Exhibit 10.9
EXECUTION COPY
AMENDMENT NO. 3 (this "AMENDMENT") dated as
of February 11, 2002, to the CREDIT AGREEMENT dated
as of July 29, 1999, as amended and restated as of
December 16, 1999, and March 16, 2001, and as amended
by WAIVER AND AMENDMENT NO. 1 dated as of May 3,
2001, and AMENDMENT NO. 2 dated as of November 13,
2001 (as so amended, the "CREDIT AGREEMENT"), by and
among CROSS COUNTRY, INC. (formerly known as Cross
Country Travcorps, Inc.), a Delaware corporation (the
"BORROWER"), the LENDERS referred to therein (the
"LENDERS"), XXXXXXX XXXXX XXXXXX INC., as sole
advisor, arranger and book manager, CITICORP USA,
INC., as issuing bank (in such capacity the "ISSUING
BANK"), swingline lender (in such capacity the
"SWINGLINE LENDER"), and administrative agent and
collateral agent for the Lenders, BANKERS TRUST
COMPANY, as syndication agent, and WACHOVIA BANK,
N.A., as documentation agent.
A. Pursuant to the Credit Agreement, each of the Lenders, the
Swingline Lender and the Issuing Bank have extended credit to the Borrower and
have agreed to extend credit to the Borrower, in each case pursuant to the terms
and subject to the conditions set forth therein. Capitalized terms used but not
otherwise defined herein shall have the meanings assigned to them in the Credit
Agreement.
B. The Borrower has requested that the Credit Agreement be
amended as set forth herein.
C. The Required Lenders are willing so to amend the Credit
Agreement pursuant to the terms and subject to the conditions set forth herein.
D. The Borrower has also requested that certain provisions of
the Security Agreement be amended pursuant to the terms and subject to the
conditions set forth herein.
Accordingly, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency and receipt
of which are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT.
(a) The caption to the Credit Agreement is hereby
amended by (i) inserting "a" between "as" and "documentation" set forth
therein, (ii) deleting "the" set forth therein between "capacity," and
"DOCUMENTATION AGENT" and substituting therefor "a" and (iii) inserting
"and FLEET NATIONAL BANK, N.A., as a documentation agent (in such
capacity, a "DOCUMENTATION AGENT" and collectively with WACHOVIA BANK,
N.A., the "DOCUMENTATION AGENTS", it being understood that all
references to the Documentation Agent in this Agreement shall be deemed
to include each of the Documentation Agents)" immediately before "."
set forth in the last line thereof.
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(b) The definition of the term "Change of Control"
contained in Section 1.01 of the Credit Agreement is hereby amended by
(i) deleting clause (a) in its entirety, (ii) deleting the clause
designator "(b)" and substituting therefor "(a)", (iii) deleting the
clause designator "(c)" and substituting therefor "(b)" and (iv)
deleting clause (d) in its entirety.
(c) The definition of the term "Permitted
Acquisition" contained in Section 1.01 of the Credit Agreement is
hereby amended by:
(i) deleting "$10,000,000" set forth in clause (g) of such
definition and substituting therefor "25,000,000";
(ii) inserting at the end of clause (i) the following proviso:
"; PROVIDED that the requirements of this clause (i) shall not
apply if, in the case of an Asset Acquisition, a Subsidiary of
the Borrower that had owned, directly or indirectly, only such
assets as of the most recent fiscal quarter end for which
financial statements have been delivered or, in the case of a
Stock Acquisition, the Target, if it had been a Subsidiary of
the Borrower as of the most recent fiscal quarter end for
which financial statements have been delivered, would not have
been considered a Significant Subsidiary of the Borrower"
between "Acquisition" and ";"; and
(iii) inserting at the end of clause (j) the following
proviso: "; PROVIDED that the requirements of this clause (j)
shall not apply if, in the case of an Asset Acquisition, a
Subsidiary of the Borrower that had owned, directly or
indirectly, only such assets as of the most recent fiscal
quarter end for which financial statements have been delivered
or, in the case of a Stock Acquisition, the Target, if it had
been a Subsidiary of the Borrower as of the most recent fiscal
quarter end for which financial statements have been
delivered, would not have been considered a Significant
Subsidiary of the Borrower" between "Acquisition" and ";".
(d) The definition of the term "Senior Debt/Adjusted
EBITDA Ratio" contained in Section 1.01 of the Credit Agreement is
hereby deleted in its entirety.
(e) Section 1.01 of the Credit Agreement is hereby
amended by inserting the following definition in the appropriate
alphabetical order therein:
"Significant Subsidiary" means a significant subsidiary as
such term is used in Regulation S-X under the Exchange Act.
(f) Section 2.11(a) of the Credit Agreement is hereby
amended by deleting the reference to "Sections 2.12(b) and 2.13(f)" set
forth therein and substituting therefor "Section 2.12(b)".
(g) Section 2.13 of the Credit Agreement is hereby
amended by deleting clauses (b), (c), (d), (e), (f) and (g) in their
entirety.
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(h) Section 5.04 of the Credit Agreement is hereby
amended by:
(i) deleting "90" set forth in Section 5.04(a) and
substituting therefor "95";
(ii) deleting "45" set forth in Section 5.04(b) and
substituting therefor "50";
(iii) deleting "45" set forth in Section 5.04(c) and
substituting therefor "50";
(iv) deleting ", 6.14" set forth in Section 5.04(d)(ii);
(v) deleting "30" set forth in Section 5.04(f) and
substituting therefor "45"; and
(vi) inserting the following provision immediately following
Section 5.04(h):
Financial statements, opinions, certificates, reports and
other information required to be delivered pursuant to this
Section 5.04 shall be deemed to have been delivered if the
Administrative Agent posts such financial statements,
opinions, certificates, reports and other information on the
Citi/SSB Global Loans Disclosure Website on the Internet
maintained by the Administrative Agent at
xxxxx://xxxxxx0.xxx.xxx/ (or such other address as the
Administrative Agent shall provide) and such financial
statements, opinions, certificates, reports and other
information shall be deemed to have been delivered on the date
on which they are posted by the Administrative Agent on the
Citi/SSB Global Loans Disclosure Website on the Internet at
xxxxx://xxxxxx0.xxx.xxx/ (or such other address as the
Administrative Agent shall provide).
(i) Section 5.11 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"SECTION 5.11.
INTENTIONALLY LEFT BLANK"
(j) Section 6.01 of the Credit Agreement is hereby
amended by (i) deleting "$4,000,000" set forth in Section 6.01(a)(v)
and substituting therefor "$10,000,000", (ii) deleting "required under
Section 5.12 or" set forth in Section 6.01(a)(vi), (iii) deleting
"$4,000,000" set forth in Section 6.01(a)(vii) and substituting
therefor "$10,000,000", (iv) deleting "$5,000,000" set forth in Section
6.01(a)(xi) and substituting therefor "$10,000,000" and (v) deleting
"$10,000,000" set forth in the proviso immediately following Section
6.01(a)(xi) and substituting therefor "$20,000,000".
(k) Section 6.05(c) of the Credit Agreement is
hereby amended by
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deleting "and the proceeds of which are applied in accordance with
Section 2.13(c)".
(l) Section 6.06(b)(ii) of the Credit Agreement is
hereby amended by deleting ", 6.14".
(m) Section 6.11 of the Credit Agreement is hereby
amended by deleting the existing table set forth therein and
substituting therefor the following new table:
CASH CAPITAL
FISCAL YEAR EXPENDITURE LIMIT
----------- -----------------
1999 $400,000
2000 $3,000,000
2001 $10,000,000
2002 and thereafter $10,000,000
(n) Section 6.12 of the Credit Agreement is hereby
amended by deleting the existing table set forth therein and
substituting therefor the following new table:
DATE AMOUNT
---- ------
December 31, 2000 $38,500,000
December 31, 2001 $45,000,000
December 31, 2002 $55,000,000
December 31, 2003 $60,000,000
December 31, 2004 $65,000,000
December 31, 2005 $70,000,000
(o) Section 6.14 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"SECTION 6.14.
INTENTIONALLY LEFT BLANK"
(p) Section 9.01 is hereby amended by deleting
"Xxxxxxx Xxxxxxx (fax (000) 000-0000)" set forth in Section 9.01(b) and
substituting therefor "Xxxxx Xxxxxx (fax (000) 000-0000)".
SECTION 2. AMENDMENTS TO THE SECURITY AGREEMENT.
(a) Section 1.01 of the Security Agreement is hereby
amended by deleting the following definitions of terms set forth
therein in their entirety:
(i) Collection Deposit Account;
(ii) Concentration Account;
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(iii) General Fund Account;
(iv) Lockbox and Depositary Agreement;
(v) Lockbox System; and
(vi) Sub-Agent
(b) The definition of the term "Collateral" contained
in Section 1.01 of the Security Agreement is hereby amended by deleting
"(including the Concentration Account, the Collection Deposit Account
and the General Fund Account)" set forth therein.
(c) The definition of the term "Proceeds" contained
in Section 1.01 of the Security Agreement is hereby amended by (i)
deleting clause (a) in its entirety, (ii) deleting the clause
designator "(b)" and substituting therefor "(a)" and (iii) deleting the
clause designator "(c)" and substituting therefor "(b)".
(d) Section 5.01 of the Security Agreement is hereby
amended and restated in its entirety to read as follows:
"SECTION 5.01.
INTENTIONALLY LEFT BLANK"
(e) Section 5.02 of the Security Agreement is hereby
amended and restated in its entirety to read as follows:
"SECTION 5.02.
INTENTIONALLY LEFT BLANK"
(f) Annex 3 to the Security Agreement is hereby
deleted in its entirety.
SECTION 3. REPRESENTATIONS AND WARRANTIES. The Borrower
represents and warrants to each of the Lenders and the Administrative Agent
that, after giving effect to this Amendment:
(a) the representations and warranties set forth in
Article III of the Credit Agreement are true and correct in all
material respects with the same effect as if made on and as of the date
hereof, except to the extent such representations and warranties
expressly relate to an earlier date.
(b) the Borrower is in compliance with the covenants
set forth in Article IV and Article V of the Credit Agreement as of the
date hereof, except to the extent such covenants expressly relate to an
earlier date.
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(c) no Event of Default or Default has occurred and
is continuing.
SECTION 4. CONDITIONS TO EFFECTIVENESS. This Amendment shall
become effective as of the date first written above at such time as the
Administrative Agent shall have received counterparts hereof, duly executed and
delivered by the Borrower, the other Grantors and the Required Lenders.
SECTION 5. EFFECTIVENESS. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders, the Issuing Bank, the Swingline Lender, the Collateral Agent, the
Administrative Agent, the Arranger, the Syndication Agent or the Documentation
Agent, under the Credit Agreement or any other Credit Document, and shall not
alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Credit Agreement or any
other Credit Document, all of which are ratified and affirmed in all respects
and shall continue in full force and effect. Nothing herein shall be deemed to
entitle the Borrower to a consent to, or a waiver, amendment, modification or
other change of, any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other Credit Document in
similar or different circumstances. This Amendment shall apply and be effective
only with respect to the provisions of the Credit Agreement and the Security
Agreement specifically referred to herein. This Amendment shall constitute a
"Credit Document" for all purposes of the Credit Agreement and the other Credit
Documents. As used therein, the terms "Agreement", "herein", "hereunder",
"hereto", "hereof" and words of similar import shall, unless the context
otherwise requires, refer to the Credit Agreement as modified hereby.
SECTION 6. APPLICABLE LAW. THIS AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
SECTION 7. COUNTERPARTS. This Amendment may be executed in any
number of counterparts, each of which shall be an original but all of which,
when taken together, shall constitute but one instrument. Delivery of an
executed counterpart of a signature page of this Amendment by telecopy shall be
effective as delivery of a manually executed counterpart of this Amendment.
SECTION 8. EXPENSES. The Borrower agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of Cravath,
Swaine & Xxxxx, counsel for the Administrative Agent.
SECTION 9. HEADINGS. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
date first above written.
CROSS COUNTRY, INC.,
by
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Name:
Title:
TVCM, INC.,
by
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Name:
Title:
XXXXX & COMPANY,
by
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Name:
Title:
CC STAFFING, INC.,
by
------------------------------
Name:
Title:
E-STAFF, INC.,
by
------------------------------
Name:
Title:
CROSS COUNTRY SEMINARS, INC.,
by
------------------------------
Name:
Title:
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FLEX STAFF, INC.,
by
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Name:
Title:
CLINFORCE, INC.,
by
------------------------------
Name:
Title:
CFRC, INC.,
by
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Name:
Title:
HOSPITAL HUB, INC.,
by
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Name:
Title:
CROSS COUNTRY TRAVCORPS, INC.,
by
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Name:
Title:
NOVAPRO, INC.,
by
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Name:
Title:
CITICORP USA, INC., individually and as
Administrative Agent, Collateral Agent,
Issuing Bank and Swingline Lender,
by
------------------------------
Name:
Title:
9
XXXXXXX XXXXX XXXXXX INC., as
Arranger,
by
------------------------------
Name:
Title:
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SIGNATURE PAGE TO AMENDMENT
NO. 3 DATED AS OF FEBRUARY 11,
2002, TO THE CROSS COUNTRY, INC.
CREDIT AGREEMENT DATED AS OF
JULY 29, 1999, AS AMENDED AND
RESTATED AS OF DECEMBER 16, 1999,
AND MARCH 16, 2001, AND AS
AMENDED BY WAIVER AND
AMENDMENT NO. 1 DATED AS OF
MAY 3, 2001, AND AMENDMENT NO. 2
DATED AS OF NOVEMBER 13, 2001
NAME OF LENDER:
-------------------------------------------
by
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Name:
Title:
