AMENDMENT NO. 5 TO ABL CREDIT AGREEMENT AND AMENDMENT NO. 2 TO GUARANTY AND SECURITY AGREEMENT
Exhibit 10.1
AMENDMENT NO. 5 TO ABL CREDIT AGREEMENT
AND AMENDMENT NO. 2 TO GUARANTY AND SECURITY AGREEMENT
AND AMENDMENT NO. 2 TO GUARANTY AND SECURITY AGREEMENT
AMENDMENT NO. 5 TO ABL CREDIT AGREEMENT AND AMENDMENT NO. 2 TO GUARANTY AND SECURITY AGREEMENT, dated as of March 21, 2022 (this “Amendment
No. 5”), is by and among ▇▇▇▇▇ Fargo Bank, National Association, a national banking association, as administrative agent for each member of the Lender Group and the Bank Product Providers (in such capacity, together with its successors and assigns in
such capacity, “Agent”), ▇▇▇▇▇ Fargo Bank, National Association, a national banking association, in its capacity as sole lead arranger (in such capacity, together with its successors and assigns in such capacity, the “Lead Arranger”), ▇▇▇▇▇ Fargo
Bank, National Association, a national banking association as sole book runner (in such capacity, together with their successors and assigns in such capacity, the “Book Runner”), ▇▇▇▇▇ Fargo Bank, National Association, a national banking association,
as collateral agent (in such capacity, together with its successors and assigns in such capacity, “Collateral Agent”), Cross Country Healthcare, Inc., a Delaware corporation (“Parent”), ▇▇▇▇▇ Search, LLC, a Delaware limited liability company
(“▇▇▇▇▇”), Cross Country Staffing, Inc., a Delaware corporation (“Cross Country Staffing”), Assignment America, LLC., a Delaware limited liability company (“Assignment America”), Travel Staff, LLC, a Delaware limited liability company (“Travel
Staff”), Medical Doctor Associates, LLC, a Delaware limited liability company (“Medical Doctor”), OWS, LLC, a Delaware limited liability company (“OWS”), New Mediscan II, LLC, a California limited liability company (“New Mediscan” and together with
Parent, ▇▇▇▇▇, Cross Country Staffing, Assignment America, Travel Staff, Medical Doctor, OWS and those additional persons that hereafter become parties thereto as Borrowers in accordance with the terms thereof, each, a “Borrower” and individually and
collectively, jointly and severally, the “Borrowers”), Cross Country Tech, LLC, a Delaware limited liability company (“Tech”), and Credent Verification and Licensing Services, LLC, a Delaware limited liability company (“Credent Verification” and
together with Tech and those additional persons that hereafter become parties thereto as Guarantors in accordance with the terms thereof, each, a “Guarantor” and individually and collectively, jointly and severally, the “Guarantors”).
W I T N E S S E T H:
WHEREAS, Agent, Lenders, Borrowers and Guarantors have entered into senior secured asset-based revolving credit facility pursuant to which
Lenders (or Agent on behalf of Lenders) have made and may make loans and advances and provide other financial accommodations to Borrowers as set forth in the ABL Credit Agreement, dated as of October 25, 2019, by and among Agent, Lenders, Borrowers
and Guarantors, as amended by Amendment No. 1 to ABL Credit Agreement, dated as of June 30, 2020, by and among Agent, Lenders, Borrowers and Guarantors, Amendment No. 2 to ABL Credit Agreement and Amendment No. 1 to Guaranty and Security Agreement,
dated as of March 8, 2021, by and among Agent, Lenders, Borrowers and Guarantors, Amendment No. 3 to ABL Credit Agreement, dated as of June 8, 2021, by and among Agent, Lenders, Borrowers and Guarantors and Amendment No. 4 to ABL Credit Agreement,
dated as of November 18, 2021 (as the same is amended hereby and may from time to time hereafter be further amended, modified, supplemented, extended, renewed, restated or replaced, the “Credit Agreement”);
WHEREAS, Borrowers and Guarantors have requested that Agent and Lenders agree to certain amendments to the Credit Agreement and Security
Agreement and Agent and Lenders are willing to agree to such amendments subject to the terms and conditions contained herein;
WHEREAS, Agent, Lenders, Borrowers and Guarantors intend to evidence such amendments pursuant to the terms hereof;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements and covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
1.1. Additional Definitions. The Credit Agreement is hereby amended to include, in addition and not in limitation, the following definitions:
“Amendment No. 5” means Amendment No. 5 to ABL Credit Agreement, dated as of March 21, 2022, by and among Agent, Lenders, Borrowers and
Guarantors, as the same now exists or may hereafter be amended, amended and restated, modified, supplemented, extended, renewed, restated or replaced.
“Amendment No. 5 Documents” has the meaning set forth in Section 5 of Amendment No. 5.
“Amendment No. 5 Effective Date” means the first date upon which each of the conditions set forth in Section 5 of Amendment No. 5 have been
satisfied (or waived in writing).
“Amendment No. 5 Fee Letter” means the engagement fee letter, dated March 21, 2022, between Parent and ▇▇▇▇▇ Fargo.
“Second Amendment to Intercreditor Agreement” means the Second Amendment to Intercreditor Agreement, dated as of March 21, 2022, by and
among Administrative Agent and Term Loan Agent, as acknowledged and agreed to by Loan Parties, in form and substance reasonably satisfactory to Administrative Agent.
1.2. Interpretation. For purposes of this Amendment No. 5, all terms used herein which are not otherwise defined herein, including but not
limited to, those terms used in the recitals hereto, shall have the respective meanings assigned thereto in the Credit Agreement.
2. Amendments to Credit Agreement.
2.1. The Credit Agreement is hereby amended by deleting the bold, stricken text (indicated textually in the same manner as the following example: stricken text) and adding the bold, underlined text (indicated textually in the same manner as the following example: underlined text) as set forth in
Exhibit A hereto. The amendments provided for in Exhibit A shall not, in any manner, be construed to impair, limit, cancel or extinguish, or constitute a novation in respect of, the Indebtedness and other obligations and liabilities of any Loan
Party evidenced by or arising under the Credit Agreement or the other Loan Documents, and the liens and security interests securing such Indebtedness and other obligations and liabilities, which shall not in any manner be impaired, limited,
terminated, waived or released but shall continue in full force and effect in favor of Agent and the Lender Group (as amended hereby). By executing this Amendment No. 5, the Loan Parties, Agent and Lenders (constituting all Lenders) hereby each
consents and agrees to the other amendments and modifications to the Credit Agreement contained in Exhibit A to this Amendment No. 5.
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2.2. Each of the Schedules to the Credit Agreement that are specified in Exhibit B hereto are hereby amended and restated in their entirety as set
forth in Exhibit B hereto. All references to each of such Schedules to the Credit Agreement in the Credit Agreement or any other Loan Document are hereby amended to refer to the corresponding Schedule included as part of Exhibit B hereto. All
other schedules to the Credit Agreement, as in effect immediately prior to the date of this Amendment No. 5, shall continue to constitute Schedules to the Credit Agreement. Exhibit S-1 to the Credit Agreement is hereby amended and restated in
its entirety as set forth in Exhibit C hereto. All references to such Exhibit to the Credit Agreement in the Credit Agreement or any other Loan Document are hereby amended to refer to the Exhibit included as part of Exhibit C hereto. All other
Exhibits to the Credit Agreement, as in effect immediately prior to the date of this Amendment No. 5, shall continue to constitute Exhibits to the Credit Agreement.
3. Amendments to Security Agreement.
3.1. Amendment to Definition-Cash Dominion Event. The definition of the term "Cash Dominion Event" in the Security Agreement is hereby deleted in
its entirety and replaced with the following:
"Cash Dominion Event" means either (i) Excess Availability is less than the greater of (A) ten percent (10.0%) of the Loan Cap or (B)
$24,000,000, for at least five (5) consecutive Business Days or (ii) an Event of Default exists or has occurred and is continuing.
3.2. Amendment to Definition-Cash Dominion Period. The definition of the term "Cash Dominion Period" in the Security Agreement is hereby deleted in
its entirety and replaced with the following:
"Cash Dominion Period" means the period commencing after the occurrence of a Cash Dominion Event and continuing until the date when (i)
for a Cash Dominion Event triggered by clause (i) of the definition thereof, Excess Availability is equal to or greater than the greater of (A) ten percent (10.0%) of the Loan Cap and (B) $24,000,000 for thirty (30) consecutive days and (ii) for
a Cash Dominion Event triggered by clause (ii) of the definition thereof, the Event of Default giving rise to such Cash Dominion Event is cured or waived or otherwise no longer exists.
4. Representations and Warranties. Each Loan Party, jointly and severally, represents and warrants with and to Agent and Lenders as follows,
which representations and warranties shall survive the execution and delivery hereof:
4.1. The execution, delivery and performance by each Loan Party of this Amendment No. 5 and the other Amendment No. 5 Documents (a) have been duly
authorized by all necessary corporate or other organizational action, and (b) does not and will not (i) violate any material provision of federal, state, or local law or regulation applicable to any Loan Party or any of its Subsidiaries, the
Organization Documents of any Loan Party or any of its Subsidiaries, or any order, judgment, or decree of any court or other Governmental Authority binding on any Loan Party or any of its Subsidiaries in each case in any material respect, (ii)
conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any material agreement of any Loan Party or any of its Subsidiaries where any such conflict, breach or default could individually or in
the aggregate reasonably be expected to have a Material Adverse Effect, (iii) result in or require the creation or imposition of any Lien of any nature whatsoever upon any assets of any Loan Party, other than Permitted Liens, or (iv) require any
approval of any holder of Equity Interests of a Loan Party or any approval or consent of any Person under any material agreement of any Loan Party, other than consents or approvals that have been obtained and that are still in force and effect
and except, in the case of material agreements, for consents or approvals, the failure to obtain could not individually or in the aggregate reasonably be expected to have a Material Adverse Effect.
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4.2. All of the representations and warranties of each Loan Party or its Subsidiaries contained in the Credit Agreement, the Security Agreement or
any of the other Loan Documents are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality or
Material Adverse Effect (or words of similar import) in the text thereof) on and as of the date hereof, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date, in
which case such representations and warranties shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by
materiality or Material Adverse Effect (or words of similar import in the text thereof) as of such earlier date).
4.3. The agreements and obligations of each Loan Party contained in this Amendment No. 5 and the other Amendment No. 5 Documents to which such
Loan Party is a party constitute legal, valid and binding obligations of such Loan Party, enforceable against it in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
4.4. As of the Amendment No. 5 Effective Date, and after giving effect to this Amendment No. 5 and the other Amendment No. 5 Documents to be
executed on or about the date hereof, no Default or Event of Default exists or has occurred and is continuing.
5. Conditions Precedent. This Amendment No. 5 shall be effective upon the satisfaction of each of the following conditions precedent:
5.1. Administrative Agent shall have received each of the following, each properly executed by an Authorized Person of the signing Loan Party or
the Lenders, as applicable, each in form and substance satisfactory to Administrative Agent (collectively, the “Amendment No. 5 Documents”):
(a) this Amendment No. 5, duly authorized, executed and delivered by the Lenders and Loan Parties;
(b) the Second Amendment to the Intercreditor Agreement duly authorized, executed and delivered by the Term Loan Agent and Loan Parties;
5.2. Administrative Agent shall have received a certificate from the Secretary of each Loan Party (a) attesting to the resolutions of such Loan
Party's board of directors or equivalent body authorizing its execution, delivery, and performance of the Loan Documents to which it is a party, (b) authorizing specific officers of such Loan Party to execute the same, and (c) attesting to the
incumbency and signatures of such specific officers of such Loan Party;
5.3. Administrative Agent shall have received copies of each Loan Party's Organization Documents, as amended, modified, or supplemented to the
Amendment No. 5 Effective Date, which Organization Documents shall be (a) certified by the Secretary or an Authorized Person of such Loan Party, and (b) with respect to Organization Documents that are charter documents, certified as of a recent
date (not more than thirty (30) days prior to the Amendment No. 5 Effective Date) by the appropriate governmental official;
5.4. Administrative Agent shall have received a certificate of status with respect to each Loan Party, dated within thirty (30) days of the
Amendment No. 5 Effective Date, such certificate to be issued by the appropriate officer of the jurisdiction of organization of such Loan Party, which certificate shall indicate that such Loan Party is in good standing in such jurisdiction;
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5.5. Administrative Agent shall have received favorable opinions of counsel to the Loan Parties in form and substance reasonably satisfactory to
Administrative Agent addressed to Administrative Agent and Lenders with respect to the Loan Parties, the Amendment No. 5 Documents and such other matters as Administrative Agent shall reasonably request (which such opinions shall expressly
permit reliance by permitted successors and assigns of the addressees thereof);
5.6. the Excess Availability as of the Amendment No. 5 Effective Date, after provision for payment of all fees and expenses related to Amendment
No. 5, shall be not less than $100,000,000;
5.7. Administrative Agent shall have received a certificate signed by an Authorized Person of the Administrative Borrower certifying (i) that
the conditions specified in this Section 5 have been satisfied, (ii) that there has been no event or circumstance since December 31, 2021 that has had or could reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect, (iii) that no Default or Event of Default exists or has occurred and is continuing, and (iv) either that (A) no consents, licenses or approvals are required in connection with the execution, delivery and performance
by such Loan Party and the validity against such Loan Party of Amendment No. 5 and the other Amendment No. 5 Documents to which it is a party, or (B) that all such consents, licenses and approvals have been obtained as of the Amendment No. 5
Effective Date are in full force and effect;
5.8. Administrative Agent shall have received the FDPA compliance report required by its internal procedures with respect to Amendment No. 5;
5.9. Borrowers shall have paid in full all fees required to be paid to the Administrative Agent or the Lead Arranger, as applicable, pursuant to
the Amendment No. 5 Fee Letter, on or before the Amendment No. 5 Effective Date;
5.10. Borrowers shall have paid all Lender Group Expenses incurred in connection with the transactions evidenced by Amendment No. 5, provided,
that, for costs and expenses, invoices shall have been delivered to Administrative Borrower not less than one (1) Business Day prior to the Amendment No. 5 Effective Date; and
5.11. the Amendment No. 5 Effective Date shall have occurred on or before March 21, 2022.
6. Effect of Amendment No. 5. Except as expressly set forth herein and in prior amendments, no other amendments, changes or modifications to
the Loan Documents are intended or implied, and in all other respects the Loan Documents are hereby specifically ratified, restated and confirmed by all parties hereto as of the effective date hereof and the Loan Parties shall not be entitled
to any other or further amendment by virtue of the provisions of this Amendment No. 5 or with respect to the subject matter of this Amendment No. 5. To the extent of conflict between the terms of this Amendment No. 5 and the other Loan
Documents, the terms of this Amendment No. 5 shall control. The Credit Agreement and this Amendment No. 5 shall be read and construed as one agreement. This Amendment No. 5 is a Loan Document. The Credit Agreement remains in full force and
effect, and nothing contained in this Amendment No. 5 will constitute a waiver of any right, power or remedy under the Credit Agreement, the Security Agreement or any other Loan Document.
7. Governing Law. The validity, interpretation and enforcement of this Amendment No. 5 and any dispute arising out of the relationship
between the parties hereto whether in contract, tort, equity or otherwise, shall be governed by the internal laws of the State of New York but excluding any principles of conflicts of law or other rule of law that would cause the application
of the law of any jurisdiction other than the laws of the State of New York.
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8. Jury Trial Waiver. LOAN PARTIES, AGENT AND LENDERS EACH HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING UNDER THIS AMENDMENT NO. 5 OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AMENDMENT NO. 5 OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. LOAN PARTIES, AGENT AND LENDERS EACH HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY AND THAT EACH LOAN PARTY, AGENT OR LENDER MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AMENDMENT NO. 5 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL
BY JURY.
9. Binding Effect. This Amendment No. 5 shall be binding upon and inure to the benefit of each of the parties hereto and their respective
successors and assigns.
10. Waiver, Modification, Etc. No provision or term of this Amendment No. 5 may be modified, altered, waived, discharged or terminated
orally, but only by an instrument in writing executed by the party against whom such modification, alteration, waiver, discharge or termination is sought to be enforced.
11. Further Assurances. The Loan Parties shall execute and deliver such additional documents and take such additional action as may be
reasonably requested by Agent to effectuate the provisions and purposes of this Amendment No. 5.
12. Entire Agreement. This Amendment No. 5, the Credit Agreement and the other Loan Documents represent the entire agreement and
understanding concerning the subject matter hereof among the parties hereto, and supersedes all other prior agreements, understandings, negotiations and discussions, representations, warranties, commitments, proposals, offers and contracts
concerning the subject matter hereof, whether oral or written.
13. Headings. The headings listed herein are for convenience only and do not constitute matters to be construed in interpreting this
Amendment No. 5.
14. Counterparts. This Amendment No. 5, any documents executed in connection herewith and any notices delivered under this Amendment No.
5, may be executed by means of (i) an electronic signature that complies with the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, or any other relevant and
applicable electronic signatures law; (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have
the same validity, legal effect, and admissibility in evidence as an original manual signature. Agent reserves the right, in its sole discretion, to accept, deny, or condition acceptance of any electronic signature on this Amendment No. 5
or on any notice delivered to Agent under this Amendment No. 5. This Amendment No. 5 and any notices delivered under this Amendment No. 5 may be executed in any number of counterparts, each of which shall be deemed to be an original, but
such counterparts shall, together, constitute only one instrument. Delivery of an executed counterpart of a signature page of this Amendment No. 5 and any notices as set forth herein will be as effective as delivery of a manually executed
counterpart of this Amendment No. 5 or notice.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 5 to be duly executed and delivered as of the day and
year first above written.
BORROWERS:
| CROSS COUNTRY HEALTHCARE, INC. | |
|
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
|
| Title: President & CFO |
|
▇▇▇▇▇ SEARCH, LLC
|
|
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
|
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
|
| Title: Vice President |
|
CROSS COUNTRY STAFFING, INC.
|
|
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
|
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
|
| Title: Vice President |
|
ASSIGNMENT AMERICA, LLC.
|
|
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
|
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
|
| Title: Vice President |
|
TRAVEL STAFF, LLC
|
|
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
|
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
|
| Title: Vice President |
|
OWS, LLC
|
|
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
|
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
|
| Title: Vice President |
[Signature Page to Amendment No. 5 to ABL Credit Agreement (Cross Country)]
|
NEW MEDISCAN II, LLC
|
|
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
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| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
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| Title: Vice President |
|
MEDICAL DOCTOR ASSOCIATES, LLC
|
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| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
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| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
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| Title: Vice President |
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GUARANTORS:
|
CROSS COUNTRY TECH, LLC
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| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
|
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
|
| Title: Vice President |
|
CREDENT VERIFICATION AND LICENSING SERVICES, LLC
|
|
| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
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| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ |
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| Title: Vice President |
[Signature Page to Amendment No. 5 to ABL Credit Agreement (Cross Country)]
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▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
|
|
|
a national banking association, as Administrative Agent, Collateral Agent and as a Lender
|
|
| By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ |
|
| Name: ▇▇▇▇ ▇▇▇▇▇▇▇ |
|
| Title: Its Authorized Signatory |
[Signature Page to Amendment No. 5 to ABL Credit Agreement (Cross Country)]
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PNC BANK, NATIONAL ASSOCIATION, as a Lender
|
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| By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
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| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
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| Title: Its Authorized Signatory |
[Signature Page to Amendment No. 5 to ABL Credit Agreement (Cross Country)]
EXHIBIT A
TO
AMENDMENT NO. 5 TO ABL CREDIT AGREEMENT
AND AMENDMENT NO. 2 TO GUARANTY AND SECURITY AGREEMENT
AND AMENDMENT NO. 2 TO GUARANTY AND SECURITY AGREEMENT
Amended Credit Agreement
See attached.
EXHIBIT B
TO
AMENDMENT NO. 5 TO ABL CREDIT AGREEMENT
AND AMENDMENT NO. 2 TO GUARANTY AND SECURITY AGREEMENT
AND AMENDMENT NO. 2 TO GUARANTY AND SECURITY AGREEMENT
Amended Schedules to Credit Agreement
See attached.
EXHIBIT C
TO
AMENDMENT NO. 5 TO ABL CREDIT AGREEMENT
AND AMENDMENT NO. 2 TO GUARANTY AND SECURITY AGREEMENT
AND AMENDMENT NO. 2 TO GUARANTY AND SECURITY AGREEMENT
Amended Exhibit S-1 to Credit Agreement
See attached.