EXHIBIT 10.44
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of April 8, 2002, is entered into by and among AMN
HEALTHCARE, INC., a Nevada corporation (the "Borrower"), AMN HEALTHCARE
SERVICES, INC. (formerly known as AMN Holdings, Inc.), a Delaware corporation
(the "Parent"), the Subsidiary Guarantors signatory hereto, the Lenders
signatory hereto and BANK OF AMERICA, N. A., as Agent for the Lenders (in such
capacity, the "Agent").
RECITALS
A. The Borrower, the Parent, the Subsidiary Guarantors, the Lenders and
the Agent, are party to that certain Amended and Restated Credit Agreement dated
as of November 16, 2001 (as previously amended, the "Existing Credit
Agreement").
B. The Credit Parties have requested that the Lenders amend the Existing
Credit Agreement as provided herein.
C. The Lenders have agreed to amend the Existing Credit Agreement on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the agreements herein contained, the
parties hereto hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1 Certain Definitions. Unless otherwise defined herein or the
context otherwise requires, the following terms used in this Amendment,
including its preamble and recitals, have the following meanings:
"Amended Credit Agreement" means the Existing Credit Agreement as
amended hereby.
"Amendment No. 1 Effective Date" is defined in Subpart 3.1.
SUBPART 1.2 Other Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment, including its preamble
and recitals, have the meanings provided in the Existing Credit Agreement.
PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Amendment No. 1
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part II.
SUBPART 2.1 Amendments to Section 1.1. Section 1.1 of the Existing
Credit Agreement is hereby amended in the following respects:
(a) The following definition appearing in Section 1.1 of the
Existing Credit Agreement is amended and restated in its entirety to
read as follows:
"Permitted Acquisition" means an Acquisition by the Borrower or
any Subsidiary of the Borrower, provided that (i) the Property acquired
(or the Property of the Person acquired) in such Acquisition is used or
useful in the same or a similar line of business as the Borrower and its
Subsidiaries were engaged in on the Closing Date (or any reasonable
extensions or expansions thereof), (ii) the Agent shall have received
all items in respect of the Capital Stock or Property acquired in such
Acquisition required to be delivered by the terms of Section 7.12 and/or
Section 7.13, (iii) in the case of an Acquisition of the Capital Stock
of another Person, the board of directors (or other comparable governing
body) of such other Person shall have duly approved such Acquisition,
(iv) the Borrower shall have delivered to the Agent a Pro Forma
Compliance Certificate demonstrating that, upon giving effect to such
Acquisition on a Pro Forma Basis, no Default or Event of Default would
exist as the result of a violation of Section 7.11(a) or Section
7.11(b), (v) the representations and warranties made by the Credit
Parties in any Credit Document shall be true and correct in all material
respects at and as if made as of the date of such Acquisition (after
giving effect thereto) except to the extent such representations and
warranties expressly relate to an earlier date, (vi) if such transaction
involves the purchase of an interest in a partnership between the
Borrower (or a Subsidiary of the Borrower) as a general partner and
entities unaffiliated with the Borrower or such Subsidiary as the other
partners, such transaction shall be effected by having such equity
interest acquired by a holding company directly or indirectly
wholly-owned by the Borrower newly formed for the sole purpose of
effecting such transaction and (vii) the total Qualifying Consideration
for any such Acquisition shall not exceed an amount equal to (A)
$54,000,000 plus (B) 50% of Excess Cash Flow for each fiscal year ended
after the Closing Date minus (C) the aggregate amount of Qualifying
Consideration paid with respect to all Acquisitions occurring after the
Closing Date.
PART III
CONDITIONS TO EFFECTIVENESS
This Amendment shall be and become effective as of the date (the
"Amendment No. 1 Effective Date") when all of the conditions set forth in this
Part III shall have been satisfied.
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SUBPART 3.1 Execution of Counterparts of Amendment. The Agent shall have
received counterparts of this Amendment, which collectively shall have been duly
executed on behalf of each of the Borrower, the Guarantors and the Requisite
Lenders.
SUBPART 3.2 Fees and Expenses. The Borrower has paid all fees and
expenses incurred in connection with the negotiation, preparation, execution and
delivery of this Amendment and the other transactions contemplated herein.
SUBPART 3.3 Other Items. The Agent shall have received such other
documents, agreements or information which may be reasonably requested by the
Agent.
PART IV
MISCELLANEOUS
SUBPART 4.1 Construction. This Amendment is a Credit Document executed
pursuant to the Existing Credit Agreement and shall (unless otherwise expressly
indicated therein) be construed, administered and applied in accordance with the
terms and provisions of the Amended Credit Agreement.
SUBPART 4.2 Representations and Warranties. Each Credit Party hereby
represents and warrants that (i) each Credit Party that is party to this
Amendment: (a) has the requisite corporate power and authority to execute,
deliver and perform this Amendment, as applicable and (b) is duly authorized to,
and has been authorized by all necessary corporate action, to execute, deliver
and perform this Amendment, (ii) the representations and warranties contained in
Section 6 of the Amended Credit Agreement are true and correct in all material
respects on and as of the date hereof upon giving effect to this Amendment as
though made on and as of such date (except for those which expressly relate to
an earlier date) and (iii) no Default or Event of Default exists under the
Existing Credit Agreement on and as of the date hereof upon giving effect to
this Amendment.
SUBPART 4.3 Acknowledgment. The Guarantors acknowledge and consent to
all of the terms and conditions of this Amendment and agree that this Amendment
does not operate to reduce or discharge the Guarantors' obligations under the
Amended Credit Agreement or the other Credit Documents. The Guarantors further
acknowledge and agree that the Guarantors have no claims, counterclaims,
offsets, or defenses to the Credit Documents and the performance of the
Guarantors' obligations thereunder or if the Guarantors did have any such
claims, counterclaims, offsets or defenses to the Credit Documents or any
transaction related to the Credit Documents, the same are hereby waived,
relinquished and released in consideration of the Lenders' execution and
delivery of this Amendment.
SUBPART 4.4 Counterparts. This Amendment may be executed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same agreement.
SUBPART 4.5 Binding Effect. This Amendment, the Amended Credit Agreement
and the other Credit Documents embody the entire agreement between the parties
and supersede all prior
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agreements and understandings, if any, relating to the subject matter hereof.
These Credit Documents represent the final agreement between the parties and may
not be contradicted by evidence of prior, contemporaneous or subsequent oral
agreements of the parties. Except as expressly modified and amended in this
Amendment, all the terms, provisions and conditions of the Credit Documents
shall remain unchanged and shall continue in full force and effect.
SUBPART 4.6 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SUBPART 4.7 Severability. If any provision of this Amendment is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date first above
written.
BORROWER: AMN HEALTHCARE, INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Chief Financial Officer
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PARENT: AMN HEALTHCARE SERVICES, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------
Title: Chief Financial Officer
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SUBSIDIARY
GUARANTORS: WORLDVIEW HEALTHCARE, INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------
Title: Chief Financial Officer
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O'XXXXX XXXXXX INTERNATIONAL (USA), INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------
Title: Chief Financial Officer
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[Signatures Continued]
AGENT: BANK OF AMERICA, N.A.,
in its capacity as Agent
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------------
Title: Vice President
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LENDERS: BANK OF AMERICA, N.A.
By: /s/ Bank of America, N.A.
-------------------------------------
Name:
-----------------------------------
Title:
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[Signatures Continued]
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------
Title: Duly Authorized Signatory
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UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: Vice President/SCM
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