Exhibit 10.2
INVACARE CORPORATION
SECOND AMENDMENT
Dated as of September 29, 2005
to
NOTE PURCHASE AGREEMENT
Dated as of February 27, 1998
Re: $80,000,000 6.71% Series A Senior Notes due February 27, 2008
and
$20,000,000 6.60% Series B Senior Notes due February 27, 2005
================================================================================
SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT
THIS SECOND AMENDMENT dated as of September 29, 2005 (the or this "Second
Amendment") to the Note Purchase Agreement dated as of February 27, 1998 is
among INVACARE CORPORATION, an Ohio corporation (the "Company"), and each of the
institutions which is a signatory to this Second Amendment (collectively, the
"Noteholders").
RECITALS:
A. The Company and each of the Noteholders have previously entered into
that certain Note Purchase Agreement dated as of February 27, 1998, as amended
pursuant to that certain First Amendment dated as of October 1, 2003 (the
"Existing Note Purchase Agreement," and, as amended hereby, the "Note Purchase
Agreement") pursuant to which the Company issued the (i) $80,000,000 6.71%
Series A Senior Notes due February 27, 2008 (the "Series A Notes") and (ii)
$20,000,000 6.60% Series B Senior Notes due February 27, 2005 (the "Series B
Notes"); and together with the Series A Notes collectively, the "Notes"). The
Noteholders are the holders of the outstanding principal amount of the Notes
identified on the signature pages hereto.
B. The Company has also previously entered into that certain Credit
Agreement dated as of January 14, 2005 (the "Bank Credit Agreement") among the
Company and certain Borrowing Subsidiaries (as defined therein), the banks named
therein (the "Banks"), JPMorgan Chase Bank, N.A., as agent, Keybank National
Association as Syndication Agent, J.P. Morgan Securities, Inc. and Keybank
National Association as Co-Lead Arrangers, pursuant to which the Banks agreed to
make term loans and extend a credit facility to the Company and the Borrowing
Subsidiaries.
C. The Company proposes that the Noteholders agree inter alia to permit the
consummation of the Permitted Receivables Securitization Program.
D. In furtherance of the foregoing, the Company and the Noteholders now
desire to amend the Existing Note Purchase Agreement in the respects, but only
in the respects, hereinafter set forth.
E. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Agreement, as amended hereby, unless herein defined
or the context shall otherwise require.
F. All requirements of law have been fully complied with and all other acts
and things necessary to make this Second Amendment a valid, legal and binding
instrument according to its terms for the purposes herein expressed have been
done or performed.
NOW, THEREFORE, upon the full and complete satisfaction of the conditions
precedent to the effectiveness of this Second Amendment set forth in ss.3.1
hereof, and in consideration of good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the Company and the Noteholders do
hereby agree as follows:
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SECTION 1. AMENDMENTS.
Section 1.1. Amendment to Section 10 of the Existing Note Purchase
Agreement. Section 10 of the Existing Note Purchase Agreement shall be and is
hereby amended to insert a new Section 10.7 to read in its entirety as follows:
"Section 10.7. Minimum Credit Agreement Commitment. The Company
shall at all times maintain at least $350,000,000 in aggregate loan
commitments under its Credit Agreement."
Section 1.2. Amendment to Section 11.3 of the Existing Note Purchase
Agreement. Section 11.3 of the Existing Note Purchase Agreement shall be and is
hereby amended in its entirety to read as follows:
"Section 11.3. Maximum Amount of Consolidated Debt. The Company will not at
any time permit the ratio of Consolidated Debt to Consolidated Operating Cash
Flow to exceed 3.50 to 1.00 (or such lower ratio at all times during which the
Credit Agreement requires a lower ratio) for the immediately preceding four
fiscal quarter period taken as a single accounting period ending on the date of
calculation."
Section 1.3. Amendment to Section 11.4 of the Existing Note Purchase
Agreement. Section 11.4 of the Existing Note Purchase Agreement shall be and is
hereby amended in its entirety to read as follows:
"Section 11.4. Incurrence of Priority Debt. The Company will not
and will not permit any of its Subsidiaries to directly or indirectly
create, incur, assume, guarantee, or otherwise become liable in
respect of
(a) in the case of the Company, any Debt to be incurred
after the date of the Closing and secured by Liens permitted
pursuant to clause (h), (i), (j) or (l) of Section 11.6, or
(b) in the case of any Subsidiary, any Debt to be incurred
by such Subsidiary after the date of Closing,
unless, after giving effect to the incurrence of such Debt
and the application of the proceeds thereof,
(i) no Default or Event of Default would exist and
(ii) the aggregate principal amount (without
duplication) of
(A) all Debt of the Company then outstanding secured by
Liens permitted pursuant to clauses (e), (h), (i), (j) or
(l) of Section 11.6 (excluding, in any case, any such Debt
owing to a Subsidiary and excluding any duplication of Debt
that may arise by virtue of the utilization of clause (j))
and
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(B) all Consolidated Subsidiary Debt then outstanding
does not exceed 30% of Consolidated Net Worth, determined as of the
last day of the most recently ended Fiscal Quarter.
For the purposes of this Section 11.4, any Person becoming a
Subsidiary after the date of the Closing shall be deemed, at the time
it becomes such a Subsidiary, to have incurred all of its then
outstanding Debt. This Section 11.4 shall have no application to any
Debt of a Subsidiary owing to the Company or a Subsidiary."
Section 1.4. Amendment to Section 11.6 of the Existing Note Purchase
Agreement. Section 11.6 of the Existing Note Purchase Agreement shall be and is
hereby amended and restated in its entirety to read as follows:
"Section 11.6. Liens. The Company will not and will not permit
any of its Subsidiaries to directly or indirectly create, incur,
assume or permit to exist (upon the happening of a contingency or
otherwise) any Lien on or with respect to any property or asset
(including, without limitation, any document or instrument in respect
of goods or accounts receivable) of the Company or such Subsidiary,
whether now owned or held or hereafter acquired, or any income or
profits therefrom or assign or otherwise convey any right to receive
such income or profits (unless it makes, or causes to be made,
effective provision whereby the Notes will be equally and ratably
secured with any and all other obligations thereby secured, such
security to be pursuant to an agreement reasonably satisfactory to the
Required Holders providing for such security (including an opinion of
counsel to the Company to the effect that the holders of the Notes are
so equally and ratably secured) and, in any such case, the Notes shall
have the benefit, to the fullest extent that, and with such priority
as, the holders of the Notes may be entitled under applicable law, of
an equitable Lien on such property), provided that the foregoing
restrictions and limitations shall not apply to:
(a) (i) Liens for taxes, assessments or other governmental
charges (including ERISA Liens) the payment of which is not at
the time required by Section 10.4, and (ii) statutory Liens of
landlords and Liens of carriers, warehousemen, mechanics,
materialmen, inventory suppliers and other similar Liens, in each
case, incurred in the ordinary course of business for sums not
yet due or the payment of which is not at the time required by
Section 10.4;
(b) Liens (i) arising from judicial attachments and
judgments, (ii) securing appeal bonds or supersedeas bonds, or
(iii) arising in connection with court proceedings (including,
without limitation, surety bonds and letters of credit or any
other instrument serving a similar purpose),
provided that (1) the execution or other enforcement of such
Liens is effectively stayed, (2) the claims secured thereby are
being actively contested in good faith and by appropriate
proceedings and (3) adequate book reserves shall have been
established and maintained with respect thereto in accordance
with GAAP;
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(c) Liens (other than any Lien imposed by ERISA) incurred or
deposits made in the ordinary course of business (i) in
connection with workers' compensation, unemployment insurance and
other types of social security or retirement benefits, or (ii) to
secure (or to obtain letters of credit that secure) the
performance of tenders, statutory obligations, surety bonds,
appeal bonds, bids, leases (other than Capital Leases),
performance bonds, purchase, construction or sales contracts,
leases and other similar obligations, in each case not incurred
or made in connection with the borrowing of money, the obtaining
of advances or credit or the payment of the deferred purchase
price of property, and which Liens do not, in the aggregate,
materially impair the use of the property subject thereto in the
operation of the business of the Company and the Subsidiaries,
taken as a whole, or the value of such property for the purposes
of such business;
(d) leases or subleases granted to others, easements,
rights-of-way, restrictions, zoning restrictions, governmental
restrictions in respect of any property or property right or
franchise of the Company or any Subsidiary and other similar
charges or encumbrances, in each case incidental to, and not
interfering with, the ordinary conduct of the business of the
Company and the Subsidiaries, taken as a whole, provided that
such charges and encumbrances do not, in the aggregate,
materially detract from the value of such property;
(e) Liens existing on the date of the Closing as set forth
on Schedule 11.6;
(f) Liens on property or assets of the Company or any of its
Subsidiaries securing Debt owing to the Company or any
Subsidiary;
(g) Liens arising from the Transfer by ICC (or any other
Subsidiary primarily responsible for providing credit to the
customers of the Company and its Subsidiaries) of all or any of
its receivables, whether with or without recourse to ICC, the
Company or any other Subsidiary, which Liens shall extend solely
to such receivables, the proceeds in respect thereof, receivables
substituted therefor and books or records in respect thereof,
provided that such Transfer is an arm's-length transaction, not
accounted for under GAAP as a secured loan and, in the good faith
opinion of a Senior Financial Officer, for fair value and in the
best interests of the Company and the Subsidiaries, taken as a
whole, and provided, further, that recourse to ICC, the Company
or any other Subsidiary in connection with any such Transfer
shall be limited to (i) liabilities arising from the breach of
warranties made by ICC or such other Subsidiary in connection
with such Transfer and (ii) an amount, with respect to any such
Transfer and in addition to clause (i) above, not in excess of
30% of the proceeds of the disposition of the receivables so
transferred in such Transfer;
(h) Liens created to secure all or any part of the purchase
price, or to secure Debt incurred or assumed to pay all or any
part of the purchase price or cost of construction, of property
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(or any improvement thereon) acquired or constructed by the
Company or any of its Subsidiaries, provided that all of the
following conditions are satisfied:
(i) any such Lien shall extend solely to the item or
items of such property (or improvement thereon) or proceeds
thereof so acquired or constructed and, if required by the
terms of the instrument originally creating such Lien, other
property (or improvement thereon) which is an improvement to
or is acquired for specific use in connection with such
acquired or constructed property (or improvement thereon) or
which is real property being improved by such acquired or
constructed property (or improvement thereon),
(ii) the principal amount of the Debt secured by any
such Lien shall at no time exceed an amount equal to the
lesser of (A) the cost to such Person of the property (or
improvement thereon) so acquired or constructed and (B) the
Fair Market Value (as determined in good faith by the Board
of Directors of the Company) of such property (or
improvement thereon) at the time of such acquisition or
construction,
(iii) any such Lien shall be created contemporaneously
with, or within 180 days after, the acquisition or
construction of such property, and
(iv) at the time of creation, incurrence, assumption or
guarantee of the Debt secured by such Lien and after giving
effect thereto, no Default or Event of Default would exist;
(i) Liens existing on property of a Person immediately prior
to its being consolidated or amalgamated with or merged into the
Company or any Subsidiary or its becoming a Subsidiary, or any
Lien existing on any property acquired by the Company or any
Subsidiary at the time such property is so acquired (whether or
not the Debt secured thereby shall have been assumed), provided
that
(i) no such Lien shall have been created or assumed in
contemplation of such consolidation, amalgamation or merger
or such Person's becoming a Subsidiary or such acquisition
of property,
(ii) each such Lien shall extend solely to the item or
items of property so acquired and proceeds thereof and, if
required by the terms of the instrument originally creating
such Lien, other property which is an improvement to or is
acquired for specific use in connection with such acquired
property,
(iii) the principal amount of the Debt secured by any
such Lien shall at no time exceed an amount equal to the
Fair Market Value (as determined in good faith by the Board
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of Directors of the Company) of such property (or
improvement thereon) at the time of such consolidation,
merger, becoming a Subsidiary or acquisition, and
(iv) at the time of creation, incurrence, assumption or
guarantee of the Debt secured by such Lien and, after giving
effect thereto, no Default or Event of Default would exist;
(j) Liens renewing, extending or replacing Liens permitted
by clause (e), (h) or (i) above, provided that all of the
following conditions are satisfied:
(i) no such new Lien shall extend to any property of
the Company or any of its Subsidiaries other than property
already encumbered by the existing Lien being so renewed or
replaced,
(ii) the principal amount of the underlying obligation
secured by such existing Lien outstanding at the time of
such renewal or replacement shall not be increased in
connection with such renewal or replacement and the average
life thereof shall not be reduced, and
(iii) immediately after such extension, renewal or
refunding no Default or Event of Default would exist;
(k) Liens on assets of Special Purpose Subsidiaries securing
Debt of such Special Purpose Subsidiaries pursuant to the
Permitted Receivables Securitization Program; and
(l) any Lien (other than a Lien permitted under clause (a)
through clause (k) above) securing any Debt of the Company or any
Subsidiary, which Debt, as of the date of the creation of such
Lien, does not exceed the remainder of
(i) 30% of Consolidated Net Worth,
determined as of the end of the most recently ended
Fiscal Quarter, minus
(ii) the sum (without duplication) of (A)
the aggregate principal amount of all Consolidated
Subsidiary Debt outstanding as of the date of
creation of such Lien plus (B) the total amount of
Debt of the Company outstanding as of the date of
creation of such Lien secured by Liens pursuant to
clause (e), (h), (i), (j) or (k) of this Section 11.6
or pursuant to this clause (l) (excluding any
duplication of Debt that may arise pursuant to the
utilization of said clause (j)).
For the purposes of this Section 11.6, any Person becoming a
Subsidiary after the date of the Closing shall be deemed, at the
time it becomes such a Subsidiary, to have incurred all of its
then existing Liens securing outstanding Debt."
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Section 1.5. Amendment to Section 11.7 of the Existing Note Purchase
Agreement. Section 11.7 of the Existing Note Purchase Agreement shall be and is
hereby amended and restated in its entirety to read as follows:
"Section 11.7. Sale of Assets, Etc. The Company will not and will
not permit any of its Subsidiaries to make any Transfer, provided that
the foregoing restriction does not apply to a Transfer if:
(a) the property that is the subject of such Transfer
constitutes either (i) inventory or (ii) equipment, fixtures,
supplies or materials no longer required in the operation of the
business of the Company or any of its Subsidiaries or that is
obsolete, and, in each case, such Transfer is in the ordinary
course of business;
(b) such Transfer is (i) from a Subsidiary to the Company or
a Wholly-Owned Subsidiary or (ii) from the Company to a
Wholly-Owned Subsidiary, in each case, so long as immediately
before and after giving effect to the consummation of any such
Transfer, no Default or Event of Default would exist;
(c) such Transfer is subject to Section 11.2 and satisfies
the requirements thereof;
(d) such Transfer is of receivables of ICC (or any other
Subsidiary primarily responsible for providing credit to the
customers of the Company and its Subsidiaries), whether with or
without recourse to ICC, the Company or any other Subsidiary,
provided that such Transfer is an arm's-length transaction, not
accounted for under GAAP as a secured loan and, in the good-faith
opinion of a Senior Financial Officer, for fair value and in the
best interests of the Company and the Subsidiaries, taken as a
whole, and provided, further, that recourse to ICC, the Company
or any other Subsidiary in connection with any such Transfer
shall be limited to (i) liabilities arising from the breach of
warranties made by ICC or such other Subsidiary in connection
with any such Transfer and (ii) an amount, with respect to any
such Transfer and in addition to clause (i) above, not in excess
of 30% of the proceeds of the disposition of the receivables so
transferred in such Transfer;
(e) such Transfer involves only receivables owned by the
Company or a Subsidiary being transferred to a Special Purpose
Subsidiary for fair market value pursuant to the Permitted
Receivables Securitization Program; or
(f) such Transfer is not a Transfer described in clause (a)
through clause (d) above (each such Transfer is referred to as a
"Basket Transfer"), and all of the following conditions shall
have been satisfied with respect to such Transfer:
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(i) in the good faith opinion of the Board of Directors
of the Company, the Transfer is in exchange for
consideration with a Fair Market Value at least equal to
that of the property exchanged, and is in the best interests
of the Company and its Subsidiaries, taken as a whole,
(ii) immediately before and after giving effect to such
transaction no Default or Event of Default would exist, and
(iii) immediately after giving effect to such Transfer,
the book value of all property that was the subject of each
Basket Transfer occurring after the date of Closing would
not exceed 25% of Consolidated Total Assets as of the end of
the then most recently ended Fiscal Quarter.
If the Net Proceeds Amount for any Basket Transfer is applied to a Debt
Offered Prepayment Application and/or is applied to, or committed in
writing to, a Property Reinvestment Application, in each case within 365
days after the consummation of such Transfer (and, in the case of any such
commitment, such Property Reinvestment Application is actually consummated
within 30 days after the expiration of such 365-day period), then such
Basket Transfer, to the extent of such application or applications of such
Net Proceeds Amount, shall be excluded from any calculations set forth
above in subclause (iii) of this clause (f).
For purposes of determining the book value of any property that is the
subject of a Transfer, such book value shall be the book value of such
property, as determined in accordance with GAAP, at the time of the
consummation of such Transfer, provided that, in the case of a Transfer of
any capital stock or other equity interests of a Subsidiary, the book value
thereof shall be deemed to be an amount equal to
(A) the remainder (determined after eliminating all intra-company
transactions, assets and liabilities in accordance with GAAP) of
(1) the book value of the total net assets of such Subsidiary
less
(2) the liabilities of such Subsidiary times
(B) a percentage that is equal to the percentage of total equity
interests of such Subsidiary attributable to the capital stock or
other equity interest being so Transferred."
Section 1.6. Amendments to Existing Defined Terms. The following defined
terms set forth in Schedule B to the Existing Note Purchase Agreement shall be
and are hereby amended as follows:
The definition of Consolidated Total Assets shall be amended to read
in its entirety as follows:
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"Consolidated Total Assets" means, at any time, the total assets of
the Company and its Subsidiaries determined on a consolidated basis at such
time in accordance with GAAP, less, to the extent otherwise included in
shareholders' equity, the net value of all assets that have been pledged in
connection with or otherwise relate to the Receivables Securitization
Program in an amount equal to the amount of the related Debt."
The last paragraph of the definition of Debt set forth in the Existing
Note Purchase Agreement is hereby amended to read in its entirety as
follows:
For the purposes of the avoidance of doubt, "Debt" shall not include
(i) any benefit liability or funding obligation of the Company or any of
its Subsidiaries in respect of any Plan or (ii) amounts outstanding under
any Permitted Receivables Securitization Program, whether or not such
amounts are shown as a liability on the balance sheet of the Company or any
of its Subsidiaries. For purposes of determining "Debt," no amount listed
above shall be included more than once in such determination.
Section 1.7. New Defined Terms. Schedule B to the Existing Note Purchase
Agreement shall be and is hereby amended to insert the following definition in
alphabetical order in such Schedule B:
""Credit Agreement" means that certain Credit Agreement dated as of
January 14, 2005 among the Company, the Subsidiaries who are signatories
thereto and the banks set forth on the signature pages thereto, each as
amended, refinanced or otherwise modified from time to time."
"Permitted Receivables Securitization Program" means one or more
transactions wherein the Company and/or a Subsidiary transfers under a true
sale transaction receivables of the Company and/or such Subsidiary to a
Special Purpose Subsidiary which issues or incurs debt secured solely by
such receivables; provided, however, that (i) such debt is recourse only to
such receivables and such Special Purpose Subsidiary, (ii) the aggregate
principal amount of all debt outstanding of all Special Purpose
Subsidiaries pursuant to such transactions shall not at any time exceed
$150,000,000 and (iii) at the time of any such transaction and immediately
after giving effect thereto, no Default or Event of Default would exist and
the Company could incur at least $1.00 of additional debt pursuant to
Sections 11.4 and 11.9.
"Special Purpose Subsidiary" means a Wholly-Owned Subsidiary organized
under the laws of the United States or any State thereof and authorized
solely to (i) purchase receivables from the Company or a Subsidiary and
issue Debt with recourse solely to such receivables and such Special
Purpose Subsidiary and (ii) engage in activities reasonably necessary to
effectuate the transactions referred to in clause (i).""
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SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Section 2.1. To induce the Noteholders to execute and deliver this Second
Amendment (which representations shall survive the execution and delivery of
this Second Amendment), the Company represents and warrants to the Noteholders
that:
(a) this Second Amendment has been duly authorized, executed and
delivered by it and this Second Amendment constitutes the legal, valid
and binding obligation, contract and agreement of the Company
enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles relating to or
limiting creditors' rights generally;
(b) the Existing Note Agreement, as amended by this Second
Amendment, constitute the legal, valid and binding obligations,
contracts and agreements of the Company enforceable against it in
accordance with their respective terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws or equitable principles relating to or limiting
creditors' rights generally;
(c) the execution, delivery and performance by the Company of
this Second Amendment (i) has been duly authorized by all requisite
corporate action and, if required, shareholder action, (ii) does not
require the consent or approval of any governmental or regulatory body
or agency, and (iii) will not (A) violate (1) any provision of law,
statute, rule or regulation or its certificate of incorporation or
bylaws, (2) any order of any court or any rule, regulation or order of
any other agency or government binding upon it, or (3) any provision
of any material indenture, agreement or other instrument to which it
is a party or by which its properties or assets are or may be bound or
(B) result in a breach or constitute (alone or with due notice or
lapse of time or both) a default under any indenture, agreement or
other instrument referred to in clause (iii)(A)(3) of this ss. 2.1(c);
(d) as of the date hereof and after giving effect to this Second
Amendment, no Default or Event of Default has occurred which is
continuing; and
(e) all the representations and warranties contained in Section 5
of the Existing Note Agreements are true and correct in all material
respects with the same force and effect as if made by the Company on
and as of the date hereof.
SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIS SECOND AMENDMENT.
Section 3.1. This Second Amendment shall not become effective until, and
shall become effective when, each and every one of the following conditions
shall have been satisfied (the "Second Amendment Effective Date"):
(a) executed counterparts of this Second Amendment, duly executed
by the Company and the holders of more than 50% of the outstanding
principal of the Notes, shall have been delivered to the Noteholders;
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(b) the Noteholders shall have received a copy of the resolutions
of the Board of Directors or its equivalent of the Company authorizing
the execution, delivery and performance by the Company of this Second
Amendment, certified by its Secretary or an Assistant Secretary;
(c) the representations and warranties of the Company set forth
in ss. 2 hereof are true and correct on and with respect to the date
hereof;
(d) the Noteholders shall have received the favorable opinion of
Calfee, Halter & Griswold LLP, counsel for the Company, dated the
Second Amendment Effective Date, which opinion shall be in form and
substance satisfactory to the Noteholders and Chapman and Cutler LLP,
their special counsel;
(e) All proceedings taken in connection with the transactions
contemplated by this Second Amendment, and all documents necessary to
the consummation thereof, shall be reasonably satisfactory in form and
substance to the Noteholders and Chapman and Cutler LLP, their special
counsel, and the Noteholders shall have received a copy (executed or
certified as may be appropriate) of all legal documents or proceedings
taken in connection with the consummation of said transactions;
(f) As of the effective date of this Second Amendment (after
giving effect to the amendments contemplated hereby), no Default or
Event of Default shall have occurred and be continuing; and
(g) the Company shall have paid a fee to each holder of Notes,
whether or not they sign this Second Amendment, in an amount equal to
5 basis points multiplied by the outstanding principal amount of the
Notes held by such holder of Notes.
This Second Amendment shall become effective on the Second Amendment Effective
Date.
SECTION 4. PAYMENT OF NOTEHOLDERS' COUNSEL FEES AND EXPENSES.
The Company agrees to pay upon demand, the reasonable fees and expenses of
Chapman and Cutler LLP, counsel to the Noteholders, in connection with the
negotiation, preparation, approval, execution and delivery of this Second
Amendment.
SECTION 5. MISCELLANEOUS.
Section 5.1. This Second Amendment shall be construed in connection with
and as part of the Existing Note Agreement, and except as modified and expressly
amended by this Second Amendment, all terms, conditions and covenants contained
in the Existing Note Agreement are hereby ratified and shall be and remain in
full force and effect.
Section 5.2. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
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Second Amendment may refer to the Note Agreement without making specific
reference to this Second Amendment but nevertheless all such references shall
include this Second Amendment unless the context otherwise requires.
Section 5.3. The descriptive headings of the various Sections or parts of
this Second Amendment are for convenience only and shall not affect the meaning
or construction of any of the provisions hereof.
Section 5.4. This Second Amendment shall be governed by and construed in
accordance with the law of the State of New York excluding choice-of-law
principles of the law of such State that would require the application of laws
of a jurisdiction other than such State.
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Section 5.5. The execution hereof by you shall constitute a contract
between us for the uses and purposes hereinabove set forth, and this Second
Amendment may be executed in any number of counterparts, each executed
counterpart constituting an original, but all together only one agreement.
INVACARE CORPORATION
By: /s/ Ronn L. Claussen
____________________
Name: Ronn L. Claussen
Title: Vice President and Treasurer
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The foregoing is hereby agreed to as of the date thereof:
WEST AMERICAN INSURANCE COMPANY
By /s/ Paul Gerard
_________________
Its Senior Vice President
$10,000,000 Series A
AMERICAN UNITED LIFE INSURANCE COMPANY
By /s/ Michael Bullock
________________________________
Its V.P. Private Placements
$8,000,000 Series A
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The foregoing is hereby agreed to as of the date thereof:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By Babson Capital Management LLC, as Investment Adviser
By /s/ Kathleen Lynch
________________________________
Its Managing Director
$20,000,000 Series A
15
The foregoing is hereby agreed to as of the date thereof:
J. ROMEO & CO. (as
nominee for MONY
Life Insurance
Company)
By /s/ Peter Coccia
________________________________
Its Partner
$9,000,000 Series A
J. ROMEO & CO. (as
nominee for MONY
Life Insurance
Company of America)
By /s/ Peter Coccia
________________________________
Its Partner
$10,000,000 Series A
16
The foregoing is hereby agreed to as of the date thereof:
HARE & CO. (as nominee for MONY Life Insurance Company)
By /s/ Emilia F. Wiener
________________________________
Its Authorized Agent
$1,000,000 Series A
17
The foregoing is hereby agreed to as of the date thereof:
THE BALTIMORE LIFE INSURANCE COMPANY
By
________________________________
Its
$__________ Series ___
18
The foregoing is hereby agreed to as of the date thereof:
NATIONWIDE LIFE INSURANCE COMPANY
By /s/ Mark W. Poeppelman
________________________________
Its Authorized Signatory
$10,000,000 Series A
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The foregoing is hereby agreed to as of the date thereof:
RELIASTAR LIFE INSURANCE COMPANY
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
By: ING Investment Management LLC, as Agent
By________________________________
Its
$__________ Series ___
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