Exhibit 10.32
SIXTH AMENDMENT TO CREDIT AGREEMENT
SIXTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated
as of September 15, 1997, among TRANSWORLD HEALTHCARE, INC. (the "Borrower"),
the lenders party to the Credit Agreement referred to below (each a "Bank" and,
collectively, the "Banks"), and BANKERS TRUST COMPANY, as Agent (in such
capacity, the "Agent"). All capitalized terms used herein and not otherwise
defined shall have the respective meanings provided such terms in the Credit
Agreement.
W I T N E S E T H :
WHEREAS, the Borrower, the Banks and the Agent are parties to
a Credit Agreement, dated as of July 31, 1996 (as in effect on the date hereof,
the "Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit
Agreement as provided herein;
NOW, THEREFORE, it is agreed:
I. Amendments and Modifications to Credit Agreement.
1. The definition of "Consolidated EBITDA" appearing in Section 11 of
the Credit Agreement is hereby amended by (i) inserting immediately prior to
the phrase "(u) to the extent" the following new clause:
"(t) to the extent Consolidated EBITDA is being determined
for any period that includes July 1997, and to the extent
that Consolidated EBITDA (whether directly or through
reductions to Consolidated Net Income) has been reduced by
any of the occurrences described on Annex XIII hereto, the
amount of such reductions (in no event to exceed the
respective amount specified in said Annex XIII),",
(ii) deleting the period at the end of Clause (II) thereof and inserting "and"
in lieu thereof and (iii) inserting the following new clause (III) at the end
thereof:
"(III) excluding therefrom any amounts constituting income
related to the Radamerica Sale, in each case that would
otherwise (in the absence of this clause (III)) have been
included in arriving at Consolidated EBITDA for such period."
2. The Credit Agreement is hereby further amended by adding new
Annex XIII thereto in the form attached hereto as Annex XIII.
3. As consideration for the approval of this Amendment, the parties
hereto acknowledge and agree that, notwithstanding anything to the contrary
contained in the Credit Agreement or any other Credit Document, the Borrower
shall not be permitted to request or incur any additional Loans or to request
or have any additional Letters of Credit issued for its account, in either case
unless and until the Required Banks otherwise agree.
The parties hereto acknowledge and agree that (i) the Required Banks
may, in their sole discretion, refuse to permit the Borrower to request or
incur additional Loans or to request or have any additional Letters of Credit
issued for its account pursuant to the Credit Agreement or impose conditions on
such permission and (ii) no Bank shall have any liability whatsoever to the any
of the parties hereto, or any other Person, as a result of any refusal (for any
reason whatsoever) of one or more Banks to grant permission as is required
above with respect to additional Loans or Letters of Credit as described above.
II. Miscellaneous Provisions.
1. In order to induce the Banks to enter into this Amendment, the
Borrower hereby represents and warrants that:
(a) no Default or Event of Default exists as of the Sixth
Amendment Effective Date (as defined below), after giving effect to
this Amendment; and
(b) all of the representations and warranties contained in
the Credit Agreement and the other Credit Documents are true and
correct in all material respects as of the Sixth Amendment Effective
Date, after giving effect to this Amendment, with the same effect as
though such representations and warranties had been made on and as of
the Sixth 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).
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2. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
3. 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 Agent.
4. 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.
5. This Amendment shall become effective as of the date (the "Sixth
Amendment Effective Date") when the Borrower, each other Credit Party and the
Required Banks shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Agent at its Notice Office. The Agent shall
promptly notify the Borrower and the Banks in writing of the Sixth Amendment
Effective Date.
6. From and after the Sixth Amendment Effective Date, all references
in the Credit Agreement and each of the other Credit Documents to the Credit
Agreement shall be deemed to be references to the Credit Agreement as modified
hereby.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
TRANSWORLD HEALTHCARE, INC.,
as Borrower
By /s/ Xxxxx X. Xxxxxxxxx
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Title: Senior Vice President and
Chief Financial Officer
BANKERS TRUST COMPANY,
Individually and as Agent
By /s/ Xxxxxxxx Xxxxx
--------------------------------
Title: Vice President
THE BANK OF NEW YORK
By
--------------------------------
Title:
BANQUE PARIBAS
By
--------------------------------
Title:
By
--------------------------------
Title:
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By /s/ Xxx X. Xxxxx
--------------------------------
Title: Director
By /s/ Xxxxxx X. Xxxxx III
--------------------------------
Title: Managing Director
FLEET BANK, N.A.
By /s/ Xxxxxx Xxxxxxx
--------------------------------
Title: Vice President
Each of the undersigned, each being a Subsidiary Guarantor pursuant to the
Credit Agreement referenced in the foregoing Sixth Amendment and a party to
various Security Documents, hereby acknowledges and agrees to the foregoing
provisions of the Sixth Amendment.
Acknowledged and
Agreed this first day
of October, 1997.
DERMAQUEST, INC.,
as a Pledgor
By /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Title: Vice President
MK DIABETIC SUPPORT
SERVICES, INC.,
as a Pledgor
By /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Title: Vice President
THE PROMPTCARE COMPANIES, INC.,
as a Pledgor
By /s/ Xxxxx X. Xxxxxxxxx
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Title: Vice President
THE PROMPTCARE LUNG CENTER, INC.,
as a Pledgor
By /s/ Xxxxx X. Xxxxxxxxx
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Title: Vice President
STERI-PHARM, INC.,
as a Pledgor
By /s/ Xxxxx X. Xxxxxxxxx
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Title: Vice President
TRANSWORLD HOME HEALTHCARE NURSING DIVISION, INC.,
as a Pledgor
By /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Title: Vice President
RESPIFLOW, INC.,
as a Pledgor
By /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Title: Vice President
ANNEX XIII
Occurrence Amount
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Write-down of investment in HMI $20,000,000
Additional reserves against DermaQuest,
Inc. receivables $2,660,000
Loss on termination of agreement to purchase
VIP Health Services, Inc. $1,622,000
Reserve for shut down of PromptCare Lung
Center, Inc. $1,100,000
Write-off on intangible assets relating to
DermaQuest, Inc. $12,079,000
Other and miscellaneous items $295,000
