THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (the "AMENDMENT"), dated as
of January 22, 1999, is entered into by and among WESTAFF (USA), INC. (formerly
known as WESTERN STAFF SERVICES (USA), INC.) ("WSS"), WESTERN MEDICAL SERVICES,
INC. ("WMS" and together with WSS, collectively, the "BORROWERS" and
individually, a "BORROWER"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as agent for itself and the Banks (the "AGENT"), and the several
financial institutions party to the Credit Agreement (collectively, the
"BANKS").
RECITALS
A. The Borrowers, Banks, and Agent are parties to a Credit Agreement
dated as of March 4, 1998, and amendments thereto dated as of May 15, 1998, and
July 23, 1998 (collectively, the "CREDIT AGREEMENT") pursuant to which the Agent
and the Banks have extended certain credit facilities to the Borrowers.
B. The Borrowers have requested that the Banks agree to certain
amendments of the Credit Agreement.
C. The Banks are willing to amend the Credit Agreement, subject to
the terms and conditions of this Amendment.
AGREEMENT
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINED TERMS. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings, if any, assigned to them in the Credit
Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT.
(a) The definition of "WMS Subfacility" in Section 1.01 is
amended to read as follows in its entirety:
"WMS SUBFACILITY" means the amount determined as set forth below:
(i) on the Closing Date and until December 8, 1998, Thirty Five
Million Dollars ($35,000,000); and
(ii) on and after December 8, 1998, zero (0).
(b) Section 7.12 of the Credit Agreement is amended to read as
follows in its entirety:
7.12 SOLVENCY. WSS shall at all times be, and shall cause the
Parent and each Material Subsidiary (other than WMS) to be,
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Solvent.
(c) The definition of "EBITDA" in Section 8.16 is amended to
read as follows in its entirety:
"EBITDA" means, for any period, the sum of net income after
taxes, interest expense, depreciation, amortization, other
non-cash extraordinary charges, and tax expense; PROVIDED,
HOWEVER, that solely for the purpose of determining compliance
with the Total Debt to EBITDA Ratio required under this Section
8.16 (and not for the purpose of determining the Applicable
Offshore Rate Margin, the Standby Letter of Credit Fee, or the
commitment fee described in Section 2.10(b)), "EBITDA" shall
mean, for the 3rd and 4th fiscal quarters of 1998, the sum of net
income after taxes, interest expense, depreciation, amortization,
other non-cash extraordinary charges, tax expense, and
WMS-Related Losses up to a maximum amount of $941,000 (for the
3rd fiscal quarter of 1998) and $16,023,000 (for the 4th fiscal
quarter of 1998). "WMS-Related Losses" means pre-tax charges
incurred with respect to the discontinuance of certain operations
of WMS and the disposal of certain assets of WMS.
(d) The definition of "Cash Flow for Debt Service" in Section
8.17 is amended to read as follows in its entirety:
"CASH FLOW FOR DEBT SERVICE" means the sum of net income
after taxes, interest expense, Operating Lease expense,
depreciation, amortization, other non-cash extraordinary charges,
losses on asset sales, and cash proceeds from employee stock
purchases, MINUS cash dividends, cash expenditures for the
repurchase of the Parent's stock (including for the purpose of
employee stock options and stock purchase plans), and gains on
asset sales; PROVIDED, HOWEVER, that, for the 3rd and 4th fiscal
quarters of 1998, "Cash Flow for Debt Service" shall mean the sum
of net income after taxes, interest expense, Operating Lease
expense, depreciation, amortization, other non-cash extraordinary
charges, losses on asset sales, and cash proceeds from employee
stock purchases, MINUS cash dividends, cash expenditures for the
repurchase of the Parent's stock (including for the purpose of
employee stock options and stock purchase plans), and gains on
asset sales, PLUS WMS-Related Losses (defined in Section 8.16) up
to a maximum amount of $941,000 (for the 3rd fiscal quarter of
1998) and $16,023,000 (for the 4th fiscal quarter of 1998).
(e) Section 9.01(f) of the Credit Agreement is amended to read
as follows in its entirety:
(f) INSOLVENCY; VOLUNTARY PROCEEDINGS. Any Borrower
or the Parent or any Material Subsidiary (i) ceases or fails to
be Solvent (with the exception of WMS), or generally fails to
pay, or admits in writing its
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inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity
or otherwise; (ii) voluntarily ceases to conduct its business
in the ordinary course; (iii) commences any Insolvency
Proceeding with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing; or
3. REPRESENTATIONS AND WARRANTIES. The Borrowers each hereby
represent and warrant to the Agent and the Banks as follows:
(a) No Default or Event of Default has occurred and is
continuing, except those Defaults or Events of Default, if any, that have
been disclosed in writing to the Agent and the Banks or waived in writing
by the Agent and the Banks.
(b) The execution, delivery and performance by the Borrowers of
this Amendment have been duly authorized by all necessary corporate and
other action and do not and will not require any registration with, consent
or approval of, notice to or action by, any Person (including any
Governmental Authority) in order to be effective and enforceable. The
Credit Agreement as amended by this Amendment constitutes the legal, valid
and binding obligations of the Borrowers, enforceable against each of them
in accordance with its respective terms, without defense, counterclaim or
offset.
(c) All representations and warranties of the Borrowers
contained in the Credit Agreement are true and correct.
(d) Each of the Borrowers is entering into this Amendment on the
basis of its own investigation and for its own reasons, without reliance
upon the Agent and the Banks or any other Person.
4. EFFECTIVE DATE. This Amendment will become effective as of
January 22, 1999 (the "EFFECTIVE DATE"), PROVIDED that each of the following
conditions precedent is satisfied on or before January 29, 1999:
(a) The Agent has received this Amendment duly executed by the
Borrowers, the Agent, the Issuing Bank and each of the Banks, together with
a duly executed Guarantor Acknowledgment and Consent in the form attached
hereto.
(b) The Agent has received from WMS, Western Medical Services
(NY), Inc., as a guarantor, and Alternative Billing Services, Inc., as a
guarantor, a certificate of incumbency setting forth the names and specimen
signatures of the authorized officers of each such corporation, certified
by the Secretary or an Assistant Secretary of such corporation as of the
date hereof.
5. RESERVATION OF RIGHTS. Each of the Borrowers acknowledges and
agrees that the execution and delivery by the Agent and the Banks of this
Amendment shall not be deemed to create a course of dealing or otherwise
obligate the Agent or the Banks to forbear or execute similar amendments under
the same or similar circumstances in the future.
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6. MISCELLANEOUS.
(a) Except as herein expressly amended, all terms, covenants and
provisions of the Credit Agreement are and shall remain in full force and
effect and all references therein to such Credit Agreement shall henceforth
refer to the Credit Agreement as amended by this Amendment. This Amendment
shall be deemed incorporated into, and a part of, the Credit Agreement.
(b) This Amendment shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective successors
and assigns. No third party beneficiaries are intended in connection with
this Amendment.
(c) This Amendment shall be governed by and construed in
accordance with the law of the State of California.
(d) This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
Each of the parties hereto understands and agrees that this document (and
any other document required herein) may be delivered by any party thereto
either in the form of an executed original or an executed original sent by
facsimile transmission to be followed promptly by mailing of a hard copy
original, and that receipt by the Agent of a facsimile transmitted document
purportedly bearing the signature of a Bank or the Borrower or WMS shall
bind such Bank or the Borrower or WMS, respectively, with the same force
and effect as the delivery of a hard copy original. Any failure by the
Agent to receive the hard copy executed original of such document shall not
diminish the binding effect of receipt of the facsimile transmitted
executed original of such document of the party whose hard copy page was
not received by the Agent.
(e) This Amendment, together with the Credit Agreement, contains
the entire and exclusive agreement of the parties hereto with reference to
the matters discussed herein and therein. This Amendment supersedes all
prior drafts and communications with respect thereto. This Amendment may
not be amended except in accordance with the provisions of Section 11.01 of
the Credit Agreement.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or
the Credit Agreement, respectively.
(g) Each of the Borrowers covenants to pay to or reimburse the
Agent, upon demand, for all costs and expenses (including allocated costs
of in-house counsel) incurred in connection with the development,
preparation, negotiation, execution and delivery of this Amendment,
including without limitation appraisal, audit, search and filing fees
incurred in connection therewith.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the date first above written.
WESTAFF (USA), INC. (formerly known as
WESTERN STAFF SERVICES (USA), INC.)
By /s/ XXXX X. XXXXXXX
---------------------------------
Xxxx X. Xxxxxxx
Executive Vice President and
Chief Financial Officer
By /s/ XXXXXXX X. XXXXXXXX
---------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President and
Treasurer
WESTERN MEDICAL SERVICES, INC.
By /s/ XXX X. XXXXXXX
---------------------------------
Xxx X. Xxxxxxx
Executive Vice President and
Chief Financial Officer
By /s/ XXXXXX X. XXXXX
---------------------------------
Xxxxxx X. Xxxxx
Secretary
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as Agent
By /s/ XXXXX XXXXX
---------------------------------
Xxxxx Xxxxx
Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as a Bank and as Issuing Bank
By /s/ XXXX X. XXXXXX
---------------------------------
Xxxx X. Xxxxxx
Vice President
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COMERICA BANK-CALIFORNIA, as a Bank
By /s/ XXXXX X. XXXXX
---------------------------------
Xxxxx X. Xxxxx
Vice President
SANWA BANK CALIFORNIA, as a Bank
By /s/ XXXXX X. XXXXXXX
---------------------------------
Xxxxx X. Xxxxxxx
Vice President
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GUARANTOR ACKNOWLEDGMENT AND CONSENT
The undersigned, each a guarantor or third party pledgor with respect
to the Borrowers' obligations to the Agent and the Banks under the Credit
Agreement, each hereby (i) acknowledges and consents to the execution, delivery
and performance by the Borrowers of the foregoing Third Amendment to Credit
Agreement (the "AMENDMENT"), and (ii) reaffirms and agrees that the respective
guaranty, third party pledge or security agreement to which the undersigned is
party and all other documents and agreements executed and delivered by the
undersigned to the Agent and the Banks in connection with the Credit Agreement
are in full force and effect, without defense, offset or counterclaim.
(Capitalized terms used herein have the meanings specified in the Amendment.)
WESTAFF, INC. (formerly known as
WESTERN STAFF SERVICES, INC.)
Dated: as of January 22, 1999 By /s/ XXXX X. XXXXXXX
---------------------- ----------------------------------
Xxxx X. Xxxxxxx
Executive Vice President
and Chief Financial Officer
By /s/ XXXXXXX X. XXXXXXXX
----------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President and Treasurer
WESTERN MEDICAL SERVICES (NY), INC.
Dated: as of January 22, 1999 By /s/ XXX X. XXXXXXX
---------------------- ----------------------------------
Xxx X. Xxxxxxx
Executive Vice President and
Chief Financial Officer
By /s/ XXXXXX X. XXXXX
----------------------------------
Xxxxxx X. Xxxxx
Secretary
WESTERN TECHNICAL SERVICES, INC.
Dated: as of January 22, 1999 By /s/ XXXX X. XXXXXXX
---------------------- ----------------------------------
Xxxx X. Xxxxxxx
Executive Vice President and
Chief Financial Officer
By /s/ XXXXXXX X. XXXXXXXX
----------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President and Treasurer
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MEDIAWORLD INTERNATIONAL
Dated: as of January 22, 1999 By /s/ XXXX X. XXXXXXX
---------------------- ----------------------------------
Xxxx X. Xxxxxxx
Executive Vice President and
Chief Financial Officer
By /s/ XXXXXXX X. XXXXXXXX
----------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President and Treasurer
WESTAFF (GUAM), INC. (formerly known as
WESTERN STAFF SERVICES (GUAM), INC.)
Dated: as of January 22, 1999 By /s/ XXXX X. XXXXXXX
---------------------- ----------------------------------
Xxxx X. Xxxxxxx
Executive Vice President and
Chief Financial Officer
By /s/ XXXXXXX X. XXXXXXXX
----------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President and Treasurer
ALTERNATIVE BILLING SERVICES, INC.
Dated: as of January 22, 1999 By /s/ XXX X. XXXXXXX
---------------------- ----------------------------------
Xxx X. Xxxxxxx
Executive Vice President and
Chief Financial Officer
By /s/ XXXXXX X. XXXXX
----------------------------------
Xxxxxx X. Xxxxx
Secretary
-8-
BEST TEMPORARIES, INC.
Dated: as of January 22, 1999 By /s/ XXXX X. XXXXXXX
---------------------- ----------------------------------
Xxxx X. Xxxxxxx
Executive Vice President and
Chief Financial Officer
By /s/ XXXXXXX X. XXXXXXXX
----------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President and Treasurer
BEST TEMPORARIES FEDERAL SYSTEMS, INC.
Dated: as of January 22, 1999 By /s/ XXXX X. XXXXXXX
---------------------- ----------------------------------
Xxxx X. Xxxxxxx
Executive Vice President and
Chief Financial Officer
By /s/ XXXXXXX X. XXXXXXXX
----------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President and Treasurer
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WESTERN MEDICAL SERVICES, INC.
CERTIFICATE OF SECRETARY
I, Xxxxxx X. Xxxxx, Secretary of WESTERN MEDICAL SERVICES, INC., a
California corporation (the "COMPANY"), hereby certify on behalf of the
Company as follows as of the date hereof:
The following persons have been and are now duly elected and qualified
officers of the Company, and on the date hereof do hold the office as set
forth opposite his/her name below; and the signatures appearing opposite
their respective names are the true and authentic signatures of such officers:
OFFICE NAME SIGNATURE
------ ---- ---------
Executive Vice President
and Chief Financial
Officer Xxx X. Xxxxxxx /s/ XXX X. XXXXXXX
----------------------
Secretary Xxxxxx X. Xxxxx /s/ XXXXXX X. XXXXX
----------------------
The offices of President, Chief Executive Officer, Chief Operating
Officer, and Controller are currently vacant.
IN WITNESS WHEREOF, I have signed this Certificate as of the 22nd day of
January, 1999.
/s/ XXXXXX X. XXXXX
----------------------------------
Xxxxxx X. Xxxxx
WESTERN MEDICAL SERVICES (NY), INC.
CERTIFICATE OF SECRETARY
I, Xxxxxx X. Xxxxx, Secretary of WESTERN MEDICAL SERVICES, INC. (NY), a
New York corporation (the "COMPANY") do hereby certify on behalf of the
Company as follows as of the date hereof:
The following persons have been and are now duly elected and qualified
officers of the Company, and on the date hereof do hold the office as set
forth opposite his/her name below; and the signatures appearing opposite
their respective names are the true and authentic signatures of such officers:
OFFICE NAME SIGNATURE
------ ---- ---------
Executive Vice President
and Chief Financial
Officer Xxx X. Xxxxxxx /s/ XXX X. XXXXXXX
----------------------
Secretary Xxxxxx X. Xxxxx /s/ XXXXXX X. XXXXX
----------------------
The offices of President, Chief Executive Officer, Chief Operating
Officer, and Controller are currently vacant.
IN WITNESS WHEREOF, I have signed this Certificate as of the 22nd day of
January, 1999.
/s/ XXXXXX X. XXXXX
----------------------------------
Xxxxxx X. Xxxxx
ALTERNATIVE BILLING SERVICES, INC.
CERTIFICATE OF SECRETARY
I, Xxxxxx X. Xxxxx, Secretary of ALTERNATIVE BILLING SERVICES, INC., a
California corporation (the "COMPANY") do hereby certify on behalf of the
Company as follows as of the date hereof:
The following persons have been and are now duly elected and qualified
officers of the Company, and on the date hereof do hold the office as set
forth opposite his/her name below; and the signatures appearing opposite
their respective names are the true and authentic signatures of such officers:
OFFICE NAME SIGNATURE
------ ---- ---------
Executive Vice President
and Chief Financial
Officer Xxx X. Xxxxxxx /s/ XXX X. XXXXXXX
----------------------
Secretary Xxxxxx X. Xxxxx /s/ XXXXXX X. XXXXX
----------------------
The offices of President, Chief Executive Officer, Chief Operating
Officer, and Controller are currently vacant.
IN WITNESS WHEREOF, I have signed this Certificate as of the 22nd day of
January, 1999.
/s/ XXXXXX X. XXXXX
----------------------------------
Xxxxxx X. Xxxxx
