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FIFTH AMENDMENT TO CREDIT AGREEMENT
FIFTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
June 30, 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 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. Section 8 of the Credit Agreement is hereby amended by adding the
following new Section 8.20 immediately after the existing Section 8.19:
"Section 8.20. Take-Out Financing. (a) The Borrower shall, on or
prior to the Fifth Amendment Effective Date, engage one or more investment
banks (collectively, the "Take-Out Banks") satisfactory to the Agent to
publicly sell or privately place subordinated debt securities (the
"Take-Out Securities") of the Borrower providing net cash proceeds to the
Borrower of not less than $100,000,000 to refinance this Agreement.
(b) The Borrower shall use its best efforts to complete an offering
memorandum for use in the placement of the Take-Out Securities by the
Take-Out Banks and take any other steps reasonably required to place the
Take-Out Securities as expeditiously as reasonably possible.
(c) Notwithstanding anything to the contrary contained in this
Section 8.20, no Take-Out Securities shall be issued unless (i) the net
cash proceeds
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received by the Borrower from the sale of the Take-Out Securities are at
least $100,000,000 and (ii) after giving effect to the issuance of the
Take-Out Securities and the application of the proceeds thereof, the Total
Commitment is terminated and all Obligations hereunder paid in full."
2. Section 9.01 of the Credit Agreement is hereby amended by deleting
clause (d) thereof in its entirety and inserting the following new clause (d) in
lieu thereof:
"(d) U.K. Holdings will engage in no business activities (other than
the acquisition and ownership of the share capital of Omnicare and Allied)
and will not have any significant assets (other than the share capital of
Omnicare and Allied) or liabilities (other than those liabilities
otherwise permitted by this Agreement)."
3. Section 9.02 of the Credit Agreement is hereby amended by (i) deleting
the word "and" appearing at the end of clause (j) thereof, (ii) deleting the
period appearing at the end of clause (k) thereof and inserting "; and" in lieu
thereof and (iii) inserting the following new clause (l) immediately following
existing clause (k) thereof:
"(l) the Allied Acquisition shall be permitted so long as (i) no
Default or Event of Default is in existence at the time of the
consummation thereof or immediately after giving effect thereto, (ii) the
aggregate consideration paid in connection therewith shall not exceed
$63.0 million, (iii) such acquisition is consummated in accordance with
the terms and provisions of the Allied Stock Purchase Documents and all
applicable laws, rules and regulations relating thereto, and (iv) the
Agent shall have received an opinion of counsel, addressed to the Agent
and each of the Banks, from Ashurst Xxxxxx Xxxxx, counsel to U.K.
Holdings, which opinion of counsel shall be in form and substance
reasonably satisfactory to the Agent and shall cover such matters incident
to the Allied Acquisition as the Agent may reasonably request."
4. The text of Section 9.04(e) is hereby deleted in its entirety and the
following new text is inserted in lieu thereof:
"Indebtedness constituting Intercompany Loans to the extent
permitted by Sections 9.05(f), (s) and (t);"
5. Section 9.05 of the Credit Agreement is hereby amended by (i) deleting
the amount "$250,000" in clause (f) thereof and inserting "$1,000,000" in lieu
thereof
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and (ii) deleting clause (s) thereof in its entirety and inserting the following
new clause (s) in lieu thereof:
"(s) in connection with the Omnicare Stock Purchase and the Omnicare
Acquisition, the Borrower may (x) make an Intercompany Loan to U.K.
Holdings and/or capitalize U.K. Holdings with a cash contribution so long
as (x) the sum of the aggregate principal amount of such Intercompany Loan
(determined without regard to write-downs or write-offs) and cash
contribution does not exceed $31,000,000, (y) notwithstanding anything to
the contrary contained in this Agreement, such Intercompany Loan is
evidenced by an Intercompany Note that will be pledged to the Collateral
Agent pursuant to the Pledge Agreement and (z) the aggregate amount of
such cash contribution does not exceed 50% of the sum of the aggregate
principal amount of such Intercompany Loan (determined without regard to
write-offs or write-downs) and cash contribution."
6. Section 9.05 of the Credit Agreement is hereby further amended by (i)
deleting the word "and" appearing at the end of clause (r) thereof, (ii)
deleting the period at the end of clause (s) thereof and inserting "; and" in
lieu thereof and (iii) inserting the following new clause (t) immediately
following existing clause (s) thereof:
"(t) in connection with the Allied Acquisition, the Borrower may
make an Intercompany Loan to U.K. Holdings so long as (x) the sum of the
aggregate principal amount of such Intercompany Loan (determined without
regard to any write-downs or write-offs) and cash contribution does not
exceed $63,000,000, (y) notwithstanding anything to the contrary contained
in this Agreement, such Intercompany Loan is evidenced by an Intercompany
Note that will be pledged to the Collateral Agent pursuant to the Pledge
Agreement and (z) the aggregate amount of such cash contribution does not
exceed 50% of the sum of the aggregate principal amount of such
Intercompany Loan (determined without regard to write-offs or write-downs)
and cash contribution."
7. Section 9.09 of the Credit Agreement is hereby amended by deleting the
amounts "$11,000,000", "$12,000,000", "$13,000,000" and "$14,000,000 appearing
therein and inserting the amounts "$17,000,000", "$21,000,000", "$25,000,000"
and "$30,000,000", respectively, in lieu thereof.
8. Section 9.10 of the Credit Agreement is hereby amended by deleting the
table contained therein in its entirety and inserting in lieu thereof the
following table:
"Period Ratio
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Effective Date to and 1.75 : 1.0
including July 31, 1998
August 1, 1998 to and 2.25 : 1.0
including July 31, 1999
August 1, 1999 to and 2.75 : 1.0
including July 31, 2000
August 1, 2000 and thereafter 3.00 : 1.0"
9. Section 9.11 of the Credit Agreement is hereby amended by deleting the
table contained therein in its entirety and inserting in lieu thereof the
following table:
"Period Ratio
Effective Date to and 5.50 : 1.0
including July 31, 1998
August 1, 1998 to and 5.00 : 1.0
including July 31, 1999
August 1, 1999 to and 4.50 : 1.0
including July 31, 2000
August 1, 2000 and thereafter 4.00 : 1.0"
10. Section 9.12(c) of the Credit Agreement is hereby amended by inserting
the words "or the Allied Stock Purchase Documents" immediately after the words
"Tender Offer Documents" but before the comma appearing therein.
11. Section 11 of the Credit Agreement is hereby amended by inserting in
appropriate alphabetical order the following new definitions:
""Allied" shall mean Allied Medicare Limited, a private limited
company organized under the laws of England with registered number
1689856.
"Allied Acquisition" shall mean the purchase by U.K. Holdings of
100% of the issued share capital of Allied.
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"Allied Stock Purchase Agreement" shall mean the stock purchase
agreement, dated as of July 1, 1997, among Vanessa Xxxxxxxx
Xxxx-Xxxxxxxxx, Xxxxx Xxxx Xxxxxxxxx and U.K. Holdings, as in effect on
the Fifth Amendment Effective Date.
"Allied Stock Purchase Documents" shall mean the Allied Stock
Purchase Agreement and any other agreement entered into in connection with
the Allied Stock Purchase, together with any annexes, exhibits or
schedules thereto, as the same may be amended, modified or supplemented
from time to time in accordance with the terms hereof and thereof.
"Fifth Amendment Effective Date" shall have the meaning provided in
the Fifth Amendment, dated as of June 30, 1997, to this Agreement.
"Take-Out Banks" shall have the meaning provided in Section 8.20.
"Take-Out Securities" shall have the meaning provided in Section
8.20."
12. Section 13.12 of the Credit Agreement is hereby amended by (i)
deleting the word "or at the end or clause (a)(iv) thereof and inserting in lieu
thereof a comma and (ii) inserting at the end of clause (a)(v) the following new
clause (vi) immediately prior to the semicolon:
"or (vi) amend, modify or waive any provision of Section 3.03(d)".
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 Fifth Amendment
Effective Date (as defined below), both before and 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 Fifth Amendment Effective Date, both
before and after giving effect to this Amendment, with the same effect as
though such representations and warranties had been made on and as of the
Fifth Amendment Effective Date
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(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).
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 "Fifth
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 Fifth Amendment
Effective Date.
6. From and after the Fifth 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
/s/ Xxxxx Xxxxxxxxx
By______________________________
Title: Chief Financial Officer
BANKERS TRUST COMPANY,
Individually and as Agent
/s/ Xxxx X. Xxxxxxxx
By______________________________
Title: Vice President
THE BANK OF NEW YORK
/s/ Xxxxxxx X. X'Xxxxx
By______________________________
Title: Senior Vice President
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BANQUE PARIBAS
/s/ Xxxxx X. Xxxxxxx
By_______________________________
Title: Group Vice President
/s/ Xxxxxx Xxxxxxxx
By_______________________________
Title: Vice President
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
/s/ Xxxxxxx X. Xxxxx
By_______________________________
Title: Assistant Vice President
/s/ Xxxxxxx Xxxxxxx
By_______________________________
Title: Vice President
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FLEET BANK, N.A.
/s/ Xxxxxx Xxxxxxx
By_____________________________
Title: Vice President
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Each of the undersigned, each being a Subsidiary Guarantor pursuant to the
Credit Agreement referenced in the foregoing Fifth Amendment and a party to
various Security Documents, hereby acknowledges and agrees to the foregoing
provisions of the Fifth Amendment.
Acknowledged and
Agreed this 30th day
of June, 1997.
DERMAQUEST, INC.,
as a Pledgor
/s/ Xxxxx Xxxxxxxxx
By_____________________________
Title: Vice President
MK DIABETIC SUPPORT
SERVICES, INC.,
as a Pledgor
/s/ Xxxxx Xxxxxxxxx
By_____________________________
Title: Vice President
THE PROMPTCARE COMPANIES, INC.,
as a Pledgor
/s/ Xxxxx Xxxxxxxxx
By_____________________________
Title: Vice President
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THE PROMPTCARE LUNG CENTER,
INC.,
as a Pledgor
/s/ Xxxxx Xxxxxxxxx
By_____________________________
Title: Vice President
STERI-PHARM, INC.,
as a Pledgor
/s/ Xxxxx Xxxxxxxxx
By_____________________________
Title: Vice President
TRANSWORLD HOME HEALTHCARE NURSING DIVISION, INC.,
as a Pledgor
/s/ Xxxxx Xxxxxxxxx
By_____________________________
Title: Vice President
RADAMERICA, INC.,
as a Pledgor
/s/ Xxxxx Xxxxxxxxx
By_____________________________
Title: Vice President
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RESPIFLOW, INC.,
as a Pledgor
/s/ Xxxxx Xxxxxxxxx
By_____________________________
Title: Vice President
