WAIVER AND SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS WAIVER AND SIXTH AMENDMENT TO CREDIT AGREEMENT (the "WAIVER AND
AMENDMENT"), dated as of November 14, 1997, is entered into by and among WESTERN
STAFF SERVICES (USA), INC. (the "BORROWER"), WESTERN MEDICAL SERVICES, INC.
("WMS"), 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 Borrower, WMS, Banks, and Agent are parties to a Credit
Agreement dated as of February 21, 1996, and amendments thereto dated as of June
9, 1996, September 30, 1996, March 31, 1997, August 22, 1997, and September 30,
1997 (collectively, the "CREDIT AGREEMENT") pursuant to which the Agent and the
Banks have extended certain credit facilities to the Borrower and WMS.
B. The Borrower and WMS have reported to the Agent and the Banks the
existence of certain events of default under the Credit Agreement. The Borrower
and WMS have requested that the Banks waive certain events of default and agree
to certain amendments of the Credit Agreement.
C. The Banks are willing to grant the requests of the Borrower and
WMS, subject to the terms and conditions of this Waiver and 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. DEFAULTS AND WAIVER.
(a) For purposes of this Waiver and Amendment, the "EXISTING
DEFAULTS" shall mean:
(i) the default existing on this date under Section 8(c)
of that certain Third Amendment to Credit Agreement and Assumption
Agreement (the "THIRD AMENDMENT"), dated as of March 31, 1997, among
Western Staff Services, Inc. (the "PARENT"), the Borrower, WMS, the
Agent and the Banks, solely as a consequence of the Borrower's failure
to deliver by September 30, 1997, a
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copy of the United States Copyright Office Certificate of Recordation
evidencing date, volume and page of recordation with respect to each
copyright assigned by the Parent to the Borrower.
(ii) the default existing on this date under Section 6(a) of
that certain Waiver and Fourth Amendment to Credit Agreement (the
"FOURTH AMENDMENT"), dated as of August 22, 1997, among the Borrower,
WMS, the Agent and the Banks, solely as a consequence of the
Borrower's failure to deliver by October 31, 1997, a copy of the
United States Patent and Trademark Office Notice of Recordation
evidencing date, reel and frame number of recordation with respect to
each servicemark and trademark assigned by the Borrower to WMS.
(iii) the default existing on this date under Section 6(b)
of the Fourth Amendment solely as a consequence of the Borrower's
failure to deliver by October 31, 1997, a copy of the United States
Copyright Office Certificate of Recordation evidencing date, volume
and page of recordation with respect to each copyright assigned by the
Borrower to WMS.
(b) Subject to and upon the terms and conditions hereof, the
Banks hereby waive the Existing Defaults. The Banks further agree to
extend until December 31, 1997, the period for compliance with the
requirements of Section 8(c) of the Third Amendment and Sections 6(a) and
6(b) of the Fourth Amendment.
(c) Nothing contained herein shall be deemed a waiver of (or
otherwise affect the Agent's or the Banks' ability to enforce) any other
default or Event of Default, including without limitation (i) any default
or Event of Default as may now or hereafter exist and arise from or
otherwise be related to the Existing Defaults (including without limitation
any cross-default arising under the Credit Agreement by virtue of any
matters resulting from the Existing Defaults), and (ii) any default or
Event of Default arising at any time after the Effective Date and which is
the same as the Existing Defaults.
3. AMENDMENTS TO CREDIT AGREEMENT.
(a) The definition of "Aggregate L/C Commitment" in Section
1.01 of the Credit Agreement is hereby amended to read as follows in its
entirety:
"Aggregate L/C Commitment" means the combined L/C Commitments
of the Banks, in the initial amount of Fifteen Million Dollars
($15,000,000), as such amount may be reduced from time to time pursuant
to this
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Agreement; provided, that the Aggregate L/C Commitment is a part of the
Aggregate Revolving Commitment.
(b) The definition of "Aggregate Revolving Loan Commitment" in
Section 1.01 of the Credit Agreement is hereby amended to read as follows
in its entirety:
"AGGREGATE REVOLVING LOAN COMMITMENT" means the combined
Revolving Loan Commitments of the Banks, in the initial amount of
Twenty Five Million Dollars ($25,000,000), as such amount may be
reduced from time to time pursuant to this Agreement.
(c) Subsection 2.01(b) of the Credit Agreement is hereby amended
to read as follows in its entirety:
(b) THE REVOLVING CREDIT. Each Bank severally
agrees, on the terms and conditions hereinafter set
forth, to make Loans to the Borrower and WMS (each such
Loan, a "REVOLVING LOAN") from time to time on any
Business Day during the period from the Closing Date to
the Revolving Termination Date, in an aggregate amount
not to exceed at any time outstanding the amount set
forth opposite such Bank's name in SCHEDULE 2.01(b) under
the heading "REVOLVING LOAN COMMITMENT" (such amount as
the same may be reduced pursuant to Section 2.05 or as a
result of one or more assignments pursuant to Section
11.08, such Bank's "REVOLVING LOAN COMMITMENT");
PROVIDED, HOWEVER, that no Revolving Loan shall be made
hereunder if, after giving effect to any Borrowing of
Revolving Loans (i) the Effective Amount of all Revolving
Loans shall exceed the Aggregate Revolving Loan
Commitment; or (ii) the Effective Amount of the Revolving
Loans of any Bank shall exceed such Bank's Revolving Loan
Commitment. Within the foregoing limits, and subject to
the other terms and conditions hereof, the Borrower and
WMS may borrow under this subsection 2.01(b), prepay
pursuant to Section 2.06 and reborrow pursuant to this
subsection 2.01(b).
(d) SCHEDULE 2.01(b) of the Credit Agreement is replaced in its
entirety with REVISED SCHEDULE 2.01(b) attached hereto.
4. REPRESENTATIONS AND WARRANTIES. The Borrower and WMS each hereby
represents and warrants to the Agent and the Banks as follows:
(a) Other than the Existing Defaults, no Event of Default has
occurred and is continuing.
(b) The execution, delivery and performance by
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the Borrower and WMS of this Waiver and 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 Waiver and Amendment
constitutes the legal, valid and binding obligations of the Borrower and
WMS, enforceable against each of them in accordance with its respective
terms, without defense, counterclaim or offset.
(c) Subject to the Existing Defaults, all representations and
warranties of the Borrower and WMS contained in the Credit Agreement are
true and correct.
(d) Each of the Borrower and WMS is entering into this Waiver
and 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.
5. EFFECTIVE DATE. This Waiver and Amendment will become effective
as of November 14, 1997 (the "EFFECTIVE DATE"), provided that each of the
following conditions precedent is satisfied:
(a) The Agent has received from the Borrower, WMS, and each of
the Banks a duly executed original (or, if elected by the Agent, an
executed facsimile copy) of this Waiver and Amendment, together with a duly
executed Guarantor Acknowledgment and Consent in the form attached hereto;
and
(b) The Agent has received from the Borrower for the Agent's own
account an amendment fee of Two Thousand Five Hundred Dollars ($2,500).
6. RESERVATION OF RIGHTS. The Borrower and WMS each acknowledges
and agrees that neither the Agent's nor the Banks' forbearance in exercising
their rights and remedies in connection with the Existing Defaults, nor the
execution and delivery by the Agent and the Banks of this Waiver and Amendment,
shall be deemed (i) to create a course of dealing or otherwise obligate the
Agent or the Banks to forbear or execute similar waivers under the same or
similar circumstances in the future, or (ii) to waive, relinquish or impair any
right of the Agent or the Banks to receive any indemnity or similar payment from
any Person or entity as a result of any matter arising from or relating to the
Existing Defaults.
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7. 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 Waiver and Amendment.
This Waiver and Amendment shall be deemed incorporated into, and a part of,
the Credit Agreement.
(b) This Waiver and 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 Waiver and Amendment.
(c) This Waiver and Amendment shall be governed by and construed
in accordance with the law of the State of California.
(d) This Waiver and 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 Waiver and 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
Waiver and Amendment supersedes all prior drafts and communications with
respect thereto. This Waiver and 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 Waiver and Amendment shall
be deemed prohibited by or invalid under any applicable law, such provision
shall be invalidated without affecting the remaining provisions of this
Waiver and
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Amendment or the Credit Agreement, respectively.
(g) The Borrower and WMS each covenants to pay to or reimburse
the Agent and the Banks, 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
Waiver and Amendment and the administration of the Existing Defaults,
including without limitation appraisal, audit, search and filing fees
incurred in connection therewith.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Waiver and Amendment as of the date first above written.
WESTERN STAFF SERVICES (USA),
INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Treasurer
WESTERN MEDICAL SERVICES, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and
Controller
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Secretary
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Agent
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Bank and as Issuing Bank
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
SANWA BANK CALIFORNIA, as a
Bank and as Co-Agent
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
COMERICA BANK-CALIFORNIA, as a
Bank
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
First Vice President and
Group Manager
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GUARANTOR ACKNOWLEDGMENT
AND CONSENT
The undersigned, each a guarantor or third party pledgor with respect
to the Borrower's and WMS's 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 Borrower and WMS of the foregoing Sixth Waiver
and Amendment to Credit Agreement (the "WAIVER AND 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 Waiver and
Amendment.)
WESTERN STAFF SERVICES, INC.
Dated as of: November 14, 1997 By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
and Chief Financial Officer
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Treasurer
WESTERN STAFF SERVICES (NY), INC.
Dated as of: November 14, 1997 By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Treasurer
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WESTERN TECHNICAL SERVICES, INC.
Dated as of: November 14, 1997 By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Treasurer
MEDIAWORLD INTERNATIONAL
Dated as of: November 14, 1997 By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Treasurer
WESTERN PERMANENT SERVICES
AGENCY, INC.
Dated as of: November 14, 1997 By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Treasurer
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WESTERN STAFF SERVICES (GUAM),
INC.
Dated as of: November 14, 1997 By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Treasurer
ALTERNATIVE BILLING SERVICES,
INC.
Dated as of: November 14, 1997 By /s/ ▇▇▇▇▇▇▇ ▇. Sloeker
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▇▇▇▇▇▇▇ ▇. Sloeker
Vice President and
Controller
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Secretary
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