EXHIBIT 11(b)(5)
FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT TO LOAN AGREEMENT, dated as of June 27, 1997 (this
"Amendment"), is among INVACARE CORPORATION, an Ohio corporation (the
"Company"), each of the Subsidiaries of the Company designated under the Loan
Agreement (as described below) as a Borrowing Subsidiary (the "Borrowing
Subsidiaries" and together with the Company, the "Borrowers" and each a
"Borrower"), the banks set forth on the signature pages hereof (collectively,
the "Banks") and NBD BANK, a Michigan banking corporation, as agent for the
Banks (in such capacity, the "Agent").
RECITALS
A. The Borrower, the Agent and the Banks are parties to a Loan Agreement,
dated as of February 27, 1997, as amended by a letter dated April 4, 1997 (as
now and hereafter amended, the "Loan Agreement"), pursuant to which the Banks
agreed, subject to the terms and conditions thereof, to extend credit to the
Borrower.
B. The Borrower desires to amend the Loan Agreement and the Agent and the
Banks are willing to do so 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 I. AMENDMENTS. Upon fulfillment of the conditions set forth in Article
III hereof, the Loan Agreement shall be amended as follows:
1.1. The reference in the first paragraph of the "Introduction" to
"$200,000,000" shall be deleted and "$225,000,000" shall be inserted in place
thereof.
1.2 The definition of "Guarantor" in Section 1.1 shall be amended by
adding the following language at the end thereof: "and, PROVIDED, FURTHER, that
Invatection Insurance Company, Inc. shall not be required to be a Guarantor or
execute a Guaranty".
1.3 Section 5.1(d) shall be amended by redesignating clause (viii) as
clause (ix) and adding a new clause (viii) to read as follows:
(viii) As soon as available and within 90 days after the end of
the fiscal year of Invatection Insurance Company, Inc., a copy of the
balance sheet of Invatection Insurance Company,
Inc. as of the end of such fiscal year and the related statements of
income and cash flow of Invatection Insurance Company, Inc. for such
fiscal year, all in reasonable detail and duly certified (subject to
normal year-end adjustments) by the chief financial officer of the
Company;
1.4 The "Commitment Amount" set forth in the signature block of each Bank
shall be amended by deleting the "Commitment Amount" set forth next to the name
of each Bank and inserting in place thereof the amount set forth below next to
the name of such Bank:
COMMITMENT AMOUNT
The First National Bank of Chicago $33,750,000
KeyBank National Association $33,750,000
Sun Trust Bank, Central Florida $22,500,000
National City Bank $19,687,500
Societe Generale, Chicago Branch $19,687,500
Wachovia Bank of Georgia, NA $19,125,000
PNC Bank, NA $19,125,000
Commerzbank, Aktiengesellschaftt,
Chicago Branch $19,125,000
The Sanwa Bank, Limited, Chicago Branch $19,125,000
The Bank of New York $19,125,000
ARTICLE II. REPRESENTATIONS. The Borrower represents and warrants to the Agent
and the Banks that:
2.1 The execution, delivery and performance of this Amendment and the New
Notes are within its powers, have been duly authorized and are 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, and the New Notes when delivered hereunder will be,
the legal, valid and binding obligations of the Borrower enforceable against it
in accordance with the respective terms hereof.
2.3 After giving effect to the amendments herein contained, the
representations and warranties contained in Article IV of the Loan 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 any event or condition which might become an
Event of Default with notice or lapse of time, or both, exists or has occurred
and is continuing on the date hereof.
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ARTICLE III. CONDITIONS OF EFFECTIVENESS. This Amendment shall not become
effective until each of the following has been satisfied:
3.1 This Amendment shall be signed by the Borrower, the Agent and the
Banks.
3.2 The Borrower shall have executed and delivered to each Bank a new
Revolving Credit Note (the "New Notes") reflecting each Bank's increased
Commitment pursuant to Section 1.2 of this Amendment.
ARTICLE IV. MISCELLANEOUS.
4.1 Invatection Insurance Company, Inc. ("Invatection") is hereby released
from all of its obligations and liabilities under the Subsidiary Guaranty
Agreement dated as of February 27, 1997 made by Invatection in favor of the
Banks and the Agent.
4.2 References in the Loan Agreement or in any note, certificate,
instrument or other document to the "Loan Agreement" shall be deemed to be
references to the Loan Agreement as amended hereby and as further amended from
time to time.
4.3 The 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.
4.4 The 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 Loan Agreement and all actions taken by the Agent and the
Banks are reasonable and appropriate under the circumstances and within their
rights under the Loan Agreement and all other documents executed in connection
therewith and otherwise available. The 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.
4.5 Except as expressly amended hereby, the Borrower agrees that the Loan
Agreement, the Notes, the Security Documents and all other documents and
agreements executed by the Borrower in connection with the Loan 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 Loan Agreement.
4.6 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 June 27, 1997.
INVACARE CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. XXxxxxx
Its Chief Financial Officer
NBD BANK, as Agent
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Its First Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Its First Vice President
KEYBANK NATIONAL ASSOCIATION,
as Co-Agent and as a Bank
By:
-----------------------------
Its
SUN TRUST BANK, CENTRAL FLORIDA, N.A.
By:
------------------------------
Its
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IN WITNESS WHEREOF, the parties signing this Amendment have caused this
Amendment to be executed and delivered as of June 25, 1997.
INVACARE CORPORATION
By:
------------------------------
Its
NBD BANK, as Agent
By:
------------------------------
Its
THE FIRST NATIONAL BANK OF CHICAGO
By:
------------------------------
Its
KEYBANK NATIONAL ASSOCIATION,
as Co-Agent and as a Bank
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Its Vice President
SUN TRUST BANK, CENTRAL FLORIDA, N.A.
By:
------------------------------
Its
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IN WITNESS WHEREOF, the parties signing this Amendment have caused this
Amendment to be executed and delivered as of July 1, 1997.
INVACARE CORPORATION
By:
------------------------------
Its
NBD BANK, as Agent
By:
------------------------------
Its
THE FIRST NATIONAL BANK OF CHICAGO
By:
------------------------------
Its
KEYBANK NATIONAL ASSOCIATION,
as Co-Agent and as a Bank
By:
-----------------------------
Its
SUN TRUST BANK, CENTRAL FLORIDA, N.A.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Its Vice President
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NATIONAL CITY BANK
By: /s/ Xxxxxxx X. XxXxxx
--------------------------------
Its Vice President
SOCIETE GENERALE, CHICAGO BRANCH
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
Its Vice President
WACHOVIA BANK OF GEORGIA, NA
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Xxxxxx X. Xxxxx
Its Vice President
PNC BANK, NA
By: /s/ Xxxxx X. Xxxx
--------------------------------
Xxxxx X. Xxxx
Its Vice President
COMMERZBANK AKTIENGESELLSCHAFT, CHICAGO
BRANCH
By: /s/ J. Xxxxxxx Shortly
/s/ Xxxxxxx X. Xxxxxx
--------------------------------
J. Xxxxxxx Shortly
Its Senior Vice President
Xxxxxxx Xxxxxx
Its Vice President
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THE SANWA BANK, LIMITED, CHICAGO BRANCH
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Its First Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxxxx III
---------------------------------
Its Vice President
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