FIFTH AMENDMENT
TO CREDIT AGREEMENT
FIFTH AMENDMENT TO CREDIT AGREEMENT, dated as of November 5, 1998 (this
"Amendment"), among UNIVERSAL HOSPITAL SERVICES, INC., a Minnesota corporation
(the "Borrower"), the financial institutions party to the Credit Agreement
described below (the "Banks") and BANKERS TRUST COMPANY, as Administrative
Agent. All capitalized terms used herein and not otherwise defined shall have
the respective meanings provided such terms in the Credit Agreement referred to
below.
W I T N E S S E T H :
WHEREAS, the Borrower, the Banks and the Administrative Agent are parties
to a Credit Agreement, dated as of February 25, 1998 (as amended, modified and
supplemented through, but not including, the date hereof, the "Credit
Agreement");
WHEREAS, the parties hereto wish to amend the Credit Agreement as herein
provided; and
NOW THEREFORE, it is agreed:
1. Section 8.02 of the Credit Agreement is hereby amended by (i) deleting
the text "and" appearing at the end of clause (l) thereof, (ii) deleting the
period appearing at the end of clause (m) thereof and inserting the text "; and"
in lieu thereof and (iii) inserting the following new clause (n) immediately
after clause (m) thereof:
"(n) the Borrower may consummate the MRS Acquisition."
2. Section 6.22 of the Credit Agreement is hereby amended by (i) deleting
the number "25,000,000" appearing immediately after the text "(i)" and inserting
the number "50,000,000" in lieu thereof, (ii) deleting the text "100,000 Shares
of Series A Junior Participating Preferred Stock, par value $.01 per share, of
which no shares" appearing immediately after the text "(ii)" and inserting the
text "25,000 shares of Series A 12% Cumulative Convertible Accruing Pay-In-Kind
Preferred Stock, par value $.01 per share, of which 6,000 shares" in lieu
thereof and (iii) deleting the number "4,900,000" appearing immediately after
the text "(iii)" and inserting the number "9,975,000" in lieu thereof.
3. Section 10 of the Credit Agreement is hereby amended by inserting the
following new definitions in the appropriate alphabetical order:
"MRS" shall mean Medical Rentals Stat, Inc., an Oklahoma corporation.
"MRS Acquisition" shall mean the acquisition by the Borrower of all of
the issued and outstanding shares of capital stock of MRS pursuant to and
in accordance with the MRS Acquisition Documents.
"MRS Acquisition Agreement" shall mean the Stock Purchase Agreement,
dated as of November 5, 1998, by and among the Borrower and the selling
shareholders of MRS.
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"MRS Acquisition Documents" shall mean the MRS Acquisition Agreement
and all other documents required to be entered into or delivered pursuant
to the terms and conditions of the MRS Acquisition Agreement.
4. This Amendment is limited precisely as written and shall not be deemed
to be a consent to or modification of any other term or condition of the Credit
Agreement, the other Credit Documents or any of the instruments or agreements
referred to therein.
5. In order to induce the Banks to enter into this Amendment, the Borrower
hereby represents and warrants that (x) no Default or Event of Default exists on
the Fifth Amendment Effective Date (as defined below) both before and after
giving effect to this Amendment and (y) all of the representations and
warranties contained in the Credit Documents shall be true and correct in all
material respects on the Fifth Amendment Effective Date both before and after
giving effect to this Amendment with the same effect as though such
representations and warranties had been made on and as of the Fifth Amendment
Effective Date (it being understood that any representation or warranty made as
of a specific date shall be true and correct in all material respects as of such
specific date).
6. This Amendment shall become effective upon the date on which the
following conditions precedent shall have been satisfied (such effective date
being herein referred to as the "Fifth Amendment Effective Date"):
(i) the Borrower and each of the Required Banks shall have signed a
counterpart hereof (whether the same or different counterparts) and shall
have delivered (including by way of telecopier) the same to the
Administrative Agent at its Notice Office;
(ii) true and correct copies of the MRS Acquisition Documents shall
have been delivered to the Administrative Agent, and all terms of the MRS
Acquisition Documents shall be satisfactory in form and substance to the
Administrative Agent;
(iii) the MRS Acquisition Documents (and the transactions contemplated
thereby) shall have been duly approved by the boards of directors and, if
required by applicable law, the stockholders of the parties thereto, and
all MRS Acquisition Documents shall have been duly executed and delivered
by the parties thereto and shall be in full force and effect;
(iv) each of the conditions precedent to the obligation of the parties
to consummate the MRS Acquisition as set forth in the MRS Acquisition
Agreement shall have been satisfied to the satisfaction of the
Administrative Agent and the Required Banks, or waived with the consent of
the Administrative Agent and the Required Banks, and the MRS Acquisition
shall have been consummated in accordance with the MRS Acquisition
Documents (without giving effect to any material amendment or modification
of the MRS Acquisition Agreement or waiver with respect thereto unless
consented to by the Administrative Agent and the Required Banks) and all
applicable laws, rules and regulations and
(v) the Borrower shall have delivered a certificate of an Authorized
Officer, dated the Fifth Amendment Effective Date, stating that all of the
conditions set forth in clauses (iii) and (iv) above have been satisfied as
of such date.
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7. Within 10 days following the Fifth Amendment Effective Date, the
Borrower shall have delivered the following to the Administrative Agent:
(i) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, each of recent date listing all tax liens
or tax judgments and all effective financing statements that name MRS
and/or any of its subsidiaries and are filed in either (x) any jurisdiction
in which MRS or any subsidiary of MRS maintains its chief executive office
or (y) any other jurisdiction in which any assets of MRS or any subsidiary
of MRS are located, together with, in the case of financing statements, (1)
copies of any Financing Statements that name MRS or any subsidiary of MRS
as debtor and (2) evidence of filing of appropriate termination statements
executed by the secured lender in respect of any Financing Statements
referred to in clause (1) above;
(ii) executed Financing Statements (Form UCC-1) in appropriate form
for filing under the UCC of each jurisdiction referred to in clause (i)
above as may be necessary to perfect the security interests purported to be
created by the Security Agreement in the assets of MRS and its
subsidiaries;
(iii) evidence of the completion of (or evidence of the making of
arrangements satisfactory to the Administrative Agent for the completion
of) all other recordings and filings of, or with respect to, MRS and its
subsidiaries and/or their assets as may be necessary or, in the reasonable
opinion of the Collateral Agent, desirable to perfect the security
interests intended to be created by the Security Agreement in the assets of
MRS and its subsidiaries (including, without limitation, filings and
registrations with respect to copyrights, patents and trademarks); and
(iv) evidence that all other actions necessary or, in the reasonable
opinion of the Collateral Agent, desirable to perfect and protect the
security interests purported to be created by the Security Agreement in the
assets of MRS and its subsidiaries have been taken.
8. Within 3 business days following the Fifth Amendment Effective Date, the
Borrower shall have filed the Articles of Merger relating to the merger of MRS
with and into the Borrower, with the Borrower as the surviving corporation of
such merger, with the Secretary of State of Minnesota and with the Secretary of
State of Oklahoma and within 30 days following the Fifth Amendment Effective
Date, the merger referred to above shall have been consummated in accordance
with all applicable laws and evidence of any approvals of such merger shall be
provided to the Banks.
9. This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A complete set of counterparts
shall be lodged with the Borrower and the Administrative Agent.
10. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
11. From and after the Fifth Amendment Effective Date, all references in
the Credit Agreement and each of the Credit Documents to the Credit
Agreement shall be deemed to be references to such Credit Agreement as
amended hereby.
12. *********
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