exv10w12






EXHIBIT 10.12




SECOND AMENDED AND RESTATED COLLECTION BANK AGREEMENT




     This SECOND AMENDED AND RESTATED COLLECTION BANK AGREEMENT (this “AGREEMENT”) is dated as of
July 1, 2003, among __________________ (the “COLLECTION BANK”), AMERICAN HOMEPATIENT, INC.
(the “PLEDGOR”), and BANK OF MONTREAL, as agent for and representative of (the “AGENT”) the
financial institutions (the “LENDERS”) that hold a promissory note payable to such Lenders as set
forth on Exhibit A attached hereto (the “Promissory Note”) and amends and restates the Amended and
Restated Collection Bank Agreement dated as of ___, ______ among the Collection Bank, the Pledgor and
Agent.



W I T N E S S E T H :




     WHEREAS, Pledgor presently maintains, or has established concurrently herewith, at the
Collection Bank the accounts described on Schedule I hereto (each individually, a “COLLECTION
ACCOUNT” and collectively, the “COLLECTION ACCOUNTS”);



     WHEREAS, Pledgor and the Agent entered into that certain Second Amended and Restated
Assignment and [Borrower][Subsidiary] Security Agreement dated as of July 1, 2003 amending and
restating the [Borrower][Subsidiary] Security Agreement dated as of July 31, 2001 (the “COLLATERAL
AGREEMENT”), pursuant to which the Pledgor granted to the Agent a security interest in all of the
Pledgor’s right, title and interest in and to the Pledgor’s accounts receivable and the proceeds
thereof (including, without limitation, the Collection Account(s)) and all amounts from time to
time on deposit therein;



     WHEREAS, it is a requirement of the Collateral Agreement that the parties hereto execute and
deliver this Agreement;



     NOW, THEREFORE, the parties hereto hereby agree as follows:



     1. The Pledgor agrees that all accounts receivable received by the Pledgor shall be deposited
by the Pledgor in the Collection Account(s) or into similar accounts subject to a Collection Bank
Agreement and that no funds from any other source other than proceeds of Accounts Receivable shall
be deposited in any such account. .



     2. The Pledgor hereby irrevocably authorizes and directs the Collection Bank to transfer the
available balance (as determined by the Collection Bank) in the Pledgor’s Collection Account(s) on
each Business Day to the concentration account (the “CONCENTRATION ACCOUNT”) at such bank
(initially, Account No. __________________ at PNC Bank, National Association, at _________), or, after
the occurrence and during the continuance of an Event of Default under the Collateral Agreement (an
“Event of Default”), as the Agent may, in its sole discretion, direct in writing. After Agent gives
written notice to the Collection Bank (with a copy to the Pledgor) that an Event of Default has
occurred and is continuing, the Pledgor hereby irrevocably authorizes and directs the Collection
Bank, and the Collection Bank hereby agrees, to comply with instructions from the Agent, without
further consent from the Pledgor, directing the disposition of the funds in the Collection
Account(s).



 









 





     3. The parties agree that all funds deposited in the Collection Account(s) from time to time
shall, as between the Pledgor and the Agent, be subject to the security interests in favor of the
Agent, shall be held by the Collection Bank subject to the security interest of the Agent and, upon
the occurrence of an Event of Default, may be withdrawn at any time or from time to time at the
direction of the Agent without further consent from the Pledgor, by check, draft, wire transfer or
otherwise as the Agent shall determine and applied by the Agent in accordance with the Collateral
Agreement. The Pledgor hereby agrees that it shall cause forwarding daily of all of the prior day’s
available funds deposited in the Collection Account(s) to the Concentration Account until such time
as the Agent gives written notice to the Collection Bank (with a copy to the Pledgor) that an Event
of Default has occurred and is continuing. After Agent gives such written notice to the Collection
Bank, the Collection Bank hereby agrees to comply with instructions from the Agent, without further
consent from the Pledgor, directing the disposition of the funds in the Collection Account(s). The
Collection Bank hereby agrees that it will provide the Agent with written notice on or before the
date that it terminates any of the Collection Account(s).



     4. The Collection Bank’s charges for the services to be performed pursuant to this Agreement
shall be at the Collection Bank’s customary rate unless and until different rates are separately
agreed to between the Collection Bank and the Pledgor. To the extent that the Collection Bank’s
charges are not paid when due and to the extent deposits made to the Collection Account(s) are
returned or otherwise not collected, the Agent and the Pledgor agree that the Collection Bank shall
have a lien and right of offset against the funds in the applicable Collection Account.



     5. The Collection Bank agrees that it shall furnish to the Agent a copy of the original of all
bank statements with respect to, and, upon Notice by the Agent, all daily debit advices of, the
Collection Account(s), and promptly upon the issuance or receipt thereof, copies of all notices and
other communications with respect to the Collection Account(s) issued or received by the Collection
Bank.



     6. This Agreement, and the covenants, agreements, authorizations and directions contained
herein, are irrevocable and cannot be changed or modified without the prior written consent of the
Agent.



     7. All checks, money orders and other evidences of payment received by the Collection Bank and
all proceeds thereof are at all times to be considered subject to the security interests granted by
the Collateral Agreements and this Agreement and are further subject to the requirement that, in
accordance with the terms hereof, such amounts shall be duly transferred to the Concentration
Account and the Collection Bank shall not have any rights or claims to, or interest in, such
property or any funds in the Collection Account(s), including any right to offset except as
provided in Section 4 hereof. The Collection Bank agrees that it will not obtain, nor seek to
obtain, any security interest or lien against the funds contained in the Collection Account(s)
except as provided in Section 4 hereof and the Pledgor agrees that it will not grant any security
interest in or lien on the funds contained in the Collection Account(s), except as provided in
Section 4 hereof. Except as otherwise required by law, any notice of legal process of any kind
relating to the Pledgor that the Collection Bank may receive shall have no effect whatsoever on
such property or the Collection Account(s) or on the Collection Bank’s



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responsibility under this Agreement unless and until the Collection Bank receives written
instructions from the Agent to the contrary; upon receipt of legal process relating to the Pledgor,
the Collection Bank promptly shall give notice thereof to the Agent.




     8. All notices, requests or other communications given to the Pledgor, the Agent or the
Collection Bank shall be given in writing (including facsimile transmission or similar writing) at
the address or telecopy number specified below:



	 	 	 	 	 	 	 
	 

	 	Agent:
	 	Bank of Montreal	 	 
	 

	 	 	 	Attn: Heather Turf	 	 
	 

	 	 	 	115 S. La Salle, 12W	 	 
	 

	 	 	 	Chicago, IL 60603	 	 
	 
	 	 	 	 	 	 
	 

	 	Collection Bank:
	 	 

	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	 

	 	 
	 

	 	 	 	 

	 	 






	 	 	 	 	 	 	 
	 

	 	Attention:	 	 	 	 
	 

	 	Telecopy:	 	 	 	 
	 

	 	 	 	 	 	 





	 	 	 	 	 
	 

	 	Pledgor:
	 	American HomePatient, Inc.
	 

	 	 	 	5200 Maryland Way, Suite 400
	 

	 	 	 	Brentwood, TN 37027
	 

	 	 	 	Attention: Marilyn A. O’Hara





Any party may change its address or telecopy number for notices hereunder by notice to each other
party hereunder. Each notice, request or other communication shall be effective (a) if given by
mail, 48 hours after such communication is deposited in the mails with registered first class
postage prepaid, addressed as aforesaid, or (b) if given by any other means, when delivered at the
address specified in this Section 8.




     9. In case any provision in or obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality or enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not
in any way be affected or impaired thereby.



     10. This Agreement may be executed in one or more counterparts and by different parties hereto
in separate counterparts, each of which when so executed and delivered shall be deemed an original,
but all such counterparts taken together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are attached physically to the same document. This
Agreement shall become effective as of the date first set forth above upon the execution of a
counterpart hereof by the Pledgor, the Collection Bank and the Agent and receipt by the Agent of
written or telephonic notification of such execution and authorization of delivery thereof.
Delivery of an executed counterpart to this Agreement by facsimile transmission shall be effective
as delivery of a manually executed counterpart of this Agreement.



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     11. Deleted



     12. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST PLEDGOR ARISING OUT OF OR RELATING TO THIS
AGREEMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE NASHVILLE,
DAVIDSON COUNTY, TENNESSEE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT THE PLEDGOR ACCEPTS FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. The Pledgor
hereby agrees that service of all process in any such proceeding in any such court may be made by
registered or certified mail, return receipt requested, to the Pledgor at its address provided in
Section 8, such service being hereby acknowledged by the Pledgor to be sufficient for personal
jurisdiction in any action against the Pledgor in any such court and to be otherwise effective and
binding service in every respect. Nothing herein shall affect the right to serve process in any
other manner permitted by law or shall limit the right of the Agent or the Collection Bank to bring
proceedings against the Pledgor in the courts of any other jurisdiction.



     13. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver
is intended to be all-encompassing of any and all disputes that may be filed in any court and that
relate to the subject matter of this transaction, including without limitation contract claims,
tort claims, breach of duty claims, and all other common law and statutory claims. Each of the
parties to this Agreement acknowledges that this waiver is a material inducement to enter into a
business relationship, that each other party already relied on this waiver in entering into this
Agreement and that each will continue to rely on this waiver in their related future dealings. Each
of the parties to this Agreement further warrants and represents that it reviewed this waiver with
its legal counsel, and that each knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. In the event of litigation, this Agreement may be
filed as a written consent to a trial by the court.



     14. EXCEPT TO THE EXTENT THAT THE LAWS OF THE STATE IN WHICH THE COLLECTION BANK IS LOCATED
GOVERN THE COLLECTION ACCOUNT(S),THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF TENNESSEE, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES. The Borrower, the Agent, and the Collection Bank agree that for
purposes of Article 9, of ___’s version of the Uniform Commercial Code, [CITATION], the
jurisdiction of the Collection Bank is _____.



     15. In addition to the payment of expenses pursuant to Section 4, the Pledgor and the Agent
each agrees to indemnify and hold the officers, directors, employees and agents of the



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Collection Bank (collectively the “INDEMNITEES”) harmless from and against, any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs,
expenses and disbursements of any kind or nature whatsoever (including, the reasonable fees and
disbursements of counsel for all of such Indemnitees collectively in connection with any
investigative, administrative or judicial proceeding, whether or not such Indemnitee shall be
designated a party thereto and for each of such Indemnitees whose counsel determines in good faith
that joint representation of such Indemnitee along with the other Indemnitees would or reasonably
could be expected to result in a conflict of interest under applicable laws or ethical principles)
that may be imposed on, incurred, directly or indirectly, by, or asserted against such Indemnitee,
as a consequence of the Collection Bank executing this Agreement and performing its obligations
hereunder (the “INDEMNIFIED LIABILITIES”); provided that neither the Agent nor the Pledgor shall
have any obligation to an Indemnitee hereunder with respect to indemnified liabilities arising from
the gross negligence or willful misconduct of any such Indemnitee. Each Indemnitee, as soon as
reasonably practicable, shall notify the Pledgor and the Agent of the commencement of any legal
proceeding by a third Person under which any indemnified liability might arise. The Pledgor and the
Agent shall have the option to participate in the defense of all claims under which any indemnified
liability might arise, but neither the Pledgor nor the Agent shall have the option to compel any
Indemnitee to employ counsel not of the Indemnitee’s choosing.




[Remainder of page intentionally left blank]




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     IN WITNESS WHEREOF, each of the parties hereto has caused this agreement to be executed and
delivered by its duly authorized officer on the date first set forth above.



	 	 	 	 	 
	PLEDGOR:	 	AMERICAN HOMEPATIENT, INC.
	 
	 

	 	By:  
	/s/ Robert L. Fringer
	 

	 	 	 
	 

	 	 	Title: 
	Vice President & Secretary
	 
	 	 	 	 
	AGENT:	 	BANK OF MONTREAL
	 	 	as the Agent
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 
	 

	 	 	Name: 	 
	 

	 	 	 	 
	 

	 	 	Title:	 
	 

	 	 	 	 
	 
	 	 	 	 
	COLLECTION BANK:
	 	 	 	 
	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	Name:	 
	 

	 	 	 	 
	 

	 	 	Title:	 
	 

	 	 	 	 





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EXHIBIT A




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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