EX-10 4 q2ex10-2.txt AMENDED AND RESTATED CREDIT AGREEMENT EXHIBIT 10.2 THIRD AMENDED AND RESTATED CREDIT AGREEMENT among APRIA HEALTHCARE GROUP INC. as Borrower, CERTAIN OF ITS SUBSIDIARIES, as Guarantors, THE LENDERS IDENTIFIED HEREIN, BANK OF AMERICA, N.A., as Agent and CREDIT LYONNAIS NEW YORK BRANCH, THE BANK OF NOVA SCOTIA AND FLEET NATIONAL BANK, as Co-Syndication Agents Dated as of June 7, 2002 ARRANGED BY: BANC OF AMERICA SECURITIES LLC, as Sole Lead Arranger and Sole Book Manager THIRD AMENDED AND RESTATED CREDIT AGREEMENT THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this "Amendment and Restatement"), dated as of June 7, 2002, amends and restates that certain Second Amended and Restated Credit Agreement dated July 20, 2001, by and among APRIA HEALTHCARE GROUP INC., a Delaware corporation (the "Borrower"), the Subsidiaries of the Borrower identified on the signature pages thereto (individually a "Guarantor", collectively the "Guarantors"), the lenders party thereto (the "Lenders"), BANK OF AMERICA, N.A., as agent for the Lenders (the "Agent"), and CREDIT LYONNAIS NEW YORK BRANCH, THE BANK OF NOVA SCOTIA and FLEET NATIONAL BANK, as Co-Syndication Agents (the "Existing Credit Agreement"). W I T N E S S E T H WHEREAS, the Borrower has requested, and the Required Lenders and the Lenders holding the outstanding Tranche B Term Loans have agreed, to amend and restate the Existing Credit Agreement as set forth herein on the terms and subject to the conditions provided herein; NOW, THEREFORE, in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows: PART 1 DEFINITIONS SUBPART 1.1 Certain Definitions. Unless otherwise defined herein or the context otherwise requires, the following terms used in this Amendment and Restatement, including its preamble and recitals, have the following meanings: "Third Amended and Restated Credit Agreement" means the Existing Credit Agreement as amended and restated hereby. "Third Amendment and Restatement Effective Date" as defined in Subpart 3.1. SUBPART 1.2 Other Definitions. Unless otherwise defined herein or the context otherwise requires, terms used in this Amendment and Restatement, including its preamble and recitals, have the meanings provided in the Existing Credit Agreement. PART 2 AMENDMENT AND RESTATEMENT OF EXISTING CREDIT AGREEMENT Effective on (and subject to the occurrence of) the Third Amendment and Restatement Effective Date, the Existing Credit Agreement is hereby amended and restated in the form of a Third Amended and Restated Credit Agreement dated as of the date hereof, the terms of which shall be identical to the terms of the Existing Credit Agreement except as expressly provided in this Part 2. SUBPART 2.1 The following definitions appearing in Section 1.1 of the Existing Credit Agreement are amended and restated in their entireties to read as follows: (a) The pricing grid in the definition "Applicable Percentage" is replaced with the pricing grid set forth below:
==================================================================================================== APPLICABLE PERCENTAGES ---------------------------------------------------------------------------------------------------- FOR REVOLVING LOANS, FOR TRANCHE A TERM LOANS FOR COMMITMENT AND LETTER OF CREDIT FEE TRANCHE B TERM LOANS FEE ------------------------ ---------------------------- PRICING LEVERAGE EURODOLLAR BASE RATE EURODOLLAR BASE RATE LOANS LEVEL RATIO LOANS AND LOANS LOANS LETTER OF CREDIT FEE ---------------------------------------------------------------------------------------------------- I <1.25 to 1.0 1.50% .50% 2.00% 1.00% .25% ---------------------------------------------------------------------------------------------------- II < 1.75 to 1.0 1.75% .75% 2.00% 1.00% .375% but > 1.25 to 1.0 ---------------------------------------------------------------------------------------------------- III < 2.25 to 1.0 2.00% 1.00% 2.00% 1.00% .375% but > 1.75 to 1.0 ---------------------------------------------------------------------------------------------------- IV > 2.25 to 1.0 2.25% 1.25% 2.00% 1.00% .50% ====================================================================================================
(b) The definition of "Maturity Date" is hereby amended in its entirety to read as follows: "Maturity Date" means (i) as to the Revolving Loans and Letters of Credit (and the related LOC Obligations), the Swingline Loans and the Tranche A Term Loan, July 20, 2006 and (ii) as to the Tranche B Term Loan, July 20, 2008. SUBPART 2.2 Amendments to Section 2.5(d). Section 2.5(d) of the Existing Credit Agreement is amended in its entirety to read as follows: 2.5 Tranche B Term Loan. (a) ***** (b) ***** (c) ***** (d) Repayment of Tranche B Term Loan. The principal amount of the Tranche B Term Loan shall be repaid in (i) twenty four (24) consecutive quarterly installments of $437,500, payable on the last Business Day of each calendar quarter, commencing with the quarter ending December 31, 2001 and (ii) four (4) consecutive installments of $41,125,000, payable on the last Business Day of each calendar quarter, commencing with the quarter ending December 31, 2007, and on the Maturity Date, unless accelerated sooner pursuant to Section 9.2. PART 3 CONDITIONS TO EFFECTIVENESS SUBPART 3.1 Third Amendment and Restatement Effective Date. This Amendment and Restatement shall be and become effective as of the date on which all of the conditions set forth in this Part 3 shall have been satisfied (the "Third Amendment and Restatement Effective Date") and thereafter this Amendment and Restatement shall be known, and may be referred to, as the "Third Amended and Restated Credit Agreement." (a) Execution of Counterparts of Documents. The Agent shall have received counterparts of this Amendment and Restatement, which collectively shall have been duly executed on behalf of (i) the Borrower, (ii) each of the Guarantors, (iii) the Required Lenders and (iv) the Lenders holding the outstanding Tranche B Term Loans. (b) Other Documents. The Agent shall have received such other documentation as the Agent may reasonably request in connection with the foregoing, all in form reasonably satisfactory to the Agent. (c) Payment of Fees, etc. The Agent shall have received for its own account, all fees and other amounts due and payable to the Agent on the Third Amendment and Restatement Effective Date pursuant to the terms of that certain letter agreement, dated as of May 15, 2002, among the Agent, the other parties thereto and the Borrower. PART 4 MISCELLANEOUS SUBPART 4.1 Representations and Warranties. The Borrower and each of the Guarantors hereby represents and warrants to the Agent and the Lenders that, after giving effect to this Amendment and Restatement, (a) no Default or Event of Default exists under the Existing Credit Agreement or any of the other Credit Documents and (b) the representations and warranties set forth in Section 6 of the Existing Credit Agreement are, subject to the limitations set forth therein, true and correct in all material respects as of the date hereof (except for those which expressly relate to an earlier date). SUBPART 4.2 Reaffirmation of Credit Party Obligations. Each Credit Party hereby ratifies the Existing Credit Agreement and acknowledges and reaffirms (a) that it is bound by all terms of the Existing Credit Agreement applicable to it and (b) that it is responsible for the observance and full performance of its respective Credit Party Obligations. SUBPART 4.3 Cross-References. References in this Amendment and Restatement to any Part or Subpart are, unless otherwise specified, to such Part or Subpart of this Amendment and Restatement. SUBPART 4.4 Existing Credit Agreement. As used in the Existing Credit Agreement, the terms "Agreement", "Credit Agreement", "herein", "hereinafter", "hereunder", "hereto", and words of similar import shall mean, from and after the date hereof, the Existing Credit Agreement as amended and restated by this Amendment and Restatement. SUBPART 4.5 Counterparts/Telecopy. This Amendment and Restatement may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement. Delivery of executed counterparts of the Amendment and Restatement by telecopy shall be effective as an original and shall constitute a representation that an original shall be delivered. SUBPART 4.6 Governing Law. THIS AMENDMENT AND RESTATEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. SUBPART 4.7 Successors and Assigns. This Amendment and Restatement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. SUBPART 4.8 General. Except as amended hereby, the Existing Credit Agreement and all other Credit Documents shall continue in full force and effect. IN WITNESS WHEREOF the Borrowers, the Guarantors and the Lenders have caused this Amendment and Restatement to be duly executed on the date first above written. BORROWER: APRIA HEALTHCARE GROUP INC., -------- a Delaware corporation By: ---------------------------------------- Name: James E. Baker Title: Chief Financial Officer GUARANTORS: APRIA HEALTHCARE INC., ---------- a Delaware corporation By: ---------------------------------------- Name: James E. Baker Title: Chief Financial Officer APRIA NUMBER TWO INC., a Delaware corporation By: ---------------------------------------- Name: James E. Baker Title: Chief Financial Officer APRIACARE MANAGEMENT SYSTEMS INC., a Delaware corporation By: ---------------------------------------- Name: James E. Baker Title: Chief Financial Officer APRIA HEALTHCARE OF NEW YORK STATE, INC., a New York corporation By: ---------------------------------------- Name: James E. Baker Title: Chief Financial Officer APRIA HEALTHCARE ESSENTIALS, LLC, a Delaware limited liability company By: ---------------------------------------- Name: James E. Baker Title: Chief Financial Officer AGENT: BANK OF AMERICA, N.A., ------ in its capacity as Agent By: ---------------------------------------- Name: Gary Flieger Title: Vice President LENDERS: BANK OF AMERICA, N.A., -------- individually in its capacity as a Lender By: ---------------------------------------- Name: Philip S. Durand Title: Managing Director Addison CDO, Limited (Acct 1279) By: Pacific Investment Management Company LLC, as its Investment Advisor By: ----------------------------------- Name: Mohan V. Phansalkar Title: Executive Vice President Balboa CDO I, Limited By: Pacific Investment Management Company LLC, as its Investment Advisor By: ----------------------------------- Name: Mohan V. Phansalkar Title: Executive Vice President BANK OF MONTREAL By: ----------------------------------- Name: S. Valia Title: Managing Director THE BANK OF NOVA SCOTIA By: ----------------------------------- Name: R. P. Reynolds Title: Director Bedford CDO, Limited (Acct 1276) By: Pacific Investment Management Company LLC, as its Investment Advisor By ----------------------------------- Name: Mohan V. Phansalker Title: Executive Vice President CAPTIVA III Finance Ltd. (Acct 275), as advised by Pacific Investment Management Company LLC By: ----------------------------------- Name: David Dyer Title: Director CAPTIVA IV Finance Ltd. (Acct 1275), as advised by Pacific Investment Management Company LLC By: ----------------------------------- Name: David Dyer Title: Director Centurion CDO II, Ltd. By: American Express Asset Management Group Inc. as Collateral Manager By: ----------------------------------- Name: Steven B. Staver Title: Managing Director Centurion CDO III, Limited By: American Express Asset Management Group Inc. as Collateral Manager By: ------------------------------------ Name: Steven B. Staver Title: Managing Director CREDIT LYONNAIS NEW YORK BRANCH By: ------------------------------------ Name: Mr. Bernard Weymuller Title: Senior Vice President DELANO Company (Acct 274) By: Pacific Investment Management Company LLC, as its Investment Advisor By: ----------------------------------- Name: Mohan V. Phansalkar Title: Executive Vice Presidcnt ELT LTD By: ------------------------------------ Name: Ann E. Morris Title: Authorized Agent Fidelity Advisor Series II: Fidelity Advisor Name of Lender: Floating Rate High Income Fund By: ----------------------------------- Name: John H. Costello Title: Assistant Treasurer FLEET NATIONAL BANK By: ----------------------------------- Name: G. Stolzenthaler Title: Managing Director FOOTHILL INCOME TRUST II, L.P. By: FIT II G.P. LLC, its General Partner By: ----------------------------------- Name: M.E. Stearns Title: Managing Member FRANKLIN CLO II, LIMITED By: ----------------------------------- Name: Richard D'Addario Title: Vice President GLENEAGLES TRADING LLC By: ----------------------------------- Name: Ann E. Morris Title: Asst. Vice President GRAYSTON CLO 2001-01 LTD By: Bear Stearns Asset Management Inc. as its Collateral Manager By: ----------------------------------- Name: Niall D. Rosenzweig Title: Associate Director Sankaty Advisors, LLC as Collateral Manager for GREAT POINT CLO 1999-1 LTD., as Term Lender By: ----------------------------------- Name: Diane Exter Title: Managing Director, Portfolio Manager HARBOURTOWN FUNDING LLC By: ----------------------------------- Name: Ann E. Morris Title: Asst. Vice President HARBOURVIEW CDO II, LIMITED By: ----------------------------------- Name: Bill Campbell Title: Manager HARBOURVIEW CLO IV, LTD By: ----------------------------------- Name: Bill Campbell Title: Manager INDOSUEZ CAPITAL FUNDING VI, LIMITED By: ----------------------------------- Name: Charles C. Kobayashi Title: Principal INDOSUEZ CAPITAL FUNDING IIA, LIMITED By: ----------------------------------- Name: Charles C. Kobayashi Title: Principal Indosuez Capital Funding IV, L.P., By: RBC Leveraged Capital as Portfolio Advisor By: ----------------------------------- Name: Melissa Marano Title: Director ING PRIME RATE TRUST By: ----------------------------------- Name: Michel Prince, CFA Title: Vice President Jissekikun Funding, Ltd. (Acct 1288) By: Pacific Investment Management Company LLC, as its Investment Advisor By: ----------------------------------- Name: Mohan V. Phansalkar Title: Executive Vice President JP MORGAN CHASE BANK By: ------------------------------------ Name: Robert Bottamedi Title: Vice President JUPITER LOAN FUNDING LLC By: ----------------------------------- Name: Ann E. Morris Title: Asst. Vice President KZH CNC LLC By: ----------------------------------- Name: Joyce Fraser-Bryant Title: Authorized Agent KZH CYPRESSTREP-1 LLC By: ----------------------------------- Name: Joyce Fraser-Bryant Title: Authorized Agent KZH ING-2 LLC By: ----------------------------------- Name: Joyce Fraser-Bryant Title: Authorized Agent KZH STERLING LLC By: ----------------------------------- Name: Joyce Fraser-Bryant Title: Authorized Agent OPPENHEIMER SENIOR FLOATING RATE FUND By: ----------------------------------- Name: Bill Campbell Title: Manager PILGRIM AMERICA HIGH INCOME INVESTMENTS LTD By: ----------------------------------- Name: Michel Prince, CFA Title: Vice President PILGRIM CLO 1999-1 LTD By: ----------------------------------- Name: Michel Prince, CFA Title: Vice President PROMETHEUS INVESTMENT FUNDING NO. 1 LTD By: ----------------------------------- Name: Timothy L. Harrod Title: Managing Director By: ----------------------------------- Name: Ajay Nanda Title: Associate Director RIVERA FUNDING LLC By: ---------------------------------- Name: Ann E. Morris Title: Asst. Vice President ROYALTON COMPANY (Acct 280) By: Pacific Investment Management Company LLC, as its Investment Advisor By: ---------------------------------- Name: Mohan V. Phansalkar Title: Executive Vice President San Joaquin CDO I Limited (#1282) By: Pacific Investment Management Company LLC, as its Investment Advisor By: ---------------------------------- Name: Mohan V. Phansalkar Title: Executive Vice President SANKATY HIGH YIELD PARTNERS II, L.P. By: ---------------------------------- Name: Diane Exter Title: Managing Director, Portfolio Manager Sankaty Advisors, LLC as Collateral Manager for RACE POINT CLO, LIMITED, as Term Lender By: ---------------------------------- Name: Diane Exter Title: Managing Director, Portfolio Manager SANKATY HIGH YIELD PARTNERS III, L.P. By: ---------------------------------- Name: Diane Exter Title: Managing Director, Portfolio Manager SEABOARD CLO 2002 LTD By: --------------------------------- Name: Sheppard H. C. Davis, Jr. Title: Managing Director SEMINOLE FUNDING LLC By: --------------------------------- Name: Ann E. Morris Title: Asst. Vice President SENECA CBO IV, LIMITED By: Seneca Capital Management as Portfolio Manager for Seneca CBO IV, Limited By: --------------------------------- Name: Warren Goodrich Title: Analyst Sequils - Centurion V, Ltd. American Express Asset Management Group Inc. as Collateral Manager By: --------------------------------- Name: Steven B. Staver Title: Managing Director SEQUILS-MAGNUM, LTD. (#1280) By: Pacific Investment Management Company LLC, as its Investment Advisor By: --------------------------------- Name: Mohan V. Phansalkar Title: Executive Vice President SRV-HIGHLAND INC. By: --------------------------------- Name: Ann E. Morris Title: Asst. Vice President THERMOPYLAE FUNDING CORP. By: --------------------------------- Name: Frank B. Bilotta Title: Vice President TORONTO DOMINION (NEW YORK), INC. By: --------------------------------- Name: Gwen Zirkle Title: Vice President UBS AG, STAMFORD BRANCH By: --------------------------------- Name: Wilfred V. Saint Title: Associate Director Banking Products Services, US By: --------------------------------- Name: Luke Goldsworthy Title: Associate Director Banking Products Services, US VENTURE CDO 2002, LIMITED By its Investment Advisor, Barclays Capital Asset Management Limited, by its sub-advisor, Barclays Bank PLC, New York Branch By: --------------------------------- Name: Maria P. Cruz Title: Manager WINGED FOOT FUNDING TRUST By: --------------------------------- Name: Ann E. Morris Title: Authorized Agent EXHIBIT 2.1(B) FORM OF NOTICE OF BORROWING Bank of America, N.A., as Agent for the Lenders 101 North Tryon Street Independence Center, 15th Floor NC1-001-15-04 Charlotte, North Carolina 28255 Attention: Agency Services Ladies and Gentlemen: The undersigned, APRIA HEALTHCARE GROUP INC. (the "Borrower"), refers to the Second Amended and Restated Credit Agreement dated as of July 20, 2001 (as amended and restated by that certain Third Amended and Restated Credit Agreement dated as of June 7, 2002, as further modified, restated or supplemented from time to time, the "Credit Agreement"), among the Borrower, the Guarantors, the Lenders and Bank of America, N.A., as Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. [The Borrower hereby gives notice pursuant to Section 2.1 of the Credit Agreement that it requests a Revolving Loan advance under the Credit Agreement, and in connection therewith sets forth below the terms on which such Loan advance is requested to be made:]* [The Borrower hereby gives notice pursuant to Section 2.6 of the Credit Agreement that it requests the Tranche B-2 Term Loan under the Credit Agreement on the Third Amendment and Restatement Effective Date, and in connection therewith sets forth below the terms on which such Loan advance is requested to be made:]** [(A) Date of Borrowing (which is a Business Day) __________________]* [(B) Principal Amount of Borrowing __________________]* (C) Interest rate basis __________________ (D) Interest Period and the last day thereof __________________ In accordance with the requirements of Section 5.2, the Borrower hereby reaffirms the representations and warranties set forth in the Credit Agreement as provided in clause (b) of such Section, and confirms that the matters referenced in clauses (c), (d), (e) and (f) of such Section, are true and correct. APRIA HEALTHCARE GROUP INC. By:___________________________________ Name:_________________________________ Title:________________________________ * For all Revolving Loans **For the initial advance of the Tranche B-2 Term Loan on the Third Amendment and Restatement Effective Date SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE [As to the Tranche A Term Facility in respect of which an interest is being assigned: Percentage interest assigned: __________% Aggregate outstanding principal amount of Advances assigned: $__________ Principal amount of Tranche A Term Note __ payable to Assignee: $__________ Principal amount of Tranche A Term Note __ payable to Assignor: $__________] [As to the Tranche B-2 Term Facility in respect of which an interest is being assigned: Percentage interest assigned: __________% Aggregate outstanding principal amount of Advances assigned: $__________ Principal amount of Tranche B-2 Term Note __ payable to Assignee: $__________ Principal amount of Tranche B-2 Term Note __ payable to Assignor: $__________] [As to any Revolving Credit Facility in respect of which an interest is being assigned: Percentage interest assigned: __________% Assignee's Revolving Commitment: $__________ Aggregate outstanding principal amount of Advances assigned: $__________ Principal amount of Revolving Note payable to Assignee: $__________ Principal amount of Revolving Note payable to Assignor: $__________] Effective Date (if other than date of acceptance by Agent): 1 ______________ ____, 2001 [NAME OF ASSIGNOR], as Assignor By ______________________________ Title: Dated: ________________, 2001 [NAME OF ASSIGNEE], as Assignee By ______________________________ Title: Dated: ________________, 2001 Domestic Lending Office: Eurodollar Lending Office: 2 Accepted [and Approved] this _________ day of __________________, 2001 BANK OF AMERICA, N.A., as Agent By ____________________________ Title: *[Approved this ____________ day of ____________________, 2001 APRIA HEALTHCARE GROUP INC. By ____________________________ Title: ___________________________ 1 This date should be no earlier than five Business Days after the delivery of this Assignment and Acceptance to the Agent. 2 If required by the Credit Agreement.