EXHIBIT 10.49
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of May 2, 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 amended by that certain First Amendment to Amended
and Restated Credit Agreement dated as of April 8, 2002 (as 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. 2 Effective Date" is defined in Part III.
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. 2
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part II.
SUBPART 2.1 Amendments to Section 8.7. Section 8.7 of the Existing
Credit Agreement is hereby amended in the following respects (i) the word "and"
before clause (k) is deleted and replaced with a comma and (ii) the following
new clause (l) is added immediately following existing clause (k) thereof:
8.7 RESTRICTED PAYMENTS.
.... and (l) loans, advances, dividends or distributions by any
Consolidated Party to the Parent to enable the Parent to make the
payments or reimbursements of fees and expenses to the extent
permitted by Section 8.9(f).
SUBPART 2.2 Amendments to Section 8.9. Section 8.9 of the Existing
Credit Agreement is hereby amended in the following respects (i) the word "and"
before clause (f) is deleted and replaced with a comma, (ii) the existing clause
(f) is relettered as new clause (g) and (iii) the following new clause (f) is
added immediately following existing clause (e) and immediately prior to the new
clause (g) thereof:
8.9 TRANSACTIONS WITH AFFILIATES.
.... (f) payment or reimbursement of fees and expenses of the
Parent and any of its shareholders in connection with any
registration of the Capital Stock of the Parent pursuant to
registration rights agreements or as otherwise approved by the
Board of Directors of the Borrower or Parent in an amount not to
exceed $3,500,000 in any fiscal year and ....
PART III
CONDITIONS TO EFFECTIVENESS
This Amendment shall be and become effective as of the date (the
"Amendment No. 2 Effective Date") when all of the conditions set forth in this
Part III shall have been satisfied.
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 Other Items. The Agent shall have received such other
documents, agreements or information which may be reasonably requested by the
Agent.
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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 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.
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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/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Senior Vice President
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PARENT: AMN HEALTHCARE SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Senior Vice President
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SUBSIDIARY
GUARANTORS: WORLDVIEW HEALTHCARE, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Senior Vice President
O'XXXXX XXXXXX INTERNATIONAL (USA), INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: Senior Vice President
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[Signatures Continued]
AGENT: BANK OF AMERICA, N. A.,
in its capacity as Agent
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: Vice President
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LENDERS: BANK OF AMERICA, N. A.
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
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Title: Managing Director
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[Signatures Continued]
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
-----------------------------------
Title: Duly Authorized Signatory
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UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Vice President/SCM
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