CERTIFICATE) TO THE CREDIT AGREEMENT.
(a)
Exhibit 1.1(a)(i) to the Credit Agreement is hereby amended and
restated in its entirety by substituting therefore Schedule 3/Exhibit 1.1(a)(i)
attached hereto, such that Schedule 3/Exhibit 1.1(a)(i) shall be Exhibit
1.1(a)(i) under the Credit Agreement; and
(b)
Exhibit 4.1(b) to the Credit Agreement is hereby amended and
restated in its entirety by substituting therefore Schedule 4/Exhibit 4.1(b)
attached hereto, such that Schedule 4/Exhibit 4.1(b) shall be Exhibit 4.1(b)
under the Credit Agreement.
2.
ONE-TIME ADD-BACK TO EBITDA AND LIMITED WAIVERS.
SUBJECT TO THE
PROVISIONS OF THIS SECTION 2 AND THE SATISFACTION OF THE OTHER CONDITIONS SET
FORTH IN THIS AMENDMENT, THE LENDERS HEREBY (I) AGREE THAT, SOLELY FOR THE
PURPOSE OF DETERMINING COMPLIANCE WITH THE MINIMUM EBITDA COVENANTS SET FORTH IN
PARAGRAPHS (C) AND (D) OF ANNEX G (FINANCIAL COVENANTS), TO THE CREDIT
AGREEMENT, AS AMENDED BY THIS AMENDMENT, THE PARENT AND ITS SUBSIDIARIES MAY,
FOR THE FISCAL PERIOD ENDED NOVEMBER 1, 2003, MAKE A ONE-TIME
8
ADD-BACK ADJUSTMENT TO EBITDA IN THE AGGREGATE AMOUNT OF $2.8 MILLION WITH
RESPECT TO CERTAIN ADJUSTMENTS DIRECTLY RESULTING FROM (A) A $0.95 MILLION
SETTLEMENT PAYMENT MADE IN CONNECTION WITH THAT CERTAIN SYNERGY STAFFING
LITIGATION AND (B) A YEAR END ADJUSTMENT IN THE AMOUNT OF $1.85 MILLION TO
INCREASE WORKER'S COMPENSATION RESERVES FOR ALL PERIODS PRIOR TO MAY 18, 2003;
AND (II) WAIVE
THE EVENTS OF DEFAULT THAT AROSE FROM THE FAILURE OF PARENT AND
ITS SUBSIDIARIES TO MAINTAIN THE REQUIRED MINIMUM EBITDA WITH RESPECT TO THE
FISCAL PERIODS ENDED NOVEMBER 1, 2003, NOVEMBER 29, 2003 AND DECEMBER 27, 2003
AND ANY DEFAULT OR EVENT OF DEFAULT WHICH MAY HAVE ARISEN SOLELY FROM THE
FAILURE TO DELIVER AUDITED FINANCIAL STATEMENTS FOR FISCAL YEAR 2003 IN
COMPLIANCE WITH ANNEX E TO THE CREDIT AGREEMENT OR FAILURE TO COMPLY WITH
SECTION 11.14
OF THE CREDIT AGREEMENT.
FOR THE AVOIDANCE OF DOUBT, THE PARTIES
HEREBY AGREE THAT THE ADD-BACK TO EBITDA PERMITTED BY THIS SECTION 2 IS
PERMITTED SOLELY FOR THE PURPOSE SET FORTH ABOVE AND SHALL NOT (I) BE DEEMED TO
AMEND IN ANY WAY THE DEFINITION OF "EBITDA" IN THE CREDIT AGREEMENT OR (II) BE
PERMITTED FOR ANY OTHER PURPOSE, INCLUDING WITHOUT LIMITATION, FOR THE PURPOSES
OF DETERMINING THE CONSOLIDATED EBITDA OF PARENT AND ITS SUBSIDIARIES WITH
RESPECT TO THE DEFINITION OF AVAILABILITY RESERVE.
THE WAIVERS CONTAINED IN
THIS SECTION 2 SHALL BE LIMITED PRECISELY AS WRITTEN, SHALL APPLY SOLELY WITH
RESPECT TO THE OCCURRENCES AND CIRCUMSTANCES DESCRIBED IN THIS SECTION 2, AND
NOTHING CONTAINED IN THIS AMENDMENT SHALL BE DEEMED TO CONSTITUTE A WAIVER OF
ANY OTHER DEFAULT OR EVENT OF DEFAULT OR PROVISION OF THE CREDIT AGREEMENT, OR
ANY CONSENT TO DEPARTURE FROM THE TERMS OF THE CREDIT AGREEMENT.
3.
REPRESENTATIONS AND WARRANTIES OF THE PARENT AND THE BORROWERS.
THE CREDIT PARTIES (OTHER THAN UK BORROWER), JOINTLY AND SEVERALLY, AND UK
BORROWER, ONLY IN RESPECT OF ITSELF, SEVERALLY, MAKE THE FOLLOWING
REPRESENTATIONS AND WARRANTIES TO EACH LENDER AND EACH AGENT WITH RESPECT TO ALL
CREDIT PARTIES: