Exhibit 10.1
FIRST AMENDMENT TO 364-DAY CREDIT AGREEMENT
THIS FIRST AMENDMENT TO 364-DAY CREDIT AGREEMENT, dated as of October 16,
2002 (this "Amendment"), is among INVACARE CORPORATION, an Ohio corporation (the
"Company"), each of the Borrowing Subsidiaries party thereto (collectively with
the Company, the "Borrowers"), the banks set forth on the signature pages hereof
(collectively, the "Banks") and BANK ONE, NA, a national banking association
with its main office in Chicago, Illinois and successor by merger with Bank One,
Michigan, as agent for the Banks (in such capacity, the "Agent").
RECITALS
A. The Borrowers, the Agent and the Banks are parties to a 364-Day Credit
Agreement, dated as of October 17, 2001 (as now and hereafter amended, the
"Credit Agreement"), pursuant to which the Banks agreed, subject to the terms
and conditions thereof, to extend credit to the Borrowers.
B. The Borrowers desire to amend the Credit Agreement to, among other
things, extend the Termination Date under the Credit Agreement, and the Agent
and the Banks are willing to do so strictly in accordance with the terms hereof.
TERMS
In consideration of the premises and of the mutual agreements herein
contained, the parties agree as follows:
ARTICLE 1.
AMENDMENTS
Upon fulfillment of the conditions set forth in Article 3 hereof, the
Credit Agreement shall be amended as follows:
1.1 Effective on October 16, 2002, the "Termination Date" in Section 1.1
shall be amended and restated in its entirety to read as follows:
"Termination Date" shall mean the earlier to occur of (a) October 15, 2003
or any later date as may be specified as the Termination Date in accordance with
Section 2.12, and (b) the date on which the Commitments shall be terminated
pursuant to Section 2.2 or 6.2.
1.2 The following definitions shall be added to Section 1.1 in appropriate
alphabetical order:
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and the regulations thereunder.
"SEC" means the Securities and Exchange Commission, or any governmental
authority succeeding to any of its principal functions.
1.3 Sections 5.1(d)(ii) and (iii) shall be amended and restated in their
entirety to read as follows:
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(ii) As soon as available and in any event within the earlier of (A) five
(5) days after the time period specified by the SEC under the Exchange Act for
quarterly reporting or (B) within 50 days after the end of each of the first
three fiscal quarters of each fiscal year of the Company, the consolidated
balance sheet of the Company and its Subsidiaries as of the end of such quarter,
and the related consolidated statements of income and cash flow for the period
commencing at the end of the previous fiscal year and ending with the end of
such quarter, setting forth in each case in comparative form the corresponding
figures for the corresponding date or period of the preceding fiscal year, all
in reasonable detail and duly certified (subject to normal year-end adjustments)
by the chief financial officer of the Company as having been prepared in
accordance with generally accepted accounting principles, together with a
compliance certificate in substantially the form of Exhibit H attached hereto
signed by the chief financial officer of the Company showing the calculations
necessary to determine compliance with this Agreement and stating that no Event
of Default or Default has occurred and is continuing; provided, however, that at
any time the Company shall be subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act, delivery within the time period specified above
of copies of the quarterly balance sheets and statements on Form 10-Q of the
Company and its Subsidiaries for such quarterly period as filed with the SEC
shall be deemed to satisfy the requirements of this clause (ii);
(iii) As soon as available and in any event within the earlier of (A) five
(5) days after the time period specified by the SEC under the Exchange Act for
annual reporting or (B) within 90 days after the end of each fiscal year of the
Company, a copy of the consolidated balance sheet of the Company and its
Subsidiaries as of the end of such fiscal year and the related consolidated
statements of income and cash flow of the Company and its Subsidiaries for such
fiscal year, with a customary audit report of Ernst & Young, or other nationally
recognized independent certified public accountants selected by the Company,
without qualifications unacceptable to the Required Banks, together with (A)
either (I) a written statement of the accountants that is making the examination
necessary for their report or opinion they obtained no knowledge of the
occurrence of any Default or Event of Default under this Agreement or (II) if
they know of any Default or Event of Default, their written disclosure of its
nature and status, provided that, the accountants shall not be liable directly
or indirectly to anyone for any failure to obtain knowledge of any Default or
Event of Default under this Agreement, and (B) a compliance certificate in
substantially the form of Exhibit H attached hereto signed by the chief
financial officer of the Company showing the calculations necessary to determine
compliance with this Agreement and stating that no Event of Default or Default
has occurred and is continuing; provided, however, that at any time the Company
shall be subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, delivery within the time period specified above of copies of the
annual balance sheets and statements on Form 10-K of the Company and its
Subsidiaries for such annual period as filed with the SEC shall be deemed to
satisfy the requirements of this clause (iii);
ARTICLE 2.
REPRESENTATIONS
Each Borrower represents and warrants to the Agent and the Banks that:
2.1 The execution, delivery and performance of this Amendment is within its
powers, has been duly authorized and is not in contravention with any law, of
the terms of its Articles of Incorporation or By-laws, or any undertaking to
which it is a party or by which it is bound.
2.2 This Amendment is the legal, valid and binding obligation of such
Borrower enforceable against it in accordance with the terms hereof.
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2.3 After giving effect to the amendments herein contained, the
representations and warranties contained in Article IV of the Credit Agreement
are true on and as of the date hereof with the same force and effect as if made
on and as of the date hereof.
2.4 No Event of Default or Default exists or has occurred and is continuing
on the date hereof.
ARTICLE 3.
CONDITIONS OF EFFECTIVENESS
This Amendment shall not become effective until each of the
following has been satisfied:
3.1 This Amendment shall be signed by each Borrower, the Agent and the
Banks.
3.2 The Company shall pay to the Agent, for the pro rata benefit of the
Banks signing this Amendment on or before 5:00 p.m. on October 11, 2002 a fee
equal to 7.5 basis points on each such Bank's Commitment, which fee shall be due
and payable on October 18, 2002.
3.3 The Company shall deliver to the Agent such board resolutions, good
standing certificates and incumbency certificates required by the Agent.
ARTICLE 4.
MISCELLANEOUS.
4.1 References in the Credit Agreement or in any note, certificate,
instrument or other document to the "Credit Agreement" shall be deemed to be
references to the Credit Agreement as amended hereby and as further amended from
time to time.
4.2 Each Borrower agrees to pay and to save the Agent harmless for the
payment of all costs and expenses arising in connection with this Amendment,
including the reasonable fees of counsel to the Agent in connection with
preparing this Amendment and the related documents.
4.3 Each Borrower acknowledges and agrees that the Agent and the Banks have
fully performed all of their obligations under all documents executed in
connection with the Credit Agreement and all actions taken by the Agent and the
Banks are reasonable and appropriate under the circumstances and within their
rights under the Credit Agreement and all other documents executed in connection
therewith and otherwise available. Each Borrower represents and warrants that it
is not aware of any claims or causes of action against the Agent or any Bank,
any participant lender or any of their successors or assigns.
4.4 Except as expressly amended hereby, each Borrower agrees that the
Credit Agreement, the Notes, the Security Documents and all other documents and
agreements executed by the Borrower in connection with the Credit Agreement in
favor of the Agent or any Bank are ratified and confirmed and shall remain in
full force and effect and that it has no set off, counterclaim or defense with
respect to any of the foregoing. Terms used but not defined herein shall have
the respective meanings ascribed thereto in the Credit Agreement.
4.5 This Amendment may be signed upon any number of counterparts with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
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IN WITNESS WHEREOF, the parties signing this Amendment have caused this
Amendment to be executed and delivered as of October 16, 2002.
INVACARE CORPORATION
By: /s/ Gerald B. Blouch
_________________________________
Its: President, Chief Operating Officer
Interim Chief Financial Officer
_________________________________
INVACARE (DEUTSCHLAND) GmbH
By: /s/ Gerald B. Blouch
_________________________________
Its: President, Chief Operating Officer
Interim Chief Financial Officer
_________________________________
INVACARE AUSTRALIA PTY. LTD.
By: /s/ Gerald B. Blouch
_________________________________
Its: President, Chief Operating Officer
Interim Chief Financial Officer
_________________________________
INVACARE CANADA INC.
By: /s/ Gerald B. Blouch
_________________________________
Its: President, Chief Operating Officer
Interim Chief Financial Officer
_________________________________
INVACARE S.A.
By: /s/ Gerald B. Blouch
_________________________________
Its: President, Chief Operating Officer
Interim Chief Financial Officer
_________________________________
INVACARE BV
By: /s/ Gerald B. Blouch
_________________________________
Its: President, Chief Operating Officer
Interim Chief Financial Officer
_________________________________
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BANK ONE, NA, as a Bank and as Agent
By: /s/ Glenn A. Currin
________________________________
Its: Managing Director
________________________________
KEYBANK NATIONAL ASSOCIATION, as a
Bank and Syndication Agent
By: /s/ Brendan A. Lawlor
________________________________
Its: Vice President
________________________________
NATIONAL CITY BANK, as a Bank and
Documentation Agent
By: /s/ John Osberg
________________________________
Its: Assistant Vice President
________________________________
BANK OF AMERICA, N.A., as a Bank and
Documentation Agent
By: /s/ Larry Gordon
________________________________
Its: Principal
________________________________
JP MORGAN CHASE BANK, as a Bank
and Co-Agent
By: /s/ Henry W. Centa
________________________________
Its: Vice President
________________________________
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THE BANK OF NEW YORK
By: /s/ Michael Flannery
_______________________________
Its: Vice President
_______________________________
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Charles Heidsieck
_______________________________
Its: Senior Vice President
_______________________________
FIFTH THIRD BANK
By: /s/ James Byrnes
_______________________________
Its: Vice President
_______________________________
HARRIS TRUST AND SAVINGS BANK
By: /s/ Gloria Compean-Endicott
_______________________________
Its: Vice President
_______________________________
NORDEA BANK FINLAND PLC, formerly
known as Merita Bank Plc
By: /s/ Thomas P. Hickey
_______________________________
Its: Vice President
_______________________________
By: /s/ Ulf Forsstrom
_______________________________
Its: Vice President
_______________________________
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PNC BANK, NATIONAL ASSOCIATION
By: /s/ Joseph Moran
_______________________________
Its: Vice President
_______________________________
SUNTRUST BANK
By: /s/ William Priester
_______________________________
Its: Vice President
_______________________________
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