Exhibit 10.62


 


FIFTH AMENDMENT TO SECURITIZATION AGREEMENTS


 


THIS FIFTH AMENDMENT  TO
SECURITIZATION AGREEMENTS (this “Amendment”),
is made and entered into as of December 19, 2002 (the “Effective Date”), by
and among LABOR READY, INC., a
Washington corporation (the “Parent”), each of the Parent’s Subsidiaries
listed on the signature pages hereto as a “Selling Subsidiary” (each, a “Selling Subsidiary”; Parent and each
Selling Subsidiary are hereinafter sometimes referred to individually as an “Originator” and collectively as the “Originators”), LABOR READY FUNDING CORPORATION, a Delaware corporation (the
“Buyer”; Buyer and each Originator
are hereinafter sometimes referred to individually as a “Company” and collectively as the “Companies”), REDWOOD RECEIVABLES CORPORATION, a Delaware corporation (“Redwood”), as Conduit Lender (in such
capacity, the “Conduit Lender”),
and GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation (“GE Capital”),
as Committed Lender (in such capacity, the “Committed
Lender”; together with the Conduit Lender referred to herein
collectively as the “Lenders”), as
Administrative Agent for the Lenders (in such capacity, the “Administrative Agent”), as Collateral Agent
for the Conduit Lender and the Conduit Lender Secured Parties (in such
capacity, the “Collateral Agent”),
as Operating Agent for Redwood (in such capacity, the “Operating Agent”), and as Liquidity Agent
for the Liquidity Lenders (in such capacity, the “Liquidity Agent”).


 


W
I  T  N  E  S  E  T  H:


 


WHEREAS, each of the Selling Subsidiaries and the Parent are parties to a
certain Receivables Sale Agreement, dated as of March 1, 2001 (as amended to
the date hereof, the “Receivables Sale
Agreement”; capitalized terms used herein and not otherwise defined
herein shall have the meanings given such terms in Annex X to the
Receivables Sale Agreement as amended by this Amendment), whereby each Selling
Subsidiary has agreed to sell or otherwise transfer to the Parent, and the
Parent has agreed to purchase or otherwise acquire from such Selling
Subsidiaries, all of the right, title and interest of such Selling Subsidiaries
in the Receivables; and


 


WHEREAS, the Parent and the Buyer are parties to a certain Receivables Sale and
Contribution Agreement, dated as of March 1, 2001 (as amended to the date
hereof, the “Transfer Agreement”), whereby
the Parent has agreed to sell, contribute or otherwise transfer to Buyer, and
Buyer has agreed to purchase or otherwise acquire from the Parent, all of the
right, title and interest of the Parent in the Receivables; and


 


WHEREAS, the Buyer, the Lenders and the Administrative Agent are parties to a
certain Receivables Funding Agreement, dated as of March 1, 2001 (as amended to
the date hereof, the “Funding Agreement”), pursuant
to which, among other things, the Lenders have agreed, subject to certain terms
and conditions, to make Advances to the Buyer to fund its purchases of the
Receivables; and


 


WHEREAS, Redwood and GE Capital, as Liquidity Agent, Initial Liquidity Lender,
Collateral Agent and Operating Agent are parties to a certain Liquidity Loan
and Asset Purchase Agreement, dated as of March 1, 2001 (the “Liquidity Loan Agreement”; the Receivables
Sale Agreement, the Transfer Agreement, the Funding Agreement and the Liquidity
Loan Agreement,


 

















 


together with all exhibits
and annexes thereto, are referred to herein collectively as the “Securitization Agreements”), pursuant to
which, among other things, the Liquidity Lenders have agreed, subject to
certain terms and conditions, to make Liquidity Loans to Redwood; and


 


WHEREAS, the Companies have requested that the Securitization Agreements be
amended in certain respects, and the Lenders, the Administrative Agent and the
Collateral Agent are willing to agree to such amendments subject to the terms
and conditions of this Amendment.


 


NOW THEREFORE, in consideration of the premises and mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:


 


1.                                     Amendment of Securitization
Agreements.


 


1.1                                Section 2.07(c) of the Funding Agreement is hereby deleted
in its entirety and restated as follows:


 


(c)  The
Borrower agrees to pay to the Administrative Agent, for the account of the
Applicable Lender, an unused facility fee (the “Unused Facility Fee”)
equal to (i) one-quarter of one percent (0.25%) per annum, calculated daily
from the Closing Date through, but not including, the Fifth Amendment Effective
Date, and (ii) one-half of one percent (0.50%) per annum on and all times after
the Fifth Amendment Effective Date, in each case calculated daily and payable
monthly in arrears on the Fifth Business Day of each month, on the amount by
which the Maximum Facility Amount as in effect on such date exceeds the sum
(without duplication) of the aggregate Outstanding Principal Amount and Standby
L/C Exposure on such date, which fee shall be fully earned when payable and
shall be non-refundable.


 


1.2                                Annex G is hereby amended by adding as a new clause (d) the following
financial covenant:


 


(d)  Minimum
Excess Liquidity. The Credit Parties as defined in Annex A to the
Letter of Credit Agreement shall maintain an Excess Liquidity under and as
defined in Annex A to the Letter of Credit Agreement at all times after
the Fifth Amendment Effective Date of not less than $45,000,000.


 


1.3                                Annex G is hereby further amended by deleting clause (z) of the definition of
“Fixed Charge Coverage Ratio” and inserting the following new clause (z) to
read in its entirety:


 


(z)
the sum of all payments made in respect of Permitted Acquisitions and the
lesser of (A) the amount of actual payments made during such period in respect
of Permitted Stock Repurchases and (B) $5,000,000 to


 


1.4                                Annex X is hereby amended by deleting the definitions of “Availability” and
“Maximum Facility Amount” and substituting in lieu thereof new definitions to
read in their entirety as follows:


 


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“Availability”
shall mean, as of any date of determination, the amount equal to the lesser of:
(a) (i) the Borrowing Base multiplied by the Advance Discount Rate plus
(ii) Intra-Week Receivables multiplied by the Intra-Week Receivables
Advance Rate minus (iii) the Discount Reserve and the Dilution Reserve, minus
(iv) the Availability Block, and (b) the Maximum Facility Amount.


 


“Maximum
Facility Amount” shall mean $80,000,000, as such amount may be reduced in
accordance with Section 2.02(a) of the Funding Agreement.


 


1.5                              Annex X is hereby amended by adding in alphabetical order the following new
definitions:


 


“Availability
Block” shall mean $5,000,000.


 


“Fifth
Amendment Effective Date” shall mean means December 19, 2002.


 


2.                                      No Other Amendments.  Except for the
amendments expressly set forth and referred to in Section 1 above, the
Securitization Agreements shall remain unchanged and in full force and effect.


 


3.                                      Representations and
Warranties.  Each Company hereby represents and warrants
to the Lenders, the Administrative Agent and the Collateral Agent that (a) this
Amendment has been duly authorized, executed and delivered by each Company, (b)
after giving effect to this Amendment, no Termination Event, Incipient
Termination Event, Event of Servicer Termination or Incipient Servicer
Termination Event has occurred and is continuing as of this date, and (c) after
giving effect to this Amendment, all of the representations and warranties made
by each Company in the Securitization Agreements are true and correct in all
material respects on and as of the date of this Amendment (except to the extent
that any such representations or warranties expressly referred to a specific
prior date).   Any breach in any
material respect by any Company of any of its representations and warranties
contained in this Section 3 shall be a Termination Event and an Event of
Servicer Termination for all purposes of the Securitization Agreements.


 


4.                                      Ratification.  Each Company
hereby ratifies and reaffirms each and every term, covenant and condition set
forth in the Securitization Agreements and all other documents delivered by
such Company in connection therewith (including without limitation the other
Related Documents to which each Company is a party), effective as of the date
hereof.


 


5.                                      Estoppel. To induce the Lenders and the Administrative
Agent to enter into this Amendment, each Company hereby acknowledges and agrees
that, as of the date hereof, there exists no right of offset, defense or
counterclaim in favor of any Company as against any Lender, the Administrative
Agent or the Collateral Agent with respect to the obligations of any Company to
any Lender, the Administrative Agent or the Collateral Agent under the
Securitization Agreements or the other Related Documents, either with or
without giving effect to this Amendment.


 


6.                                      Conditions to Effectiveness.  This Amendment
shall be effective as of the Effective Date upon the receipt by the
Administrative Agent of this Amendment, duly executed,


 


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completed and delivered by
each of the Companies, each Lender, the Administrative Agent and the Collateral
Agent.


 


7.                                      Reimbursement of Expenses.  Each Company
hereby agrees that it shall reimburse the Administrative Agent on demand for
all costs and expenses (including without limitation reasonable attorney’s
fees) incurred by such parties in connection with the negotiation,
documentation and consummation of this Amendment and the other documents
executed in connection herewith and therewith and the transactions contemplated
hereby and thereby.


 


8.                                      Governing Law.  THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK FOR CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SAID STATE.


 


9.                                      Severability of Provisions.  Any provision
of this Amendment which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof or affecting the validity or enforceability of such provision in any
other jurisdiction.  To the extent
permitted by Applicable Law, each Company hereby waives any provision of law
that renders any provision hereof prohibited or unenforceable in any respect.


 


10.                                Counterparts.  This Amendment
may be executed in any number of several counterparts, all of which shall be
deemed to constitute but one original and shall be binding upon all parties,
their successors and permitted assigns.


 


11.                                Entire Agreement.  The
Securitization Agreements as amended from time to time and by this Amendment
embody the entire agreement between the parties hereto relating to the subject
matter hereof and supersede all prior agreements, representations and
understandings, if any, relating to the subject matter hereof.


 


12.                                Parent and GE Capital’s Capacities.  The Parent is
executing and delivering this Amendment both in its capacity as an Originator
under the Transfer Agreement and as the Servicer under the Funding Agreement,
and all references herein to the “Parent” shall be deemed to include the Parent
in both such capacities unless otherwise expressly indicated. GE Capital is
executing and delivering this Amendment both in its capacity as a Lender and as
the Administrative Agent for the Lenders and the Collateral Agent for the
Conduit Lender and the Conduit Lender Secured Parties, and all references
herein to “GE Capital” shall be deemed to include it in both such capacities
unless otherwise expressly indicated.


 


[Remainder of page intentionally blank; next page is signature page]


 


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IN WITNESS WHEREOF, the parties have caused this Fifth Amendment to Securitization
Agreements to be duly executed by their respective officers thereunto duly
authorized, as of the date first above written.


 


 


	
   

  	
  REDWOOD
  RECEIVABLES CORPORATION,

  
	
   

  	
  as the Conduit Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian P. Schwinn

  	
   

  
	
   

  	
  Name: Brian P. Schwinn

  
	
   

  	
  Title: Assistant Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GENERAL
  ELECTRIC CAPITAL

  
	
   

  	
  CORPORATION, 
  as Committed
  Lender,

  
	
   

  	
  Administrative Agent and
  Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Craig Winslow

  	
   

  
	
   

  	
  Its Duly Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LABOR
  READY FUNDING CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Derrek Gafford

  	
   

  
	
   

  	
  Name: Derrek Gafford

  
	
   

  	
  Title: President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LABOR
  READY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Steven C. Cooper

  	
   

  
	
   

  	
  Name: Steven C. Cooper

  
	
   

  	
  Title: EVP & CFO

  
					



 


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  SELLING
  SUBSIDARIES:

  
	
   

  	
   

  
	
   

  	
  LABOR READY CENTRAL, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy J. Adams

  	
   

  
	
   

  	
  Name:  Timothy J. Adams

  
	
   

  	
  Title:  President 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LABOR
  READY CENTRAL II, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  Labor Ready
  Central, Inc., as its sole Member

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy J. Adams

  	
   

  
	
   

  	
  Name: Timothy J.
  Adams

  
	
   

  	
  Title:  President 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LABOR
  READY CENTRAL III, LP

  
	
   

  	
   

  
	
   

  	
  By:  Labor Ready Central, Inc., as its sole
  General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy J. Adams

  	
   

  
	
   

  	
  Name:  Timothy J.
  Adams

  
	
   

  	
  Title:  President 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LABOR
  READY GP CO., INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy J. Adams

  	
   

  
	
   

  	
  Name:  Timothy J.
  Adams

  
	
   

  	
  Title:  President 

  



 


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  LABOR
  READY MID-ATLANTIC, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy J. Adams

  	
   

  
	
   

  	
  Name:  Timothy J.
  Adams

  
	
   

  	
  Title:  President 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LABOR
  READY MID-ATLANTIC II, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy J. Adams

  	
   

  
	
   

  	
  Name:  Timothy J.
  Adams

  
	
   

  	
  Title:  President 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LABOR
  READY MID-ATLANTIC III, LP

  
	
   

  	
   

  
	
   

  	
  By:  Labor Ready GP Co., Inc., as its sole
  General Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy J. Adams

  	
   

  
	
   

  	
  Name:  Timothy J.
  Adams

  
	
   

  	
  Title:  President 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LABOR
  READY MIDWEST, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy J. Adams

  	
   

  
	
   

  	
  Name:  Timothy J.
  Adams

  
	
   

  	
  Title:  President 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LABOR
  READY NORTHEAST, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy J. Adams

  	
   

  
	
   

  	
  Name:  Timothy J.
  Adams

  
	
   

  	
  Title:  President 

  
					



 


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  LABOR
  READY NORTHWEST, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy J. Adams

  	
   

  
	
   

  	
  Name:  Timothy J.
  Adams

  
	
   

  	
  Title:  President 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LABOR
  READY SOUTHEAST, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy J. Adams

  	
   

  
	
   

  	
  Name:  Timothy J.
  Adams

  
	
   

  	
  Title:  President 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LABOR
  READY SOUTHEAST II, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy J. Adams

  	
   

  
	
   

  	
  Name:  Timothy J.
  Adams

  
	
   

  	
  Title:  President 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LABOR
  READY SOUTHEAST III, LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Labor Ready GP Co., Inc.,
  as its sole

  General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy J. Adams

  	
   

  
	
   

  	
  Name:  Timothy J.
  Adams

  
	
   

  	
  Title:  President 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LABOR
  READY SOUTHWEST, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy J. Adams

  	
   

  
	
   

  	
  Name:  Timothy J.
  Adams

  
	
   

  	
  Title:  President 

  



 


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  LABOR
  READY PUERTO RICO, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Timothy J. Adams

  	
   

  
	
   

  	
  Name:  Timothy J.
  Adams

  
	
   

  	
  Title:  President 

  



 


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