Exhibit 10.10
CONFORMED COPY
WAIVER AND AMENDMENT No. 1 (this "WAIVER AND
AMENDMENT) dated as of May 3, 2001, to the Credit
Agreement dated as of July 29, 1999, as amended and
restated as of December 16, 1999 and March 16, 2001,
by and among CROSS COUNTRY TRAVCORPS, INC., a
Delaware corporation (the "BORROWER"), the LENDERS
listed in Article I thereto (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"), administrative
agent for the Lenders and as 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.
B. The Borrower has informed the Administrative Agent that it
intends to acquire the assets and business of Xxxx/Xxxxxxx Consulting L.L.C.
("GBC"), as described in the memorandum from the Borrower to the Lenders dated
April 6, 2001 which is attached hereto as Schedule I (such acquisition, the "GBC
ACQUISITION"). In connection therewith, the Borrower has requested that the
Required Lenders consent to the GBC Acquisition and waive compliance with
Section 6.05(b) of the Credit Agreement with respect to the Borrower's
requirement to provide the Administrative Agent with 30 days' written notice
prior to the GBC Acquisition.
C. 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.
D. Capitalized terms used and not defined herein shall have
the meanings assigned to such terms in the Credit Agreement or other Credit
Document.
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. CONSENT AND WAIVER. The Required Lenders (a) hereby
consent to the GBC Acquisition in accordance with the terms and conditions of
Schedule I and (b) waive compliance with Section 6.05(b) of the Credit Agreement
with respect to the Borrower's requirement to provide the Administrative Agent
with 30 days' written notice prior to the GBC Acquisition; PROVIDED, HOWEVER,
that the consent and waiver contained in this Section shall cease to be
effective on June 30, 2001, if the GBC Acquisition shall not have occurred on or
prior to such date.
SECTION 2. AMENDMENTS.
(a) Section 1.01 of the Credit Agreement is hereby
amended by inserting the following definition in the appropriate
alphabetical order therein:
"GBC ACQUISITION" means the acquisition of
assets and business of Xxxx/Xxxxxxx Consulting L.L.C.
("GBC"), as described in the memorandum from the
Borrower to the Lenders dated April 6, 2001.
(b) The following is hereby inserted as a new section
following Section 5.01(d) of the Security Agreement:
(e) Notwithstanding anything to the contrary
contained in the Credit Agreement or any other Credit
Documents, so long as the aggregate cash Proceeds of the
Account Rights and Inventory received by the Borrower which
result from its business activities in Canada during any
calendar year after the date hereof shall not have exceeded
$1,000,000 in the lawful currency of the United States ("U.S.
DOLLARS")(or the equivalent amount in the lawful currency of
Canada ("CANADIAN DOLLARS")), the Borrower shall not be
required to establish a Lockbox and Depository Agreement in
Canada or deposit and forward the Proceeds of its Account
Rights and Inventory derived from its Canadian business
activities to the Concentration Account; PROVIDED that the
Borrower shall be required to promptly provide notice to the
Collateral Agent and the Lenders if such cash Proceeds of the
Account Rights and Inventory exceed $1,000,000 U.S. Dollars or
the equivalent amount in Canadian Dollars. Upon receipt of
such notice, the Collateral Agent or the Required Lenders may
require the Borrower to promptly forward or have forwarded all
such Proceeds of its Account Rights and Inventory being held
by it or for its account to the Concentration Account and
establish a Lockbox and Depository Agreement within Canada
suitable to the Collateral Agent within 90 days after notice
from the Collateral Agent or the Required Lenders.
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 Waiver and 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 full 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.
(c) no Event of Default or Default has occurred and is
continuing.
SECTION 4. CONDITIONS TO EFFECTIVENESS. This Waiver and
Amendment shall become effective as of the date when the Administrative Agent
shall have received counterparts of this Waiver and Amendment that, when taken
together, bear the
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signatures of the Borrower and the Required Lenders.
SECTION 5. EFFECTIVENESS. Except as expressly set forth
herein, this Waiver and 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 Waiver and Amendment shall apply and be
effective only with respect to the provisions of the Credit Agreement
specifically referred to herein. This Waiver and 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 WAIVER AND AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. COUNTERPARTS. This Waiver and 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 Waiver and Amendment by
telecopy shall be effective as delivery of a manually executed counterpart of
this Waiver and Amendment.
SECTION 8. EXPENSES. The Borrower agrees to reimburse the
Administrative Agent for its out-of-pocket expenses in connection with this
Waiver and Amendment, including the reasonable fees, charges and disbursements
of Cravath, Swaine & Xxxxx, counsel for the Administrative Agent.
SECTION 9. HEADINGS. The headings of this Waiver and 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 Waiver
and Amendment to be duly executed by their respective authorized officers as of
the date first above written.
CROSS COUNTRY TRAVCORPS, INC.,
by /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
Title: CFO
CITICORP USA, INC., individually and as
Administrative Agent, Collateral Agent,
Issuing Bank and Swingline Lender,
by /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title: Vice President
XXXXXXX XXXXX BARNEY INC., as Arranger,
by /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title: Director
BANKERS TRUST COMPANY,
individually and as Syndication Agent,
by
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Name:
Title:
BANK OF AMERICA, N.A.,
by /s/ S. XXXX XXXXXXX, III
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Name: S. Xxxx Xxxxxxx, III
Title: Senior Vice President
FLEET NATIONAL BANK, N.A.,
by /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: Vice President
GENERAL ELECTRIC
CAPITAL CORPORATION,
by /s/ XXXXXX X. XXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxx
Title: Duly Authorized Signatory
IBJ WHITEHALL BANK & TRUST
by /s/ IBJ WHITEHALL BANK & TRUST
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Name: IBJ Whitehall Bank & Trust
Title: Director
ING (U.S.) CAPITAL LLC
by /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Managing Director
XXXXXXX XXXXX CAPITAL CORPORATION,
by /s/ XXXXX X. X. XXXXXX
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Name: Xxxxx X. X. Xxxxxx
Title: Vice President
PROVIDENT BANK OF MARYLAND,
by /s/ XXXXXXXX X. XXXXXXX
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Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
SOVEREIGN BANK,
by
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Name:
Title:
SUNTRUST BANK, N.A.,
by /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Director
WACHOVIA BANK, N.A.,
individually and as Documentation Agent,
by
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Name:
Title:
