Exhibit
10.8.26


 


AMENDED AND RESTATED


 


UNSECURED SUBORDINATED NOTE


 


	
  $2,000,000

  	
  May 17, 2002

  
	
   

  	
  Walnut Creek,
  California

  



 


1.             Promise to
Pay.    This Amended and
Restated Unsecured Subordinated Note (this “Note”), is the promise of
WESTAFF (USA), INC., a California corporation (“Payor”) to pay to W.
Robert Stover, and his successors and assigns (“Holder”), the principal
amount and all interest accrued upon the loan (the “Loan”), made f by
Holder to the undersigned, the principal amount of TWO MILLION DOLLARS (US$2,000,000)
(the “Principal Amount”).  Upon
the terms and conditions hereof, Payor hereby unconditionally promises to pay
to the order of Holder at such address as Holder shall hereinafter designate to
Payor in writing, in lawful money of the United States of America and in
immediately available funds, the Principal Amount and to pay interest on the
outstanding principal balance of the Loan as computed in the manner set forth
in Section 3 below.  All
capitalized terms herein shall have the meanings as provided herein (including Section
13 below), and if not defined herein, shall have the respective meanings as
defined in Annex A of that certain Multicurrency Credit Agreement dated on or
about the date hereof by and among Westaff (USA), Inc., Westaff (U.K.) Limited,
Westaff Support, Inc., Westaff (CA), Inc., and Westaff Limited Partnership, as
Borrowers, Westaff, Inc., as Guarantor, General Electric Capital Corporation,
as Agent, and the Lenders signatory thereto (as amended, supplemented,
replaced, refinanced or otherwise modified from time to time, “Credit
Agreement”).


 


This Note is an amendment and restatement of that
certain Unsecured Subordinated Note, dated April 1,  2002, by the Payor in favor of the Holder, in the maximum
principal amount of $2,000,000 (the “Prior Note”).  This Note amends, restates and replaces in
full the Prior Note, which shall be returned by the Holder to the Payor and
marked “cancelled.”


 


2.             Maturity; Conversion Rights.


 


(a)           Subject
to Section 4 hereof, the Principal Amount of the Loan made under this
Note, plus all accrued and unpaid interest thereon, shall be due and payable on
August 18, 2007 (the “Maturity Date”). 
Subject to the provisions of Section 4(c), Payor may prepay
all or any portion of this Note at any time without penalty.  All payments to Holder shall be accompanied
by a certificate from an officer of Payor certifying that Payor is not
prohibited from making payments under Section 4(c) hereof.  All payments received from Payor hereunder
shall be applied first, to the payment of any unpaid interest under this Note,
and second, to reduce the principal balance hereunder.


 


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(b)           If,
during the term of this Note, Westaff, Inc., a Delaware corporation and parent
corporation of Payor, offers subscription rights to its stockholders to
purchase additional shares of its common stock, then Holder shall have the
option to convert, within 10 calendar days of the commencement of the offer and
upon written notice to Westaff, Inc. and Payor, the outstanding balance due
hereunder into such subscription rights on a dollar-for-dollar basis (the “Conversion
Rights”).  The Conversion Rights are
not subject to the terms of subordination set forth in Section 4 below.


 


3.             Interest
Rate.  Payor shall pay
interest to Holder on the outstanding and unpaid principal amount of the Loan
at the rate (the “Interest Rate”) equal to the US Index Rate (as
calculated under the Credit Agreement) plus seven percent (7%), calculated on
the basis of a year of 365 days for the actual number of days elapsed and
compounded monthly, provided, however, that in no event shall the
Interest Rate exceed the maximum rate permitted by law.  Interest accruing on the principal amount of
the Loan shall be paid by Payor to Holder 60 calendar days after the end of
each Fiscal Quarter (subject to the Section 4(c) hereof).  For the purposes of this Note, “Fiscal
Quarter” means any of the quarterly accounting periods of Payor, the first
three of which comprise 12 weeks and the fourth of which comprises 16 or 17
weeks.


 


4.             Subordination.


 


(a)           Payor
and Holder agree that all payments under this Note are and shall be
subordinate, to the extent and in the manner hereinafter set forth, in right of
payment to the prior cash payment in full of all of Payor’s payment obligations
now or hereafter existing in respect of any Senior Debt (as defined in Section
13 below), whether for principal, interest, fees, expenses or otherwise (such
payment obligations being the “Senior Obligations”).


 


(b)           Senior
Debt Holders (as defined in Section 13 below) will be entitled to
receive payment in full of all Senior Obligations due in respect of Senior Debt
(including interest after the commencement of any bankruptcy proceeding at the
rate specified in the applicable Senior Debt, without regard to whether or not
such interest is an allowed claim, but except for any contingent indemnity
obligation) before Holder will be entitled to receive any payment with respect
to this Note, in the event of any distribution to creditors of Payor:  (i) in a liquidation or dissolution of
Payor; (ii) in a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to Payor or its property; (iii) in an assignment
for the benefit of creditors; or (iv) in any marshaling of Payor’s assets and
liabilities.


 


(c)           Payor
may make principal and interest payments under this Note when due, without
acceleration, except, as long as any Senior Obligations are outstanding, Payor
may not make any principal or interest payment in respect of this Note in the
event of any of the following:


 


 


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(i)            in
the event any default in the payment of principal of, interest or premium, if
any, on any Senior Debt occurs and is continuing under the agreement, indenture
or other document governing such Senior Debt (a “Payment Default”), or


 


(ii)           in
the event (A) any default (other than a Payment Default) occurs and is
continuing with respect to any  Senior Debt which, with the giving of
notice or the passage of time, would permit the Agent or the Senior Debt
Holders to accelerate the maturity of the Senior Debt; or (B) after giving
effect to the payment to be made in respect of this Note, a default would exist
that, with the giving of notice or the passage of time, would  permit the Agent or the Senior Debt Holders
to accelerate the maturity of the Senior Debt; or (C) after giving effect to
the proposed payment hereunder, the Borrowers under the Credit Agreement shall
have an aggregate Borrowing Availability (as defined in the Credit Agreement)
of the US Dollar Equivalent  (as defined
in the Credit Agreement) of less than the greater of (y) fifteen percent (15%)
of the Aggregate Borrowing Base (as defined in the Credit Agreement) or (y)
$5,000,000, and in each instance under Clauses (A), (B) and (C) hereof, any
Senior Debt Holder shall have delivered to Payor and Holder at the addresses
set forth in Section 8 below notice of such default or condition (a “Payment
Blockage Notice”) from any Senior Debt Holder.


 


(d)           Payments
on this Note may and shall be resumed (i) in the case of a Payment
Default, or (ii) in the case Payor and Holder receive a Payment Blockage
Notice, upon the date on which such Payment Default or the default  or condition described in the Payment
Blockage Notice is cured or waived.


 


(e)           In
the event that Holder receives any payment with respect to this Note at a time
when such payment is prohibited by Section 4(c) hereof, such payment
(the “Unpermitted Payment”) shall be held by Holder, in trust for the
benefit of the Senior Debt Holders. 
Upon written request of the Agent, Holder shall deliver the Unpermitted
Payment in trust to the Agent to be applied to the Senior Obligations.


 


(f)            Intentionally
Left Blank.


 


(g)           This
Section 4 defines the relative rights of Holder and Senior Debt
Holders.  Nothing in this Note shall:


 


(i)            impair,
as between Payor and Holder, the obligation of Payor, which is absolute and
unconditional, to pay principal of and interest on this Note in accordance with
its terms;


 


(ii)           affect
the relative rights of Holder and creditors of Payor other than their rights in
relation to Senior Debt Holders; and


 


 


 


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(iii)          if Payor fails because of this Section
4 to pay principal of or interest on this Note on the due date, the failure
is still a default hereunder.


 


(h)           No
right of any Senior Debt Holder to enforce the subordination of the
indebtedness evidenced by this Note shall be impaired by any act or failure to
act by Payor or Holder or by the failure of Payor or Holder to comply with the
terms of this Note.


 


(i)            Upon
any payment or distribution of assets of Payor referred to in Section 4(a),
Holder shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction or upon any certificate of a representative or of the
liquidating trustee or agent or other Person making any distribution to Holder
of this Note for the purpose of ascertaining the Persons entitled to
participate in such distribution, the Senior Debt Holders and other
indebtedness of Payor, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Section 4.


 


(j)            For
the purposes of this Note, the Senior Obligations shall not be deemed to have
been paid in full unless the Senior Debt Holders shall have received cash
payment in full of all Senior Obligations (whether matured or unmatured), with
the exception of contingent indemnity obligations and all commitments to extend
further financial accommodations under the Credit Agreement shall have
terminated.


 


(k)           Holder
(i) will not take, sue for, or demand from Payor payment of all or any portion
of this Note (with the exception of a demand for a regularly scheduled interest
payment for which payment is permitted under Section 4(c)); (ii) will not
commence, or join with any creditor other than the Senior Debt Holders in
commencing, directly or indirectly, or cause Payor to commence, or assist Payor
in commencing, any proceeding referred to in Section 4(a); and (iii)
will not initiate, prosecute or participate in any claim, action or other
proceeding challenging the enforceability, validity, perfection or priority of
the Senior Debt or any lien or security interest granted to secure the Senior
Debt..


 


(l)            Holder
undertakes to execute, verify, deliver and file any proofs of claim that the
Senior Debt Holders may at any time require to prove and realize upon any
rights or claims pertaining to this Note and to effectuate the full benefit of
the subordination contained herein; and upon failure of Holder so to do, the
Senior Debt Holders shall be deemed to be irrevocably appointed the agent and
attorney-in-fact of Holder to execute, verify, deliver and file any such proofs
of claim; provided, that neither the Agent nor any Senior Debt Holder shall
have any obligation to execute, verify, deliver or file such proof of claim.


 


(m)          No
right of the Senior Debt Holders to enforce subordination as herein provided
shall at any time or in any way be affected or impaired by any failure to act
on the part of Payor or the Senior Debt Holders, or by any noncompliance by
Payor with any of the terms and provisions of this Note, regardless of any
knowledge thereof that the Senior Debt Holders may have or be otherwise charged
with.


 


 


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5.             Subrogation.  Subject to the payment in full of all the
Senior Debt (other than contingent indemnity obligations) and termination of
all commitments to extend further financial accommodations under the Credit
Agreement and until this Note shall be paid in full, Holder shall be subrogated
to the rights of the Senior Debt Holders (to the extent of payments or
distributions previously made to such Senior Debt Holders pursuant to the
provisions of Section 4 above) to receive payments or distributions
of assets of Payor applicable to the Senior Debt.  No such payments or distributions applicable to the Senior Debt
shall, as between Payor and its creditors, other than the Senior Debt Holders
and Holder, be deemed to be a payment by Payor to or on account of this Note;
and for the purposes of such subrogation, no payments or distributions to the
Senior Debt Holders to which Holder would be entitled except for the provisions
of this Section 5 shall, as between Payor and its creditors, other
than the Senior Debt Holders and Holder, be deemed to be a payment by Payor to
or on account of the Senior Debt.  If
all or any part of any payment to the Senior Debt Holders is recovered from or
required to be repaid by any Senior Debt Holder, then this Agreement shall be
reinstated and any payment or distribution to Holder at any time thereafter,
whether pursuant to the right of subrogation or otherwise, shall be deemed to
have been received in trust for the Senior Debt Holders and promptly paid to
the Agent to be applied to the Senior Debt.


 


6.             Usury
Savings Provision.  Under no
circumstances (and notwithstanding any other provisions of this Note) shall the
interest charged, collected, or contracted for on this Note exceed the maximum
rate permitted by law.  If any part of
this Note cannot be enforced, this fact will not affect the rest of this Note.


 


7.             Reimbursement
of Expenses.  If Holder
incurs any out-of-pocket expenses (including, without limitation, the fees and
expenses of Holder’s attorneys) in connection with the placement of this Note
in the hands of its attorneys for collection, or if this Note is collected
through any legal proceedings at law or in equity or in bankruptcy, receivership
or other court proceedings, then Payor shall pay to Holder, on demand, all
reasonable costs and expenses of collection, including, but not limited to,
court costs and reasonable attorneys’ fees.


 


8.             Notices. Any confirmation, notice or any other
communication provided for hereunder shall be in writing or by a
telecommunications device capable of creating a written record, and shall be
effective (a) upon personal delivery thereof, including without limitation, by
overnight mail and courier service or the United States mail, certified or
registered, postage prepaid, return receipt requested, or (b) in the case of
notice by such telecommunications device, when properly transmitted and
confirmed by telephone, addressed to the party to be noticed as follows:


 


 


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If to Payor at:


 


Westaff (USA), Inc.


P.O. Box 9280


Walnut Creek, CA  94598


Attention:  Treasurer


Telecopier No.: 925-930-5361


Telephone No.: 925-952-2502


 


with copies to:


 


Westaff (USA), Inc.


P.O. Box 9280


Walnut Creek, CA  94598


Attention:  Chief Financial Officer


Telecopier No.: 925-934-5489


Telephone No.: 925-256-1518


 


Westaff (USA), Inc.


P.O. Box 9280


Walnut Creek, CA  94598


Attention: Legal Department


Telecopier No.: 925-937-0593


Telephone No.: 925-930-5349


 


If to Holder at:


 


Mr.  W. Robert Stover


c/o Westaff (USA), Inc.


P.O. Box 9280


Walnut Creek, CA 
94598


 


or to such other address as either party may hereafter designate for
itself by written notice to the other party in the manner herein prescribed.


 


9.             Binding
Nature; Assignment.  This
Note and all of the provisions hereof shall be binding upon and inure to the
benefit of Payor and Holder and their respective successors and permitted
assigns, but neither this Note nor any of the rights, interests or obligations
hereunder shall be assigned or transferred by Payor without the prior written
consent of Holder.


 


10.           Amendments
and Waivers.


 


(a)           The
Senior Debt and any Senior Obligations may be amended, modified, increased,
waived or extended, without notice to or consent of Holder, and such amendment,
modification, increase, waiver or extension shall not change 


 


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or modify the subordinated nature of this Note or Holder’s or Payor’s
obligations under Section 4 hereof.


 


(b)           Except
as otherwise expressly provided herein, this Note may not be amended or
modified except by written instruments signed by the Agent, Payor and
Holder.  Each waiver or consent under
any provision hereof shall be effective only in the specific instances for the
purpose for which it is given.  Holder
may delay or forego the enforcement of any of its rights or remedies under this
Note or any other document evidencing or securing this Note without losing
them.  Payor and any other Person who
signs, guarantees or endorses this Note, to the extent allowed by law, waive
presentment, demand for performance, notice of non-performance, protest, notice
of protest, notice of dishonor, notice of default, or any other notice
whatsoever.  Upon any change in the
terms of this Note in compliance with this Section 10 and unless
otherwise expressly stated in writing, no party who signs this Note, whether as
Payor, guarantor, accommodation Payor or endorser, shall be released from
liability.


 


11.           Applicable
Law.    THIS NOTE SHALL BE
GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS
OF THE STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAWS,
PRINCIPLE OR RULE THAT MIGHT REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION.


 


12.           Waiver of
Jury Trial.  EACH OF THE
PARTIES HERETO WAIVES ITS RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS NOTE, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS OR OTHERWISE.  EACH PARTY HERETO
AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
WITHOUT A JURY.  WITHOUT LIMITING THE
FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY
JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR
OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS SUBORDINATION AGREEMENT OR ANY PROVISION HEREOF.  THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS SUBORDINATION
AGREEMENT.


 


13.           Definitions.


 


(a)           For
the purposes of this Note, the terms below shall have the following meanings:


 


“Agent” means General Electric Capital
Corporation, as agent for the Lenders under the Credit Agreement, and
its successors and assigns.


 


“Lenders” means each of the financial
institutions party to the Credit Agreement.


 


“Credit Agreement” has the meaning set forth in
the introductory paragraph hereto.


 


“Senior Debt Holders” means the Agent and the
Lenders under the Credit Agreement and their respective successors,
participants and assigns, as permitted under the Credit Agreement.


 


“Senior Debt”
means all indebtedness and obligations now or hereafter existing or owed by
Payor to the Senior Debt Holders pursuant to the Credit Agreement  or any instruments or other documents
executed by Payor with or in favor of the Senior


 


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Debt Holders in connection therewith, as such agreements may be
amended, supplemented, replaced, refinanced or otherwise modified from time to
time, and whether for principal, premium, interest, fees, expenses, indemnities
or otherwise.


 


(b)           The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.


 


(c)           by Unless otherwise expressly provided herein, references
to agreements (including this Note) and other contractual instruments shall be
deemed to include all subsequent amendments. amendment and restatements and
other modifications thereto.


 


(d)           The words “hereof,” “hereto,”
“herein,” “hereunder” and similar words refer to this Note as a whole and not
to any particular provision of this Note; and Section and clause references are
to this Note unless otherwise specified.


 


(e)           The captions and headings of this Note are for convenience
of reference only and shall not affect the interpretation of this Note.


 


[Signature Page to
Follow]


 


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IN WITNESS WHEREOF, Payor has caused this Note to be
duly executed by its officer hereunto authorized as of the date first above
written.


 


	
   

  	
  WESTAFF (USA), INC., a California corporation:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dirk A. Sodestrom

  
	
   

  	
  Name:

  	
  Dirk A. Sodestrom

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
				



 


The undersigned hereby acknowledges and consents to the terms and
conditions of the above Unsecured Subordinated Note:


 


	
  /s/ W. Robert Stover

  	
   

  
	
  W. Robert Stover, an individual

  



 


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