EXHIBIT 10.35
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") dated as of February __, 1999 is made among APRIA HEALTHCARE GROUP
INC., a corporation organized and existing under the laws of the State of
Delaware ("Apria") and the Subsidiaries of Apria identified on the signature
pages of this Amendment and any Subsidiary of Apria that, subject to Section
9.13 of the Credit Agreement, shall have executed a Joinder Agreement (Apria and
such Subsidiaries are referred to individually as a "Borrower" and,
collectively, as the "Borrowers"), each of the financial institutions listed on
Schedule I to the Credit Agreement or that, pursuant to Section 13.4 of the
Credit Agreement, shall become a "Bank" thereunder (individually, a "Bank" and,
collectively, the "Banks"), NATIONSBANK OF TEXAS, N.A., as the Syndication
Agent, and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as the
Administrative and Collateral Agent.
RECITALS
I. The Borrowers, the Banks, the Syndication Agent and the Administrative
and Collateral Agent are parties to the Amended and Restated Credit Agreement
dated as of November 13, 1998, as amended by the First Amendment to Amended and
Restated Credit Agreement dated as of January 13, 1999 (the "Credit Agreement"),
pursuant to which the Banks extended certain credit to the Borrowers.
II. Pursuant to certain sections of the Credit Agreement, Apria is required
to issue the Senior Subordinated Debentures on or prior to February 28, 1999.
III. The Borrowers have requested that the February 28, 1999 deadline be
extended to April 23, 1999.
IV. The Banks are willing to accommodate the request of the Borrowers on
the terms and conditions specified in this Amendment.
AGREEMENT
In consideration of the foregoing premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties to this Amendment agree as follows:
1. Amendment to Section 5.2(a)(E). Section 5.2(a)(E) of the Credit
Agreement is hereby amended by replacing the date "February 28, 1999" set forth
in such section with the date "April 23, 1999".
2. Amendment to Section 9.15. Section 9.15 of the Credit Agreement is
hereby amended by replacing the date "February 28, 1999" set forth in such
section with the date "April 23, 1999".
3. Amendment to Section 11.11. Section 11.11 of the Credit Agreement is
hereby amended by replacing the date "February 28, 1999" set forth in such
section with the date "April 23, 1999".
4. Representations. Each of the Borrowers represents and warrants to the
Banks that (a) it has the corporate or partnership power to execute, deliver and
perform the terms and provisions of this Amendment and has taken all necessary
corporate or partnership action to authorize the execution, delivery and
performance by it of this Amendment and (b) upon the effectiveness of this
Amendment, no Default or Event of Default shall have occurred and be continuing
under the Credit Agreement. Each of Apria and its Material Subsidiaries has duly
executed and delivered this Amendment and this Amendment constitutes its legal,
valid and binding obligation enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, reorganization, moratorium or
similar laws relating to or limiting creditors' rights generally or by equitable
principles relating to enforceability.
5. Conditions Precedent. The effectiveness of this Amendment is subject to
the following:
(i) the receipt by the Administrative and Collateral Agent of the
consent of the Required Banks;
(ii) the receipt by the Administrative and Collateral Agent of an
opinion of Borrower's counsel in a form satisfactory to the Agents;
(iii) the receipt by the Administrative and Collateral Agent of this
Amendment, duly executed and delivered by each of the Borrowers; and
(vii) an officer's certificate of Apria to the effect that no Default
or Event of Default has occurred or is continuing under the Credit
Agreement and that each of the representations and warranties
contained in Section 8 of the Credit Agreement are true and correct in
all material respects as of the date of this Amendment with references
to the Agreement being references to the Agreement as amended by this
Amendment.
6. Reference to and Effect on the Credit Agreement, Notes and Guaranty.
(a) Except as specifically amended by this Amendment, the Credit
Agreement shall remain in full force and effect and is 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) All documents executed in connection with the Credit Agreement,
including, but not limited to, the Notes and the Guaranty shall remain
in full force and effect and are hereby ratified and confirmed with
respect to the Credit Agreement, as amended hereby.
7. 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.
8. Expenses. The Borrowers shall reimburse the Agents on demand for all
reasonable costs, expenses and charges (including, without limitation,
reasonable fees and charges of legal counsel and other consultants for the
Agents) incurred by the Agents in connection with the preparation, performance
or enforcement of this Amendment.
9. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of its parties and their respective successors and permitted
assigns.
10. 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.
11. Captions. The captions and section headings appearing in this Amendment
are included solely for convenience of reference and are not intended to affect
the interpretation of any provision of this Amendment.
12. Counterparts. This Amendment may be executed in any number of
counterparts all of which when taken together shall constitute one and the same
instrument and any of the parties to this Amendment may execute this Amendment
by signing any such counterpart; signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so that all
signatures are physically attached to the same document.
13. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND INTERPRETED AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.
IN WITNESS WHEREOF, the parties to this Amendment have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
APRIA HEALTHCARE GROUP INC.
APRIA HEALTHCARE, INC.
APRIACARE MANAGEMENT SYSTEMS, INC.
APRIA NUMBER TWO, INC.
APRIA HEALTHCARE OF NEW YORK STATE, INC.
By:
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Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Administrative and Collateral Agent
By:
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Name: Xxxxxxxxx Xxxxx
Title: Vice President
