EXHIBIT 10.1
SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment") dated as of September 22, 2000 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"), and BANK OF AMERICA, NATIONAL ASSOCIATION (as
successor to Bank of America National Trust and Savings Association and
NationsBank of Texas, N.A.), as the Syndication, Administrative and Collateral
Agent (the "Administrative and Collateral Agent"). Capitalized terms used but
not otherwise defined shall have the meanings assigned to such terms in the
Credit Agreement.
RECITALS
--------
I. The Borrowers, the Banks (or the predecessors thereto) 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 and Consent, dated as of
January 15, 1999, as amended by the Second Amendment to Amended and Restated
Credit Agreement, dated as of February 23, 1999, as amended by the Third
Amendment to Amended and Restated Credit Agreement, dated as of April 22, 1999,
as amended by the Fourth Amendment to Amended and Restated Credit Agreement,
dated as of October 22, 1999, and as amended by the Fifth Amendment to Amended
and Restated Credit Agreement, dated March 24, 2000 (the "Credit Agreement"),
pursuant to which the Banks extended certain credit to the Borrowers.
II. The Borrowers have requested that the Banks restructure certain
provisions of the Credit Agreement.
III. 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. Amendments to Section 1.1 of the Credit Agreement.
a. The definition of "Applicable Margin" in Section 1.1 of the Credit
Agreement is amended and restated in its entirety to read as follows:
"Applicable Margin" shall mean 2.75% with respect to all
Eurodollar Loans, 1.75% with respect to all Base Rate Loans and .375%
with respect to the Revolving Loan Commitment Fee.
b. The definition of "Arranger" in Section 1.1 of the Credit Agreement
is amended to delete "NationsBanc Montgomery Securities LLC" and to insert "Banc
of America Securities LLC" in its place.
c. The definition of "Final Maturity Date" in Section 1.1 of the
Credit Agreement is amended to delete "August 9, 2001" and to insert "September
30, 2002" in its place.
d. The definition of "Guarantors" in Section 1.1 of the Credit
Agreement is amended and restated in its entirety as follows: "Guarantors" shall
mean (w) Apria, (x)each Material Subsidiary, (y) Apria Management Systems, Inc.
and (z) Apria Number Two, Inc.
e. The definition of "Reference Banks" in Section 1.1 of the Credit
Agreement is amended to delete the phrase "and NationsBank".
f. The definition of "Required Banks" in Section 1.1 of the Credit
Agreement is amended and restated in its entirety to read as follows:
"Required Banks" shall mean, subject to Section 13.13(b), Banks
having in excess of 50% of the sum of (a) the aggregate unpaid
principal amount of the Term Loans plus (b) the aggregate amount of
the Revolving Loan Commitments (or, if the Revolving Loan Commitments
shall have terminated, the sum of (i) the aggregate unpaid principal
amount of the Revolving Loans plus (ii) the aggregate amount of all
Letter of Credit Outstandings).
g. A new definition of "Required Revolving Banks" is inserted in the
appropriate alphabetical order in Section 1.1 of the Credit Agreement reading
as follows:
"Required Revolving Banks" shall mean, subject to Section
13.13(b), Revolving Banks having in excess of 50% of the aggregate
amount of the Revolving Loan Commitments or, if the Revolving Loan
Commitments shall have terminated, Revolving Banks holding in excess
of 50% of the sum of (a) the aggregate unpaid principal amount of the
Revolving Loans plus (b) the aggregate amount of all Letter of Credit
Outstandings.
h. A new definition of "Revolving Banks" is inserted in the
appropriate alphabetical order in Section 1.1 of the Credit Agreement reading
as follows:
"Revolving Banks" shall mean Banks that have Revolving Loan
Commitments as set forth in Schedule I to the Credit Agreement.
i. Each reference to "Bank" in the definition of "Revolving Loan
Commitment" in Section 1.1 of the Credit Agreement is deleted and replaced by
"Revolving Bank".
j. A new definition of "Term Banks" is inserted in the appropriate
alphabetical order in Section 1.1 of the Credit Agreement reading as follows:
"Term Banks" shall mean Banks that have Term Loans as set forth
in Schedule I to the Credit Agreement.
k. Each reference to "Bank" in the definition of "Term Loan
Commitments" in Section 1.1 of the Credit Agreement is deleted and replaced by
"Term Bank".
l. The reference to "Banks" in the definition of "Total Term Loan
Commitment" in Section 1.1 of the Credit Agreement is deleted and replaced by
"Term Banks".
2. Global Amendment to Credit Agreement. The Credit Agreement is globally
amended to replace the term "Reference Banks" with "Reference Bank".
3. Amendments to Section 2.1 of the Credit Agreement. Each reference to
"Bank" or "Banks" in subsections (a), (b) and (c) of Section 2.1 of the Credit
Agreement is deleted and replaced by "Revolving Bank" or "Revolving Banks", as
applicable. Each reference to "Bank" in subsection (d) of Section 2.1 of the
Credit Agreement is deleted and replaced by "Term Bank".
4. Amendments to Section 2.4 of the Credit Agreement. Each reference to
"Bank" in Section 2.4 of the Credit Agreement is deleted and replaced by
"Revolving Bank".
5. Amendments to Section 2.5(b) of the Credit Agreement. Each reference to
"Bank" in Section 2.5(b) of the Credit Agreement is deleted and replaced by
"Revolving Bank".
6. Amendments to Section 2.5(d) of the Credit Agreement. Each reference to
"Bank" in Section 2.5(d) of the Credit Agreement is deleted and replaced by
"Term Bank".
7. Amendments to Section 2.13 of the Credit Agreement. Section 2.13 of the
Credit Agreement is amended as follows:
(i) The initial paragraph, but not the provisos, is amended and
restated in its entirety to read as follows:
Upon (a)(i) the receipt of notice from a Revolving Bank pursuant
to Section 2.10 or (ii) any Revolving Bank failing to fulfill its
obligations to make a Revolving Loan at a time when the conditions
precedent set forth in Sections 6 and 7 shall have been satisfied in
the opinion of the Required Revolving Banks, as set forth in Section
13.13(b) ( in each case, an "Affected Bank") or (b) any Bank or Banks
(other than the Administrative and Collateral Agent or any Issuing
Bank) failing to consent to any proposed amendment, modification or
waiver as contemplated by Section 13.13(a), but Banks holding at least
85% of the sum of (a) the aggregate unpaid principal amount of the
Term Loans plus (b) the aggregate amount of the Revolving Loan
Commitments (or, if the Revolving Loan Commitments shall have
terminated, the sum of (i) the aggregate unpaid principal amount of
the Revolving Loans plus (ii) the aggregate amount of all Letter of
Credit Outstandings) having consented to such an amendment,
modification or waiver (in each case, a "Non-Consenting Bank"), the
Borrowers shall have the right, if no Event of Default then exists, to
replace any such Affected Bank or Non-Consenting Bank (the "Replaced
Bank") with one or more Eligible Transferee or Transferees,
(collectively, the "Replacement Bank") reasonably acceptable to the
Administrative and Collateral Agent and the Issuing Bank; provided
that"
(ii) Proviso (i) to Section 2.13 is amended by adding the phrase ", if
any,"after the phrase "Revolving Loan Commitments" in the third line thereof
and after the phrase "Replaced Bank's Loan Percentage" in the thirteenth line
thereof.
8. Amendment to Section 2.14 of the Credit Agreement. Section 2.14 of the
Credit Agreement is amended by adding the term "Revolving" prior to the term
"Bank" in the first line thereof and prior to the phrase "Bank's Revolving Loan
Commitment" in the last line thereof.
9. Amendments to Section 3.4(a) of the Credit Agreement. Each reference to
"Bank" in Section 3.4(a) of the Credit Agreement is deleted and replaced by
"Revolving Bank"; provided that such change shall not affect any references
therein to "Issuing Bank".
10. Amendment to Section 3.4(f)(v) of the Credit Agreement. The reference
to "Bank" in Section 3.4(f)(v) of the Credit Agreement is deleted and replaced
by "Revolving Bank"; provided that such change shall not affect any references
therein to "Issuing Bank".
11. Amendments to Section 4.1 of the Credit Agreement. Each reference to
"Bank" or "Banks" in Section 4.1 of the Credit Agreement is deleted and replaced
by "Revolving Bank" or "Revolving Banks", as applicable; provided that such
change shall not affect any references therein to "Issuing Bank".
12. Amendments to Section 4.2 of the Credit Agreement. Each reference to
"Bank" or "Banks" in Section 4.2 of the Credit Agreement (except with respect to
the term "Bank" in the parenthetical commencing in the third line thereof) is
deleted and replaced by "Revolving Bank" or "Revolving Banks", as applicable.
13. Amendment to Section 4.3(c) of the Credit Agreement. The reference to
"Bank" in Section 4.3(c) of the Credit Agreement is deleted and replaced byn
"Revolving Bank".
14. Amendment to Section 5.2(a)(A) of the Credit Agreement. The reference
to "Banks" in Section 5.2(a)(A) of the Credit Agreement is deleted and replaced
by "Revolving Banks".
15. Amendment to Section 5.2(a)(D) of the Credit Agreement. Section
5.2(a)(D) of the Credit Agreement is amended and restated in its entirety as
follows:
(D) The Borrowers shall make the following payments of principal
of the Term Loans (including accrued interest thereon) or in the event
that the Term Loans have been paid in full of principal of the
Revolving Loans (including accrued interest thereon) on the following
dates:
DATE AMOUNT
------------------ -----------
December 31, 2000 $5,000,000
March 31, 2001 $10,000,000
June 30, 2001 $10,000,000
September 30, 2001 $10,000,000
December 31, 2001 $10,000,000
March 31, 2002 $10,000,000
June 30, 2002 $10,000,000
16. Amendment to Section 5.2(b)(A) of the Credit Agreement. Section
5.2(b)(A) of the Credit Agreement is amended by replacing the period at the end
of clause (v) with a "; and" and adding the following proviso at the end of such
clause:
; provided, however, that upon the occurrence and during the
continuance of a Default, such proceeds shall be applied pro rata to
the Term Loans and the obligations referenced in clauses (i) through
(iv) above; provided, further that upon such Default no longer being
in effect, the cash collateral provided pursuant to clause (iv) shall
be applied to the Term Loans in accordance with clause (i).
17. Amendment to Section 5.2(a)(C) of the Credit Agreement. The reference
to "then outstanding Loans " in the last line of Section 5.2(a)(C) of the Credit
Agreement is deleted and replaced by the following: "Term Loans; provided,
however, that upon the occurrence and during the continuance of a Default, such
proceeds shall be applied pro rata to the Revolving Loans then outstanding, if
any, and the Term Loans".
18. Amendment to Section 5.4(b) of the Credit Agreement. Each reference to
"Form 4224 or Form 1001" in Section 5.4(b) of the Credit Agreement is deleted
and replaced by "Form W-8BEN or W-8ECI."
19. Amendment to Section 7 of the Credit Agreement. The reference to "Bank"
in the introductory paragraph of Section 7 of the Credit Agreement is deleted
and replaced by "Revolving Bank".
20. Amendment to Section 9.13(a)(ii) of the Credit Agreement. Section
9.13(a)(ii) of the Credit Agreement is amended by replacing the amount
"$125,000,000" appearing twice in such paragraph (ii) with the amount
"$200,000,000".
21. Amendment to Section 10.3 of the Credit Agreement. Section 10.3 of the
Credit Agreement is amended by deleting clauses (i) and (ii) in the proviso
thereof and replacing such clauses with the following: "(i) $30,000,000 for the
period commencing October 22, 1999 and ending August 13, 2001 and (ii)
$20,000,000 (plus the unused portion of the $30,000,000 referenced in clause (i)
above) for the period commencing August 14, 2001 and ending on the Final
Maturity Date."
22. Amendment to Section 10.4 of the Credit Agreement. Section 10.4 of the
Credit Agreement is amended by adding the following phrase at the end of such
Section: "or as approved in writing by the Administrative and Collateral Agent;
provided, that such Subsidiary shall execute and deliver a Joinder Agreement and
the Guaranty (by an amendment thereto pursuant to which it becomes a party
thereto) or a substantially similar guaranty as described in Section 9.13(c)."
23. Amendment to Section 10.10 of the Credit Agreement. Section 10.10 of
the Credit Agreement is amended and restated in its entirety as follows:
Consolidated Funded Indebtedness to Consolidated EBITDA. Apria will
not permit the Consolidated Funded Indebtedness to Consolidated EBITDA
Ratio as of the end of any fiscal quarter to exceed 2.75 to 1 during
the period commencing September 30, 2000 and ending on the Final
Maturity Date.
24. Amendment to Section 13.4(b) of the Credit Agreement. Section 13.4(b)
of the Credit Agreement is amended as follows:
(a) by deleting clause (x) thereof in its entirety and replacing it
with the following new clause (x):
(x) assign all or a portion of its Loans, Term Loan Commitments
or Revolving Loan Commitments and related outstanding obligations
under this Agreement to one or more Banks or Affiliates of such
Banks or any entity (whether a corporation, partnership, trust or
other entity) that is engaged in making, purchasing, holding or
otherwise investing in bank loans and similar extensions of
credit in the ordinary course of its business and is administered
or managed by a Bank or an Affiliate of such Bank or; and
(b) by deleting the phrase "(i) any such assignment shall be for an
equal percentage of its Term Loans, Revolving Loans and Revolving Loan
Commitments" and renumbering the subsequent subsections (ii) through (v) of such
paragraph (b).
25. Amendment to Section 13.13(a) of the Credit Agreement. Section 13.13(a)
of the Credit Agreement is amended by inserting the following phrase after the
colon in the second proviso of such section: "(w) without the consent of the
Required Revolving Banks, waive any provision of Section 7,".
26. Amendment to Schedules and Exhibits. Schedules I, II, VI, VIII, IX and
XI of, and Exhibit H to, the Credit Agreement are amended by replacing such
Schedules and Exhibit H with Schedules I, II, VI, VIII, IX and XI and Exhibit H
attached to this Amendment.
27. 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;
(b) Upon the effectiveness of this Amendment, no Default or Event of
Default shall have occurred and be continuing under the Credit Agreement;
(c) 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; and
(d) Each representation and warranty contained in Section 8 of the
Credit Agreement is true and correct in all material respects as though made
on and as of the date of this Amendment (except that (i) with respect to the
representations and warranties contained in Section 8.5(a) of the Credit
Agreement, each reference to "December 31, 1997" therein shall be deemed a
reference to "December 31, 1999", each reference to "June 30, 1998" therein
shall be deemed a reference to June 30, 2000" and each reference to the
Effective Date shall be deemed a reference to the date of this Amendment and
(ii) with respect to any representations and warranties that expressly refer
to an earlier date (other than in such Section 8.5), they are true and correct
as of such earlier date).
28. Conditions Precedent. This Amendment shall become effective upon
satisfaction of the following conditions:
(i) the receipt by the Administrative and Collateral Agent of the
consent of each of the Banks to this Amendment;
(ii) the receipt by the Administrative and Collateral Agent of this
Amendment, duly executed and delivered by each of the Borrowers and the
Administrative and Collateral Agent;
(iii) the receipt by the Administrative and Collateral Agent, for the
benefit of the Banks, of a prepayment of Term Loans, in immediately available
unds, in the amount of $20,061,778;
(iv) the receipt by the Administrative and Collateral Agent, for the
benefit of the Banks, as applicable, of the principal of the Loans made by all
Banks being replaced in connection with this Amendment, accrued interest
on the Loans (prorated to the effective date of this Amendment) and accrued fees
under the Credit Agreement (prorated to the effective date of this Amendment);
(v) the receipt by the Administrative and Collateral Agent of all fees
due under the Fee Letter dated August 14, 2000 between Apria and the
Administrative and Collateral Agent (the "Fee Letter");
(vi) the receipt by the Administrative and Collateral Agent, for the
benefit of the Banks, an amendment fee equal to 0.25% of each Bank's Revolving
Loan Commitment plus Term Loan Commitment as shown on Schedule I;
(vii) the receipt by the Administrative and Collateral Agent of an
opinion of the Borrowers' counsel in a form and substance satisfactory to the
Administrative and Collateral Agent; and
(viii) the receipt by the Administrative and Collateral Agent of 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 27 of this Amendment are
true, correct and complete in all material respects as of the date of this
Amendment.
29. Reference to and Effect on the Credit Agreement, Notes, Security
Agreement 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. For purposes of the replacement of Banks pursuant to this Amendment,
all such replacement of Banks shall be deemed to have been made in accordance
with the provisions of Section 2.13 of the Credit Agreement.
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, the Security Agreement 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.
30. 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.
31. Expenses. Subject to the limitations set forth in the Fee Letter, the
Borrowers shall reimburse the Administrative and Collateral Agent on demand for
all reasonable costs, expenses and charges (including, without limitation,
reasonable fees and charges of legal counsel and other consultants for the
Administrative and Collateral Agent) incurred by the Administrative and
Collateral Agent in connection with the preparation, performance or enforcement
of this Amendment.
32. Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of its parties and their respective successors and permitted
assigns.
33. 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.
34. 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.
35. 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.
36. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND INTERPRETED AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.
[SIGNATURES FOLLOW]
<PAGE>
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: /s/ John Maney
---------------------------------------------
Name: John Maney
Title: CFO
BANK OF AMERICA, N.A.,
as Administrative and Collateral Agent
By: /s/ Miles C. Dearden
---------------------------------------------
Name: Miles C. Dearden
Title: Managing Director
BANK OF AMERICA, N.A.,
as a Bank
By: /s/ Miles C. Dearden
---------------------------------------------
Name: Miles C. Dearden
Title: Managing Director
THE BANK OF NOVA SCOTIA
By: /s/ R. P. Reynolds
---------------------------------------------
Name: R. P. Reynolds
Title: Director
BNP PARIBAS
By: /s/ Brock Harris
---------------------------------------------
Name: Brock Harris
Title: Director
THE CHASE MANHATTAN BANK
By: /s/ Dawn Lee Lum
---------------------------------------------
Name: Dawn Lee Lum
Title: Vice President
CITY NATIONAL BANK
By: /s/ Darren Miyata
---------------------------------------------
Name: Darren Miyata
Title: Vice President
CREDIT LYONNAIS
By: /s/ John C. Oberle
---------------------------------------------
Name: John C. Oberle
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ James P. Tanzillo
---------------------------------------------
Name: James P. Tanzillo
Title: Vice President
FLEET NATIONAL BANK
By: /s/ William R. Rogers
---------------------------------------------
Name: William R. Rogers
Title: Director
FOOTHILL CAPITAL CORPORATION
By: /s/ Jeff Nikora
---------------------------------------------
Name: Jeff Nikora
Title:
FOOTHILL INCOME TRUST, L.P.
By: /s/ Jeff Nikora
---------------------------------------------
Name: Jeff Nikora
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Colleen B. Galle
---------------------------------------------
Name: Colleen B. Galle
Title: Vice President
UBS AG, STAMFORD BRANCH
By: /s/ Daniel W. Ladd III
---------------------------------------------
Name: Daniel W. Ladd III
Title: Executive Director
By: /s/ Dorothy L. McKinley
---------------------------------------------
Name: Dorothy L. McKinley
Title: Director, Banking Products Services,IS
<PAGE>
<TABLE>
SCHEDULE 1
<CAPTION>
COMMITMENTS
-----------
Revolving Loan Revolving Loan Term Loan Term Loan
Commitment Commitment Commitment Commitment
Percentage Percentage
<S> <C> <C> <C> <C>
Bank of America, N.A. $12,343,096.24 24.68619248% $46,656,903.76 24.68619248%
Fleet National Bank $5,230,125.52 10.46025104% $19,769,874.48 10.46025104%
UBS AG, Stamford Branch $5,230,125.52 10.46025104% $19,769,874.48 10.46025104%
Foothill Income Trust, $2,092,050.21 4.18410042% $7,907,949.79 4.18410042%
L.P.
Foothill Capital $2,092,050.21 4.18410042% $7,907,949.79 4.18410042%
Corporation
The Bank of Nova Scotia $4,184,100.42 8.36820084% $15,815,899.58 8.36820084%
First Union National $4,184,100.42 8.36820084% $15,815,899.58 8.36820084%
Bank
The Chase Manhattan Bank $4,184,100.42 8.36820084% $15,815,899.58 8.36820084%
Credit Lyonnais $4,184,100.42 8.36820084% $15,815,899.58 8.36820084%
Morgan Guaranty Trust $3,138,075.31 6.27615062% $11,861,924.69 6.27615062%
Company
Of New York
BNP Paribas $2,092,050.21 4.18410042% $7,907,949.79 4.18410042%
City National Bank $1,046,025.10 2.09205020% $3,953,974.90 2.09205020%
------------- ----------- ------------- -----------
$50,000,000.00 100.00000000% $189,000,000.00 100.00000000%
</TABLE>
<PAGE>
SCHEDULE II
AUTHORIZED INDIVIDUALS
[Section 2.3(b)]
Philip L. Carter
John C. Maney
James E. Baker
Alicia Price
Walter H. Hinrichs
<PAGE>
SCHEDULE VI
MATERIAL SUBSIDIARIES
[Section 8.13]
APRIA HEALTHCARE, INC.
APRIA HEALTHCARE OF NEW YORK STATE, INC.
<PAGE>
SCHEDULE VIII
EXISTING INDEBTEDNESS
[Section 8.20]
Under clauses (i) and (iv) of the definition of Indebtedness set forth in
Section 1.1(a) of the Credit Agreement
A. Clause (i) Indebtedness.
The following is a list of obligations of borrowed money or for
purchase prices of property or services deferred more than 90 days
where the current outstanding amount of the specific obligation exceeds
$1,000,000 (multiple obligations to a single creditor have not been
aggregated):
Abbey Healthcare Group Incorporated 9 1/2% senior subordinated
notes due November 1, 2002, with a current aggregate principal
balance of $200,000,000 issued under the Indenture.
B. Capitalized Lease Obligation Exceeding $1,000,000 [Clause (iv) of
Definition of Indebtedness] (multiple obligations to a single creditor
have been aggregated).
Current Long Term Total Debt
------- ---------- ----------
IBM $985,141 $2,763,610 $3,748,751
C. Interaffiliate Debt.
The existence of interaffiliate Indebtedness between one or more of
Apria and its Material Subsidiaries has been disclosed but is not
specifically listed on this schedule.
<PAGE>
SCHEDULE IX
MATERIAL CONTRACTS
------------------
[Section 8.23]
A. Contracts evidencing Indebtedness for Capitalized Lease Obligations or
for Borrowed Money or Deferred Purchase Price Obligations (see clauses
(i) and (iv) of Definitions of Indebtedness in Excess of $1,000,000):
Disclosed on Schedule VIII.
B. Other Material Contracts involving payment by or to Borrower of more
than $10,000,000 per year:
1. Purchase Agreements in excess of $10,000,000 (multiple contracts
with single or related vendors have not been aggregated):
(a) Purchase Agreement, dated December 19, 1997, by and between
Invacare Corporation and Apria Healthcare, Inc.
(b) Prime Vendor Agreement, dated January 28, 2000, between Cardinal
Distribution and Apria Healthcare, Inc.
(c) Purchase Agreement, dated April 1, 1999, by and between Red Line
Medical Supply, Inc. and Apria Healthcare, Inc.
(d) Purchase Agreement, dated March 1, 1999, by and between
Respironics, Inc. and Apria Healthcare, Inc.
(e) Purchase Agreement, dated December 19, 1997, as amended, by and
between Western Medica and Apria Healthcare, Inc.
(f) Purchase Agreement, dated August 1, 2000, by and between Pacific
Cylinders, Inc. and Apria Healthcare, Inc.
2. Revenue Agreements in excess of $10,000,000 (multiple contracts
with single or related entities have not been aggregated):
(a) National Durable Medical Equipment Services Agreement, effective
January 1, 2000, between Kaiser Foundation Health Plan, Inc. and
certain others and Apria Healthcare, Inc.
(b) Provider Agreement, effective April 1, 1999, between Olsten
Network Management, Inc. and Apria Healthcare, Inc.
(c) Participating Agreement, effective June 1, 1999, between United
Healthcare Services, Inc. and Apria Healthcare, Inc. and Apria
Healthcare of New York State, Inc.
(d) National Ancillary Service Agreement, effective April 1, 1999,
between Aetna U.S. HealthCare, Inc., on behalf of itself and its
affiliates, and Apria Healthcare, Inc.
3. Blue Cross/Blue Shield Revenue Agreements.
Aggregate revenue agreements with the Blue Cross/Blue Shield
entities exceed $23,000,000. However, Apria does not believe that
any one contract exceeds $10,000,000 in annual payments.
4. Interaffiliate Contracts.
The existence of interaffiliate Material Contracts among two or
more of Apria and its Material Subsidiaries has been disclosed,
but the same are not specifically listed.
5. Lease Agreements in excess of $10,000,000 (multiple contracts with
single or related entities have been aggregated):
Motor Vehicle Fleet Open-end Operating Lease Agreement, dated
June 15, 1998, by and between PHH Vehicle Management Services
Corporation and Apria Healthcare, Inc.
<PAGE>
SCHEDULE XI
IMMATERIAL SUBSIDIARIES
-----------------------
APRIACARE MANAGEMENT SYSTEMS, INC.
APRIA NUMBER TWO, INC.
<PAGE>
EXHIBIT H
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement") dated as of
__________ ___, ______, is between [______________] (the "Assignor") and
[_________________] (the "Assignee").
RECITALS
--------
A. The Assignor is a party to the Amended and Restated Credit Agreement
dated as of November 13, 1998 (as amended, modified, supplemented and in effect
from time to time, the "Credit Agreement") between Apria Healthcare Group Inc.
("Apria") and the Subsidiaries of Apria identified on the signature pages of the
Credit Agreement and any Subsidiary of Apria that 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" under the Credit
Agreement (individually, a "Bank" and collectively the "Banks"), NationsBank,
N.A., as the Syndication Agent, and Bank of America, N.A. (as successor in
interest to Bank of America National Trust and Savings Association and
NationsBank of Texas, N.A.), as the Administrative and Collateral Agent. (All
capitalized terms used but not defined in this Agreement shall have the meanings
assigned to them in the Credit Agreement.)
B. The Assignor wishes to assign to the Assignee and the Assignee wishes to
purchase and assume from the Assignor, all of the interest in all of the
Assignor's rights and obligations under the Credit Agreement as more fully set
forth below.
C. It is a condition to such assignment and assumption that the Assignor
and the Assignee shall have executed this Agreement.
AGREEMENT
---------
Accordingly, in consideration of the foregoing and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Assignor and the Assignee agree as follows:
1. The Assignor hereby sells and assigns to the Assignee without recourse
and without representation or warranty (other than as expressly provided in this
Agreement), and the Assignee hereby purchases and assumes from the Assignor,
[____]% of the Assignor's rights and obligations with respect to the [Revolving
Loan Commitments] [Term Loan Commitments] under the Credit Agreement as of the
date of this Agreement (the "Assigned Share"), including all rights and
obligations with respect to the Assigned Share of the [Revolving Loans] [Term
Loans] in the amount of $[________]. After giving effect to such sale and
assignment, the Assignee's Revolving Loan Commitment will be $[_______] and the
Assignee's Term Loan Commitment will be $[______], the amount of the outstanding
Loans owing to the Assignee will be $[_______] and the Assignee's Pro Rata Share
of the Total Revolving Loan Commitment will be [____]% and the Assignee's Pro
Rata Share of the Total Term Loan Commitment will be [____]%.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it under this Agreement and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the other Credit Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or the other Credit Documents or any other instrument or document
furnished pursuant to the Credit Agreement or the other Credit Documents; and
(iii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Credit Party or the performance or
observance by the Credit Parties of any of their obligations under the Credit
Agreement or the other Credit Documents to which they are a party or any other
instrument or document furnished pursuant to the Credit Agreement or the other
Credit Documents.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement and the other Credit Documents, together with copies of the financial
statements referred to in the Credit Agreement and the other Credit Documents
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Agreement; (ii) agrees
that it will, independently and without reliance upon the Administrative and
Collateral Agent, the Assignor or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement;
(iii) confirms that it is an Eligible Transferee under the Credit Agreement;
(iv) appoints and authorizes the Administrative and Collateral Agent to take
such action as agent on its behalf and to exercise such powers under the Credit
Agreement and the other Credit Documents as are delegated to the Administrative
and Collateral Agent by the terms of the Credit Agreement and the other Credit
Documents, together with such powers as are reasonably incidental to such
powers; and (v) agrees that it will perform in accordance with their terms all
of the obligations which by the terms of the Credit Agreement are required to be
performed by it as a Bank; and (vi) to the extent legally entitled to do so,
attaches the forms described in Section 5.4(b)(ii) of the Credit Agreement.(1)
4. Following the execution of this Agreement by the Assignor and the
Assignee, an executed original of this Agreement (together with all attachments)
will be delivered to the Administrative and Collateral Agent. The effective date
of this Agreement shall be the date of execution of this Agreement by the
Assignor and the Assignee and the receipt of any consent of the Administrative
and Collateral Agent, Apria and the Issuing Bank to the extent required by
Section 13.4(b) of the Credit Agreement and receipt by the Administrative and
Collateral Agent of the assignment fee referred to in such Section 13.4(b), if
applicable (the "Settlement Date").
5. Upon the delivery of a fully executed original of this Agreement to the
Agent, as of the Settlement Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Agreement, have the rights
and obligations of a Bank under the Credit Agreement and under the other Credit
Documents and (ii) the Assignor shall, to the extent provided in this Agreement,
relinquish its rights and be released from its obligations under the Credit
Agreement and the other Credit Documents.
6. It is agreed that the Assignee shall be entitled to (w) all interest on
the Assigned Share of the Loans at the applicable rates specified in the Credit
Agreement; (x) all Revolving Loan Commitment Fees (if applicable) on the
Assigned Share of the Revolving Loan Commitment at the applicable rate specified
in the Credit Agreement; and (y) all Letter of Credit Fees (if applicable) on
the Assignee's participation in all Letters of Credit at the applicable rate
specified in the Credit Agreement, which, in each case, accrue on and after the
Settlement Date, such interest and, if applicable, Revolving Loan Commitment
Fees and Letter of Credit Fees, to be paid by the Administrative and Collateral
Agent directly to the Assignee. It is further agreed that all payments of
principal made on the Assigned Share of the Loans which occur on and after the
Settlement Date will be paid directly by the Administrative and Collateral Agent
to the Assignee. Upon the Settlement Date, the Assignee shall pay to the
Assignor an amount specified by the Assignor in writing which represents the
Assigned Share of the principal amount of the respective Loans made by the
Assignor pursuant to the Credit Agreement which are outstanding on the
Settlement Date, net of any closing costs, and which are being assigned under
this Agreement. The Assignor and the Assignee shall make all appropriate
adjustments in payments under the Credit Agreement for periods prior to the
Settlement Date directly between themselves on the Settlement Date.
-----------------------
(1) If the Assignee is organized under the laws of a jurisdiction outside the
United States.
This Assignment and Assumption Agreement shall be governed by and construed
in accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties to this Agreement have caused their duly
authorized officers to execute and deliver this Bank Assignment and Assumption
Agreement, as of the date first above written.
Accepted this ____ day of ___________, ____.
[-------------------]
as Assignor
By:
-----------------------------------------
Name:
Title:
[-------------------]
as Assignee
By:
-----------------------------------------
Name:
Title:
Acknowledged and Agreed:
BANK OF AMERICA, N.A.,
as Administrative and Collateral Agent
By:
------------------------------------------
Name:
Title:
BANK OF AMERICA N.A.,
as Issuing Bank
By:
------------------------------------------
Name:
Title:
