Exhibit 10(t)
EXECUTION COPY
================================================================================
INVACARE CORPORATION
-----------------------------------
FIRST AMENDMENT
Dated as of October 1, 2003
to
NOTE PURCHASE AGREEMENTS
Each dated as of February 27, 1998
-----------------------------------
Re: $80,000,000 6.71% Series A Senior Notes, Due February 27, 2008
$20,000,000 6.60% Series B Senior Notes Due February 27, 2005
================================================================================
FIRST AMENDMENT TO NOTE PURCHASE AGREEMENTS
THIS FIRST AMENDMENT dated as of October 1, 2003 (the or this "First
Amendment") to the Note Purchase Agreements each dated as of February 27, 1998
is between INVACARE CORPORATION, an Ohio corporation (the "Company"), and each
of the institutions which is a signatory to this First Amendment (collectively,
the "Noteholders").
RECITALS:
A. The Company and each of the Noteholders have heretofore entered
into separate and several Note Purchase Agreements each dated as of February 27,
1998 (collectively, the "Existing Note Agreements," and, as amended hereby, the
"Note Agreements"). The Company has heretofore issued (i) the $80,000,000 6.71%
Series A Senior Notes Due February 27, 2008 (the "Series A Notes") and (ii) the
$20,000,000 6.60% Series B Senior Notes Due February 27, 2005 (the "Series B
Notes," and together with the Series A Notes, the "Notes"), in each case dated
February 27, 1998 pursuant to the Existing Note Agreements. The Noteholders are
the holders of 100% of the outstanding principal amount of the Notes.
B. The Company and the Noteholders now desire to amend the Existing
Note Agreements in the respects, but only in the respects, hereinafter set
forth.
C. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Existing Note Agreements unless herein defined or the
context shall otherwise require.
D. All requirements of law have been fully complied with and all other
acts and things necessary to make this First Amendment 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 First Amendment set forth in
ss.3.1 hereof, and in consideration of good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the Company and the
Noteholders do hereby agree as follows:
SECTION 1. AMENDMENTS.
Section 1.1. Amendment to Section 11.3. Section 11.3 of the Existing
Note Agreements shall be and is hereby amended in its entirety to read as
follows:
"Section 11.3. Maximum Amount of Consolidated Debt.
The Company will not at any time permit the ratio of
Consolidated Debt to Consolidated Operating Cash Flow to
exceed 3.50 to 1.00 for the immediately preceding four fiscal
quarter period taken as a single accounting period ending on
the date of calculation."
Section 1.4. Amendment to Defined Terms. The following defined terms as
set forth in Schedule B to the Existing Note Agreements shall be and are hereby
amended in their entirety to read as follows:
"Consolidated Net Earnings" means, with respect to
any period, the net income (or loss) of the Company and its
Subsidiaries for such period, as determined on a consolidated
basis in accordance with GAAP, excluding (to the extent
included in calculating Consolidated Net Earnings): (i)
extraordinary and unusual and non-recurring gains and losses
and (ii) any equity interest of the Company or any Subsidiary
of any Person that is not a Subsidiary.
Section 1.5. New Defined Terms. The following defined terms shall be
added as new definitions in alphabetical order to Schedule B to the Existing
Note Agreements:
"Consolidated Operating Cash Flow" means Consolidated
Net Earnings for the previous four quarters plus (to the
extent deducted to calculate Consolidated Net Earnings):
(a) provisions for federal, state and local
income taxes;
(b) Interest Expense; and
(c) depreciation and amortization, all in
accordance with GAAP;
provided that, in the event any Person (or the assets
thereof) is acquired or divested by the Company or any
Subsidiary (whether by merger, consolidation, asset or stock
acquisition or otherwise) at any time during the period of
calculation, such acquisition or divestiture shall be deemed
to have been made on the first day of such calculation period.
"Interest Expense" means, for any period, the
interest expense of the Company and its Subsidiaries
(including imputed interest in respect of Capital Leases), in
respect of all Consolidated Debt, and all debt discount and
expense amortized or required to be amortized in the
determination of Consolidated Net Earnings for such period
determined on a consolidated basis in accordance with GAAP.
2
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Section 2.1. To induce the Noteholders to execute and deliver this
First Amendment (which representations shall survive the execution and delivery
of this First Amendment), the Company represents and warrants to the Noteholders
that:
(a) this First Amendment has been duly authorized, executed
and delivered by it and this First Amendment 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 Existing Note Agreements, as amended by this First
Amendment, constitute 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 First Amendment (i) has been duly authorized by all requisite
corporate action and, 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,
including, without limitation, the Five Year Credit Agreement dated
October 17, 2001 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
ss. 2.1(c);
(d) as of the date hereof and after giving effect to this
First Amendment, no Default or Event of Default has occurred which is
continuing; and
(e) all the representations and warranties contained in
Section 5 of the Existing Note Agreements are true and correct in all
material respects with the same force and effect as if made by the
Company on and as of the date hereof.
SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIS FIRST AMENDMENT.
Section 3.1. This First Amendment shall not become effective until, and
shall become effective when, each and every one of the following conditions
shall have been satisfied:
(a) executed counterparts of this First Amendment, duly
executed by the Company and the holders of at least 100% of the
outstanding principal of the Notes, shall have been delivered to the
Noteholders;
3
(b) the representations and warranties of the Company set
forth in ss. 2 hereof are true and correct on and with respect to the
date hereof.
Upon receipt of all of the foregoing, this First Amendment shall become
effective.
SECTION 4. PAYMENT OF NOTEHOLDERS' COUNSEL FEES AND EXPENSES.
Section 4.1. The Company agrees to pay upon demand, the reasonable fees
and expenses of Xxxxxxx and Xxxxxx LLP, special counsel to the Noteholders, in
connection with the negotiation, preparation, approval, execution and delivery
of this First Amendment.
SECTION 5. MISCELLANEOUS.
Section 5.1. This First Amendment shall be construed in connection with
and as part of each of the Existing Note Agreements, and except as modified and
expressly amended by this First Amendment, all terms, conditions and covenants
contained in the Existing Note Agreements and the Notes are hereby ratified and
shall be and remain in full force and effect.
Section 5.2. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
First Amendment may refer to the Note Agreements without making specific
reference to this First Amendment but nevertheless all such references shall
include this First Amendment unless the context otherwise requires.
Section 5.3. The descriptive headings of the various Sections or parts
of this First Amendment are for convenience only and shall not affect the
meaning or construction of any of the provisions hereof.
Section 5.4. This First Amendment shall be construed and expressed in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of New York excluding choice-of-law principles of the law of such
state that would require the application of the laws of a jurisdiction other
than such state.
Section 5.5. The execution hereof by you shall constitute a contract
between us for the uses and purposes hereinabove set forth, and this First
Amendment may be executed in any number of counterparts, each executed
counterpart constituting an original, but all together only one agreement.
INVACARE CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
________________________________
Its Senior Vice President and CFO
4
The foregoing is hereby agreed to as of the date thereof.
UNITED SERVICES AUTOMOBILE ASSOCIATION
By *
________________________________
Its
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxxx & Company Inc. as Investment Adviser
By /s/ Xxxx X. Xxxxx
________________________________
Its Managing Director
J. ROMEO & CO. (as nominee for MONY Life Insurance Company)
By /s/ Xxxxxxx Xxxxx
________________________________
Its Partner
J. ROMEO & CO. (as nominee for MONY Life Insurance Company of America)
By /s/ Xxxxxxx Xxxxx
________________________________
Its Partner
HARE & CO. (as nominee for MONY Life Insurance Company)
By /s/ Xxxxxxx Xxxxx
________________________________
Its Authorized IM Representative
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
By *
________________________________
Its
By *
________________________________
Its
GENERAL ELECTRIC CAPITAL LIFE ASSURANCE COMPANY OF NEW YORK
By *
________________________________
Its
THE LIFE INSURANCE COMPANY OF VIRGINIA
By *
________________________________
Its
THE BALTIMORE LIFE INSURANCE COMPANY
By /s/ Xxxxxxx X. Xxxxxxxxx
________________________________
Its Portfolio Manager
NATIONWIDE LIFE INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxxx
________________________________
Its Authorized Signatory
RELIASTAR LIFE INSURANCE COMPANY
RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK
By: ING Investment Management LLC, as Agent
By /s/ Xxxxx X. Xxxxxxx
________________________________
Its Vice President
* Amendment approved by holders of more than 50% of principal outstanding, thus
not all signatures obtained.
