CONSENT TO ASSET SALE
AND RELEASE OF LIENS
THIS CONSENT TO ASSET SALE AND RELEASE OF LIENS (the "CONSENT"), dated
as of August 9, 1999, is given by BANK OF AMERICA, N.A. (formerly known as
Bank of America National Trust and Savings Association) ("BOFA"), COMERICA
BANK-CALIFORNIA ("COMERICA"), SANWA BANK CALIFORNIA ("SANWA" and, together
with BofA and Comerica, collectively, the "BANKS" and individually, a
"BANK"), and BANK OF AMERICA, N.A. (formerly known as Bank of America
National Trust and Savings Association), as agent for the Banks ("AGENT").
RECITALS
X. Xxxxx, Agent, Westaff (USA), Inc. ("WESTAFF"), and Western Medical
Services, Inc. ("WMS") are parties to a certain Credit Agreement dated as of
March 4, 1998 (as amended to date, the "CREDIT AGREEMENT"). The Credit
Agreement, among other things, contains certain restrictions on the ability of
Westaff, WMS, and any guarantors thereunder to dispose of their respective
properties.
X. Xxxxxxx, WMS, Alternative Billing Services, Inc., and Western Medical
Services (NY), Inc., as sellers (collectively, the "SELLERS"), and Intrepid
Companies, Inc., as buyer (the "BUYER") have entered into a certain Asset
Purchase Agreement dated July 22, 1999 (the "ASSET PURCHASE AGREEMENT").
Pursuant to the terms of the Asset Purchase Agreement, Sellers have agreed to
sell, and Xxxxx has agreed to purchase, certain of the assets of Sellers used
exclusively for the provision of health care services with the exception of
certain assets specifically excluded thereunder (the "PURCHASED ASSETS").
X. Xxxxxxx have requested that Xxxxx and Agent consent to the sale of the
Purchased Assets and release any liens or encumbrances in the Purchased Assets
now existing in favor of Banks and Agent.
X. Xxxxx and Agent are willing to xxxxx Xxxxxxx' request in accordance
with the terms and provisions of this Consent.
AGREEMENT
1. Xxxxx and Agent hereby consent to the sale by Sellers to Buyer of the
Purchased Assets pursuant to the terms of the Asset Purchase Agreement and agree
that the execution by the Sellers of the Asset Purchase Agreement and the sale
of the Purchased Assets shall not constitute an Event of Default under (and as
defined in) the Credit Agreement. The consent provided herein is applicable
only to the sale of the Purchased Assets pursuant to the Asset Purchase
Agreement, and shall not be deemed to be a waiver of any other terms, conditions
or covenants of the Credit Agreement.
2. Xxxxx and Agent agree that the sale of the Purchased Assets to Buyer
shall be free and clear of any liens or encumbrances now existing in favor of
Banks and Agent and that such liens or encumbrances shall be released as of the
Closing Date (as defined in the Asset Purchase Agreement). Agent is hereby
authorized by Xxxxx to provide Sellers with the following, which Sellers are
authorized to deliver to Buyer upon verification that all conditions to closing
as set forth in the Asset Purchase Agreement have been met or waived by the
parties thereto:
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(a) Xxxx executed amendments to any Uniform Commercial Code Financing
Statements filed by Agent against Sellers evidencing the release of Agent's
security interest in the Purchased Assets;
(b) Xxxx executed releases of Agent's security interest in any
trademarks or copyrights included within the Purchased Assets in a form
suitable for recordation with the U.S. Patent and Trademark Office or the
U.S. Copyright Office, as applicable.
3. Except for the release of liens and encumbrances as provided in
Paragraph 2, nothing herein contained shall be deemed to release Sellers from
their respective obligations to Banks and Agent under the Credit Agreement or
under any guaranties, security agreements or other documents or agreements
executed by Sellers in connection with the Credit Agreement, all of which shall
continue in full force and effect.
4. This Consent shall become effective as of August 9, 1999 (the
"EFFECTIVE DATE"), provided that each of the following conditions precedent is
satisfied on or before the Effective Date:
(a) The Agent has received this Consent duly executed by each of the
Banks, together with a Sellers' Acknowledgment in the form attached hereto;
(b) The sale of the Purchased Assets as contemplated in the Asset
Purchase Agreement has been consummated.
5. This Consent is conditioned upon Sellers' agreement to deliver to the
Agent, within five (5) Business Days (as defined in the Credit Agreement) of the
Closing Date, the originals of the installment notes executed by Xxxxx, payable
to Sellers, representing the unpaid balance of the purchase price for the
Purchased Assets, which installment notes shall be held by Agent as additional
collateral for the Obligations under (and as defined in) the Credit Agreement.
6. This Consent 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.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Consent as of the date first above written.
BANK OF AMERICA, N.A., as Agent
By /s/ Xxxxx Xxxxx
-----------------------------
Xxxxx Xxxxx
Vice President
BANK OF AMERICA, N.A., as a Bank
By /s/ Xxxx X. Xxxxxx
-------------------------------
Xxxx X. Xxxxxx
Vice President
COMERICA BANK-CALIFORNIA, as a Bank
By /s/ Xxxxx Xxxxx
-----------------------------
Xxxxx X. Xxxxx
Vice President
SANWA BANK CALIFORNIA, as a Bank
By /s/ Xxxx X. Xxxxxxx
-----------------------------
Xxxx X. Xxxxxxx
Vice President
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XXXXXXX' ACKNOWLEDGMENT
The undersigned, each a Seller under the Asset Purchase Agreement, each
hereby (i) acknowledges the foregoing Consent to Asset Sale and Release of
Liens (the "CONSENT"); (ii) acknowledges and agrees that all payments made or
to be made to the undersigned by the Buyer under the Asset Purchase Agreement
and the installment notes issued thereunder are and shall remain subject to a
security interest in favor of Agent for the benefit of Banks pursuant to the
terms of the respective security agreement to which the undersigned is party
and shall constitute additional collateral for the Obligations under the
Credit Agreement; (iii) agrees to deliver to the Agent, within five (5)
Business Days of the Closing Date, the originals of the installment notes
referred to in the preceding clause; and (iv) agrees that the Uniform
Commercial Code Financing Statement amendments and the trademark and
copyright releases described in Paragraphs 2(a) and 2(b) of the Consent shall
be delivered to Buyer only upon verification that all conditions to closing
as set forth in the Asset Purchase Agreement have been met or waived by the
parties thereto. (Capitalized terms used herein have the meanings specified
in the Consent.)
WESTAFF (USA), INC.
Dated:_________________ 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.
Dated:_________________ By /s/ Xxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxx
-------------------------------
Title: Executive Vice President and
Chief Financial Officer
-------------------------------
By Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx
Secretary
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ALTERNATIVE BILLING SERVICES, INC.
Dated:_________________ By Xxxx X. Xxxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxxx
------------------------------
Title: Executive Vice President and
Chief Financial Officer
By Xxxxxx X. Xxxxx
------------------------------
Xxxxxx X. Xxxxx
Secretary
WESTERN MEDICAL SERVICES (NY), INC.
Dated: _________________ By /s/ Xxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxx
-------------------------------
Title: Executive Vice President and
Chief Financial Officer
By /s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx
Secretary
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