AMENDMENT NO. 1 TO CREDIT AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AND SECURITY AGREEMENT (this
"AMENDMENT") is entered into as of October 19, 1999, by and among:
(1) INTERIM SERVICES RECEIVABLES CORP., a Delaware corporation
(together with its successors and permitted assigns, the "BORROWER"),
(2) INTERIM SERVICES INC., a Delaware corporation (together with
its successors, "INTERIM SERVICES"), as initial servicer (in such
capacity, the "SERVICER"),
(3) BLUE RIDGE ASSET FUNDING CORPORATION, a Delaware corporation
(together with its successors, "BLUE RIDGE"), FALCON ASSET
SECURITIZATION CORPORATION, a Delaware corporation (together with its
successors, "FALCON" and, together with Blue Ridge, the "CONDUITS"),
WACHOVIA BANK, N.A., a national banking association, in its capacity as
a Liquidity Bank to Blue Ridge (together with its successors,
"WACHOVIA"), and BANK ONE, NA, a national banking association having
its main office in Chicago, Illinois and formerly known as "The First
National Bank of Chicago," in its capacity as a Liquidity Bank to
Falcon (together with its successors, "BANK ONE"), as Lenders,
(4) WACHOVIA BANK, N.A., as administrative and liquidity agent for
Blue Ridge and its Liquidity Banks (in such capacity, the "BLUE RIDGE
AGENT"), and BANK ONE, NA [MAIN OFFICE CHICAGO], as administrative and
liquidity agent for Falcon and its Liquidity Banks (in such capacity,
the "FALCON AGENT" and, together with the Blue Ridge Agent, the
"CO-AGENTS"), and
(5) WACHOVIA BANK, N.A., as collateral agent for the Agents and
the Lenders (in such capacity, together with any successors thereto in
such capacity, the "COLLATERAL AGENT"),
with respect to that certain Credit and Security Agreement dated as of July 1,
1999, by and among the Borrower, the Servicer, the Lenders, the Co-Agents and
the Collateral Agent (the "EXISTING AGREEMENT" which, as amended hereby, is
hereinafter referred to as the "AGREEMENT").
UNLESS OTHERWISE INDICATED, CAPITALIZED TERMS USED IN THIS
AMENDMENT ARE USED WITH THE MEANINGS ATTRIBUTED THERETO IN THE EXISTING
AGREEMENT.
W I T N E S S E T H :
WHEREAS, INTERIM SERVICES has acquired Xxxxxxx Corporation;
WHEREAS, Xxxxxxx Corporation and certain of its domestic
subsidiaries have executed a Joinder Agreement and wish to securitize
their receivables under the Agreement; and
WHEREAS, in order to accommodate the securitization of such
additional receivables, the parties wish to amend the Existing
Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto hereby agree as follows:
1. AMENDMENTS. Subject to the terms and conditions
hereinafter set forth, the parties hereby agree to amend the Existing Agreement
as follows:
1.1. All references in the Existing Agreement to "The First
National Bank of Chicago" and "First Chicago" are hereby replaced with "Bank
One, NA" and "Bank One," respectively, and all references in the Existing
Agreement to "One First National Plaza" are hereby replaced with "1 Bank One
Plaza."
1.2. Exhibit 3.1(a), Schedule 6.1(o) and Schedule 1 to the
Existing Agreement are hereby amended and restated in their entirety to read as
set forth in Exhibit 3.1(a), Schedule 6.1(o) and Schedule 1 hereto, respective.
1.3. Sections 10.1(f), (g) and (h) of the Existing Agreement
are hereby amended and restated in their entirety to read as follows:
(f) The three-month rolling average Dilution Ratio at any
Cut-Off Date occurring on or prior to April 30, 2000 exceeds 1.75%, or
at any Cut-Off Date thereafter, 1.40%; or
(g) The three-month rolling average Default Trigger Ratio at
any Cut-Off Date exceeds 9.90%; or
(h) The three-month rolling average Delinquency Ratio at any
Cut-Off Date exceeds 4.05%; or
1.4. The definition of "LOSS RESERVE" is hereby amended and
restated in its entirety to read as follows:
"LOSS RESERVE" as of any Cut-Off Date means a percentage equal
to the greater of (a) 10% and (b) the product of (i) 2.0 times the
highest three-month rolling average Default Ratio during the most
recent 3 Settlement Periods as of the Cut-Off Date occurring on
September 26, 1999, with the number of most recent Settlement Periods
for which such computation is made increasing by 1 Settlement Period on
each subsequent Cut-Off Date until it reaches a maximum of 12
Settlement Periods, and (ii) the Default Horizon Ratio.
1.5. The Commitments of each of Wachovia and Bank One are
hereby amended to the amounts set forth under their respective signatures to
this Amendment.
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1.6. The initial Servicer's address set forth Schedule 14.2
is hereby amended to delete "Attention: Xxxx X. Xxxxx, Phone: (000 ) 000-0000"
where it appears and to substitute in lieu thereof "Attention: Xxxx X. Xxxxxxxx,
Phone: (000) 000-0000."
1.7. Each of the Agents and the Lenders hereby consents to
the addition of the following entities as "SELLERS" under the Sale Agreement and
agrees that they shall be "ELIGIBLE ORIGINATORS" under the Agreement: (i)
Xxxxxxx Corporation, a Delaware corporation, (ii) American Technical Resources,
Inc., a Virginia corporation, (iii) CallTask Incorporated, a Georgia
corporation, (iv) Comtex Information Systems, Inc., a Delaware corporation, (v)
Dynamic Temporary Services, Inc., a Georgia corporation, (vi) NorCross
Teleservices, Inc., a Delaware corporation, (vii) Xxxxxxx Information Services,
Inc., a Georgia corporation, (viii) Xxxxxxx Resources Corporation, a Delaware
corporation, (ix) Xxxxxxx Services of Texas, Inc., a Georgia corporation, (x)
Xxxxxxx Services, Inc., a Georgia corporation, (xi) Xxxxxxx Temporary Services
Inc., a Georgia corporation, (xii) Tascor Incorporated, a Georgia corporation,
(xiii) Tascor Resources Corporation, a Georgia corporation, (xiv) Interim
Atlantic Enterprises LLC, a Delaware limited liability company, and (xv) Interim
Pacific Enterprises LLC, a Delaware limited liability company.
2. REPRESENTATIONS.
2.1. Each of the Loan Parties represents and warrants to the
Lenders and the Agents that it has duly authorized, executed and delivered this
Amendment and that the Agreement constitutes, a legal, valid and binding
obligation of such Loan Party, enforceable in accordance with its terms (except
as enforceability may be limited by applicable bankruptcy, insolvency, or
similar laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability).
2.2. Each of the Loan Parties further represents and warrants
to the Lenders and the Agents that each of its representations and warranties
set forth in Section 6.1 of the Agreement is true and correct as of the date
hereof and that no Event of Default or Unmatured Default exists as of the date
hereof and is continuing.
3. CONDITIONS PRECEDENT. This Amendment shall become
effective as of the date first above written upon receipt by the Collateral
Agent of (a) a counterpart hereof duly executed by each of the parties hereto
and (b) each of the documents listed on Annex I hereto.
4. MISCELLANEOUS.
4.1. Except as expressly amended hereby, the Existing
Agreement shall remain unaltered and in full force and effect, and each of the
parties hereby ratifies and confirms the Agreement and each of the other
Transaction Documents to which it is a party.
4.2. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO
PRINCIPLES OF CONFLICTS OF LAW.
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4.3. EACH SELLER PARTY HEREBY ACKNOWLEDGES AND AGREES THAT:
4.3.1 IT IRREVOCABLY (i) SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION, FIRST, OF ANY UNITED STATES FEDERAL COURT, AND SECOND, IF
FEDERAL JURISDICTION IS NOT AVAILABLE, OF ANY NEW YORK STATE COURT, IN
EITHER CASE SITTING IN NEW YORK COUNTY, NEW YORK, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT, AND (ii)
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF
AN INCONVENIENT FORUM TO THE MAINTENANCE OF AN ACTION OR PROCEEDING IN
SUCH COURTS.
4.3.2. TO THE EXTENT THAT IT HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM THE JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID TO EXECUTION, EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, IT HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER OR IN CONNECTION WITH THE AGREEMENT.
4.4. This Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
when taken together shall constitute one and the same Agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
BORROWER:
INTERIM SERVICES RECEIVABLES CORP.
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxxxx
Vice President - Risk Management
SERVICER:
INTERIM SERVICES INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxxxx
Vice President - Risk Management
AGENTS:
WACHOVIA BANK, N.A., as Collateral Agent
and Blue Ridge Agent
By: /s/ Xxxxx XxXxxxxxx
-----------------------------------
Name: Xxxxx XxXxxxxxx
Title: Senior Vice President
BANK ONE, NA [MAIN OFFICE CHICAGO],
as Falcon Agent
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
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LENDERS:
BLUE RIDGE ASSET FUNDING CORPORATION
BY: WACHOVIA BANK, N.A., ITS ATTORNEY-IN-FACT
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
Initial Commitment: not applicable
Initial Percentage: not applicable
WACHOVIA BANK, N.A.
By: /s/ Xxxxx XxXxxxxxx
-----------------------------------
Name: Xxxxx XxXxxxxxx
Title: Senior Vice President
Revised Commitment: $135,000,000
Revised Percentage: 60%
FALCON ASSET SECURITIZATION CORPORATION
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
Revised Commitment: not applicable
Revised Percentage: not applicable
BANK ONE, NA [MAIN OFFICE CHICAGO]
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
Revised Commitment: $90,000,000
Revised Percentage: 40%
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