exv10w4






Exhibit
10.4




SECURED PROMISSORY NOTE




			
	 	 	 
	$250,000,000.00
	 	July 1, 2003






     FOR VALUE RECEIVED, the undersigned, American HomePatient, Inc., a Delaware corporation,
American HomePatient, Inc., a Tennessee corporation, Designated Companies, Inc., AHP Finance, Inc.,
American HomePatient of New York, Inc., National Medical Systems, Inc., Sound Medical Equipment,
Inc., The National Medical Rentals, Inc., National I.V., Inc., American HomePatient of Arkansas,
Inc., American HomePatient of Nevada, Inc., Volunteer Medical Oxygen & Hospital Equipment Co.,
Allegheny Respiratory Associates, Inc., American HomePatient of Illinois, Inc., American
HomePatient of Texas, L.P., AHP, L.P., AHP Home Medical Equipment Partnership of Texas, Colorado
Home Medical Equipment Alliance, LLC, Northeast Pennsylvania Alliance, LLC, Northwest Washington
Alliance, LLC, AHP Home Care Alliance of Tennessee, AHP Alliance of Columbia, AHP Knoxville
Partnership, AHP Home Care Alliance of Gainesville, AHP Home Care Alliance of Virginia
(individually and collectively, “Makers”), jointly and severally promise to pay to BANK OF MONTREAL
(Bank of Montreal or its duly appointed successor being referred to herein as the “Agent”), as
agent for each of the lender’s listed on Schedule 1 hereto, as such schedule is amended from time
to time hereafter by Agent (each individually, a “Payee” and collectively, the “Payees”; the Payees
and any subsequent holders hereof are hereinafter referred to collectively as the “Holders”), at
the office of Agent located at 115 S. LaSalle Street, 12 W, Chicago, Illinois 60603 (attention:
Heather Turf) or at such other place as Agent may designate to Maker in writing from time to time,
the principal sum of TWO HUNDRED FIFTY MILLION AND NO/100THS DOLLARS ($250,000,000.00), together
with interest on the outstanding principal balance hereof from the date hereof at the rate of 6.785
percent (6.785%) per annum (computed on the basis of a 360-day year). All capitalized terms used
but not defined herein shall have the meaning given to such terms in the Second Amended Joint Plan
of Reorganization for Maker dated January 2, 2003 (as amended from time to time thereafter, the
“Plan of Reorganization”).



     Interest only on the outstanding principal balance hereof shall be due and payable monthly, in
arrears, with the first installment being payable on the first (1st) day of August, 2003, and
subsequent installments being payable on the first (1st) business day of each succeeding month
thereafter until August 1, 2009 (the “Maturity Date”), at which time the entire outstanding
principal balance, together with all accrued and unpaid interest, shall be immediately due and
payable in full.



     Prior to the Maturity Date, Maker shall, in addition to the payments required above, make
periodic payments of principal (the “Mandatory Pre-Payments”) to Agent, on behalf of the Holders,
as follows: (i) until the Class 5 and Class 8 Claimants are paid in full, for the fiscal years
ending December 31, 2004 and thereafter, Maker shall make principal payments hereunder equal to
one-third (1/3) of the amount of cash (as determined by Maker’s independent auditors) in excess of
$7,000,000 that is available to Maker as of the end of such year after accounting for all of
Maker’s expenditures and expenses during that calendar year, including without limitation a reserve
for payment of any Contested Claims, and (ii) after the Class 5 and Class 8 Claimants are paid in
full, for the fiscal years ending prior to maturity, Maker shall make principal



 









 




payments hereunder equal to 100% of the amount of cash (as determined by Maker’s independent
auditors) in excess of $7,000,000 that is available to Maker as of the end of such year after
accounting for all of Maker’s expenditures and expenses during that calendar year, including
without limitation a reserve for payment of any Contested Claims. All determinations of excess cash
flow made by the Maker’s independent auditors shall be final, conclusive, and binding on Maker and
Holders absent manifest error.




     Any Mandatory Pre-Payments shall be paid in full to Agent, on behalf of the Holders, by no
later than March 31 of the year following the fiscal year with respect to which such payments are
required; provided, however, that Maker shall make an estimated payment related to the Mandatory
Pre-Payments on September 30 of each fiscal year commencing September 30, 2004. The estimated
payment shall be in an amount equal to one-half (1/2) of Maker’s good-faith estimate of the
Required Pre-Payments for such fiscal year based on Maker’s cash on hand at June 30 and anticipated
cash needs during the remainder of the fiscal year.



     The indebtedness evidenced hereby may be prepaid in whole or in part, at any time and from
time to time, without premium or penalty. Any such prepayments shall be credited first to any
accrued and unpaid interest and then to the outstanding principal balance hereof.



     Time is of the essence of this Note.



     In the event this Note is placed in the hands of an attorney for collection, or if Holder
incurs any external costs incident to the collection of the indebtedness evidenced hereby, Maker
and any endorsers hereof agree to pay to Holder an amount equal to all such costs, including
without limitation all reasonable attorneys’ fees and all court costs.



     Presentment for payment, demand, protest and notice of demand, protest and nonpayment are
hereby waived by Maker and all other parties hereto. No failure to accelerate the indebtedness
evidenced hereby by reason of an Event of Default hereunder, acceptance of a past-due installment
or other indulgences granted from time to time, shall be construed as a novation of this Note or as
a waiver of such right of acceleration or of the right of Holder thereafter to insist upon strict
compliance with the terms of this Note or to prevent the exercise of such right of acceleration or
any other right granted hereunder or by applicable law. No extension of the time for payment of the
indebtedness evidenced hereby or any installment due hereunder, made by agreement with any person
now or hereafter liable for payment of the indebtedness evidenced hereby, shall operate to release,
discharge, modify, change or affect the original liability of Maker hereunder or that of any other
person now or hereafter liable for payment of the indebtedness evidenced hereby, either in whole or
in part, unless Holder agrees otherwise in writing. This Note may not be changed orally, but only
by an agreement in writing signed by the party(ies) against whom enforcement of any waiver, change,
modification or discharge is sought.



     The indebtedness and other obligations evidenced by this Note are further evidenced by (i) the
Plan of Reorganization and (ii) all other documents evidencing the Holders’ security interests and
liens on property of Maker.



     All agreements herein made are expressly limited so that in no event whatsoever shall the
amount paid or agreed to be paid to Holder for the use of the money advanced or to be advanced



 









 




hereunder exceed the maximum rate of interest allowed to be charged under applicable law (the
“Maximum Rate”). If, from any circumstances whatsoever, the fulfillment of any provision of this
Note or any other agreement or instrument now or hereafter evidencing, securing or in any way
relating to the indebtedness evidenced hereby shall involve the payment of interest in excess of
the Maximum Rate, then, ipso facto, the obligation to pay interest hereunder shall be reduced to
the Maximum Rate; and if from any circumstance whatsoever, Holder shall ever receive interest, the
amount of which would exceed the amount collectible at the Maximum Rate, such amount as would be
excessive interest shall be applied to the reduction of the principal balance remaining unpaid
hereunder and not to the payment of interest. This provision shall control every other provision in
any and all other agreements and instruments existing or hereafter arising between Maker and Holder
with respect to the indebtedness evidenced hereby.




     This Note is intended as a contract under and shall be construed and enforceable in accordance
with the laws of the State of Tennessee, except to the extent that federal law may be applicable to
the determination of the Maximum Rate.



     Failure by Maker to pay to Agent on behalf of Holders any amounts due hereunder within ten
(10) business days of the due date thereof shall constitute an Event of Default hereunder.



     Maker hereby irrevocably consents to the jurisdiction of the United States District Court for
the Middle District of Tennessee and of all Tennessee state courts sitting in Davidson County,
Tennessee, for the purpose of any litigation to which holder may be a party and which concerns this
note. It is further agreed that venue for any such action shall lie exclusively with courts sitting
in Davidson County, Tennessee.



     HOLDER AND MAKER HEREBY KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COUNSEL WAIVE TRIAL BY
JURY IN ANY ACTIONS, PROCEEDINGS, CLAIMS OR COUNTER-CLAIMS, WHETHER IN CONTRACT OR TORT OR
OTHERWISE, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT.



     As used herein, the terms “Maker” and “Holder” shall be deemed to include their respective
successors, legal representatives and assigns, whether by voluntary action of the parties or by
operation of law.



	 	 	 	 	 	 
	 

	 	MAKER:	 
	 
	 	 	 	 	 
	 	 	AMERICAN HOMEPATIENT, INC.,
a Delaware corporation	 
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer	 
	 

	 	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary	 






 









 






	 	 	 	 	 	 
	 	 	AMERICAN HOMEPATIENT, INC.,

a Tennessee corporation	 
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer	 
	 

	 	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary	 
	 
	 	 	 	 	 
	 	 	DESIGNATED COMPANIES, INC.	 
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer	 
	 

	 	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary	 
	 
	 	 	 	 	 
	 	 	AHP FINANCE, INC.	 
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer	 
	 

	 	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary	 
	 
	 	 	 	 	 
	 	 	AMERICAN HOMEPATIENT OF NEW YORK,
INC.	 
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer	 
	 

	 	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary	 
	 
	 	 	 	 	 
	 	 	NATIONAL MEDICAL SYSTEMS, INC.	 
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer	 
	 

	 	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary	 
	 
	 	 	 	 	 
	 	 	SOUND MEDICAL EQUIPMENT, INC.	 
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer	 
	 

	 	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary	 






 









 






	 	 	 	 	 	 
	 	 	THE NATIONAL MEDICAL RENTALS, INC.	 
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer	 
	 

	 	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary	 
	 
	 	 	 	 	 
	 	 	NATIONAL I.V., INC.	 
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer	 
	 

	 	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary	 
	 
	 	 	 	 	 
	 	 	AMERICAN HOMEPATIENT OF ARKANSAS,
INC.,	 
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer	 
	 

	 	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary	 
	 
	 	 	 	 	 
	 	 	AMERICAN HOMEPATIENT OF NEVADA,
INC.	 
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer	 
	 

	 	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary	 
	 
	 	 	 	 	 
	 	 	VOLUNTEER MEDICAL OXYGEN &
HOSPITAL EQUIPMENT CO.	 
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer	 
	 

	 	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary	 
	 
	 	 	 	 	 
	 	 	ALLEGHENY RESPIRATORY ASSOCIATES,
INC.	 
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer	 
	 

	 	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary	 






 









 






	 	 	 	 	 	 
	 	 	AMERICAN HOMEPATIENT OF ILLINOIS,
INC.	 
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer	 
	 

	 	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary	 
	 
	 	 	 	 	 
	 	 	AMERICAN HOMEPATIENT OF TEXAS, L.P.,

a Texas limited partnership	 
	 
	 	 	 	 	 
	 	 	By: AMERICAN HOMEPATIENT, INC.,

its general partner	 
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer	 
	 

	 	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary	 
	 
	 	 	 	 	 
	 	 	By: AMERICAN HOMEPATIENT OF ILLINOIS,
INC.,

its limited partner	 
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer	 
	 

	 	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary	 
	 
	 	 	 	 	 
	 	 	AHP, L.P.,

a Tennessee limited partnership	 
	 
	 	 	 	 	 
	 	 	By: AMERICAN HOMEPATIENT, INC.,

its general partner	 
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer	 
	 

	 	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary	 
	 
	 	 	 	 	 
	 	 	By: AMERICAN HOMEPATIENT OF ILLINOIS,
INC., 
its limited partner	 
	 
	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer	 
	 

	 	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary	 






 









 






	 	 	 	 	 
	 	 	AHP HOME MEDICAL EQUIPMENT

PARTNERSHIP OF TEXAS,

a Texas general partnership
	 
	 	 	 	 
	 	 	By: AHP, L.P., 

a general partner
	 
	 	 	 	 
	 	 	By: AMERICAN HOMEPATIENT, INC.,

its general partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer
	 

	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary
	 
	 	 	 	 
	 	 	By: AMERICAN HOMEPATIENT VENTURES,

INC., a general partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer
	 

	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary
	 
	 	 	 	 
	 	 	COLORADO HOME MEDICAL EQUIPMENT

ALLIANCE, LLC,

a Colorado limited liability company
	 
	 	 	 	 
	 	 	By: AMERICAN HOMEPATIENT VENTURES,

INC., its sole member
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer
	 

	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary
	 
	 	 	 	 
	 	 	NORTHEAST PENNSYLVANIA ALLIANCE,

LLC,

a Pennsylvania limited liability company
	 
	 	 	 	 
	 	 	By: AMERICAN HOMEPATIENT VENTURES,

INC. its sole member
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer
	 

	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary






 









 






	 	 	 	 	 
	 	 	NORTHWEST WASHINGTON ALLIANCE,

LLC, a Washington limited liability company
	 
	 	 	 	 
	 	 	By: AMERICAN HOMEPATIENT VENTURES,

INC. its sole member
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer
	 

	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary
	 
	 	 	 	 
	 	 	AHP HOME CARE ALLIANCE OF TENNESSEE,

a Tennessee general partnership
	 
	 	 	 	 
	 	 	By: AMERICAN HOMEPATIENT, INC.,

its general partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer
	 

	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary
	 
	 	 	 	 
	 	 	By: AMERICAN HOMEPATIENT VENTURES,

INC., its general partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer
	 

	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary
	 
	 	 	 	 
	 	 	AHP ALLIANCE OF COLUMBIA,

a South Carolina general partnership
	 
	 	 	 	 
	 	 	By: AMERICAN HOMEPATIENT, INC.,

its general partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer
	 

	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary






 









 






	 	 	 	 	 
	 	 	By: AMERICAN HOMEPATIENT VENTURES,

INC., its general partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer
	 

	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary
	 
	 	 	 	 
	 	 	AHP KNOXVILLE PARTNERSHIP,

a Tennessee general partnership
	 
	 	 	 	 
	 	 	By: AMERICAN HOMEPATIENT, INC.,

its general partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer
	 

	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary
	 
	 	 	 	 
	 	 	By: AMERICAN HOMEPATIENT VENTURES,

INC., its general partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer
	 

	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary
	 
	 	 	 	 
	 	 	AHP HOME CARE ALLIANCE OF

GAINESVILLE, a Florida general partnership
	 
	 	 	 	 
	 	 	By: AMERICAN HOMEPATIENT, INC.,

its general partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer
	 

	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary
	 
	 	 	 	 
	 	 	By: AMERICAN HOMEPATIENT VENTURES,

INC., its general partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer
	 

	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary






 









 






	 	 	 	 	 
	 	 	AHP HOME CARE ALLIANCE OF VIRGINIA,

a Virginia general partnership
	 
	 	 	 	 
	 	 	By: AMERICAN HOMEPATIENT, INC.,

its general partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer
	 

	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary
	 
	 	 	 	 
	 	 	By: AMERICAN HOMEPATIENT VENTURES,

INC., its general partner
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert L. Fringer
	 

	 	 	 	 
	 

	 	 	 	Title: Vice President & Secretary






 









 






SCHEDULE 1

LENDERS



See attached document.





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Allstate-AIMCO CDO Series 2000-A

Allstate Life Insurance Company

Bank of America, N.A.

Bank of Montreal

Barclays Bank PLC

Bear Stearns & Co., Inc.

Deutsche Bank Trust Company Americas f/k/a Bankers Trust Company

Endeavor LLC

Everest Capital Master Fund L.P.

Fernwood Associates L.P.

General Electric Capital Corporation

California Public Employees’ Retirement System (Highland)

Highland Crusader Offshore Partners, L.P. (Highland)

ML CBO IV (Cayman)/Protective (Highland)

PAM Capital Funding, L.P. (Highland)

Pamco Cayman Ltd. (Highland)

HCM/Z Special Opportunities LLC a/ka/ HZ Special Opportunities, LLC (Highbridge Capital)

Long Lane Master Trust IV

Morgan Stanley Prime Income Trust

PPM America Special Investments Funds, L.P.

Fuqua Family Fund, L.P. (Tennenbaum)

Special Value Bond Fund II, LLC (Tennenbaum)

Van Kampen VKM Prime Rate Income Trust

Van Kampen Senior Income Trust





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