Exhibit 10.1
EXECUTION VERSION
THIRD LIMITED
WAIVER
TO AMENDED AND
RESTATED
CREDIT AGREEMENT
THIS THIRD LIMITED
WAIVER , dated as of May
13, 2005 (the “ Waiver ”), to that certain
Amended and Restated Credit Agreement, dated as of September 3,
2003, is made among MQ ASSOCIATES, INC., a Delaware corporation
(“ Holdings ”), MEDQUEST, INC., a Delaware
corporation (the “ Borrower ”), the Lenders (as
defined in the Credit Agreement defined below) identified on the
signature pages hereto, and WACHOVIA BANK, NATIONAL ASSOCIATION
(“ Wachovia ”), as administrative agent for the
Lenders (in such capacity, the “ Administrative Agent
”).
RECITALS
A.
Holdings, the Borrower, the Lenders,
Chase Lincoln First Commercial Corporation, as Syndication Agent,
Wachovia and General Electric Capital Corporation, as
Co-Documentation Agents, and Wachovia as Administrative Agent, are
parties to an Amended and Restated Credit Agreement, dated as of
September 3, 2003 (as amended, supplemented, restated or otherwise
modified from time to time, the “ Credit Agreement
”), providing for the availability of certain credit
facilities to the Borrower upon the terms and conditions set forth
therein. Capitalized terms used herein without definition
shall have the meanings given to them in the Credit
Agreement.
B.
Pursuant to that certain Limited
Waiver and Agreement, dated as of February 14, 2005 (the “
First Waiver ”), among the parties hereto, the
Required Lenders (i) temporarily waived the Specified Defaults (as
defined in the First Waiver), (ii) permanently waived the Section
6.2(c) Default (as defined in the First Waiver) and (iii) extended
the deadline for delivery of the 2005 Projections (as defined in
the First Waiver).
C.
Pursuant to that certain Second
Limited Waiver and Second Amendment, dated as of March 30, 2005
(the “ Second Waiver ”), among the parties
hereto, the Required Lenders (i) temporarily waived the Second
Waiver Specified Defaults (as defined in the Second Waiver), and
(ii) extended the deadline for delivery of the 2005 Projections (as
defined in the First Waiver), which projections were delivered on
May 11, 2005.
D.
Holdings and the Borrower have
advised the Administrative Agent and the Lenders that the Second
Waiver Specified Defaults are, or may be, continuing.
E.
Holdings and the Borrower have
requested that the Administrative Agent and the Lenders agree to
temporarily waive the Third Waiver Specified Defaults (as defined
below) until June 30, 2005, subject to the terms and conditions of
this Waiver.
F.
The Administrative Agent and the
Lenders party to this Waiver are agreeable to the request of
Holdings and the Borrower under the circumstances referred to below
and on the terms and conditions set forth below.
STATEMENT OF
AGREEMENT
NOW, THEREFORE,
in consideration of the foregoing
and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1.
Waivers . In reliance upon the representations,
warranties and agreements made by Holdings and the Borrower in this
Waiver, each of the Lenders and the Administrative Agent hereby
temporarily (i) waives (I) the Second Waiver Specified Defaults and
(II) one of more Defaults and/or Events of Default that may have
occurred and may be continuing, or that may occur, with respect to
(y) the covenant to deliver a copy of the unaudited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as
at the end of the fiscal quarter ended March 31, 2005, and the
related unaudited consolidated statements of income and cash flows
for such fiscal quarter and the portion of the fiscal year through
the end of such fiscal quarter, within 45 days after the end of
such fiscal quarter, as required by Section 6.1(b) of the Credit
Agreement, and/or (z) the failure to give notice of any such
Default and/or Event of Default listed in clause (y) or any
representation or warranty made or deemed made by Holdings and the
Borrower that no such Default or Event of Default has occurred ((I)
and (II), collectively, the “ Third Waiver Specified
Defaults ”) and (ii) agrees that, for the purposes of
Section 5(c) hereof and, solely in connection with any borrowing of
Revolving Loans or Swingline Loans or issuance of Letters of Credit
as permitted under clause (2) below, for purposes of Section 5.2(a)
of the Credit Agreement, any effect that the Accounting Matter (as
defined to in the First Waiver) has had or may have on any
financial statements or other information of Holdings, the Borrower
and their Subsidiaries previously delivered to the Administrative
Agent and the Lenders or any related representations and warranties
made or deemed made by any Loan Party in or pursuant to the Loan
Documents shall be disregarded; provided that (1) the
foregoing waivers and agreements are effective only until, and
shall expire automatically (without any further action by or notice
to or from the Administrative Agent or any Lender) upon, the
earliest to occur of (A) June 30, 2005, (B) delivery by the
Borrower to the Administrative Agent and the Lenders of audited
financial statements for the year ending December 31, 2004 as
required by Section 6.1(a) of the Credit Agreement together with
the certificates and other information as required by Sections
6.2(a) and 6.2(b) of the Credit Agreement, (C) the occurrence of
any Default or Event of Default (including, without limitation, the
failure of the Borrower to comply with Section 6 hereof) other than
the Third Waiver Specified Defaults and (D) the requisite holders
(or trustee, as may be applicable) under any indenture, agreement
or instrument evidencing Indebtedness for borrowed money in an
outstanding principal amount greater than $2,000,000 take any
action (including, without limitation, the enforcement of
performance of the terms of such indenture, agreement or
instrument) with respect to any event of default that may have
occurred or may occur under such indenture, agreement or instrument
(the “ Waiver Period ”), and (2) as a continuing
condition to the effectiveness of such waiver and agreement,
the
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Borrower agrees that the aggregate amount of all
borrowings of Revolving Loans and/or Swingline Loans (excluding any
Revolving Loans to the extent the proceeds thereof are used to
refund outstanding Swingline Loans) made, together with the
aggregate amount of all Letters of Credit issued, during the period
from the Effective Date (as defined below) until the expiration of
the Waiver Period, will not exceed the aggregate amount at any time
outstanding of the Revolving Loans and/or Swingline Loans
outstanding, together with the aggregate amount of all Letters of
Credit issued, on March 23, 2005 plus $5,000,000; provided ,
further , that the limited duration of this Waiver shall not
be taken into consideration when determining whether, at any time
during the Waiver Period, a Default has occurred under the Credit
Agreement.
2.
Excess Cash
. If as of the close of any
Business Day during the Waiver Period, the aggregate cash on-hand
of the Borrower and all other Group Members exceeds $8.5 million,
the Borrower shall promptly pay to the Administrative Agent in
reduction of outstanding Revolving Loans all such amounts in excess
of $8.5 million; provided , however , that such
repayments shall not permanently reduce the Revolving Commitment or
the aggregate amount of Revolving Loans and/or Swingline Loans,
together with the aggregate amount of all Letters of Credit issued,
permitted to be outstanding pursuant to the terms of Section 2(a)
of this Waiver; provided , further , that the
Administrative Agent and the Borrower shall use commercially
reasonable efforts to minimize any loss or expense payable by the
Borrower under Section 2.20 of the Credit Agreement as a result of
the making of a prepayment of Eurodollar Loans on a day that is not
the last day of an Interest Period with respect thereto ( it
being understood and agreed that such efforts may include the
deposit by the Borrower of amounts required to be repaid pursuant
to this Section 3 into a segregated account as determined by the
Administrative Agent, and applied to repay Eurodollar Loans as and
when the applicable Interest Periods expire).
3.
Limitations
. Notwithstanding anything in
the Credit Agreement to the contrary, during the Waiver Period, the
Borrower:
(a)
shall not, with respect to any
Eurodollar Loan, permit the Interest Period to end beyond one month
after the borrowing or conversion date thereof;
(b)
shall not permit to be extended any
Incremental Term Loans;
(c)
agrees that clauses (x) and (y) of
the first proviso to Section 2.11(d) of the Credit Agreement shall
not apply;
(d)
shall not permit any Restricted
Payment to be made other than (i) dividends to Holdings to permit
Holdings to pay corporate overhead expenses incurred in the
ordinary course of business not to exceed $25,000 in the aggregate
and pay any taxes that are due and payable by Holdings and the
Borrower as part of a consolidated group and (ii) Restricted
Payments otherwise permitted under Sections 7.6(a) and (d) of the
Credit Agreement; and
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(e)
shall not permit to be made any
Investments of the type permitted under Section 7.7(g) of the
Credit Agreement other than such Investments listed on Schedule
4(e) hereto (which Investments shall be permitted under Section
7.7(g) regardless of whether they comply with the requirements set
forth in clauses (iii) and (viii) of such Section
7.7(g)).
4.
Representations and
Warranties . In
order to induce the Administrative Agent and the Lenders to enter
into this Waiver, each of Holdings and the Borrower hereby
represents and warrants to the Administrative Agent and the Lenders
as of the date hereof that:
(a)
this Waiver has been duly executed
and delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms,
except as enforceability may
