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
AS UNDERWRITER
BNP PARIBAS
AS AGENT
BARCLAYS Bank PLC
AS AGENT AND SECURITY AGENT
AND
OTHERS
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SECOND AMENDMENT AGREEMENT
RELATING TO A
MEZZANINE 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..............................................................2
3. Representations..........................................................3
4. Continuity And Further Assurance.........................................3
5. Fees, Costs And Expenses.................................................3
6. Miscellaneous............................................................4
Schedule 1 RESTATED AGREEMENT..........................................5
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) BNP PARIBAS 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 as underwriter of the Facilities (the "UNDERWRITER"); and
(8) THE BANKS (as defined in the Original Mezzanine 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.
"EFFECTIVE DATE" has the meaning given to such term in the Senior
Amendment Agreement.
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"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.
"ORIGINAL MEZZANINE CREDIT AGREEMENT" means the Mezzanine Credit
Agreement dated 17 December 1999 between the Parent, the Original
Borrower, the Original Guarantors, the Arranger, the Agent, the Security
Agent, the Underwriter and the Banks as amended by the Amendment
Agreement.
"RESTATED AGREEMENT" means the Original Mezzanine Credit Agreement, as
amended and restated by this Agreement, the terms of which are set out in
Schedule 1 (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.
"SENIOR AMENDMENT AGREEMENT" means the amendment agreement dated on or
about the date hereof relating to a senior 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 Senior Lenders and Others.
1.2 INCORPORATION OF DEFINED TERMS
Terms defined in the Original Mezzanine 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 MEZZANINE CREDIT AGREEMENT
With effect from the Effective Date the Original Mezzanine Credit
Agreement shall be amended and restated so that it shall be read and
construed for all purposes as set out in Schedule 1 (Restated Agreement.)
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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 (Commitment Commission and Fees) 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 16.12 (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 16.11 (Reports) as if reference to
the "Reports" is a reference to the Revised Reports.
4. CONTINUITY AND FURTHER ASSURANCE
4.1 CONTINUING OBLIGATIONS
The provisions of the Finance Documents shall, save as amended hereby,
continue in full force and effect.
4.2 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.
5. FEES, COSTS AND EXPENSES
5.1 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.
5.2 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
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enforcement of any of the rights of the Finance Parties under this
Agreement and any other document referred to in this Agreement.
5.3 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.
5.4 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.
6. MISCELLANEOUS
6.1 INCORPORATION OF TERMS
The provisions of Clause 32.1 (Binding Agreement), Clause 36 (Remedies
and Waiver, Partial Invalidity), Clause 40 (Governing Law) and Clause 41
(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.
6.2 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
RESTATED AGREEMENT
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SIGNATURES
THE BORROWER
THE PARENT
ALLIED HEALTHCARE GROUP LIMITED
By: XXXXX XXXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX, XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
THE ORIGINAL BORROWER
TRANSWORLD HEALTHCARE (UK) LIMITED
By: XXXXX XXXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX, XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
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THE GUARANTORS
ALLIED HEALTHCARE GROUP LIMITED
By: XXXXX XXXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
TRANSWORLD HEALTHCARE (UK) LIMITED
By: XXXXX XXXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
OMNICARE LIMITED
By: XXXXX XXXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
-7-
ALLIED HEALTHCARE (UK) LIMITED
By: XXXXX XXXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
MEDIGAS LIMITED
By: XXXXX XXXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
ALLIED OXYCARE LIMITED
By: XXXXX XXXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
-8-
NIGHTINGALE NURSING BUREAU LIMITED
By: XXXXX XXXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
CRYSTALGLEN LIMITED
By: XXXXX XXXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
BALFOR MEDICAL LIMITED
By: XXXXX XXXXXXX
Address: XXXXX XXXXXXXX XXXX
XXXXXX XXXX
XXXXX
XXXXXXXXXXXXX
XX00 0XX
Fax: 01785 819031
Attention: XXXXXXX XXXXXX
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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
BNP PARIBAS
By: XXX XXXXXX
Address: 00 XXXXXXXX XXXXXX
XXXXXX, XX0 0XX
Fax: 020 7595 5596
Attention: XXXXXXX XXX/ XXX 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
-10-
THE UNDERWRITER
BNP PARIBAS
By: XXX XXXXXX
Address: 00 XXXXXXXX XXXXXX
XXXXXX, XX0 0XX
Fax: 020 7595 5596
Attention: XXXXXXX XXX/ XXX XXXXXX
THE BANK
BNP PARIBAS
By: XXX XXXXXX
Address: 00 XXXXXXXX XXXXXX
XXXXXX, XX0 0XX
Fax: 020 7595 5596
Attention: XXXXXXX XXX/ XXX XXXXXX
BAYERISCHE HYPO-UND VEREINSBANK LONDON BRANCH
By: XXX XXXX XXXXXX XXXXXXX
Address: 00 Xxxxxxxx
Xxxxxx
XX0X 0XX
Fax: 020 7573 8352
Attention: XXX XXXX
-11-
NMB XXXXXX LIMITED
By: XXXX XXXXXXXX
Address: XXXXXXXXXX XXXXX
XXXXXXXX XXXX
XXXXXXX
XX0 0XX
Fax: 01737 841354
Attention: XXXX XXXXXXXX
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