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: Xxxxx X. Xxxxx
Title: Chief Financial Officer
GUARANTORS: APRIA HEALTHCARE INC.,
----------
a Delaware corporation
By:
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
APRIA NUMBER TWO INC.,
a Delaware corporation
By:
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
APRIACARE MANAGEMENT SYSTEMS INC.,
a Delaware corporation
By:
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
APRIA HEALTHCARE OF NEW YORK
STATE, INC., a New York corporation
By:
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
APRIA HEALTHCARE ESSENTIALS, LLC,
a Delaware limited liability company
By:
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
AGENT: BANK OF AMERICA, N.A.,
------
in its capacity as Agent
By:
----------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
LENDERS: BANK OF AMERICA, N.A.,
--------
individually in its capacity as a Lender
By:
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
Addison CDO, Limited (Acct 1279)
By: Pacific Investment Management Company
LLC, as its Investment Advisor
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
Balboa CDO I, Limited
By: Pacific Investment Management Company
LLC, as its Investment Advisor
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
BANK OF MONTREAL
By:
-----------------------------------
Name: X. Xxxxx
Title: Managing Director
THE BANK OF NOVA SCOTIA
By:
-----------------------------------
Name: X. X. Xxxxxxxx
Title: Director
Bedford CDO, Limited (Acct 1276)
By: Pacific Investment Management Company
LLC, as its Investment Advisor
By
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
CAPTIVA III Finance Ltd. (Acct 275),
as advised by Pacific Investment Management
Company LLC
By:
-----------------------------------
Name: Xxxxx Xxxx
Title: Director
CAPTIVA IV Finance Ltd. (Acct 1275),
as advised by Pacific Investment Management
Company LLC
By:
-----------------------------------
Name: Xxxxx Xxxx
Title: Director
Centurion CDO II, Ltd.
By: American Express Asset Management
Group Inc. as Collateral Manager
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
Centurion CDO III, Limited
By: American Express Asset Management Group
Inc. as Collateral Manager
By:
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
CREDIT LYONNAIS NEW YORK BRANCH
By:
------------------------------------
Name: Xx. Xxxxxxx Xxxxxxxxx
Title: Senior Vice President
DELANO Company (Acct 274)
By: Pacific Investment Management Company
LLC, as its Investment Advisor
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice Presidcnt
ELT LTD
By:
------------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
Fidelity Advisor Series II: Fidelity
Advisor
Name of Lender: Floating Rate High Income
Fund
By:
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Treasurer
FLEET NATIONAL BANK
By:
-----------------------------------
Name: X. Xxxxxxxxxxxxx
Title: Managing Director
FOOTHILL INCOME TRUST II, L.P.
By: FIT II G.P. LLC, its General Partner
By:
-----------------------------------
Name: M.E. Xxxxxxx
Title: Managing Member
FRANKLIN CLO II, LIMITED
By:
-----------------------------------
Name: Xxxxxxx X'Xxxxxxx
Title: Vice President
GLENEAGLES TRADING LLC
By:
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Asst. Vice President
GRAYSTON CLO 2001-01 LTD
By: Bear Xxxxxxx Asset Management Inc.
as its Collateral Manager
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Associate Director
Sankaty Advisors, LLC as Collateral
Manager for GREAT POINT CLO 1999-1 LTD.,
as Term Lender
By:
-----------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director,
Portfolio Manager
HARBOURTOWN FUNDING LLC
By:
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Asst. Vice President
HARBOURVIEW CDO II, LIMITED
By:
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Manager
HARBOURVIEW CLO IV, LTD
By:
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Manager
INDOSUEZ CAPITAL FUNDING VI, LIMITED
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Principal
INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Principal
Indosuez Capital Funding IV, L.P.,
By: RBC Leveraged Capital as Portfolio
Advisor
By:
-----------------------------------
Name: Xxxxxxx Xxxxxx
Title: Director
ING PRIME RATE TRUST
By:
-----------------------------------
Name: Xxxxxx Xxxxxx, CFA
Title: Vice President
Jissekikun Funding, Ltd. (Acct 1288)
By: Pacific Investment Management Company
LLC, as its Investment Advisor
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
XX XXXXXX CHASE BANK
By:
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
JUPITER LOAN FUNDING LLC
By:
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Asst. Vice President
KZH CNC LLC
By:
-----------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
KZH CYPRESSTREP-1 LLC
By:
-----------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
KZH ING-2 LLC
By:
-----------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
KZH STERLING LLC
By:
-----------------------------------
Name: Xxxxx Xxxxxx-Xxxxxx
Title: Authorized Agent
XXXXXXXXXXX SENIOR FLOATING
RATE FUND
By:
-----------------------------------
Name: Xxxx Xxxxxxxx
Title: Manager
PILGRIM AMERICA HIGH INCOME
INVESTMENTS LTD
By:
-----------------------------------
Name: Xxxxxx Xxxxxx, CFA
Title: Vice President
PILGRIM CLO 1999-1 LTD
By:
-----------------------------------
Name: Xxxxxx Xxxxxx, CFA
Title: Vice President
PROMETHEUS INVESTMENT FUNDING
NO. 1 LTD
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
By:
-----------------------------------
Name: Xxxx Xxxxx
Title: Associate Director
XXXXXX FUNDING LLC
By:
----------------------------------
Name: Xxx X. Xxxxxx
Title: Asst. Vice President
ROYALTON COMPANY (Acct 280)
By: Pacific Investment Management
Company LLC, as its Investment
Advisor
By:
----------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
San Xxxxxxx CDO I Limited (#1282)
By: Pacific Investment Management
Company LLC, as its Investment
Advisor
By:
----------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
SANKATY HIGH YIELD PARTNERS II, L.P.
By:
----------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director,
Portfolio Manager
Sankaty Advisors, LLC as Collateral
Manager for RACE POINT CLO, LIMITED, as
Term Lender
By:
----------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director,
Portfolio Manager
SANKATY HIGH YIELD PARTNERS III, L.P.
By:
----------------------------------
Name: Xxxxx Xxxxx
Title: Managing Director,
Portfolio Manager
SEABOARD CLO 2002 LTD
By:
---------------------------------
Name: Xxxxxxxx X. X. Xxxxx, Xx.
Title: Managing Director
SEMINOLE FUNDING LLC
By:
---------------------------------
Name: Xxx X. Xxxxxx
Title: Asst. Vice President
SENECA CBO IV, LIMITED
By: Seneca Capital Management as
Portfolio Manager for Seneca CBO IV,
Limited
By:
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Analyst
Sequils - Centurion V, Ltd.
American Express Asset Management Group
Inc. as Collateral Manager
By:
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
SEQUILS-MAGNUM, LTD. (#1280)
By: Pacific Investment Management
Company LLC, as its Investment
Advisor
By:
---------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President
SRV-HIGHLAND INC.
By:
---------------------------------
Name: Xxx X. Xxxxxx
Title: Asst. Vice President
THERMOPYLAE FUNDING CORP.
By:
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
TORONTO DOMINION (NEW YORK), INC.
By:
---------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
UBS AG, STAMFORD BRANCH
By:
---------------------------------
Name: Xxxxxxx X. Saint
Title: Associate Director Banking
Products Services, US
By:
---------------------------------
Name: Xxxx Xxxxxxxxxxx
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: Xxxxx X. Xxxx
Title: Manager
WINGED FOOT FUNDING TRUST
By:
---------------------------------
Name: Xxx X. Xxxxxx
Title: Authorized Agent
EXHIBIT 2.1(B)
FORM OF NOTICE OF BORROWING
Bank of America, N.A.,
as Agent for the Lenders
000 Xxxxx Xxxxx Xxxxxx
Independence Center, 00xx Xxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
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.
