Exhibit 10.3
INVACARE CORPORATION
FIRST AMENDMENT
Dated as of September 29, 2005
to
NOTE PURCHASE AGREEMENT
Dated as of October 1, 2003
Re: $50,000,000 3.97% Series A Senior Notes due October 1, 2007
$30,000,000 4.74% Series B Senior Notes due October 1, 2009
and
$20,000,000 5.05% Series C Senior Notes Due October 1, 2010
================================================================================
FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT
THIS FIRST AMENDMENT dated as of September 29, 2005 (the or this "First
Amendment") to the Note Purchase Agreement dated as of October 1, 2003 is among
INVACARE CORPORATION, an Ohio corporation (the "Company"), and each of the
institutions which is a signatory to this First 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 October 1, 2003 (the "Existing
Note Purchase Agreement," and, as amended hereby, the "Note Purchase Agreement")
pursuant to which the Company issued the (i) $50,000,000 3.97% Series A Senior
Notes due October 1, 2007 (the "Series A Notes"), (ii) $30,000,000 4.74% Series
B Senior Notes due October 1, 2009 (the "Series B Notes"), and (iii) $20,000,000
5.05% Series C Senior Notes due October 1, 2010 (the "Series C Notes"; and
together with the Series A Notes and the Series B 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. 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.
D. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Agreement unless herein defined or the context
shall otherwise require.
E. All requirements of law have been fully complied with and all other acts
and things necessary to make this First 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 First 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:
<page>
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. Amendments to Existing Defined Terms. The following defined
terms set forth in Schedule B to the Existing Note Purchase Agreements shall be
and are hereby amended as follows:
The definition of Consolidated Total Assets shall be amended to read
in its entirety as follows:
""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, 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 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.
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<page>
The definition of "Priority Debt" shall be amended to read in its entirety
as follows:
"Priority Debt" means the sum, without duplication, of (i) Debt of the
Company secured by Liens not otherwise permitted by clauses (a) through (k)
of Section 11.7, and (ii) all Debt of all Subsidiaries not otherwise
permitted by clauses (a) through (d) of Section 11.5; provided, however,
notwithstanding the foregoing, "Priority Debt" shall include all Debt of
Subsidiaries outstanding under the Credit Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Section 2.1. To induce the Noteholders to execute and deliver this First
Amendment (which representations shall survive the execution and delivery of
this First Amendment), the Company represents and warrants to the Noteholders
that:
(a) this First Amendment has been duly authorized, executed and
delivered by it and this First 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 First 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
First 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 First
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.
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<page>
SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIS FIRST AMENDMENT.
Section 3.1. This First Amendment shall not become effective until, and
shall become effective when, each and every one of the following conditions
shall have been satisfied (the "First Amendment Effective Date"):
(a) executed counterparts of this First 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;
(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 First 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 First
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 First 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; and
(f) As of the effective date of this First Amendment (after giving
effect to the amendments contemplated hereby), no Default or Event of
Default shall have occurred and be continuing.
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 First
Amendment.
SECTION 5. MISCELLANEOUS.
Section 5.1. This First Amendment shall be construed in connection with and
as part of the Existing Note Agreement, and except as modified and expressly
amended by this First 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.
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<page>
Section 5.2. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
First Amendment may refer to the Note Agreement without making specific
reference to this First Amendment but nevertheless all such references shall
include this First Amendment unless the context otherwise requires.
Section 5.3. The descriptive headings of the various Sections or parts of
this First Amendment are for convenience only and shall not affect the meaning
or construction of any of the provisions hereof.
Section 5.4. This First 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 First
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:
METROPOLITAN LIFE INSURANCE COMPANY
By /s/ Judith A. Gulotta
________________________________________________
Name: Judith A. Gulotta
Title: Director
$__________ Series ___
7
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
By /s/ Elizabeth Schulz
________________________________________________
Name: Elizabeth Schulz
Title: Director-Private Placements
$11,000,000 Series C
TIAA-CREF LIFE INSURANCE COMPANY
By: Teachers Insurance and Annuity Association of
America, as Investment Manager
By /s/ Elizabeth Schulz
________________________________________________
Name: Elizabeth Schulz
Title: Director-Private Placements
$9,000,000 Series A
8
MEDICAL PROTECTIVE COMPANY
By ___________________________________________________
Name:
Title:
$__________ Series ___
9
GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY
By /s/ Morian C. Mooers
________________________________________________
Name: Morian C. Mooers
Title: Investment Officer
$2,000,000 Series A
$3,000,000 Series B
GE LIFE AND ANNUITY ASSURANCE COMPANY
By /s/ Morian C. Mooers
________________________________________________
Name: Morian C. Mooers
Title: Investment Officer
$3,000,000 Series B
EMPLOYERS REINSURANCE CORPORATION
By: GE Asset Management Incorporated,
its Investment Manager
By: Genworth Financial Asset Management,
LLC, its Investment Advisor
By /s/ Morian C. Mooers
________________________________________________
Name: Morian C. Mooers
Title: Assistant Vice President
$4,000,000 Series A
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MIDLAND NATIONAL LIFE INSURANCE COMPANY
By ___________________________________________________
Name:
Title:
$__________ Series ___
NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE
By ___________________________________________________
Name:
Title:
$__________ Series ___
NORTH AMERICAN COMPANY FOR LIFE AND HEALTH INSURANCE
OF NEW YORK
By ___________________________________________________
Name:
Title:
$__________ Series ___
11
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Babson Capital Management LLC, as Investment
Adviser
By /s/ Kathleen Lynch
________________________________________________
Name: Kathleen Lynch
Title: Managing Director
$5,400,000 Series A
C.M. LIFE INSURANCE COMPANY
By: Babson Capital Management LLC, as Investment
Sub-Adviser
By /s/ Kathleen Lynch
________________________________________________
Name: Kathleen Lynch
Title: Managing Director
$1,600,000 Series A
12
PHOENIX LIFE INSURANCE COMPANY
By /s/ John H. Beers
________________________________________________
Name: John H. Beers
Title: Vice President
$2,500,000 Series B
PHL VARIABLE INSURANCE COMPANY
By /s/ John H. Beers
________________________________________________
Name: John H. Beers
Title: Vice President
$2,500,000 Series B
13
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By ___________________________________________________
Name:
Title:
By ___________________________________________________
Name:
Title:
$__________ Series ___
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AMERICAN UNITED LIFE INSURANCE COMPANY
By /s/ Michael Bullock
________________________________________________
Name: Michael Bullock
Title: V.P. Private Placements
$2,200,000 Series 5.05%
THE LAFAYETTE LIFE INSURANCE COMPANY
By: American United Life Insurance Company, Its Agent
By /s/ Michael Bullock
________________________________________________
Name: Michael Bullock
Title: V.P. Private Placements
$800,000 Series 5.05%
PIONEER MUTUAL LIFE INSURANCE COMPANY
By: American United Life Insurance Company, Its Agent
By /s/ Michael Bullock
________________________________________________
Name: Michael Bullock
Title: V.P. Private Placements
$500,000 Series 5.05%
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THE STATE LIFE INSURANCE COMPANY
By: American United Life Insurance Company, Its Agent
By /s/ Michael Bullock
________________________________________________
Name: Michael Bullock
Title: V.P. Private Placements
$500,000 Series 5.05%
16
AMERICAN FAMILY LIFE INSURANCE COMPANY
By /s/ Phillip Hannifan
________________________________________________
Name: Phillip Hannifan
Title: Investment Director
$2,250,000 Series B
17
AMERITAS LIFE INSURANCE CORP.
By: Ameritas Investment Advisors, Inc., as Agent
By /s/ Andrew S. White
________________________________________________
Name: Andrew S. White
Title: Vice President-Fixed Income Securities
$1,000,000 Series B
ACACIA NATIONAL LIFE INSURANCE COMPANY
By: Ameritas Investment Advisors, Inc. as Agent
By /s/ Andrew S. White
________________________________________________
Name: Andrew S. White
Title: Vice President-Fixed Income Securities
$750,000 Series B
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