Exhibit 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT, dated as of March 31, 2006 (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 JPMORGAN CHASE BANK, N.A., a national banking
association, as agent for the Banks (in such capacity, the "Agent").
RECITALS
A. The Borrowers, the Agent and the Banks are parties to a Credit
Agreement, dated as of January 14, 2005, as amended by a First Amendment to
Credit Agreement dated as of August 12, 2005 (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, the Agent and the Banks desire to amend the Credit
Agreement 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 The definition of "Adjusted EBITDA" in Section 1.1 shall be
amended and restated in its entirety to read as follows:
"Adjusted EBITDA" shall mean, with respect to any person, for any
period, the sum of (a) EBIT for such period, plus (b) all amounts
deducted in determining such EBIT on account of depreciation and
amortization expense. Notwithstanding anything herein, in any
financial statements of the Company or in GAAP to the contrary, for
purposes of calculating and determining Adjusted EBITDA, (i) any
Acquisition made by the Company or any of its Subsidiaries, including
through mergers or consolidations and including any related financing
transactions, during the period for which such Adjusted EBITDA was
calculated shall be deemed to have occurred on the first day of the
relevant period for which such Adjusted EBITDA was calculated on a pro
forma basis acceptable to the Agent, but without giving effect to any
projected synergies resulting from such Acquisition and (ii) any
amounts which are attributable to any asset, investment or person
which has been divested by the Company or any Subsidiary during the
period for which such Adjusted EBITDA was calculated shall be excluded
from the calculation of Adjusted EBITDA and such divestiture shall be
deemed to have occurred on the first day of the relevant period for
which such Adjusted EBITDA was calculated.
1.2 The definition of "Consolidated Interest Expense" in Section 1.1
shall be amended and restated in its entirety to read as follows:
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"Consolidated Interest Expense" means, for any period, all
interest accrued by the Company and its Subsidiaries on a consolidated
basis during such period, but excluding (i) any interest accrued under
any Trade Receivables Securitization Transaction permitted pursuant to
Section 5.2(n) and (ii) any interest accrued by the Company, ICC or
any other wholly-owned Subsidiary under certain third party financing
arrangements offered to customers which are acceptable to the Agent
(including arrangements with De Lage Landen).
1.3 The definition of "EBIT" in Section 1.1 shall be amended and
restated in its entirety to read as follows:
"EBIT" shall mean, with respect to any person, for any period,
the sum of (a) operating net income or loss plus (b) all amounts
deducted in determining such operating net income or loss on account
of (i) Consolidated Interest Expense and (ii) taxes based on or
measured by income, all as determined in accordance with GAAP, minus
(c) any extraordinary, unusual or non-recurring gains or other income
(or plus any extraordinary, unusual or non-recurring non-cash losses)
of the Company and its Subsidiaries, and related tax effects, in
accordance with GAAP, plus (d) any non-cash losses or charges related
to restructuring efforts incurred during such period, plus (e) any
cash charges related to restructuring efforts incurred during such
period up to an aggregate amount of $25,000,000 since the Effective
Date.
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.
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
3.1 This Amendment shall not become effective until signed by each
Borrower, the Agent and the Required Banks.
ARTICLE 4.
MISCELLANEOUS.
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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 March 30, 2006, but effective as of
March 31, 2006 upon satisfaction of the conditions set forth in Article 3.
INVACARE CORPORATION
By: /s/ Gregory C. Thompson
Print Name: Gregory C. Thompson
Title: Chief Financial Officer
INVACARE (DEUTSCHLAND) GmbH
By: /s/ Gregory C. Thompson
Print Name: Gregory C. Thompson
Title: Authorized Officer
INVACARE AUSTRALIA PTY. LTD.
By: /s/ Gregory C. Thompson
Print Name: Gregory C. Thompson
Title: Authorized Officer
INVACARE CANADA INC.
By: /s/ Gregory C. Thompson
Print Name: Gregory C. Thompson
Title: Authorized Officerr
INVACARE S.A.
By: /s/ Gregory C. Thompson
Print Name: Gregory C. Thompson
Title: Authorized Officer
INVACARE (UK) LIMITED
By: /s/ Gregory C. Thompson
Print Name: Gregory C. Thompson
Title: Authorized Officer
INVACARE INTERNATIONAL SARL
By: /s/ Gregory C. Thompson
Print Name: Gregory C. Thompson
Title: Authorized Officer
DOMUS HOMECARE AG
By: /s/ Gregory C. Thompson
Print Name: Gregory C. Thompson
Title: Authorized Officer
INVACARE HOLDINGS CV
By: /s/ Gregory C. Thompson
Print Name: Gregory C. Thompson
Title: Authorized Officer
SCANDINAVIAN MOBILITY INTERNATIONAL APS
By: /s/ Gregory C. Thompson
Print Name: Gregory C. Thompson
Title: Authorized Officer
2030604 ONTARIO INC.
By: /s/ Gregory C. Thompson
Print Name: Gregory C. Thompson
Title: Authorized Officer
JPMORGAN CHASE BANK, N.A., as a Bank and as
Agent
By: /s/ Dana E. Jurgens
Print Name: Dana E. Jurgens
Title: Vice President
KEYBANK NATIONAL ASSOCIATION, as a Bank and
Syndication Agent
By:
Print Name:
Title:
NATIONAL CITY BANK, as a Bank and Documentation
Agent
By:
Print Name:
Title:
BANK OF AMERICA, N.A., as a Bank and
Documentation Agent
By: /s/ B. Kenneth Burton, Jr.
Print Name: B. Kenneth Burton, Jr.
Title: Vice President
CALYON NEW YORK BRANCH
By: /s/ Charles Heidsieck
Print Name: Charles Heidsieck
Title: Managing Director
-and-
By: /s/ Thomas Randolph
Print Name: Thomas Randolph
Title: Managing Director
HARRIS N.A., formerly known as Harris Trust and
Savings Bank
By: /s/ Todd M. Kostelnik
Print Name: Todd M. Kostelnik
Title: Vice President
NORDEA BANK FINLAND PLC,
NEW YORK BRANCH
By: /s/ Henrik M. Steffensen
Print Name: Henrik M. Steffenson
Its: First Vice President
-and-
By: /s/ Gerald E. Chelius
Print Name: Gerald E. Chelius
Its: Senior Vice President - Credit
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Patrick Flaherty
Print Name: Patrick Flaherty
Title: Credit Manager
SUNTRUST BANK
By: /s/ Hank Miles
Print Name: Hank Miles
Title: Managing Director
THE BANK OF NEW YORK
By:
Print Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.
"RABOBANK INTERNATIONAL",
NEW YORK BRANCH
By:
Print Name:
Title:
By:
Print Name:
Title: