Exhibit 4.18
FIRST AMENDMENT TO CREDIT
AGREEMENT AND WAIVER
FIRST AMENDMENT TO CREDIT AGREEMENT
AND WAIVER, dated as of September 17, 2004 (this “
Amendment ”), to the Credit Agreement referred to
below by and among ONESOURCE HOLDINGS, INC., a Delaware corporation
(“ OHI ”), SOUTHERN MANAGEMENT CO., an Alabama
partnership (“ SMC ”), and each of OHI’s
Subsidiaries identified on the signature pages hereof (such
Subsidiaries, together with OHI and SMC are sometimes collectively
referred to herein as “ Borrowers ” and
individually as a “ Borrower ”); the other
Credit Parties signatory hereto; GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation, for itself, as Lender (in such
capacity, “ Lender ”), and as Agent for Lenders
(in such capacity “ Agent ”).
W I T N E S S E T H
WHEREAS, Borrowers, the other Credit
Parties signatory thereto, Lender and Agent are parties to that
certain Credit Agreement, dated as of March 17, 2004 (as amended,
supplemented or otherwise modified from time to time, the “
Credit Agreement ”); and
WHEREAS, at various times from
August 30, 2004 through the First Amendment Effective Date (the
“ Waiver Period ”), Borrowers failed to maintain
Borrowing Availability of at least $2,000,000 as required by
Section 6.10 of the Credit Agreement (the “
Covenant Default ”); and
WHEREAS, Borrowers have requested
that Agent and Lender waive the Covenant Default and make certain
amendments to the Credit Agreement and Agent and Lender are willing
to do so in the manner, and on the terms and conditions, provided
for herein;
NOW THEREFORE, in consideration of
the premises and for other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged,
Borrowers, Lender and Agent hereby agree as follows:
1. Definitions . Capitalized
terms not otherwise defined herein shall have the meanings ascribed
to them in the Credit Agreement as amended hereby.
2. Amendment to Section
1.1(a)(iii) of the Credit Agreement . Section
1.1(a)(iii) of the Credit Agreement is hereby amended as of the
First Amendment Effective Date by deleting the last sentence of
that subsection and by substituting the following in lieu
thereof:
“The authority of Agent to
make Overadvances is limited to an aggregate amount not to exceed
(x) $2,000,000 at any time during the period commencing on the
First Amendment Effective Date and ending on the date that is 30
days thereafter and (y) $550,000 at all other times, shall not
cause the aggregate Revolving Loan to exceed the Maximum Amount,
and may be revoked prospectively by a written notice to Agent
signed by Lenders holding more than 50% of the
Commitments.”
3. Amendment to Annex A to the
Credit Agreement . Annex A (“Definitions”)
to the Credit Agreement is hereby amended as of the First Amendment
Effective Date by inserting the following definitions in the
appropriate alphabetical order:
“ First Amendment
’ shall mean that certain First Amendment to Credit Agreement
and Waiver Agreement dated as of September 17, 2004 by and among
Borrowers, the other Credit Parties signatory thereto, Lender and
Agent.”
“ First Amendment Effective
Date ’ shall mean the First Agreement Effective Date as
defined in Section 10 of the First Amendment.”
4. Amendment to Annex E to the
Credit Agreement . Annex E (“Financial Statements
and Projections – Reporting”) to the Credit Agreement
is hereby amended as of the First Amendment Effective Date by
inserting the following as subsection (o):
“(o) Weekly . To Agent,
by Tuesday of each week subsequent to any week in which the
Borrowers shall fail to maintain Borrowing Availability of at least
$2,000,000 at any time, 90-day cash balance and availability
forecast prepared on the same basis and in similar detail as that
on which operating results are reported and representing
management’s good faith estimates of future financial
performance based on historical performance.”
5. Waivers . Upon the First
Amendment Effective Date, the Agent hereby waives the Covenant
Default caused by the Borrowers’ failure to comply with
Section 6.10 of the Credit Agreement solely during the
Waiver Period.
6. Representations and
Warranties . To induce Lender and Agent to enter into this
Amendment, each Borrower hereby represents and warrants
that:
(a) The execution, delivery and
performance by such Borrower of this Amendment are within such
Borrower’s corporate power and have been duly authorized by
all necessary corporate, partnership and shareholder
action.
(b) This Amendment has been duly
executed and delivered by or on behalf of such Borrower.
(c) This Amendment constitutes a
legal, valid and binding obligation of such Borrower enforceable
against such Borrower in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors’ rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity
or at law).
(d) No Default has occurred and is
continuing after giving effect to this Amendment.
(e) No action, claim or proceeding
is now pending or, to the knowledge of such Borrower, threatened
against any Borrower, at law, in equity or otherwise, before any
court, board, commission, agency or instrumentality of any federal,
state, or local
2
government or of any agency or
subdivision thereof, or before any arbitrator or panel of
arbitrators, (i) which challenges any Borrower’s right,
power, or competence to enter into this Amendment or, to the extent
applicable, perform any of its obligations under this Amendment,
the Credit Agreement as amended hereby or any other Loan Document,
or the validity or enforceability of this Amendment, the Credit
Agreement as amended hereby or any other Loan Document or any
action taken under this Amendment, the Credit Agreement as amended
hereby or any other Loan Document or (ii) which, if determined
adversely, is reasonably likely to have or result in a Material
Adverse Effect after giving effect to this Amendment. To the
knowledge of each Borrower, there does not exist a state of facts
that is reasonably likely to give rise to such
proceedings.
7. No Oth
