EXHIBIT 10.4
AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT
THIS Amendment No. 1 (this "Amendment"), dated July 25, 2002 to the
SECURITIES PURCHASE AGREEMENT (the "Agreement"), dated December 17, 1999, is
entered into by and among Allied Healthcare Group Limited, formerly known as
Transworld Holdings (UK) Limited, a company incorporated in England and Wales
with registered number 3890177 ("UK Parent"), Transworld Healthcare (UK)
Limited, a company incorporated in England and Wales with registered number
3370146 and a wholly-owned subsidiary of UK Parent ("TW UK"), each of the
Purchasers and Allied Healthcare International Inc. (f/k/a Transworld
Healthcare, Inc.), a New York corporation and sole shareholder of UK Parent
("Transworld"). Transworld, UK Parent and TW UK are hereinafter referred to
collectively as the "Corporate Group." All capitalized terms which are used but
otherwise defined herein shall have meanings specified in the Agreement.
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, on December 17, 1999, the parties hereto entered into the
Agreement, pursuant to which (i) UK Parent issued and the Purchasers subscribed
for the Subordinated Notes; (ii) TW UK issued and the Purchasers subscribed for
the Warrants; (iii) TW UK issued and UK Parent subscribed for the Mirror Notes;
and (iv) TW UK issued and the Purchasers' Representative subscribed for a
Special Share of TW UK;
WHEREAS, as of the date hereof, Transworld has approved the reorganization
of the Corporate Group, pursuant to which TW UK shall become a wholly-owned
subsidiary of UK Parent, which is and shall remain a wholly-owned subsidiary of
Transworld (the "Reorganization") in accordance with that certain Master
Reorganization Agreement, dated as of April 24, 2002 by and among the Corporate
Group and the Investors named therein (as subsequently amended, the "Master
Reorganization Agreement");
WHEREAS, in connection with the Reorganization, the Warrants issued to the
Purchasers pursuant to the Agreement shall be cancelled and the Mirror Note
between UK Parent and TW UK is to be amended and restated;
WHEREAS, in connection with the Reorganization, the Purchasers will be
entitled, subject to the terms and conditions of the Master Reorganization
Agreement, to the right to receive shares of TWUS Common Stock and TWUS
Preferred Stock, and UK Parent will issue shares of the Mirror Preferred Stock
to Transworld; and
WHEREAS, in connection with the Reorganization and cancellation of the
Warrants the parties hereto desire to amend the Agreement to make appropriate
changes thereto to retain certain of the rights, covenants and agreements
originally provided thereon as to be applicable in light of the Reorganization.
NOW, THEREFORE, each of Transworld, UK Parent and TW UK, in consideration
of the mutual covenants and agreements set forth herein and for other good and
valuable
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consideration, the receipt and sufficiency of which are hereby acknowledged,
agrees with the Purchasers as follows and vice versa:
1. Amendment to Mirror Notes. Effective hereby, upon the terms and subject
to the conditions herein, the existing Mirror Notes shall be canceled and the
Amended and Restated Mirror Notes, substantially in the form attached hereto as
Exhibit A shall automatically be substituted therewith.
2. Amendment to Section 1.1. Effective hereby, the following definitions
shall be substituted in their entirety for the same definition in Section 1.1 of
the Agreement:
"Affiliate" means, with respect to any specified Person, any other Person
directly or indirectly controlling (including, but not limited to, each director
and executive officer of such Person), controlled by or under direct or indirect
common control with such specified Person. A Person shall be deemed to control a
company if such Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of such company whether
through the ownership of voting securities, by contract or otherwise.
Notwithstanding the foregoing, in no event shall the initial Purchasers be
considered Affiliates of the Companies (including of Transworld) for purposes of
this Agreement.
"Companies" means collectively, UK Parent and TW UK considered as a single
enterprise, until a successor replaces UK Parent or TW UK and thereafter
includes the successor or successors, as the case may be provided that, with
respect to Articles XVI and XVIII and Section 14 of this Amendment, "Companies"
shall also include Transworld along with UK Parent and TW UK.
"Covenant Breach" has the meaning ascribed thereto in Section 17 of the
Certificate of Designations.
"Credit Facility" means the credit agreement dated as of the date of this
Agreement among the Group Companies named therein, the Banks and the other
lenders, if any, parties thereto from time to time, as amended, restated,
supplemented, waived, replaced (whether or not upon termination, and whether
with the original lenders or otherwise), refinanced, restructured, or otherwise
modified from time to time.
"Designated Indebtedness" means: (a) Bank Indebtedness, (b) Mezzanine
Indebtedness or (c) Refinancing Indebtedness with respect thereto.
"Group Companies" means UK Parent, TW UK and their respective Subsidiaries;
provided, that with respect to Articles XVI and XVIII, "Group Companies" shall
also include Transworld and its respective Subsidiaries.
"Legal Holiday" means a Saturday, Sunday or a day on which banking
institutions in London, England, or New York, New York are not required to be
open.
"Liquidity Event" means (i) a sale, assignment, transfer, lease, conveyance
or other disposal of 90% or more of the Capital Shares of any of Transworld, UK
Parent or TW UK to a Person who is not an Institutional Investor or an Affiliate
of an Institutional Investor, including
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by way of scheme of arrangement or other business combination (whether or not
Transworld, UK Parent or TW UK is the Surviving Person), whether in one
transaction or a series of related transactions, (ii) a sale, assignment,
transfer, lease, conveyance or disposal of Property or assets of the Group
Companies representing in the aggregate 90% or more of the total value of all
Group Assets or generating in the aggregate 90% or more of all Group Revenues,
whether voluntary or involuntary, in one transaction or a series of related
transactions, or (iii) an Insolvency Event with respect to Transworld, UK Parent
or TW UK, other than by reason of action taken by or on behalf of the Series A
Director(s) or the Purchasers as a group.
"Majority in Interest of the Purchasers" or "Majority in Interest" means
the holders of greater than 50% of the sum of (i) all shares of Common Stock
issuable upon conversion of all shares of Series A Preferred Stock that remain
outstanding as of the time of determination and (ii) shares of Common Stock
issued upon conversion of the shares of Series A Preferred Stock; provided,
however, that with respect to clause (ii) only those shares of Common Stock
beneficially owned by the Person who converted the corresponding Series A
Preferred stock (or their Affiliates) shall be included in the calculation of a
Majority in Interest.
"Mirror Notes" has the meaning ascribed thereto in the recitals hereof; and
shall also refer to the refinanced Mirror Notes issued pursuant to Section 1 of
the Amendment No. 1 to the Agreement.
"Purchasers" has the meaning ascribed thereto in the introduction hereof,
provided, however, that with respect to any Securities that are Shares of Series
A Preferred Stock, the Purchasers shall include any "holders" thereof, as such
term is defined in the Certificate of Designations.
"Qualified Average Price" means the Closing Price per Share of Common Stock
as reported by the principal securities exchange on which the Shares of Common
Stock are listed for trading, so long as such exchange is the New York Stock
Exchange, the NASDAQ National Market, the American Stock Exchange or a
Designated Offshore Securities Market, for 30 consecutive Trading Days, provided
that (i) on each one of such Trading Days the Closing Price is equal to or
higher than the minimum price required to achieve a Qualified Public Value if
such price alone was deemed to equal the Qualified Average Price and (ii)
throughout such 30-day period at least 20% of the Ordinary Shares outstanding
are held by Persons who are not Affiliates of Transworld, any Group Company or
any Purchaser and are freely transferable in the public trading market.
"Qualified Public Value" means a Qualified Average Price such that the
product of such Qualified Average Price times the aggregate number of shares of
Common Stock issued pursuant to or issuable upon conversion of the shares of
Series A Preferred Stock is equal to or greater than 2.5 times the Total
Investment.
"Redemption Security" has the meaning ascribed thereto in Section 6.3
hereof.
"Securities" mean, collectively, the Subordinated Notes, the PIK Notes, the
Warrants, the Ordinary Shares issuable upon exercise of the Warrants, the Mirror
Notes, the Mirror PIK Notes, the shares of Series A Preferred Stock and the
shares of the Mirror Preferred Stock.
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"Transaction Documents" means, collectively, this Agreement (including the
Amendment), the Subordinated Notes, the PIK Notes, the Warrant Instrument, the
Warrants, the Mirror Notes, the Mirror PIK Notes, the Registration Rights
Agreement, the Voting Trust Agreement, the Intercreditor Agreement, the
Transworld Rights Letter, the Purchaser's Rights Letter, the Joinder Agreement,
the Expenses Sharing Letter Agreement, the Certificate of Designations, the
Charter Documents of Transworld, UK Parent and TW UK, the Master Reorganization
Agreement and any and all agreements, certificates, instruments and other
documents contemplated hereby or thereby or executed and delivered in connection
herewith or therewith.
"Voting Trust Agreement" means the Voting Trust Agreement, dated as of the
date hereof, by and among TW UK, UK Parent, Transworld, the Purchasers'
Representative and the Trustee, as such is amended from time to time.
3. Amendment to Section 1.1. Effective hereby, the following definitions
shall be added to the defined terms included in Section 1.1 of the Agreement:
"Certificate of Designations" means Article FIFTH of the Certificate of
Amendment to the Certificate of Incorporation of Allied Healthcare International
Inc. dated June 26, 2002.
"Closing Date" shall have the meaning ascribed to such term in the Master
Reorganization Agreement.
"Common Stock" means the common stock, par value $.01 per share, of
Transworld.
"holders" shall mean the holders of the Series A Preferred Stock, unless
such other meaning is clearly ascribed.
"Holders Redemption" shall have the meaning set forth in Section 8.1 of
this Agreement.
"Holders' Redemption Offer" shall have the meaning set forth in Section 8.2
of this Agreement.
"Holders' Redemption Purchase Date" shall have the meaning set forth in
Section 8.2 of this Agreement.
"Institutional Investors" means Triumph Partners III, L.P., Triumph III
Investors, L.P., and Paribas.
"Insolvency Breach" has the meaning ascribed thereto in Section 17(b) of
the Certificate of Designations.
"Lead Investor" means Triumph Partners III, L.P.
"Master Reorganization Agreement" has the meaning set forth in Section 12
of the Certificate of Designations.
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"Mirror Note Redemption Price" has the meaning set forth in Section 12 of
the Certificate of Designations.
"Mirror PIK Note Redemption Price" has the meaning set forth in Section 12
of the Certificate of Designations.
"Mirror Preferred Stock" has the meaning set forth in Section 12 of the
Certificate of Designations.
"Mirror Preferred Stock Preference Amount" has the meaning set forth in
Section 12 of the Certificate of Designations.
"Mirror Preferred Stock Purchase Price" has the meaning set forth in
Section 12 of the Certificate of Designations.
"Series A Preferred Stock" has the meaning set forth in Section 12 of the
Certificate of Designations.
"Series A Director" has the meaning set forth in Section 3(a) of the
Certificate of Designations.
"Series A Preference amount" has the meaning set forth in Section 4(a) of
the Certificate Designations.
"Series A Purchase Price" shall have the meaning set forth in Section 8(a)
of the Certificate of Designations.
4. Amendment to Section 4.22(c). Effective hereby, the following paragraph
shall be substituted in its entirety for Sections 4.22(c) of the Agreement:
(c) TW UK shall be under no liability with respect to any claim under
this Article IV unless and until the aggregate amount of all claims against TW
UK exceed (pound)250,000, but if liability exceeds that figure then all claims,
including claims previously notified, shall accrue against TW UK. The aggregate
liability of TW UK with respect to all claims under this Article IV shall not
exceed (pound)22.0 million, plus all outstanding and accrued interest on the
Subordinated Notes and the PIK Notes and accrued dividends (whether or not
declared or paid) on the shares of Series A Preferred Stock.
5. Amendment to Article VI. Effective hereby, the following shall be
substituted in its entirety for Article VI of the Agreement: Intentionally
Omitted.
6. Amendment to Article VII. Effective hereby, the following shall be
substituted in its entirety for Article VII of the Agreement: Intentionally
Omitted
7. Amendment to Article VIII. Effective hereby, the following shall be
substituted in its entirety for Article VIII of the Agreement:
ARTICLE VIII
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REDEMPTION OF TRANSWORLD SERIES A PREFERRED STOCK
8.1 Redemption of Transworld Series A Preferred Stock. The Series A
Preferred Stock, subject to the terms of the Intercreditor Agreement, shall
be subject to purchase and Redemption by Transworld, in whole or in part,
at the Series A Purchase Price, at the option of a Majority in Interest of
the Purchasers ("Holders' Redemption") upon and after the occurrence of a
Redemption Event; provided, however, that the Holders' Redemption cannot be
exercised on more than three (3) separate occasions or for an aggregate
Series A Purchase Price equal to less than (i) (pound)5.0 million on any
occasion or (ii) 100% of the remaining shares of Series A Preferred Stock
outstanding at the time if exercise of the Holders' Redemption would result
in less than (pound)5.0 million of Original Issue Price being owed with
respect to all remaining outstanding shares of Series A Preferred Stock in
the aggregate. In such event UK Parent shall be required to redeem, subject
to the limitations of Section 8.5, the shares of the Mirror Preferred Stock
in the manner provided in Section 8.3 hereof and TW UK shall be required to
redeem, subject to the limitations of Section 8.5, the Mirror Notes and
Mirror PIK Notes in the manner provided in Section 8.3 hereof. The date on
which such Redemption Event occurs is referred to as the "Redemption Event
Trigger Date." A "Redemption Event" shall mean, with respect to the shares
of Series A Preferred Stock elected to be purchased by the Purchasers, (i)
any Liquidity Event, or (ii) a date subsequent to the December 17, 2007 if
the Bank Indebtedness and the Mezzanine Indebtedness have been paid in full
on or before such date. The "Series A Purchase Price" shall be equal to the
Series A Preference Amount.
8.2 Holders' Redemption Offer Procedures. Within five (5) Business Days
after Transworld becomes aware of the occurrence of a Redemption Event and
in any event not later than the Redemption Event Trigger Date, Transworld
shall mail a notice (the "Holders' Redemption Offer") to each of the
Purchasers notifying them that the shares of Series A Preferred Stock will
be purchased and redeemed, respectively, at the election of the Purchasers
in accordance with this Article VIII. If a Majority in Interest of the
Purchasers elect to exercise their redemption rights pursuant to this
Article VIII, they shall give notice to Transworld setting forth the number
of shares of Series A Preferred Stock to be redeemed and the purchase date
shall be the earlier of (i) a date selected by Transworld, but not later
than 30 days from the date such notice is given, or (ii) if such notice
relates to a Liquidity Event and is given prior to the occurrence of the
Liquidity Event, the date of completion of the Liquidity Event (the
"Holders' Redemption Purchase Date"). An election to exercise purchase and
redemption rights pursuant to this Article VIII in connection with a
Liquidity Event shall in all circumstances be conditional upon the
completion of the Liquidity Event and no obligation to purchase or redeem,
as the case may be, shares of Series A Preferred Stock shall arise if the
Liquidity Event is not completed. In the event a Holders' Redemption is
exercised with respect to a Liquidity Event, the Purchasers will be
entitled to withdraw their election to tender the shares of Series A
Preferred Stock by delivering to Transworld, for receipt not later than the
close
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of business on the second Business Day preceding the Holders' Redemption
Purchase Date, facsimile transmission or letter to that effect. Upon a
Purchaser's election to tender any shares of Series A Preferred Stock, the
Purchaser will be required to surrender such shares of Series A Preferred
Stock to Transworld at the address specified in the signature page hereto
prior to the close of business on the Business Day preceding the Holders'
Redemption Purchase Date. On the Holders' Redemption Purchase Date,
Transworld will purchase the shares of Series A Preferred Stock tendered
pursuant to Section 8.1 hereof for cash in an amount equal to the aggregate
Series A Purchase Price for all shares of Series A Preferred Stock tendered
for purchase. If not all of the shares of Series A Preferred Stock tendered
pursuant to a Holders' Redemption Offer can be purchased or redeemed,
respectively, by Transworld for any reason, Transworld shall select, on or
prior to the Holders' Redemption Purchase Date, the shares of Series A
Preferred Stock (or portions thereof) shares of Series A Preferred Stock to
be purchased and redeemed, as the case may be, pro rata among the
Purchasers and dividends shall continue to accrue on all shares of Series A
Preferred Stock not redeemed, provided, however, that nothing in this
Article VIII shall be deemed a waiver or contractual impairment of the
right of the Purchasers to have all shares of Series A Preferred Stock
purchased and redeemed in full pursuant to Section 8.1 hereof and
Transworld shall not be relieved of its obligations to redeem unredeemed
shares of Series A Preferred Stock in full. Promptly after the Holders'
Redemption Purchase Date, Transworld shall, with respect to any shares of
Series A Preferred Stock not purchased or redeemed, respectively, in whole,
return to the appropriate Purchaser, the unredeemed shares of Series A
Preferred Stock or a new stock certificate, as the case may be, equal in
number to the unredeemed portion of the tendered shares of Series A
Preferred Stock.
8.3 Mandatory Redemption of Mirror Preferred Stock and Mirror Notes.
Upon written notice to each of UK Parent and TW UK of Transworld's
intention to purchase and redeem the shares of Series A Preferred Stock
pursuant to Sections 8.1 and 8.2 above (which notice Transworld will be
required to serve as soon as reasonably practicable after notice of
election is given to Transworld pursuant to Section 8.2), and subject to
the limitations of Section 8.5, UK Parent shall, immediately prior to such
purchase and redemption by Transworld, redeem and purchase the Mirror
Preferred Stock (in accordance with the terms and provisions of the Charter
Documents of UK Parent). Concurrently, and subject to the limitations of
Section 8.5, TW UK shall, immediately prior to such purchase and redemption
of the Mirror Preferred Stock by UK Parent, redeem the Mirror Notes and the
Mirror PIK Notes. Transworld shall use the funds it receives from such
redemption of the Mirror Preferred Stock to purchase and redeem the shares
of Series A Preferred Stock tendered by the Purchasers and accepted for
redemption by Transworld pursuant to Section 8.2 hereof. UK Parent shall
use the funds it receives from such redemption of the Mirror Notes to
purchase and redeem the Mirror Preferred Stock tendered by Transworld
pursuant to this Section 8.3 and the Charter Documents of UK Parent.
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8.4 Obligations of UK and TW UK Upon Holders' Redemption. Prior to the
Holder's Redemption Purchase Date, in connection with a Liquidity Event, UK
Parent will, and UK Parent shall cause TW UK, in good faith to seek, to
obtain any required consent of the holders of the Bank Indebtedness and/or
the Mezzanine Indebtedness the terms of which prohibit Transworld from
purchasing the Series A Preferred Stock or UK Parent from purchasing the
Mirror Preferred Stock and/or TW UK from redeeming the Mirror Notes and the
Mirror PIK Notes, as the case may be, so as to permit the making of the
Holders' Redemption Offer and the purchasing of the shares of Series A
Preferred Stock pursuant to Section 8.1, respectively, including repayment
out of the proceeds of such Liquidity Event of all Obligations under such
Bank Indebtedness and/or Mezzanine Indebtedness to the extent necessary to
permit the making of the Holders' Redemption Offer and the purchase of
shares of Series A Preferred Stock and accompanying purchase of the Mirror
Preferred Stock, Mirror Notes and Mirror PIK Notes pursuant to Section 8.3
hereof.
8.5 Holders' Redemption Prohibited. Subject to compliance with Section
8.4 hereof, if, at a Holders' Redemption Purchase Date, Transworld is
prohibited or prevented under Applicable Laws (including lack of surplus
under the laws of the State of New York) or under any other contractual or
other arrangement, including, or other legal restriction whatsoever,
directly or indirectly (which shall be deemed to encompass a similar
prohibition or prevention with respect to UK Parent's or TW UK's or other
Transworld Subsidiary's compliance with the provisions of Section 8.3) from
purchasing all shares of Series A Preferred Stock for which purchase is
elected hereunder pursuant to the Holders' Redemption, then Transworld
shall purchase such shares of Series A Preferred Stock, to the extent
permissible and shall purchase the remaining shares of Series A Preferred
Stock, as soon as Transworld is not so prohibited. Transworld shall use all
reasonable endeavors to take such action as shall be necessary or
appropriate to review and promptly remove any impediment to its ability to
purchase the shares of Series A Preferred Stock under the circumstances
contemplated by Section 8.1 hereof (including to cause UK Parent and/or TW
UK to take substantially similar actions), other than the Credit Agreements
and the Intercreditor Agreement; provided, however, that this provision
shall not require the repayment of Designated Indebtedness other then upon
the occurrence of a Liquidity Event. In the event that Transworld fails for
any reason to purchase any shares of Series A Preferred Stock for which
purchase is required pursuant to Section 8.1 hereof , then (i) the
Purchasers shall have the right to revoke their exercises of the Holders'
Redemption at any time and (ii) if the Purchasers do not elect to so revoke
such exercise, during the period from the applicable Holders' Redemption
Purchase Date through to the date on which such shares of Series A
Preferred Stock are purchased and redeemed, Transworld shall pay, in
addition to such amounts due pursuant to exercise of the Holders'
Redemption, to the Purchasers an amount equal to two percent (2%) per annum
of the Series A Purchase Price for any of the shares of Series A Preferred
Stock not purchased hereunder and the shares of Series A Preferred Stock
which remain outstanding
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shall continue to accrue dividends at the rate stated in Section 2 of the
Certificate of Designations, plus two percent (2%) per annum. Nothing in
this Section 8.5 shall impair or be deemed to limit, modify or affect the
rights of the Purchasers (unless otherwise restricted, including, without
limitation, under the Intercreditor Agreement) to pursue any available
remedy, at law or in equity, to enforce or seek to enforce, in any manner
whatsoever, Transworld's obligations under this Article VIII, including
without limitation filing any suit or complaint or seeking to file a suit
or complaint with any court of competent jurisdiction to obtain injunctive
or other equitable relief and/or damages arising from a breach of
Transworld's obligation to purchase the shares of Series A Preferred Stock
and enforcing any judgment obtained in any such suit in any manner
available under Applicable Law to judgment creditors in general.
8.6 Failure of Transworld, UK Parent and TW UK to Honor Holders'
Redemption. In the event that either Transworld or UK Parent fails to
perform in full its obligations following the Purchasers' election to
exercise the Holders' Redemption pursuant to Section 8.1 hereof, and TW UK
fails to perform its obligations as a guarantor of the obligations of
Transworld and UK Parent pursuant to Section 8.7 hereof, then a Majority in
Interest of the Purchasers shall have the right to exercise the Holders'
Redemption against TW UK to the same extent and with the same effect as
such exercise against Transworld, and TW UK hereby agrees that it shall be
fully bound by this Article VIII as if it were Transworld, except that (A)
to the extent that any deductions and withholdings on account of Taxes are
required under Applicable Law, or of any Taxes imposed on any Purchaser as
a result of failure of Transworld to fulfill its obligations under Section
8.1 hereof, and TW UK to fulfill its obligations under Section 8.7 below
which would not have been required had no such failure occurred (unless
such failure was directly attributable to a prohibition against such
fulfillment by Transworld, UK Parent or TW UK, as the case may be, under
Applicable Law), the Series A Purchase Price shall be increased, as may be
necessary, so that after making all such deductions and withholdings and
taking into account all such Taxes (whether applicable to the original
redemption price payable or to additional sums payable under this Section
8.6, and taking into account all Taxes on and arising by reason of the
payment of additional sums payable under this Section 8.6), the Purchasers
receive an amount equal to the sum that they would have received had no
such deductions or withholdings been made or Taxes imposed, (B) the
Companies shall make required deductions or withholdings, and (C) the
Companies shall pay the full amount deducted or withheld to the relevant
taxing or other Governmental Entity.
8.7 TW UK Guaranty.
(a) TW UK hereby unconditionally, irrevocably and absolutely
guarantees payment in full of the obligations of Transworld and UK Parent
to the Purchasers upon the election of the Purchasers to exercise the
Holders' Redemption with respect to the shares of Series A Preferred Stock.
To the extent that Transworld and/or UK Parent defaults on such
obligations, TW UK shall be
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absolutely and unconditionally obligated to pay the Series A Purchase
Price, in immediately available funds in full on the Holders' Redemption
Purchase Date, and shall not be entitled to set off any claim of any kind
which Transworld, UK Parent or TW UK may have against anyone whether
arising under or by reason of this Agreement, the other Transaction
Documents or for any other reason of any kind. In the event that the
Purchasers shall not for any reason receive on the Holders' Redemption
Purchase Date the full payment of the Series A Purchase Price for the
shares of Series A Preferred Stock being purchased and redeemed, then in
any proceeding instituted by the Purchasers, no defense by TW UK to its
obligation to pay the Series A Purchase Price, whether by counterclaim,
affirmative defense or new matter, that is not also available to Transworld
with respect to the primary obligation to purchase or redeem the shares of
Series A Preferred Stock pursuant to the Holders' Redemption, shall be
interposed or shall be of any force or effect, said defenses being waived
for purposes of such proceeding.
(b) Subject to compliance in full with this Article VIII by the
Purchasers, TW UK waives any and all notice of the creation, renewal,
extension or accrual of any component of the Series A Purchase Price and
notice of or proof of reliance by the Purchasers upon this Section 8.7 or
acceptance of this Section 8.7; the obligation to pay the Series A Purchase
Price shall conclusively be deemed to have been created, contracted or
incurred in reliance upon this Section 8.7; and all dealings between
Transworld, UK Parent or TW UK, on the one hand, and the Purchasers, on the
other, shall likewise be conclusively presumed to have been had or
consummated in reliance upon this Section 8.7. TW UK waives diligence,
presentment, protest, demand for payment and notice of default or
nonpayment to or upon TW UK with respect to the Series A Purchase Price. TW
UK's obligations under this Section 8.7 shall be construed as a continuing,
absolute and unconditional guarantee of payment to pay the Series A
Purchase Price and shall not be diminished or impaired by (i) any defense,
set-off or counterclaim (other than a defense of payment) which may at any
time be available to or be asserted by Transworld, UK Parent or TW UK
against the Purchasers, or (ii) any other circumstance whatsoever (with or
without notice to or knowledge of Transworld, UK Parent or TW UK) which
constitutes, or might be construed to constitute, an equitable or legal
discharge of Transworld from the obligation to pay the entire Series A
Purchase Price, or of TW UK under this Section 8.7, upon the occurrence of
any Insolvency Proceedings or in any other instance.
(c) This Section 8.7 shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Series A Purchase Price is rescinded or must
otherwise be restored or returned by the Purchasers upon the occurrence of
any Insolvency Proceedings relating to Transworld or UK Parent or upon or
as a result of the appointment of a receiver, intervener or conservator of,
or trustee or similar officer for, Transworld or UK Parent or any
substantial part of its property, or otherwise, all as though such payments
had not been made.
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(d) Any provision of this Section 8.7 which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(e) No failure to exercise, or any delay in exercising, on the
part of the Purchasers, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right,
power or privilege hereunder shall preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. A waiver by
the Purchasers of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy which the Purchaser would
otherwise have on any future occasion. The rights and remedies provided in
this Section 8.7 are cumulative, may be exercised singly or concurrently
and are not exclusive of any rights or remedies provided by law.
8.8 Further Action. Subject to the requirements of law, each of
Transworld and UK Parent (or their successors or assigns or any Person to
whom they transfer any of their shares in UK Parent or TW UK, respectively)
shall exercise or direct the exercise of their voting rights (whether at a
general or extraordinary meeting of shareholders or by consent in lieu of a
meeting of shareholders) and where appropriate to give effect to such
matters, shall convene any necessary shareholders meeting, for the purpose
of passing (and, not revoking) such resolutions as may be required by law
to approve or authorize any purchase of Securities pursuant to Article VIII
hereof).
8. Amendments to Articles IX, X, XI, XII, XIII, XIV and XV. Effective
hereby, the following shall be substituted in its entirety for Articles IX, X,
XI, XII, XIII, XIV and XV of the Agreement: Intentionally Omitted
9. Amendment to Article XVI. Effective hereby, the following shall be
substituted in its entirety for Article XVI of this Agreement:
ARTICLE XVI
SUCCESSORS
16.1 Merger or Consolidation.
(a) The Companies shall not directly or indirectly, by operation
of law or otherwise (i) be acquired by any other Person; (ii) permit
substantially all of their assets to be acquired by any other Person
(including an acquisition of stock of Subsidiaries which in the aggregate
account for substantially all of Transworld's assets); (iii) consolidate,
merge, or
11
otherwise combine with or into any other Person; (iv) permit any other
Person to acquire, consolidate, merge, or otherwise combine with or into
the Companies; (v) permit any other Person to acquire, consolidate, merge,
or otherwise combine with or into or be consolidated, merged, or otherwise
combined with or into by, any Subsidiary (in a transaction in which such
Subsidiary (or successor Person) remains (or becomes) a Subsidiary); or
(vi) directly or indirectly, transfer, convey, sell, lease or otherwise
dispose of all or substantially all of the properties and assets of any of
the Subsidiaries as an entirety or permit any of the Subsidiaries to do any
of the foregoing (except for the merger, consolidation or other combination
of any Subsidiary of the Companies with or into, or the disposition of all
or substantially all of the assets of any Subsidiary of the Companies to,
the Companies or any Wholly-Owned Subsidiary of the Companies), unless:
(i) in any such transaction in which the Person acquires by
transfer, conveyance, consolidations, merger, combination, sale, lease
or other disposition, as applicable, all or substantially all of the
properties and assets of the Companies as an entirety (for purposes of
this Article XVI, "Successor Companies"), such Successor Companies (i)
shall be a corporation or limited liability company, (ii) shall be
organized, duly incorporated and validly existing under the laws of the
United States or England, (iii) shall expressly assume pursuant to the
terms and conditions of this Agreement, in form reasonably satisfactory
to a Majority in Interest of the Purchasers, the obligations with
respect to the shares of Series A Preferred Stock then outstanding, and
the performance of the covenants and obligations set forth in this
Agreement and the Certificate of Designation on the part of the
Companies to be performed or observed or shall agree to such
alternative obligations, such that, following such assumption and
agreement, the Purchasers will continue to have the right to achieve
practical realization of the principal benefits intended to be provided
to them hereby and thereby, which the Companies understand to include,
without limitation, (A) the practical realization of the principal
benefits intended to be provided under the Holders' Redemption as
provided in Article 8, (B) the covenants as provided in Section 13 of
the Certificate of Designations and (C) the enforcement against the
Companies of any Covenant Breach or Insolvency Breach as provided in
Section 17 of the Certificate of Designations, as nearly as may be, in
relation to the circumstances of such Successor Companies, and (iv)
shall take all such action and pass all such resolutions as may be
necessary to enable it to assume and agree on all such obligations,
including, without limitation, the obligations with respect to the
guarantee of the Holders' Redemption and the purchase of shares of
Series A Preferred Stock under Article VIII hereof;
(ii) immediately before and after giving effect to such
transaction, no Covenant Breach or Event of Default shall have occurred
and be continuing;
12
(iii) the Companies have delivered to the Purchasers an Officers'
Certificate and a written opinion from legal counsel, each stating that
such consolidation, merger, amalgamation, combination, conveyance,
transfer, lease or acquisition and, if the assumption of the
obligations of the Companies under this Agreement or the Certificate of
Designations is required in connection with such transaction, such
documents effecting such assumption, complies with this Article XVI and
that all conditions precedent herein for relating to such transaction
have been complied with and satisfied.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise), in a single transaction or series of
transactions, of all or substantially all of the properties and assets of
one or more Subsidiaries, the Capital Shares of which constitutes all or
substantially all of the properties and assets of the Companies, shall be
deemed to be the transfer of all or substantially all of the properties and
assets of the Companies.
16.2 Surviving Person Substituted. Upon any acquisition, disposal,
consolidation, merger or other combination, or any transfer of assets in
accordance with Section 16.1, the Surviving Person (if other than the
Companies) following such transaction or formed by such consolidation or
into which the Companies are merged or otherwise combined or to which such
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Companies under this Agreement and the
Certificate of Designations with the same effect as if such Surviving
Person had been named as the Companies herein. When, and only when, a
Successor Company assumes all of the obligations of the Companies hereunder
and under the Securities and agrees to be bound hereby and thereby, the
predecessor shall be released from such obligations.
10. Amendment to Article XVII. Effective hereby, the following shall be
substituted in its entirety for Article XVII of the Agreement: Intentionally
Omitted.
11. Amendment to Article XVIII. Effective hereby, the following shall be
substituted in its entirety for Article XVIII of the Agreement:
ARTICLE XVIII
AMENDMENTS
18.1 Amendments and Supplements Requiring Consent of Purchasers; Other
Consents.
(a) Except as otherwise provided in Section 18.1(b) or 18.1(c)
hereof, as applicable, this Agreement and the Securities may be amended or
supplemented with the written consent of, and any existing Covenant Breach
or Event of Default or compliance with any provision of this Agreement or
the
13
Securities may be waived only with the affirmative vote at a meeting, or
the written consent of, a Majority in Interest of Purchasers.
(b) Without the consent of every affected Purchaser who is a
registered owner of shares of Series A Preferred Stock with an aggregate
Original Issue Price of (pound)500,000 or more, no amendment, supplement or
waiver to this Agreement shall: (i) reduce the Original Issue Price,
principal amount or value of the Series A Preferred Stock, the Mirror
Preferred Stock, the Mirror Notes or the Mirror PIK Notes; (ii) reduce the
number of shares of Common Stock issuable upon conversion of any shares of
Series A Preferred Stock (except pursuant to adjustment provisions as
provided therein), change the fixed maturity of any Mirror Note or Mirror
PIK Note or alter the provisions with respect to the redemption of the
Series A Preferred Stock, the Mirror Preferred Stock, the Mirror Note or
Mirror PIK Note in a manner adverse to the Purchasers; (iii) reduce the
rate of or change the time for payment of dividends or interest on any
shares of Series A Preferred Stock, the Mirror Preferred Stock, Mirror Note
or the Mirror PIK Notes; (iv) waive a Covenant Breach or Event of Default
in the payment of principal of, or interest on, any shares of Series A
Preferred Stock, the Mirror Preferred Stock, or Mirror Note or the Mirror
PIK Note or on the payment of the Series A Purchase Price or Series A
Preference Amount, or the Mirror Preferred Stock Purchase Price or the
Mirror Preferred Stock Preference Amount or the Mirror Note Redemption
Price or the Mirror PIK Note Redemption Price (except that a Majority in
Interest of the Purchasers may (A) rescind an Acceleration that resulted
from a non-payment default, and (B) waive the payment default that resulted
from such Acceleration); (v) make any share of Series A Preferred Stock or
Mirror Preferred Stock or Mirror Note or Mirror PIK Notes payable in
consideration other than that stated in the Certificate of Designation or
such instruments; (vi) waive a payment of the Series A Purchase Price,
Series A Preference Amount, Mirror Preferred Stock Purchase Price, Mirror
Preferred Stock Preference Amount, the Mirror Note Redemption Price or the
Mirror PIK Note Redemption Price, upon redemption or purchase of the
relevant Security; or (vii) make any change in this Section 18.1(b).
(c) After an amendment, supplement or waiver under this Section
18.1 becomes effective, the Companies shall mail to the Purchasers a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Companies to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such amended or
supplemental Agreement or waiver.
18.2 Revocation and Effect of Consents.
(a) Until an amendment, supplement or waiver becomes effective, a
consent to it by the Purchasers is a continuing consent by such Purchasers
and every subsequent holder of Securities (whether subsequently holding in
whole or in part), even if notation of the consent is not made on any
Security.
14
(b) The Companies may, but shall not be obligated to, fix a
record date for the purpose of determining the subsequent holders of
Securities entitled to consent to any amendment or waiver. If a record date
is fixed, then notwithstanding the provisions of the immediately preceding
paragraph, those Persons who were holders of Securities at such record date
(or their duly designated proxies), and only those Persons, shall be
entitled to consent to such amendment or waiver or to revoke any consent
previously given, whether or not such Persons continue to be holders of
such Securities after such record date.
(c) After an amendment or waiver becomes effective it shall bind
the Purchasers and any subsequent holder.
18.3 Notation on or Exchange of Securities. The Companies may place an
appropriate notation about an amendment, supplement or waiver on any
Security thereafter issued in exchange for any Security issued and
outstanding as of the date of such amendment, supplement or waiver. The
Companies, in exchange for such issued and outstanding Securities, may
issue all new Securities that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Security shall not
affect the validity and effect of such amendment, supplement or waiver.
18.4 Board Approval. The Companies may not sign an amendment,
supplement or waiver with respect to this Agreement until the Board of
Directors of Transworld approves it.
12. Amendment to Section 21.10. Effective hereby, the following shall be
substituted in its entirety for Section 21.10. of the Agreement:
21.10 Merger. This Agreement, the Subordinated Notes, the PIK Notes,
the Warrant Instrument, the Mirror Notes, the Mirror PIK Notes, the shares
of Series A Preferred Stock, the Certificate of Designations, the shares of
Mirror Preferred Stock, and the other Transaction Documents collectively
constitute the entire agreement of the Companies and the Purchasers and
express the entire understanding of the Companies and the Purchasers with
respect to the Securities.
13. Amendment to Section 21.12. Effective hereby, the following shall be
substituted in its entirety for Section 21.12 of the Agreement:
21.12 Conflict. If there is a conflict between the provisions of (i)
this Agreement or the Voting Trust Agreement and (ii) the Charter Documents
of Transworld, TW UK or UK Parent or any of the other Group Companies
during the continuance of this Agreement or the Voting Trust Agreement (as
the case may be), it is the intention of the parties hereto that the
provisions of this Agreement or the Voting Trust Agreement (as the case may
be) shall prevail over such Charter Documents during such period and
accordingly Transworld, the Companies and the Purchasers shall exercise all
voting and other rights and powers available to them so as to give effect
to the provisions of this Agreement
15
or the Voting Trust Agreement (as the case may be) and shall further if
necessary procure any required amendment to the Charter Documents of the
Group Companies.
14. Tax Covenants of the Companies Applicable to the Purchasers'
Securities. As a material inducement for the Purchasers to enter into this
Amendment and the Master Reorganization Agreement, each of the Companies hereby
makes the following covenants and agreements; provided, however, that all such
covenants and agreements shall, notwithstanding the terms thereof, lapse upon
the Lead Investor (or any of its Affiliates, which, for purposes of this
paragraph 14, shall included any limited partner or other constituent owner of
the Lead Investor) holding none of the shares of Series A Preferred Stock issued
to the Lead Investor on the Closing Date (including shares of Common Stock
issued upon conversion thereof):
(a) None of the Companies and any of their respective Subsidiaries and
other affiliates shall take any action, or fail to take any action, that would
cause the exchanges set forth in Section 1.1(a), (b), (c)(ii), (d)(ii), and
(e)(ii) of the Master Reorganization Agreement (collectively, the "Tax-Free
Exchanges") not to qualify as a "B" reorganization within the meaning of Section
368(a)(1)(B) of the Code.
(b) Without limiting the foregoing Section 16(a):
(i) none of the Companies and any of their respective
Subsidiaries and other affiliates will file any Tax Return or take any
position inconsistent with the treatment of the Tax-Free Exchanges as a "B"
reorganization within the meaning of Section 368(a)(1)(B) of the Code;
(ii) each of the Companies and their respective Subsidiaries and
other affiliates will comply with the record keeping and information
reporting requirements set forth in Treasury Regulations Section 1.368-3;
(iii) each of the Companies, the Subsidiaries and other
Affiliates covenant that UK Parent will at all times during the two-year
period commencing with the Closing Date continue to be an entity that is
disregarded as separate from its owner for U.S. federal income tax purposes
as contemplated by Treasury Regulations Section 301.7701-3;
(iv) each of the Companies, the Subsidiaries and other Affiliates
covenant that TW UK will at all times during the two-year period commencing
with the Closing Date continue to be a corporation, as defined under
Treasury Regulations Section 301.7701-2(b), for U.S. federal income tax
purposes;
(v) each of the Companies, the Subsidiaries and other Affiliates
covenant that the voting trust established pursuant to the Voting Trust
Agreement will at all times during the two-year period commencing with the
Closing Date continue to be either an entity that is disregarded as
separate from its owner as contemplated by Treasury Regulations Section
301.7701-3 or a grantor trust for U.S. federal income tax purposes;
16
(vi) each of the Companies, the Subsidiaries and other Affiliates
covenant that Transworld will legally and beneficially own 100% of the
stock TW UK immediately after the consummation of the Reorganization (as
defined in the Master Reorganization Agreement) either directly or
indirectly through UK Parent and the voting trust established by the Voting
Trust Agreement, and Transworld shall at all times during the two-year
period commencing with the Closing Date retain control of TW UK within the
meaning of Code Section 368(c)(1);
(vii) on or prior to the Closing Date, none of Transworld, any of
its Subsidiaries or other affiliates (including, without limitation, UK
Parent) will acquire any shares of stock of TW UK other than pursuant to
the terms of this Agreement;
(viii) on or prior to the Closing Date, Transworld will treat
itself, for U.S. federal income tax purposes, as the direct owner of the
shares of TW UK beneficially owned by UK Parent and legally owned by the
voting trust established by the Voting Trust Agreement for the two-year
period commencing with the Closing Date, and shall not file Tax Returns
relating to such two-year period, including amended Tax Returns,
inconsistent with such treatment; and
(ix) TW UK solely shall pay the expenses and taxes required to be
paid by Section 1.3 of the Master Reorganization Agreement and Section 10.7
of the Master Reorganization Agreement, such expenses and taxes shall be
paid out of the operating cash flow and cash balances of TW UK, TW UK shall
not borrow any amounts or otherwise incur any indebtedness for the purpose
of or in connection with the paying of any such expenses and taxes, and TW
UK shall not be reimbursed, directly or indirectly, by Transworld or any of
the Subsidiaries or other affiliates of Transworld (including, without
limitation, UK Parent) for any such expenditures.
(c) Transworld and UK Parent represent and warrant that, at all times
since December 17, 1999, (i) none of Transworld, any of its Subsidiaries and
other affiliates (including, without limitation, UK Parent but excluding TW UK)
has acquired stock of TW UK other than directly from TW UK in connection with
the formation of TW UK; (ii) TW UK acquired shares of its own stock, if any such
acquisitions have occurred, solely with consideration attributable to its own
operating cash flow and cash balances and not with consideration attributable to
a loan or other indebtedness or capital contribution to TW UK; and (iii)
Transworld has treated itself for U.S. federal income tax purposes as the direct
owner of the shares of TW UK beneficially owned by UK Parent and legally owned
by the voting trust established pursuant to the Voting Trust Agreement, and the
voting trust established pursuant to the Voting Trust Agreement has at all times
been either an entity that is disregarded as separate from its owner as
contemplated by Treasury Regulations Section 301.7701-3 or a grantor trust for
U.S. federal income tax purposes.
(d) None of the Companies and any of their respective Subsidiaries and
other affiliates is aware of any fact that would cause the Tax-Free Exchanges
not to qualify as a "B" reorganization within the meaning of Section
368(a)(1)(B) of the Code.
17
(e) Each of the Companies, their Subsidiaries and other Affiliates
represents and warrants that it has no present plan or intention to take any
actions or fail to take any actions that would cause the covenants set forth in
Section 14(b)(iii)-(vi) and (viii) to be violated as if such covenants were not
limited to the two-year period therein.
(f) None of the Companies, any of their Subsidiaries or other
Affiliates has acquired stock of TWUK in anticipation or contemplation of the
Tax-Free Exchange.
15. Directors. Each of Transworld and UK Parent hereby agrees to use its
best efforts to nominate for director(s) of Transworld and UK Parent,
respectively, at any instance whereupon a vote or selection for such director(s)
shall occur, including without limitation, at each meeting of the stockholders
of TW UK and UK Parent, respectively (or in each action by written consent in
lieu of a meeting), for the election of director or upon the creation of or
existence of any vacancy in the Board of Directors, those individuals as
appropriate such that the Board of Directors of Transworld and UK Parent,
respectively, will be comprised identically to the Board of Directors of TW UK.
16. Other Provisions Unchanged. Except as specifically amended hereby, all
other terms and conditions of the Agreement shall remain in full force and
effect. To the extent that the Agreement includes such terms as "herein,"
"hereto," "in this Agreement" and the like, such terms shall be interpreted to
refer to the Agreement, as modified by this Amendment.
17. Counterparts. This Amendment may be executed in separate counterparts,
each of which shall be an original and all of which taken together shall
constitute one and the same instruments.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
18
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment to the Agreement on the date first written above.
COMPANIES:
SIGNED AS A DEED FOR AND ON BEHALF OF
TRANSWORLD HEALTHCARE (UK) LIMITED
By: /s/ Xxx Xxxxxx
-------------------------------------
Name:
Title:
SIGNED AS A DEED FOR AND ON BEHALF OF
ALLIED HEALTHCARE GROUP LIMITED,
FORMERLY KNOWN AS
TRANSWORLD HOLDINGS (UK) LIMITED,
By: /s/ Xxx Xxxxxx
-------------------------------------
Name:
Title:
PURCHASERS:
SIGNED AS A DEED FOR AND ON BEHALF OF
TRIUMPH PARTNERS III, L.P.
By: Triumph III Advisors, Inc., its general partner
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
By:
-------------------------------------------------
Name:
Title:
SIGNED AS A DEED FOR AND ON BEHALF OF
TRIUMPH III INVESTORS, L.P.
By: Triumph III Investors, Inc., its general partner
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
SIGNED AS A DEED BY
ALLIED HEALTHCARE INTERNATIONAL INC.,
FORMERLY KNOWN AS TRANSWORLD
HEALTHCARE, INC.,
ACTING BY ITS DULY AUTHORIZED ATTORNEY
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name:
Title:
SIGNED AS A DEED FOR AND ON
BEHALF OF: XXXXXX (ENGLISH) COMPANY LIMITED
ACTING BY ITS DULY AUTHORIZED ATTORNEY:
By: /s/ Xxx Xxxxxx
---------------------------------------------
Name:
----------------------------------------
Title: Chairman
SIGNED AS A DEED BY:
/s/ Xxx Xxxxxx
-------------------------------------------------
Xxxxxxx X. Xxxxxx
SIGNED AS A DEED BY:
/s/ Xxxxx X. Xxxxx
-------------------------------------------------
Xxxxx X. Xxxxx
SIGNED AS A DEED BY:
/s/ Xxxxxxx Xxxxxx
-------------------------------------------------
Xxxxxxx Xxxxxxxx, by his duly authorized Attorney
SIGNED AS A DEED BY:
/s/ Xxxxxxx Xxxxxx
-------------------------------------------------
Xxxxx Xxxxxxx, by his duly authorized Attorney
SIGNED AS A DEED BY:
/s/ Xxxxxxx Xxxxxx
-------------------------------------------------
Xxxxxxx Xxxxxx
SIGNED AS A DEED BY:
/s/ Xxxxxxx Xxxxxx
-------------------------------------------------
Xxxxx Xxxxxxxxx, by his duly authorized Attorney
SIGNED AS A DEED BY:
/s/ Xxxxxxx Xxxxxx
-------------------------------------------------
Xxxxxx Xxxxxxx, by his duly authorized Attorney
SIGNED AS A DEED BY AND ON BEHALF OF:
ZRH NOMINEES (0051) LIMITED
ACTING BY ITS DULY AUTHORIZED ATTORNEY
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Group Finance Director
SIGNED AS A DEED BY AND ON BEHALF OF:
ORION NOMINEES LIMITED
ACTING BY ITS DULY AUTHORIZED ATTORNEY
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Group Finance Director
SIGNED AS A DEED BY AND ON BEHALF OF:
BNP PARIBAS
ACTING BY ITS DULY AUTHORIZED ATTORNEY:
By: /s/ Xxx Xxxxxx /s/ Xxx Xxxxxx
-----------------------------------------
Name: Xxx Xxxxxx Xxx Xxxxxx
Title:
---------------------------------------
SIGNED AS A DEED BY AND ON BEHALF OF:
BAYERISCHE HYPO-UND VEIRENSBANK AG
ACTING BY ITS DULY AUTHORIZED ATTORNEY
By: /s/ Xxx Xxxx /s/ Guy Beeston
-----------------------------------------
Name: Xxx Xxxx Guy Beeston
Title: V.P. V.P.
-------------------------------------
SIGNED AS A DEED BY AND ON BEHALF OF:
NMB XXXXXX
ACTING BY ITS DULY AUTHORIZED ATTORNEY
By: /s/ J.P. Onslow
-----------------------------------------
Name: J.P. Onslow
Title: Director
