EXHIBIT 10.40
SUPPLEMENT TO INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT
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SUPPLEMENT NO. 12 (this "SUPPLEMENT") dated
as of February 7, 2005, to the INDEMNITY, SUBROGATION
AND CONTRIBUTION AGREEMENT dated as of December 16,
1999, among CROSS COUNTRY HEALTHCARE, INC. (f/k/a
Cross Country, Inc.), a Delaware corporation (the
"BORROWER"), each subsidiary of the Borrower listed
on Schedule I thereto (the "SUBSIDIARY GUARANTORS"
or, the "GUARANTORS") and CITICORP USA, INC.
("CITICORP"), as collateral agent (the "COLLATERAL
AGENT") for the Obligees (as defined in the Credit
Agreement referred to below).
A. Reference is made to Credit Agreement dated as of July 29, 1999, as
amended and restated as of December 16, 1999, March 16, 2001 and June 5, 2003
(as amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among the Borrower, the Lenders (as defined in Article I thereof),
Citigroup Global Markets Inc., as sole bookrunner and joint lead arranger,
Wachovia Securities LLC, as joint lead arranger (together with Citigroup Global
Markets Inc., in such capacity, the "ARRANGERS"), Citicorp USA, Inc., as issuing
bank (in such capacity, the "ISSUING BANK"), as swingline lender (in such
capacity, the "SWINGLINE LENDER"), as administrative agent for the Lenders (in
such capacity, the "ADMINISTRATIVE AGENT") and as collateral agent for the
Lenders (in such capacity the "COLLATERAL AGENT"), Wachovia Bank, National
Association, as syndication agent (the "SYNDICATION AGENT"), and General
Electric Capital Corporation, Key Corporate Capital Inc., LaSalle Bank N.A. and
SunTrust Bank, as documentation agents (the "DOCUMENTATION AGENTS") and (b) the
form of Indemnity, Subrogation and Contribution Agreement annexed to the Credit
Agreement as Exhibit J (as amended, supplemented or otherwise modified from time
to time, the "INDEMNITY, SUBROGATION AND CONTRIBUTION AGREEMENT") and the
Collateral Documents referred to in the Credit Agreement.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Indemnity, Subrogation and
Contribution Agreement and the Credit Agreement.
C. The Borrower and the Guarantors have entered into the Indemnity,
Subrogation and Contribution Agreement in order to induce the Lenders to make
Loans and the Issuing Bank to issue Letters of Credit. Pursuant to Section 5.10
of the Credit Agreement, each Subsidiary (other than a Foreign Subsidiary) that
was not in existence or not such a Subsidiary on the Original Closing Date is
required to enter into the Indemnity, Subrogation and Contribution Agreement as
a Subsidiary Guarantor upon becoming a Subsidiary. Section 12 of the Indemnity,
Subrogation and Contribution Agreement provides that additional Subsidiaries may
become Subsidiary Guarantors under the Indemnity, Subrogation and Contribution
Agreement by execution and delivery of an instrument in the form of this
Supplement. The undersigned Subsidiary (the "NEW
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GUARANTOR") is executing this Supplement in accordance with the requirements of
the Credit Agreement to become a Subsidiary Guarantor under the Indemnity,
Subrogation and Contribution Agreement in order to induce the Lenders to make
additional Loans and the Issuing Bank to issue additional Letters of Credit and
as consideration for Loans previously made and Letters of Credit previously
issued.
Accordingly, the Collateral Agent and the New Guarantor agree
as follows:
SECTION 1. In accordance with Section 12 of the Indemnity,
Subrogation and Contribution Agreement, the New Guarantor by its signature below
becomes a Subsidiary Guarantor under the Indemnity, Subrogation and Contribution
Agreement with the same force and effect as if originally named therein as a
Subsidiary Guarantor and the New Guarantor hereby agrees to all the terms and
provisions of the Indemnity, Subrogation and Contribution Agreement applicable
to it as a Subsidiary Guarantor thereunder. Each reference to a "Guarantor" in
the Indemnity, Subrogation and Contribution Agreement shall be deemed to include
the New Guarantor. The Indemnity, Subrogation and Contribution Agreement is
hereby incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the
Collateral Agent and the other Obligees that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Guarantor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the
Indemnity, Subrogation and Contribution Agreement shall remain in full force and
effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained
in this Supplement should be held invalid, illegal or unenforceable in any
respect, neither party hereto shall be required to comply with such provision
for so long as such provision is held to be invalid, illegal or unenforceable,
but the validity, legality and enforceability of the remaining provisions
contained herein and in the Indemnity, Subrogation and Contribution Agreement
shall not in any way be affected or impaired. The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be
in writing and given as provided in Section 7 of the Indemnity, Subrogation and
Contribution Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it at the address set forth under its signature.
SECTION 8. The New Guarantor agrees to reimburse the
Collateral Agent for its reasonable out-of-pocket expenses in connection with
this Supplement, including the reasonable fees, other charges and disbursements
of counsel for the Collateral Agent.
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IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have
duly executed this Supplement to the Indemnity, Subrogation and Contribution
Agreement as of the day and year first above written.
MCVT, INC., a Delaware corporation,
By /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Assistant Secretary
Address: ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
CITICORP USA, INC., as Collateral Agent,
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President