCo (i) in connection with a Determination affecting such Schedule, (ii) to correct inaccuracies in the Schedule identified as a result of the receipt of additional information relating to a Taxable Year after the date the Schedule was provided to Seller, (iii) to comply with an Expert’s determination under the Reconciliation Procedures, (iv) to reflect a change in the Realized Tax Benefit or the Realized Tax Detriment for such Taxable Year attributable to a carryback or carryforward of a loss or other Tax item to such Taxable Year, (v) to reflect a change in the Realized Tax Benefit or the Realized Tax Detriment for such Taxable Year attributable to an amended Tax Return filed for such Taxable Year or (vi) to adjust the Basis Schedule to take into account payments made pursuant to this Agreement (any such Schedule, an “Amended Schedule”). PubCo shall provide an Amended Schedule to Seller when PubCo delivers the Basis Schedule for the following Taxable Year.
ARTICLE III
TAX BENEFIT PAYMENTS
SECTION 3.1 Payments.
(a) Payments. Within five (5) Business Days after a Tax Benefit Schedule delivered to Seller becomes final in accordance with Section 2.2(a) and Section 7.9, if applicable, OpCo shall pay Seller for such Taxable Year the Tax Benefit Payment determined pursuant to Section 3.1(b). Each such Tax Benefit Payment shall be made by wire transfer of immediately available funds to the bank account previously designated by Seller to OpCo or as otherwise agreed by OpCo and Seller. For the avoidance of doubt, no Tax Benefit Payment shall be made in respect of estimated Tax payments, including, without limitation, U.S. federal estimated income Tax payments. Seller shall not be required to make a payment or return a payment to OpCo in respect of any portion of any Tax Benefit Payment previously paid to Seller (including any portion of any Early Termination Payment); provided, however, that for the avoidance of doubt, if OpCo makes a payment to Seller under this Agreement in an amount that exceeds the amount that should have been paid to Seller (including after taking into account any Determination that would have changed the Net Tax Benefit or any other calculation under this Agreement in any prior Taxable Year), then the amount of such excess shall offset and reduce, dollar-for-dollar, any future payments payable to Seller under this Agreement.
(b) A “Tax Benefit Payment” for a Taxable Year means an amount, not less than zero, equal to the Net Tax Benefit and the Interest Amount with respect thereto. For the avoidance of doubt, for Tax purposes, the Interest Amount shall not be treated as interest, but instead, shall be treated as additional consideration for the undivided interests in the assets of the Company deemed purchased in the Taxable Transaction, unless otherwise required by law. The “Net Tax Benefit” for a Taxable Year shall be an amount equal to the excess, if any, of 85% of the Cumulative Net Realized Tax Benefit as of the end of such Taxable Year, over the total amount of payments previously made under the first sentence of Section 3.1(a) (excluding payments attributable to Interest Amounts). The “Interest Amount” shall equal the interest on the Net Tax Benefit calculated at the Agreed Rate from the due date (without extensions) for filing IRS Form 1120 (or any successor form) of PubCo with respect to Taxes for such Taxable Year until the payment date under Section 3.1(a).
SECTION 3.2 No Duplicative Payments. It is intended that the provisions of this Agreement will not result in duplicative payment of any amount (including interest) required under this Agreement. The provisions of this Agreement shall be construed in the appropriate manner to ensure such intentions are realized.
10
ARTICLE IV
TERMINATION
SECTION 4.1 Early Termination of Agreement; Breach of Agreement.
(a) OpCo may (with approval of a majority of the Independent Directors) terminate this Agreement with respect to all amounts payable to Seller at any time by paying to Seller the Early Termination Payment; provided, however, that this Agreement shall only terminate with respect to Seller upon the receipt of the Early Termination Payment by Seller, and provided, further, that OpCo may withdraw any notice to execute its termination rights under this Section 4.1(a) prior to the time at which any Early Termination Payment has been paid. Upon payment of the Early Termination Payment by OpCo, OpCo shall have no further payment obligations under this Agreement with respect to Seller, other than for any (a) Tax Benefit Payments due and payable and that remain unpaid as of the Early Termination Notice and (b) Tax Benefit Payment due for the Taxable Year ending with or including the date of the Early Termination Notice (except to the extent that the amount described in clause (b) is included in the Early Termination Payment).
(b) In the event that (1) OpCo or PubCo breaches any of its material obligations under this Agreement, whether as a result of failure to make any payment when due, failure to honor any other material obligation required hereunder or by operation of law as a result of the rejection of this Agreement in a case commenced under the Bankruptcy Code or otherwise, unless otherwise waived in writing by Seller (any such breach to the extent not waived, a “Material Breach”) or (2)(A) PubCo shall commence any case, proceeding or other action (i) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate a bankruptcy or insolvency, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts or (ii) seeking an appointment of a receiver, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets, or it shall make a general assignment for the benefit of creditors or (B) there shall be commenced against PubCo any case, proceeding or other action of the nature referred to in clause (A) above that remains undismissed or undischarged for a period of sixty (60) calendar days, all obligations hereunder shall be automatically accelerated and shall be immediately due and payable, and such obligations shall be calculated as if an Early Termination Notice had been delivered on the date of such breach and shall include, but not be limited to, (x) the Early Termination Payments calculated as if an Early Termination Notice had been delivered on the date of a breach, (y) any Tax Benefit Payment due and payable and that remains unpaid as of the date of a breach, and (z) any Tax Benefit Payment due for the Taxable Year ending with or including the date of a breach; provided, that procedures similar to the procedures of Section 4.2 shall apply with respect to the determination of the amount payable by OpCo pursuant to this sentence. Notwithstanding the foregoing, in the event that OpCo or PubCo breaches this Agreement and such breach is a Material Breach, to the fullest extent permitted by applicable law, Seller shall be entitled to elect to receive the amounts set forth in clauses (x), (y) and (z) above or to seek specific performance of the terms hereof. The parties agree that the failure to make any payment due pursuant to this Agreement within sixty (60) calendar days of the date such payment is due shall be deemed to be a breach of a material obligation under this Agreement for all purposes of this Agreement, and that it will not be considered to be a breach of a material obligation under this Agreement to make a payment due pursuant to this Agreement within sixty (60) calendar days of the date such payment is due. Notwithstanding anything in this Agreement to the contrary, it shall not be a breach of a material obligation of this Agreement if OpCo fails to make any Tax Benefit Payment when due to the extent that OpCo has insufficient funds to make such payment and cannot take commercially reasonable efforts to obtain funds to make such payment; provided, that the interest provisions of Section 5.2 shall apply to such late payment (unless PubCo does not have sufficient funds to make such payment as a result of limitations imposed by any Senior Obligations, in which case Section 5.2 shall apply, but the Default Rate shall be replaced by the Agreed Rate). OpCo shall use commercially reasonable efforts to (1) obtain sufficient available funds for the purpose of making Tax Benefit Payments under this Agreement and (2) avoid entering into any agreements that could be reasonably anticipated to materially delay the timing of the making of any Tax Benefit Payments under this Agreement.
11
(c) In the event of a Change of Control, then all obligations hereunder shall be accelerated and such obligations shall be calculated as if an Early Termination Notice had been delivered on the date of such Change of Control and utilizing the Valuation Assumptions by substituting in each case the terms “the closing date of a Change of Control” in each place where the phrase “Early Termination Date” appears. Such obligations shall include (1) the Early Termination Payments calculated as if the Early Termination Date is the date of such Change of Control, (2) any Tax Benefit Payment due and payable and that remains unpaid as of the date of such Change of Control, and (3) any Tax Benefit Payment due for any Taxable Year ending prior to, with or including the date of such Change of Control (except to the extent any amounts described in clause (2) or (3) are included in the Early Termination Payment). For the avoidance of doubt, Sections 4.2 and 4.3 shall apply to a Change of Control, mutatis mutandis.
SECTION 4.2 Early Termination Notice. If OpCo chooses to exercise its right of early termination under Section 4.1(a) above, OpCo shall deliver to Seller notice of such intention to exercise such right (“Early Termination Notice”) and a schedule (the “Early Termination Schedule”) specifying OpCo’s intention to exercise such right under either clause (i) or (ii) thereof and showing in reasonable detail the calculation of the Early Termination Payment(s) due for Seller. An Early Termination Schedule shall become final and binding on all parties thirty (30) calendar days from the first date on which Seller is treated as having received such Early Termination Schedule or amendment thereto under Section 7.1 unless Seller (i) within thirty (30) calendar days after such date provides OpCo with notice of a material objection to such Schedule made in good faith (“Material Objection Notice”) or (ii) provides a written waiver of such right of a Material Objection Notice within the period described in clause (i) above, in which case such Schedule becomes binding on the date the waiver is received by OpCo. If OpCo and Seller, for any reason, are unable to successfully resolve the issues raised in such notice within thirty (30) calendar days after receipt by OpCo of the Material Objection Notice, OpCo and Seller shall employ the Reconciliation Procedures in which case such Schedule becomes binding ten (10) calendar days after the conclusion of the Reconciliation Procedures.
SECTION 4.3 Payment upon Early Termination.
(a) Within five (5) Business Days after an Early Termination Effective Date, OpCo shall pay to Seller an amount equal to the Early Termination Payment. Such payment shall be made by wire transfer of immediately available funds to a bank account or accounts designated by Seller or as otherwise agreed by OpCo and Seller or, in the absence of such designation or agreement, by check mailed to the last mailing address provided by Seller to OpCo.
(b) “Early Termination Payment” shall equal the present value, discounted at the Early Termination Rate as of the applicable Early Termination Effective Date, of all Tax Benefit Payments that would be required to be paid by OpCo beginning from the Early Termination Date and assuming that the Valuation Assumptions are applied and that each Tax Benefit Payment for the relevant Taxable Year would be due and payable on the due date (without extensions) under applicable law as of the Early Termination Effective Date for filing of IRS Form 1120 (or any successor form) of PubCo.
12
ARTICLE V
SUBORDINATION AND LATE PAYMENTS
SECTION 5.1 Subordination. Notwithstanding any other provision of this Agreement to the contrary, any Tax Benefit Payment required to be made by PubCo to Seller under this Agreement shall rank subordinate and junior in right of payment to any principal, interest or other amounts due and payable in respect of any obligations in respect of indebtedness for borrowed money of PubCo, OpCo and their Subsidiaries and the Tax Receivable Agreement (“Senior Obligations”) and shall rank pari passu in right of payment with all current or future unsecured obligations of OpCo that are not Senior Obligations. To the extent that any payment under this Agreement is not permitted to be made at the time payment is due as a result of this Section 5.1 and the terms of agreements governing Senior Obligations, such payment obligation nevertheless shall accrue for the benefit of Seller, and OpCo shall make such payments at the first opportunity that such payments are permitted to be made in accordance with the terms of the Senior Obligations. Notwithstanding any other provision of this Agreement to the contrary, to the extent that PubCo or any of its Affiliates enters into future Tax receivable or other similar agreements, other than joinders to the Tax Receivable Agreement (“Future TRAs”), PubCo shall ensure that the terms of any such Future TRA shall provide that the Tax Attributes subject to this Agreement are considered senior in priority to any Tax attributes subject to any such Future TRA for purposes of calculating the amount and timing of payments under any such Future TRA.
SECTION 5.2 Late Payments by OpCo. Subject to the proviso in the penultimate sentence of Section 4.1(b), the amount of all or any portion of any Tax Benefit Payment or Early Termination Payment not made to Seller when due under the terms of this Agreement, whether as a result of Section 5.1 or otherwise, shall be payable together with any interest thereon, computed at the Default Rate and commencing from the date on which such Tax Benefit Payment or Early Termination Payment was first due and payable to the date of Notional payment.
ARTICLE VI
NO DISPUTES; CONSISTENCY; COOPERATION
SECTION 6.1 Participation in PubCo’s and OpCo’s Tax Matters. PubCo shall promptly notify Seller of, and keep Seller reasonably informed with respect to, the portion of any audit of PubCo, OpCo and each of their direct or indirect Subsidiaries, by a Taxing Authority the outcome of which is reasonably expected to materially affect Seller’s rights and obligations under this Agreement. For so long as Seller (or any of its Affiliates) is a party to this Agreement, Seller shall have the right to be reasonably informed and to monitor at its own expense (but not to control) any portion of any audit of PubCo, OpCo and each of their direct or indirect Subsidiaries, by a Taxing Authority the outcome of which is reasonably expected to materially affect either the Seller’s rights and obligations under this Agreement. PubCo shall (a) provide to Seller reasonable opportunity to provide information and other input to PubCo and their advisors concerning the conduct of any such portion of such audit and (b) not settle or fail to contest any issue in any such portion of such audit without the prior written consent of Seller (or such Affiliate), which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that PubCo shall not be required to take any action in connection with such audit that is inconsistent with any provision of this Agreement, the MIPA, or the OpCo Agreement. For the avoidance of doubt, to the extent an assignee of Seller became a party to this Agreement pursuant to Section 7.6, such assignee shall not have any right to participate in any audit under this Section 6.1. If Seller fails to respond to any notice with respect to the settlement of any such issue within fifteen (15) calendar days of its receipt of the applicable notice, Seller shall be deemed to have consented to the proposed settlement or other disposition. To the extent there is a conflict between this Agreement and the OpCo Agreement as it relates to tax matters concerning U.S. federal, state and local and foreign income Taxes and PubCo and OpCo, including preparation, filing or amending of any Tax Return and defending, contesting or settling any issue pertaining to Taxes, this Agreement shall control.
13
SECTION 6.2 Consistency. OpCo, PubCo and Seller agree to report and cause to be reported for all purposes, including U.S. federal, state and local Tax purposes and financial reporting purposes, all Tax-related items (including, without limitation, the Basis Adjustments and each Tax Benefit Payment) in a manner consistent with that contemplated by this Agreement or specified by PubCo in any Schedule required to be provided by or on behalf of PubCo under this Agreement unless otherwise required by law. OpCo and PubCo shall (and shall cause OpCo’s Subsidiaries to) use commercially reasonable efforts (for the avoidance of doubt, taking into account the interests and entitlements of Seller under this Agreement) to defend the Tax treatment contemplated by this Agreement and any Schedule in any audit, contest or similar proceeding with any Taxing Authority.
SECTION 6.3 Cooperation. Seller shall (a) use its commercially reasonable efforts to furnish to OpCo and PubCo in a timely manner such information, documents and other materials as OpCo or PubCo may reasonably request for purposes of making any determination or computation necessary or appropriate under this Agreement, preparing any Tax Return or contesting or defending any audit, examination or controversy with any Taxing Authority, (b) make itself available to OpCo, PubCo and their representatives to provide explanations of documents and materials and such other information as OpCo, PubCo or their representatives may reasonably request in connection with any of the matters described in clause (a) above, and (c) reasonably cooperate in connection with any such matter, and OpCo or PubCo, as applicable, shall reimburse Seller for any reasonable and documented out-of-pocket costs and expenses incurred pursuant to this Section 6.3. Upon the request of Seller, OpCo or PubCo, as applicable, shall cooperate in taking any action reasonably requested by Seller in connection with its Tax or financial reporting and/or the consummation of any assignment or transfer of any of its rights and/or obligations under this Agreement, including without limitation, providing any information or executing any documentation.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Notices. All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be deemed duly given and received (a) on the date of delivery if delivered personally, or by email with confirmation of transmission by the transmitting equipment, (b) on the first Business Day following the date of dispatch if delivered by a recognized next-day courier service or (c) three calendar days after mailing by certified or registered mail, postage prepaid and return receipt requested. All notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice:
If to PubCo or OpCo, to:
Cardinal Infrastructure Group Inc.
Cardinal Civil Contracting Holdings, LLC
100 E. Six Forks Rd., Suite 300
Raleigh, NC 27609
Attention: Mike Rowe
Email: [email protected]
with a copy to:
Willkie Farr & Gallagher LLP
300 North LaSalle Street
Chicago, Illinois 60654
Attention: Edward S. Best, Esq.
Email: [email protected]
If to Seller, to the addresses, fax number and email address set forth in the records of OpCo (or the signature pages hereto if not a member of OpCo).
Any party may change its address or email by giving the other party written notice of its new address or email in the manner set forth above.
14
SECTION 7.2 Counterparts. This Agreement may be executed in one or more counterparts (including counterparts transmitted electronically in portable document format (pdf)), all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart. Delivery of an executed signature page to this Agreement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Agreement. Electronic signatures shall be a valid method of executing this Agreement.
SECTION 7.3 Entire Agreement; No Third Party Beneficiaries. This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter hereof. This Agreement shall be binding upon and inure solely to the benefit of each party hereto and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 7.4 Governing Law. This Agreement shall be governed by, and construed in accordance with, the law of the State of Delaware, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of laws of another jurisdiction.
SECTION 7.5 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
SECTION 7.6 Successors; Assignment; Amendments; Waivers.
(a) Seller may not assign, sell, pledge, or otherwise alienate or transfer any of its interests in this Agreement, including the right to receive Tax Benefit Payments under this Agreement, to any Person, except with the prior written consent of the Board;
(b) No provision of this Agreement may be amended unless such amendment is approved in writing by each of PubCo (following approval of a majority of the Independent Directors) and by Seller.
(c) All of the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto and their respective successors, permitted assigns, heirs, executors, administrators and legal representatives. PubCo and OpCo shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of PubCo, by written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that PubCo and OpCo, as applicable, would be required to perform if no such succession had taken place.
SECTION 7.7 Titles and Subtitles. The titles of the sections and subsections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement.
15
SECTION 7.8 Jurisdiction; Waiver of Jury Trial. Any action based upon, arising out of or related to this Agreement or the transactions contemplated hereby may be brought in federal and state courts located in the State of Delaware, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such action, waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, agrees that all claims in respect of the action shall be heard and determined only in any such court, and agrees not to bring any action arising out of or relating to this Agreement or the transactions contemplated hereby in any other court. Nothing herein contained shall be deemed to affect the right of any party to serve process in any manner permitted by Law or to commence legal proceedings or otherwise proceed against any other party in any other jurisdiction, in each case, to enforce judgments obtained in any action brought pursuant to this Section 7.8. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 7.9 Reconciliation. In the event that PubCo and Seller are unable to resolve a disagreement with respect to the calculations required to produce the schedules described in Sections 2.3 and 4.2 (but not, for the avoidance doubt, with respect to any legal interpretation with respect to such provisions) within the relevant period designated in this Agreement (“Reconciliation Dispute”), the Reconciliation Dispute shall be submitted for determination to a nationally recognized expert, acting as an expert and not as an arbitrator (the “Expert”) in the particular area of disagreement mutually acceptable to PubCo and the Seller . The Expert shall be a nationally recognized accounting or law firm, and unless PubCo and Seller agree otherwise, the Expert shall not have any material relationship with PubCo or Seller or a potential conflict of interest. If PubCo and Seller are unable to agree on an Expert within fifteen (15) calendar days of receipt by the respondent(s) of written notice of a Reconciliation Dispute, then the Expert shall be appointed by the International Chamber of Commerce Centre for Expertise (the “ICC”) in accordance with the criteria set forth above in this Section 7.9. The Expert shall resolve any matter relating to the Basis Schedule or an amendment thereto or the Early Termination Schedule or an amendment thereto within thirty (30) calendar days and shall resolve any matter relating to a Tax Benefit Schedule or an amendment thereto within fifteen (15) calendar days or as soon thereafter as is reasonably practicable, in each case after the matter has been submitted to the Expert for resolution. Notwithstanding the preceding sentence, if the matter is not resolved before any payment that is the subject of a disagreement would be due (in the absence of such disagreement) or any Tax Return reflecting the subject of a disagreement is due, the undisputed amount shall be paid on the date prescribed by this Agreement and such Tax Return may be filed as prepared by PubCo, subject to adjustment or amendment upon resolution. The costs and expenses relating to the engagement (and, if applicable, the selection by the ICC) of such Expert or amending any Tax Return shall be borne by PubCo except as provided in the next sentence. PubCo and Seller shall bear their own costs and expenses of such proceeding, unless (i) the Expert adopts Seller’s position, in which case PubCo shall reimburse Seller for any reasonable out-of-pocket costs and expenses in such proceeding, or (ii) the Expert adopts PubCo’s position, in which case Seller shall reimburse PubCo for any reasonable out-of-pocket costs and expenses in such proceeding. Any dispute as to whether a dispute is a Reconciliation Dispute within the meaning of this Section 7.9 shall be decided by the Expert. The Expert shall finally determine any Reconciliation Dispute and the determinations of the Expert pursuant to this Section 7.9 shall be binding on PubCo and Seller and may be entered and enforced in any court having jurisdiction.
SECTION 7.10 Withholding. OpCo shall be entitled to deduct and withhold from any payment payable pursuant to this Agreement such amounts as OpCo is required to deduct and withhold with respect to the making of such payment under the Code or any provision of state, local or foreign Tax law; provided, that OpCo shall have first notified Seller of its intent to deduct or withhold, and OpCo and Seller shall have discussed in good faith whether such Taxes can be mitigated to the extent permitted under applicable law. To the extent that amounts are so withheld and paid over to the appropriate Taxing Authority by OpCo, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of whom such withholding was made. To the extent that any payment pursuant to this Agreement is not reduced by such deductions or withholdings, such recipient shall indemnify the applicable withholding agent for any amounts imposed by any Taxing Authority together with any costs and expenses related thereto. Seller shall promptly provide OpCo or other applicable withholding agent with any applicable Tax forms and certifications (including IRS Form W-9 or the applicable version of IRS Form W- 8) reasonably requested, in connection with determining whether any such deductions and withholdings are required under the Code or any provision of U.S. state, local or foreign Tax law.
16
SECTION 7.11 Admission of PubCo into a Consolidated Group; Transfers of Assets
(a) If PubCo is or becomes a member of an affiliated, consolidated, combined or unitary group of corporations that files a consolidated income Tax Return pursuant to Sections 1501 et seq. of the Code or any corresponding provisions of state or local law, then: (i) the provisions of this Agreement shall be applied with respect to the group as a whole; and (ii) Tax Benefit Payments, Early Termination Payments and other applicable items hereunder shall be computed with reference to the consolidated taxable income of the group as a whole.
(b) If OpCo transfers (or is deemed to transfer for U.S. federal income Tax purposes) any Reference Asset to a transferee that is treated as a corporation for U.S. federal income Tax purposes (other than a member of a group described in Section 7.11(a)) in a transaction in which the transferee’s basis in the property acquired is determined in whole or in part by reference to such transferor’s basis in such property, OpCo shall be treated as having disposed of the Reference Asset in a wholly taxable transaction. The consideration deemed to be received by OpCo in a transaction contemplated in the prior sentence shall be equal to the fair market value of the deemed transferred asset, plus (i) the amount of debt to which such asset is subject, in the case of a transfer of an encumbered asset or (ii) the amount of debt allocated to such asset, in the case of a transfer of a partnership interest.
SECTION 7.12 Confidentiality.
(a) Subject to the last sentence of Section 6.3, Seller, and each of its assignees, acknowledge and agree that the information of OpCo and PubCo is confidential and, except in the course of performing any duties as necessary for OpCo, PubCo and their Affiliates, as required by law or legal process or to enforce the terms of this Agreement, such Person shall keep and retain in the strictest confidence and not disclose to any Person any confidential matters, acquired pursuant to this Agreement, of OpCo, PubCo and their Affiliates and successors, concerning OpCo and its Affiliates and successors, learned by Seller heretofore or hereafter. This Section 7.12 shall not apply to (i) any information that has been made publicly available by PubCo or any of its Affiliates, becomes public knowledge (except as a result of an act of the Seller in violation of this Agreement) or is generally known to the business community and (ii) the disclosure of information (A) to the extent necessary for Seller or its direct or indirect owners to prepare and file its Tax Returns, to respond to any inquiries regarding the same from any Taxing Authority or to prosecute or defend any action, proceeding or audit by any Taxing Authority with respect to such returns, (B) by Seller to its Affiliates and its and their respective employees, directors, counsel and advisors on a confidential basis, (C) as may be proper in the course of performing Seller’s obligations, or monitoring or enforcing Seller’s rights, under this Agreement, (D) to any bona fide prospective assignee of Seller’s rights under this Agreement, or prospective merger or other business combination partner of Seller, provided, that such assignee or merger partner agrees to be bound by the provisions of this Section 7.12, or (E) as is required to be disclosed by order of a court of competent jurisdiction, administrative body or governmental body, or by subpoena, summons or legal process, or by law, rule or regulation. Notwithstanding anything to the contrary herein, Seller and each of its assignees (and each employee or other agent of Seller or its assignees, as applicable) may disclose to any and all Persons, without limitation of any kind, the Tax treatment and Tax structure of PubCo, OpCo and their Affiliates, and any of their transactions, and all materials of any kind (including opinions or other Tax analyses) that are provided to Seller relating to such Tax treatment and Tax structure.
(b) If Seller or an assignee commits a breach, or threatens to commit a breach, of any of the provisions of this Section 7.12, OpCo and PubCo shall have the right and remedy to have the provisions of this Section 7.12 specifically enforced by injunctive relief or otherwise by any court of competent jurisdiction without the need to post any bond or other security, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to OpCo or PubCo, as applicable, or any of their Subsidiaries or Seller and the accounts and funds managed by PubCo or OpCo and that money damages alone shall not provide an adequate remedy to such Persons. Such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available at law or in equity.
[The remainder of this page is intentionally blank]
17
IN WITNESS WHEREOF, PubCo and Seller have duly executed this Agreement as of the date first written above.
| PubCo: | ||
| CARDINAL INFRASTRUCTURE GROUP INC. | ||
| By: | /s/ Jeremy S. Spivey | |
| Name: | Jeremy S. Spivey | |
| Title: | Authorized Representative | |
| OpCo: | ||
| CARDINAL CIVIL CONTRACTING HOLDINGS, LLC | ||
| By: | /s/ Jeremy S. Spivey | |
| Name: | Jeremy S. Spivey | |
| Title: | Authorized Representative | |
| Seller: | ||
| DIAMOND INTERESTS GROUP, LLC | ||
| By: | /s/ Anthony L. Wood Jr. | |
| Name: | Anthony L. Wood Jr. | |
| Title: | Authorized Representative | |
Exhibit 10.5
EXECUTION VERSION
FIRST AMENDMENT TO CREDIT AGREEMENT
dated as of February 18, 2026
by and among
CARDINAL CIVIL CONTRACTING, LLC, a North Carolina limited liability company,
as the Borrower,
CARDINAL CIVIL CONTRACTING HOLDINGS LLC, a Delaware limited liability company,
as Holdings,
THE SUBSIDIARIES OF HOLDINGS (OTHER THAN THE BORROWER)
PARTY HERETO,
as the Guarantors,
THE LENDERS PARTY HERETO,
and
TRUIST BANK,
as Administrative Agent, Issuing Bank and Swingline Lender
TRUIST SECURITIES, INC.,
BANK OZK,
EAGLEBANK,
and
FIRST HORIZON BANK,
as Joint Lead Arrangers and Joint Bookrunners
FIRST AMENDMENT TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this “Agreement”), dated as of February 18, 2026 (the “First Amendment Effective Date“), is entered into by and among Cardinal Civil Contracting, LLC, a North Carolina limited liability company (the “Borrower”), Cardinal Civil Contracting Holdings LLC, a Delaware limited liability company (“Holdings”), the other Guarantors party hereto, the Lenders party hereto, and Truist Bank, as Administrative Agent, Issuing Bank and Swingline Lender.
R E C I T A L S
WHEREAS, the Borrower, Holdings, the Guarantors from time to time party thereto, the Lenders from time to time party thereto, and the Administrative Agent are parties to that certain Credit Agreement, dated as of October 1, 2025 (as amended, restated, amended and restated, supplemented, increased, extended, refinanced, renewed, replaced, and/or otherwise modified in writing from time to time prior to the date hereof, the “Credit Agreement”; as amended by the terms of this Agreement, the “Amended Credit Agreement”);
WHEREAS, the Borrower has requested (a) an additional advance under the term loan facility on the First Amendment Effective Date in an aggregate principal amount of $80,000,000 (the “First Amendment Additional Term Loan A Advance”), which will increase the outstanding Term Loan A from $120,000,000 to $200,000,000 after giving effect to the funding of the First Amendment Additional Term Loan A Advance, and (b) certain other modifications to the terms of the Credit Agreement as described in Section 2 below; and
WHEREAS, (i) certain of the Lenders party hereto have agreed to provide the First Amendment Additional Term Loan A Advance and (ii) the Lenders party hereto have agreed to the other modifications to the terms and provisions of the Credit Agreement as described in Section 2 below, in each case of the foregoing clauses (i) and (ii), on the terms, and subject to the conditions, set forth herein.
NOW, THEREFORE, in consideration of the agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the parties hereto hereby agrees as follows:
A G R E E M E N T
1. Introductory Paragraph and Recitals; Definitions. The above introductory paragraph and recitals (including any terms defined therein) of this Agreement are incorporated herein by reference as if fully set forth in the body of this Agreement. Capitalized terms used herein but not otherwise defined herein shall have the meanings provided for such terms in the Amended Credit Agreement.
2. Amendments to the Credit Agreement. Pursuant to Section 11.2 (Waiver; Amendments) of the Credit Agreement, the Credit Agreement is hereby amended as follows:
(a) the terms of the Credit Agreement (but not the Exhibits or Schedules thereto except as set forth in Sections 2(b) and 2(c)) are amended and replaced in their entirety to read as set forth in the copy of the entire body of the Credit Agreement attached hereto as Annex A;
(b) Schedule I (Commitment Amounts) and Schedule 1.1–PH (Permitted Holders) to the Credit Agreement are amended and replaced in their entirety with the applicable Schedules attached hereto as Annex B; and
(c) Exhibit 5.1 ([Form of] Compliance Certificate) to the Credit Agreement is amended and replaced in its entirety with the Exhibit attached hereto as Annex C.
3. Not an Incremental Facility. For purposes of clarity, the First Amendment Additional Term Loan A Advance established pursuant to the Amended Credit Agreement is not effected pursuant to Section 2.23 (Incremental Commitments) of the Credit Agreement and shall not constitute an “Incremental Term Loan” for purposes of the Amended Credit Agreement or any of the other Loan Documents, and further, the aggregate principal amount of the First Amendment Additional Term Loan A Advance advanced pursuant to the Amended Credit Agreement shall not decrease (or otherwise count against or reduce) the Incremental Cap.
4. Effectiveness; Conditions Precedent. This Agreement shall become effective as of the First Amendment Effective Date (other than the amendments to the definition of “Change in Control” in Section 1.1 (Definitions) of the Credit Agreement, which shall be deemed effective as of the date of the consummation of the Qualifying IPO (as defined in the Credit Agreement)) upon satisfaction of each of the following conditions precedent:
(a) The receipt by the Administrative Agent of a counterpart of this Agreement duly executed by each of the Loan Parties, the Lenders, and the Administrative Agent.
(b) The receipt by the Administrative Agent of a certificate of a Responsible Officer of each Loan Party, attaching and certifying:
(i) copies of such Loan Party’s Organization Documents (or certifying that there has been no change to the Organization Documents of such Loan Party since the Closing Date);
(ii) resolutions of its board of directors or managers (or equivalent governing body), authorizing the execution, delivery and performance of this Agreement;
(iii) the name, title and true signature of each officer of such Loan Party executing this Agreement (or certifying that there has been no change to the signatures of such officers since the Closing Date); and
(iv) certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of incorporation or formation (as the case may be) of such Loan Party.
(c) The receipt by the Administrative Agent of customary written opinions of counsel to the Loan Parties, addressed to the Administrative Agent, the Issuing Bank and each of the Lenders, and covering such customary matters as are reasonably satisfactory to the Administrative Agent and the Issuing Bank.
(d) The receipt by the Administrative Agent of a certificate, dated as of the First Amendment Effective Date and signed by a Responsible Officer of the Borrower, certifying (and, with respect to the following clauses (iv) and (v), demonstrating in reasonable detail) that: (i) immediately after giving effect to this Agreement, the First Amendment Effective Date Acquisition and any other transactions related to the foregoing to occur on the First Amendment Effective Date, the Loan Parties and Subsidiaries, taken as a whole, are Solvent on a consolidated basis, (ii) no Material Adverse Effect has occurred since December 31, 2024, (iii) no litigation is pending or threatened in writing (A) with respect to this Agreement or the Amended Credit Agreement or (B) which could otherwise reasonably be expected to have, individually or in the aggregate when taken together, a Material Adverse Effect, (iv) the Consolidated Total Net Leverage Ratio measured for the period of twelve (12) consecutive months ended September 30, 2025, calculated on a Pro Forma Basis after giving effect to the funding of the First Amendment Additional Term Loan A Advance and the consummation of the First Amendment Effective Date Acquisition and the other transactions occurring on the First Amendment Effective Date, is not greater than 2.00 to 1.0; provided, that, solely for purposes of determining the Consolidated Total Net Leverage Ratio under this clause (d)(iv), clause (a)(ii) of the definition of “Consolidated Total Net Leverage Ratio” in the Amended Credit Agreement shall be deemed to be $0, (v) Consolidated EBITDA measured for the period of twelve (12) consecutive months ended September 30, 2025, calculated on a Pro Forma Basis after giving effect to the funding of the First Amendment Additional Term Loan A Advance and the consummation of the First Amendment Effective Date Acquisition and the other transactions occurring on the First Amendment Effective Date, is at least $120,000,000, and (vi) the conditions set forth in clause (e) and (f) have been satisfied.
2
(e) The First Amendment Effective Date Acquisition and the First Amendment Rollover Equity Contribution shall be consummated substantially concurrently with the closing of, and the funding of the First Amendment Additional Term Loan A Advance on the First Amendment Effective Date in accordance with the terms of the First Amendment Acquisition Documents in the form last reviewed and approved by the Administrative Agent (or its designee) and in compliance, in all material respects, with all applicable Laws and regulatory approvals, without alteration, amendment or other change, supplement and/or modification to or of the terms of any such First Amendment Acquisition Documents. The Administrative Agent (or its designee) shall, on or prior to the First Amendment Effective Date, have received certified (fully executed and compiled, as applicable) copies of the First Amendment Acquisition Agreement and each other material First Amendment Acquisition Document, each in form and substance reasonably satisfactory to the Administrative Agent.
(f) The Loan Parties shall have received all material consents (including, without limitation, any necessary governmental consents, as applicable), approvals, authorizations, registrations, filings and orders required or advisable to be made or obtained (as the case may be) under any applicable Law, the Organization Documents of any Loan Party, or by any Contractual Obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of this Agreement and/or any transaction(s) being financed on or around the First Amendment Effective Date with the proceeds of the First Amendment Additional Term Loan A Advance (including, without limitation, the First Amendment Effective Date Acquisition), and such consents, approvals, authorizations, registrations, filings and orders are in full force and effect and all applicable waiting periods have expired, and no investigation or inquiry by any Governmental Authority regarding any transaction(s) being financed (in whole or in part) with the proceeds of the First Amendment Additional Term Loan A Advance (including, without limitation, the First Amendment Effective Date Acquisition) is ongoing.
(g) At least five (5) Business Days prior to the First Amendment Effective Date (or such shorter period as each affected Lender may agree in its sole discretion), receipt by the Administrative Agent of all documentation and other information required by bank regulatory authorities, or otherwise reasonably requested by the Administrative Agent or any Lender, under, or in respect of, applicable “know your customer” and anti-money laundering Laws, including, without limitation, the Patriot Act; and, at least five (5) Business Days prior to the First Amendment Effective Date if, and to the extent, that any Loan Party qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, receipt by the Administrative Agent and each Lender of a Beneficial Ownership Certification in relation to such Loan Party.
(h) The receipt by the Administrative Agent of a duly executed funds disbursement agreement, together with instructions for the sources and uses of the proceeds of the First Amendment Effective Date Additional Term Loan A Advance.
(i) Delivery to the Administrative Agent of evidence of (i) payment in full of all Indebtedness of the First Amendment Acquisition Target and its Subsidiaries and (ii) the termination of all Liens incurred in connection therewith and all Guarantees thereof by the First Amendment Acquisition Target or any of its Subsidiaries, in each case of the foregoing clauses (i) and (ii) except for such Indebtedness, Liens and Guarantees as are expressly permitted under the Amended Credit Agreement to remain outstanding or in effect (as the case may be); provided, that, such payment and/or termination may occur substantially concurrently with the closing of this Agreement on the First Amendment Effective Date.
3
(j) The receipt by the Administrative Agent of a Guarantor Joinder Agreement, executed by the First Amendment Acquisition Target, in form and substance reasonably satisfactory to the Administrative Agent, accompanied by (i) all other Loan Documents related thereto, (ii) certified copies of Organization Documents, appropriate authorizing resolutions of the board of directors of the First Amendment Acquisition Target, and opinions of counsel comparable to those delivered pursuant to Section 3.1(c) (Opinions of Counsel) of the Credit Agreement, and (iii) such other documents as the Administrative Agent may reasonably request.
(k) The receipt by the Administrative Agent of (i) all fees required to be paid to the Administrative Agent and the Arranger on or before the First Amendment Effective Date pursuant to that certain First Amendment Fee Letter dated as of December 27, 2025 by and among the Borrower, the Administrative Agent and the Arranger (the “Amendment Fee Letter), (ii) all fees required to be paid to the Lenders on or before the First Amendment Effective Date pursuant to the Amendment Fee Letter, and (iii) all reasonable and documented costs and out-of-pocket expenses, of the Arranger and Administrative Agent and their Affiliates in connection with the preparation and administration of this Agreement, including, without limitation, the reasonable and documented out-of-pocket costs and expenses of counsel to the Administrative Agent in accordance with the terms of Section 11.3 (Expenses; Indemnification; Damage Waiver) of the Credit Agreement, in each case to the extent invoiced.
5. Representations and Warranties. Each Loan Party hereby represents and warrants to the Administrative Agent and each of the Lenders as follows:
(a) Bring-Down of Representations and Warranties; No Default. Immediately after giving effect to the execution and delivery of this Agreement on the First Amendment Effective Date:
(i) no Default or an Event of Default shall have occurred and be continuing; and
(ii) all representations and warranties of each Loan Party set forth in the Loan Documents (including, without limitation, the representations and warranties of each Loan Party set forth in Article IV of the Amended Credit Agreement) are true and correct, in all material respects (or, if such representation and warranty is qualified by materiality or Material Adverse Effect, in all respects), on, and as of, the date hereof, except to the extent that such representations and warranties specifically relate to an earlier date, in which case, they are true and correct, in all material respects (or, if such representation and warranty is qualified by materiality or Material Adverse Effect, in all respects), as of such earlier date.
(b) Organizational Power; Authorization; Enforceability.
(i) Organizational Power Authorization. The execution and delivery by each Loan Party party hereto of, and the performance by each such Loan Party of its obligations under, this Agreement are within such Loan Party’s organizational powers and have been duly authorized by all necessary organizational, and if required, shareholder, partner or member (as the case may be), action.
(ii) Enforceability. This Agreement has been duly executed and delivered by each Loan Party party hereto and constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such Loan Party in accordance with its 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.
4
(c) Governmental Approvals; No Conflicts. The execution, delivery and performance by each Loan Party party hereto of this Agreement do not, and will not: (i) require any material consent or approval of, registration or filing with, notice to, or any action by, any Governmental Authority, except (A) those as have been obtained or made and are in full force and effect, and (B) filings necessary to perfect, and/or maintain the perfection of, the Liens created under the Loan Documents; (ii) violate the Organization Documents of any Loan Party; (iii) violate, in any material respect, any Law applicable to any Loan Party or Subsidiary, or any judgment, order, decree and/or ruling of any Governmental Authority binding on any Loan Party or Subsidiary; (iv) violate, conflict with, result in a breach of, or constitute (with due notice, lapse or time, or both) a default under, any material Contractual Obligation of any Loan Party or Subsidiary, or any of their respective Property; (v) result in the creation or imposition of any Lien on any Property of any Loan Party or Subsidiary, except for Liens (if any) created under the Loan Documents and other Permitted Liens; and (vi) require any material approval of stockholders, members or partners (as the case may be), or any material approval or material consent of any Person under any Contractual Obligation, of any Loan Party or Subsidiary, except for such approvals or consents that will be obtained on or before the First Amendment Effective Date and disclosed in writing to the Administrative Agent.
6. Reaffirmation. Each Loan Party: (a) (i) acknowledges and consents to all of the terms and conditions of this Agreement, (ii) affirms all of its respective obligations under each of the Loan Documents (as amended by this Agreement, to the extent so amended) to which it is a party, and (iii) agrees that this Agreement, and all documents, agreements, letters, certificates and/or instruments executed in connection with this Agreement, do not operate to reduce or discharge any Loan Party’s obligations under any of the Loan Documents to which it is a party (except to the extent that any such obligation(s) are expressly modified pursuant to this Agreement); and (b) (i) affirms that each of the Liens granted in, or pursuant to, the Loan Documents is valid and subsisting, and (ii) agrees that this Agreement, and all documents, agreements, certificates and/or instruments executed in connection with this Agreement, do not, in any manner, impair, or otherwise adversely affect, any of the Liens granted in, or pursuant to, any of the Loan Documents.
7. Reallocation; Waiver of Breakage Costs. Each of the parties to this Agreement hereby agrees that the Borrower, the Guarantors, the Lenders, the Issuing Bank, and the Administrative Agent shall be deemed, on the First Amendment Effective Date without any further action(s) (including execution of any assignment documentation), to have authorized and instructed the Administrative Agent to effect such assignments, prepayments, borrowings, and reallocations as are (in the reasonable determination of the Administrative Agent) necessary in order to effectuate the modifications to the Commitments and Loans (and to the respective amounts thereof attributable to each Lender) as contemplated by this Agreement such that, on the First Amendment Effective Date immediately after giving effect to this Agreement, the Lenders shall hold each Class of the Commitments and Loans in the respective amounts, and shall have and be allocated the respective Pro Rata Shares thereof, in each case of the foregoing, as set forth on Schedule I (Commitment Amounts) to the Credit Agreement attached hereto as Annex B, without any further requirement to comply with the terms and provisions set forth in Section 11.4 (Successors and Assigns) of the Credit Agreement. Each Lender party to this Agreement hereby waives any “breakage” or break-funding costs that it would otherwise be entitled to pursuant to Section 2.19 (Funding Indemnity) of the Credit Agreement solely as a result of the assignments, prepayments, borrowings, and reallocations described in the immediately foregoing sentence.
5
8. Miscellaneous.
(a) Loan Document; Reference of Terms. This Agreement is hereby deemed to be, and shall be, a Loan Document, and all references to a “Loan Document” or the “Loan Documents” in the Credit Agreement, in any other Loan Document, or in any other document, agreement, letter, certificate and/or instrument executed and delivered pursuant to the terms thereof, whether executed on, prior to or after the First Amendment Effective Date (including, without limitation, all such references in the representations and warranties of the Loan Parties set forth in the Credit Agreement and the other Loan Documents), shall be deemed to include, and shall include, this Agreement. All references to “Agreement” in the Credit Agreement, and all references to the “Credit Agreement” in any other Loan Document or in any other document, agreement, letter, certificate and/or instrument executed and delivered pursuant to the terms thereof, whether executed on, prior to or after the First Amendment Effective Date (including, without limitation, all such references in the representations and warranties of the Loan Parties set forth in the Credit Agreement and the other Loan Documents), are hereby amended so that any reference to “Agreement” or the “Credit Agreement” therein, as the case may be, shall be, and be deemed to be, a reference to the Amended Credit Agreement.
(b) Full Force and Effect. Except as expressly amended and/or modified by this Agreement, all of the terms, provisions and conditions of the Loan Documents (including in any Schedules and/or Exhibits thereto) shall remain in full force and effect according to their terms.
(c) Incorporation by reference. The terms of Sections 11.5 (Governing Law; Jurisdiction; Venue; Consent to Service of Process), 11.8 (Electronic Execution; Counterparts) and 11.10 (Severability) of the Credit Agreement are incorporated herein by reference, mutatis mutandis, as if fully set forth herein.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
6
IN WITNESS WHEREOF, each of the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the First Amendment Effective Date.
| BORROWER: | CARDINAL CIVIL CONTRACTING, LLC, | |
| a North Carolina limited liability company | ||
| By: | /s/ Jeremy Spivey | |
| Name: | Jeremy Spivey | |
| Title: | Chief Executive Officer | |
| GUARANTORS: | CARDINAL CIVIL CONTRACTING HOLDINGS LLC, | |
| a Delaware limited liability company | ||
| By: | /s/ Jeremy Spivey | |
| Name: | Jeremy Spivey | |
| Title: | Chief Executive Officer | |
| AVIATOR PAVING COMPANY, LLC, | ||
| a North Carolina limited liability company | ||
| By: | /s/ Jeremy Spivey | |
| Name: | Jeremy Spivey | |
| Title: | Chief Executive Officer | |
| AVIATOR PAVING COMPANY CHARLOTTE, LLC, | ||
| a North Carolina limited liability company | ||
| By: | /s/ Jeremy Spivey | |
| Name: | Jeremy Spivey | |
| Title: | Chief Executive Officer | |
| CARDINAL CIVIL CONTRACTING NC, LLC, | ||
| a North Carolina limited liability company | ||
| By: | /s/ Jeremy Spivey | |
| Name: | Jeremy Spivey | |
| Title: | Chief Executive Officer | |
Signature Page to First Amendment to Credit Agreement
(Cardinal Civil Contracting, LLC)
| CIVIL DRILLING & BLASTING, LLC, | ||
| a North Carolina limited liability company | ||
| By: | /s/ Jeremy Spivey | |
| Name: | Jeremy Spivey | |
| Title: | Chief Executive Officer | |
| CARDINAL CIVIL CONTRACTING TRIAD, LLC, | ||
| a North Carolina limited liability company | ||
| By: | /s/ Jeremy Spivey | |
| Name: | Jeremy Spivey | |
| Title: | Chief Executive Officer | |
| CARDINAL CIVIL CONTRACTING CHARLOTTE, LLC, | ||
| a North Carolina limited liability company | ||
| By: | /s/ Jeremy Spivey | |
| Name: | Jeremy Spivey | |
| Title: | Chief Executive Officer | |
| CIVIL UNDERGROUND AND BORING COMPANY, LLC, | ||
| a North Carolina limited liability company | ||
| By: | /s/ Jeremy Spivey | |
| Name: | Jeremy Spivey | |
| Title: | Chief Executive Officer | |
| CIVIL TRANSPORT, LLC, | ||
| a North Carolina limited liability company | ||
| By: | /s/ Jeremy Spivey | |
| Name: | Jeremy Spivey | |
| Title: | Chief Executive Officer | |
| A.L. GRADING CONTRACTORS, LLC, | ||
| a Georgia limited liability company | ||
| By: | /s/ Jeremy Spivey | |
| Name: | Jeremy Spivey | |
| Title: | Chief Executive Officer | |
Signature Page to First Amendment to Credit Agreement
(Cardinal Civil Contracting, LLC)
| ADMINISTRATIVE AGENT: | TRUIST BANK, | |
| as Administrative Agent | ||
| By: | /s/ Jeff Ward | |
| Name: | Jeff Ward | |
| Title: | Senior Vice President | |
Signature Page to First Amendment to Credit Agreement
(Cardinal Civil Contracting, LLC)
| LENDERS: TRUIST BANK, | ||
| as Issuing Bank, as Swingline Lender and as Lender | ||
| By: | /s/ Jeff Ward | |
| Name: | Jeff Ward | |
| Title: | Senior Vice President | |
| BANK OZK, | ||
| as Lender | ||
| By: | /s/ Kenneth M. Blackwell | |
| Name: | Kenneth M. Blackwell | |
| Title: | Managing Director | |
| EAGLEBANK, | ||
| as Lender | ||
| By: | /s/ Byron Barnes | |
| Name: | Byron Barnes | |
| Title: | Senior Vice President | |
| FIRST HORIZON BANK, | ||
| as Lender | ||
| By: | /s/ Trevor Wall | |
| Name: | Trevor Wall | |
| Title: | Vice President | |
| SOUTHSTATE BANK, N.A., | ||
| as Lender | ||
| By: | /s/ Jeff Moncrief | |
| Name: | Jeff Moncrief | |
| Title: | SVP | |
| OPTUM BANK, INC., | ||
| as Lender | ||
| By: | /s/ Scott Barrier | |
| Name: | Scott Barrier | |
| Title: | Director of Credit | |
Signature Page to First Amendment to Credit Agreement
(Cardinal Civil Contracting, LLC)
Exhibit 10.6
Employment Agreement
This Employment Agreement (the “Agreement”) is made and entered into as of February 18, 2026 (the “Effective Date”), by and between Anthony L. Wood, Jr. (the “Executive”) and A.L. Grading Contractors, LLC, a Georgia limited liability company (the “Company”).
WHEREAS, Employee is currently employed by Company. Company wishes to employ employee in a position in which Employee will have access to confidential and proprietary information about the Company and its business and will have direct contact with Company’s clients. The execution of this Agreement is a condition to the Company continuing to employee the Employee, and the Company would not continue to employ the Employee without the Employee’s execution and delivery of this Agreement. In order to prevent unauthorized disclosure of its confidential information and interference with its Client relationships, Company is requiring Employee to agree to certain restrictions in order to be employed by Company.
WHEREAS, undefined terms used herein shall have the meaning ascribed to them as set forth in that certain Membership Interests Purchase and Contribution Agreement (“MIPCA”) by and among Diamond Interests Group, LLC, a Florida limited liability company, the Company, Anthony L. Wood, Jr., an individual resident of the State of Florida, Benjamin A. Wood, an individual resident of the State of Georgia, Cardinal Civil Contracting Holdings LLC, a Delaware limited liability company, and Cardinal Infrastructure Group, Inc., a Delaware corporation (“PubCo”).
WHEREAS, Company and Employee acknowledge the necessity of the covenants of the Employee as set forth herein for the reasonable protection of Company and Employee is willing to agree to certain restrictions, including those on disclosure of Confidential Information and competitive activity.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual promises contained herein, the agreement of the Company to continue to employee the Employee upon execution of this Agreement, the compensation and any benefits given to the Employee or promised to be given to the Employee in the future, the payment by the Company to the Employee in the amount of $1,000.00 as set forth in Section 8.5. below and made contemporaneously with Employee’s execution of this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Term. The Executive’s employment hereunder shall be effective as of the Effective Date and shall continue until the third anniversary thereof (“Initial Term”), unless terminated earlier pursuant to this Agreement; provided that, on such third anniversary of the Effective Date and each annual anniversary thereafter (such date and each annual anniversary thereof, a “Renewal Date”), the Agreement shall be deemed to be automatically extended, upon the same terms and conditions, for successive periods of one year, unless either party provides written notice of its intention not to extend the term of the Agreement at least ninety (90) days’ prior to the applicable Renewal Date. The period during which of the Executive is employed by the Company hereunder is hereinafter referred to as the “Employment Term”.
2. Position and Duties.
2.1 Position. During the Employment Term, the Executive shall serve as the President of the Company, reporting to the Manager of the Company. In such position, the Executive shall have such duties, authority, and responsibilities as shall be determined from time to time by the Manager of the Company, which duties, authority, and responsibilities are consistent with the Executive’s position.
2.2 Duties. During the Employment Term, the Executive shall devote substantially all of the Executive’s business time and attention to the performance of the Executive’s duties hereunder and will not engage in any other business, profession, or occupation for compensation or otherwise which would conflict or materially interfere with the performance of such services either directly or indirectly without the prior written consent of the Board.
3. Place of Performance. Executive shall work primarily from his home office at his primary residence in Lighthouse Point, Florida. Executive shall travel on as reasonably required and necessary to satisfactorily perform his job duties, including on occasion to the Company’s principal executive office currently located in Sugar Hill, Georgia.
4. Compensation.
4.1 Base Salary and Bonus
(a) Base Salary. During the Employment Term, the Company shall pay the Executive an annual base salary in the gross amount of $400,000 in periodic installments in accordance with the Company’s customary payroll practices and applicable wage payment laws, but no less frequently than monthly. The Executive’s annual base salary, as in effect from time to time, is hereinafter referred to as “Base Salary”. Executive’s Base Salary shall not be reduced at any time for any reason other than in the event of a Company-wide compensation reduction resulting from economic necessity.
(b) Semi-Annual Bonus. The Executive shall be eligible for a discretionary semi-annual bonus of up to thirty-seven and one-half percent (37.5%) of such Executive’s Base Salary in the event Executive meets or exceeds certain performance indicators as reasonably established by the Company from time to time.
(c) Equity Incentive Awards. In addition to, and not in limitation, of Section 4.1(a) and (b) above, at the first meeting after the date hereof at which the Compensation Committee of the Board of Directors of PubCo approves equity incentive awards for employees of PubCo under PubCo’s 2025 Stock Incentive Plan, which meeting shall be no later than July 31, 2026, the Compensation Committee shall grant equity incentive awards to Executive described in Schedule 6.5(b) of the MIPCA in such amounts and subject to such vesting requirements which are commensurate with, respectively, similarly situated employees of PubCo.
4.2 Fringe Benefits and Perquisites. During the Employment Term, the Executive shall be entitled to fringe benefits and perquisites consistent with the practices of the Company and governing benefit plan requirements (including plan eligibility provisions), and to the extent the Company provides similar benefits or perquisites (or both) to similarly situated executives of the Company.
4.3 Employee Benefits. During the Employment Term, the Executive shall be entitled to participate in all employee benefit plans, practices, and programs maintained by the Company, as in effect from time to time (collectively, “Employee Benefit Plans”), on a basis which is no less favorable than is provided to other similarly situated executives of the Company, to the extent consistent with applicable law and the terms of the applicable Employee Benefit Plans. The Company reserves the right to amend or terminate any Employee Benefit Plans at any time in its sole discretion, subject to the terms of such Employee Benefit Plan and applicable law.
4.4 Vacation; Paid Time Off. During the Employment Term, the Executive shall be entitled to paid vacation days per calendar year (prorated for partial years) in accordance with the Company’s vacation policies, as in effect from time to time. The Executive shall receive other paid time off in accordance with the Company’s policies for executive officers as such policies may exist from time to time and applicable law.
4.5 Business Expenses. The Executive shall be entitled to reimbursement for all reasonable and necessary out-of-pocket business, entertainment, and travel expenses incurred by the Executive in connection with the performance of the Executive’s duties hereunder in accordance with the Company’s expense reimbursement policies and procedures and applicable law.
2
4.6 Indemnification.
(a) In the event that the Executive is, during or after the Employment Term, made a party or threatened to be made a party to any action, suit, or proceeding, whether civil, criminal, administrative, or investigative (a “Proceeding”), other than any Proceeding initiated by the Executive or the Company related to any contest or dispute between the Executive and the Company or any of its affiliates with respect to this Agreement or the Executive’s employment hereunder, by reason of the fact that the Executive is or was a director or officer of the Company, or any affiliate of the Company, or is or was serving at the request of the Company as a director, officer, member, employee, or agent of another corporation or a partnership, joint venture, trust, or other enterprise, the Executive shall be indemnified and held harmless by the Company to the fullest extent applicable to any other officer or director of the Company from and against any liabilities, costs, claims, and expenses, including all costs and expenses incurred in defense of any Proceeding (including attorneys’ fees). Costs and expenses incurred by the Executive in defense of such Proceeding (including attorneys’ fees) shall be paid by the Company in advance of the final disposition of such litigation upon receipt by the Company of: (i) a written request for payment; (ii) appropriate documentation evidencing the incurrence, amount, and nature of the costs and expenses for which payment is being sought; and (iii) an undertaking adequate under applicable law made by or on behalf of the Executive to repay the amounts so paid if it shall ultimately be determined that the Executive is not entitled to be indemnified by the Company under this Agreement.
(b) During the Employment Term and for a period of six (6) years thereafter, the Company or any successor to the Company shall purchase and maintain, at its own expense, directors’ and officers’ liability insurance providing coverage to the Executive on terms that are no less favorable than the coverage provided to other directors and similarly situated executives of the Company or any successor.
5. Termination of Employment. The Employment Term and the Executive’s employment hereunder may be terminated by either the Company or the Executive at any time and for any reason; provided that, unless otherwise provided herein, either party shall be required to give the other party at least 15 days advance written notice of any termination of the Executive’s employment. On termination of the Executive’s employment during the Employment Term, the Executive shall be entitled to the compensation and benefits described in this Section 5 (and in Section 4.6 above) and shall have no further rights to any compensation or any other benefits from the Company or any of its affiliates.
5.1 For Cause or Without Good Reason.
(a) The Executive’s employment hereunder may be terminated by the Company for Cause or by the Executive without Good Reason. If the Executive’s employment is terminated (i) by the Company for Cause, or (ii) by the Executive without Good Reason, the Executive shall be entitled to receive:
(i) any accrued but unpaid Base Salary and accrued but unused vacation which shall be paid on the pay date immediately following the Termination Date (as defined below) in accordance with the Company’s customary payroll procedures;
(ii) reimbursement for unreimbursed business expenses properly incurred by the Executive, which shall be subject to and paid in accordance with the Company’s expense reimbursement policy; and
3
(iii) such employee benefits (including equity compensation), if any, to which the Executive may be entitled under the Company’s employee benefit plans as of the Termination Date; provided that, in no event shall the Executive be entitled to any payments in the nature of severance or termination payments except as specifically provided herein.
Items 5.1(a)(i) through 5.1(a)(iii) are referred to herein collectively as the “Accrued Amounts”.
(b) For purposes of this Agreement, “Cause” shall mean:
(i) the Executive’s repeated, willful, or unauthorized failure to perform Executive’s duties (other than any such failure resulting from incapacity due to physical or mental illness);
(ii) the Executive’s failure to comply with any valid and legal directive of the Manager of the Company;
(iii) the Executive’s engagement in dishonesty, illegal conduct, or misconduct, which is, in each case, injurious to the Company or its affiliates;
Any act, or failure to act, based on authority given pursuant to a resolution duly adopted by the Board or on the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Company or its affiliates.
The Company cannot terminate employment for Cause unless (a) it has provided written notice to the Executive setting forth in reasonable detail the existence of the circumstances providing grounds for termination for Cause and (b) the Executive has failed to cure such circumstances within ten (10) business days of the Executive’s receipt of such notice.
(c) For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following, in each case during the Employment Term without the Executive’s prior written consent:
(i) A requirement that Executive’s principal place of employment be any location other than his principle residence in Lighthouse Point, Florida;
(ii) any material breach by the Company of any material provision of this Agreement or any material provision of any other agreement between the Executive and the Company;
(iii) a reduction in the Executive’s Base Salary;
(iv) the Company’s failure to obtain an agreement from any successor to the Company to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no succession had taken place, except where such assumption occurs by operation of law;
(v) an adverse change in the Executive’s title, authority, duties, or responsibilities (other than temporarily while the Executive is physically or mentally incapacitated or as required by applicable law); or
(vi) an adverse change in the reporting structure applicable to the Executive.
4
The Executive cannot terminate employment for Good Reason unless (a) the Executive has provided written notice to the Company of the existence of the circumstances providing grounds for termination for Good Reason within ten (10) days of the initial existence of such grounds and the Company has had at least fifteen (15) days from the date on which such notice is provided to cure such circumstances. If the Company fails to cure such circumstances, and if the Executive does not terminate employment for Good Reason within ten (10) days after the failure of the Company to cure, then the Executive will be deemed to have waived the right to terminate for Good Reason with respect to such grounds.
5.2 Without Cause, or for Good Reason. The Employment Term and the Executive’s employment hereunder may be terminated by the Executive for Good Reason or by the Company without Cause. In the event of such termination, the Executive shall be entitled to receive the Accrued Amounts, and subject to the Executive’s compliance with Section 6, Section 7, Section 8, and Section 9 of this Agreement and the Executive’s execution of a release of claims in favor of the Company, its affiliates and their respective officers and directors in a form provided by the Company (the “Release”) and such Release becoming effective within thirty (30) days following the Termination Date (such thirty (30) day period, the “Release Execution Period”), the Executive shall also be entitled to receive the following:
(a) If such termination occurs, a lump-sum payment equal to the Executive’s Base Salary for the year in which the Termination Date occurs, which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
5.3 Death or Disability.
(a) The Executive’s employment hereunder shall terminate automatically on the Executive’s death during the Employment Term, and the Company may terminate the Executive’s employment on account of the Executive’s Disability.
(b) If the Executive’s employment is terminated during the Employment Term on account of the Executive’s death or Disability, the Executive (or the Executive’s estate and/or beneficiaries, as the case may be) shall be entitled to receive the following: the Accrued Amounts. Notwithstanding any other provision contained herein, all payments made in connection with the Executive’s Disability shall be provided in a manner which is consistent with federal and state law.
(c) For purposes of this Agreement, “Disability” shall mean the Executive’s inability, due to physical or mental incapacity, to perform the essential functions of the Executive’s job, with or without reasonable accommodation, for one hundred eighty (180) days out of any three hundred sixty-five (365) day period or one hundred twenty (120) consecutive days Any question as to the existence of the Executive’s Disability as to which the Executive and the Company cannot agree shall be determined in writing by a qualified independent physician mutually acceptable to the Executive and the Company. If the Executive and the Company cannot agree as to a qualified independent physician, each shall appoint such a physician and those two physicians shall select a third who shall make such determination in writing. The determination of Disability made in writing to the Company and the Executive shall be final and conclusive for all purposes of this Agreement.
5
5.4 Change in Control Termination.
(a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason, or by the Company without Cause (other than on account of the Executive’s death or Disability), in each case within twelve (12) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement and the Executive’s execution of a Release which becomes effective within 30 days following the Termination Date, the Executive shall also be entitled to receive the following:
(i) If such termination occurs during the Initial Term, a lump sum payment equal to the greater of: (i) one and one half (1.5) times multiplied by the Executive’s Base Salary for the calendar year in which the Termination Date occurs, or if greater, the year in which the Change in Control occurs, which shall be paid within thirty (30) days following the Termination Date (as determined in accordance with Section 5.6) , (ii) a lump sum payment equal to the amount of Executive’s Base Salary to be paid for the remainder of the Initial Term, which shall be paid within thirty (30) days following the Termination Date; or if such termination occurs at any time after the expiration of the Initial Term, a lump sum payment equal to the Executive’s Base Salary for the calendar year in which the Termination Date occurs, which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
(i) one person (or more than one person acting as a group) acquires ownership of stock of the Company that, together with the stock held by such person or group, constitutes more than fifty percent (50%) of the total fair market value or total voting power of the stock of such corporation; provided that, a Change in Control shall not occur if any person (or more than one person acting as a group) owns more than fifty percent (50%) of the total fair market value or total voting power of the Company’s stock and acquires additional stock;
(ii) one person (or more than one person acting as a group) acquires (or has acquired during the twelve-month period ending on the date of the most recent acquisition) ownership of the Company’s stock possessing fifty percent (50%) or more of the total voting power of the Company’s stock;
(iii) a majority of the members of the Board are replaced during any twelve-month period by directors whose appointment or election is not endorsed by a majority of the Board before the date of appointment or election; or
(iv) the sale of all or substantially all of the Company’s assets.
5.5 Notice of Termination. Any termination of the Executive’s employment hereunder by the Company or by the Executive during the Employment Term (other than termination pursuant to Section 5.3(a) on account of the Executive’s death) shall be communicated by written notice of termination (“Notice of Termination”) to the other party hereto in accordance with Section 26. The Notice of Termination shall specify:
(a) The termination provision of this Agreement relied upon;
(b) To the extent applicable, the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated; and
(c) The applicable Termination Date.
6
5.6 Termination Date. The Executive’s “Termination Date” shall be:
(a) If the Executive’s employment hereunder terminates on account of the Executive’s death, the date of the Executive’s death;
(b) If the Executive’s employment hereunder is terminated on account of the Executive’s Disability, the date that it is determined that the Executive has a Disability;
(c) If the Company terminates the Executive’s employment hereunder for Cause, the date the Notice of Termination is delivered to the Executive;
(d) If the Company terminates the Executive’s employment hereunder without Cause, the date specified in the Notice of Termination, which shall be no less than ten (10) days following the date on which the Notice of Termination is delivered; provided that, the Company shall have the option to provide the Executive with a lump sum payment equal to ten (10) days’ Base Salary in lieu of such notice, which shall be paid in a lump sum on the Executive’s Termination Date and for all purposes of this Agreement, the Executive’s Termination Date shall be the date on which such Notice of Termination is delivered;
(e) If the Executive terminates the Executive’s employment hereunder with Good Reason, the date the Notice of Termination is delivered to the Company.
(f) If the Executive terminates the Executive’s employment hereunder without Good Reason, the date specified in the Executive’s Notice of Termination, which shall be no less than thirty (30) days following the date on which the Notice of Termination is delivered; provided that, the Company may waive all or any part of the thirty (30) day notice period for no consideration by giving written notice to the Executive and for all purposes of this Agreement, the Executive’s Termination Date shall be the date determined by the Company; and
(g) If the Executive’s employment hereunder terminates because either party provides notice of non-renewal pursuant to Section 1, the Renewal Date immediately following the date on which the applicable party delivers such notice of non-renewal.
Notwithstanding anything contained herein, the Termination Date shall not occur until the date on which the Executive incurs a “separation from service” within the meaning of Section 409A.
5.7 Resignation of All Other Positions. On termination of the Executive’s employment hereunder for any reason, the Executive shall be deemed to have resigned from all positions that the Executive holds as an officer or member of the Board (or a committee thereof) of the Company or any of its affiliates.
5.8 Section 280G.
(a) If any of the payments or benefits received or to be received by the Executive (including, without limitation, any payment or benefits received in connection with a Change in Control or the Executive’s termination of employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 5.9, be subject to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”, then prior to making the 280G Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to the Executive of the 280G Payments after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the 280G Payments be reduced to the minimum extent necessary to ensure that no portion of the 280G Payments is subject to the Excise Tax. “Net Benefit” shall mean the present value of the 280G Payments net of all federal, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 shall be made in a manner determined by the Company that is consistent with the requirements of Section 409A.
7
(b) All calculations and determinations under this Section 5.9 shall be made by an independent accounting firm or independent tax counsel appointed by the Company (the “Tax Counsel”) whose determinations shall be conclusive and binding on the Company and the Executive for all purposes. For purposes of making the calculations and determinations required by this Section 5.9, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Company and the Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 5.9. The Company shall bear all costs the Tax Counsel may reasonably incur in connection with its services.
6. Cooperation. The parties agree that certain matters in which the Executive will be involved during the Employment Term may necessitate the Executive’s cooperation in the future. Accordingly, following the termination of the Executive’s employment for any reason (other than death), to the extent reasonably requested by the Board, the Executive shall cooperate with the Company in connection with matters arising out of the Executive’s service to the Company; provided that, the Company shall make reasonable efforts to minimize disruption of the Executive’s other activities. The Company shall reimburse the Executive for reasonable expenses incurred in connection with such cooperation and, to the extent that the Executive is required to spend substantial time on such matters, the Company shall compensate the Executive at an hourly rate based on the Executive’s Base Salary on the Termination Date.
7. Confidential Information. The Executive understands and acknowledges that during the Employment Term, the Executive will have access to and learn about Confidential Information, as defined below.
7.1 Confidential Information Defined.
(a) Definition.
For purposes of this Agreement, “Confidential Information” means all information of the Company or its affiliates that is not generally known to the public, whether in spoken, printed, electronic, or any other form or medium, and may include, without limitation, information related to or reflecting: business processes, practices, methods, policies, plans, publications, documents, research, operations, services, strategies, techniques, agreements, contracts, terms of agreements, transactions, potential transactions, negotiations, pending negotiations, know-how, trade secrets, computer programs, computer software, applications, operating systems, software design, web design, work-in-process, databases, device configurations, embedded data, compilations, metadata, technologies, manuals, records, articles, systems, material, sources of material, supplier information, vendor information, financial information, results, accounting information, accounting records, legal information, marketing information, advertising information, pricing information, credit information, design information, payroll information, staffing information, personnel information, employee lists, supplier lists, vendor lists, developments, reports, internal controls, security procedures, graphics, drawings, sketches, market studies, sales information, revenue, costs, formulae, notes, communications, algorithms, product plans, designs, styles, models, ideas, audiovisual programs, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, customer information, customer lists, client information, client lists, manufacturing information, factory lists, distributor lists, and buyer lists of the Company and its affiliates (“Company Group”) or its businesses or any existing or prospective customer, supplier, investor or other associated third party, or of any other person or entity that has entrusted information to the Company Group in confidence.
8
The Executive understands that the above list is not exhaustive and the Confidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used.
The Executive understands and agrees that Confidential Information includes information developed by Executive in the course of employment by the Company as if the Company furnished the same Confidential Information to the Executive in the first instance. Confidential Information shall not include information that is generally available to and known by the public at the time of disclosure to the Executive; provided that, such disclosure is through no direct or indirect fault of the Executive or person(s) acting on the Executive’s behalf.
(b) Company Creation and Use of Confidential Information.
The Executive understands and acknowledges that the Company Group has invested, and continues to invest, substantial time, money, and specialized knowledge into developing its resources, creating a customer base, generating customer and potential customer lists, training its employees, and improving its offerings in the field of civil contracting for residential, commercial, governmental, public sector, mixed use, multi-family projects. The Executive understands and acknowledges that as a result of these efforts, the Company Group has created, and continues to use and create, Confidential Information. This Confidential Information provides the Company Group with a competitive advantage over others in the marketplace.
(c) Disclosure and Use Restrictions.
The Executive agrees and covenants: (i) to treat all Confidential Information as strictly confidential; (ii) not to directly or indirectly disclose, publish, communicate, or make available Confidential Information, or allow it to be disclosed, published, communicated, or made available, in whole or part, to any entity or person whatsoever (including other employees of the Company Group) not having a need to know and authority to know and use the Confidential Information in connection with the business of the Company Group and, in any event, not to anyone outside of the direct employ of the Company Group except as required in the performance of the Executive’s authorized employment duties to the Company or with the prior consent of the CEO acting on behalf of the Company Group in each instance (and then, such disclosure shall be made only within the limits and to the extent of such duties or consent); and (iii) not to access or use any Confidential Information, and not to copy any documents, records, files, media, or other resources containing any Confidential Information, or remove any such documents, records, files, media, or other resources from the premises or control of the Company Group, except as required in the performance of the Executive’s authorized employment duties to the Company Group.
(d) Permitted Disclosures. Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to subpoena or valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. The Executive shall promptly provide written notice of any such subpoena or order to CEO.
(e) Permitted Communications. Nothing herein prohibits or restricts the Executive (or the Executive’s attorney) from initiating communications directly with, responding to an inquiry from, or providing testimony before the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), any other self-regulatory organization, or any other federal or state regulatory authority regarding a possible securities law violation.
(f) Notice of Immunity Under the Economic Espionage Act of 1996, as amended by the Defend Trade Secrets Act of 2016 (“DTSA”). Notwithstanding any other provision of this Agreement:
(i) The Executive will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that:
(A) is made (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (2) solely for the purpose of reporting or investigating a suspected violation of law; or
9
(B) is made in a complaint or other document filed under seal in a lawsuit or other proceeding.
(ii) If the Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, the Executive may disclose the Company’s trade secrets to the Executive’s attorney and use the trade secret information in the court proceeding if the Executive:
(A) files any document containing trade secrets under seal; and
(B) does not disclose trade secrets, except pursuant to court order.
The Executive understands and acknowledges that the Executive’s obligations under this Agreement with regard to any particular Confidential Information shall commence immediately upon the Executive first having access to such Confidential Information (whether before or after the Executive begins employment by the Company) and shall continue during and after the Executive’s employment by the Company until such time as such Confidential Information has become public knowledge other than as a result of the Executive’s breach of this Agreement or breach by those acting in concert with the Executive or on the Executive’s behalf.
8. Restrictive Covenants.
8.1 Acknowledgement. The Executive understands that the nature of the Executive’s position gives the Executive access to and knowledge of Confidential Information and places the Executive in a position of trust and confidence with the Company Group. The Executive understands and acknowledges that the intellectual or artistic services the Executive provides to the Company Group are unique, special, or extraordinary.
The Executive further understands and acknowledges that the Company Group’s ability to reserve these for the exclusive knowledge and use of the Company Group is of great competitive importance and commercial value to the Company Group, and that improper use or disclosure by the Executive is likely to result in unfair or unlawful competitive activity.
8.2 Non-Competition. Because of the Company Group’s legitimate business interest as described herein and the good and valuable consideration offered to the Executive, during the Employment Term and for the twelve (12) months, to run consecutively, beginning on the last day of the Executive’s employment with the Company, regardless of the reason for the termination and whether employment is terminated at the option of the Executive or the Company Group, the Executive agrees and covenants not to (except on behalf of the Company or its affiliates) engage in Prohibited Activity within the State of Georgia. For purposes of this Section 8, “Prohibited Activity” is activity in which the Executive contributes the Executive’s knowledge, directly or indirectly, in whole or in part, as an employee, employer, owner, operator, manager, advisor, consultant, agent, employee, partner, director, stockholder, officer, volunteer, intern, or any other similar capacity to an entity or on behalf of any entity that is engaged in the same or substantially similar business as the Company Group, including those engaged in the business of civil contracting for residential, commercial, government, public sector, mixed use, and multi-family projects. Prohibited Activity also includes activity that may require, or inevitably requires, disclosure of trade secrets, proprietary information or Confidential Information or includes activity of the type engaged in by the Executive on behalf of the Company during the Employment Term.
Nothing herein shall prohibit the Executive from purchasing or owning less than five percent (5%) of the publicly traded securities of any corporation, provided that such ownership represents a passive investment and that the Executive is not a controlling person of, or a member of a group that controls, such corporation.
This Section 8 does not, in any way, restrict or impede the Executive from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation, or order. The Executive shall promptly provide written notice of any such order to CEO.
8.3 Non-Solicitation of Employees. The Executive agrees and covenants not to, directly or indirectly, during twelve (12) months, to run consecutively, beginning on the last day of the Executive’s employment with the Company, (i) solicit for employment, hire, or recruit for employment, (ii) induce any employee of the Company Group to terminate his/her employment with the Company Group, or (iii) attempt to do any of the foregoing.
8.4 Non-Solicitation of Customers. The Executive understands and acknowledges that because of the Executive’s experience with and relationship to the Company Group, the Executive will have access to and learn about much or all of the Company Group’s customer information. “Customer Information” includes, but is not limited to, names, phone numbers, addresses, email addresses, order history, order preferences, chain of command, decisionmakers, pricing information, and other information identifying facts and circumstances specific to the customer and relevant to sales.
10
The Executive understands and acknowledges that loss of this customer relationship and/or goodwill will cause significant and irreparable harm.
The Executive agrees and covenants not to, during twelve (12) months, to run consecutively, beginning on the last day of the Executive’s employment with the Company, directly or indirectly, solicit any customer or actively sought prospective customers of the Company (a) with or about whom the Executive (i) contacted in any way during the prior twelve (12) months, (ii) has had material contact (as such term is defined in OCGA § 13-8-51), (iii) has had trade secrets or confidential information or information that is not available publicly, or (b) those customers who became customers during Executive’s employment with the Company, for purposes of providing such customer goods or services that are competitive with those offered by the Company.
8.5 Consideration. Employee acknowledges and agrees that Employee is signing this Agreement contemporaneously with Employee’s receipt of an additional payment of $1000.00 from the Company and that Employee would not be entitled to the $1000.00 payment but for Employee’s execution of this Agreement and specifically to agreement to the terms of Section 8 hereof. Employee acknowledges and agrees that the payment made contemporaneously with the execution of this Agreement constitutes bargained-for consideration that is valid and sufficient in all respects to support Employee’s obligations under this Agreement.
9. Non-Disparagement. The Executive agrees and covenants that the Executive will not at any time make, publish or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments, or statements concerning the Company Group, its businesses, or any of its employees, officers, and existing and prospective customers, suppliers, investors, and other associated third parties.
This Section 9 does not, in any way, restrict or impede the Executive from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation, or order. The Executive shall promptly provide written notice of any such order to CEO.
The Company agrees and covenants that it shall direct its officers and directors to refrain from making any defamatory or disparaging remarks, comments, or statements concerning the Executive to any third parties.
10. Acknowledgement. The Executive acknowledges and agrees that the services to be rendered by the Executive to the Company are of a special and unique character; that the Executive will obtain knowledge and skill relevant to the Company’s industry, methods of doing business and marketing strategies by virtue of the Executive’s employment; and that the restrictive covenants and other terms and conditions of this Agreement are reasonable and reasonably necessary to protect the legitimate business interest of the Company Group.
The Executive further acknowledges that the benefits provided to the Executive under this Agreement, including the amount of the Executive’s compensation reflects, in part, the Executive’s obligations and the Company’s rights under Section 7, Section 8, and Section 9 of this Agreement; that the Executive has no expectation of any additional compensation, royalties or other payment of any kind not otherwise referenced herein in connection herewith; and that the Executive will not suffer undue hardship by reason of full compliance with the terms and conditions of Section 7, Section 8, and Section 9 of this Agreement or the Company’s enforcement thereof.
11. Remedies. In the event of a breach or threatened breach by the Executive of Section 7, Section 8, or Section 9 of this Agreement, the Executive hereby consents and agrees that the Company shall be entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, and that money damages would not afford an adequate remedy, without the necessity of showing any actual damages. The aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages, or other available forms of relief.
12. Arbitration. Any dispute, controversy, or claim arising out of or related to this Agreement or any breach of this Agreement or the Executive’s employment, whether the claim arises in contract, tort, or statute, shall be submitted to and decided by binding arbitration. Arbitration shall be administered exclusively by American Arbitration Association and shall be conducted consistent with the rules, regulations, and requirements thereof as well as any requirements imposed by state law. Any arbitral award determination shall be final and binding upon the parties.
11
13. Proprietary Rights.
13.1 Work Product. The Executive acknowledges and agrees that all right, title, and interest in and to all writings, works of authorship, technology, inventions, discoveries, processes, techniques, methods, ideas, concepts, research, proposals, materials, and all other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, amended, conceived, or reduced to practice by the Executive individually or jointly with others during the Employment Term and relate in any way to the business or contemplated business, products, activities, research, or development of the Company or result from any work performed by the Executive for the Company (in each case, regardless of when or where prepared or whose equipment or other resources is used in preparing the same), all rights and claims related to the foregoing, and all printed, physical and electronic copies, and other tangible embodiments thereof (collectively, “Work Product”), as well as any and all rights in and to US and foreign (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing, (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (d) trade secrets, know-how, and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights, all improvements thereto and all similar or equivalent rights or forms of protection in any part of the world (collectively, “Intellectual Property Rights”), shall be the sole and exclusive property of the Company.
For purposes of this Agreement, Work Product includes, but is not limited to, Company Group information.
13.2 Work Made for Hire; Assignment. The Executive acknowledges that, by reason of being employed by the Company at the relevant times, to the extent permitted by law, all of the Work Product consisting of copyrightable subject matter is “work made for hire” as defined in 17 U.S.C. § 101 and such copyrights are therefore owned by the Company. To the extent that the foregoing does not apply, the Executive hereby irrevocably assigns to the Company, for no additional consideration, the Executive’s entire right, title, and interest in and to all Work Product and Intellectual Property Rights therein, including the right to sue, counterclaim, and recover for all past, present, and future infringement, misappropriation, or dilution thereof, and all rights corresponding thereto throughout the world. Nothing contained in this Agreement shall be construed to reduce or limit the Company’s rights, title, or interest in any Work Product or Intellectual Property Rights so as to be less in any respect than that the Company would have had in the absence of this Agreement.
13.3 Further Assurances; Power of Attorney. During and after the Employment Term, the Executive agrees to reasonably cooperate with the Company to (a) apply for, obtain, perfect, and transfer to the Company the Work Product as well as any and all Intellectual Property Rights in the Work Product in any jurisdiction in the world; and (b) maintain, protect and enforce the same, including, without limitation, giving testimony and executing and delivering to the Company any and all applications, oaths, declarations, affidavits, waivers, assignments, and other documents and instruments as shall be requested by the Company. The Executive hereby irrevocably grants the Company power of attorney to execute and deliver any such documents on the Executive’s behalf in the Executive’s name and to do all other lawfully permitted acts to transfer the Work Product to the Company and further the transfer, prosecution, issuance, and maintenance of all Intellectual Property Rights therein, to the full extent permitted by law, if the Executive does not promptly cooperate with the Company’s request (without limiting the rights the Company shall have in such circumstances by operation of law). The power of attorney is coupled with an interest and shall not be affected by the Executive’s subsequent incapacity.
12
13.4 No License. The Executive understands that this Agreement does not, and shall not be construed to, grant the Executive any license or right of any nature with respect to any Work Product or Intellectual Property Rights or any Confidential Information, materials, software, or other tools made available to the Executive by the Company.
14. Security.
14.1 Security and Access. The Executive agrees and covenants (a) to comply with any Company security policies and procedures as in force from time to time, if any; (b) not to access or use any Company resources except as authorized by the Company; and (iii) not to access or use any Company resources in any manner after the termination of the Executive’s employment by the Company, whether termination is voluntary or involuntary. The Executive agrees to notify the Company promptly in the event the Executive learns of any violation of the foregoing by others, or of any other misappropriation or unauthorized access, use, reproduction, or reverse engineering of, or tampering with any Company resources or other Company Group property or materials by others.
14.2 Exit Obligations. Upon (a) voluntary or involuntary termination of the Executive’s employment or (b) the Company’s request at any time during the Executive’s employment, the Executive shall (i) provide or return to the Company any and all Company property, including keys, key cards, access cards, computers, and cell phones and all Company Group documents and materials belonging to the Company and stored in any fashion, including but not limited to those that constitute or contain any Confidential Information or Work Product, that are in the possession or control of the Executive, whether they were provided to the Executive by the Company Group or any of its business associates or created by the Executive in connection with the Executive’s employment by the Company; and (ii) delete or destroy all copies of any such documents and materials not returned to the Company that remain in the Executive’s possession or control, including those stored on any non- Company Group devices, networks, storage locations, and media in the Executive’s possession or control.
15. Publicity. The Executive hereby irrevocably consents to any and all uses and displays, by the Company Group and its agents, representatives and licensees, of the Executive’s name, voice, likeness, image, appearance, and biographical information in, on or in connection with any pictures, photographs, audio and video recordings, digital images, websites, television programs and advertising, other advertising and publicity, sales and marketing brochures, books, magazines, other publications, CDs, DVDs, tapes, and all other printed and electronic forms and media throughout the world, at any time during or after the Employment Term, for all legitimate commercial and business purposes of the Company Group (“Permitted Uses”) without further consent from or royalty, payment, or other compensation to the Executive. The Executive hereby forever waives and releases the Company Group and its directors, officers, employees, and agents from any and all claims, actions, damages, losses, costs, expenses, and liability of any kind, arising under any legal or equitable theory whatsoever at any time during or after the Employment Term, arising directly or indirectly from the Company Group’s and its agents’, representatives’, and licensees’ exercise of their rights in connection with any Permitted Uses.
16. Governing Law: Jurisdiction and Venue. This Agreement, for all purposes, shall be construed in accordance with the laws of the State of Georgia without regard to conflicts of law principles. Any action or proceeding by either of the parties to enforce this Agreement or assert a breach of this Agreement shall be brought only in a state or federal court located in the State of Georgia, County of Gwinnett. The parties hereby irrevocably submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue.
17. Entire Agreement. Unless specifically provided herein, this Agreement contains all of the understandings and representations between the Executive and the Company pertaining to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. The parties mutually agree that the Agreement can be specifically enforced in court and can be cited as evidence in legal proceedings alleging breach of the Agreement.
18. Modification and Waiver. No provision of this Agreement may be amended or modified unless such amendment or modification is agreed to in writing and signed by the Executive and by CEO of the Company. No waiver by either of the parties of any breach by the other party hereto of any condition or provision of this Agreement to be performed by the other party hereto shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by either of the parties in exercising any right, power, or privilege hereunder operate as a waiver thereof to preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege.
13
19. Severability. Should any provision of this Agreement be held by a court of competent jurisdiction to be enforceable only if modified, or if any portion of this Agreement shall be held as unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the parties with any such modification to become a part hereof and treated as though originally set forth in this Agreement.
The parties further agree that any such court is expressly authorized to modify any such unenforceable provision of this Agreement in lieu of severing such unenforceable provision from this Agreement in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, adding additional language to this Agreement, or by making such other modifications as it deems warranted to carry out the intent and agreement of the parties as embodied herein to the maximum extent permitted by law.
The parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable against each of them. In any event, should one or more of the provisions of this Agreement be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions hereof, and if such provision or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had not been set forth herein.
20. Captions. Captions and headings of the sections and paragraphs of this Agreement are intended solely for convenience and no provision of this Agreement is to be construed by reference to the caption or heading of any section or paragraph.
21. Counterparts. This Agreement may be executed in separate counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
22. Tolling. Should the Executive violate any of the terms of the restrictive covenant obligations articulated herein, the obligation at issue will run from the first date on which the Executive ceases to be in violation of such obligation.
23. Section 409A.
23.1 General Compliance. This Agreement is intended to comply with Section 409A or an exemption thereunder and shall be construed and administered in accordance with Section 409A. Notwithstanding any other provision of this Agreement, payments provided under this Agreement may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment provided under this Agreement shall be treated as a separate payment. Any payments to be made under this Agreement upon a termination of employment shall only be made upon a “separation from service” under Section 409A. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A, and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest, or other expenses that may be incurred by the Executive on account of non-compliance with Section 409A.
23.2 Specified Employees. Notwithstanding any other provision of this Agreement, if any payment or benefit provided to the Executive in connection with the Executive’s termination of employment is determined to constitute “nonqualified deferred compensation” within the meaning of Section 409A and the Executive is determined to be a “specified employee” as defined in Section 409A(a)(2)(b)(i), then such payment or benefit shall not be paid until the first payroll date following the six-month anniversary of the Termination Date or, if earlier, on the Executive’s death (the “Specified Employee Payment Date”). The aggregate of any payments that would otherwise have been paid before the Specified Employee Payment Date and interest on such amounts calculated based on the applicable federal rate published by the Internal Revenue Service for the month in which the Executive’s separation from service occurs shall be paid to the Executive in a lump sum on the Specified Employee Payment Date and thereafter, any remaining payments shall be paid without delay in accordance with their original schedule.
23.3 Reimbursements. To the extent required by Section 409A, each reimbursement or in-kind benefit provided under this Agreement shall be provided in accordance with the following:
(a) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during each calendar year cannot affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year;
(b) any reimbursement of an eligible expense shall be paid to the Executive on or before the last day of the calendar year following the calendar year in which the expense was incurred; and
(c) any right to reimbursements or in-kind benefits under this Agreement shall not be subject to liquidation or exchange for another benefit.
14
23.4 Tax Gross-ups. Any tax gross-up payments provided under this Agreement shall be paid to the Executive on or before December 31 of the calendar year immediately following the calendar year in which the Executive remits the related taxes.
24. Notification to Subsequent Employer. When the Executive’s employment with the Company terminates, the Executive agrees to notify any subsequent employer of the provisions of Sections 7 and 8 hereof. The Executive will also deliver a copy of such notice to the Company before the Executive commences employment with any subsequent employer (provided, however, that such obligation will expire upon the expiration of the covenants set forth in Sections 7 and 8). In addition, the Executive authorizes the Company to provide a copy of the restrictive covenants sections of this Agreement to third parties, including but not limited to, the Executive’s subsequent, anticipated, or possible future employer.
25. Successors and Assigns. This Agreement is personal to the Executive and shall not be assigned by the Executive. Any purported assignment by the Executive shall be null and void from the initial date of the purported assignment. The Company may assign this Agreement to any successor or assign (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Company. This Agreement shall inure to the benefit of, and be binding upon, the Company and its permitted successors and assigns.
26. Notice. Notices and all other communications provided for in this Agreement shall be in writing and shall be delivered personally or sent by registered or certified mail, return receipt requested, or by overnight carrier to the parties at the addresses set forth below (or such other addresses as specified by the parties by like notice):
If to the Company:
Cardinal Infrastructure Group Inc.
100 E. Six Forks Road, Suite 300
Raleigh, North Carolina 27609
Attn: Jeremy Spivey
Email: [email protected]
With a copy to (which shall not constitute notice):
Manning, Fulton & Skinner, P.A.
PO Box 20389
Raleigh, North Carolina 27619-0389
Attn: Thomas I. Lyon, Esq.
Email: [email protected]
If to the Executive:
Anthony L. Wood, Jr.
[***]
27. Representations of the Executive. The Executive represents and warrants to the Company that:
(a) The Executive’s acceptance of employment with the Company and the performance of duties hereunder will not conflict with or result in a violation of, a breach of, or a default under any contract, agreement, or understanding to which the Executive is a party or is otherwise bound.
(b) The Executive’s acceptance of employment with the Company and the performance of duties hereunder will not violate any non-solicitation, non-competition, or other similar covenant or agreement of a prior employer.
28. Withholding. The Company shall have the right to withhold from any amount payable hereunder any Federal, state, and local taxes in order for the Company to satisfy any withholding tax obligation it may have under any applicable law or regulation.
29. Survival. Upon the expiration or other termination of this Agreement, the respective rights and obligations of the parties hereto shall survive such expiration or other termination to the extent necessary to carry out the intentions of the parties under this Agreement.
30. Acknowledgement of Full Understanding. THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT THE EXECUTIVE HAS FULLY READ, UNDERSTANDS AND VOLUNTARILY ENTERS INTO THIS AGREEMENT. THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT THE EXECUTIVE HAS HAD AN OPPORTUNITY TO ASK QUESTIONS AND CONSULT WITH AN ATTORNEY OF THE EXECUTIVE’S CHOICE BEFORE SIGNING THIS AGREEMENT.
[signature page follows]
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| A.L. GRADING CONTRACTORS, LLC | ||
| By | /s/ Jeremy S. Spivey | |
| Name: | Jeremy S. Spivey | |
| Title: | Manager | |
| EXECUTIVE | ||
| Signature: | /s/ Anthony L. Wood, Jr. | |
| Print Name: | Anthony L. Wood, Jr. | |
Exhibit 10.7
Employment Agreement
This Employment Agreement (the “Agreement”) is made and entered into as of February 18, 2026 (the “Effective Date”), by and between Benjamin A. Wood (the “Executive”) and Cardinal Infrastructure Group, Inc., a Delaware corporation (the “Company”).
WHEREAS, Employee is currently employed by Company. Company wishes to employ employee in a position in which Employee will have access to confidential and proprietary information about the Company and its business and will have direct contact with Company’s clients. The execution of this Agreement is a condition to the Company continuing to employee the Employee, and the Company would not continue to employ the Employee without the Employee’s execution and delivery of this Agreement. In order to prevent unauthorized disclosure of its confidential information and interference with its Client relationships, Company is requiring Employee to agree to certain restrictions in order to be employed by Company.
WHEREAS, undefined terms used herein shall have the meaning ascribed to them as set forth in that certain Membership Interests Purchase and Contribution Agreement (“MIPCA”) by and among Diamond Interests Group, LLC, a Florida limited liability company, A.L. Grading Contractors, LLC, a Georgia limited liability company, Anthony L. Wood, Jr., an individual resident of the State of Florida, Benjamin A. Wood, an individual resident of the State of Georgia, Cardinal Civil Contracting Holdings LLC, a Delaware limited liability company, and the Company.
WHEREAS, Company and Employee acknowledge the necessity of the covenants of the Employee as set forth herein for the reasonable protection of Company and Employee is willing to agree to certain restrictions, including those on disclosure of Confidential Information and competitive activity.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual promises contained herein, the agreement of the Company to continue to employee the Employee upon execution of this Agreement, the compensation and any benefits given to the Employee or promised to be given to the Employee in the future, the payment by the Company to the Employee in the amount of $1,000.00 as set forth in Section 8.5. below and made contemporaneously with Employee’s execution of this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Term. The Executive’s employment hereunder shall be effective as of the Effective Date and shall continue until the third anniversary thereof (“Initial Term”), unless terminated earlier pursuant to this Agreement; provided that, on such third anniversary of the Effective Date and each annual anniversary thereafter (such date and each annual anniversary thereof, a “Renewal Date”), the Agreement shall be deemed to be automatically extended, upon the same terms and conditions, for successive periods of one year, unless either party provides written notice of its intention not to extend the term of the Agreement at least ninety (90) days’ prior to the applicable Renewal Date. The period during which of the Executive is employed by the Company hereunder is hereinafter referred to as the “Employment Term”.
2. Position and Duties.
2.1 Position. During the Employment Term, the Executive shall serve as the Chief Operating Officer of the Company, reporting to the Chief Executive Officer of the Company, along with serving as Vice President of A.L. Grading Contractors, LLC, also reporting to the Chief Executive Officer of the Company. In such position, the Executive shall have such duties, authority, and responsibilities as shall be determined from time to time by Jeremy Spivey, which duties, authority, and responsibilities are consistent with the Executive’s position.
2.2 Duties. During the Employment Term, the Executive shall devote substantially all of the Executive’s business time and attention to the performance of the Executive’s duties hereunder and will not engage in any other business, profession, or occupation for compensation or otherwise which would conflict or materially interfere with the performance of such services either directly or indirectly without the prior written consent of the Board.
3. Place of Performance. The principal place of Executive’s employment shall be the Company’s principal executive office currently located in Sugar Hill, Georgia; provided that, the Executive may be required to travel on Company business during the Employment Term.
4. Compensation.
4.1 Base Salary and Bonus
(a) Base Salary. During the Employment Term, the Company shall pay the Executive an annual base salary in the gross amount of $400,000 in periodic installments in accordance with the Company’s customary payroll practices and applicable wage payment laws, but no less frequently than monthly. The Executive’s annual base salary, as in effect from time to time, is hereinafter referred to as “Base Salary”. Executive’s Base Salary shall not be reduced at any time for any reason other than in the event of a Company-wide compensation reduction resulting from economic necessity.
(b) Semi-Annual Bonus. The Executive shall be eligible for a discretionary semi-annual bonus of up to thirty-seven and one-half percent (37.5%) of such Executive’s Base Salary in the event Executive meets or exceeds certain performance indicators as reasonably established by the Company from time to time.
(c) Equity Incentive Awards. In addition to, and not in limitation, of Section 4.1(a) and (b) above, at the first meeting after the date hereof at which the Compensation Committee of the Board of Directors of the Company approves equity incentive awards for employees of the Company under the Company’s 2025 Stock Incentive Plan, which meeting shall be no later than July 31, 2026, the Compensation Committee shall grant equity incentive awards to Executive described in Schedule 6.5(b) of the MIPCA in such amounts and subject to such vesting requirements which are commensurate with, respectively, similarly situated employees of the Company.
4.2 Fringe Benefits and Perquisites. During the Employment Term, the Executive shall be entitled to fringe benefits and perquisites consistent with the practices of the Company and governing benefit plan requirements (including plan eligibility provisions), and to the extent the Company provides similar benefits or perquisites (or both) to similarly situated executives of the Company.
4.3 Employee Benefits. During the Employment Term, the Executive shall be entitled to participate in all employee benefit plans, practices, and programs maintained by the Company, as in effect from time to time (collectively, “Employee Benefit Plans”), on a basis which is no less favorable than is provided to other similarly situated executives of the Company, to the extent consistent with applicable law and the terms of the applicable Employee Benefit Plans. The Company reserves the right to amend or terminate any Employee Benefit Plans at any time in its sole discretion, subject to the terms of such Employee Benefit Plan and applicable law.
4.4 Vacation; Paid Time Off. During the Employment Term, the Executive shall be entitled to paid vacation days per calendar year (prorated for partial years) in accordance with the Company’s vacation policies, as in effect from time to time. The Executive shall receive other paid time off in accordance with the Company’s policies for executive officers as such policies may exist from time to time and applicable law.
4.5 Business Expenses. The Executive shall be entitled to reimbursement for all reasonable and necessary out-of-pocket business, entertainment, and travel expenses incurred by the Executive in connection with the performance of the Executive’s duties hereunder in accordance with the Company’s expense reimbursement policies and procedures and applicable law.
2
4.6 Indemnification.
(a) In the event that the Executive is, during or after the Employment Term, made a party or threatened to be made a party to any action, suit, or proceeding, whether civil, criminal, administrative, or investigative (a “Proceeding”), other than any Proceeding initiated by the Executive or the Company related to any contest or dispute between the Executive and the Company or any of its affiliates with respect to this Agreement or the Executive’s employment hereunder, by reason of the fact that the Executive is or was a director or officer of the Company, or any affiliate of the Company, or is or was serving at the request of the Company as a director, officer, member, employee, or agent of another corporation or a partnership, joint venture, trust, or other enterprise, the Executive shall be indemnified and held harmless by the Company to the fullest extent applicable to any other officer or director of the Company from and against any liabilities, costs, claims, and expenses, including all costs and expenses incurred in defense of any Proceeding (including attorneys’ fees). Costs and expenses incurred by the Executive in defense of such Proceeding (including attorneys’ fees) shall be paid by the Company in advance of the final disposition of such litigation upon receipt by the Company of: (i) a written request for payment; (ii) appropriate documentation evidencing the incurrence, amount, and nature of the costs and expenses for which payment is being sought; and (iii) an undertaking adequate under applicable law made by or on behalf of the Executive to repay the amounts so paid if it shall ultimately be determined that the Executive is not entitled to be indemnified by the Company under this Agreement.
(b) During the Employment Term and for a period of six (6) years thereafter, the Company or any successor to the Company shall purchase and maintain, at its own expense, directors’ and officers’ liability insurance providing coverage to the Executive on terms that are no less favorable than the coverage provided to other directors and similarly situated executives of the Company or any successor.
5. Termination of Employment. The Employment Term and the Executive’s employment hereunder may be terminated by either the Company or the Executive at any time and for any reason; provided that, unless otherwise provided herein, either party shall be required to give the other party at least 15 days advance written notice of any termination of the Executive’s employment. On termination of the Executive’s employment during the Employment Term, the Executive shall be entitled to the compensation and benefits described in this Section 5 (and in Section 4.6 above) and shall have no further rights to any compensation or any other benefits from the Company or any of its affiliates.
5.1 For Cause or Without Good Reason.
(a) The Executive’s employment hereunder may be terminated by the Company for Cause or by the Executive without Good Reason. If the Executive’s employment is terminated (i) by the Company for Cause, or (ii) by the Executive without Good Reason, the Executive shall be entitled to receive:
(i) any accrued but unpaid Base Salary and accrued but unused vacation which shall be paid on the pay date immediately following the Termination Date (as defined below) in accordance with the Company’s customary payroll procedures;
(ii) reimbursement for unreimbursed business expenses properly incurred by the Executive, which shall be subject to and paid in accordance with the Company’s expense reimbursement policy; and
3
(iii) such employee benefits (including equity compensation), if any, to which the Executive may be entitled under the Company’s employee benefit plans as of the Termination Date; provided that, in no event shall the Executive be entitled to any payments in the nature of severance or termination payments except as specifically provided herein.
Items 5.1(a)(i) through 5.1(a)(iii) are referred to herein collectively as the “Accrued Amounts”.
(b) For purposes of this Agreement, “Cause” shall mean:
(i) the Executive’s repeated, willful, or unauthorized failure to perform Executive’s duties (other than any such failure resulting from incapacity due to physical or mental illness);
(ii) the Executive’s failure to comply with any valid and legal directive of the Chief Executive Officer of the Company;
(iii) the Executive’s engagement in dishonesty, illegal conduct, or misconduct, which is, in each case, injurious to the Company or its affiliates;
Any act, or failure to act, based on authority given pursuant to a resolution duly adopted by the Board or on the advice of counsel for the Company shall be conclusively presumed to be done, or omitted to be done, by the Executive in good faith and in the best interests of the Company or its affiliates.
The Company cannot terminate employment for Cause unless (a) it has provided written notice to the Executive setting forth in reasonable detail the existence of the circumstances providing grounds for termination for Cause and (b) the Executive has failed to cure such circumstances within ten (10) business days of the Executive’s receipt of such notice.
(c) For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following, in each case during the Employment Term without the Executive’s prior written consent:
(i) a relocation of the Executive’s principal place of employment by more than twenty-five (25) miles by driven road;
(ii) any material breach by the Company of any material provision of this Agreement or any material provision of any other agreement between the Executive and the Company;
(iii) a reduction in the Executive’s Base Salary;
(iv) the Company’s failure to obtain an agreement from any successor to the Company to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no succession had taken place, except where such assumption occurs by operation of law;
(v) an adverse change in the Executive’s title, authority, duties, or responsibilities (other than temporarily while the Executive is physically or mentally incapacitated or as required by applicable law); or
(vi) an adverse change in the reporting structure applicable to the Executive.
4
The Executive cannot terminate employment for Good Reason unless (a) the Executive has provided written notice to the Company of the existence of the circumstances providing grounds for termination for Good Reason within ten (10) days of the initial existence of such grounds and the Company has had at least fifteen (15) days from the date on which such notice is provided to cure such circumstances. If the Company fails to cure such circumstances, and if the Executive does not terminate employment for Good Reason within ten (10) days after the failure of the Company to cure, then the Executive will be deemed to have waived the right to terminate for Good Reason with respect to such grounds.
5.2 Without Cause, or for Good Reason. The Employment Term and the Executive’s employment hereunder may be terminated by the Executive for Good Reason or by the Company without Cause. In the event of such termination, the Executive shall be entitled to receive the Accrued Amounts, and subject to the Executive’s compliance with Section 6, Section 7, Section 8, and Section 9 of this Agreement and the Executive’s execution of a release of claims in favor of the Company, its affiliates and their respective officers and directors in a form provided by the Company (the “Release”) and such Release becoming effective within thirty (30) days following the Termination Date (such thirty (30) day period, the “Release Execution Period”), the Executive shall also be entitled to receive the following:
(a) If such termination occurs, a lump-sum payment equal to the Executive’s Base Salary for the year in which the Termination Date occurs, which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
5.3 Death or Disability.
(a) The Executive’s employment hereunder shall terminate automatically on the Executive’s death during the Employment Term, and the Company may terminate the Executive’s employment on account of the Executive’s Disability.
(b) If the Executive’s employment is terminated during the Employment Term on account of the Executive’s death or Disability, the Executive (or the Executive’s estate and/or beneficiaries, as the case may be) shall be entitled to receive the following: the Accrued Amounts. Notwithstanding any other provision contained herein, all payments made in connection with the Executive’s Disability shall be provided in a manner which is consistent with federal and state law.
(c) For purposes of this Agreement, “Disability” shall mean the Executive’s inability, due to physical or mental incapacity, to perform the essential functions of the Executive’s job, with or without reasonable accommodation, for one hundred eighty (180) days out of any three hundred sixty-five (365) day period or one hundred twenty (120) consecutive days Any question as to the existence of the Executive’s Disability as to which the Executive and the Company cannot agree shall be determined in writing by a qualified independent physician mutually acceptable to the Executive and the Company. If the Executive and the Company cannot agree as to a qualified independent physician, each shall appoint such a physician and those two physicians shall select a third who shall make such determination in writing. The determination of Disability made in writing to the Company and the Executive shall be final and conclusive for all purposes of this Agreement.
5
5.4 Change in Control Termination.
(a) Notwithstanding any other provision contained herein, if the Executive’s employment hereunder is terminated by the Executive for Good Reason, or by the Company without Cause (other than on account of the Executive’s death or Disability), in each case within twelve (12) months following a Change in Control, the Executive shall be entitled to receive the Accrued Amounts and subject to the Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement and the Executive’s execution of a Release which becomes effective within 30 days following the Termination Date, the Executive shall also be entitled to receive the following:
(i) If such termination occurs during the Initial Term, a lump sum payment equal to the greater of: (i) one and one half (1.5) times multiplied by the Executive’s Base Salary for the calendar year in which the Termination Date occurs, or if greater, the year in which the Change in Control occurs, which shall be paid within thirty (30) days following the Termination Date (as determined in accordance with Section 5.6) , (ii) a lump sum payment equal to the amount of Executive’s Base Salary to be paid for the remainder of the Initial Term, which shall be paid within thirty (30) days following the Termination Date; or if such termination occurs at any time after the expiration of the Initial Term, a lump sum payment equal to the Executive’s Base Salary for the calendar year in which the Termination Date occurs, which shall be paid within thirty (30) days following the Termination Date; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payment shall not be made until the beginning of the second taxable year.
(b) For purposes of this Agreement, “Change in Control” shall mean the occurrence of any of the following after the Effective Date:
(i) one person (or more than one person acting as a group) acquires ownership of stock of the Company that, together with the stock held by such person or group, constitutes more than fifty percent (50%) of the total fair market value or total voting power of the stock of such corporation; provided that, a Change in Control shall not occur if any person (or more than one person acting as a group) owns more than fifty percent (50%) of the total fair market value or total voting power of the Company’s stock and acquires additional stock;
(ii) one person (or more than one person acting as a group) acquires (or has acquired during the twelve-month period ending on the date of the most recent acquisition) ownership of the Company’s stock possessing fifty percent (50%) or more of the total voting power of the Company’s stock;
(iii) a majority of the members of the Board are replaced during any twelve-month period by directors whose appointment or election is not endorsed by a majority of the Board before the date of appointment or election; or
(iv) the sale of all or substantially all of the Company’s assets.
5.5 Notice of Termination. Any termination of the Executive’s employment hereunder by the Company or by the Executive during the Employment Term (other than termination pursuant to Section 5.3(a) on account of the Executive’s death) shall be communicated by written notice of termination (“Notice of Termination”) to the other party hereto in accordance with Section 26. The Notice of Termination shall specify:
(a) The termination provision of this Agreement relied upon;
(b) To the extent applicable, the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated; and
(c) The applicable Termination Date.
6
5.6 Termination Date. The Executive’s “Termination Date” shall be:
(a) If the Executive’s employment hereunder terminates on account of the Executive’s death, the date of the Executive’s death;
(b) If the Executive’s employment hereunder is terminated on account of the Executive’s Disability, the date that it is determined that the Executive has a Disability;
(c) If the Company terminates the Executive’s employment hereunder for Cause, the date the Notice of Termination is delivered to the Executive;
(d) If the Company terminates the Executive’s employment hereunder without Cause, the date specified in the Notice of Termination, which shall be no less than ten (10) days following the date on which the Notice of Termination is delivered; provided that, the Company shall have the option to provide the Executive with a lump sum payment equal to ten (10) days’ Base Salary in lieu of such notice, which shall be paid in a lump sum on the Executive’s Termination Date and for all purposes of this Agreement, the Executive’s Termination Date shall be the date on which such Notice of Termination is delivered;
(e) If the Executive terminates the Executive’s employment hereunder with Good Reason, the date the Notice of Termination is delivered to the Company.
(f) If the Executive terminates the Executive’s employment hereunder without Good Reason, the date specified in the Executive’s Notice of Termination, which shall be no less than thirty (30) days following the date on which the Notice of Termination is delivered; provided that, the Company may waive all or any part of the thirty (30) day notice period for no consideration by giving written notice to the Executive and for all purposes of this Agreement, the Executive’s Termination Date shall be the date determined by the Company; and
(g) If the Executive’s employment hereunder terminates because either party provides notice of non-renewal pursuant to Section 1, the Renewal Date immediately following the date on which the applicable party delivers such notice of non-renewal.
Notwithstanding anything contained herein, the Termination Date shall not occur until the date on which the Executive incurs a “separation from service” within the meaning of Section 409A.
5.7 Resignation of All Other Positions. On termination of the Executive’s employment hereunder for any reason, the Executive shall be deemed to have resigned from all positions that the Executive holds as an officer or member of the Board (or a committee thereof) of the Company or any of its affiliates.
5.8 Section 280G.
(a) If any of the payments or benefits received or to be received by the Executive (including, without limitation, any payment or benefits received in connection with a Change in Control or the Executive’s termination of employment, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement, or otherwise) (all such payments collectively referred to herein as the “280G Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code and would, but for this Section 5.9, be subject to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”, then prior to making the 280G Payments, a calculation shall be made comparing (i) the Net Benefit (as defined below) to the Executive of the 280G Payments after payment of the Excise Tax to (ii) the Net Benefit to the Executive if the 280G Payments are limited to the extent necessary to avoid being subject to the Excise Tax. Only if the amount calculated under (i) above is less than the amount under (ii) above will the 280G Payments be reduced to the minimum extent necessary to ensure that no portion of the 280G Payments is subject to the Excise Tax. “Net Benefit” shall mean the present value of the 280G Payments net of all federal, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 5.9 shall be made in a manner determined by the Company that is consistent with the requirements of Section 409A.
7
(b) All calculations and determinations under this Section 5.9 shall be made by an independent accounting firm or independent tax counsel appointed by the Company (the “Tax Counsel”) whose determinations shall be conclusive and binding on the Company and the Executive for all purposes. For purposes of making the calculations and determinations required by this Section 5.9, the Tax Counsel may rely on reasonable, good faith assumptions and approximations concerning the application of Section 280G and Section 4999 of the Code. The Company and the Executive shall furnish the Tax Counsel with such information and documents as the Tax Counsel may reasonably request in order to make its determinations under this Section 5.9. The Company shall bear all costs the Tax Counsel may reasonably incur in connection with its services.
6. Cooperation. The parties agree that certain matters in which the Executive will be involved during the Employment Term may necessitate the Executive’s cooperation in the future. Accordingly, following the termination of the Executive’s employment for any reason (other than death), to the extent reasonably requested by the Board, the Executive shall cooperate with the Company in connection with matters arising out of the Executive’s service to the Company; provided that, the Company shall make reasonable efforts to minimize disruption of the Executive’s other activities. The Company shall reimburse the Executive for reasonable expenses incurred in connection with such cooperation and, to the extent that the Executive is required to spend substantial time on such matters, the Company shall compensate the Executive at an hourly rate based on the Executive’s Base Salary on the Termination Date.
7. Confidential Information. The Executive understands and acknowledges that during the Employment Term, the Executive will have access to and learn about Confidential Information, as defined below.
7.1 Confidential Information Defined.
(a) Definition.
For purposes of this Agreement, “Confidential Information” means all information of the Company or its affiliates that is not generally known to the public, whether in spoken, printed, electronic, or any other form or medium, and may include, without limitation, information related to or reflecting: business processes, practices, methods, policies, plans, publications, documents, research, operations, services, strategies, techniques, agreements, contracts, terms of agreements, transactions, potential transactions, negotiations, pending negotiations, know-how, trade secrets, computer programs, computer software, applications, operating systems, software design, web design, work-in-process, databases, device configurations, embedded data, compilations, metadata, technologies, manuals, records, articles, systems, material, sources of material, supplier information, vendor information, financial information, results, accounting information, accounting records, legal information, marketing information, advertising information, pricing information, credit information, design information, payroll information, staffing information, personnel information, employee lists, supplier lists, vendor lists, developments, reports, internal controls, security procedures, graphics, drawings, sketches, market studies, sales information, revenue, costs, formulae, notes, communications, algorithms, product plans, designs, styles, models, ideas, audiovisual programs, inventions, unpublished patent applications, original works of authorship, discoveries, experimental processes, experimental results, specifications, customer information, customer lists, client information, client lists, manufacturing information, factory lists, distributor lists, and buyer lists of the Company and its affiliates (“Company Group”) or its businesses or any existing or prospective customer, supplier, investor or other associated third party, or of any other person or entity that has entrusted information to the Company Group in confidence.
8
The Executive understands that the above list is not exhaustive and the Confidential Information also includes other information that is marked or otherwise identified as confidential or proprietary, or that would otherwise appear to a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used.
The Executive understands and agrees that Confidential Information includes information developed by Executive in the course of employment by the Company as if the Company furnished the same Confidential Information to the Executive in the first instance. Confidential Information shall not include information that is generally available to and known by the public at the time of disclosure to the Executive; provided that, such disclosure is through no direct or indirect fault of the Executive or person(s) acting on the Executive’s behalf.
(b) Company Creation and Use of Confidential Information.
The Executive understands and acknowledges that the Company Group has invested, and continues to invest, substantial time, money, and specialized knowledge into developing its resources, creating a customer base, generating customer and potential customer lists, training its employees, and improving its offerings in the field of civil contracting for residential, commercial, governmental, public sector, mixed use, multi-family projects. The Executive understands and acknowledges that as a result of these efforts, the Company Group has created, and continues to use and create, Confidential Information. This Confidential Information provides the Company Group with a competitive advantage over others in the marketplace.
(c) Disclosure and Use Restrictions.
The Executive agrees and covenants: (i) to treat all Confidential Information as strictly confidential; (ii) not to directly or indirectly disclose, publish, communicate, or make available Confidential Information, or allow it to be disclosed, published, communicated, or made available, in whole or part, to any entity or person whatsoever (including other employees of the Company Group) not having a need to know and authority to know and use the Confidential Information in connection with the business of the Company Group and, in any event, not to anyone outside of the direct employ of the Company Group except as required in the performance of the Executive’s authorized employment duties to the Company or with the prior consent of the CEO acting on behalf of the Company Group in each instance (and then, such disclosure shall be made only within the limits and to the extent of such duties or consent); and (iii) not to access or use any Confidential Information, and not to copy any documents, records, files, media, or other resources containing any Confidential Information, or remove any such documents, records, files, media, or other resources from the premises or control of the Company Group, except as required in the performance of the Executive’s authorized employment duties to the Company Group.
(d) Permitted Disclosures. Nothing herein shall be construed to prevent disclosure of Confidential Information as may be required by applicable law or regulation, or pursuant to subpoena or valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. The Executive shall promptly provide written notice of any such subpoena or order to CEO.
(e) Permitted Communications. Nothing herein prohibits or restricts the Executive (or the Executive’s attorney) from initiating communications directly with, responding to an inquiry from, or providing testimony before the Securities and Exchange Commission (SEC), the Financial Industry Regulatory Authority (FINRA), any other self-regulatory organization, or any other federal or state regulatory authority regarding a possible securities law violation.
(f) Notice of Immunity Under the Economic Espionage Act of 1996, as amended by the Defend Trade Secrets Act of 2016 (“DTSA”). Notwithstanding any other provision of this Agreement:
(i) The Executive will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that:
(A) is made (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (2) solely for the purpose of reporting or investigating a suspected violation of law; or
9
(B) is made in a complaint or other document filed under seal in a lawsuit or other proceeding.
(ii) If the Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, the Executive may disclose the Company’s trade secrets to the Executive’s attorney and use the trade secret information in the court proceeding if the Executive:
(A) files any document containing trade secrets under seal; and
(B) does not disclose trade secrets, except pursuant to court order.
The Executive understands and acknowledges that the Executive’s obligations under this Agreement with regard to any particular Confidential Information shall commence immediately upon the Executive first having access to such Confidential Information (whether before or after the Executive begins employment by the Company) and shall continue during and after the Executive’s employment by the Company until such time as such Confidential Information has become public knowledge other than as a result of the Executive’s breach of this Agreement or breach by those acting in concert with the Executive or on the Executive’s behalf.
8. Restrictive Covenants.
8.1 Acknowledgement. The Executive understands that the nature of the Executive’s position gives the Executive access to and knowledge of Confidential Information and places the Executive in a position of trust and confidence with the Company Group. The Executive understands and acknowledges that the intellectual or artistic services the Executive provides to the Company Group are unique, special, or extraordinary.
The Executive further understands and acknowledges that the Company Group’s ability to reserve these for the exclusive knowledge and use of the Company Group is of great competitive importance and commercial value to the Company Group, and that improper use or disclosure by the Executive is likely to result in unfair or unlawful competitive activity.
8.2 Non-Competition. Because of the Company Group’s legitimate business interest as described herein and the good and valuable consideration offered to the Executive, during the Employment Term and for the twelve (12) months, to run consecutively, beginning on the last day of the Executive’s employment with the Company, regardless of the reason for the termination and whether employment is terminated at the option of the Executive or the Company Group, the Executive agrees and covenants not to (except on behalf of the Company or its affiliates) engage in Prohibited Activity within the State of Georgia. For purposes of this Section 8, “Prohibited Activity” is activity in which the Executive contributes the Executive’s knowledge, directly or indirectly, in whole or in part, as an employee, employer, owner, operator, manager, advisor, consultant, agent, employee, partner, director, stockholder, officer, volunteer, intern, or any other similar capacity to an entity or on behalf of any entity that is engaged in the same or substantially similar business as the Company Group, including those engaged in the business of civil contracting for residential, commercial, government, public sector, mixed use, and multi-family projects. Prohibited Activity also includes activity that may require, or inevitably requires, disclosure of trade secrets, proprietary information or Confidential Information or includes activity of the type engaged in by the Executive on behalf of the Company during the Employment Term.
Nothing herein shall prohibit the Executive from purchasing or owning less than five percent (5%) of the publicly traded securities of any corporation, provided that such ownership represents a passive investment and that the Executive is not a controlling person of, or a member of a group that controls, such corporation.
This Section 8 does not, in any way, restrict or impede the Executive from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation, or order. The Executive shall promptly provide written notice of any such order to CEO.
8.3 Non-Solicitation of Employees. The Executive agrees and covenants not to, directly or indirectly, during twelve (12) months, to run consecutively, beginning on the last day of the Executive’s employment with the Company, (i) solicit for employment, hire, or recruit for employment, (ii) induce any employee of the Company Group to terminate his/her employment with the Company Group, or (iii) attempt to do any of the foregoing.
8.4 Non-Solicitation of Customers. The Executive understands and acknowledges that because of the Executive’s experience with and relationship to the Company Group, the Executive will have access to and learn about much or all of the Company Group’s customer information. “Customer Information” includes, but is not limited to, names, phone numbers, addresses, email addresses, order history, order preferences, chain of command, decisionmakers, pricing information, and other information identifying facts and circumstances specific to the customer and relevant to sales.
10
The Executive understands and acknowledges that loss of this customer relationship and/or goodwill will cause significant and irreparable harm.
The Executive agrees and covenants not to, during twelve (12) months, to run consecutively, beginning on the last day of the Executive’s employment with the Company, directly or indirectly, solicit any customer or actively sought prospective customers of the Company (a) with or about whom the Executive (i) contacted in any way during the prior twelve (12) months, (ii) has had material contact (as such term is defined in OCGA § 13-8-51), (iii) has had trade secrets or confidential information or information that is not available publicly, or (b) those customers who became customers during Executive’s employment with the Company, for purposes of providing such customer goods or services that are competitive with those offered by the Company.
8.5 Consideration. Employee acknowledges and agrees that Employee is signing this Agreement contemporaneously with Employee’s receipt of an additional payment of $1000.00 from the Company and that Employee would not be entitled to the $1000.00 payment but for Employee’s execution of this Agreement and specifically to agreement to the terms of Section 8 hereof. Employee acknowledges and agrees that the payment made contemporaneously with the execution of this Agreement constitutes bargained-for consideration that is valid and sufficient in all respects to support Employee’s obligations under this Agreement.
9. Non-Disparagement. The Executive agrees and covenants that the Executive will not at any time make, publish or communicate to any person or entity or in any public forum any defamatory or disparaging remarks, comments, or statements concerning the Company Group, its businesses, or any of its employees, officers, and existing and prospective customers, suppliers, investors, and other associated third parties.
This Section 9 does not, in any way, restrict or impede the Executive from exercising protected rights to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency, provided that such compliance does not exceed that required by the law, regulation, or order. The Executive shall promptly provide written notice of any such order to CEO.
The Company agrees and covenants that it shall direct its officers and directors to refrain from making any defamatory or disparaging remarks, comments, or statements concerning the Executive to any third parties.
10. Acknowledgement. The Executive acknowledges and agrees that the services to be rendered by the Executive to the Company are of a special and unique character; that the Executive will obtain knowledge and skill relevant to the Company’s industry, methods of doing business and marketing strategies by virtue of the Executive’s employment; and that the restrictive covenants and other terms and conditions of this Agreement are reasonable and reasonably necessary to protect the legitimate business interest of the Company Group.
The Executive further acknowledges that the benefits provided to the Executive under this Agreement, including the amount of the Executive’s compensation reflects, in part, the Executive’s obligations and the Company’s rights under Section 7, Section 8, and Section 9 of this Agreement; that the Executive has no expectation of any additional compensation, royalties or other payment of any kind not otherwise referenced herein in connection herewith; and that the Executive will not suffer undue hardship by reason of full compliance with the terms and conditions of Section 7, Section 8, and Section 9 of this Agreement or the Company’s enforcement thereof.
11. Remedies. In the event of a breach or threatened breach by the Executive of Section 7, Section 8, or Section 9 of this Agreement, the Executive hereby consents and agrees that the Company shall be entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, and that money damages would not afford an adequate remedy, without the necessity of showing any actual damages. The aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages, or other available forms of relief.
12. Arbitration. Any dispute, controversy, or claim arising out of or related to this Agreement or any breach of this Agreement or the Executive’s employment, whether the claim arises in contract, tort, or statute, shall be submitted to and decided by binding arbitration. Arbitration shall be administered exclusively by American Arbitration Association and shall be conducted consistent with the rules, regulations, and requirements thereof as well as any requirements imposed by state law. Any arbitral award determination shall be final and binding upon the parties.
11
13. Proprietary Rights.
13.1 Work Product. The Executive acknowledges and agrees that all right, title, and interest in and to all writings, works of authorship, technology, inventions, discoveries, processes, techniques, methods, ideas, concepts, research, proposals, materials, and all other work product of any nature whatsoever, that are created, prepared, produced, authored, edited, amended, conceived, or reduced to practice by the Executive individually or jointly with others during the Employment Term and relate in any way to the business or contemplated business, products, activities, research, or development of the Company or result from any work performed by the Executive for the Company (in each case, regardless of when or where prepared or whose equipment or other resources is used in preparing the same), all rights and claims related to the foregoing, and all printed, physical and electronic copies, and other tangible embodiments thereof (collectively, “Work Product”), as well as any and all rights in and to US and foreign (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing, (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (d) trade secrets, know-how, and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights, all improvements thereto and all similar or equivalent rights or forms of protection in any part of the world (collectively, “Intellectual Property Rights”), shall be the sole and exclusive property of the Company.
For purposes of this Agreement, Work Product includes, but is not limited to, Company Group information.
13.2 Work Made for Hire; Assignment. The Executive acknowledges that, by reason of being employed by the Company at the relevant times, to the extent permitted by law, all of the Work Product consisting of copyrightable subject matter is “work made for hire” as defined in 17 U.S.C. § 101 and such copyrights are therefore owned by the Company. To the extent that the foregoing does not apply, the Executive hereby irrevocably assigns to the Company, for no additional consideration, the Executive’s entire right, title, and interest in and to all Work Product and Intellectual Property Rights therein, including the right to sue, counterclaim, and recover for all past, present, and future infringement, misappropriation, or dilution thereof, and all rights corresponding thereto throughout the world. Nothing contained in this Agreement shall be construed to reduce or limit the Company’s rights, title, or interest in any Work Product or Intellectual Property Rights so as to be less in any respect than that the Company would have had in the absence of this Agreement.
13.3 Further Assurances; Power of Attorney. During and after the Employment Term, the Executive agrees to reasonably cooperate with the Company to (a) apply for, obtain, perfect, and transfer to the Company the Work Product as well as any and all Intellectual Property Rights in the Work Product in any jurisdiction in the world; and (b) maintain, protect and enforce the same, including, without limitation, giving testimony and executing and delivering to the Company any and all applications, oaths, declarations, affidavits, waivers, assignments, and other documents and instruments as shall be requested by the Company. The Executive hereby irrevocably grants the Company power of attorney to execute and deliver any such documents on the Executive’s behalf in the Executive’s name and to do all other lawfully permitted acts to transfer the Work Product to the Company and further the transfer, prosecution, issuance, and maintenance of all Intellectual Property Rights therein, to the full extent permitted by law, if the Executive does not promptly cooperate with the Company’s request (without limiting the rights the Company shall have in such circumstances by operation of law). The power of attorney is coupled with an interest and shall not be affected by the Executive’s subsequent incapacity.
12
13.4 No License. The Executive understands that this Agreement does not, and shall not be construed to, grant the Executive any license or right of any nature with respect to any Work Product or Intellectual Property Rights or any Confidential Information, materials, software, or other tools made available to the Executive by the Company.
14. Security.
14.1 Security and Access. The Executive agrees and covenants (a) to comply with any Company security policies and procedures as in force from time to time, if any; (b) not to access or use any Company resources except as authorized by the Company; and (iii) not to access or use any Company resources in any manner after the termination of the Executive’s employment by the Company, whether termination is voluntary or involuntary. The Executive agrees to notify the Company promptly in the event the Executive learns of any violation of the foregoing by others, or of any other misappropriation or unauthorized access, use, reproduction, or reverse engineering of, or tampering with any Company resources or other Company Group property or materials by others.
14.2 Exit Obligations. Upon (a) voluntary or involuntary termination of the Executive’s employment or (b) the Company’s request at any time during the Executive’s employment, the Executive shall (i) provide or return to the Company any and all Company property, including keys, key cards, access cards, computers, and cell phones and all Company Group documents and materials belonging to the Company and stored in any fashion, including but not limited to those that constitute or contain any Confidential Information or Work Product, that are in the possession or control of the Executive, whether they were provided to the Executive by the Company Group or any of its business associates or created by the Executive in connection with the Executive’s employment by the Company; and (ii) delete or destroy all copies of any such documents and materials not returned to the Company that remain in the Executive’s possession or control, including those stored on any non- Company Group devices, networks, storage locations, and media in the Executive’s possession or control.
15. Publicity. The Executive hereby irrevocably consents to any and all uses and displays, by the Company Group and its agents, representatives and licensees, of the Executive’s name, voice, likeness, image, appearance, and biographical information in, on or in connection with any pictures, photographs, audio and video recordings, digital images, websites, television programs and advertising, other advertising and publicity, sales and marketing brochures, books, magazines, other publications, CDs, DVDs, tapes, and all other printed and electronic forms and media throughout the world, at any time during or after the Employment Term, for all legitimate commercial and business purposes of the Company Group (“Permitted Uses”) without further consent from or royalty, payment, or other compensation to the Executive. The Executive hereby forever waives and releases the Company Group and its directors, officers, employees, and agents from any and all claims, actions, damages, losses, costs, expenses, and liability of any kind, arising under any legal or equitable theory whatsoever at any time during or after the Employment Term, arising directly or indirectly from the Company Group’s and its agents’, representatives’, and licensees’ exercise of their rights in connection with any Permitted Uses.
16. Governing Law: Jurisdiction and Venue. This Agreement, for all purposes, shall be construed in accordance with the laws of the State of Georgia without regard to conflicts of law principles. Any action or proceeding by either of the parties to enforce this Agreement or assert a breach of this Agreement shall be brought only in a state or federal court located in the State of Georgia, County of Gwinnett. The parties hereby irrevocably submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue.
17. Entire Agreement. Unless specifically provided herein, this Agreement contains all of the understandings and representations between the Executive and the Company pertaining to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. The parties mutually agree that the Agreement can be specifically enforced in court and can be cited as evidence in legal proceedings alleging breach of the Agreement.
18. Modification and Waiver. No provision of this Agreement may be amended or modified unless such amendment or modification is agreed to in writing and signed by the Executive and by CEO of the Company. No waiver by either of the parties of any breach by the other party hereto of any condition or provision of this Agreement to be performed by the other party hereto shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by either of the parties in exercising any right, power, or privilege hereunder operate as a waiver thereof to preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege.
13
19. Severability. Should any provision of this Agreement be held by a court of competent jurisdiction to be enforceable only if modified, or if any portion of this Agreement shall be held as unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the parties with any such modification to become a part hereof and treated as though originally set forth in this Agreement.
The parties further agree that any such court is expressly authorized to modify any such unenforceable provision of this Agreement in lieu of severing such unenforceable provision from this Agreement in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, adding additional language to this Agreement, or by making such other modifications as it deems warranted to carry out the intent and agreement of the parties as embodied herein to the maximum extent permitted by law.
The parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable against each of them. In any event, should one or more of the provisions of this Agreement be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions hereof, and if such provision or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal, or unenforceable provisions had not been set forth herein.
20. Captions. Captions and headings of the sections and paragraphs of this Agreement are intended solely for convenience and no provision of this Agreement is to be construed by reference to the caption or heading of any section or paragraph.
21. Counterparts. This Agreement may be executed in separate counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
22. Tolling. Should the Executive violate any of the terms of the restrictive covenant obligations articulated herein, the obligation at issue will run from the first date on which the Executive ceases to be in violation of such obligation.
23. Section 409A.
23.1 General Compliance. This Agreement is intended to comply with Section 409A or an exemption thereunder and shall be construed and administered in accordance with Section 409A. Notwithstanding any other provision of this Agreement, payments provided under this Agreement may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service or as a short-term deferral shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, each installment payment provided under this Agreement shall be treated as a separate payment. Any payments to be made under this Agreement upon a termination of employment shall only be made upon a “separation from service” under Section 409A. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A, and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest, or other expenses that may be incurred by the Executive on account of non-compliance with Section 409A.
23.2 Specified Employees. Notwithstanding any other provision of this Agreement, if any payment or benefit provided to the Executive in connection with the Executive’s termination of employment is determined to constitute “nonqualified deferred compensation” within the meaning of Section 409A and the Executive is determined to be a “specified employee” as defined in Section 409A(a)(2)(b)(i), then such payment or benefit shall not be paid until the first payroll date following the six-month anniversary of the Termination Date or, if earlier, on the Executive’s death (the “Specified Employee Payment Date”). The aggregate of any payments that would otherwise have been paid before the Specified Employee Payment Date and interest on such amounts calculated based on the applicable federal rate published by the Internal Revenue Service for the month in which the Executive’s separation from service occurs shall be paid to the Executive in a lump sum on the Specified Employee Payment Date and thereafter, any remaining payments shall be paid without delay in accordance with their original schedule.
23.3 Reimbursements. To the extent required by Section 409A, each reimbursement or in-kind benefit provided under this Agreement shall be provided in accordance with the following:
(a) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during each calendar year cannot affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year;
(b) any reimbursement of an eligible expense shall be paid to the Executive on or before the last day of the calendar year following the calendar year in which the expense was incurred; and
(c) any right to reimbursements or in-kind benefits under this Agreement shall not be subject to liquidation or exchange for another benefit.
14
23.4 Tax Gross-ups. Any tax gross-up payments provided under this Agreement shall be paid to the Executive on or before December 31 of the calendar year immediately following the calendar year in which the Executive remits the related taxes.
24. Notification to Subsequent Employer. When the Executive’s employment with the Company terminates, the Executive agrees to notify any subsequent employer of the provisions of Sections 7 and 8 hereof. The Executive will also deliver a copy of such notice to the Company before the Executive commences employment with any subsequent employer (provided, however, that such obligation will expire upon the expiration of the covenants set forth in Sections 7 and 8). In addition, the Executive authorizes the Company to provide a copy of the restrictive covenants sections of this Agreement to third parties, including but not limited to, the Executive’s subsequent, anticipated, or possible future employer.
25. Successors and Assigns. This Agreement is personal to the Executive and shall not be assigned by the Executive. Any purported assignment by the Executive shall be null and void from the initial date of the purported assignment. The Company may assign this Agreement to any successor or assign (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Company. This Agreement shall inure to the benefit of, and be binding upon, the Company and its permitted successors and assigns.
26. Notice. Notices and all other communications provided for in this Agreement shall be in writing and shall be delivered personally or sent by registered or certified mail, return receipt requested, or by overnight carrier to the parties at the addresses set forth below (or such other addresses as specified by the parties by like notice):
If to the Company:
Cardinal Infrastructure Group Inc.
100 E. Six Forks Road, Suite 300
Raleigh, North Carolina 27609
Attn: Jeremy Spivey
Email: [email protected]
With a copy to (which shall not constitute notice):
Manning, Fulton & Skinner, P.A.
PO Box 20389
Raleigh, North Carolina 27619-0389
Attn: Thomas I. Lyon, Esq.
Email: [email protected]
If to the Executive:
Benjamin A.Wood
[***]
27. Representations of the Executive. The Executive represents and warrants to the Company that:
(a) The Executive’s acceptance of employment with the Company and the performance of duties hereunder will not conflict with or result in a violation of, a breach of, or a default under any contract, agreement, or understanding to which the Executive is a party or is otherwise bound.
(b) The Executive’s acceptance of employment with the Company and the performance of duties hereunder will not violate any non-solicitation, non-competition, or other similar covenant or agreement of a prior employer.
28. Withholding. The Company shall have the right to withhold from any amount payable hereunder any Federal, state, and local taxes in order for the Company to satisfy any withholding tax obligation it may have under any applicable law or regulation.
29. Survival. Upon the expiration or other termination of this Agreement, the respective rights and obligations of the parties hereto shall survive such expiration or other termination to the extent necessary to carry out the intentions of the parties under this Agreement.
30. Acknowledgement of Full Understanding. THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT THE EXECUTIVE HAS FULLY READ, UNDERSTANDS AND VOLUNTARILY ENTERS INTO THIS AGREEMENT. THE EXECUTIVE ACKNOWLEDGES AND AGREES THAT THE EXECUTIVE HAS HAD AN OPPORTUNITY TO ASK QUESTIONS AND CONSULT WITH AN ATTORNEY OF THE EXECUTIVE’S CHOICE BEFORE SIGNING THIS AGREEMENT.
[signature page follows]
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
| CARDINAL INFRASTRUCTURE GROUP, INC., a Delaware Corporation | ||
| By: | /s/ Jeremy S. Spivey | |
| Name: | Jeremy S. Spivey | |
| Title: | Authorized Representative | |
| EXECUTIVE | ||
| Signature: | /s/ Benjamin A. Wood | |
| Print Name: | Benjamin A. Wood | |
Exhibit 10.8
LEASE AGREEMENT
BETWEEN
105 PIB GROUP LLC
AS LANDLORD
AND
A.L. Grading contractors, LLC
AS TENANT
LEASE INDEX
| Section | Subject | ||
| 1 | Basic Terms | ||
| 2 | Premises | ||
| 3 | Term | ||
| 3 | Rent | ||
| 4 | Operating Expenses | ||
| 5 | Utilities | ||
| 6 | Maintenance and Repairs | ||
| 7 | Use of Premises | ||
| 8 | Insurance | ||
| 10 | Indemnity | ||
| 10 | Tenant’s Trade Fixtures | ||
| 11 | Signs | ||
| 11 | Governmental Requirements | ||
| 11 | Environmental Matters | ||
| 12 | AS-IS | ||
| 12 | Tenant Alterations | ||
| 14 | Fire and Other Casualty | ||
| 15 | Condemnation | ||
| 16 | Tenant’s Default | ||
| 18 | Landlord’s Right of Entry | ||
| 18 | Lender’s Rights | ||
| 19 | Estoppel Certificates | ||
| 19 | Landlord Liability/Termination/Independence | ||
| 20 | Notices | ||
| 20 | Broker Indemnification | ||
| 20 | Assignment and Subleasing | ||
| 23 | Termination or Expiration; Holdover | ||
| 23 | Late Payments | ||
| 24 | Rules and Regulations | ||
| 24 | Miscellaneous | ||
| 25 | Special Stipulations | ||
| 25 | Authority | ||
| 25 | Prevailing Party |
SCHEDULE AND EXHIBITS
| SCHEDULE A | Definitions | |
| EXHIBIT A-1 | Premises | |
| EXHIBIT A-2 | Description of the Land | |
| EXHIBIT B | Special Stipulations | |
| EXHIBIT C | Rules and Regulations |
i
LEASE AGREEMENT
THIS LEASE AGREEMENT (the “Lease”) is made effective as of February 18, 2026, (the “Lease Date”) by and between 105 PIB GROUP LLC, a Georgia limited liability company (“Landlord”), and A.L. Grading contractors, LLC, a Georgia limited liability company (“Tenant”), (the words “Landlord” and “Tenant” to include their respective legal representatives, successors and permitted assigns where the context requires or permits).
W I T N E S S E T H:
1. Basic Terms. This Section 1 contains the basic terms of this Lease. Capitalized terms used in this Lease will have the meanings given them in this Section 1 and elsewhere in this Lease, including SCHEDULE A hereto.
| (a) “Premises” |
Defined in Section 2(a).
|
| (b) “Building” |
The building depicted on EXHIBIT A-1 hereto, containing approximately 10,125 square feet and commonly known as 105 Peachtree Industrial Boulevard, Suwanee, Georgia 30024.
|
| (c) “Land” |
That certain parcel of real property located in Gwinnett County, Georgia, as more particularly described in EXHIBIT A-2 attached hereto.
|
| (d) “Base Rent” |
As set forth below:
|
| Period | “Annual Base Rent” |
“Monthly Base Rent Installment” |
| Month 1 – Month 12 | $180,000.00* | $15,000.00* |
| Month 13 – Month 24 | $185,400.00 | $15,450.00 |
| Month 25 – Month 36 | $190,962.00 | $15,913.50 |
| Month 37 – Month 48 | $196,690.86 | $16,390.91 |
| Month 49 – Month 60 | $202,591.59 | $16,882.63 |
| Month 61 – Month 72 | $208,669.33 | $17,389.11 |
| Month 73 – Month 84 | $214,929.41 | $17,910.78 |
| Month 85 – Month 96 | $221,377.30 | $18,448.11 |
| Month 97 – Month 108 | $228,018.61 | $19,001.55 |
| Month 109 – Month 120 | $234,859.17 | $19,571.60 |
| Month 121 – Month 132 | $241,904.95 | $20,158.75 |
| Month 133 – Month 144 | $249,162.10 | $20,763.51 |
| Month 145 – Month 156 | $256,636.96 | $21,386.41 |
| Month 157 – Month 168 | $264,336.07 | $22,028.01 |
| Month 169 – Month 180 | $272,266.15 | $22,688.85 |
| * | (Plus the prorated amount for any Fractional Month, if applicable) |
-1-
| (e) “Lease Commencement Date” |
The Lease Date.
|
| (f) “Expiration Date” |
The earlier of (1) the last day of the 180th full calendar month after the Lease Commencement Date, as expressly may be extended, and (2) the termination of this Lease pursuant to the terms herein.
|
| (g) “Primary Term” |
As defined in Section 3(a).
|
| (h) “Exterior Area” |
The Land, less the portion on which the Building and dock areas, external stairwells and entryways are located.
|
| (i) “Security Deposit” |
None
|
| (j) “Permitted Use” |
Storage, warehousing, maintenance and repair of equipment, machinery, and vehicles used in the operation of Tenant’s primary business, and office uses reasonably ancillary thereto, all in accordance with the other provisions of this Lease and all applicable Governmental Requirements.
|
| (k) Addresses for notice |
Tenant: A.L. GRADING CONTRACTORS, LLC 4441 Six Forks Road Suite 106-261 Raleigh, NC 27609-5729 Attn: Jeremy S. Spivey Email: [email protected]
Landlord: 105 PIB GROUP, LLC 2500 NE 35th Street Lighthouse Point, FL 33064 Attn: Lee Wood Email: [email protected]
|
| (l) Address for rental payments |
Rent shall be paid by wire transfer or ACH pursuant to instructions provided by Landlord to Tenant.
If wire or ACH instructions are not provided by Landlord, then Rent shall be mailed to Landlord’s notice address set forth above. |
2. Premises.
(a) Prior Lease. It is hereby acknowledged and agreed that: (i) immediately prior to the Lease Date, Tenant and Landlord are affiliated entities, and Tenant occupied the Premises pursuant to an unwritten lease (the “Prior Lease”); (ii) the Prior Lease is hereby terminated, and (iii) this Lease is being executed and delivered pursuant to the terms contained herein and shall supersede the Prior Lease.
-2-
(b) Lease of Premises. In consideration of the rent and the mutual covenants contained herein, Landlord leases to Tenant, and Tenant leases and accepts from Landlord, the Land, together with and including all buildings, structures, driveways, parking lots, walkways, landscaping and other appurtenances thereto and all other improvements, at any time during the term of this Lease erected or situated thereon, including, without limitation, the Building and other improvements constructed thereon (the Land, Exterior Area, Building and other such improvements are collectively referred to as the “Premises”), upon all the terms and provisions of this Lease.
(c) Size of Building. The square footage of the Building has been conclusively determined and is not subject to re-measurement or any form of contest by either party.
(d) Exterior Area. Tenant is granted the exclusive right to use the Exterior Area to support the Permitted Use in accordance with the terms of this Lease; provided, however, that Landlord hereby reserves the right to grant or establish easements along the property lines of the Land and/or under the Exterior Area so long as such easements do not materially and adversely affect Tenant’s or Tenant’s invitees access to, or use of, the Premises.
3. Term.
(a) Primary Term. The lease of the Premises by Landlord to Tenant will be for a primary term (the “Primary Term”) commencing on the Lease Commencement Date and ending on the Expiration Date. Tenant shall have three (3) options to extend the Term for a period of five (5) years each time, subject to, and in accordance with, the terms and conditions set forth in Special Stipulation 1 of EXHIBIT B attached to this Lease, the terms of which are incorporated herein by reference. The Primary Term, plus all renewals and extensions thereof, if any, are sometimes referred to collectively as the “Term”.
(b) Lease Year. The term “Lease Year” means the 12-month period commencing on the Lease Commencement Date, and each 12-month period thereafter during the Term; provided, however, if the Lease Commencement Date is a day other than the first day of a calendar month, the first Lease Year will include the period from and including the Lease Commencement Date to and including the last day of the Fractional Month in which the Lease Commencement Date occurs and will extend through the end of the twelfth full calendar month following the Lease Commencement Date.
4. Rent.
(a) Base Rent.
i.) Payment of Base Rent. Tenant will pay to Landlord the Annual Base Rent in the Monthly Base Rent Installments commencing on the Lease Commencement Date, payable in advance, without demand, on the first day of each calendar month during the Term; provided, that the first month’s Base Rent must be paid upon execution of this Lease. It is hereby acknowledged and agreed that Annual Base Rent shall increase as shown on the Base Rent chart set forth in Section 1(d).
ii.) Fractional Month. If the Lease Commencement Date falls on a day other than the first day of a calendar month, or if the Lease expires or terminates on a day other than the last day of a calendar month, then Base Rent will be apportioned pro rata for the resulting Fractional Month.
(b) Additional Rent.
i.) Commencement. Tenant’s obligation to pay Additional Rent will begin to accrue on the Lease Commencement Date, except as otherwise provided in this Lease.
ii.) Payments to Landlord. To the extent Tenant is required to reimburse Landlord for any Additional Rent, then Landlord will deliver a written invoice to Tenant therefor with reasonable evidence of such costs and payment thereof and Tenant will reimburse Landlord within 30 days after the date of such delivery.
-3-
(c) Net Lease. Except for Landlord’s obligations with respect to the Landlord Repair Items (as defined in Section 7(a) herein), this Lease is an “absolute net lease,” so that this Lease shall yield to Landlord the rentals specified during the Term, and except as specifically and expressly set forth herein to the contrary, all costs, expenses and obligations of every kind and nature whatsoever relating to the operation, management, maintenance, repair, restoration and replacement of the Premises and all improvements and appurtenances related thereto or any part thereof, structural and non-structural, shall be performed and paid by Tenant. Tenant shall perform all of its obligations under this Lease at its sole cost and expense. As such, Tenant’s obligations arising or accruing during the Term to pay all Base Rent, Additional Rent, and all other payments hereunder required to be made by Tenant shall, except as otherwise expressly set forth herein, be absolute and unconditional, and Tenant shall pay all Base Rent, Additional Rent and all other payments required to be made by Tenant under this Lease without notice (except as otherwise expressly and specifically set forth herein), demand, counterclaim, set-off, deduction, or defense and without abatement (except as otherwise expressly and specifically set forth herein), suspension, deferment, diminution or reduction, free from any charges, assessments, impositions, expenses or deductions of any and every kind of and nature whatsoever. Other than the costs associated with the Landlord Repair Items, all costs, expenses and obligations of every kind and nature whatsoever relating to the Premises and the appurtenances thereto and the use and occupancy thereof that may arise or become due during the Term (whether or not the same shall become payable during the Term of this Lease or thereafter) shall be paid by Tenant, and Landlord is not responsible for any costs, charges, expenses or outlays of any nature whatsoever arising during the Term from or relating to the Premises or the use or occupancy thereof, except for any such costs, charges, expenses or outlays which are the direct result of Landlord’s or Landlord’s Affiliates gross negligence or intentional misconduct. Except for the Landlord Repair Items and any repair, maintenance, or replacement which is necessitated as the direct result of Landlord’s or Landlord’s Affiliates gross negligence or intentional misconduct, Tenant assumes the sole responsibility during the Term for the condition, use, operation, repair, maintenance, replacement of any and all components and systems of, and the underletting and management of, the Premises. It is the purpose and intention of the parties to this Lease that the Base Rent due hereunder shall be absolutely net to Landlord, and Landlord shall have no obligation or responsibility, of any nature whatsoever, to perform any tenant improvements, to provide any services, or to perform any repairs, maintenance or replacements in, to, at, or under the Premises, whether for the benefit of Tenant or any other party, except as expressly set forth herein.
5. Operating Expenses.
(a) Definition of Operating Expenses. The term “Operating Expenses” shall mean all costs, expenses and charges of every kind or nature relating to, or incurred in connection with, the ownership, maintenance and operation of the Premises, including, but not limited to the following: (i) Taxes; (ii) costs of Maintaining the Improvements, (iii) dues, fees or other costs and expenses, of any nature, due and payable to any association or comparable entity that governs or controls any aspect of the ownership and operation of the Premises; and (iv) any common area maintenance expenses levied against, or attributable to, the Premises under any declaration of covenants, conditions and restrictions, reciprocal easement agreement or comparable arrangement that encumbers and benefits the Premises and other real property (e.g. a business park). However, Operating Expenses payable by Tenant hereunder shall not include: (i) Landlord’s income, gift, transfer, estate, succession, inheritance, non-resident or land transfer taxes, (ii) interest on debt or amortization payments on mortgages or deeds of trust or any other debt for money borrowed by Landlord, (iii) costs or expenses of a partnership, or other entity, which constitutes Landlord, which costs or expenses are not directly related to the Premises (such as accounting fees, tax returns, and income taxes of such entity), and (iv) expenses incurred by Landlord that are not directly related to the Premises or its operations including, without limitation, compensation paid to employees of Landlord; however, Operating Expenses shall include those expenses, if any, incurred by Landlord in order to perform or provide any services required of Landlord under this Lease or to provide any services specifically requested by Tenant (including a portion of the compensation paid to employees performing or providing such services, pro-rated to reflect the extent of the employee’s time spent performing or providing such services).
(b) Definition of Taxes. The term “Taxes” shall mean, collectively, all taxes, rates, duties, levies, fees, charges, local improvement rates, imposts charges and assessments, including school taxes, water and sewer taxes, extraordinary and special assessments and all rates, charges, excises or levies, whether or not of the foregoing nature, and whether municipal, provincial, federal, regional, school, parking or otherwise, which may be levied, confirmed, imposed, assessed, charged or rated against the Premises or any part thereof or any furniture, fixtures, equipment or improvements therein, or against Landlord in respect of any of the same or in respect of any rental or other compensation receivable by Landlord and/or the owners of the Premises in respect of the same, including all of such Taxes which may be incurred by or imposed upon Landlord and/or the owners of the Premises or the Premises in lieu of or in addition to the foregoing, including, without limitation, any Taxes on real property rents or receipts as such (as opposed to a tax on such rents as part of the income of Landlord), any Taxes based, in whole or in part, upon the value of the Premises, any commercial concentration or similar levy in respect of the Premises.
-4-
(c) Payment of Taxes. Promptly following the Lease Commencement Date, Tenant shall, with Landlord’s assistance, if requested by Tenant and/or required by the applicable governmental authority, notify the appropriate taxing authorities to deliver directly to Tenant all statements and invoices for Taxes, effective as of the Lease Commencement Date. Tenant shall pay to the taxing authority all Taxes prior to the date they become delinquent. As soon as practicable after the payment thereof Tenant shall deliver to Landlord written evidence of each such payment. To the extent that any such Taxes are imposed upon Landlord with regard to Landlord’s ownership of the Premises, at Landlord’s option, Tenant shall either pay such Taxes directly to the taxing authority or reimburse Landlord for such Taxes paid by Landlord. If the Term expires on a day other than the last day of a calendar year, then Tenant’s liability for Taxes for such calendar year shall be apportioned by multiplying the amount of Taxes for the full calendar year by a fraction, the numerator of which is the number of days during such calendar year falling within the Term, and the denominator of which is 365.
(d) Contest of Taxes. Tenant, at its sole expense, upon at least 10 days’ prior written notice to Landlord but without Landlord’s consent, shall have the right to contest the amount or validity of any Taxes by diligently conducting in good faith an appropriate legal or administrative proceeding, provided that the following conditions are met: (i) the Taxes are paid or the postponement of payment of Taxes, without penalty, as part of such proceeding is permitted by applicable law, (ii) the Premises shall not, by reason of such postponement of payment, or the initiation of such proceeding, be subject to any lien or to forfeiture, sale, or loss, (iii) such proceedings shall not affect or interfere with Tenant’s continued payment of Base Rent or Additional Rent; and (iv) pursuing the contest of Taxes shall not in any way expose Landlord to any criminal or civil liability, penalty or sanction. Tenant further agrees that each such contest shall be promptly and diligently prosecuted to a final conclusion, and Tenant shall pay all judgments, decrees and costs (including any costs incurred by Landlord in cooperating with Tenant’s contest) in connection with any such contest and shall, promptly after the final determination of such contest, fully pay and discharge the amounts which shall be levied. In furtherance of the foregoing, Tenant shall indemnify Landlord from and against any Losses in connection with any contesting of Taxes by Tenant (including, without limitation any resulting increases in Taxes applicable to periods outside of the Term). Tenant shall be entitled to any refund received with respect to Taxes relating to the Term that have been paid by Tenant. Tenant’s obligations for Taxes during the Term under this subsection will survive the end of the Term.
(e) Payment of Operating Expenses Generally. Except as specifically and expressly set forth herein, Tenant shall be responsible for any Operating Expenses that are due and payable at any time or from time to time during the Term and for any Operating Expenses that are assessed, become a lien, or accrue and are attributable to any Lease Year, which obligation shall survive the termination or expiration of this Lease. Except as specifically and expressly set forth herein, Tenant shall directly pay, as Additional Rent, on a timely basis and to the appropriate entity, all Operating Expenses. To the extent any Operating Expenses are to be reimbursed to Landlord by Tenant, Tenant shall pay the same in accordance with Section 4(b)(ii) above or as otherwise specially and expressly set forth elsewhere in this Lease.
(f) Survival. The obligations of Tenant to pay Operating Expenses associated with the Term shall survive the expiration and termination of this Lease.
6. Utilities.
(a) Separately Metered Utilities. All Utilities will be separately metered for the Premises and Tenant shall cause all Utilities to be billed directly to Tenant by the applicable providers. To the extent actions are required by Landlord to cause all Utilities to be placed in the name of Tenant, Landlord agrees to use commercially reasonable efforts to perform such actions within ten (10) days after the Lease Date.
(b) Commencement of Payment Obligation. Tenant’s obligation for payment of all Utilities will commence on the earlier of: (i) the Lease Commencement Date; or (ii) Tenant’s actual occupancy of any portion of the Premises. Tenant will establish an account with the Utility provider for each Utility and pay all charges for such Utilities prior to delinquency.
-5-
(c) Interruption in Services. Notwithstanding the foregoing, if (i) a utility interruption is caused by the gross negligence or intentional misconduct of Landlord, (ii) remedying the interruption is within Landlord’s reasonable control, (iii) Tenant cannot reasonably operate for business from the Premises as a result of such interruption and, in fact, ceases operations from the Premises during such interruption, and (iv) Landlord does not remedy the interruption within five (5) days following notice from Tenant, then, as Tenant’s sole and exclusive remedy, Rent shall abate on a day-for-day basis beginning on the sixth (6th) day following Tenant’s notice until such time as Landlord has remedied the interruption in services.
7. Maintenance and Repairs.
(a) Landlord Responsibility. Landlord at its sole cost and expense shall Maintain the roof, foundation (i.e., beneath the floor slab) and the structural walls of the Building (collectively, the “Landlord Repair Items”) in good repair and condition except for reasonable wear and tear; except that any repairs occasioned by the negligence or intentional misconduct of Tenant shall be at the sole expense of Tenant. Furthermore, Landlord shall be responsible for any repair or replacement necessitated by Landlord’s gross negligence or intentional misconduct, and the item which is the subject of any such repair or replacement shall automatically be deemed to constitute a Landlord Repair Item.
(b) Tenant Responsibility. Except for the Landlord Repair Items, Tenant, at Tenant’s sole cost and expense, shall promptly make all repairs, perform all maintenance, and make all replacements in and to the Premises (including without limitation, all interior and exterior, non-structural, landscaping and systems maintenance; repairs and replacements) that are necessary or desirable to keep all aspects of the Premises in good condition and repair, in a clean, safe and tenantable condition, except for reasonable wear and tear, and otherwise in accordance with all Governmental Requirements and the requirements of this Lease (as the context permits or requires, “Maintain” or “Maintenance”). Except for the Landlord Repair Items, Tenant shall Maintain all improvements, fixtures, equipment and Personal Property located in, or serving, the Premises in clean, safe and sanitary condition, shall take good care thereof and make all required repairs and replacements thereto as and when necessary. Without limiting the foregoing, Tenant shall Maintain all drives, sidewalks, parking areas, dock areas and Dock Equipment, external stairwells and landscaping on the Premises in a clean condition, free of accumulations of dirt, trash, snow and ice.
(c) Specific Tenant Maintenance Requirements. In connection with Tenant’s Maintenance of the HVAC Systems and Dock Equipment (and any obligations relating to maintaining stormwater facilities or other aspects of the Premises to the extent required by Governmental Requirements, as well as satisfying any associated reporting requirements) (“Preventative Maintenance Items”):
i.) Preventative Maintenance Contracts. During the Term, Tenant will, at its expense, maintain in full force and effect a service contract for the maintenance of the Preventative Maintenance Items; each with an entity reasonably acceptable to Landlord (the “Preventative Maintenance Contracts”); provided however, that for new equipment, the Preventative Maintenance Contract must be maintained with the contractor that installed it for the amount of time which is the lesser of two (2) years after the date of installation and the length of the warranty provided by the installing contractor. The Preventative Maintenance Contract for the Dock Equipment must provide for at least one (1) preventative maintenance service call per year and the Preventative Maintenance Contract for the HVAC Systems must provide for at least two (2) preventative maintenance service calls per year. If Tenant elects to terminate a Preventative Maintenance Contract (or to allow it to expire by its terms), Tenant will deliver to Landlord a copy of the replacement Preventative Maintenance Contracts at least 30 days prior to the termination of the existing Preventative Maintenance Contract. Tenant will promptly deliver to Landlord a copy of any reports issued to (or by) Tenant in connection with its obligations set forth in this subsection (c).
ii.) Failure to Carry Preventative Maintenance Contracts. If Tenant fails to comply with its obligations in subsection (i) above, Landlord shall have the right to enter into the applicable Preventative Maintenance Contract on Tenant’s behalf, and Tenant will reimburse Landlord, as Additional Rent, for 110% of Landlord’s reasonable costs actually incurred in connection entering into and maintaining such Preventative Maintenance Contract. An exercise by Landlord of its rights under this subsection (ii) will not be deemed to be in lieu of its other remedies for the associated default by Tenant, or to otherwise relieve Tenant of its obligations to keep the applicable Preventative Maintenance Items in good condition and repair.
-6-
(c) Landlord Limitation of Responsibility and Liability.
i.) No Services. Except as specifically provided for in this Lease, Tenant shall be solely responsible for Maintaining the Premises and Landlord will be responsible for no other services whatsoever.
ii.) Notice and Right to Cure. Tenant shall give Landlord prompt written notice of any defects or material damage to the Premises. Notwithstanding anything to the contrary contained herein, Landlord shall have the right, but not the obligation, to perform Tenant’s obligations hereunder, which have not been performed by Tenant as required hereunder, and to charge Tenant as Additional Rent for all reasonable costs and expenses actually incurred in connection therewith, plus an amount equal to five percent (5%) of such costs and expenses. If Landlord does undertake any such obligations, will not be liable for inconvenience, annoyance, disturbance or other damage to Tenant by reason of Landlord making any repairs or the performance of work at the Premises or on account of bringing materials, supplies and equipment into or through the Premises during the course thereof; provided, however, that Landlord will use reasonable efforts not to disturb or otherwise interfere with Tenant’s operations at the Premises in making such repairs or performing such work.
iii.) No Obligation of Landlord. Nothing herein implies any duty of Landlord to do any work required of Tenant under this Lease, but the performance of any such work by Landlord will not constitute a waiver of Tenant’s default in failing to perform it.
iv.) Limitation of Liability. Except as set forth in Section 6(c), Landlord will not be liable to Tenant or to any other person for any damage: (A) occasioned by failure in any Utility system or by the bursting or leaking of any vessel or pipe in or about the Premises; (B) occasioned by water coming onto the Premises or into the Building; or (C) arising from the acts or negligence of occupants of adjacent property or the public.
8. Use of Premises.
(a) Permitted Use. Tenant will use the Premises: (i) solely for the Permitted Use and (ii) in compliance with applicable Governmental Requirements.
(b) Tenant’s Specific Use. Landlord makes no representation or warranty that Tenant’s use of the Premises is permitted by Governmental Requirements.
(c) No Liens. Subject to Section 16(b), Tenant will not permit liens of any nature to attach or exist against the Premises.
(d) No Nuisance or Trespass. Tenant will not allow or permit any vibration, noise, odor, light or other effect to occur within or around the Premises that could constitute a legal nuisance or trespass with respect to any adjoining property or building or its owners or users.
-7-
9. Insurance.
(a) Insurance Coverages Maintained by Tenant. From and after the Lease Date, Tenant will carry and maintain (or cause to be maintained), at its sole cost and expense, the following insurance coverages:
| Policy | Minimum Coverage Limits | Terms |
| Commercial General Liability |
Primary: $1,000,000 per occurrence, $2,000,000 aggregate.
|
· Must be written on an occurrence (not claims made) basis. · Includes Broad Form Contractual Liability coverage or reasonable equivalent thereto. · Must cover Premises and Tenant’s use thereof. · Extends to liability of Tenant arising out of indemnities by Tenant in Section 10. |
| Commercial Auto Liability | $1,000,000 per occurrence combined single limit. | · Must cover operations of all owned, hired and non-owned vehicles. |
| Workers Compensation | As required by statute in state where Premises is located. |
· Must include a waiver of subrogation provision in favor of Landlord, any lender of Landlord, and any property manager designated by Landlord.
|
| Employer’s Liability | $1,000,000 per accident or illness, per employee and policy limit. |
· Must include a waiver of subrogation provision in favor of Landlord, any lender of Landlord, and any property manager designated by Landlord.
|
|
“Following Form” Excess Liability
|
$10,000,000 per occurrence, $10,000,000 aggregate, per policy year. | |
| Special Form Property Insurance |
Premises, Improvements, Trade Fixtures and Personal Property: 100% of the full replacement value from time to time during the Term.
|
· Must include terrorism coverage and coverage for the perils of earthquake and flood, regardless of quake or flood zone. · Deductible must not exceed $50,000/occurrence. · With respect to Special Form Property Insurance for all items other than Personal Property and trade fixtures, Landlord shall be named loss-payee. · Coverage shall be on a “replacement cost” basis for full value, with no coinsurance relating to coverage associated with the Improvements
|
| Business Interruption Insurance | Business interruption insurance, including extra expense insurance, in such amounts from time to time as necessary to fully compensate Tenant for direct or indirect loss of sales or earnings and extra expenses incurred resulting from or attributable to any of the perils required to be insured against under the applicable policies referred to above and all circumstances usually insured against by prudent tenants including losses resulting from interference with or prevention of access to the Premises as a result of such perils or for any other reason. The amount of business interruption insurance shall not exceed twelve (12) months. |
Landlord reserves the right to require Tenant to procure insurance in commercially reasonable amounts and against such other risks as may be customarily insured from time to time during the Term by prudent owners of similar properties.
-8-
(b) Insurance Requirements. All policies of the insurance provided for in Section 9(a) must be issued in form reasonably acceptable to Landlord and must:
i.) Insurance Rating: be issued by insurance companies: (1) with a rating of not less than “A”; (2) having a financial size of not less than Class X in the most current available “Best’s Insurance Reports”; and (3) licensed to do business in the state in which the Building is located.
ii.) Additional Insureds: name Landlord, Landlord’s property manager, Lender and any other party reasonably designated by Landlord, as an additional insured on a primary and non-contributory basis, with the exception of Worker’s Compensation, Employer’s Liability and Special Form Property Insurance on trade fixtures and Personal Property.
iii.) Certificate of Insurance: be delivered to Landlord through a certificate of insurance on an Acord form 25, 27, or 28, as applicable, evidencing the required lines of coverage, insurance limits and coverage endorsements set forth in this Lease, and otherwise in a form acceptable to Landlord, prior to the Lease Commencement Date or any earlier entry into the Premises by Tenant or Tenant’s Affiliates and thereafter at least 30 days prior to the expiration of each such policy, and, as often as any such policy expires. Renewal or additional policies must be procured and maintained by Tenant in like manner and to like extent.
iv.) Notice of Cancellation: contain a provision that the insurer will give to the first named insured at least 30 days advance written notice of policy cancellation for reasons other than non-payment of premium and ten (10) days advance written notice of policy cancellation for non-payment of premium. Furthermore: (1) if Tenant intends to provide substitute coverage or change its insurance carrier, Tenant will give to Landlord at least 30 days advance written notice of any such substitution or change; and (2) Tenant will provide to Landlord, within three (3) days after receipt, a copy of any notice of cancellation or change of coverage sent to Tenant by any carrier providing any of the insurance policies provided by Tenant pursuant to this Section 9.
(c) Failure to Maintain Insurance. If Tenant fails to maintain the insurance coverage required by this Section 9, then Landlord may, in addition to its other remedies, upon seven (7) days advance written notice to Tenant (unless such coverage will lapse, in which event no such notice will be necessary), procure such policies of insurance and Tenant will promptly pay Landlord 110% of the cost of such policies as Additional Rent.
(d) Mutual Release; Waiver of Subrogation.
i.) Mutual Release. Notwithstanding anything to the contrary contained in this Lease, Landlord hereby releases Tenant, and Tenant hereby releases Landlord, Lender and Tenant’s and Landlord’s respective partners, principals, members, officers, shareholders, directors, agents, employees and affiliates from any and all liability for loss, damage or injury to the property of the other, whether located in or about the Premises or elsewhere, including any loss or damage caused or alleged to be caused by the negligence of the party against whom claims are waived, which results from an event which is covered by insurance actually carried and in force at the time of the loss (or which would have been covered but for a failure to maintain insurance coverage that was required to be maintained under this Lease) by the party sustaining such loss.
ii.) Waiver of Subrogation. Each of Landlord and Tenant hereby waives all rights of subrogation of its insurers and will cause its insurance policies to be endorsed such that said waiver of subrogation does not affect the right of the insured to recover thereunder.
(e) Landlord Insurance. Landlord may carry commercial general liability insurance, contingent property insurance, and any other insurance reasonably required by Lender from time-to-time (collectively, “Landlord Insurance”), and Tenant will reimburse Landlord for the actual, reasonable costs of Landlord Insurance when invoiced for same, as Additional Rent.
-9-
10. Indemnity.
(a) Waiver. Except to the extent caused by Landlord’s gross negligence or intentional misconduct, Landlord, its affiliates, partners, officers, directors, members, trustees, employees, agents and Lenders shall have no liability for, and shall not assume any liability or responsibility with respect, to the conduct or operation of the business to be conducted on the Premises and shall have no liability for any claim of loss of business or interruption of operations, or any consequential damages or indirect losses whatsoever. Any motor vehicles, parts, goods, furnishings, fixtures, property or personal effects placed or stored in or about the Premises shall be at the sole risk of Tenant, and Landlord, its affiliates, employees and agents shall not be responsible or liable for such property unless the same is damages due to the gross negligence or intentional misconduct of Landlord. To the fullest extent permitted by law, Tenant waives (and will cause Tenant’s Affiliates to waive), subject to the terms set forth in this Section 10(a), all claims against Landlord arising from any liability described in this Section 10(a).
(b) Indemnity.
i.) Tenant’s Indemnity. Tenant shall indemnify, defend upon request and hold Landlord, its affiliates, partners, officers, directors, members, trustees, employees, agents and Lenders harmless from and against, all demands, causes of action, judgments, costs, damages, claims, liabilities, expenses (including Legal Costs, disbursements and actual costs), losses, penalties and court costs suffered by or claimed against any of them, directly or indirectly, to the extent based on or arising out of, in whole or in part: (a) the use, condition, operation, maintenance, repair, alteration, and occupancy of the Premises or the business conducted therein or therefrom, (b) any act, omission, negligence or willful misconduct of Tenant or Tenant’s Affiliates, (c) subject to the terms set forth in Section 14, contamination of the Premises or the ground waters thereof, any discharge of toxic or hazardous sewage or waste materials from the Premises into any septic facility or sewer system, or release or existence of Hazardous Materials on the Premises (irrespective of whether there has occurred a violation thereof) relating to the Premises, (d) any breach, violation or nonperformance by Tenant or any person claiming under Tenant or Tenant’s Affiliates of any of the terms, provisions, representations, warranties, covenants or conditions of this Lease on Tenant’s part to be performed, including without limitation, the failure to comply with Governmental Requirements, (e) easements or other agreements entered into by Landlord at the request of Tenant following the Lease Date, and (f) any accident, injury, death or damage to the person, property or business of Tenant or Tenant’s Affiliates, or any other person that shall happen at, in, upon, or arising out of the Premises, however occurring. Landlord need not have first paid any such claim to be so indemnified and held harmless by Tenant. Tenant, upon written notice from Landlord, shall defend any claim against Landlord at Tenant’s sole expense, using legal counsel reasonably satisfactory to Landlord.
ii.) Landlord’s Indemnity. Landlord shall indemnify, defend upon request and hold Tenant, its affiliates, partners, officers, directors, members, trustees, employees, agents and Lenders harmless from and against, all demands, causes of action, judgments, costs, damages, claims, liabilities, expenses (including Legal Costs, disbursements and actual costs), losses, penalties and court costs suffered by or claimed against any of them: (i) directly or indirectly, to the extent based on or arising out of, in whole or in part, the gross negligence or willful misconduct of Landlord or Landlord’s Affiliates or (ii) to the extent arising from any claims brought by third-parties against Tenant which are predicated on conduct (or failure to take action) by Landlord which constitutes breach, violation or nonperformance by Landlord or Landlord’s Affiliates of any of the terms, provisions, representations, warranties, covenants or conditions of this Lease on Landlord’s part to be performed. Landlord, upon written notice from Tenant, shall defend any such claim against Tenant at Landlord’s sole expense, using legal counsel reasonably satisfactory to Tenant.
(c) Survival. This Section 10 will survive the Expiration Date with respect to any damage, bodily or personal injury, illness or death occurring prior to the Expiration Date.
11. Tenant’s Trade Fixtures.
(a) Installation. Tenant may install trade fixtures within the Building; provided that if the installation of such trade fixtures does not satisfy the criteria of Non-Approval Tenant Alterations, then the installation shall be subject to the prior written approval of Landlord, which will not be unreasonably withheld, delayed or conditioned.
(b) Removal. Tenant, at its expense, will remove all of its trade fixtures from the Premises by the end of the Term; provided, however, that Tenant will comply with the Rules and Regulations and applicable Governmental Requirements in performing such removal and will repair any damage caused by the installation or removal of all trade fixtures.
-10-
12. Signs.
(a) Exterior Walls. Except for the signage already installed and currently existing as of the Lease Date, no sign, advertisement or notice will be installed or displayed on the windows or exterior walls of the Building or on any exterior portion of the Premises, without the prior written approval of Landlord (not to be unreasonably withheld, conditioned or delayed).
(b) Removal of Signs. Tenant, at its expense, will remove all of its signs from the Premises by the Expiration Date; provided, however, that Tenant will comply with the Rules and Regulations and applicable Governmental Requirements in performing such removal and will repair any damage caused by the installation or removal of its signs.
13. Governmental Requirements.
(a) Compliance with Governmental Requirements. Tenant, at Tenant’s expense, will promptly comply with all Governmental Requirements relating to the Premises and/or Tenant’s use of all portions thereof.
(b) Notices. Tenant will promptly send to Landlord a copy of any written notice received by Tenant alleging a failure to comply with Governmental Requirements or purporting to require a Code Modification.
14. Environmental Matters.
(a) Compliance with Laws. Tenant will cause all activities at the Premises to be conducted in compliance with Environmental Laws.
(b) Permits. Tenant covenants that it will obtain prior to the Lease Commencement Date, all permits, licenses or approvals required by any applicable Environmental Laws necessary for Tenant’s operation of its business at the Premises.
(c) Use of Hazardous Substances. Tenant will not cause or permit any Hazardous Substances to be brought upon, kept or used at the Premises without the prior written approval of Landlord; provided that the approval of Landlord will not be required for the use of cleaning supplies, toner for photocopying machines and other similar materials, in containers and quantities reasonably necessary for and consistent with ordinary office use or routine janitorial service.
(d) Release of Hazardous Substances. In any event, Tenant will not cause or permit the release of any Hazardous Substances into the air, water or land, or into the Premises in any manner that violates any Environmental Laws.
(e) Remediation. If such release by Tenant of any Hazardous Substances occurs during the Term, Tenant will do the following:
i.) Contain and Control: take all steps reasonably necessary to contain and control such release and any associated Contamination;
ii.) Investigate and Clean-Up: investigate and clean up or otherwise remedy such release and any associated Contamination to the extent required by, and take any and all other actions required under, applicable Environmental Laws; and
iii.) Notify: notify and keep Landlord reasonably informed of such release and response.
(f) Hazardous Activities. In any event, Tenant will not cause or permit the following:
i.) Regulated Facility: any activity which would cause the Premises to become subject to regulation as a hazardous waste treatment, storage or disposal facility under applicable Environmental Laws (including, without limitation, RCRA);
ii.) Storm Sewer: the discharge of Hazardous Substances into the storm sewer system serving the Premises; or
iii.) UST: the installation of any underground storage tank or underground piping on or under the Premises.
-11-
(g) Environmental Indemnity.
i.) General Indemnification. Except to the extent caused by Landlord’s intentional misconduct or gross negligence, Tenant will indemnify Landlord and hold Landlord harmless from and against any and all expense, loss, and liability suffered by Landlord, by reason of the storage, generation, release, handling, treatment, transportation, disposal, or arrangement for transportation or disposal, of any Hazardous Substances at the Premises by any party other than Landlord or Landlord’s Affiliates at any time during the Lease Term or by reason of Tenant’s breach of any of the provisions of this Section 14. Tenant’s indemnification obligations hereunder expressly exclude any acts or omissions for time periods prior to the Lease Date. Except to the extent caused or exacerbated by Tenant’s intentional misconduct or gross negligence, Landlord will indemnify Tenant and hold Tenant harmless from and against any and all expense, loss, and liability suffered by Tenant by reason of the storage, generation, release, handling, treatment, transportation, disposal, or arrangement for transportation or disposal, of any Hazardous Substances at the Premises (i) by any party at any time prior to the Lease Term; or (ii) by Landlord or Landlord’s Affiliates at any time during the Lease Term; or (iii) by reason of Landlord’s or Landlord’s Affiliates breach of any of the provisions of this Section 14.
ii.) Expenses, Losses and Liabilities. Expenses, losses and liabilities, as referenced in Section 14(g)(i), will include, without limitation, the following:
A. Compliance: Landlord expenses to comply with any Environmental Laws the violation of which was caused by Tenant or Tenant’s Affiliates following the Lease Date;
B. Studying or Removing: costs that Landlord may incur in studying, remedying, removing, disposing or otherwise addressing any Contamination or Hazardous Substances at or arising from the Premises following Tenant’s refusal to perform the same (or to the extent required to be performed by Landlord under Environmental Laws);
C. Penalties: fines, penalties or other sanctions and any liens or claims, including but not limited to natural resource damages claims, assessed upon Landlord; and
D. Professional Fees: reasonable legal and professional fees and costs incurred by Landlord in connection with the foregoing.
iii.) Survival. The indemnity contained in this Section 14(g) will survive the Expiration Date.
15. AS-IS. Tenant acknowledges and agrees that Landlord shall deliver the Premises “AS IS” and occupancy shall begin on the Lease Commencement Date without any other conditions precedent including, without limitation, Landlord performing any work in or around the Premises.
16. Tenant Alterations.
(a) Alteration Process.
i.) Approval Required. Tenant will not make or allow any alterations to any part of the Premises (each a “Tenant Alteration”), without first obtaining on each occasion Landlord’s prior written approval which shall not be unreasonably withheld, conditioned or delayed. As part of its approval process, Landlord may require that Tenant submit plans and specifications and provide a schedule of values related to the proposed Tenant Alteration. Promptly after completion of any Tenant Alterations other than Non-Approval Tenant Alterations (defined below), Tenant will deliver Landlord, to the extent available, the as-built construction drawings for the Tenant Alterations to Landlord in the format reasonably requested by Landlord.
-12-
ii.) No Approval Required. Notwithstanding the foregoing, Landlord’s prior written approval shall not be required for interior Tenant Alterations that (“Non-Approval Tenant Alterations”):
| (1) | are non-structural, |
| (2) | do not result in floor penetrations or affect the roof, |
| (3) | do not affect the mechanical, plumbing, HVAC, electrical or safety systems serving the Building or Premises, |
| (4) | do not require the filing of plans and specification with any governmental or quasi-governmental agency or authority or require a building permit, |
| (5) | do not reduce the value or utility of the Building, and |
| (6) | unless the alterations are purely decorative in nature (for example, painting or installation of floor and wall covering) and do not cost more than $50,000.00 for any one such alteration, or more than $150,000.00 for all such alterations in the aggregate. Except for Non-Approval Tenant Alterations, if Landlord’s approval is not obtained, Tenant shall, at Landlord’s request remove all such alterations and repair and restore the Premises to good condition and repair. |
ii.) Standard for Tenant Alterations. All Tenant Alterations will be performed in accordance with all applicable Governmental Requirements and in a good and workmanlike manner with first-class materials.
iii.) Tenant Insurance. Tenant will maintain (and will require its contractors to maintain) insurance reasonably satisfactory to Landlord during the construction of all Tenant Alterations.
iv.) Removal of Tenant Alterations. At Landlord’s election, Tenant will, at its sole cost and expense and by the end of the Term, remove the Tenant Alterations and repair and restore the Premises to good condition and repair. Landlord shall provide Tenant with notice of its election for Tenant to remove the Tenant Alterations at the time Landlord approves the same; provided, that (i) Tenant’s request for Landlord’s approval to the applicable Tenant Alteration specifically includes a request that Landlord determine whether removal of such Tenant Alteration will be required at the end of the Term; and (ii) in the event of Non-Approval Tenant Alterations, Landlord shall endeavor to provide Tenant with notice of its election at least six (6) months prior to the Expiration Date.
v.) Surrender of Tenant Alterations. Except as otherwise provided in Section 11 and in this Section 16, all Tenant Alterations and all other property installed on the Premises by or on behalf of Tenant will immediately upon installation become the property of Landlord and will be surrendered to Landlord on the Expiration Date unless Tenant is required, or elects, to remove the same.
(b) No Liens.
i.) General Prohibition. Tenant will not permit any lien on account of labor, material or services furnished in connection with work of any character performed or claimed to have been performed at the Premises.
ii.) Discharge of Liens. If any lien is filed against the Premises, Tenant will discharge such lien by payment or bonding within twenty (20) days after Tenant has actual knowledge of the existence of the lien.
iii.) Landlord Cure Right. If Tenant fails to timely discharge such lien in accordance with Section 16(b)(ii), Landlord may, without investigation of the validity of the lien claim (and in addition to any other rights and remedies), discharge such lien and Tenant will reimburse Landlord upon demand for all charges, costs and expenses actually incurred by Landlord in connection therewith, including, without limitation, Legal Costs.
iv.) No Implied Consent. Nothing contained in this Lease will be construed as a consent or authorization by Landlord to allow any person claiming through or under Tenant to file or otherwise subject the Premises to any lien or claim of any nature under any law.
(c) General Indemnification. Tenant will indemnify Landlord against, hold Landlord harmless from, and defend Landlord and the Premises against (with legal counsel acceptable to Landlord) all expenses, charges, liens, claims, liabilities and costs which may arise out of any Tenant Alterations including, without limitation, bond premiums for release of liens and Legal Costs and/or the filing of any liens, judgments, or encumbrances in connection therewith, or a failure by Tenant to meet its obligations under this Section 16.
(d) Survival. Tenant’s obligations set forth in this Section 16 shall expressly survive termination of the Lease.
-13-
17. Fire and Other Casualty.
(a) Substantial Casualty. If: (i) in the commercially reasonable determination of Landlord the Premises should be totally destroyed by fire or other casualty, or if in the commercially reasonable determination of Landlord the Premises should be damaged so that rebuilding cannot reasonably be completed substantially within twelve (12) months after Landlord’s receipt of written notification by Tenant of the destruction, or (ii) the Premises are damaged or destroyed by casualty not covered by Landlord’s insurance, or (iii) if any lender or other party entitled to insurance proceeds fails to make such proceeds available to Landlord in an amount sufficient for restoration of the Premises, then Landlord will give written notice to Tenant of such determination (the “Notice of Right to Terminate”) within 60 days after such casualty. If Landlord issues a Notice of Right to Terminate, either Landlord or Tenant may terminate this Lease by giving written notice to the other within twenty (20) days after Landlord’s delivery of the Notice of Right to Terminate, in which case this Lease shall terminate effective as of the date of the written termination notification and neither party shall have any further obligations under this Lease except for those which expressly survive termination of this Lease.
(b) Partial Casualty. If following damage or destruction to the Premises by fire or other casualty, this Lease is not terminated pursuant to Section 17(a) hereof, this Lease shall not terminate, and Landlord shall proceed, to the extent of insurance proceeds actually received by Landlord after the exercise by any mortgagee of the Premises of an option to apply proceeds against Landlord’s debt to such mortgagee, with reasonable diligence to rebuild or repair the Building or other improvements to substantially the same conditions in which they existed immediately preceding the casualty date. If the Premises are to be rebuilt or repaired and are untenantable in whole or in part following the damage, and the damage or destruction was not caused or contributed to by act or negligence of Tenant, its agents, employees, invitees or those for whom Tenant is responsible, the Base Rent payable under this Lease during the period for which the Premises are untenantable until the Premises are returned to the condition that existed as of the Commencement Date shall be reduced to an amount determined by multiplying the Base Rent that would otherwise be payable but for this provision by the ratio that the portion of the Premises not rendered untenantable bears to the total net rentable area of the Premises prior to the casualty. Landlord’s obligation to rebuild or restore under this Section shall be limited to restoring the Premises to substantially the condition in which the same existed prior to the casualty, exclusive of improvements for which Tenant is responsible, and Tenant shall, promptly after the completion of such work by Landlord, proceed with reasonable diligence and at Tenant’s sole cost and expense to restore those improvements for which Tenant is responsible to substantially the condition in which the same existed prior to the casualty and to otherwise make the Premises suitable for Tenant’s use. If Landlord fails to substantially complete the necessary repairs or rebuilding within twelve (12) months after Landlord’s receipt of written notification by Tenant of the destruction (the “Outside Restoration Date”), then Tenant may terminate this Lease by giving written notice to Landlord within twenty (20) days after the expiration of the twelve (12) month rebuilding period, in which case this Lease shall terminate effective as of the date of the written termination notification and neither party shall have any further obligations under this Lease except for those which expressly survive termination of this Lease; provided, however, that: (i) the Outside Restoration Date will be extended on a day-for-day basis for each day of Tenant Delay; and (ii) the following provision shall apply: If at any time Landlord reasonably determines that it will not be able to cause completion of the restoration work by the Outside Restoration Date, then Landlord shall have the right to request a reasonable extension of the Outside Restoration Date by written notice to Tenant (the “Outside Restoration Date Extension Request”). Tenant shall have a period of 10 days after delivery of the Outside Restoration Date Extension Request to respond in writing to Landlord that it either (1) approves the Outside Restoration Date Extension Request, in which case the Outside Restoration Date shall be automatically extended for the period of time requested by Landlord in the Outside Restoration Date Extension Request or (2) rejects the Outside Restoration Date Extension Request (“Outside Restoration Date Extension Rejection”). Failure by Tenant to timely respond in the manner requested by Landlord will be deemed an Outside Restoration Date Extension Date Rejection. In the event of an Outside Restoration Date Extension Date Rejection, either party shall have the right to terminate this Lease within 5 business days after delivery by Tenant of the Outside Restoration Date Extension Rejection (or the last day of the above-referenced 10-day period if Tenant does not respond at all). If neither party terminates this Lease within such 5-business day period, then the Outside Restoration Date will not be deemed to be extended, the Lease will remain in effect, and Tenant shall continue to have the right to terminate this Lease if Landlord does not cause the completion of the restoration work by the Outside Restoration Date. During any period in which Landlord is restoring the Premises in accordance with this Section 17, Rent shall equitably abate in proportion to the portion of the Premises which is untenable as a result of the fire or other casualty until Landlord’s restoration is complete.
-14-
(c) Insurance Proceeds. Landlord’s obligation to rebuild and repair under this Section 17 shall in any event be limited to restoring the structural elements of the Premises to substantially the condition in which the same existed immediately prior to the casualty, and shall be further limited to the extent of the insurance proceeds available to Landlord for such restoration.
(d) Restoration Process. Tenant shall deliver to Landlord for Landlord’s approval the plans and specifications relating to the restoration for which Tenant is responsible, as well as a schedule setting forth the estimated periodic draws for such work. Upon Landlord’s approval thereof, Tenant will begin such restoration and will prosecute the same to completion with diligence and in accordance with the same requirements relating to Tenant Alterations.
(e) Survival. The provisions of this Section 17 shall expressly survive termination of the Lease.
18. Condemnation.
(a) Total Condemnation.
i.) Termination of Lease. If a material portion of the Building is Condemned and the remaining portion thereof is not usable by Tenant for the Permitted Use (as reasonably determined by both Landlord and Tenant), or if the entirety of the Building is Condemned, this Lease will terminate as of the earlier of the date (the “Condemnation Date”) that: (A) title to the condemned real estate vests in the condemnor; and (B) Tenant is deprived of possession of the Building as a result of the Condemnation.
ii.) Apportionment of Rent. In such event: (A) the Rent will be apportioned and paid in full by Tenant through the Condemnation Date; (B) all Rent prepaid for periods beyond the Condemnation Date will be repaid by Landlord to Tenant; and (C) neither party will have any liability hereunder after the Condemnation Date, except that any obligation or liability of either party, actual or contingent, under this Lease which has accrued on or prior to such Condemnation Date will survive.
(b) Partial Condemnation.
i.) Restoration of Premises. If only part of the Premises is Condemned and this Lease does not terminate pursuant to Section 18(a), Landlord will restore any resulting damage to portions of the Improvements to a condition as nearly comparable as reasonably practicable to the condition thereof immediately prior to the Condemnation (“Condemnation Restoration”).
ii.) Rent Adjustment. There will be an equitable adjustment to the Rent based on the actual loss of use of the Building suffered by Tenant from a partial Condemnation described in Section 18(b)(i).
(c) Award.
i.) Award for Taking. Landlord will receive the entire award in any proceeding with respect to any Condemnation, without deduction therefrom for any estate vested in Tenant by this Lease, and Tenant will receive no part of such award (except to the extent disbursed in connection with Condemnation Restoration pursuant to subsection (iii) below).
ii.) Tenant Claim. Nothing contained herein will be deemed to prohibit Tenant from making a separate claim against the condemnor, to the extent permitted by law, for the value of Tenant’s moveable trade fixtures, machinery and moving expenses, provided that the making of such claim does not diminish Landlord’s award. Except as aforesaid, Tenant hereby waives all claims against Landlord and all claims against the condemnor, and Tenant hereby assigns to Landlord all claims against the condemnor including, without limitation, all claims for leasehold damages and diminution in the value of any leasehold interest.
-15-
19. Tenant’s Default.
(a) Event of Default. The occurrence of any of the events listed below will constitute an “Event of Default” of Tenant under this Lease.
i.) Failure to Pay Rent. Tenant fails to pay Base Rent or any Additional Rent when due, and such failure continues for more than five (5) days after Landlord gives written notice to Tenant of such failure;
ii.) Repeated Failure to Pay Rent. Tenant fails to pay Base Rent or any Additional Rent when due more than two (2) times in any period of 12 months, notwithstanding that such payments have been made within the applicable cure period;
iii.) Governmental Requirements/Environmental Compliance. Tenant fails to comply with Section 14 of this Lease, and such failure continues for more than ten (10) days after Landlord gives Tenant written notice of such failure. Notwithstanding the foregoing, if, a longer amount of time is reasonably necessary due to the nature of the actions required under Section 14 of this Lease, then Tenant shall promptly commence such actions within ten (10) days after Landlord gives Tenant written notice of such failure and Tenant shall provide written notice to Landlord with Tenant’s reasonable estimate of the time needed to comply with the requirements of Section 14 of this Lease and thereafter Tenant shall diligently pursue to completion all actions necessary to comply with Section 14 of this Lease.
iv.) Failure to Discharge Lien. Tenant fails to discharge any lien against the Premises in accordance with Section 16(b);
v.) Failure to Maintain Insurance. Tenant fails to maintain in force all policies of insurance required by this Lease or fails to provide Landlord with evidence of such insurance, and either of such failures continues for more than seven (7) business days after Landlord gives Tenant written notice of such failure;
vi.) Bankruptcy. (A) Tenant or any guarantor of this Lease is bankrupt (which, in the case of an involuntary proceeding, is not permanently discharged, dismissed, stayed, or vacated, as the case may be, within 60 days of commencement); (B) a receiver, custodian, or trustee is appointed for the Premises or for all or substantially all of the assets of Tenant or of any guarantor of this Lease, which appointment is not vacated within 60 days following the date of such appointment; or (C) Tenant or any guarantor of this Lease becomes insolvent or makes a transfer in fraud of creditors or makes an assignment for the benefit of creditors.
vii.) Holdover. Subject to Section 27(c)(ii) Tenant fails to vacate the Premises on or before the Expiration Date, in accordance with Section 27(b) (no notice-and-cure right is afforded in connection with a Holdover); or
viii.) Other Default. Tenant fails to perform or observe any other term of this Lease and such failure continues for more than 30 days after Landlord gives Tenant written notice of such failure, or, if such failure cannot be corrected within such 30 day period, if Tenant does not commence to correct such default within said 30 day period and thereafter diligently prosecute the correction to completion within a reasonable time (but in no event later than 90 days after Landlord’s notice of default).
(b) Landlord’s Remedies. Upon the occurrence of any Event of Default, at Landlord’s option, without any demand or notice whatsoever (except as expressly required in this Section 19) Landlord may enforce any of the following remedies:
i.) Termination of Lease: Landlord may give Tenant notice of termination, in which event this Lease will terminate on the date specified in such notice (which date shall comply with all applicable laws) and all rights of Tenant under this Lease and to the Premises will terminate, and:
A. Tenant Remains Liable: Tenant will remain liable for all obligations under this Lease arising up to the date of such termination.
-16-
B. Surrender of Premises: Tenant will surrender the Premises to Landlord on the date specified in such notice.
ii.) Termination of Lease with Recovery of Damages:
A. Termination Right; Calculation of Damages: Landlord may terminate this Lease as provided in Section 19(b)(i) and recover from Tenant all damages Landlord actually incurs, or is reasonably likely to incur, by reason of Tenant’s default, including, without limitation, an amount which, at the date of such termination, is calculated as follows (and which will be immediately due and payable):
1. Lost Rental Value: the positive difference, if any, of: (a) the Base Rent, Additional Rent and all other sums which would have been payable hereunder by Tenant for the period commencing with the day following the date of such termination and ending with the scheduled Expiration Date had this Lease not been terminated (the “Remaining Term”), minus (b) the aggregate reasonable rental value of the Premises for the Remaining Term (which positive difference, if any will be discounted to present value at the Treasury Yield for the Remaining Term); plus
2. Landlord Expenses: the costs of recovering possession of the Premises and all other expenses actually incurred by Landlord due to Tenant’s default, including, without limitation, Legal Costs, expenses of preparing the Premises for re-letting, repairs, unamortized balance of the Landlord’s Work Allowance or Tenant’s Work Allowance, any abated rent, and brokers’ commissions (the “Default Damages”); plus
3. Unpaid Rent: the unpaid Base Rent and Additional Rent owed as of the date of termination plus any interest and late fees due hereunder, plus other amounts owing on the date of termination by Tenant to Landlord under this Lease or in connection with the Premises.
iii.) Repossession of Premises.
A. Landlord Repossession of Premises. Without terminating this Lease, in its own name but as agent for Tenant, Landlord may enter into and upon and take possession of the Premises or any part thereof.
B. Removal of Tenant Property. Any property remaining in the Premises may be removed and stored at the cost of, and for the account of, Tenant without Landlord becoming liable for any loss or damage which may be occasioned thereby unless caused by Landlord’s willful misconduct or gross negligence.
C. Right to Relet. Thereafter, Landlord shall use commercially reasonable efforts and endeavor to lease to a third party the Premises or any portion thereof upon such terms and conditions as Landlord may deem or desirable in order to relet the Premises, but without relieving Tenant of its liability; provided, however, that Landlord’s obligations under this subsection shall be deemed satisfied so long as Landlord notifies a real estate broker that the Premises has or will soon thereafter come available for leasing and that Landlord desires to relet the Premises upon the Premises becoming available.
D. Right to Terminate. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for any such previous default, provided same has not been cured.
-17-
iv.) Other Remedies: Landlord may pursue such other remedies as are available at law or equity; provided, however, that Tenant shall not be liable for special, consequential or punitive damages, except to the extent arising under Section 14 (Environmental Matters) or Section 27(c) (Holdover).
Mention in this Lease of any particular remedy of Landlord does not preclude Landlord from any other remedy, whether available at law or in equity or by statute or expressly provided for in this Lease. No remedy will be exclusive or dependent upon any other remedy, and the remedies are cumulative and not alternative.
(c) Application of Funds. If this Lease terminates as a result of, or while there exists, an Event of Default, any funds of Tenant held by Landlord may be applied by Landlord to any damages payable by Tenant (whether provided for herein or by law) as a result of such termination or Event of Default.
(d) No Waiver.
i.) No Implied Acceptance or Surrender. No agreement to accept a surrender of the Premises and no act or omission by Landlord or Landlord’s agents during the Term will constitute an acceptance or surrender of the Premises unless made in writing by Landlord.
ii.) No Implied Termination. No re-entry or taking possession of the Premises by Landlord will constitute an election by Landlord to terminate this Lease unless a written notice of such intention is given to Tenant.
iii.) No Implied Waiver. Landlord’s acceptance of Base Rent or Additional Rent following an Event of Default hereunder will not be construed as a waiver of such Event of Default.
(e) Application of Rent. Whenever an Event of Default has occurred, any payment of Rent by Tenant, any other payment of any nature tendered by Tenant to Landlord and any other amount of money collected or received by Landlord from any reletting of the Premises pursuant to this Section 19 will be applied in such order as Landlord may elect toward payment of all amounts due from Tenant to Landlord pursuant to this Lease.
20. Landlord’s Right of Entry. Tenant will permit Landlord and the authorized representatives of Landlord and Lender to enter the Building and other portions of the Premises at all reasonable times for the purposes of: (i) inspecting the Premises; (ii) assessing Tenant’s compliance with this Lease and performing Landlord’s obligations under this Lease; (iii) performing any of Landlord’s construction or maintenance and repair responsibilities; and (iv) exhibiting the Premises to any Lender, any prospective purchaser, investor or lender, and during the last 6 months of the Term, any prospective tenant; provided that, except in the case of an emergency, Landlord will give Tenant at least forty-eight (48) hours’ prior notice of Landlord’s intended entry into the Building.
21. Lender’s Rights.
(a) Subordination and Attornment.
i.) Subordination: This Lease and all rights of Tenant hereunder are subordinate to any Mortgage and foreclosure of any Mortgage, so long as Tenant has been delivered a commercially reasonable subordination, non-disturbance and attornment agreement (a “Reasonable SNDA”) executed by the Lender holding such Mortgage, which shall include among other things, provisions stating that (i) so long as Tenant faithfully and timely discharges its obligations under this Lease, Tenant’s right of possession to the Premises and other rights under this Lease will not be affected by any default by Landlord under the Mortgage, and (ii) that in the event of foreclosure under the Mortgage, provided no uncured Event of Default exists, the rights of Tenant hereunder will survive and this Lease will continue in full force and effect in accordance with its terms.
-18-
ii.) Attornment. If, in connection with foreclosure of a Mortgage or other taking of possession of the Premises pursuant to a Mortgage, a Lender (or a nominee of the Lender or other purchaser at foreclosure) elects to succeed to the rights and obligations of Landlord under this Lease, Tenant will attorn to such successor as landlord under this Lease, without change in the terms and provisions of this Lease, and will promptly execute and deliver any instrument reasonably required by such successor to evidence such attornment including, without limitation, a Reasonable SNDA; provided, however, that such successor will not be bound by:
A. Advanced Rent Payment: any payment of Base Rent or Additional Rent more than one month in advance, except prepayments in the nature of security for the performance by Tenant of its obligations under this Lease, and then only if such prepayments have been deposited with and are under the control of such successor;
B. No Lender Consent: any provision of any amendment to this Lease to which Lender has not consented in writing; or
C. Defaults of Prior Landlords: the defaults of any prior landlord under this Lease, including, without limitation, any offset against Rent arising out of the defaults of any prior landlord under this Lease.
iii.) Execution of Instruments. Tenant will execute any Reasonable SNDA requested by Landlord during the Term.
(b) Lease Superior Upon Request. At any time during the Term, any Lender may, by written notice to Tenant, make this Lease superior to the lien/security title of its Mortgage. If requested by Lender, Tenant will, upon demand, at any time or times, execute, acknowledge and deliver to Lender, any and all instruments that may be reasonably necessary to make this Lease superior to the lien/security title of any Mortgage.
22. Estoppel Certificates.
(a) Estoppel Certificates. During the Term, each of Landlord and Tenant agrees (and Tenant agrees to require Guarantor) to execute and deliver within 15 days after written request from the other, a statement to the requesting party and/or its designee certifying as follows (in each instance, to the actual knowledge of the party providing the certificate):
i.) In Effect: This Lease is unmodified and in full force and effect (or, if there have been modifications, that the same is in full force and effect, as modified);
ii.) Rent Payment. The amount of the Security Deposit (if any) and the amount and dates to which Base Rent and Additional Rent have been paid;
iii.) Default. Whether or not, to its actual knowledge, there exists any failure by the requesting party to perform any term, covenant or condition contained in this Lease, and, if so, specifying each such failure;
iv.) Acceptance of Premises. If such be the case, Tenant has unconditionally accepted the Premises and is conducting its business therein;
v.) Unperformed Obligations. If such be the case, whether Landlord has performed all obligations under this Lease, including, but not limited to, constructing any tenant improvements and/or paying any tenant allowances; and
vi.) Other Matters. As to such additional factual matters relating to this Lease as may be reasonably requested, it being intended that any such statement delivered pursuant hereto may be relied upon by the requesting party and by any party that has, or is contemplating having, a direct or indirect interest in Landlord or the Premises.
23. Landlord Liability/Termination/Independence.
(a) No Continuing Liability. No owner of the Premises, whether or not named herein, will have liability hereunder after it ceases to hold title to the Premises, except for events occurring during the period of such owner’s ownership of the Premises.
(b) No Personal Liability. Neither Landlord nor any employee, representative, officer, director, security holder, manager, equity holder, trustee, partner or principal of Landlord, whether disclosed or undisclosed, will have any personal liability with respect to any of the provisions of this Lease.
-19-
(c) Limitation of Landlord Liability. In the event Landlord is in breach or default with respect to Landlord’s obligations or otherwise under this Lease, Tenant will look solely to the equity of Landlord in the Premises for the satisfaction of Tenant’s remedies. Landlord’s liability under the terms, covenants, conditions, warranties and obligations of this Lease will in no event exceed Landlord’s equity interest in the Premises.
(d) No Termination. Except as expressly provided in this Lease, this Lease shall not terminate, nor shall Tenant have any right to terminate this Lease nor shall Tenant be entitled to any abatement or reduction of Rent. Except as otherwise provided in this Lease, the obligations of Tenant shall not be affected by reason of (i) any damage to or the destruction of all or any part of the Premises from whatever cause, (ii) the taking of the Premises or any portion thereof by condemnation, requisition or otherwise for any reason, (iii) the prohibition, limitation or restriction of Tenant’s use of all or any portion of the Premises or any interference with such use, or (iv) any default on the part of Landlord under this Lease or under any other agreement to which Landlord and Tenant are parties.
(e) Separate/Independent Obligations. It is the intention of the parties hereto that the obligations of Landlord and Tenant hereunder shall be separate and independent covenants and agreements, that the Rent and all other sums payable by Tenant hereunder shall continue to be payable in all events and that the obligations of Tenant hereunder shall continue unaffected, unless the requirement to pay or perform the same shall have been terminated pursuant to an express provision of this Lease.
(f) Waiver. Except as expressly provided in this Lease, Tenant waives all rights to which it may now or hereafter be conferred by law (i) to quit, terminate or surrender this Lease or the Premises or any part thereof, or (ii) to any abatement, suspension, deferment or reduction of the Rent or any other sums payable under this Lease.
24. Notices.
(a) Delivery Methods. Any notice required or permitted by the provisions of this Lease must be in writing and delivered to the email addresses set forth in Section 1(k), with a hard copy sent within a reasonable period of time by nationally recognized overnight delivery service providing proof of delivery, to the appropriate mailing address set forth in Section 1(k). Email addresses and mailing addresses may be changed by the affected party to any other address in the continental United States by giving written notice at least ten (10) days in advance of the effective date of the change.
(b) Notice Date. Notice will be deemed to have been given on the date of email transmission. If a notice that is properly addressed per Section 24(a) is rejected as undeliverable for any reason, the notice will be deemed delivered at the time delivery was attempted.
25. Broker Indemnification. Landlord and Tenant hereby indemnify the other against and from any claims for any brokerage commissions arising through such party and all costs, expenses and liabilities in connection therewith, including, without limitation, Legal Costs.
26. Assignment and Subleasing.
(a) Transfer.
i.) Consent Required. No Transfer will be permitted without the prior written consent of Landlord, which consent Landlord will not unreasonably withhold, condition or delay.
ii.) General Notice Requirements. If Tenant desires to Transfer this Lease (other than in connection with a Change in Control, which will be governed by the provisions of Section 26(b)), Tenant will give Landlord written notice no later than 30 days in advance of the proposed effective date of the proposed Transfer including:
A. Name and Business: the name and business of the other party to the proposed transaction;
B. Effective Date: the proposed effective date and duration of the Transfer;
C. Rent: the proposed rent or consideration to be paid to Tenant by the other party to the proposed transaction;
-20-
D. Space: in the event that a proposed Transfer is a sublease or any other proposed agreement to Transfer less than Tenant’s entire interest in the Premises, the amount and location of the space within the Premises that is the subject of the proposed transaction; and
E. Additional Information: financial statements and other information as Landlord may reasonably request to evaluate any Transfer.
(b) Change in Control. If Tenant desires to effectuate a Change in Control, Tenant will:
i.) Notice. give Landlord written notice no later than 30 days in advance of the effective date of any proposed Change in Control, specifying:
A. Name: the name of the proposed entity acquiring the direct or indirect interest in (or assets of) Tenant; and
B. Effective Date: the proposed effective date of such Change in Control.
ii.) Other Requested Information. promptly supply Landlord with financial statements and other information as Landlord may reasonably request to evaluate the proposed Change in Control.
(c) Transfer Process.
i.) Landlord’s Decision. For all Transfers, Landlord will have a period of 10 Business Days following Landlord’s receipt of the notice and information from Tenant required above within which to notify Tenant in writing that Landlord elects one of the following:
A. Permit Transfer. To permit the Transfer, either with or without reasonable conditions specified by Landlord; or
B. Refuse Transfer. To refuse, in Landlord’s reasonable discretion (taking into account all relevant factors, including the factors set forth below), to approve the Transfer and to continue this Lease in full force and effect as to the entire Premises. If Landlord fails to notify Tenant in writing of such election within the 10-Business Day period, Tenant shall have the right to send an additional notice to Landlord requesting Landlord’s consent to the Transfer, which notice shall contain in bold and capital letters at the top of the first page language stating that “PURSUANT TO SECTION 26(C) OF THE LEASE, FAILURE TO RESPOND TO THIS LETTER MAY RESULT IN DEEMED APPROVAL OF A TRANSFER OF THIS LEASE”, and if Landlord still fails to respond to Tenant’s request within 5 days thereafter, then Landlord will be deemed to have elected to approve such Transfer.
ii.) Landlord Refusal. For purposes of this Section 26, by way of example and not limitation, Landlord will be deemed to have reasonably withheld consent if:
A. Creditworthiness: the creditworthiness of the prospective transferee (or, in the instance of a Change in Control, the creditworthiness of Tenant after the Change in Control) will not equal or exceed the greater creditworthiness of Tenant as of: (1) the Lease Date or (2) the date immediately prior to the proposed Change in Control;
B. Increased Risk of Use: the proposed use of the Premises by such prospective transferee, when compared to Tenant’s use, will: (1) materially increase the risk of Contamination; (2) materially increase wear and tear on the Premises or the Improvements; (3) necessitate any material modifications of any part of the Premises or the Improvements; (4) materially increase the cost of, or risk exposure under, insurance; or (5) otherwise materially and negatively affect the value or marketability of the Premises; or
-21-
C. Current or Prospective Tenant: in the instance of any Transfer (other than a Change in Control), the prospective transferee is a bona-fide third-party prospective tenant for space owned by Landlord in the Market Area.
(d) Miscellaneous Transfer Provisions.
i.) Reimbursement. Tenant agrees to reimburse Landlord for reasonable legal fees and any other reasonable costs incurred by Landlord in connection with any requested Transfer not to exceed Two Thousand and No/100 Dollars ($2,000.00).
ii.) Delivery of Transfer Documents. Tenant will deliver to Landlord copies of all transfer documents executed by Tenant and the transferee.
iii.) Excess Rent. If the transferee is to pay rent or other consideration to Tenant, and the rent rate (or other consideration) agreed upon between Tenant and its proposed transferee is greater than the rent rate that Tenant must pay Landlord hereunder for the Premises (or the applicable portion thereof), then fifty percent (50%) of such excess rent and consideration (after payment of brokerage commissions, Legal Costs and other disbursements reasonably incurred by Tenant for such Transfer) will be considered Additional Rent to be paid to Landlord by Tenant.
iv.) No Implied Consent. No acceptance by Landlord of any rent or any other sum of money from any assignee, sublessee or other category of transferee will be deemed to constitute Landlord’s consent to any Transfer.
v.) Liability of Transferees. Permitted subtenants, assignees or other transferees will be liable directly to Landlord for all obligations of Tenant hereunder, without, however, relieving Tenant (or any guarantor) of any liability hereunder.
vi.) Tenant Remains Liable. No such Transfer will be deemed a release of transferring Tenant from Tenant’s obligations under this Lease; provided that Landlord shall act in good faith in considering any request by Tenant to be released following a Transfer where (a) the transferee assumes, in full, the obligations of Tenant under this Lease; (b) the Permitted Use of the Premises remains unchanged; (c) after such transaction is effected, the tangible net worth of the tenant hereunder is equal to or greater than the tangible net worth of Tenant as of the date of this Lease or the date immediately preceding the Transfer, whichever is greater; (d) Landlord shall have received an executed copy of all documentation effecting such Transfer on or before its effective date; and (e) the same is not a subterfuge by Tenant to avoid its obligations under this Lease. For the avoidance of doubt, notwithstanding any obligation of Landlord to act in good faith in considering any request by Tenant to be released following a Transfer, satisfaction of (a) through (e) above by a transferee shall in no event be construed as obligating Landlord to release the transferring Tenant from Tenant’s obligations under this Lease; rather, in the event conditions (a) through (e) above are satisfied, Landlord is merely agreeing to consider such request using sound business practices customarily used by prudent owners of similar properties, and Tenant acknowledges that so long as Landlord considers such request in accordance with the foregoing, Landlord shall nonetheless be entitled to withhold its consent in Landlord’s sole discretion.
vii.) Subsequent Transfers. Any Transfer consented to by Landlord will not relieve Tenant (or its transferee) from obtaining Landlord’s consent to any subsequent Transfer.
-22-
27. Termination or Expiration; Holdover.
(a) Right to Collect Rent. No termination of this Lease prior to the normal ending thereof, by lapse of time or otherwise, will affect Landlord’s right to collect Rent for the period prior to termination.
(b) Surrender. On or before the Expiration Date, Tenant will surrender to Landlord: (i) the Premises (including the Improvements, but not including any trade fixtures, signage or Tenant Alteration which Tenant is obligated to remove pursuant to Section 11, Section 12 and Section 16, respectively) clean and neat, in compliance with the Rules and Regulations and otherwise in the same condition as when delivered to Tenant pursuant to this Lease (and, with respect to Landlord’s Work, in the same condition as when Substantial Completion of same occurred), excepting only normal wear and tear, condemnation and casualty (other than casualty required by this Lease to be insured against by Tenant) and (ii) all keys to the Building. Failure by Tenant to timely do so shall be deemed a “Holdover”.
(c) Holdover.
i.) Tenant-At-Sufferance. If Holdover occurs, with or without Landlord’s acquiescence and without a written agreement of the parties, Tenant will be a tenant-at-sufferance at 150% of the Base Rent in effect at the end of the Term.
ii.) Permitted Holdover Period. Notwithstanding the foregoing, if Tenant gives to Landlord written notice not less than 6 months preceding the end of the Term, that Tenant desires to extend the duration of the Term for up to three (3) additional months (with the period of the extension, up to a maximum of three (3) months, to be specified in the notice from Tenant), then, and only then, the Term will automatically be extended for the period specified in the notice from Tenant (up to a maximum of three (3) months) (“Permitted Holdover Period”), so long as no Event of Default has occurred as of the date on which Tenant gives such notice to Landlord or as of the date on which the Lease otherwise would have expired. Base Rent during the Permitted Holdover Period shall equal to 125% of the Base Rent in effect immediately prior to such extension. If Tenant fails to vacate the Premises at the end of the Permitted Holdover Period, without Landlord’s acquiescence and without any express agreement of the parties, Base Rent will automatically escalate to an amount equal to 150% of the Base Rent in effect immediately prior to commencement of the Permitted Holdover Period.
iii.) Additional Rent. In any event, Tenant must also continue to pay all other Additional Rent due hereunder, provided that no concessions or limits on Operating Expenses or other concessions regarding Additional Rent will apply with respect to the holdover period.
iv.) No Renewal by Operation of Law. Notwithstanding anything to the contrary contained in this Section 27(c), there will be no renewal of this Lease by operation of law or otherwise.
v.) Damages. With respect to any holdover outside of the Permitted Holdover Period (if applicable), Tenant will be liable for all damages, direct and consequential, incurred by Landlord as a result of such Holdover.
vi.) No Implied Reinstatement or Renewal. No receipt of money by Landlord from Tenant after the termination of this Lease or Tenant’s right of possession of the Premises will reinstate, continue or extend the Term or of Tenant’s right of possession.
vii.) Survival. The provisions of this Section 27(c) will survive the Expiration Date.
28. Late Payments.
(a) Late Payment Administrative Fee. If any installment of Rent is not paid within five (5) days after the date when due, Tenant will pay a one-time administrative fee (the “Late Payment Administrative Fee”) equal to five percent (5%) of such past due amount, in order to defray certain of the additional expenses incurred by Landlord as a result of such late payment.
-23-
(b) Late Payment Interest. If any past-due installment of Rent, plus the Late Payment Administrative Fee, is not paid in full within 30 days after the original due date thereof, then the past-due installment, plus the Late Payment Administrative Fee, will, after expiration of such 30 days and until paid in full, accrue interest at the lesser of: (i) one percent (1.0%) per month, compounded monthly; and (ii) the maximum interest rate allowed by law (the “Late Payment Interest Rate”).
(c) Additional Fees. The Late Payment Administrative Fee and accrual of interest at the Late Payment Interest Rate are in addition to, and not in lieu of, any of Landlord’s remedies under this Lease for non-payment of Rent.
29. Rules and Regulations. Tenant will abide by the Rules and Regulations.
30. Miscellaneous.
(a) OFAC. Tenant certifies, represents, warrants and covenants that it is not acting (and will not act) directly or indirectly, for or on behalf of any of the following, and it is not engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of:
i.) Terrorist. any person, group, entity, or nation named by any Executive Order or the United States Treasury Department as a terrorist;
ii.) Specially Designated National or Blocked Person. any Specially Designated National or Blocked Person; or
iii.) Others. any other banned or blocked person, entity, nation or transaction pursuant to any law, order, rule, or regulation that is enforced or administered by the Office of Foreign Assets Control.
(b) Entire Agreement; Amendment; Severability.
i.) Entire Agreement. This Lease contains the entire agreement of the parties hereto as to the subject matter of this Lease and no prior representations, inducements, letters of intent, promises or agreements, oral or otherwise, between the parties not embodied herein will be of any force and effect.
ii.) Future Amendments. Any future amendment to this Lease must be in writing and signed by the parties hereto.
iii.) Severability. If any clause or provision of this Lease is determined to be illegal, invalid or unenforceable under applicable law, then: (A) all remaining provisions of this Lease will remain in full force and effect; and (B) it is the intention of Landlord and Tenant that, in lieu of such illegal, invalid or unenforceable clause or provision, there will be substituted a clause or provision as similar to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable.
(c) Cumulative Rights. All rights, remedies, powers, and privileges conferred hereunder upon the parties hereto (i) will be cumulative, but not restrictive to those given by law, and (ii) will not be (or deemed to be) exclusive of those that may at any time be available Landlord under applicable law.
(d) No Election of Remedies. An exercise of one remedy by Landlord (including, but not limited to, exercising rights under Sections 5(c) or 19(b)), shall not be deemed an election of remedies by Landlord, and Landlord will have the right to pursue any and all other remedies available to it.
(e) No Waiver. No failure of Landlord or Tenant to exercise any power given Landlord or Tenant hereunder or to insist upon strict compliance by Landlord or Tenant with its obligations hereunder, and no custom or practice of the parties at variance with the terms hereof will constitute a waiver of Landlord’s or Tenant’s rights to demand exact compliance with the terms hereof or lessen either party’s right to insist upon strict performance of the terms of this Lease. No provision of this Lease will be deemed to have been waived by either party unless such waiver is made in writing by the party making such waiver.
-24-
(f) Time Periods. Time is of the essence of this Lease. If the time period by which any right, option or election provided under this Lease must be exercised, or by which any act required hereunder must be performed, expires on a day other than a Business Day, then such time period will be automatically extended through the close of business on the next regularly scheduled Business Date in the state where the Premises are located.
(g) Relationship. This contract creates the relationship of landlord and tenant between Landlord and Tenant; no estate will pass out of Landlord. The interest of Tenant is not intended to, and will not, be subject to levy and sale and will not be assignable, except as expressly permitted by this Lease.
(h) No Recordation. Tenant will not record this Lease or a memorandum thereof; provided, however, that upon request by Tenant, Landlord agrees to execute a memorandum of this Lease in a recordable form reasonably acceptable to Landlord and Tenant may record such memorandum at its sole cost and expense.
(i) Counterparts. This Lease may be executed in multiple counterparts including by electronic or PDF signature, each of which will constitute an original, but all of which taken together will constitute one and the same agreement.
(j) Governing Law. All matters relating to the interpretation, construction, validity and enforcement of this Lease, including all claims (whether in contract or tort) that may be based upon, arise out of or relate to this Lease or the negotiation, execution or performance of this Lease or the transactions contemplated thereby, will be governed by and construed in accordance with the domestic laws of the state where the Premises are located, without giving effect to any choice of law or conflict of law provision or rule (whether of such state or of any other jurisdiction) that would cause the application of laws of any jurisdiction other than such state.
(k) Headings and Subheadings. The headings and subheadings of this Lease are for convenience only and are not a part of this Lease, and do not in any way define, limit, describe or amplify the terms or provisions of this Lease or the scope or intent thereof.
(l) Negotiated Document. This Lease is the result of negotiations between the parties, and in construing any ambiguity hereunder no presumption will be made in favor of either party.
(m) Waiver of Jury Trial. THE PARTIES HERETO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE OR THE RELATIONSHIP OF THE PARTIES HEREUNDER.
31. Special Stipulations. The Special Stipulations, if any, attached hereto as EXHIBIT B, are incorporated herein and made a part hereof and, to the extent of any conflict between the foregoing provisions and the Special Stipulations, the Special Stipulations will govern and control.
32. Authority. Landlord and Tenant certify to the other party as follows:
(a) Organization. It is duly organized, validly existing and in good standing under the laws of the state in which it was formed and duly qualified to do business in the state in which the Premises is located; and
(b) Authorization. It is authorized by all required corporate or partnership action to enter into this Lease, and the individual(s) signing this Lease on behalf of such party are each authorized to bind same.
33. Prevailing Party. In the event of a dispute between Landlord and Tenant regarding the terms of this Lease, including any dispute regarding the enforcement of this Lease or the interpretation of any provision of this Lease, whether arising in a lawsuit filed by either Landlord or Tenant, an arbitration, bankruptcy or otherwise, the prevailing party in such dispute will be entitled to recover from the other its Legal Costs in connection with such dispute.
[signatures on next page]
-25-
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands under seal effective as of the Lease Date.
| LANDLORD: | ||
| 105 PIB GROUP LLC, | ||
| a Georgia limited liability company | ||
| By: | /s/ Anthony L. Wood, Jr. | |
| Name: | Anthony L. Wood, Jr. | |
| Title: | Authorized Representative | |
| TENANT: | ||
| A.L. Grading contractors, LLC, | ||
| a Georgia limited liability company | ||
| By: | /s/ Jeremy S. Spivey | |
| Name: | Jeremy S. Spivey | |
| Title: | Authorized Representative | |
[Signature Page to Lease Agreement]
SCHEDULE A
“Additional Rent”: Any amount, other than Base Rent, required to be paid by Tenant to Landlord pursuant to this Lease and any cost or expense incurred by Landlord on behalf of Tenant or reimbursable to Landlord by Tenant under the terms of the Lease, including, without limitation, any amount advanced by Landlord to cure a default by Tenant under this Lease.
“Affiliates”: Shall mean Tenant’s Affiliates or Landlord’s Affiliates, as applicable.
“Appraisal Process”: Defined in Section 1(c)(iii) of EXHIBIT B.
“Appraiser’s Determination Period”: Defined in Section 1(c)(iii)(C) of EXHIBIT B.
“Base Rent”: Defined in Section 1(d).
“Building”: Defined in Section 1(b).
“Business Day”: Any day other than Saturday, Sunday or a day that banks are closed for business all day in the United States and/or the state in which the Premises are located.
“Casualty Damage”: Defined in Section 17(a).
“Casualty Restoration”: Defined in Section 17(a).
“Change in Control”: (a) the transfer of fifty percent (50%) or more of the direct or indirect equity or controlling interests in Tenant in one or more transactions occurring in a 12 month period, whether by sale, merger, consolidation or other transfers of equity interests of any kind; or (b) the sale or other transfer or disposition of all or substantially all of the assets of Tenant. The transfer of any direct or indirect interests in Tenant which are publicly traded on any recognized national or international securities exchange will not be deemed a Change in Control.
“Code Modification”: Any alteration or modification of any portion of the Premises or Improvements required during the Term by Governmental Requirements.
“Condemned” or “Condemnation”: The taking or condemnation of property by any authority having the power of eminent domain.
“Condemnation Date”: Defined in Section 18(a)(i).
“Condemnation Restoration”: Defined in Section 18(b)(i).
“Contamination”: The presence of, or release of, Hazardous Substances into any environmental media from, upon, within, below, into or on any portion of the Premises so as to require remediation, cleanup or investigation under any Environmental Law.
“Default Condition”: Any fact or circumstance which, with the giving of notice or the passage of time, or both, would give rise to or become an Event of Default.
“Default Damages”: Defined in Section 19(b)(ii)(A)(2).
“Delay”: Tenant Delay or Force Majeure Delay.
“Dock Equipment”: Equipment servicing the dock areas, including without limitation, dock levelers, trailer restraints, and overhead doors and associated tracks and hardware.
“Environmental Laws”: All federal, state, and local laws, regulations, orders, permits, ordinances or other requirements, which exist now or as may exist after the Lease Date, concerning protection of human health, safety and the environment, all as may be amended from time to time, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601 et seq. (“CERCLA”) and the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq. (“RCRA”) and the Toxic Substances Control Act, (15 U.S.C. 2601 et seq. (“TSCA”).
“Event of Default”: Defined in Section 19(a).
“Expiration Date”: Defined in Section 1(f).
“Extension Option”: Defined in Section 1(a) of EXHIBIT B.
“Extension Option Exercise Notice”: Defined in Section 1(b) of EXHIBIT B.
”Extension Option Period”: Defined in Section 1(a) of EXHIBIT B.
“Exterior Area”: Defined in Section 1(h).
“Floor Rate Base Rent”: Defined in Section 1(d) of EXHIBIT B.
“Force Majeure Delay”: Delay in construction of Landlord’s Work (or other work to be performed by Landlord) which is not within the direct control of Landlord; Force Majeure Delay includes without limitation delays resulting from the failure of permits to be issued in timely manner, strikes or other labor troubles, governmental restrictions and limitations, war, pandemic or other national emergency, non-availability or unexpected delay in delivery of materials or supplies, delay in transportation, accidents, floods, fire, damage or other casualties, weather, or delays by utility companies in bringing utility lines to the Premises.
“Fractional Month”: A partial month, not consisting of a full calendar month.
“Governmental Requirements”: Any restrictions of public record and all present and future laws, regulations, orders, permits, ordinances, rules and other requirements of federal, state, municipal and local governments and governmental authorities. Without limiting the foregoing, Tenant shall not use the Premises, the Building, or the Land, or any portion thereof (a) in violation of Title 21 USC Controlled Substances Act Section 856(a) or any similar or successor law now or hereinafter in effect, (b) for the growing, manufacturing, administration, distribution (including without limitation, any retail or wholesale sales or delivery), use or consumption of any cannabis, marijuana or cannabinoid product, compound or produce, or (c) for the operation of a medical marijuana or cannabis product facility or dispensary, in each case regardless of the legality of the same pursuant to any applicable state laws or regulations.
“Hazardous Substances”: Any hazardous or toxic substance, material, chemical, pollutant, contaminant or waste, as those terms are defined by any applicable Environmental Law, and any solid wastes, polychlorinated biphenyls, urea formaldehyde, asbestos, radioactive materials, radon, explosives, petroleum products and oil.
“Holdover”: Defined in Section 27(b).
“HVAC System”: A heating, ventilation and air conditioning system.
“Improvements”: All improvements at the Premises, including, without limitation, the Building, systems (including without limitation the HVAC System and fire protection system), parking facilities, driveways, exterior lighting and irrigation facilities, Tenant Alterations, and all improvements which are a part of the Landlord’s Work.
“Insured Issue”: A Landlord Insured Issue or a Tenant Insured Issue. Because Tenant’s insurance is primary and non-contributory, to the extent any cost or liability is insured against by both Landlord’s insurance and Tenant’s insurance, it shall be deemed to be a Tenant Insured Issue and not a Landlord Insured Issue.
“Landlord”: Defined in the preamble.
“Landlord’s Affiliates”: The employees, agents and contractors of Landlord, or any person or entity which, directly or indirectly, controls, is controlled by, or is under common control with, Landlord or any person who controls Landlord.
“Landlord’s Appraiser”: Defined in Section 1(c)(iii)(B) of EXHIBIT B.
“Landlord Insurance”: Defined in Section 9(e).
“Landlord Insured Issue”: Cost or liability that is insured against by insurance carried by (or required by the terms of this Lease to be carried by) Landlord.
“Late Payment Administrative Fee”: Defined in Section 28(a).
“Late Payment Interest Rate”: Defined in Section 28(b).
“Lease”: Defined in the preamble.
“Lease Commencement Date”: Defined in Section 1(e).
“Lease Date”: Defined in the preamble.
“Lease Year”: Defined in Section 3(b).
“Legal Costs”: All reasonable and actual attorneys’ fees, paralegal fees, disbursements and mediation, arbitration and court costs and expenses, including litigation through all trial and appellate levels.
“Lender”: The holder of any Mortgage.
“Maintain”: Defined in Section 7(a).
“Maintenance”: Defined in Section 7(a).
“Market Area”: Defined in Special Stipulation Number 1 of EXHIBIT B.
“Market Rate Determination Notice”: Defined in Section 1(c)(ii) of EXHIBIT B.
“Market Rate Determination Acceptance”: Defined in Section 1(c)(iii) of EXHIBIT B.
“Market Rate Determination Rejection”: Defined in Section 1(c)(iii) of EXHIBIT B.
“Market Rate Determination Response”: Defined in Section 1(c)(iii) of EXHIBIT B.
“Market Rate Determination Response Period”: Defined in Section 1(c)(iii) of EXHIBIT B.
“Mortgage”: Each and every deed to secure debt, mortgage, deed of trust or other comparable instrument which may now or hereafter affect or encumber the title of Landlord to the Premises, and any amendments, modifications, extensions or renewals thereof.
“Net Condemnation Proceeds”: Defined in Section 18(c)(iii).
“Net Insurance Proceeds”: Defined in Section 17(b).
“Non-Approval Tenant Alterations”: Defined in Section 16(a)(ii).
“Notice of Right to Terminate”: Defined in Section 17.
“Operating Expenses”: Defined in Section 5(a).
“Original Appraiser Determination”: Defined in Section 1(c)(iii)(D) of EXHIBIT B.
“Permitted Holdover Period”: Defined in Section 27(c)(ii).
“Permitted Use”: Defined in Section 1(j).
“Personal Property”: Any merchandise, inventory or other personal property owned by Tenant, Tenant’s Affiliates or any other party.
“Preliminary Term”: Defined in Section 3(a).
“Premises”: Defined in Section 1(a).
“Prevailing Market Rate”: Defined in Section 1(c)(i)(A) of EXHIBIT B.
“Preventative Maintenance Contracts”: Defined in Section 7(b)(i).
“Preventative Maintenance Items”: Defined in Section 7(b).
“Primary Term”: Defined in Section 3(a).
“Prior Lease”: Defined in Section 2(a).
“Property Management Fee”: Defined in Section 4.
“Qualified Appraiser”: Defined in Section 1(c)(i)(A) of EXHIBIT B.
“Reasonable SNDA”: Defined in Section 21(a)(i).
“Remaining Term”: Defined in Section 19(b)(ii)(A)(i).
“Rent”: The aggregate amount of Base Rent and Additional Rent.
“Rules and Regulations”: The rules and regulations set forth on EXHIBIT C, as well as other rules and regulations reasonably promulgated by Landlord from time to time, so long as such other rules and regulations do not materially and adversely affect the rights of Tenant hereunder.
“Security Deposit”: Defined in Section 1(i).
“Specially Designated National or Blocked Person”: A person or entity designated as a Specially Designated National or Blocked Person pursuant to any law, order, rule, or regulation that is enforced or administered by the United States Government or any of its departments or agencies.
“Taxes”: Defined in Section 5(b).
“Tenant”: Defined in the preamble.
“Tenant Delay”: Any delay in the performance of any work to be performed by Landlord hereunder resulting from: (a) Governmental Requirements applicable to Tenant due to (i) Tenant’s trade fixtures or equipment, (ii) Tenant-Initiated Improvements, (iii) Tenant’s specific use of the Premises, or (iv) the particular products to be located at the Premises or the manner of storage or use of such products, (b) Tenant’s failure to timely approve plans and specifications, or (c) change order or change order requests.
“Tenant’s Affiliates”: The subsidiaries and affiliates of Tenant and all agents, contractors, employees, vendors, customers, licensees or invitees of Tenant and such subsidiaries and affiliates.
“Tenant’s Appraiser”: Defined in Section 1(c)(iii)(A) of EXHIBIT B.
“Tenant Alteration”: Defined in Section 16(a)(i).
“Tenant Alteration Monitoring Charge”: Defined in Section 16(a)(i).
“Tenant Insured Issue”: Cost or liability that is insured against by insurance carried by (or required by the terms of this Lease to be carried by) Tenant, assuming a deductible of $0.00 notwithstanding the right of Tenant to maintain a higher deductible pursuant to the terms of the Lease.
“Tenant-Initiated Improvements”: Improvements constructed or installed by or at the instance of Tenant or any Tenant’s Affiliates (including any Improvements which are the product of a Tenant Alteration), but specifically excluding any Improvements constructed or installed as part of Landlord’s Work.
“Term”: Defined in Section 3(a).
“Third Appraiser”: Defined in Section 1(c)(iii)(D) of EXHIBIT B.
“Transfer”: (a) Any assignment, mortgage, pledge, encumbering, granting of a license to occupy, subleasing or other transfer of this Lease, or any interest hereunder; or (b) any Change in Control.
“Treasury Yield”: The rate of return in percent per annum of Treasury Constant Maturities for the length of time specified (or as most recently corresponding) as published in document H.15(519) (presently published by the Board of Governors of the U.S. Federal Reserve System titled “Federal Reserve Statistical Release”) for the calendar week immediately preceding the calendar week in which the termination occurs. If the publishing of the rate of return of Treasury Constant Maturities is ever discontinued, then the Treasury Yield will be based upon the index, in Landlord’s reasonable determination, most nearly corresponds to the rate of return of Treasury Constant Maturities.
“Utility” or “Utilities”: Any or all natural gas, fuel, electricity, telephone, steam, water, sewer and any and all other utility services provided to the Premises by any public or private utility supplier.
EXHIBIT A-1
Premises
A-1
EXHIBIT A-2
Description of the Land
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 254 of the 7th District, City of Sugar Hill, Gwinnett County, Georgia, being Tract 2, containing 4.162 acres, as shown on that certain “Plat for Quantum National Bank” dated July 15, 2008, last revised August 24, 2010, prepared by Barton Surveying, Inc., certified by David Barton, Georgia Registered Land Surveyor No. 2533, and recorded in Plat Book 126, Page 292, Gwinnett County, Georgia Records, which plat is incorporated herein by this reference and made a part of this description.
A-2
EXHIBIT B
Special Stipulations
The Special Stipulations set forth herein are hereby incorporated into the body of the Lease to which these Special Stipulations are attached, and to the extent of any conflict between these Special Stipulations and the preceding language, these Special Stipulations will govern and control.
1. Options to Extend Term.
(a) Grant of Extension Options. Landlord grants to Tenant three (3) options to extend the Term for a period of five (5) years each time (the “Extension Options”). If applicable, the corresponding period by which the Term is extended in each instance is referred to as the “Extension Option Period”.
(b) Exercise of Extension Option. To exercise an Extension Option, Tenant must deliver written notice to Landlord at least 6 months prior to (but not more than 12 months prior to) the then existing Expiration Date (the “Extension Option Exercise Notice”).
(c) Determination of Base Rent.
i.) Definitions:
A. “Prevailing Market Rate” means the prevailing market rate applicable to the Extension Option Period for base minimum rental calculated on a per square foot basis for leases covering premises comparable to the Premises (as adjusted for any variances between such premises and the Premises, including without limitation age, location, setting, type of building, HVAC, parking, irrigation systems, roof status and market tenant improvement allowances) located in the relevant market area.
B. “Qualified Appraiser” means an appraiser that (y) is a member of the American Institute of Real Estate Appraisers or similar professional organization and (z) has at least ten (10) years prior experience in commercial leasing in the relevant market area.
ii.) Landlord Determination of Prevailing Market Rate. Within 15 days after delivery of the Extension Option Exercise Notice, Landlord will deliver a notice to Tenant setting forth Landlord’s determination of the Prevailing Market Rate (the “Market Rate Determination Notice”).
iii.) Tenant Response. Within 15 days following delivery of the Market Rate Determination Notice (the “Market Rate Determination Response Period”), Tenant will deliver written notice to Landlord that it either (1) accepts Landlord’s determination of the Prevailing Market Rate as set forth in the Market Rate Determination Notice (a “Market Rate Determination Acceptance”) or (2) rejects Landlord’s determination of the Prevailing Market Rate and thereby elects to engage the Appraisal Process as defined below (a “Market Rate Determination Rejection”) (in either event, Tenant’s response is referred to as the “Market Rate Determination Response”). Failure to timely deliver the Market Rate Determination Response will be deemed to be a Market Rate Determination Rejection. If Tenant delivers a Market Rate Determination Acceptance within the Market Rate Determination Response Period, Landlord’s determination of the Prevailing Market Rate set forth in the Market Rate Determination Notice will be deemed to be the Prevailing Market Rate for purposes of subsection (d) below. If Tenant delivers (or is deemed to have delivered) a Market Rate Determination Rejection within the Market Rate Determination Period, then the Prevailing Market Rate will be determined through the following process (the “Appraisal Process”):
A. Tenant’s Selection of Appraiser. If Tenant delivers, or is deemed to have delivered, a Market Rate Determination Rejection, Tenant must include a designation by Tenant of a Qualified Appraiser to act on Tenant’s behalf in the Appraisal Process (“Tenant’s Appraiser”).
B-1
B. Landlord’s Selection of an Appraiser. Within 20 days after delivery (or deemed delivery) by Tenant of the Market Rate Determination Rejection, Landlord, by written notice to Tenant, shall designate a Qualified Appraiser, who shall act on Landlord’s behalf in the Appraisal Process (“Landlord’s Appraiser”).
C. Appraiser Determination of Prevailing Market Rate. Each of Landlord and Tenant will cause its Qualified Appraiser to work in good faith with the other Qualified Appraiser to issue a joint written determination of the Prevailing Market Rate within 20 days after the date on which Landlord provided notice to Tenant designating Landlord’s Appraiser (the “Appraiser’s Determination Period”). If the two (2) Qualified Appraisers do issue the joint determination within the Appraiser’s Determination Period, then such determination shall be final, conclusive and binding as the Prevailing Market Rate for purposes of subsection (d) below.
D. Third Appraiser. If the two (2) Qualified Appraisers are unable to agree upon a joint written determination of the Prevailing Market Rate within the Appraiser’s Determination Period, then each Qualified Appraiser will issue its own determination of the Prevailing Market Rate (each being that Qualified Appraiser’s “Original Appraiser Determination”), and the two (2) Qualified Appraisers shall jointly select a 3rd Qualified Appraiser (the “Third Appraiser”) to resolve the discrepancy by selecting, without change, the Original Appraisal Determination that most closely reflects the Third Appraiser’s own determination of the Prevailing Market Rate. The Prevailing Market Rate set forth in the Original Appraisal Determination selected by the Third Appraiser shall be final, conclusive and binding as the Prevailing Market Rate for purposes of subsection (d) below.
(d) Determination of Option Extension Base Rent. Subject to the Floor Requirement described in the following sentence, Base Rent for the Extension Option Period shall be calculated using the Prevailing Market Rate. Notwithstanding anything to the contrary contained herein, in the event annual Base Rent for the first year of the Extension Option Period as calculated using the Prevailing Market Rate is less than 103% of the annual Base Rent to be in effect immediately prior to the commencement of such Extension Option Period (“Floor Rate Base Rent”), the annual Base Rent during the first year of the Extension Option Period shall equal the Floor Rate Base Rent, and annual Base Rent will increase annually during the Extension Option Period by three percent (3%).
(e) Costs of Appraisers. Landlord shall bear the fee and expenses of Landlord’s Appraiser; Tenant shall bear the fee and expenses of Tenant’s Appraiser; and Landlord and Tenant shall share equally the fee and expenses of the Third Appraiser, if any. Notwithstanding the foregoing, if the Prevailing Market Rate as ultimately established pursuant to the Appraisal Process is greater than Landlord’s determination of the Prevailing Market Rate set forth in its Market Rate Determination Notice, then Tenant shall bear the fee and expenses of all of the Qualified Appraisers. The obligation of the parties hereto to pay any fees and expenses hereunder shall survive termination of the Lease.
(f) Terms and Conditions. If Tenant exercises the Extension Option, the Expiration Date will be deemed revised to be the last day of the Extension Option Period, and leasing of the Premises by Tenant for the Extension Option Period shall be subject to all of the same terms and conditions applicable during the Primary Term, except that:
i.) Base Rent. Base Rent for the Extension Option Period will be determined pursuant to subsection (d) above, and
ii.) Concessions. None of the improvement allowances or expansion rights applicable to the leasing of the Premises during the Primary Term shall be applicable to the Extension Option Period.
(g) Landlord’s Right to Reject. Notwithstanding the foregoing, Landlord shall have the right to reject Tenant’s exercise of the Extension Option if, at the time Tenant delivers the Extension Option Exercise Notice to Landlord, an Event of Default has occurred, and the underlying Default Condition has not been cured to Landlord’s reasonable satisfaction.
(h) Amendment to Lease. At Landlord’s option, Landlord and Tenant shall enter into an amendment to this Lease to evidence Tenant’s exercise of an Extension Option. If this Lease is guaranteed, Landlord shall have the right to require that Tenant deliver to Landlord a reaffirmation of the guaranty in which the guarantor acknowledges Tenant’s exercise of its Extension Option and reaffirms that the guaranty is in full force and effect and applies to said extension of the Term.
B-2
EXHIBIT C
Rules and Regulations
These Rules and Regulations have been adopted by Landlord in order to ensure the safety, care and cleanliness of the Premises and the preservation of order therein.
1. Sidewalks and Roof. The sidewalks will not be obstructed or used for any purpose other than ingress and egress. No tenant and no employees of any tenant will go upon the roof of the Building without the consent of Landlord which shall not be unreasonably withheld, conditioned, or delayed.
2. Awnings. No awnings or other projections will be attached to the outside walls of the Building without the prior written consent of Landlord which shall not be unreasonably withheld, conditioned, or delayed.
3. Plumbing. The plumbing fixtures will not be used for any purpose other than those for which they were constructed, and no sweepings, rubbish, rags or other substances, including Hazardous Substances, will be thrown therein.
4. Odors. No tenant will cause or permit any objectionable or offensive odors to be emitted from the Premises. Smoking is prohibited within the Building and in outdoor areas located within 25 feet of entry-ways, outdoor intakes and operable windows.
5. Prohibited Uses. The Premises will not be used for (a) an auction, “fire sale”, “liquidation sale”, “going out of business sale” or any similar such sale or activity or (b) lodging or sleeping.
6. Disturbances. No tenant will make, or permit to be made, any unseemly or disturbing noises, sounds or vibrations or disturb or interfere with tenants of this or neighboring buildings or premises or those having business with them.
7. Obligations upon Termination of Tenancy. Each tenant must, upon the termination of its tenancy, return to the Landlord all keys of stores, offices, and rooms, either furnished to, or otherwise procured by, such tenant, and in the event of the loss of any keys so furnished, such tenant will pay to the Landlord the cost of replacing the same or of changing the lock or locks opened by such lost key if Landlord deems it necessary to make such change.
8. Canvassing. Canvassing, soliciting and peddling are prohibited and each tenant will cooperate to prevent such activity.
9. Wiring. Landlord will direct electricians as to where and how telephone, telegraph, computer and other wires and cables (collectively, “Wires”) are to be introduced. No boring or cutting for Wires or stringing of Wires will be allowed without written consent of Landlord. The location of telephones, call boxes and other office equipment affixed to the Premises will be subject to the prior written approval of Landlord.
10. Parking.
(a) Types of Vehicles. Parking spaces associated with the Building are intended for the exclusive use of passenger automobiles. Except for intermittent deliveries, no vehicles other than passenger automobiles may be parked in a parking space (other than spaces expressly designated for such purpose by Landlord for truck parking) without the express written permission of Landlord which shall not be unreasonably withheld, conditioned, or delayed.
(b) Truck and Trailer Parking. Trucks may be parked only in truck dock positions and in other paved areas expressly designated for such purpose by Landlord. Trailers may be parked only in paved areas expressly designated for such purpose by Landlord. Neither trucks nor trailers may be parked or staged in the following:
i. Areas adjacent to truck docks, serving any portion of the Building, which are intended by Landlord for truck maneuvering; or
C-1
ii. Any driveway, drive aisle or other paved area which provides ingress or egress for cars or trucks to or from any portion of the Building or any street adjoining the Building.
(c) Use of Truck Court. The truck court is designed for vehicle traffic and maneuvering. Tenants may only use that portion of the truck court for truck and trailer parking or staging that is contiguous to the Premises (i.e. the truck court area that would be included in the area if the sidewalls of the Premises were extended into the truck court). Trucks, trailers, and other vehicles parked, staged or otherwise brought onto the Premises are subject to the provisions of Section 15 of this Lease.
11. Storage. No tenant will use any area within the Premises for storage purposes other than the interior of the Building, unless otherwise expressly consented to in writing by Landlord.
12. Floor Marking.
(a) General. Tenant will have the right to stripe or mark the floor of the Building only in compliance with this rule.
(b) Recommended Tape. Landlord strongly encourages Tenant to stripe or otherwise mark the floor of the Building only with 3M floor striping tape.
(c) Removal. If Tenant elects to paint stripes or other markings on the floor of the Building, all such paint must, by the Expiration Date, be removed by Tenant at its expense in accordance with this rule. Paint on the floor of the Building must be removed only by use of a chemical paint remover; provided that the chemical used for removal must be permissible for such use under Environmental Laws and other Governmental Requirements and the chemical must be used (and all chemicals and removed paint must be disposed of) in accordance with Environmental Laws and other Governmental Requirements. Under no circumstances may paint be removed from the floor of the Building by grinding, scraping or shot-blasting. After paint has been chemically removed in accordance with this rule, the floor must be thoroughly cleaned to remove completely any chemical residue which might be present as a result of the removal process.
13. Tenant Racking. If Tenant installs any racking, equipment or machinery in the Building which requires installation of bolts in the floor of the Building, Tenant must, by the Expiration Date, at the expense of Tenant, remove all such bolts in accordance with this rule. All bolts will be cut or ground so that the top of the remaining portion of the bolt is at least one-quarter inch below the surface of the floor. All holes created by such removal of bolts must be filled with 100% epoxy, which meets the standards set by the American Concrete Institute and which is color-matched to the floor being filled.
14. No Open Dumpsters. No “open” dumpsters are permitted. All dumpsters will have appropriate doors and top covers to prevent trash and debris from escaping the dumpster.
C-2
Exhibit 10.9
LEASE AGREEMENT
BETWEEN
PERIMETER GROUP CORPORATION
AS LANDLORD
AND
A.L. Grading contractors, LLC
AS TENANT
LEASE INDEX
| Section | Subject | ||
| 1 | Basic Terms | ||
| 2 | Premises | ||
| 3 | Term | ||
| 3 | Rent | ||
| 4 | Operating Expenses | ||
| 5 | Utilities | ||
| 6 | Maintenance and Repairs | ||
| 7 | Use of Premises | ||
| 8 | Insurance | ||
| 10 | Indemnity | ||
| 10 | Tenant’s Trade Fixtures | ||
| 11 | Signs | ||
| 11 | Governmental Requirements | ||
| 11 | Environmental Matters | ||
| 12 | AS-IS | ||
| 12 | Tenant Alterations | ||
| 14 | Fire and Other Casualty | ||
| 15 | Condemnation | ||
| 16 | Tenant’s Default | ||
| 18 | Landlord’s Right of Entry | ||
| 18 | Lender’s Rights | ||
| 19 | Estoppel Certificates | ||
| 19 | Landlord Liability/Termination/Independence | ||
| 20 | Notices | ||
| 20 | Broker Indemnification | ||
| 20 | Assignment and Subleasing | ||
| 23 | Termination or Expiration; Holdover | ||
| 23 | Late Payments | ||
| 24 | Rules and Regulations | ||
| 24 | Miscellaneous | ||
| 25 | Special Stipulations | ||
| 25 | Authority | ||
| 25 | Prevailing Party |
SCHEDULE AND EXHIBITS
| SCHEDULE A | Definitions | |
| EXHIBIT A-1 | Premises | |
| EXHIBIT A-2 | Description of the Land | |
| EXHIBIT B | Special Stipulations | |
| EXHIBIT C | Rules and Regulations |
i
LEASE AGREEMENT
THIS LEASE AGREEMENT (the “Lease”) is made effective as of February 18, 2026, (the “Lease Date”) by and between PERIMETER GROUP CORPORATION, a Georgia corporation (“Landlord”), and A.L. Grading contractors, LLC, a Georgia limited liability company (“Tenant”), (the words “Landlord” and “Tenant” to include their respective legal representatives, successors and permitted assigns where the context requires or permits).
W I T N E S S E T H:
1. Basic Terms. This Section 1 contains the basic terms of this Lease. Capitalized terms used in this Lease will have the meanings given them in this Section 1 and elsewhere in this Lease, including SCHEDULE A hereto.
| (a) “Premises” |
Defined in Section 2(a).
|
| (b) “Buildings” |
The buildings depicted on EXHIBIT A-1 hereto, containing approximately (i) 10,103 square feet and (ii) 5,785 square feet, together commonly known as 110 Peachtree Industrial Boulevard, Suwanee, Georgia 30024.
|
| (c) “Land” |
That certain parcel of real property located in Gwinnett County, Georgia, as more particularly described in EXHIBIT A-2 attached hereto.
|
| (d) “Base Rent” |
As set forth below:
|
| Period | “Annual Base Rent” |
“Monthly Base Rent Installment” |
| Month 1 – Month 12 | $35,000.00 | $420,000.00 |
| Month 13 – Month 24 | $36,050.00 | $432,600.00 |
| Month 25 – Month 36 | $37,131.50 | $445,578.00 |
| Month 37 – Month 48 | $38,245.45 | $458,945.34 |
| Month 49 – Month 60 | $39,392.81 | $472,713.70 |
| Month 61 – Month 72 | $40,574.59 | $486,895.11 |
| Month 73 – Month 84 | $41,791.83 | $501,501.96 |
| Month 85 – Month 96 | $43,045.59 | $516,547.02 |
| Month 97 – Month 108 | $44,336.95 | $532,043.43 |
| Month 109 – Month 120 | $45,667.06 | $548,004.74 |
| Month 121 – Month 132 | $47,037.07 | $564,444.88 |
| Month 133 – Month 144 | $48,448.19 | $581,378.23 |
| Month 145 – Month 156 | $49,901.63 | $598,819.57 |
| Month 157 – Month 168 | $51,398.68 | $616,784.16 |
| Month 169 – Month 180 | $52,940.64 | $635,287.68 |
| * | (Plus the prorated amount for any Fractional Month, if applicable) |
-1-
| (e) “Lease Commencement Date” |
The Lease Date.
|
| (f) “Expiration Date” |
The earlier of (1) the last day of the 180th full calendar month after the Lease Commencement Date, as expressly may be extended, and (2) the termination of this Lease pursuant to the terms herein.
|
| (g) “Primary Term” |
As defined in Section 3(a).
|
| (h) “Exterior Area” |
The Land, less the portion on which the Buildings and dock areas, external stairwells and entryways are located.
|
| (i) “Security Deposit” |
None
|
| (j) “Permitted Use” |
Storage, warehousing, maintenance and repair of equipment, machinery, and vehicles used in the operation of Tenant’s primary business, and office uses reasonably ancillary thereto, all in accordance with the other provisions of this Lease and all applicable Governmental Requirements.
|
| (k) Addresses for notice |
Tenant: A.L. GRADING CONTRACTORS, LLC 4441 Six Forks Road Suite 106-261 Raleigh, NC 27609-5729 Attn: Jeremy S. Spivey Email: [email protected]
Landlord: PERIMETER GROUP CORPORATION 2500 NE 35th Street Lighthouse Point, FL 33064 Attn: Lee Wood Email: [email protected]
|
| (l) Address for rental payments |
Rent shall be paid by wire transfer or ACH pursuant to instructions provided by Landlord to Tenant.
If wire or ACH instructions are not provided by Landlord, then Rent shall be mailed to Landlord’s notice address set forth above. |
2. Premises.
(a) Prior Lease. It is hereby acknowledged and agreed that: (i) immediately prior to the Lease Date, Tenant and Landlord are affiliated entities, and Tenant occupied the Premises pursuant to an unwritten lease (the “Prior Lease”); (ii) the Prior Lease is hereby terminated, and (iii) this Lease is being executed and delivered pursuant to the terms contained herein and shall supersede the Prior Lease.
-2-
(b) Lease of Premises. In consideration of the rent and the mutual covenants contained herein, Landlord leases to Tenant, and Tenant leases and accepts from Landlord, the Land, together with and including all buildings, structures, driveways, parking lots, walkways, landscaping and other appurtenances thereto and all other improvements, at any time during the term of this Lease erected or situated thereon, including, without limitation, the Buildings and other improvements constructed thereon (the Land, Exterior Area, Buildings and other such improvements are collectively referred to as the “Premises”), upon all the terms and provisions of this Lease.
(c) Size of Buildings. The square footage of each Building has been conclusively determined and is not subject to re-measurement or any form of contest by either party.
(d) Exterior Area. Tenant is granted the exclusive right to use the Exterior Area to support the Permitted Use in accordance with the terms of this Lease; provided, however, that Landlord hereby reserves the right to grant or establish easements along the property lines of the Land and/or under the Exterior Area so long as such easements do not materially and adversely affect Tenant’s or Tenant’s invitees access to, or use of, the Premises.
3. Term.
(a) Primary Term. The lease of the Premises by Landlord to Tenant will be for a primary term (the “Primary Term”) commencing on the Lease Commencement Date and ending on the Expiration Date. Tenant shall have three (3) options to extend the Term for a period of five (5) years each time, subject to, and in accordance with, the terms and conditions set forth in Special Stipulation 1 of EXHIBIT B attached to this Lease, the terms of which are incorporated herein by reference. The Primary Term, plus all renewals and extensions thereof, if any, are sometimes referred to collectively as the “Term”.
(b) Lease Year. The term “Lease Year” means the 12-month period commencing on the Lease Commencement Date, and each 12-month period thereafter during the Term; provided, however, if the Lease Commencement Date is a day other than the first day of a calendar month, the first Lease Year will include the period from and including the Lease Commencement Date to and including the last day of the Fractional Month in which the Lease Commencement Date occurs and will extend through the end of the twelfth full calendar month following the Lease Commencement Date.
4. Rent.
(a) Base Rent.
i.) Payment of Base Rent. Tenant will pay to Landlord the Annual Base Rent in the Monthly Base Rent Installments commencing on the Lease Commencement Date, payable in advance, without demand, on the first day of each calendar month during the Term; provided, that the first month’s Base Rent must be paid upon execution of this Lease. It is hereby acknowledged and agreed that Annual Base Rent shall increase as shown on the Base Rent chart set forth in Section 1(d).
ii.) Fractional Month. If the Lease Commencement Date falls on a day other than the first day of a calendar month, or if the Lease expires or terminates on a day other than the last day of a calendar month, then Base Rent will be apportioned pro rata for the resulting Fractional Month.
(b) Additional Rent.
i.) Commencement. Tenant’s obligation to pay Additional Rent will begin to accrue on the Lease Commencement Date, except as otherwise provided in this Lease.
ii.) Payments to Landlord. To the extent Tenant is required to reimburse Landlord for any Additional Rent, then Landlord will deliver a written invoice to Tenant therefor with reasonable evidence of such costs and payment thereof and Tenant will reimburse Landlord within 30 days after the date of such delivery.
-3-
(c) Net Lease. Except for Landlord’s obligations with respect to the Landlord Repair Items (as defined in Section 7(a) herein), this Lease is an “absolute net lease,” so that this Lease shall yield to Landlord the rentals specified during the Term, and except as specifically and expressly set forth herein to the contrary, all costs, expenses and obligations of every kind and nature whatsoever relating to the operation, management, maintenance, repair, restoration and replacement of the Premises and all improvements and appurtenances related thereto or any part thereof, structural and non-structural, shall be performed and paid by Tenant. Tenant shall perform all of its obligations under this Lease at its sole cost and expense. As such, Tenant’s obligations arising or accruing during the Term to pay all Base Rent, Additional Rent, and all other payments hereunder required to be made by Tenant shall, except as otherwise expressly set forth herein, be absolute and unconditional, and Tenant shall pay all Base Rent, Additional Rent and all other payments required to be made by Tenant under this Lease without notice (except as otherwise expressly and specifically set forth herein), demand, counterclaim, set-off, deduction, or defense and without abatement (except as otherwise expressly and specifically set forth herein), suspension, deferment, diminution or reduction, free from any charges, assessments, impositions, expenses or deductions of any and every kind of and nature whatsoever. Other than the costs associated with the Landlord Repair Items, all costs, expenses and obligations of every kind and nature whatsoever relating to the Premises and the appurtenances thereto and the use and occupancy thereof that may arise or become due during the Term (whether or not the same shall become payable during the Term of this Lease or thereafter) shall be paid by Tenant, and Landlord is not responsible for any costs, charges, expenses or outlays of any nature whatsoever arising during the Term from or relating to the Premises or the use or occupancy thereof, except for any such costs, charges, expenses or outlays which are the direct result of Landlord’s or Landlord’s Affiliates gross negligence or intentional misconduct. Except for the Landlord Repair Items and any repair, maintenance, or replacement which is necessitated as the direct result of Landlord’s or Landlord’s Affiliates gross negligence or intentional misconduct, Tenant assumes the sole responsibility during the Term for the condition, use, operation, repair, maintenance, replacement of any and all components and systems of, and the underletting and management of, the Premises. It is the purpose and intention of the parties to this Lease that the Base Rent due hereunder shall be absolutely net to Landlord, and Landlord shall have no obligation or responsibility, of any nature whatsoever, to perform any tenant improvements, to provide any services, or to perform any repairs, maintenance or replacements in, to, at, or under the Premises, whether for the benefit of Tenant or any other party, except as expressly set forth herein.
5. Operating Expenses.
(a) Definition of Operating Expenses. The term “Operating Expenses” shall mean all costs, expenses and charges of every kind or nature relating to, or incurred in connection with, the ownership, maintenance and operation of the Premises, including, but not limited to the following: (i) Taxes; (ii) costs of Maintaining the Improvements, (iii) dues, fees or other costs and expenses, of any nature, due and payable to any association or comparable entity that governs or controls any aspect of the ownership and operation of the Premises; and (iv) any common area maintenance expenses levied against, or attributable to, the Premises under any declaration of covenants, conditions and restrictions, reciprocal easement agreement or comparable arrangement that encumbers and benefits the Premises and other real property (e.g. a business park). However, Operating Expenses payable by Tenant hereunder shall not include: (i) Landlord’s income, gift, transfer, estate, succession, inheritance, non-resident or land transfer taxes, (ii) interest on debt or amortization payments on mortgages or deeds of trust or any other debt for money borrowed by Landlord, (iii) costs or expenses of a partnership, or other entity, which constitutes Landlord, which costs or expenses are not directly related to the Premises (such as accounting fees, tax returns, and income taxes of such entity), and (iv) expenses incurred by Landlord that are not directly related to the Premises or its operations including, without limitation, compensation paid to employees of Landlord; however, Operating Expenses shall include those expenses, if any, incurred by Landlord in order to perform or provide any services required of Landlord under this Lease or to provide any services specifically requested by Tenant (including a portion of the compensation paid to employees performing or providing such services, pro-rated to reflect the extent of the employee’s time spent performing or providing such services).
(b) Definition of Taxes. The term “Taxes” shall mean, collectively, all taxes, rates, duties, levies, fees, charges, local improvement rates, imposts charges and assessments, including school taxes, water and sewer taxes, extraordinary and special assessments and all rates, charges, excises or levies, whether or not of the foregoing nature, and whether municipal, provincial, federal, regional, school, parking or otherwise, which may be levied, confirmed, imposed, assessed, charged or rated against the Premises or any part thereof or any furniture, fixtures, equipment or improvements therein, or against Landlord in respect of any of the same or in respect of any rental or other compensation receivable by Landlord and/or the owners of the Premises in respect of the same, including all of such Taxes which may be incurred by or imposed upon Landlord and/or the owners of the Premises or the Premises in lieu of or in addition to the foregoing, including, without limitation, any Taxes on real property rents or receipts as such (as opposed to a tax on such rents as part of the income of Landlord), any Taxes based, in whole or in part, upon the value of the Premises, any commercial concentration or similar levy in respect of the Premises.
-4-
(c) Payment of Taxes. Promptly following the Lease Commencement Date, Tenant shall, with Landlord’s assistance, if requested by Tenant and/or required by the applicable governmental authority, notify the appropriate taxing authorities to deliver directly to Tenant all statements and invoices for Taxes, effective as of the Lease Commencement Date. Tenant shall pay to the taxing authority all Taxes prior to the date they become delinquent. As soon as practicable after the payment thereof Tenant shall deliver to Landlord written evidence of each such payment. To the extent that any such Taxes are imposed upon Landlord with regard to Landlord’s ownership of the Premises, at Landlord’s option, Tenant shall either pay such Taxes directly to the taxing authority or reimburse Landlord for such Taxes paid by Landlord. If the Term expires on a day other than the last day of a calendar year, then Tenant’s liability for Taxes for such calendar year shall be apportioned by multiplying the amount of Taxes for the full calendar year by a fraction, the numerator of which is the number of days during such calendar year falling within the Term, and the denominator of which is 365.
(d) Contest of Taxes. Tenant, at its sole expense, upon at least 10 days’ prior written notice to Landlord but without Landlord’s consent, shall have the right to contest the amount or validity of any Taxes by diligently conducting in good faith an appropriate legal or administrative proceeding, provided that the following conditions are met: (i) the Taxes are paid or the postponement of payment of Taxes, without penalty, as part of such proceeding is permitted by applicable law, (ii) the Premises shall not, by reason of such postponement of payment, or the initiation of such proceeding, be subject to any lien or to forfeiture, sale, or loss, (iii) such proceedings shall not affect or interfere with Tenant’s continued payment of Base Rent or Additional Rent; and (iv) pursuing the contest of Taxes shall not in any way expose Landlord to any criminal or civil liability, penalty or sanction. Tenant further agrees that each such contest shall be promptly and diligently prosecuted to a final conclusion, and Tenant shall pay all judgments, decrees and costs (including any costs incurred by Landlord in cooperating with Tenant’s contest) in connection with any such contest and shall, promptly after the final determination of such contest, fully pay and discharge the amounts which shall be levied. In furtherance of the foregoing, Tenant shall indemnify Landlord from and against any Losses in connection with any contesting of Taxes by Tenant (including, without limitation any resulting increases in Taxes applicable to periods outside of the Term). Tenant shall be entitled to any refund received with respect to Taxes relating to the Term that have been paid by Tenant. Tenant’s obligations for Taxes during the Term under this subsection will survive the end of the Term.
(e) Payment of Operating Expenses Generally. Except as specifically and expressly set forth herein, Tenant shall be responsible for any Operating Expenses that are due and payable at any time or from time to time during the Term and for any Operating Expenses that are assessed, become a lien, or accrue and are attributable to any Lease Year, which obligation shall survive the termination or expiration of this Lease. Except as specifically and expressly set forth herein, Tenant shall directly pay, as Additional Rent, on a timely basis and to the appropriate entity, all Operating Expenses. To the extent any Operating Expenses are to be reimbursed to Landlord by Tenant, Tenant shall pay the same in accordance with Section 4(b)(ii) above or as otherwise specially and expressly set forth elsewhere in this Lease.
(f) Survival. The obligations of Tenant to pay Operating Expenses associated with the Term shall survive the expiration and termination of this Lease.
6. Utilities.
(a) Separately Metered Utilities. All Utilities will be separately metered for the Premises and Tenant shall cause all Utilities to be billed directly to Tenant by the applicable providers. To the extent actions are required by Landlord to cause all Utilities to be placed in the name of Tenant, Landlord agrees to use commercially reasonable efforts to perform such actions within ten (10) days after the Lease Date.
(b) Commencement of Payment Obligation. Tenant’s obligation for payment of all Utilities will commence on the earlier of: (i) the Lease Commencement Date; or (ii) Tenant’s actual occupancy of any portion of the Premises. Tenant will establish an account with the Utility provider for each Utility and pay all charges for such Utilities prior to delinquency.
-5-
(c) Interruption in Services. Notwithstanding the foregoing, if (i) a utility interruption is caused by the gross negligence or intentional misconduct of Landlord, (ii) remedying the interruption is within Landlord’s reasonable control, (iii) Tenant cannot reasonably operate for business from the Premises as a result of such interruption and, in fact, ceases operations from the Premises during such interruption, and (iv) Landlord does not remedy the interruption within five (5) days following notice from Tenant, then, as Tenant’s sole and exclusive remedy, Rent shall abate on a day-for-day basis beginning on the sixth (6th) day following Tenant’s notice until such time as Landlord has remedied the interruption in services.
7. Maintenance and Repairs.
(a) Landlord Responsibility. Landlord at its sole cost and expense shall Maintain the roof, foundation (i.e., beneath the floor slab) and the structural walls of each Building (collectively, the “Landlord Repair Items”) in good repair and condition except for reasonable wear and tear; except that any repairs occasioned by the negligence or intentional misconduct of Tenant shall be at the sole expense of Tenant. Furthermore, Landlord shall be responsible for any repair or replacement necessitated by Landlord’s gross negligence or intentional misconduct, and the item which is the subject of any such repair or replacement shall automatically be deemed to constitute a Landlord Repair Item.
(b) Tenant Responsibility. Except for the Landlord Repair Items, Tenant, at Tenant’s sole cost and expense, shall promptly make all repairs, perform all maintenance, and make all replacements in and to the Premises (including without limitation, all interior and exterior, non-structural, landscaping and systems maintenance; repairs and replacements) that are necessary or desirable to keep all aspects of the Premises in good condition and repair, in a clean, safe and tenantable condition, except for reasonable wear and tear, and otherwise in accordance with all Governmental Requirements and the requirements of this Lease (as the context permits or requires, “Maintain” or “Maintenance”). Except for the Landlord Repair Items, Tenant shall Maintain all improvements, fixtures, equipment and Personal Property located in, or serving, the Premises in clean, safe and sanitary condition, shall take good care thereof and make all required repairs and replacements thereto as and when necessary. Without limiting the foregoing, Tenant shall Maintain all drives, sidewalks, parking areas, dock areas and Dock Equipment, external stairwells and landscaping on the Premises in a clean condition, free of accumulations of dirt, trash, snow and ice.
(c) Specific Tenant Maintenance Requirements. In connection with Tenant’s Maintenance of the HVAC Systems and Dock Equipment (and any obligations relating to maintaining stormwater facilities or other aspects of the Premises to the extent required by Governmental Requirements, as well as satisfying any associated reporting requirements) (“Preventative Maintenance Items”):
i.) Preventative Maintenance Contracts. During the Term, Tenant will, at its expense, maintain in full force and effect a service contract for the maintenance of the Preventative Maintenance Items; each with an entity reasonably acceptable to Landlord (the “Preventative Maintenance Contracts”); provided however, that for new equipment, the Preventative Maintenance Contract must be maintained with the contractor that installed it for the amount of time which is the lesser of two (2) years after the date of installation and the length of the warranty provided by the installing contractor. The Preventative Maintenance Contract for the Dock Equipment must provide for at least one (1) preventative maintenance service call per year and the Preventative Maintenance Contract for the HVAC Systems must provide for at least two (2) preventative maintenance service calls per year. If Tenant elects to terminate a Preventative Maintenance Contract (or to allow it to expire by its terms), Tenant will deliver to Landlord a copy of the replacement Preventative Maintenance Contracts at least 30 days prior to the termination of the existing Preventative Maintenance Contract. Tenant will promptly deliver to Landlord a copy of any reports issued to (or by) Tenant in connection with its obligations set forth in this subsection (c).
ii.) Failure to Carry Preventative Maintenance Contracts. If Tenant fails to comply with its obligations in subsection (i) above, Landlord shall have the right to enter into the applicable Preventative Maintenance Contract on Tenant’s behalf, and Tenant will reimburse Landlord, as Additional Rent, for 110% of Landlord’s reasonable costs actually incurred in connection entering into and maintaining such Preventative Maintenance Contract. An exercise by Landlord of its rights under this subsection (ii) will not be deemed to be in lieu of its other remedies for the associated default by Tenant, or to otherwise relieve Tenant of its obligations to keep the applicable Preventative Maintenance Items in good condition and repair.
-6-
(c) Landlord Limitation of Responsibility and Liability.
i.) No Services. Except as specifically provided for in this Lease, Tenant shall be solely responsible for Maintaining the Premises and Landlord will be responsible for no other services whatsoever.
ii.) Notice and Right to Cure. Tenant shall give Landlord prompt written notice of any defects or material damage to the Premises. Notwithstanding anything to the contrary contained herein, Landlord shall have the right, but not the obligation, to perform Tenant’s obligations hereunder, which have not been performed by Tenant as required hereunder, and to charge Tenant as Additional Rent for all reasonable costs and expenses actually incurred in connection therewith, plus an amount equal to five percent (5%) of such costs and expenses. If Landlord does undertake any such obligations, will not be liable for inconvenience, annoyance, disturbance or other damage to Tenant by reason of Landlord making any repairs or the performance of work at the Premises or on account of bringing materials, supplies and equipment into or through the Premises during the course thereof; provided, however, that Landlord will use reasonable efforts not to disturb or otherwise interfere with Tenant’s operations at the Premises in making such repairs or performing such work.
iii.) No Obligation of Landlord. Nothing herein implies any duty of Landlord to do any work required of Tenant under this Lease, but the performance of any such work by Landlord will not constitute a waiver of Tenant’s default in failing to perform it.
iv.) Limitation of Liability. Except as set forth in Section 6(c), Landlord will not be liable to Tenant or to any other person for any damage: (A) occasioned by failure in any Utility system or by the bursting or leaking of any vessel or pipe in or about the Premises; (B) occasioned by water coming onto the Premises or into the Buildings; or (C) arising from the acts or negligence of occupants of adjacent property or the public.
8. Use of Premises.
(a) Permitted Use. Tenant will use the Premises: (i) solely for the Permitted Use and (ii) in compliance with applicable Governmental Requirements.
(b) Tenant’s Specific Use. Landlord makes no representation or warranty that Tenant’s use of the Premises is permitted by Governmental Requirements.
(c) No Liens. Subject to Section 16(b), Tenant will not permit liens of any nature to attach or exist against the Premises.
(d) No Nuisance or Trespass. Tenant will not allow or permit any vibration, noise, odor, light or other effect to occur within or around the Premises that could constitute a legal nuisance or trespass with respect to any adjoining property or building or its owners or users.
-7-
9. Insurance.
(a) Insurance Coverages Maintained by Tenant. From and after the Lease Date, Tenant will carry and maintain (or cause to be maintained), at its sole cost and expense, the following insurance coverages:
| Policy | Minimum Coverage Limits | Terms |
| Commercial General Liability |
Primary: $1,000,000 per occurrence, $2,000,000 aggregate.
|
· Must be written on an occurrence (not claims made) basis. · Includes Broad Form Contractual Liability coverage or reasonable equivalent thereto. · Must cover Premises and Tenant’s use thereof. · Extends to liability of Tenant arising out of indemnities by Tenant in Section 10. |
| Commercial Auto Liability | $1,000,000 per occurrence combined single limit. | · Must cover operations of all owned, hired and non-owned vehicles. |
| Workers Compensation | As required by statute in state where Premises is located. |
· Must include a waiver of subrogation provision in favor of Landlord, any lender of Landlord, and any property manager designated by Landlord.
|
| Employer’s Liability | $1,000,000 per accident or illness, per employee and policy limit. |
· Must include a waiver of subrogation provision in favor of Landlord, any lender of Landlord, and any property manager designated by Landlord.
|
|
“Following Form” Excess Liability
|
$10,000,000 per occurrence, $10,000,000 aggregate, per policy year. | |
| Special Form Property Insurance |
Premises, Improvements, Trade Fixtures and Personal Property: 100% of the full replacement value from time to time during the Term.
|
· Must include terrorism coverage and coverage for the perils of earthquake and flood, regardless of quake or flood zone. · Deductible must not exceed $50,000/occurrence. · With respect to Special Form Property Insurance for all items other than Personal Property and trade fixtures, Landlord shall be named loss-payee. · Coverage shall be on a “replacement cost” basis for full value, with no coinsurance relating to coverage associated with the Improvements
|
| Business Interruption Insurance | Business interruption insurance, including extra expense insurance, in such amounts from time to time as necessary to fully compensate Tenant for direct or indirect loss of sales or earnings and extra expenses incurred resulting from or attributable to any of the perils required to be insured against under the applicable policies referred to above and all circumstances usually insured against by prudent tenants including losses resulting from interference with or prevention of access to the Premises as a result of such perils or for any other reason. The amount of business interruption insurance shall not exceed twelve (12) months. |
Landlord reserves the right to require Tenant to procure insurance in commercially reasonable amounts and against such other risks as may be customarily insured from time to time during the Term by prudent owners of similar properties.
-8-
(b) Insurance Requirements. All policies of the insurance provided for in Section 9(a) must be issued in form reasonably acceptable to Landlord and must:
i.) Insurance Rating: be issued by insurance companies: (1) with a rating of not less than “A”; (2) having a financial size of not less than Class X in the most current available “Best’s Insurance Reports”; and (3) licensed to do business in the state in which the Premises are located.
ii.) Additional Insureds: name Landlord, Landlord’s property manager, Lender and any other party reasonably designated by Landlord, as an additional insured on a primary and non-contributory basis, with the exception of Worker’s Compensation, Employer’s Liability and Special Form Property Insurance on trade fixtures and Personal Property.
iii.) Certificate of Insurance: be delivered to Landlord through a certificate of insurance on an Acord form 25, 27, or 28, as applicable, evidencing the required lines of coverage, insurance limits and coverage endorsements set forth in this Lease, and otherwise in a form acceptable to Landlord, prior to the Lease Commencement Date or any earlier entry into the Premises by Tenant or Tenant’s Affiliates and thereafter at least 30 days prior to the expiration of each such policy, and, as often as any such policy expires. Renewal or additional policies must be procured and maintained by Tenant in like manner and to like extent.
iv.) Notice of Cancellation: contain a provision that the insurer will give to the first named insured at least 30 days advance written notice of policy cancellation for reasons other than non-payment of premium and ten (10) days advance written notice of policy cancellation for non-payment of premium. Furthermore: (1) if Tenant intends to provide substitute coverage or change its insurance carrier, Tenant will give to Landlord at least 30 days advance written notice of any such substitution or change; and (2) Tenant will provide to Landlord, within three (3) days after receipt, a copy of any notice of cancellation or change of coverage sent to Tenant by any carrier providing any of the insurance policies provided by Tenant pursuant to this Section 9.
(c) Failure to Maintain Insurance. If Tenant fails to maintain the insurance coverage required by this Section 9, then Landlord may, in addition to its other remedies, upon seven (7) days advance written notice to Tenant (unless such coverage will lapse, in which event no such notice will be necessary), procure such policies of insurance and Tenant will promptly pay Landlord 110% of the cost of such policies as Additional Rent.
(d) Mutual Release; Waiver of Subrogation.
i.) Mutual Release. Notwithstanding anything to the contrary contained in this Lease, Landlord hereby releases Tenant, and Tenant hereby releases Landlord, Lender and Tenant’s and Landlord’s respective partners, principals, members, officers, shareholders, directors, agents, employees and affiliates from any and all liability for loss, damage or injury to the property of the other, whether located in or about the Premises or elsewhere, including any loss or damage caused or alleged to be caused by the negligence of the party against whom claims are waived, which results from an event which is covered by insurance actually carried and in force at the time of the loss (or which would have been covered but for a failure to maintain insurance coverage that was required to be maintained under this Lease) by the party sustaining such loss.
ii.) Waiver of Subrogation. Each of Landlord and Tenant hereby waives all rights of subrogation of its insurers and will cause its insurance policies to be endorsed such that said waiver of subrogation does not affect the right of the insured to recover thereunder.
(e) Landlord Insurance. Landlord may carry commercial general liability insurance, contingent property insurance, and any other insurance reasonably required by Lender from time-to-time (collectively, “Landlord Insurance”), and Tenant will reimburse Landlord for the actual, reasonable costs of Landlord Insurance when invoiced for same, as Additional Rent.
-9-
10. Indemnity.
(a) Waiver. Except to the extent caused by Landlord’s gross negligence or intentional misconduct, Landlord, its affiliates, partners, officers, directors, members, trustees, employees, agents and Lenders shall have no liability for, and shall not assume any liability or responsibility with respect, to the conduct or operation of the business to be conducted on the Premises and shall have no liability for any claim of loss of business or interruption of operations, or any consequential damages or indirect losses whatsoever. Any motor vehicles, parts, goods, furnishings, fixtures, property or personal effects placed or stored in or about the Premises shall be at the sole risk of Tenant, and Landlord, its affiliates, employees and agents shall not be responsible or liable for such property unless the same is damages due to the gross negligence or intentional misconduct of Landlord. To the fullest extent permitted by law, Tenant waives (and will cause Tenant’s Affiliates to waive), subject to the terms set forth in this Section 10(a), all claims against Landlord arising from any liability described in this Section 10(a).
(b) Indemnity.
i.) Tenant’s Indemnity. Tenant shall indemnify, defend upon request and hold Landlord, its affiliates, partners, officers, directors, members, trustees, employees, agents and Lenders harmless from and against, all demands, causes of action, judgments, costs, damages, claims, liabilities, expenses (including Legal Costs, disbursements and actual costs), losses, penalties and court costs suffered by or claimed against any of them, directly or indirectly, to the extent based on or arising out of, in whole or in part: (a) the use, condition, operation, maintenance, repair, alteration, and occupancy of the Premises or the business conducted therein or therefrom, (b) any act, omission, negligence or willful misconduct of Tenant or Tenant’s Affiliates, (c) subject to the terms set forth in Section 14, contamination of the Premises or the ground waters thereof, any discharge of toxic or hazardous sewage or waste materials from the Premises into any septic facility or sewer system, or release or existence of Hazardous Materials on the Premises (irrespective of whether there has occurred a violation thereof) relating to the Premises, (d) any breach, violation or nonperformance by Tenant or any person claiming under Tenant or Tenant’s Affiliates of any of the terms, provisions, representations, warranties, covenants or conditions of this Lease on Tenant’s part to be performed, including without limitation, the failure to comply with Governmental Requirements, (e) easements or other agreements entered into by Landlord at the request of Tenant following the Lease Date, and (f) any accident, injury, death or damage to the person, property or business of Tenant or Tenant’s Affiliates, or any other person that shall happen at, in, upon, or arising out of the Premises, however occurring. Landlord need not have first paid any such claim to be so indemnified and held harmless by Tenant. Tenant, upon written notice from Landlord, shall defend any claim against Landlord at Tenant’s sole expense, using legal counsel reasonably satisfactory to Landlord.
ii.) Landlord’s Indemnity. Landlord shall indemnify, defend upon request and hold Tenant, its affiliates, partners, officers, directors, members, trustees, employees, agents and Lenders harmless from and against, all demands, causes of action, judgments, costs, damages, claims, liabilities, expenses (including Legal Costs, disbursements and actual costs), losses, penalties and court costs suffered by or claimed against any of them: (i) directly or indirectly, to the extent based on or arising out of, in whole or in part, the gross negligence or willful misconduct of Landlord or Landlord’s Affiliates or (ii) to the extent arising from any claims brought by third-parties against Tenant which are predicated on conduct (or failure to take action) by Landlord which constitutes breach, violation or nonperformance by Landlord or Landlord’s Affiliates of any of the terms, provisions, representations, warranties, covenants or conditions of this Lease on Landlord’s part to be performed. Landlord, upon written notice from Tenant, shall defend any such claim against Tenant at Landlord’s sole expense, using legal counsel reasonably satisfactory to Tenant.
(c) Survival. This Section 10 will survive the Expiration Date with respect to any damage, bodily or personal injury, illness or death occurring prior to the Expiration Date.
11. Tenant’s Trade Fixtures.
(a) Installation. Tenant may install trade fixtures within the Buildings; provided that if the installation of such trade fixtures does not satisfy the criteria of Non-Approval Tenant Alterations, then the installation shall be subject to the prior written approval of Landlord, which will not be unreasonably withheld, delayed or conditioned.
(b) Removal. Tenant, at its expense, will remove all of its trade fixtures from the Premises by the end of the Term; provided, however, that Tenant will comply with the Rules and Regulations and applicable Governmental Requirements in performing such removal and will repair any damage caused by the installation or removal of all trade fixtures.
-10-
12. Signs.
(a) Exterior Walls. Except for the signage already installed and currently existing as of the Lease Date, no sign, advertisement or notice will be installed or displayed on the windows or exterior walls of the Buildings or on any exterior portion of the Premises, without the prior written approval of Landlord (not to be unreasonably withheld, conditioned or delayed).
(b) Removal of Signs. Tenant, at its expense, will remove all of its signs from the Premises by the Expiration Date; provided, however, that Tenant will comply with the Rules and Regulations and applicable Governmental Requirements in performing such removal and will repair any damage caused by the installation or removal of its signs.
13. Governmental Requirements.
(a) Compliance with Governmental Requirements. Tenant, at Tenant’s expense, will promptly comply with all Governmental Requirements relating to the Premises and/or Tenant’s use of all portions thereof.
(b) Notices. Tenant will promptly send to Landlord a copy of any written notice received by Tenant alleging a failure to comply with Governmental Requirements or purporting to require a Code Modification.
14. Environmental Matters.
(a) Compliance with Laws. Tenant will cause all activities at the Premises to be conducted in compliance with Environmental Laws.
(b) Permits. Tenant covenants that it will obtain prior to the Lease Commencement Date, all permits, licenses or approvals required by any applicable Environmental Laws necessary for Tenant’s operation of its business at the Premises.
(c) Use of Hazardous Substances. Tenant will not cause or permit any Hazardous Substances to be brought upon, kept or used at the Premises without the prior written approval of Landlord; provided that the approval of Landlord will not be required for the use of cleaning supplies, toner for photocopying machines and other similar materials, in containers and quantities reasonably necessary for and consistent with ordinary office use or routine janitorial service.
(d) Release of Hazardous Substances. In any event, Tenant will not cause or permit the release of any Hazardous Substances into the air, water or land, or into the Premises in any manner that violates any Environmental Laws.
(e) Remediation. If such release by Tenant of any Hazardous Substances occurs during the Term, Tenant will do the following:
i.) Contain and Control: take all steps reasonably necessary to contain and control such release and any associated Contamination;
ii.) Investigate and Clean-Up: investigate and clean up or otherwise remedy such release and any associated Contamination to the extent required by, and take any and all other actions required under, applicable Environmental Laws; and
iii.) Notify: notify and keep Landlord reasonably informed of such release and response.
(f) Hazardous Activities. In any event, Tenant will not cause or permit the following:
i.) Regulated Facility: any activity which would cause the Premises to become subject to regulation as a hazardous waste treatment, storage or disposal facility under applicable Environmental Laws (including, without limitation, RCRA);
ii.) Storm Sewer: the discharge of Hazardous Substances into the storm sewer system serving the Premises; or
iii.) UST: the installation of any underground storage tank or underground piping on or under the Premises.
-11-
(g) Environmental Indemnity.
i.) General Indemnification. Except to the extent caused by Landlord’s intentional misconduct or gross negligence, Tenant will indemnify Landlord and hold Landlord harmless from and against any and all expense, loss, and liability suffered by Landlord, by reason of the storage, generation, release, handling, treatment, transportation, disposal, or arrangement for transportation or disposal, of any Hazardous Substances at the Premises by any party other than Landlord or Landlord’s Affiliates at any time during the Lease Term or by reason of Tenant’s breach of any of the provisions of this Section 14. Tenant’s indemnification obligations hereunder expressly exclude any acts or omissions for time periods prior to the Lease Date. Except to the extent caused or exacerbated by Tenant’s intentional misconduct or gross negligence, Landlord will indemnify Tenant and hold Tenant harmless from and against any and all expense, loss, and liability suffered by Tenant by reason of the storage, generation, release, handling, treatment, transportation, disposal, or arrangement for transportation or disposal, of any Hazardous Substances at the Premises (i) by any party at any time prior to the Lease Term; or (ii) by Landlord or Landlord’s Affiliates at any time during the Lease Term; or (iii) by reason of Landlord’s or Landlord’s Affiliates breach of any of the provisions of this Section 14.
ii.) Expenses, Losses and Liabilities. Expenses, losses and liabilities, as referenced in Section 14(g)(i), will include, without limitation, the following:
A. Compliance: Landlord expenses to comply with any Environmental Laws the violation of which was caused by Tenant or Tenant’s Affiliates following the Lease Date;
B. Studying or Removing: costs that Landlord may incur in studying, remedying, removing, disposing or otherwise addressing any Contamination or Hazardous Substances at or arising from the Premises following Tenant’s refusal to perform the same (or to the extent required to be performed by Landlord under Environmental Laws);
C. Penalties: fines, penalties or other sanctions and any liens or claims, including but not limited to natural resource damages claims, assessed upon Landlord; and
D. Professional Fees: reasonable legal and professional fees and costs incurred by Landlord in connection with the foregoing.
iii.) Survival. The indemnity contained in this Section 14(g) will survive the Expiration Date.
15. AS-IS. Tenant acknowledges and agrees that Landlord shall deliver the Premises “AS IS” and occupancy shall begin on the Lease Commencement Date without any other conditions precedent including, without limitation, Landlord performing any work in or around the Premises.
16. Tenant Alterations.
(a) Alteration Process.
i.) Approval Required. Tenant will not make or allow any alterations to any part of the Premises (each a “Tenant Alteration”), without first obtaining on each occasion Landlord’s prior written approval which shall not be unreasonably withheld, conditioned or delayed. As part of its approval process, Landlord may require that Tenant submit plans and specifications and provide a schedule of values related to the proposed Tenant Alteration. Promptly after completion of any Tenant Alterations other than Non-Approval Tenant Alterations (defined below), Tenant will deliver Landlord, to the extent available, the as-built construction drawings for the Tenant Alterations to Landlord in the format reasonably requested by Landlord.
-12-
ii.) No Approval Required. Notwithstanding the foregoing, Landlord’s prior written approval shall not be required for interior Tenant Alterations that (“Non-Approval Tenant Alterations”):
| (1) | are non-structural, |
| (2) | do not result in floor penetrations or affect the roof, |
| (3) | do not affect the mechanical, plumbing, HVAC, electrical or safety systems serving either of the Buildings or the Premises, |
| (4) | do not require the filing of plans and specification with any governmental or quasi-governmental agency or authority or require a building permit, |
| (5) | do not reduce the value or utility of either of the Buildings, and |
| (6) | unless the alterations are purely decorative in nature (for example, painting or installation of floor and wall covering) and do not cost more than $50,000.00 for any one such alteration, or more than $150,000.00 for all such alterations in the aggregate. Except for Non-Approval Tenant Alterations, if Landlord’s approval is not obtained, Tenant shall, at Landlord’s request remove all such alterations and repair and restore the Premises to good condition and repair. |
ii.) Standard for Tenant Alterations. All Tenant Alterations will be performed in accordance with all applicable Governmental Requirements and in a good and workmanlike manner with first-class materials.
iii.) Tenant Insurance. Tenant will maintain (and will require its contractors to maintain) insurance reasonably satisfactory to Landlord during the construction of all Tenant Alterations.
iv.) Removal of Tenant Alterations. At Landlord’s election, Tenant will, at its sole cost and expense and by the end of the Term, remove the Tenant Alterations and repair and restore the Premises to good condition and repair. Landlord shall provide Tenant with notice of its election for Tenant to remove the Tenant Alterations at the time Landlord approves the same; provided, that (i) Tenant’s request for Landlord’s approval to the applicable Tenant Alteration specifically includes a request that Landlord determine whether removal of such Tenant Alteration will be required at the end of the Term; and (ii) in the event of Non-Approval Tenant Alterations, Landlord shall endeavor to provide Tenant with notice of its election at least six (6) months prior to the Expiration Date.
v.) Surrender of Tenant Alterations. Except as otherwise provided in Section 11 and in this Section 16, all Tenant Alterations and all other property installed on the Premises by or on behalf of Tenant will immediately upon installation become the property of Landlord and will be surrendered to Landlord on the Expiration Date unless Tenant is required, or elects, to remove the same.
(b) No Liens.
i.) General Prohibition. Tenant will not permit any lien on account of labor, material or services furnished in connection with work of any character performed or claimed to have been performed at the Premises.
ii.) Discharge of Liens. If any lien is filed against the Premises, Tenant will discharge such lien by payment or bonding within twenty (20) days after Tenant has actual knowledge of the existence of the lien.
iii.) Landlord Cure Right. If Tenant fails to timely discharge such lien in accordance with Section 16(b)(ii), Landlord may, without investigation of the validity of the lien claim (and in addition to any other rights and remedies), discharge such lien and Tenant will reimburse Landlord upon demand for all charges, costs and expenses actually incurred by Landlord in connection therewith, including, without limitation, Legal Costs.
iv.) No Implied Consent. Nothing contained in this Lease will be construed as a consent or authorization by Landlord to allow any person claiming through or under Tenant to file or otherwise subject the Premises to any lien or claim of any nature under any law.
(c) General Indemnification. Tenant will indemnify Landlord against, hold Landlord harmless from, and defend Landlord and the Premises against (with legal counsel acceptable to Landlord) all expenses, charges, liens, claims, liabilities and costs which may arise out of any Tenant Alterations including, without limitation, bond premiums for release of liens and Legal Costs and/or the filing of any liens, judgments, or encumbrances in connection therewith, or a failure by Tenant to meet its obligations under this Section 16.
(d) Survival. Tenant’s obligations set forth in this Section 16 shall expressly survive termination of the Lease.
-13-
17. Fire and Other Casualty.
(a) Substantial Casualty. If: (i) in the commercially reasonable determination of Landlord the Premises should be totally destroyed by fire or other casualty, or if in the commercially reasonable determination of Landlord the Premises should be damaged so that rebuilding cannot reasonably be completed substantially within twelve (12) months after Landlord’s receipt of written notification by Tenant of the destruction, or (ii) the Premises are damaged or destroyed by casualty not covered by Landlord’s insurance, or (iii) if any lender or other party entitled to insurance proceeds fails to make such proceeds available to Landlord in an amount sufficient for restoration of the Premises, then Landlord will give written notice to Tenant of such determination (the “Notice of Right to Terminate”) within 60 days after such casualty. If Landlord issues a Notice of Right to Terminate, either Landlord or Tenant may terminate this Lease by giving written notice to the other within twenty (20) days after Landlord’s delivery of the Notice of Right to Terminate, in which case this Lease shall terminate effective as of the date of the written termination notification and neither party shall have any further obligations under this Lease except for those which expressly survive termination of this Lease.
(b) Partial Casualty. If following damage or destruction to the Premises by fire or other casualty, this Lease is not terminated pursuant to Section 17(a) hereof, this Lease shall not terminate, and Landlord shall proceed, to the extent of insurance proceeds actually received by Landlord after the exercise by any mortgagee of the Premises of an option to apply proceeds against Landlord’s debt to such mortgagee, with reasonable diligence to rebuild or repair the Building(s) or other improvements to substantially the same conditions in which they existed immediately preceding the casualty date. If the Premises are to be rebuilt or repaired and are untenantable in whole or in part following the damage, and the damage or destruction was not caused or contributed to by act or negligence of Tenant, its agents, employees, invitees or those for whom Tenant is responsible, the Base Rent payable under this Lease during the period for which the Premises are untenantable until the Premises are returned to the condition that existed as of the Commencement Date shall be reduced to an amount determined by multiplying the Base Rent that would otherwise be payable but for this provision by the ratio that the portion of the Premises not rendered untenantable bears to the total net rentable area of the Premises prior to the casualty. Landlord’s obligation to rebuild or restore under this Section shall be limited to restoring the Premises to substantially the condition in which the same existed prior to the casualty, exclusive of improvements for which Tenant is responsible, and Tenant shall, promptly after the completion of such work by Landlord, proceed with reasonable diligence and at Tenant’s sole cost and expense to restore those improvements for which Tenant is responsible to substantially the condition in which the same existed prior to the casualty and to otherwise make the Premises suitable for Tenant’s use. If Landlord fails to substantially complete the necessary repairs or rebuilding within twelve (12) months after Landlord’s receipt of written notification by Tenant of the destruction (the “Outside Restoration Date”), then Tenant may terminate this Lease by giving written notice to Landlord within twenty (20) days after the expiration of the twelve (12) month rebuilding period, in which case this Lease shall terminate effective as of the date of the written termination notification and neither party shall have any further obligations under this Lease except for those which expressly survive termination of this Lease; provided, however, that: (i) the Outside Restoration Date will be extended on a day-for-day basis for each day of Tenant Delay; and (ii) the following provision shall apply: If at any time Landlord reasonably determines that it will not be able to cause completion of the restoration work by the Outside Restoration Date, then Landlord shall have the right to request a reasonable extension of the Outside Restoration Date by written notice to Tenant (the “Outside Restoration Date Extension Request”). Tenant shall have a period of 10 days after delivery of the Outside Restoration Date Extension Request to respond in writing to Landlord that it either (1) approves the Outside Restoration Date Extension Request, in which case the Outside Restoration Date shall be automatically extended for the period of time requested by Landlord in the Outside Restoration Date Extension Request or (2) rejects the Outside Restoration Date Extension Request (“Outside Restoration Date Extension Rejection”). Failure by Tenant to timely respond in the manner requested by Landlord will be deemed an Outside Restoration Date Extension Date Rejection. In the event of an Outside Restoration Date Extension Date Rejection, either party shall have the right to terminate this Lease within 5 business days after delivery by Tenant of the Outside Restoration Date Extension Rejection (or the last day of the above-referenced 10-day period if Tenant does not respond at all). If neither party terminates this Lease within such 5-business day period, then the Outside Restoration Date will not be deemed to be extended, the Lease will remain in effect, and Tenant shall continue to have the right to terminate this Lease if Landlord does not cause the completion of the restoration work by the Outside Restoration Date. During any period in which Landlord is restoring the Premises in accordance with this Section 17, Rent shall equitably abate in proportion to the portion of the Premises which is untenable as a result of the fire or other casualty until Landlord’s restoration is complete.
-14-
(c) Insurance Proceeds. Landlord’s obligation to rebuild and repair under this Section 17 shall in any event be limited to restoring the structural elements of the Premises to substantially the condition in which the same existed immediately prior to the casualty, and shall be further limited to the extent of the insurance proceeds available to Landlord for such restoration.
(d) Restoration Process. Tenant shall deliver to Landlord for Landlord’s approval the plans and specifications relating to the restoration for which Tenant is responsible, as well as a schedule setting forth the estimated periodic draws for such work. Upon Landlord’s approval thereof, Tenant will begin such restoration and will prosecute the same to completion with diligence and in accordance with the same requirements relating to Tenant Alterations.
(e) Survival. The provisions of this Section 17 shall expressly survive termination of the Lease.
18. Condemnation.
(a) Total Condemnation.
i.) Termination of Lease. If a material portion of each Building is Condemned and the remaining portions thereof are not usable by Tenant for the Permitted Use (as reasonably determined by both Landlord and Tenant), or if the entirety of each Building is Condemned, this Lease will terminate as of the earlier of the date (the “Condemnation Date”) that: (A) title to the condemned real estate vests in the condemnor; and (B) Tenant is deprived of possession of the Buildings as a result of the Condemnation.
ii.) Apportionment of Rent. In such event: (A) the Rent will be apportioned and paid in full by Tenant through the Condemnation Date; (B) all Rent prepaid for periods beyond the Condemnation Date will be repaid by Landlord to Tenant; and (C) neither party will have any liability hereunder after the Condemnation Date, except that any obligation or liability of either party, actual or contingent, under this Lease which has accrued on or prior to such Condemnation Date will survive.
(b) Partial Condemnation.
i.) Restoration of Premises. If only part of the Premises is Condemned and this Lease does not terminate pursuant to Section 18(a), Landlord will restore any resulting damage to portions of the Improvements to a condition as nearly comparable as reasonably practicable to the condition thereof immediately prior to the Condemnation (“Condemnation Restoration”).
ii.) Rent Adjustment. There will be an equitable adjustment to the Rent based on the actual loss of use of the Building(s) suffered by Tenant from a partial Condemnation described in Section 18(b)(i).
(c) Award.
i.) Award for Taking. Landlord will receive the entire award in any proceeding with respect to any Condemnation, without deduction therefrom for any estate vested in Tenant by this Lease, and Tenant will receive no part of such award (except to the extent disbursed in connection with Condemnation Restoration pursuant to subsection (iii) below).
ii.) Tenant Claim. Nothing contained herein will be deemed to prohibit Tenant from making a separate claim against the condemnor, to the extent permitted by law, for the value of Tenant’s moveable trade fixtures, machinery and moving expenses, provided that the making of such claim does not diminish Landlord’s award. Except as aforesaid, Tenant hereby waives all claims against Landlord and all claims against the condemnor, and Tenant hereby assigns to Landlord all claims against the condemnor including, without limitation, all claims for leasehold damages and diminution in the value of any leasehold interest.
-15-
19. Tenant’s Default.
(a) Event of Default. The occurrence of any of the events listed below will constitute an “Event of Default” of Tenant under this Lease.
i.) Failure to Pay Rent. Tenant fails to pay Base Rent or any Additional Rent when due, and such failure continues for more than five (5) days after Landlord gives written notice to Tenant of such failure;
ii.) Repeated Failure to Pay Rent. Tenant fails to pay Base Rent or any Additional Rent when due more than two (2) times in any period of 12 months, notwithstanding that such payments have been made within the applicable cure period;
iii.) Governmental Requirements/Environmental Compliance. Tenant fails to comply with Section 14 of this Lease, and such failure continues for more than ten (10) days after Landlord gives Tenant written notice of such failure. Notwithstanding the foregoing, if, a longer amount of time is reasonably necessary due to the nature of the actions required under Section 14 of this Lease, then Tenant shall promptly commence such actions within ten (10) days after Landlord gives Tenant written notice of such failure and Tenant shall provide written notice to Landlord with Tenant’s reasonable estimate of the time needed to comply with the requirements of Section 14 of this Lease and thereafter Tenant shall diligently pursue to completion all actions necessary to comply with Section 14 of this Lease.
iv.) Failure to Discharge Lien. Tenant fails to discharge any lien against the Premises in accordance with Section 16(b);
v.) Failure to Maintain Insurance. Tenant fails to maintain in force all policies of insurance required by this Lease or fails to provide Landlord with evidence of such insurance, and either of such failures continues for more than seven (7) business days after Landlord gives Tenant written notice of such failure;
vi.) Bankruptcy. (A) Tenant or any guarantor of this Lease is bankrupt (which, in the case of an involuntary proceeding, is not permanently discharged, dismissed, stayed, or vacated, as the case may be, within 60 days of commencement); (B) a receiver, custodian, or trustee is appointed for the Premises or for all or substantially all of the assets of Tenant or of any guarantor of this Lease, which appointment is not vacated within 60 days following the date of such appointment; or (C) Tenant or any guarantor of this Lease becomes insolvent or makes a transfer in fraud of creditors or makes an assignment for the benefit of creditors.
vii.) Holdover. Subject to Section 27(c)(ii) Tenant fails to vacate the Premises on or before the Expiration Date, in accordance with Section 27(b) (no notice-and-cure right is afforded in connection with a Holdover); or
viii.) Other Default. Tenant fails to perform or observe any other term of this Lease and such failure continues for more than 30 days after Landlord gives Tenant written notice of such failure, or, if such failure cannot be corrected within such 30 day period, if Tenant does not commence to correct such default within said 30 day period and thereafter diligently prosecute the correction to completion within a reasonable time (but in no event later than 90 days after Landlord’s notice of default).
(b) Landlord’s Remedies. Upon the occurrence of any Event of Default, at Landlord’s option, without any demand or notice whatsoever (except as expressly required in this Section 19) Landlord may enforce any of the following remedies:
i.) Termination of Lease: Landlord may give Tenant notice of termination, in which event this Lease will terminate on the date specified in such notice (which date shall comply with all applicable laws) and all rights of Tenant under this Lease and to the Premises will terminate, and:
A. Tenant Remains Liable: Tenant will remain liable for all obligations under this Lease arising up to the date of such termination.
B. Surrender of Premises: Tenant will surrender the Premises to Landlord on the date specified in such notice.
-16-
ii.) Termination of Lease with Recovery of Damages:
A. Termination Right; Calculation of Damages: Landlord may terminate this Lease as provided in Section 19(b)(i) and recover from Tenant all damages Landlord actually incurs, or is reasonably likely to incur, by reason of Tenant’s default, including, without limitation, an amount which, at the date of such termination, is calculated as follows (and which will be immediately due and payable):
1. Lost Rental Value: the positive difference, if any, of: (a) the Base Rent, Additional Rent and all other sums which would have been payable hereunder by Tenant for the period commencing with the day following the date of such termination and ending with the scheduled Expiration Date had this Lease not been terminated (the “Remaining Term”), minus (b) the aggregate reasonable rental value of the Premises for the Remaining Term (which positive difference, if any will be discounted to present value at the Treasury Yield for the Remaining Term); plus
2. Landlord Expenses: the costs of recovering possession of the Premises and all other expenses actually incurred by Landlord due to Tenant’s default, including, without limitation, Legal Costs, expenses of preparing the Premises for re-letting, repairs, unamortized balance of the Landlord’s Work Allowance or Tenant’s Work Allowance, any abated rent, and brokers’ commissions (the “Default Damages”); plus
3. Unpaid Rent: the unpaid Base Rent and Additional Rent owed as of the date of termination plus any interest and late fees due hereunder, plus other amounts owing on the date of termination by Tenant to Landlord under this Lease or in connection with the Premises.
iii.) Repossession of Premises.
A. Landlord Repossession of Premises. Without terminating this Lease, in its own name but as agent for Tenant, Landlord may enter into and upon and take possession of the Premises or any part thereof.
B. Removal of Tenant Property. Any property remaining in the Premises may be removed and stored at the cost of, and for the account of, Tenant without Landlord becoming liable for any loss or damage which may be occasioned thereby unless caused by Landlord’s willful misconduct or gross negligence.
C. Right to Relet. Thereafter, Landlord shall use commercially reasonable efforts and endeavor to lease to a third party the Premises or any portion thereof upon such terms and conditions as Landlord may deem or desirable in order to relet the Premises, but without relieving Tenant of its liability; provided, however, that Landlord’s obligations under this subsection shall be deemed satisfied so long as Landlord notifies a real estate broker that the Premises has or will soon thereafter come available for leasing and that Landlord desires to relet the Premises upon the Premises becoming available.
D. Right to Terminate. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for any such previous default, provided same has not been cured.
-17-
iv.) Other Remedies: Landlord may pursue such other remedies as are available at law or equity; provided, however, that Tenant shall not be liable for special, consequential or punitive damages, except to the extent arising under Section 14 (Environmental Matters) or Section 27(c) (Holdover).
Mention in this Lease of any particular remedy of Landlord does not preclude Landlord from any other remedy, whether available at law or in equity or by statute or expressly provided for in this Lease. No remedy will be exclusive or dependent upon any other remedy, and the remedies are cumulative and not alternative.
(c) Application of Funds. If this Lease terminates as a result of, or while there exists, an Event of Default, any funds of Tenant held by Landlord may be applied by Landlord to any damages payable by Tenant (whether provided for herein or by law) as a result of such termination or Event of Default.
(d) No Waiver.
i.) No Implied Acceptance or Surrender. No agreement to accept a surrender of the Premises and no act or omission by Landlord or Landlord’s agents during the Term will constitute an acceptance or surrender of the Premises unless made in writing by Landlord.
ii.) No Implied Termination. No re-entry or taking possession of the Premises by Landlord will constitute an election by Landlord to terminate this Lease unless a written notice of such intention is given to Tenant.
iii.) No Implied Waiver. Landlord’s acceptance of Base Rent or Additional Rent following an Event of Default hereunder will not be construed as a waiver of such Event of Default.
(e) Application of Rent. Whenever an Event of Default has occurred, any payment of Rent by Tenant, any other payment of any nature tendered by Tenant to Landlord and any other amount of money collected or received by Landlord from any reletting of the Premises pursuant to this Section 19 will be applied in such order as Landlord may elect toward payment of all amounts due from Tenant to Landlord pursuant to this Lease.
20. Landlord’s Right of Entry. Tenant will permit Landlord and the authorized representatives of Landlord and Lender to enter the Buildings and other portions of the Premises at all reasonable times for the purposes of: (i) inspecting the Premises; (ii) assessing Tenant’s compliance with this Lease and performing Landlord’s obligations under this Lease; (iii) performing any of Landlord’s construction or maintenance and repair responsibilities; and (iv) exhibiting the Premises to any Lender, any prospective purchaser, investor or lender, and during the last 6 months of the Term, any prospective tenant; provided that, except in the case of an emergency, Landlord will give Tenant at least forty-eight (48) hours’ prior notice of Landlord’s intended entry into the Buildings.
21. Lender’s Rights.
(a) Subordination and Attornment.
i.) Subordination: This Lease and all rights of Tenant hereunder are subordinate to any Mortgage and foreclosure of any Mortgage, so long as Tenant has been delivered a commercially reasonable subordination, non-disturbance and attornment agreement (a “Reasonable SNDA”) executed by the Lender holding such Mortgage, which shall include among other things, provisions stating that (i) so long as Tenant faithfully and timely discharges its obligations under this Lease, Tenant’s right of possession to the Premises and other rights under this Lease will not be affected by any default by Landlord under the Mortgage, and (ii) that in the event of foreclosure under the Mortgage, provided no uncured Event of Default exists, the rights of Tenant hereunder will survive and this Lease will continue in full force and effect in accordance with its terms.
-18-
ii.) Attornment. If, in connection with foreclosure of a Mortgage or other taking of possession of the Premises pursuant to a Mortgage, a Lender (or a nominee of the Lender or other purchaser at foreclosure) elects to succeed to the rights and obligations of Landlord under this Lease, Tenant will attorn to such successor as landlord under this Lease, without change in the terms and provisions of this Lease, and will promptly execute and deliver any instrument reasonably required by such successor to evidence such attornment including, without limitation, a Reasonable SNDA; provided, however, that such successor will not be bound by:
A. Advanced Rent Payment: any payment of Base Rent or Additional Rent more than one month in advance, except prepayments in the nature of security for the performance by Tenant of its obligations under this Lease, and then only if such prepayments have been deposited with and are under the control of such successor;
B. No Lender Consent: any provision of any amendment to this Lease to which Lender has not consented in writing; or
C. Defaults of Prior Landlords: the defaults of any prior landlord under this Lease, including, without limitation, any offset against Rent arising out of the defaults of any prior landlord under this Lease.
iii.) Execution of Instruments. Tenant will execute any Reasonable SNDA requested by Landlord during the Term.
(b) Lease Superior Upon Request. At any time during the Term, any Lender may, by written notice to Tenant, make this Lease superior to the lien/security title of its Mortgage. If requested by Lender, Tenant will, upon demand, at any time or times, execute, acknowledge and deliver to Lender, any and all instruments that may be reasonably necessary to make this Lease superior to the lien/security title of any Mortgage.
22. Estoppel Certificates.
(a) Estoppel Certificates. During the Term, each of Landlord and Tenant agrees (and Tenant agrees to require Guarantor) to execute and deliver within 15 days after written request from the other, a statement to the requesting party and/or its designee certifying as follows (in each instance, to the actual knowledge of the party providing the certificate):
i.) In Effect: This Lease is unmodified and in full force and effect (or, if there have been modifications, that the same is in full force and effect, as modified);
ii.) Rent Payment. The amount of the Security Deposit (if any) and the amount and dates to which Base Rent and Additional Rent have been paid;
iii.) Default. Whether or not, to its actual knowledge, there exists any failure by the requesting party to perform any term, covenant or condition contained in this Lease, and, if so, specifying each such failure;
iv.) Acceptance of Premises. If such be the case, Tenant has unconditionally accepted the Premises and is conducting its business therein;
v.) Unperformed Obligations. If such be the case, whether Landlord has performed all obligations under this Lease, including, but not limited to, constructing any tenant improvements and/or paying any tenant allowances; and
vi.) Other Matters. As to such additional factual matters relating to this Lease as may be reasonably requested, it being intended that any such statement delivered pursuant hereto may be relied upon by the requesting party and by any party that has, or is contemplating having, a direct or indirect interest in Landlord or the Premises.
23. Landlord Liability/Termination/Independence.
(a) No Continuing Liability. No owner of the Premises, whether or not named herein, will have liability hereunder after it ceases to hold title to the Premises, except for events occurring during the period of such owner’s ownership of the Premises.
(b) No Personal Liability. Neither Landlord nor any employee, representative, officer, director, security holder, manager, equity holder, trustee, partner or principal of Landlord, whether disclosed or undisclosed, will have any personal liability with respect to any of the provisions of this Lease.
-19-
(c) Limitation of Landlord Liability. In the event Landlord is in breach or default with respect to Landlord’s obligations or otherwise under this Lease, Tenant will look solely to the equity of Landlord in the Premises for the satisfaction of Tenant’s remedies. Landlord’s liability under the terms, covenants, conditions, warranties and obligations of this Lease will in no event exceed Landlord’s equity interest in the Premises.
(d) No Termination. Except as expressly provided in this Lease, this Lease shall not terminate, nor shall Tenant have any right to terminate this Lease nor shall Tenant be entitled to any abatement or reduction of Rent. Except as otherwise provided in this Lease, the obligations of Tenant shall not be affected by reason of (i) any damage to or the destruction of all or any part of the Premises from whatever cause, (ii) the taking of the Premises or any portion thereof by condemnation, requisition or otherwise for any reason, (iii) the prohibition, limitation or restriction of Tenant’s use of all or any portion of the Premises or any interference with such use, or (iv) any default on the part of Landlord under this Lease or under any other agreement to which Landlord and Tenant are parties.
(e) Separate/Independent Obligations. It is the intention of the parties hereto that the obligations of Landlord and Tenant hereunder shall be separate and independent covenants and agreements, that the Rent and all other sums payable by Tenant hereunder shall continue to be payable in all events and that the obligations of Tenant hereunder shall continue unaffected, unless the requirement to pay or perform the same shall have been terminated pursuant to an express provision of this Lease.
(f) Waiver. Except as expressly provided in this Lease, Tenant waives all rights to which it may now or hereafter be conferred by law (i) to quit, terminate or surrender this Lease or the Premises or any part thereof, or (ii) to any abatement, suspension, deferment or reduction of the Rent or any other sums payable under this Lease.
24. Notices.
(a) Delivery Methods. Any notice required or permitted by the provisions of this Lease must be in writing and delivered to the email addresses set forth in Section 1(k), with a hard copy sent within a reasonable period of time by nationally recognized overnight delivery service providing proof of delivery, to the appropriate mailing address set forth in Section 1(k). Email addresses and mailing addresses may be changed by the affected party to any other address in the continental United States by giving written notice at least ten (10) days in advance of the effective date of the change.
(b) Notice Date. Notice will be deemed to have been given on the date of email transmission. If a notice that is properly addressed per Section 24(a) is rejected as undeliverable for any reason, the notice will be deemed delivered at the time delivery was attempted.
25. Broker Indemnification. Landlord and Tenant hereby indemnify the other against and from any claims for any brokerage commissions arising through such party and all costs, expenses and liabilities in connection therewith, including, without limitation, Legal Costs.
26. Assignment and Subleasing.
(a) Transfer.
i.) Consent Required. No Transfer will be permitted without the prior written consent of Landlord, which consent Landlord will not unreasonably withhold, condition or delay.
ii.) General Notice Requirements. If Tenant desires to Transfer this Lease (other than in connection with a Change in Control, which will be governed by the provisions of Section 26(b)), Tenant will give Landlord written notice no later than 30 days in advance of the proposed effective date of the proposed Transfer including:
A. Name and Business: the name and business of the other party to the proposed transaction;
B. Effective Date: the proposed effective date and duration of the Transfer;
C. Rent: the proposed rent or consideration to be paid to Tenant by the other party to the proposed transaction;
-20-
D. Space: in the event that a proposed Transfer is a sublease or any other proposed agreement to Transfer less than Tenant’s entire interest in the Premises, the amount and location of the space within the Premises that is the subject of the proposed transaction; and
E. Additional Information: financial statements and other information as Landlord may reasonably request to evaluate any Transfer.
(b) Change in Control. If Tenant desires to effectuate a Change in Control, Tenant will:
i.) Notice. give Landlord written notice no later than 30 days in advance of the effective date of any proposed Change in Control, specifying:
A. Name: the name of the proposed entity acquiring the direct or indirect interest in (or assets of) Tenant; and
B. Effective Date: the proposed effective date of such Change in Control.
ii.) Other Requested Information. promptly supply Landlord with financial statements and other information as Landlord may reasonably request to evaluate the proposed Change in Control.
(c) Transfer Process.
i.) Landlord’s Decision. For all Transfers, Landlord will have a period of 10 Business Days following Landlord’s receipt of the notice and information from Tenant required above within which to notify Tenant in writing that Landlord elects one of the following:
A. Permit Transfer. To permit the Transfer, either with or without reasonable conditions specified by Landlord; or
B. Refuse Transfer. To refuse, in Landlord’s reasonable discretion (taking into account all relevant factors, including the factors set forth below), to approve the Transfer and to continue this Lease in full force and effect as to the entire Premises. If Landlord fails to notify Tenant in writing of such election within the 10-Business Day period, Tenant shall have the right to send an additional notice to Landlord requesting Landlord’s consent to the Transfer, which notice shall contain in bold and capital letters at the top of the first page language stating that “PURSUANT TO SECTION 26(C) OF THE LEASE, FAILURE TO RESPOND TO THIS LETTER MAY RESULT IN DEEMED APPROVAL OF A TRANSFER OF THIS LEASE”, and if Landlord still fails to respond to Tenant’s request within 5 days thereafter, then Landlord will be deemed to have elected to approve such Transfer.
ii.) Landlord Refusal. For purposes of this Section 26, by way of example and not limitation, Landlord will be deemed to have reasonably withheld consent if:
A. Creditworthiness: the creditworthiness of the prospective transferee (or, in the instance of a Change in Control, the creditworthiness of Tenant after the Change in Control) will not equal or exceed the greater creditworthiness of Tenant as of: (1) the Lease Date or (2) the date immediately prior to the proposed Change in Control;
B. Increased Risk of Use: the proposed use of the Premises by such prospective transferee, when compared to Tenant’s use, will: (1) materially increase the risk of Contamination; (2) materially increase wear and tear on the Premises or the Improvements; (3) necessitate any material modifications of any part of the Premises or the Improvements; (4) materially increase the cost of, or risk exposure under, insurance; or (5) otherwise materially and negatively affect the value or marketability of the Premises; or
-21-
C. Current or Prospective Tenant: in the instance of any Transfer (other than a Change in Control), the prospective transferee is a bona-fide third-party prospective tenant for space owned by Landlord in the Market Area.
(d) Miscellaneous Transfer Provisions.
i.) Reimbursement. Tenant agrees to reimburse Landlord for reasonable legal fees and any other reasonable costs incurred by Landlord in connection with any requested Transfer not to exceed Two Thousand and No/100 Dollars ($2,000.00).
ii.) Delivery of Transfer Documents. Tenant will deliver to Landlord copies of all transfer documents executed by Tenant and the transferee.
iii.) Excess Rent. If the transferee is to pay rent or other consideration to Tenant, and the rent rate (or other consideration) agreed upon between Tenant and its proposed transferee is greater than the rent rate that Tenant must pay Landlord hereunder for the Premises (or the applicable portion thereof), then fifty percent (50%) of such excess rent and consideration (after payment of brokerage commissions, Legal Costs and other disbursements reasonably incurred by Tenant for such Transfer) will be considered Additional Rent to be paid to Landlord by Tenant.
iv.) No Implied Consent. No acceptance by Landlord of any rent or any other sum of money from any assignee, sublessee or other category of transferee will be deemed to constitute Landlord’s consent to any Transfer.
v.) Liability of Transferees. Permitted subtenants, assignees or other transferees will be liable directly to Landlord for all obligations of Tenant hereunder, without, however, relieving Tenant (or any guarantor) of any liability hereunder.
vi.) Tenant Remains Liable. No such Transfer will be deemed a release of transferring Tenant from Tenant’s obligations under this Lease; provided that Landlord shall act in good faith in considering any request by Tenant to be released following a Transfer where (a) the transferee assumes, in full, the obligations of Tenant under this Lease; (b) the Permitted Use of the Premises remains unchanged; (c) after such transaction is effected, the tangible net worth of the tenant hereunder is equal to or greater than the tangible net worth of Tenant as of the date of this Lease or the date immediately preceding the Transfer, whichever is greater; (d) Landlord shall have received an executed copy of all documentation effecting such Transfer on or before its effective date; and (e) the same is not a subterfuge by Tenant to avoid its obligations under this Lease. For the avoidance of doubt, notwithstanding any obligation of Landlord to act in good faith in considering any request by Tenant to be released following a Transfer, satisfaction of (a) through (e) above by a transferee shall in no event be construed as obligating Landlord to release the transferring Tenant from Tenant’s obligations under this Lease; rather, in the event conditions (a) through (e) above are satisfied, Landlord is merely agreeing to consider such request using sound business practices customarily used by prudent owners of similar properties, and Tenant acknowledges that so long as Landlord considers such request in accordance with the foregoing, Landlord shall nonetheless be entitled to withhold its consent in Landlord’s sole discretion.
vii.) Subsequent Transfers. Any Transfer consented to by Landlord will not relieve Tenant (or its transferee) from obtaining Landlord’s consent to any subsequent Transfer.
-22-
27. Termination or Expiration; Holdover.
(a) Right to Collect Rent. No termination of this Lease prior to the normal ending thereof, by lapse of time or otherwise, will affect Landlord’s right to collect Rent for the period prior to termination.
(b) Surrender. On or before the Expiration Date, Tenant will surrender to Landlord: (i) the Premises (including the Improvements, but not including any trade fixtures, signage or Tenant Alteration which Tenant is obligated to remove pursuant to Section 11, Section 12 and Section 16, respectively) clean and neat, in compliance with the Rules and Regulations and otherwise in the same condition as when delivered to Tenant pursuant to this Lease (and, with respect to Landlord’s Work, in the same condition as when Substantial Completion of same occurred), excepting only normal wear and tear, condemnation and casualty (other than casualty required by this Lease to be insured against by Tenant) and (ii) all keys to the Buildings. Failure by Tenant to timely do so shall be deemed a “Holdover”.
(c) Holdover.
i.) Tenant-At-Sufferance. If Holdover occurs, with or without Landlord’s acquiescence and without a written agreement of the parties, Tenant will be a tenant-at-sufferance at 150% of the Base Rent in effect at the end of the Term.
ii.) Permitted Holdover Period. Notwithstanding the foregoing, if Tenant gives to Landlord written notice not less than 6 months preceding the end of the Term, that Tenant desires to extend the duration of the Term for up to three (3) additional months (with the period of the extension, up to a maximum of three (3) months, to be specified in the notice from Tenant), then, and only then, the Term will automatically be extended for the period specified in the notice from Tenant (up to a maximum of three (3) months) (“Permitted Holdover Period”), so long as no Event of Default has occurred as of the date on which Tenant gives such notice to Landlord or as of the date on which the Lease otherwise would have expired. Base Rent during the Permitted Holdover Period shall equal to 125% of the Base Rent in effect immediately prior to such extension. If Tenant fails to vacate the Premises at the end of the Permitted Holdover Period, without Landlord’s acquiescence and without any express agreement of the parties, Base Rent will automatically escalate to an amount equal to 150% of the Base Rent in effect immediately prior to commencement of the Permitted Holdover Period.
iii.) Additional Rent. In any event, Tenant must also continue to pay all other Additional Rent due hereunder, provided that no concessions or limits on Operating Expenses or other concessions regarding Additional Rent will apply with respect to the holdover period.
iv.) No Renewal by Operation of Law. Notwithstanding anything to the contrary contained in this Section 27(c), there will be no renewal of this Lease by operation of law or otherwise.
v.) Damages. With respect to any holdover outside of the Permitted Holdover Period (if applicable), Tenant will be liable for all damages, direct and consequential, incurred by Landlord as a result of such Holdover.
vi.) No Implied Reinstatement or Renewal. No receipt of money by Landlord from Tenant after the termination of this Lease or Tenant’s right of possession of the Premises will reinstate, continue or extend the Term or of Tenant’s right of possession.
vii.) Survival. The provisions of this Section 27(c) will survive the Expiration Date.
28. Late Payments.
(a) Late Payment Administrative Fee. If any installment of Rent is not paid within five (5) days after the date when due, Tenant will pay a one-time administrative fee (the “Late Payment Administrative Fee”) equal to five percent (5%) of such past due amount, in order to defray certain of the additional expenses incurred by Landlord as a result of such late payment.
-23-
(b) Late Payment Interest. If any past-due installment of Rent, plus the Late Payment Administrative Fee, is not paid in full within 30 days after the original due date thereof, then the past-due installment, plus the Late Payment Administrative Fee, will, after expiration of such 30 days and until paid in full, accrue interest at the lesser of: (i) one percent (1.0%) per month, compounded monthly; and (ii) the maximum interest rate allowed by law (the “Late Payment Interest Rate”).
(c) Additional Fees. The Late Payment Administrative Fee and accrual of interest at the Late Payment Interest Rate are in addition to, and not in lieu of, any of Landlord’s remedies under this Lease for non-payment of Rent.
29. Rules and Regulations. Tenant will abide by the Rules and Regulations.
30. Miscellaneous.
(a) OFAC. Tenant certifies, represents, warrants and covenants that it is not acting (and will not act) directly or indirectly, for or on behalf of any of the following, and it is not engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of:
i.) Terrorist. any person, group, entity, or nation named by any Executive Order or the United States Treasury Department as a terrorist;
ii.) Specially Designated National or Blocked Person. any Specially Designated National or Blocked Person; or
iii.) Others. any other banned or blocked person, entity, nation or transaction pursuant to any law, order, rule, or regulation that is enforced or administered by the Office of Foreign Assets Control.
(b) Entire Agreement; Amendment; Severability.
i.) Entire Agreement. This Lease contains the entire agreement of the parties hereto as to the subject matter of this Lease and no prior representations, inducements, letters of intent, promises or agreements, oral or otherwise, between the parties not embodied herein will be of any force and effect.
ii.) Future Amendments. Any future amendment to this Lease must be in writing and signed by the parties hereto.
iii.) Severability. If any clause or provision of this Lease is determined to be illegal, invalid or unenforceable under applicable law, then: (A) all remaining provisions of this Lease will remain in full force and effect; and (B) it is the intention of Landlord and Tenant that, in lieu of such illegal, invalid or unenforceable clause or provision, there will be substituted a clause or provision as similar to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable.
(c) Cumulative Rights. All rights, remedies, powers, and privileges conferred hereunder upon the parties hereto (i) will be cumulative, but not restrictive to those given by law, and (ii) will not be (or deemed to be) exclusive of those that may at any time be available Landlord under applicable law.
(d) No Election of Remedies. An exercise of one remedy by Landlord (including, but not limited to, exercising rights under Sections 5(c) or 19(b)), shall not be deemed an election of remedies by Landlord, and Landlord will have the right to pursue any and all other remedies available to it.
(e) No Waiver. No failure of Landlord or Tenant to exercise any power given Landlord or Tenant hereunder or to insist upon strict compliance by Landlord or Tenant with its obligations hereunder, and no custom or practice of the parties at variance with the terms hereof will constitute a waiver of Landlord’s or Tenant’s rights to demand exact compliance with the terms hereof or lessen either party’s right to insist upon strict performance of the terms of this Lease. No provision of this Lease will be deemed to have been waived by either party unless such waiver is made in writing by the party making such waiver.
-24-
(f) Time Periods. Time is of the essence of this Lease. If the time period by which any right, option or election provided under this Lease must be exercised, or by which any act required hereunder must be performed, expires on a day other than a Business Day, then such time period will be automatically extended through the close of business on the next regularly scheduled Business Date in the state where the Premises are located.
(g) Relationship. This contract creates the relationship of landlord and tenant between Landlord and Tenant; no estate will pass out of Landlord. The interest of Tenant is not intended to, and will not, be subject to levy and sale and will not be assignable, except as expressly permitted by this Lease.
(h) No Recordation. Tenant will not record this Lease or a memorandum thereof; provided, however, that upon request by Tenant, Landlord agrees to execute a memorandum of this Lease in a recordable form reasonably acceptable to Landlord and Tenant may record such memorandum at its sole cost and expense.
(i) Counterparts. This Lease may be executed in multiple counterparts including by electronic or PDF signature, each of which will constitute an original, but all of which taken together will constitute one and the same agreement.
(j) Governing Law. All matters relating to the interpretation, construction, validity and enforcement of this Lease, including all claims (whether in contract or tort) that may be based upon, arise out of or relate to this Lease or the negotiation, execution or performance of this Lease or the transactions contemplated thereby, will be governed by and construed in accordance with the domestic laws of the state where the Premises are located, without giving effect to any choice of law or conflict of law provision or rule (whether of such state or of any other jurisdiction) that would cause the application of laws of any jurisdiction other than such state.
(k) Headings and Subheadings. The headings and subheadings of this Lease are for convenience only and are not a part of this Lease, and do not in any way define, limit, describe or amplify the terms or provisions of this Lease or the scope or intent thereof.
(l) Negotiated Document. This Lease is the result of negotiations between the parties, and in construing any ambiguity hereunder no presumption will be made in favor of either party.
(m) Waiver of Jury Trial. THE PARTIES HERETO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE OR THE RELATIONSHIP OF THE PARTIES HEREUNDER.
31. Special Stipulations. The Special Stipulations, if any, attached hereto as EXHIBIT B, are incorporated herein and made a part hereof and, to the extent of any conflict between the foregoing provisions and the Special Stipulations, the Special Stipulations will govern and control.
32. Authority. Landlord and Tenant certify to the other party as follows:
(a) Organization. It is duly organized, validly existing and in good standing under the laws of the state in which it was formed and duly qualified to do business in the state in which the Premises is located; and
(b) Authorization. It is authorized by all required corporate or partnership action to enter into this Lease, and the individual(s) signing this Lease on behalf of such party are each authorized to bind same.
33. Prevailing Party. In the event of a dispute between Landlord and Tenant regarding the terms of this Lease, including any dispute regarding the enforcement of this Lease or the interpretation of any provision of this Lease, whether arising in a lawsuit filed by either Landlord or Tenant, an arbitration, bankruptcy or otherwise, the prevailing party in such dispute will be entitled to recover from the other its Legal Costs in connection with such dispute.
[signatures on next page]
-25-
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands under seal effective as of the Lease Date.
| LANDLORD: | ||
| PERIMETER GROUP CORPORATION, | ||
| a Georgia corporation | ||
| By: | /s/ Anthony L. Wood, Jr. | |
| Name: | Anthony L. Wood, Jr. | |
| Title: | Authorized Representative | |
| TENANT: | ||
| A.L. Grading contractors, LLC, | ||
| a Georgia limited liability company | ||
| By: | /s/ Jeremy S. Spivey | |
| Name: | Jeremy S. Spivey | |
| Title: | Authorized Representative | |
[Signature Page to Lease Agreement]
SCHEDULE A
“Additional Rent”: Any amount, other than Base Rent, required to be paid by Tenant to Landlord pursuant to this Lease and any cost or expense incurred by Landlord on behalf of Tenant or reimbursable to Landlord by Tenant under the terms of the Lease, including, without limitation, any amount advanced by Landlord to cure a default by Tenant under this Lease.
“Affiliates”: Shall mean Tenant’s Affiliates or Landlord’s Affiliates, as applicable.
“Appraisal Process”: Defined in Section 1(c)(iii) of EXHIBIT B.
“Appraiser’s Determination Period”: Defined in Section 1(c)(iii)(C) of EXHIBIT B.
“Base Rent”: Defined in Section 1(d).
“Buildings”: Defined in Section 1(b).
“Business Day”: Any day other than Saturday, Sunday or a day that banks are closed for business all day in the United States and/or the state in which the Premises are located.
“Casualty Damage”: Defined in Section 17(a).
“Casualty Restoration”: Defined in Section 17(a).
“Change in Control”: (a) the transfer of fifty percent (50%) or more of the direct or indirect equity or controlling interests in Tenant in one or more transactions occurring in a 12 month period, whether by sale, merger, consolidation or other transfers of equity interests of any kind; or (b) the sale or other transfer or disposition of all or substantially all of the assets of Tenant. The transfer of any direct or indirect interests in Tenant which are publicly traded on any recognized national or international securities exchange will not be deemed a Change in Control.
“Code Modification”: Any alteration or modification of any portion of the Premises or Improvements required during the Term by Governmental Requirements.
“Condemned” or “Condemnation”: The taking or condemnation of property by any authority having the power of eminent domain.
“Condemnation Date”: Defined in Section 18(a)(i).
“Condemnation Restoration”: Defined in Section 18(b)(i).
“Contamination”: The presence of, or release of, Hazardous Substances into any environmental media from, upon, within, below, into or on any portion of the Premises so as to require remediation, cleanup or investigation under any Environmental Law.
“Default Condition”: Any fact or circumstance which, with the giving of notice or the passage of time, or both, would give rise to or become an Event of Default.
“Default Damages”: Defined in Section 19(b)(ii)(A)(2).
“Delay”: Tenant Delay or Force Majeure Delay.
“Dock Equipment”: Equipment servicing the dock areas, including without limitation, dock levelers, trailer restraints, and overhead doors and associated tracks and hardware.
“Environmental Laws”: All federal, state, and local laws, regulations, orders, permits, ordinances or other requirements, which exist now or as may exist after the Lease Date, concerning protection of human health, safety and the environment, all as may be amended from time to time, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601 et seq. (“CERCLA”) and the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq. (“RCRA”) and the Toxic Substances Control Act, (15 U.S.C. 2601 et seq. (“TSCA”).
“Event of Default”: Defined in Section 19(a).
“Expiration Date”: Defined in Section 1(f).
“Extension Option”: Defined in Section 1(a) of EXHIBIT B.
“Extension Option Exercise Notice”: Defined in Section 1(b) of EXHIBIT B.
“Extension Option Period”: Defined in Section 1(a) of EXHIBIT B.
“Exterior Area”: Defined in Section 1(h).
“Floor Rate Base Rent”: Defined in Section 1(d) of EXHIBIT B.
“Force Majeure Delay”: Delay in construction of Landlord’s Work (or other work to be performed by Landlord) which is not within the direct control of Landlord; Force Majeure Delay includes without limitation delays resulting from the failure of permits to be issued in timely manner, strikes or other labor troubles, governmental restrictions and limitations, war, pandemic or other national emergency, non-availability or unexpected delay in delivery of materials or supplies, delay in transportation, accidents, floods, fire, damage or other casualties, weather, or delays by utility companies in bringing utility lines to the Premises.
“Fractional Month”: A partial month, not consisting of a full calendar month.
“Governmental Requirements”: Any restrictions of public record and all present and future laws, regulations, orders, permits, ordinances, rules and other requirements of federal, state, municipal and local governments and governmental authorities. Without limiting the foregoing, Tenant shall not use the Premises, the Buildings, or the Land, or any portion thereof (a) in violation of Title 21 USC Controlled Substances Act Section 856(a) or any similar or successor law now or hereinafter in effect, (b) for the growing, manufacturing, administration, distribution (including without limitation, any retail or wholesale sales or delivery), use or consumption of any cannabis, marijuana or cannabinoid product, compound or produce, or (c) for the operation of a medical marijuana or cannabis product facility or dispensary, in each case regardless of the legality of the same pursuant to any applicable state laws or regulations.
“Hazardous Substances”: Any hazardous or toxic substance, material, chemical, pollutant, contaminant or waste, as those terms are defined by any applicable Environmental Law, and any solid wastes, polychlorinated biphenyls, urea formaldehyde, asbestos, radioactive materials, radon, explosives, petroleum products and oil.
“Holdover”: Defined in Section 27(b).
“HVAC System”: A heating, ventilation and air conditioning system.
“Improvements”: All improvements at the Premises, including, without limitation, the Buildings, systems (including without limitation the HVAC System and fire protection system), parking facilities, driveways, exterior lighting and irrigation facilities, Tenant Alterations, and all improvements which are a part of the Landlord’s Work.
“Insured Issue”: A Landlord Insured Issue or a Tenant Insured Issue. Because Tenant’s insurance is primary and non-contributory, to the extent any cost or liability is insured against by both Landlord’s insurance and Tenant’s insurance, it shall be deemed to be a Tenant Insured Issue and not a Landlord Insured Issue.
“Landlord”: Defined in the preamble.
“Landlord’s Affiliates”: The employees, agents and contractors of Landlord, or any person or entity which, directly or indirectly, controls, is controlled by, or is under common control with, Landlord or any person who controls Landlord.
“Landlord’s Appraiser”: Defined in Section 1(c)(iii)(B) of EXHIBIT B.
“Landlord Insurance”: Defined in Section 9(e).
“Landlord Insured Issue”: Cost or liability that is insured against by insurance carried by (or required by the terms of this Lease to be carried by) Landlord.
“Late Payment Administrative Fee”: Defined in Section 28(a).
“Late Payment Interest Rate”: Defined in Section 28(b).
“Lease”: Defined in the preamble.
“Lease Commencement Date”: Defined in Section 1(e).
“Lease Date”: Defined in the preamble.
“Lease Year”: Defined in Section 3(b).
“Legal Costs”: All reasonable and actual attorneys’ fees, paralegal fees, disbursements and mediation, arbitration and court costs and expenses, including litigation through all trial and appellate levels.
“Lender”: The holder of any Mortgage.
“Maintain”: Defined in Section 7(a).
“Maintenance”: Defined in Section 7(a).
“Market Area”: Defined in Special Stipulation Number 1 of EXHIBIT B.
“Market Rate Determination Notice”: Defined in Section 1(c)(ii) of EXHIBIT B.
“Market Rate Determination Acceptance”: Defined in Section 1(c)(iii) of EXHIBIT B.
“Market Rate Determination Rejection”: Defined in Section 1(c)(iii) of EXHIBIT B.
“Market Rate Determination Response”: Defined in Section 1(c)(iii) of EXHIBIT B.
“Market Rate Determination Response Period”: Defined in Section 1(c)(iii) of EXHIBIT B.
“Mortgage”: Each and every deed to secure debt, mortgage, deed of trust or other comparable instrument which may now or hereafter affect or encumber the title of Landlord to the Premises, and any amendments, modifications, extensions or renewals thereof.
“Net Condemnation Proceeds”: Defined in Section 18(c)(iii).
“Net Insurance Proceeds”: Defined in Section 17(b).
“Non-Approval Tenant Alterations”: Defined in Section 16(a)(ii).
“Notice of Right to Terminate”: Defined in Section 17.
“Operating Expenses”: Defined in Section 5(a).
“Original Appraiser Determination”: Defined in Section 1(c)(iii)(D) of EXHIBIT B.
“Permitted Holdover Period”: Defined in Section 27(c)(ii).
“Permitted Use”: Defined in Section 1(j).
“Personal Property”: Any merchandise, inventory or other personal property owned by Tenant, Tenant’s Affiliates or any other party.
“Preliminary Term”: Defined in Section 3(a).
“Premises”: Defined in Section 1(a).
“Prevailing Market Rate”: Defined in Section 1(c)(i)(A) of EXHIBIT B.
“Preventative Maintenance Contracts”: Defined in Section 7(b)(i).
“Preventative Maintenance Items”: Defined in Section 7(b).
“Primary Term”: Defined in Section 3(a).
“Prior Lease”: Defined in Section 2(a).
“Property Management Fee”: Defined in Section 4.
“Qualified Appraiser”: Defined in Section 1(c)(i)(A) of EXHIBIT B.
“Reasonable SNDA”: Defined in Section 21(a)(i).
“Remaining Term”: Defined in Section 19(b)(ii)(A)(i).
“Rent”: The aggregate amount of Base Rent and Additional Rent.
“Rules and Regulations”: The rules and regulations set forth on EXHIBIT C, as well as other rules and regulations reasonably promulgated by Landlord from time to time, so long as such other rules and regulations do not materially and adversely affect the rights of Tenant hereunder.
“Security Deposit”: Defined in Section 1(i).
“Specially Designated National or Blocked Person”: A person or entity designated as a Specially Designated National or Blocked Person pursuant to any law, order, rule, or regulation that is enforced or administered by the United States Government or any of its departments or agencies.
“Taxes”: Defined in Section 5(b).
“Tenant”: Defined in the preamble.
“Tenant Delay”: Any delay in the performance of any work to be performed by Landlord hereunder resulting from: (a) Governmental Requirements applicable to Tenant due to (i) Tenant’s trade fixtures or equipment, (ii) Tenant-Initiated Improvements, (iii) Tenant’s specific use of the Premises, or (iv) the particular products to be located at the Premises or the manner of storage or use of such products, (b) Tenant’s failure to timely approve plans and specifications, or (c) change order or change order requests.
“Tenant’s Affiliates”: The subsidiaries and affiliates of Tenant and all agents, contractors, employees, vendors, customers, licensees or invitees of Tenant and such subsidiaries and affiliates.
“Tenant’s Appraiser”: Defined in Section 1(c)(iii)(A) of EXHIBIT B.
“Tenant Alteration”: Defined in Section 16(a)(i).
“Tenant Alteration Monitoring Charge”: Defined in Section 16(a)(i).
“Tenant Insured Issue”: Cost or liability that is insured against by insurance carried by (or required by the terms of this Lease to be carried by) Tenant, assuming a deductible of $0.00 notwithstanding the right of Tenant to maintain a higher deductible pursuant to the terms of the Lease.
“Tenant-Initiated Improvements”: Improvements constructed or installed by or at the instance of Tenant or any Tenant’s Affiliates (including any Improvements which are the product of a Tenant Alteration), but specifically excluding any Improvements constructed or installed as part of Landlord’s Work.
“Term”: Defined in Section 3(a).
“Third Appraiser”: Defined in Section 1(c)(iii)(D) of EXHIBIT B.
“Transfer”: (a) Any assignment, mortgage, pledge, encumbering, granting of a license to occupy, subleasing or other transfer of this Lease, or any interest hereunder; or (b) any Change in Control.
“Treasury Yield”: The rate of return in percent per annum of Treasury Constant Maturities for the length of time specified (or as most recently corresponding) as published in document H.15(519) (presently published by the Board of Governors of the U.S. Federal Reserve System titled “Federal Reserve Statistical Release”) for the calendar week immediately preceding the calendar week in which the termination occurs. If the publishing of the rate of return of Treasury Constant Maturities is ever discontinued, then the Treasury Yield will be based upon the index, in Landlord’s reasonable determination, most nearly corresponds to the rate of return of Treasury Constant Maturities.
“Utility” or “Utilities”: Any or all natural gas, fuel, electricity, telephone, steam, water, sewer and any and all other utility services provided to the Premises by any public or private utility supplier.
EXHIBIT A-1
Premises
A-1
EXHIBIT A-2
Description of the Land
All that tract or parcel of land lying and being in land lot 253 of the 7th district, City of Sugar Hill, Gwinnett County, Georgia, more particularly described as follows:
To find the True Point of Beginning, commence at a point on the existing centerline of Peachtree Industrial Boulevard 2505.00’ N.E. along said centerline from its intersection with the centerline of Tench Road; thence S31°18’00“E, 72.72’ to the True Point of Beginning on the southeast 200’ right of way of Peachtree Industrial Boulevard; thence along said right of way N37°56’59“E 399.45’ to an iron pin set; thence leaving right of way S31°17’39“E 700.33’ to a point; thence S37°59’04“W 399.28’ to an r-bar found; thence N31°18’00“W 700.04’ to the point of beginning on the southeast right of way of Peachtree Industrial Boulevard.
Above described tract contains 6.0036 acres as shown on plat by Norton & Associates Land Surveying dated 4-17-96 for Mason I. Lowance, Jr. Etal, and is delineated as Tract “B”.
A-2
EXHIBIT B
Special Stipulations
The Special Stipulations set forth herein are hereby incorporated into the body of the Lease to which these Special Stipulations are attached, and to the extent of any conflict between these Special Stipulations and the preceding language, these Special Stipulations will govern and control.
1. Options to Extend Term.
(a) Grant of Extension Options. Landlord grants to Tenant three (3) options to extend the Term for a period of five (5) years each time (the “Extension Options”). If applicable, the corresponding period by which the Term is extended in each instance is referred to as the “Extension Option Period”.
(b) Exercise of Extension Option. To exercise an Extension Option, Tenant must deliver written notice to Landlord at least 6 months prior to (but not more than 12 months prior to) the then existing Expiration Date (the “Extension Option Exercise Notice”).
(c) Determination of Base Rent.
i.) Definitions:
A. “Prevailing Market Rate” means the prevailing market rate applicable to the Extension Option Period for base minimum rental calculated on a per square foot basis for leases covering premises comparable to the Premises (as adjusted for any variances between such premises and the Premises, including without limitation age, location, setting, type of building, HVAC, parking, irrigation systems, roof status and market tenant improvement allowances) located in the relevant market area.
B. “Qualified Appraiser” means an appraiser that (y) is a member of the American Institute of Real Estate Appraisers or similar professional organization and (z) has at least ten (10) years prior experience in commercial leasing in the relevant market area.
ii.) Landlord Determination of Prevailing Market Rate. Within 15 days after delivery of the Extension Option Exercise Notice, Landlord will deliver a notice to Tenant setting forth Landlord’s determination of the Prevailing Market Rate (the “Market Rate Determination Notice”).
iii.) Tenant Response. Within 15 days following delivery of the Market Rate Determination Notice (the “Market Rate Determination Response Period”), Tenant will deliver written notice to Landlord that it either (1) accepts Landlord’s determination of the Prevailing Market Rate as set forth in the Market Rate Determination Notice (a “Market Rate Determination Acceptance”) or (2) rejects Landlord’s determination of the Prevailing Market Rate and thereby elects to engage the Appraisal Process as defined below (a “Market Rate Determination Rejection”) (in either event, Tenant’s response is referred to as the “Market Rate Determination Response”). Failure to timely deliver the Market Rate Determination Response will be deemed to be a Market Rate Determination Rejection. If Tenant delivers a Market Rate Determination Acceptance within the Market Rate Determination Response Period, Landlord’s determination of the Prevailing Market Rate set forth in the Market Rate Determination Notice will be deemed to be the Prevailing Market Rate for purposes of subsection (d) below. If Tenant delivers (or is deemed to have delivered) a Market Rate Determination Rejection within the Market Rate Determination Period, then the Prevailing Market Rate will be determined through the following process (the “Appraisal Process”):
A. Tenant’s Selection of Appraiser. If Tenant delivers, or is deemed to have delivered, a Market Rate Determination Rejection, Tenant must include a designation by Tenant of a Qualified Appraiser to act on Tenant’s behalf in the Appraisal Process (“Tenant’s Appraiser”).
B-1
B. Landlord’s Selection of an Appraiser. Within 20 days after delivery (or deemed delivery) by Tenant of the Market Rate Determination Rejection, Landlord, by written notice to Tenant, shall designate a Qualified Appraiser, who shall act on Landlord’s behalf in the Appraisal Process (“Landlord’s Appraiser”).
C. Appraiser Determination of Prevailing Market Rate. Each of Landlord and Tenant will cause its Qualified Appraiser to work in good faith with the other Qualified Appraiser to issue a joint written determination of the Prevailing Market Rate within 20 days after the date on which Landlord provided notice to Tenant designating Landlord’s Appraiser (the “Appraiser’s Determination Period”). If the two (2) Qualified Appraisers do issue the joint determination within the Appraiser’s Determination Period, then such determination shall be final, conclusive and binding as the Prevailing Market Rate for purposes of subsection (d) below.
D. Third Appraiser. If the two (2) Qualified Appraisers are unable to agree upon a joint written determination of the Prevailing Market Rate within the Appraiser’s Determination Period, then each Qualified Appraiser will issue its own determination of the Prevailing Market Rate (each being that Qualified Appraiser’s “Original Appraiser Determination”), and the two (2) Qualified Appraisers shall jointly select a 3rd Qualified Appraiser (the “Third Appraiser”) to resolve the discrepancy by selecting, without change, the Original Appraisal Determination that most closely reflects the Third Appraiser’s own determination of the Prevailing Market Rate. The Prevailing Market Rate set forth in the Original Appraisal Determination selected by the Third Appraiser shall be final, conclusive and binding as the Prevailing Market Rate for purposes of subsection (d) below.
(d) Determination of Option Extension Base Rent. Subject to the Floor Requirement described in the following sentence, Base Rent for the Extension Option Period shall be calculated using the Prevailing Market Rate. Notwithstanding anything to the contrary contained herein, in the event annual Base Rent for the first year of the Extension Option Period as calculated using the Prevailing Market Rate is less than 103% of the annual Base Rent to be in effect immediately prior to the commencement of such Extension Option Period (“Floor Rate Base Rent”), the annual Base Rent during the first year of the Extension Option Period shall equal the Floor Rate Base Rent, and annual Base Rent will increase annually during the Extension Option Period by three percent (3%).
(e) Costs of Appraisers. Landlord shall bear the fee and expenses of Landlord’s Appraiser; Tenant shall bear the fee and expenses of Tenant’s Appraiser; and Landlord and Tenant shall share equally the fee and expenses of the Third Appraiser, if any. Notwithstanding the foregoing, if the Prevailing Market Rate as ultimately established pursuant to the Appraisal Process is greater than Landlord’s determination of the Prevailing Market Rate set forth in its Market Rate Determination Notice, then Tenant shall bear the fee and expenses of all of the Qualified Appraisers. The obligation of the parties hereto to pay any fees and expenses hereunder shall survive termination of the Lease.
(f) Terms and Conditions. If Tenant exercises the Extension Option, the Expiration Date will be deemed revised to be the last day of the Extension Option Period, and leasing of the Premises by Tenant for the Extension Option Period shall be subject to all of the same terms and conditions applicable during the Primary Term, except that:
i.) Base Rent. Base Rent for the Extension Option Period will be determined pursuant to subsection (d) above, and
ii.) Concessions. None of the improvement allowances or expansion rights applicable to the leasing of the Premises during the Primary Term shall be applicable to the Extension Option Period.
(g) Landlord’s Right to Reject. Notwithstanding the foregoing, Landlord shall have the right to reject Tenant’s exercise of the Extension Option if, at the time Tenant delivers the Extension Option Exercise Notice to Landlord, an Event of Default has occurred, and the underlying Default Condition has not been cured to Landlord’s reasonable satisfaction.
(h) Amendment to Lease. At Landlord’s option, Landlord and Tenant shall enter into an amendment to this Lease to evidence Tenant’s exercise of an Extension Option. If this Lease is guaranteed, Landlord shall have the right to require that Tenant deliver to Landlord a reaffirmation of the guaranty in which the guarantor acknowledges Tenant’s exercise of its Extension Option and reaffirms that the guaranty is in full force and effect and applies to said extension of the Term.
B-2
EXHIBIT C
Rules and Regulations
These Rules and Regulations have been adopted by Landlord in order to ensure the safety, care and cleanliness of the Premises and the preservation of order therein.
1. Sidewalks and Roof. The sidewalks will not be obstructed or used for any purpose other than ingress and egress. No tenant and no employees of any tenant will go upon the roof of either Building without the consent of Landlord which shall not be unreasonably withheld, conditioned, or delayed.
2. Awnings. No awnings or other projections will be attached to the outside walls of either Building without the prior written consent of Landlord which shall not be unreasonably withheld, conditioned, or delayed.
3. Plumbing. The plumbing fixtures will not be used for any purpose other than those for which they were constructed, and no sweepings, rubbish, rags or other substances, including Hazardous Substances, will be thrown therein.
4. Odors. No tenant will cause or permit any objectionable or offensive odors to be emitted from the Premises. Smoking is prohibited within the Buildings and in outdoor areas located within 25 feet of entry-ways, outdoor intakes and operable windows.
5. Prohibited Uses. The Premises will not be used for (a) an auction, “fire sale”, “liquidation sale”, “going out of business sale” or any similar such sale or activity or (b) lodging or sleeping.
6. Disturbances. No tenant will make, or permit to be made, any unseemly or disturbing noises, sounds or vibrations or disturb or interfere with tenants of this or neighboring buildings or premises or those having business with them.
7. Obligations upon Termination of Tenancy. Each tenant must, upon the termination of its tenancy, return to the Landlord all keys of stores, offices, and rooms, either furnished to, or otherwise procured by, such tenant, and in the event of the loss of any keys so furnished, such tenant will pay to the Landlord the cost of replacing the same or of changing the lock or locks opened by such lost key if Landlord deems it necessary to make such change.
8. Canvassing. Canvassing, soliciting and peddling are prohibited and each tenant will cooperate to prevent such activity.
9. Wiring. Landlord will direct electricians as to where and how telephone, telegraph, computer and other wires and cables (collectively, “Wires”) are to be introduced. No boring or cutting for Wires or stringing of Wires will be allowed without written consent of Landlord. The location of telephones, call boxes and other office equipment affixed to the Premises will be subject to the prior written approval of Landlord.
10. Parking.
(a) Types of Vehicles. Parking spaces associated with each Building are intended for the exclusive use of passenger automobiles. Except for intermittent deliveries, no vehicles other than passenger automobiles may be parked in a parking space (other than spaces expressly designated for such purpose by Landlord for truck parking) without the express written permission of Landlord which shall not be unreasonably withheld, conditioned, or delayed.
(b) Truck and Trailer Parking. Trucks may be parked only in truck dock positions and in other paved areas expressly designated for such purpose by Landlord. Trailers may be parked only in paved areas expressly designated for such purpose by Landlord. Neither trucks nor trailers may be parked or staged in the following:
i. Areas adjacent to truck docks, serving any portion of either Building, which are intended by Landlord for truck maneuvering; or
C-1
ii. Any driveway, drive aisle or other paved area which provides ingress or egress for cars or trucks to or from any portion of either Building or any street adjoining either Building.
(c) Use of Truck Court. The truck court is designed for vehicle traffic and maneuvering. Tenants may only use that portion of the truck court for truck and trailer parking or staging that is contiguous to the Premises (i.e. the truck court area that would be included in the area if the sidewalls of the Premises were extended into the truck court). Trucks, trailers, and other vehicles parked, staged or otherwise brought onto the Premises are subject to the provisions of Section 15 of this Lease.
11. Storage. No tenant will use any area within the Premises for storage purposes other than the interior of the Buildings, unless otherwise expressly consented to in writing by Landlord.
12. Floor Marking.
(a) General. Tenant will have the right to stripe or mark the floors of the Buildings only in compliance with this rule.
(b) Recommended Tape. Landlord strongly encourages Tenant to stripe or otherwise mark the floors of the Buildings only with 3M floor striping tape.
13. Tenant Racking. If Tenant installs any racking, equipment or machinery in either Building which requires installation of bolts in the floor of such Building, Tenant must, by the Expiration Date, at the expense of Tenant, remove all such bolts in accordance with this rule. All bolts will be cut or ground so that the top of the remaining portion of the bolt is at least one-quarter inch below the surface of the floor. All holes created by such removal of bolts must be filled with 100% epoxy, which meets the standards set by the American Concrete Institute and which is color-matched to the floor being filled.
14. No Open Dumpsters. No “open” dumpsters are permitted. All dumpsters will have appropriate doors and top covers to prevent trash and debris from escaping the dumpster.
C-2
Exhibit 99.1
Cardinal Infrastructure Group (CDNL) Announces the Acquisition of A. L. Grading Contractors, Selected Preliminary Estimated Operating Results for 2025, and Updated Consolidated Guidance for 2026
Raleigh, North Carolina - February 18, 2026 - Cardinal Infrastructure Group, Inc., (NASDAQ: CDNL) (“Cardinal” or “the Company”) announced today that it has acquired Sugar Hill, Georgia-based A.L. Grading Contractors (“ALGC”). A fourth-generation, high-growth market leader, ALGC provides comprehensive site development solutions, including grading, underground utilities, erosion control, and clearing, supporting large-scale commercial, industrial, and residential construction in Georgia and South Carolina.
The transaction is the first expansion in the Southeast for Cardinal outside the Carolinas and signifies another step in Cardinal’s growth strategy.
Strategic Highlights
| ● | ALGC holds a leading position in a high-growth, mission-critical market in Georgia. |
| o | Expands Cardinal’s footprint into Georgia, a market aligned with broader Southeast trends that support development investment across various end markets. |
| o | Expected to drive growth through strong alignment with blue-chip customers. |
| ● | The transaction is immediately accretive. |
| o | ALGC will strengthen the company’s margin profile, as reflected in Cardinal’s revised 2026 consolidated Adjusted EBITDA margin guidance. |
| o | Evidenced by ALGC’s compelling financial profile, including unaudited annual revenue of $160 million and a 26.3% Adjusted EBITDA margin for the trailing 12 months ended September 30, 20251. |
| ● | ALGC is well-positioned to drive margin expansion and valuation uplift through disciplined execution and vertical integration initiatives. |
| o | Integration expansion enables faster project execution, schedule leadership, and margin enhancement. |
| o | Deployment of specialized services from the Carolinas into Georgia is expected to compress schedules and expand margins. |
| ● | Combining the companies creates compelling economics. |
| o | Total consideration of $245.5 million, comprised of an $80 million extension of Cardinal's existing credit facility, $116.9 million in issued equity2, and $48.6 million in cash, with the equity consideration subject to a six-month post-closing lockup. |
| o | Conservative pro forma net tangible leverage of 1.27x, below maximum target of 2.5x. |
| o | Valuation multiple is squarely within Cardinal’s target range. |
| 1 | Unaudited results for the trailing 12 months ended September 30, 2025. Adjusted EBITDA margin is a non-GAAP financial measure. See Reconciliation of Net Income Attributable to ALGC to Adjusted EBITDA and non-GAAP measures below. |
| 2 | Composed of 4,186,062 limited liability company units of Cardinal Civil Contracting Holdings LLC and an equal number of shares of Cardinal Class B common stock, and 345,666 of Cardinal Class A common stock. |
| ● | ALGC has a highly experienced leadership team and strong cultural alignment with Cardinal, and they’re collectively committed to building the Southeast’s leading site development contractor. |
| o | ALGC’s President Lee Wood will continue his strategic leadership responsibilities and is expected to join Cardinal’s board of directors. |
| o | ALGC’s Vice President Benji Wood will assume the role of chief operating officer for Cardinal. |
| o | ALGC’s CFO Rick Leeson will continue to serve in his capacity. |
Selected Preliminary Estimated 2025 Operating Results for Cardinal Infrastructure Group3
Cardinal also announced today the following selected preliminary estimated 2025 operating results:
| ● | Full-year revenue in the range of $452.3 million - $459.7 million, representing approximately 45% growth vs. 2024 at the midpoint. |
| ● | Full-year Adjusted EBITDA margin in the range of 17.8% - 18.0%.4 |
| ● | Record backlog of $678.3 million - $685.7 million, representing approximately 33% growth vs. 2024 at the midpoint, reflecting the strength and durability of demand across Cardinal’s markets. |
2026 Consolidated Guidance/Outlook5
Cardinal also announced today the following guidance for the year ending December 31, 2026:
| ● | Revenue in the range of $664.9 million to $678.3 million. |
| ● | Adjusted EBITDA margin4 of at least 20%. |
| 3 | The preliminary estimated financial results for the year ended December 31, 2025, are based on currently available information and reflect Cardinal’s current estimates and assessments.Cardinal has not completed its full year financial closing procedures and controls and governance procedures, and its independent registered public accounting firm has not completed any audit, review or set of procedures with respect to the preliminary estimated financial results and has not expressed any opinion or any other form of assurance with respect thereto. Actual reported results may differ materially from the preliminary results presented as a result of the completion of Cardinal’s financial closing procedures and controls. These preliminary estimated financial results should not be viewed as a substitute for Cardinal’s full audited financial statements prepared in accordance with GAAP. Accordingly, you should not place undue reliance on these preliminary estimated financial results. |
| 4 | Adjusted EBITDA margin is a non-GAAP financial measure. Cardinal is unable provide the most directly comparable GAAP financial measure or a quantitative reconciliation thereto without unreasonable effort. See “Non-GAAP Measures” below. |
| 5 | Guidance reflects an estimated 10.5-month contribution from ALGC. |
2
Management Commentary
"We are thrilled to welcome the ALGC team into the Cardinal family as we complete this strategic acquisition," said Jeremy Spivey, CEO of Cardinal Infrastructure Group. "Their exceptional culture and leadership align seamlessly with our values, positioning us for enhanced collaboration and innovation in site development. We look forward to executing our growth strategy through vertical integration and expanding our self-performed service offerings to the Georgia market, exemplifying our commitment to robust expansion and solidifying our position as the Southeast's premier site development platform."
About Lee Wood, Jr.
Lee Wood served as president of ALGC and has built a reputation for instituting strategic growth, operational excellence, and strong relationship-driven leadership. Under his direction, ALGC grew into a full-service site work contractor and now employs more than 300 professionals. He will continue his strategic oversight role and is expected to join Cardinal’s board of directors.
About Benji Wood
Benjamin (Benji) Wood served as vice president of ALGC, overseeing company performance, project execution, client relationships, and strategic growth initiatives. He’s known for combining innovation in operations, efficiency, and field expertise to deliver high-quality site work and infrastructure solutions. After the close of the deal, he will become chief operating officer of Cardinal Infrastructure Group.
About Cardinal
Cardinal Infrastructure Group delivers its suite of comprehensive infrastructure services that support the planning, preparation, installation, and development of residential, commercial, industrial, municipal, and state infrastructure projects through wholly owned, market leading subsidiaries. Cardinal’s operations leverage in-house, highly skilled teams and equipment fleets to deliver wet utility installations (water, sewer, and stormwater systems), as well as grading, site clearing, erosion control, drilling and blasting, paving, and other related site services.
3
Important Information for Investors and Stockholders
Non-GAAP Measures
This press release includes a discussion of Adjusted EBITDA and Adjusted EBITDA margin, which are “non-GAAP” financial measures as defined in Regulation G under the Securities Exchange Act of 1934. Cardinal and ALGC report financial results in accordance with U.S. generally accepted accounting principles (“GAAP”) but believe that certain non-GAAP financial measures provide useful supplemental information to investors regarding the underlying business trends and performance of their respective ongoing operations and is useful for period-over-period comparisons of those operations. Non-GAAP measures should be used in addition to, and not in lieu of, results prepared in conformity with GAAP.
Cardinal is not able to provide the most directly comparable GAAP financial measure, or a quantitative reconciliation thereto, for the forward-looking guidance of estimated Adjusted EBITDA Margin without unreasonable effort due to the inherent uncertainty and difficulty in predicting the timing and amount of certain items, including but not limited to amortization of intangible assets and depreciation, which may be significant and difficult to project with a reasonable degree of accuracy, as the allocation of purchase price to intangible assets and property and equipment has not yet been performed. Because these adjustments are inherently variable and uncertain and depend on various factors that are beyond Cardinal’s control, Cardinal is also unable to predict their probable significance. The variability of these items could have an unpredictable, and potentially significant, impact on Cardinal’s future GAAP financial results.
Reconciliation of Net Income Attributable to ALGC to Adjusted EBITDA
| $ in Thousands Unaudited | Trailing 12 Months | |||
| Revenue | $ | 159,851 | ||
| Net income | 33,347 | |||
| Interest expense, net | 46 | |||
| Income tax expense | 1,489 | |||
| Depreciation and amortization expense | 7,138 | |||
| EBITDA | $ | 42,020 | ||
| Other | - | |||
| Adjusted EBITDA | $ | 42,020 | ||
| Net Income Margin | 20.9 | % | ||
| EBITDA Margin | 26.3 | % | ||
| Adjusted EBITDA Margin | 26.3 | % | ||
4
Cautionary Statement Regarding Forward-Looking Statements
This press release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 concerning, among other things, Cardinal Infrastructure Group, Inc.’s (“Cardinal”) acquisition (the “ALGC Acquisition”) of A.L. Grading Contractors, Inc., (“ALGC”) and the expected benefits of the ALGC Acquisition. Statements that are predictive in nature, that depend upon or refer to future events or conditions or that include the words “may,” “could,” “plan,” “project,” “budget,” “predict,” “pursue,” “target,” “seek,” “objective,” “believe,” “expect,” “anticipate,” “intend,” “estimate,” and other expressions that are predictions of or indicate future events and trends and that do not relate to historical matters identify forward-looking statements. These statements involve risks and uncertainties and Cardinal’s actual results could differ materially from the results expressed or implied by such forward-looking statements. The potential risks, uncertainties and other factors that could cause actual results to differ from those expressed by the forward-looking statements in this press release include, but are not limited to, the possibility that any of the anticipated benefits of the ALGC acquisition will not be realized to the extent or when expected; the risk that integration of ALGC’s operations with those of Cardinal will be materially delayed or will be more costly or difficult than expected; the challenges of integrating and retaining key employees; the effect of the announcement of the ALGC acquisition on ALGC’s and Cardinal’s business relationships, operating results and business generally; difficulty in sustaining rapid revenue growth, which may place significant demands on Cardinal’s administrative, operational and financial resources, fluctuations in Cardinal’s revenue and the concentration of Cardinal’s business in the Southeastern United States. Cardinal has based these forward-looking statements largely on its current expectations and projections regarding future events and trends that it believes may affect its business, financial condition and results of operations. The outcome of the events described in these forward-looking statements is subject to risks, uncertainties and other factors described in the section entitled “Risk Factors” in Cardinal’s Registration Statement on Form S-1 (333-292034) (the “Registration Statement”), and elsewhere in the Registration Statement. Accordingly, you should not rely upon forward-looking statements as predictions of future events. Cardinal cannot assure you that the results, events and circumstances reflected in the forward-looking statements will be achieved or occur, and actual results, events or circumstances could differ materially from those projected in the forward-looking statements. Although forward-looking statements reflect the good faith beliefs of Cardinal’s management at the time they are made, forward-looking statements involve known and unknown risks, uncertainties and other factors which may cause actual results, performance or achievements to differ materially from anticipated future results, performance or achievements expressed or implied by such forward-looking statements. Cardinal undertakes no obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events, changed circumstances or otherwise, unless required by law. These cautionary statements qualify all forward-looking statements attributable to Cardinal or persons acting on its behalf.
Company Contact:
Cardinal Infrastructure Group, Inc.
Mike Rowe, CFO
919-268-6386
5
Exhibit 99.2
ACCELERATING GROWTH: ACQUISITION OF A.L. GRADING CONTRACTORS, INC. AND INTERIM FINANCIAL UPDATE NASDAQ: CDNL
DISCLAIMER: FORWARD LOOKING STATEMENTS 2 This presentation contains forward - looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 concerning, among other things, Cardinal Infrastructure Group, Inc . ’s (“Cardinal”) acquisition (the “ALGC Acquisition”) of A . L . Grading Contractors, Inc . (“ALGC”) and the expected benefits of the ALGC Acquisition . Statements that are predictive in nature, that depend upon or refer to future events or conditions or that include the words “may,” “could,” “plan,” “project,” “budget,” “predict,” “pursue,” “target,” “seek,” “objective,” “believe,” “expect,” “anticipate,” “intend,” “estimate,” and other expressions that are predictions of or indicate future events and trends and that do not relate to historical matters identify forward - looking statements . These statements involve risks and uncertainties and Cardinal’s Company’s actual results could differ materially from the results expressed or implied by such forward - looking statements . The potential risks, uncertainties and other factors that could cause actual results to differ from those expressed by the forward - looking statements in this presentation include, but are not limited to, the possibility that any of the anticipated benefits of the ALGC Acquisition will not be realized to the extent or when expected ; the risk that integration of ALGC’s operations with those of Cardinal will be materially delayed or will be more costly or difficult than expected ; the challenges of integrating and retaining key employees ; the effect of the announcement of the ALGC Acquisition on ALGC’s and Cardinal’s business relationships, operating results and business generally ; difficulty in sustaining rapid revenue growth, which may place significant demands on Cardinal’s administrative, operational and financial resources, fluctuations in Cardinal’s revenue and the concentration of Cardinal’s business in the Southeastern United States . Cardinal has based these forward - looking statements largely on its current expectations and projections regarding future events and trends that it believes may affect its business, financial condition and results of operations . The outcome of the events described in these forward - looking statements is subject to risks, uncertainties and other factors described in the section entitled “Risk Factors” in Cardinal’s Registration Statement on Form S - 1 ( 333 - 292034 ) (the “Registration Statement”), and elsewhere in the Registration Statement . Accordingly, you should not rely upon forward - looking statements as predictions of future events . Cardinal cannot assure you that the results, events and circumstances reflected in the forward - looking statements will be achieved or occur, and actual results, events or circumstances could differ materially from those projected in the forward - looking statements . Although forward - looking statements reflect the good faith beliefs of Cardinal’s management at the time they are made, forward - looking statements involve known and unknown risks, uncertainties and other factors which may cause actual results, performance or achievements to differ materially from anticipated future results, performance or achievements expressed or implied by such forward - looking statements . Cardinal undertakes no obligation to publicly update or revise any forward - looking statement, whether as a result of new information, future events, changed circumstances or otherwise, unless required by law . These cautionary statements qualify all forward - looking statements attributable to Cardinal or persons acting on its behalf .
DISCLAIMER: NON - GAAP MEASURES 3 This presentation includes a discussion of Adjusted EBITDA and Adjusted EBITDA Margin which are “Non - GAAP” financial measures as defined in Regulation G under the Securities Exchange Act of 1934 . Cardinal and ALGC report financial results in accordance with U . S . generally accepted accounting principles (“GAAP”) but believe that certain Non - GAAP financial measures provide useful supplemental information to investors regarding the underlying business trends and performance of their respective ongoing operations and is useful for period - over - period comparisons of those operations . Non - GAAP measures should be used in addition to, and not in lieu of, results prepared in conformity with GAAP . Cardinal is not able to provide the most directly comparable GAAP financial measure, or a quantitative reconciliation thereto, for the forward - looking guidance of estimated Adjusted EBITDA Margin without unreasonable effort due to the inherent uncertainty and difficulty in predicting the timing and amount of certain items, including but not limited to amortization of intangible assets and depreciation, which may be significant and difficult to project with a reasonable degree of accuracy, as the allocation of purchase price to intangible assets and property and equipment has not yet been performed . Because these adjustments are inherently variable and uncertain and depend on various factors that are beyond Cardinal’s control, Cardinal is also unable to predict their probable significance . The variability of these items could have an unpredictable, and potentially significant, impact on Cardinal’s future GAAP financial results .
ACCELERATING OUR SOUTHEAST EXPANSION 4 Annual Revenue 1 ALGC Financial Profile $160M 26.3% Adj EBITDA Margin 1 $151M Project Backlog 2 17.2% 10 - Year Revenue CAGR 1 A Fourth - Generation Site Development Leader Serving Complex Commercial, Industrial, and Residential Projects with Expansion Runway Across the High - Growth Southeast Market 1 Unaudited results for the trailing twelve months ended September 30, 2025. Adjusted EBITDA Margin is a non - GAAP financial measur e. See Appendix A - Reconciliation of Net Income Attributable to ALGC to Adjusted EBITDA and slide 3 titled “Disclaimer: Non - GAAP Measures”. 2 Unaudited estimate as of December 31, 2025. CDNL Headquarters ALGC Headquarters
STRATEGIC HIGHLIGHTS 5 LEADING POSITION IN A HIGH GROWTH MARKET Provides an expansion opportunity for Cardinal into Georgia, which follows broader Southeast 1 trends supporting development investment, including ~2 î U.S. population growth 2 and 13.4% manufacturing job growth in 2025 3 . MARGIN ACCRETIVE Transaction is expected to be immediately accretive, shaping a higher - margin enterprise, as reflected in our consolidated 2026 Adjusted EBITDA Margin guidance at least 20% 4 . INTEGRATION OPPORTUNITIES Positioned to drive margin expansion and improved valuation through disciplined execution and vertical integration opportunities. BEST - IN - CLASS LEADERSHIP Deep industry expertise and strong cultural alignment, with management ownership in the consolidated company, focused on building the Southeast’s premier site - development contractor. ATTRACTIVE TRANSACTION MULTIPLE Transaction multiple in - line with Management expectations at a stock + cash transaction value of $245.5M, with the equity consideration subject to a six - month post - closing lockup. 1 Southeast trends referenced defined as AL, FL, GA, NC, SC and TN. 2 Source: U.S. Census Buereau 3 Source: Construct Connect 4 See 2026 Consolidated Guidance on Slide 7. Guidance reflects an estimated 10.5 - month contribution from ALGC. Adjusted EBITDA Mar gin is a non - GAAP financial measure. Cardinal is unable provide the most directly comparable GAAP financial measure or a quantitative reconciliation thereto without unreasonable effort. See sli de 3 titled “Disclaimer: Non - GAAP Measures”.
TRANSACTION OVERVIEW 6 Purchase Consideration Cash + Term Loan Cardinal Equity 1 Total Consideration $128.6M $116.9M $245.5M Adj. EBITDA Multiple 2 5.8 x Pro Forma Net Leverage 3 1.27 x 1 Composed of 4,186,062 limited liability company units of Cardinal Civil Contracting Holdings LLC and an equal number of share s o f Cardinal Class B common stock, and 345,666 of Cardinal Class A common stock subject to a 6 - month lock - up. 2 Adjusted EBITDA is based on unaudited financials. Adjusted EBITDA is a non - GAAP financial measure. See Appendix A titled “Reconc iliation of Net Income Attributable to ALGC to Adjusted EBITDA“ and slide 3 titled “Disclaimer: Non - GAAP Measures”. 3 Represents Cardinal’s 2025 pro forma net leverage for the increased acquisition - related debt. Net Leverage defined as Total Net Debt / Adj. EBITDA. Total Net Debt represents Interest Bearing Debt + Finance Lease Obligations – Cash/Cash Equivalents. 4 Represents an approximately 4.5M increase in fully diluted shares. Fully diluted shares outstanding at December 31, 2025 were 38 ,335,131. Ÿ in Fully Diluted Shares 4 ~ 10.6%
2025 PRELIMINARY ESTIMATED RESULTS 7 Expected Full Year 2025 Ranges - CDNL 1 $452.3M - $459.7M Revenue 17.8% - 18.0% Adj. EBITDA Margin 2 Highlights 1 The preliminary estimated financial results for the year ended December 31, 2025 are based on currently available information an d reflect Cardinal’s current estimates and assessments. Cardinal has not completed its full year financial closing procedures and controls and governance procedures, and its independent registered p ubl ic accounting firm has not completed any audit, review or set of procedures with respect to the preliminary estimated financial results and has not expressed any opinion or any other form of assurance with res pect thereto. Actual reported results may differ materially from the preliminary results presented as a result of the completion of Cardinal’s financial closing procedures and controls. These preliminary es tim ated financial results should not be viewed as a substitute for Cardinal’s full audited financial statements prepared in accordance with GAAP. Accordingly, you should not place undue reliance on these preliminary est imated financial results. 2 Adjusted EBITDA Margin is a non - GAAP financial measure. Cardinal is unable provide the most directly comparable GAAP financial measure or a quantitative reconciliation thereto witho ut unreasonable effort. See slide 3 titled “Disclaimer: Non - GAAP Measures”. 3 At the midpoint. $678.3M - $685.7M Backlog +33% YoY 3 +45% YoY 3 • Successfully integrated three acquisitions to expand capabilities and footprint in 2025 alone. • IPO completed giving Cardinal additional financial resources and flexibility. • Strong baseline organic growth in revenue and backlog reflecting durable demand and operational execution.
• Robust project backlog signals strong momentum for turnkey civil services. • Continue to recognize the operational and financial benefits from 2025 acquisitions. • Strong Southeast commercial market tailwinds driven by manufacturing onshoring. • Southeast states remain national leaders in population growth and housing permit activity. • Lower interest rates should stimulate development activity and improve project financing conditions. 2026 CONSOLIDATED GUIDANCE 1 8 Factors & Market Trends Consolidated Full Year 2026 Guidance $664.9M - $678.3M Revenue at least 20% Adj. EBITDA Margin 2 Guidance is inclusive of the anticipated contribution from ALGC and represents an ~43% - 45% increase in Adjusted EBITDA over 2025 2 . 1 Guidance reflects an estimated 10.5 - month contribution from ALGC. 2 Adjusted EBITDA Margin and Adjusted EBITDA growth are non - GAAP financial measures. Cardinal is unable provide the most directly comparable GAAP financial measure or a quantitative reconciliation thereto without unreasonable effort. See Slide 3 titled “Disclaimer: Non - GAAP Measures”.
APPENDIX A: RECONCILIATION OF NET INCOME ATTRIBUTABLE TO ALGC TO ADJUSTED EBITDA 9 $ in Thousands Unaudited Trailing 12 Months Ended September 30, 2025 Revenue $ 159,851 Net income 33,347 Interest expense, net 46 Income tax expense 1,489 Depreciation and amortization expense 7,138 EBITDA $ 42,020 Other - Adjusted EBITDA $ 42,020 Net Income Margin 20.9% EBITDA Margin 26.3% Adjusted EBITDA Margin 26.3%