Exhibit 10.2
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INVACARE CORPORATION
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WAIVER AND AMENDMENT
Dated as of November 14, 2006
to
NOTE PURCHASE AGREEMENTS
Dated as of October 1, 2003
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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
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WAIVER AND AMENDMENT TO NOTE PURCHASE AGREEMENTS
THIS WAIVER AND AMENDMENT dated as of November 14, 2006 (the or this
"Waiver"), to the separate and several Note Purchase Agreements dated as of
October 1, 2003, is between INVACARE CORPORATION, an Ohio corporation (the
"Company"), and each of the institutions which is a signatory to this Waiver and
is a Noteholder referred to below.
RECITALS:
A. The Company has previously entered into separate and several Note
Purchase Agreements, each dated as of October 1, 2003, between the Company and
each of the institutions identified on Schedule A thereto (together with their
successors and assigns, each, a "Noteholder," and, collectively, the
"Noteholders"), as amended pursuant to that certain First Amendment dated as of
September 29, 2005 (said Note Purchase Agreements, as heretofore amended,
collectively, the "Note Purchase Agreement"), pursuant to which the Company
issued its (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 separate and several Note
Purchase Agreements, each dated as of February 27, 1998, between the Company and
each of the institutions identified on Schedule A thereto (said Note Purchase
Agreements, as heretofore amended, collectively, the "1998 Note Purchase
Agreement"), pursuant to which the Company issued and sold its (i) $80,000,000
6.71% Series A Senior Notes due February 27, 2008 and (ii) $20,000,000 6.60%
Series B Senior Notes due February 27, 2005 (collectively, the "1998 Notes").
C. The Company has also previously entered into separate and several Note
Purchase Agreements, each dated as of April 27, 2006, between the Company and
each of the institutions identified on Schedule A thereto (said Note Purchase
Agreements, collectively, the "2006 Note Purchase Agreement"), pursuant to which
the Company issued its $150,000,000 6.15% Senior Notes due April 27, 2016 (the
"2006 Notes").
D. The Company has also previously entered into that certain Credit
Agreement dated as of January 14, 2005 (the "Bank Credit Agreement"), among the
Company, certain Borrowing Subsidiaries (as defined therein), the banks named
therein (the "Banks"), JPMorgan Chase Bank, N.A., as agent (the "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.
E. The Company has requested that the Noteholders temporarily waive its
non-compliance with Sections 7.1(d) and 11.3 of the Note Purchase Agreement and
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the Events of Default that have occurred and are continuing under Section 12(c)
as a result of such non-compliance.
F. In furtherance of the foregoing, the Company and the Noteholders now
desire to set forth their agreement with respect to (i) the Noteholders'
temporary waiver of the Company's non-compliance and resulting Events of Default
under the Note Purchase Agreement as described in Recital E above, and (ii) the
amendments to the Note Purchase Agreement as set forth in Section 5 hereof, in
each case, in the respects, but only in the respects, hereinafter set forth.
G. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Purchase Agreement, as waived hereby, unless herein
defined or the context shall otherwise require.
H. All requirements of law have been fully complied with and all other acts
and things necessary to make this Waiver 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 Waiver set forth in Section 3 hereof, and
in consideration of good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, the Company and the undersigned Noteholders do
hereby agree as follows:
SECTION 1. TEMPORARY WAIVER.
The Company has advised the Noteholders that it is not currently and has
not been in compliance with Sections 7.1(d) and 11.3 of the Note Purchase
Agreement, and as a result of such non-compliance there have occurred and are
continuing Events of Default under Section 12(c) of the Note Purchase Agreement
(such non-compliance and resulting Events of Default are collectively referred
to herein as the "Existing Defaults"). On the Waiver Effective Date (as defined
in Section 3 below), the undersigned Noteholders hereby temporarily waive, as of
the date hereof and continuing through December 15, 2006, compliance by the
Company with, and the Events of Default occurring as a result of the Company's
failure to be in compliance with, Sections 7.1(d) and 11.3 of the Note Purchase
Agreement, provided, however, this temporary waiver shall only be effective so
long as from the date of this Waiver and continuing through December 15, 2006
(the "Waiver Period"), the Company shall be in compliance in all respects with
the terms and conditions of Section 5 hereof. The failure of the Company to
comply with its agreements in Section 5 of this Waiver shall be deemed an
automatic Event of Default under Section 12(c) of the Note Purchase Agreement
(as of the date the Existing Defaults originally occurred) and a rescission of
the temporary waiver in this Section 1, in each case, without any notice or
other action on behalf of the Noteholders. The temporary waiver of the Existing
Defaults is limited to the specific instances of failure to comply and the
resulting Events of Default which are described above and shall not be deemed a
waiver of or consent to any other failure to comply with the terms of Sections
7.1(d) or 11.3 of the Note Purchase Agreement or any other provisions of the
Note Purchase Agreement. Such waiver shall not prejudice or constitute a waiver
of any right or remedies which the Noteholders may have or be entitled to with
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respect to any other breach of Sections 7.1(d) or 11.3 or any other provision of
the Note Purchase Agreement.
The waiver contemplated in this Section 1 shall be effective only for the
Existing Defaults and only for the Waiver Period, and such waiver shall not
entitle the Company to any future waiver in similar or other circumstances and
shall automatically cease to be effective upon the expiration of the Waiver
Period, without notice or other action of any kind by the Noteholders. The
Noteholders reserve their respective rights, in their discretion, to exercise
any or all of their rights and remedies under the Note Purchase Agreement and
Notes as a result of the Existing Defaults upon the expiration of the Waiver
Period. Without limiting the foregoing, upon the expiration of the Waiver
Period, an Event of Default will continue to exist under the Note Purchase
Agreement and the Noteholders may, without the need for the expiration of grace
periods, if any, in connection with the Existing Defaults (but otherwise in
accordance with the terms of the Note Purchase Agreement), accelerate the
payment in full of the obligations owed to the Noteholders under the Note
Purchase Agreement and Notes, and enforce and exercise any or all of the
Noteholders' rights under or in respect of the Note Purchase Agreement and Notes
and under applicable law.
For avoidance of doubt, it is hereby acknowledged and agreed to by the
Company that the addition of the agreements and covenants in Section 5 hereof
and their continuance beyond the Waiver Period are not to be construed as an
acquiescence or waiver of the Existing Defaults beyond the Waiver Period but are
added for additional protection of the Noteholders, and the Noteholders shall
retain all their rights and remedies under or in respect of the Note Purchase
Agreement and Notes and under applicable law with respect to the Existing
Defaults upon the expiration or termination of the Waiver Period.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Section 2.1. To induce the Noteholders to execute and deliver this Waiver
(which representations shall survive the execution and delivery of this Waiver),
the Company represents and warrants to the Noteholders that:
(a) this Waiver has been duly authorized, executed and delivered by it
and this Waiver 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 Note Purchase Agreement, as modified by this Waiver,
constitutes 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
Waiver (i) has been duly authorized by all requisite corporate action and,
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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 Section
2.1(c);
(d) as of the date hereof and after giving effect to this Waiver,
(i) no Default or Event of Default has occurred which is
continuing under the Note Purchase Agreement,
(ii) other than an event of default or similar event that has
occurred and is continuing under the Bank Credit Agreement solely as a
result of (A) a cross default to the Note Purchase Agreement based on
the Company's non-compliance with Sections 7.1(d) and 11.3 of the Note
Purchase Agreement, (B) a default under Section 5.2(k) (most favored
lenders' provision) of the Bank Credit Agreement as a result of such
Section 5.2(k) incorporating by reference Section 11.3 of the Note
Purchase Agreement and (C) an event of default under Section 6.1(c)
(misrepresentations by the Company that no default or event of default
had occurred and was continuing) of the Bank Credit Agreement (in each
case, which such events of default or similar events have been or will
be waived pursuant to Section 3(c) of this Waiver), no default, event
of default or similar event has occurred and is continuing under the
Bank Credit Agreement,
(iii) other than the events of default or similar events that
have occurred and are continuing under the 1998 Note Purchase
Agreement and 2006 Note Purchase Agreement, in each case, similar to
the Events of Default described in Section 1 of this Waiver (which
such events of default or similar events have been or will be waived
pursuant to Section 3(d) and (e) of this Waiver), no default, event of
default or similar event has occurred and is continuing under each of
the 1998 Note Purchase Agreement and 2006 Note Purchase Agreement, and
(iv) other than a default, event of default, amortization event,
termination event or similar event that has occurred and is continuing
under the $100 million accounts receivable securitization facility of
the Company (evidencing the Permitted Receivables Securitization
Program) (the "Securitization Facility") as a result of a cross
default to the Note Purchase Agreement based on the Company's
non-compliance with Sections 7.1(d) and 11.3 of the Note Purchase
Agreement and a cross default to the Bank Credit Agreement based on
similar events of default thereunder (which such event of default,
amortization event, termination event or similar event has been or
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will be waived pursuant to Section 3(f) of this Waiver), no default,
event of default, amortization event or similar event has occurred and
is continuing under the Securitization Facility; and
(e) neither the Company nor any of its Affiliates has paid or agreed
to pay any fees or other consideration, or given any additional security or
collateral, or shortened the maturity or average life of any indebtedness
or permanently reduced any borrowing capacity, in each case, in favor of or
for the benefit for any creditor of the Company, in connection with the
obtaining of any consents or approvals in connection with the transactions
contemplated hereby (including, without limitation, under the Bank Credit
Agreement, 1998 Note Purchase Agreement and 2006 Note Purchase Agreement),
other than (i) with respect to the Notes, the payment of the waiver fee
referred to in Section 4(a) below, (ii) with respect to the 1998 Notes, a
waiver fee equal to 0.22% of the aggregate outstanding principal amount of
the 1998 Notes paid pro rata to the holders thereof, (iii) with respect to
the 2006 Notes, a waiver fee equal to 0.22% of the aggregate outstanding
principal amount of the 2006 Notes paid pro rata to the holders thereof,
and (iv) with respect to the Bank Credit Agreement, (A) a waiver fee equal
to 0.10% of the aggregate commitments of the Banks, (B) an increase in the
commitment fee from 0.20% to 0.30% per annum calculated on the aggregate
commitments of the Banks during the Waiver Period, and (C) an increase in
the Applicable Margin for Eurocurrency Rate Loans (each as defined in the
Bank Credit Agreement) from 0.875% to 1.20% calculated on the outstanding
Eurocurrency Rate Loans during the Waiver Period, in each case paid pro
rata to the holders thereof;
(f) the amount of Consolidated Debt of the Company and its
Subsidiaries (as defined in and as calculated under the Note Purchase
Agreement) as of November 14, 2006 is $500,762,617.58; and
(g) the amount of all Revolving Credit Advances (as defined in the
Bank Credit Agreement) outstanding under the Bank Credit Agreement as of
November 14, 2006 is $142,151,307.37, consisting of $115,909,307.37 in
Revolving Credit Advances made to Subsidiaries and $26,242,000.00 in
Revolving Credit Advances made to the Company; and as of November 14, 2006,
there are no Bid-Option Loans (as defined in the Bank Credit Agreement)
outstanding.
SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIS WAIVER.
This Waiver shall not become effective until, and shall become effective
when, each and every one of the following conditions shall have been satisfied
(the "Waiver Effective Date"):
(a) executed counterparts of this Waiver, duly executed by the Company
and the Required Holders, shall have been delivered to the Noteholders;
(b) the representations and warranties of the Company set forth in
Section 2 hereof are true and correct on and with respect to the date
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hereof and (except to the extent that any of such representations and
warranties expressly relate by their terms to a prior date) the Waiver
Effective Date;
(c) the Company shall have furnished to the Noteholders and their
special counsel an executed copy of an amendment, modification, waiver or
consent necessary to waive any default or event of default occurring under
the Bank Credit Agreement resulting from (i) any cross default to the Note
Purchase Agreement based on the Company's non-compliance with Sections
7.1(d) and 11.3 of the Note Purchase Agreement, (ii) the Company's
non-compliance with Section 5.2(k) (most favored lenders' provision) of the
Bank Credit Agreement as a result of such Section 5.2(k) incorporating by
reference Section 11.3 of the Note Purchase Agreement and (iii) an event of
default under Section 6.1(c) (misrepresentations by the Company that no
default or event of default had occurred and was continuing) of the Bank
Credit Agreement, and any such amendment, modification, waiver or consent
shall be reasonably satisfactory in form and substance to the Noteholders
and their special counsel (including, without limitation, with respect to
any waiver thereunder not expiring before the end of the Waiver Period
hereunder); the "Aggregate Revolving Credit Commitment" (as defined in the
Bank Credit Agreement) shall not be less than $500,000,000 and the Company
shall be permitted to draw thereon; and the "Termination Date" shall not be
on a date prior to January 14, 2010;
(d) the Company shall have furnished to the Noteholders and their
special counsel an executed copy of a waiver necessary to waive the
defaults or events of default occurring under the 1998 Note Purchase
Agreement which are similar to the Events of Default described in Section 1
of this Waiver, and such waiver shall be reasonably satisfactory in form
and substance to the Noteholders and their special counsel (including,
without limitation, with respect to any waiver thereunder not expiring
before the end of the Waiver Period hereunder);
(e) the Company shall have furnished to the Noteholders and their
special counsel an executed copy of a waiver necessary to waive the
defaults or events of default occurring under the 2006 Note Purchase
Agreement which are similar to the Events of Default described in Section 1
of this Waiver, and such waiver shall be reasonably satisfactory in form
and substance to the Noteholders and their special counsel (including,
without limitation, with respect to any waiver thereunder not expiring
before the end of the Waiver Period hereunder);
(f) the Company shall have furnished to the Noteholders and their
special counsel an executed copy of an amendment, modification, waiver or
consent necessary to waive any default, event of default, termination event
or amortization event occurring under the Securitization Facility resulting
from any cross default to the Note Purchase Agreement based on the
Company's non-compliance with Sections 7.1(d) and 11.3 thereof and a cross
default to the Bank Credit Agreement based on similar events of default
thereunder, and any such amendment, modification, waiver or consent shall
be reasonably satisfactory in form and substance to the Noteholders and
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their special counsel (including, without limitation, with respect to any
waiver thereunder not expiring before the end of the Waiver Period
hereunder); and
(g) a statement of the Company's and its Subsidiaries' cash balances
as of the close of business on Friday, November 10, 2006, certified as true
and correct by a Senior Financial Officer.
SECTION 4. CONDITIONS SUBSEQUENT.
(a) This Waiver shall be subject to the condition subsequent that each
holder of Notes shall have received on or before November 15, 2006, a
waiver fee, whether or not such holder has signed this Waiver, in an amount
equal to 0.22% of the aggregate outstanding principal amount of the Notes
held by such holder of Notes. Such fee shall be deemed earned when paid and
shall not be subject to recovery or repayment in the event this Waiver is
terminated or rescinded for any reason.
(b) This Waiver shall be further subject to the condition subsequent
that the Noteholders shall have received, within 10 Business Days from the
date hereof, a copy of the resolutions of the Board of Directors of the
Company authorizing the execution, delivery and performance by the Company
of this Waiver, certified by its Secretary or an Assistant Secretary,
together with documentation evidencing all other proceedings taken in
connection with the transactions contemplated by this Waiver, and all
documents necessary to the consummation thereof, in each case, which shall
be reasonably satisfactory in form and substance to the Noteholders and
Chapman and Cutler LLP, their special counsel.
(c) This Waiver shall be further subject to the condition subsequent
that the Company shall pay the reasonable fees and disbursements of the
Noteholders' special counsel, Chapman and Cutler LLP, incurred in
connection with the negotiation, preparation, execution and delivery of
this Waiver and the transactions contemplated hereby within one (1)
Business Day from the date that such fees and disbursements are invoiced to
the Company. Further, upon receipt of any supplemental statement after the
initial invoice, the Company will pay such additional fees and
disbursements of the Noteholders' special counsel which were not reflected
in their accounting records as of the time of the delivery of the initial
statement of fees and disbursements. The payment of the fees and
disbursements pursuant to this Section 4(c) does not preclude the
Noteholders' rights to indemnification and reimbursement for other costs
and expenses as provided in Section 16 of the Note Purchase Agreement.
SECTION 5. COVENANTS.
In addition to and without limiting the Company's obligations under the
Note Purchase Agreement (and notwithstanding anything to the contrary in the
Note Purchase Agreement), the Company covenants and agrees that at all times
from the date hereof and continuing through April 15, 2007:
(a) the Company will not at any time permit Consolidated Debt to exceed
$520,762,617.58;
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(b) the Company will not, and will not permit any of its Subsidiaries to,
at any time, directly or indirectly create, incur, assume, guarantee, or
otherwise become liable in respect of, (i) in the case of the Company, any Debt
secured by Liens on any of its properties or assets (including, without
limitation, any document or instrument in respect of goods or accounts
receivable), and (ii) in the case of Subsidiaries, any Debt (whether secured or
unsecured) or indebtedness in respect of the Permitted Receivables
Securitization Program, except, in each case, (A) any Debt (secured or
unsecured) outstanding on the date hereof, (B) Liens incurred on receivables,
related assets and collections of the Company or a Subsidiary in connection with
such assets being transferred to a Special Purpose Subsidiary pursuant to a
Permitted Receivables Securitization Program as permitted in accordance with
Section 5(f) of this Waiver and (C) indebtedness of one or more Special Purpose
Subsidiaries incurred in connection with a Permitted Receivables Securitization
Program not exceeding $75,401,750 (not including obligations in respect of fees,
expenses, indemnities and other reimbursement obligations permitted under such
Permitted Receivables Securitization Program) in the aggregate at any time, and
Liens on the assets of such Special Purpose Subsidiaries securing such Permitted
Receivables Securitization Program;
(c) the Company will not, and will not permit any Subsidiary to, at any
time, make any Restricted Payment (as defined below), except (i) Restricted
Payments from Subsidiaries to the Company, (ii) regularly scheduled quarterly
dividends to the Company's shareholders not to exceed $0.0125 per share, (iii)
payments of Revolving Credit Advances (as defined in the Bank Credit Agreement)
under the Bank Credit Agreement made in the ordinary course of borrowing,
repaying and reborrowing, provided the balance of the Revolving Credit Advances
under the Bank Credit Agreement does not at any time fall below $157,893,617.58,
provided, however, the Company may reduce the balance of and pay back Revolving
Credit Advances below $157,893,617.58 if any payment of Revolving Credit
Advances below such balance is paid on a pro rata basis among the Notes (subject
to Section 8.2 of the Note Purchase Agreement), 1998 Notes, 2006 Notes and Bank
Credit Agreement, (iv) payments of principal and interest by a Special Purpose
Subsidiary in respect of indebtedness incurred under a Permitted Receivables
Securitization Program (which, for avoidance of doubt, includes periodic
repayments of capital or periodic reinvestments of purchaser interests under
such Permitted Receivables Securitization Program), provided that at the time of
such payment and after giving effect thereto, the Company and its Subsidiaries
are in compliance with the terms of Section 5(b) of this Waiver and (v) payment
by the Company of its checking overdraft with National City Bank provided such
payment is made with Revolving Credit Advances under the Bank Credit Agreement;
(d) the Company will not, and will not permit any Subsidiary to, at any
time, make any Investment (as defined below), except (i) Investments outstanding
on the date hereof, (ii) loans to one specific customer of the Company for short
term liquidity not to exceed an aggregate outstanding principal amount at any
time of $2,000,000, (iii) Investments in cash and cash equivalents (as
determined in accordance with GAAP) and (iv) inter-company loans for
inter-company financing purposes in the ordinary course of business and
consistent with past practice, provided that with respect to any loans made from
a Subsidiary to the Company, such loans are unsecured and subordinated to the
Notes on terms and conditions satisfactory to the Required Holders and their
counsel, and provided further, in each case under this subclause (iv), so long
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as immediately before and after giving effect to any such loans, no Default or
Event of Default would exist;
(e) the Company will ensure at all times (i) that the "Aggregate Revolving
Credit Commitment" (as defined in the Bank Credit Agreement) will not be less
than $500,000,000 and that the Company shall be permitted to draw thereon and
(ii) that the "Termination Date" shall not be on a date prior to January 14,
2010;
(f) the Company will not, and will not permit any Subsidiary to, at any
time, make any Transfer, other than (i) inventory sold in the ordinary course of
business on customary terms, (ii) the sale by a Subsidiary of a building located
in Switzerland with approximate net sale proceeds of $3,000,000 (which such
proceeds will be used in the ordinary course of business of such Subsidiary and
in compliance with the Note Purchase Agreement, as modified by this Waiver),
(iii) Transfers of receivables, related assets and collections owned by the
Company or a Subsidiary being transferred to a Special Purpose Subsidiary for
fair market value pursuant to a Permitted Receivables Securitization Program
provided that at the time of such Transfer and after giving effect thereto, the
Company and its Subsidiaries are in compliance with the terms of Section 5(b) of
this Waiver and (iv) Transfers related to Investments permitted pursuant to
Section 5(d)(iv) of this Waiver;
(g) on the Monday of each week (or the next Business Day if Monday is a
holiday), the Company will furnish to each Noteholder, a certified statement of
the Company's and its Subsidiaries' cash balances and the Revolving Credit
Advances under the Bank Credit Agreement, in each case, as of the close of
business on the Friday of the immediately preceding week (or the first Business
Day immediately preceding Friday if Friday is a holiday);
(h) if at any time the Company or any Subsidiary shall enter into any
agreement relating to or amending any terms or conditions applicable to any
agreement relating to any of its Debt in excess of $30,000,000 which includes
covenants or defaults not substantially provided for in the Note Purchase
Agreement, as modified by this Waiver, or more favorable to the lender or
lenders thereunder than those provided for in the Note Purchase Agreement, as
modified by this Waiver, then the Company shall promptly so advise the
Noteholders, and thereupon, if the Required Holders shall so request, upon
notice to the Company, the Company shall enter into an amendment to the Note
Purchase Agreement providing for substantially the same covenants, defaults and
other terms and conditions as those provided for in such agreement to the extent
required and as may be selected by the Required Holders; and in addition to the
forgoing, any covenants or defaults or similar provisions (which include,
without limitation, any provisions requiring mandatory prepayments or
defeasance, subject, however, in each case to Section 8.2 of the Note Purchase
Agreement) in the Bank Credit Agreement or any agreements or instruments
executed in connection therewith not substantially provided for in the Note
Purchase Agreement, as modified by this Waiver, or more favorable to the Banks
than those provided for in the Note Purchase Agreement, as modified by this
Waiver, are hereby incorporated into the Note Purchase Agreement to the same
extent as if set forth herein, and no subsequent amendment, waiver termination
or modification thereof shall affect any such covenants, terms, conditions or
defaults as incorporated herein;
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(i) the Company will not, and will not permit any Subsidiary to, (i) enter
into any agreement restricting the ability of the Company and its Subsidiaries
to amend or modify the Note Purchase Agreement or Notes or any document or
instrument executed in connection therewith, except as set forth in the
waiver/amendment to the Bank Credit Agreement referred to in Section 3(c)
hereof, (ii) enter into any agreement or arrangement requiring any defeasance of
the Bank Credit Agreement, (iii) amend, supplement or otherwise modify the Bank
Credit Agreement or any agreements or instruments executed in connection
therewith other than pursuant to the waiver/amendment to the Bank Credit
Agreement referred to in Section 3(c) hereof or (iv) pay or agree to pay any
fee, interest or other compensation or consideration to the Agent or Banks under
the Bank Credit Agreement other than as required by the Bank Credit Agreement in
effect on the Waiver Effective Date, as modified by the waiver/amendment to the
Bank Credit Agreement referred to in Section 3(c); and
(j) it shall be an Event of Default under Section 12(f) of the Note
Purchase Agreement if the Company or any Subsidiary is in default in the
performance of or compliance with any other term of any evidence of any Debt
(other than any term under the Note Purchase Agreement and the Notes), that
individually or together with such other Debt as to which any such failure
exists has an aggregate outstanding principal amount of at least $5,000,000 (or
its equivalent in other applicable currencies), or of compliance of any
mortgage, indenture or other agreement relating thereto or any other condition
exists, and as a consequence of such default or condition such Debt has become,
or has been declared (or one or more Persons are entitled to declare such Debt
to be), due and payable before its stated maturity or before its regularly
scheduled dates of payment.
For purposes of this Section 5,
"Investment" means (i) any investment, made in cash or by delivery of
property, by either of the Company or any of its Subsidiaries in any Person
(other than an existing Subsidiary), whether by acquisition of stock, debt or
other obligation or security, or by loan, guaranty, advance, extension of credit
(other than accounts receivable arising from the sale of goods and services in
the ordinary course of business of the Company and its Subsidiaries), capital
contribution or otherwise or (ii) any transaction, or any series of related
transactions, by which the Company or any of its Subsidiaries acquires any
ongoing business or all or substantially all of the assets of, any firm,
corporation or division thereof, whether through purchase of assets, purchase of
stock, merger, amalgamation or otherwise; and
"Restricted Payment" means, with respect to the Company and any Subsidiary,
(i) any dividend or other distribution (whether in cash, securities or other
property) with respect to any capital stock or other equity interest of the
Company or such Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any capital stock or other equity interest of the Company or such Subsidiary and
(ii) any payment or other distribution (whether in cash, securities or other
property) of or in respect of principal of any Debt (other than a pro rata
payment or distribution among the Notes (subject to Section 8.2 of the Note
Purchase Agreement), 1998 Notes, 2006 Notes and Bank Credit Agreement) or
indebtedness in respect of the Permitted Receivables Securitization Program, or
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any payment or other distribution (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, defeasance or termination of any Debt (other than a pro
rata payment or distribution among the Notes (subject to Section 8.2 of the Note
Purchase Agreement), 1998 Notes, 2006 Notes and Bank Credit Agreement) or
indebtedness in respect of the Permitted Receivables Securitization Program.
In addition to the foregoing, the Company shall use its best efforts to
begin the process of obtaining, and shall continue to diligently pursue, a
written rating on its long term senior unsecured debt from any nationally
recognized statistical rating organization.
Further, the Company agrees that at a mutually agreeable time and location
in New York, New York, on Thursday, November 30, 2006 (or, if such date becomes
reasonably impracticable, such other date on or prior to December 8, 2006, as
reasonably agreed to between the Company and the Noteholders), the Chief
Financial Officer and Treasurer of the Company will meet with Noteholders who
choose to attend such meeting, at which meeting shall be reviewed the business,
operations, properties, prospects and financial and other condition of the
Company and its Subsidiaries and the measures being taken by the Company with
respect to a recapitalization of the Company and its Subsidiaries.
The Company hereby acknowledges and agrees that its failure to comply with
the covenants and agreements under this Section 5 shall constitute an immediate
Event of Default under Section 12(c) of the Note Purchase Agreement.
SECTION 6. MISCELLANEOUS.
Section 6.1. In order to induce the Noteholders to enter into this Waiver,
the Company acknowledges and agrees that: (a) neither the Company nor any of its
Subsidiaries has any claim or cause of action against any of the Noteholders or
any of their respective directors, trustees, officers, employees or agents
(collectively, the "Released Parties") relating to or arising out of the Note
Purchase Agreement or Notes or any of the transactions related thereto; (b)
neither the Company nor any of its Subsidiaries has any offset right, right of
recoupment, counterclaim or defense of any kind against any of their respective
obligations, indebtedness or liabilities to any of the Released Parties; and (c)
each of the Released Parties has heretofore properly performed and satisfied in
a timely manner all of its obligations to the Company and its Subsidiaries under
the Note Purchase Agreement. Notwithstanding this representation and as further
consideration for the agreements and understandings herein, the Company, on
behalf of itself and its employees, agents, executors, heirs, successors and
assigns (the "Releasing Parties"), hereby releases the Noteholders, its
respective predecessors, officers, directors, trustees, employees, agents,
attorneys, affiliates, subsidiaries, successors and assigns, from any liability,
claim, right or cause of action which now exists or hereafter arises as a result
of acts, omissions or events occurring on or prior to the date hereof, whether
known or unknown, including but not limited to claims arising from or in any way
related to the Note Purchase Agreement or Notes or any of the transactions
relating thereto. No Released Party shall be liable with respect to, and the
Company hereby waives, releases and agrees not to sue for, any special, indirect
or consequential damages relating to the Note Purchase Agreement and Notes or
arising out of its activities in connection herewith or therewith (whether
before, on or after the date hereof).
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Section 6.2. This Waiver shall be construed in connection with and as part
of the Note Purchase Agreement, and except as modified and expressly amended by
this Waiver, all terms, conditions and covenants contained in the Note Purchase
Agreement are hereby ratified and shall be and remain in full force and effect.
Section 6.3. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Waiver may refer to the Note Purchase Agreement without making specific
reference to this Waiver but nevertheless all such references shall include this
Waiver unless the context otherwise requires.
Section 6.4. The descriptive headings of the various Sections or parts of
this Waiver are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
Section 6.5. This Waiver 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.
Section 6.6. The provisions of Section 5 and Section 6.1 of this Waiver
shall survive and continue in effect following any termination, rescission or
expiration of this Waiver.
12
Section 6.7. This Waiver may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall constitute but
one and the same instrument. Delivery of an executed counterpart of a signature
page to this Waiver by facsimile shall be effective as delivery of a manually
executed counterpart of this Waiver
INVACARE CORPORATION
By: /s/ Gregory C. Thompson
Name: Gregory C. Thompson
Title: Chief Financial Officer
13
The foregoing is hereby agreed to as of the date thereof:
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Judith Gulotta
Name: Judith Gulotta
Title: Director
$23,000,000 Series A
$10,000,000 Series B
$5,000,000 Series C
9
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
By: /s/ Sharon Manewitz
Name: Sharon Manewitz
Title: Managing Director, Special Situations
$11,000,000 Series C
$4,500,000 Series A
TIAA-CREF LIFE INSURANCE COMPANY
By: Teachers Insurance and Annuity Association of
America, as Investment Manager
By: /s/ Sharon Manewitz
Name: Sharon Manewitz
Title: Managing Director, Special Situations
$4,500,000 Series A
10
GENERAL LIFE INSURANCE COMPANY (f/k/a 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
GENWORTH LIFE AND ANNUITY INSURANCE COMPANY (F/K/A 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 Mangement Incorporated
its Investment Manager
By: Genworth Financial Asset Management, LLC
its Investment Manager
By /s/ Morian C. Mooers
Name: Morian C. Mooers
Title: Assistant Vice President
$4,000,000 Series A
11
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Babson Capital Management LLC, as Investment
Adviser
By /s/ Mark A. Ahmed
Name: Mark A. Ahmed
Title: Managing Director
$5,400,000 Series A
C.M. LIFE INSURANCE COMPANY
By: Babson Capital Management LLC, as Investment
Sub-Adviser
By /s/ Mark A. Ahmed
Name: Mark A. Ahmed
Title: Managing Director
$1,600,000 Series A
12
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC
a Delaware limited liability company,
its authorized signatory
By /s/ Deborah Svoboda
Name: Deborah Svoboda
Title: EPP Counsel
By /s/ Colin Pennycooke
Name: Colin Pennycooke
Title: Counsel
$5,000,000 Series B
13
AMERICAN UNITED LIFE INSURANCE COMPANY
By /s/ Kent R. Adams
Name: Kent R. Adams
Title: V.P. Fixed Income Securities
$2,200,000 Series C
THE LAFAYETTE LIFE INSURANCE COMPANY
By: American United Life Insurance Company, Its Agent
By /s/ Kent R. Adams
Name: Kent R. Adams
Title: Counsel
$800,000 Series C
PIONEER MUTUAL LIFE INSURANCE COMPANY
By: American United Life Insurance Company, Its Agent
By /s/ Kent R. Adams
Name: Kent R. Adams
Title: Counsel
$500,000 Series C
THE STATE LIFE INSURANCE COMPANY
By: American United Life Insurance Company, Its Agent
By /s/ Kent R. Adams
Name: Kent R. Adams
Title: Counsel
$500,000 Series C
14
AMERICAN FAMILY LIFE INSURANCE COMPANY
By /s/ Jeffrey T. Matthias
Name: Jeffrey T. Matthias
Title: Investment Advisor
By
Name:
Title:
$2,250,000 Series B
15
MEDICAL PROTECTIVE COMPANY
By
Name:
Title:
$5,000,000 Series A
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