EXHIBIT 10.14
[FORM OF] INDEMNITY, SUBROGATION and CONTRIBUTION AGREEMENT
(together with instruments executed and delivered pursuant to Section
12, the "Agreement") dated as of July 29, 1999, among CROSS COUNTRY
TRAVCORPS, INC., a Delaware corporation (the "Borrower"), each
subsidiary of the Borrower listed on Schedule I hereto (the "Subsidiary
Guarantors" or, the "Guarantors") and CITICORP USA, INC. ("Citicorp"),
as collateral agent (in such capacity, the "Collateral Agent") for the
Obligees (as defined in the Credit Agreement referred to below).
Reference is made to (a) the Credit Agreement dated as of July 29,
1999, as amended and restated as of December 16, 1999 and March 16, 2001 (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), among the Borrower, the Lenders (as defined in Article I thereof),
Xxxxxxx Xxxxx Xxxxxx Inc., as arranger (in such capacity, the "ARRANGER"),
Citicorp, as administrative agent for the Lenders (in such capacity, the
"ADMINISTRATIVE AGENT"), as Collateral Agent, as issuing bank (in such capacity,
the "ISSUING BANK") and as swingline lender (in such capacity, the "SWINGLINE
LENDER"), Bankers Trust Company, as syndication agent (the "SYNDICATION AGENT"),
and Wachovia Bank, N.A., as documentation agent (the "DOCUMENTATION AGENT") and
(b) the form of Subsidiary Guarantee Agreement annexed to the Credit Agreement
as Exhibit G (as amended, supplemented or otherwise modified from time to time,
the "SUBSIDIARY GUARANTEE AGREEMENT") and the Collateral Documents referred to
in the Credit Agreement. Capitalized terms used herein and not defined herein
are used with the meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower, and the Issuing
Bank has agreed to issue Letters of Credit for the account of the Borrower,
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. The Guarantors have guaranteed such Loans and the other
Obligations (as defined in the Credit Agreement) of the Borrower under the
Credit Agreement pursuant to the Subsidiary Guarantee Agreement and have granted
Liens on and security interests in certain of their assets pursuant to the
Collateral Documents to secure the Obligations, including in the case of the
Guarantors, such guarantees. The obligations of the Lenders to make Loans and of
the Issuing Bank to issue Letters of Credit are conditioned on, among other
things, the execution and delivery by the Borrower and the Guarantors of an
agreement in the form hereof.
Accordingly, the Borrower, each Guarantor and the Collateral Agent
agree as follows:
SECTION 1. INDEMNITY AND SUBROGATION. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law (but
subject to Section 3), the Borrower agrees that (a) in the event a payment shall
be made by any Guarantor under the Subsidiary Guarantee Agreement, the Borrower
shall indemnify such Guarantor for the full amount of such payment and, until
such indemnification obligation shall have been satisfied, such Guarantor shall
be subrogated to the rights of the person to whom such payment shall have been
made to the extent of such payment and (b) in the event any assets of any
Guarantor shall be sold pursuant to any Collateral Documents to satisfy a claim
of any Obligee, the Borrower shall indemnify such Guarantor in an amount equal
to the greater of the book value or the fair market value of the assets so sold.
SECTION 2. CONTRIBUTION AND SUBROGATION. Each Guarantor (a
"CONTRIBUTING GUARANTOR") agrees (subject to Section 3) that, in the event a
payment shall be made by any Guarantor under the Subsidiary Guarantee Agreement
or assets of any other Guarantor shall be sold pursuant to any Credit Document
to satisfy a claim of any Obligee, and, in either case, such other Guarantor
(the "CLAIMING GUARANTOR") shall not have been fully indemnified by the Borrower
as provided in Section 1, the Contributing Guarantor shall, to the extent the
Claiming Guarantor shall not have been so indemnified by the Borrower, indemnify
the Claiming Guarantor in an amount equal to the amount of such payment or the
fair market value of such assets, as the case may be, in each case multiplied by
a fraction of which the numerator shall be the net worth of the Contributing
Guarantor on the date hereof (or, in the case of any Guarantor becoming a party
hereto pursuant to Section 12, the date of the Supplement hereto executed and
delivered by such Guarantor) and the denominator shall be the aggregate net
worth of all the Guarantors on the date hereof (or, in the case of any Guarantor
becoming a party hereto pursuant to Section 12, the date of the Supplement
hereto executed and delivered by such Guarantor). Any Contributing Guarantor
making any payment to a Claiming Guarantor pursuant to this Section 2 shall be
subrogated to the rights of such Claiming Guarantor under Section 1 to the
extent of such payment.
SECTION 3. SUBORDINATION. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors under Sections 1 and 2
and all other rights of indemnity, contribution or subrogation under applicable
law or otherwise shall be fully subordinated to the indefeasible payment in full
in cash of the Obligations. No failure on the part of the Borrower or any
Guarantor to make the payments required by Sections 1 and 2 (or any other
payments required under applicable law or otherwise) shall in any respect limit
the obligations and liabilities of any Guarantor with respect to its obligations
hereunder, and each Guarantor shall remain liable for the full amount of the
obligations of such Guarantor hereunder.
SECTION 4. TERMINATION. This Agreement shall survive and be in full
force and effect so long as any Obligation is outstanding and has not been
indefeasibly paid in full in cash, the L/C Exposure has not been reduced to zero
or any of the Commitments under the Credit Agreement have not been terminated,
and shall continue to be effective or be reinstated, as the case may be, if at
any time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by any Obligee or any Guarantor upon the bankruptcy or
reorganization of the Borrower, any Guarantor or otherwise.
SECTION 5. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. NO WAIVER; AMENDMENT. (a) No failure on the part of the
Collateral Agent or any Guarantor to exercise, and no delay in exercising, any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right, power or remedy by the
Collateral Agent or any Guarantor preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by law. None of
the Collateral Agent and the Guarantors shall be deemed to have waived any
rights hereunder unless such waiver shall be in writing and signed by such
parties.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Borrower, the
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Guarantors and the Collateral Agent, with the prior written consent of the
Required Lenders (except as otherwise provided in the Credit Agreement).
SECTION 7. NOTICES. All communications and notices hereunder shall be
in writing and given as provided in the Credit Agreement or the Subsidiary
Guarantee Agreement, as applicable, and addressed as specified therein.
SECTION 8. BINDING AGREEMENT; ASSIGNMENTS. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the parties that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns. Neither the Borrower nor any Guarantor may assign or transfer any of
its rights or obligations hereunder (and any such attempted assignment or
transfer shall be void) without the prior written consent of the Required
Lenders. Notwithstanding the foregoing, at the time any Guarantor is released
from its obligations under the Subsidiary Guarantee Agreement in accordance with
such Subsidiary Guarantee Agreement and the Credit Agreement, such Guarantor
will cease to have any rights or obligations under this Agreement with respect
to any payments made or assets sold after the date of such release.
SECTION 9. SURVIVAL OF AGREEMENT; SEVERABILITY. (a) All covenants and
agreements made by the Borrower and each Guarantor herein and in the
certificates or other instruments prepared or delivered in connection with this
Agreement or the other Credit Documents shall be considered to have been relied
upon by the Collateral Agent, the other Obligees and each Guarantor, shall
survive the making by the Lenders of the Loans and the issuance of the Letters
of Credit by the Issuing Bank and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loans or any other fee
or amount payable under the Credit Agreement, this Agreement or any of the other
Credit Documents is outstanding and unpaid, the L/C Exposure does not equal zero
or the Commitments have not been terminated.
(b) In case any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, no
party hereto shall be required to comply with such provision for so long as such
provision is held to be invalid, illegal or unenforceable, but the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby. The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 10. COUNTERPARTS. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement shall be effective with
respect to any Guarantor when a counterpart bearing the signature of such
Guarantor shall have been delivered to the Collateral Agent. Delivery of an
executed signature page to this Agreement by facsimile transmission shall be as
effective as delivery of a manually signed counterpart of this Agreement.
SECTION 11. RULES OF INTERPRETATION. The rules of interpretation
specified in Section 1.02 of the Credit Agreement shall be applicable to this
Agreement.
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SECTION 12. ADDITIONAL SUBSIDIARY GUARANTORS. Pursuant to Section 5.10
of the Credit Agreement, each Domestic Subsidiary that was not in existence on
the Second Restatement Closing Date is required to enter into this Agreement as
a Subsidiary Guarantor upon becoming such a Subsidiary. Upon execution and
delivery, after the date hereof, by the Collateral Agent and such a Subsidiary
of an instrument in the form of Annex 1 hereto, such Subsidiary shall become a
Subsidiary Guarantor hereunder with the same force and effect as if originally
named as a Subsidiary Guarantor hereunder. The execution and delivery of any
instrument adding an additional Subsidiary Guarantor as a party to this
Agreement shall not require the consent of any Guarantor hereunder. The rights
and obligations of each Guarantor hereunder shall remain in full force and
effect notwithstanding the addition of any new Subsidiary Guarantor as a party
to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first appearing above.
CROSS COUNTRY TRAVCORPS, INC.,
by
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Name:
Title:
CITICORP USA, INC., as Collateral Agent,
by
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Name:
Title:
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SCHEDULE I
to the Indemnity, Subrogation
and Contribution Agreement
SUBSIDIARY GUARANTORS
Annex 1 to
the Indemnity, Subrogation and
Contribution Agreement
SUPPLEMENT NO. (this "SUPPLEMENT") dated as of , to the
Indemnity, Subrogation and Contribution Agreement dated as of July 29,
1999, (as the same may be amended, supplemented or otherwise modified
from time to time, the "INDEMNITY, SUBROGATION AND CONTRIBUTION
AGREEMENT"), among CROSS COUNTRY TRAVCORPS, INC., a Delaware
corporation (the "BORROWER"), each subsidiary of the Borrower listed on
Schedule I thereto (the "SUBSIDIARY GUARANTORS" or, the "GUARANTORS")
and CITICORP USA, INC. ("CITICORP"), as collateral agent (the
"COLLATERAL AGENT") for the Obligees (as defined in the Credit
Agreement referred to below).
A. Reference is made to (a) the Credit Agreement dated as of July 29,
1999, as amended and restated as of December 16, 1999 and March 16, 2001 (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
Agreement"), among the Borrower, the Lenders (as defined in Article I thereof),
Xxxxxxx Xxxxx Barney Inc., as arranger (in such capacity, the "ARRANGER"),
Citicorp, as administrative agent for the Lenders (in such capacity, the
"ADMINISTRATIVE AGENT"), as Collateral Agent, as issuing bank (in such capacity,
the "ISSUING BANK") and as swingline lender (in such capacity, the "SWINGLINE
LENDER"), Bankers Trust Company, as syndication agent (the "SYNDICATION Agent"),
and Wachovia Bank, N.A., as documentation agent (the "DOCUMENTATION AGENT") and
(b) the form of Subsidiary Guarantee Agreement annexed to the Credit Agreement
as Exhibit G (as amended, supplemented or otherwise modified from time to time,
the "SUBSIDIARY GUARANTEE AGREEMENT") and the Collateral Documents referred to
in the Credit Agreement.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Indemnity, Subrogation and
Contribution Agreement and the Credit Agreement.
C. The Borrower and the Guarantors have entered into the Indemnity,
Subrogation and Contribution Agreement in order to induce the Lenders to make
Loans and the Issuing Bank to issue Letters of Credit. Pursuant to Section 5.10
of the Credit Agreement, each Subsidiary, other than a Foreign Subsidiary, that
was not in existence or not such a Subsidiary on the Second Restatement Closing
Date is required to enter into the Indemnity, Subrogation and Contribution
Agreement as a Subsidiary Guarantor upon becoming a Subsidiary. Section 12 of
the Indemnity, Subrogation and Contribution Agreement provides that additional
Subsidiaries may become Subsidiary Guarantors under the Indemnity, Subrogation
and Contribution Agreement by execution and delivery of an instrument in the
form of this Supplement. The undersigned Subsidiary (the "NEW GUARANTOR") is
executing this Supplement in accordance with the requirements of the Credit
Agreement to become a Subsidiary Guarantor under the Indemnity, Subrogation and
Contribution Agreement in order to induce the Lenders to make additional Loans
and the Issuing Bank to issue additional Letters of Credit and as consideration
for Loans previously made and Letters of Credit previously issued.
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Accordingly, the Collateral Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 12 of the Indemnity, Subrogation
and Contribution Agreement, the New Guarantor by its signature below becomes a
Subsidiary Guarantor under the Indemnity, Subrogation and Contribution Agreement
with the same force and effect as if originally named therein as a Subsidiary
Guarantor and the New Guarantor hereby agrees to all the terms and provisions of
the Indemnity, Subrogation and Contribution Agreement applicable to it as a
Subsidiary Guarantor thereunder. Each reference to a "GUARANTOR" in the
Indemnity, Subrogation and Contribution Agreement shall be deemed to include the
New Guarantor. The Indemnity, Subrogation and Contribution Agreement is hereby
incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the Collateral
Agent and the other Obligees that this Supplement has been duly authorized,
executed and delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Guarantor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Indemnity,
Subrogation and Contribution Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Indemnity, Subrogation and Contribution Agreement shall not in
any way be affected or impaired. The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 7 of the Indemnity, Subrogation and
Contribution Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it at the address set forth under its signature.
SECTION 8. The New Guarantor agrees to reimburse the Collateral Agent
for its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
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IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have
duly executed this Supplement to the Indemnity, Subrogation and Contribution
Agreement as of the day and year first above written.
[NAME OF NEW GUARANTOR],
by
-----------------------------------
Name:
Title:
Address:
CITICORP USA, INC., as Collateral
Agent,
by
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Name:
Title:
SCHEDULE I
to Supplement No.___ to the Indemnity,
Subrogation and Contribution Agreement
SUBSIDIARY GUARANTORS
