Exhibit 10.1
SECOND AMENDMENT TO SECOND
AMENDED AND RESTATED FORBEARANCE AGREEMENT
THIS SECOND AMENDMENT TO SECOND
AMENDED AND RESTATED FORBEARANCE AGREEMENT (this “
Amendment ”), dated as of December 3, 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.
Pursuant to the First Amendment to Second Amended and Restated
Forbearance Agreement, dated as of November 20, 2008, the
parties to the Forbearance Agreement amended 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.
C.
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 an additional ten (10) business days, from
December 5, 2008 to December 19, 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
December 5, 2008 and ending on December 19, 2008 (the
‘ Forbearance Period ’).”
