Exhibit
10.6


 


FIFTH
AMENDMENT TO INTERCREDITOR AGREEMENT


 


THIS
FIFTH AMENDMENT TO INTERCREDITOR AGREEMENT (this “Amendment”) is executed as of October 27, 2022 (the “Effective
Date”), by and among JACKSON INVESTMENT GROUP, LLC, a Georgia limited liability company, as purchaser and holder of
the Term Note and as secured party under the Term Debt Documents (“Term Note Purchaser”), STAFFING 360 SOLUTIONS,
INC., a Delaware corporation (“Parent”), certain of the Parent’s subsidiaries party hereto, and MIDCAP
FUNDING IV TRUST, a Delaware statutory trust and successor by assignment from Midcap Funding X Trust (successor by assignment from
MidCap Financial Trust), as Agent for the financial institutions or other entities from time to time parties to the ABL Loan Agreement
(acting in such capacity, “Agent”), and as a “Lender” under the ABL Loan Agreement, or such then present
holder or holders of the ABL Loans as may from time to time exist (as the “Lenders” under the ABL Loan Agreement; collectively
with the Agent, the “ABL Lenders”). Reference in this Amendment to “Term Note Purchaser”, “Term
Note Purchasers”, “each Term Note Purchaser” or otherwise with respect to any one or more of the Term Note Purchasers
shall mean each and every person included from time to time in the term “Term Note Purchaser” and any one or more of the
Term Note Purchasers, jointly and severally, unless a specific Term Note Purchaser is expressly identified.


 


Recitals


 


A.
The Term Note Purchaser, Parent, certain of the Parent’s subsidiaries party thereto and ABL Lenders have entered into an Intercreditor
Agreement dated as of September 15, 2017, as amended by that certain First Amendment to Intercreditor Agreement dated as of August 27,
2018, as amended by that certain Second Amendment to Intercreditor Agreement dated as of February 7, 2019, as amended by that certain
Third Amendment to Intercreditor Agreement dated as of August 29, 2020, as amended by that certain Fourth Amendment to Intercreditor
Agreement dated as of October 26, 2020 (as so amended and as amended by this Amendment, and as may further be amended, modified, supplemented
and/or restated from time to time, the “Intercreditor Agreement”), under the terms of which the ABL Lenders and Term
Note Purchaser set forth the relative rights and priorities of ABL Lenders and Term Note Purchaser under the ABL Loan Documents and the
Term Debt Documents in the Common Collateral.


 


B.
It is proposed that the ABL Lenders amend the ABL Loan Agreement pursuant to an Amendment No. 27 and Joinder Agreement to Credit and
Security Agreement to be dated on or about the date hereof (the “Twenty-Seventh Amendment to ABL Loan Agreement”),
a copy of which has been delivered to the Term Note Purchaser, to, among other things, modify financial covenants, extend the scheduled
maturity of the ABL Loans to September 6, 2024, replace the interest rate benchmark rate from LIBOR to SOFR and increase the credit commitments
under the ABL Loans to $32,500,000.


 


C.
It is proposed that the Term Note Purchaser amend the Term Note Agreement pursuant to a Third Amended and Restated Note Purchase Agreement
to be dated on or about the date hereof (the “Third A&R Term Note Agreement”), a copy of which has been delivered
to the Term Note Purchaser, to, among other things, modify paydown mechanics, modify prepayment mechanics and extend the scheduled maturity
of the Term Debt to October 28, 2024.


 


D.
The parties now wish to amend the Intercreditor Agreement as provided herein.


 


E.
All capitalized terms used in this Amendment, including in the Preamble and these Recitals, and not herein defined shall have the meanings
given to them in the Intercreditor Agreement.


 




    	 



     


    

 


NOW,
THEREFORE, in consideration of the mutual covenants herein contained and of other good and valuable consideration, the receipt and sufficiency
whereof are hereby acknowledged, the parties hereto agree as follows:


 


Agreement


 


	 	1.	The
    parties agree that the Recitals above are a part of this Amendment. 
	 	 	 
	 	2.	The
    Intercreditor Agreement is hereby amended as follows:


 


 


(a)
The definition of “ABL Debt Cap” is hereby amended by replacing the reference to the amount of “$25,000,000”
with “$32,500,000”.


 


3.
Pursuant to the terms of Section 7.1 of the Intercreditor Agreement, Term Note Purchaser hereby consents to the Twenty-Seventh Amendment
to ABL Loan Agreement as an amendment, modification or supplement to the terms of the ABL Debt or the ABL Loan Documents, as applicable.
The limited consent set forth in this Section 3 is effective solely for the purposes set forth herein and shall be limited precisely
as written and shall not be deemed to (a) except as expressly provided herein, be a consent to any amendment, waiver or modification
of any term or condition of the Intercreditor Agreement or of any other ABL Loan Document; (b) prejudice any right that Term Note Purchaser
or the holders from time to time of the Term Debt have or may have in the future under or in connection with the Term Note Agreement
or any other Term Debt Document; (c) waive any Event of Default (as such terms are defined in the Term Note Agreement) that exists as
of the date hereof; or (d) establish a custom or course of dealing among any of the ABL Lenders on the one hand, or Term Note Purchaser
or any holder from time to time of the Term Debt, on the other hand.


 


4.
Pursuant to the terms of Section 7.2 of the Intercreditor Agreement, Agent on behalf of itself and the other ABL Lenders hereby consents
to the Third A&R Term Note Agreement, as an amendment, modification or supplement to the terms of the Term Debt or the Term Debt
Documents, as applicable. The limited consent set forth in this Section 4 is effective solely for the purposes set forth herein and shall
be limited precisely as written and shall not be deemed to (a) except as expressly provided herein, be a consent to any amendment, waiver
or modification of any term or condition of the Intercreditor Agreement or of any other Term Debt Document; (b) prejudice any right that
Agent or the holders from time to time of the ABL Debt have or may have in the future under or in connection with the ABL Loan Agreement
or any other ABL Loan Document; (c) waive any Event of Default (as such terms are defined in the ABL Loan Agreement) that exists as of
the date hereof; or (d) establish a custom or course of dealing among any of the Term Note Purchaser on the one hand, or Agent or any
holder from time to time of the ABL Debt, on the other hand.


 


5.
Except as amended herein, the Intercreditor Agreement shall remain in full force and effect.


 


6.
Upon the effectiveness of this Amendment, each reference in the Intercreditor Agreement to “this Intercreditor Agreement,”
“this Agreement,” “hereunder,” “hereof,” “herein,” or words of similar import shall mean
and be a reference to the Intercreditor Agreement, as amended by this Amendment.


 


7.
This Amendment constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof
and supersedes all prior negotiations, understandings, and agreements between such parties with respect to the subject matter hereof.
To the extent of any conflict between the terms and conditions of this Amendment and the Intercreditor Agreement, the terms and conditions
of this Amendment shall govern.


 


8.
This Amendment may be executed in any number of duplicate originals or counterparts, each of such duplicate originals or counterparts
shall be deemed to be an original and all taken together shall constitute but one and the same agreement. Each party to this Amendment
agrees that the respective signatures of the parties may be delivered by fax, PDF, or other electronic means acceptable to the other
parties and that the parties may rely on a signature so delivered as an original. Any party who chooses to deliver its signature in such
manner agrees to provide promptly to the other parties a copy of this Amendment with its inked signature, but the party’s failure
to deliver a copy of this Amendment with its inked signature shall not affect the validity, enforceability and binding effect of this
Amendment.


 


[Signature
Pages Follow]


 




    	 



     


    

 


IN
WITNESS WHEREOF, intending to be legally bound, and intending that this Fifth Amendment to Intercreditor Agreement constitute an
instrument executed and delivered under seal, the parties have caused this Amendment to be executed under seal as of the date first written
above.


 


	 	AGENT:
	 	 
	 	MIDCAP
    FUNDING IV TRUST, a Delaware statutory trust, as successor-by-assignment from MidCap Funding X Trust
	 	 	 
	 	By:	Apollo
    Capital Management, L.P.,
	 	 	 its
    investment manager
	 	 	 
	 	By:	Apollo
    Capital Management GP, LLC,
	 	 	its
    general partner
	 	 	 
	 	By:	/s/
    Maurice Amsellem
                                                        (SEAL)
	 	Name:	Maurice
    Amsellem
	 	Title:	Authorized
    Signatory


 


	 	TERM
    NOTE PURCHASER:
	 	 
	 	JACKSON
    INVESTMENT GROUP, LLC
	 	 	 
	 	By:	/s/
    Richard L. Jackson                                                   (SEAL)
	 	Name:	Richard
    L. Jackson
	 	Title:	Chief
    Executive Officer


 




    	 



     


    

 


 


	PARENT:	STAFFING
    360 SOLUTIONS, INC., a Delaware corporation
	 	 	 
	 	By:	/s/
    Brendan Flood                                                          (SEAL)
	 	Name:	Brendan
    Flood
	 	Title:	Chief
    Executive Officer


 


SUBSIDIARIES:


 


	 	MONROE
    STAFFING SERVICES, LLC, a Delaware limited liability company 
	 	 	 
	 	By:	/s/
    Brendan Flood                                                          (SEAL)
    
	 	Name:	Brendan
    Flood
	 	Title:	Chief
    Executive Officer


 


	 	FARO
    RECRUITMENT AMERICA, INC., a New York corporation
	 	 	 
	 	By:	/s/
    Brendan Flood                                                          (SEAL)
    
	 	Name:	Brendan
    Flood
	 	Title:	Chief
    Executive Officer
	 	 	 
	 	LIGHTHOUSE
    PLACEMENT SERVICES, INC., a Massachusetts corporation
	 	 	 
	 	By:	/s/
    Brendan Flood                                                          (SEAL)
    
	 	Name:	Brendan
    Flood
	 	Title:	Chief
    Executive Officer


 


	 	KEY
    RESOURCES, INC., a North Carolina corporation
	 	 	 
	 	By:	/s/
    Brendan Flood                                                          (SEAL)
    
	 	Name:	Brendan
    Flood 
	 	Title:	Chief
    Executive Officer
	 	 	 
	 	HEADWAY
    WORKFORCE SOLUTIONS, INC., a Delaware corporation 
	 	 	 
	 	By:	/s/
    Brendan Flood                                                          (SEAL)
    
	 	Name:	Brendan
    Flood 
	 	Title:	Chief
    Executive Officer
	 	 	 
	 	HEADWAY
    PAYROLL SOLUTIONS, LLC, a Delaware limited liability company
	 	 	 
	 	By:	/s/
    Brendan Flood                                                          (SEAL)
    
	 	Name:	Brendan
    Flood 
	 	Title:	Chief
    Executive Officer


 








	 	HEADWAY
    EMPLOYER SERVICES LLC, a Delaware limited liability company
	 	 	 
	 	By:	/s/
    Brendan Flood                                                          (SEAL)
    
	 	Name:	Brendan
    Flood 
	 	Title:	Chief
    Executive Officer
	 	 	 
	 	HEADWAY
    HR SOLUTIONS, INC., a New York corporation
	 	 	 
	 	By:	/s/
    Brendan Flood                                                          (SEAL)
    
	 	Name:	Brendan
    Flood 
	 	Title:	Chief
    Executive Officer
	 	 	 
	 	NC
    PEO HOLDINGS, LLC, a Delaware limited liability company
	 	 	 
	 	By:	/s/
    Brendan Flood                                                          (SEAL)
    
	 	Name:	Brendan
    Flood 
	 	Title:	Chief
    Executive Officer