EXHIBIT 10.2
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this
"Amendment") dated as of April 22, 1997 is made between 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 Agent.
RECITALS
I. The Borrowers, the Banks, the Syndication Agent and the
Administrative Agent are parties to the Credit Agreement dated as
of August 9, 1996 (the "Credit Agreement") pursuant to which the
Banks extended certain credit to the Borrowers.
II. The Borrowers have requested that (i) up to $76,000,000
of the reserves and charges taken by Apria in the fourth quarter
of its 1996 fiscal year be excluded from the calculation of the
Fixed Charge Coverage Ratio and the Consolidated Fund
Indebtedness to Consolidated EBITDA Ratio for the first three
fiscal quarters of 1997 and (ii) the definition of Minimum
Consolidated Net Worth be revised to (a) exclude amounts used by
Apria for permitted repurchases of capital stock and (b) delete
references to the Vitas Merger.
III. The Borrowers have requested that the Credit Agreement
be amended to reflect the foregoing.
IV. The Banks are willing to accommodate the requests 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. Defined Terms. Capitalized terms used but not defined
in this Amendment shall have the respective meanings assigned to
such terms in the Credit Agreement.
2. Amendment to Section 1.1. Section 1.1 of the Credit
Agreement is hereby amended by adding the following definition in
proper alphabetical order:
""1996 Charges and Reserves" shall mean the one time
charges and reserves in an aggregate amount of up to
$76,000,000 taken by Apria in the fourth quarter of its 1996
fiscal year."
3. Amendments to Section 10.
(a) Section 10.9 of the Credit Agreement is
hereby amended by adding the following clause at the end of such
section:
"; provided that, solely for the purpose of determining
compliance with this Section 10.9, the calculation of the
Fixed Charge Coverage Ratio for the fiscal quarters ending
on March 31, 1997, June 30, 1997 and September 30, 1997
shall be made without giving effect to the 1996 Charges and
Reserves."
(b) Section 10.10 of the Credit Agreement is
hereby amended to read in its entirety as follows:
"10.10 Minimum Consolidated Net Worth. Apria will not
permit its Consolidated Net Worth at the end of any fiscal
quarter, commencing with the fiscal quarter ending
September 30, 1996 to be less than an amount equal to
(a) $313,832,700, plus (b) an amount equal to 75% of
Consolidated Net Income (in excess of zero) for each fiscal
quarter commencing with the fiscal quarter ending
September 30, 1996, which amount shall be added to
Consolidated Net Worth as of the last day of each such
fiscal quarter, plus (c) 100% of the net proceeds of
issuances of Apria Common Stock, minus (d) any amounts used
by Apria to repurchase its capital stock in accordance with
Section 10.3(iii)"
(c) Section 10.11 of the Credit Agreement is
hereby amended by adding the following clause at the end of such
Section:
"; provided that, solely for the purpose of determining
compliance with this Section 10.11, and without affecting
the determination of the Applicable Margin, the calculation
of the Consolidated Funded Indebtedness to Consolidated
EBITDA Ratio for the fiscal quarters ending on March 31,
1997, June 30, 1997 and September 30, 1997 shall be made
without giving effect to the 1996 Charges and Reserves."
4. Representations. Each of the Borrowers represents and
warrants to the Banks that 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. 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 (i) the Administrative Agent's receipt of
the consent of the Required Banks, (ii) each of the
representations and warranties contained in Section 8 of the
Credit Agreement being true and correct as of the date of this
Amendment and (iii) the receipt by the Administrative Agent of
this Amendment, duly executed and delivered by each of the
Borrowers.
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
Administrative Agent on demand for all costs, expenses and
charges (including, without limitation, reasonable fees and
charges of external legal counsel for the Administrative Agent)
incurred by the Administrative Agent 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.
APRIA NUMBER ONE, INC.
APRIA NUMBER TWO, INC.
PROTOCARE OF METROPOLITAN NEW YORK,
INC.
HOMEDCO OF NEW YORK STATE, INC.
By:
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Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By:
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Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Administrative Agent
By:
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Name:
Title:
NATIONSBANK OF TEXAS, N.A.,
as a Bank and as Syndication Agent
By:
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Name:
Title:
ABN AMRO BANK N.V.,
Los Angeles International Branch
By: ABN AMRO NORTH AMERICA, INC.
as agent
By:
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Name:
Title:
By:
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Name:
Title:
BANK OF IRELAND/GRAND CAYMAN BRANCH
By:
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Name:
Title:
By:
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Name:
Title:
THE BANK OF NEW YORK
By:
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Name:
Title:
THE BANK OF NOVA SCOTIA,
as a Bank and as a Co-Agent
By:
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Name:
Title:
BANQUE NATIONALE DE PARIS,
as a Bank and as a Co-Agent
By:
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Name:
Title
By:
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Name:
Title:
BANQUE PARIBAS,
as a Bank and as a Co-Agent
By:
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Name:
Title:
By:
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Name:
Title:
CREDIT LYONNAIS
New York Branch
By:
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Name:
Title:
DEUTSCHE BANK AG, acting through
its Los Angeles Branch and/or its
Cayman Islands Branch
By:
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Name:
Title:
By:
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Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By:
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Name:
Title:
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By:
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Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LTD.,
Los Angeles Agency
By:
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Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN, LTD., as a Bank and as a Co-
Agent
By:
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Name:
Title:
MELLON BANK, N.A.
By:
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Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By:
--------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
as a Bank and as a Co-Agent
By:
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Name:
Title:
▇▇▇▇▇ FARGO BANK, N.A.
By:
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Name:
Title:
THE MITSUBISHI TRUST AND BANKING CORPORATION
By:
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Name:
Title:
THE SAKURA BANK LIMITED
By:
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Name:
Title:
THE SANWA BANK, LIMITED
By:
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Name:
Title:
THE SUMITOMO BANK LIMITED
By:
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Name:
Title:
THE FUJI BANK, LIMITED,
Los Angeles Agency
By:
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Name:
Title: