FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "AMENDMENT"), dated as
of May 15, 1998, is entered into by and among 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 (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 consent to the terms
of a certain Note Purchase Agreement dated on or about May 15, 1998 among the
Borrowers, Nationwide Life Insurance Company, and Xxxxxxx National Life
Insurance Company.
C. The Banks are willing to grant the request of the Borrowers,
provided the Credit Agreement is amended as set forth in 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 following new defined terms are added to Section
1.01 of the Credit Agreement:
"NOTE PURCHASE AGREEMENT" means that certain Note Purchase
Agreement among the Borrowers and Note Purchasers dated on or
about May 15, 1998, pursuant to which Borrowers have agreed to
issue and Note Purchasers have agreed to acquire 6.77% Senior
Secured Notes due May 15, 2008, in the aggregate principal amount
of Thirty Million Dollars ($30,000,000).
"NOTE PURCHASERS" means Nationwide Life Insurance Company,
Xxxxxxx National Life Insurance Company, and their respective
successors and assigns.
(b) Section 7.13 of the Credit Agreement is amended by the
addition of the following subsection (e) thereto:
(e) Cause any Subsidiary which is not a Loan Party and
which executes a guaranty and security agreement in favor of the
Note Purchasers in support of the Borrowers' obligations under
the Note Purchase Agreement to concurrently become a Loan Party
as provided in subsections (a) and (b) above.
(c) A new Section 8.15 is added to the Credit Agreement to
read as follows:
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8.15 LIMITATION ON TOTAL INDEBTEDNESS. The Borrowers shall
not permit the ratio of Total Indebtedness to Total
Capitalization to exceed 55%. For purposes of this Section 8.15
only, the following terms have the meanings indicated:
"TOTAL INDEBTEDNESS" means, without duplication, the sum of
the following Indebtedness of the Parent and its consolidated
Subsidiaries: (i) liabilities for borrowed money (including
Revolving Loans from time to time created hereunder) and
redemption obligations in respect of mandatorily redeemably
preferred stock; (ii) liabilities for the deferred purchase price
of property (excluding accounts payable arising in the Ordinary
Course of Business but including all liabilities created or
arising under any conditional sale or other title retention
agreement with respect to any such property); (iii) Capital
Leases; (iv) all liabilities for borrowed money secured by any
Lien with respect to any property owned by any such Person
(whether or not it has assumed or otherwise become liable for
such liabilities); (v) L/C Borrowings; (vi) Swap Contracts; (vii)
any Guaranty Obligations with respect to liabilities of a type
described in any of the clauses (i) through (vi).
"TOTAL CAPITALIZATION" means the sum of Total Indebtedness
and Consolidated Net Worth.
(d) Subsection 11.01(e) of the Credit Agreement is amended
by adding "8.15," immediately following "8.14,".
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.
(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.
4. EFFECTIVE DATE. This Amendment will become effective as of the
date that the Agent shall have 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.
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.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the date first above written.
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
Vice President and Treasurer
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WESTERN MEDICAL SERVICES, INC.
By /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxxx
President, Chief Operating Officer
and Chief Financial Officer
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxx
Controller
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By /s/ Xxxxxxx Xxxxxxx
---------------------------------
Xxxxxxx Xxxxxxx
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
COMERICA BANK-CALIFORNIA, as a Bank
By /s/ Xxxx X. Xxxxxxx
---------------------------------
Xxxx X. Xxxxxxx
First Vice President and
Group Manager
SANWA BANK CALIFORNIA, as a Bank
By /s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
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 First 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.)
WESTERN STAFF SERVICES, 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
Vice President and Treasurer
WESTERN MEDICAL SERVICES (NY), INC.
Dated: _________________ By /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxxx
President, Chief Operating Officer,
and Chief Financial Officer
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxx
Controller
WESTERN TECHNICAL SERVICES, 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
Vice President and Treasurer
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MEDIAWORLD INTERNATIONAL
Dated: _________________ By /s/ Xxxx X. Xxxxxxx
---------------------------------
Xxxx X. Xxxxxxx
Executive Vice President and
Chief Financial Officer
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxx
Vice President and Treasurer
WESTERN STAFF SERVICES (GUAM), 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
Vice President and Treasurer
ALTERNATIVE BILLING SERVICES, INC.
Dated: _________________ By /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxxx
President, Chief Operating Officer,
and Chief Financial Officer
By /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxx
Controller
BEST TEMPORARIES, 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
Vice President and Treasurer
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BEST TEMPORARIES FEDERAL SYSTEMS, 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
Vice President and Treasurer
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