SEVENTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT
Exhibit 10.1
SEVENTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT
THIS SEVENTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT (this "Amendment") dated as of May 29, 2020, is made by and among the BORROWERS party hereto (the "Borrowers"), the GUARANTORS party hereto (the "Guarantors"), the financial institutions party hereto as LENDERS (collectively, "Lenders" and each individually a "Lender") and PNC BANK, NATIONAL ASSOCIATION ("PNC"), as agent for the Lenders (PNC, in such capacity, "Agent"), and X.X. XXXXXX EUROPE LIMITED ("JPM Europe"), as European agent for the Lenders (JPM Europe, in such capacity, the "European Agent").
WITNESSETH:
WHEREAS, the Borrowers, the Guarantors, the Lenders, the Agent and the European Agent are parties to that certain Amended and Restated Revolving Credit and Security Agreement, dated as of September 30, 2015, as amended by (i) First Amendment to Amended and Restated Revolving Credit and Security Agreement, dated as of February 16, 2016, (ii) Waiver and Second Amendment to Amended and Restated Revolving Credit and Security Agreement, dated as of May 3, 2016, (iii) Release and Third Amendment to Amended and Restated Revolving Credit and Security Agreement, dated as of September 30, 2016, (iv) Fourth Amendment to Amended and Restated Revolving Credit and Security Agreement, dated as of November 30, 2016, (v) Waiver and Fifth Amendment to Amended and Restated Revolving Credit and Security Agreement, dated as of June 7, 2017, and (vi) Sixth Amendment to Amended and Restated Revolving Credit and Security Agreement, dated as of November 13, 2019 (as so amended, the "Credit Agreement"); and
WHEREAS, the Borrowers and the Guarantors have requested the Lenders to make certain amendments and other accommodations to the Credit Agreement as more fully set forth herein. The Lenders have agreed to such amendments and accommodations, subject to the terms and conditions set forth in this Amendment.
NOW THEREFORE, the parties hereto, in consideration of their mutual covenants and agreements hereinafter set forth and intending to be legally bound hereby, covenant and agree as follows:
1.Recitals. The foregoing recitals are incorporated herein by reference.
2. Defined Terms. Capitalized terms not otherwise defined in this Amendment have the meanings given to them in the Credit Agreement.
3. Amendment of Section 1.2 – Deleted Defined Terms. The following defined terms in Section 1.2 of the Credit Agreement are hereby deleted in their entirety:
2024 Convertible Notes shall mean any notes issued in the Private Exchange.
Private Exchange shall mean the issuance of up to One Hundred Fifty Million ($150,000,000) in an aggregate original principal amount of unsecured convertible notes due 2024 to certain holders of the Company's 2021 Convertible Notes in an exchange, or series of exchanges, for a similar principal amount of such holders' 2021 Convertible Notes, plus any reasonable premium required to retire the 2021 Convertible Notes.
4. Amendment of Section 1.2 – Amendment and Restatement of Defined Term. The following defined term in Section 1.2 of the Credit Agreement is hereby amended and restated as follows:
Unexchanged 2021 Convertible Notes shall mean any 2021 Convertible Notes which remain outstanding after giving effect to the Phase 1 Private Exchange.
5. Amendment of Section 1.2 – Addition of Defined Terms. The following new defined terms shall be added to Section 1.2 of the Credit Agreement in the correct alphabetical order as follows:
Phase 1 Private Exchange shall mean the issuance of up to One Hundred Fifty Million ($150,000,000) in an aggregate original principal amount of unsecured convertible notes due 2024 to certain holders of the Company's 2021 Convertible Notes in an exchange, or series of exchanges, for a similar principal amount of such holders' 2021 Convertible Notes, plus any reasonable premium required to retire the 2021 Convertible Notes.
Phase 1 Convertible Notes shall mean any notes issued in the Phase 1 Private Exchange.
Phase 2 Private Exchange shall mean the issuance of up to Fifty Million ($50,000,000) in an aggregate original principal amount of unsecured convertible notes due 2024 to certain holders of the Company's 2022 Convertible Notes in an exchange, or series of exchanges, for a similar principal amount of such holders' 2022 Convertible Notes, plus any reasonable premium required to retire the 2022 Convertible Notes.
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Phase 2 Convertible Notes shall mean any notes issued in the Phase 2 Private Exchange.
Unexchanged 2022 Convertible Notes shall mean any 2022 Convertible Notes which remain outstanding after giving effect to the Phase 2 Private Exchange.
6. Amendment of Section 7.19 –Covenants as to Certain Indebtedness. Section 7.19 of the Credit Agreement is hereby amended and restated as follows:
7.19 Covenants as to Certain Indebtedness.
Amend or modify any provisions of the documents governing the 2021 Convertible Notes or the 2022 Convertible Notes, in each case, in any material and adverse way (with any changes to the interest rate, redemption requirements, amortization schedule, negative covenants and events of default deemed to be material for purposes hereof, but without limiting any other changes which may be material) without providing at least fifteen (15) calendar days' prior written notice to Agent and Lenders, and obtaining the prior written consent of the Applicable Required Lenders, it being understood for the avoidance of doubt, that adjustments, amendments, and modifications expressly required to be made pursuant to the terms of the 2021 Convertible Notes or the 2022 Convertible Notes shall be permitted. Notwithstanding the foregoing, (i) the issuance of the Phase 1 Convertible Notes pursuant to the Phase 1 Private Exchange is expressly permitted so long as the Borrowers provide Agent and Lenders with a draft form of the indenture governing the Phase 1 Convertible Notes at least fifteen (15) calendar days (or such shorter time period as agreed to by the Agent in its sole discretion) prior to the proposed date of issuance, together with the final form of such indenture as soon as available and with the exception of the maturity, original issue discount, conversion price and conversion rate, the terms of the Phase 1 Convertible Notes do not differ in any material and adverse way from the terms of the 2021 Convertible Notes as determined by the Agent in its reasonable discretion; for the avoidance of doubt, the inclusion of a redemption right exercisable by the Company in the Phase 1 Convertible Notes shall not be considered material and adverse and (ii) the issuance of the Phase 2 Convertible Notes pursuant to the Phase 2 Private Exchange is expressly permitted so long as the Borrowers provide Agent and Lenders with a draft form of the indenture governing the Phase 2 Convertible Notes at least fifteen (15) calendar days (or such shorter time period as agreed to by the Agent in its sole discretion)
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prior to the proposed date of issuance, together with the final form of such indenture as soon as available and with the exception of the maturity, original issue discount, coupon rate, conversion price and conversion rate, the terms of the Phase 2 Convertible Notes do not differ in any material and adverse way from the terms of the 2022 Convertible Notes as determined by the Agent in its reasonable discretion; for the avoidance of doubt, the inclusion of a redemption right exercisable by the Company in the Phase 2 Convertible Notes shall not be considered material and adverse. Further, for all purposes under this Agreement, (i) the Phase 1 Convertible Notes shall be considered, along with any Unexchanged 2021 Convertible Notes, as 2021 Convertible Notes and (ii) the Phase 2 Convertible Notes shall be considered, along with any Unexchanged 2022 Convertible Notes, as 2022 Convertible Notes. For the avoidance of doubt, all references in definitions, representations, warranties, covenants and defaults in this Agreement (i) to the 2021 Convertible Notes shall refer to both any Unexchanged 2021 Convertible Notes and the Phase 1 Convertible Notes and (ii) to the 2022 Convertible Notes shall refer to both any Unexchanged 2022 Convertible Notes and the Phase 2 Convertible Notes.
7. Conditions Precedent. The effectiveness of this Amendment is subject to the receipt by the Agent of the following items, each in form and content satisfactory to the Agent:
(a) the Agent shall have received this Amendment, duly executed by a duly authorized officer of each of the Loan Parties, each of the Applicable Required Lenders, the Agent and the European Agent;
(b) the Agent shall have received copies, certified by a duly authorized officer of each Loan Party to be true and complete on and as of the date hereof, of records of all action taken by each of the Loan Parties to authorize (i) the execution and delivery of this Amendment, and all other certificates, documents and instruments executed in connection therewith, and (ii) its performance of all of its obligations under each of such documents;
(c) the Agent shall have received a secretary's certificate of each Loan Party certifying as to (i) no change in such Loan Party's articles or certificate of incorporation/organization or bylaws, code of regulations or limited liability company/operating agreement, or in the event that any such documents have changed, true and correct copies of the same certified by the secretary of such Loan Party or the Secretary of State, as the case may be, and (ii) the incumbency of the officers of such Loan Party that execute and deliver this Amendment and the related certificates, documents and instruments;
(d) no Default or Event of Default shall have occurred; and
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(e) the Borrowers shall have paid (i) to Agent all of Agent's costs and expenses (including Agent's attorneys' fees) incurred in connection with the preparation of this Amendment and (ii) to Agent for the ratable benefit of the US-Canada Lenders (based upon the respective US-Canada Revolving Commitment Amount of each US-Canada Lender) an amendment fee in an amount equal to $45,000.
8. Representations and Warranties. Each Borrower and each Guarantor covenants and agrees with and represents and warrants to the Agent, the European Agent and the Lenders as follows:
(a) each Borrower's and each Guarantor's obligations under the Credit Agreement, as modified hereby, are and shall remain secured by the Collateral pursuant to the terms of the Credit Agreement and the Other Documents;
(b) each Borrower and each Guarantor possesses all of the powers requisite for it to enter into and carry out the transactions referred to herein and to execute, enter into and perform the terms and conditions of this Amendment, the Credit Agreement and the Other Documents and any other documents contemplated herein that are to be performed by such Borrower or such Guarantor; and that any and all actions required or necessary pursuant to such Borrower's or such Guarantor's organizational documents or otherwise have been taken to authorize the due execution, delivery and performance by such Borrower and such Guarantor of the terms and conditions of this Amendment, the Credit Agreement and the Other Documents, and that such execution, delivery and performance will not conflict with, constitute a default under or result in a breach of any applicable law or any agreement, instrument, order, writ, judgment, injunction or decree to which such Borrower or such Guarantor is a party or by which such Borrower or such Guarantor or any of its properties are bound, and that all consents, authorizations and/or approvals required or necessary from any third parties in connection with the entry into, delivery and performance by such Borrower and/or such Guarantor of the terms and conditions of this Amendment, the Credit Agreement, the Other Documents and the transactions contemplated hereby and thereby have been obtained by such Borrower and such Guarantor and are in force and effect;
(c) this Amendment, the Credit Agreement, and the Other Documents constitute the valid and legally binding obligations of each Borrower and each Guarantor, enforceable against such Borrower and such Guarantor in accordance with their respective terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws and by general equitable principles, whether enforcement is sought by proceedings at law or in equity;
(d) all representations and warranties made by each Borrower and each Guarantor in the Credit Agreement and the Other Documents are true and correct in all material respects as of the date hereof, with the same force and effect as if all such representations and warranties were fully set forth herein and made as of the date hereof and each Borrower and each Guarantor has complied with all covenants and undertakings in the Credit Agreement and the Other Documents;
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(e) this Amendment is not a substitution, novation, discharge or release of any Borrower's or any Guarantor's obligations under the Credit Agreement or any of the Other Documents, all of which shall and are intended to remain in full force and effect;
(f) no Event of Default or Potential Default has occurred and is continuing under the Credit Agreement or the Other Documents; there exist no defenses, offsets, counterclaims or other claims with respect to any Borrower's or any Guarantor's obligations and liabilities under the Credit Agreement or any of the Other Documents;
(g) each Borrower and each Guarantor hereby ratifies and confirms in full its duties and obligations under the Credit Agreement, the Guaranty Agreement, and the Other Documents applicable to it, each as modified hereby; and
(h) each Borrower and each Guarantor hereby agrees, as an independent obligation to the European Agent (to the extent such Guarantor or Borrower is party to the English Law Guaranty), to be bound by the terms of the English Law Guaranty as if it had been set out in full again here with such changes as are appropriate to fit this context, for the avoidance of doubt with references to the Credit Agreement and Other Documents each as modified hereby.
9. Reimbursement of Expenses. The Borrowers, jointly and severally, shall pay or cause to be paid to the Agent all costs and expenses accrued through the date hereof and the costs and expenses of the Agent including, without limitation, fees of the Agent's counsel in connection with this Amendment.
10. Document References. As used in the Credit Agreement and each of the Other Documents, the terms "this Credit Agreement", "herein", "hereinafter", "hereto", "hereof", and words of similar import shall, unless the context otherwise requires, mean the Credit Agreement as amended and modified by this Amendment. The term "Other Documents" as defined in the Credit Agreement shall include this Amendment.
11. Integration. This Amendment, together with the Credit Agreement and the Other Documents, constitutes the entire agreement and understanding among the parties relating to the subject matter hereof, and supersedes all prior proposals, negotiations, agreements and understandings relating to such subject matter. In entering into this Amendment, each Borrower and each Guarantor acknowledges that it is relying on no statement, representation, warranty, covenant or agreement of any kind made by Agent or any Lender or any employee or agent of Agent or any Lender, except for the agreements of Agent and the Lenders set forth herein. This Amendment shall be construed without regard to any presumption or rule requiring that it be construed against the party causing this Amendment or any part hereof to be drafted.
12. Successors and Assigns. This Amendment shall apply to and be binding upon the Borrowers and the Guarantors in all respects and shall inure to the benefit of each of the other parties hereto and their respective successors and assigns, provided that none of the Borrowers nor the Guarantors may assign, transfer or delegate its duties and obligations hereunder. Nothing expressed or referred to in this Amendment is intended or shall be construed to give any person
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or entity other than the parties hereto a legal or equitable right, remedy or claim under or with respect to this Amendment, the Credit Agreement or any Other Documents, it being the intention of the parties hereto that this Amendment and all of its provisions and conditions are for the sole and exclusive benefit of the parties hereto.
13. Severability. If any one or more of the provisions contained in this Amendment, the Credit Agreement, or the Other Documents shall be held invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained in this Amendment, the Credit Agreement or the Other Documents shall not in any way be affected or impaired thereby, and this Amendment, the Credit Agreement and the Other Documents shall otherwise remain in full force and effect.
14. Further Assurances. Each Borrower and each Guarantor agrees to execute such other and further documents and instruments as Agent may request to implement the provisions of this Amendment.
15. Governing Law. This Amendment will be governed by the internal laws of the State of New York without reference to its conflicts of law principles.
16. Waiver and Release. Each Borrower and each Guarantor, by signing below, hereby waives and releases Agent, the European Agent, Issuer and each of the Lenders and their respective directors, officers, employees, attorneys, affiliates and subsidiaries from any and all claims, offsets, defenses and counterclaims of which any Borrower or any Guarantor is aware, such waiver and release being with full knowledge and understanding of the circumstances and effect thereof and after having consulted legal counsel with respect thereto.
17. Counterparts; Electronically Delivered Signatures. This Amendment may be executed in any number of counterparts each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute but one and the same instrument. Delivery of executed signature pages hereof by facsimile or other means of electronic transmission from one party to another shall constitute effective and binding execution and delivery thereof by such party. Any party that delivers its original counterpart signature to this amendment by facsimile transmission hereby covenants to deliver its original counterpart signature promptly thereafter to the Agent.
18. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT, THE CREDIT AGREEMENT OR ANY OTHER DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
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INDUCED TO ENTER INTO THIS AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
[SIGNATURE PAGES FOLLOW]
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[SIGNATURE PAGE TO SEVENTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
Each of the parties has signed this Seventh amendment to Amended and Restated Revolving Credit and Security Agreement as of the day and year first above written.
US BORROWERS: | |
Invacare Corporation, an Ohio corporation By: /s/ Xxxxxxxx X. Leneghan Name: Xxxxxxxx X. Xxxxxxxx Title: Senior Vice President and Chief Financial Officer | |
Freedom Designs, Inc., a California corporation Alber USA, LLC, an Ohio limited liability company Medbloc, Inc., a Delaware corporation By: /s/ Xxxxxxxx X. Leneghan Name: Xxxxxxxx X. Xxxxxxxx Title: Vice President and Treasurer | |
Invacare Continuing Care, Inc., a Missouri corporation By: /s/ Xxxxxxxx X. Leneghan Name: Xxxxxxxx X. Xxxxxxxx Title: Vice President and Treasurer | |
[SIGNATURE PAGE TO SEVENTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
US GUARANTORS: | |
Adaptive Switch Laboratories, Inc., a Texas corporation The Helixx Group, Inc., an Ohio corporation Invacare Credit Corporation, an Ohio corporation Invacare International Corporation, an Ohio corporation Invacare Holdings, LLC, an Ohio limited liability company Invacare Florida Holdings, LLC, a Delaware limited liability company Invacare Florida Corporation, a Delaware corporation Invamex Holdings LLC, a Delaware limited liability company By: /s/ Xxxxxxxx X. Leneghan Name: Xxxxxxxx X. Xxxxxxxx Title: Vice President and Treasurer | |
Invacare Canadian Holdings, Inc., a Delaware corporation Invacare Canadian Holdings, LLC, a Delaware limited liability company By: /s/ Xxxxxxxx X. Leneghan Name: Xxxxxxxx X. Xxxxxxxx Title: President | |
[SIGNATURE PAGE TO SEVENTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
CANADIAN BORROWERS: | |
Invacare Canada L.P., an Ontario limited partnership, by its general partner, Invacare Canada General Partner Inc. Motion Concepts L.P., an Ontario limited partnership, by its general partner, Xxxxxxx Healthcare Inc. Perpetual Motion Enterprises Limited, an Ontario corporation By: /s/ Xxxxxxxx X. Leneghan Name: Xxxxxxxx X. Xxxxxxxx Title: Vice President and Treasurer | |
CANADIAN GUARANTORS: | |
Xxxxxxx Healthcare General Partner, Inc., an Ontario corporation Carroll Healthcare Inc., an Ontario corporation Invacare Canada General Partner Inc., a Canada corporation By: /s/ Xxxxxxxx X. Leneghan Name: Xxxxxxxx X. Xxxxxxxx Title: Vice President and Treasurer | |
[SIGNATURE PAGE TO SEVENTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
ENGLISH BORROWERS: | |
Invacare Limited, a company incorporated in England and Wales with company number 05178693 By: /s/ Philippe Gretz Name: Philippe Gretz Title: Director | |
ENGLISH GUARANTORS: | |
Invacare Limited, a company incorporated in England and Wales with company number 05178693 By: /s/ Philippe Gretz Name: Philippe Gretz Title: Director | |
Invacare UK Operations Limited, a company incorporated in England and Wales with company number 03281202 By: /s/ Philippe Gretz Name: Philippe Gretz Title: Director | |
[SIGNATURE PAGE TO SEVENTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
FRENCH BORROWERS: | |
Invacare Xxxxxxx SAS By: /s/ Philippe Gretz Name: Philippe Gretz Title: President Duly Authorised | |
FRENCH GUARANTORS: | |
Invacare Xxxxxxx SAS By: /s/ Philippe Gretz Name: Philippe Gretz Title: President Duly Authorised | |
Invacare France Operations X.X.X. Xx: /s/ Philippe Gretz Name: Philippe Gretz Title: President Duly Authorised | |
[SIGNATURE PAGE TO SEVENTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
PNC BANK, NATIONAL ASSOCIATION, as Lender and as Agent
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
[SIGNATURE PAGE TO SEVENTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
KEYBANK NATIONAL ASSOCIATION, as Lender
By: /s/ Xxxxxxxx Xxx
Name: Xxxxxxxx Xxx
Title: Vice President
[SIGNATURE PAGE TO SEVENTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
JPMORGAN CHASE BANK, N.A., as Lender
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Authorized Officer
[SIGNATURE PAGE TO SEVENTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
X.X. XXXXXX EUROPE LIMITED, as European Agent
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorised Officer
X.X. XXXXXX AG, as Lender
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Authorised Officer
[SIGNATURE PAGE TO SEVENTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND SECURITY AGREEMENT]
CITIZENS BUSINESS CAPITAL, A DIVISION OF CITIZENS ASSET FINANCE, INC., as Lender
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Vice President
