EXHIBIT 4.1 (b)
AMENDMENT NO. 2 AND WAIVER TO THE
CREDIT AGREEMENT
Dated as of April 1, 1997
AMENDMENT NO. 2 AND WAIVER TO THE CREDIT AGREEMENT, among MEDIQ/PRN LIFE SUPPORT
SERVICES, INC., a Delaware corporation (the "Borrower"), MEDIQ INCORPORATED, a
Delaware corporation ("MEDIQ"), PRN HOLDINGS, INC., a Delaware corporation
(together with MEDIQ, the "Parent Guarantors"), the banks, financial
institutions and other institutional lenders parties to the Credit Agreement
referred to below (collectively, the "Lenders") and Banque Nationale de Paris as
administrative agent (the "Administrative Agent") for the Lenders and
NationsBank N.A., as documentation agent (the "Documentation Agent").
PRELIMINARY STATEMENTS:
(1) The Borrower, the Parent Guarantors, the Lenders, the Administrative Agent
and the Documentation Agent have entered into a Credit Agreement dated as of
October 1, 1996, as amended by Amendment No. 1 dated as of January 24, 1997 (as
so amended, the "Credit Agreement"). Capitalized terms not otherwise defined in
this Amendment and Waiver have the same meanings as specified in the Credit
Agreement.
(2) The Borrower seeks to acquire (the "UHS Acquisition") Universal Hospital
Services, Inc., a Minnesota corporation ("UHS") and has requested that the
Required Lenders amend and waive certain provisions of the Credit Agreement in
order to permit the Borrower to acquire UHS for a purchase price greater than
$140,000,000 and incur certain one time extraordinary charges associated with
the acquisition and the operations of UHS.
(3) The Required Lenders are, on the terms and conditions stated below, willing
to grant the request of the Borrower and the Borrower and such Lenders have
agreed to amend and waive the Credit Agreement as hereinafter set forth.
SECTION 1. Amendments to the Credit Agreement. Section 1.01 of the Credit
Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 3(a) hereof, hereby amended as
follows:
(1) The definition of "EBITDA" is amended by deleting clause (g) thereof in its
entirety and substituting therefor the following:
"(g) all one-time expenses of the Borrower and its Affiliates incurred
in connection with the UHS Acquisition for (i) acquisition
expenses, lease related expenses, facility closure expenses and
professional and other fees, and (ii) the write-down of UHS's
Demand Positive Airway Pressure Devices inventory.
SECTION 2. Waiver. The provisions of Section 5.02(f)(i)(4) are hereby waived
solely to the extent that such section limits the aggregate amount of
Investments outstanding after giving effect to the UHS Acquisition to
$140,000,000.
SECTION 3. Conditions of Effectiveness. This Amendment and Waiver shall become
effective as of the date first above written when, and only when, the
Administrative Agent shall have received counterparts of this Amendment and
Waiver executed by the Borrower and the Required Lenders, or, as to any of the
Lenders, advice satisfactory to the Administrative Agent that such Lender has
executed this Amendment and Waiver. The effectiveness of this Amendment and
Waiver is conditioned upon the accuracy of the factual matters described herein.
This Amendment and Waiver is subject to the provisions of Section 9.01 of the
Credit Agreement.
SECTION 4. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) The Borrower is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction indicated in the recital of the
parties to this Amendment and Waiver.
(b) The execution, delivery and performance by each Loan Party of this
Amendment and Waiver and the Loan Documents, as amended hereby, to which it
is or is to be a party, and the consummation of the transactions
contemplated hereby, are within such Loan Party's corporate powers, have
been duly authorized by all necessary corporate action and do not (i)
contravene each such Loan Party's charter or by-laws, (ii) violate any law
(including, without limitation, the Securities Exchange Act of 1934, as
amended, and the Racketeer Influenced and Corrupt Organizations Chapter of
the Organized Crime Control Act of 1970), rule or regulation (including,
without limitation, Regulation X of the Board of Governors of the Federal
Reserve System), or any order, writ, judgment, injunction, decree,
determination or award, binding on or affecting any Loan Party or any of
its Subsidiaries or any of their properties, (iii) conflict with or result
in the breach of, or constitute a default under, any contract, loan
agreement, indenture, mortgage, deed of trust, lease or other instrument
binding on or affecting any Loan Party, any of their Subsidiaries or any of
their properties or (iv) except for the Liens created under the Collateral
Documents, as amended hereby, or any amendments or supplements thereto
contemplated hereby, result in or require the creation or imposition of any
Lien upon or with respect to any of the properties of any Loan Party or any
of its Subsidiaries.
(c) No authorization or approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body or any other third
party is required for the due execution, delivery, recordation, filing or
performance by any Loan Party of this Amendment and Waiver, any of the
Collateral Documents or any amendments or supplements thereto contemplated
hereby to which each such Loan Party is or is to be a party, or any of the
Loan Documents, as amended hereby, to which it is or is to be a party.
(d) This Amendment and Waiver and each of the Collateral Documents and
amendments and supplements thereto contemplated hereby to which each Loan
Party is a party have been duly executed and delivered by each such Loan
Party. This Amendment and Waiver and each of the other Loan Documents, as
amended hereby, to which each Loan Party is a party are, and each of the
other Collateral Documents and amendments and supplements thereto
contemplated hereby to which each such Loan Party is or is to be a party,
when delivered hereunder, will be, legal, valid and binding obligations of
each such Loan Party, enforceable against each such Loan Party in
accordance with their respective terms.
(e) There is no action, suit, investigation, litigation or proceeding affecting
any Loan Party or any of their Subsidiaries (including, without limitation,
any Environmental Action) pending or threatened before any court,
governmental agency or arbitrator that (i) would be reasonably likely to
have a Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of this Amendment and Waiver, the Collateral
Documents, any amendments or supplements thereto contemplated hereby or any
of the other Loan Documents, as amended hereby, or the consummation of any
of the transactions contemplated hereby.
SECTION 5. Reference to and Effect on the Loan Documents. (a) On and after the
effectiveness of this Amendment and Waiver, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the Notes and each of
the other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as amended by this Amendment and Waiver.
(b) The Credit Agreement, the Notes and each of the other Loan Documents, as
specifically amended by this Amendment and Waiver, are and shall continue to be
in full force and effect and are hereby in all respects ratified and confirmed.
Without limiting the generality of the foregoing, the Collateral Documents and
all of the Collateral described therein do and shall continue to secure the
payment of all Obligations of the Loan Parties under the Loan Documents, in each
case as amended by this Amendment and Waiver.
(c) The execution, delivery and effectiveness of this Amendment and Waiver shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Agent under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
SECTION 6. Costs, Expenses. The Borrower agrees to pay on demand all costs and
expenses of the Agent in connection with the preparation, execution, delivery
and administration, modification and amendment of this Amendment and Waiver, and
the other instruments and documents to be delivered hereunder (including,
without limitation, the reasonable fees and expenses of counsel for the Agent)
in accordance with the terms of Section 9.04 of the Credit Agreement.
SECTION 7. Execution in Counterparts. This Amendment and Waiver may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment and
Waiver by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment and Waiver.
SECTION 8. Governing Law. This Amendment and Waiver shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and Waiver to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
MEDIQ/PRN LIFE SUPPORT
SERVICES, INC.
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Sr. Vice-President
BANQUE NATIONALE DE PARIS,
as Administrative Agent and as Lender
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Vice-President
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Vice-President
NATIONSBANK, N.A.,
as Documentation Agent and as Lender
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Officer
THE FIRST NATIONAL BANK OF BOSTON
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Vice-President
CAISSE NATIONALE DE CREDIT AGRICOLE
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: First Vice-President
CREDITANSTALT CORPORATE FINANCE, INC.
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Vice-President
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Title: Senior Associate
FIRST SOURCE FINANCIAL, LLP
By: First Source Financial , Inc.
as Agent/Manager
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Senior Vice-President
METROPOLITAN LIFE INSURANCE COMPANY
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Assistant Vice-President
LASALLE NATIONAL BANK
By /s/ ▇▇▇▇ Georgien
---------------------------------
Title: First Vice-President
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: Managing Director
MELLON BANK, N.A.
By
---------------------------------
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING
RATE FUND, INC.
By
---------------------------------
Title:
PILGRIM AMERICA PRIME RATE TRUST
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Title: Vice-President
SUMMIT BANK
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Vice-President
USTRUST
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Vice-President
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Title: Vice-President
RESTRUCTURED OBLIGATIONS
BACKED BY SENIOR ASSETS B.V.
By its Managing Director, ABN TRUST
COMPANY (NEDERLAND) B.V.
By /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Title: Managing Director
By
---------------------------------
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE PORTFOLIO
By
---------------------------------
Title:
SENIOR DEBT PORTFOLIO
By Boston Management and Research, as
Investment Advisor
By
---------------------------------
Title:
CERES FINANCE LTD.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Director
CAPTIVA FINANCE LTD.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Director
AMARA-1 FINANCE LTD.
By
---------------------------------
Title:
AMARA-2 FINANCE LTD.
By
---------------------------------
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE PORTFOLIO
By ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management,
L.P., as Investment Advisor
By
---------------------------------
Title:
CONSENT
Dated as of April 1, 1997
Reference is made to Amendment No. 2 and Waiver dated as of April 1, 1997 (the
"Amendment and Waiver"), to the Credit Agreement dated as of October 1, 1996, as
amended by amendment No. 1 dated as of January 24, 1997 (as so amended, the
"Credit Agreement"; unless otherwise defined herein, capitalized terms being
used herein as therein defined) among MEDIQ/PRN Life Support Services, Inc., a
Delaware corporation, as Borrower, PRN Holdings, Inc. a Delaware corporation and
MEDIQ Incorporated, as Parent Guarantors, Banque Nationale de Paris, as
Administrative Agent, and certain other Lender Parties party thereto.
Each of the undersigned, as a Loan Party party to certain of the Loan Documents,
hereby consents to the Amendment and Waiver and hereby confirms and agrees that
(a) notwithstanding the effectiveness of such Amendment and Waiver, each Loan
Document to which it is a party is, and shall continue to be, in full force and
effect and is hereby ratified and confirmed in all respects, except that, on and
after the effectiveness of such Amendment and Waiver, each reference in such
Loan Document to the "Credit Agreement", "thereunder", "thereof" or words of
like import shall mean and be a reference to the Credit Agreement, as amended by
such Amendment and Waiver, and (b) the Collateral Documents to which such Loan
Party is a party and all of the Collateral described therein do, and shall
continue to, secure the payment of all of the Secured Obligations (in each case,
as defined therein).
MEDIQ INVESTMENT SERVICES, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice-President & CFO
MEDIQ MANAGEMENT SERVICES, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
MEDIQ SURGICAL EQUIPMENT
SERVICES, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
VALUE-MED PRODUCTS, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
MEDIQ MOBILE X-RAY SERVICES, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
HEALTH EXAMINETICS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice-President
THERA-KINETICS ACQUISITION
CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
MDTC HADDON, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
MEDIQ DIAGNOSTIC CENTERS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
MEDIQ DIAGNOSTICS CENTERS-I INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
MEDIQ IMAGING SERVICES, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice-President & CFO
AMERICAN CARDIOVASCULAR IMAGING
LABS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
ALPHA HEALTH CONSULTANTS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
P. I. CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice-President & CFO
MEDIQ SERVICES, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer