EXHIBIT 10.8.2
WAIVER AND SECOND AMENDMENT TO CREDIT AGREEMENT
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THIS WAIVER AND SECOND AMENDMENT TO CREDIT AGREEMENT ("WAIVER AND
AMENDMENT"), dated as of September 30, 1996, is entered into by and among
WESTERN STAFF SERVICES, INC. (the "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
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A. The Borrower, Banks, and Agent are parties to a Credit Agreement
dated as of February 21, 1996, and an amendment thereto dated as of June 9, 1996
(collectively, the "CREDIT AGREEMENT") pursuant to which the Agent and the Banks
have extended certain credit facilities to the Borrower.
B. The Borrower has reported to the Agent and the Banks the
existence of certain events of default under the Credit Agreement. The Borrower
has requested that the Banks waive certain events of default and agree to
certain amendments of the Credit Agreement.
C. The Banks are willing to waive certain defaults under the Credit
Agreement, and to amend the Credit Agreement, subject to the terms and
conditions of this Waiver and Amendment.
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 8.04 of
the Credit Agreement solely as a consequence of an investment by the
Borrower in the amount of Five Thousand Dollars ($5,000) in a new
subsidiary incorporated in Kansas and known as Western Staff Services
(Guam), Inc.;
(ii) the default existing on this date under Section 8.08 of
the Credit Agreement solely as a consequence of the issuance by the
Borrower of its guaranty in the approximate amount of One Hundred
Seventy Five Thousand Dollars ($175,000) in support of
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certain lease obligations of Gain Personnel Limited, a recently-
acquired subsidiary of the Borrower located in New Zealand;
(iii) the default existing on this date under Subsection
8.08(c) of the Credit Agreement solely as a consequence of the
Borrower's failure to obtain release of a guaranty supporting the
indebtedness of Western Video Images, Inc. to MetLife Capital
Corporation; and
(iv) the default existing on this date under Subsection
9.01(c) of the Credit Agreement consisting of the Borrower's failure
to comply with the financial covenants set forth in Section 8.14
through 8.18 of the Credit Agreement solely as a consequence of the
Borrower's completion of an initial public offering of its capital
stock.
(b) Subject to and upon the terms and conditions hereof, the
Banks hereby waive the Existing Defaults.
(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 any of the Existing Defaults.
3. AMENDMENTS TO CREDIT AGREEMENT.
(a) The definition of "Consolidated Tangible Net Worth" in
Section 1.01 of the Credit Agreement shall be amended to read as follows in
its entirety:
"CONSOLIDATED TANGIBLE NET WORTH" means, as of any date, the sum of
(a) Consolidated Total Assets, PLUS (b) subordinated indebtedness of
the Borrower or any Subsidiary, LESS (c) intangible assets,(including,
without limitation, trade names, trademarks, copyrights, covenants not
to compete, organization costs, goodwill, investments in Affiliates,
and loans, advances, notes and accounts receivable from shareholders,
Affiliates and Franchisees) of the Borrower and its Subsidiaries, as
determined and computed in accordance with GAAP, or as otherwise
permitted in this Agreement LESS (d) Consolidated Total Liabilities.
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(b) The definition of "Fixed Charge Coverage Ratio" in Section
1.01 of the Credit Agreement shall be amended to read as follows in its
entirety:
"FIXED CHARGE COVERAGE RATIO" as determined on the last day of
any fiscal quarter on a consolidated basis for the Borrower and its
subsidiaries, means the ratio obtained by dividing (a) the sum of (1)
NPAT, PLUS (2) Non Cash Charges, PLUS (3) Interest Expense, PLUS (4)
Operating Lease Expense, LESS (5) Permitted Dividends and other cash
dividends paid during the preceding four (4) fiscal quarters (but
excluding the Five Million Dollar ($5,000,000) dividend payment made
to existing shareholders in April, 1996), by (b) the sum of (1)
Scheduled Debt, PLUS (2) Interest Expense, PLUS (3) Operating Lease
Expense, PLUS (4) 12-1/2% of Revolving Loans and L/C Obligations
outstanding as of the date of determination. For purposes of this
definition, the following capitalized terms have the meanings
indicated:
"NPAT", as determined on the last day of any fiscal quarter,
means the amount of gross revenues for the preceding four (4)
fiscal quarters, LESS all expenses and taxes for such period, as
determined and computed in accordance with GAAP. It is provided,
however, that NPAT for the fiscal year ending November 2, 1996,
shall not include the one-time deferred tax charge resulting from
the Borrower's conversion from an S corporation to a C
corporation during the 1996 fiscal year.
"NON-CASH CHARGES", as determined on the last day of any
fiscal quarter, means the amount equal to the sum of (a)
depreciation for the preceding four (4) fiscal quarters, PLUS (b)
amortization for the preceding four (4) fiscal quarters, PLUS
(c) loss on sale of assets for the preceding four (4) fiscal
quarters, LESS (d) gain on sale of assets for the preceding four
(4) fiscal quarters.
"INTEREST EXPENSE", as determined on the last day of any
fiscal quarter, means the amount of interest paid during the
preceding four (4) fiscal quarters as determined and computed in
accordance with GAAP.
"OPERATING LEASE EXPENSE", as determined on the last day of
any fiscal quarter, means the amount of operating lease payments
made during the preceding four (4) fiscal quarters as determined
and computed in accordance with GAAP.
"SCHEDULED DEBT", as determined on the last
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day of any fiscal quarter, means the total amount of scheduled
repayments with respect to the "Current Portion of Long-Term
Debt" ("CURRENT PORTION OF LONG TERM DEBT" means, as of any date,
obligations for the repayment of borrowed money which are
scheduled to be paid within one fiscal year from such date) and
deferred tax liabilities resulting from the Borrower's conversion
from an S corporation to a C corporation required to be paid over
the upcoming four (4) fiscal quarters following such date. For
purposes of calculating the Fixed Charge Coverage Ratio for any
fiscal quarter falling within the 1997 fiscal year, the Current
Portion of Long Term Debt shall be determined without taking into
consideration any Excess Acquisition Financing obtained after
October 1, 1996.
(c) A new definition of "Minor Acquisition" is added to Section
1.01 of the Credit Agreement reading as follows:
"MINOR ACQUISITION" has the meaning specified in Section 8.11.
(d) The definition of "Term Maturity Date" in Section 1.01 of
the Credit Agreement shall be amended by substituting "September 30, 2003"
for "March 31, 2003".
(e) Subsection 2.01(a) of the Credit Agreement shall be amended
by substituting "September 30, 1997" for "March 31, 1997".
(f) Subsection 2.03(a) of the Credit Agreement shall be amended
by substituting "11:00 a.m." for "10:00 a.m." in the first place where such
time appears therein.
(g) Subsection 2.03(b) of the Credit Agreement shall be amended
by substituting "12:00 noon" for "11:30 a.m.".
(h) Subsection 2.03(e) of the Credit Agreement shall be amended
by substituting "eight (8)" for "five (5)".
(i) Subsection 2.04(b) of the Credit Agreement shall be amended
by substituting "11:00 a.m." for "10:00 a.m.".
(j) Subsection 2.06 of the Credit Agreement shall be amended by
substituting "11:00 a.m." for "10:00 a.m.".
(k) Subsection 2.07(b) of the Credit Agreement shall be amended
to read as follows in its entirety:
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(b) EXCESS ACQUISITION FINANCING. If on or after October
1 1996, the Borrower or any of its Subsidiaries shall obtain
Acquisition Financing in excess of the amount, of any Acquisition
Financing outstanding as of September 30, 1996, (such amount in excess
of the amount outstanding as of September 30, 1996 being referred to
herein as the "EXCESS ACQUISITION FINANCING"), then the Borrower shall
promptly notify the Agent of such Excess Acquisition Financing, and
(i) if the Excess Acquisition Financing is obtained pursuant to an
Acquisition completed on or before September 30, 1997, the Aggregate
Term Commitment shall be automatically reduced by the amount of such
Excess Acquisition Financing, and the Borrower shall promptly prepay
the portion of any outstanding Term Loans which exceed the Aggregate
Term Commitment as reduced, or (ii) if the Excess Acquisition
Financing is obtained pursuant to an Acquisition completed after
September 30, 1997, the Borrower shall promptly prepay outstanding
Term Loans in an aggregate amount equal to the amount, if any, by
which such Excess Acquisition Financing (plus the amount of any
Acquiree Indebtedness resulting from the same Acquisition) exceeds the
Unutilized Aggregate Term Commitment. The prepayments required under
clause (ii) shall be applied to the Term Loans in the inverse order of
their stated maturity.
(l) Subsection 2.07(c) of the Credit Agreement shall be amended
to read as follows in its entirety:
(c) ACQUIREE INDEBTEDNESS. If any Acquiree Indebtedness
results following an Acquisition by the Borrower or any of its
subsidiaries (other than Acquiree Indebtedness secured by purchase
money security interest in the Property of the Acquiree to the extent
such security interests are permitted under clause (ii) of Subsection
8.11(d) and so long as the principal amount of Indebtedness of all
Acquirees secured by such purchase money security interests do not
exceed One Million Dollars ($1,000,000) in the aggregate at any one
time), then the Borrower shall promptly notify the Agent of such
Acquiree Indebtedness and (i) if the Acquiree Indebtedness results
from an Acquisition which is completed on or before September 30,
1997, the Aggregate Term Commitment shall be automatically reduced by
the amount of such Acquiree Indebtedness, and the Borrower shall
promptly prepay the portion of any outstanding Term Loans which exceed
the Aggregate Term Commitment as reduced, or (ii) if the Acquiree
Indebtedness results from an Acquisition which is completed after
September 30, 1997, the Borrower shall promptly prepay outstanding
Term Loans in an aggregate amount equal to the amount, if any, by
which such Acquiree Indebtedness exceeds the Unutilized
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Aggregate Term Commitment; PROVIDED, THAT, if with respect to an
Acquisition completed after September 30, 1997, Acquiree Indebtedness
and Excess Acquisition Financing result from the same Acquisition, the
amount of the required prepayment of outstanding Term Loans shall be
determined pursuant to clause (ii) of subsection 2.07(b). The
prepayments required under clause (ii) shall be applied to the Term
Loans in the inverse order of their stated maturity.
(m) Subsection 2.08(a) of the Credit Agreement shall be amended
by substituting "September 30, 1997" for "March 31, 1997" and by
substituting "October 31, 1997" for "April 30, 1997".
(n) Subsection 7.02(c) of the Credit Agreement shall be amended
by the addition of the following to the end of that subsection:
it is provided, however, that the Banks accept the Borrower's delivery
of a CPA letter dated April 26, 1996, from Price Waterhouse LLP to the
Audit Committee in lieu of a management letter for the fiscal year
ending October 28, 1995.
(o) Subsection 7.11(b) of the Credit Agreement shall be amended
to read as follows in its entirety:
(b) Term Loans shall be used to finance Acquisitions in
compliance with the provisions of Section 8.11 (including the
refinance of the cash portion of Non-Stock Consideration paid for
Acquisitions made after November 1, 1995), to repay Acquisition
Financing (including Acquisition Financing existing on the Closing
Date), and to repay the principal balance of the term loan outstanding
under the Existing Credit Agreement; and
(p) Section 8.02 of the Credit Agreement shall be amended by the
addition of a new subsection (f) thereto reading as follows:
(f) any transfers of Property between or among domestic
Subsidiaries of the Borrower; PROVIDED, THAT the domestic Subsidiary
which is the transferee of the Property is a Guarantor or, prior to
the occurrence of any such transfer of Property, executes and delivers
a guaranty, security agreement, and such other documentation as may be
reasonably requested by Banks pursuant to the provisions of Section
7.13.
(q) Subsection 8.04(e) of the Credit Agreement shall be amended
to read as follows in its entirety:
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(e) loans to and investments in foreign Subsidiaries or
Affiliates in an aggregate amount not exceeding Four Million Six
Hundred Thousand Dollars ($4,600,000) at any one time; provided,
however, that if Western Staff Services Pty. Ltd., Australia, enters
into the proposed contract with Telstra Corporation Limited, the
foregoing limit shall be increased to Eight Million Dollars
($8,000,000);
(r) Section 8.04 of the Credit Agreement shall be amended by the
addition of a new subsection (k) thereto reading as follows:
(k) investments in new domestic Subsidiaries or Affiliates
in an aggregate amount not exceeding ONE Hundred Thousand Dollars
($100,000) at any one time.
(s) Subsection 8.05(h) of the Credit Agreement shall be amended
by the addition of the following sentence to the end of subsection (h):
It is provided, however, that the requirements of clause (ii) above
shall not apply with respect to Acquiree Indebtedness secured by
purchase money security interest in the Property of the Acquiree to
the extent such security interests are permitted under clause (ii) of
Subsection 8.11(d) and so long as the principal amount of Indebtedness
of all Acquirees secured by such purchase money security interests do
not exceed One Million Dollars ($1,000,000) in the aggregate at any
one time.
(t) Subsection 8.08(c) shall be amended to read as follows in
its entirety:
(c) Contingent Obligations of the Borrower and its
Subsidiaries existing as of the Closing Date and listed in SCHEDULE
8.08; PROVIDED, HOWEVER, that the existing guaranty issued by the
Borrower in support of the obligations of Western Video Images to
MetLife Capital Corporation shall be released no later than November
30, 1996;
(u) Section 8.08 of the Credit Agreement shall be amended by the
addition of new subsections (f) and (g) thereto reading as follows:
(f) guaranties of performance from time to time executed by
the Borrower in respect of the obligations of its Subsidiaries arising
under real property leases entered into by its Subsidiaries; and
(g) additional Contingent Obligations of the Borrower and
its Subsidiaries in an aggregate amount
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not exceeding Three Hundred Thousand Dollars ($300,000) at any one
time.
(v) Subsection 8.11(b) of the Credit Agreement shall be amended
by substituting "fiscal year" for "twelve (12) month period".
(w) Subsection 8.11(d) of the Credit Agreement shall be amended
to read as follows in its entirety:
(d) The assets of Acquiree shall not be subject to any
Liens as of the Acquisition date, other than (i) Permitted Liens of
the types described in subsections 8.01(c), 8.01(d) and 8.01(e), and
(ii) purchase money security interests on any Property acquired or
held by the Acquiree in the Ordinary Course of Business securing
Indebtedness incurred or assumed for the purpose of financing all or
any part of the cost of acquiring such Property, PROVIDED THAT the
principal amount of Indebtedness of all Acquirees secured by such
purchase money security interests shall not exceed One Million Dollars
($1,000,000) in the aggregate at any one time.
(x) Subsection 8.11(j) of the Credit Agreement shall be amended
by substituting "September 30, 1997" for "March 31, 1998" and by
substituting "Twenty Seven Million Dollars ($27,000,000)" for "Fifteen
Million Two Hundred Thousand Dollars ($15,200,000)".
(y) Section 8.11 of the Credit Agreement shall be amended by the
addition of the following to the end of that section:
For the purpose of determining the aggregate amount of Non-Stock
Consideration and Stock Consideration paid by the Borrower and its
Subsidiaries for an Acquisition, the aggregate amount of such
consideration shall include the estimated value of the "contingent
earnout" to be paid to the seller on the basis of the Acquiree's
future performance.
Notwithstanding the foregoing, the conditions set forth in subsections
(b), (c) and (h) above shall not be applicable to a Minor Acquisition,
provided that the aggregate amount of Non-Stock Consideration and
Stock Consideration paid by the Borrower and its Subsidiaries for all
Minor Acquisitions made after June 30, 1996, does not exceed Two
Million Six Hundred Thousand Dollars ($2,600,000). A "MINOR
ACQUISITION" means an Acquisition for an aggregate amount of Non-Stock
Consideration and Stock Consideration of Seven Hundred Fifty Thousand
Dollars ($750,000) or less.
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(z) Section 8.12 of the Credit Agreement shall be amended by the
addition of the following sentence to the end of that section:
It is further provided that, notwithstanding the foregoing
restrictions, any wholly-owned Subsidiary of the Borrower may declare
and make dividend payments to the Borrower, whether in cash or in the
form of other Property of the Subsidiary.
(aa) The second sentence of Section 8.13 of the Credit Agreement
shall be amended to read as follows:
For purposes of computing compliance with this section, (a) the unused
portion of permitted Capital Expenditures shall not be carried forward
from one fiscal year to a succeeding fiscal year, and (b) fixed or
capital assets acquired through Acquisitions completed on or before
September 30, 1997, shall not be included in the foregoing
limitations.
(bb) Section 8.14 of the Credit Agreement shall be amended by
substituting "1.35:1.0" for "1.15:1.0".
(cc) Section 8.15 of the Credit Agreement shall be amended to
read as follows in its entirety:
8.15 CONSOLIDATED TANGIBLE NET WORTH. The Borrower shall
not permit its Consolidated Tangible Net Worth to be less than:
(a) as determined on November 1, 1996, Thirty-Four Million
Dollars ($34,000,000); and
(b) as determined on January 25, 1997, Sixteen Million Five
Hundred Thousand Dollars ($16,500,000); and
(c) as determined on April 18, 1997, Eighteen Million Five
Hundred Thousand Dollars ($18,500,000); and
(d) as determined on July 12, 1997, Twenty Million Five
Hundred Thousand Dollars ($20,500,000); and
(e) as determined on October 31, 1997, Twenty Five Million
Dollars ($25,000,000); and
(f) as determined on the last day of each fiscal quarter
after the 1997 fiscal year end, an amount equal to (1) Consolidated
Tangible Net Worth as of the last day of the immediately preceding
fiscal year, PLUS (2) ninety-five percent (95%) of Net Profit
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After Tax earned on a cumulative fiscal year-to-date basis, PLUS (3)
one hundred percent (100%) of the net proceeds from any equity
securities issued after October 31, 1997.
(dd) Section 8.16 of the Credit Agreement shall be amended to
read as follows in its entirety:
8.16 DEBT TO NET WORTH RATIO. The Borrower shall not permit (as
of the end of each fiscal quarter indicated below) its Debt to Net
Worth Ratio to be greater than the ratio set forth below with respect
to such fiscal quarter end:
Fiscal Quarter Ending Ratio
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July 6, 1996 2.20:l.0
November 2, 1996 5.20:1.0
January 25, 1997 5.20:1.0
April 19, 1997 4.70:1.0
July 12, 1997 4.20:1.0
October 31, 1997, through
and including the fiscal
quarter ending July 11, 1998 3.75:1.0
October 31, 1998, and each
fiscal quarter thereafter 3.50:l.0
(ee) Section 8.17 of the Credit Agreement shall be amended to
read as follows in its entirety:
8.17 FIXED CHARGE COVERAGE RATIO. The Borrower shall maintain a
Fixed Charge Coverage Ratio, calculated for the four (4) fiscal
quarter period immediately preceding the last day of the fiscal
quarter then ended, of not less than the ratio set forth below with
respect to such fiscal quarter:
Fiscal Quarter Ending Ratio
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July 6, 1996, and each
fiscal quarter thereafter
through and including the
fiscal quarter ending
April 19, 1997 1.15:l.0
July 12, 1997, and each
fiscal quarter thereafter
through and including the
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fiscal quarter ending
July 11, 1998 1.25:l.0
October 31 1998, and each
fiscal quarter thereafter 1.35:1.0
(ff) Section 8.18 of the Credit Agreement shall be amended to
read as follows in its entirety:
8.18 PROFITABILITY. The Borrower shall maintain Consolidated Net
Income of not less than zero on a cumulative basis as of the end of
the first, second and third quarters of each fiscal year, and not less
than Nine Million Dollars ($9,000,000) for each fiscal year commencing
with the fiscal year ending November 2, 1996. "CONSOLIDATED NET
INCOME" means, as determined on the last day of any fiscal quarter,
net after-tax income of Borrower and its consolidated Subsidiaries
determined and computed in accordance with GAAP, excluding, however,
gain(s) attributable to extraordinary items and including, however,
loss(es) attributable to extraordinary items. It is provided, however,
that Consolidated Net Income for the fiscal year ending November 2,
1996, shall not include the one-time deferred tax charge resulting
from the Borrower's conversion from an S corporation to a C
corporation during the 1996 fiscal year.
(gg) Subsection 9.01(m) of the Credit Agreement shall be amended
to read as follows in its entirety:
(m) OWNERSHIP. Any Person (other than W. Robert Stover or
any trust or foundation established by or controlled by W. Robert
Stover) acquires in excess of thirty percent (30%) of the issued and
outstanding capital stock of the Borrower entitled to vote for the
election of members of the Board of Directors of the Borrower, or the
composition of the Board of Directors of the Borrower changes by more
than thirty-three percent (33%) from the composition existing as of
the Closing Date; or
4. REPRESENTATIONS AND WARRANTIES. The Borrower 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 the Borrower 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
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enforceable. The Credit Agreement as amended by this Waiver and Amendment
constitutes the legal, valid and binding obligations of the Borrower,
enforceable against it in accordance with its respective terms, without
defense, counterclaim or offset.
(c) Subject to the Existing Defaults, all representations and
warranties of the Borrower contained in the Credit Agreement are true and
correct.
(d) The Borrower 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 September 30, 1996 (the "EFFECTIVE DATE"), PROVIDED that each of the
following conditions precedent is satisfied:
(a) The Agent has received from the Borrower 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 (the
"CONSENT").
(b) All representations and warranties contained herein are true
and correct as of the Effective Date.
(c) The Borrower has paid to the Agent for the ratable account
of the Banks, as determined by each Bank's Commitment Percentage, a term
loan extension fee in the amount of Twenty Two Thousand Dollars ($22,000).
6. RESERVATION OF RIGHTS. The Borrower 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.
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
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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 shall bind such
Bank or the Borrower, 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 Amendment or the Credit Agreement, respectively.
(g) The Borrower 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
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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, INC.
By /s/ Paul A. Norberg
---------------------------------
Paul A. Norberg
Executive Vice President and
Chief Financial Officer
By /s/ Michael W. Ehresman
---------------------------------
Michael W. Ehresman
Vice President and Treasurer
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Agent
By
---------------------------------
Leandro Balidoy
Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Bank and as Issuing Bank
By
---------------------------------
Lori Mazzera.
Vice President
SANWA BANK CALIFORNIA, as a
Bank and as Co-Agent
By
---------------------------------
Karen S. Fluegge
Vice President
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COMERICA BANK-CALIFORNIA, as a
Bank
By
---------------------------------
Lori S. Edwards
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 obligations to the Agent and the Banks under the Credit
Agreement, each hereby (i) acknowledges and consents to the execution, delivery
and performance by Borrower of the foregoing Waiver and Second Amendment to
Credit Agreement ("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 (USA), INC.
Dated: 12/6/96 By /s/ Paul A. Norberg
---------------------------------
Paul A. Norberg
Executive Vice President and
Chief Financial Officer
By /s/ Michael W. Ehresman
---------------------------------
Michael W. Ehresman
Vice President and Treasurer
WESTERN STAFF SERVICES (NY), INC.
Dated: 12/6/96 By /s/ Paul A. Norberg
---------------------------------
Paul A. Norberg
Executive Vice President and
Chief Financial Officer
By /s/ Michael W. Ehresman
---------------------------------
Michael W. Ehresman
Vice President and Treasurer
-16-
WESTERN TECHNICAL SERVICES, INC.
Dated: 12/6/96 By /s/ Paul A. Norberg
---------------------------------
Paul A. Norberg
Executive Vice President and
Chief Financial Officer
By /s/ Michael W. Ehresman
---------------------------------
Michael W. Ehresman
Vice President and Treasurer
MEDIAWORLD INTERNATIONAL
Dated: 12/6/96 By /s/ Paul A. Norberg
---------------------------------
Paul A. Norberg
Executive Vice President and
Chief Financial Officer
By /s/ Michael W. Ehresman
---------------------------------
Michael W. Ehresman
Vice President and Treasurer
WESTERN PERMANENT SERVICES AGENCY, INC.
Dated: 12/6/96 By /s/ Paul A. Norberg
---------------------------------
Paul A. Norberg
Executive Vice President and
Chief Financial Officer
By /s/ Michael W. Ehresman
---------------------------------
Michael W. Ehresman
Vice President and Treasurer
-17-