XXXXXXXX LIMITED LIABILITY PARTNERSHIP
CHANCE
CONFORMED COPY
DATED 27 SEPTEMBER 2001
ALLIED HEALTHCARE GROUP LIMITED
AS PARENT
TRANSWORLD HEALTHCARE (UK) LIMITED
AS ORIGINAL BORROWER
AND
ALLIED HEALTHCARE GROUP LIMITED
TRANSWORLD HEALTHCARE (uk) LIMITED
OMNICARE LIMITED
ALLIED healthCARE (uk) LIMITED
medigas LIMITED
ALLIED OXYCARE LIMITED
nightingale nursing bureau limited
crystalglen limited
balfor medical limited
AS GUARANTORS
BNP PARIBAS
AS ARRANGER
BNP PARIBAS
BARCLAYS Bank PLC
AS UNDERWRITERS
BARCLAYS Bank PLC
AS AGENT AND SECURITY AGENT
AND
OTHERS
---------------------------------------
SECOND AMENDMENT AGREEMENT
RELATING TO A
SENIOR CREDIT AGREEMENT
DATED 17 DECEMBER 1999
AS AMENDED BY AN AMENDMENT AGREEMENT
DATED 14 JANUARY 2000
---------------------------------------
CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation.........................................1
2. Restatement............................................................3
3. Representations........................................................4
4. Covenants..............................................................4
5. Continuity And Further Assurance.......................................4
6. Fees, Costs And Expenses...............................................4
7. Miscellaneous..........................................................5
Schedule 1 CONDITIONS PRECEDENT........................................6
Schedule 2 RESTATED AGREEMENT..........................................9
THIS AGREEMENT is made on 27 September 2001
BETWEEN
(1) ALLIED HEALTHCARE GROUP LIMITED (FORMERLY KNOWN AS TRANSWORLD HOLDINGS
(UK) LIMITED) a company incorporated in England and Wales with company
registration number 3890177 (the "PARENT");
(2) TRANSWORLD HEALTHCARE (UK) LIMITED (a company incorporated in England and
Wales with company registration number 203370146) in its capacity as
borrower hereunder (the "ORIGINAL BORROWER");
(3) ALLIED HEALTHCARE GROUP LIMITED, TRANSWORLD HEALTHCARE (UK) LIMITED,
OMNICARE LIMITED, ALLIED HEALTHCARE (UK) LIMITED, ALLIED OXYCARE LIMITED,
MEDIGAS LIMITED, NIGHTINGALE NURSING BUREAU LIMITED, CRYSTALGLEN LIMITED,
AND BALFOR MEDICAL LIMITED (the "GUARANTORS");
(4) BNP PARIBAS as arranger of the Facilities (the "ARRANGER");
(5) BARCLAYS BANK PLC as agent for the Banks (the "AGENT");
(6) BARCLAYS BANK PLC as security agent for and on behalf of the Finance
Parties (as defined below) (the "SECURITY AGENT");
(7) BNP PARIBAS and BARCLAYS BANK PLC as underwriters of the Facilities (the
"UNDERWRITERS"); and
(8) THE BANKS (as defined in the Original Credit Agreement).
RECITALS
(A) The Banks made facilities available to the Original Borrower pursuant to
the Original Credit Agreement on the basis of certain projections and
covenants.
(B) The Agent and the Banks have agreed to amend the Original Credit
Agreement as set out in the Restated Agreement.
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"AMENDMENT AGREEMENT" means the amendment agreement dated 14 January 2000
made between the Parent, the Original Borrower, the Original Guarantors,
the Arranger, the Agent, the Security Agent, the Underwriter and the
Banks.
"EARN OUT ACCOUNT" means an interest bearing account in the name of the
Original Borrower and held with an Eligible Deposit Bank into which
(pound)27,225,000 of proceeds of a Term C Advance are to be paid and
which is charged in favour of the Security Agent for the Obligations of
the Obligors under Finance Documents.
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"EFFECTIVE DATE" means the date on which the Agent confirms to the Banks
and the Borrower that it has received each of the documents listed in
Schedule 1 (Conditions Precedent) in a form and substance satisfactory to
the Agent.
"INDIGO" means Staffing Enterprise Limited, registered with company
number 02149723 and Staffing Enterprise (PSV) Limited, registered with
company number 02936791, each an "INDIGO COMPANY".
"INDIGO ACQUISITION" means the acquisition of all the shares in each
Indigo Company by the Original Borrower.
"INDIGO ACQUISITION AGREEMENT" means the purchase agreement for all the
shares in Indigo, made between the Original Borrower and the vendors (as
defined therein), together with all schedules, exhibits and attachments
to such agreements and all amendments to such purchase agreement.
"INSURANCE REPORT" means the insurance report by Aon Mergers &
Acquisitions Group in the agreed form, dated on or about 26 September
2001, in relation to the Indigo Acquisition.
"KEYMAN POLICIES" means the life assurance policy (in form and substance
reasonably satisfactory to the Agent and made in favour of the Parent
relating to the death or disability of Xxxxxxx Xxxxxx, Xxxxx Xxxxx and
Xxxxxxx Xxxxxx for the period of 3 years.
"MEZZANINE AMENDMENT AGREEMENT" means the amendment agreement dated on or
about the date hereof relating to a mezzanine credit agreement dated 19
December 1999 as amended by an amendment agreement dated 14 January 2000
and made between the Original Borrower, the Security Agent, the Arranger,
the Mezzanine Banks and others.
"ORIGINAL CREDIT AGREEMENT" means the Senior Credit Agreement dated 17
December 1999 between the Parent, the Original Borrower, the Original
Guarantors, the Arranger, the Agent, the Security Agent, the Underwriters
and the Banks as amended by the Amendment Agreement.
"RESTATED AGREEMENT" means the Original Credit Agreement, as amended and
restated by this Agreement, the terms of which are set out in Schedule 2
(Restated Agreement).
"REVISED ACCOUNTANTS REPORTS" means the long form reports of Ernst &
Young in the agreed form, dated on or about 26 September 2001 in relation
to (a) the Group and (b) the Indigo Companies.
"REVISED DUE DILIGENCE REPORTS" means the preliminary legal due diligence
reports of Eversheds in the agreed form dated on or about 26 September
2001 in relation to (a) the Group and (b) the Indigo companies.
"REVISED MARKET REPORT" means the market report by Xxxxx & Xxxxxxx in the
agreed form dated on or about 26 September 2001 in relation to the Group.
"REVISED REPORTS" means the Revised Accountants Reports, the Revised Due
Diligence Reports, the Revised Market Report and the Insurance Report.
-2-
1.2 INCORPORATION OF DEFINED TERMS
Terms defined in the Original Credit Agreement shall, unless otherwise
defined herein, have the same meaning herein and the principles of
construction set out in the Original Credit Agreement shall have effect
as if set out in this Agreement.
1.3 CLAUSES
In this Agreement any reference to a "Clause" or "Schedule" is, unless
the context otherwise requires, a reference to a Clause or Schedule
hereof. Clause headings are for ease of reference only.
2. RESTATEMENT
2.1 RESTATEMENT OF THE ORIGINAL CREDIT AGREEMENT
With effect from the Effective Date the Original Credit Agreement shall
be amended and restated so that it shall be read and construed for all
purposes as set out in Schedule 2 (Restated Agreement.)
2.2 WAIVER
2.2.1 The Finance Parties waive any Event of Default or Potential
Event of Default which has been disclosed by the Borrower in
writing to the Agent prior to the date hereof, provided that
nothing herein shall affect the rights of the Finance Parties in
respect of the occurrence of any other Event of Default or
Potential Event of Default which has not been disclosed by the
Borrower in writing prior to the date hereof or which arises on
or after the date hereof.
2.2.2 Notwithstanding Clause 23.2.6 (Amendments) of the Restated
Agreement, the Finance Parties consent to:
(i) the Indigo Companies acceding to the Mezzanine Credit
Agreement; and
(ii) the Finance Parties (as defined in the Mezzanine Credit
Agreement) providing the consent and waivers set out in
the Mezzanine Amendment Agreement.
2.2.3 Notwithstanding Clause 23.28 (Fees, Commissions and Interest)
the Original Borrower is permitted to pay a fee of
(pound)500,000 to Triumph Corporate Finance Group, Inc. and
others on or about the date of this Agreement in relation to
amending the Facilities.
3. REPRESENTATIONS
3.1 The Parent, Borrower and the Guarantors make the Repeated Representations
as if each reference therein to "this Agreement" or "the Finance
Documents" includes a reference to (a) this Agreement and (b) the
Restated Agreement.
3.2 On the Effective Date, the Parent, the Borrower and the Guarantors make
the representation set out in Clause 19.12 (Group Structure) of the
Restated Agreement.
3.3 On the Effective Date, the Parent, the Borrower and the Guarantors make
the representation set out in Clause 19.11 (Reports) as if reference to
the "Reports" is a reference to the Revised Reports.
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4. COVENANTS
4.1 The Parent undertakes to deliver, within thirty days of the date hereof,
a copy, certified by an Authorised Signatory of the Parent as true,
complete and up-to-date of the Keyman Policies and a duly executed
assignment agreement relating to the Keyman Policies between the Parent
and the Security Agent and a copy, certified by an Authorised Signatory
of the Parent as true, complete and up-to-date of the notices and
acknowledgements referred to therein.
4.2 The Parent undertakes to duly execute and delivery to the Agent, within
thirty days of the date hereof, a second amendment deed relating to the
Intercreditor Deed documenting the amendments referred to in the letter
delivered to the Agent pursuant to paragraph 14 of Schedule 1 (Conditions
Precedent).
5. CONTINUITY AND FURTHER ASSURANCE
5.1 CONTINUING OBLIGATIONS
The provisions of the Finance Documents shall, save as amended hereby,
continue in full force and effect.
5.2 FURTHER ASSURANCE
Each of the Borrower and the Guarantor shall, at the request of the Agent
and at its own expense, do all such acts and things reasonably necessary
or desirable to give effect to the amendments effected or to be effected
pursuant to this Agreement.
6. FEES, COSTS AND EXPENSES
6.1 TRANSACTION EXPENSES
The Borrower shall, from time to time on demand of the Agent and the
Arranger, reimburse the Agent and the Arranger for all reasonable costs
and expenses (including legal fees) together with any VAT thereon
incurred by it in connection with the negotiation, preparation and
execution of this Agreement, any other document referred to in this
Agreement and the completion of the transactions herein contemplated.
6.2 PRESERVATION AND ENFORCEMENT OF RIGHTS
The Borrower shall, from time to time on demand of the Agent, reimburse
the Finance Parties for all costs and expenses (including legal fees) on
a full indemnity basis together with any VAT thereon incurred in or in
connection with the preservation and/or enforcement of any of the rights
of the Finance Parties under this Agreement and any other document
referred to in this Agreement.
6.3 STAMP TAXES
The Borrower shall pay all stamp, registration and other taxes to which
this Agreement, any other document referred to in this Agreement or any
judgment given in connection herewith is or at any time may be subject
and shall, from time to time on demand of the Agent, indemnify the
Finance Parties against any liabilities, costs, claims and expenses
resulting from any failure to pay or any delay in paying any such tax.
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6.4 FEES LETTERS
The Borrower shall pay to the Banks the fees set out in the fees letters
dated the same date as this Agreement from the Agent to the Parent, at
the times and the amounts specified in such letters.
7. MISCELLANEOUS
7.1 INCORPORATION OF TERMS
The provisions of Clause 35.1 (Binding Agreement), Clause 39 (Remedies
and Waiver, Partial Invalidity), Clause 43 (Governing Law) and Clause 44
(Jurisdiction) of the Original Credit Agreement shall be incorporated
into this Agreement as if set out in full herein and as if references
therein to "this Agreement" or "the Finance Documents" are references to
this Agreement.
7.2 COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
AS WITNESS the hands of duly authorised representatives of the parties hereto
the day and year first before written.
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SCHEDULE 1
CONDITIONS PRECEDENT
CORPORATE DOCUMENTS
1. In relation to each Obligor:
(a) a copy, certified as at the date of this Agreement a true and
up-to-date copy by an Authorised Signatory of such Obligor, of
the constitutional documents of such Obligor or a confirmation,
given by an Authorised Signatory of such Obligor, certifying
that, as at the date hereof, there has been no change to the
constitutional documents delivered by such Obligor pursuant to
the Original Credit Agreement;
(b) a copy, certified as at the date of this Agreement a true and
up-to-date copy by an Authorised Signatory of such Obligor, of a
board resolution of such Obligor approving the execution,
delivery and performance of this Agreement and the terms and
conditions hereof and authorising a named person or persons to
sign this Agreement and any documents to be delivered by such
Obligor pursuant hereto and in the case of the Original
Borrower, evidence that Hyperion (in its capacity as a director
of the Original Borrower) has attended and voted at the board
meeting at which the relevant board resolution was passed; and
(c) a certificate of an Authorised Signatory of such Obligor setting
out the names and signatures of the persons authorised to sign,
on behalf of such Obligor, this Agreement and any documents to
be delivered by such Obligor pursuant hereto.
2. The Group Structure Chart, as amended to reflect the acquisition by the
Original Borrower of all the shares in Indigo.
CONSENTS
3. Any other consent or other document that the Agent considers to be
necessary or desirable in connection with the entry into and performance
of, and the transactions contemplated by, any Finance Document for the
validity and enforceability of any Finance Document and the transactions
contemplated thereby.
LEGAL OPINION
4. An opinion of Xxxxxxxx Chance, solicitors to the Agent, in substantially
the form distributed to the Banks prior to the signing of this Agreement.
AGREEMENTS AND SECURITY DOCUMENTS
5. An executed copy of this Agreement.
6. An executed copy of a Debenture granted by each Indigo Company in favour
of the Security Agent.
-6-
7. An executed copy of the charge granted by the Original Borrower in favour
of the Security Agent on behalf of the Banks, securing the amounts
deposited in the Earn Out Account.
8. An executed copy of the charge granted by the Original Borrower in favour
of the Security Agent on behalf of the Banks, securing the amounts
deposited in the Acquisition Expenditure Account.
DUE DILIGENCE
9. The Revised Reports.
OTHER DOCUMENTS AND EVIDENCE
10. A certificate of an Authorised Signatory of the Parent confirming that
since the date of the Accountants Report, there has been no change in the
assets, property , business, financial condition, or results of the Group
taken as a whole which could reasonably be expected to have a Material
Adverse Effect.
11. A letter from the Parent confirming that as at 31 July 2001, the ratio of
Total Net Debt: EBITDA (with Agreed Pro Forma Adjustments and calculated
by reference to the immediately preceding twelve months) does not exceed
2:1.
12. A letter from the Parent to the Agent specifying the Earn Out Account,
including details of the account name, account number and the name and
address of the bank where the account is held.
13. The fees letters referred to in Clause 6.4 (Fees Letters).
14. A letter from Triumph Partners III L.P. to the Agent waiving certain
rights in relation to the Subordinated Notes.
15. A copy, certified by an Authorised Signatory of the Parent, as true,
complete and up-to-date of the executed Mezzanine Amendment Agreement.
DOCUMENTS RELATING TO THE ACQUISITION OF INDIGO
16. An executed copy, certified by an Authorised Signatory of the Parent as
true, complete and up-to date, of the Indigo Acquisition Agreement and
all documents to be executed pursuant thereto on or before the date of
this Agreement.
17. An executed copy, certified by an Authorised Signatory of the Parent as
true, complete and up-to date of each document to be executed pursuant to
the Indigo Acquisition Agreement, in the form to be agreed for the
purposes of the Indigo Acquisition Agreement and such other documents (if
any) relating to the transactions contemplated in such agreement and
identified by the Agent and the Parent in writing as an Indigo
Acquisition Document.
18. The Revised Financial Projections in relation to the acquisition by the
Original Borrower of all the shares in Indigo.
-7-
19. Evidence satisfactory to the Agent that(pound)7,000,000 has been credited
to the Acquisition Expenditure Account.
20. A letter from the Parent addressed to the Agent undertaking that, to the
extent it has received Term C Advances, (pound)4,541,000 shall be
promptly applied in prepayment in full of the Tranche B Outstandings.
21. In respect each Indigo Company, evidence of compliance with the procedure
for permitting the financial assistance constituted hereby and/or under
the other Finance Documents under Section 155-158 of the Companies Xxx
0000, including certified copies of the relevant statutory declarations
and annexed auditors reports, copies of the related board memoranda for
each Indigo Company and non-statutory comfort from the auditors as to the
net asset position of such Indigo Company.
22. Evidence that the Parent has complied with the recommendations set out in
the Insurance Report that Indigo become fully integrated into the
Parent's insurance program from the date of the Indigo Acquisition.
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SCHEDULE 2
RESTATED AGREEMENT
-9-
SIGNATURES
THE BORROWER
THE PARENT
ALLIED HEALTHCARE GROUP LIMITED
By: XXXXXXX XXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
THE ORIGINAL BORROWER
TRANSWORLD HEALTHCARE (UK) LIMITED
By: XXXXXXX XXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
-10-
THE GUARANTORS
ALLIED HEALTHCARE GROUP LIMITED
By: XXXXXXX XXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
TRANSWORLD HEALTHCARE (UK) LIMITED
By: XXXXXXX XXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
OMNICARE LIMITED
By: XXXXXXX XXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
-11-
ALLIED HEALTHCARE (UK) LIMITED
By: XXXXXXX XXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
MEDIGAS LIMITED
By: XXXXXXX XXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
ALLIED OXYCARE LIMITED
By: XXXXXXX XXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
-12-
NIGHTINGALE NURSING BUREAU LIMITED
By: XXXXXXX XXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
CRYSTALGLEN LIMITED
By: XXXXXXX XXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
BALFOR MEDICAL LIMITED
By: XXXXXXX XXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
-13-
THE ARRANGER
BNP PARIBAS
By: XXX XXXXXX
Address: 00 XXXXXXXX XXXXXX
XXXXXX, XX0 0XX
Fax: 020 7595 5596
Attention: XXXXXXX XXX/ XXX XXXXXX
THE AGENT
BARCLAYS BANK PLC
By: XXXXX XXXXXX
Address: 5 XXX XXXXX XXXXXXXX
XXXXXX XXXXX
XXXXXX, X00 0XX
Fax: 020 7773 4893
Attention: XXXXX XXXXXX
THE SECURITY AGENT
BARCLAYS BANK PLC
By: XXXXX XXXXXX
Address: 5 XXX XXXXX XXXXXXXXX
XXXXXX XXXXX
XXXXXX, X00 0XX
Fax: 020 7773 4893
Attention: XXXXX XXXXXX
-14-
THE UNDERWRITERS
BARCLAYS BANK PLC
By: XXXXXXX XXXX
Address: 0XX XXXXX
00 XXXXXXX XXXXXX
XXXXXX, XX0X 0XX
Fax: 020 7699 2770
Attention: X. XXXX
BNP PARIBAS
By: XXX XXXXXX
Address: 00 XXXXXXXX XXXXXX
XXXXXX, XX0 0XX
Fax: 020 7595 5596
Attention: XXXXXXX XXX/ XXX XXXXXX
THE BANKS
BARCLAYS BANK PLC
By: XXXXXXX XXXX
Address: 0XX XXXXX
00 XXXXXXX XXXXXX
XXXXXX, XX0X 0XX
Fax: 020 7699 2770
Attention: X. XXXX
BNP PARIBAS
By: XXX XXXXXX
Address: 00 XXXXXXXX XXXXXX
XXXXXX, XX0 0XX
Fax: 020 7595 5596
Attention: XXXXXXX XXX/ XXX XXXXXX
-00-
XXXXXXXXXX XXXX-XXX XXXXXXXXXXX XX, XXXXXX BRANCH
By: XXX XXXX XXXXXX XXXXXXX
Address: 00 XXXXXXXX
XXXXXX
XX0X 0XX
Fax: 020 7573 8352
Attention: XXX XXXX
NMB XXXXXX LIMITED
By: XXXX XXXXXXXX
Address: XXXXXXXXXX XXXX
XXXXXXXX XXXX
XXXXXXX
XX0 0XX
Fax: 01737 841 354
Attention: XXXX XXXXXXXX
-16-
