EXHIBIT 10.34
APRIA HEALTHCARE GROUP INC.
FIRST AMENDMENT
TO AMENDED AND RESTATED CREDIT AGREEMENT
AND CONSENT
This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT AND CONSENT
(this "Amendment") is dated as of January 15, 1999 and entered into by and among
Apria Healthcare Group Inc. ("Apria"), certain of its subsidiaries listed on the
signature pages of this Amendment (collectively with Apria, "Borrowers"), the
financial institutions listed on the signature pages of this Amendment
("Lenders"), Bank of America National Trust and Savings Association, as the
Administrative and Collateral Agent ("Agent"), and NationsBank, N.A., as the
Syndication Agent ("Syndication Agent"), and is made with reference to that
certain Amended and Restated Credit Agreement, dated as of November 13, 1998
(the "Credit Agreement"), by and among Borrowers, Lenders, Agent, and
Syndication Agent. Capitalized terms used herein without definition shall have
the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Apria has informed Agent and Lenders that (i) Apria is currently
considering issuing non-convertible 9 1/2% Senior Subordinated Notes due 2002
(the "1999 Senior Subordinated Notes") which contain terms substantially the
same as those of the Senior Subordinated Notes, and (ii) Apria currently
contemplates amending the Indenture (the "Original Indenture") relating to the
Senior Subordinated Notes, by means of a Supplemental Indenture (the
"Supplemental Indenture"), to add the "anti-layering" covenant described in the
disclosure document relating to the issue and sale of the Senior Subordinated
Notes, and Agent and Lenders are willing to consent to these actions as set
forth below; and
WHEREAS, Borrowers, Agent, and Lenders desire to amend the Credit
Agreement: (i) to permit the impending issuance by Apria of either the 1999
Senior Subordinated Notes or the 10% Convertible Subordinated Debentures due
2004 (the "1999 Senior Subordinated Convertible Debentures," along with the 1999
Senior Subordinated Notes, the "Senior Subordinated Debentures") under the
Credit Agreement; (ii) to allow Apria to issue the Senior Subordinated
Debentures at a discount and with original issue discount thereon, (iii) to
allow Apria to refinance the Senior Subordinated Debentures on the same terms
and conditions as the Senior Subordinated Notes may be refinanced under the
Credit Agreement; and (iv) to make certain other amendments as set forth below;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Section 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Certain Terms
The Credit Agreement is hereby amended by deleting the term "Senior
Subordinated Convertible Debentures" in each instance it appears in the Credit
Agreement and substituting in lieu thereof in each such instance the term
"Senior Subordinated Debentures."
1.2 Amendment to Section 1.1 of the Credit Agreement: Definitions
Section 1.1 of the Credit Agreement is hereby amended by deleting the
definition of "Senior Subordinated Convertible Debentures" therefrom in its
entirety and substituting the following therefor:
"Senior Subordinated Debentures" shall mean the senior subordinated notes
or the senior subordinated convertible debentures to be issued in 1999 in
accordance with the provisions of Section 9.15 by Apria on terms and conditions
reasonably satisfactory to the Administrative and Collateral Agent and the
Required Banks."
1.3 Amendment to Section 5.2(a)(C): Provisions Relating to Mandatory Repayments
Section 5.2(a)(C) is hereby amended by deleting the phrase "Senior
Subordinated Notes" in each instance it appears in Section 5.2(a)(C), and
substituting in lieu thereof in each such instance the phrase "Senior
Subordinated Notes or Senior Subordinated Debentures".
1.4 Amendment to Section 9.13: Provisions Relating to Permitted Transactions
Section 9.13(a)(v) is hereby amended by deleting the phrases
"such Permitted Transactions" and "all such Permitted Transactions" in each
instance either such phrase appears in Section 9.13(a)(v), and substituting in
lieu thereof in each such instance the term "such Permitted Transaction".
1.5 Amendment to Section 9.15: Provisions Relating to the Original Issue
Discount
Section 9.15 of the Credit Agreement is hereby amended and restated to read
in its entirety as follows:
"9.15 Senior Subordinated Debentures. The Borrowers shall diligently pursue
the issuance of the Senior Subordinated Debentures and on or prior to February
28, 1999, the Borrowers shall issue the Senior Subordinated Debentures in an
aggregate principal amount of at least $50,000,000, on terms and conditions,
including subordination provisions, satisfactory to the Required Banks and the
Administrative and Collateral Agent, and 100% of the Net Indebtedness Proceeds
of such issuance shall be used contemporaneously to permanently repay the Term
Loans pursuant to Section 5.2(a); provided that if the gross cash consideration
(prior to payments of underwriters' compensation, commissions, and other
expenses of issuance) received by Apria is less than $50,000,000, the amount of
the repayment under Section 5.2(a) will be supplemented by a voluntary
prepayment by Apria under Section 5.1 of a sum in an amount calculated by
subtracting such gross cash consideration from $50,000,000, to be applied in the
same manner as the Net Indebtedness Proceeds of such issuance; and provided,
further that any original issue discount on such issuance of Senior Subordinated
Debentures may not, in any case, exceed $10,000,000."
1.6 Amendment to Section 10.5(i): Provisions Relating to Indebtedness
Section 10.5(i) of the Credit Agreement is hereby amended and restated to
read in its entirety as follows:
"(i) the Senior Subordinated Notes, the Senior Subordinated
Debentures, and any refinancing of the Senior Subordinated Notes or the
Senior Subordinated Debentures having a maturity of not less than five
years and no scheduled amortization and containing other terms, including
subordination provisions, acceptable to the Agents."
1.7 Amendment to Section 10.11(i): Provisions Relating to Indebtedness Limits
Clause (i) of Section 10.11(i) of the Credit Agreement is hereby amended
and restated to read in its entirety as follows:
"(i) any Additional Permitted Subordinated Indebtedness; provided,
however, that so long as no Default or Event of Default shall have occurred
and be continuing or would result therefrom, Apria may refinance the Senior
Subordinated Debentures in their entirety pursuant to Section 10.5(i),"
Section 2. CONSENT
2.1 Supplemental Indenture
At the request of Borrowers, the undersigned Lenders, constituting Required
Banks, and the Agent hereby consent to the amendment of the Original Indenture
by means of the Supplemental Indenture.
2.2 Convertibility of Subordinated Debentures
A. At the request of Borrowers, and as required pursuant to the definition
of "Senior Subordinated Debentures" in, and Section 9.15 of, the Credit
Agreement (as amended hereby), the undersigned Lenders, constituting Required
Banks, and the Agent hereby confirm that:
(i) the terms and conditions of the 1999 Senior Subordinated
Convertible Debentures, as described in the Registration Statement on Form
S-3 previously delivered to Agent and counsel for Agent are satisfactory;
and
(ii) the terms and conditions of the 1999 Senior Subordinated Notes,
as described in the Offering Memorandum delivered to Agent and counsel for
Agent on January 7, 1999, are satisfactory.
B. The confirmation set forth in this Section 2.2 also effects the consent
of Lenders constituting Required Banks and Agent to Apria's issuance of either
the 1999 Senior Subordinated Convertible Debentures or the 1999 Senior
Subordinated Notes in accordance with the provisions of the Credit Agreement.
2.3 Effect of Consent
Without limiting the generality of the provisions of subsection 13.13 of
the Credit Agreement, the consent set forth herein shall be limited precisely as
written and is provided solely for the purpose of permitting Apria to amend the
Indenture relating to the Senior Subordinated Notes and to issue the Senior
Subordinated Debentures (as defined in Section 1.1 of the Credit Agreement, as
amended hereby), and this Consent does not constitute, nor should it be
construed as, a waiver of compliance by Company with respect to any other term,
provision or condition of the Credit Agreement or any other instrument or
agreement referred to therein (whether in connection with the actions discussed
herein or otherwise).
Section 3. CONDITIONS TO EFFECTIVENESS
Sections 1 and 2 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "First Amendment
Effective Date"):
(i) on or before the First Amendment Effective Date, Borrowers shall
deliver to Agent executed copies of this Amendment, dated the First
Amendment Effective Date; and
(ii) on or before the First Amendment Effective Date, all corporate
and other proceedings taken or to be taken in connection with the
transactions contemplated hereby shall be satisfactory in form and
substance to Agent.
Section 4. BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders and Agent to enter into this Amendment and to
amend the Credit Agreement in the manner provided herein, Borrowers represent
and warrant to each Lender and to Agent that the following statements are true,
correct and complete:
(i) Corporate Power and Authority. Each Borrower has all requisite
corporate power and authority to enter into this Amendment and to carry out
the transactions contemplated by, and perform its obligations under, the
Credit Agreement as amended by this Amendment (the "Amended Agreement").
(ii) Authorization of Agreements. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly
authorized by all necessary corporate action on the part of Borrowers.
(iii) Governmental Consents. The execution and delivery by Borrowers
of this Amendment and the performance by Borrowers of the Amended Agreement
do not and will not require any registration with, consent or approval of,
or notice to, or other action to, with or by, any federal, state or other
governmental authority or regulatory body.
(iv) Binding Obligation. This Amendment and the Amended Agreement have
been duly executed and delivered by Borrowers and are the legally valid and
binding obligations of Borrowers, enforceable against each Borrower in
accordance with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
(v) Incorporation of Representations and Warranties from Credit
Agreement. The representations and warranties contained in Section 8 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the First Amendment Effective Date to the same extent
as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in
which case they were true, correct and complete in all material respects on
and as of such earlier date.
(vi) Absence of Default. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Amendment that would constitute a Default or an Event of Default.
Section 5. MISCELLANEOUS
5.1 Reference to and Effect on the Credit Agreement and the Other Loan
Documents.
A. Except as specifically amended by this Amendment, the Credit Agreement
and the Security Documents shall remain in full force and effect and are hereby
ratified and confirmed.
B. This Amendment shall be construed as one with the Credit Agreement and
the Credit Agreement shall, where the context requires, be read and construed
throughout so as to incorporate this Amendment.
C. On and after the First Amendment Effective Date, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import referring to the Credit Agreement, and each reference in the
Security Documents to the "Credit Agreement", "thereunder", "thereof" or words
of like import referring to the Credit Agreement shall mean and be a reference
to the Amended Agreement.
D. The execution, delivery and performance of this Amendment shall not,
except as expressly provided herein, constitute a waiver of any provision of, or
operate as a waiver of any right, power or remedy of Agent or any Lender under,
the Credit Agreement or any of the Security Documents.
5.2 Entire Agreement
This Amendment, together with the Credit Agreement and the other documents
referred to in, or executed in connection with, the Credit Agreement supersedes
all prior agreements and understandings, written or oral, among the parties with
respect to the subject matter of this Amendment.
5.3 Fees and Expenses.
The Borrowers shall reimburse the Agent on demand for all reasonable costs,
expenses and charges (including, without limitation, reasonable fees and
expenses and charges of legal counsel and other consultants for the Agent)
incurred by the Agent in connection with the preparation, performance or
enforcement of this Amendment.
5.4 Successors and Assigns.
This Amendment shall be binding upon and inure to the benefit of its
parties and their respective successors and permitted assigns.
5.5 Severability.
Any provision of this Amendment that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions of this Amendment and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
5.6 Captions.
The caption, section and subsection headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose or be given any substantive effect.
5.7 Counterparts; Effectiveness.
This Amendment may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Amendment (other than the provisions of Sections 1 and 2 hereof,
the effectiveness of which is governed by Section 3 hereof) shall become
effective upon the execution of a counterpart hereof by Borrowers, Agent,
Syndication Agent, and Required Banks and receipt by Borrowers and Agent of
written or telephonic notification of such execution and authorization of
delivery thereof.
5.8 Applicable Law.
THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF CALIFORNIA.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
Address for all Borrowers:
0000 Xxxxxx Xxxxxx APRIA HEALTHCARE GROUP INC.
Xxxxx Xxxx Xxxxxxxxxx 00000 APRIA HEALTHCARE, INC.
Attn: Chief Financial Officer APRIA NUMBER TWO, INC.
APRIACARE MANAGEMENT SYSTEMS, INC.
Telephone: (000) 000-0000 APRIA HEALTHCARE OF NEW YORK STATE,
Facsimile: (000) 000-0000 INC.
By:
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Name:
Title:
