Exhibit 10.1
FIRST AMENDMENT TO SECOND AMENDED
AND RESTATED FORBEARANCE AGREEMENT
THIS FIRST AMENDMENT TO SECOND
AMENDED AND RESTATED FORBEARANCE AGREEMENT (this “
Amendment ”), dated as of November 20, 2008, is
entered into by and among the financial institutions identified on
the signature pages hereto (collectively, the “
Lenders ”), U.S. Bank National Association, as
administrative agent for the Lenders (in such capacity, the “
Agent ”), Westaff (USA), Inc., a California
corporation (the “ Borrower ”), and
Westaff, Inc., a Delaware corporation and the sole shareholder
of the Borrower, as parent guarantor (the “ Parent
Guarantor ”), with reference to the following
facts:
RECITALS
A.
The Borrower, the Parent Guarantor,
the Agent and the Lenders are parties to a Second Amended and
Restated Forbearance Agreement, dated as of September 30, 2008
(the “ Forbearance Agreement ”), pursuant to
which the Agent and the Lenders agreed to forbear through
November 21, 2008 from exercising their available Default
Rights and Remedies in response to the occurrence and continuation
of certain Existing Events of Default under the Financing
Agreement, dated as of February 14, 2008, among the Borrower,
the Parent Guarantor, the Agent and the Lenders, as
amended.
B.
The parties are in the process of
exploring further negotiations with respect to certain additional
terms and conditions of an extended forbearance period and, in an
effort to provide additional time for such discussions, the parties
hereto wish to amend the Forbearance Agreement to extend the term
of the forbearance period thereunder by ten (10) business
days, from November 21, 2008 to December 5,
2008.
NOW, THEREFORE, the parties hereby
agree as follows:
1.
Defined Terms
. Any and all
initially-capitalized terms used in this Amendment (including,
without limitation, in the recitals to this Amendment) without
definition shall have the respective meanings assigned thereto in
the Forbearance Agreement.
2.
Extension of Forbearance
Period .
Section 2 of the Forbearance Agreement is hereby
amended to read in full as follows:
“2. Limited
Forbearance Agreement . So long as no additional Events
of Default occur during such period, the Agent and the Lenders
hereby agree to forbear from exercising any of their Default Rights
and Remedies in response to the occurrence and continuance of the
Existing Events of Default throughout the period commencing on
November 21, 2008 and ending on December 5, 2008 (the
‘ Forbearance Period ’).”
3.
No Waiver . The agreement of the Agent and the
Lenders under Section 2 of this Amendment conditionally to
forbear from exercising their Default Rights and Remedies
throughout the Forbearance Period as extended hereby shall not
constitute a waiver of either of the Existing Events of Default,
and the Agent and the Lenders hereby expressly reserve all their
Default Rights and Remedies in connection with the Existing Events
of Default.
1
