EXHIBIT 10.35
EXECUTION COPY
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SUBSIDIARY GUARANTY AGREEMENT,
dated as of November 10, 2005,
by and among
certain Subsidiaries of CROSS COUNTRY HEALTHCARE, INC.,
as Subsidiary Guarantors,
in favor of
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINED TERMS.....................................................2
SECTION 1.1 Definitions..................................2
SECTION 1.2 Other Definitional Provisions................3
ARTICLE II GUARANTY.........................................................3
SECTION 2.1 Guaranty.....................................3
SECTION 2.2 Bankruptcy Limitations on
Subsidiary Guarantors......................3
SECTION 2.3 Agreements for Contribution..................4
SECTION 2.4 Nature of Guaranty...........................6
SECTION 2.5 Waivers......................................7
SECTION 2.6 Modification of Loan Documents, etc..........7
SECTION 2.7 Demand by the Administrative Agent...........8
SECTION 2.8 Remedies.....................................9
SECTION 2.9 Benefits of Guaranty.........................9
SECTION 2.10 Termination; Reinstatement...................9
SECTION 2.11 Payments....................................10
ARTICLE III REPRESENTATIONS AND WARRANTIES.................................10
SECTION 3.1 Organization; Power; Qualification..........10
SECTION 3.2 Authorization of Agreement; Enforceability..10
SECTION 3.3 Compliance of Guaranty with Laws, etc.......10
SECTION 3.4 Title to Properties.........................11
SECTION 3.5 Liens.......................................11
SECTION 3.6 Litigation..................................11
SECTION 3.7 Solvency....................................11
ARTICLE IV MISCELLANEOUS...................................................11
SECTION 4.1 Notices.....................................11
SECTION 4.2 Amendments in Writing.......................12
SECTION 4.3 Expenses; Indemnification; Waiver of
Consequential Damages, etc................12
SECTION 4.4 Right of Set-off............................12
SECTION 4.5 Governing Law; Jurisdiction; Venue;
Service of Process........................13
SECTION 4.6 Waiver of Jury Trial........................14
SECTION 4.7 No Waiver by Course of Conduct,
Cumulative Remedies.......................14
SECTION 4.8 Successors and Assigns......................14
SECTION 4.9 Survival of Indemnities.....................14
SECTION 4.10 Titles and Captions.........................15
SECTION 4.11 Severability of Provisions..................15
SECTION 4.12 Counterparts................................15
SECTION 4.13 Integration.................................15
SECTION 4.14 Advice of Counsel, No Strict Construction...15
SECTION 4.15 Acknowledgements............................15
SECTION 4.16 Releases....................................16
SECTION 4.17 Additional Guarantors.......................16
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SUBSIDIARY GUARANTY AGREEMENT (as amended, restated, supplemented or
otherwise modified, this "Guaranty" or this "Agreement"), dated as of November
10, 2005, is made by certain Subsidiaries of CROSS COUNTRY HEALTHCARE, INC., a
Delaware corporation (such Subsidiaries, collectively, the "Subsidiary
Guarantors", each, a "Subsidiary Guarantor"), in favor of WACHOVIA BANK,
NATIONAL ASSOCIATION, as Administrative Agent (in such capacity, the
"Administrative Agent") for the ratable benefit of itself and the financial
institutions (the "Lenders") from time to time parties to the Credit Agreement,
dated of even date herewith (as amended, restated, supplemented or otherwise
modified, the "Credit Agreement"), by and among the Borrower, the Lenders, and
the Administrative Agent.
STATEMENT OF PURPOSE
Pursuant to the terms of the Credit Agreement, the Lenders have agreed
to make Extensions of Credit to the Borrower upon the terms and subject to the
conditions set forth therein.
The Borrower and the Subsidiary Guarantors, though separate legal
entities, comprise one integrated financial enterprise, and all Extensions of
Credit to the Borrower will inure, directly or indirectly to the benefit of each
of the Subsidiary Guarantors.
It is a condition precedent to the obligation of the Lenders to make
their respective Extensions of Credit to the Borrower under the Credit Agreement
that the Subsidiary Guarantors shall have executed and delivered this Guaranty
to the Administrative Agent, for the ratable benefit of itself and the Lenders.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, and to
induce the Administrative Agent and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective Extensions of
Credit to the Borrower thereunder, the Subsidiary Guarantors hereby agree with
the Administrative Agent, for the ratable benefit of itself and the Lenders, as
follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1 Definitions. The following terms when used in this Guaranty
shall have the meanings assigned to them below:
"Additional Guarantor" means each Subsidiary of the Borrower which
hereafter becomes a Guarantor pursuant to Section 4.17 hereof and Section 9.11
of the Credit Agreement.
"Applicable Insolvency Laws" means all Applicable Laws governing
bankruptcy, reorganization, arrangement, adjustment of debts, relief of debtors,
dissolution, insolvency, fraudulent transfers or conveyances or other similar
laws (including, without limitation, 11 U.S.C. Sections 544, 547, 548 and 550
and other "avoidance" provisions of Title 11 of the United States Code, as
amended or supplemented).
"Guaranteed Obligations" has the meaning set forth in Section 2.1.
"Guaranty" means this Subsidiary Guaranty Agreement, as amended,
restated, supplemented or otherwise modified.
"Solvent" means, as to each Guarantor on a particular date, that such
Guarantor (a) has capital sufficient to carry on its business and transactions
and all business and transactions in which it is about to engage and is able to
pay its debts as they mature, (b) has assets having a value, both at fair
valuation and at present fair saleable value, greater than the amount required
to pay its probable liabilities (including contingencies), and (c) does not
believe that it will incur debts or liabilities beyond its ability to pay such
debts or liabilities as they mature, subject in each case to the first sentence
in Section 2.2 hereof.
SECTION 1.2 Other Definitional Provisions. Capitalized terms used and
not otherwise defined in this Guaranty including the preambles and recitals
hereof shall have the meanings ascribed to them in the Credit Agreement. In the
event of a conflict between capitalized terms defined herein and in the Credit
Agreement, the Credit Agreement shall control. The words "hereof," "herein",
"hereto" and "hereunder" and words of similar import when used in this Guaranty
shall refer to this Guaranty as a whole and not to any particular provision of
this Guaranty, and Section references are to this Guaranty unless otherwise
specified. The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms. Where the
context requires, terms relating to the Collateral or any part thereof, when
used in relation to a Subsidiary Guarantor, shall refer to such Guarantor's
Collateral or the relevant part thereof.
ARTICLE II
GUARANTY
SECTION 2.1 Guaranty. Each Subsidiary Guarantor hereby, jointly and
severally with the other Subsidiary Guarantors, unconditionally guarantees to
the Administrative Agent for the ratable benefit of itself and the Lenders, and
their respective permitted successors, endorsees, transferees and assigns, the
prompt payment and performance of all Obligations of the Borrower, whether
primary or secondary (whether by way of endorsement or otherwise), whether now
existing or hereafter arising, whether or not from time to time reduced or
extinguished (except by payment thereof) or hereafter increased or incurred,
whether enforceable or unenforceable as against the Borrower, whether or not
discharged, stayed or otherwise affected by any Applicable Insolvency Law or
proceeding thereunder, whether created directly with the Administrative Agent or
any Lender or acquired by the Administrative Agent or any Lender through
assignment or endorsement or otherwise, whether matured or unmatured, whether
joint or several, as and when the same become due and payable (whether at
maturity or earlier, by reason of acceleration, mandatory repayment or
otherwise), in accordance with the terms of any such instruments evidencing any
such obligations, including all renewals, extensions or modifications thereof
(all Obligations of the Borrower, including all of the foregoing being hereafter
collectively referred to as the "Guaranteed Obligations").
SECTION 2.2 Bankruptcy Limitations on Subsidiary Guarantors.
Notwithstanding anything to the contrary contained in Section 2.1, it is the
intention of each Subsidiary Guarantor and the Lenders that, in any proceeding
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involving the bankruptcy, reorganization, arrangement, adjustment of debts,
relief of debtors, dissolution or insolvency or any similar proceeding with
respect to any Subsidiary Guarantor or its assets, the amount of such Subsidiary
Guarantor's obligations with respect to the Guaranteed Obligations shall be
equal to, but not in excess of, the maximum amount thereof not subject to
avoidance or recovery by operation of Applicable Insolvency Laws after giving
effect to Section 2.3(a). To that end, but only in the event and to the extent
that after giving effect to Section 2.3(a) such Subsidiary Guarantor's
obligations with respect to the Guaranteed Obligations or any payment made
pursuant to such Guaranteed Obligations would, but for the operation of the
first sentence of this Section 2.2, be subject to avoidance or recovery in any
such proceeding under Applicable Insolvency Laws after giving effect to Section
2.3(a), the amount of such Subsidiary Guarantor's obligations with respect to
the Guaranteed Obligations shall be limited to the largest amount which, after
giving effect thereto, would not, under Applicable Insolvency Laws, render such
Subsidiary Guarantor's obligations with respect to the Guaranteed Obligations
unenforceable or avoidable or otherwise subject to recovery under Applicable
Insolvency Laws. To the extent any payment actually made pursuant to the
Guaranteed Obligations exceeds the limitation of the first sentence of this
Section 2.2 and is otherwise subject to avoidance and recovery in any such
proceeding under Applicable Insolvency Laws, the amount subject to avoidance
shall in all events be limited to the amount by which such actual payment
exceeds such limitation and the Guaranteed Obligations as limited by the first
sentence of this Section 2.2 shall in all events remain in full force and effect
and be fully enforceable against such Subsidiary Guarantor. The first sentence
of this Section 2.2 is intended solely to preserve the rights of the
Administrative Agent hereunder against such Subsidiary Guarantor in such
proceeding to the maximum extent permitted by Applicable Insolvency Laws and
neither such Subsidiary Guarantor, the Borrower, any other Subsidiary Guarantor
nor any other Person shall have any right or claim under such sentence that
would not otherwise be available under Applicable Insolvency Laws in such
proceeding.
SECTION 2.3 Agreements for Contribution.
(a) The Subsidiary Guarantors hereby agree among themselves that, if
any Subsidiary Guarantor shall make an Excess Payment (as defined below), such
Subsidiary Guarantor shall have a right of contribution from each other
Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor's
Contribution Share (as defined below) of such Excess Payment. The payment
obligations of any Subsidiary Guarantor under this Section 2.3(a) shall be
subordinate and subject in right of payment to the Guaranteed Obligations until
such time as the Guaranteed Obligations have been paid in full, and none of the
Subsidiary Guarantors shall exercise any right or remedy under this Section
2.3(a) against any other Subsidiary Guarantor until such Guaranteed Obligations
have been paid in full. For purposes of this Section 2.3(a), (a) "Excess
Payment" shall mean the amount paid by any Subsidiary Guarantor in excess of its
Ratable Share of any Guaranteed Obligations; (b) "Ratable Share" shall mean, for
any Subsidiary Guarantor in respect of any payment of Guaranteed Obligations,
the ratio (expressed as a percentage) as of the date of such payment of
Guaranteed Obligations of (i) the amount by which the aggregate present fair
salable value of all of its assets and properties exceeds the amount of all
debts and liabilities of such Subsidiary Guarantor (including probable
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
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the obligations of such Subsidiary Guarantor hereunder) to (ii) the amount by
which the aggregate present fair salable value of all assets and other
properties of all of the Subsidiary Guarantors exceeds the amount of all of the
debts and liabilities (including probable contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of the Subsidiary
Guarantors hereunder) of the Subsidiary Guarantors; provided, however, that, for
purposes of calculating the Ratable Shares of the Subsidiary Guarantors in
respect of any payment of Guaranteed Obligations, any Subsidiary Guarantor that
became a Subsidiary Guarantor subsequent to the date of any such payment shall
be deemed to have been a Subsidiary Guarantor on the date of such payment and
the financial information for such Subsidiary Guarantor as of the date such
Subsidiary Guarantor became a Subsidiary Guarantor shall be utilized for such
Subsidiary Guarantor in connection with such payment; and (c) "Contribution
Share" shall mean, for any Subsidiary Guarantor in respect of any Excess Payment
made by any other Subsidiary Guarantor, the ratio (expressed as a percentage) as
of the date of such Excess Payment of (i) the amount by which the aggregate
present fair salable value of all of its assets and properties exceeds the
amount of all debts and liabilities of such Subsidiary Guarantor (including
probable contingent, subordinated, unmatured, and unliquidated liabilities, but
excluding the obligations of such Subsidiary Guarantor hereunder) to (ii) the
amount by which the aggregate present fair salable value of all assets and other
properties of the Subsidiary Guarantors other than the maker of such Excess
Payment exceeds the amount of all of the debts and liabilities (including
probable contingent, subordinated, unmatured, and unliquidated liabilities, but
excluding the obligations of the Subsidiary Guarantors) of the Subsidiary
Guarantors other than the maker of such Excess Payment; provided, however, that,
for purposes of calculating the Contribution Shares of the Subsidiary Guarantors
in respect of any Excess Payment, any Subsidiary Guarantor that became a
Subsidiary Guarantor subsequent to the date of any such Excess Payment shall be
deemed to have been a Subsidiary Guarantor on the date of such Excess Payment
and the financial information for such Subsidiary Guarantor as of the date such
Subsidiary Guarantor became a Subsidiary Guarantor shall be utilized for such
Subsidiary Guarantor in connection with such Excess Payment. Each of the
Subsidiary Guarantors recognizes and acknowledges that the rights to
contribution arising hereunder shall constitute an asset in favor of the party
entitled to such contribution. This Section 2.3 shall not be deemed to affect
any right of subrogation, indemnity, reimbursement or contribution that any
Subsidiary Guarantor may have under Applicable Law against the Borrower in
respect of any payment of Guaranteed Obligations.
(b) No Subrogation. Notwithstanding any payment or payments by any of
the Subsidiary Guarantors hereunder, or any set-off or application of funds of
any of the Subsidiary Guarantors by the Administrative Agent or any Lender, or
the receipt of any amounts by the Administrative Agent or any Lender with
respect to any of the Guaranteed Obligations, none of the Subsidiary Guarantors
shall be entitled to be subrogated to any of the rights of the Administrative
Agent or any Lender against the Borrower or the other Subsidiary Guarantors or
against any collateral security held by the Administrative Agent or any Lender
for the payment of the Guaranteed Obligations nor shall any of the Subsidiary
Guarantors seek any reimbursement from the Borrower or any of the other
Subsidiary Guarantors in respect of payments made by such Subsidiary Guarantor
in connection with the Guaranteed Obligations, until all amounts owing to the
Administrative Agent and the Lenders on account of the Guaranteed Obligations
are paid in full and the Commitments are terminated. If any amount shall be paid
to any Subsidiary Guarantor on account of such subrogation rights at any time
when all of the Guaranteed Obligations shall not have been paid in full, such
amount shall be held by such Subsidiary Guarantor in trust for the
Administrative Agent, segregated from other funds of such Subsidiary Guarantor,
and shall, forthwith upon receipt by such Subsidiary Guarantor, be turned over
to the Administrative Agent in the exact form received by such Subsidiary
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Guarantor (duly endorsed by such Subsidiary Guarantor to the Administrative
Agent, if required) to be applied against the Guaranteed Obligations, whether
matured or unmatured, in such order as set forth in the Credit Agreement.
SECTION 2.4 Nature of Guaranty.
(a) Each Subsidiary Guarantor agrees that this Guaranty is a
continuing, unconditional guaranty of payment and performance and not of
collection, and that its obligations under this Guaranty shall be primary,
absolute and unconditional, irrespective of, and unaffected by:
(i) the genuineness, validity, regularity, enforceability or
any future amendment of, or change in, the Credit Agreement or any
other Loan Document or any other agreement, document or instrument to
which the Borrower or any Subsidiary Guarantor is or may become a
party;
(ii) the absence of any action to enforce this Guaranty, the
Credit Agreement or any other Loan Document or the waiver or consent by
the Administrative Agent or any Lender with respect to any of the
provisions of this Guaranty, the Credit Agreement or any other Loan
Document;
(iii) the existence, value or condition of, or failure to
perfect its Lien against, any security for or other guaranty of the
Guaranteed Obligations or any action, or the absence of any action, by
the Administrative Agent or any Lender in respect of such security or
guaranty (including, without limitation, the release of any such
security or guaranty); or
(iv) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor;
it being agreed by each Subsidiary Guarantor that, subject to the first sentence
of Section 2.2, its obligations under this Guaranty shall not be discharged
until the final indefeasible payment and performance, in full, of the Guaranteed
Obligations and the termination of the Commitments.
(b) Each Subsidiary Guarantor represents, warrants and agrees that its
obligations under this Guaranty are not and shall not be subject to any
counterclaims, offsets or defenses of any kind (other than the defense of
payment) against the Administrative Agent, the Lenders or the Borrower whether
now existing or which may arise in the future, except as provided in the Loan
Documents.
(c) Each Subsidiary Guarantor hereby agrees and acknowledges that the
Guaranteed Obligations, and any of them, shall conclusively be deemed to have
been created, contracted or incurred, or renewed, extended, amended or waived,
in reliance upon this Guaranty, and all dealings between the Borrower and any of
the Subsidiary Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, likewise shall be conclusively presumed to have been
had or consummated in reliance upon this Guaranty.
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SECTION 2.5 Waivers. To the extent permitted by law, each Subsidiary
Guarantor expressly waives all of the following rights and defenses (and agrees
not to take advantage of or assert any such right or defense):
(a) any rights it may now or in the future have under any statute
(including, without limitation, North Carolina General Statutes Section 26-7, et
seq. or similar law), or at law or in equity, or otherwise, to compel the
Administrative Agent or any Lender to proceed in respect of the Obligations
against the Borrower or any other Person or against any security for or other
guaranty of the payment and performance of the Guaranteed Obligations before
proceeding against, or as a condition to proceeding against, such Subsidiary
Guarantor;
(b) any defense based upon the failure of the Administrative Agent or
any Lender to commence an action in respect of the Guaranteed Obligations
against the Borrower, such Subsidiary Guarantor, any other guarantor or any
other Person or any security for the payment and performance of the Guaranteed
Obligations;
(c) any right to insist upon, plead or in any manner whatever claim or
take the benefit or advantage of, any appraisal, valuation, stay, extension,
marshalling of assets or redemption laws, or exemption, whether now or at any
time hereafter in force, which may delay, prevent or otherwise affect the
performance by such Subsidiary Guarantor of its obligations under, or the
enforcement by the Administrative Agent or the Lenders of this Guaranty;
(d) any right of diligence, presentment, demand, protest and notice
(except as specifically required herein) of whatever kind or nature with respect
to any of the Guaranteed Obligations and waives, to the extent permitted by
Applicable Laws, the benefit of all provisions of law which are or might be in
conflict with the terms of this Guaranty;
(e) any structured change in, restructuring of or other similar change
of the Borrower or any of its Subsidiaries; and
(f) any and all right to notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon, or acceptance of, this Guaranty.
Each Subsidiary Guarantor agrees that any notice or directive given at
any time to the Administrative Agent or any Lender which is inconsistent with
any of the foregoing waivers shall be null and void and may be ignored by the
Administrative Agent or such Lender, and, in addition, may not be pleaded or
introduced as evidence in any litigation relating to this Guaranty for the
reason that such pleading or introduction would be at variance with the written
terms of this Guaranty, unless the Administrative Agent and the Required Lenders
have specifically agreed otherwise in writing. The foregoing waivers are of the
essence of the transaction contemplated by the Credit Agreement and the other
Loan Documents and, but for this Guaranty and such waivers, the Administrative
Agent and Lenders would decline to enter into the Credit Agreement and the other
Loan Documents.
SECTION 2.6 Modification of Loan Documents, etc. Neither the
Administrative Agent nor any Lender shall incur any liability to any Subsidiary
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Guarantor as a result of any of the following, and none of the following shall
impair or release this Guaranty or any of the obligations of any Subsidiary
Guarantor under this Guaranty:
(a) any change or extension of the manner, place or terms of payment
of, or renewal or alteration of all or any portion of, the Guaranteed
Obligations;
(b) any action under or in respect of the Credit Agreement or the other
Loan Documents in the exercise of any remedy, power or privilege contained
therein or available to any of them at law, in equity or otherwise, or waiver or
refraining from exercising any such remedies, powers or privileges;
(c) any amendment to, or modification of, in any manner whatsoever, the
Loan Documents;
(d) any extension or waiver of the time for performance by any
Subsidiary Guarantor, any other guarantor, the Borrower or any other Person of,
or compliance with, any term, covenant or agreement on its part to be performed
or observed under a Loan Document, or waiver of such performance or compliance
or consent to a failure of, or departure from, such performance or compliance;
(e) the taking and holding security or collateral for the payment of
the Guaranteed Obligations or the sale, exchange, release, disposal of, or other
dealing with, any property pledged, mortgaged or conveyed, or in which the
Administrative Agent or the Lenders have been granted a Lien, to secure any
Indebtedness of any Subsidiary Guarantor, any other guarantor or the Borrower to
the Administrative Agent or the Lenders;
(f) the release of anyone who may be liable in any manner for the
payment of any amounts owed by any Subsidiary Guarantor, any other guarantor or
the Borrower to the Administrative Agent or any Lender;
(g) any modification or termination of the terms of any intercreditor
or subordination agreement pursuant to which claims of other creditors of any
Subsidiary Guarantor, any other guarantor or the Borrower are subordinated to
the claims of the Administrative Agent or any Lender; or
(h) any application of any sums by whomever paid or however realized to
any Guaranteed Obligations owing by any Subsidiary Guarantor, any other
guarantor or the Borrower to the Administrative Agent or any Lender in such
manner as the Administrative Agent or any Lender shall determine in its
reasonable discretion.
SECTION 2.7 Demand by the Administrative Agent. In addition to the
terms set forth in this Article II and in no manner imposing any limitation on
such terms, if all or any portion of the then outstanding Guaranteed Obligations
are declared to be immediately due and payable, then the Subsidiary Guarantors
shall, upon demand in writing therefor by the Administrative Agent to the
Subsidiary Guarantors, pay all or such portion of the outstanding Guaranteed
Obligations due hereunder then declared due and payable.
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SECTION 2.8 Remedies. Upon the occurrence and during the continuance of
any Event of Default, with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, enforce against the Subsidiary Guarantors their
obligations and liabilities hereunder and exercise such other rights and
remedies as may be available to the Administrative Agent hereunder, under the
Credit Agreement or the other Loan Documents or otherwise.
SECTION 2.9 Benefits of Guaranty. The provisions of this Guaranty are
for the benefit of the Administrative Agent and the Lenders and their respective
permitted successors, transferees, endorsees and assigns, and nothing herein
contained shall impair, as between the Borrower, the Administrative Agent and
the Lenders, the obligations of the Borrower under the Loan Documents. In the
event all or any part of the Obligations are transferred, endorsed or assigned
by the Administrative Agent or any Lender to any Person or Persons as permitted
under the Credit Agreement, any reference to an "Administrative Agent", or
"Lender" herein shall be deemed to refer equally to such Person or Persons.
SECTION 2.10 Termination; Reinstatement.
(a) Subject to clause (c) below, this Guaranty shall remain in full
force and effect until all the Guaranteed Obligations and all the obligations of
the Subsidiary Guarantors shall have been paid in full and the Commitments
terminated.
(b) No payment made by the Borrower, any Subsidiary Guarantor, or any
other Person received or collected by the Administrative Agent or any Lender
from the Borrower, any Subsidiary Guarantor, or any other Person by virtue of
any action or proceeding or any set-off or appropriation or application at any
time or from time to time in reduction of or in payment of the Guaranteed
Obligations shall be deemed to modify, reduce, release or otherwise affect the
liability of any Subsidiary Guarantor hereunder which shall, notwithstanding any
such payment (other than any payment made by such Subsidiary Guarantor in
respect of the obligations of the Subsidiary Guarantors or any payment received
or collected from such Subsidiary Guarantor in respect of the obligations of the
Subsidiary Guarantors), remain liable for the obligations of the Subsidiary
Guarantors up to the maximum liability of such Subsidiary Guarantor hereunder
until the Guaranteed Obligations and all the obligations of the Subsidiary
Guarantors shall have been paid in full and the Commitments terminated.
(c) Each Subsidiary Guarantor agrees that, if any payment made by the
Borrower or any other Person applied to the Guaranteed Obligations is at any
time annulled, set aside, rescinded, invalidated, declared to be fraudulent or
preferential or otherwise required to be refunded or repaid, or is repaid in
whole or in part pursuant to a good faith settlement of a pending or threatened
claim, or the proceeds of any Collateral are required to be refunded by the
Administrative Agent or any Lender to the Borrower, its estate, trustee,
receiver or any other Person, including, without limitation, any Subsidiary
Guarantor, under any Applicable Law or equitable cause, then, to the extent of
such payment or repayment, each Subsidiary Guarantor's liability hereunder (and
any Lien or Collateral securing such liability) shall be and remain in full
force and effect, as fully as if such payment had never been made, and, if prior
thereto, this Guaranty shall have been canceled or surrendered (and if any Lien
or Collateral securing such Subsidiary Guarantor's liability hereunder shall
have been released or terminated by virtue of such cancellation or surrender),
this Guaranty (and such Lien or Collateral) shall be reinstated in full force
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and effect, and such prior cancellation or surrender shall not diminish,
release, discharge, impair or otherwise affect the obligations of such
Subsidiary Guarantor in respect of the amount of such payment (or any Lien or
Collateral securing such obligation).
SECTION 2.11 Payments. Payments by the Subsidiary Guarantors shall be
made to the Administrative Agent, to be credited and applied to the Guaranteed
Obligations in accordance with the terms of the Credit Agreement, in immediately
available Dollars to an account designated by the Administrative Agent or at the
Administrative Agent's Office or at any other address that may be specified in
writing from time to time by the Administrative Agent.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to make any
Extensions of Credit, each Subsidiary Guarantor hereby represents and warrants
that:
SECTION 3.1 Organization; Power; Qualification. Such Subsidiary
Guarantor is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or formation, has the power and
authority to own its properties and to carry on its business as now being
conducted and is duly qualified and authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
business requires such qualification and authorization except in jurisdictions
where the failure to be so qualified or in good standing could not reasonably be
expected to have a Material Adverse Effect.
SECTION 3.2 Authorization of Agreement; Enforceability. Such Subsidiary
Guarantor has the right, power and authority and has taken all necessary
corporate and other action to authorize the execution, delivery and performance
of this Guaranty in accordance with its terms. This Guaranty has been duly
executed and delivered by the duly authorized officers of the Subsidiary
Guarantor and constitutes the legal, valid and binding obligation of such
Subsidiary Guarantor, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar state or federal debtor relief laws from time to time in
effect which affect the enforcement of creditors' rights in general and the
availability of equitable remedies.
SECTION 3.3 Compliance of Guaranty with Laws, etc. The execution,
delivery and performance by such Subsidiary Guarantor of this Guaranty, in
accordance with its terms, does not and will not, by the passage of time, the
giving of notice or otherwise, (i) require any Governmental Approval or violate
any Applicable Law relating to such Subsidiary Guarantor where the failure to
obtain such Governmental Approval could reasonably be expect to have a Material
Adverse Effect, (ii) conflict with, result in a breach of or constitute a
default under the articles of incorporation, bylaws or other organizational
documents of such Subsidiary Guarantor which could reasonably be expected to
have a Material Adverse Effect, (iii) conflict with, result in a breach of or
constitute a default under any indenture, agreement or other instrument to which
10
such Subsidiary Guarantor is a party or by which any of its properties may be
bound or any Governmental Approval relating to such Subsidiary Guarantor which
could reasonably be expected to have a Material Adverse Effect, (iv) result in
or require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by such Subsidiary Guarantor other than
Liens arising under the Loan Documents or (v) require any consent or
authorization of, filing with, or other act in respect of, an arbitrator or
Governmental Authority and no consent of any other Person is required in
connection with the execution, delivery, performance, validity or enforceability
of this Guaranty other than consents for which the failure to obtain could not
reasonably be expected to have a Material Adverse Effect.
SECTION 3.4 Title to Properties. Such Subsidiary Guarantor has such
title to the real property owned or leased by it as is necessary or desirable to
the conduct of its business and valid and legal title to all of its material
personal property and assets, including, but not limited to, those reflected on
the balance sheets of the Borrower and its Subsidiaries delivered pursuant to
Section 8.1 of the Credit Agreement, except those which have been disposed of by
such Subsidiary Guarantor subsequent to the date of such balance sheets which
dispositions have been in the ordinary course of business or as otherwise
expressly permitted under the terms of the Credit Agreement.
SECTION 3.5 Liens. None of the properties and assets of such Subsidiary
Guarantor is subject to any Lien, except Permitted Liens under the terms of the
Credit Agreement. Except as set forth on Schedule 11.2 of the Credit Agreement,
no financing statement under the Uniform Commercial Code of any state which
names such Subsidiary Guarantor or any of its respective trade names or
divisions as debtor and which has not been terminated, has been filed in any
state or other jurisdiction and such Subsidiary Guarantor has not signed any
such financing statement or any security agreement authorizing any secured party
thereunder to file any such financing statement, except to perfect those
Permitted Liens.
SECTION 3.6 Litigation. Except for matters existing on the Closing Date
and set forth on Schedule 7.1(u) to the Credit Agreement, there are no actions,
suits or proceedings pending nor, to the knowledge of such Subsidiary Guarantor,
threatened against or in any other way relating adversely to or affecting such
Subsidiary Guarantor or any of their respective properties in any court or
before any arbitrator of any kind or before or by any Governmental Authority
that (i) has or could reasonably be expected to have a Material Adverse Effect,
or (ii) materially adversely affects any transaction contemplated by this
Guaranty or the Loan Documents.
SECTION 3.7 Solvency. As of the Closing Date (or such later date upon
which such Subsidiary Guarantor became a party hereto) such Subsidiary Guarantor
is Solvent.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 Notices. All notices and communications hereunder shall be
given to the addresses and otherwise made in accordance with Section 14.1 of the
Credit Agreement; provided that notices and communications to the Subsidiary
Guarantors shall be directed to the Subsidiary Guarantors, at the address of the
Borrower set forth in Section 14.1 of the Credit Agreement.
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SECTION 4.2 Amendments in Writing. None of the terms or provisions of
this Guaranty may be waived, amended, supplemented or otherwise modified except
in accordance with Section 14.2 of the Credit Agreement.
SECTION 4.3 Expenses; Indemnification; Waiver of Consequential Damages,
etc.
(a) Each Subsidiary Guarantor agrees to pay or reimburse each Lender
and the Administrative Agent for all its costs and expenses incurred in
connection with enforcing or preserving any rights under this Guaranty and the
other Loan Documents to which such Subsidiary Guarantor is a party, including,
without limitation, the reasonable fees and disbursements of counsel (including
the allocated fees and expenses of in-house counsel) to each Lender and of
counsel to the Administrative Agent.
(b) Each Subsidiary Guarantor agrees to pay, and to save the
Administrative Agent and the Lenders harmless from, any and all liabilities with
respect to, or resulting from, any such Subsidiary Guarantor's delay in paying,
any and all stamp, excise, sales or other taxes which may be payable or
determined to be payable in connection with any of the transactions contemplated
by this Guaranty.
(c) Each Subsidiary Guarantor agrees to pay, and to save the
Administrative Agent and the Lenders harmless from any and all liabilities,
obligations, losses, damages, penalties, costs and expenses in connection with
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Guaranty to the extent the Borrower would
be required to do so pursuant to Section 14.3 of the Credit Agreement.
(d) To the fullest extent permitted by Applicable Law, each Subsidiary
Guarantor shall not assert, and hereby waives, any claim against any indemnitee,
on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Guaranty, any other Loan Document or any agreement
or instrument contemplated hereby or the transactions contemplated hereby or
thereby. No indemnitee referred to in this Section 4.3 shall be liable for any
damages arising from the use by unintended recipients of any information or
other materials distributed by it through telecommunications, electronic or
other information transmission systems in connection with this Guaranty or the
other Loan Documents or the transactions contemplated hereby or thereby;
provided that such Indemnitee has utilized such usual and customary security
procedures with any such information or other materials as it would utilize for
its own similar information and materials.
(e) All amounts due under this Section shall be payable promptly after
demand therefor.
SECTION 4.4 Right of Set-off. If an Event of Default shall have
occurred and be continuing under Section 14.4 of the Credit Agreement, each
Lender, the Issuing Lender, the Swingline Lender and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by Applicable Law, to set-off and apply any and all
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deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any
time owing by such Lender, the Issuing Lender, the Swingline Lender or any such
Affiliate to or for the credit or the account of each Subsidiary Guarantor
against any and all of the Guaranteed Obligations of such Subsidiary Guarantor
now or hereafter existing under this Agreement or any other Loan Document to
such Lender, the Issuing Lender or the Swingline Lender, irrespective of whether
or not such Lender, the Issuing Lender or the Swingline Lender shall have made
any demand under this Agreement or any other Loan Document and although such
Guaranteed Obligations of such Subsidiary Guarantor may be contingent or
unmatured or are owed to a branch or office of such Lender, the Issuing Lender
or the Swingline Lender different from the branch or office holding such deposit
or other obligation. The rights of each Lender, the Issuing Lender, the
Swingline Lender and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) that
such Lender, the Issuing Lender, the Swingline Lender or their respective
Affiliates may have. Each Lender, the Issuing Lender and the Swingline Lender
agrees to notify such Subsidiary Guarantor promptly after any such setoff and
application; provided that the failure to give such notice shall not affect the
validity of such setoff and application.
SECTION 4.5 Governing Law; Jurisdiction; Venue; Service of Process.
(a) Governing Law. This Guaranty shall be governed by, and construed in
accordance with, the law of the State of New York, without reference to the
conflicts or choice of law principles thereof.
(b) Submission to Jurisdiction. Each Subsidiary Guarantor irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the courts of the State of New York sitting in the Borough of
Manhattan and of the United States District Court of the Borough of Manhattan,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Guaranty or any other Loan Document, or for
recognition or enforcement of any judgment, and each of the parties hereto
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in such New York State court
or, to the fullest extent permitted by applicable law, in such Federal court.
Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Guaranty or in any other Loan Document shall affect any right that the
Administrative Agent or any Lender may otherwise have to bring any action or
proceeding relating to this Guaranty or any other Loan Document against any
Subsidiary Guarantor or its properties in the courts of any jurisdiction.
(c) Waiver of Venue. Each Subsidiary Guarantor irrevocably and
unconditionally waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of venue of any action
or proceeding arising out of or relating to this Guaranty or any other Loan
Document in any court referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
applicable law, the defense of an inconvenient forum to the maintenance of such
action or proceeding in any such court.
13
(d) Service of Process. Each party hereto irrevocably consents to
service of process in the manner provided for notices in Section 14.1 of the
Credit Agreement. Nothing in this Guaranty will affect the right of any party
hereto to serve process in any other manner permitted by applicable law.
SECTION 4.6 Waiver of Jury Trial.
(a) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
GUARANTY AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 4.7 No Waiver by Course of Conduct, Cumulative Remedies.
Neither the Administrative Agent nor any Lender shall by any act (except by a
written instrument pursuant to Section 4.2), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default. No failure to exercise, nor any
delay in exercising on the part of the Administrative Agent or any Lender, any
right, power or privilege hereunder shall operate as a waiver thereof. No single
or partial exercise of any right, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. A waiver by the Administrative Agent or any Lender of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Administrative Agent or such Lender would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
SECTION 4.8 Successors and Assigns. This Guaranty shall be binding upon
the successors and assigns of each Subsidiary Guarantor and shall inure to the
benefit of each Subsidiary Guarantor (and shall bind all Persons who become
bound as a Subsidiary Guarantor under this Guaranty), the Administrative Agent
and the Lenders and their successors and assigns; provided, that no Subsidiary
Guarantor may assign, transfer or delegate any of its rights or obligations
under this Guaranty without the prior written consent of the Administrative
Agent and the Lenders unless such transaction is expressly permitted under the
Credit Agreement.
SECTION 4.9 Survival of Indemnities. Notwithstanding any termination of
this Guaranty, the indemnities to which the Administrative Agent and the Lenders
are entitled under the provisions of Section 4.3 and any other provision of this
Guaranty and the other Loan Documents shall continue in full force and effect
14
and shall protect the Administrative Agent and the Lenders against events
arising after such termination as well as before.
SECTION 4.10 Titles and Captions. Titles and captions of Articles,
Sections and subsections in, and the table of contents of, this Guaranty are for
convenience only, and neither limit nor amplify the provisions of this Guaranty.
SECTION 4.11 Severability of Provisions. Any provision of this Guaranty
or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 4.12 Counterparts. This Guaranty may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and shall be binding
upon all parties, their successors and assigns, and all of which taken together
shall constitute one and the same agreement.
SECTION 4.13 Integration. This Guaranty comprises the complete and
integrated agreement of the parties on the subject matter hereof and thereof and
supersedes all prior agreements, written or oral, on such subject matter. In the
event of any conflict between the provisions of this Guaranty and those of any
other Loan Document, the provisions of the Credit Agreement shall control;
provided, that any provision of the any other Loan Document which imposes
additional burdens on any Subsidiary Guarantor or further restricts the rights
of any Subsidiary Guarantor or gives the Administrative Agent or Lenders
additional rights shall not be deemed to be in conflict or inconsistent with
this Guaranty and shall be given full force and effect.
SECTION 4.14 Advice of Counsel, No Strict Construction. Each of the
parties represents to each other party hereto that it has discussed this
Guaranty with its counsel. The parties hereto have participated jointly in the
negotiation and drafting of this Guaranty. In the event an ambiguity or question
of intent or interpretation arises, this Guaranty shall be construed as if
drafted jointly by the parties hereto and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Guaranty.
SECTION 4.15 Acknowledgements. Each Guarantor hereby acknowledges that:
(a) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to any Subsidiary Guarantor arising out of or in
connection with this Guaranty or any of the other Loan Documents, and the
relationship between the Subsidiary Guarantors, on the one hand, and the
Administrative Agent and Lenders, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(b) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Guarantors and the Lenders.
15
SECTION 4.16 Releases. At such time as the Guaranteed Obligations shall
have been paid in full and the Commitments have been terminated, this Guaranty
and all obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and each Subsidiary Guarantor hereunder
shall terminate, all without delivery of any instrument or performance of any
act by any party.
SECTION 4.17 Additional Guarantors. Each Subsidiary of the Borrower
that is required to become a party to this Guaranty pursuant to Section 9.11 of
the Credit Agreement shall become a Subsidiary Guarantor for all purposes of
this Guaranty upon execution and delivery by such Subsidiary of a supplement in
form and substance satisfactory to the Administrative Agent.
[Signature Pages to Follow]
16
IN WITNESS WHEREOF, each of the Subsidiary Guarantors has executed and
delivered this Guaranty under seal by their duly authorized officers, all as of
the day and year first above written.
ASSIGNMENT AMERICA, INC., as
Grantor and Issuer
By: /s/ Daniel Lewis
------------------------------
Name: Daniel Lewis
-----------------------
Title: Assistant Treasurer
----------------------
CROSS COUNTRY TRAVCORPS, INC., as
Grantor and Issuer
By: /s/ Joseph A. Boshart
------------------------------
Name: Joseph A. Boshart
-----------------------
Title: Vice President
----------------------
CROSS COUNTRY LOCAL, INC., as
Grantor and Issuer
By: /s/ Daniel Lewis
------------------------------
Name: Daniel Lewis
-----------------------
Title: Assistant Treasurer
----------------------
[Signature Pages Continue]
NOVAPRO, INC., as Grantor and Issuer
By: /s/ Daniel Lewis
----------------------------------
Name: Daniel Lewis
---------------------------
Title: Assistant Treasurer
--------------------------
TVCM, INC., as Grantor and Issuer
By: /s/ Daniel Lewis
----------------------------------
Name: Daniel Lewis
---------------------------
Title: Assistant Treasurer
--------------------------
CC STAFFING, INC., as
Grantor and Issuer
By: /s/ Emil Hensel
----------------------------------
Name: Emil Hensel
---------------------------
Title: President
--------------------------
CROSS COUNTRY CONSULTING, INC., as
Grantor and Issuer
By: /s/ Daniel Lewis
----------------------------------
Name: Daniel Lewis
---------------------------
Title: /s/ Assistant Treasurer
--------------------------
CEJKA SEARCH, INC., as
Grantor and Issuer
By: /s/ Daniel Lewis
----------------------------------
Name: Daniel Lewis
---------------------------
Title: Assistant Treasurer
--------------------------
[Signature Pages Continue]
CLINFORCE, INC., as Grantor and Issuer
By: /s/ Emil Hensel
----------------------------------
Name: Emil Hensel
---------------------------
Title: Vice President
--------------------------
CROSS COUNTRY EDUCATION, INC., as
Grantor and Issuer
By: /s/ Joseph A. Boshart
----------------------------------
Name: Joseph A. Boshart
---------------------------
Title: Vice President
--------------------------
MEDSTAFF, INC., as Grantor and Issuer
By: /s/ Joseph A. Boshart
----------------------------------
Name: Joseph A. Boshart
---------------------------
Title: Chief Executive Officer
--------------------------
CROSS COUNTRY CAPITAL, INC., as
Grantor and Issuer
By: /s/ Emil Hensel
----------------------------------
Name: Emil Hensel
---------------------------
Title: Vice President
--------------------------
HEALTHSTAFFERS, INC., as
Grantor and Issuer
By: /s/ Joseph A. Boshart
----------------------------------
Name: Joseph A. Boshart
---------------------------
Title: Chief Executive Officer
--------------------------
[Signature Pages Continue]
MCVT, INC., as Grantor and Issuer
By: /s/ Emil Hensel
----------------------------------
Name: Emil Hensel
---------------------------
Title: /s/ Vice President &
Chief Financial Officer
--------------------------
[Signature Pages Continue]
WACHOVIA BANK, NATIONAL ASSOCIATION
as Administrative Agent
By:/s/ Richard L. Nelson
-----------------------------------
Name: Richard L. Nelson
--------------------------------
Title: Vice President
-------------------------------