Exhibit 10.4(a)
AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
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THIS AMENDMENT is entered into as of February 28, 1997 by the between
Universal Hospital Services Inc., a Minnesota corporation (the "Borrower"), and
First Bank National Association (the "Bank"). In consideration of the mutual
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties, at the
Borrower's request the Borrower and the Bank agree as follows:
1. Effective December 31, 1996, Sections 5.07 and 5.08 of the Amended and
Restated Credit Agreement dated June 30, 1996 by and between the Borrower and
the Bank (the "Credit Agreement"), are amended to read as follows:
Section 5.07 Liens. The Borrower shall not, and shall not permit any
Subsidiary to, create, incur or permit to exist in favor of any person
other than the Bank any mortgage, deed of trust, security interest or
other lien on any of its property now owned or hereafter acquired,
except:
(a) liens for taxes not yet due, if such reserve or other appropriate
provision, if my, as shall be required by generally accepted accounting
principles shall have been made therefor;
(b) other liens, charges, or encumbrances incidental to the conduct of
the Borrower's or such Subsidiary's business or the ownership of the
Borrower's or such Subsidiary's property which were not incurred in
connection with borrowing of money or the obtaining of advances or credit
or the acquisition of property and which do not in the aggregate
materially detract from the value of the Borrower's or such Subsidiary's
property or materially impair the use thereof in the operation of the
Borrower's or Subsidiary's business;
(c) liens imposed by law in favor of materialmen, mechanics, carriers,
warehousemen, landlords and other like persons for sums not yet due or
which are being contested in good faith by appropriate proceedings
promptly initiated and diligently conducted by the Borrower or such
Subsidiary, if such reserve or other appropriate provision, if any, as
required by generally accepted accounting principles shall been made
therefor;
(d) one or more capital leases between the Borrower and Xxxxxx Healthcare
Corporation covering 250 Xxx Xxxx infusion pumps, which lease was booked
by the Borrower as of December 31, 1996 at a present value of
$507,000.00;
(e) for a period not exceeding 90 days after the BERS Acquisition, a
security interest in BERS' equipment, leases, accounts and proceeds in
favor of Centura Bank securing indebtedness permitted by Section 5.08(d);
and
(f) capital leases between BERS and Xxxxxx Laboratories Hospital
Products Division covering equipment subleased by BERS to Xxx
Hospital, and all amendments, extensions, renewals and replacements
thereof, provided the aggregate amount of BERS' obligations under
such capital leases shall not exceed $500,000.00 at any time
outstanding.
Section 5.08 Permitted Indebtedness. The Borrower shall not, and
shall not permit any Subsidiary to, borrow money, issue any
evidences of indebtedness, or create, assume, guarantee, become
contingently liable for or suffer or permit to exist any
indebtedness of the Borrower or any Subsidiary in addition to
indebtedness to the Bank (including, without limitation, as
indebtedness Capitalized Lease Obligations), except:
(a) Unsecured Funded Debt of the Borrower to Prudential in a
principal amount not exceeding $10,000,000.00 before the BERS
Acquisition and in a principal amount not exceeding $14,000,000.00
after the BERS Acquisition, provided that all such Funded Debt shall
be repaid in accordance with its terms and schedule, shall not be
prepaid, and shall not be extended, renewed, or otherwise modified:
(b) Unsecured trade debt of the Borrower and the Subsidiaries, other
than Adjusted Funded Debt, incurred or arising in the ordinary
course of business;
(c) Unsecured Current Debt of the Borrower to banks and other
institutional lenders, provided that the aggregate amount of such
Current debt at any time outstanding shall not exceed $2,000,000.00;
(d) For a period of 90 days after the BERS Acquisition, indebtedness
of BERS to Centura Bank in an aggregate amount not exceeding
$1,858,973.00, provided that such indebtedness shall not be
extended, renewed or otherwise modified;
(e) One or more capital leases described in Section 5.07(d):
(f) Capital leases between BERS and Xxxxxx Laboratories Hospital
Products Division covering equipment subleased by BERS to Xxx
Hospital, and all amendments, extensions, renewals and replacements
thereof, provided the aggregate amount of BERS' obligations under
such capital leases shall not exceed $500,000.00 at any time
outstanding; and
(g) Existing Unsecured Current Debt and Unsecured Funded Debt of the
Borrower not otherwise permitted by this Section 5.08, which is
listed in the Certificate of Indebtedness and Liens, provided that
all such Current Debt and Funded Debt shall be repaid in accordance
with its terms and the schedule set forth in the Certificate of
Indebtedness and Liens, shall not be prepaid, and shall not be
extended, renewed, or otherwise modified.
2. The Bank waives the Borrower's failure to comply with Sections
5.07 and 5.08 of the Credit Agreement solely during the period before the
date of this Amendment as a result of the one or more capital leases with
Xxxxxx Healthcare Corporation described above.
3. In the event that ReliaStar Life Insurance Company, Northern
Life Insurance Company, ReliaStar Bankers Security Life Insurance Company
and The Prudential Life Insurance Company of America amend their respective
agreements with the Borrower in order to change the fixed charge coverage
covenants and also waive the Borrower's failure to comply with its
agreements as a result of one or more capital leases with Xxxxxx Healthcare
Corporation described above, then the Bank waives the Borrower's failure to
comply with such fixed charge coverage covenants and such provisions
relating to such capital leases solely during the period before the date of
this Amendment.
4. Such waivers by the Bank are limited as expressly set forth
above, and Sections 5.07 and 5.08 of the Credit Agreement, as amended
herein and all other sections of the Credit Agreement and all other
agreements of the parties remain in full force and effect.
5. No provision of this Amendment can be amended, modified, waived
or terminated, except by a writing executed by the Borrower and the Bank.
The Borrower shall pay to the Bank on demand all of the Bank's costs and
expenses including but not limited to reasonable attorneys' fees and legal
expenses, in connection with this Amendment, the writings executed herewith
and the transactions described herein and therein. This Amendment shall
bind and benefit the parties and their respective successors and assigns,
provided the Borrower shall not assign any of its rights or obligations
under this Amendment without the prior written consent of the Bank and any
assignment in violation of this sentence shall be null and void. This
Amendment shall be governed by and construed in accordance with the laws of
the State of Minnesota
Executed as of the date first above written.
UNIVERSAL HOSPITAL SERVICES, INC.
By /s/ Xxxxx X. Xxxxxxxxx
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Title CFO
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FIRST BANK NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Xxxxxxxx
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Title Assistant Vice President
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