Exhibit 10.5
INTERCREDITOR AGREEMENT
AMONG
STATE STREET BANK AND TRUST COMPANY,
AS COLLATERAL AGENT,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT UNDER THE AMENDED AND RESTATED CREDIT AGREEMENT, AND
THE NOTEHOLDERS A PARTY HERETO
DATED AS OF JULY 30, 2001
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT (as amended, restated, supplemented or
otherwise modified from time to time, this "AGREEMENT"), dated as of July 30,
2001, is among STATE STREET BANK AND TRUST COMPANY as Collateral Agent (defined
below), XXXXX FARGO BANK, NATIONAL ASSOCIATION ("XXXXX FARGO"), as
administrative agent under the Bank Credit Agreement (defined below) (in such
capacity, together with its successors and assigns in such capacity, the "BANK
AGENT"), for and on behalf of the financial institutions which from time to time
become a party to the Bank Credit Agreement as lenders thereunder (including
Xxxxx Fargo as a lender under the Bank Credit Agreement, together with the
successors and assigns of all such parties, the "BANKS") and EACH OF THE PERSONS
ON ANNEX 1 ATTACHED HERETO (collectively, together with their successors and
assigns, and future holders from time to time of the Senior Notes (defined
below), the "NOTEHOLDERS"), and is acknowledged and agreed by SOS STAFFING
SERVICES, INC., a Utah corporation (the "COMPANY"), and EACH OF THE GUARANTORS
on the date hereof (defined below).
R E C I T A L S
WHEREAS, capitalized terms used herein have the meaning ascribed to
them in Section 1 hereof;
WHEREAS, the Company, the Bank Agent and the Banks have entered into
the Amended and Restated Credit Agreement, dated as of May 28, 1999 (as amended
and as further amended, restated, refinanced, supplemented or otherwise modified
from time to time, the "BANK CREDIT AGREEMENT");
WHEREAS, pursuant to those separate Note Purchase Agreements, each
dated as of September 1, 1998 (as amended and as further amended, restated,
refinanced, supplemented or otherwise modified from time to time, the "NOTE
PURCHASE AGREEMENTS"), the Company issued to the "Purchasers" (as defined
therein) $5,000,000 of its Senior Notes, Series A, due September 1, 2003 and
$30,000,000 of its Senior Notes, Series B, due September 1, 2008 (as amended,
restated or otherwise modified from time to time, the "SENIOR NOTES");
WHEREAS, all obligations of the Company under the Bank Credit
Agreement, the Senior Notes and the Note Purchase Agreements have been
guaranteed by the Company and by certain Subsidiaries and may be guaranteed from
time to time by certain other Subsidiaries as provided in the Financing
Agreements (such guarantors from time to time referred to as the "GUARANTORS"
and such guaranties from time to time referred to as the "GUARANTIES");
WHEREAS, the Bank Agent, the Banks, the Noteholders, the Company and
the Guarantors have agreed that the Bank Credit Obligations and the Senior Note
Obligations shall be secured PARI PASSU by all of the assets of the Company and
the Guarantors pursuant to the Security Documents. The Benefited Parties desire
that State Street Bank and Trust Company act as the collateral agent (in such
capacity, together with its successors and assigns in such capacity, the
"COLLATERAL AGENT") on behalf of all Benefited Parties regarding the Collateral,
all as more fully provided herein; and the parties hereto have entered into this
Agreement to, among other things, further define the rights, duties, authority
and responsibilities of the Collateral Agent and the relationship among the
Benefited Parties regarding their PARI PASSU interests in the Collateral, the
Shared Payments and the Guaranties; and
WHEREAS, the Bank Agent, the Banks and the Noteholders have agreed
that payments received by them under certain circumstances in respect of the
Bank Credit Obligations and the Senior Note Obligations, whether from proceeds
or realization on the Collateral or otherwise with respect thereto, certain
payments from the Company, payments under the Guaranties, or certain other
payments, are to be shared ratably in accordance with the provisions hereof;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the Bank Agent, for itself and on behalf of the Banks, the
Noteholders and the Collateral Agent agree as follows:
1. DEFINED TERMS.
As used in this Agreement, and unless the context requires a different meaning,
the following terms have the respective meanings indicated below, all such
definitions to be equally applicable to the singular and plural forms of the
terms defined:
AFFECTED BENEFITED PARTY - has the meaning ascribed to such term in
Section 7.
AFFILIATE - means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common
control with, such Person. A Person shall be deemed to control another
Person if the controlling Person possesses, directly or indirectly,
the power to direct or cause the direction of the management and
policies of such other Person, whether through the ownership of voting
securities or membership interests, by contract or otherwise.
AGREEMENT - has the meaning ascribed to such term in the introductory
paragraph.
BANK AGENT - has the meaning ascribed to such term in the introductory
paragraph.
BANK CREDIT AGREEMENT - has the meaning ascribed to such term in the
Recitals.
BANK CREDIT DOCUMENTS - means any "Loan Documents" as defined in the
Bank Credit Agreement.
BANK CREDIT OBLIGATIONS - means, at any time, all principal, interest,
fees and other obligations of every nature (including, without
limitation, break-funding obligations and the amount available for
drawing under all outstanding letters of credit) of the Company or any
Guarantor owing to the Banks at such time under the Bank Credit
Agreement or any other Bank Credit Document.
BANKRUPTCY PROCEEDING - means any bankruptcy, reorganization,
insolvency, receivership, dissolution or similar proceeding and any
assignment for the benefit of creditors.
BANKS - has the meaning ascribed to such term in the introductory
paragraph.
BENEFITED OBLIGATIONS - means (a) all Bank Credit Obligations, (b) all
Senior Note Obligations and (c) all other amounts payable by any
Grantor under this Agreement or any Security Document (including,
without limitation, the reasonable fees and expenses of the Collateral
Agent).
BENEFITED PARTIES - means the holders, from time to time, of the
Benefited Obligations.
BUSINESS DAY - means any day other than a Saturday, a Sunday or a day
on which commercial banks in New York, New York, Chicago, Illinois, or
Salt Lake City, Utah are required or authorized to be closed.
CLAIM - has the meaning ascribed to such term in Section 4(b).
COLLATERAL - means all property of the Grantors in which a Lien has
been granted to the Collateral Agent pursuant to the Security
Documents.
COLLATERAL AGENT - has the meaning ascribed to such term in the
Recitals.
COLLATERAL AGENT-RELATED PERSONS - means State Street Bank and Trust
Company, in its capacity as Collateral Agent, and any successor
collateral agent selected under Section 6(g), together with their
respective Affiliates, and the officers, directors, employees, agents
and attorneys-in-fact of such Persons and Affiliates.
COMPANY - has the meaning ascribed to such term in the introductory
paragraph.
DISTRIBUTION ACCOUNT - has the meaning ascribed to such term in
Section 4(b).
ENFORCEMENT - means the commencement of any enforcement, collection
(including judicial or non-judicial foreclosure) or similar proceeding
with respect to any Collateral.
EVENT OF DEFAULT - means an "Event of Default" or the equivalent
thereof as defined in any Financing Agreement.
FINANCING AGREEMENTS - means this Agreement, the Bank Credit
Documents, the Senior Note Documents, any Guaranty, any Security
Document and any other instrument, document or agreement entered into
in connection with, and for the benefit of a holder of, any Benefited
Obligation.
GRANTOR - means the Company, each Subsidiary, each Guarantor and any
other Person who grants a Lien in any property to the Collateral Agent
under any Security Document or who guarantees any Benefited
Obligations.
GUARANTIES - has the meaning ascribed to such term in the Recitals.
GUARANTORS - has the meaning ascribed to such term in the Recitals.
INDEMNIFIED PERSON - has the meaning ascribed to such term in Section
6(k).
LIEN - means, with respect to any Person, any interest granted by such
Person in any real or personal property which secures payment or
performance of any obligation and shall include any mortgage, lien,
encumbrance, charge, hypothecation or other security interest of any
kind, whether arising by contract, as a matter of law, by judicial
process or otherwise.
LOSSES - has the meaning ascribed to such term in Section 6(b).
MAJORITY BENEFITED PARTIES - means, at any time, Benefited Parties
consisting of both (a) the holders of a majority of the Senior Note
Obligations and (b) the holders of a majority of the Bank Credit
Obligations or, if there are only two such holders (including as a
single "holder" for such purpose all Affiliates of such holder), all
such holders.
MAKE-WHOLE AMOUNT - means all obligations of the Company to pay a
"Make-Whole Amount" (as defined in each of the Note Purchase
Agreements, as in effect on the date hereof) to the Noteholders.
NOTE PURCHASE AGREEMENTS - has the meaning ascribed to such term in
the Recitals.
NOTEHOLDERS - has the meaning ascribed to such term in the
introductory paragraph hereof.
PERMITTED INTEREST PAYMENTS - means, at any time with respect to any
Benefited Obligation, regularly scheduled payments of interest made by
the Company with respect to such Benefited Obligation so long as no
Event of Default exists at such time.
PERSON - means any individual, corporation, limited liability company,
partnership, trust, unincorporated association, joint venture or
governmental authority.
PROCEEDS - means "proceeds" (as such term is defined in Article 9 of
the Uniform Commercial Code as in effect from time to time in the
State of New York and, in any event, includes (a) any and all proceeds
of any collection, sale or other disposition of the Collateral, (b)
any and all amounts from time to time paid or payable under or in
connection with any of the Collateral and (c) any amount collected by
any Benefited Party by way of set-off, deduction or counterclaim.
RECEIVING PARTY - has the meaning set forth in Section 4(a) of this
Collateral Agreement.
REPAYMENT EVENT - has the meaning ascribed to such term in Section 7.
RESERVE ACCOUNT - has the meaning ascribed to such term in Section
4(c).
SECURITY DOCUMENTS - means each of this Agreement, any security
agreement, any stock pledge agreement, any trademark collateral
security and pledge agreement, any deposit account control agreement,
any mortgage or deed of trust, any guaranty and any other document,
instrument, certificate or agreement entered into with or delivered to
each of the Collateral Agent, the Banks or the Noteholders.
SENIOR NOTE DOCUMENTS - means each of the Note Purchase Agreements,
the Senior Notes, the Guaranties, and any other document, instrument,
certificate or agreement entered into with or delivered to the
Noteholders in connection therewith.
SENIOR NOTE OBLIGATIONS - means, at any time, all principal, interest,
fees and other obligations of every nature of the Company or any other
Guarantor owing from time to time to any Noteholder at such time under
any Note Agreement, any Senior Note or any other Senior Note Document,
including, without limitation, the Make-Whole Amount.
SENIOR NOTES - has the meaning ascribed to such term in the Recitals.
SHARED PAYMENT - has the meaning set forth in Section 4(a) of this
Agreement.
SUBSIDIARY - of any Person means any other Person of which more than
50% of the voting stock, membership interests or other equity
interests is owned or controlled directly or indirectly by such
Person, or by one or more of the Subsidiaries of such Person or by a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of the
Company.
XXXXX FARGO - has the meaning ascribed to such term in the
introductory paragraph.
2. APPOINTMENT OF COLLATERAL AGENT.
Each of the Bank Agent, for itself and on behalf of the Banks, and each of the
Noteholders hereby (a) designates and appoints State Street Bank and Trust
Company to serve as the Collateral Agent under this Agreement and the Security
Documents and (b) authorizes the Collateral Agent to act as agent for the
Benefited Parties for purposes of enforcing the Benefited Parties' rights in
respect of the Collateral and the obligations of the Grantors under the Security
Documents and for purposes of receiving and distributing certain payments,
including, without limitation, the Shared Payments, in respect of the Benefited
Obligations together with such other powers as are reasonably incidental
thereto.
3. DECISIONS RELATING TO ADMINISTRATION AND EXERCISE OF REMEDIES VESTED IN THE
MAJORITY BENEFITED PARTIES.
(A) DUTIES OF COLLATERAL AGENT. Except as set forth in Section 3(f),
the Collateral Agent agrees that it will not release Liens or Collateral,
as shown in the current books and records of the Collateral Agent, commence
Enforcement or take any other action as Collateral Agent to perfect,
re-perfect or otherwise maintain in existence any Lien on any item of
Collateral under any Security Document without the direction of the
Majority Benefited Parties. Each Benefited Party shall notify the
Collateral Agent of any transfer of such Benefited Party's Benefited
Obligations and of the identity of the transferee thereof. The Collateral
Agent shall treat a Person as a Benefited Party upon receipt by the
Collateral Agent of written notice of such Person's status as such. The
Collateral Agent agrees to administer the Security Documents and the
Collateral as directed in writing by the Majority Benefited Parties, to
endeavor to collect and disburse funds as provided herein, and to make such
demands and give such notices under the Security Documents as the Majority
Benefited Parties may from time to time request in writing, and to take
such action to enforce the Security Documents and to endeavor to realize
upon, collect and dispose of the Collateral or any portion thereof as may
be directed in writing by the Majority Benefited Parties, provided, in each
instance, such action does not conflict with the terms of this Agreement or
the Security Documents.
(B) AGREEMENTS OF BENEFITED PARTIES. Each Benefited Party agrees that
the Collateral Agent shall act as the Majority Benefited Parties may
request from time to time in writing (regardless of whether any individual
Benefited Party agrees, disagrees or abstains with respect to such
request), that the Collateral Agent shall have no liability for acting in
accordance with such request (PROVIDED such action does not conflict with
the express terms of this Agreement or the Security Documents) and that no
Benefited Party which is a member of the Majority Benefited Parties making
any such request shall have any liability to any other Benefited Party for
such request. The Collateral Agent shall give prompt notice to the Bank
Agent, each Bank and each Noteholder of any action taken pursuant to the
instructions of the Majority Benefited Parties to enforce any Security
Document; PROVIDED that the failure to give any such notice shall not
create any liability or cause of action against the Collateral Agent or
impair the right of the Collateral Agent to take any such action or the
validity of any action so taken.
(C) DIRECTIONS TO COLLATERAL AGENT. The Collateral Agent may at any
time request directions from the Majority Benefited Parties as to any
course of action or other matter relating hereto or relating to any
Security Document. Except as otherwise provided in this Agreement, written
directions given by the Majority Benefited Parties to the Collateral Agent
hereunder shall be binding on all Benefited Parties for all purposes
hereunder.
(D) ACTION UNDER FINANCING AGREEMENTS. Nothing contained in this
Agreement shall affect the right (if any) of any Benefited Party to give
the Company or any other Grantor notice of any default or to accelerate or
make demand for payment of its Benefited Obligations under the applicable
Financing Agreement; PROVIDED that each Benefited Party agrees not to take
any action to enforce any term or provision of any Security Document or to
enforce any of its rights in respect of the Collateral except through the
Collateral Agent in accordance with this Agreement.
(E) MAINTENANCE OF LIENS. So long as this Agreement shall not have
been terminated, the Collateral Agent will, solely for the benefit of the
Benefited Parties
(a) file continuation statements under the Uniform Commercial Code of
any applicable jurisdiction with respect to those UCC-1 financing
statements filed in connection with the Collateral of which it has
actual knowledge, and
(b) upon receipt of written instruction by the Majority Benefited
Parties, execute, procure, acknowledge, deliver and record, or cause
to be executed, procured, acknowledged, delivered or recorded, all
such further instruments, deeds, conveyances, mortgages, supplemental
indentures, transfers, financing statements, continuation statements
and assurances as reasonably deemed necessary by the Majority
Benefited Parties and as are presented to the Collateral Agent for
filing or recording to preserve, continue and protect the Liens
granted pursuant to the Security Documents on, all or any portion of
the Collateral.
(F) RELEASE OF COLLATERAL. The Collateral Agent may release all
Collateral upon receipt of written notice from (i) the Bank Agent that all
Bank Credit Obligations have been paid in full (other than contingent
obligations (x) in respect of letters of credit which have been cash
collateralized or otherwise provided for to the satisfaction of the Bank
Agent and (y) arising under provisions of the Bank Credit Agreement which
by their terms survive termination thereof) and all commitments to create
Bank Credit Obligations have been terminated and (ii) each Noteholder that
all Senior Note Obligations owed to such Noteholder have been paid in full
(other than any Senior Note Obligations arising under provisions of the
Senior Note Documents which by their terms survive termination thereof).
4. APPLICATION OF PROCEEDS IN RESPECT OF BENEFITED OBLIGATIONS.
(A) SHARED PAYMENTS. Each Benefited Party (a "RECEIVING PARTY") agrees
that any payment of any kind (including, without limitation, any payment
resulting from a set-off of a deposit account or any payment or
distribution made in the context of any Bankruptcy Proceeding but excluding
any Permitted Interest Payment) received by it on account of the Benefited
Obligations (such payment, a "SHARED PAYMENT") from or on behalf of the
Company or any Guarantor, is to be distributed among the Benefited Parties
equally and ratably in accordance with the terms hereof. Each Receiving
Party shall remit any Shared Payment received by it to the Collateral Agent
for distribution in accordance with Section 4(b) hereof. Upon receipt of
any Shared Payment, the Collateral Agent shall calculate the amount of such
Shared Payment distributable to each Benefited Party pursuant to Section
4(b) hereof as of the date the Receiving Party received such Shared Payment
and remit such amount to each Benefited Party, accompanied by computations
in reasonable detail showing the manner of calculation of the amounts
distributable to each Benefited Party pursuant to Section 4(b) hereof.
(B) PRIORITIES. Any and all amounts (including Shared Payments but
excluding Permitted Interest Payments) paid in respect of the Benefited
Obligations at any time shall be delivered to the Collateral Agent to be
applied by the Collateral Agent in accordance with the distribution
priorities set forth below, regardless of whether such amounts constitute
(x) regularly scheduled, or optional, payments of principal of any of the
Benefited Obligations by or on behalf of the Company (and regardless of
whether an Event of Default does or does not exist at the time of any such
payment), (y) Proceeds received by the Collateral Agent in connection with
an Enforcement, or (z) other payments of whatever kind made to the
Collateral Agent or any other Benefited Party in respect of the Benefited
Obligations (other than Permitted Interest Payments):
FIRST, to the payment or reimbursement of any expenses and fees
of, or any other amount payable to, the Collateral Agent hereunder or
under any Security Document, whether such amount is payable to
indemnify the Collateral Agent, to reimburse the Collateral Agent, to
pay the fees of the Collateral Agent, is for reimbursement of expenses
incurred in connection with the maintenance, protection, enforcement,
sale or realization of any of the Liens or Collateral or otherwise.
SECOND, to the extent any funds remain available, to the payment
or reimbursement of any expenses and fees (including, legal fees) of
the Benefited Parties under the Financing Agreements to reimburse the
Benefited Parties for expenses incurred in connection with any
Enforcement, as such expenses are set forth in a certificate of the
affected Benefited Party. In the absence of a certificate from the
Benefited Parties as to expenses incurred, the Collateral Agent may
assume without inquiry that there are no such expenses.
THIRD, to the extent any funds remain available, to the Benefited
Parties to the extent of the amount of the outstanding principal
balance and accrued interest (and not any make whole or other premium
or penalty, including, without limitation, the Make-Whole Amount, if
any), and including the amount available for drawing under all
outstanding letters of credit, constituting a part of the Benefited
Obligations on the date of such distribution (with respect to any
Benefited Party, a "CLAIM"), ratably according to the aggregate
amounts of each Benefited Party's Claim on such date; PROVIDED,
HOWEVER, that to the extent that any amounts available for
distribution pursuant to this clause THIRD are attributable to the
Bank Credit Obligations that relate to undrawn amounts under unexpired
letters of credit, such amounts shall be held in a reserve or other
account unavailable to the Company or any Guarantor (the "RESERVE
ACCOUNT") to be established by the Collateral Agent. Amounts in the
Reserve Account shall be used from time to time to pay the applicable
Bank Credit Obligations in respect of such letters of credit as they
become due and payable by virtue of the corresponding reimbursement
obligation of the Company and the Subsidiaries. Any amounts remaining
in the Reserve Account following the expiration of such letters of
credit or satisfaction in full of any reimbursement obligation in
respect thereof for which such sums were held in reserve pursuant to
this clause THIRD shall be applied against any Benefited Obligations
remaining unpaid in accordance with this Section 4(b) as if such
amount was a newly received payment.
FOURTH, to the extent that any funds remain available, to the
Noteholders on account of the Make-Whole Amount due in connection with
the Senior Notes, ratably according to the aggregate amounts thereof
owed to each Noteholder on the date of such distribution.
FIFTH, to the extent that any funds remain available, to the
Benefited Parties on account of any other obligations due to any
Benefited Party on the date when such distribution is made, whether on
account of fees, expenses or otherwise, ratably according to the
aggregate amounts thereof owed to each Benefited Party on the date of
such distribution.
SIXTH, to the extent that any funds remain available, to the
Company or to one or more of the Guarantors, as the case may be,
unless otherwise directed by a court.
PROVIDED, HOWEVER, that a prepayment of the Bank Credit Obligations in
respect of the termination and extinguishment of the Bank Credit Agreement
on or around June 30, 2002 shall not be subject to this Section 4 so long
as no "Default" or "Event of Default" (as such terms are used in any Senior
Note Document (as in effect on the date of this Agreement)) exists at such
time and no default in respect of the provisions of this Section 4 exists
at such time.
Until any amount to be applied pursuant to this Section 4(b) is so
applied, the Collateral Agent shall hold such amount in a separate account (the
"DISTRIBUTION ACCOUNT") established for the benefit of the Benefited Parties and
identified as the "SOS Benefited Obligation Distribution Account."
(C) PAYMENTS TO BENEFITED PARTIES. Payments by the Collateral
Agent in respect of (i) the Bank Credit Obligations shall be made to
the Bank Agent for distribution to the Banks in accordance with the
Bank Credit Agreement and (ii) the Senior Note Obligations shall be
made to the Noteholders ratably in accordance with the respective
amounts of Benefited Obligations owing to them, as determined in
accordance with Section 5 hereof.
(D) TIMING OF DISTRIBUTIONS. The Collateral Agent shall be
required to make distributions from the Distribution Account at any
time when the amount on deposit therein is at least US$100,000 or if
any amount is on deposit therein and the Collateral Agent has not made
a distribution therefrom within the previous 90 days; PROVIDED,
however, that any distribution with respect to a Shared Payment shall
be made on the next Business Day after the receipt by the Collateral
Agent.
5. INFORMATION.
If the Collateral Agent proceeds to enforce any Security Document or is to make
a distribution pursuant to Section 4(b), or proposes, or is directed or
requested, to take any other action pursuant to or contemplated by this
Agreement, the Benefited Parties agree as follows:
(A) BANK CREDIT OBLIGATIONS. The Bank Agent shall promptly from
time to time, upon the written request of the Collateral Agent, (i)
notify the Collateral Agent of the outstanding Bank Credit Obligations
as at such date as the Collateral Agent may specify and (ii) notify
the Collateral Agent of any payment received by the Bank Agent to be
applied to satisfy Bank Credit Obligations. The Agent shall certify as
to such amounts and the Collateral Agent shall be entitled to rely
conclusively upon such certification.
(B) SENIOR NOTE OBLIGATIONS. Each Noteholder shall promptly from
time to time, upon the written request of the Collateral Agent, (i)
notify the Collateral Agent of the outstanding Senior Note Obligations
held by such Noteholder as at such date as the Collateral Agent may
specify and (ii) notify the Collateral Agent of any payment received
thereafter by such Noteholder to be applied to satisfy Senior Note
Obligations owing to such Noteholder. Each Noteholder shall certify as
to such amounts and the Collateral Agent shall be entitled to rely
conclusively upon such certification.
Until such time as the Collateral Agent has received information it has
requested pursuant to the foregoing paragraphs (a) and (b), it shall not be
required to take any action which is dependent on its having such information.
6. COLLATERAL AGENT DISCLAIMERS, INDEMNITY, ETC.
(A) NO RESPONSIBILITY OF COLLATERAL AGENT FOR CERTAIN MATTERS.
The Collateral Agent shall have no duties or responsibilities except
those expressly set forth in this Agreement and the Security
Documents. The Collateral Agent shall not by reason of this Agreement
or the Security Documents be a Collateral Agent for any Benefited
Party or have any other fiduciary obligation to any Benefited Party
(including any obligation under the Trust Indenture Act of 1939, as
amended). None of the Collateral Agent-Related Persons shall be
responsible to any Benefited Party for any recital, statement,
representation or warranty of any Grantor contained in any Security
Document or in any certificate or other document referred to or
provided for in, or received by any of them under, any Security
Document, for incidental, consequential or punitive damages, or for
the value, validity, effectiveness, genuineness, enforceability or
sufficiency of any Security Document or any other document referred to
or provided for therein or any Lien under any of the Security
Documents or the perfection or priority of any such Lien or for any
failure by the Company, any other Grantor, any Benefited Party or any
other Person (other than such Collateral Agent-Related Person) to
perform any of its respective obligations under any Security Document.
Without limiting the foregoing, the Collateral Agent shall not be
required to take any action under any Security Document unless
instructed to do so in writing by the Majority Benefited Parties. The
Collateral Agent may employ agents and attorneys-in-fact and shall not
be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care. None of the
Collateral Agent-Related Persons shall be liable for any action taken
or omitted to be taken by any of them hereunder or in connection
herewith or for the transactions contemplated hereby, except for the
gross negligence or willful misconduct of such Person.
(B) RELIANCE ON EXPERTS, WRITINGS AND INSTRUCTIONS OF MAJORITY
BENEFITED PARTIES. The Collateral Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, facsimile,
telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been
signed, sent or made by or on behalf of the proper Person or Persons,
and upon advice and statements of legal counsel (including, without
limitation, counsel to the Company and the other Grantors),
independent accountants and other experts selected by the Collateral
Agent. As to any matters not expressly provided for by this Agreement,
the Collateral Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder in accordance with
instructions signed by the Majority Benefited Parties, and such
instructions of the Majority Benefited Parties, and any action taken
or failure to act pursuant thereto, shall be binding on all Benefited
Parties.
(C) INDEMNITY. The Benefited Parties agree that they will
indemnify the Collateral Agent-Related Persons (to the extent not
reimbursed by the Grantors under the Security Documents or reimbursed
pursuant to clause FIRST of Section 4(b) and without limiting the
obligation of the Company to do so), ratably in accordance with the
amount of the Benefited Obligations held by such Benefited Parties at
the time such claim arises, for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by or asserted against the Collateral Agent in any way
relating to or arising out of this Agreement or any of the Security
Documents or the enforcement of any of the terms of any thereof,
including fees and expenses of special counsel; PROVIDED that no such
Benefited Party shall be liable for any such payment to any Collateral
Agent-Related Person to the extent the obligation to make such payment
arises solely from such Person's gross negligence or willful
misconduct or, in the case of the receipt, holding and disbursement of
funds, such Person's negligence. The obligations of the Benefited
Parties under this Section 6(c) shall survive the payment in full of
the Benefited Obligations and the termination of this Agreement.
(D) PERMITTED INACTION. Except for action expressly required of
the Collateral Agent hereunder, the Collateral Agent shall,
notwithstanding Section 3(a), in all cases be fully justified in
failing or refusing to act hereunder or under any Security Document
unless it shall be further indemnified to its satisfaction by the
Benefited Parties against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such
action. In addition, the Collateral Agent shall not be required to
take any action that is in the opinion of counsel to the Collateral
Agent contrary to law or to the terms of this Agreement, any Security
Document or any other Financing Agreement or that would in the opinion
of such counsel subject the Collateral Agent or any of its officers,
employees, agents or directors to any liability. Notwithstanding
anything to the contrary contained in this Agreement or any of the
other Security Documents, in the event that the Collateral Agent is
entitled or required to commence an action to foreclose any of such
Security Documents or otherwise exercise its remedies to acquire
control or possession of any property constituting the Collateral, the
Collateral Agent shall not be required to commence any such action or
exercise any such remedy if the Collateral Agent has determined in
good faith that it may incur liability under any environmental law as
the result of the presence at, or release on or from, any such
property of any hazardous materials unless it has received security or
indemnity from a Person, in an amount and in a form, all satisfactory
to the Collateral Agent in its sole discretion, protecting the
Collateral Agent from all such liability.
(E) DETERMINATION OF BENEFITED PARTIES; SUBSEQUENT BENEFITED
PARTIES BOUND. The Collateral Agent may deem and treat the payee of
any promissory note or other evidence of indebtedness or obligation
relating to any Benefited Obligation as the owner thereof for all
purposes hereof unless and until a written notice of the assignment or
transfer thereof, signed by such payee and in form reasonably
satisfactory to the Collateral Agent, shall have been filed with the
Collateral Agent. Any request, authority or consent of any Person who
at the time of making such request or giving such authority or consent
is the holder of any such note or other evidence of indebtedness or
obligation shall be conclusive and binding on any subsequent holder,
transferee or assignee of such note or other evidence of indebtedness
or obligation and of any note or notes or other evidences of
indebtedness or obligation issued in exchange therefor.
(F) LIMITATION ON COLLATERAL AGENT DUTIES; NO LIABILITY FOR SALE
OF COLLATERAL. Except as expressly provided herein and in the Security
Documents, the Collateral Agent shall have no duty to take any
affirmative steps with respect to the administration or collection of
amounts payable in respect of the Security Documents or the
Collateral. No Collateral Agent-Related Person shall incur any
liability (except to the extent the actions or omissions of the
Collateral Agent or such Collateral Agent-Related Person in connection
therewith constitute gross negligence or willful misconduct) as a
result of any sale of any Collateral, whether at any public or private
sale.
(G) RESIGNATION AND REMOVAL. The Person acting as Collateral
Agent may resign at any time by giving at least 30 days prior written
notice thereof to the Company, the Bank Agent, the Banks and the
Noteholders. The Person acting as Collateral Agent may be removed as
the Collateral Agent at any time by the Majority Benefited Parties. In
the event of any such resignation or removal of the Person acting as
Collateral Agent, the Majority Benefited Parties shall thereupon have
the right (subject, so long as no Event of Default exists, to the
consent of the Company, which shall not be unreasonably withheld or
delayed) to appoint a successor Collateral Agent. If no successor
Collateral Agent shall have been so appointed by the Majority
Benefited Parties and shall have accepted such appointment within
thirty (30) days after the notice of the intent of the Person acting
as Collateral Agent to resign or the removal of the Collateral Agent,
or if the Company shall fail to consent to such appointment as so
required, the retiring Collateral Agent's resignation shall
nevertheless thereupon become effective, and the Benefited Parties
shall make such equitable arrangements as shall be necessary so that
the duties of the Collateral Agent hereunder are performed until such
time, if any, as the Majority Benefited Parties appoint a successor
Collateral Agent as provided for above. Notwithstanding the foregoing,
in the event that no appointment shall have been made as provided
herein, a successor Collateral Agent may be appointed, upon
application of the retiring Collateral Agent, the Bank Agent, any
Bank, any Noteholder or the Company, by any court of competent
jurisdiction. Any successor Collateral Agent appointed pursuant to
this clause shall be a commercial bank, trust company or other
financial institution organized under the laws of the United States of
America or any state thereof, have capital, surplus and undivided
profit aggregating at least US$100,000,000, and have long-term debt
obligations (or if such successor shall not have long-term debt
obligations and such successor is a subsidiary of a holding company,
such holding company shall have long-term debt obligations) having a
rating of "A" or better from a rating agency of national reputation.
Upon the acceptance by a successor Collateral Agent of any appointment
as the Collateral Agent hereunder, such successor Collateral Agent
shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring or removed Collateral
Agent, and the retiring or removed Collateral Agent shall thereupon be
discharged from its duties and obligations hereunder. The Collateral
Agent ceasing to act shall take all such action as is necessary to
duly assign, transfer and deliver each of the Security Documents and
the financing statements, together with all Collateral, moneys and
other property held by such Collateral Agent, to the successor
Collateral Agent so appointed in its place. After any retiring
Collateral Agent's resignation or removal hereunder, the provisions of
this Section 6 shall continue to inure to its benefit as to any
actions taken or omitted to be taken by it while it was Collateral
Agent.
(H) INDEPENDENT CREDIT DECISIONS. Each party hereto acknowledges
that it has, independently and without reliance upon the Collateral
Agent or any other Benefited Party and based upon such documents and
information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement and the other Financing
Agreements to which it is a party. Each party hereto also acknowledges
that it will, independently and without reliance upon the Collateral
Agent or any other Benefited Party and based upon such documents and
information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under the
Financing Agreements to which it is a party.
(I) INSTRUCTIONS REGARDING AMBIGUOUS PROVISIONS. If, with respect
to any proposed action to be taken by it, the Collateral Agent shall
determine in good faith that the provisions of this Agreement relating
to the functions or discretionary powers of the Collateral Agent are
or may be ambiguous or inconsistent, the Collateral Agent shall notify
the Banks, the Bank Agent and the Noteholders identifying the proposed
action and the provisions it considers to be ambiguous or
inconsistent, and may decline either to perform such function or
responsibility or to exercise such discretionary power unless it has
received the written confirmation of the Majority Benefited Parties
that the Majority Benefited Parties concur that the action proposed to
be taken by the Collateral Agent is consistent with the terms of this
Agreement or is otherwise appropriate. The Collateral Agent shall be
fully protected in acting or refraining from acting upon the
confirmation of the Majority Benefited Parties in this respect, and
such confirmation shall be binding upon all Benefited Parties.
(J) GRANTOR PAYMENT OF COLLATERAL AGENT FEES AND EXPENSES. Each
of the Company and each other Grantor, jointly and severally, by its
consent hereto, agrees to pay to the Collateral Agent, from time to
time upon demand, all fees, costs and expenses of the Collateral Agent
(including, without limitation, the fees and disbursements of such
special counsel as the Collateral Agent elects to retain) (i) incurred
by any Person in becoming the Collateral Agent, (ii) arising in
connection with the enforcement of any of the provisions of this
Agreement or the other Financing Agreements, (iii) incurred or
required to be advanced in connection with the performance of its
obligations hereunder, the administration of the Collateral or the
Security Documents, the sale or other disposition of the Collateral
and the preservation, protection or defense of the Collateral Agent's
rights under this Agreement and the other Financing Agreements and in
and to the Collateral, or (iv) incurred in connection with the receipt
or disbursement of funds hereunder. The obligations of the Company and
each other Grantor under this Section 6(j) shall survive the
termination of the other provisions of this Agreement.
(K) INDEMNIFICATION. The Company and each of the Guarantors shall
indemnify and hold harmless the Collateral Agent, each Benefited
Party, and each of their officers, directors, employees, investment
advisors, affiliates and agents (collectively, the "INDEMNIFIED
PERSONS") from and against, and reimburse each Indemnified Person for,
any and all claims, demands, liabilities, losses, damages, judgments,
penalties, costs and reasonable expenses (including, without
limitation, reasonable attorneys' fees and costs incurred in the
investigation, defense and settlement of claims), but not taxes
determined by reference to the income of the Collateral Agent or any
Benefited Party (all such items are herein referred to, collectively,
as "LOSSES") which may be imposed upon, asserted against, or incurred
or paid by any such Indemnified Person by reason of, on account of, or
in connection with:
(i) any bodily injury, death or Property damage occurring in or
upon or in connection with the operation of the Collateral
through any cause whatsoever;
(ii) any act performed or omitted to be performed under this
Agreement or any of the other Security Documents by any such
Indemnified Person; or
(iii) any transaction, suit, action or proceeding arising out of
or in any way connected with this Agreement, any other Security
Document or the Collateral.
The obligations and liability of the Company or the Guarantors under this
Section 6(k) shall be joint and several, and shall survive the foreclosure of,
and realization upon, the Collateral and the payment in full of the Benefited
Obligations and any payment, release or discharge hereof and any or all security
interests and Liens in the Collateral, and the resignation or removal of the
Collateral Agent. The Company or the Guarantors shall not be obligated to
indemnify any Indemnified Person in respect of any of the foregoing matters if
the liability of such Indemnified Person arose out of such Indemnified Person's
gross negligence or willful misconduct. To the extent that any indemnification
provided by this Section 6(k) of an Indemnified Person is in respect of an
action taken by another Indemnified Person (the "Actor"), payment of such
indemnification claim by the Company may be conditioned on assignment to the
Company by such Indemnified Person of its claim in respect of such action
against the Actor. This Section 6(k) shall not limit or restrict or impair any
other indemnity given to the Collateral Agent or any of the Benefited Parties
under this Agreement or under any of the other Financing Agreements but shall
supplement any such indemnity and shall be in addition thereto.
7. INVALIDATED PAYMENTS.
If the Collateral Agent or any other Benefited Party receives any amount
pursuant to this Agreement that is subsequently required to be returned or
repaid by the Collateral Agent or such other Benefited Party to the Company, any
other Grantor or any Affiliate thereof or their respective representatives or
successors in interest, whether by court order, settlement or otherwise (a
"REPAYMENT EVENT"), then
(a) if the Repayment Event results in the Collateral Agent being required
to return or repay any amount distributed by it to the other Benefited
Parties under this Agreement, each Benefited Party to which such amount was
distributed shall, forthwith upon its receipt of a notice thereof from the
Collateral Agent, pay the Collateral Agent an amount equal to its ratable
share (based on the amount distributed to such Benefited Party) of the
amount required to be returned or repaid relating to such Repayment Event,
together with its ratable share (determined in the same manner) of any
interest which the Collateral Agent is required to pay on the amount so
returned or repaid,
(b) if the Repayment Event results in any Benefited Party being required to
return or repay any amount received by it for its own account under this
Agreement to the Company, any other Grantor or any Affiliate thereof or
their respective representatives or successors in interest (any such
Benefited Party, an "AFFECTED BENEFITED PARTY") and such Repayment Event is
not the direct result of such Affected Benefited Party's willful
misconduct, each other Benefited Party shall, forthwith upon its receipt of
a notice thereof from the Affected Benefited Party, pay the Collateral
Agent an amount for distribution to such Affected Benefited Party such
that, after giving effect to such payment and distribution, all Benefited
Parties shall have received such proportion of the amounts distributed
pursuant to this Agreement as they would have received had the original
payment which gave rise to such Repayment Event not occurred (such payment
by each other Benefited Party to be accompanied by such Benefited Party's
ratable share (based on the amount received by such Benefited Party) of any
interest which the Affected Benefited Party is required to pay on the
amount so returned or repaid), and
(c) in either case, the Collateral Agent shall thereafter apply all amounts
to be distributed pursuant hereto in a manner consistent with the terms of
this Agreement such that all Benefited Parties receive such proportion of
such amounts as they would have received had the original payment which
gave rise to such Repayment Event not occurred;
it being understood that if any Benefited Party shall fail to promptly pay any
such amount to the Collateral Agent, the Collateral Agent may deduct such amount
from any amount payable thereafter to such Benefited Party under this Agreement.
8. MISCELLANEOUS.
(A) NOTICES. All notices and other communications provided for herein
shall be in writing and may be sent by overnight air courier or facsimile
communication and shall be deemed to have been given when delivered by
overnight air courier or upon receipt of facsimile communication. For the
purposes hereof, the address of each party hereto (until notice of a change
thereof is delivered as provided in this Section 8(a)) shall be set forth
under such party's name on the signature pages (including acknowledgments)
hereof.
(B) AMENDMENTS. This Agreement may be amended, modified or waived only
by an instrument or instruments in writing signed by the Majority Benefited
Parties (provided that no amendment or waiver of any of the provisions
hereof will be effective (i) as to any Benefited Party to the extent that
the effect of such amendment or waiver would be to deprive such Benefited
Party of the Lien on any Collateral unless such Benefited Party consents in
writing and (ii) as to the Collateral Agent to the extent that the effect
of such amendment or waiver would be to impose on the Collateral Agent
additional obligations or duties or reduce protections otherwise available
to it). No modification shall be made to the definition of "Majority
Benefited Parties," nor shall there be any change in the actions under this
Agreement which can only be taken upon the direction or consent of the
Majority Benefited Parties, without the written consent of the Company and
the other Grantors.
(C) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Collateral Agent and each other Benefited Party
and their respective successors and assigns. If the holder of any Benefited
Obligations shall transfer such Benefited Obligations, it shall promptly so
advise the Collateral Agent. Each transferee of any Benefited Obligations
shall take such Benefited Obligations subject to the provisions of this
Agreement and to any request made, waiver or consent given or other action
taken or authorized hereunder by each previous holder of such Benefited
Obligations prior to the receipt by the Collateral Agent of written notice
of such transfer; and, except as expressly otherwise provided in such
notice, the Collateral Agent shall be entitled to assume conclusively that
the transferee named in such notice shall thereafter be vested with all
rights and powers as a Benefited Party under this Agreement (and the
Collateral Agent may conclusively assume that no Benefited Obligations have
been subject to any transfer other than transfers of which the Collateral
Agent has received such a notice). Upon the written request of any
Benefited Party, the Collateral Agent will provide such Benefited Party
with copies of any written notices of transfer received pursuant hereto.
(D) CONTINUING EFFECTIVENESS. This Agreement shall continue to be
effective among the Benefited Parties even though a case or proceeding
under any bankruptcy or insolvency law or any proceeding in the nature of a
receivership, whether or not under any insolvency law, shall be instituted
with respect to the Company or any other Grantor or any portion of the
property or assets of the Company or any other Grantor, and all actions
taken by the Benefited Parties with respect to the Collateral or the
Collateral Agent with regard to such proceeding shall be determined by the
Majority Benefited Parties; PROVIDED, HOWEVER, that nothing herein shall be
interpreted to preclude any Benefited Party from filing a proof of claim
with respect to its Benefited Obligations or from casting its vote, or
abstaining from voting, for or against confirmation of a plan of
reorganization in a case of bankruptcy, insolvency or similar law in its
sole discretion.
(E) FURTHER ASSURANCES. Each Benefited Party agrees to do such further
acts and things and to execute and deliver such additional agreements,
powers and instruments as the Collateral Agent or any other Benefited Party
may reasonably request to carry into effect the terms, provisions and
purposes of this Agreement or to better assure and confirm unto the
Collateral Agent or such other Benefited Party its respective rights,
powers and remedies hereunder.
(F) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by
signing any such counterpart. A facsimile of the signature of any party on
any counterpart shall be effective as the signature of the party executing
such counterpart for purposes of effectiveness of this Agreement.
(G) EFFECTIVENESS. This Agreement shall become effective immediately
upon execution by the Collateral Agent, the Bank Agent and the Noteholders
and shall continue in full force and effect until 91 days following the
date upon which all Benefited Obligations are irrevocably paid in full and
all commitments under the Bank Credit Agreement have been terminated.
(H) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE EXCLUDING
CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
(I) HEADINGS. Headings of sections of this Agreement have been
included herein for convenience only and should not be considered in
interpreting this Agreement.
(J) NO IMPLIED BENEFICIARIES. Nothing in this Agreement, expressed or
implied, is intended or shall be construed to confer upon or give to any
Person other than the Benefited Parties any right, remedy or claim under or
by reason of this Agreement or any covenant, condition or stipulation
herein contained.
(K) SEVERANCE. If any provision in or obligation under this Agreement
shall be invalid, illegal or unenforceable in any 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.
(L) DELIVERY OF AMENDMENTS TO FINANCING AGREEMENTS. Each of the
Company and each other Grantor agrees to promptly deliver to the Collateral
Agent any amendment, modification or supplement to any Financing Agreement.
(M) REFINANCING OF BANK CREDIT AGREEMENT. In connection with a
proposed refinancing of the obligations evidenced by the Bank Credit
Agreement, the Noteholders agree that if (a) such refinancing is on terms
and conditions substantially similar to those contained in the Bank Credit
Agreement on the date hereof and (b) the lenders in respect of such
refinancing are reasonably acceptable to the Noteholders, then the
Noteholders will enter into an amendment of this Agreement to provide such
lenders rights and obligations as though they were "Banks" hereunder.
[Remainder of page intentionally blank. Next page is signature page.]
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
STATE STREET BANK AND TRUST
COMPANY, as Collateral Agent
By
--------------------------------
Name:
Title:
Xxx Xxxxxx xx Xxxxxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attn: Corporate Trust Administration
(SOS Staffing Services, Inc.
2001 Intercreditor Agreement)
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXX FARGO, NATIONAL ASSOCIATION,
as Administrative Agent and a Lender
By /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
00 Xxxxx Xxxx, 0xx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Vice President
Loan Adjustment Group
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXXX NATIONAL LIFE INSURANCE COMPANY
BY: PPM AMERICA, INC., AS ATTORNEY IN
FACT, ON BEHALF OF XXXXXXX NATIONAL
LIFE INSURANCE COMPANY
By /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: EVP/CCO
c/o PPM America, Inc
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxx
Private Placements
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
GREAT-WEST LIFE & ANNUITY INSURANCE
COMPANY
By /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President,
Investments
By /s/ Xxx Xxxxxxxx
----------------------------------
Name: Xxx Xxxxxxxx
Title: Manager, Investments
0000 Xxxx Xxxxxxx Xxxx (0X0)
Xxxxxxxxx Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FARM BUREAU LIFE INSURANCE COMPANY OF
MICHIGAN
By /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Portfolio Manager
0000 Xxxx Xxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FARM BUREAU MUTUAL INSURANCE COMPANY
OF MICHIGAN
By /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Portfolio Manager
0000 Xxxx Xxxxxxx
Xxxxxxx, XX 00000
Attn:Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE CANADA LIFE ASSURANCE COMPANY, as
beneficial owner
By /s/ Xxxxx Rachfalowski
----------------------------------
Name: Xxxxx Rachfalowski
Title: Vice President
Investment Division
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attn: Xxxx Xxxxxxx
Telephone: (000) 000-0000 Ext. 5117
Facsimile: (000) 000-0000
CANADA LIFE INSURANCE COMPANY OF
AMERICA, as beneficial owner
By /s/ Xxxxx Rachfalowski
----------------------------------
Name: Xxxxx Rachfalowski
Title: Vice President
Investment Division
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attn: Xxxx Xxxxxxx
Telephone: (000) 000-0000 Ext. 5117
Facsimile: (000) 000-0000
CANADA LIFE INSURANCE COMPANY OF NEW
YORK, as beneficial owner
By /s/ Xxxxx Rachfalowski
----------------------------------
Name: Xxxxx Rachfalowski
Title: Vice President
Investment Division
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Attn: Xxxx Xxxxxxx
Telephone: (000) 000-0000 Ext. 5117
Facsimile: (000) 000-0000
ACKNOWLEDGMENT OF AND CONSENT AND AGREEMENT
TO INTERCREDITOR AGREEMENT
The undersigned, the Company and the other Grantors described in the
Intercreditor Agreement set forth above, acknowledge and to the extent required
agree and consent to the terms and conditions thereof. Each of the undersigned
hereby acknowledges and agrees to perform its obligations under the
Intercreditor Agreement and acknowledges and agrees that it is not a third-party
beneficiary of, and has no rights under, the Intercreditor Agreement (except as
otherwise specifically provided therein).
IN WITNESS WHEREOF, each of the undersigned has caused this
Acknowledgment of and Consent and Agreement to Intercreditor Agreement to be
executed by its duly authorized officer. Additional Grantors may become parties
to this Acknowledgment and Consent and Agreement from time to time by executing
a counterpart signature page and delivering the same to the Collateral Agent.
The Company agrees to cause each Grantor to so execute and deliver a counterpart
of this Acknowledgment and Consent and Agreement upon such Person becoming a
Grantor.
SOS STAFFING SERVICES, INC.
SERVCOM STAFF MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Title: President
INTELIANT CORPORATION
By: /s/ Xxxxx Xxxxx
----------------------------------
Title: Vice President
SOS COLLECTION SERVICES, INC.
By: /s/ Xxxx Xxxxxxxx
----------------------------------
Title: Vice President
DEVON & DEVON PERSONNEL SERVICES, INC.
By: /s/ XxXxx X. Xxxxxx
----------------------------------
Title: President
