EXHIBIT 10.8.10
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (the "AMENDMENT"), dated as
of July 23, 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, and an amendment thereto dated as of May 15, 1998
(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 "AGGREGATE CONSIDERATION" in Section
1.01 of the Credit Agreement is amended to read as follows in its entirety:
"AGGREGATE CONSIDERATION" means the total of all cash
and other assets paid or to be paid by a Borrower or any other Loan Party for an
Acquisition, including the fair market value of Stock Consideration and the
amount of Acquisition Related Indebtedness related to such Acquisition.
(b) The following new defined term is added to Section 1.01
of the Credit Agreement:
"STOCK CONSIDERATION" means the portion of Aggregate
Consideration related to an Acquisition which is satisfied through delivery of
the capital stock of the Parent.
(c) Subsection 8.11(f) of the Credit Agreement is amended
to read as follows in its entirety:
(f) The Aggregate Consideration, on a cumulative
basis, for all Acquisitions consummated after November 3, 1997, shall not exceed
the amounts indicated as of the end of each fiscal year set forth below:
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FISCAL YEAR AGGREGATE CONSIDERATION
----------- -----------------------
1998 $35,000,000, PLUS 100% of net cash proceeds from capital stock
issued by the Parent after 11/3/97, PLUS 100% of the fair market
value of all Stock Consideration related to Acquisitions
consummated after 11/3/97.
1999 $45,000,000, PLUS 100% of net cash proceeds from capital stock
issued by the Parent after 11/3/97, PLUS 100% of the fair market
value of all Stock Consideration related to Acquisitions
consummated after 11/3/97.
2000 $60,000,000, PLUS 100% of net cash proceeds from capital stock
issued by the Parent after 11/3/97, PLUS 100% of the fair market
value of all Stock Consideration related to Acquisitions
consummated after 11/3/97.
2001 $70,000,000, PLUS 100% of net cash proceeds from capital stock
issued by the Parent after 11/3/97, PLUS 100% of the fair market
value of all Stock Consideration related to Acquisitions
consummated after 11/3/97.
2002 $80,000,000, PLUS 100% of net cash proceeds from capital stock
issued by the Parent after 11/3/97, PLUS 100% of the fair market
value of all Stock Consideration related to Acquisitions
consummated after 11/3/97.
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.
(d) Each of the Borrowers is entering into this Amendment
on the basis of its own investigation and for its own reasons, without
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reliance upon the Agent and the Banks or any other Person.
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.
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.
(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,
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including without limitation appraisal, audit, search and filing fees
incurred in connection therewith.
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/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Treasurer
WESTERN MEDICAL SERVICES, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President, Chief Operating Officer
and Chief Financial Officer
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Controller
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇
Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank and
as Issuing Bank
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
COMERICA BANK-CALIFORNIA, as a Bank
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
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SANWA BANK CALIFORNIA, as a Bank
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
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 Second 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: 7/23/98 By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------- ---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
and Chief Financial Officer
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Treasurer
WESTERN MEDICAL SERVICES (NY), INC.
Dated: 7/23/98 By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President, Chief Operating Officer,
and Chief Financial Officer
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Controller
WESTERN TECHNICAL SERVICES, INC.
Dated: 7/23/98 By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Treasurer
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MEDIAWORLD INTERNATIONAL
Dated: 7/23/98 By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------- ---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Treasurer
WESTERN STAFF SERVICES (GUAM), INC.
Dated: 7/23/98 By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Treasurer
ALTERNATIVE BILLING SERVICES, INC.
Dated: 7/23/98 By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President, Chief Operating Officer,
and Chief Financial Officer
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Controller
BEST TEMPORARIES, INC.
Dated: 7/23/98 By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Treasurer
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BEST TEMPORARIES FEDERAL SYSTEMS, INC.
Dated: 7/23/98 By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President and
Chief Financial Officer
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Treasurer
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