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FOURTH AMENDMENT TO CREDIT AGREEMENT
FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated
as of May 30, 1997, among TRANSWORLD HEALTHCARE, INC. (the "Borrower"), the
lenders from time to time party to the Credit Agreement referred to below (each
a "Bank" and, collectively, the "Banks"), and BANKERS TRUST COMPANY, as Agent
(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 8.13 of the Credit Agreement is hereby amended by inserting
the following sentence at the end thereof:
"Notwithstanding anything to the contrary contained in the
second preceding sentence, U.K. Holdings may directly own no less than
90% of the issued share capital of Omnicare until such time as the
remaining issued share capital of Omnicare shall have been compulsorily
acquired in accordance with Sections 428 to 430E of the Companies Xxx
0000 of Great Britain with the result that U.K. Holdings then owns 100%
of the issued share capital of Omnicare; provided, that such compulsory
acquisition shall be completed no later than 60 days after the Tender
Offer has become unconditional as to acceptances."
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2. Section 9.01 of the Credit Agreement is hereby amended by inserting
the following new clause (d) at the end thereof:
"(d) U.K. Holdings will engage in no business activities
(other than the ownership of the share capital of Omnicare) and will
not have any significant assets (other than the share capital of
Omnicare) 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 (i) thereof, (ii)
deleting the period appearing at the end of clause (j) thereof and inserting ";
and" in lieu thereof and (iii) inserting the following new clause (k) at the end
thereof:
"(k) the Omnicare 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)
at least 90% of the Shares shall have been tendered to U.K. Holdings in
connection with the Tender Offer, (iii) all Shares that have been
tendered to U.K. Holdings shall have been validly tendered to U.K.
Holdings and not withdrawn and available for purchase by U.K. Holdings
in accordance with the terms of the Tender Offer, (iv) such tendered
Shares shall be free and clear of all Liens and restrictions to
purchase imposed by applicable law or otherwise and (v) 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
Omnicare Acquisition as the Agent may reasonably request."
4. Section 9.05 of the Credit Agreement is hereby amended by deleting
clause (q) appearing therein in its entirety and inserting the following new
clause (q) in lieu thereof:
"(q) U.K. Holdings may consummate the Omnicare Stock Purchase
so long as (1) no Default or Event of Default is in existence at the
time of the consummation thereof or immediately after giving effect
thereto,(2) all consideration therefor shall be paid in cash in an
aggregate amount not to exceed $3,100,000, (3) all representations and
warranties contained herein and in the other Credit Documents shall be
true and correct in all material respects with the same effect as
though such representations and warranties had been made on and as of
the date of consummation of the Omnicare Stock Purchase (both before
and after giving effect thereto), unless stated to relate to a specific
earlier
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date, in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date, (4)
neither the Borrower nor any of its Subsidiaries is or becomes liable
for any Indebtedness or other obligations of any nature whatsoever
(whether absolute, contingent or otherwise and whether or not due) of
Omnicare or any of its Subsidiaries and (5) such purchase is
consummated in all respects pursuant to and in accordance with the
Omnicare Stock Purchase Agreement;"
5. Section 9.05 of the Credit Agreement is hereby further amended by
(i) deleting the word "and" appearing at the end of clause (q) thereof, (ii)
deleting the period appearing at the end of clause (r) thereof and inserting ";
and" in lieu thereof and (iii) inserting the following new clause (s) at the end
thereof:
"(s) the Borrower may make an Intercompany Loan to U.K.
Holdings so long as (i) the aggregate principal amount of such
Intercompany Loan does not exceed $31,000,000 (determined without
regard to any write-downs or write-offs) and (ii) 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."
6. Section 9.12 of the Credit Agreement is hereby amended by inserting
the following new clause (c) at the end thereof:
"(c) The Borrower will not, and will not permit any of its
Subsidiaries to, amend, modify or change any provision of the Tender
Offer Documents, other than any amendment, modification or change which
does not in any way adversely affect the interests of the Banks."
7. Section 11 of the Credit Agreement is hereby amended by deleting the
definitions of "Omnicare Stock Purchase" and "Omnicare Stock Purchase Agreement"
appearing therein in their entirety and inserting in the appropriate
alphabetical order the following new definitions of "Omnicare Stock Purchase
Agreement" in lieu thereof:
"Omnicare Stock Purchase" shall mean the purchase by U.K.
Holdings pursuant to the Omnicare Stock Purchase Agreement of 1,765,000
shares of the issued shares of Omnicare, representing not more than 20%
of the issued share capital of Omnicare.
"Omnicare Stock Purchase Agreement" shall mean the sale and
purchase agreement between U.K. Holdings and Hyperion Partners II, all
of the terms and conditions of which shall be required to be
satisfactory in form and
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substance to the Agent and the Required Banks in their sole and
absolute discretion.
8. Section 11 of the Credit Agreement is hereby further amended by
inserting in appropriate alphabetical order the following new definitions:
"Fourth Amendment Effective Date" shall have the meaning
provided in the Fourth Amendment, dated as of May 30, 1997 to this
Agreement.
"Omnicare Acquisition" shall mean the purchase by U.K.
Holdings for cash of the Shares pursuant to the Recommended Cash Offer.
"Shares" shall mean the share capital issued and to be issued
of Omnicare, other than those issued shares to be acquired by U.K.
Holdings pursuant to the Omnicare Stock Purchase Agreement.
"Tender Offer" shall mean the recommended cash offer to be
made by U.K. Holdings for the whole of the share capital issued and to
be issued of Omnicare pursuant to a press announcement issued by U.K.
Holdings on May 28, 1997, in form and substance reasonably satisfactory
to the Agent and the Required Banks and as the same may be amended,
modified or supplemented from time to time pursuant to the terms
thereof and hereof.
"Tender Offer Documents" shall mean the offer document, the
press announcements and all related documents distributed to the
shareholders of Omnicare.
"U.K. Holdings" shall mean Transworld Healthcare (UK) Limited,
a company organized under the laws of England with registered number
3370146.
9. Notwithstanding anything in the contrary contained in Section 9.03
of the Credit Agreement, the Banks hereby consent to the Borrower placing an
amount not to exceed $31.0 million in escrow with Ashurst Xxxxxx Xxxxx for the
purpose of satisfying the cash consideration payable in connection with the
Omnicare Acquisition, pursuant to an escrow arrangement satisfactory to the
Agent.
II. Miscellaneous Provisions.
1. In order to induce the Banks to enter into this Amendment, the
Borrower hereby represents and warrants that:
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(a) no Default or Event of Default exists as of the Fourth
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 on the Fourth 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 Fourth 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).
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 "Fourth
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 Fourth Amendment
Effective Date.
6. From and after the Fourth 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: CFO
BANKERS TRUST COMPANY,
Individually and as Agent
By /s/ Xxxxxxxx Xxxxx
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Title: XXXXXXXX XXXXX
VICE PRESIDENT
THE BANK OF NEW YORK
By
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Title:
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BANQUE PARIBAS
By
-------------------------------------
Title:
By
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Title:
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By /s/ Xxx X. Xxxxx
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Title: XXX X. XXXXX
VICE PRESIDENT
By /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Title: XXXXXXX XXXXXXX
VICE PRESIDENT
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Each of the undersigned, each being a Subsidiary Guarantor pursuant to the
Credit Agreement referenced in the foregoing Fourth Amendment and a party to
various Security Documents, hereby acknowledges and agrees to the foregoing
provisions of the Fourth Amendment.
Acknowledged and
Agreed this 30th day
of May, 1997.
DERMAQUEST, INC.,
as a Pledgor
By /s/ Xxxxx X. Xxxxxxxxx
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Title: Vice President
MK DIABETIC SUPPORT
SERVICES, INC.,
as a Pledgor
By /s/ Xxxxx X. Xxxxxxxxx
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Title: Vice President
THE PROMPTCARE COMPANIES, INC.,
as a Pledgor
By /s/ Xxxxx X. Xxxxxxxxx
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Title: Vice President
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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
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Title: Vice President
RADAMERICA, INC.,
as a Pledgor
By /s/ Xxxxx X. Xxxxxxxxx
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Title: Vice President
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RESPIFLOW, INC.,
as a Pledgor
By /s/ Xxxxx X. Xxxxxxxxx
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Title: Vice President