EX-10.3 4 file003.txt SECOND AMENDMENT AGREEMENT CLIFFORD 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 --------------------------------------------------- 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. -1- "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 Laing & Buisson 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.) -2- 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 -3- 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. -4- SCHEDULE 1 RESTATED AGREEMENT -5- SIGNATURES THE BORROWER THE PARENT ALLIED HEALTHCARE GROUP LIMITED By: DAVID JOHNSON Address: STONE BUSINESS PARK BROOMS ROAD STONE STAFFORDSHIRE, ST15 0TL Fax: 01785 819031 Attention: CHARLES MURPHY THE ORIGINAL BORROWER TRANSWORLD HEALTHCARE (UK) LIMITED By: DAVID JOHNSON Address: STONE BUSINESS PARK BROOMS ROAD STONE STAFFORDSHIRE, ST15 0TL Fax: 01785 819031 Attention: CHARLES MURPHY -6- THE GUARANTORS ALLIED HEALTHCARE GROUP LIMITED By: DAVID JOHNSON Address: STONE BUSINESS PARK BROOMS ROAD STONE STAFFORDSHIRE ST15 0TL Fax: 01785 819031 Attention: CHARLES MURPHY TRANSWORLD HEALTHCARE (UK) LIMITED By: DAVID JOHNSON Address: STONE BUSINESS PARK BROOMS ROAD STONE STAFFORDSHIRE ST15 0TL Fax: 01785 819031 Attention: CHARLES MURPHY OMNICARE LIMITED By: DAVID JOHNSON Address: STONE BUSINESS PARK BROOMS ROAD STONE STAFFORDSHIRE ST15 0TL Fax: 01785 819031 Attention: CHARLES MURPHY -7- ALLIED HEALTHCARE (UK) LIMITED By: DAVID JOHNSON Address: STONE BUSINESS PARK BROOMS ROAD STONE STAFFORDSHIRE ST15 0TL Fax: 01785 819031 Attention: CHARLES MURPHY MEDIGAS LIMITED By: DAVID JOHNSON Address: STONE BUSINESS PARK BROOMS ROAD STONE STAFFORDSHIRE ST15 0TL Fax: 01785 819031 Attention: CHARLES MURPHY ALLIED OXYCARE LIMITED By: DAVID JOHNSON Address: STONE BUSINESS PARK BROOMS ROAD STONE STAFFORDSHIRE ST15 0TL Fax: 01785 819031 Attention: CHARLES MURPHY -8- NIGHTINGALE NURSING BUREAU LIMITED By: DAVID JOHNSON Address: STONE BUSINESS PARK BROOMS ROAD STONE STAFFORDSHIRE ST15 0TL Fax: 01785 819031 Attention: CHARLES MURPHY CRYSTALGLEN LIMITED By: DAVID JOHNSON Address: STONE BUSINESS PARK BROOMS ROAD STONE STAFFORDSHIRE ST15 0TL Fax: 01785 819031 Attention: CHARLES MURPHY BALFOR MEDICAL LIMITED By: DAVID JOHNSON Address: STONE BUSINESS PARK BROOMS ROAD STONE STAFFORDSHIRE ST15 0TL Fax: 01785 819031 Attention: CHARLES MURPHY -9- THE ARRANGER BNP PARIBAS By: LEO LESLIE Address: 10 HAREWOOD AVENUE LONDON, NW1 6AA Fax: 020 7595 5596 Attention: PATRICK FOX/ LEO LESLIE THE AGENT BNP PARIBAS By: LEO LESLIE Address: 10 HAREWOOD AVENUE LONDON, NW1 6AA Fax: 020 7595 5596 Attention: PATRICK FOX/ LEO LESLIE THE SECURITY AGENT BARCLAYS BANK PLC By: FRANK ROGERS Address: 5 THE NORTH COLONNADE CANARY WHARF LONDON, E14 4BB Fax: 020 7773 4893 Attention: FRANK ROGERS -10- THE UNDERWRITER BNP PARIBAS By: LEO LESLIE Address: 10 HAREWOOD AVENUE LONDON, NW1 6AA Fax: 020 7595 5596 Attention: PATRICK FOX/ LEO LESLIE THE BANK BNP PARIBAS By: LEO LESLIE Address: 10 HAREWOOD AVENUE LONDON, NW1 6AA Fax: 020 7595 5596 Attention: PATRICK FOX/ LEO LESLIE BAYERISCHE HYPO-UND VEREINSBANK LONDON BRANCH By: RAY DAWS ADRIAN MASSINK Address: 41 Moorgate London EC2R 6PP Fax: 020 7573 8352 Attention: RAY DAWS -11- NMB HELLER LIMITED By: PAUL EDMEADES Address: ENTERPRISE HOUSE BANCROFT ROAD REIGATE RH2 7RT Fax: 01737 841354 Attention: PAUL EDMEADES -12-