EXHIBIT 1.01
EXECUTION COPY
FIRST AMENDMENT AND CONSENT
THIS FIRST AMENDMENT AND CONSENT (this "Amendment") dated as of June ___,
2007 (with an effective date determined in accordance with Section 5 hereof), by
and among CROSS COUNTRY HEALTHCARE, INC., a Delaware corporation (the
"Borrower"), the Lenders from time to time party to the Credit Agreement
referred to below, and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking
association, as Administrative Agent for the Lenders (the "Administrative
Agent") under the Credit Agreement referred to below.
STATEMENT OF PURPOSE
The Borrower, the Lenders and the Administrative Agent are parties to that
certain Credit Agreement, dated as of November 10, 2005 (as amended, restated or
otherwise modified from time to time, the "Credit Agreement"), pursuant to which
the Lenders have extended certain credit facilities to the Borrower.
The Borrower has requested that the Administrative Agent and the Lenders
consent to the acquisition of Akos Limited, a corporation incorporated under the
laws of England and Wales ("AKOS") by Cross Country Healthcare UK Holdco
Limited, a corporation incorporated under the laws of England and Wales and an
indirect wholly-owned Foreign Subsidiary of the Borrower ("UK Holdco"), pursuant
to the terms of a Share Purchase Agreement in an aggregate amount not to exceed
$14,000,000 (the "Acquisition").
Additionally, the Borrower has requested that the Administrative Agent and
the Lenders amend certain provisions of the Credit Agreement in connection with
the foregoing transaction.
Subject to the terms and conditions of this Amendment, the Administrative
Agent and the Required Lenders are willing to agree to the requested consents
and amendments.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
1. Capitalized Terms. All capitalized undefined terms used in this
Amendment (including, without limitation, in the statement of purpose hereto)
shall have the meanings assigned thereto in the Credit Agreement.
2. Amendments. Subject to the conditions to effectiveness set forth in
Section 5 below, the definition of "Permitted Acquisition" is hereby amended by
restating clause (g)(ii) of such definition to read in its entirety as follows:
"(ii) the aggregate amounts paid or payable for all Permitted Acquisitions
shall not exceed $125,000,000 during the term of this Agreement."
3. Consent. Pursuant to Section 14.2 of the Credit Agreement and effective
as of the Effective Date (as defined below):
(a) The Administrative Agent and the Lenders hereby consent to the
Acquisition;
(b) Notwithstanding the definition of "Permitted Acquisition" in the
Credit Agreement or anything contained in Section 11.3(b) and (d) of the
Credit Agreement, the Acquisition (i) shall be deemed a "Permitted
Acquisition" and shall be permitted under Section 11.3(d) and (ii) shall
not constitute an investment under Section 11.3(b) of the Credit Agreement;
and
(c) The Administrative Agent and the Lenders hereby consent to the
structure change and establishment of new Foreign Subsidiaries in
connection with the Acquisition such that (i) Cross Country Holdco (Cyprus)
Limited, a corporation formed under the laws of Cyprus and shall be a
wholly-owned direct Foreign Subsidiary of the Borrower, (ii) Cross Country
Infotech, Pvt Ltd., a corporation incorporated under the laws of India, and
UK Holdco shall each be a wholly-owned direct Foreign Subsidiary of Cross
Country Holdco (Cyprus) Limited and (iii) AKOS shall be a wholly-owned
direct Foreign Subsidiary of UK Holdco.
4. Representations and Warranties. By its execution hereof, and after
giving effect to this Amendment, the Borrower hereby certifies that: (a) each of
the representations and warranties contained in the Credit Agreement is true and
correct as of the First Amendment Effective Date (as defined below) with the
same effect as if made on and as of such date; except for any representation and
warranty made as of an earlier date, which representation and warranty shall
remain true and correct as of such earlier date, (b) no Default or Event of
Default has occurred and is continuing, and (c) the execution, delivery and
performance of this Amendment have been authorized by all requisite corporate
action on the part of the Borrowers and that this Amendment and each other
document executed in connection therewith has been duly executed and delivered
by the duly authorized officers of the Borrowers and constitutes the legal,
valid and binding obligation of each Borrower enforceable in accordance with its
terms.
5. Effectiveness. This Amendment shall become effective on the date (such
date, the "First Amendment Effective Date") upon which each of the following
conditions shall have been satisfied:
(a) The Administrative Agent shall have received counterparts of this
Amendment executed by the Borrower and the Required Lenders;
(b) All of the conditions precedent to consummation of the Acquisition
shall have been satisfied in accordance with the terms of the Share
Purchase Agreement without amendment, modification or waiver of any
material provision thereof since the date of the Share Purchase Agreement
unless consented to in writing by the Administrative Agent;
(c) The Administrative Agent shall have been reimbursed for all fees and
out of pocket charges and other expenses incurred in connection with this
Amendment, including, without limitation, the reasonable fees and expenses
of counsel to the Administrative Agent;
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(d) The Borrower shall have delivered to the Administrative Agent a
certificate delivered by the Chief Financial Officer of the Borrower which
certifications and contents shall be satisfactory to the Administrative
Agent;
(e) The Borrower shall have delivered to the Administrative Agent an
original stock certificate or other certificate evidencing 65% of the
Capital Stock of [Cyprus], together with an undated stock power for such
certificate duly executed in blank by the registered owner thereof; and
(f) The Administrative Agent shall have received such other instruments,
documents and certificates as the Administrative Agent shall reasonably
request in connection with the transactions described herein.
6. Limited Amendment. Except as expressly provided in this Amendment, the
Credit Agreement and each other Loan Document shall continue to be, and shall
remain, in full force and effect. Except as expressly provided in this
Amendment, this Amendment shall not be deemed or otherwise construed (a) to be a
waiver of, or consent to, or a modification or amendment of, any other term or
condition of the Credit Agreement or any other Loan Document or (b) to prejudice
any other right or remedies which the Administrative Agent or the Lenders may
now have or may have in the future under or in connection with the Credit
Agreement or the Loan Documents or any of the instruments or agreements referred
to therein, as the same may be amended, restated or otherwise modified from time
to time or (c) to be a commitment or any other undertaking or expression of any
willingness to engage in any further discussion with the Borrowers or any other
person, firm or corporation with respect to any waiver, amendment, modification
or any other change to the Credit Agreement or the Loan Documents or any rights
or remedies arising in favor of the Lenders or the Administrative Agent, or any
of them, under or with respect to any such documents or (d) to be a waiver of,
or consent to or a modification or amendment of, any other term or condition of
any other agreement by and among the Borrowers and the Administrative Agent or
any other Lender.
7. Confirmation of all Loan Documents. The Borrower hereby expressly
consents to the modifications and amendments set forth in this Amendment. The
Borrower, (a) reaffirms all of its covenants, representations, warranties and
other obligations set forth in the Credit Agreement and the other Loan Documents
to which it is a party and (b) acknowledges, represents and agrees that its
covenants, representations, warranties and other obligations set forth in the
Credit Agreement and the other Loan Documents to which it is a party remain in
full force and effect.
8. Expenses. The Borrowers shall pay all reasonable out-of-pocket expenses
of the Administrative Agent in connection with the preparation, execution and
delivery of this Amendment, including, without limitation, the reasonable fees
and disbursements of counsel for the Administrative Agent.
9. Counterparts. This Amendment may be executed by one or more of the
parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
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10. Governing Law. This Amendment shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York (including
Section 5-1401 and Section 5-1402 of the General Obligations Law of the State of
New York), without reference to the conflicts or choice of law principles
thereof.
11. Facsimile Transmission. A facsimile, telecopy or other reproduction of
this Amendment may be executed by one or more parties hereto, and an executed
copy of this Amendment may be delivered by one or more parties hereto by
facsimile or similar instantaneous electronic transmission device pursuant to
which the signature of or on behalf of such party can be seen, and such
execution and delivery shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties hereto agree to
execute an original of this Amendment as well as any facsimile, telecopy or
other reproduction hereof.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed under seal by their duly authorized officers, all as of the day and
year first written above.
CROSS COUNTRY HEALTHCARE, INC.,
as Borrower
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
AGENTS AND LENDERS:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Swingline Lender,
Issuing Lender and Lender
By: /S/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
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GENERAL ELECTRIC CAPITAL
CORPORATION, as Syndication Agent and Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title: Its Duly Authorized Signatory
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BANK OF AMERICA, N.A., as Co-Documentation
Agent and Lender
By: /S/ Illegible
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Name: Illegible
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Title: VP Bank of America
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LASALLE BANK NATIONAL ASSOCIATION,
as Co-Documentation Agent and Lender
By: /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: First vice President
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CAROLINA FIRST BANK, as Lender
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Title: Executive Vice President
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NATIONAL CITY BANK OF KENTUCKY, as Lender
By: /S/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Assistant Vice President
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COMERICA BANK, as Lender
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: Vice President
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US BANK, N.A, as Lender
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President
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