Exhibit 2.2
Annex 5.5.1(e)
WARBURG, XXXXXX VENTURES, X.X.
XXXXXXX, XXXXXX VENTURES INTERNATIONAL, L.P.
000 XXXXXXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
September 9, 2004
To: Invacare GmbH & Co. KG
c/o Invacare Corporation
One Invacare Way
X.X. Xxx 0000 Xxxxxx, Xxxx 00000
XXXXXX XXXXXX OF AMERICA
Re: Guarantee relating to the Sale and Purchase Agreement regarding
the sale and purchase of all shares in WP Domus GmbH dated as of
July [30], 2004 (the SPA")
Dear Sirs:
1. Warburg, Xxxxxx Ventures, L.P., a Delaware limited partnership ("WPV"), and
Warburg, Xxxxxx Ventures International, L.P., a Bermuda limited partnership
("WPVI"), hereby guarantee, on a joint and several basis, the performance
of all of the obligations of WP Domus LLC in its capacity as the Seller
under the SPA.
2. (a) WPV hereby represents and warrants to Invacare GmbH & Co. KG ("Invacare
GmbH") as follows:
(i) WPV is a limited partnership duly formed, validly existing and in
good standing under the laws of the State of Delaware;
(ii) WPV has all requisite power and authority to execute and deliver
this letter agreement and to perform its obligations hereunder;
(iii)The execution and delivery by WPV of this letter agreement and
the performance by WPV of its obligations hereunder have been
duly authorized by all necessary limited partnership action by or
on behalf of WPV;
(iv) This letter agreement has been duly executed and delivered by WPV
and constitutes the valid and binding obligation of WPV,
enforceable against WPV in accordance with its terms (except as
such enforceability may be limited by (A) applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect
which affect the enforcement of creditors rights generally or (B)
general principles of equity regarding the availability of
remedies, whether considered in a proceeding at law or in
equity);
(v) The execution and delivery by WPV of this letter agreement and
the performance by WPV of its obligations hereunder do not and
will not result in (A) any conflict with or violation of any
provision of its certificate of limited partnership or agreement
of limited partnership, (B) any breach or violation of or default
under (I) any law, regulation, judgment, order or governmental
authorization applicable to WPV or by which any of its properties
or assets are bound or (II) any contract or agreement to which
WPV is a party or by which any of its properties or assets are
bound, or (C) the creation or imposition of any lien upon any
property or assets of WPV (except, in the case of (B) or (C)
above, for such breaches, violations, defaults and liens which do
not, individually or in the aggregate, impair the ability of WPV
to fulfill its obligations hereunder);
(vi) No consent, approval or authorization of, or filing with, any
governmental authority is required on the part of WPV in
connection with the execution and delivery of this letter
agreement; and (vii) There are no judicial, regulatory or
administrative actions, suits or proceedings pending or, to the
knowledge of WPV, threatened, which (A) individually or in the
aggregate, impair the ability of WPV to fulfill its obligations
hereunder or (B) question the validity of this letter agreement
or any action taken or to be taken by WPV in connection herewith.
(b) WPVI hereby represents and warrants to Invacare GmbH as follows:
(i) WPVI is a limited partnership duly formed, validly existing and
in good standing under the laws of Berumda;
(ii) WPVI has all requisite power and authority to execute and deliver
this letter agreement and to perform its obligations hereunder;
(iii)The execution and delivery by WPVI of this letter agreement and
the performance by WPVI of its obligations hereunder have been
duly authorized by all necessary limited partnership action by or
on behalf of WPVI;
(iv) This letter agreement has been duly executed and delivered by
WPVI and constitutes the valid and binding obligation of WPVI,
enforceable against WPVI in accordance with its terms (except as
such enforceability may be limited by (A) applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect
which affect the enforcement of creditors rights generally or (B)
general principles of equity regarding the availability of
remedies, whether considered in a proceeding at law or in
equity);
(v) The execution and delivery by WPVI of this letter agreement and
the performance by WPVI of its obligations hereunder do not and
will not result in (A) any conflict with or violation of any
provision of its certificate of limited partnership or agreement
of limited partnership, (B) any breach or violation of or default
under (I) any law, regulation, judgment, order or governmental
authorization applicable to WPVI or by which any of its
properties or assets are bound or (II) any contract or agreement
to which WPVI is a party or by which any of its properties or
assets are bound, or (C) the creation or imposition of any lien
upon any property or assets of WPVI (except, in the case of (B)
or (C) above, for such breaches, violations, defaults and liens
which do not, individually or in the aggregate, impair the
ability of WPVI to fulfill its obligations hereunder);
(vi) No consent, approval or authorization of, or filing with, any
governmental authority is required on the part of WPVI in
connection with the execution and delivery of this letter
agreement; and
(vii)There are no judicial, regulatory or administrative actions,
suits or proceedings pending or, to the knowledge of WPVI,
threatened, which (A) individually or in the aggregate, impair
the ability of WPVI to fulfill its obligations hereunder or (B)
question the validity of this letter agreement or any action
taken or to be taken by WPVI in connection herewith.
(c) Each of WPV and WPVI hereby represents and warrants to Invacare GmbH
as follows:
(i) The general partner of WPV and WPVI is Warburg Pincus & Co., a
New York general partnership ("WP");
(ii) WP is a general partnership duly formed, validly existing and in
good standing under the laws of the State of New York; and
(iii)The execution and delivery by WP of this letter agreement as
general partner on behalf of WPV and WPVI has been duly
authorized by all necessary partnership action by or on behalf of
WP.
3. This letter agreement shall be construed in accordance with, and this
letter agreement and all matters arising out of or relating in any way
whatsoever to this letter agreement (whether in contract, tort or
otherwise) shall be governed by, the law of the State of Delaware. With
respect to any suit, action or proceedings relating to this letter
agreement ("Proceedings"), each party hereto irrevocably: (a) submits to
the non-exclusive jurisdiction of the federal and state courts located in
the State of Delaware; and (b) waives any objection which it may have at
any time to the laying of venue of any Proceedings brought in any such
court, waives any claim that such Proceedings have been brought in an
inconvenient forum and further waives the right to object, with respect to
such Proceedings, that such court does not have any jurisdiction over such
party. Nothing in this letter agreement precludes any party hereto from
bringing Proceedings in any other jurisdiction, nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
4. This letter agreement may be executed in any number of counterparts, all of
which shall be considered one and the same agreement, and shall become
effective when one or more such counterparts have been signed by each of
the parties and delivered to the other parties. Any such counterpart may be
delivered to a party by facsimile.
5. WPV and WPVI acknowledge that the execution and delivery of this letter
agreement is a condition to Invacare GmbH's obligation to consummate the
purchase contemplated by the SPA and Invacare GmbH would not have entered
into the SPA in the absence of such a condition.
[SIGNATURE PAGE FOLLOWS]
Yours truly,
WARBURG, XXXXXX VENTURES, L.P.
By: Warburg Pincus & Co., its General Partner
By: /s/ Xxxxxxx X. Xxxx
__________________________________
Name: Xxxxxxx Xxxx
Title: Partner
WARBURG, XXXXXX VENTURES INTERNATIONAL, L.P.
By: Warburg Pincus & Co., its General Partner
By: /s/ Xxxxxxx X. Xxxx
__________________________________
Name: Xxxxxxx Xxxx
Title: Partner
ACCEPTED AS OF THE DATE FIRST WRITTEN ABOVE
INVACARE GMBH & CO. KG
By: /s/ Linklaters by proxy for Invacare Corporation
________________________________________________
Name:
Title:
