SECURITY AGREEMENT SUPPLEMENT
Exhibit 10.24
SUPPLEMENT NO. 1 dated as of July 13, 2010, to the Security Agreement (as amended, restated, supplemented or otherwise modified, the “Security Agreement”), dated as of October 28, 2008, by and among Apria Healthcare Group Inc., a Delaware corporation and successor in interest to Sky Merger Sub Corporation (the “Lead Borrower”), the other Borrowers party thereto, Holdings, the other Guarantors party thereto and Bank of America, N.A., as Administrative Agent and Collateral Agent (in such capacity, the “Collateral Agent”) for the Secured Parties.
A. Reference is made to the Credit Agreement, dated as of October 28, 2008 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrowers, Holdings, Collateral Agent, the Lenders and other agents from time to time party thereto.
B. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement and the Security Agreement referred to therein.
C. The Grantors have entered into the Security Agreement in order to induce (x) the Lenders to make Loans and (y) each L/C Issuer to issue Letters of Credit. Section 8.14 of the Security Agreement provides that certain Restricted Subsidiaries of the Loan Parties are required (pursuant to the terms of the Credit Agreement), to become Grantors under the Security Agreement by execution and delivery of an instrument in the form of this Supplement. Each undersigned Restricted Subsidiary (each, a “New Subsidiary”) is executing this Supplement in accordance with the requirements of the Credit Agreement to become a Grantor under the Security Agreement in order to induce the Lenders to make additional Loans and as consideration for Loans previously made.
Accordingly, the Collateral Agent and each New Subsidiary agree as follows:
Section 1. In accordance with Section 8.14 of the Security Agreement, each New Subsidiary by its signature below becomes a Grantor under the Security Agreement with the same force and effect as if originally named therein as a Grantor and each New Subsidiary hereby (a) agrees to all the terms and provisions of the Security Agreement applicable to it as a Grantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Grantor thereunder are true and correct on and as of the date hereof; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all respects as of such earlier date and provided further that references to Schedule III of the Security Agreement shall be deemed to refer to the “Equity Interests” section of Schedule I hereto with respect to each of the New Subsidiaries. In furtherance of the foregoing, each New Subsidiary, as security for the payment and performance in full of the Secured Obligations does hereby create and grant to the Collateral Agent, its successors and assigns, for the benefit of the Secured Parties, their successors and assigns, a security interest in and lien on all of the New Subsidiary’s right, title and interest in and to the Collateral (as defined in the Security Agreement) of the New Subsidiary. Each reference to a “Grantor” in the Security Agreement shall be deemed to include each New Subsidiary. The Security Agreement is hereby incorporated herein by reference.
Section 2. Each New Subsidiary represents and warrants to the Collateral Agent and the other Secured Parties that this Supplement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms.
Section 3. This Supplement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Supplement shall become effective when the Collateral Agent shall have received a counterpart of this Supplement that bears the signature of each New Subsidiary and the Collateral Agent has executed a counterpart hereof. Delivery of an executed signature page to this Supplement by facsimile transmission shall be as effective as delivery of a manually signed counterpart of this Supplement.
Section 4. Each New Subsidiary hereby represents and warrants that (a) set forth on Schedule I attached hereto is a true and correct schedule of the location of any and all Collateral of such New Subsidiary and (b) set forth under its signature hereto is the true and correct legal name of such New Subsidiary, its jurisdiction of formation and the location of its chief executive office (or if different, its “location” as determined in accordance with Section 9-307 of the Uniform Commercial Code).
Section 5. Except as expressly supplemented hereby, the Security Agreement shall remain in full force and effect.
Section 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 7. In case any one or more of the provisions contained in this Supplement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and in the Security Agreement shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
Section 8. All communications and notices hereunder shall be in writing and given as provided in Section 8.01 of the Security Agreement.
Section 9. Each New Subsidiary agrees to reimburse the Collateral Agent for its reasonable out-of-pocket expenses in connection with this Supplement, including the reasonable fees, other charges and disbursements of counsel for the Collateral Agent.
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IN WITNESS WHEREOF, each New Subsidiary and the Collateral Agent have duly executed this Supplement to the Security Agreement as of the date first above written.
| AHNY-IV LLC | ||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxxx | ||||
| Title: Executive Vice President, General Counsel and Secretary | ||||
| Legal Name: AHNY-IV LLC | ||||
| Jurisdiction of Formation: New York | ||||
| Location of Chief Executive Office: 00000 Xxxxxxxxxx Xxxxx, Xxxx Xxxxxx, XX 00000 | ||||
| AHNY-DME LLC | ||||
| By: | /s/ Xxxxxx X. Xxxxxxxx | |||
| Name: Xxxxxx X. Xxxxxxxx | ||||
| Title: Executive Vice President, General Counsel and Secretary | ||||
| Legal Name: AHNY-DME LLC | ||||
| Jurisdiction of Formation: New York | ||||
| Location of Chief Executive Office: 00000 Xxxxxxxxxx Xxxxx, Xxxx Xxxxxx, XX 00000 | ||||
[Security Agreement Supplement]
| BANK OF AMERICA, N.A., as Collateral Agent | ||
| By: | /s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | ||
| Title: Vice-President | ||
[Security Agreement Supplement]
SCHEDULE I TO SECURITY AGREEMENT SUPPLEMENT
LOCATION OF COLLATERAL
| Description |
Location |
None
AHNY-DME LLC
| Description |
Location |
None
EQUITY INTERESTS
| Issuer |
Number of Certificate |
Registered Owner |
Number and Class of Equity Interest |
Percentage of Equity Interests |
|||||
| ANHY-IV LLC |
N/A | Apria Healthcare, Inc. | 100 shares | 100 | % |
AHNY-DME LLC
| Issuer |
Number of Certificate |
Registered |
Number and Class of Equity Interest |
Percentage of Equity Interests |
|||||
| AHNY-DME LLC |
N/A | Apria Healthcare of New York State, Inc. | 100 shares | 100 | % |
1
PROMISSORY NOTES
| Issuer |
Principal Amount as of the date of issuance (or delivery) |
Date of Note/Instrument | Maturity Date |
None
AHNY-DME LLC
| Issuer |
Principal Amount as of the date of issuance (or delivery) |
Date of Note/Instrument | Maturity Date |
None
COMMERCIAL TORT CLAIMS
None
AHNY-DME LLC
None
2
INTELLECTUAL PROPERTY
None
((a) U.S. Patents, U.S. Patent Applications, (b) U.S. Trademark Registrations and Applications, (c) U.S. Copyright Registrations and Applications, (d) Domain Names, (e) exclusive Licenses of U.S. Patents, Patent Applications, Trademark Registrations or Applications and Copyrights where the New Subsidiary is the Licensee)
AHNY-DME LLC
None
((a) U.S. Patents, U.S. Patent Applications, (b) U.S. Trademark Registrations and Applications, (c) U.S. Copyright Registrations and Applications, (d) Domain Names, (e) exclusive Licenses of U.S. Patents, Patent Applications, Trademark Registrations or Applications and Copyrights where the New Subsidiary is the Licensee)
REAL PROPERTY (LEASED AND OWNED)
None
AHNY-DME LLC
None
3
BANK ACCOUNTS
None
AHNY-DME LLC
None
4
