Form 8-K - Current report

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported): January 24, 2024

 

Rubicon Technologies, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware		001-40910		88-3703651
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

 

335 Madison Avenue, 4th Floor New York, NY		10017
(Address of principal executive offices)		(Zip Code)

 

[phone]

(Registrant’s telephone number, including area code)

 

Not Applicable

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Class A common stock, par value $0.0001 per share		RBT		New York Stock Exchange

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ☒

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 

 

 

 

Item 1.01 Entry into a Material Definitive Agreement

 

Amendment to Credit, Security and Guaranty Agreement

 

On January 24, 2024, Rubicon Technologies, Inc. (the “Company”) entered into Amendment No. 3 to Credit, Security, and Guaranty Agreement (“Amendment No. 3”) with Rubicon Technologies Holdings, LLC, a Delaware limited liability company (“Holdings”), Rubicon Technologies International, Inc., a Delaware corporation, Rubicon Global, LLC, a Delaware limited liability company, Cleanco LLC, a New Jersey limited liability company, Charter Waste Management, Inc., a Delaware corporation, RiverRoad Waste Solutions, Inc., a New Jersey corporation (each individually as a “Borrower”, and collectively as “Borrowers”), Midcap Funding IV Trust, a Delaware statutory trust, as Agent (in such capacity, together with its successors and assigns, “Agent”) and the other financial institutions or other entities from time to time party thereto. Amendment No. 3 further amends the Credit, Security, and Guaranty Agreement, dated as of June 7, 2023, by and among the Company, Holdings, Borrowers, and Agent (as amended on September 17, 2023 and December 5, 2023, the “Credit Agreement”) by (i) adding the defined terms Sponsor Guaranty, Sponsor Guaranty Termination Date, and Third Amendment Effective Date, (ii) amending and restating the defined term Borrowing Base, (iii) revising the defined term Financing Documents, and (iv) amending and restating Section 10.1(a) “Events of Default.”

 

The foregoing description of Amendment No. 3 does not purport to be complete and is qualified in its entirety by reference to the full text of the same, which is attached to this Current Report on Form 8-K as Exhibit 10.1 and incorporated by reference herein. Capitalized terms used herein but not defined herein shall have the meaning set forth for such terms in the Credit Agreement.

 

Sponsor Guaranty

 

On January 24, 2024, the Agent and Rodina Capital (the “Guarantor” or “Rodina”) entered into the Sponsor Guaranty Agreement (the “Sponsor Guaranty”). Pursuant to the Sponsor Guaranty, the Guarantor, among other things, provided an absolute, unconditional and irrevocable guarantee, as primary obligor and not merely as surety, the full and punctual performance and payment when due, whether at stated maturity or earlier, by reason of acceleration, mandatory prepayment or otherwise, in accordance with any Financing Document, of the Borrowers’ Obligations, and each other Credit Party (as defined in the Sponsor Guaranty) whether existing or incurred at a later date. Further to the Sponsor Guaranty, the parties thereto also agreed, among the other terms and conditions stipulated therein, that (i) the liability of the Guarantor is limited as disclosed therein, and (ii) the Agent may not demand payment under the Sponsor Guaranty unless a Guaranty Trigger Event (as defined in the Sponsor Guaranty) has occurred and is continuing.

 

The foregoing description of the Sponsor Guaranty does not purport to be complete and is qualified in its entirety by reference to the full text of the same, which is attached to this Current Report on Form 8-K as Exhibit 10.2 and incorporated by reference herein.

 

Sponsor Capital Contribution Agreement

 

On January 24, 2024, the Company entered into the Sponsor Capital Contribution Agreement (the “Sponsor Contribution Agreement”) with the Borrowers and Rodina. Pursuant to the Sponsor Contribution Agreement, Rodina agreed to make a cash contribution (the “Contribution”) to the Borrowers equal to the lesser of (a) $5,000,000 or (b) the amount (net of all costs and expenses related thereto) necessary to cause liquidity to equal $16,000,000 on a pro forma basis after giving effect to the Contribution. The Contribution will only be made if (a) the Sponsor Guaranty Termination Date is extended to June 15, 2024, and (b) the liquidity is less than $16,000,000. The proceeds from the Contribution will be held in an account in which the Agent has a perfected security interest. Further, in exchange for the Contribution, the Company (on behalf of the Borrowers) agreed to issue Rodina shares of the Company’s Class A common stock, par value $0.0001 per share, in an amount equal to the Contribution divided by the Conversion Price (as defined in the Sponsor Contribution Agreement).

 

The foregoing description of the Sponsor Contribution Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the same, which is attached to this Current Report on Form 8-K as Exhibit 10.3 and incorporated by reference herein.

 

1

 

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibits No.		Description
10.1		Amendment No. 3 To Credit, Security and Guaranty Agreement, dated January 24, 2024, by and between Rubicon Technologies, Inc. and MidCap Funding IV Trust.
10.2		The Sponsor Guaranty Agreement, dated January 24, 2024, by and between Rodina Capital and MidCap Funding IV Trust.
10.3		The Sponsor Capital Contribution Agreement dated January 24, 2024, by and between Rubicon Technologies, Inc., Rubicon Technologies Holdings, LLC, Rubicon Technologies International, Inc., Rubicon Global, LLC, CleanCo LLC, Charter Waste Management, Inc., RiverRoad Waste Solutions, Inc., and Rodina Capital.

 

2

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

Rubicon Technologies, Inc.
By:	/s/ Kevin Schubert
	Name:	Kevin Schubert
	Title:	Chief Financial Officer, President and Secretary

 

Date: January 30, 2024

 

3

 

Exhibit 10.1

 

Execution Version

 

amendment No. 3 to CREDIT, SECURITY AND GUARANTY AGREEMENT

 

This AMENDMENT NO. 3 TO CREDIT, SECURITY AND GUARANTY AGREEMENT (this “Agreement”) is made as of January 24, 2024, by and among RUBICON TECHNOLOGIES HOLDINGS, LLC, a Delaware limited liability company (“Holdings”), RUBICON TECHNOLOGIES INTERNATIONAL, INC., a Delaware corporation, RUBICON GLOBAL, LLC, a Delaware limited liability company, CLEANCO LLC, a New Jersey limited liability company, CHARTER WASTE MANAGEMENT, INC., a Delaware corporation, RIVERROAD WASTE SOLUTIONS, INC., a New Jersey corporation (each individually as a “Borrower”, and collectively as “Borrowers”), RUBICON TECHNOLOGIES, INC., a Delaware corporation (“Parent”), MidCap Funding IV Trust, a Delaware statutory trust, as Agent (in such capacity, together with its successors and assigns, “Agent”) and the other financial institutions or other entities from time to time parties to the Credit Agreement referenced below, each as a Lender, constituting the Required Lenders.

 

RECITALS

 

A. Agent, Lenders, Borrowers and Parent have entered into that certain Credit, Security and Guaranty Agreement, dated as of June 7, 2023 (as previously amended, modified, supplemented and restated prior to the date hereof, the “Original Credit Agreement” and as amended hereby and as it may be further amended, modified, supplemented and restated from time to time, the “Credit Agreement”), pursuant to which the Lenders have agreed to make certain advances of money and to extend certain financial accommodations to Borrowers in the amounts and manner set forth in the Credit Agreement.

 

B. Borrower Representative has requested, and Agent and the Lenders party hereto, which collectively constitute at least the Required Lenders, have agreed, to amend certain provisions of the Original Credit Agreement, all in accordance with the terms and subject to the conditions set forth herein.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the foregoing, the terms and conditions set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Agent, Lenders, Borrowers and Parent hereby agree as follows:

 

1. Recitals. This Agreement shall constitute a Financing Document and the Recitals and each reference to the Credit Agreement, unless otherwise expressly noted, will be deemed to reference the Credit Agreement as amended hereby. The Recitals set forth above shall be construed as part of this Agreement as if set forth fully in the body of this Agreement and capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Credit Agreement (including those capitalized terms used in the Recitals hereto).

 

2. Amendments to Original Credit Agreement. Subject to the terms and conditions of this Agreement, including, without limitation, the conditions to effectiveness set forth in Section 4 below, the Original Credit Agreement is hereby amended as follows:

 

(a) Section 1.1 of the Original Credit Agreement is hereby amended by adding the following definitions in alphabetical order:

 

“Sponsor Guaranty” means that certain Sponsor Guaranty Agreement, dated as of the Third Amendment Effective Date, made by Rodina Capital, in favor of the Agent.

 

MidCap / Rubicon / Amendment No. 3 to Credit Agreement

 

 

 

“Sponsor Guaranty Termination Date” means, initially, March 15, 2024; provided that the Borrower Representative may, no later than five (5) Business Days prior to the then-current Sponsor Guaranty Termination Date, provide Agent with a written request via email to Agent for a one-month extension of such Sponsor Guaranty Termination Date, following which, the Sponsor Guaranty Termination Date shall be extended for a period of one month from the then-current Sponsor Guaranty Termination Date, so long as (x)(i) no Default or Event of Default has occurred and is continuing, or would result from such extension and (ii) Borrower Representative shall have delivered evidence satisfactory to Agent (in its sole discretion) that Liquidity is at least $16,000,000 as of the then-current Sponsor Guaranty Termination Date or (y) Agent, in its sole discretion, otherwise consents to such extension via email to Borrower Representative of the Sponsor Guaranty Termination Date; provided further that (x) no more than three (3) such extension requests shall be permitted, (y) in no event shall the Sponsor Guaranty Termination Date be extended beyond June 15, 2024 and (z) no extension requests shall be permitted following the occurrence of the Sponsor Guaranty Termination Date.

 

“Third Amendment Effective Date” means January 24, 2024.”

 

(b) The definition of “Borrowing Base” in Section 1.1 of the Original Credit Agreement is hereby amended and restated in its entirety to read as follows:

 

““Borrowing Base” means the sum of:

 

(a) the product of (i) ninety percent (90.0%) multiplied by (ii) the aggregate net amount at such time of the Eligible Accounts; plus

 

(b) the product of (i) fifty percent (50.0%) multiplied by (ii) the aggregate net amount at such time of the Eligible Unbilled Accounts (Without Invoice); plus

 

(c) the product of (i) eighty-five percent (85.0%) multiplied by (ii) the aggregate net amount at such time of the Eligible Unbilled Accounts (With Invoice); plus

 

(d) at any time as, and for so long as, the Affiliate Letter of Credit remains outstanding and in full force and effect, $15,000,000; plus

 

(e) at any time prior to the Sponsor Guaranty Termination Date, for so long as, the Sponsor Guaranty remains outstanding and in full force and effect, $5,000,000; minus

 

(f) the amount of the Dilution Reserve, the Availability Reserve and any other reserves and/or adjustments established from time to time by Agent in its Permitted Discretion.

 

provided that (x) the amount of the Borrowing Base attributable to Eligible Unbilled Accounts (Without Invoice) shall never exceed (1) for the period from the Second Amendment Effective Date through and including the Sponsor Guaranty Termination Date, the lesser of $25,000,000 and 30% of Revolving Loan Availability as of any date of determination and (2) at all other times, the lesser of $20,000,000 and 30% of Revolving Loan Availability as of any date of determination and (y) the amount of the Borrowing Base attributable to Eligible Unbilled Accounts, in the aggregate, shall never exceed an amount equal to $50,000,000.

 

provided further that Revolving Loans shall be deemed incurred in reliance upon clause (d) above until the Revolving Loan Availability applicable to such clause (d) is equal to $0.

 

MidCap / Rubicon / Amendment No. 3 to Credit Agreement

2

 

 

 

provided further that Borrower Representative may submit a written request (a “Letter of Credit Termination Request”) to Agent requesting Agent’s consent to terminate and/or cancel, as applicable, the Affiliate Letter of Credit and Agent shall, within five (5) Business Days of Agent’s receipt of such Letter of Credit Termination Request, (a) provide its consent or any other notice required to the financial institution that issued the Affiliate Letter of Credit to terminate or cancel the Affiliate Letter of Credit, in each case, to the extent required by the terms of the Affiliate Letter of Credit and (b) to the extent required by the terms (if any) of the Affiliate Letter of Credit to cancel or terminate the Affiliate Letter of Credit, return the original copy of the Affiliate Letter of Credit (and any amendments thereto) to the financial institution that issued the Affiliate Letter of Credit; provided that the Borrower Representative shall have delivered a certificate of a Responsible Officer to the Agent certifying that, at the time that the Affiliate Letter of Credit is terminated and immediately after giving effect to such termination (including the reduction of the Borrowing Base pursuant to clause (d) above to $0) (x) no Event of Default has occurred and will be continuing and (y) the Revolving Loan Outstandings do not exceed the Revolving Loan Limit. Upon termination of the Affiliated Letter of Credit, for the avoidance of doubt, the Borrowing Base credit attributable to clause (d) above shall be automatically reduced to $0.

 

The Borrowing Base at any time shall be determined by reference to the most recent Borrowing Base Certificate delivered to the Agent under this Agreement, subject to the Dilution Reserve, the Availability Reserve and any other reserves and/or adjustments and adjustment as set forth in this Agreement.”

 

(c) The definition of “Financing Documents” in Section 1.1 of the Original Credit Agreement is hereby amended to add the words “ the Sponsor Guaranty,” after the words “the Security Documents”.

 

(d) Section 10.1(a) is hereby amended and restated in its entirety to read as follows:

 

“(a) (i) any Credit Party shall fail to pay (A) when due any principal or (B) within three (3) Business Days when due, interest, premium or fee under any Financing Document or any other amount payable under any Financing Document, (ii) there shall occur any default in the performance of or compliance with any of the following sections of this Agreement: Section 2.11, Section 4.1,Section 4.2(b), Section 4.4(c), Section 4.6, Section 4.9, Section 4.11, Article 5, Article 6 or Section 7.4 of this Agreement, or (iii) there shall occur any default in the timely performance of the payment obligations of Rodina Capital described in Section 8(i) of the Sponsor Guaranty;”

 

3. Representations and Warranties; Reaffirmation of Security Interest. Borrower Representative hereby confirms that all of the representations and warranties set forth in the Credit Agreement are true and correct in all material respects (without duplication of any materiality qualifier in the text of such representation or warranty) with respect to Borrowers as of the date hereof except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct as of such earlier date. Nothing herein is intended to impair or limit the validity, priority or extent of Agent’s security interests in and Liens on the Collateral. Borrower Representative acknowledges and agrees that the Credit Agreement, the other Financing Documents and this Agreement constitute the legal, valid and binding obligation of the Borrowers, and are enforceable against Borrowers in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar laws relating to the enforcement of creditors’ rights generally and by general equitable principles.

 

MidCap / Rubicon / Amendment No. 3 to Credit Agreement

3

 

 

 

4. Conditions to Effectiveness. This Agreement shall become effective as of the date on which each of the following conditions have been satisfied, as determined by Agent in its sole discretion:

 

(a) Borrowers and Parent shall have delivered to Agent (i) this Agreement and (ii) the Sponsor Guaranty, executed by an authorized officer of the Borrowers and Parent and, in the case of the Sponsor Guaranty, Rodina Capital;

 

(b) all representations and warranties of the Borrowers contained herein shall be true and correct in all material respects (without duplication of any materiality qualifier in the text of such representation or warranty) as of the date hereof except to the extent that any such representation or warranty relates to a specific date in which case such representation or warranty shall be true and correct as of such earlier date (and such parties’ delivery of their respective signatures hereto shall be deemed to be its certification thereof); and

 

(c) immediately prior to and after giving effect to this Amendment, no Default or Event of Default exists under any of the Financing Documents.

 

5. Costs and Fees.

 

(a) Borrowers agree to pay to the Agent an amendment fee in an amount equal to $75,000 (the “Amendment Fee”). The Amendment Fee shall be due and payable on the Third Amendment Effective Date and once paid, shall be non-refundable.

 

(b) Borrower Representative agrees to promptly pay, or reimburse upon demand for, all reasonable and documented out-of-pocket costs and expenses of Agent (including, without limitation, the reasonable and documented fees, costs and expenses of counsel to Agent) in connection with the preparation, negotiation, execution and delivery of this Agreement and any other Financing Documents or other agreements prepared, negotiated, executed or delivered in connection with this Agreement, to the extent required by Section 13.14 of the Credit Agreement.

 

6. [Reserved].

 

7. No Waiver or Novation. The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided in this Agreement, operate as a waiver of any right, power or remedy of Agent, nor constitute a waiver of any provision of the Credit Agreement, the Financing Documents or any other documents, instruments and agreements executed or delivered in connection with any of the foregoing. Nothing herein is intended or shall be construed as a waiver of any existing Defaults or Events of Default under the Credit Agreement or the other Financing Documents or any of Agent’s rights and remedies in respect of such Defaults or Events of Default. This Agreement (together with any other document executed in connection herewith) is not intended to be, nor shall it be construed as, a novation of the Credit Agreement.

 

8. Affirmation. Except as specifically amended pursuant to the terms hereof, Borrowers hereby acknowledge and agree that the Credit Agreement and all other Financing Documents (and all covenants, terms, conditions and agreements therein) shall remain in full force and effect, and are hereby ratified and confirmed in all respects by Borrowers. Borrowers covenant and agree to comply with all of the terms, covenants and conditions of the Credit Agreement and the Financing Documents, notwithstanding any prior course of conduct, waivers, releases or other actions or inactions on Agent’s or any Lender’s part which might otherwise constitute or be construed as a waiver of or amendment to such terms, covenants and conditions.

 

MidCap / Rubicon / Amendment No. 3 to Credit Agreement

4

 

 

 

9. Miscellaneous.

 

(a) Reference to the Effect on the Credit Agreement. Upon the effectiveness of this Agreement, each reference in the Credit Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of similar import shall mean and be a reference to the Credit Agreement, as amended by this Agreement. Except as specifically amended above, the Credit Agreement, and all other Financing Documents (and all covenants, terms, conditions and agreements therein), shall remain in full force and effect, and are hereby ratified and confirmed in all respects by Borrowers.

 

(b) Governing Law. THIS AGREEMENT AND ALL DISPUTES AND OTHER MATTERS RELATING HERETO OR ARISING THEREFROM (WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE), SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).

 

(c) Incorporation of Credit Agreement Provisions. The provisions contained in Section 11.6 (Indemnification), Section 13.8(b) (Submission to Jurisdiction) and Section 13.9 (Waiver of Jury Trial) of the Credit Agreement are incorporated herein by reference to the same extent as if reproduced herein in their entirety.

 

(d) Headings. Section headings in this Agreement are included for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

 

(e) Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one and the same instrument. Signatures by facsimile or by electronic mail delivery of an electronic version of any executed signature page shall bind the parties hereto.

 

(f) Entire Agreement. This Agreement constitutes the entire agreement and understanding among the parties hereto and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.

 

(g) Severability. In case any provision of or obligation under this Agreement shall be invalid, illegal or unenforceable in any applicable jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

 

(h) Successors/Assigns. This Agreement shall bind, and the rights hereunder shall inure to, the respective successors and assigns of the parties hereto, subject to the provisions of the Credit Agreement and the other Financing Documents.

 

 

[SIGNATURES APPEAR ON FOLLOWING PAGES]

 

MidCap / Rubicon / Amendment No. 3 to Credit Agreement

5

 

 

 

IN WITNESS WHEREOF, intending to be legally bound, the undersigned have executed this Agreement as of the day and year first hereinabove set forth.

 

AGENT:	MIDCAP FUNDING IV TRUST,
	as Agent
	By: Apollo Capital Management, L.P.,
	its investment manager
	By: Apollo Capital Management GP, LLC,
	its general partner
	By:	/s/ Maurice Amsellem
	Name:	Maurice Amsellem
	Title:	Authorized Signatory

 

 

[Signatures Continue on Following Page]

 

MidCap / Rubicon / Amendment No. 3 to Credit Agreement

6

 

 

 

LENDER:	MIDCAP FUNDING IV TRUST
	By: Apollo Capital Management, L.P.,
	its investment manager
	By: Apollo Capital Management GP, LLC,
	its general partner
	By:	/s/ Maurice Amsellem
		Name:	Maurice Amsellem
		Title:	Authorized Signatory

 

 

[Signatures Continue on Following Page]

 

MidCap / Rubicon / Amendment No. 3 to Credit Agreement

7

 

 

 

BORROWERS:	RUBICON TECHNOLOGIES HOLDINGS, LLC
	RUBICON TECHNOLOGIES INTERNATIONAL, INC.
	RUBICON GLOBAL, LLC
	CLEANCO LLC
	CHARTER WASTE MANAGEMENT, INC.
	RIVERROAD WASTE SOLUTIONS, INC.
	By:	/s/ Kevin Schubert
	Name	Kevin Schubert
	Title:	Chief Financial Officer, President and Secretary

 

GUARANTORS:	RUBICON TECHNOLOGIES, INC.
	By:	/s/ Kevin Schubert
	Name	Kevin Schubert
	Title:	Chief Financial Officer, President and Secretary

 

 

[End of Signature Pages]

 

MidCap / Rubicon / Amendment No. 3 to Credit Agreement

8

 

 

Exhibit 10.2

 

Execution Version

 

SPONSOR GUARANTY AGREEMENT

 

THIS SPONSOR GUARANTY AGREEMENT (this “Guaranty”) is made as of January 24, 2024, by Rodina Capital (the “Guarantor”) in favor of MidCap Funding IV Trust, as agent (in such capacity, together with its successors and permitted assigns, “Agent”) for the Lenders (as defined in the Credit Agreement referenced below).

 

W I T N E S S E T H:

 

WHEREAS, pursuant to that certain Credit, Security and Guaranty Agreement, dated as of June 7, 2023 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Rubicon Technologies Holdings, LLC, a Delaware limited liability company, Rubicon Technologies International, Inc., a Delaware corporation, Rubicon Global, LLC, a Delaware limited liability company, CleanCo LLC, a New Jersey limited liability company, Charter Waste Management, Inc., a Delaware corporation, RiverRoad Waste Solutions, Inc., a New Jersey corporation, and each additional borrower that may hereafter be added to the Credit Agreement (“Borrowers”), Rubicon Technologies, Inc. and the other guarantors from time to time party thereto, the Lenders from time to time party thereto and Agent, the Lenders have severally agreed to make certain extensions of credit or other financial accommodations to Borrowers upon the terms and subject to the conditions set forth therein;

 

WHEREAS, pursuant to the terms of the Credit Agreement, Borrowers are liable for the Obligations, including, without limitation, the Loans and other financial accommodations to Borrowers from the Lenders (including Agent in its individual capacity as a Lender) under the Credit Agreement and the other Financing Documents referred to therein;

 

WHEREAS, Guarantor is an indirect legal and beneficial owner of a majority of the issued and outstanding equity interests of the Borrowers, and as such, Guarantor have derived and will continue to derive substantial benefit and advantage from the Loans and other financial accommodations available to Borrowers as set forth in the Credit Agreement, and it will be to Guarantor’s direct interest and economic benefit to assist Borrowers in procuring the continued issuance of Loans and other financial accommodations pursuant to the Credit Agreement; and

 

WHEREAS, in order to induce Agent and the Lenders to make certain accommodations under the Credit Agreement, Guarantor has agreed to guaranty certain of the Obligations pursuant to the terms and subject to the limitations set forth in this Guaranty.

 

NOW, THEREFORE, for and in consideration of the premises and in order to induce Agent and the Lenders to make certain financial accommodations available to Borrowers pursuant to the Credit Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Guarantor hereby agrees as follows:

 

1. Definitions: Capitalized terms used herein which are not otherwise defined herein are used with the meanings ascribed to such terms in the Credit Agreement. As used herein, the following terms shall have the following meanings:

 

“Capital Commitment” means, with respect to the Guarantor, on any date of determination, an amount equal to the sum of: (a) the aggregate amount of all remaining non-contingent capital commitments of all of the partners of the Guarantor available to be called under its organizational documents, plus (b) all unrestricted cash and Cash Equivalents of the Guarantor, less (c) the aggregate outstanding amount of the Guarantor Obligations of the Guarantor, in each case, as of such date of determination.

 

MidCap / Rubicon / Sponsor Guaranty

 

 

 

“Guarantor Bankruptcy Event” means the occurrence of any of the types of events described in Section 10.1(e) or (f) of the Credit Agreement with respect to the Guarantor (without giving effect to any related cure or grace periods).

 

“Guarantor Event of Default” shall mean any of the events specified in Section 9 hereof with respect to the Guarantor; provided, any requirement for passage of time, giving of notice, or any other condition, has been satisfied.

 

“Guarantor Obligations” means, without duplication, the collective reference to: (a) all obligations that would be reflected as liabilities on a balance sheet of a Guarantor (including any liability of another Person secured by a Lien on any assets of the Guarantor and including guaranties by the Guarantor of liabilities of another Person), but excluding the obligations of the Guarantor under this Guaranty, and (b) all contingent obligations of a Guarantor.

 

“Guaranty Trigger Event” means (a) the occurrence of an “Event of Default” under the Credit Agreement, (b) the occurrence of a Guarantor Event of Default.

 

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the financial condition, operations, assets, business or properties of the Guarantor, (b) a material impairment of the ability of the Guarantor to perform any of its obligations under this Guaranty or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against the Guarantor of this Guaranty.

 

2. Guaranty of Payment and Performance.

 

(a) Subject to the limitations contained in the last sentence of this Section 2(a), the Guarantor hereby absolutely, unconditionally and irrevocably guaranties, as primary obligor and not merely as a surety, the full and punctual performance and payment when due, whether at stated maturity or earlier, by reason of acceleration, mandatory prepayment or otherwise in accordance with any Financing Document, of the Obligations of Borrowers and each other Credit Party, whether existing on the date hereof or hereinafter incurred or created. The Guarantor’s obligation hereunder shall be a guaranty of payment and performance, and not of collection only. Notwithstanding anything set forth herein to the contrary:

 

(i) the liability of the Guarantor under this Guaranty shall be limited to an amount equal to (A) the lesser of (x) $10,000,000 and (y) the sum of (1) all Revolving Loan Availability generated pursuant to clause (e) of the definition of “Borrowing Base” contained in the Credit Agreement plus (2) all Revolving Loan Availability in excess of $20,000,000 generated pursuant to clause (b) of the definition of “Borrowing Base” contained in the Credit Agreement plus (B) the aggregate amount of costs and expenses payable by Guarantor pursuant to Section 3 hereof (the “Guaranteed Obligations”); and

 

(ii) Agent may not make demand for payment under this Guaranty unless a Guaranty Trigger Event has occurred and is continuing.

 

MidCap / Rubicon / Sponsor Guaranty

2

 

 

 

(b) The Guarantor acknowledges that valuable consideration supports this Guaranty, including, without limitation, the consideration set forth in the recitals above as well as any commitment to lend, extension of credit or other financial accommodations, whether heretofore or hereafter made by the Lenders or Agent to Borrowers, any extension, renewal or replacement of any of the Obligations, any waiver of any Event of Default with respect to the Obligations or otherwise, any cancellation of an existing guaranty, any purchase of any Borrower’s assets by Agent or any Lender, or any other valuable consideration.

 

(c) The Guarantor agrees that all payments under this Guaranty shall be made in immediately available and freely transferable United States currency and in the same manner as provided for the Obligations. Any payments received by Agent pursuant to this Guaranty shall be applied to the Obligations pursuant to and in accordance with the Credit Agreement.

 

(d) Notwithstanding any provision of this Guaranty to the contrary, it is intended that this Guaranty, and any interests, liens and security interests granted by Guarantor as security for this Guaranty (if any), not constitute a “Fraudulent Conveyance” (as defined below) in the event that this Guaranty or such interest is subject to the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq.) (the “Bankruptcy Code”) or any applicable fraudulent conveyance or fraudulent transfer law or similar law of any state. Consequently, Guarantor and Agent agree that if this Guaranty, or any such interests, liens or security interests securing this Guaranty, would, but for the application of this sentence, constitute a Fraudulent Conveyance, this Guaranty and each such lien and security interest shall be valid and enforceable only to the maximum extent that would not cause this Guaranty or such interest, lien or security interest to constitute a Fraudulent Conveyance, and this Guaranty shall automatically be deemed to have been amended accordingly at all relevant times. For purposes hereof, “Fraudulent Conveyance” means a fraudulent conveyance under Section 548 of the Bankruptcy Code or a fraudulent conveyance or fraudulent transfer under the provisions of any applicable fraudulent conveyance or fraudulent transfer law or similar law of any state, as in effect from time to time.

 

3. Costs and Expenses.

 

Guarantor agrees to pay on written demand, if not paid by Borrowers, all reasonable and documented out-of-pocket costs and expenses incurred by Agent and the Lenders in connection with: (a) any refinancing or restructuring of the guaranty arrangements provided hereunder in the nature of a “work-out”, (b) the enforcement or preservation of any right or remedy under this Guaranty, and (c) realizing upon or protecting or preserving any collateral security for this Guaranty or for payment of any of the obligations of the Guarantor hereunder. “Costs and expenses” as used in the preceding sentence shall include, without limitation, reasonable and documented out-of-pocket attorneys’ fees incurred by Agent or any Lender in retaining counsel for advice, suit, appeal, any insolvency or other proceedings under the Bankruptcy Code or otherwise, or for any purpose specified in the preceding sentence.

 

4. Nature of Guaranty: Continuing, Absolute and Unconditional.

 

(a) This Guaranty is and is intended to be a continuing guaranty of payment of the applicable Obligations, and not of collectability, and is intended to be independent of and in addition to any other guaranty, indorsement, collateral or other agreement held by Agent or the Lenders therefor or with respect thereto, whether or not furnished by the Guarantor. Neither Agent nor any Lender shall be required to prosecute collection, enforcement or other remedies against Borrowers, any other Credit Party or any other guarantor of the Obligations or any other Person, or to enforce or resort to any of the Collateral or other rights or remedies pertaining thereto, before calling on the Guarantor for payment. The obligations of the Guarantor to repay the applicable Obligations guaranteed by it hereunder shall be unconditional.

 

MidCap / Rubicon / Sponsor Guaranty

3

 

 

 

(b) For the further security of Agent and the Lenders, and without in any way diminishing the liability of the Guarantor hereunder, following the occurrence of an Event of Default, all debts and liabilities, present or future of Borrowers and the other Credit Parties to the Guarantor and all monies received from Borrowers and the other Credit Parties or for its account by the Guarantor in respect thereof (in either case, excluding payments permitted to be made pursuant to the terms of Section 5.3 of the Credit Agreement) shall be received in trust for Agent and the Lenders and forthwith upon receipt shall be paid over to Agent, for the benefit of Agent and the Lenders until all of the Obligations have been paid in full and Agent and Lenders have no further obligations to advance funds or make other extensions of credit under the Credit Agreement. This assignment and postponement is independent of and severable from this Guaranty and shall remain in full effect whether or not the Guarantor is liable for any amount under this Guaranty so long as this Guaranty has not been terminated.

 

(c) This Guaranty is absolute and unconditional and shall not be changed or affected by any representation, oral agreement, act or thing whatsoever, except as herein provided. This Guaranty is intended by the Guarantor to be the final, complete and exclusive expression of the guaranty agreement between the Guarantor and Agent, for its own benefit and on behalf of and for the benefit of the Lenders. No modification or amendment of any provision of this Guaranty shall be effective against Agent or the Guarantor unless in writing and signed by a duly authorized officer of Agent, individually and on behalf of the Lenders, and by the Guarantor.

 

(d) Until the Obligations have been paid in full and Agent and Lenders have no further obligations to advance funds or make other extensions of credit under the Credit Agreement or any of the other Financing Documents, no Guarantor shall have any rights of subrogation, contribution, reimbursement or exoneration, or any right to assert or enforce (whether by or in a legal or equitable proceeding or otherwise) any similar claims (whether arising under any law, ordinance, rule, regulation, order, policy or other requirement of any domestic or foreign government or any instrumentality or agency thereof, having jurisdiction over the conduct of its business or assets or otherwise), in each case, with respect to any payments made by the Guarantor hereunder or the exercise by Agent or any Lender of its rights with respect to the Collateral, and the Guarantor hereby waives any benefit of, and any right to participate in, any security or collateral given to Agent or any Lender to secure payment of the Obligations, provided that, any of the foregoing to the contrary notwithstanding, effective upon any sale, registration, assignment or transfer of or foreclosure on, or any other disposition or remedial action in respect of, any equity interests of Borrowers or of any other Credit Party by Agent or any Lender pursuant to the Financing Documents and/or applicable law, all such rights and claims of subrogation, contribution, exoneration, reimbursement and enforcement against Borrowers or any other Credit Party shall be, and hereby are, forever extinguished and indefeasibly waived and released by the Guarantor.

 

5. Certain Rights and Obligations.

 

(a) The Guarantor acknowledges and agrees that Agent and the Lenders may, without notice, demand or any reservation of rights against the Guarantor and without affecting the Guarantor’s obligations hereunder, from time to time:

 

(i) renew, extend, increase, accelerate or otherwise change the time for payment of, the terms of or the interest on the Obligations or any part thereof or grant other indulgences to Borrowers, the other Credit Parties or any other Person;

 

(ii) accept from any Person and hold collateral for the payment of the Obligations or any part thereof, and modify, exchange, enforce or refrain from enforcing, or release, compromise, settle, waive, subordinate or surrender, with or without consideration, such collateral or any part thereof;

 

MidCap / Rubicon / Sponsor Guaranty

4

 

 

 

(iii) accept and hold any indorsement or guaranty of payment of the Obligations or any part thereof, and discharge, release or substitute any such obligation of any such indorser or guarantor, or discharge, release or compromise any guarantor of the Obligations, or any other Person who has given any security interest in any collateral as security for the payment of the Obligations or any part thereof, or any other Person in any way obligated to pay the Obligations or any part thereof, and enforce or refrain from enforcing, or compromise or modify, the terms of any obligation of any such indorser, guarantor, or Person;

 

(iv) dispose of any and all collateral securing the Obligations in any manner as Agent or the Lenders, in their sole discretion, may deem appropriate, and direct the order or manner of such disposition and the enforcement of any and all endorsements and guaranties relating to the Obligations or any part thereof as Agent or the Lenders in their sole discretion may determine;

 

(v) except as otherwise expressly provided in the Credit Agreement, determine the manner, amount and time of application of payments and credits, if any, to be made on all or any part of any component or components of the Obligations (whether principal, interest, fees, costs, and expenses, or otherwise) including, without limitation, the application of payments received from any source to the payment of indebtedness other than the Obligations even though Agent or the Lenders might lawfully have elected to apply such payments to the Obligations to amounts which are not covered by this Guaranty; and

 

(vi) take advantage or refrain from taking advantage of any security or accept or make or refrain from accepting or making any compositions or arrangements when and in such manner as Agent or the Lenders, in their sole discretion, may deem appropriate;

 

and generally do or refrain from doing any act or thing which might otherwise, at law or in equity, release the liability of the Guarantor as a guarantor or surety in whole or in part, and in no case shall Agent or the Lenders be responsible or shall the Guarantor be released, either in whole or in part, for any act or omission in connection with Agent or the Lenders having sold any security at less than its value.

 

(b) Following the occurrence and during the continuance of a Guaranty Trigger Event, and upon written demand by Agent, to the extent required hereunder, the Guarantor hereby agrees to pay the Obligations to the extent hereinafter provided (but subject to the limitation set forth in Section 2 hereof):

 

(i) without deduction by reason of any setoff, defense (other than payment) or counterclaim of Borrowers, any other Credit Party, any other Guarantor or any other guarantor;

 

(ii) without requiring presentment, protest or notice of nonpayment or notice of default to the Guarantor, to Borrowers, to any other Credit Party or to any other Person;

 

(iii) without demand for payment or proof of such demand or filing of claims with a court in the event of receivership, bankruptcy or reorganization of Borrowers, any other Credit Party or any other guarantor;

 

(iv) without requiring Agent or the Lenders to resort first to Borrowers, any other Credit Party, any other Guarantor or any other guarantor (this being a guaranty of payment and performance and not of collection), or to any other guaranty or any collateral which Agent or the Lenders may hold;

 

(v) without requiring notice of acceptance hereof or assent hereto by Agent or the Lenders; and

 

MidCap / Rubicon / Sponsor Guaranty

5

 

 

 

(vi) without requiring notice that any of the Obligations have been incurred, extended or continued or of the reliance by Agent or the Lenders upon this Guaranty;

 

all of which the Guarantor hereby waives.

 

(c) The Guarantor’s obligations hereunder shall not be affected by any of the following, all of which the Guarantor hereby waives:

 

(i) any failure to perfect or continue the perfection of any security interest in or other lien on any collateral securing payment of any of the Obligations or the Guarantor’s obligation hereunder;

 

(ii) the invalidity, unenforceability, propriety of manner of enforcement of, or loss or change in priority of any Financing Document or any such security interest or other lien or guaranty of the Obligations;

 

(iii) any failure to protect, preserve or insure any such collateral;

 

(iv) failure of the Guarantor to receive notice of any intended disposition of such collateral;

 

(v) any defense arising by reason of the cessation from any cause whatsoever of liability of Borrowers, any other Credit Party or any other guarantor, including, without limitation, any failure, negligence or omission by Agent or the Lenders in enforcing their claims against Borrowers, any other Credit Party or any other guarantor;

 

(vi) any release, settlement or compromise of any obligation of Borrowers, the other Credit Parties, or any other guarantor;

 

(vii) the invalidity or unenforceability of any of the Obligations;

 

(viii) any change of ownership of the Guarantor, Borrowers, any other Credit Party, any other Guarantor or any other guarantor or the insolvency, bankruptcy or any other change in the legal status of Borrowers, any other Credit Party, any other Guarantor or any other guarantor;

 

(ix) any change in, or the imposition of, any law, decree, regulation or other governmental act which does or might impair, delay or in any way affect the validity, enforceability or the payment when due of the Obligations;

 

(x) the existence of any claim, setoff or other rights which the Guarantor, Borrowers, any other Credit Party, any other Guarantor, any other guarantor of the Obligations or any other Person may have at any time against Agent, any Lender or any Credit Party in connection herewith or any unrelated transaction;

 

(xi) Agent’s or any Lender’s election, in any case instituted under chapter 11 of the Bankruptcy Code, of the application of section 1111(b)(2) of the Bankruptcy Code;

 

(xii) any use of cash collateral, or grant of a security interest by Borrowers or any other Credit Party, as debtor in possession, under sections 363 or 364 of the Bankruptcy Code;

 

MidCap / Rubicon / Sponsor Guaranty

6

 

 

 

(xiii) the disallowance of all or any portion of any of Agent’s or any Lender’s claims for repayment of the Obligations under sections 502 or 506 of the Bankruptcy Code; or

 

(xiv) any other fact or circumstance (other than payment in full in cash) which might otherwise constitute grounds at law or equity for the discharge or release of the Guarantor from its obligations hereunder, all whether or not the Guarantor shall have had notice or knowledge of any act or omission referred to in the foregoing clauses (i) through (xiii) of this Section 5(c).

 

6. Representations and Warranties.

 

The Guarantor represents and warrants to Agent and the Lenders as of the date of this Guaranty that:

 

(a) the Guarantor is a limited partnership duly organized, validly existing and in good standing under the laws of its state of formation. The Guarantor has full power, authority and legal right to own and hold its properties and to carry on its business as now conducted and as proposed to be conducted and to execute and deliver, and to perform its obligations under, this Guaranty, and has taken all necessary action to authorize the guarantee hereunder on the terms and conditions of this Guaranty and to authorize the execution, delivery and performance of this Guaranty;

 

(b) this Guaranty has been duly executed and delivered by the Guarantor and constitutes a legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, except to the extent that such enforceability is subject to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance and moratorium laws and other laws of general application affecting enforcement of creditors’ rights generally, or the availability of equitable remedies, which are subject to the discretion of the court before which an action may be brought;

 

(c) the available aggregate Capital Commitments of the Guarantor equal or exceed the amount of Guaranteed Obligations from time to time and an amount of such aggregate Capital Commitments that equals or exceeds such amount is free and clear of all Liens;

 

(d) the execution and delivery of this Guaranty and the performance by the Guarantor of its obligations hereunder do not violate, conflict with, breach, or cause a default under, in any material respect, (i) any term, condition or provision of any Law applicable to the Guarantor, (ii) any material agreement to which the Guarantor is a party, or (iii) any provision of the limited partnership agreement (or equivalent organizational documents) of the Guarantor;

 

(e) the Guarantor has received and reviewed copies of the Credit Agreement and the other Financing Documents; and

 

MidCap / Rubicon / Sponsor Guaranty

7

 

 

 

(f) all written factual information heretofore or contemporaneously herewith furnished in writing by the Guarantor to Agent or any Lender for the sole purpose of or in connection with this Guaranty and the guaranty transactions contemplated hereby, in each case with respect to the Guarantor, is, and all written factual information hereafter furnished by or on behalf of the Guarantor to Agent or any Lender pursuant hereto or in connection herewith, in each case, with respect to the Guarantor, shall be, to the knowledge of the Guarantor, true and accurate in all material respects on the date as of which such information is dated or certified taken as a whole, and none of such information taken as a whole is or will be incomplete knowingly by omitting to state any material fact necessary to make such information not misleading in light of the circumstances under which made.

 

7. Termination.

 

(a) This Guaranty shall remain in full force and effect until the earliest to occur of: (i) the date on which all of the Obligations shall have been paid in full, Agent and Lenders have no further obligations to advance funds or make other extensions of credit under the Credit Agreement and the Credit Agreement shall have been terminated in accordance with Section 2.12(c) thereof, (ii) the date on which the maximum amount payable by the Guarantor pursuant to Section 2 hereof, including, without duplication, with any costs and expenses payable by Guarantor pursuant to Section 3 hereof, has been paid by or on behalf of Guarantor (other than by a Credit Party) and (iii) subject to the satisfaction of the provisions of Section 8(i) (if and to the extent applicable at such time), the Sponsor Guaranty Termination Date (as defined in the Credit Agreement). Thereafter, but subject to the following, Agent shall take such action and execute such documents as Guarantor may reasonably request (and at Guarantor’s sole cost and expense) in order to evidence the termination of this Guaranty.

 

(b) The Guarantor further agrees that, to the extent that Borrowers or any other Person makes a payment or payments to Agent or any of the Lenders on account of the Obligations, or Agent or the Lenders receive any proceeds of collateral securing the Obligations or any other payments with respect to the Obligations, which payment or receipt of proceeds or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be returned or repaid to Borrowers, its estate, trustee, receiver, debtor in possession or any other Person, including, without limitation, the Guarantor, under any insolvency or bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such payment, return or repayment, the obligation or part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date when such initial payment, reduction or satisfaction occurred, and this Guaranty shall continue in full force notwithstanding any contrary action which may have been taken by Agent or the Lenders in reliance upon such payment, and any such contrary action so taken shall be without prejudice to Agent’s or the Lenders’ rights under this Guaranty and shall be deemed to have been conditioned upon such payment having become final and irrevocable. This Section 7(b), and the obligations of the Guarantor under such Section, shall survive termination of this Guaranty.

 

8. Guarantor Covenants. The Guarantor hereby covenants and agrees with Agent, for the benefit of Agent and the Lenders, that so long as this Guaranty is in effect:

 

(a) Information. Upon the occurrence and during the continuance of an Event of Default (as defined in the Credit Agreement), the Guarantor will furnish, or cause to be furnished, to Agent, with reasonable promptness, such information regarding the financial condition of the Guarantor related to this Guaranty as Agent may reasonably request.

 

MidCap / Rubicon / Sponsor Guaranty

8

 

 

 

(b) Preservation of Existence and Related Matters. The Guarantor will (i) preserve and maintain its separate existence and (ii) preserve and maintain all rights, franchises, licenses and privileges necessary to the conduct of its business, and qualify and remain qualified as a foreign entity and authorized to do business in each jurisdiction in which the failure to so qualify could reasonably be expected to have a Material Adverse Effect on the Guarantor.

 

(c) Capital Commitments. The Guarantor shall maintain available aggregate Capital Commitments in an amount that equals or exceeds the then-current maximum amount payable by the Guarantor pursuant to Section 2 hereof and remains free and clear of all Liens. Guarantor is permitted pursuant to the terms of its organizational documents to make capital calls in order to satisfy the Guaranteed Obligations within ten (10) Business Days of Agent’s request pursuant to Section 8(h) hereof.

 

(d) Set-offs. All payments required to be made by the Guarantor pursuant to this Guaranty shall be made without set-off, withholding, recoupment, counterclaim or deduction of any kind.

 

(e) Compliance with Law. The Guarantor will observe and remain in compliance in all material respects with all applicable laws and maintain in full force and effect all governmental licenses, authorizations, consents and approvals, in each case applicable to and necessary for the conduct of its business as then being conducted, except as could not reasonably be expected to have a Material Adverse Effect on the Guarantor.

 

(f) Books, Records and Inspections. The Guarantor will keep books and records of its transactions which are true and correct in all material respects in accordance with good accounting practices consistent with past practices.

 

(g) Consolidation or Merger. The Guarantor will not dissolve, liquidate, or wind up its affairs, or be a party to any transaction of merger or consolidation in which the Guarantor merges or consolidates with or into another Person.

 

(h) Required Capital Calls. At any time following and during the continuance of a Guarantor Event of Default, as and when requested in writing by Agent, the Guarantor shall make capital calls in an aggregate amount equal to the sum of (a) the lesser of (i) the outstanding Obligations as of such time; and (ii) the maximum amount payable by the Guarantor pursuant to Section 2 hereof, and (b) any amount required to pay in full any other Indebtedness or Contingent Obligations of the Guarantor, if any, which is then due and payable, which, in the sole discretion of Agent, is necessary to allow for the immediate payment of the amount determined pursuant to clause (a) without objection.

 

(i) Required Equity Contribution. If the Sponsor Guaranty Termination Date occurs on June 15, 2024, and, as of such date, the Agent determines in its reasonable discretion that Liquidity as of such date does not exceed $16,000,000, Guarantor agrees, within one (1) Business Day of Agent’s written request, to make a cash contribution to the Borrowers in immediately available funds, on a dollar-for-dollar basis in an amount (net of all costs and expenses related thereto) necessary to cause Liquidity to equal $16,000,000 on a pro forma basis after giving effect to such contribution and shall provide Agent with documentation reasonably satisfactory to Agent evidencing such contribution. For the avoidance of doubt, the requirements of this Section 8(i) shall survive the termination of this Agreement.

 

MidCap / Rubicon / Sponsor Guaranty

9

 

 

 

9. Guarantor Events of Default. Each of the following shall constitute a “Guarantor Event of Default”, whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment or order of any court or any order, rule or regulation of any governmental authority or otherwise:

 

(a) Effectiveness of Guaranty. This Guaranty or any provision hereof shall cease to be in full force and effect with respect to the Guarantor, or the Guarantor or any Person acting by or on behalf of the Guarantor shall deny or disaffirm the Guarantor’s obligations under this Guaranty.

 

(b) Payment. The Guarantor shall default in the payment when due of any amounts payable by the Guarantor pursuant to this Guaranty.

 

(c) Representations and Warranties. Any representation, warranty or statement made or deemed to be made by the Guarantor herein or in any statement or certificate delivered or required to be delivered pursuant hereto or thereto shall prove untrue in any material respect on the date as of which it was made or deemed to have been made.

 

(d) Covenants. The Guarantor shall default in the due performance or observance of any term, covenant or agreement: (i) contained in Section 8(a), 8(b)(i), 8(c), 8(g), 8(h) or 8(i) of this Guaranty or (ii) contained in any other Section of this Guaranty (other than those Sections specifically referred to in clause (i) above) and such default shall continue unremedied for a period of thirty (30) days.

 

(e) Guarantor Bankruptcy Event. A Guarantor Bankruptcy Event shall occur.

 

10. Waiver of Defenses. The Guarantor waives any and all defenses, claims and discharges of the Credit Parties, or any other obligor, pertaining to the Obligations, except the defense of discharge by payment in full. Without limiting the generality of the foregoing, the Guarantor will not assert, plead or enforce against the Lender any defense of waiver, release, discharge in bankruptcy, statute of limitations, res judicata, statute of frauds, anti-deficiency statute, fraud, incapacity, minority, usury, illegality or unenforceability which may be available to the Credit Parties or any other person liable in respect of any of the Indebtedness, or any setoff available against the Agent or Lenders to the Credit Parties or any such other person, whether or not on account of a related transaction. The Guarantor agrees that the Guarantor shall be and remain liable for any deficiency remaining after foreclosure of any mortgage or security interest securing the Indebtedness, whether or not the liability of the Borrower or any other obligor for such deficiency is discharged pursuant to statute or judicial decision.

 

11. Miscellaneous.

 

(a) The terms “Borrowers,” “Credit Party” and “Guarantor” as used in this Guaranty shall include: (i) any successor individual or individuals, association, partnership, limited liability company or corporation to which all or substantially all of the business or assets of Borrowers, such Credit Party or the Guarantor shall have been transferred and (ii) any other association, partnership, limited liability company, corporation or entity into or with which such Borrowers, Credit Party or Guarantor shall have been merged, consolidated, reorganized, or absorbed.

 

MidCap / Rubicon / Sponsor Guaranty

10

 

 

 

(b) Without limiting any other right of Agent or any Lender, whenever Agent or the Lenders have the right to declare any of the Obligations to be immediately due and payable (whether or not it has been so declared), Agent and the Lenders at their sole election and without notice to the undersigned may, subject to the limitations contained in Section 2(a) hereof, appropriate and set off against the Obligations then due and owing by the Guarantor:

 

(i) any and all indebtedness or other moneys due or to become due to the Guarantor by Agent or the Lenders in any capacity; and

 

(ii) any credits or other property belonging to the Guarantor (including all account balances, whether provisional or final and whether or not collected or available) at any time held by or coming into the possession of Agent or any Lender, or any affiliate of Agent or any Lender, whether for deposit or otherwise;

 

whether or not the Obligations or the obligation to pay such moneys owed by Agent or any Lender (or any of their affiliates) is then due, and Agent or such Lender (or affiliate thereof) shall be deemed to have exercised such right of set off immediately at the time of such election even though any charge therefor is made or entered on Agent’s or such Lender’s (or any affiliate thereof) records subsequent thereto. Agent and the Lenders agree to notify the Guarantor in a reasonably practicable time of any such set-off; however, failure to so notify the Guarantor shall not affect the validity of any set-off.

 

(c) The Guarantor’s obligation hereunder is to pay in full the Obligations when due according to the Credit Agreement solely to the extent provided herein (including subject to the limitations in Section 2 hereof), and shall not be affected by any stay or extension of time for payment by Borrowers, any other Guarantor or any other guarantor of the Obligations resulting from any proceeding under the Bankruptcy Code or any similar law.

 

(d) No course of dealing between Borrowers, any other Guarantor, any other guarantor of the Obligations, Agent or any Lender, and no act, delay or omission by Agent or any Lender or in exercising any right or remedy hereunder or with respect to any of the Obligations shall operate as a waiver thereof or of any other right or remedy, and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right or remedy. Agent and the Lenders may remedy any default by Borrowers or any other Credit Party under any agreement with Borrowers or any other Credit Party or with respect to any of the Obligations in any reasonable manner without waiving the default remedied and without waiving any other prior or subsequent default by Borrowers or any other Credit Party. All rights and remedies of Agent and the Lenders hereunder are cumulative.

 

(e) This Guaranty shall inure to the benefit of Agent and the Lenders and their respective successors and assigns.

 

(f) Captions of the sections of this Guaranty are solely for the convenience of the parties hereto and are not an aid in the interpretation of this Guaranty and do not constitute part of the agreement of the parties set forth herein.

 

(g) If any provision of this Guaranty is unenforceable in whole or in part for any reason, the remaining provisions shall continue to be effective.

 

MidCap / Rubicon / Sponsor Guaranty

11

 

 

 

(h) THE GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY AND THE GUARANTOR HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF AGENT TO BRING PROCEEDINGS AGAINST THE GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE GUARANTOR AGAINST AGENT, ANY LENDER OR ANY AFFILIATE THEREOF INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS GUARANTY SHALL BE BROUGHT ONLY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK.

 

(i) THIS GUARANTY AND THE TRANSACTIONS EVIDENCED HEREBY SHALL BE CONSTRUED UNDER THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).

 

(j) Notices. All notices, demands and requests that any party is required or elects to give to any other party shall be given in accordance with the provisions of the Credit Agreement, in the case of the Guarantor, to the address set forth below the Guarantor’s signature hereto.

 

(k) Counterparts. This Guaranty may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart. Delivery of an executed signature page to this Guaranty by facsimile transmission, emailed .pdf or other electronic transmission shall be as effective as delivery of a manually executed counterpart hereof.

 

12. Waivers.

 

(a) THE GUARANTOR WAIVES THE BENEFIT OF ALL VALUATION, APPRAISAL AND EXEMPTION LAWS.

 

(b) EACH OF THE GUARANTOR, AND BY ITS ACCEPTANCE HEREOF, AGENT, WAIVES ITS RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS GUARANTY, OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY AGENT OR ANY LENDER. EACH OF THE GUARANTOR, AND BY ITS ACCEPTANCE HEREOF, AGENT, AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, EACH OF THE GUARANTOR, AND BY ITS ACCEPTANCE HEREOF, AGENT, FURTHER AGREES THAT ITS RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS GUARANTY OR ANY PROVISION HEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY.

 

MidCap / Rubicon / Sponsor Guaranty

12

 

 

 

13. Specific Performance.

 

The Guarantor expressly agrees that Agent and the Lenders would be irreparably damaged if this Guaranty is not specifically enforced. Upon a breach or a threatened breach of the terms or provisions of this Guaranty by the Guarantor, Agent and/or the Lenders shall, in addition to all other remedies, be entitled to a temporary or permanent injunction, and/or decree for specific performance, in accordance with the provisions hereof, without the necessity of proof of actual charges or the posting of a bond or other security.

 

 

[Signature Pages Follow]

 

MidCap / Rubicon / Sponsor Guaranty

13

 

 

 

IN WITNESS WHEREOF, the Guarantor has executed this Guaranty as of the date first written above.

 

	RODINA CAPITAL
	By:	/s/ Jose Miguel Enrich
	Name:	Jose Miguel Enrich
	Title:	Director
	Notice	Address:
	Email:

 

MidCap / Rubicon / Sponsor Guaranty

14

 

 

 

ACKNOWLEDGED AND AGREED as of the date first above written:

 

MIDCAP FUNDING IV TRUST, as Agent
By:	Apollo Capital Management, L.P., its investment manager
By:	Apollo Capital Management GP, LLC, its general partner
By:	/s/ Maurice Amsellem
Name:	Maurice Amsellem
Title:	Authorized Signatory

 

MidCap / Rubicon / Sponsor Guaranty

15

 

 

Exhibit 10.3

 

 

 

 

 

SPONSOR CAPITAL CONTRIBUTION AGREEMENT

 

between

 

RUBICON TECHNOLOGIES HOLDINGS, LLC

RUBICON TECHNOLOGIES INTERNATIONAL, INC.

RUBICON GLOBAL, LLC

CLEANCO LLC

CHARTER WASTE MANAGEMENT, INC.

RIVERROAD WASTE SOLUTIONS, INC.

each as a Borrower, and collectively the Borrowers

 

and

 

RUBICON TECHNOLOGIES, INC.

as Parent

 

and

 

RODINA CAPITAL

as Sponsor

 

 

dated as of January 24, 2024

 

 

 

 

 

 

 

 

SPONSOR CAPITAL CONTRIBUTION AGREEMENT

 

This SPONSOR CAPITAL CONTRIBUTION AGREEMENT (the “Agreement”), dated as of January 24, 2024, by and among RUBICON TECHNOLOGIES HOLDINGS, LLC, a Delaware limited liability company, RUBICON TECHNOLOGIES INTERNATIONAL, INC., a Delaware corporation, RUBICON GLOBAL, LLC, a Delaware limited liability company, CLEANCO LLC, a New Jersey limited liability company, CHARTER WASTE MANAGEMENT, INC., a Delaware corporation, and RIVERROAD WASTE SOLUTIONS, INC., a New Jersey corporation, (collectively, together with each of their successors and permitted assigns, each individually as a “Borrower”, and collectively as “Borrowers”), RUBICON TECHNOLOGIES, INC., a Delaware corporation (“Parent” or “Rubicon”), and Rodina Capital (the “Sponsor”).

 

W I T N E S S E T H:

 

WHEREAS, the Borrowers and Parent have entered into that certain Credit, Security and Guaranty Agreement, dated as of June 7, 2023 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrowers, the Parent, the other guarantors from time to time party thereto, the lenders from time to time party thereto (the “Lenders”), MidCap Funding IV Trust, a Delaware statutory trust, as Agent (in such capacity, together with its successors and assigns, “Agent”), pursuant to which the Borrowers are liable for the Obligations, including, without limitation, the Loans and other financial accommodations to Borrowers from the Lenders (including Agent in its individual capacity as a Lender) under the Credit Agreement and the other Financing Documents referred to therein;

 

WHEREAS, the Borrowers, Parent, Lenders, and Agent have entered into that certain Amendment No. 3 to the Credit Agreement, dated as of January 24, 2024 (the “Amendment”) pursuant to which the parties thereto agreed to amend certain defined terms and Event of Default provision in the Credit Agreement;

 

WHEREAS, the Sponsor and Agent have entered into the Sponsor Guaranty Agreement, dated as of January 24, 2024 (the “Sponsor Guaranty Agreement”), pursuant to which the Sponsor agrees to absolutely, unconditionally, and irrevocably guaranty, as primary obligor, the full and punctual performance and payment when due of the Obligations (as defined in the Credit Agreement) of the Borrowers;

 

WHEREAS, the execution and delivery of this Agreement is a condition to the Agent’s and Lenders’ entry into the Amendment and Sponsor Guaranty Agreement;

 

NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

 

SECTION 1. DEFINITIONS

 

Unless otherwise defined herein, terms used but not defined herein shall have the meanings set forth for such terms in the Credit Agreement.

 

SECTION 2. SPONSOR CAPITAL CONTRIBUTION

 

2.1

Triggering Event; Contribution Requirements. The Sponsor hereby covenants and agrees that, in the event that (i) the Sponsor Guaranty Termination Date is extended to June 15, 2024, and (ii) as of such date, the Agent determines, in its reasonable discretion, that Liquidity, as of such date, is less than $16,000,000, the Sponsor agrees, within one (1) Business Day of Agent’s written request (the “Notice Date”), to make a cash contribution (the “Required Contribution”) to the Borrowers, in immediately available funds, on a dollar-for-dollar basis, equal to the lesser of (a) $5,000,000 or (b) the amount (net of all costs and expenses related thereto) necessary to cause Liquidity to equal $16,000,000 on a pro forma basis after giving effect to the Required Contribution.

 

2

 

 

2.2

Required Contribution Confirmation. The Sponsor shall provide Agent, within three (3) Business Days of making the Required Contribution, documentation reasonably satisfactory to Agent evidencing the Required Contribution.

 

2.3

Use of Proceeds. The full amount of the proceeds of such Required Contribution shall be contributed to the Borrowers. The Borrowers shall deposit such Required Contribution into an account in which the Agent has a perfected security interest.

 

2.4

Survival of Termination. The requirements of this Section 2 shall survive the termination of this Agreement.

 

SECTION 3. REQUIRED CONTRIBUTION SHARE ISSUANCE

 

3.1

Issuance of Class A Common Stock. In exchange for the Required Contribution, the Parent, on behalf of the Borrowers, hereby covenants and agrees to issue the Sponsor shares of Class A common stock, par value $0.0001 per share (the “Shares”) of Rubicon in an amount equal to the Required Contribution divided by the Conversion Price.

 

3.2

Conversion Price. The Conversion Price used to calculate the aggregate number of Shares issuable to the Sponsor in exchange for the Required Contribution (the “Conversion Price”) shall be equal to the lesser of (i) the arithmetic average of the Daily VWAP (as defined below) for the five VWAP Trading Days immediately preceding January 24, 2024 or (ii) the arithmetic average of the Daily VWAP for the five VWAP Trading Days immediately succeeding the Notice Date. “Daily VWAP” shall mean for any VWAP Trading Day, the per share volume-weighted average price of Rubicon’s Class A common stock, par value $0.0001 per share, as displayed under the heading “Bloomberg VWAP” on Bloomberg page “RUBICON <EQUITY> AQR” (or, if such page is not available, its equivalent successor page) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such VWAP Trading Day (or, if such volume-weighted average price is unavailable, the market value of one share of Rubicon Class A common stock on such VWAP Trading Day, determined, using a volume-weighted average price method, by a nationally recognized independent investment banking firm). The Daily VWAP will be determined without regard to after-hours trading or any other trading outside of the regular trading session. “VWAP Trading Day” shall mean a day on which trading in the Rubicon Class A common stock generally occurs on the principal U.S. national or regional securities exchange on which the Rubicon Class A common stock is then listed or, if the Rubicon Class A common stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Rubicon Class A common stock are then traded.

 

3.3

Delivery Date. The Shares shall be issued to the Sponsor as full and final satisfaction for the Required Contribution. The Borrowers and Rubicon shall deliver the Shares to the Sponsor within three (3) business days from the date of the Notice Date.

 

SECTION 4. RESTRICTIONS AND LIMITATIONS

 

4.1

Principal Market Limitation. The Sponsor shall not have the right to receive the Shares hereunder to the extent that after giving effect to the receipt of such Shares (a) the Shares have, or will have upon issuance, voting power equal to or in excess of 20% of the voting power outstanding before the issuance of such Shares or of securities exercisable for shares of Class A common stock, or (b) the number of Shares to be issued have, or will be upon issuance, equal to or in excess of 20% of the number of shares of Class A common stock outstanding before the issuance of the Shares or of securities exercisable for shares of Class A common stock.

 

3

 

 

4.2

Resale Restrictions. Sponsor understands that the issuance of the Shares to such Sponsor have not been registered under the Securities Act of 1933, as amended (the “Securities Act”) or under any state securities laws. Sponsor agrees not to offer, sell or otherwise transfer the Shares, or any interest in the Shares, unless (i) the offer and sale is registered under the Securities Act, (ii) the Shares may be sold in accordance with the applicable requirements and limitations of Rule 144 under the Securities Act and any applicable state securities laws and, if the Parent reasonably requests, such Sponsor delivers to the Parent an opinion of counsel to such effect, or (iii) such Sponsor delivers to the Parent an opinion of counsel reasonably satisfactory to the Parent that the offer and sale is otherwise exempt from Securities Act registration.

 

4.3

Restrictive Legend. Sponsor understands and agrees that a legend in substantially the following form will be placed on the certificates of the Shares:

 

“THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND WERE OFFERED AND SOLD IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE SECURITIES MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND OTHER APPLICABLE LAWS PURSUANT TO REGISTRATION OR EXEMPTION FROM REGISTRATION REQUIREMENTS THEREUNDER AND, IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS SOLD PURSUANT TO RULE 144 UNDER SUCH ACT OR THE ISSUER HAS RECEIVED DOCUMENTATION REASONABLY SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER SUCH ACT.”

 

4.4

Illiquid Investment. Sponsor acknowledges that it, he or she must bear the economic risk of its investment in the Shares for an indefinite period of time, until such time as the Shares are registered or an exemption from registration is available.

 

SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE SPONSOR

 

The Sponsor makes the following representations and warranties which shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby:

 

5.1

Due Organization; Authorization; Power and Authority. The Sponsor is a corporation duly organized, validly existing and in good standing under the laws of the state in which it is formed or organized. The Sponsor has the corporate power and authority to enter into this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement by the Sponsor and the performance hereunder by the Sponsor has been duly authorized by all necessary action (corporate or otherwise) on the part of, the Sponsor.

 

5.2

No Conflicts. Neither the execution and delivery by the Sponsor of this Agreement, the compliance by the Sponsor with the terms hereof, nor the fulfillment by the Sponsor of any of the terms hereof conflicts with, results in a breach of or constitutes a default under (i) any of the terms, conditions or provisions of the bylaws or other organizational documents of the Sponsor, (ii) any applicable Laws or (iii) the Financing Documents or any agreement or instrument to which the Sponsor is a party or by which it or any of its property or assets is bound.

 

5.3

Valid Obligation. This Agreement is the legal, valid and binding obligation of the Sponsor enforceable against the Sponsor in accordance with its terms, except as enforcement hereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditor’s rights and general principles of equity.

 

4

 

 

5.4

No Consent. No consent of any other Person and no governmental approval is required to authorize, or is required in connection with, the execution, delivery and performance of this Agreement or the taking of any action by the Sponsor herein contemplated.

 

5.5

No Action or Suit. There is no action, suit or proceeding at law or in equity by any Person or any arbitration or any administrative or other proceeding by or before, or, to the knowledge of the Sponsor, any investigation by, any governmental authority pending or, to the knowledge of the Sponsor, threatened against or affecting the Sponsor or any of its properties or rights which questions or challenges the legality or validity of or seeks damages in connection with this Agreement or any action taken or to be taken by the Sponsor pursuant to this Agreement or in connection with the transactions contemplated hereby.

 

SECTION 6. NOTICES

 

Any notice, request or other communications required or permitted to be given under the terms of this Agreement must be in writing by letter, or email, and will be deemed to have been delivered upon the later of: (A) either (i) receipt, when delivered personally or (ii) one business day after deposit with an overnight courier service with next day delivery specified, in each case, properly addressed to the party to receive the same and (B) receipt, when sent by electronic mail. The address and e-mail addresses for such communications shall be:

 

If to the Parent or Borrowers, to:	Rubicon Technologies, Inc.
	335 Madison Avenue, 4th Floor
	New York, NY 10017
	Attn: President and Chief Financial Officer
	E-Mail: [e-mail]
With Copy to:	Winston & Strawn LLP
	800 Capitol Street, Suite 2400
	Houston, Texas 77002
	Attn: Michael J. Blankenship
	E-Mail: [e-mail]
If to the Sponsor, to:	Rodina Capital

 

SECTION 7. GOVERNING LAW; CONSENT TO JURISDICTION.

 

7.1

GOVERNING LAW. THIS AGREEMENT, AND ANY INSTRUMENT OR AGREEMENT REQUIRED HEREUNDER (TO THE EXTENT NOT EXPRESSLY PROVIDED FOR THEREIN), SHALL BE GOVERNED BY, AND CONSTRUED UNDER, THE LAWS OF THE STATE OF NEW YORK, APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE AND WITHOUT REFERENCE TO CONFLICTS OF LAWS RULES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

 

5

 

 

7.2

Consent to Jurisdiction. The Borrowers, Parent, and the Sponsor agree that any legal action or proceeding with respect to or arising out of this Agreement may be brought in or removed to the courts of competent jurisdiction of the State of New York sitting in The City of New York in New York County and of the United States of America in and for the Southern District of New York, as either of them may elect. By execution and delivery of the Agreement, the Borrowers, Parent, and the Sponsor accept, for themselves and in respect of their property, generally and unconditionally, the jurisdiction of the aforesaid courts. The Borrowers, Parent, and the Sponsor irrevocably consent to the service of process out of any of the aforementioned courts in any such action or proceeding by the mailing of copies thereof by registered or certified airmail, postage prepaid, to the Borrowers, Parent, or the Sponsor, as the case may be, at its respective address for notices as specified herein and that such service shall be effective five (5) Business Days after such mailing. Nothing herein shall affect the right to serve process in any other manner permitted by law or the right of the Borrowers, Parent, or the Sponsor to bring legal action or proceedings in any other competent jurisdiction. The Borrowers, Parent, and the Sponsor hereby waive any right to stay or dismiss any action or proceeding under or in connection with this Agreement brought before the foregoing courts on the basis of forum non-conveniens.

 

SECTION 8. WAIVER OF JURY TRIAL

 

TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER DOCUMENT TO WHICH IT IS PARTY OR ANY MATTER ARISING HEREUNDER OR THEREUNDER.

 

SECTION 9. MISCELLANEOUS

 

9.1

No Waiver; Cumulative Remedies. No failure or delay on the part of the Borrowers, the Parent, or the Sponsor in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The remedies prescribed in this Agreement or by law shall be cumulative and not in limitation of or substitution for any other remedies available hereunder or otherwise.

 

9.2

Amendments. Except as otherwise provided herein, no amendment, modification, termination or waiver of any provision of this Agreement, nor consent to any departure by the Borrowers, the Parent, or the Sponsor therefrom, shall in any event be effective unless the same shall be in writing and signed by the Borrowers, the Parent, and the Sponsor and all of the other parties hereto and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Unless otherwise required by the terms of this Agreement, no notice to or demand on the Borrowers, the Parent, or the Sponsor in any case shall entitle the Borrowers, the Parent, or the Sponsor to any other further notice or demand in similar or other circumstances.

 

9.3

Counterparts. This Agreement and any amendment, waivers, consents, or supplements hereto or in connection herewith may be executed in one or more counterparts, each of which when executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument.

 

9.4

Binding Effect; Assignment. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. The Sponsor, Borrowers, or Parent may not assign or otherwise transfer any of its rights under this Agreement.

 

9.5

Severability. In case any one or more of the provisions contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the parties hereto shall enter into good faith negotiations to replace the invalid, illegal or unenforceable provision.

 

9.6

Headings. Headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose.

 

6

 

 

9.7

Survival of Agreements. All covenants, agreements, representations, and warranties in this Agreement or in any certificate, instrument, document or other writing delivered pursuant hereto shall survive the execution and delivery of this Agreement, and all such covenants and agreements shall continue in full force and effect until the obligations of the parties hereto have been finally paid and satisfied in full.

 

9.8

Entire Agreement. This Agreement and any agreement, document or instrument attached hereto or referred to herein integrate all the terms and conditions mentioned herein or incidental hereto and supersede all oral negotiations and prior writings in respect to the subject matter hereof. In the event of any conflict between the terms, conditions and provisions of this Agreement and any such agreement, document or instrument, the terms, conditions and provisions of this Agreement shall prevail.

 

9.9

Further Assurances. The parties hereto hereby agree to execute and deliver all such instruments and take all such action as may be necessary to effectuate fully the purposes of this Agreement.

 

 

[signature page follows]

 

7

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Sponsor Capital Contribution Agreement to be executed by their respective officers thereunto duly authorized, as of the date first written above.

 

RUBICON TECHNOLOGIES HOLDINGS, LLC RUBICON TECHNOLOGIES INTERNATIONAL, INC. RUBICON GLOBAL, LLC CLEANCO LLC CHARTER WASTE MANAGEMENT, INC. RIVERROAD WASTE SOLUTIONS, INC.
By:
By:	/s/ Kevin Schubert
Name:	Kevin Schubert
Title:	Chief Financial Officer, President and Secretary
RUBICON TECHNOLOGIES, INC.
By:	/s/ Kevin Schubert
Name:	Kevin Schubert
Title:	Chief Financial Officer, President and Secretary
RODINA CAPITAL
By:	/s/ Jose Miguel Enrich
Name:	Jose Miguel Enrich
Title:	Director

 

8

Cover	Jan. 24, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Jan. 24, 2024
Entity File Number	001-40910
Entity Registrant Name	Rubicon Technologies, Inc.
Entity Central Index Key	0001862068
Entity Tax Identification Number	88-3703651
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	335 Madison Avenue
Entity Address, Address Line Two	4th Floor
Entity Address, City or Town	New York
Entity Address, State or Province	NY
Entity Address, Postal Zip Code	10017
City Area Code	(844)
Local Phone Number	479-1507
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Class A common stock, par value $0.0001 per share
Trading Symbol	RBT
Security Exchange Name	NYSE
Entity Emerging Growth Company	true
Elected Not To Use the Extended Transition Period	false

---