EXHIBIT 10.8.16
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT (the "AMENDMENT"),
dated as of November 7, 2000, is entered into by and among WESTAFF (USA), INC.
("WSS"), WESTERN MEDICAL SERVICES, INC. ("WMS" and together with WSS,
collectively, the "BORROWERS" and individually, a "BORROWER"), BANK OF AMERICA,
N.A., 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, July 23, 1998, January 22, 1999, and December 15, 1999 (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 "Guarantor" in Section 1.01 of
the Agreement is amended to read as follows in its entirety:
"GUARANTOR" means, when used in the
singular, any one of, and, when used in the plural, collectively
all of, the following companies: the Parent, WESTERN MEDICAL
SERVICES (NY), INC. (formerly known as Western Staff Services
(NY), Inc.), a New York corporation, WESTERN TECHNICAL SERVICES,
INC., a California corporation, MEDIAWORLD INTERNATIONAL, a
California corporation, and any other Person that may, after the
date hereof, execute a guaranty of Borrowers' obligations under
this Agreement.
(b) Section 8.08 of the Credit Agreement is amended
by replacing the period at the end of subsection (g) with a semicolon
followed by the word "and" and by the addition of a new subsection (h)
thereto to read as follows:
(h) Contingent Obligations in an aggregate
amount
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not exceeding Eleven Million Eight Hundred Forty Two
Thousand Five Hundred Dollars ($11,842,500) arising in respect
of any surety bond issued by Fireman's Fund Insurance Company
in connection with the Borrowers' workers' compensation
obligations.
(c) The definition of "Cash Flow for Debt Service"
set forth in Section 8.17 of the Credit Agreement is amended by
replacing the words "cash dividends" with "dividends declared."
(d) Schedule 6.19 to the Credit Agreement is replaced
with the revised Schedule 6.19 attached hereto.
(e) Schedule 11.02 to the Credit Agreement is
replaced with the revised Schedule 11.02 attached hereto.
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 November 7, 2000 (the "EFFECTIVE DATE"), PROVIDED that each of the following
conditions precedent is satisfied on or before November 7, 2000:
(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 the Borrowers for the
ratable account of the Banks an amendment fee in the amount of Fifty
Thousand Dollars ($50,000).
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
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under the same or similar circumstances in the future.
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 Borrowers shall bind such Bank or the Borrowers,
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.
By /s/ XXXX X. XXXXXXX
-------------------
Xxxx X. Xxxxxxx
Executive Vice President and
Chief Financial Officer
By /s/ XXXX X. XXXXXXXXX
---------------------
Xxxx X. Xxxxxxxxx
Senior Vice President and
Controller
WESTERN MEDICAL SERVICES, INC.
By /s/ XXXX X. XXXXXXXXX
---------------------
Xxxx X. Xxxxxxxxx
Executive Vice President and
Chief Financial Officer
By /s/ XXXX X. XXXXXXXXX
---------------------
Xxxx X. Xxxxxxxxx
Secretary
BANK OF AMERICA, N.A., as Agent
By /s/ XXXX X. XXXXX
-----------------
Xxxx X. Xxxxx
Vice President
BANK OF AMERICA, N.A., as a Bank and as
Issuing Bank
By /s/ XXXX X. XXXXXX
------------------
Xxxx X. Xxxxxx
Senior Vice President
COMERICA BANK-CALIFORNIA, as a Bank
By /s/ XXXXX X. XXXXX
------------------
Xxxxx X. Xxxxx
Vice President
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SANWA BANK CALIFORNIA, as a Bank
By /s/ XXXX XXXX
-------------
Xxxx Xxxx
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 Fifth 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.
Dated: November 7, 2000 By /s/ XXXX X. XXXXXXX
-------------------
Xxxx X. Xxxxxxx
Executive Vice President
and Chief Financial Officer
By /s/ XXXX X. XXXXXXXXX
---------------------
Xxxx X. Xxxxxxxxx
Senior Vice President and Controller
WESTERN MEDICAL SERVICES (NY), INC.
Dated: November 7, 2000 By /s/ XXXX X. XXXXXXXXX
---------------------
Xxxx X. Xxxxxxxxx
Executive Vice President and
Chief Financial Officer
By /s/ XXXX X. XXXXXXXXX
---------------------
Xxxx X. Xxxxxxxxx
Secretary
WESTERN TECHNICAL SERVICES, INC.
Dated: November 7, 2000 By /s/ XXXX X. XXXXXXX
-------------------
Xxxx X. Xxxxxxx
Executive Vice President and
Chief Financial Officer
By /s/ XXXX X. XXXXXXXXX
---------------------
Xxxx X. Xxxxxxxxx
Senior Vice President and Controller
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MEDIAWORLD INTERNATIONAL
Dated: November 7, 2000 By /s/ XXXX X. XXXXXXX
-------------------
Xxxx X. Xxxxxxx
Executive Vice President and
Chief Financial Officer
By /s/ XXXX X. XXXXXXXXX
---------------------
Xxxx X. Xxxxxxxxx
Senior Vice President and Controller
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SCHEDULE 6.19
SUBSIDIARIES AND
EQUITY INVESTMENTS
ACTIVE DOMESTIC SUBSIDIARIES
Western Medical Services (NY), Inc.
MediaWorld International
INACTIVE DOMESTIC SUBSIDIARIES
Western Technical Services, Inc.
Western Legal Services, Inc.
Western Television News, Inc.
Western Permanent Services Agency, Inc.
Westaff (CA), Inc.
Western Service, Inc.
Kontorservice, Inc.
FOREIGN SUBSIDIARIES
AUSTRALIA:
Westaff (Australia) Pty. Ltd.
Western Personnel Services Pty. Ltd.
Western Temporary Services Pty. Ltd.
DENMARK:
Westaff A/S
NEW ZEALAND:
Westaff NZ Limited
NORWAY:
Westaff AS
Kontorservice A/S
SINGAPORE:
Westaff (Singapore) Pte Ltd
UNITED KINGDOM:
Westaff (U.K.) Limited
SCHEDULE 11.02
ADDRESSES FOR NOTICES
BORROWERS
Westaff (USA), Inc.
Western Medical Services, Inc.
X.X. Xxx 0000
000 Xxxxxx Xxxx
Xxxxxx Xxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
Executive Vice President
and Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxxxx@xxxxxxx.xxx
--------------------
With a copy to (with respect to notices required under Articles IX and XI only):
Legal Department
P.O. Box 9280
000 Xxxxxx Xxxx
Xxxxxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxx
General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxxxx@xxxxxxx.xxx
-------------------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, AS AGENT
FOR ADMINISTRATIVE NOTICES REGARDING BORROWINGS, PAYMENTS, CONVERSIONS,
CONTINUATION, LETTERS OF CREDIT, FEES AND INTEREST:
Bank of America, N.A.
Agency Administrative Services #5596
CA4-706-05-09
0000 Xxxxxxx Xxxx.
Xxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: Xxxxxxxx.X.Xxxxxxxx@XxxxxxXxxxxxx.xxx
-------------------------------------
FOR NOTICES REGARDING WAIVERS, AMENDMENTS, FINANCIAL STATEMENTS, ASSIGNMENTS AND
ALL OTHER NOTICES:
Bank of America N.A.
Commercial Agency Management
WA1-501-37-20
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: Xxxx.X.Xxxxx@XxxxxxXxxxxxx.xxx
------------------------------
BANK OF AMERICA, N.A., AS A BANK
Bank of America, N.A.
Bay Area Commercial Banking Office #1473
CA5-102-LL-13
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx
Senior Vice President
Telephone: (000) 000-0000/XXXxx 000-0000
Facsimile: (000) 000-0000/XXXxx 622-1878
E-mail: Xxxx.Xxxxxx@XxxxxxXxxxxxx.xxx
-----------------------------
DOMESTIC AND OFFSHORE LENDING OFFICE:
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
BANK OF AMERICA, N.A., AS ISSUING BANK
Bank of America, N.A.
International Trade Banking Division #5655
CA9-703-19-09
000 X. Xxxxxxx Xxx., 00xx Xxxxx
Xxx Xxxxxxx, XX 00000-0000
COMERICA BANK - CALIFORNIA, AS A BANK
Comerica Bank - California
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: scott t xxxxx@xxxxxxxx.xxx
--------------------------
DOMESTIC AND OFFSHORE LENDING OFFICE:
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
SANWA BANK CALIFORNIA, AS A BANK
Sanwa Bank California
000 X. Xxxxxxxx Xxxxxx
X-00-00
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: xxxxx@xxxxxxxxx.xxx
-------------------
DOMESTIC AND OFFSHORE LENDING OFFICE:
000 X. Xxxxxxxx Xxxxxx
X-00-00
Xxx Xxxxxxx, XX 00000
