Exhibit 10.3
WAIVER AND AMENDMENT AGREEMENT
THIS WAIVER AND AMENDMENT AGREEMENT (this "Agreement"), dated as of
November 14, 2006, to that certain Credit Agreement dated as of January 14, 2005
(as amended, restated or otherwise modified prior to the date hereof and as
amended or otherwise modified hereby or from time to time in accordance with the
terms hereof and thereof, the "Credit Agreement") among Invacare Corporation
(the "Company"), each of the Borrowing Subsidiaries party thereto (collectively
with the Company, the "Borrowers"), the banks set forth on the signature pages
thereof (together with their successors and assigns, collectively, the "Banks"
and each individually a "Bank") and JPMorgan Chase Bank, N.A., a national
banking association, as agent for the Banks (in such capacity, the "Agent").
RECITALS:
A. The Borrowers, the Banks and the Agent have entered into the Credit
Agreement under which the Banks have agreed to provide loans to, and issue or
participate in letters of credit for the account of, the Borrowers in accordance
with the terms of the Credit Agreement.
B. A Default has occurred under the Credit Agreement due to a default under
a financial covenant in the Senior Unsecured Notes which is incorporated by
reference into the Credit Agreement pursuant to Section 5.2(k) of the Credit
Agreement. Specifically, the financial covenant set forth in Section 11.3 of
each of the note purchase agreements executed in connection with the Senior
Unsecured Notes (the "Note Purchase Agreements") is in default as of the date
hereof as such financial covenant in the Note Purchase Agreements is tested "at
any time". As this more frequent testing is more favorable to the holders of the
Senior Unsecured Notes, the Banks are entitled to the incorporation by reference
of Section 11.3 into the Credit Agreement under the terms of Section 5.2(k) of
the Credit Agreement. As a result of the breach of Section 5.2(k) of the Credit
Agreement and the breach of Section 11.3 of the Note Purchase Agreements,
Defaults have also occurred under Section 6.1(c) of the Credit Agreement (due to
the past misrepresentations by the Company that no Default had occurred and was
continuing) and Section 6.1(f) (as a result of the declared defaults under the
Note Purchase Agreement). The breach of Section 11.3 of each of the Note
Purchase Agreements as incorporated by reference into the Credit Agreement
pursuant to Section 5.2(k) of the Credit Agreement and the breaches of Sections
6.1(c) and 6.1(f) of the Credit Agreement are referred to herein collectively as
the "Existing Defaults". The Borrowers hereby acknowledge the Existing Defaults.
C. The Agent and the Banks have the right under the Credit Agreement to
accelerate immediately the Borrowers' obligations under the Credit Agreement and
the other Loan Documents and otherwise to exercise, or cause to be exercised,
all respective rights and remedies available to the Agent and the Banks under
such documents, as applicable, and under law and in equity.
D. The Company has requested that the Banks temporarily waive the Existing
Defaults under the Credit Agreement for the period set forth herein and have
asked the Banks to agree to amend certain terms and provisions of the Credit
Agreement in accordance with the terms and conditions set forth herein.
E. The Banks which are signatories hereto are willing to waive such
Existing Defaults for such limited period and the Banks which are signatories
hereto are willing to make such amendments, all on the terms and conditions set
forth herein.
NOW, THEREFORE, upon the full and complete satisfaction of the conditions
precedent to the effectiveness of the Waivers and the Amendments, and in
consideration of good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Borrowers and the Banks do hereby agree as
follows:
SECTION 1. Temporary Waiver.
1.1 Each Borrower hereby acknowledges and agrees that, as a result of the
Existing Defaults under the Credit Agreement, the Banks may proceed to enforce
their rights and remedies under and in accordance with the Loan Documents,
including without limitation to collect the Borrowers' obligations to the Banks.
1.2 Subject to the terms and conditions of this Agreement, the Banks agree
to temporarily waive (the "Waiver") the Existing Defaults during the period (the
"Waiver Period") commencing on the date hereof and expiring on the earliest to
occur of (A) December 15, 2006 (the "Outside Waiver Termination Date'), (B) any
Default or Event of Default under any Loan Document other than the Existing
Defaults, (C) the breach or nonperformance by the Company or any Subsidiary of
any covenant, agreement or condition set forth in this Agreement, and (D) the
date on which any representation or warranty in Section 3 hereof fails to be
true and correct.
1.3 The Waiver shall be effective only for the Existing Defaults and only
for the Waiver Period, and such Waiver shall not entitle the Borrowers to any
future waiver in similar or other circumstances and shall automatically cease to
be effective upon the expiration of the Waiver Period, without notice or other
action of any kind by the Agent or the Banks. The Agent and the Banks reserve
their respective rights, in their discretion, to exercise any or all of their
rights and remedies under the Loan Documents as a result of the Existing
Defaults upon the expiration of the Waiver Period. Without limiting the
foregoing, upon the expiration of the Waiver Period, a Default will exist under
the Credit Agreement and the Agent shall, upon the request of the Required
Banks, without the need for the expiration of grace periods, if any, in
connection with the Existing Defaults, (but otherwise in accordance with the
terms of the Credit Agreement), accelerate the payment in full of the
obligations owed to the Agent and the Banks under the Loan Documents, and
enforce and exercise any or all of the Agent's rights under or in respect of the
Credit Agreement and the other Loan Documents and under applicable law.
SECTION 2. Amendments to the Credit Agreement.
Subject to the terms and conditions of this Agreement, the Credit Agreement
is hereby and shall be amended as follows:
2.1 Notwithstanding anything to the contrary contained in the Credit
Agreement, the aggregate principal amount of new Advances outstanding during the
Waiver Period (other than the Advance on or about the Waiver Effective Date in
the approximate amount of $15,742,310.21 for the purpose of refunding the
overdraft owing to National City Bank and other than continuations and
conversions of Advances outstanding on the Waiver Effective Date in the same
principal amount) shall not exceed the lesser of (i) $20,000,000, and (ii) the
amount that would not cause the aggregate amount of Consolidated Total Debt,
after giving effect to such new Advance, to exceed $520,762,617.58. After giving
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effect to the Advance repaying such overdraft owing to National City Bank, the
aggregate principal amount of Advances under the Credit Agreement will be
$140,909,307.37 (the amount of existing loans under the Credit Agreement +
$15,742,310.21 (the amount of the loan to refund the overdraft owing to National
City Bank + $1,242,000 (the current amount of letters of credit issued under the
Credit Agreement) (the "Waiver Effective Date Advance Amount"). All new Advances
shall be used solely for working capital purposes in the ordinary course of
business. In connection with each request for an Advance under Section 2.8 of
the Credit Agreement, the Company shall deliver any certificate reasonably
requested by the Agent to demonstrate compliance with the borrowing limitations
set forth herein as of the date such Advance is made, continued or converted and
after giving effect to such Advance.
2.2 Notwithstanding anything to the contrary contained in the Credit
Agreement, (i) principal payments shall be required on Advances outstanding
under the Credit Agreement that are in excess of the Waiver Effective Date
Advance Amount to the extent cash on hand is in excess of the amount of cash on
hand historically maintained in the ordinary course of business; (ii) no
principal payments shall be made or required on the Advances below the Waiver
Effective Date Advance Amount without the prior written consent of the Required
Banks, (iii) no principal payments on the Senior Unsecured Notes or other
existing Indebtedness shall be permitted without the prior written consent of
the Required Banks, and (iv) any principal payments below the Waiver Effective
Date Advance Amount under clause (ii) above and any principal payments on the
Senior Unsecured Notes under clause (iii) above shall be made pro rata between
the obligations outstanding under the Credit Agreement and the obligations
outstanding under the Senior Unsecured Notes.
2.3 Notwithstanding anything to the contrary contained in the Credit
Agreement, the Applicable Fee Rate for the facility fee paid pursuant to Section
2.5 of the Credit Agreement shall be thirty basis points (30 bps) during the
Waiver Period.
2.4 Notwithstanding anything to the contrary contained in the Credit
Agreement, the Applicable Margin for Eurocurrency Rate Loans shall be one
hundred twenty basis points (120 bps) during the Waiver Period.
2.5 Notwithstanding anything in the Credit Agreement to the contrary,
neither the Company nor any Subsidiary may, after the date hereof and continuing
through April 15, 2007:
(a) grant any Liens in reliance on the basket provided in Section
5.2(d)(ix) of the Credit Agreement;
(b) sell, lease, license, transfer or otherwise dispose of any
assets, other than (i) inventory sold in the ordinary course of
business on customary terms, (ii) the sale of a building in
Europe with approximate sale proceeds of $3,000,000, (iii) sales
permitted pursuant to Section 5.2(f)(i) of the Credit Agreement
related to Securitization Transactions and (iv) transfers or
other dispositions related to Investments permitted pursuant to
Section 5.2(i) of the Credit Agreement and this Agreement;
(c) make any Investments in reliance on the basket provided in
Section 5.2(i)(xi) of the Credit Agreement, other than loans to
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customers for short term liquidity not to exceed an aggregate
outstanding principal amount at any time of $2,000,000; or
(d) declare or pay any dividend on the capital stock of the Company,
other than the regularly scheduled quarterly dividends to the
Company's shareholders not to exceed $0.0125 per share.
2.6 The Company covenants and agrees that on the Monday of each week (or
the next Business Day if Monday is a holiday), the Company will furnish to the
Agent a statement of the Company's and its Subsidiaries' cash balances as of the
close of business on the Friday of the immediately preceding week (or the first
Business Day immediately preceding Friday if Friday is a holiday).
2.7 The Company covenants and agrees that all material bank accounts of the
Company and each Domestic Subsidiary will be maintained at a Bank.
2.8 The following definitions are added to Section 1.1 of the Credit
Agreement in appropriate alphabetical order:
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects or condition, financial or
otherwise, of the Company and the Subsidiaries taken as a whole,
(b) the ability of any Borrower to perform any of its obligations
under this Agreement or (c) the legality, validity, binding effect or
enforceability against the Company and its Subsidiaries of the Credit
Agreement.
"Note Purchase Agreements" means each of the note purchase agreements
pursuant to which the Senior Unsecured Notes have been issued.
"Securitization Facility" means the existing $100 million accounts
receivable securitization facility of the Company.
"Securitization Waiver" means the waiver/amendment to the
Securitization Facility attached hereto as Exhibit A and delivered on
the Waiver Effective Date
"Waiver Effective Date" shall mean November 15, 2006.
2.9 The definition of "Senior Secured Notes" in Section 1.1 is restated as
follows:
"Senior Unsecured Notes" means the 6.71% Senior Notes due February 27,
2008, issued in an aggregate original principal amount of $80,000,000
under that certain Note Agreement dated as of February 27, 1998
between the Borrower and the Purchasers named therein, the Series A
Senior Unsecured Notes due October 1, 2007 issued on October 1, 2003
in the aggregate original principal amount of $50,000,000, the Series
B Senior Unsecured Notes due October 1, 2009 issued on October 1, 2003
in an aggregate original principal amount of $30,000,000, the Series C
Senior Unsecured Notes due October 1, 2010 issued on October 1, 2003
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in an aggregate principal amount of $20,000,000 and the 6.15% Senior
Unsecured Notes due April 27, 2016 in an aggregate original principal
amount of $150,000,000.
2.10 Section 2.8 is amended by adding the following sentence at the end of
the last paragraph of such Section:
In connection with each request for an Advance under this Section 2.8,
the Company shall deliver any certificate reasonably requested by the
Agent to demonstrate compliance with Section 5.2(o) of the Credit
Agreement as of the date such Advance is made, continued or converted
and after giving effect to such Advance.
2.11 Section 4.13 is restated as follows:
4.13 No Material Adverse Effect. Since the most recent financial
information delivered by the Company to the Agent prior to the Waiver
Effective Date, there has been no change in the business, property,
prospects, condition (financial or otherwise) or results of operations of
the Company and its Subsidiaries which, could reasonably be expected to
have a Material Adverse Effect.
2.12 Section 5.2(i)(i) is restated as follows:
(i) Investments by the Company in and to Subsidiaries, and Investments
by Subsidiaries in and to the Company and other Subsidiaries, including any
Investment in a corporation which, after giving effect to such Investment,
will become a Subsidiary and including any Investment in any Securitization
Entity, provided, that, with respect to any Investments comprised of
inter-company loans made by a Subsidiary to any Borrower, such loans are
unsecured and subordinated to the obligations outstanding under this
Agreement on terms and conditions satisfactory to the Required Banks, and
provided, further, in each case under this clause (i), so long as
immediately before and after giving effect to any such Investments, no
Default or Event of Default would exist;
2.13 New Sections 5.2(n) and (o) shall be added at the end of Section
5.2 to read as follows:
(n) Optional Payments and Modification of Indebtedness. During the
period from the Waiver Effective Date and continuing through April 15,
2007, will not, nor will it permit any Subsidiary to, (i) make any optional
payment, defeasance (whether a covenant defeasance, legal defeasance or
other defeasance), prepayment, repurchase (including without limitation any
offer to repurchase) or other optional redemption of any Senior Unsecured
Notes or any other Indebtedness (other than under the Credit Agreement) or
obligations in connection therewith, other than, with the consent of the
Required Banks, principal payments which are made on a pro rata basis among
the holders of the Senior Unsecured Notes and Advances under the Credit
Agreement, (ii) enter into any agreement restricting the ability of the
Company and its Subsidiaries to amend or modify any Loan Document, other
than restrictions contained in the Note Purchase Agreements or any NPA
Waiver, (iii) enter into any agreement or arrangement requiring any
defeasance of any kind of any of the Senior Unsecured Notes, (iv) amend,
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supplement or otherwise modify the Senior Unsecured Notes, the Note
Purchase Agreements or any agreements or instruments executed in connection
therewith other than pursuant to the waiver/amendment to the Note Purchase
Agreements attached hereto as Exhibit B and delivered on the Waiver
Effective Date (the "NPA Waiver"), or (v) pay or agree to pay any fee,
interest or other compensation or consideration to the holders of the
Senior Unsecured Notes other than as required by the Note Purchase
Agreements and Senior Unsecured Notes in effect on the Waiver Effective
Date, as modified by the NPA Waiver.
(o) Consolidated Total Debt. During the period from the Waiver
Effective Date and continuing through April 15, 2007, permit or suffer to
exist the aggregate outstanding principal amount of Consolidated Total Debt
of the Company and its Subsidiaries at any time to exceed $520,762,617.58.
2.14 Section 6.1(d) is restated as follows:
(d) Certain Covenants. Any Borrower shall fail to perform or observe
any term, covenant or agreement contained in Section 5.1(d)(i)(A) or
Section 5.2(a), (b), (c), (e), (f), (n) or (o) hereof or contained in the
Waiver and Amendment to this Agreement dated November 14, 2006; or
2.15 Each of the Borrowers acknowledges and agrees that any covenants,
defaults or similar provisions set forth in the NPA Waivers not substantially
provided for in this Agreement or more favorable to the holders of the Senior
Unsecured Notes are hereby incorporated by reference into this Agreement to the
same extent as if set forth fully herein, and no subsequent amendment, waiver,
termination or modification thereof shall affect any such covenants, terms,
conditions or defaults as incorporated herein.
2.16 For avoidance of doubt, it is hereby, it is hereby acknowledged and
agreed to by the Company that the addition of the agreements and covenants in
this Section 2 hereof and their continuance beyond the Waiver Period are not to
be construed as an acquiescence or waiver of the Existing Defaults beyond the
Waiver Period but are added for additional protection of the Banks, and the
Banks shall retain all of their rights and remedies under or in respect of the
Credit Agreement and the other Loan Documents and under applicable law with
respect to the Existing Defaults upon the expiration or termination of the
Waiver Period.
SECTION 3. Representations and Warranties of the Borrowers.
To induce the Banks to execute and deliver this Agreement (which
representations and warranties shall survive the execution and delivery of this
Agreement), each Borrower represents and warrants to each of them that (it being
agreed, however, that nothing in this Section 3 shall affect any of the
warranties and representations previously made by the Borrowers in or pursuant
to the Loan Documents and that all of such other warranties and representations
(except to the extent waived under Section 1 hereof), as well as the warranties
and representations in this Section 3, shall survive the effectiveness of the
Waiver set forth in this Agreement):
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(a) this Agreement has been duly authorized, executed and delivered by
each Borrower and this Agreement constitutes the legal, valid and binding
obligation, contract and agreement of each Borrower, as applicable,
enforceable against such Person 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 Loan Documents constitute the legal, valid and binding
obligations, contracts and agreements of each Borrower party thereto,
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 and delivery of this Agreement by each Borrower, and
the performance each Borrower of the Loan Documents to which they are a
party (i) have been duly authorized by all requisite corporate or other
action and, if required, shareholder action, (ii) do 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, bylaws or other charter or
organizational documents, (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 indenture, agreement or other instrument to which
it is a party or by which its properties or assets are or may be bound,
(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,
or (C) result in the creation of any Lien;
(d) all the representations and warranties made by the Borrowers in
the Loan Documents are true and correct on the date hereof as if made on
and as of the date hereof and are so repeated herein as if expressly set
forth herein or therein, except (i) those representations and warranties
included in the Existing Defaults and (ii) to the extent that any of such
representations and warranties expressly relate by their terms to a prior
date;
(e) (i) Schedule 3(e) sets forth a complete and correct list of all
outstanding Indebtedness of the Company and its Subsidiaries as of the date
hereof in an aggregate principal amount (for each such item of
Indebtedness) exceeding $1,000,000 (including a description of the obligors
and obligees, principal amount outstanding and collateral therefor, if any,
any guaranty thereof, if any, any Liens securing such Indebtedness, and a
list of the dates and amounts of any scheduled prepayments thereof), and
(ii) the amount of all outstanding Indebtedness of the Company and its
Subsidiaries not listed on such Schedule does not exceed $1,000,000;
(f) the amount of Consolidated Total Debt of the Company and its
Subsidiaries (as defined in and as calculated under the Credit Agreement)
as of November 14, 2006 is $500,762,617.58 and is detailed on Schedule 3(f)
hereto;
(g) except as disclosed in Schedule 3(g), there are no actions, suits
or proceedings pending or, to the knowledge of the Company, threatened
against or affecting the Company or any Subsidiary or any property of the
Company or any Subsidiary in any court or before any arbitrator of any kind
or before or by any governmental authority that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect;
(h) except for the Existing Defaults, no event has occurred and no
condition exists that would constitute a Default or Event of Default;
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(i) no principal or interest payments are due on the Senior Unsecured
Notes at any time on or before December 15, 2006; and
(j) the NPA Waiver and the Securitization Waiver are effective
simultaneously herewith, and no default or other event or condition exists
which would cause, or permit the holders of the Indebtedness (or a trustee
on behalf of such holders) under any of Senior Unsecured Notes or any other
Indebtedness or any holder of any of the obligations owing under the
Securitization Facility to cause, any payment of such Indebtedness or
obligations to become due prior to its due date.
SECTION 4. Conditions to Effectiveness of the Waiver.
The Waiver shall not become effective until, and shall become effective on
the date (the "Effective Date") when each and every one of the following
conditions shall have been satisfied or waived, provided that such conditions
have been satisfied on or before November 15, 2006:
(a) counterparts of this Agreement shall have been duly executed by
each Borrower, the Agent and the Required Banks;
(b) the NPA Waiver and the Securitization Waiver shall be executed
simultaneously herewith and be effective;
(c) the Company shall have paid fees in accordance with the terms of
any fee letters between the Company and the Agent dated the date hereof;
(d) after giving effect to the amendments and waiver contained herein,
the NPA Waiver and the Securitization Waiver, the representations and
warranties of each Borrower set forth in Section 3 hereof and in Section
Article IV of the Credit Agreement shall be true and correct on and with
respect to the date hereof and on the Waiver Effective Date; and
(e) after giving effect to the amendments and waiver contained herein,
the NPA Waiver and the Securitization Waiver, no Default or Events of
Default shall exist other than the Existing Defaults.
SECTION 5. Fees and Expenses.
The Company agrees to pay and to save the Agent harmless for the payment of all
costs and expenses arising in connection with this Agreement, including the
reasonable fees of counsel to the Agent in connection with preparing this
Agreement and the related documents.
SECTION 6. Waiver and Release.
Without limiting the foregoing, in order to induce the Agent and the Banks to
enter into this waiver, the Borrowers acknowledge and agree that: (a) neither
any Borrower nor any of their respective Subsidiaries has any claim or cause of
action against any of the Agent, any Bank or any of their respective directors,
trustees, officers, employees or agents (collectively, the "Released Parties")
relating to or arising out of the Loan Documents or any of the transactions
related thereto; (b) neither any Borrower nor any of their respective
Subsidiaries has any offset right, right of recoupment, counterclaim or defense
of any kind against any of their respective obligations, indebtedness or
liabilities to any of the Released Parties; (c) each of the Released Parties has
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heretofore properly performed and satisfied in a timely manner all of its
obligations to the Borrowers and their Subsidiaries under the Loan Documents,
and (d) neither the Agent nor any Bank has any obligation to make any Advance on
or after December 15, 2006. Notwithstanding this representation and as further
consideration for the agreements and understandings herein, each of the
Borrowers, on behalf of itself and its employees, agents, executors, heirs,
successors and assigns (the "Releasing Parties"), hereby releases the Agent and
the Banks, their respective predecessors, officers, directors, employees,
agents, attorneys, affiliates, subsidiaries, successors and assigns, from any
liability, claim, right or cause of action which now exists or hereafter arises
as a result of acts, omissions or events occurring on or prior to the date
hereof, whether known or unknown, including but not limited to claims arising
from or in any way related to the Loan Documents or any of the transactions
relating thereto. No Released Party shall be liable with respect to, and each
Borrower hereby waives, releases and agrees not to xxx for, any special,
indirect or consequential damages relating to any Loan Document or arising out
of its activities in connection herewith or therewith (whether before, on or
after the date hereof).
SECTION 7. Miscellaneous.
7.1 Within 10 Business Days after the Waiver Effective Date, each Borrower
shall have delivered such certificates of officers, incumbency certificates,
charter documents, resolutions, good standing certificates and other documents
related to the status of each Borrower and as to the proper authorization of the
transactions contemplated by this Agreement, as reasonably required by the
Agent, provided that the Agent may extend the date by which this requirement is
required to be satisfied.
7.2 References in the Credit Agreement or in any other Loan Document to the
Credit Agreement shall be deemed to be references to the Credit Agreement as
amended hereby and as further amended from time to time. Without limiting the
definition of Loan Documents, this Agreement and all other agreements and
documents executed in connection herewith constitute Loan Documents.
7.3 Except as expressly amended hereby, the Borrowers agree that the Credit
Agreement and all other Loan Documents are ratified and confirmed and shall
remain in full force and effect and that it has no set off, counterclaim,
defense or other claim or dispute with respect to any of the foregoing. The
Borrowers hereby acknowledge and affirm the accuracy of all recitals to this
Agreement. The Borrowers represent that they have no intention to file or
acquiesce in the filing of any bankruptcy or insolvency proceeding hereafter and
believe that the period of time allowed by this Agreement are sufficient for the
Borrowers to accomplish the transactions it has undertaken as represented to the
Banks. Terms used but not defined herein shall have the respective meanings
ascribed thereto in the Credit Agreement.
7.4 The Credit Agreement and the other Loan Documents, as amended by this
Agreement, constitute the entire understanding of the parties with respect to
the subject matter hereof and may only be modified or amended by a writing
signed by the party to be charged. If any provision of this Agreement is in
conflict with any applicable statute or rule of law or otherwise unenforceable,
such offending provision shall be null and void only to the extent of such
conflict or unenforceability, but shall be deemed separate from and shall not
invalidate any other provision of this Agreement.
7.5 This Amendment may be executed in any number of counterparts with the
same effect as if the signatures thereto and hereto were upon the same
instrument. Facsimile copies of signatures shall be treated as original
signatures for all purposes under this Agreement.
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7.6 Each of the Borrowers agrees to execute and deliver any and all
documents reasonably deemed necessary or appropriate by the Agent or the Banks
to carry out the intent of and/or to implement this Agreement.
7.7 This Amendment shall not be construed more strictly against the Banks
or the Agent merely by virtue of the fact that the same has been prepared by the
Banks and the Agent or their counsel, it being recognized that the Borrowers,
the Agent and the Banks have contributed substantially and materially to the
preparation of this Agreement, and each of the parties hereto waives any claim
contesting the existence and the adequacy of the consideration given by any of
the other parties hereto in entering into this Agreement.
[signature pages follow]
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If you are in agreement with the foregoing, please sign the form of
agreement on the accompanying counterpart of this Agreement and return it to the
Agent.
INVACARE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
INVACARE (DEUTSCHLAND) GmbH
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Officer
INVACARE AUSTRALIA PTY. LTD.
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Officer
INVACARE CANADA INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Officer
INVACARE S.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Officer
INVACARE (UK) LIMITED
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Officer
INVACARE INTERNATIONAL SARL
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Officer
DOMUS HOMECARE AG
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Officer
INVACARE HOLDINGS CV
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Officer
SCANDINAVIAN MOBILITY INTERNATIONAL APS
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Officer
2030604 ONTARIO INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Officer
XXXXXXX HEALTHCARE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Authorized Officer
Accepted and agreed to:
JPMORGAN CHASE BANK, N.A.,
as a Lender and as Agent
By: /s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Title: Vice President
KEYBANK NATIONAL ASSOCIATION,
as a Bank and Syndication Agent
By: /s/ X.X. Xxxxxx
X.X. Xxxxxx
Title: Senior Vice President
NATIONAL CITY BANK,
as a Bank and Documentation Agent
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A.,
as a Bank and Documentation Agent
By: /s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Title: Senior Vice President
CALYON NEW YORK BRANCH
By: /s/Xxxx Xxxx
Xxxx Xxxx
Title: Director
By: /s/Priya Vrat
Priya Vrat
Title: Vice President
XXXXXX X.X.
By: /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
Its: Managing Director
NORDEA BANK FINLAND PLC, NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxxx
Its: Senior Vice President
By: /s/ Xxxxxx X. Xxxxxxx Xx.
Xxxxxx X. Xxxxxxx Xx.
Its: Senior Vice President Credit
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Its: Credit Officer
SUNTRUST BANK
By: /s/ Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx
Its: Director
THE BANK OF NEW YORK
By: /s/ Xxxx X. Xxxxx Xx.
Xxxx X. Xxxxx Xx.
Its: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A.
"RABOBANK INTERNATIONAL",
NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Its: Executive Director
SCHEDULE 3(e)
EXISTING DEBT
11/14/06
Senior Unsecured Notes
----------------------
6.71%, issued February 27, 1998, due February 27, 2008 $80,000,000.00
3.97%, issued October 1, 2003, due October 1, 2007 50,000,000.00
4.74%, issued October 1, 2003, due October 1, 2009 30,000,000.00
5.05%, issued October 1, 2003, due October 1, 2010 20,000,000.00
6.15%, issued April 27, 2006, due April 27, 2016 150,000,000.00
Revolving Credit Facility (USD Equivalent)
------------------------------------------
Xxxxxxx Healthcare 55,169,477.21
Invacare Australia 9,676,250.00
Invacare International Sarl 16,794,247.18
Invacare International Sarl 2,621,365.92
Invacare International Sarl 31,647,967.06
Invacare Corporation 25,000,000.00
Overdraft Line
--------------
Invacare Corporation 15,742,310.21
Other
-----
Letters of Credit 2,568,000.00
Property Leases 11,543,000.00
Total Consolidated Debt $500,762,617.58
Maximum Allowed Debt 520,762,617.58
Additional Borrowing Capacity $20,000,000.00
SCHEDULE 3(f)
Itemization description of the Consolidated Total Debt of the Company and its
Subsidiaries (as defined in and as calculated under the Credit Agreement) as of
November 14, 2006
Senior Unsecured Notes
----------------------
6.71%, issued February 27, 1998, due February 27, 2008 $80,000,000.00
3.97%, issued October 1, 2003, due October 1, 2007 50,000,000.00
4.74%, issued October 1, 2003, due October 1, 2009 30,000,000.00
5.05%, issued October 1, 2003, due October 1, 2010 20,000,000.00
6.15%, issued April 27, 2006, due April 27, 2016 150,000,000.00
Revolving Credit Facility (USD Equivalent)
------------------------------------------
Xxxxxxx Healthcare 55,169,477.21
Invacare Australia 9,676,250.00
Invacare International Sarl 16,794,247.18
Invacare International Sarl 2,621,365.92
Invacare International Sarl 31,647,967.06
Invacare Corporation 25,000,000.00
Overdraft Line
--------------
Invacare Corporation 15,742,310.21
Other
-----
Letters of Credit 2,568,000.00
Property Leases 11,543,000.00
Total Consolidated Debt $500,762,617.58
Maximum Allowed Debt 520,762,617.58
Additional Borrowing Capacity $20,000,000.00
SCHEDULE 3(g)
CERTAIN LITIGATION
EXHIBIT A
Securitization Waiver
OMNIBUS WAIVER, AMENDMENT AND REAFFIRMATION OF PERFORMANCE UNDERTAKING
THIS OMNIBUS WAIVER, AMENDMENT AND REAFFIRMATION OF PERFORMANCE
UNDERTAKING, dated as of November 14, 2006 (this "Waiver"), is by and among:
(a) Invacare Corporation, an Ohio corporation ("Invacare"), Healthtech
Products, Inc., a Missouri corporation, and Invacare Supply Group, Inc., a
Massachusetts corporation (each of the foregoing including Invacare, an
"Originator" and collectively, the "Originators"),
(b) Invacare Receivables Corporation, a Delaware corporation ("IRC"
and, together with the Originators, the "Companies"),
(c) Park Avenue Receivables Company, LLC ("Conduit"), and
(d) JPMorgan Chase Bank, N.A., individually (together with Conduit,
the "Purchasers") and as agent (together with its successors and assigns in
such capacity, the "Agent").
W I T N E S S E T H :
WHEREAS, the Originators and IRC are parties to that certain
Receivables Sale Agreement, dated as of September 30, 2005 (the
"Receivables Sale Agreement");
WHEREAS, IRC, as Seller, Invacare, as Servicer, the Purchasers and the
Agent are parties to that certain Receivables Purchase Agreement dated as
of September 30, 2005, as heretofore amended (the "Receivables Purchase
Agreement" and, together with the Receivable Sale Agreement, the
"Agreements");
WHEREAS, Invacare has executed that certain Performance Undertaking
dated as of September 30, 2005, in favor of IRC (the "Performance
Undertaking); and
WHEREAS, the parties wish to (a) waive a Termination Event under the
Receivables Sale Agreement and an Amortization Event under the Receivables
Purchase Agreement, (b) amend the Receivables Purchase Agreement, and (c)
reaffirm the Performance Undertaking, in each case, on the terms and
subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises herein contained, and
for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used herein and not otherwise
defined shall have their meanings as attributed to such terms in the
Agreements.
2. Limited Waivers; Amendment.
2.1. Limited Waivers.
(a) Any Potential Termination Event or Termination Event that may
have arisen (or that may at any time hereafter prior to December 15,
2006 arise) under Section 5.1(c) of the Receivables Sale Agreement by
virtue of Invacare's failure to observe at all times the financial
covenant set forth in Section 11.3 of each of the note purchase
agreements executed in connection with the Senior Unsecured Notes (as
defined in the Five-Year Credit Agreement) and incorporated by
reference into Section 5.2(k) of the Five-Year Credit Agreement
(collectively, the "Cross-Defaults") is hereby waived for the period
commencing on the date hereof through the earliest to occur of (i)
December 15, 2006, (B) any Potential Termination Event or Termination
Event other than the Cross Defaults, (C) the breach or nonperformance
by any of the Companies of any covenant, agreement or condition set
forth in this Waiver, and (D) the date on which any representation or
warranty in Section 3 hereof fails to be true and correct.
(b) Any Amortization Event or Potential Amortization Event that
may have arisen (or that may at any time hereafter prior to December
15, 2006 arise) under Section 9.1(c) of the Receivables Purchase
Agreement by virtue of the Cross-Defaults is hereby waived for the
period commencing on the date hereof through the earliest to occur of
(i) December 15, 2006, (B) any Potential Amortization Event or
Amortization Event other than the Cross Defaults, (C) the breach or
nonperformance by any of the Companies of any covenant, agreement or
condition set forth in this Waiver, and (D) the date on which any
representation or warranty in Section 3 hereof fails to be true and
correct.
2.2. Amendments.
(a) The definitions of the following terms in the Receivables
Purchase Agreement are hereby amended and restated in their entirety
to read as follows:
"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 the Liquidity Termination Date
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 December 15, 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
2
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 the Liquidity Termination Date 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.
"Purchase Limit" means $75,401,750.
(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 the Liquidity Termination Date
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),
(c) Schedule A to the Receivables Purchase Agreement is hereby
amended to deleted "$100,000,000" where it appears and substitute in
lieu thereof "$75,401,750."
3. Certain Representations. In order to induce the Agent and the
Purchasers to enter into this Waiver, each of the Companies hereby
represents and warrants to the Agent and the Purchasers that, after giving
effect to the waivers contained in Section 2 hereof, (a) no Termination
Event, Potential Termination Event, Amortization Event or Potential
Amortization Event exists and is continuing as of the Effective Date (as
defined in Section 4 below), (b) each of the Agreements to which such
Company is a party, as amended hereby, constitutes the legal, valid and
3
binding obligations of such Company enforceable against such Company in
accordance with its 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 and (c) each of such Company's
representations and warranties contained in each of the Agreements to which
it is a party is true and correct as of the Effective Date as though made
on such date (except for such representations and warranties that speak
only as of an earlier date).
4. Effective Date; Conditions Precedent. This Waiver shall become
effective as of the date hereof (the "Effective Date") upon receipt by the
Agent of (a) counterparts of this Waiver, duly executed by each of the
parties hereto, (b) a copy of a waiver of the Cross-Defaults executed by
the requisite lenders under the Five-Year Credit Agreement on terms and
conditions acceptable to the Agent, (c) a copy of a waiver of the breach of
Section 11.3 of each of the note purchase agreements executed in connection
with the Senior Unsecured Notes, duly executed by the requisite
noteholders, on terms and conditions acceptable to the Agent, (d)
counterparts of an amended and restated Fee Letter, duly executed by the
Agent, the Conduit, IRC and X.X. Xxxxxx Securities Inc., and (e) payment of
a fully-earned and non-refundable Waiver Fee (as defined in the Fee Letter)
in immediately available funds.
5. Ratification; Reaffirmation of Performance Undertaking. Except as
expressly modified hereby, the Agreements, as amended hereby, is hereby
ratified, approved and confirmed in all respects. By its signature below,
Invacare hereby consents to the terms of this Waiver and hereby confirms
that its Performance Undertaking remains unaltered and in full force and
effect.
6. Reference to Agreement. From and after the Effective Date hereof,
each reference in the Agreements to "this Agreement", "hereof", or
"hereunder" or words of like import, and all references to the Agreements
in any and all agreements, instruments, documents, notes, certificates and
other writings of every kind and nature shall be deemed to mean the
Agreements in each case, as modified by this Waiver.
7. Costs and Expenses. The Seller agrees to pay all reasonable costs,
fees, and out-of-pocket expenses (including reasonable attorneys' fees and
time charges of attorneys for the Agent) incurred by the Agent in
connection with the preparation, execution and enforcement of this Waiver.
8. CHOICE OF LAW. THIS WAIVER SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE
STATE OF NEW YORK.
9. Execution in Counterparts. This Waiver 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 taken together shall constitute one and the same
agreement.
4
IN WITNESS WHEREOF, the parties have executed this Waiver as of the date
first above written.
PARK AVENUE RECEIVABLES COMPANY, LLC
BY: JPMORGAN CHASE BANK, N.A., ITS ATTORNEY-IN-FACT
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
JPMORGAN CHASE BANK, N.A., INDIVIDUALLY AND AS AGENT
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
5
INVACARE CORPORATION,
HEALTHTECH PRODUCTS, INC. AND
INVACARE SUPPLY GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
INVACARE RECEIVABLES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
6
EXHIBIT B
Form of NPA Waiver
(To be conformed for each of the Note Purchase Agreements)
================================================================================
INVACARE CORPORATION
-----------------------------------
WAIVER AND AMENDMENT
Dated as of November 14, 2006
to
NOTE PURCHASE AGREEMENTS
Dated as of February 27, 1998
-----------------------------------
Re: $80,000,000 6.71% Series A Senior Notes due February 27, 2008
and
$20,000,000 6.60% Series B Senior Notes due February 27, 2005
================================================================================
WAIVER AND AMENDMENT TO NOTE PURCHASE AGREEMENTS
THIS WAIVER AND AMENDMENT dated as of November 14, 2006 (the or this
"Waiver"), to the separate and several Note Purchase Agreements 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 Waiver and
is a Noteholder referred to below.
RECITALS:
A. The Company has previously entered into separate and several Note
Purchase Agreements, each dated as of February 27, 1998, between the Company and
each of the institutions identified on Schedule A thereto (together with their
successors and assigns, each, a "Noteholder," and, collectively, the
"Noteholders"), as amended pursuant to that certain First Amendment dated as of
October 1, 2003 and as further amended pursuant to that certain Second Amendment
dated as of September 29, 2005 (said Note Purchase Agreements, as heretofore
amended, collectively, the "Note Purchase Agreement"), pursuant to which the
Company issued and sold its (i) $80,000,000 6.71% Series A Senior Notes due
February 27, 2008 (the "Series A Notes") and (ii) $20,000,000 6.60% Series B
Senior Notes due February 27, 2005 (the "Series B Notes"). The Series B Notes
were paid in full on February 27, 2005. The Noteholders are the holders of the
outstanding principal amount of the Series A Notes identified on the signature
pages hereto.
B. The Company has also previously entered into separate and several Note
Purchase Agreements, each dated as of October 1, 2003, between the Company and
each of the institutions identified on Schedule A thereto (said Note Purchase
Agreements, as heretofore amended, collectively, the "2003 Note Purchase
Agreement"), pursuant to which the Company issued its (i) $50,000,000 3.97%
Series A Senior Notes due October 1, 2007, (ii) $30,000,000 4.74% Series B
Senior Notes due October 1, 2009, and (iii) $20,000,000 5.05% Series C Senior
Notes due October 1, 2010 (collectively, the "2003 Notes").
C. The Company has also previously entered into separate and several Note
Purchase Agreements, each dated as of April 27, 2006, between the Company and
each of the institutions identified on Schedule A thereto (said Note Purchase
Agreements, collectively, the "2006 Note Purchase Agreement"), pursuant to which
the Company issued its $150,000,000 6.15% Senior Notes due April 27, 2016 (the
"2006 Notes").
D. The Company has also previously entered into that certain Credit
Agreement dated as of January 14, 2005 (the "Bank Credit Agreement"), among the
Company, certain Borrowing Subsidiaries (as defined therein), the banks named
therein (the "Banks"), JPMorgan Chase Bank, N.A., as agent (the "Agent"),
Keybank National Association as Syndication Agent, X.X. Xxxxxx Securities, Inc.
and Keybank National Association as Co-Lead Arrangers, pursuant to which the
Banks agreed to make term loans and extend a credit facility to the Company and
the Borrowing Subsidiaries.
E. The Company has requested that the Noteholders temporarily waive its
non-compliance with Sections 7.1(d) and 11.3 of the Note Purchase Agreement and
the Events of Default that have occurred and are continuing under Section 12(c)
as a result of such non-compliance.
F. In furtherance of the foregoing, the Company and the Noteholders now
desire to set forth their agreement with respect to (i) the Noteholders'
temporary waiver of the Company's non-compliance and resulting Events of Default
under the Note Purchase Agreement as described in Recital E above, and (ii) the
amendments to the Note Purchase Agreement as set forth in Section 5 hereof, in
each case, in the respects, but only in the respects, hereinafter set forth.
G. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Purchase Agreement, as waived hereby, unless herein
defined or the context shall otherwise require.
H. All requirements of law have been fully complied with and all other acts
and things necessary to make this Waiver 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 Waiver set forth in Section 3 hereof, and
in consideration of good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, the Company and the undersigned Noteholders do
hereby agree as follows:
SECTION 1. TEMPORARY WAIVER.
The Company has advised the Noteholders that it is not currently and has
not been in compliance with Sections 7.1(d) and 11.3 of the Note Purchase
Agreement, and as a result of such non-compliance there have occurred and are
continuing Events of Default under Section 12(c) of the Note Purchase Agreement
(such non-compliance and resulting Events of Default are collectively referred
to herein as the "Existing Defaults"). On the Waiver Effective Date (as defined
in Section 3 below), the undersigned Noteholders hereby temporarily waive, as of
the date hereof and continuing through December 15, 2006, compliance by the
Company with, and the Events of Default occurring as a result of the Company's
failure to be in compliance with, Sections 7.1(d) and 11.3 of the Note Purchase
Agreement, provided, however, this temporary waiver shall only be effective so
long as from the date of this Waiver and continuing through December 15, 2006
(the "Waiver Period"), the Company shall be in compliance in all respects with
the terms and conditions of Section 5 hereof. The failure of the Company to
comply with its agreements in Section 5 of this Waiver shall be deemed an
automatic Event of Default under Section 12(c) of the Note Purchase Agreement
(as of the date the Existing Defaults originally occurred) and a rescission of
the temporary waiver in this Section 1, in each case, without any notice or
other action on behalf of the Noteholders. The temporary waiver of the Existing
Defaults is limited to the specific instances of failure to comply and the
resulting Events of Default which are described above and shall not be deemed a
waiver of or consent to any other failure to comply with the terms of Sections
7.1(d) or 11.3 of the Note Purchase Agreement or any other provisions of the
Note Purchase Agreement. Such waiver shall not prejudice or constitute a waiver
of any right or remedies which the Noteholders may have or be entitled to with
2
respect to any other breach of Sections 7.1(d) or 11.3 or any other provision of
the Note Purchase Agreement.
The waiver contemplated in this Section 1 shall be effective only for the
Existing Defaults and only for the Waiver Period, and such waiver shall not
entitle the Company to any future waiver in similar or other circumstances and
shall automatically cease to be effective upon the expiration of the Waiver
Period, without notice or other action of any kind by the Noteholders. The
Noteholders reserve their respective rights, in their discretion, to exercise
any or all of their rights and remedies under the Note Purchase Agreement and
Series A Notes as a result of the Existing Defaults upon the expiration of the
Waiver Period. Without limiting the foregoing, upon the expiration of the Waiver
Period, an Event of Default will continue to exist under the Note Purchase
Agreement and the Noteholders may, without the need for the expiration of grace
periods, if any, in connection with the Existing Defaults (but otherwise in
accordance with the terms of the Note Purchase Agreement), accelerate the
payment in full of the obligations owed to the Noteholders under the Note
Purchase Agreement and Series A Notes, and enforce and exercise any or all of
the Noteholders' rights under or in respect of the Note Purchase Agreement and
Series A Notes and under applicable law.
For avoidance of doubt, it is hereby acknowledged and agreed to by the
Company that the addition of the agreements and covenants in Section 5 hereof
and their continuance beyond the Waiver Period are not to be construed as an
acquiescence or waiver of the Existing Defaults beyond the Waiver Period but are
added for additional protection of the Noteholders, and the Noteholders shall
retain all their rights and remedies under or in respect of the Note Purchase
Agreement and Series A Notes and under applicable law with respect to the
Existing Defaults upon the expiration or termination of the Waiver Period.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Section 2.1. To induce the Noteholders to execute and deliver this Waiver
(which representations shall survive the execution and delivery of this Waiver),
the Company represents and warrants to the Noteholders that:
(a) this Waiver has been duly authorized, executed and delivered
by it and this Waiver 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 Note Purchase Agreement, as modified by this Waiver,
constitutes 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 Waiver (i) has been duly authorized by all requisite corporate
3
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 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 Section 2.1(c);
(d) as of the date hereof and after giving effect to this Waiver,
(i) no Default or Event of Default has occurred which
is continuing under the Note Purchase Agreement,
(ii) other than an event of default or similar event
that has occurred and is continuing under the Bank Credit
Agreement solely as a result of (A) a cross default to the
Note Purchase Agreement based on the Company's
non-compliance with Sections 7.1(d) and 11.3 of the Note
Purchase Agreement, (B) a default under Section 5.2(k) (most
favored lenders' provision) of the Bank Credit Agreement as
a result of such Section 5.2(k) incorporating by reference
Section 11.3 of the Note Purchase Agreement and (C) an event
of default under Section 6.1(c) (misrepresentations by the
Company that no default or event of default had occurred and
was continuing) of the Bank Credit Agreement (in each case,
which such events of default or similar events have been or
will be waived pursuant to Section 3(c) of this Waiver), no
default, event of default or similar event has occurred and
is continuing under the Bank Credit Agreement,
(iii) other than the events of default or similar
events that have occurred and are continuing under the 2003
Note Purchase Agreement and 2006 Note Purchase Agreement, in
each case, similar to the Events of Default described in
Section 1 of this Waiver (which such events of default or
similar events have been or will be waived pursuant to
Section 3(d) and (e) of this Waiver), no default, event of
default or similar event has occurred and is continuing
under each of the 2003 Note Purchase Agreement and 2006 Note
Purchase Agreement, and
(iv) other than a default, event of default,
amortization event, termination event or similar event that
has occurred and is continuing under the $100 million
accounts receivable securitization facility of the Company
(evidencing the Permitted Receivables Securitization
Program) (the "Securitization Facility") as a result of a
cross default to the Note Purchase Agreement based on the
Company's non-compliance with Sections 7.1(d) and 11.3 of
the Note Purchase Agreement and a cross default to the Bank
Credit Agreement based on similar events of default
thereunder (which such event of default, amortization event,
termination event or similar event has been or will be
4
waived pursuant to Section 3(f) of this Waiver), no default,
event of default, amortization event or similar event has
occurred and is continuing under the Securitization
Facility; and
(e) neither the Company nor any of its Affiliates has paid or
agreed to pay any fees or other consideration, or given any additional
security or collateral, or shortened the maturity or average life of
any indebtedness or permanently reduced any borrowing capacity, in
each case, in favor of or for the benefit for any creditor of the
Company, in connection with the obtaining of any consents or approvals
in connection with the transactions contemplated hereby (including,
without limitation, under the Bank Credit Agreement, 2003 Note
Purchase Agreement and 2006 Note Purchase Agreement), other than (i)
with respect to the Series A Notes, the payment of the waiver fee
referred to in Section 4(a) below, (ii) with respect to the 2003
Notes, a waiver fee equal to 0.22% of the aggregate outstanding
principal amount of the 2003 Notes paid pro rata to the holders
thereof, (iii) with respect to the 2006 Notes, a waiver fee equal to
0.22% of the aggregate outstanding principal amount of the 2006 Notes
paid pro rata to the holders thereof, and (iv) with respect to the
Bank Credit Agreement, (A) a waiver fee equal to 0.10% of the
aggregate commitments of the Banks, (B) an increase in the commitment
fee from 0.20% to 0.30% per annum calculated on the aggregate
commitments of the Banks during the Waiver Period, and (C) an increase
in the Applicable Margin for Eurocurrency Rate Loans (each as defined
in the Bank Credit Agreement) from 0.875% to 1.20% calculated on the
outstanding Eurocurrency Rate Loans during the Waiver Period, in each
case paid pro rata to the holders thereof;
(f) the amount of Consolidated Debt of the Company and its
Subsidiaries (as defined in and as calculated under the Note Purchase
Agreement) as of November 14, 2006 is $500,762,617.58; and
(g) the amount of all Revolving Credit Advances (as defined in
the Bank Credit Agreement) outstanding under the Bank Credit Agreement
as of November 14, 2006 is $142,151,307.37, consisting of
$115,909,307.37 in Revolving Credit Advances made to Subsidiaries and
$26,242,000.00 in Revolving Credit Advances made to the Company; and as
of November 14, 2006, there are no Bid-Option Loans (as defined in the
Bank Credit Agreement) outstanding.
SECTION 3. CONDITIONS TO EFFECTIVENESS OF THIS WAIVER.
This Waiver shall not become effective until, and shall become effective
when, each and every one of the following conditions shall have been satisfied
(the "Waiver Effective Date"):
(a) executed counterparts of this Waiver, duly executed by the Company
and the Required Holders, shall have been delivered to the Noteholders;
(b) the representations and warranties of the Company set forth in
Section 2 hereof are true and correct on and with respect to the date
hereof and (except to the extent that any of such representations and
5
warranties expressly relate by their terms to a prior date) the Waiver
Effective Date;
(c) the Company shall have furnished to the Noteholders and their
special counsel an executed copy of an amendment, modification, waiver or
consent necessary to waive any default or event of default occurring under
the Bank Credit Agreement resulting from (i) any cross default to the Note
Purchase Agreement based on the Company's non-compliance with Sections
7.1(d) and 11.3 of the Note Purchase Agreement, (ii) the Company's
non-compliance with Section 5.2(k) (most favored lenders' provision) of the
Bank Credit Agreement as a result of such Section 5.2(k) incorporating by
reference Section 11.3 of the Note Purchase Agreement and (iii) an event of
default under Section 6.1(c) (misrepresentations by the Company that no
default or event of default had occurred and was continuing) of the Bank
Credit Agreement, and any such amendment, modification, waiver or consent
shall be reasonably satisfactory in form and substance to the Noteholders
and their special counsel (including, without limitation, with respect to
any waiver thereunder not expiring before the end of the Waiver Period
hereunder); the "Aggregate Revolving Credit Commitment" (as defined in the
Bank Credit Agreement) shall not be less than $500,000,000 and the Company
shall be permitted to draw thereon; and the "Termination Date" shall not be
on a date prior to January 14, 2010;
(d) the Company shall have furnished to the Noteholders and their
special counsel an executed copy of a waiver necessary to waive the
defaults or events of default occurring under the 2003 Note Purchase
Agreement which are similar to the Events of Default described in Section 1
of this Waiver, and such waiver shall be reasonably satisfactory in form
and substance to the Noteholders and their special counsel (including,
without limitation, with respect to any waiver thereunder not expiring
before the end of the Waiver Period hereunder);
(e) the Company shall have furnished to the Noteholders and their
special counsel an executed copy of a waiver necessary to waive the
defaults or events of default occurring under the 2006 Note Purchase
Agreement which are similar to the Events of Default described in Section 1
of this Waiver, and such waiver shall be reasonably satisfactory in form
and substance to the Noteholders and their special counsel (including,
without limitation, with respect to any waiver thereunder not expiring
before the end of the Waiver Period hereunder);
(f) the Company shall have furnished to the Noteholders and their
special counsel an executed copy of an amendment, modification, waiver or
consent necessary to waive any default, event of default, termination event
or amortization event occurring under the Securitization Facility resulting
from any cross default to the Note Purchase Agreement based on the
Company's non-compliance with Sections 7.1(d) and 11.3 thereof and a cross
default to the Bank Credit Agreement based on similar events of default
thereunder, and any such amendment, modification, waiver or consent shall
be reasonably satisfactory in form and substance to the Noteholders and
their special counsel (including, without limitation, with respect to any
6
waiver thereunder not expiring before the end of the Waiver Period
hereunder); and
(g) a statement of the Company's and its Subsidiaries' cash balances
as of the close of business on Friday, November 10, 2006, certified as true
and correct by a Senior Financial Officer.
SECTION 4. CONDITIONS SUBSEQUENT.
(a) This Waiver shall be subject to the condition subsequent that each
holder of Series A Notes shall have received on or before November 15, 2006, a
waiver fee, whether or not such holder has signed this Waiver, in an amount
equal to 0.22% of the aggregate outstanding principal amount of the Series A
Notes held by such holder of Series A Notes. Such fee shall be deemed earned
when paid and shall not be subject to recovery or repayment in the event this
Waiver is terminated or rescinded for any reason.
(b) This Waiver shall be further subject to the condition subsequent that
the Noteholders shall have received, within 10 Business Days from the date
hereof, a copy of the resolutions of the Board of Directors of the Company
authorizing the execution, delivery and performance by the Company of this
Waiver, certified by its Secretary or an Assistant Secretary, together with
documentation evidencing all other proceedings taken in connection with the
transactions contemplated by this Waiver, and all documents necessary to the
consummation thereof, in each case, which shall be reasonably satisfactory in
form and substance to the Noteholders and Xxxxxxx and Xxxxxx LLP, their special
counsel.
(c) This Waiver shall be further subject to the condition subsequent that
the Company shall pay the reasonable fees and disbursements of the Noteholders'
special counsel, Xxxxxxx and Xxxxxx LLP, incurred in connection with the
negotiation, preparation, execution and delivery of this Waiver and the
transactions contemplated hereby within one (1) Business Day from the date that
such fees and disbursements are invoiced to the Company. Further, upon receipt
of any supplemental statement after the initial invoice, the Company will pay
such additional fees and disbursements of the Noteholders' special counsel which
were not reflected in their accounting records as of the time of the delivery of
the initial statement of fees and disbursements. The payment of the fees and
disbursements pursuant to this Section 4(c) does not preclude the Noteholders'
rights to indemnification and reimbursement for other costs and expenses as
provided in Section 16 of the Note Purchase Agreement.
SECTION 5. COVENANTS.
In addition to and without limiting the Company's obligations under the
Note Purchase Agreement (and notwithstanding anything to the contrary in the
Note Purchase Agreement), the Company covenants and agrees that at all times
from the date hereof and continuing through April 15, 2007:
(a) the Company will not at any time permit Consolidated Debt to exceed
$520,762,617.58;
7
(b) the Company will not, and will not permit any of its Subsidiaries to,
at any time, directly or indirectly create, incur, assume, guarantee, or
otherwise become liable in respect of, (i) in the case of the Company, any Debt
secured by Liens on any of its properties or assets (including, without
limitation, any document or instrument in respect of goods or accounts
receivable), and (ii) in the case of Subsidiaries, any Debt (whether secured or
unsecured) or indebtedness in respect of the Permitted Receivables
Securitization Program, except, in each case, (A) any Debt (secured or
unsecured) outstanding on the date hereof, (B) Liens incurred on receivables,
related assets and collections of the Company or a Subsidiary in connection with
such assets being transferred to a Special Purpose Subsidiary pursuant to a
Permitted Receivables Securitization Program as permitted in accordance with
Section 5(f) of this Waiver and (C) indebtedness of one or more Special Purpose
Subsidiaries incurred in connection with a Permitted Receivables Securitization
Program not exceeding $75,401,750 (not including obligations in respect of fees,
expenses, indemnities and other reimbursement obligations permitted under such
Permitted Receivables Securitization Program) in the aggregate at any time, and
Liens on the assets of such Special Purpose Subsidiaries securing such Permitted
Receivables Securitization Program;
(c) the Company will not, and will not permit any Subsidiary to, at any
time, make any Restricted Payment (as defined below), except (i) Restricted
Payments from Subsidiaries to the Company, (ii) regularly scheduled quarterly
dividends to the Company's shareholders not to exceed $0.0125 per share, (iii)
payments of Revolving Credit Advances (as defined in the Bank Credit Agreement)
under the Bank Credit Agreement made in the ordinary course of borrowing,
repaying and reborrowing, provided the balance of the Revolving Credit Advances
under the Bank Credit Agreement does not at any time fall below $157,893,617.58,
provided, however, the Company may reduce the balance of and pay back Revolving
Credit Advances below $157,893,617.58 if any payment of Revolving Credit
Advances below such balance is paid on a pro rata basis among the Series A Notes
(subject to Section 8.2 of the Note Purchase Agreement), 2003 Notes, 2006 Notes
and Bank Credit Agreement, (iv) payments of principal and interest by a Special
Purpose Subsidiary in respect of indebtedness incurred under a Permitted
Receivables Securitization Program (which, for avoidance of doubt, includes
periodic repayments of capital or periodic reinvestments of purchaser interests
under such Permitted Receivables Securitization Program), provided that at the
time of such payment and after giving effect thereto, the Company and its
Subsidiaries are in compliance with the terms of Section 5(b) of this Waiver and
(v) payment by the Company of its checking overdraft with National City Bank
provided such payment is made with Revolving Credit Advances under the Bank
Credit Agreement;
(d) the Company will not, and will not permit any Subsidiary to, at any
time, make any Investment (as defined below), except (i) Investments outstanding
on the date hereof, (ii) loans to one specific customer of the Company for short
term liquidity not to exceed an aggregate outstanding principal amount at any
time of $2,000,000, (iii) Investments in cash and cash equivalents (as
determined in accordance with GAAP) and (iv) inter-company loans for
inter-company financing purposes in the ordinary course of business and
consistent with past practice, provided that with respect to any loans made from
a Subsidiary to the Company, such loans are unsecured and subordinated to the
Series A Notes on terms and conditions satisfactory to the Required Holders and
their counsel, and provided further, in each case under this subclause (iv), so
9
long as immediately before and after giving effect to any such loans, no Default
or Event of Default would exist;
(e) the Company will ensure at all times (i) that the "Aggregate Revolving
Credit Commitment" (as defined in the Bank Credit Agreement) will not be less
than $500,000,000 and that the Company shall be permitted to draw thereon and
(ii) that the "Termination Date" shall not be on a date prior to January 14,
2010;
(f) the Company will not, and will not permit any Subsidiary to, at any
time, make any Transfer, other than (i) inventory sold in the ordinary course of
business on customary terms, (ii) the sale by a Subsidiary of a building located
in Switzerland with approximate net sale proceeds of $3,000,000 (which such
proceeds will be used in the ordinary course of business of such Subsidiary and
in compliance with the Note Purchase Agreement, as modified by this Waiver),
(iii) Transfers of receivables, related assets and collections owned by the
Company or a Subsidiary being transferred to a Special Purpose Subsidiary for
fair market value pursuant to a Permitted Receivables Securitization Program
provided that at the time of such Transfer and after giving effect thereto, the
Company and its Subsidiaries are in compliance with the terms of Section 5(b) of
this Waiver and (iv) Transfers related to Investments permitted pursuant to
Section 5(d)(iv) of this Waiver;
(g) on the Monday of each week (or the next Business Day if Monday is a
holiday), the Company will furnish to each Noteholder, a certified statement of
the Company's and its Subsidiaries' cash balances and the Revolving Credit
Advances under the Bank Credit Agreement, in each case, as of the close of
business on the Friday of the immediately preceding week (or the first Business
Day immediately preceding Friday if Friday is a holiday);
(h) if at any time the Company or any Subsidiary shall enter into any
agreement relating to or amending any terms or conditions applicable to any
agreement relating to any of its Debt in excess of $30,000,000 which includes
covenants or defaults not substantially provided for in the Note Purchase
Agreement, as modified by this Waiver, or more favorable to the lender or
lenders thereunder than those provided for in the Note Purchase Agreement, as
modified by this Waiver, then the Company shall promptly so advise the
Noteholders, and thereupon, if the Required Holders shall so request, upon
notice to the Company, the Company shall enter into an amendment to the Note
Purchase Agreement providing for substantially the same covenants, defaults and
other terms and conditions as those provided for in such agreement to the extent
required and as may be selected by the Required Holders; and in addition to the
forgoing, any covenants or defaults or similar provisions (which include,
without limitation, any provisions requiring mandatory prepayments or
defeasance, subject, however, in each case to Section 8.2 of the Note Purchase
Agreement) in the Bank Credit Agreement or any agreements or instruments
executed in connection therewith not substantially provided for in the Note
Purchase Agreement, as modified by this Waiver, or more favorable to the Banks
than those provided for in the Note Purchase Agreement, as modified by this
Waiver, are hereby incorporated into the Note Purchase Agreement to the same
extent as if set forth herein, and no subsequent amendment, waiver termination
or modification thereof shall affect any such covenants, terms, conditions or
defaults as incorporated herein;
9
(i) the Company will not, and will not permit any Subsidiary to, (i) enter
into any agreement restricting the ability of the Company and its Subsidiaries
to amend or modify the Note Purchase Agreement or Series A Notes or any document
or instrument executed in connection therewith, except as set forth in the
waiver/amendment to the Bank Credit Agreement referred to in Section 3(c)
hereof, (ii) enter into any agreement or arrangement requiring any defeasance of
the Bank Credit Agreement, (iii) amend, supplement or otherwise modify the Bank
Credit Agreement or any agreements or instruments executed in connection
therewith other than pursuant to the waiver/amendment to the Bank Credit
Agreement referred to in Section 3(c) hereof or (iv) pay or agree to pay any
fee, interest or other compensation or consideration to the Agent or Banks under
the Bank Credit Agreement other than as required by the Bank Credit Agreement in
effect on the Waiver Effective Date, as modified by the waiver/amendment to the
Bank Credit Agreement referred to in Section 3(c); and
(j) it shall be an Event of Default under Section 12(f) of the Note
Purchase Agreement if the Company or any Subsidiary is in default in the
performance of or compliance with any other term of any evidence of any Debt
(other than any term under the Note Purchase Agreement and the Series A Notes),
that individually or together with such other Debt as to which any such failure
exists has an aggregate outstanding principal amount of at least $5,000,000 (or
its equivalent in other applicable currencies), or of compliance of any
mortgage, indenture or other agreement relating thereto or any other condition
exists, and as a consequence of such default or condition such Debt has become,
or has been declared (or one or more Persons are entitled to declare such Debt
to be), due and payable before its stated maturity or before its regularly
scheduled dates of payment.
For purposes of this Section 5,
"Investment" means (i) any investment, made in cash or by delivery of
property, by either of the Company or any of its Subsidiaries in any Person
(other than an existing Subsidiary), whether by acquisition of stock, debt or
other obligation or security, or by loan, guaranty, advance, extension of credit
(other than accounts receivable arising from the sale of goods and services in
the ordinary course of business of the Company and its Subsidiaries), capital
contribution or otherwise or (ii) any transaction, or any series of related
transactions, by which the Company or any of its Subsidiaries acquires any
ongoing business or all or substantially all of the assets of, any firm,
corporation or division thereof, whether through purchase of assets, purchase of
stock, merger, amalgamation or otherwise; and
"Restricted Payment" means, with respect to the Company and any Subsidiary,
(i) any dividend or other distribution (whether in cash, securities or other
property) with respect to any capital stock or other equity interest of the
Company or such Subsidiary, or any payment (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, retirement, acquisition, cancellation or termination of
any capital stock or other equity interest of the Company or such Subsidiary and
(ii) any payment or other distribution (whether in cash, securities or other
property) of or in respect of principal of any Debt (other than a pro rata
payment or distribution among the Series A Notes (subject to Section 8.2 of the
Note Purchase Agreement), 2003 Notes, 2006 Notes and Bank Credit Agreement) or
10
indebtedness in respect of the Permitted Receivables Securitization Program, or
any payment or other distribution (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of the
purchase, redemption, defeasance or termination of any Debt (other than a pro
rata payment or distribution among the Series A Notes (subject to Section 8.2 of
the Note Purchase Agreement), 2003 Notes, 2006 Notes and Bank Credit Agreement)
or indebtedness in respect of the Permitted Receivables Securitization Program.
In addition to the foregoing, the Company shall use its best efforts to
begin the process of obtaining, and shall continue to diligently pursue, a
written rating on its long term senior unsecured debt from any nationally
recognized statistical rating organization.
Further, the Company agrees that at a mutually agreeable time and location
in New York, New York, on Thursday, November 30, 2006 (or, if such date becomes
reasonably impracticable, such other date on or prior to December 8, 2006, as
reasonably agreed to between the Company and the Noteholders), the Chief
Financial Officer and Treasurer of the Company will meet with Noteholders who
choose to attend such meeting, at which meeting shall be reviewed the business,
operations, properties, prospects and financial and other condition of the
Company and its Subsidiaries and the measures being taken by the Company with
respect to a recapitalization of the Company and its Subsidiaries.
The Company hereby acknowledges and agrees that its failure to comply with
the covenants and agreements under this Section 5 shall constitute an immediate
Event of Default under Section 12(c) of the Note Purchase Agreement.
SECTION 6. MISCELLANEOUS.
Section 6.1. In order to induce the Noteholders to enter into this Waiver,
the Company acknowledges and agrees that: (a) neither the Company nor any of its
Subsidiaries has any claim or cause of action against any of the Noteholders or
any of their respective directors, trustees, officers, employees or agents
(collectively, the "Released Parties") relating to or arising out of the Note
Purchase Agreement or Series A Notes or any of the transactions related thereto;
(b) neither the Company nor any of its Subsidiaries has any offset right, right
of recoupment, counterclaim or defense of any kind against any of their
respective obligations, indebtedness or liabilities to any of the Released
Parties; and (c) each of the Released Parties has heretofore properly performed
and satisfied in a timely manner all of its obligations to the Company and its
Subsidiaries under the Note Purchase Agreement. Notwithstanding this
representation and as further consideration for the agreements and
understandings herein, the Company, on behalf of itself and its employees,
agents, executors, heirs, successors and assigns (the "Releasing Parties"),
hereby releases the Noteholders, its respective predecessors, officers,
directors, trustees, employees, agents, attorneys, affiliates, subsidiaries,
successors and assigns, from any liability, claim, right or cause of action
which now exists or hereafter arises as a result of acts, omissions or events
occurring on or prior to the date hereof, whether known or unknown, including
but not limited to claims arising from or in any way related to the Note
Purchase Agreement or Series A Notes or any of the transactions relating
thereto. No Released Party shall be liable with respect to, and the Company
hereby waives, releases and agrees not to xxx for, any special, indirect or
consequential damages relating to the Note Purchase Agreement and Series A Notes
11
or arising out of its activities in connection herewith or therewith (whether
before, on or after the date hereof).
Section 6.2. This Waiver shall be construed in connection with and as part
of the Note Purchase Agreement, and except as modified and expressly amended by
this Waiver, all terms, conditions and covenants contained in the Note Purchase
Agreement are hereby ratified and shall be and remain in full force and effect.
Section 6.3. Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and delivery of this
Waiver may refer to the Note Purchase Agreement without making specific
reference to this Waiver but nevertheless all such references shall include this
Waiver unless the context otherwise requires.
Section 6.4. The descriptive headings of the various Sections or parts of
this Waiver are for convenience only and shall not affect the meaning or
construction of any of the provisions hereof.
Section 6.5. This Waiver shall be governed by and construed in accordance
with the law of the State of New York excluding choice-of-law principles of the
law of such State that would require the application of laws of a jurisdiction
other than such State.
Section 6.6. The provisions of Section 5 and Section 6.1 of this Waiver
shall survive and continue in effect following any termination, rescission or
expiration of this Waiver.
12
Section 6.7. This Waiver may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall constitute but
one and the same instrument. Delivery of an executed counterpart of a signature
page to this Waiver by facsimile shall be effective as delivery of a manually
executed counterpart of this Waiver.
INVACARE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
13
The foregoing is hereby agreed to as of the date thereof:
AMERICAN UNITED LIFE INSURANCE COMPANY
By /s/ Xxxx X. Xxxxx
Its V.P. Fixed Income Securities
$8,000,000 Series A
The foregoing is hereby agreed to as of the date thereof:
J. ROMEO & CO. (as nominee for MONY
Life Insurance Company)
By /s/ J Romeo & Co
/s/ Xxxxx Xxxxxx
Its Partner
$9,000,000 Series A
J. ROMEO & CO. (as nominee for MONY
Life Insurance Company)
By /s/ J Romeo & Co
/s/ Xxxxx Xxxxxx
Its Partner
$10,000,000 Series A
The foregoing is hereby agreed to as of the date thereof:
HARE & CO. (as nominee for MONY Life Insurance
Company)
By________________________________
Its
$1,000,000 Series A
The foregoing is hereby agreed to as of the date thereof:
THE BALTIMORE LIFE INSURANCE COMPANY
By AllianceBernstein LP
its Investment Advisor
By /s/ Xxxxxxx Xxxxxxxxx
Name Xxxxxxx Xxxxxxxxx
Title: Senior Vice President
$2,000,000 Series A
The foregoing is hereby agreed to as of the date thereof:
THE OHIO CASUALTY INSURANCE COMPANY
By /s/ Xxxxx X. Xxxxx
Its Senior Vice President, General Counsel &
Secretary
$10,000,000 Series A
The foregoing is hereby agreed to as of the date thereof:
NATIONWIDE LIFE INSURANCE COMPANY
By /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Its Authorized Signatory
$10,000,000 Series A
The foregoing is hereby agreed to as of the date thereof:
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC, a
Delaware limited liability company,
its authorized signatory
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: EPP Counsel
By: /s/ Xxxxx Xxxxxxxxxx
Name: Xxxxx Xxxxxxxxxx
Title: Counsel
$20,000,000 Series A
The foregoing is hereby agreed to as of the date thereof:
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Managing Director, Special Situations
$5,000,000 Series A
TIAA-CREF LIFE INSURANCE COMPANY
By: Teachers Insurance and Annuity Association of
America, as Investment Manager
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Managing Director, Special Situations
$5,000,000 Series A
