EXHIBIT 10.18
SECOND AMENDMENT AND CONSENT
SECOND AMENDMENT AND CONSENT, dated as of October 12, 2001 (this
"Amendment"), to the Credit Agreement, dated as of October 25, 1999 (as amended,
supplemented or otherwise modified prior to the date hereof, the "Credit
Agreement"), among UNIVERSAL HOSPITAL SERVICES, INC., a Minnesota corporation
(the "Borrower"), the several lenders from time to time parties thereto (the
"Lenders"), KEY CORPORATE CAPITAL INC., as collateral agent, XXXXXX FINANCIAL
INC., as syndication agent, CANADIAN IMPERIAL BANK OF COMMERCE, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"), and CIBC WORLD MARKETS CORP., as lead arranger and book manager
thereunder. Capitalized terms not otherwise defined herein shall have the same
meanings as specified therefor in the Credit Agreement.
RECITALS
The Borrower has requested that the Administrative Agent and the
Lenders consent to the acquisition by the Borrower of all of the Capital Stock
of Narco Medical Systems, Inc. ("Narco"), and, subject to certain conditions, to
agree to amend the Credit Agreement as set forth in this Amendment, and the
Administrative Agent and the Lenders are willing to give such consent and to
agree to such amendments, but only on the terms and subject to the conditions
set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrower, the Administrative Agent and the Lenders hereby
agree as follows:
1. Consent. On and as of the Consent Effective Date (as hereinafter
defined), notwithstanding the provisions of Section 9.9 of the Credit Agreement
to the contrary, the Administrative Agent and each of the Lenders hereby consent
to the acquisition by the Borrower or a wholly-owned Domestic Subsidiary of the
Borrower of all of the Capital Stock of Narco (the "Narco Acquisition");
provided that:
(a) The purchase price for the Narco Acquisition shall be payable
solely in cash and shall not exceed $8,500,000 in the aggregate
(subject to adjustment for changes in net assets provided for in the
Narco Acquisition Documents);
(b) The Administrative Agent shall have received, with a copy for
each Lender, not later than October 15, 2001, substantially final
drafts of the stock purchase agreement and related material acquisition
documents pertaining to the Narco Acquisition and such drafts shall be
acceptable to the Administrative Agent in all respects, and the
definitive versions of such stock purchase and related material
acquisition documents shall be executed and delivered in the form of
such drafts with no material amendments or material modifications
thereto, except to the extent approved by the Administrative Agent
(such definitive stock purchase agreement and related acquisition
documents, the "Narco Acquisition Documents");
(c) The Administrative Agent shall be reasonably satisfied with
all material certificates, opinions and other material documents
delivered in connection with to the Narco Acquisition Documents and all
legal matters related to the Narco Acquisition;
(d) The Narco Acquisition shall be consummated on the terms and
conditions set forth in the Narco Acquisition Documents without any
amendment, waiver or modification thereto, except to the extent
approved by the Administrative Agent;
(e) The Narco Acquisition shall be consummated on or prior to
November 15, 2001;
(f) Concurrently with the consummation of the Narco Acquisition,
each of the requirements set forth in Section 8.11 of the Credit
Agreement shall be satisfied;
(g) The Narco Acquisition shall satisfy the requirements set forth
in clauses (i), (ii), (iii), (v) and (vi) of the definition of
"Permitted Acquisition" set forth in the Credit Agreement as if the
Narco Acquisition were an acquisition referred to in such definition
(it being agreed that it shall not be a requirement of the consent
provided in this Section 1 of this Amendment that the Narco Acquisition
satisfy the requirements set forth in clause (iv) of the definition of
"Permitted Acquisition", and that the consummation of the Narco
Acquisition shall not affect the calculations of consideration under
such clause (iv) of the definition of "Permitted Acquisition" in
respect of any Permitted Acquisitions); and
(h) Either (i) the Initial Public Offering shall have been
consummated prior to October 31, 2001, or (ii) the Increase Effective
Date shall have occurred.
2. Amendments to Credit Agreement. On the Increase Effective Date (and
only if the Increase Effective Date occurs), the Credit Agreement shall be
hereby amended as follows:
(a) Section 5.5(c) of the Credit Agreement shall be amended by
deleting subsection (i) thereof in its entirety and substituting in
lieu thereof the following:
"(i) 100% of the Net Proceeds of any sale or issuance of debt
securities, and 75% of the Net Proceeds of any sale or issuance of
any equity securities, in either case by the Borrower or any
Subsidiary, whether in a public offering, a private placement or
otherwise, but excluding any equity investment made by X.X. Childs
or its Affiliates, its limited partners or the limited partners of
its Affiliates, any equity investment made by any officer or
employee of the Borrower pursuant to the Shareholder Agreement or
any stock option plan, and any equity investment made by the
selling parties in connection with a Permitted Acquisition,
provided
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that in connection with the Initial Public Offering, the Borrower
shall prepay the Revolving Credit Loans in an amount equal to the
lesser of (i) the amount of Revolving Credit Loans outstanding and
(ii) 75% of the Net Proceeds of the Initial Public Offering, and
shall reduce the Revolving Credit Commitments in an amount equal
to 60% of the Net Proceeds of the Initial Public Offering,".
(b) The Credit Agreement is hereby amended by deleting Schedule 1
in its entirety and inserting in lieu thereof the new Schedule 1
attached hereto.
3. Effectiveness.
(a) Consent Effectiveness. The effectiveness of this Amendment and
the consent provided for in Section 1 of this Amendment is subject to
the satisfaction of the following conditions precedent (the date of
such satisfaction, the "Consent Effective Date"):
(i) the receipt by the Administrative Agent of this
Amendment duly executed and delivered by duly authorized officers
of the Borrower, the Administrative Agent and the Required
Lenders;
(ii) the receipt by the Administrative Agent of any other
documents relating hereto or to the Narco Acquisition that the
Administrative Agent shall reasonably request prior to such date;
(iii) after giving effect to the consent provided for in
Section 1 hereof, the representations and warranties contained in
the Credit Agreement and in the other Loan Documents will be true
and correct in all material respects as if made on and as of the
Consent Effective Date and no Default or Event of Default will
have occurred and be continuing.
(b) Increase Effectiveness. The effectiveness of the amendments to
the Credit Agreement provided for in Section 2 of this Amendment shall
occur on October 31, 2001, subject to the satisfaction of the following
conditions precedent (such date, upon satisfaction of such conditions,
the "Increase Effective Date"):
(i) the Consent Effective Date shall have occurred;
(ii) the receipt by the Administrative Agent of this
Amendment duly executed and delivered by duly authorized officers
of Lenders having Credit Exposure Percentages aggregating at least
66 2/3% and of the New Lender (as defined below);
(iii) the receipt by the Administrative Agent of any other
documents relating hereto that the Administrative Agent shall
reasonably request prior to such date;
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(iv) the receipt by the Administrative Agent for the
account of the New Lender of a Revolving Note conforming to the
requirements of the Credit Agreement payable to New Lender in the
principal amount of $10,000,000 and executed and delivered by a
duly authorized officer of the Borrower;
(v) the receipt by the Administrative Agent, with a
counterpart for each Lender and the New Lender, a certificate of
each Loan Party existing as of the Increase Effective Date, dated
the Increase Effective Date, substantially in the form of Exhibit
G to the Credit Agreement or other form satisfactory to the
Administrative Agent, with appropriate insertions and attachments,
satisfactory in form and substance to the Administrative Agent,
executed by the President or any Vice President and the Secretary
or any Assistant Secretary of such Loan Party; including without
limitation (A) attachment of true and complete copies of the
articles of incorporation and by-laws of each Loan Party existing
as of the Increase Effective Date, certified as of the Increase
Effective Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of such Loan Party, (B) a copy
of the resolutions, in form and substance satisfactory to the
Administrative Agent, of the Board of Directors of each Loan Party
existing as of the Increase Effective Date authorizing (i) the
execution, delivery and performance of this Amendment and the
other Loan Documents to which it is a party, (ii) the borrowings
contemplated hereunder and (iii) the granting or continuation by
it of the Liens created pursuant to the Security Documents,
certified by the Secretary or an Assistant Secretary of such Loan
Party as of the Increase Effective Date, which certificate shall
be in form and substance satisfactory to the Administrative Agent
and shall state that the resolutions thereby certified have not
been amended, modified, revoked or rescinded; (C) a certificate of
each Loan Party existing as of the Increase Effective Date as to
the incumbency and signature of the officers of such Loan Party
executing this Amendment and any Loan Document satisfactory in
form and substance to the Administrative Agent; and (D)
certificates dated as of a recent date from the Secretary of State
or other appropriate authority, evidencing the good standing of
each Loan Party existing as of the Increase Effective Date (i) in
the jurisdiction of its organization and (ii) in each other
jurisdiction where its ownership, lease or operation of property
or the conduct of its business requires it to qualify as a foreign
Person except, as to this subclause (ii), where the failure to so
qualify could not have a Material Adverse Effect;
(vi) receipt by the Administrative Agent, with a
counterpart for each Lender and the New Lender, of an executed
legal opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Loan Parties
existing as of the Increase Effective Date, with respect to this
Amendment and the transactions contemplated hereby in form and
substance reasonably satisfactory to the Administrative Agent; and
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(vii) after giving effect to the amendments provided for
herein, the representations and warranties contained in the Credit
Agreement and in the other Loan Documents will be true and correct
in all material respects as if made on and as of the Effective
Date and no Default or Event of Default will have occurred and be
continuing.
4. Assignment and Acceptance. By its signature hereto, the financial
institution listed on the signature pages hereto as the "New Lender" (the "New
Lender") hereby, effective as of the Increase Effective Date:
(a) irrevocably assumes without recourse to the Administrative
Agent or any Lender New Lender's Revolving Credit Commitment and
related rights and obligations under the Credit Agreement in the
principal amount as set forth on Schedule 1 to the Credit Agreement (as
amended by this Amendment).
(b) (i) represents and warrants that it is legally authorized to
enter into the Credit Agreement; (ii) confirms that it has received a
copy of the Credit Agreement, together with copies of the financial
statements delivered pursuant to Section 8.1 thereof and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into the Credit Agreement; (iii)
agrees that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the
Credit Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (iv) appoints and
authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers and discretion under the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as
are incidental thereto; and (v) agrees that it will be bound by the
provisions of the Credit Agreement and will perform in accordance with
its terms all the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Lender including, if
it is organized under the laws of a jurisdiction outside the United
States, its obligation pursuant to subsection 5.11(b) of the Credit
Agreement.
(c) Agrees that it shall, from and after the Increase Effective
Date, be a party to the Credit Agreement and have the rights and
obligations of a Lender thereunder and under the other Loan Documents
and shall be bound by the provisions thereof.
5. Representations and Warranties. To induce the Administrative Agent
and the Lenders to enter into this Amendment, the Borrower hereby represents and
warrants that after giving effect to the consents and amendments provided for
herein, the representations and warranties contained in the Credit Agreement and
the other Loan Documents will be true and
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correct in all material respects as if made on and as of the date hereof and no
Default or Event of Default will have occurred and be continuing.
6. No Other Amendments or Consents. Except as expressly amended
hereby, the Credit Agreement and the other Loan Documents shall remain in full
force and effect in accordance with their respective terms, without any waiver,
amendment or modification of any provision thereof.
7. Counterparts. This Amendment may be executed by one or more of the
parties hereto on any number of separate counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
8. Expenses. The Borrower agrees to pay and reimburse the
Administrative Agent for all of the reasonable out-of-pocket costs and expenses
incurred by the Administrative Agent in connection with the preparation,
execution and delivery of this Amendment, including, without limitation, the
reasonable fees and disbursements of Cadwalader, Xxxxxxxxxx & Xxxx, counsel to
the Administrative Agent.
9. No Defenses, Release. None of the Borrower nor any other Loan
Party has any claims, counterclaims, offsets or defenses to the Loan Documents
or the Obligations, or if any such Person does have any claims, counterclaims,
offsets or defenses to the Loan Documents or the Obligations, the same are
hereby waived, relinquished and released in consideration of the execution and
delivery of this Amendment by the Lenders parties hereto. By its execution
hereof and in consideration of the mutual covenants contained herein and the
accommodations granted to the Borrower hereunder, the Borrower on behalf of
itself and the other Loan Parties expressly waives and releases any and all
claims and causes of actions any of them may have, or allege to have (and all
defenses which may arise out of any of the foregoing), whether known or unknown,
against the Administrative Agent or any Lender or any of their Affiliates,
employees, directors, officers, attorneys or agents, arising out of the credit
relationship between the Borrower and the Lenders up to and including the date
of this Amendment.
10. Integration. This Amendment, the Credit Agreement and the other
Loan Documents represent the agreement of the Borrower, the Administrative Agent
and the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in Credit Agreement or the other Loan Documents.
11. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
UNIVERSAL HOSPITAL SERVICES, INC.
By: __________________________________
Name:
Title:
CANADIAN IMPERIAL BANK OF
COMMERCE, AS ADMINISTRATIVE AGENT
By: __________________________________
Name:
Title:
KEY CORPORATE CAPITAL INC., AS COLLATERAL
AGENT AND AS A LENDER
By: __________________________________
Name:
Title:
CIBC INC.
By: __________________________________
Name:
Title:
Signature Page
Universal Hospital Services, Inc.
Second Amendment and Consent to Credit Agreement
FLEET NATIONAL BANK
By: __________________________________
Name:
Title:
XXXXXX FINANCIAL, INC., AS SYNDICATION
AGENT
By: __________________________________
Name:
Title:
NATIONAL BANK OF CANADA
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
TRANSAMERICA BUSINESS CAPITAL CORPORATION,
as successor in interest to TransAmerica
Business Credit Corporation
By: __________________________________
Name:
Title:
USB AG, STAMFORD BRANCH, AS NEW LENDER
By: __________________________________
Name:
Title:
Signature Page
Universal Hospital Services, Inc.
Second Amendment and Consent to Credit Agreement
SCHEDULE 1
LENDERS, COMMITMENTS AND APPLICABLE LENDING OFFICES
Lender and Lending Offices Revolving Credit Commitment
-------------------------- ---------------------------
CIBC Inc. $17,500,000
Applicable Lending Offices:
Base Rate Loans and Eurodollar Loans:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Agency Services
Telephone: 000-000-0000
Telecopy: 000-000-0000
Fleet National Bank $10,000,000
Applicable Lending Offices:
Base Rate Loans and Eurodollar Loans:
000 Xxxxxxx Xxxxxx
XX 00-00-00
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx So
Telephone: 000-000-0000
Telecopy: 000-000-0000
Xxxxxx Financial, Inc. $17,500,000
Applicable Lending Offices:
Base Rate Loans and Eurodollar Loans:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Lender and Lending Offices Revolving Credit Commitment
-------------------------- ---------------------------
Key Corporate Capital Inc. $12,500,000
Applicable Lending Offices:
Base Rate Loans and Eurodollar Loans:
000 Xxxxxx Xxxxxx
XX XX-00-00-0000
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
National Bank of Canada $10,000,000
Applicable Lending Offices:
Base Rate Loans and Eurodollar Loans:
000 Xxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone: 000-000-0000
Telecopy: 312-558-6461
Transamerica Business Capital Corporation,
as successor in interest to Transamerica
Business Credit Corporation $10,000,000
Applicable Lending Offices:
Base Rate Loans and Eurodollar Loans:
000 Xxxxxxxx Xxxxx Xxxxxx,
Xxxxx X 000
Xxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
Lender and Lending Offices Revolving Credit Commitment
-------------------------- ---------------------------
UBS AG Stamford Branch $10,000,000
Applicable Lending Offices:
Base Rate Loans and Eurodollar Loans:
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
-----------
Total: $87,500,000
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