AMENDMENT NO. 4 TO ABL CREDIT AGREEMENT
Exhibit 10.2
AMENDMENT NO. 4 TO ABL CREDIT AGREEMENT
AMENDMENT NO. 4 TO ABL CREDIT AGREEMENT, dated as of November 18, 2021 (this “Amendment No. 4”), is by and among Xxxxx Fargo Bank, National
Association, a national banking association, as administrative agent for each member of the Lender Group and the Bank Product Providers (in such capacity, together with its successors and assigns in such capacity, “Agent”), Xxxxx Fargo Bank, National
Association, a national banking association, in its capacity as sole lead arranger (in such capacity, together with its successors and assigns in such capacity, the “Lead Arranger”), Xxxxx Fargo Bank, National Association, a national banking
association as sole book runner (in such capacity, together with their successors and assigns in such capacity, the “Book Runner”), Xxxxx Fargo Bank, National Association, a national banking association, as collateral agent (in such capacity,
together with its successors and assigns in such capacity, “Collateral Agent”), Cross Country Healthcare, Inc., a Delaware corporation (“Parent”), Xxxxx Search, Inc., a Delaware corporation (“Xxxxx”), Cross Country Staffing, Inc., a Delaware
corporation (“Cross Country Staffing”), Assignment America, LLC., a Delaware limited liability company (“Assignment America”), Travel Staff, LLC, a Delaware limited liability company (“Travel Staff”), Medical Doctor Associates, LLC, a Delaware
limited liability company (“Medical Doctor”), OWS, LLC, a Delaware limited liability company (“OWS”), New Mediscan II, LLC, a California limited liability company (“New Mediscan” and together with Parent, Xxxxx, Cross Country Staffing, Assignment
America, Travel Staff, Medical Doctor, OWS and those additional persons that hereafter become parties thereto as Borrowers in accordance with the terms thereof, each, a “Borrower” and individually and collectively, jointly and severally, the
“Borrowers”), MDA Holdings, Inc., a Delaware corporation (“MDA Holdings”), Credent Verification and Licensing Services, LLC, a Delaware limited liability company (“Credent Verification” and together with MDA Holdings and those additional persons that
hereafter become parties thereto as Guarantors in accordance with the terms thereof, each, a “Guarantor” and individually and collectively, jointly and severally, the “Guarantors”).
W I T N E S S E T H:
WHEREAS, Agent, Lenders, Borrowers and Guarantors have entered into senior secured asset-based revolving credit facility pursuant to which
Lenders (or Agent on behalf of Lenders) have made and may make loans and advances and provide other financial accommodations to Borrowers as set forth in the ABL Credit Agreement, dated as of October 25, 2019, by and among Agent, Lenders, Borrowers
and Guarantors, as amended by Amendment No. 1 to ABL Credit Agreement, dated as of June 30, 2020, by and among Agent, Lenders, Borrowers and Guarantors, Amendment No. 2 to ABL Credit Agreement and Amendment No. 1 to Guaranty and Security Agreement,
dated as of March 8, 2021, by and among Agent, Lenders, Borrowers and Guarantors and Amendment No. 3 to ABL Credit Agreement, dated as of June 8, 2021, by and among Agent, Lenders, Borrowers and Guarantors (as the same is amended hereby and may from
time to time hereafter be further amended, modified, supplemented, extended, renewed, restated or replaced, the “Credit Agreement”);
WHEREAS, Borrowers and Guarantors have requested that Agent and Lenders agree to certain amendments to the Credit Agreement and Security
Agreement and Agent and Lenders are willing to agree to such amendments subject to the terms and conditions contained herein;
WHEREAS, Agent, Lenders, Borrowers and Guarantors intend to evidence such amendments pursuant to the terms hereof;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements and 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. Amendments to Credit Agreement.
1.1. Additional Definitions. The Credit Agreement is hereby amended to include, in addition and not in limitation, the
following definitions:
“Amendment No. 4” means Amendment No. 4 to ABL Credit Agreement, dated as of November 18, 2021, by and among Agent, Lenders, Borrowers and
Guarantors, as the same now exists or may hereafter be amended, amended and restated, modified, supplemented, extended, renewed, restated or replaced.
“Amendment No. 4 Effective Date” means the first date upon which each of the conditions set forth in Section 4 of the Amendment No. 4 have
been satisfied (or waived in writing).
“First Amendment to Intercreditor Agreement” means the First Amendment to Intercreditor Agreement, dated as of November 18, 2021, by and
among Agent and Term Loan Agent, as acknowledged and agreed to by Loan Parties.
“First Amendment to Term Loan Credit Agreement” means the First Incremental Amendment to Credit Agreement, dated as of November 18, 2021,
by and among Term Loan Agent, Term Loan Lenders and Loan Parties.
1.2. Amendment to Definition. Clause (r) of the definition of the term “Permitted Indebtedness” in the Credit Agreement is
hereby deleted in its entirety and replaced with the following:
(r) Indebtedness under the Term Loan Agreement (including Refinancing Indebtedness in respect thereof in accordance
with the Intercreditor Agreement) in an aggregate principal amount outstanding at any time not to exceed $175,000,000 (as such amount may be increased in accordance with the Intercreditor Agreement),
1.3. Interpretation. For purposes of this Amendment No. 4, all terms used herein which are not otherwise defined herein,
including but not limited to, those terms used in the recitals hereto, shall have the respective meanings assigned thereto in the Credit Agreement.
2. [Reserved].
3. Representations, Warranties and Covenants. Each Loan Party, jointly and severally, represents and warrants with and to Agent and
Lenders as follows, which representations and warranties shall survive the execution and delivery hereof:
3.1. This Amendment No. 4 has been duly executed and delivered by each Loan Party that is party hereto. This Amendment No. 4 constitutes a legal, valid and binding obligation of each Loan Party, enforceable against
such Loan Party that is party hereto in accordance with its terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar laws relating to or limiting creditors' rights
generally.
3.2. The representations and warranties of each Loan Party or its Subsidiaries contained in the Credit Agreement, the Security Agreement or any of the other Loan Documents shall be true and correct in all material
respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or Material Adverse Effect (or words of similar import) in the text thereof) on and
as of the date hereof, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all
material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or Material Adverse Effect (or words of similar import in the text
thereof) as of such earlier date).
3.3. Loan Parties have delivered to Agent a complete and correct copy of the First Amendment to the Term Loan Credit Agreement, including all schedules and exhibits thereto, as executed on or before the Amendment No. 4
Effective Date.
3.4. No Default or Event of Default exists or has occurred and is continuing as of the date of, and after giving effect to, this Amendment No. 4.
4. Conditions Precedent. This Amendment No. 4 shall be effective upon the satisfaction of each of the following conditions precedent:
4.1. Agent shall have received each of the following:
(a) this Amendment No. 4, duly authorized, executed and delivered by the Required Lenders and Loan Parties;
(b) the First Amendment to Term Loan Credit Agreement duly authorized, executed and delivered by the Term Loan Agent, Term Loan Lenders and Loan Parties;
(c) the First Amendment to the Intercreditor Agreement duly authorized, executed and delivered by the Term Loan Agent and Loan Parties;
4.2. as of the date of this Amendment No. 4, and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;
4.3. each of the conditions set forth in this Section 3 shall be satisfied on or before November 30, 2021.
5. Effect of Amendment No. 4. Except as expressly set forth herein and in prior amendments, no other amendments, changes or
modifications to the Loan Documents are intended or implied, and in all other respects the Loan Documents are hereby specifically ratified, restated and confirmed by all parties hereto as of the effective date hereof and the Loan Parties shall not
be entitled to any other or further amendment by virtue of the provisions of this Amendment No. 4 or with respect to the subject matter of this Amendment No. 4. To the extent of conflict between the terms of this Amendment No. 4 and the other Loan
Documents, the terms of this Amendment No. 4 shall control. The Credit Agreement and this Amendment No. 4 shall be read and construed as one agreement. This Amendment No. 4 is a Loan Document. The Credit Agreement remains in full force and
effect, and nothing contained in this Amendment No. 4 will constitute a waiver of any right, power or remedy under the Credit Agreement, the Security Agreement or any other Loan Document.
6. Governing Law. The validity, interpretation and enforcement of this Amendment No. 4 and any dispute arising out of the relationship
between the parties hereto whether in contract, tort, equity or otherwise, shall be governed by the internal laws of the State of New York but excluding any principles of conflicts of law or other rule of law that would cause the application of the
law of any jurisdiction other than the laws of the State of New York.
7. Jury Trial Waiver. LOAN PARTIES, AGENT AND LENDERS EACH HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING UNDER THIS AMENDMENT NO. 4 OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AMENDMENT NO. 4 OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. LOAN PARTIES, AGENT AND LENDERS EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY AND THAT EACH LOAN PARTY, AGENT OR LENDER MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AMENDMENT NO. 4 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
8. Binding Effect. This Amendment No. 4 shall be binding upon and inure to the benefit of each of the parties hereto and their
respective successors and assigns.
9. Waiver, Modification, Etc. No provision or term of this Amendment No. 4 may be modified, altered, waived, discharged or terminated
orally, but only by an instrument in writing executed by the party against whom such modification, alteration, waiver, discharge or termination is sought to be enforced.
10. Further Assurances. The Loan Parties shall execute and deliver such additional documents and take such additional action
as may be reasonably requested by Agent to effectuate the provisions and purposes of this Amendment No. 4.
11. Entire Agreement. This Amendment No. 4, the Credit Agreement and the other Loan Documents represent the entire agreement
and understanding concerning the subject matter hereof among the parties hereto, and supersedes all other prior agreements, understandings, negotiations and discussions, representations, warranties, commitments, proposals, offers and contracts
concerning the subject matter hereof, whether oral or written.
12. Headings. The headings listed herein are for convenience only and do not constitute matters to be construed in
interpreting this Amendment No. 4.
13. Counterparts. This Amendment No. 4, any documents executed in connection herewith and any notices delivered under this
Amendment No. 4, may be executed by means of (i) an electronic signature that complies with the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, or any other relevant
and applicable electronic signatures law; (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the
same validity, legal effect, and admissibility in evidence as an original manual signature. Agent reserves the right, in its sole discretion, to accept, deny, or condition acceptance of any electronic signature on this Amendment No. 4 or on any
notice delivered to Agent under this Amendment No. 4. This Amendment No. 4 and any notices delivered under this Amendment No. 4 may be executed in any number of counterparts, each of which shall be deemed to be an original, but such counterparts
shall, together, constitute only one instrument. Delivery of an executed counterpart of a signature page of this Amendment No. 4 and any notices as set forth herein will be as effective as delivery of a manually executed counterpart of this
Amendment No. 4 or notice.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 to be duly executed and delivered as of the day and year first
above written.
BORROWERS:
|
CROSS COUNTRY HEALTHCARE, INC.
|
|
|
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx Title: Co-founder, CEO and President |
|
|
XXXXX SEARCH, INC.
|
|
|
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx Title: EVP |
|
|
CROSS COUNTRY STAFFING, INC.
|
|
|
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx Title: EVP |
|
|
ASSIGNMENT AMERICA, LLC
|
|
|
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx Title: EVP |
|
|
TRAVEL STAFF, LLC
|
|
| By: /s/ Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx Title: EVP |
|
OWS, LLC
|
|
|
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx Title: EVP |
|
|
NEW MEDISCAN II, LLC
|
|
|
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx Title: Vice President |
|
|
MEDICAL DOCTOR ASSOCIATES, LLC
|
|
|
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx Title: EVP |
GUARANTORS:
|
MDA HOLDINGS, INC.
|
|
|
|
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx Title: EVP |
|
CREDENT VERIFICATION AND LICENSING SERVICES, LLC
|
|
|
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx Title: EVP |
|
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
a national banking association, as Administrative Agent, Collateral Agent and as a Lender |
||
|
|
By:
Name:
|
/s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx Its Authorized Signatory |
|
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
|
||
|
By:
Name:
|
/s/ Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxx, Vice President Its Authorized Signatory |
|
