Exbibit 10.34
EIGHTH AMENDMENT TO CREDIT AGREEMENT
EIGHTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"),
dated as of November 12, 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 8.01(a) of the Credit Agreement is hereby amended by
inserting the phrase "(or, in the case of the monthly report for October 1997,
comparative figures for October 1996)" immediately after the phrase "in the
prior fiscal year" appearing therein.
2. Section 8.10 of the Credit Agreement is hereby amended by (i)
deleting the phrase "October 31" appearing immediately after the phrase "fiscal
years to end on" and inserting in lieu thereof "September 30" and (ii) deleting
the phrase "January 31, April 30, July 31 and October 31" and inserting in lieu
thereof the phrase "December 31, March 31, June 30 and September 30" in lieu
thereof.
3. Section 9.02 of the Credit Agreement is hereby amended by (i)
deleting the word "and" appearing at the end of clause (k) thereof, (ii)
deleting the period appearing at the end of clause (l) thereof and inserting a
semicolon in lieu thereof and
(iii) inserting the following new clauses immediately following existing
clause (l) thereof:
"(m) the Abbey 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 $80,000 and (iii) such acquisition is consummated in accordance
with the terms and provisions of the Abbey Asset Purchase Documents
and all applicable laws, rules and regulations relating thereto; and
(n) the Care 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 (pound)450,000 pounds sterling and (iii) such acquisition is
consummated in accordance with the terms and provisions of the Care
Asset Purchase Documents and all applicable laws, rules and
regulations relating thereto."
4. Section 9.07(ii) of the Credit Agreement is hereby amended by (x)
deleting the words "fiscal years of the Borrower" appearing twice in the
proviso thereto and, in each case, inserting in lieu thereof the phrase "twelve
month period" and (y) deleting the words "fiscal year of the Borrower"
appearing twice in the proviso thereto and, in each case, inserting in lieu
thereof the phrase "twelve month period".
5. Section 9.09 of the Credit Agreement is hereby amended by (x)
inserting the immediately following the phrase "Consolidated EBITDA" and
immediately prior to the phrase "for any Test Period" the following new phrase
"(i) for the month ending October 31, 1997 (taken as one accounting period) to
be less than $800,0000, (ii) for the period of two consecutive months ending on
November 30, 1997 (taken as one accounting period) to be less than $1,700,000
and (iii)" and (y) deleting the table contained therein in its entirety and
inserting in lieu thereof the following table:
"Period Amount
------- ------
December 31, 1997 $3,200,000
January 1, 1998 to and $6,000,000
including March 31, 1998
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April 1, 1998 to and $9,500,000
including June 30, 1998
July 1, 1998 to and $13,800,000
including September 30, 1998
October 1, 1998 to and $14,300,000
including December 31, 1998
January 1, 1999 to and $14,900,000
including March 31, 1999
April 1, 1999 to and $15,500,000
including June 30, 1999
July 1, 1999 to and $16,250,000
including September 30, 1999
October 1, 1999 to and $16,750,000
including December 31, 1999
January 1, 2000 to and $17,250,000
including March 31, 2000
April 1, 2000 to and $17,750,000
including June 30, 2000
July 1, 2000 to and $18,250,000
including September 30, 2000
October 1, 2000 to and $18,750,000
including December 31, 2000
January 1, 2001 to and $19,250,000
including March 31, 2001
April 1, 2001 to and $20,000,000"
including June 30, 2001
6. 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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December 31, 1997 2.2:1.0
January 1, 1998 to and 2.2:1.0
including March 31, 1998
April 1, 1998 to and 2.3:1.0
including June 30, 1998
July 1, 1998 to and 2.6:1.0
including September 30, 1998
October 1, 1998 to and 2.8:1.0
including December 31, 1998
January 1, 1999 to and 2.9:1.0
including March 31, 1999
April 1, 1999 to and 3.1:1.0
including June 30, 1999
July 1, 1999 to and 3.2:1.0
including September 30, 1999
October 1, 1999 to and 3.3:1.0
including December 31, 1999
January 1, 2000 to and 3.4:1.0
including March 31, 2000
April 1, 2000 to and 3.5:1.0
including June 30, 2000
July 1, 2000 to and 3.6:1.0
including September 30, 2000
October 1, 2000 to and 3.7:1.0
including December 31, 2000
January 1, 2001 to and 3.8:1.0
including March 31, 2001
April 1, 2001 to and 3.9:1.0"
including June 30, 2001
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7. 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
------- -----
December 31, 1997 5.1:1.0
January 1, 1998 to and 5.40:1.0
including March 31, 1998
April 1, 1998 to and 4.9:1.0
including June 30, 1998
July 1, 1998 to and 4.4:1.0
including September 30, 1998
October 1, 1998 to and 4.2:1.0
including December 31, 1998
January 1, 1999 to and 4.0:1.0
including March 31, 1999
April 1, 1999 to and 3.9:1.0
including June 30, 1999
July 1, 1999 to and 3.8:1.0
including September 30, 1999
October 1, 1999 to and 3.7:1.0
including December 31, 1999
January 1, 2000 to and 3.6:1.0
including March 31, 2000
April 1, 2000 to and 3.5:1.0
including June 30, 2000
July 1, 2000 to and 3.4:1.0
including September 30, 2000
October 1, 2000 to and 3.3:1.0
including December 31, 2000
January 1, 2001 to and 3.2:1.0
including March 31, 2001
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April 1, 2001 to and 3.1:1.0"
including June 30, 2001
8. Section 9.12(a)(iii) of the Credit Agreement is hereby amended by
inserting the following new clause (v) immediately preceding clause (w):
"(v) those changes to the Certificate of Incorporation of the
Borrower authorizing an increase of the Borrower's authorized capital
stock by ten million shares of common stock,"
9. Section 9.12(c) of the Credit Agreement is hereby amended by
inserting the words "the Care Asset Purchase Documents, the Abbey Asset
Purchase Documents" immediately before the words "the Tender Offer Documents"
appearing therein.
10. The definition of "Hyperion Trade Payables" appearing in Section
11 of the Credit Agreement is hereby amended by (i) deleting the word "and" at
the end of clause (i) thereof and inserting in lieu thereof a comma and (ii)
inserting the following phrase immediately before the period at the end
thereof:
"and (iii) the Caremark Payables"
11. The definition of "Leverage Ratio" appearing in Section 11 of the
Credit Agreement is hereby deleted in its entirety and the following new
definition is inserted in lieu thereof:
"Leverage Ratio" shall mean on any date the ratio of (i)
Consolidated Debt on such date to (ii) Consolidated EBITDA for the
Test Period then last ended; provided that for purposes of determining
the Leverage Ratio for the purposes of Section 9.11, Consolidated
EBITDA for each Test Period ending on or prior to September 30, 1998
shall mean the product of (x) Consolidated EBITDA for such Test Period
multiplied by (y) a fraction, the numerator of which is 4 and the
denominator of which is the number of full fiscal quarters of the
Borrower elapsed during such Test Period; provided further that for
purposes of determining compliance with Section 9.11 at any time after
a Permitted Acquisition is effected, Consolidated EBITDA shall, for
the purposes of this definition only, be calculated on a Pro Forma
Basis (but only giving effect to adjustments described in clause (iii)
of the definition of Pro Forma Basis) after giving effect to such
Permitted Acquisition.
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12. The definition of "Test Period" appearing in Section 11 of the
Credit Agreement is hereby deleted in its entirety and the following new
definition is inserted in lieu thereof:
"Test Period" shall mean (i) for any determination made prior
to September 30, 1998, the period from October 1, 1997 to the last day
of the fiscal quarter of the Borrower then last ended and (ii) for any
determination made thereafter, the four consecutive fiscal quarters of
the Borrower then last ended, in each case taken as one accounting
period, with the first Test Period to end on or closest to the last
day of the fiscal quarter ending December 31, 1997.
13. Section 11 of the Credit Agreement is hereby amended by inserting
in appropriate alphabetical order the following new definitions:
"Eighth Amendment Effective Date" shall have the meaning
provided in the Eighth Amendment, dated as of November 12, 1997, to
this Agreement.
"Abbey" shall mean the nursing and care agency business
operated by ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in England under the
name "Abbey Care Agency".
"Abbey Acquisition" shall mean the purchase by Allied of
certain of the assets, property and rights used in connection with the
Abbey business.
"Abbey Asset Purchase Agreement" shall mean the asset
purchase agreement among Allied, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ in
substantially the form delivered to the Agent on the Eighth Amendment
Effective Date.
"Abbey Asset Purchase Documents" shall mean the Abbey Asset
Purchase Agreement and any other agreement entered into in connection
with the Abbey Asset 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.
"Care" shall mean Care Nursing Services Ltd., a company
organized under the laws of England with registered number 144017.
"Care Acquisition" shall mean the purchase by Allied of
certain of the assets, property and rights belonging to Care.
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"Care Asset Purchase Agreement" shall mean the asset purchase
agreement between Allied and Care in substantially the form delivered
to the Agent on the Eighth Amendment Effective Date.
"Care Asset Purchase Documents" shall mean the Care Asset
Purchase Agreement and any other agreement entered into in connection
with the Care Asset 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.
14. Notwithstanding anything to the contrary contained in the Credit
Agreement, the Borrower or any of its Subsidiaries, in its discretion, may, at
any time and from time to time after the Eight Amendment Effective Date acquire
all or substantially all of the assets or capital stock of one or more Persons;
provided that (i) the aggregate consideration paid for such acquisitions does
not exceed $800,000, (ii) no Default or Event of Default shall be in existence
at the time of the consummation of any such proposed acquisition or immediately
after giving effect thereto, (iv) the Borrower shall have given the Agent at
least 10 Business Days prior written notice of any such acquisition and (v) all
the terms and conditions of any such acquisition and the documents therefor are
in form and substance satisfactory to the Agent in its sole and absolute
discretion.
15. Notwithstanding anything to the contrary contained in the Credit
Agreement or the other Credit Documents, the Required Banks hereby consent to
the change of the name of the Borrower from "Transworld HealthCare, Inc." to
"Transworld Healthcare, Inc."; provided that (i) the Borrower shall give the
Agent and the Banks at least 30 days' prior written notice of the effective
date of such name change, (ii) the Borrower shall have delivered to the Agent
executed copies of amendment statements (Form UCC-3 or the appropriate local
equivalent) for filing under the UCC of each jurisdiction where a Financing
Statement Form UCC-1 or the appropriate equivalent was filed with respect to
the Borrower in connection with the Credit Agreement and (iii) the Borrower
shall have taken (and shall thereafter take) such other actions, at the
Borrower's expense, as may have been reasonably requested by the Agent, the
Collateral Agent or the Required Banks in connection with such name change,
with respect to the Security Documents and to protect the priority and
perfection of the security interests created thereunder.
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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 Eighth
Amendment Effective Date (as defined below), after giving effect to
this Amendment; and
(b) all of the representations and warranties contained in
the Credit Agreement and the other Credit Documents are true and
correct in all material respects as of the Eighth 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 Eighth 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 "Eighth
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 Eighth Amendment
Effective Date.
6. From and after the Eighth 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/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Senior Vice President and
Chief Financial Officer
BANKERS TRUST COMPANY,
Individually and as Agent
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
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Title: Senior Vice President
BANQUE PARIBAS
By
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Title:
By
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Title:
UNION BANK OF SWITZERLAND,
NEW YORK BRANCH
By /s/ ▇▇▇ ▇. ▇▇▇▇▇
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Title: Director
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Director
FLEET BANK, N.A.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Vice President
Each of the undersigned, each being a Subsidiary Guarantor pursuant to the
Credit Agreement referenced in the foregoing Eighth Amendment and a party to
various Security Documents, hereby acknowledges and agrees to the foregoing
provisions of the Eighth Amendment.
Acknowledged and
Agreed this 12th day
of November, 1997.
DERMAQUEST, INC.,
as a Pledgor
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
MK DIABETIC SUPPORT
SERVICES, INC.,
as a Pledgor
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
THE PROMPTCARE COMPANIES, INC.,
as a Pledgor
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
THE PROMPTCARE LUNG CENTER, INC.,
as a Pledgor
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
STERI-PHARM, INC.,
as a Pledgor
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
TRANSWORLD HOME HEALTHCARE NURSING DIVISION, INC.,
as a Pledgor
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
RESPIFLOW, INC.,
as a Pledgor
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
TRANSWORLD ACQUISITION CORP.,
as a Pledgor
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Vice President
