Exhibit 10.1
AMENDMENT #1 TO RECEIVABLES PURCHASE AGREEMENT
THIS AMENDMENT #1 TO RECEIVABLES PURCHASE AGREEMENT, dated as of September
28, 2006 (this "Amendment"), is by and among Invacare Receivables Corporation, a
Delaware corporation ("Seller"), Invacare Corporation, an Ohio corporation
("Invacare"), as initial Servicer (the Servicer, together with Seller, the
"Seller Parties" and each, a "Seller Party"), the entities listed on Schedule A
to this Agreement (together with any of their respective successors and assigns
hereunder, the "Financial Institutions"), Park Avenue Receivables Company, LLC
("Conduit") and JPMorgan Chase Bank, N.A., as agent for the Purchasers hereunder
or any successor agent hereunder (together with its successors and assigns
hereunder, the "Agent"), and pertains to the Receivables Purchase Agreement,
dated as of September 30, 2005 among the parties (the "Existing Agreement").
Unless defined elsewhere herein, capitalized terms used in this Amendment shall
have the meanings assigned to such terms in the Existing Agreement.
W I T N E S S E T H:
WHEREAS, the parties desire to amend the Existing Agreement as hereinafter
set forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Amendments.
(a) Each of the following definitions in the Existing Agreement is hereby
amended and restated in its entirety to read, respectively, as follows:
"Dilution Horizon Ratio" means, as of any Cut-off Date, a ratio
(expressed as a decimal), computed by dividing (a) the sum of (i) the
aggregate amount of Receivables generated by the Originators during the
current Calculation Period plus (ii) the aggregate amount of Receivables
generated by the Originators during the prior Calculation Period, by (b)
the Net Receivables Balance.
"Dilution Stress Factor" means (a) at any time the Servicer's ratio of
Total Debt to Adjusted EBITDA is less than 3.0, 1.75, (b) at any time
between September 28, 2006 and November 30, 2006 until the Agent otherwise
notifies the Seller Parties, 1.75, and (c) at any other time unless the
Agent otherwise notifies the Seller Parties, 2.00.
"Liquidity Termination Date" means November 30, 2006 or such later
date as extended pursuant to the terms of this Agreement.
"Loss Ratio" means, as of any Cut-Off Date, the ratio (expressed as a
percentage) computed by dividing (a) the sum of (i) the total Outstanding
Balance of Defaulted Receivables plus (ii) the amount of Receivables which
became Charged-Off Receivables before becoming Defaulted Receivables during
the Calculation Period that includes such Cut-Off Date, plus (iii) the
amount of Receivables that were converted to notes receivable or Collection
Receivables before becoming Defaulted Receivables during the Calculation
Period that includes such Cut-Off Date, by (b) the aggregate sales
generated by the Originators during the Calculation Period occurring six
months prior to the Calculation Period ending on such Cut-Off Date;
provided, however, that at any time while Invacare's ratio of Total Debt to
Adjusted EBITDA is less than 3.00 and at all times between September 28,
2006 and November 30, 2006 until the Agent otherwise notifies the Seller
Parties, only 80% of the amount described in clause (a)(i) shall be counted
for purposes of computing the Loss Ratio.
(b) Clause (xv) of the definition of "Eligible Receivable" is hereby
amended and restated in its entirety to read as follows:
(xv) which is not subject to any right of rescission, set-off,
counterclaim, any other defense (including defenses arising out of
violations of usury laws) of the applicable Obligor against the applicable
Originator or any other Adverse Claim, and the Obligor thereon holds no
right as against such Originator to cause such Originator to repurchase the
goods or merchandise the sale of which shall have given rise to such
Receivable (except with respect to sale discounts effected pursuant to the
Contract, or defective goods returned in accordance with the terms of the
Contract); provided that (a) if such dispute, offset, counterclaim or
defense affects only a portion of the Outstanding Balance of such
Receivable, then such Receivable may be deemed an Eligible Receivable to
the extent of the portion of such Outstanding Balance which is not so
affected, and (b) Receivables of any Obligor which has any accounts payable
by the applicable Originator or by a wholly-owned Subsidiary of such
Originator (thus giving rise to a potential offset against such
Receivables) may be treated as Eligible Receivables to the extent that the
Obligor of such Receivables has agreed pursuant to a written agreement in
form and substance satisfactory to the Agent, that such Receivables shall
not be subject to such offset, and provided, further, that at any time
while Invacare's ratio of Total Debt to Adjusted EBITDA is less than 3.00
and at all times between September 28, 2006 and November 30, 2006 until the
Agent otherwise notifies the Seller Parties, only 80% of the accrued amount
of contractual rebates shall be counted as a contra pursuant to the
foregoing clause (a),
2. Representations and Warranties of the Seller Parties. In order to induce
the Agent and the Purchasers to enter into this Amendment, each Seller Party
hereby represents and warrants to the Agent and the Purchasers (i) that as of
the date hereof, each of such Seller Party's representations and warranties set
forth in Section 5.1 of the Existing Agreement is true and correct as of the
date hereof, and (ii) that, as to itself, each of the following representations
and warranties is true and correct as of the date hereof:
(a) Power and Authority; Due Authorization, Execution and Delivery.
The execution and delivery by such Seller Party of this Amendment, and the
performance of its obligations under the Existing Agreement as amended
hereby, are within its corporate powers and authority and have been duly
authorized by all necessary corporate action on its part. This Amendment
has been duly executed and delivered by such Seller Party.
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(b) No Conflict. The execution and delivery by such Seller Party of
this Amendment, and the performance of its obligations under the Existing
Agreement as amended hereby do not contravene or violate (i) its
certificate or articles of incorporation or by-laws, (ii) any law, rule or
regulation applicable to it, (iii) any restrictions under any agreement,
contract or instrument to which it is a party or by which it or any of its
property is bound, or (iv) any order, writ, judgment, award, injunction or
decree binding on or affecting it or its property, and do not result in the
creation or imposition of any Adverse Claim on assets of such Seller Party
or its Subsidiaries (except as created hereunder) except, in any case,
where such contravention or violation could not reasonably be expected to
have a Material Adverse Effect; and no transaction contemplated hereby
requires compliance with any bulk sales act or similar law.
(c) Governmental Authorization. Other than the filing of the financing
statements required hereunder, no authorization or approval or other action
by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution and delivery by such
Seller Party of this Amendment and the performance of its obligations under
the Existing Agreement as amended hereby.
(d) Binding Effect. This Amendment and the Existing Agreement as
amended hereby constitute the legal, valid and binding obligations of such
Seller Party enforceable against such Seller Party in accordance with their
respective terms, except as such enforcement may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws relating to or
limiting creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
at law).
3. Condition Precedent. This Amendment shall become effective as of the
date first above written upon delivery to the Agent of counterparts hereof duly
executed by each of the parties hereto.
4. Governing Law. THIS AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF
NEW YORK.
5. CONSENT TO JURISDICTION. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT
SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AMENDMENT AND EACH PARTY HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE
AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT
OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE
RIGHT OF THE AGENT OR ANY PURCHASER TO BRING PROCEEDINGS AGAINST ANY SELLER
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PARTY IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY
SELLER PARTY AGAINST THE AGENT OR ANY PURCHASER OR ANY AFFILIATE OF THE AGENT OR
ANY PURCHASER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH THIS AMENDMENT SHALL BE BROUGHT ONLY IN A
COURT IN NEW YORK, NEW YORK.
6. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN
ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH THIS AMENDMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR
THEREUNDER.
7. Ratification. Except as expressly amended hereby, the Existing Agreement
remains unaltered and in full force and effect and is hereby ratified and
confirmed.
8. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which when
taken together shall constitute one and the same agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their duly authorized representatives as of the date
hereof.
INVACARE RECEIVABLES CORPORATION, as Seller
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer and Secretary
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
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PARK AVENUE RECEIVABLES COMPANY, LLC
BY: JPMORGAN CHASE BANK, N.A., ITS ATTORNEY-IN-FACT
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Vice President
JPMORGAN CHASE BANK, N.A., as a Financial Institution and as Agent
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Vice President
