Exhibit 4.19
SECOND AMENDMENT TO CREDIT
AGREEMENT AND WAIVER
SECOND AMENDMENT TO CREDIT AGREEMENT
AND WAIVER, dated as of December 15, 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 by
that certain First Amendment to Credit Agreement and Waiver, dated
as of September 17, 2004 (as amended, supplemented or otherwise
modified from time to time, the “ Credit Agreement
”); and
WHEREAS, Borrowers have notified
Agent that OHI has failed to close its deposit, lockbox or other
accounts with Wachovia Bank, National Association on or before the
date that was forty-five (45) days after the Closing Date (the
“ Default ”); and
WHEREAS, Borrowers have requested
that Agent and Lender waive the 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 2.3 of
the Credit Agreement . Section 2.3 , Conditions
Subsequent to Initial Advances , of the Credit Agreement is
hereby amended as of the Second Amendment Effective Date (as
hereinafter defined) by deleting subsection 2.3(a) in its entirety
and by substituting the following in lieu thereof:
“(a) by December 31, 2004,
Borrowers shall deliver to Agent evidence that OHI has closed those
deposit, lockbox or other accounts with Wachovia Bank, National
Association and The Bank of New York listed on Disclosure
Schedule 2.3(a) and deliver to Agent an updated Disclosure
Schedule 3.19 , reflecting the absence of such
accounts;”
3. Amendment to Annex A to the
Credit Agreement . Annex A (“Definitions”)
to the Credit Agreement is hereby amended as of the Second
Amendment Effective Date by inserting the following definitions in
the appropriate alphabetical order:
““ Second
Amendment ” shall mean that certain Second Amendment to
Credit Agreement and Waiver Agreement dated as of December 15, 2004
by and among Borrowers, the other Credit Parties signatory thereto,
Lender and Agent.””
““ Second Amendment
Effective Date ” shall mean the Second Agreement
Effective Date as defined in Section 12 of the Second
Amendment.””
4. Amendments to Annex C to
Credit Agreement . Annex C (“Cash Management
System”) to the Credit Agreement is hereby amended as of the
Second Amendment Effective Date as follows:
(a) By deleting subsection (a) in
its entirety and by substituting the following in lieu
thereof:
“(a) On or before the Closing
Date and until the Termination Date, Credit Parties shall (i)
establish lock boxes (“ Lock Boxes ”) or at
Agent’s discretion, blocked accounts (“ Blocked
Accounts ”) at one or more of the banks set forth in
Disclosure Schedule 3.19 , and shall request in writing and
otherwise take such reasonable steps to ensure that all Accounts
Debtors forward payment directly to such Lock Boxes, and (ii)
deposit and cause its Subsidiaries to deposit or cause to be
deposited promptly, and in any event no later than the first
Business Day after the date of receipt thereof, all cash, checks,
drafts or other similar items of payment relating to or
constituting payments made in respect of any and all Collateral
(whether or not otherwise delivered to a Lock Box and including,
without limitation, all amounts deposited in any account held with
Wachovia Bank, National Association and The Bank of New York prior
to the closure of such accounts pursuant to Section 2.3(a)) into
one or more Blocked Accounts in such Credit Party’s name or
any such Subsidiary’s name and at a bank identified in
Disclosure Schedule 3.19 (each, a “ Relationship
Bank ”). On or before the Closing Date, Borrower
Representative shall have established one or more concentration
accounts in its name (each a “ Concentration Account
” and collectively, the “ Concentration Accounts
”) at the bank or banks that shall be designated as the
Concentration Account Bank for the Credit Parties in Disclosure
Schedule 3.19 (each a “ Concentration Account Bank
” and collectively, the “ Concentration Account
Banks ”), which banks shall be reasonably satisfactory to
Agent.”
(b) By deleting subsection (i) in
its entirety and by substituting the following in lieu
thereof:
“(i) (i) SMC shall not permit
the aggregate amount of funds credited to all of its accounts held
with Columbus Bank and Trust to exceed (A) $1,500,000.00 at any
time a Revolving Loan to, or for the benefit of, SMC is outstanding
and (B)
2
$2,600,000.00 at all other times
and, in each case, shall not allow any other Person to have a
control agreement on its accounts held with Columbus Bank and
Trust; (ii) the Credit Parties shall cause the aggregate funds in
each of the following accounts held with Wachovia Bank, National
Association to be transferred via wire transfer to a Blocked
Account on each Business Day: 2080000696461, 2079930005502,
2020000451174, 2079930006433, 2020000436364 and 2020000439963; and
(iii) the Credit Parties shall not have deposits in any deposit
accounts or securities accounts (except deposits in the accounts
set forth on Disclosure Schedule 2.3 prior to the closure of
such accounts pursuant to Section 2.3 and deposits in any accounts
held with Wachovia Bank, National Association prior to the transfer
thereof pursuant to clause (ii) hereof ) in excess of $75,000 in
any account or $150,000 in the aggregate outstanding at any one
time unless the applicable securities intermediary or bank, the
applicable Credit Party and Agent, for the benefit of itself and
Lenders, have entered into a tri-party blocked account agreement,
in form and substance reasonably acceptable to Agent, as may be
necessary to perfect (and further establish) the Agent’s
Liens in such deposit accounts or securities
accounts.”
5. Amendment to Disclosure
Schedule 2.3(a) . Disclosure Schedule 2.3(a) is hereby
amended as of the Second Amendment Effective Date by deleting such
Disclosure Schedule in its entirety and by substituting the
Disclosure Schedule 2.3(a) attached to this Amendment as
Annex A in lieu thereof.
6. Amendment to Disclosure
Schedule 3.19 . Disclosure Schedule 3.19 is hereby
amended as of the Second Amendment Effective Date by deleting such
Disclosure Schedule in its entirety and by substituting the
Disclosure Schedule 3.19 attached to this Amendment as Annex
B in lieu thereof.
7. Waivers . Upon the Second
Amendment Effective Date, the Agent hereby waives the Default
caused by the Borrowers’ failure to comply with Section
2.3(a) of the Credit Agreement solely until December 31, 2004;
provided , however , that the foregoing waiver shall
not waive Borrowers’ agreement to be bound by Section
2.3(a) as amended hereby.
8. 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
