Exhibit 4.1
RESTATED CREDIT AGREEMENT
THIS RESTATED CREDIT AGREEMENT (this
“Agreement”) is entered into as of November 1, 2012, by and between BARRETT BUSINESS SERVICES, INC., a Maryland corporation (“Borrower”), and WELLS FARGO BANK, NATIONAL ASSOCIATION (“Bank”).
RECITALS
Borrower has requested that Bank renew Borrower’s credit described in the credit agreement between the parties dated
September 18, 2012 (the “Prior Agreement”), and has also asked for additional credit, which Bank is agreeable to granting, provided that Borrower agrees to the restatement of the Prior Agreement by this Agreement, which shall replace
the Prior Agreement in its entirety and provide for the extension of credit on the terms and conditions contained herein.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Bank and Borrower hereby agree
as follows:
ARTICLE I
CREDIT TERMS
SECTION 1.1. REVOLVING REDUCING LOAN.
(a)
Revolving Reducing Loan
. Subject to the terms and conditions of this Agreement, Bank hereby agrees to make advances to Borrower
from time to time up to and including October 1, 2017 not to exceed at any time the aggregate principal amount of Twenty-Four Million Dollars ($24,000,000.00) or such lesser amount as shall from time to time be available (“Revolving
Reducing Loan”), the proceeds of which shall be used to finance a substantial portion of the Borrower’s redemption of 34,800 shares of Borrower’s Series A Noncovertible, Non-Voting Redeemable Preferred Stock held by the Estate of
William W. Sherertz and Nancy Sherertz (the “Redemption Transaction”). Borrower’s obligation to repay advances under the Revolving Reducing Loan shall be evidenced by a promissory note dated September 18, 2012
(“Revolving Reducing Note”), all terms of which are incorporated herein by this reference.
(b)
Borrowing and
Repayment
. Borrower may from time to time during the term of the Revolving Reducing Loan borrow, partially or wholly repay its outstanding borrowings, and reborrow, subject to all of the limitations, terms and conditions contained herein or in
the Revolving Reducing Note; provided however, that the total outstanding borrowings under the Revolving Reducing Loan shall not at any time exceed the maximum principal amount available thereunder, as set forth above and as reduced from time to
time in accordance with the terms of the Revolving Reducing Note.
SECTION 1.2. TERM LOAN.
(a)
Term Loan
. Subject to the terms and conditions of this Agreement, Bank hereby agrees to make a loan to Borrower in the
principal amount of Five Million Five Hundred Twelve Thousand Five Hundred Dollars ($5,512,500.00) (“Term Loan”), the proceeds of which shall be used to provide working capital for Borrower. Borrower’s obligation to repay the Term
Loan shall be evidenced by a promissory note dated as of the same date as this Agreement (“Term Note”), all terms of which are incorporated herein by this reference. Bank’s commitment to grant the Term Loan shall terminate thirty
(30) days from the date of this Agreement.
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(b)
Repayment
. Principal and interest on the Term Loan shall be repaid in accordance
with the provisions of the Term Note.
(c)
Prepayment
. Borrower may prepay principal on the Term Loan solely in
accordance with the provisions of the Term Note.
SECTION 1.3. STANDBY LETTERS OF CREDIT.
(a)
Standby Letters of Credit
. Bank has issued or caused an affiliate to issue the following standby letters of credit (each a
“Standby Letter of Credit” and collectively, the “Standby Letters of Credit”) for the account of Borrower, each of which was issued pursuant to the terms of that certain Standby Letter of Credit Agreement (Credit Agreement/Loan
Agreement Version) between Bank and Borrower dated September 18, 2012 (as may be amended from time to time, the “Standby Letter of Credit Agreement”), and is outstanding as of the date hereof: (i) Standby Letter of Credit No.
NZS401574 up to the aggregate amount of One Million Six Hundred Fifty Thousand Dollars ($1,650,000.00) dated June 21, 2001; (ii) Standby Letter of Credit No. NZS504587 in the amount of Five Million Dollars ($5,000,000.00) dated
December 8, 2003; (iii) Standby Letter of Credit No. NZS568994 in the amount of Ten Thousand Dollars ($10,000.00) dated April 11, 2006; and (iv) Irrevocable Standby Letter of Credit No. IS0013451 in the amount of Seventeen
Million One Hundred Eighty-Three Thousand Five Hundred Sixty-Seven Dollars ($17,183,567.00) dated July 11, 2012. Each Standby Letter of Credit shall remain subject to the additional terms of the Standby Letter of Credit Agreement, applications
and any related documents required by Bank in connection with the issuance (and any renewal) thereof. Notwithstanding the provision of any Standby Letter of Credit regarding automatic extension of its expiration date, Bank may, at its sole option,
give notice to the beneficiary thereof in accordance with the terms of such Standby Letter of Credit that Bank has elected not to renew such Standby Letter of Credit beyond its current expiration date (or any other subsequent expiration date that
may be agreed to by Bank at Bank’s sole discretion). If Borrower does not at any time want any Standby Letter of Credit to be renewed, Borrower will so notify Bank at least fifteen (15) calendar days before Bank is to notify the
beneficiary thereof of such nonrenewal pursuant to the terms of such Standby Letter of Credit. Subject to the terms and conditions of this Agreement and the Standby Letter of Credit Agreement, Bank hereby confirms that the Standby Letters of Credit
remain in full force and effect.
(b)
Repayment of Drafts
. Each drawing paid under any Standby Letter of Credit shall
be repaid by Borrower in accordance with the provisions of the Standby Letter of Credit Agreement.
SECTION 1.3.
INTEREST/FEES.
(a)
Interest
. The outstanding principal balance of the Revolving Reducing Loan and the Term Loan shall
bear interest, and the amount of each drawing paid under any Standby Letter of Credit shall bear interest from the date such drawing is paid to the date such amount is fully repaid by Borrower, at the rate of interest set forth in each promissory
note or other instrument or document executed in connection therewith.
(b)
Computation and Payment
. Interest shall be
computed on the basis of a 360-day year, actual days elapsed. Interest shall be payable at the times and place set forth in each promissory note or other instrument or document required hereby.
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(c)
Unused Commitment Fee
. Borrower shall pay to Bank a fee equal to one quarter of
one percent (0.25%) per annum (computed on the basis of a 360-day year, actual days elapsed) on the average daily unused amount of the Revolving Reducing Loan, which fee shall be calculated on a quarterly basis by Bank and shall be due and payable
by Borrower in arrears on the first day of each quarter, commencing January 1, 2013.
SECTION 1.4. COLLECTION OF
PAYMENTS. Borrower authorizes Bank to collect all principal, interest and fees due under each credit subject hereto by charging Borrower’s deposit account number 4159583848 with Bank, or any other deposit account maintained by Borrower with
Bank, for the full amount thereof. Should there be insufficient funds in any such deposit account to pay all such sums when due, the full amount of such deficiency shall be immediately due and payable by Borrower.
SECTION 1.5. COLLATERAL.
As security for all indebtedness and other obligations of Borrower to Bank, Borrower shall grant to Bank security interests of first priority in all Borrower’s accounts receivable and other rights to
payment, general intangibles, inventory and equipment.
As security for all indebtedness and other obligations of Borrower to
Bank under the Term Loan, Borrower shall grant to Bank a lien of not less than first priority on that certain real property located at 8100 NE Parkway Drive, Vancouver, Washington 98662 (the “Real Property”).
All of the foregoing shall be evidenced by and subject to the terms of such security agreements, financing statements, deeds or mortgages, and other
documents as Bank shall reasonably require, all in form and substance satisfactory to Bank. Borrower shall pay to Bank immediately upon demand the full amount of all charges, costs and expenses (to include fees paid to third parties and all
allocated costs of Bank personnel), expended or incurred by Bank in connection with any of the foregoing security, including without limitation, filing and recording fees and costs of appraisals, audits and title insurance.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Borrower makes the following representations and warranties to Bank, which representations and warranties shall survive the execution of this Agreement and shall continue in full force and effect until
the full and final payment, and satisfaction and discharge, of all obligations of Borrower to Bank subject to this Agreement.
SECTION 2.1. LEGAL STATUS. Borrower is a corporation, duly organized and existing and in good standing under the laws of Maryland, and is
qualified or licensed to do business (and is in good standing as a foreign corporation, if applicable) in all jurisdictions in which such qualification or licensing is required or in which the failure to so qualify or to be so licensed could have a
material adverse effect on Borrower.
SECTION 2.2. AUTHORIZATION AND VALIDITY. This Agreement and each promissory note,
contract, instrument and other document required hereby or at any time hereafter delivered to Bank in connection herewith (collectively, the “Loan Documents”) have been duly authorized, and upon their execution and delivery in accordance
with the provisions hereof will constitute legal, valid and binding agreements and obligations of Borrower or the party which executes the same, enforceable in accordance with their respective terms.
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SECTION 2.3. NO VIOLATION. The execution, delivery and performance by Borrower of each of
the Loan Documents do not violate any provision of any law or regulation, or contravene any provision of the Articles of Incorporation or By-Laws of Borrower, or result in any breach of or default under any contract, obligation, indenture or other
instrument to which Borrower is a party or by which Borrower may be bound.
SECTION 2.4. LITIGATION. There are no pending, or
to the best of Borrower’s knowledge threatened, actions, claims, investigations, suits or proceedings by or before any governmental authority, arbitrator, court or administrative agency which could have a material adverse effect on the
financial condition or operation of Borrower other than those disclosed by Borrower to Bank in writing prior to the date hereof.
SECTION 2.5. CORRECTNESS OF FINANCIAL STATEMENT. The annual financial statement of Borrower dated December 31, 2011, and all interim financial statements delivered to Bank since said date, true
copies of which have been delivered by Borrower to Bank prior to the date hereof, (a) are complete and correct and present fairly the financial condition of Borrower, (b) disclose all liabilities of Borrower that are required to be
reflected or reserved against under generally accepted accounting principles, whether liquidated or unliquidated, fixed or contingent, and (c) have been prepared in accordance with generally accepted accounting principles consistently applied.
Since the dates of such financial statements there has been no material adverse change in the financial condition of Borrower, nor has Borrower mortgaged, pledged, granted a security interest in or otherwise encumbered any of its assets or
properties except in favor of Bank or as otherwise permitted by Bank in writing.
SECTION 2.6. INCOME TAX RETURNS. Borrower
has no knowledge of any pending assessments or adjustments of its income tax payable with respect to any year.
SECTION 2.7.
NO SUBORDINATION. There is no agreement, indenture, contract or instrument to which Borrower is a party or by which Borrower may be bound that requires the subordination in right of payment of any of Borrower’s obligations subject to this
Agreement to any other obligation of Borrower.
SECTION 2.8. PERMITS, FRANCHISES. Borrower possesses, and will hereafter
possess, all permits, consents, approvals, franchises and licenses required and rights to all trademarks, trade names, patents, and fictitious names, if any, necessary to enable it to conduct the business in which it is now engaged in compliance
with applicable law.
SECTION 2.9. ERISA. Borrower is in compliance in all material respects with all applicable provisions of
the Employee Retirement Income Security Act of 1974, as amended or recodified from time to time (“ERISA”); Borrower has not violated any provision of any defined employee pension benefit plan (as defined in ERISA) maintained or contributed
to by Borrower (each, a “Plan”); no Reportable Event as defined in ERISA has occurred and is continuing with respect to any Plan initiated by Borrower; Borrower has met its minimum funding requirements under ERISA with respect to each
Plan; and each Plan will be able to fulfill its benefit obligations as they come due in accordance with the Plan documents and under generally accepted accounting principles.
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SECTION 2.10. OTHER OBLIGATIONS. Borrower is not in default on any obligation for borrowed
money, any purchase money obligation or any other material lease, commitment, contract, instrument or obligation.
SECTION
2.11. ENVIRONMENTAL MATTERS. Except as disclosed by Borrower to Bank in writing prior to the date hereof, Borrower is in compliance in all material respects with all applicable federal or state environmental, hazardous waste, health and safety
statutes, and any rules or regulations adopted pursuant thereto, which govern or affect any of Borrower’s operations and/or properties, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of
1980, the Superfund Amendments and Reauthorization Act of 1986, the Federal Resource Conservation and Recovery Act of 1976, and the Federal Toxic Substances Control Act, as any of the same may be amended, modified or supplemented from time to time.
None of the operations of Borrower is the subject of any federal or state investigation evaluating whether any remedial action involving a material expenditure is needed to respond to a release of any toxic or hazardous waste or substance into the
environment. Borrower has no material contingent liability in connection with any release of any toxic or hazardous waste or substance into the environment.
SECTION 2.12. REAL PROPERTY COLLATERAL. Except as disclosed by Borrower to Bank in writing prior to the date hereof, with respect to any real property collateral required hereby:
(a) All taxes, governmental assessments, insurance premiums, and water, sewer and municipal charges, and rents (if any) which previously
became due and owing in respect thereof have been paid as of the date hereof.
(b) There are no mechanics’ or similar
liens or claims which have been filed for work, labor or material (and no rights are outstanding that under law could give rise to any such lien) which affect all or any interest in any such real property and which are or may be prior to or equal to
the lien thereon in favor of Bank.
(c) None of the improvements which were included for purpose of determining the appraised
value of any such real property lies outside of the boundaries and/or building restriction lines thereof, and no improvements on adjoining properties materially encroach upon any such real property.
(d) There is no pending, or to the best of Borrower’s knowledge threatened, proceeding for the total or partial condemnation of all
or any portion of any such real property, and all such real property is in good repair and free and clear of any damage that would materially and adversely affect the value thereof as security and/or the intended use thereof.
ARTICLE III
CONDITIONS
SECTION 3.1. CONDITIONS OF INITIAL EXTENSION OF CREDIT. The obligation of Bank to extend any credit contemplated by this Agreement is
subject to the fulfillment to Bank’s satisfaction of all of the following conditions:
(a)
Approval of Bank
Counsel
. All legal matters incidental to the extension of credit by Bank shall be satisfactory to Bank’s counsel.
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(b)
Documentation
. Bank shall have received, in form and substance satisfactory to
Bank, each of the following, duly executed:
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(i)
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This Agreement and each promissory note or other instrument or document required hereby;
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(ii)
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Security Agreement: Equipment;
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(iii)
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Continuing Security Agreement: Rights to Payment and Inventory;
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(iv)
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Deed of Trust and Assignment of Rents and Leases;
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(v)
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Standby Letter of Credit Agreement;
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(vi)
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Corporate Resolution: Borrowing;
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(vii)
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Incumbency Certificate; and
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(viii)
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Such other documents as Bank may require under any other Section of this Agreement.
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(c)
Financial Condition
. There shall have been no material adverse change, as determined by Bank, in the financial condition or
business of Borrower or any guarantor hereunder, if any, nor any material decline, as determined by Bank, in the market value of any collateral required hereunder or a substantial or material portion of the assets of Borrower or any guarantor
hereunder, if any.
(d)
Insurance
. Borrower shall have delivered to Bank evidence of insurance coverage on all
Borrower’s property, in form, substance, amounts, covering risks and issued by companies satisfactory to Bank, and where required by Bank, with loss payable endorsements in favor of Bank, including without limitation, policies of fire and
extended coverage insurance covering all real property collateral required hereby, with replacement cost and mortgagee loss payable endorsements, and such policies of insurance against specific hazards affecting any such real property, including
terrorism, as may be required by governmental regulation or Bank.
(e)
Appraisals
. Bank shall have obtained, at
Borrower’s cost, an appraisal of all real property collateral required hereby, and all improvements thereon, issued by an appraiser acceptable to Bank and in form, substance and reflecting values satisfactory to Bank, in its discretion.
(f)
Title Insurance
. Bank shall have received an ALTA Policy of Title Insurance, with such endorsements as Bank may
require, issued by a company and in form and substance satisfactory to Bank, in an amount equal to the principal amount of the Term Loan, insuring Bank’s lien on the real property collateral required hereby to be of first priority, subject only
to such exceptions as Bank shall approve in its discretion, with all costs thereof to be paid by Borrower.
SECTION 3.2.
CONDITIONS OF EACH EXTENSION OF CREDIT. The obligation of Bank to make each extension of credit requested by Borrower hereunder shall be subject to the fulfillment to Bank’s satisfaction of each of the following conditions:
(a)
Compliance
. The representations and warranties contained herein and in each of the other Loan Documents shall be true on and
as of the date of the signing of this Agreement and on the date of each extension of credit by Bank pursuant hereto, with the same effect as though such representations and warranties had been made on and as of each such date, and on each such date,
no Event of Default as defined herein, and no condition, event or act which with the giving of notice or the passage of time or both would constitute such an Event of Default, shall have occurred and be continuing or shall exist.
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(b)
Documentation
. Bank shall have received all additional documents which may be
required in connection with such extension of credit.
ARTICLE IV
AFFIRMATIVE COVENANTS
Borrower covenants that so long as Bank remains committed to extend credit to Borrower pursuant hereto, or any liabilities (whether direct or contingent, liquidated or unliquidated) of Borrower to Bank
under any of the Loan Documents remain outstanding, and until payment in full of all obligations of Borrower subject hereto, Borrower shall, unless Bank otherwise consents in writing:
SECTION 4.1. PUNCTUAL PAYMENTS. Punctually pay all principal, interest, fees or other liabilities due under any of the Loan Documents at
the times and place and in the manner specified therein.
SECTION 4.2. ACCOUNTING RECORDS. Maintain adequate books and records
in accordance with generally accepted accounting principles consistently applied, and permit any representative of Bank, at any reasonable time, to inspect, audit and examine such books and records, to make copies of the same, and to inspect the
properties of Borrower.
SECTION 4.3. FINANCIAL STATEMENTS. Provide to Bank all of the following, in form and detail
satisfactory to Bank:
(a) not later than 120 days after and as of the end of each fiscal year, an audited consolidated
financial statement of Borrower, prepared by a certified public accountant acceptable to Bank, to include balance sheet, income statement, and statement of cash flows and sources, and shall be accompanied by the unqualified opinion of such
accountant addressed to Bank;
(b) not later than 180 days after and as of the end of each fiscal year, an audited financial
statement for each of Associated Insurance Company for Excess, an Arizona corporation wholly owned by Borrower (“AICE”), and Ecole Insurance Company, an Arizona corporation wholly owned by Borrower (“Ecole”) (AICE and Ecole, each
an “Affiliate” and collectively, the “Affiliates”), prepared by a certified public accountant acceptable to Bank, to include balance sheet, income statement and statement of cash flows and sources, and shall be accompanied by the
unqualified opinion of such accountant addressed to Bank;
(c) Promptly upon their becoming available, copies of (i) all
financial statements, reports, notices and proxy statements made publicly available by Borrower to its security holders; (ii) all regular and periodic reports and all registration statements and prospectuses, if any, filed by Borrower with any
securities exchange or with the U.S. Securities and Exchange Commission (“SEC”) or any governmental or private regulatory authority, including, but not limited to (A) not later than 95 calendar days after the end of each fiscal year,
Borrower’s 10-K filing with the SEC (including all exhibits and certifications) for the fiscal year just ended, and (B) not later than 50 calendar days after the end of each fiscal quarter, Borrower’s 10-Q filing with the SEC
(including all exhibits and certifications) for the fiscal quarter just ended; and (iii) all press releases and other statements made available by Borrower to the public concerning material changes or developments in the business of Borrower;
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(d) contemporaneously with each annual and quarterly financial statement of Borrower and the
Affiliates required hereby, a certificate of the president or chief financial officer of Borrower that said financial statements are accurate and that there exists no Event of Default nor any condition, act or event which with the giving of notice
or the passage of time or both would constitute an Event of Default;
(e) annually, but in all events not later than
October 15 of each year (commencing October 15, 2012), true and correct copies of a Uniform Certificate of Authority Application-Certificate of Compliance issued by the State of Arizona Director of Insurance for each of the Affiliates
indicating that, as of a date no earlier than thirty (30) days prior to the date each such certificate is delivered to Bank, each of the Affiliates is duly organized under the laws of the State of Arizona and authorized to transact the relevant
insurance business of each of the Affiliates in the State of Arizona; and
(f) from time to time such other information as
Bank may reasonably request, including without limitation, copies of rent rolls and other information with respect to any real property collateral required hereby.
SECTION 4.4. COMPLIANCE. Preserve and maintain, and cause each of the Affiliates to preserve and maintain, all licenses, permits, governmental approvals, rights, privileges and franchises necessary for
the conduct of its business and the business of each of the Affiliates; and comply with the provisions of all documents pursuant to which Borrower and each of the Affiliates is organized and/or which govern Borrower’s or any of the
Affiliates’ continued existence and with the requirements of all laws, rules, regulations and orders of any governmental authority applicable to Borrower and/or its business or to any of the Affiliates and/or their respective businesses.
SECTION 4.5. INSURANCE. Maintain and keep in force, for each business in which Borrower is engaged, insurance of the types
and in amounts customarily carried in similar lines of business, including but not limited to fire, extended coverage, public liability, flood, property damage and workers’ compensation, with all such insurance carried with companies and in
amounts satisfactory to Bank, and deliver to Bank from time to time at Bank’s request schedules setting forth all insurance then in effect.
SECTION 4.6. FACILITIES. Keep all properties useful or necessary to Borrower’s business in good repair and condition, and from time to time make necessary repairs, renewals and replacements thereto
so that such properties shall be fully and efficiently preserved and maintained.
SECTION 4.7. TAXES AND OTHER LIABILITIES.
Pay and discharge when due any and all indebtedness, obligations, assessments and taxes, both real or personal, including without limitation federal and state income taxes and state and local property taxes and assessments, except (a) such as
Borrower may in good faith contest or as to which a bona fide dispute may arise, and (b) for which Borrower has made provision, to Bank’s satisfaction, for eventual payment thereof in the event Borrower is obligated to make such payment.
SECTION 4.8. LITIGATION. Promptly give notice in writing to Bank of any litigation pending or threatened against Borrower
with a claim in excess of $1,000,000.00.
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SECTION 4.9. FINANCIAL CONDITION. Maintain Borrower’s financial condition as follows
using generally accepted accounting principles consistently applied and used consistently with prior practices (except to the extent modified by the definitions herein), with compliance determined commencing with Borrower’s consolidated
financial statements for the period ending (a) December 31, 2012, with respect to Section 4.9(a) below, (b) on the dates specified in Section 4.9(b), with respect to Section 4.9(b) below, and (c) September 30,
2012, with respect to Section 4.9(c) below:
(a) Fixed Charge Coverage Ratio not less than 1.25 to 1.0 as of each fiscal
quarter end, determined on a rolling 4-quarter basis, with “Fixed Charge Coverage Ratio” defined as the aggregate of net profit after taxes plus depreciation expense, amortization expense, cash capital contributions and increases in
subordinated debt minus dividends, distributions and decreases in subordinated debt (excluding that certain redemption transaction between Borrower and the Estate of William W. Sherertz and Nancy Sherertz effective as of March 9, 2012, in the
amount of $59,700,000.00), divided by the aggregate of $5,000,000.00, the current maturity of long-term debt and capitalized lease payments.
(b) Total Funded Debt to EBITDA not greater than (i) 2.25 to 1.0 as of each fiscal quarter end, commencing December 31, 2012 and continuing through September 30, 2013, (ii) 1.75 to 1.0
as of each fiscal quarter end, commencing December 31, 2013 and continuing through September 30, 2014, (iii) 1.5 to 1.0 as of each fiscal quarter end, commencing December 31, 2014 and continuing through September 30, 2015,
and (iv) 1.25 to 1.0 as of each fiscal quarter end, commencing December 31, 2015 and continuing thereafter through maturity of the Revolving Reducing Loan, in each case determined on a rolling 4-quarter basis, with “Funded Debt”
defined as the sum of all obligations for borrowed money (including subordinated debt) plus all capital lease obligations, and with “EBITDA” defined as net profit before tax plus interest expense (net of capitalized interest expense),
depreciation expense and amortization expense.
(c) Liquid Assets to Worker’s Compensation Claims & Safety
Incentive Liabilities not less than 1.0 to 1.0 as of each fiscal quarter end, with “Liquid Assets” defined as the sum of (i) restricted and unrestricted cash and cash equivalents, plus (ii) restricted and unrestricted marketable
securities acceptable to Bank in its sole discretion, plus (iii) the maximum principal amount then available under the Reducing Revolving Loan less the then outstanding aggregate of all borrowings thereunder, and “Worker’s
Compensation Claims & Safety Incentive Liabilities” defined as the aggregate of Borrower’s obligations with respect to (i) workers’ compensation claims liabilities, and (ii) safety incentive liabilities, in each
case as the assets described in clauses (i) and (ii) of the foregoing definition of “Liquid Assets” and as the liabilities described in clauses (i) and (ii) of the foregoing definition of “Worker’s
Compensation Claims & Safety Incentive Liabilities” are required to be reflected in Borrower’s annual audited consolidated financial statements and quarterly unaudited consolidated financial statements, consistent with past
practices.
SECTION 4.10. NOTICE TO BANK. Promptly (but in no event more than five (5) days after the occurrence of each
such event or matter) give written notice to Bank in reasonable detail of: (a) the occurrence of any Event of Default, or any condition, event or act which with the giving of notice or the passage of time or both would constitute an Event of
Default; (b) any change in the name or the organizational structure of Borrower; (c) the occurrence and nature of any Reportable Event or Prohibited Transaction, each as defined in ERISA, or any funding deficiency with respect to any Plan;
or (d) any termination or cancellation of any insurance policy which Borrower is required to maintain, or any uninsured or partially uninsured loss through liability or property damage, or through fire, theft or any other cause affecting
Borrower’s property in excess of an aggregate of $1,000,000.00.
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ARTICLE V
NEGATIVE COVENANTS
Borrower further covenants that so long as Bank
remains committed to extend credit to Borrower pursuant hereto, or any liabilities (whether direct or contingent, liquidated or unliquidated) of Borrower to Bank under any of the Loan Documents remain outstanding, and until payment in full of all
obligations of Borrower subject hereto, Borrower will not without Bank’s prior written consent:
SECTION 5.1. USE OF
FUNDS. Use any of the proceeds of any credit extended hereunder except for the purposes stated in Article I hereof.
SECTION
5.2. OTHER INDEBTEDNESS. Create, incur, assume or permit to exist, or allow any of the Affiliates to create, incur, assume or permit to exist, any indebtedness or liabilities resulting from borrowings, loans or advances, whether secured or
unsecured, matured or unmatured, liquidated or unliquidated, joint or several, except (a) the liabilities of Borrower or any of the Affiliates to Bank or any affiliate of Bank, (b) purchase money indebtedness (including capitalized leases)
for the acquisition of assets, provided that (i) the total new purchase money indebtedness does not exceed $200,000.00 in any fiscal year, and (ii) the aggregate of all purchase money indebtedness does not exceed $800,000.00 at any time,
and (c) any other liabilities of Borrower or any of the Affiliates existing as of, and disclosed to Bank prior to, the date hereof; provided, however, that if Borrower or any of the Affiliates incurs indebtedness or becomes liable to any third
party to the extent permitted hereunder, neither Borrower nor any of the Affiliates shall enter into any agreement with such other party that prohibits Borrower or any of the Affiliates, as the case may be, from incurring indebtedness with Bank or
any affiliate of Bank or that prohibits Borrower or any of the Affiliates from granting Bank or any affiliate of Bank a lien on any real or personal property owned by Borrower or any of the Affiliates, as the case may be.
SECTION 5.3. MERGER, CONSOLIDATION, TRANSFER OF ASSETS. Merge into or consolidate with any other entity; make any substantial change in
the nature of Borrower’s business as conducted as of the date hereof; acquire all or substantially all of the assets of any other entity; nor sell, lease, transfer or otherwise dispose of all or a substantial or material portion of
Borrower’s assets except in the ordinary course of its business.
SECTION 5.4. GUARANTIES. Guarantee or become liable in
any way as surety, endorser (other than as endorser of negotiable instruments for deposit or collection in the ordinary course of business), accommodation endorser or otherwise for, nor pledge or hypothecate any assets of Borrower or any of the
Affiliates as security for, any liabilities or obligations of any other person or entity, except (a) any of the foregoing in favor of Bank, and (b) solely in the case of each of the Affiliates, in the ordinary course of business for each
of the Affiliates, consistent with past practices thereof.
SECTION 5.5. PLEDGE OF ASSETS. Mortgage, pledge, grant or permit
to exist a security interest in, or lien upon, all or any portion of Borrower’s assets now owned or hereafter acquired, except (a) any of the foregoing in favor of Bank or which is existing as of, and disclosed to Bank in writing prior to,
the date hereof, and (b) purchase money security interests, to the extent purchase money indebtedness is permitted under Section 5.2(b).
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1. The occurrence of any of the following
shall constitute an “Event of Default” under this Agreement:
(a) Borrower shall fail to pay when due any principal,
interest, fees or other amounts payable under any of the Loan Documents.
(b) Any financial statement or certificate furnished
to Bank in connection with, or any representation or warranty made by Borrower or any other party under this Agreement or any other Loan Document shall prove to be incorrect, false or misleading in any material respect when furnished or made.
(c) Any default in the performance of or compliance with any obligation, agreement or other provision contained herein or in
any other Loan Document (other than those specifically described as an “Event of Default” in this section 6.1), and with respect to any such default that by its nature can be cured, such default shall continue for a period of twenty
(20) days from its occurrence.
(d) Any default in the payment or performance of any obligation, or any defined event of
default, under the terms of any contract, instrument or document (other than any of the Loan Documents) pursuant to which Borrower, any guarantor hereunder or any general partner or joint venturer in Borrower if a partnership or joint venture (with
each such guarantor, general partner and/or joint venturer referred to herein as a “Third Party Obligor”) or any of the Affiliates has incurred any debt or other liability to any person or entity, including Bank; provided, however, that
any cure period applicable to such default has expired, and, with respect to a default under any obligation to any person or entity other than Bank, the amount of said obligation exceeds $25,000.00; and further provided, that with respect to a
default of any non-monetary obligation to any person or entity other than Bank, the non-monetary obligation materially affects any of Borrower’s or any of the Affiliates’ property or Borrower’s or any of the Affiliates’ ability
to repay its credit obligations to Bank or to any other person or entity other than Bank, or perform any of its other material contractual obligations to any person or entity.
(e) Borrower, or any of the Affiliates or any Third Party Obligor shall become insolvent, or shall suffer or consent to or apply for the appointment of a receiver, trustee, custodian or liquidator of
itself or any of its property, or shall generally fail to pay its debts as they become due, or shall make a general assignment for the benefit of creditors; Borrower, or any of the Affiliates or any Third Party Obligor shall file a voluntary
petition in bankruptcy, or seeking reorganization, in order to effect a plan or other arrangement with creditors or any other relief under the Bankruptcy Reform Act, Title 11 of the United States Code, as amended or recodified from time to time
(“Bankruptcy Code”), or under any state or federal law granting relief to debtors, whether now or hereafter in effect; or Borrower, or any of the Affiliates or any Third Party Obligor shall file an answer admitting the jurisdiction of the
court and the material allegations of any involuntary petition; or Borrower, or any of the Affiliates or any Third Party Obligor shall be adjudicated a bankrupt, or an order for relief shall be entered against Borrower, or any of the Affiliates or
any Third Party Obligor by any court of competent jurisdiction under the Bankruptcy Code or any other applicable state or federal law relating to bankruptcy, reorganization or other relief for debtors.
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(f) The filing of a notice of judgment lien against Borrower, or any of the Affiliates or
any Third Party Obligor; or the recording of any abstract of judgment against Borrower, or any of the Affiliates or any Third Party Obligor in any county in which Borrower, or any of the Affiliates or such Third Party Obligor has an interest in real
property; or the service of a notice of levy and/or of a writ of attachment or execution, or other like process, against the assets of Borrower or any of the Affiliates or any Third Party Obligor; or the entry of a judgment against Borrower, or any
of the Affiliates or any Third Party Obligor; or any involuntary petition or proceeding pursuant to the Bankruptcy Code or any other applicable state or federal law relating to bankruptcy, reorganization or other relief for debtors is filed or
commenced against Borrower, or any of the Affiliates or any Third Party Obligor.
(g) There shall exist or occur any event or
condition that Bank in good faith believes impairs, or is substantially likely to impair, the prospect of payment or performance by Borrower, any of the Affiliates, any Third Party Obligor, or the general partner of either if such entity is a
partnership, of its obligations under any of the Loan Documents.
(h) The death or incapacity of Borrower or any Third Party
Obligor if an individual. The dissolution or liquidation of Borrower, or any of the Affiliates or any Third Party Obligor if a corporation, partnership, joint venture or other type of entity; or Borrower, or any of the Affiliates or any such Third
Party Obligor, or any of its directors, stockholders or members, shall take action seeking to effect the dissolution or liquidation of Borrower, or any of the Affiliates or such Third Party Obligor.
(i) Any change in control of Borrower or any entity or combination of entities that directly or indirectly control Borrower, with
“control” defined as ownership of an aggregate of twenty-five percent (25%) or more of the common stock, members’ equity or other ownership interest (other than a limited partnership interest).
(j) The sale, transfer, hypothecation, assignment or encumbrance, whether voluntary, involuntary or by operation of law, without
Bank’s prior written consent, of all or any part of or interest in any real property collateral required hereby.
SECTION
6.2. REMEDIES. Upon the occurrence of any Event of Default: (a) all indebtedness of Borrower under each of the Loan Documents, any term thereof to the contrary notwithstanding, shall at Bank’s option and without notice become immediately
due and payable without presentment, demand, protest or notice of dishonor, all of which are hereby expressly waived by Borrower; (b) the obligation, if any, of Bank to extend any further credit under any of the Loan Documents shall immediately
cease and terminate; and (c) Bank shall have all rights, powers and remedies available under each of the Loan Documents, or accorded by law, including without limitation the right to resort to any or all security for any credit subject hereto
and to exercise any or all of the rights of a beneficiary or secured party pursuant to applicable law. All rights, powers and remedies of Bank may be exercised at any time by Bank and from time to time after the occurrence of an Event of Default,
are cumulative and not exclusive, and shall be in addition to any other rights, powers or remedies provided by law or equity.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. NO WAIVER. No delay, failure or discontinuance of Bank in exercising any right, power or remedy under any of the Loan Documents shall affect or operate as a waiver of such right, power or
remedy; nor shall any single or partial exercise of any such right, power
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or remedy preclude, waive or otherwise affect any other or further exercise thereof or the exercise of any other right, power or remedy. Any waiver, permit, consent or approval of any kind by
Bank of any breach of or default under any of the Loan Documents must be in writing and shall be effective only to the extent set forth in such writing.
SECTION 7.2. NOTICES. All notices, requests and demands which any party is required or may desire to give to any other party under any provision of this Agreement must be in writing delivered to each
party at the following address:
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BORROWER:
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BARRETT BUSINESS SERVICES, INC.
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8100 NE Parkway Drive, Suite 200
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Vancouver, Washington 98662
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Attn: James D. Miller
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Vice President-Finance
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BANK:
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WELLS FARGO BANK, NATIONAL ASSOCIATION
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Portland RCBO
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MAC P6101-133
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1300 SW Fifth Avenue
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Portland, Oregon 97201
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Attn: Julie R. Wilson, Vice President
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or to such other address as any party may designate by written notice to all other parties. Each such notice, request and
demand shall be deemed given or made as follows: (a) if sent by hand delivery, upon delivery; (b) if sent by mail, upon the earlier of the date of receipt or three (3) days after deposit in the U.S. mail, first class and postage
prepaid; and (c) if sent by telecopy, upon receipt.
SECTION 7.3. COSTS, EXPENSES AND ATTORNEYS’ FEES. Borrower
shall pay to Bank immediately upon demand the full amount of all payments, advances, charges, costs and expenses, including reasonable attorneys’ fees (to include outside counsel fees and all allocated costs of Bank’s in-house counsel),
expended or incurred by Bank in connection with (a) the negotiation and preparation of this Agreement and the other Loan Documents, Bank’s continued administration hereof and thereof, and the preparation of any amendments and waivers
hereto and thereto, (b) the enforcement of Bank’s rights and/or the collection of any amounts which become due to Bank under any of the Loan Documents, and (c) the prosecution or defense of any action in any way related to any of the
Loan Documents, including without limitation, any action for declaratory relief, whether incurred at the trial or appellate level, in an arbitration proceeding or otherwise, and including any of the foregoing incurred in connection with any
bankruptcy proceeding (including without limitation, any adversary proceeding, contested matter or motion brought by Bank or any other person) relating to Borrower or any other person or entity.
SECTION 7.4. SUCCESSORS, ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the heirs, executors,
administrators, legal representatives, successors and assigns of the parties; provided however, that Borrower may not assign or transfer its interests or rights hereunder without Bank’s prior written consent. Bank reserves the right to sell,
assign, transfer, negotiate or grant participations in all or any part of, or any interest in, Bank’s rights and benefits under each of the Loan Documents. In connection therewith, Bank may disclose all documents and information which Bank now
has or may hereafter acquire relating to any credit subject hereto, Borrower or its business, any of the Affiliates or the business of such Affiliate, any guarantor hereunder or the business of such guarantor, if any, or any collateral required
hereunder.
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SECTION 7.5. ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other Loan Documents
constitute the entire agreement between Borrower and Bank with respect to each credit subject hereto and supersede all prior negotiations, communications, discussions and correspondence concerning the subject matter hereof. This Agreement may be
amended or modified only in writing signed by each party hereto.
SECTION 7.6. NO THIRD PARTY BENEFICIARIES. This Agreement is
made and entered into for the sole protection and benefit of the parties hereto and their respective permitted successors and assigns, and no other person or entity shall be a third party beneficiary of, or have any direct or indirect cause of
action or claim in connection with, this Agreement or any other of the Loan Documents to which it is not a party.
SECTION
7.7. TIME. Time is of the essence of each and every provision of this Agreement and each other of the Loan Documents.
SECTION
7.8. SEVERABILITY OF PROVISIONS. If any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder
of such provision or any remaining provisions of this Agreement.
SECTION 7.9. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which when executed and delivered shall be deemed to be an original, and all of which when taken together shall constitute one and the same Agreement.
SECTION 7.10. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon, but
giving effect to the federal laws applicable to national banks, without reference to the conflicts of law or choice of law principles thereof.
SECTION 7.11. ARBITRATION.
(a)
Arbitration
. The parties hereto agree, upon
demand by any party, to submit to binding arbitration all claims, disputes and controversies between or among them (and their respective employees, officers, directors, attorneys, and other agents), whether in tort, contract or otherwise in any way
arising out of or relating to (i) any credit subject hereto, or any of the Loan Documents, and their negotiation, execution, collateralization, administration, repayment, modification, extension, substitution, formation, inducement,
enforcement, default or termination; or (ii) requests for additional credit.
(b)
Governing Rules
. Any arbitration
proceeding will (i) proceed in a location in Oregon selected by the American Arbitration Association (“AAA”); (ii) be governed by the Federal Arbitration Act (Title 9 of the United States Code), notwithstanding any conflicting
choice of law provision in any of the documents between the parties; and (iii) be conducted by the AAA, or such other administrator as the parties shall mutually agree upon, in accordance with the AAA’s commercial dispute resolution
procedures, unless the claim or counterclaim is at least $1,000,000.00 exclusive of claimed interest, arbitration fees and costs in which case the arbitration shall be conducted in accordance with the AAA’s optional procedures for large,
complex commercial disputes (the commercial dispute resolution procedures or the optional
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procedures for large, complex commercial disputes to be referred to herein, as applicable, as the “Rules”). If there is any inconsistency between the terms hereof and the Rules, the
terms and procedures set forth herein shall control. Any party who fails or refuses to submit to arbitration following a demand by any other party shall bear all costs and expenses incurred by such other party in compelling arbitration of any
dispute. Nothing contained herein shall be deemed to be a waiver by any party that is a bank of the protections afforded to it under 12 U.S.C. §91 or any similar applicable state law.
(c)
No Waiver of Provisional Remedies, Self-Help and Foreclosure
. The arbitration requirement does not limit the right of any
party to (i) foreclose against real or personal property collateral; (ii) exercise self-help remedies relating to collateral or proceeds of collateral such as setoff or repossession; or (iii) obtain provisional or ancillary remedies
such as replevin, injunctive relief, attachment or the appointment of a receiver, before during or after the pendency of any arbitration proceeding. This exclusion does not constitute a waiver of the right or obligation of any party to submit any
dispute to arbitration or reference hereunder, including those arising from the exercise of the actions detailed in sections (i), (ii) and (iii) of this paragraph.
(d)
Arbitrator Qualifications and Powers
. Any arbitration proceeding in which the amount in controversy is $5,000,000.00 or less will be decided by a single arbitrator selected according to the
Rules, and who shall not render an award of greater than $5,000,000.00. Any dispute in which the amount in controversy exceeds $5,000,000.00 shall be decided by majority vote of a panel of three arbitrators; provided however, that all three
arbitrators must actively participate in all hearings and deliberations. The arbitrator will be a neutral attorney licensed in the State of Oregon or a neutral retired judge of the state or federal judiciary of Oregon, in either case with a minimum
of ten years experience in the substantive law applicable to the subject matter of the dispute to be arbitrated. The arbitrator will determine whether or not an issue is arbitratable and will give effect to the statutes of limitation in determining
any claim. In any arbitration proceeding the arbitrator will decide (by documents only or with a hearing at the arbitrator’s discretion) any pre-hearing motions which are similar to motions to dismiss for failure to state a claim or motions for
summary adjudication. The arbitrator shall resolve all disputes in accordance with the substantive law of Oregon and may grant any remedy or relief that a court of such state could order or grant within the scope hereof and such ancillary relief as
is necessary to make effective any award. The arbitrator shall also have the power to award recovery of all costs and fees, to impose sanctions and to take such other action as the arbitrator deems necessary to the same extent a judge could pursuant
to the Federal Rules of Civil Procedure, the Oregon Rules of Civil Procedure or other applicable law. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The institution and maintenance of an action
for judicial relief or pursuit of a provisional or ancillary remedy shall not constitute a waiver of the right of any party, including the plaintiff, to submit the controversy or claim to arbitration if any other party contests such action for
judicial relief.
(e)
Discovery
. In any arbitration proceeding, discovery will be permitted in accordance with the
Rules. All discovery shall be expressly limited to matters directly relevant to the dispute being arbitrated and must be completed no later than 20 days before the hearing date. Any requests for an extension of the discovery periods, or any
discovery disputes, will be subject to final determination by the arbitrator upon a showing that the request for discovery is essential for the party’s presentation and that no alternative means for obtaining information is available.
(f)
Class Proceedings and Consolidations
. No party hereto shall be entitled to join or consolidate disputes by or
against others in any arbitration, except parties who have executed any Loan Document, or to include in any arbitration any dispute as a representative or member of a class, or to act in any arbitration in the interest of the general public or in a
private attorney general capacity.
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(g)
Payment Of Arbitration Costs And Fees
. The arbitrator shall award all costs and
expenses of the arbitration proceeding.
(h)
Miscellaneous
. To the maximum extent practicable, the AAA, the arbitrators
and the parties shall take all action required to conclude any arbitration proceeding within 180 days of the filing of the dispute with the AAA. No arbitrator or other party to an arbitration proceeding may disclose the existence, content or results
thereof, except for disclosures of information by a party required in the ordinary course of its business or by applicable law or regulation. If more than one agreement for arbitration by or between the parties potentially applies to a dispute, the
arbitration provision most directly related to the Loan Documents or the subject matter of the dispute shall control. This arbitration provision shall survive termination, amendment or expiration of any of the Loan Documents or any relationship
between the parties.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY BANK CONCERNING LOANS AND OTHER CREDIT
EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER’S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY BANK TO BE ENFORCEABLE
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first written above.
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BARRETT BUSINESS SERVICES, INC.
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WELLS FARGO BANK, NATIONAL ASSOCIATION
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By:
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/s/ James D. Miller
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By:
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/s/ Julie R. Wilson
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Name:
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James D. Miller
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Name:
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Julie R. Wilson
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Title:
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Vice President-Finance
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Title:
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Vice President
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Exhibit 4.2
REVOLVING REDUCING NOTE
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$24,000,000.00
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Portland, Oregon
September 18, 2012
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FOR VALUE RECEIVED, the undersigned BARRETT BUSINESS SERVICES, INC. (“Borrower”) promises to
pay to the order of WELLS FARGO BANK, NATIONAL ASSOCIATION (“Bank”) at its office at Portland RCBO, 1300 SW Fifth Avenue, MAC P6101-133, Portland, Oregon, 97201 or at such other place as the holder hereof may designate, in lawful money of
the United States of America and in immediately available funds, the principal sum of Twenty-Four Million Dollars ($24,000,000.00), or so much thereof as may be advanced and be outstanding, with interest thereon, to be computed on each advance from
the date of its disbursement as set forth herein.
DEFINITIONS:
As used herein, the following terms shall have the meanings set forth after each, and any other term defined in this Note shall have the meaning set forth at the place defined:
(a) “Business Day” means any day except a Saturday, Sunday or any other day on which commercial banks in Oregon are authorized
or required by law to close.
(b) “Daily One Month LIBOR” means for any day, the rate of interest equal to LIBOR
then in effect for delivery for a one (1) month period.
(c) “Fixed Rate Term” means a period commencing on a
Business Day and continuing for one (1) month, three (3) months, or six (6) months, as designated by Borrower, during which all or a portion of the outstanding principal balance of this Note bears interest determined in relation to
LIBOR; provided however, that no Fixed Rate Term may be selected for a principal amount less than Two Hundred Thousand Dollars ($200,000.00); and provided further, that no Fixed Rate Term shall extend beyond the scheduled maturity date hereof. If
any Fixed Rate Term would end on a day which is not a Business Day, then such Fixed Rate Term shall be extended to the next succeeding Business Day.
(d) “LIBOR” means the rate per annum (rounded upward, if necessary, to the nearest whole 1/8 of 1%) and determined pursuant to the following formula:
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LIBOR =
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Base LIBOR
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100% - LIBOR Reserve Percentage
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(i) “Base LIBOR” means the rate per annum for United States dollar deposits quoted by Bank as
the Inter-Bank Market Offered Rate, with the understanding that such rate is quoted by Bank for the purpose of calculating effective rates of interest for loans making reference thereto, on the first day of a Fixed Rate Term for delivery of funds on
said date for a period of time approximately equal to the number of days in such Fixed Rate Term and in an amount approximately equal to the principal amount to which such Fixed Rate Term applies. Borrower understands and agrees that Bank may base
its quotation of the Inter-Bank Market Offered Rate upon such offers or other market indicators of the Inter-Bank Market as Bank in its discretion deems appropriate including, but not limited to, the rate offered for U.S. dollar deposits on the
London Inter-Bank Market.
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(ii) “LIBOR Reserve Percentage” means the reserve percentage prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for “Eurocurrency Liabilities” (as defined in Regulation D of the Federal Reserve Board, as amended), adjusted by Bank for expected changes in such reserve percentage
during the applicable Fixed Rate Term.
INTEREST:
(a)
Interest
. The outstanding principal balance of this Note shall bear interest (computed on the basis of a 360-day year, actual days elapsed) either (i) at a fluctuating rate per annum one
and three-quarters of one percent (1.75%) above the Daily One Month LIBOR Rate in effect from time to time, or (ii) at a fixed rate per annum determined by Bank to be one and three-quarters of one percent (1.75%) above LIBOR in effect
on the first day of the applicable Fixed Rate Term. When interest is determined in relation to the Daily One Month LIBOR Rate, each change in the interest rate shall become effective each Business Day that the Bank determines that the Daily One
Month LIBOR Rate has changed. Bank is hereby authorized to note the date, principal amount, interest rate and Fixed Rate Term applicable thereto and any payments made thereon on Bank’s books and records (either manually or by electronic entry)
and/or on any schedule attached to this Note, which notations shall be prima facie evidence of the accuracy of the information noted.
(b)
Selection of Interest Rate Options
. At any time any portion of this Note bears interest determined in relation to LIBOR for a Fixed Rate Term, it may be continued by Borrower at the end of the
Fixed Rate Term applicable thereto so that all or a portion thereof bears interest determined in relation to the Daily One Month LIBOR Rate or to LIBOR for a new Fixed Rate Term designated by Borrower. At any time any portion of this Note bears
interest determined in relation to the Daily One Month LIBOR Rate, Borrower may at any time convert all or a portion thereof so that it bears interest determined in relation to LIBOR for a Fixed Rate Term designated by Borrower. At such time as
Borrower requests an advance hereunder or wishes to select an interest rate determined in relation to the Daily One Month LIBOR Rate or a Fixed Rate Term for all or a portion of the outstanding principal balance hereof, and at the end of each Fixed
Rate Term, Borrower shall give Bank notice specifying: (i) the interest rate option selected by Borrower; (ii) the principal amount subject thereto; and (iii) for each LIBOR selection for a Fixed Rate Term, the length of the
applicable Fixed Rate Term. Any such notice may be given by telephone (or such other electronic method as Bank may permit) so long as, with respect to each LIBOR selection for a Fixed Rate Term, (A) if requested by Bank, Borrower provides to
Bank written confirmation thereof not later than three (3) Business Days after such notice is given, and (B) such notice is given to Bank prior to 10:00 a.m. on the first day of the Fixed Rate Term, or at a later time during any Business
Day if Bank, at its sole option but without obligation to do so, accepts Borrower’s notice and quotes a fixed rate to Borrower. If Borrower does not immediately accept a fixed rate when quoted by Bank, the quoted rate shall expire and any
subsequent LIBOR request from Borrower shall be subject to a redetermination by Bank of the applicable fixed rate. If no specific designation of interest is made at the time any advance is requested hereunder or at the end of any Fixed Rate Term,
Borrower shall be deemed to have made a Daily One Month LIBOR Rate interest selection for such advance or the principal amount to which such Fixed Rate Term applied.
(c)
Taxes and Regulatory Costs
. Borrower shall pay to Bank immediately upon demand, in addition to any other amounts due or to become due hereunder, any and all (i) withholdings, interest
equalization taxes, stamp taxes or other taxes (except income and franchise taxes) imposed by any domestic or foreign governmental authority and related in any
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manner to LIBOR, and (ii) future, supplemental, emergency or other changes in the LIBOR Reserve Percentage, assessment rates imposed by the Federal Deposit Insurance Corporation, or similar
requirements or costs imposed by any domestic or foreign governmental authority or resulting from compliance by Bank with any request or directive (whether or not having the force of law) from any central bank or other governmental authority and
related in any manner to LIBOR to the extent they are not included in the calculation of LIBOR. In determining which of the foregoing are attributable to any LIBOR option available to Borrower hereunder, any reasonable allocation made by Bank among
its operations shall be conclusive and binding upon Borrower.
(d)
Payment of Interest
. Interest accrued on this Note
shall be payable on the first day of each month, commencing October 1, 2012.
(e)
Default Interest
. From and after
the maturity date of this Note, or such earlier date as all principal owing hereunder becomes due and payable by acceleration or otherwise, or at Bank’s option upon the occurrence, and during the continuance of an Event of Default, the
outstanding principal balance of this Note shall bear interest at an increased rate per annum (computed on the basis of a 360-day year, actual days elapsed) equal to four percent (4%) above the rate of interest from time to time applicable to
this Note.
BORROWING AND REPAYMENT:
(a)
Borrowing and Repayment
. Borrower may from time to time during the term of this Note borrow, partially or wholly repay its outstanding borrowings, and reborrow, subject to all of the
limitations, terms and conditions of this Note and of any document executed in connection with or governing this Note; provided however, that the total outstanding borrowings under this Note shall not at any time exceed the principal amount set
forth above or such lesser amount as shall at any time be available hereunder. The unpaid principal balance of this obligation at any time shall be the total amounts advanced hereunder by the holder hereof less the amount of principal payments made
hereon by or for Borrower, which balance may be endorsed hereon from time to time by the holder. The outstanding principal balance of this Note shall be due and payable in full on October 1, 2017.
(b)
Reductions in Availability
. Notwithstanding the principal amount set forth above, the maximum principal amount available under
this Note shall be reduced automatically and without further notice on the first day of each April and on the first day of each October during the term of this Note, commencing April 1, 2013, by the amount of Two Million Five Hundred Thousand
Dollars ($2,500,000.00). If the outstanding principal balance of this Note on any such date is greater than the new maximum principal amount then available hereunder, Borrower shall make a principal reduction on this Note on such date in an amount
sufficient to reduce the then outstanding principal balance hereof to an amount not greater than said new maximum principal amount.
(c)
Advances
. Advances hereunder, to the total amount of the principal sum stated above, may be made by the holder at the oral or written request of (i) Michael L. Elich or James D. Miller,
any one acting alone, who are authorized to request advances and direct the disposition of any advances until written notice of the revocation of such authority is received by the holder at the office designated above, or (ii) any person, with
respect to advances deposited to the credit of any deposit account of Borrower, which advances, when so deposited, shall be conclusively presumed to have been made to or for the benefit of Borrower regardless of the fact that persons other than
those authorized to request advances may have authority to draw against such account. The holder shall have no obligation to determine whether any person requesting an advance is or has been authorized by Borrower.
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(d)
Application of Payments
. Each payment made on this Note shall be credited first,
to any interest then due and second, to the outstanding principal balance hereof. All payments credited to principal shall be applied first, to the outstanding principal balance of this Note which bears interest determined in relation to the Daily
One Month LIBOR Rate, if any, and second, to the outstanding principal balance of this Note which bears interest determined in relation to LIBOR, with such payments applied to the oldest Fixed Rate Term first.
PREPAYMENT:
(a)
Daily One
Month LIBOR Rate
. Borrower may prepay principal on any portion of this Note which bears interest determined in relation to the Daily One Month LIBOR Rate at any time, in any amount and without penalty.
(b)
LIBOR
. Borrower may prepay principal on any portion of this Note which bears interest determined in relation to LIBOR at any
time and in the minimum amount of One Hundred Thousand Dollars ($100,000.00); provided however, that if the outstanding principal balance of such portion of this Note is less than said amount, the minimum prepayment amount shall be the entire
outstanding principal balance thereof. In consideration of Bank providing this prepayment option to Borrower, or if any such portion of this Note shall become due and payable at any time prior to the last day of the Fixed Rate Term applicable
thereto by acceleration or otherwise, Borrower shall pay to Bank immediately upon demand a fee which is the sum of the discounted monthly differences for each month from the month of prepayment through the month in which such Fixed Rate Term
matures, calculated as follows for each such month:
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(i)
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Determine
the amount of interest which would have accrued each month on the amount prepaid at the interest rate applicable to such amount had it remained
outstanding until the last day of the Fixed Rate Term applicable thereto.
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(ii)
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Subtract
from the amount determined in (i) above the amount of interest which would have accrued for the same month on the amount prepaid for the remaining
term of such Fixed Rate Term at LIBOR in effect on the date of prepayment for new loans made for such term and in a principal amount equal to the amount prepaid.
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(iii)
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If the result obtained in (ii) for any month is greater than zero, discount that difference by LIBOR used in (ii) above.
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Borrower acknowledges that prepayment of such amount may result in Bank incurring additional costs, expenses and/or liabilities, and that it is difficult
to ascertain the full extent of such costs, expenses and/or liabilities. Borrower, therefore, agrees to pay the above-described prepayment fee and agrees that said amount represents a reasonable estimate of the prepayment costs, expenses and/or
liabilities of Bank. If Borrower fails to pay any prepayment fee when due, the amount of such prepayment fee shall thereafter bear interest until paid at a rate per annum four percent (4%) above the Daily One Month LIBOR Rate in effect from
time to time (computed on the basis of a 360-day year, actual days elapsed).
-4-
EVENTS OF DEFAULT:
This Note is made pursuant to and is subject to the terms and conditions of that certain Credit Agreement between Borrower and Bank dated as of September 21, 2012, as amended from time to time (the
“Credit Agreement”). Any default in the payment or performance of any obligation under this Note, or any defined event of default under the Credit Agreement, shall constitute an “Event of Default” under this Note.
MISCELLANEOUS:
(a)
Remedies
. Upon the occurrence of any Event of Default, the holder of this Note, at the holder’s option, may declare all sums of principal and interest outstanding hereunder to be immediately due and payable without presentment, demand,
notice of nonperformance, notice of protest, protest or notice of dishonor, all of which are expressly waived by Borrower, and the obligation, if any, of the holder to extend any further credit hereunder shall immediately cease and terminate.
Borrower shall pay to the holder immediately upon demand the full amount of all payments, advances, charges, costs and expenses, including reasonable attorneys’ fees (to include outside counsel fees and all allocated costs of the holder’s
in-house counsel), expended or incurred by the holder in connection with the enforcement of the holder’s rights and/or the collection of any amounts which become due to the holder under this Note, and the prosecution or defense of any action in
any way related to this Note, including without limitation, any action for declaratory relief, whether incurred at the trial or appellate level, in an arbitration proceeding or otherwise, and including any of the foregoing incurred in connection
with any bankruptcy proceeding (including without limitation, any adversary proceeding, contested matter or motion brought by Bank or any other person) relating to Borrower or any other person or entity.
(b)
Obligations Joint and Several
. Should more than one person or entity sign this Note as a Borrower, the obligations of each
such Borrower shall be joint and several.
(c)
Governing Law
. This Note shall be governed by and construed in
accordance with the laws of the State of Oregon.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY BANK CONCERNING
LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER’S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY BANK TO BE ENFORCEABLE.
IN WITNESS WHEREOF, the undersigned has executed this Note as of the date first written above.
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BARRETT BUSINESS SERVICES, INC.
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By:
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/s/ James D. Miller
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Name:
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James D. Miller
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Title:
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Vice President-Finance
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-5-
Exhibit 4.3
Standby Letter of Credit Agreement
(Credit Agreement/Loan Agreement Version)
THIS STANDBY LETTER OF CREDIT AGREEMENT (this “
Agreement
”) is by and between/among the undersigned (individually and collectively, “
Applicant
”; jointly and severally, if
more than one) and Wells Fargo Bank, National Association and/or any of its branches or affiliates (individually and collectively, “
Bank
”).
PRELIMINARY STATEMENTS
A. Applicant is a party to the credit or loan
agreement pursuant to which one or more letters of credit may be issued or will otherwise be governed (as may be amended, supplemented, restated or otherwise modified from time to time, the “
Credit Agreement
”).
B. Subject to the terms and conditions of the Credit Agreement, (a) Bank has agreed to issue standby letter(s) of credit as more
particularly described therein, and/or (b) Bank and Applicant have agreed that certain existing standby letters(s) of credit will now be deemed for all purposes Credits (as defined below) issued under and in connection with this Agreement and
not that certain Standby Letter of Credit Agreement between Bank and Borrower dated June 30, 2009, as may be amended from time to time (the “
Existing Standby Letter of Credit Agreement
” (in each case, as such standby letter(s)
of credit may be amended from time to time, the “
Credit(s)
”) for the account of Applicant, subject to the additional terms and conditions of this Agreement, the Application (as defined below) and such other documents as may be
required by Bank in connection with the issuance of the Credit(s). For purposes of this Agreement, if there is only one (1) Credit issued under the Credit Agreement, then all references herein to “a Credit”, “each Credit”,
“one or more Credits”, “the Credits” or similar references shall be deemed to refer to the Credit only.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Applicant and Bank (by its acceptance of this Agreement and the issuance of a Credit) hereby agree as follows (unless otherwise defined or indicated in this Agreement, capitalized terms used but not defined herein shall have the
meanings given to such terms in the Credit Agreement):
1.
Applications/Instructions
.
The request to issue or amend a Credit
(including any Application for Standby Letter of Credit on which Applicant applied for a letter of credit under the Existing Standby Letter of Credit Agreement, an “
Application
”) shall be irrevocable and in such form as Bank shall
from time to time require or agree to accept (including any type of electronic form or means of communication). Inquiries, communications and instructions (whether written, facsimile or in other electronic form approved by Bank) regarding a Credit,
each Application and this Agreement are each referred to herein as “
Instructions
”. Bank’s records of the content of any Instruction will be conclusive. Applicant expressly agrees that the terms and conditions in this Agreement
shall apply to each Application (including any Application for Standby Letter of Credit on which Applicant applied for a letter of credit under the Existing Standby Letter of Credit Agreement) and the Credit issued pursuant to each Application, and
to transactions under each Application, each Credit and this Agreement.
2.
Applicant’s Reimbursement and Payment Obligations and Terms
.
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(a)
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United States Dollar Drawings.
For each Credit payable or purporting to be payable in United States Dollars, Applicant shall, as to clause (i) below,
reimburse Bank, and as to all other clauses below, pay Bank:
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(i)
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the amount of each drawing paid by Bank under the Credit on the same Business Day (as defined below) such drawing is paid by Bank, if under a sight draft or demand
presentation paid by Bank under such Credit, and at least one (1) Business Day prior to the date when payment is to be made under a time draft (or acceptance relating thereto) or deferred payment obligation;
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(ii)
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commissions, fees and charges in respect of the Credit (including, commissions and fees for issuance, transfer, assignment of proceeds, amendments and drawings and of
any adviser, confirming institution or entity or other nominated person), at such rates, amounts and times as specified in the Credit Agreement, or if not specified in the Credit Agreement, as Bank and Applicant shall mutually agree (or if no
agreement, the rates then customarily charged by Bank);
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(iii)
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interest on each amount payable under this Agreement for each day from and including the date such payment is due through the date of payment, on demand, at the rate
per annum and calculated in the manner specified in the Credit Agreement or, if not specified in the Credit Agreement, at a rate per annum (calculated on the basis of a 360-day year for the actual number of days elapsed) equal to the lesser of
(A) the Prime Rate (as defined below) plus 4% and (B) the highest rate permitted by applicable law;
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(iv)
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Bank’s charges, costs and expenses (including the reasonable legal fees, charges and disbursements of any counsel (including in-house counsel fees and allocated
costs) to Bank incurred in connection with the protection or enforcement of Bank’s rights under this Agreement and any correspondent’s charges, with interest from the date paid or incurred by Bank through the date of payment by Applicant,
on demand, at a rate per annum and calculated in the manner specified in the Credit Agreement or, if not specified in the Credit Agreement, at a rate per annum (calculated on the basis of a 360-day year for the actual number of days elapsed) equal
to the lesser of (A) the Prime Rate plus 4% and (B) the highest rate permitted by applicable law;
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(v)
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if as a result of any Change in Law (as defined below), Bank determines that the cost to Bank of issuing or maintaining any Credit is increased, or any amount received
or receivable by Bank under this Agreement is reduced, or Bank is required to make any payment in connection with any transaction contemplated hereby, then such additional amount or amounts, on demand, as Bank determines will compensate Bank for
such increased cost, reduction or payment; and
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(vi)
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as used in this Agreement, the following capitalized terms have the meanings ascribed to such terms:
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(A)
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“
Business Day
” means any day that is not a Saturday, Sunday or other day on which commercial banks are authorized or required to close at the place
where Bank is obligated to honor a presentation or otherwise act under a Credit.
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(B)
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“
Prime Rate
” means the rate of interest most recently announced within Bank at its principal office as its “Prime Rate”, with the
understanding that the Prime Rate is one of Bank’s base rates and serves as the basis upon which effective rates of interest are calculated for those loans making reference thereto, and is evidenced by the recording thereof after its
announcement in such internal publication or publications as Bank may designate. Each change in the Prime Rate shall be effective from and including the date such change is announced as being effective.
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(C)
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“
Change in Law
” means the occurrence after the date of this Agreement of: (a) the adoption or effectiveness of any law, rule, regulation, judicial
ruling, judgment or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application by any Governmental Authority of any law, rule, regulation or treaty, or (c) the
making or issuance by any Governmental Authority of any request, rule, guideline or directive, whether or not having the force of law; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and
Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives concerning capital adequacy promulgated by the Bank for International
Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the US or foreign regulatory authorities shall, in each case, be deemed to be a “Change in Law,” regardless of the date enacted, adopted or
issued.
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(D)
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“
Governmental Authority
” means the government of any nation or any political subdivision thereof, whether at the national, state, territorial,
provincial, municipal or any other level, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of, or
pertaining to, government (including any supra-national bodies such as the European Union or the European Central Bank).
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(b)
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Foreign Currency Drawings.
If the amount drawn or demanded to be paid under any Credit is not in United States Dollars, Applicant agrees to reimburse or pay
under Section 2(a) above the United States Dollar equivalent of the amount computed at Bank’s selling rate, as of the date of Applicant’s reimbursement or payment. Notwithstanding the foregoing, Bank may, at its sole and absolute
discretion, require or permit Applicant to reimburse or pay under Section 2(a) above in the applicable non-United States Dollars currency.
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(c)
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Immediately Available Funds; No Withholding.
All reimbursements and payments shall be made in immediately available funds, free and clear of and
without deduction for any present or future Taxes (as defined below), set-off or other liabilities, at such time and to such location as Bank may designate from time to time. Applicant shall pay all withholding, stamp and other Taxes imposed by any
taxing authority on reimbursement
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or payment under any Credit and this Agreement, and shall indemnify Bank against all liabilities, costs, claims and expenses resulting from Bank having to pay or from any omission to pay or delay
in paying any Tax. “
Taxes
” means all taxes, fees, duties, levies, imposts, deductions, charges or withholdings of any kind (other than federal and state income taxes and franchise taxes imposed on Bank).
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(d)
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Automatic Debit and Set-Off.
Bank may (but shall not be required to), without demand for reimbursement or payment or notice to Applicant, and in addition to any
other right of set-off that Bank may have, debit any account or accounts maintained by Applicant with any office of Bank (now or in the future) and set-off and apply (i) any balance or deposits (general, special, time, demand, provisional,
final, matured, unmatured, contingent or absolute) in the account(s) and (ii) any sums due or payable from Bank, to the payment of any and all amounts owed by Applicant to Bank.
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(e)
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Obligations Absolute.
Applicant’s reimbursement and payment obligations under this Section 2 are absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever, including, without limitation:
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(i)
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any lack of validity, enforceability or legal effect of any Credit or this Agreement or any term or provision therein or herein;
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(ii)
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payment against presentation of any draft, demand or claim for payment under any Credit or other document presented for purposes of drawing under any Credit
(individually, a “
Drawing Document
” and collectively, the “
Drawing Documents
”) that does not comply in whole or in part with the terms of the applicable Credit or which proves to be fraudulent, forged or invalid in
any respect or any statement therein being untrue or inaccurate in any respect, or which is signed, issued or presented by a Person (as defined below) or a transferee of such Person purporting to be a successor or transferee of the beneficiary of
such Credit;
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(iii)
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Bank or any of its branches or affiliates being the beneficiary of any Credit;
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(iv)
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Bank or any correspondent honoring a drawing against a Drawing Document up to the amount available under any Credit even if such Drawing Document claims an amount in
excess of the amount available under the Credit;
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(v)
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the existence of any claim, set-off, defense or other right that Applicant or any other Person may have at any time against any beneficiary, any assignee of proceeds,
Bank or any other Person; or
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(vi)
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any other event, circumstance or conduct whatsoever, whether or not similar to any of the foregoing that might, but for this Section, constitute a legal or equitable
defense to or discharge of, or provide a right of set-off against, the Obligations (as defined below), whether against Bank, the beneficiary or any other Person;
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provided, however
, that subject to Section 4(b) below, the foregoing shall not release Bank from such liability to Applicant as may be finally determined in a binding arbitration proceeding
brought by Applicant pursuant to the Credit Agreement (or as may
4
be judicially determined in a final, non-appealable judgment by a court of competent jurisdiction to the extent that a judicial determination, proceeding or remedy is permitted by the Credit
Agreement) against Bank following reimbursement and/or payment of the Obligations. “
Obligations
” means all obligations and liabilities, including without limitation, reimbursement and other payment obligations and liabilities, of
Applicant to Bank arising under, or in connection with, this Agreement, including, without limitation, Section 4 below, any Application or any Credit, whether matured or unmatured, absolute or contingent, now existing or hereafter incurred.
“
Person
” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, governmental authority or other entity.
3.
Applicant’s Responsibility
.
Applicant is responsible for preparing and/or approving the final text of the Credit as issued by Bank, irrespective of any assistance Bank may provide
such as drafting or recommending text or by Bank’s use or refusal to use text submitted by Applicant. Applicant understands that the final form of any Credit may be subject to such revisions and changes as are deemed necessary or appropriate by
Bank and Applicant hereby consents to such revisions and changes. Applicant is solely responsible for the suitability of the Credit for Applicant’s purposes. Applicant will examine the copy of the Credit and any other documents sent by Bank in
connection with the Credit and shall promptly notify Bank of any non-compliance with Applicant’s Instructions and of any discrepancy in any document under any presentment or other irregularity. Applicant understands and agrees that Bank is not
required to extend the expiration date of any Credit for any reason, and with respect to any Credit containing an “automatic amendment” to extend the expiration date of such Credit, Bank, in its sole and absolute discretion, may give
notice of nonrenewal of such Credit and, if Applicant does not at any time want such Credit to be renewed, Applicant will so notify Bank at least fifteen (15) calendar days before Bank is required to notify the beneficiary of such Credit or any
advising bank of such nonrenewal pursuant to the terms of such Credit.
4.
Indemnification; Limitation of Liability
.
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(a)
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Indemnification.
Applicant agrees to indemnify and hold harmless Bank (including its branches and affiliates), its correspondents and each of their respective
directors, officers, employees, attorneys and agents (each, including Bank, an “
Indemnified Person
”) from and against any and all claims, suits, judgments, liabilities, losses, fines, damages, penalties, interest, costs and expenses
(including expert witness fees and reasonable legal fees, charges and disbursements of any counsel (including in-house counsel fees and allocated costs) and all expenses of arbitration or litigation and in preparation thereof), which may be incurred
by or awarded against any Indemnified Person (the “
Costs
”), and which arise out of or in connection with, or as a result of:
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(i)
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any Credit or any pre-advice of its issuance;
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(ii)
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any transfer, sale, delivery, surrender or endorsement of any Drawing Document at any time(s) held by any Indemnified Person in connection with any Credit;
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(iii)
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any action or proceeding arising out of, or in connection with, any Credit or this Agreement (whether administrative, judicial or in connection with arbitration),
including any action or proceeding to compel or restrain any presentation or payment under any Credit, or for the wrongful dishonor of, or honoring a presentation under, any Credit;
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(iv)
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any independent undertakings issued by the beneficiary of any Credit;
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(v)
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any unauthorized Instruction or error in computer or electronic transmission;
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(vi)
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an adviser, confirmer or other nominated person seeking to be reimbursed, indemnified or compensated;
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(vii)
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any third party seeking to enforce the rights of an applicant, beneficiary, nominated person, transferee, assignee of Credit proceeds or holder of an instrument or
document;
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(viii)
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the fraud, forgery or illegal action of parties other than the Indemnified Person;
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(ix)
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Bank’s performance of the obligations of a confirming institution or entity that wrongfully dishonors a confirmation; or
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(x)
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the acts or omissions, whether rightful or wrongful, of any present or future
de jure
or
de facto
governmental or regulatory authority or cause or event
beyond the control of such Indemnified Person;
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in each case, including that resulting from Bank’s own
negligence;
provided, however
, that such indemnity shall not be available to any Person claiming indemnification under clauses (i) through (xi) above to the extent that such Costs are found in a binding arbitration proceeding
brought by Applicant pursuant to the Credit Agreement (or as may be judicially determined in a final, non-appealable judgment by a court of competent jurisdiction to the extent the Credit Agreement permits (or applicable law requires) any dispute to
be brought in state or federal court located in the Jurisdiction) to have resulted directly from the gross negligence or willful misconduct of the Indemnified Person claiming indemnity. Applicant hereby agrees to pay Bank on demand from time to time
all amounts owing under this Section. If and to the extent that the Obligations of Applicant under this Section are unenforceable for any reason, Applicant agrees to make the maximum contribution to the Costs permissible under applicable law. This
indemnity provision shall survive termination of this Agreement and all Credits.
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(b)
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Direct Damages; No Punitive Damages.
The liability of Bank (or any other Indemnified Person) under, in connection with and/or arising out of
this Agreement or any Credit (or pre-advice), regardless of the form or legal grounds of the action or proceeding, shall be limited to direct damages suffered by Applicant that are caused directly by Bank’s gross negligence or willful
misconduct in (i) honoring a presentation under a Credit that on its face does not at least substantially comply with the terms and conditions of such Credit, (ii) failing to honor a presentation under a Credit that strictly complies with
the terms and conditions of such Credit or (iii) retaining Drawing Documents presented under a Credit. Bank shall be deemed to have acted with due diligence and reasonable care if Bank’s conduct is in accordance with Standard Letter of
Credit Practice (as defined below) or in accordance with this Agreement. “
Standard Letter of Credit Practice
” means, for Bank, any domestic or foreign law or letter of credit practices applicable in the city in which Bank issued the
applicable Credit or for its branch or correspondent, such laws and practices applicable in the city in which it has advised, confirmed or negotiated such Credit, as the case may be. Such practices shall be (A) of banks that regularly issue
Credits in the particular city, and (B) required or permitted under the ISP (as defined below) or UCP (as defined below), as chosen in the applicable Credit. “
ISP
” means, International Standby Practices 1998 (International
Chamber of Commerce Publication No. 590) and any subsequent revision thereof
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adopted by the International Chamber of Commerce on the date such Credit is issued. “
UCP
” means, Uniform Customs and Practice for Documentary Credits 2007 Revision, International
Chamber of Commerce Publication No. 600 and any subsequent revision thereof adopted by the International Chamber of Commerce on the date such Credit is issued. Applicant’s aggregate remedies against Bank and any Indemnified Person for
wrongfully honoring a presentation under any Credit or wrongfully retaining honored Drawing Documents shall in no event exceed the aggregate amount paid by Applicant to Bank in respect of the honored presentation in connection with such Credit under
Section 2 above, plus interest. Notwithstanding anything to the contrary in this Agreement, neither Bank nor any other Indemnified Person shall, under any circumstances whatsoever, be liable in contract, tort or otherwise for any punitive,
exemplary, consequential, indirect or special damages or losses regardless of whether or not Bank or any other Indemnified Person shall have been advised of the possibility thereof or the form of action in which such damages or losses may be
claimed. Applicant shall take action to avoid and mitigate the amount of any damages claimed against Bank or any other Indemnified Person, including by enforcing its rights in the underlying transaction. Any claim by Applicant under or in connection
with this Agreement or any Credit shall be reduced by an amount equal to the sum of (X) the amount (if any) saved by Applicant as a result of the breach or alleged wrongful conduct complained of; and (Y) the amount (if any) of the loss
that would have been avoided had Applicant taken all reasonable steps to mitigate any loss, and in case of a claim of wrongful dishonor, by specifically and timely authorizing Bank to effect a cure.
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(c)
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No Responsibility or Liability.
Without limiting any other provision of this Agreement, Bank and each other Indemnified Person (if applicable) shall not be
responsible to Applicant for, and/or Bank’s rights and remedies against Applicant and the Obligations shall not be impaired by:
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(i)
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honor of a presentation under any Credit that on its face substantially complies with the terms and conditions of such Credit, even if the Credit requires strict
compliance by the beneficiary;
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(ii)
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honor of a presentation of any Drawing Document that appears on its face to have been signed, presented or issued (A) by any purported successor or transferee of
any beneficiary or other Person required to sign, present or issue such Drawing Document or (B) under a new name of the beneficiary;
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(iii)
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acceptance as a draft of any written or electronic demand or request for payment under a Credit, even if nonnegotiable or not in the form of a draft, and/or Bank may
disregard any requirement that such draft, demand or request bear any or adequate reference to the Credit;
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(iv)
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the identity or authority of any presenter or signer of any Drawing Document or the form, accuracy, genuineness or legal effect of any Drawing Document (other than
Bank’s determination that such Drawing Document appears on its face substantially to comply with the terms and conditions of the Credit);
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(v)
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acting upon any Instruction that it in good faith believes to have been given by a Person authorized to give such Instructions;
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(vi)
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any errors, omissions, interruptions or delays in transmission or delivery of any message, advice or document (regardless of how sent or transmitted) or for errors in
interpretation of technical terms or in translation;
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(vii)
|
any delay in giving or failing to give notice to Applicant;
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(viii)
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any acts, omissions or fraud by, or the solvency of, any beneficiary, any nominated person or entity or any other Person;
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(ix)
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any breach of contract between the beneficiary and Applicant or any of the parties to the underlying transaction;
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(x)
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assertion or waiver of any provision of the ISP or UCP that primarily benefits an issuer of a letter of credit, including any requirement that any Drawing Document be
presented to it at a particular hour or place;
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(xi)
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payment to any paying or negotiating bank (designated or permitted by the terms of the applicable Credit) claiming that it rightfully honored or is entitled to
reimbursement or indemnity under Standard Letter of Credit Practice applicable to it;
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(xii)
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acting or failing to act as required or permitted under Standard Letter of Credit Practice applicable to where it has issued, confirmed, advised or negotiated such
Credit, as the case may be;
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(xiii)
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honor of a presentation after the expiration date of any Credit notwithstanding that a presentation was made prior to such expiration date and dishonored by Bank if
subsequently Bank or any court or other finder of fact determines such presentation should have been honored;
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(xiv)
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dishonor of any presentation that does not strictly comply or that is fraudulent, forged or otherwise not entitled to honor; or
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(xv)
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honor of a presentation that is subsequently determined by Bank to have been made in violation of international, federal, state or local restrictions on the transaction
of business with certain prohibited Persons.
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5.
Representations and Warranties
.
Applicant hereby makes all of the
representations and warranties given to Bank in the Credit Agreement as if set forth in full herein, together with the representations and warranties set forth below, and Applicant further represents and warrants to Bank that all such
representations and warranties are true and correct in all respects (all of which representations and warranties will be repeated as true and correct as of the date of each new Application submitted by Applicant to Bank and as of the date of
issuance of any Credit requested in each such Application):
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(a)
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Approvals.
No authorization, approval or consent of, or notice to or filing with, any governmental or regulatory authority is required to be made in connection
with the execution and delivery by Applicant of this Agreement or the issuance by Bank of any Credit for the account of Applicant pursuant to this Agreement and related Application.
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(b)
|
Compliance with Laws.
Applicant is in compliance with all applicable laws and regulations, except where the noncompliance with which would not
have a material
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adverse effect on Applicant, and no Application, Credit or transaction under any Application and/or Credit will contravene any laws, treaties, rules or regulations of any governmental or
regulatory authority (state, federal or foreign), including, without limitation, any foreign exchange control laws or regulations, United States foreign assets control laws or regulations or currency reporting laws and regulations, now or hereafter
applicable, except where the noncompliance with which would not have a material adverse effect on Applicant.
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6.
Covenants
.
Applicant hereby repeats each of its affirmative and negative covenants in the Credit Agreement as if set forth in full herein, and Applicant further covenants and agrees, at its costs and expense, to execute and deliver to
Bank such additional certificates, instruments and/or documents and to take such additional action as may be reasonably requested by Bank to enable Bank to issue any Credit pursuant to this Agreement and related Application, to protect, exercise
and/or enforce Bank’s rights and interests under this Agreement and/or to give effect to the terms and provisions of this Agreement or any Application. Applicant irrevocably appoints Bank as its attorney-in-fact and authorizes Bank, without
notice to Applicant, to execute and deliver all such documents and to take all such actions on behalf of Applicant. This appointment is coupled with an interest.
7.
Events of Default
.
Each of the following shall be an “
Event of Default
” under this Agreement:
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(a)
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Failure to Reimburse or Pay.
The failure by Applicant or any Person that has guaranteed or provided credit or collateral support for all or any part of the
Obligations (each such Person, a “
Guarantor
”) to reimburse or pay any principal, interest, fee or other amount when due under or in connection with this Agreement or any Credit.
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(b)
|
Credit Agreement Default/Event of Default
.
The occurrence of any “default” or “event of default” (howsoever defined in the Credit
Agreement).
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8.
Remedies
.
Upon the occurrence and during the continuance of any Event of Default:
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(a)
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The full undrawn amount of each Credit, together with any additional amounts payable hereunder, shall, at Bank’s option, become due and payable immediately
without demand upon or notice to Applicant;
provided, however
, upon the occurrence of any Event of Default specified in Section 7(b) above that results in the automatic acceleration of all outstanding indebtedness under the Credit
Agreement, the amount of each Credit, together with any additional amounts payable hereunder, shall, automatically and without any notice to Applicant or any other act by Bank, become immediately due and payable; and
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(b)
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Bank may exercise from time to time any of the rights, powers and remedies available to Bank under this Agreement or the Credit Agreement, under any other
documents now or in the future evidencing or securing the Obligations or under applicable law, and all such remedies shall be cumulative and not exclusive.
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With respect to Bank’s exercise of any of the foregoing rights, powers and/or remedies, Applicant hereby waives presentment, protest, dishonor, notice of dishonor, demand, notice of protest, notice
of non-payment, notice of acceptance of this Agreement and any other notice or demand of any kind from Bank.
9.
Subrogation
.
The Bank, at its option, shall be subrogated to Applicant’s rights against any Person who may be liable to Applicant on any transaction or obligation underlying any Credit, to the rights of any holder in due course or Person with similar status
against Applicant, and to the rights of any beneficiary or any successor or assignee of any beneficiary.
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10.
Governing Law; UCP; ISP; Standard Letter of Credit Practice
.
This Agreement and each
Credit shall be governed by and construed in accordance with (a)(1) in the case of each Credit, the substantive laws of the jurisdiction specified in the applicable Credit, or if no governing law is so specified, the substantive laws of the
jurisdiction of the office of Bank that issued the applicable Credit, and (2) in the case of this Agreement, the governing law specified in the Credit Agreement, or if no governing law is so specified, the substantive laws of the jurisdiction
of the office of Bank that issued the applicable Credit (as applicable, the “
Jurisdiction
”), in either case, including the Uniform Commercial Code as in effect from time to time in such Jurisdiction (the “
UCC
”), but
excluding any choice of law rules that would apply the law of a different jurisdiction, and (b) the ISP or UCP, as set forth in each Credit, which is, as applicable, incorporated herein by reference into this Agreement and which shall control
(to the extent not prohibited by the law of the Jurisdiction) in the event of any inconsistent provisions of such law. Unless Applicant specifies otherwise in its Application for a Credit, Applicant agrees that Bank may issue a Credit subject to the
ISP or UCP. Bank’s privileges, rights and remedies under the ISP, UCP shall be in addition to, and not in limitation of, its privileges, rights, and remedies expressly provided for herein. The ISP and UCP shall serve, in the absence of proof to
the contrary, as evidence of Standard Letter of Credit Practice with respect to matters covered therein. To the extent permitted by applicable law, (i) this Agreement shall prevail in case of conflict between this Agreement, the UCC and/or
Standard Letter of Credit Practice, (ii) the ISP shall prevail in case of conflict between the ISP and the UCC or other Standard Letter of Credit Practice if the Credit is governed by the ISP, and (iii) the UCP shall prevail in case of a
conflict between the UCP and the UCC or other Standard Letter of Credit Practice if the Credit is governed by the UCP.
11.
Arbitration
.
Applicant and Bank hereby agree to and incorporate by reference the arbitration provisions of the Credit Agreement as if set forth in full herein.
12.
Consent to Jurisdiction and Venue
.
Without waiving or modifying any of the mandatory arbitration provisions set forth in the Credit Agreement and to the extent such arbitration
requirements permit (or applicable law requires) any dispute to be brought in state or federal court located in the Jurisdiction, in any proceeding involving, directly or indirectly, any matter arising out of or related to this Agreement or any
Credit issued in connection with this Agreement and Applicant’s Application with respect to such Credit, Applicant hereby irrevocably submits to the nonexclusive jurisdiction of any state or federal court located in any county in the
Jurisdiction and agrees not to raise any objection to the Jurisdiction or to the laying or maintaining of the venue of any such proceeding in the Jurisdiction. Applicant agrees that service of process in any such proceeding may be duly effected upon
it by mailing a copy thereof, by certified mail, postage prepaid, to it at its address set forth in Section 15 below.
13.
WAIVER
OF JURY TRIAL
.
WITHOUT WAIVING OR MODIFYING ANY OF THE MANDATORY ARBITRATION REQUIREMENTS AND PROVISIONS SET FORTH IN THE CREDIT AGREEMENT, TO THE EXTENT SUCH ARBITRATION REQUIREMENTS PERMIT (OR APPLICABLE LAW REQUIRES) ANY DISPUTE TO BE
BROUGHT IN STATE OR FEDERAL COURT LOCATED IN THE JURISDICTION, APPLICANT AND WHEN IT ISSUES A CREDIT, BANK KNOWINGLY AND VOLUNTARILY WAIVE ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY LITIGATION BASED ON, ARISING OUT OF, OR RELATING TO THE
AGREEMENT OR THE CREDIT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (ORAL OR WRITTEN) OR ACTIONS OF APPLICANT OR BANK WITH RESPECT THERETO. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BANK TO ISSUE THE CREDIT.
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14.
Bankruptcy and Forfeiture Reinstatement
.
If any consideration transferred to Bank in
payment of, or as collateral for, or in satisfaction of the Obligations, shall be voided in whole or in part as a result of (a) a subsequent bankruptcy or insolvency proceeding; (b) any forfeiture or seizure action or remedy; (c) any
fraudulent transfer or preference action or remedy; or (d) any other civil, criminal or equitable proceeding or remedy, then Bank’s claim to recover the voided consideration shall be a new and independent claim arising under this Agreement
and shall be jointly and severally due and payable immediately by Applicant.
15.
Notices
.
Unless otherwise expressly provided
herein, all notices, Instructions, approvals, requests, demands, consents and other communications provided for hereunder (collectively, “
notices
”) shall be in writing (including by facsimile or other electronic transmission
approved by Bank). All notices shall be sent by regular U.S. mail or certified mail prepaid, by facsimile or other electronic transmission approved by Bank, by hand delivery, by
Federal Express
(or other comparable domestic or international
delivery service) prepaid to the applicable address, facsimile number or electronic mail address set forth on the signature page hereof in the case of Applicant. All notices to Bank shall be directed to the office of Bank issuing the Credit and, if
Bank approves of receiving notices by email, to the email address of Bank provided from time to time by Bank to Applicant. Bank may, but shall not be obligated to, require authentication of any electronic transmission. Notices sent by hand,
Federal Express
(or other comparable domestic or international delivery service) or certified mail shall be deemed to have been given when received; notices sent by regular U.S. mail shall be deemed to have been received five (5) days
after deposit into the U.S. mail, notices sent by facsimile or other electronic transmission shall be deemed to have been given when sent and receipt has been confirmed. Applicant or Bank may change its address for notices by notifying the other of
the new address in any manner permitted by this Section.
16.
Waiver and Amendments
.
No modification, amendment or waiver of, or
consent to any departure by Applicant from, any provision of this Agreement will be effective unless made in a writing signed by Bank, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which
given. Bank’s consent to any amendment, waiver or modification does not mean that Bank will consent or has consented to any other or subsequent Instruction to amend, modify or waive a term of this Agreement or any Credit. No delay by Bank in
exercising any of its rights or remedies shall operate as a waiver, nor shall any single or partial waiver of any right or remedy preclude any other further exercise of that right or remedy, or the exercise of any other right or remedy.
17.
Successors and Assigns
.
This Agreement will be binding on Applicant’s heirs, executors, administrators, legal
representatives, successors and permitted assigns, and shall inure to the benefit of Bank’s successors and assigns. Bank may assign this Agreement and its rights to reimbursement regarding any Credit, in whole or in part, without
Applicant’s consent. Applicant may not assign or transfer any of its interests, rights or remedies related to this Agreement or any Credit, in whole or in part, without the prior written consent of Bank.
18.
Severability
.
Whenever possible, each provision of the Agreement shall be interpreted in a manner as to be effective and valid under
applicable law, but if any provision of the Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such
provision or any remaining provisions of this Agreement.
19.
Entire Agreement; Amendment and Restatement
.
This Agreement,
together with any Application(s) accepted by Bank and any other agreement, document or instrument referred to herein, constitute the final, exclusive and entire agreement and understanding of, and supersede all prior or contemporaneous, oral or
written, agreements, understandings, representations and negotiations between, the parties relating to the subject matter of this Agreement, provided that this Agreement shall not
11
supersede any reimbursement agreement (however titled) that has been entered into specifically with respect to any “direct pay” standby letter of credit or other similar standby letter
of credit where the terms of such reimbursement agreement have been drafted to specifically address the particular attributes of, or the particular circumstances of the underlying transaction supported by, such standby letter of credit. Without
limiting the generality of the foregoing, Applicant hereby agrees, for good and valuable consideration, that the Existing Standby Letter of Credit Agreement, regardless of whether it was addressed to Bank or some other person or entity, be replaced
in its entirety by this Agreement so that the Credits which were originally issued under and in connection with the Existing Standby Letter of Credit Agreement will now be deemed for all purposes Credits issued under and in connection with this
Agreement and not the existing Standby Letter of Credit Agreement.
20.
Conflicts
.
In the event of any conflict or inconsistency
between the provisions of this Agreement and the provisions of the Credit Agreement, (a) the provisions of this Agreement shall control as to (i) the definition of “Business Day” in Section 2 hereof, (ii) compliance
with laws in Section 5(b) hereof and (iii) notices in Section 15 hereof as it applies to this Agreement, and (b) the provisions of the Credit Agreement shall control all other conflicts or inconsistencies.
21.
Continuing Agreement
.
This Agreement is a continuing agreement and may not be terminated by Applicant except upon (a) thirty
(30) days’ prior written notice of such termination by Applicant to Bank at the address set forth on the most recent Credit issued hereunder, (b) reimbursement and/or payment of all Obligations, and (c) the expiration or
cancellation of all Credits issued hereunder. Notwithstanding the foregoing sentence, if a Credit is issued in favor of a sovereign or commercial entity, which is to issue a guarantee or undertaking on Applicant’s behalf in connection
therewith, or is issued as support for such a guarantee, Applicant shall remain liable with respect to such Credit until Bank is fully released in writing by such entity.
22.
Joint and Several Liability
.
If this Agreement is signed by two or more Applicants:
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(a)
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each shall be deemed to make to Bank all the representations, warranties and covenants contained herein, and each shall be jointly and severally liable under
this Agreement; and
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(b)
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each Applicant hereby waives any defense to its liability for reimbursement, payment and/or performance of the Obligations based upon or arising by reason of:
(i) principles of suretyship or any disability or other defense of any other Applicant or any other Person; (ii) the cessation or limitation from any cause whatsoever, other than reimbursement and/or payment in full, of the liability of
the other Applicant(s) or any other Person for the Obligations; (iii) any lack of authority of any officer, director, partner, agent or other Person acting or purporting to act on behalf of the other Applicant(s) or any defect in the formation
of the other Applicant(s); (iv) any act or omission by Bank which directly or indirectly results in or aids the discharge of the other Applicant(s) by operation of law or otherwise, or which in any way impairs or suspends any rights or remedies
of Bank against the other Applicant(s); (v) any impairment of the value of any interest in any security for the payment and performance under this Agreement, including without limitation, the failure to obtain or maintain perfection or
recordation of any interest in any such security, the release of any such security without substitution, and/or the failure to preserve the value of, or to comply with applicable law in disposing of, any such security; or (vi) any modification
of the obligations or liabilities of the other Applicant(s) for the Obligations, including without limitation the renewal, extension, acceleration or other change in time for reimbursement or payment of, or other change in the terms of, the
indebtedness of any Applicant for the Obligations, including increase or decrease of the rate of interest thereon.
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Until all Obligations shall have been paid in full, no Applicant shall have any right of subrogation. Each
Applicant hereby waives all rights and defenses it may have arising out of (A) any election of remedies by Bank, even though that election of remedies, such as a non-judicial foreclosure with respect to any security for the Obligations,
destroys its rights of subrogation or its rights to proceed against the other Applicant(s) for reimbursement, or (B) any loss of rights it may suffer by reason of any rights, powers or remedies of the other Applicant(s) in connection with any
anti-deficiency laws or any other laws limiting, qualifying or discharging any Applicant’s indebtedness for the Obligations. Until all Obligations shall have been paid in full, each Applicant hereby waives any right to enforce any remedy which
Bank now has or may hereafter have against the other Applicant(s) or any other Person, and waives any benefit of, or any right to participate in, any security now or hereafter held by Bank. Unless otherwise agreed by Bank, Bank in its discretion may
accept an Application or seek or receive Instruction from, or give or send notice to, any Applicant regarding a Credit, including, without limitation, any amendment thereto or waiver of any discrepancy thereunder, and until Bank at the office at
which the relevant Credit is issued actually receives written notice of revocation, each Applicant shall be bound by and hereby affirms the Instructions of the other.
[End of text; signature page to follow]
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APPLICANT:
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BARRETT BUSINESS SERVICES, INC.
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(Corporation or Firm)
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(Corporation or Firm)
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By:
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/s/ James D. Miller
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By:
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Name:
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James D. Miller
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Name:
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Title:
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Vice President-Finance
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Title:
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(Individual)
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(Individual)
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(Individual)
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(Individual)
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Facsimile:
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(
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Facsimile:
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(
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Email:
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Email:
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Dated as of:
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September 18, 2012
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14
Exhibit 4.4
TERM NOTE
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$5,512,500.00
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Portland, Oregon
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November 1, 2012
FOR VALUE RECEIVED, the undersigned BARRETT BUSINESS SERVICES, INC. (“Borrower”) promises to pay to the order of WELLS FARGO BANK, NATIONAL ASSOCIATION (“Bank”) at its office at
Portland RCBO, 1200 SW Fifth Avenue, MAC P6101-133, Portland, Oregon 97201, or at such other place as the holder hereof may designate, in lawful money of the United States of America and in immediately available funds, the principal sum of Five
Million Five Hundred Twelve Thousand Five Hundred Dollars ($5,512,500.00), with interest thereon as set forth herein.
DEFINITIONS:
As used herein, the following terms shall have the meanings set forth after each, and any other term defined in this Note
shall have the meaning set forth at the place defined:
(a) “Business Day” means any day except a Saturday, Sunday
or any other day on which commercial banks in Oregon are authorized or required by law to close.
(b) “Fixed Rate
Term” means a period of one (1) month during which the entire outstanding principal balance of this Note bears interest determined in relation to LIBOR, with the understanding that (i) the initial Fixed Rate Term shall commence on the
date this Note is disbursed, (ii) each successive Fixed Rate Term shall commence automatically, and without notice to or consent from Borrower, on the first Business Day following the date on which the immediately preceding Fixed Rate Term
matures, and (iii) if, on the first Business Day of the last Fixed Rate Term applicable hereto the remaining term of this Note is less than one (1) month, said Fixed Rate Term shall be in effect only until the scheduled maturity date
hereof. If any Fixed Rate Term would end on a day which is not a Business Day, then such Fixed Rate Term shall be extended to the next succeeding Business Day.
(c) “LIBOR” means the rate per annum (rounded upward, if necessary, to the nearest whole 1/8 of 1%) and determined pursuant to the following formula:
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LIBOR =
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Base LIBOR
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100% - LIBOR Reserve Percentage
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(i) “Base LIBOR” means the rate per annum for United States dollar deposits quoted by Bank as
the Inter-Bank Market Offered Rate, with the understanding that such rate is quoted by Bank for the purpose of calculating effective rates of interest for loans making reference thereto, on the first day of a Fixed Rate Term for delivery of funds on
said date for a period of time approximately equal to the number of days in such Fixed Rate Term and in an amount approximately equal to the principal amount to which such Fixed Rate Term applies. Borrower understands and agrees that Bank may base
its quotation of the Inter-Bank Market Offered Rate upon such offers or other market indicators of the Inter-Bank Market as Bank in its discretion deems appropriate including, but not limited to, the rate offered for U.S. dollar deposits on the
London Inter-Bank Market.
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(ii) “LIBOR Reserve Percentage” means the reserve percentage prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for “Eurocurrency Liabilities” (as defined in Regulation D of the Federal Reserve Board, as amended), adjusted by Bank for expected changes in such reserve percentage
during the applicable Fixed Rate Term.
(d) “Prime Rate” means at any time the rate of interest most recently
announced within Bank at its principal office as its Prime Rate, with the understanding that the Prime Rate is one of Bank’s base rates and serves as the basis upon which effective rates of interest are calculated for those loans making
reference thereto, and is evidenced by the recording thereof after its announcement in such internal publication or publications as Bank may designate.
INTEREST:
(a)
Interest
. The outstanding principal balance of this Note
shall bear interest (computed on the basis of a 360-day year, actual days elapsed) at a fixed rate per annum determined by Bank to be two and one quarter of one percent (2.25%) above LIBOR in effect on the first day of each Fixed Rate Term.
With respect to each Fixed Rate Term hereunder, Bank is hereby authorized to note the date and interest rate applicable thereto and any payments made thereon on Bank’s books and records (either manually or by electronic entry) and/or on any
schedule attached to this Note, which notations shall be prima facie evidence of the accuracy of the information noted.
(b)
Taxes and Regulatory Costs
. Borrower shall pay to Bank immediately upon demand, in addition to any other amounts due or to become due hereunder, any and all (i) withholdings, interest equalization taxes, stamp taxes or other taxes
(except income and franchise taxes) imposed by any domestic or foreign governmental authority and related in any manner to LIBOR, and (ii) future, supplemental, emergency or other changes in the LIBOR Reserve Percentage, assessment rates
imposed by the Federal Deposit Insurance Corporation, or similar requirements or costs imposed by any domestic or foreign governmental authority or resulting from compliance by Bank with any request or directive (whether or not having the force of
law) from any central bank or other governmental authority and related in any manner to LIBOR to the extent they are not included in the calculation of LIBOR. In determining which of the foregoing are attributable to any LIBOR option available to
Borrower hereunder, any reasonable allocation made by Bank among its operations shall be conclusive and binding upon Borrower.
(c)
Payment of Interest
. Interest accrued on this Note shall be payable on the first day of each month, commencing
December 1, 2012.
(d)
Default Interest
. From and after the maturity date of this Note, or such earlier date as
all principal owing hereunder becomes due and payable by acceleration or otherwise, or at Bank’s option upon the occurrence, and during the continuance of an Event of Default, the outstanding principal balance of this Note shall bear interest
at an increased rate per annum (computed on the basis of a 360-day year, actual days elapsed) equal to four percent (4%) above the rate of interest from time to time applicable to this Note.
REPAYMENT AND PREPAYMENT:
(a)
Repayment
. Principal shall be payable on the first day of each month in installments of Eighteen Thousand Three Hundred Seventy-Five Dollars ($18,375.00) each, commencing December 1, 2012, and continuing up to and including
October 1, 2017, with a final installment consisting of all remaining unpaid principal due and payable in full on November 1, 2017.
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(b)
Application of Payments
. Each payment made on this Note shall be credited first,
to any interest then due and second, to the outstanding principal balance hereof.
(c)
Prepayment
. From and after the
date on which all of Borrower’s obligations under that certain Revolving Reducing Note in the original principal amount of $24,000,000.00 dated September 18, 2012 executed by Borrower in favor of Bank have been satisfied in full and Bank
obligations to extend credit to Borrower thereunder have been terminated, Borrower may prepay principal on this Note at any time and in the minimum amount of One Hundred Thousand Dollars ($100,000.00); provided however, that if the outstanding
principal balance of this Note is less than said amount, the minimum prepayment amount shall be the entire outstanding principal balance hereof. In consideration of Bank providing this prepayment option to Borrower, or if this Note shall become due
and payable at any time prior to the last day of any Fixed Rate Term by acceleration or otherwise, Borrower shall pay to Bank immediately upon demand a fee which is the sum of the discounted monthly differences for each month from the month of
prepayment through the month in which such Fixed Rate Term matures, calculated as follows for each such month:
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(i)
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Determine
the amount of interest which would have accrued each month on the amount prepaid at the interest rate applicable to such amount had it remained
outstanding until the last day of the Fixed Rate Term applicable thereto.
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(ii)
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Subtract
from the amount determined in (i) above the amount of interest which would have accrued for the same month on the amount prepaid for the remaining
term of such Fixed Rate Term at LIBOR in effect on the date of prepayment for new loans made for such term and in a principal amount equal to the amount prepaid.
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(iii)
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If the result obtained in (ii) for any month is greater than zero, discount that difference by LIBOR used in (ii) above.
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Borrower acknowledges that prepayment of such amount may result in Bank incurring additional costs, expenses and/or liabilities, and that it is difficult
to ascertain the full extent of such costs, expenses and/or liabilities. Borrower, therefore, agrees to pay the above-described prepayment fee and agrees that said amount represents a reasonable estimate of the prepayment costs, expenses and/or
liabilities of Bank. If Borrower fails to pay any prepayment fee when due, the amount of such prepayment fee shall thereafter bear interest until paid at a rate per annum two percent (2%) above the Prime Rate in effect from time to time
(computed on the basis of a 360-day year, actual days elapsed).
All prepayments of principal shall be applied on the most
remote principal installment or installments then unpaid.
EVENTS OF DEFAULT:
This Note is made pursuant to and is subject to the terms and conditions of that certain Restated Credit Agreement between Borrower and
Bank dated as of November 1, 2012, as amended from time to time (the “Credit Agreement”). Any default in the payment or performance of any obligation under this Note, or any defined event of default under the Credit Agreement,
shall constitute an “Event of Default” under this Note.
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MISCELLANEOUS:
(a)
Remedies
. Upon the sale, transfer, hypothecation, assignment or other encumbrance, whether voluntary, involuntary or by operation of law, of all or any interest in any real property securing
this Note, or upon the occurrence of any Event of Default, the holder of this Note, at the holder’s option, may declare all sums of principal and interest outstanding hereunder to be immediately due and payable without presentment, demand,
notice of nonperformance, notice of protest, protest or notice of dishonor, all of which are expressly waived by Borrower. Borrower shall pay to the holder immediately upon demand the full amount of all payments, advances, charges, costs and
expenses, including reasonable attorneys’ fees (to include outside counsel fees and all allocated costs of the holder’s in-house counsel), expended or incurred by the holder in connection with the enforcement of the holder’s rights
and/or the collection of any amounts which become due to the holder under this Note, and the prosecution or defense of any action in any way related to this Note, including without limitation, any action for declaratory relief, whether incurred at
the trial or appellate level, in an arbitration proceeding or otherwise, and including any of the foregoing incurred in connection with any bankruptcy proceeding (including without limitation, any adversary proceeding, contested matter or motion
brought by Bank or any other person) relating to Borrower or any other person or entity.
(b)
Obligations Joint and
Several
. Should more than one person or entity sign this Note as a Borrower, the obligations of each such Borrower shall be joint and several.
(c)
Governing Law
. This Note shall be governed by and construed in accordance with the laws of the State of Oregon.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY BANK CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY
THE BORROWER’S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY BANK TO BE ENFORCEABLE.
IN
WITNESS WHEREOF, the undersigned has executed this Note as of the date first written above.
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BARRETT BUSINESS SERVICES, INC.
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By:
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/s/ James D. Miller
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Name:
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James D. Miller
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Title:
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Vice President-Finance
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