Exhibit 10.1
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INVACARE CORPORATION
NOTE PURCHASE AGREEMENT
Dated as of April 27, 2006
$150,000,000 6.15% Senior Notes Due April 27, 2016
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TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1. AUTHORIZATION OF NOTES.................................................................1
SECTION 2. SALE AND PURCHASE OF NOTES.............................................................1
SECTION 3. CLOSING................................................................................2
SECTION 4. CONDITIONS TO CLOSING..................................................................2
Section 4.1. Representations and Warranties.........................................................2
Section 4.2. Performance; No Default................................................................2
Section 4.3. Compliance Certificates................................................................2
Section 4.4. Opinions of Counsel....................................................................3
Section 4.5. Purchase Permitted by Applicable Law, Etc..............................................3
Section 4.6. Sale of Other Notes....................................................................3
Section 4.7. Payment of Special Counsel Fees........................................................3
Section 4.8. Private Placement Number...............................................................4
Section 4.9. Changes in Structure...................................................................4
Section 4.10. Proceedings and Documents..............................................................4
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..........................................4
Section 5.1. Organization; Power and Authority......................................................4
Section 5.2. Authorization, Etc.....................................................................4
Section 5.3. Disclosure.............................................................................4
Section 5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates.......................5
Section 5.5. Financial Statements...................................................................6
Section 5.6. Compliance with Laws, Other Instruments, Etc...........................................6
Section 5.7. Governmental Authorizations, Etc.......................................................6
Section 5.8. Litigation; Observance of Agreements, Statutes and Orders..............................6
Section 5.9. Taxes..................................................................................7
Section 5.10. Title to Property; Leases..............................................................7
Section 5.11. Licenses, Permits, Etc.................................................................7
Section 5.12. Pension Plans..........................................................................8
Section 5.13. Private Offering by the Company........................................................9
Section 5.14. Use of Proceeds; Margin Regulations....................................................9
Section 5.15. Existing Debt; Future Liens............................................................9
Section 5.16. Foreign Assets Control Regulations, Etc...............................................10
Section 5.17. Status under Certain Statutes.........................................................10
Section 5.18. Environmental Matters.................................................................10
SECTION 6. REPRESENTATIONS OF THE PURCHASER......................................................11
Section 6.1. Purchase for Investment...............................................................11
Section 6.2. Source of Funds.......................................................................11
SECTION 7. INFORMATION AS TO COMPANY.............................................................12
Section 7.1. Financial and Business Information....................................................12
Section 7.2. Officer's Certificate.................................................................15
Section 7.3. Inspection............................................................................15
SECTION 8. PREPAYMENT OF THE NOTES...............................................................16
Section 8.1. Required Prepayments..................................................................16
Section 8.2. Optional Prepayments of Notes with Make-Whole Amount..................................16
Section 8.3. Allocation of Note Partial Prepayments................................................16
Section 8.4. Notes; Maturity; Surrender, Etc.......................................................16
Section 8.5. Purchase of Notes.....................................................................17
Section 8.6. Offer to Prepay upon Change in Control, Etc...........................................17
Section 8.7. Make-Whole Amount.....................................................................19
SECTION 9. INTEREST ON THE NOTES.................................................................20
SECTION 10. AFFIRMATIVE COVENANTS.................................................................20
Section 10.1. Compliance with Law...................................................................20
Section 10.2. Insurance.............................................................................20
Section 10.3. Maintenance of Properties.............................................................21
Section 10.4. Payment of Taxes and Claims...........................................................21
Section 10.5. Corporate Existence, Etc..............................................................21
Section 10.6. Pari Passu Obligations................................................................21
SECTION 11. NEGATIVE COVENANTS....................................................................22
Section 11.1. Transactions with Affiliates..........................................................22
Section 11.2. Merger, Consolidation, Etc............................................................22
Section 11.3. Maximum Amount of Consolidated Debt...................................................23
Section 11.4. Priority Debt.........................................................................23
Section 11.5. Subsidiary Debt.......................................................................23
Section 11.6. Consolidated Net Worth................................................................24
Section 11.7. Liens.................................................................................24
Section 11.8. Sale of Assets, Etc...................................................................27
Section 11.9. Line of Business.....................................................................29
SECTION 12. EVENTS OF DEFAULT.....................................................................29
SECTION 13. REMEDIES ON DEFAULT, ETC..............................................................32
Section 13.1. Acceleration..........................................................................32
Section 13.2. Other Remedies........................................................................32
Section 13.3. Rescission............................................................................33
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Section 13.4. No Waivers or Election of Remedies, Expenses, Etc.....................................33
SECTION 14. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.........................................33
Section 14.1. Registration of Notes.................................................................33
Section 14.2. Transfer and Exchange of Notes........................................................33
Section 14.3. Replacement of Notes..................................................................34
SECTION 15. PAYMENTS ON NOTES.....................................................................34
Section 15.1. Place of Payment......................................................................34
Section 15.2. Home Office Payment...................................................................34
SECTION 16. EXPENSES, ETC.........................................................................35
Section 16.1. Transaction Expenses..................................................................35
Section 16.2. Survival..............................................................................35
SECTION 17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT..........................35
SECTION 18. AMENDMENT AND WAIVER..................................................................36
Section 18.1. Requirements..........................................................................36
Section 18.2. Solicitation of Holders of Notes......................................................36
Section 18.3. Binding Effect, Etc...................................................................36
Section 18.4. Notes Held by Company, Etc............................................................37
SECTION 19. NOTICES...............................................................................37
SECTION 20. REPRODUCTION OF DOCUMENTS.............................................................37
SECTION 21. CONFIDENTIAL INFORMATION..............................................................38
SECTION 22. SUBSTITUTION OF PURCHASER.............................................................39
SECTION 23. ADDITIONAL NOTE PROVISIONS............................................................40
SECTION 24. MISCELLANEOUS.........................................................................40
Section 24.1. Successors and Assigns................................................................40
Section 24.2. Payments Due on Non-Business Days.....................................................40
Section 24.3. Severability..........................................................................40
Section 24.4. Construction..........................................................................40
Section 24.5. Counterparts..........................................................................40
Section 24.6. Governing Law.........................................................................41
Section 24.7 Jurisdiction and Process; Waiver of Jury Trial........................................41
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SCHEDULES
SCHEDULE A -- Information Relating to Purchasers
SCHEDULE B -- Defined Terms
SCHEDULE C -- Wiring Instructions at Closing
SCHEDULE 4.9 -- Changes in Corporate Structure
SCHEDULE 5.3 -- Disclosure Materials
SCHEDULE 5.4 -- Ownership of the Company; Affiliates
SCHEDULE 5.5 -- Financial Statements
SCHEDULE 5.8 -- Certain Litigation
SCHEDULE 5.11 -- Licenses, Permits, Etc.
SCHEDULE 5.12(g) -- Certain Pension Plans
SCHEDULE 5.14 -- Use of Proceeds; Margin Stock
SCHEDULE 5.15 -- Existing Indebtedness
SCHEDULE 11.7 -- Existing Liens
SCHEDULE B-C -- Competitors
SCHEDULE B-MT -- Management Team
EXHIBITS
EXHIBIT 1 -- Form of 6.15% Senior Note due April 27, 2016
EXHIBIT 4.4(a) -- Form of Closing Opinion of General Counsel for the Company
EXHIBIT 4.4(b) -- Form of Closing Opinion of New York Special Counsel for the Company
EXHIBIT 4.4(c) -- Form of Closing Opinion of Ohio Special Counsel for the Company
INVACARE CORPORATION
Xxx Xxxxxxxx Xxx
Xxxxxx, Xxxx 00000
$150,000,000 6.15% Senior Notes Due April 27, 2016
Dated as of April 27, 2006
To Each of the Purchasers Listed
in the Attached Schedule A
Ladies and Gentlemen:
INVACARE CORPORATION, an Ohio corporation (together with its permitted
successors, the "Company"), hereby agrees with you as follows:
SECTION 1. AUTHORIZATION OF NOTES.
The Company will authorize the issue and sale of $150,000,000 aggregate
principal amount of its 6.15% Senior Notes due April 27, 2016 (the "Notes," such
term to include each Note delivered pursuant to this Agreement and the Other
Agreements (as hereinafter defined) and any such notes issued in substitution
therefor pursuant to Section 14 of this Agreement or the Other Agreements). The
Notes shall be substantially in the form set out in Exhibit 1 with such changes
therefrom, if any, as may be approved by you, the Other Purchasers (as
hereinafter defined) and the Company. Certain capitalized terms used in this
Agreement are defined in Schedule B; references to a "Schedule" or an "Exhibit"
are, unless otherwise specified, to a Schedule or an Exhibit attached to this
Agreement.
SECTION 2. SALE AND PURCHASE OF NOTES.
Subject to the terms and conditions of this Agreement, the Company will
issue and sell to you and you will purchase from the Company, at the Closing
provided for in Section 3, Notes in the principal amount specified below your
name in Schedule A at the purchase price of 100% of the principal amount
thereof. Contemporaneously with entering into this Agreement, the Company is
entering into separate
Note Purchase Agreements (the "Other Agreements")
identical with this Agreement with each of the other purchasers named in
Schedule A (the "Other Purchasers"), providing for the sale at such Closing to
each of the Other Purchasers of Notes in the principal amount specified below
its name in Schedule A. Your obligation hereunder and the obligations of the
Other Purchasers under the Other Agreements are several and not joint
obligations and you shall have no obligation under any Other Agreement and no
liability to any Person for the performance or non-performance by any Other
Purchaser thereunder.
SECTION 3. CLOSING.
The sale and purchase of the Notes to be purchased by you and the Other
Purchasers shall occur at the offices of Xxxxxxx and Xxxxxx LLP, at 10:00 a.m.,
local time, at a closing (the "Closing") on April 27, 2006 or on such other
Business Day thereafter as may be agreed upon by the Company and you and the
Other Purchasers. At the Closing the Company will deliver to you the Notes to be
purchased by you in the form of a single Note (or such greater number of Notes
in denominations of at least $100,000 as you may request), dated the date of the
Closing and registered in your name (or in the name of your nominee), against
delivery by you to the Company or its order of immediately available funds in
the amount of the purchase price therefor by wire transfer of immediately
available funds for the account of the Company as indicated on Schedule C. If at
the Closing the Company shall fail to tender such Notes to you as provided above
in this Section 3, or any of the conditions specified in Section 4 shall not
have been fulfilled to your satisfaction, you shall, at your election, be
relieved of all further obligations under this Agreement, without thereby
waiving any rights you may have by reason of such failure or such
nonfulfillment.
SECTION 4. CONDITIONS TO CLOSING.
Your obligation to purchase and pay for the Notes to be sold to you at the
Closing is subject to the fulfillment to your satisfaction, prior to or at the
Closing, of the following conditions:
Section 4.1. Representations and Warranties. The representations and
warranties of the Company in this Agreement shall be correct in all material
respects when made and at the time of the Closing.
Section 4.2. Performance; No Default. The Company shall have performed and
complied with all agreements and conditions contained in this Agreement required
to be performed or complied with by it prior to or at the Closing and, after
giving effect to the issue and sale of the Notes (and the application of the
proceeds thereof as contemplated by Schedule 5.14) no Default or Event of
Default shall have occurred and be continuing. Neither the Company nor any
Subsidiary shall have entered into any transaction since the date of the
Memorandum that would have been prohibited by Sections 11.1 through 11.8 had
such Sections applied since such date and, with respect to Section 11.5, a
Subsidiary shall be able to borrow at least One Dollar of Debt under said
Section 11.5 as of the date of Closing.
Section 4.3. Compliance Certificates.
(a) Officer's Certificates. The Company shall have delivered to you an
Officer's Certificate, dated the date of the Closing, certifying that the
conditions specified in Section 4.1, Section 4.2 and Section 4.9 have been
fulfilled.
(b) Secretary's Certificates. The Company shall have delivered to you a
certificate of its Secretary or one of its Assistant Secretaries, dated the date
of the Closing, certifying as to the resolutions attached thereto and other
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proceedings relating to the authorization, execution and delivery of the Notes,
this Agreement and the Other Agreements.
Section 4.4. Opinions of Counsel. You shall have received opinions in form
and substance satisfactory to you, dated the date of the Closing,
(a) from Xxxx X. XxXxxxx, Esq., General Counsel of the Company,
substantially in the form set out in Exhibit 4.4(a) and covering such other
matters incident to the transactions contemplated hereby as you or your
counsel may reasonably request (and the Company hereby instructs its
counsel to deliver such opinion to you),
(b) from Xxxxxx, Xxxxxxx & Xxxxx LLP,
New York special counsel for the
Company, substantially in the form set out in Exhibit 4.4(b) and covering
such other matters incident to the transactions contemplated hereby as you
or your counsel may reasonably request (and the Company hereby instructs
its counsel to deliver such opinion to you),
(c) from Xxxxxx, Halter & Xxxxxxxx LLP, Ohio special counsel for the
Company, substantially in the form set out in Exhibit 4.4(c) and covering
such other matters incident to the transactions contemplated hereby as you
or your counsel may reasonably request (and the Company hereby instructs
its counsel to deliver such opinion to you), and
(d) from Xxxxxxx and Xxxxxx LLP, your special counsel in connection
with the transactions contemplated hereby.
Section 4.5. Purchase Permitted by Applicable Law, Etc. On the date of the
Closing your purchase of Notes shall (a) be permitted by the laws and
regulations of each jurisdiction to which you are subject, without recourse to
provisions (such as section 1405(a)(8) of the
New York Insurance Law) permitting
limited investments by insurance companies without restriction as to the
character of the particular investment, (b) not violate any applicable law or
regulation (including, without limitation, Regulation U, T or X of the Board of
Governors of the Federal Reserve System) and (c) not subject you to any tax,
penalty or liability under or pursuant to any applicable law or regulation,
which law or regulation was not in effect on the date of your execution and
delivery of this Agreement. If requested by you, you shall have received an
Officer's Certificate certifying as to such matters of fact as you may
reasonably specify to enable you to determine whether such purchase is so
permitted.
Section 4.6. Sale of Other Notes. Contemporaneously with the Closing the
Company shall sell to the Other Purchasers and the Other Purchasers shall
purchase the Notes to be purchased by them at the Closing, as specified in
Schedule A.
Section 4.7. Payment of Special Counsel Fees. Without limiting the
provisions of Section 16.1, the Company shall have paid on or before the
Closing, the fees, charges and disbursements of your special counsel referred to
in Section 4.4 to the extent reflected in a statement of such counsel rendered
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to the Company at least one Business Day prior to the date of the Closing.
Section 4.8. Private Placement Number. A Private Placement Number issued by
Standard & Poor's CUSIP Service Bureau (in cooperation with the Securities
Valuation Office of the National Association of Insurance Commissioners) shall
have been obtained for the Notes.
Section 4.9. Changes in Structure. Except as specified in Schedule 4.9, the
Company shall not have changed its jurisdiction of incorporation or been a party
to any merger or consolidation and shall not have succeeded to all or any
substantial part of the liabilities of any other entity, at any time following
the date of the most recent financial statements referred to in Schedule 5.5.
Section 4.10. Proceedings and Documents. All corporate and other
proceedings in connection with the transactions contemplated by this Agreement
and all documents and instruments incident to such transactions shall be
satisfactory to you and your special counsel, and you and your special counsel
shall have received all such counterpart originals or certified or other copies
of such documents as you or they may reasonably request.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to you, as of the date of this
Agreement, that:
Section 5.1. Organization; Power and Authority. The Company is a
corporation, duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and is duly qualified as a foreign
corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The Company
has the corporate power and authority to own or hold under lease the properties
it purports to own or hold under lease, to transact the business it transacts
and proposes to transact, to execute and deliver this Agreement, the Other
Agreements and the Notes and to perform the provisions hereof and thereof.
Section 5.2. Authorization, Etc. This Agreement, the Other Agreements and
the Notes have been duly authorized by all necessary corporate action on the
part of the Company, and this Agreement constitutes, and upon execution and
delivery thereof each Note will constitute, a legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by (i) applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law or in respect of specific performance).
Section 5.3. Disclosure. The Company, through its agent, Banc of America
Securities LLC, has delivered to you and each Other Purchaser a copy of a
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Private Placement Memorandum, dated March 2006 (the "Memorandum"), relating to
the transactions contemplated hereby. The Memorandum fairly describes, in all
material respects, the general nature of the business and principal properties
of the Company and its Subsidiaries. Except as disclosed in Schedule 5.3, this
Agreement, the Memorandum, the documents, certificates or other writings
delivered to you by or on behalf of the Company in connection with the
transactions contemplated hereby and the financial statements listed in Schedule
5.5, taken as a whole, do not contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein (taken
as a whole) not misleading in light of the circumstances under which they were
made. Except as disclosed in the Memorandum or as expressly described in
Schedule 5.3, or in one of the documents, certificates or other writings
identified therein, or in the financial statements listed in Schedule 5.5, since
December 31, 2005, there has been no change in the financial condition,
operations, business, properties or prospects of the Company and its
Subsidiaries except changes that individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect. There is no fact known
to a Senior Financial Officer that could reasonably be expected to have a
Material Adverse Effect that has not been set forth herein or in the Memorandum
or in the other documents, certificates and other writings delivered to you by
or on behalf of the Company specifically for use in connection with the
transactions contemplated hereby, provided that no representation is made as to
general economic conditions.
Section 5.4. Organization and Ownership of Shares of Subsidiaries;
Affiliates. (a) Schedule 5.4 contains (except as noted therein) complete and
correct lists (i) of the Company's Subsidiaries, showing, as to each Subsidiary,
the correct name thereof, the jurisdiction of its organization and the
percentage of shares of each class of its capital stock or similar equity
interests outstanding owned by the Company and each other Subsidiary, (ii) of
the Company's Affiliates, other than Subsidiaries, and (iii) of the Company's
directors and senior officers.
(b) All of the outstanding shares of capital stock or similar equity
interests of each Subsidiary shown in Schedule 5.4 as being owned by the Company
and its Subsidiaries have been validly issued, are fully paid and nonassessable
and are owned by the Company or another Subsidiary free and clear of any Lien.
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or other
legal entity duly organized, validly existing and in good standing (to the
extent such concept is recognized) under the laws of its jurisdiction of
organization, and is duly qualified as a foreign corporation or other legal
entity and is in good standing in each jurisdiction in which such qualification
is required by law, other than those jurisdictions as to which the failure to be
so qualified or in good standing could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Each such Subsidiary
has the corporate or other power and authority to own or hold under lease the
properties it purports to own or hold under lease and to transact the business
it transacts and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject to any legal
restriction or any agreement (other than this Agreement and customary
limitations imposed by corporate law statutes) restricting the ability of such
Subsidiary to pay dividends out of profits or make any other similar
5
distributions of profits to the Company or any of its Subsidiaries that owns
outstanding shares of capital stock or similar equity interests of such
Subsidiary.
Section 5.5. Financial Statements. The Company has delivered to you and
each Other Purchaser copies of the financial statements of the Company and its
Subsidiaries listed on Schedule 5.5. All of said financial statements (including
in each case the related schedules and notes) fairly present, in all material
respects, the consolidated financial position of the Company and its
Subsidiaries as of the respective dates specified in such Schedule and the
consolidated results of their operations and cash flows for the respective
periods so specified and have been prepared in accordance with GAAP consistently
applied throughout the periods involved except as set forth in the notes thereto
(subject, in the case of any interim financial statements, to normal year-end
adjustments).
Section 5.6. Compliance with Laws, Other Instruments, Etc. The execution,
delivery and performance by the Company of this Agreement and the Notes will
not:
(a) contravene, result in any breach of, or constitute a default
under, or result in the creation of any Lien in respect of any property of
the Company or any Subsidiary under, any indenture, mortgage, deed of
trust, loan, purchase or credit agreement, lease, corporate charter, bylaws
or other constitutive document, or any other agreement or instrument to
which the Company or any Subsidiary is bound or by which the Company or any
Subsidiary or any of their respective properties may be bound or affected,
(b) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of any
court, arbitrator or Governmental Authority applicable to the Company or
any Subsidiary, or
(c) violate any provision of any statute or other rule or regulation
of any Governmental Authority applicable to the Company or any Subsidiary.
Section 5.7. Governmental Authorizations, Etc. No consent, approval or
authorization of, or registration, filing or declaration with, any Governmental
Authority is required in connection with the execution, delivery or performance
by the Company of this Agreement or the Notes, except for the filing in the
ordinary course of a copy of this Agreement in connection with the filing by the
Company of its Form 8-K.
Section 5.8. Litigation; Observance of Agreements, Statutes and Orders. (a)
Except as disclosed in Schedule 5.8, 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.
(b) Neither the Company nor any Subsidiary is in default under any term of
any agreement or instrument to which it is a party or by which it is bound, or
any order, judgment, decree or ruling of any court, arbitrator or Governmental
Authority or is in violation of any applicable law, ordinance, rule or
6
regulation (including, without limitation, Environmental Laws) of any
Governmental Authority, which default or violation, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
Section 5.9. Taxes. The Company and its Subsidiaries have filed all tax
returns that are required to have been filed in any jurisdiction, and have paid
all taxes shown to be due and payable on such returns and all other taxes and
assessments levied upon them or their properties, assets, income or franchises,
to the extent such taxes and assessments have become due and payable and before
they have become delinquent, except for any taxes and assessments (a) the amount
of which is not individually or in the aggregate Material or (b) the amount,
applicability or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which the Company or any Subsidiary,
as the case may be, has established adequate reserves in accordance with GAAP.
The Company knows of no basis for any other tax or assessment that could
reasonably be expected to have a Material Adverse Effect. The charges, accruals
and reserves on the books of the Company and its Subsidiaries in respect of
federal, state or other taxes for all fiscal periods are adequate. The federal
income tax liabilities of the Company and its Subsidiaries have been determined
by the Internal Revenue Service and paid for all fiscal years up to and
including the fiscal year ended December 31, 2002.
Section 5.10. Title to Property; Leases. The Company and its Subsidiaries
have good and sufficient title to their respective properties that individually
or in the aggregate are Material, including all such properties reflected in the
most recent audited balance sheet referred to in Section 5.5 or purported to
have been acquired by the Company or any Subsidiary after said date (except as
sold or otherwise disposed of in the ordinary course of business), in each case
free and clear of Liens prohibited by this Agreement. All leases that
individually or (with respect to similar groups of assets) in the aggregate are
Material are valid and subsisting and are in full force and effect in all
material respects.
Section 5.11. Licenses, Permits, Etc. Except as disclosed in Schedule 5.11:
(a) to the best knowledge of the Company, the Company and its
Subsidiaries own or possess all licenses, permits, franchises,
authorizations, patents, copyrights, service marks, trademarks and trade
names, or rights thereto, that are Material, without known conflict with
the rights of others;
(b) to the best knowledge of the Company, no product or practice of
the Company or any Subsidiary infringes in any material respect any
license, permit, franchise, authorization, patent, copyright, service xxxx,
trademark, trade name or other right owned by any other Person; and
(c) to the best knowledge of the Company, there is no Material
violation by any Person of any right of the Company or any Subsidiary with
respect to any patent, copyright, service xxxx, trademark, trade name or
other right owned or used by the Company or any of its Subsidiaries.
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Section 5.12. Pension Plans. (a) The Company and each ERISA Affiliate have
operated and administered each Plan (other than any Multiemployer Plan) in
compliance with all applicable laws except for such instances of noncompliance
as have not resulted in and could not reasonably be expected to result in a
Material Adverse Effect. Neither the Company nor any ERISA Affiliate has
incurred any liability in the nature of a penalty, excise tax or fine pursuant
to Title I or IV of ERISA or the penalty or excise tax provisions of the Code
relating to employee benefit plans (as defined in section 3 of ERISA), and no
event, transaction or condition has occurred or exists that could reasonably be
expected to result in the incurrence of any such liability by the Company or any
ERISA Affiliate, or in the imposition of any Lien on any of the rights,
properties or assets of the Company or any ERISA Affiliate, in either case
pursuant to Title I or IV of ERISA or to such penalty or excise tax provisions
or to section 401(a)(29) or 412 of the Code, other than such liabilities or
Liens as would not be individually or in the aggregate Material.
(b) The present value of the aggregate benefit liabilities under each of
the Plans subject to Title IV of ERISA (other than Multiemployer Plans),
determined as of the end of each such Plan's most recently ended plan year on
the basis of the actuarial assumptions specified for funding purposes in such
Plan's most recent actuarial valuation report, did not exceed the aggregate
current value of the assets of such Plan allocable to such benefit liabilities
by more than $10,000,000 in the case of any single Plan and by more than
$10,000,000 in the aggregate for all Plans. The term "benefit liabilities" has
the meaning specified in section 4001 of ERISA and the terms "current value" and
"present value" have the meaning specified in section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not incurred withdrawal
liabilities (and are not subject to contingent withdrawal liabilities) under
section 4201 or 4204 of ERISA in respect of Multiemployer Plans that
individually or in the aggregate are Material.
(d) The unfunded expected postretirement benefit obligation (determined as
of the last day of the Company's most recently ended fiscal year in accordance
with Financial Accounting Standards Board Statement No. 106, without regard to
liabilities attributable to continuation coverage mandated by section 4980B of
the Code) of the Company and its Subsidiaries is not Material.
(e) The execution and delivery of this Agreement and the issuance and sale
of the Notes hereunder will not involve any transaction that is subject to the
prohibitions of section 406 of ERISA or in connection with which a tax could be
imposed pursuant to section 4975(c)(1)(A)-(D) of the Code. The representation by
the Company in the first sentence of this Section 5.12(e) is made in reliance
upon and subject to the accuracy of your representation in Section 6.2 as to the
sources of the funds used to pay the purchase price of the Notes to be purchased
by you.
(f) All Non-US Pension Plans have been established, operated, administered
and maintained in material compliance with all laws, regulations and orders
applicable thereto, except where any failure to so comply could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Except where they could not, individually or in the aggregate,
8
reasonably be expected to have a Material Adverse Effect, all premiums,
contributions and any other amounts required to be paid pursuant to applicable
Non-US Pension Plan documents or applicable laws governing such Non-US Pension
Plans have been paid or accrued as required.
(g) The Multiemployer Plans in respect of which the Company or any ERISA
Affiliate makes contributions or has any liability or obligation are set forth
on Schedule 5.12(g). The Plans constituting "defined benefit plans" (as defined
in section 3(35) of ERISA) are set forth on Schedule 5.12(g).
Section 5.13. Private Offering by the Company. Neither the Company nor
anyone acting on its behalf has offered the Notes or any similar securities for
sale to, or solicited any offer to buy any of the same from, or otherwise
approached or negotiated in respect thereof with, any Person other than you, the
Other Purchasers and not more than forty-two (42) other Institutional Investors,
each of which has been offered the Notes at a private sale for investment.
Neither the Company nor anyone acting on its behalf has taken, or will take, any
action that would subject the issuance or sale of the Notes to the registration
requirements of section 5 of the Securities Act.
Section 5.14. Use of Proceeds; Margin Regulations. The Company will apply
the proceeds of the sale of the Notes as set forth in Schedule 5.14. No part of
the proceeds from the sale of the Notes hereunder will be used, directly or
indirectly, for the purpose of buying or carrying any margin stock within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System
(12 CFR 221), or for the purpose of buying or carrying or trading in any
securities under such circumstances as to involve the Company in a violation of
Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a
violation of Regulation T of said Board (12 CFR 220). Margin stock does not
constitute more than 5% of the value of the consolidated assets of the Company
and its Subsidiaries and the Company does not have any present intention that
margin stock will constitute more than 5% of the value of such assets. As used
in this Section, the terms "margin stock" and "purpose of buying or carrying"
shall have the meanings assigned to them in said Regulation U.
Section 5.15. Existing Debt; Future Liens. (a) Except as described therein,
Schedule 5.15 sets forth a complete and correct list of all outstanding Material
Debt of the Company and its Subsidiaries as of March 31, 2006, since which date
there has been no Material change in the amounts, interest rates, sinking funds,
installment payments or maturities of the Material Debt of the Company and its
Subsidiaries except as described in Schedule 5.15. Neither the Company nor any
of its Subsidiaries is in default and no waiver of default is currently in
effect, in the payment of any principal or interest on any Material Debt of the
Company or such Subsidiary and no event or condition exists with respect to any
Material Debt of the Company or such Subsidiary that would permit (or that with
notice or the lapse of time, or both, would permit) one or more Persons to cause
such Debt to become due and payable before its stated maturity or before its
regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15, neither the Company nor any
Subsidiary has agreed or consented to cause or permit in the future (upon the
9
happening of a contingency or otherwise) any of its property, whether now owned
or hereafter acquired, to be subject to a Lien not permitted by Section 11.7.
Section 5.16. Foreign Assets Control Regulations, Etc. Neither the sale of
the Notes by the Company hereunder nor its use of the proceeds thereof will
violate (i) the Trading with the Enemy Act, as amended, (ii) any of the foreign
assets control regulations of the United States Treasury Department (31 CFR,
Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto, (iii) Executive Order 13224, 66 Fed Reg 49,079 (2001),
issued by the President of the United States (Executive Order Blocking Property
and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism) (and neither the Company nor any Subsidiary is a "blocked
person" as described in Section 1 of such Executive Order or engages in any
dealings or transactions with or is otherwise associated with, any such blocked
person) or (iv) the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of
2001, Public Law 107-56 (October 26, 2001).
Section 5.17. Status under Certain Statutes. Neither the Company nor any
Subsidiary is subject to regulation under the Investment Company Act of 1940, as
amended, the Public Utility Holding Company Act of 2005, the ICC Termination Act
of 1995, as amended, or the Federal Power Act, as amended.
Section 5.18. Environmental Matters. Neither the Company nor any Subsidiary
has knowledge of any claim or has received any notice of any claim, and no
proceeding has been instituted raising any claim against the Company or any of
its Subsidiaries or any of their respective real properties now or formerly
owned, leased or operated by any of them or other assets, alleging any damage to
the environment or violation of any Environmental Laws, except, in each case,
such as could not reasonably be expected to result in a Material Adverse Effect.
Except as otherwise disclosed to you in writing:
(a) neither the Company nor any Subsidiary has knowledge of any facts
which would give rise to any claim, public or private, of violation of
Environmental Laws or damage to the environment emanating from, occurring
on or in any way related to real properties now or formerly owned, leased
or operated by any of them or to other assets or their use, except, in each
case, such as could not reasonably be expected to result in a Material
Adverse Effect;
(b) neither the Company nor any of its Subsidiaries has stored any
Hazardous Materials on real properties now or formerly owned, leased or
operated by any of them in a manner contrary to any Environmental Laws and
has not transported or disposed of any Hazardous Materials in a manner
contrary to any Environmental Laws in each case in any manner that could
reasonably be expected to result in a Material Adverse Effect; and
(c) all buildings on all real properties now owned, leased or operated
by the Company or any of its Subsidiaries are in compliance with applicable
Environmental Laws, except where failure to comply could not reasonably be
expected to result in a Material Adverse Effect.
10
SECTION 6. REPRESENTATIONS OF THE PURCHASER.
Section 6.1. Purchase for Investment. You represent that you are an
"accredited investor" within the meaning of Regulation D under the Securities
Act and that you are purchasing the Notes for your own account or for one or
more separate accounts maintained by you or for the account of one or more
pension or trust funds (or commingled pension trust funds) or for the account of
one or more "accredited investors" within the meaning of Regulation D under the
Securities Act for whom you are acting as investment manager, agent or
investment adviser, and not with a view to the distribution thereof, provided
that the disposition of your or their property shall at all times be within your
or their control. You understand that the Notes have not been registered and are
"restricted securities" under the Securities Act. You further understand that
the Notes may be resold only if registered pursuant to the provisions of the
Securities Act or if an exemption from registration is available, except under
circumstances where neither such registration nor such an exemption is required
by law, and that the Company is not required to and does not intend to register
the Notes.
Section 6.2. Source of Funds. You represent that at least one of the
following statements is an accurate representation as to each source of funds (a
"Source") to be used by you to pay the purchase price of the Notes to be
purchased by you hereunder:
(a) the Source is an "insurance company general account" as defined in
Department of Labor Prohibited Transaction Exemption ("PTE") 95-60 (60 FR
35925, July 12, 1995) and in respect thereof you represent that there is no
"employee benefit plan" (as defined in section 3(3) of ERISA and section
4975(e)(1) of the Code, treating as a single plan all plans maintained by
the same employer or employee organization or affiliate thereof) with
respect to which the amount of the general account reserves and liabilities
of all contracts held by or on behalf of such plan exceed 10% of the total
reserves and liabilities of such general account (exclusive of separate
account liabilities) plus surplus, as set forth in the NAIC Annual
Statement filed with your state of domicile; or
(b) if you are an insurance company, the Source does not include
assets allocated to any separate account maintained by you in which any
employee benefit plan (or its related trust) has any interest, other than a
separate account that is maintained solely in connection with your fixed
contractual obligations under which the amounts payable, or credited, to
such plan and to any participant or beneficiary of such plan (including any
annuitant) are not affected in any manner by the investment performance of
the separate account; or
(c) the Source is either (i) an insurance company pooled separate
account, within the meaning of PTE 90-1 (issued January 29, 1990), or (ii)
a bank collective investment fund, within the meaning of the PTE 91-38
(issued July 12, 1991) and, except as you have disclosed to the Company in
writing pursuant to this paragraph (c), no employee benefit plan or group
of plans maintained by the same employer, affiliate of such employer or
employee organization beneficially owns more than 10% of all assets
allocated to such pooled separate account or collective investment fund; or
11
(d) (i) the Source constitutes assets of an "investment fund" (within
the meaning of Part V of the QPAM Exemption) managed by a "qualified
professional asset manager" or "QPAM" (within the meaning of Part V of the
QPAM Exemption), (ii) no employee benefit plan's assets that are included
in such investment fund, when combined with the assets of all other
employee benefit plans established or maintained by the same employer or by
an affiliate (within the meaning of Section V(c)(1) of the QPAM Exemption)
of such employer or by the same employee organization and managed by such
QPAM, exceed 20% of the total client assets managed by such QPAM, (iii) the
conditions of Part I(c) and (g) of the QPAM Exemption are satisfied,
neither the QPAM nor a person controlling or controlled by the QPAM
(applying the definition of "control" in Section V(e) of the QPAM
Exemption) owns a 5% or more interest in the Company and (iv) the identity
of such QPAM and the names of all employee benefit plans whose assets are
included in such investment fund have been disclosed to the Company in
writing pursuant to this paragraph (d); or
(e) the Source is a governmental plan; or
(f) the Source is one or more employee benefit plans, or a separate
account or trust fund comprised of one or more employee benefit plans, each
of which has been identified to the Company in writing pursuant to this
paragraph (f); or
(g) the Source does not include assets of any employee benefit plan,
other than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms "employee benefit plan", "governmental
plan", "party in interest" and "separate account" shall have the respective
meanings assigned to such terms in section 3 of ERISA.
SECTION 7. INFORMATION AS TO COMPANY.
Section 7.1. Financial and Business Information. The Company shall
deliver to each holder of Notes that is an Institutional Investor:
(a) Quarterly Statements -- within 60 days after the end of each
quarterly fiscal period in each fiscal year of the Company (other than the
last quarterly fiscal period of each such fiscal year), duplicate copies
of:
(i) a consolidated balance sheet of the Company and its
Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of earnings and cash flows for the
Company and its Subsidiaries for such quarter and (in the case of the
second and third quarters) for the portion of the fiscal year ending
with such quarter,
setting forth in the case of the consolidated statements of earnings
and cash flows in comparative form the figures for the corresponding
periods in the previous fiscal year of the Company and in the case of
12
the consolidated balance sheet in comparative form the figures for the
then most recently completed Fiscal Year, all in reasonable detail,
prepared in accordance with GAAP applicable to quarterly financial
statements generally, and certified by a Senior Financial Officer as
fairly presenting, in all material respects, the financial position of
the companies being reported on and their results of operations and
cash flows, subject to changes resulting from year-end adjustments,
provided that delivery within the time period specified above of
copies of the Company's Quarterly Report on Form 10-Q prepared in
compliance with the requirements therefor and filed with the
Securities and Exchange Commission shall be deemed to satisfy the
requirements of this Section 7.1(a);
(b) Annual Statements -- within 105 days after the end of each fiscal
year of the Company, duplicate copies of
(i) a consolidated balance sheet of the Company and its
Subsidiaries, as at the end of such year, and
(ii) consolidated statements of earnings, shareholders' equity
and cash flows of the Company and its Subsidiaries for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, prepared in accordance
with GAAP, and accompanied by an opinion thereon of independent
certified public accountants of recognized national standing, which
opinion shall state that such financial statements present fairly, in
all material respects, the consolidated financial position of the
companies being reported upon and the consolidated results of their
operations and cash flows in conformity with GAAP, and that the
examination of such accountants in connection with such financial
statements has been made in accordance with generally accepted
auditing standards, and that such audit provides a reasonable basis
for such opinion in the circumstances; provided that the delivery
within the time period specified above of the Company's Annual Report
on Form 10-K for such fiscal year (together with the Company's annual
report to shareholders, if any, prepared pursuant to Rule 14a-3 under
the Exchange Act) prepared in accordance with the requirements
therefor and filed with the Securities and Exchange Commission shall
be deemed to satisfy the requirements of this Section 7.1(b);
(c) SEC and Other Reports -- promptly upon filing with the Securities
and Exchange Commission or their otherwise becoming available in final
form, one copy of (i) each financial statement, report, notice or proxy
statement sent by the Company or any Subsidiary to public securities
holders or Debt holders generally, (ii) each regular or periodic report,
each registration statement (without exhibits except as expressly requested
by such holder), and each prospectus and all amendments thereto filed by
the Company or any Subsidiary with the Securities and Exchange Commission
and (iii) all other statements made available generally by the Company or
any Subsidiary to the public concerning developments that are Material;
13
(d) Notice of Default or Event of Default -- within 5 Business Days
after a Responsible Officer becomes aware of the existence of any Default
or Event of Default or that any Person has given any notice or taken any
action with respect to a claimed default hereunder or that any Person has
given any notice or taken any action with respect to a claimed default of
the type referred to in Section 12(f), a written notice specifying the
nature and period of existence thereof and what action the Company is
taking or proposes to take with respect thereto;
(e) ERISA Matters -- within 10 days after a Senior Financial Officer
becomes aware of any of the following, a written notice setting forth the
nature thereof and the action, if any, that the Company or an ERISA
Affiliate proposes to take with respect thereto:
(i) with respect to any Plan, any reportable event, as defined in
section 4043(c) of ERISA and the regulations thereunder, for which
notice thereof has not been waived pursuant to such regulations as in
effect on the date of the Closing; or
(ii) the taking by the PBGC of steps to institute, or the
threatening by the PBGC of the institution of, proceedings under
section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by the Company or any
ERISA Affiliate of a notice from a Multiemployer Plan that such action
has been taken by the PBGC with respect to such Multiemployer Plan; or
(iii) any event, transaction or condition that could result in
the incurrence of any liability by the Company or any ERISA Affiliate
pursuant to Title I or IV of ERISA or the penalty or excise tax
provisions of the Code relating to employee benefit plans, or in the
imposition of any Lien on any of the rights, properties or assets of
the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA
or such penalty or excise tax provisions, if such liability or Lien,
taken together with any other such liabilities or Liens then existing,
could reasonably be expected to have a Material Adverse Effect;
(f) Notices from Governmental Authority -- within 30 days of receipt
thereof, copies of any notice to the Company or any Subsidiary from any
Federal or state Governmental Authority relating to any order, ruling,
statute or other law or regulation that could reasonably be expected to
have a Material Adverse Effect; and
(g) Requested Information -- with reasonable promptness, such other
data and information relating to the business, operations, affairs,
financial condition, assets or properties of the Company or any of its
Subsidiaries or relating to the ability of the Company to perform its
obligations under this Agreement, the Other Agreements and the Notes as
from time to time may be reasonably requested by any such holder of Notes.
14
Section 7.2. Officer's Certificate. Each set of financial statements
delivered to a holder of Notes pursuant to Section 7.1(a) or Section 7.1(b)
hereof shall be accompanied by a certificate of a Senior Financial Officer
setting forth:
(a) Covenant Compliance -- the information (including detailed
calculations) required in order to establish whether the Company was in
compliance with the requirements of Section 11.2 through Section 11.8,
inclusive, during the quarterly or annual period covered by the statements
then being furnished (including with respect to each such Section, where
applicable, the calculations of the maximum or minimum amount, ratio or
percentage, as the case may be, permissible under the terms of such
Sections, and the calculation of the amount, ratio or percentage then in
existence); and
(b) Event of Default -- a statement that such officer has reviewed the
relevant terms hereof and has made, or caused to be made, under his or her
supervision, a review of the transactions and conditions of the Company and
its Subsidiaries from the beginning of the quarterly or annual period
covered by the statements then being furnished to the date of the
certificate and that such review shall not have disclosed the existence
during such period of any condition or event that constitutes a Default or
an Event of Default or, if any such condition or event existed or exists
(including, without limitation, any such event or condition resulting from
the failure of the Company or any Subsidiary to comply with any
Environmental Law), specifying the nature and period of existence thereof
and what action the Company shall have taken or proposes to take with
respect thereto.
Section 7.3. Inspection. The Company shall permit the representatives of
each holder of Notes that is an Institutional Investor:
(a) No Default -- if no Default or Event of Default then exists, at
the expense of such holder and upon reasonable prior notice to the Company,
to visit the principal executive office of the Company, to discuss the
affairs, finances and accounts of the Company and its Subsidiaries with the
Company's officers, and (with the consent of the Company, which consent
will not be unreasonably withheld) its independent public accountants, and
(with the consent of the Company, which consent will not be unreasonably
withheld) to visit the other offices and properties of the Company and each
Subsidiary, all at such reasonable times and as often as may be reasonably
requested in writing; and
(b) Default -- if a Default or Event of Default then exists, at the
expense of the Company to visit and inspect any of the offices or
properties of the Company or any Subsidiary, to examine all their
respective books of account, records, reports and other papers, to make
copies and extracts therefrom, and to discuss their respective affairs,
finances and accounts with their respective officers and independent public
accountants (and by this provision the Company authorizes said accountants
to discuss the affairs, finances and accounts of the Company and its
Subsidiaries), all at such reasonable times and as often as may be
reasonably requested.
15
SECTION 8. PREPAYMENT OF THE NOTES.
Section 8.1. Required Prepayments.
There shall be no scheduled principal prepayments on account of the Notes.
The unpaid principal amount of each Note, together with accrued unpaid interest
thereon, shall be due and payable on April 27, 2016.
Section 8.2. Optional Prepayments of Notes with Make-Whole Amount. The
Company may, at its option, upon notice as provided below, prepay at any time
all, or from time to time any part of, the Notes, on a pro rata basis in respect
of all Notes outstanding at such time, in an amount not less than 5% of the
aggregate principal amount of the Notes then outstanding in the case of a
partial prepayment, at 100% of the principal amount so prepaid and accrued
interest thereon to the date of prepayment, plus the Make-Whole Amount
determined for the prepayment date with respect to the principal amount of Notes
being so prepaid. The Company will give each holder of Notes to be prepaid under
this Section 8.2 written notice of such optional prepayment not less than 30
days and not more than 60 days prior to the date fixed for such prepayment
(which shall be a Business Day). Each such notice shall specify such date, the
aggregate principal amount the Notes to be prepaid on such date, the principal
amount of each Note held by such holder to be prepaid (determined in accordance
with Section 8.3), and the interest to be paid on the prepayment date with
respect to such principal amount being prepaid, and shall be accompanied by a
certificate of a Senior Financial Officer as to the estimated Make-Whole Amount
due in connection with such prepayment (calculated as if the date of such notice
were the date of the prepayment), setting forth the details of such computation.
Two Business Days prior to such prepayment, the Company shall deliver to each
holder of a Note to be optionally prepaid under this Section 8.2 a certificate
of a Senior Financial Officer specifying the calculation of the Make-Whole
Amount in respect of such Notes as of the specified prepayment date. For the
purposes of avoidance of doubt, the Company may effect multiple partial
prepayments of the Notes pursuant to, and in accordance with the terms of, this
Section 8.2.
Section 8.3. Allocation of Note Partial Prepayments. In the case of each
partial prepayment of Notes pursuant to Section 8.2, the principal amount of the
Notes to be prepaid shall be allocated among all of the Notes at the time
outstanding in proportion, as nearly as practicable, to the respective unpaid
principal amounts thereof not theretofore called for prepayment. All partial
prepayments made pursuant to any Debt Offered Prepayment Application or pursuant
to Section 8.6 with respect to a Change in Control shall be applied only to the
Notes of the holders who have elected to participate in such prepayment.
Section 8.4. Notes; Maturity; Surrender, Etc. In the case of each
prepayment of Notes pursuant to this Section 8, the principal amount of each
such Note to be prepaid shall mature and become due and payable on the date
fixed for such prepayment, together with interest on such principal amount
accrued to such date and the applicable Make-Whole Amount, if any. From and
after such date, unless the Company shall fail to pay such principal amount when
so due and payable, together with the interest and Make-Whole Amount, if any, as
aforesaid, interest on such principal amount shall cease to accrue. Any Note
paid or prepaid in full shall be surrendered to the Company and cancelled and
16
shall not be reissued, and no Note shall be issued in lieu of any prepaid
principal amount of any Note.
Any Debt Offered Prepayment Application in respect of the Notes shall be on
terms as set forth in Section 8.2 (other than any requirement in said Section
requiring a minimum prepayment amount or any requirement in said Section that is
inconsistent with a requirement in this Section 8.4) and this Section 8.4,
provided that only those holders who shall have accepted any offer in respect of
such Debt Offered Prepayment Application shall have their Notes prepaid, in
whole or part, in connection therewith. Each notice of a Debt Offered Prepayment
Application made to the holders of Notes shall be in writing, shall be executed
by a Senior Financial Officer, shall reasonably identify the property being
Transferred, the portion of the Net Proceeds Amount in respect of such
Transferred property being utilized in connection with such Debt Offered
Prepayment Application and all other Senior Debt being made subject to such Debt
Offered Prepayment Application, shall calculate the Ratable Portion in respect
of each holder of Notes with respect to such Net Proceeds Amount and shall
specify the date on which such Debt Offered Prepayment Application will be
effected, which date will be not less than 35 days and not more than 90 days
after the date of notice. To accept or reject a Debt Offered Prepayment
Application, a holder of Notes shall cause a written notice of such acceptance
or rejection to be delivered to the Company not later than 30 days after the
date on which such notice is delivered to such holder. A failure by any holder
of Notes to respond in writing to a notice of a Debt Offered Prepayment
Application by the deadline set forth above shall be deemed to constitute an
acceptance of the same. If a Debt Offered Prepayment Application is accepted or
is deemed to have been accepted, the amounts payable in respect thereof shall
become due and payable on the date set therefor in the notice in respect
thereof.
Any prepayment of Notes in respect of a Change in Control under Section 8.6
shall be on terms as set forth in said Section 8.6, provided that only those
holders who shall have accepted the offer under said Section 8.6 shall have
their Notes prepaid in whole in connection therewith.
Section 8.5. Purchase of Notes. The Company will not and will not permit
any Affiliate to purchase, redeem, prepay or otherwise acquire, directly or
indirectly, any of the outstanding Notes except upon the payment or prepayment
of the Notes in accordance with the terms of this Agreement and the Notes
(including, without limitation, any prepayment of the Notes contemplated in
connection with a Debt Offered Prepayment Application or a Change in Control
accepted by any holder of Notes). The Company will promptly cancel all Notes
acquired by it or any Affiliate pursuant to any payment or prepayment of Notes
pursuant to any provision of this Agreement and no Notes may be issued in
substitution or exchange for any such Notes.
Section 8.6. Offer to Prepay upon Change in Control, Etc.
(a) Notice and Offer. In the event of either (i) a Change in Control, or
(ii) the obtaining of actual knowledge of a Control Event by a Senior Financial
Officer, the Company will, within five Business Days of the occurrence of either
of such events, give written notice of such Change in Control or Control Event
to each holder of Notes by facsimile transmission and, simultaneously with the
sending of such facsimile notice, send a copy of such notice to each such holder
via an overnight courier of national reputation. Such written notice shall
17
contain, and such written notice shall constitute, an irrevocable offer to
prepay all, but not less than all, the Notes held by such holder on a date
specified in such notice (the "Control Prepayment Date") that is not less than
60 days and not more than 90 days after the date of such notice, provided that,
in the case of a Control Event that does not give rise to a Change in Control,
such notice shall be null and void and in the case of a Control Event that does
give rise to a Change in Control which shall occur more than 90 days following
the date the written notice required by this Section 8.6(a) must be given, the
Control Prepayment Date may be delayed by the Company to a date not later than
the date on which the Change in Control arising from such Control Event shall
actually be consummated or finalized. If the Control Prepayment Date shall not
be specified in such notice, the Control Prepayment Date shall be the 60th day
after the date of such notice; it being understood by the parties hereto, for
purposes of the avoidance of doubt, that any such notice shall be dated the date
on which it is first given to the holders of Notes and that all notices to all
holders of Notes shall bear the same date.
If the Company shall not have received a written response to such written
notice from any holder of Notes within 10 days after the date of the facsimile
transmission of such notice to such holder, the Company shall use its best
efforts to send a second written notice via an overnight courier of national
reputation to such holder of Notes but shall be under no obligation to do so.
(b) Acceptance and Payment; Rejection.
(i) Acceptance and Payment. To accept or reject such offered
prepayment, a holder of Notes shall cause a notice of such acceptance or
rejection to be delivered to the Company not later than 30 days after the
date of the notice constituting such offered prepayment (which, if there
shall have been two written notices, shall be deemed to be the first
written notice). If so accepted, such offered prepayment in respect of such
principal amount of such Notes shall be due and payable on the Control
Prepayment Date. Such offered prepayment shall be made at 100% of the
principal amount of the Notes held by holders having accepted such offer,
together with interest on the Notes then being prepaid accrued to the
Control Prepayment Date, if any.
(ii) Rejection. A failure by any holder of Notes to respond in writing
to all written offers of prepayment referred to in Section 8.6(a) by the
deadlines set forth in Section 8.6(b)(i) shall be deemed to constitute a
rejection of such offer by such holder.
(c) Officer's Certificate. Each offer to prepay the Notes pursuant to this
Section 8.6 shall be accompanied by a certificate, executed by a Senior
Financial Officer and dated the date of such offer, specifying:
(i) the Control Prepayment Date;
(ii) that such offer is being made pursuant to this Section 8.6 and
that failure by a holder to respond to such offer by the deadlines as
established by this Section 8.6 shall result in such offer to such holder
being deemed rejected;
18
(iii) the interest that would be due on each such Note offered to be
prepaid, accrued to the date fixed for payment;
(iv) that the conditions of this Section 8.6 have been fulfilled; and
(v) in reasonable detail, a description of the nature and date or
proposed date of the Change in Control.
(d) Cancellation of Notes. Any Note acquired by the Company under this
Section 8.6 shall be cancelled and shall not be reissued.
Section 8.7. Make-Whole Amount. The term "Make-Whole Amount" means, with
respect to any Note, an amount equal to the excess, if any, of the Discounted
Value with respect to the Called Principal of such Note over the amount of such
Called Principal, provided that the Make-Whole Amount may in no event be less
than zero.
For the purposes of determining the Make-Whole Amount, the following terms
have the following meanings:
"Called Principal" means, with respect to any Note, the principal of
such Note that is to be prepaid pursuant to Section 8.2 or has become or is
declared to be immediately due and payable pursuant to Section 13.1, as the
context requires.
"Discounted Value" means, with respect to the Called Principal of any
Note, the amount obtained by discounting the amount of such Called
Principal and interest payable in respect thereof from, in the case of the
Called Principal, the maturity date in respect of such Note to the
Settlement Date and, in the case of such interest, the scheduled dates of
payment hereunder in respect thereof to the Settlement Date, in accordance
with accepted financial practice and at a discount factor (applied on the
same periodic basis as that on which interest on such Note is payable)
equal to the Reinvestment Yield with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the Called Principal of
any Note, the sum of (a) 0.50% per annum plus (b) the yield to maturity
implied by (i) the yields reported, as of 10:00 a.m. (
New York City time)
on the second Business Day preceding the Settlement Date with respect to
such Called Principal, on the display designated as "Page U.S.D." of the
Bloomberg Financial Markets Services Screen (or, if not available, any
other nationally recognized trading screen reporting on-line intraday
trading in the U.S. Treasury securities) for actively traded U.S. Treasury
securities having a maturity equal to the Remaining Average Life of such
Called Principal as of such Settlement Date, or (ii) if such yields are not
reported as of such time or the yields reported as of such time are not
ascertainable (including by interpolation), the Treasury Constant Maturity
Series Yields reported, for the latest day for which such yields have been
so reported as of the second Business Day preceding the Settlement Date
with respect to such Called Principal, in Federal Reserve Statistical
Release H.15 (519) (or any comparable successor publication) for actively
traded U.S. Treasury securities having a constant maturity equal to the
19
Remaining Average Life of such Called Principal as of such Settlement Date.
Such implied yield will be determined, if necessary, by (1) converting U.S.
Treasury xxxx quotations to bond-equivalent yields in accordance with
accepted financial practice and (2) interpolating linearly between (A) the
actively traded U.S. Treasury security with the maturity closest to and
greater than the Remaining Average Life and (B) the actively traded U.S.
Treasury security with the maturity closest to and less than the Remaining
Average Life.
"Remaining Average Life" means, with respect to the Called Principal
of any Note, the number of years (calculated to the nearest one-twelfth
year) that will elapse between the Settlement Date with respect to such
Called Principal and the maturity date of the Note in respect thereof.
"Settlement Date" means, with respect to the Called Principal of any
Note, the date on which such Called Principal is to be prepaid pursuant to
Section 8.2 or has become or is declared to be immediately due and payable
pursuant to Section 13.1, as the context requires.
SECTION 9. INTEREST ON THE NOTES.
Interest shall accrue on the unpaid principal balance of the Notes on the
basis of a 360-day year of twelve 30-day months at the rate of 6.15% per annum
and shall be payable, in arrears, semiannually on April 27 and October 27 in
each year, commencing on October 27, 2006, until the principal amount of the
Notes in respect of which such interest shall have accrued shall become due and
payable, and interest shall accrue on any overdue principal (including any
overdue prepayment of principal), Make-Whole Amount, if any, and (to the extent
permitted by applicable law) on any overdue installment of interest on the Notes
at a rate equal to the Default Rate payable semi-annually, or at the option of
the registered holder of such Note, on demand.
SECTION 10. AFFIRMATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
Section 10.1. Compliance with Law. The Company will and will cause each of
its Subsidiaries to comply with all laws, ordinances or governmental rules or
regulations to which each of them is subject, including, without limitation,
Environmental Laws, and will obtain and maintain in effect all licenses,
certificates, permits, franchises and other governmental authorizations
necessary to the ownership of their respective properties or to the conduct of
their respective businesses, in each case to the extent necessary to ensure that
non-compliance with such laws, ordinances or governmental rules or regulations
or failures to obtain or maintain in effect such licenses, certificates,
permits, franchises and other governmental authorizations could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
Section 10.2. Insurance. The Company will and will cause each of its
Subsidiaries to, maintain, with financially sound and reputable insurers,
insurance with respect to their respective properties and businesses against
such casualties and contingencies, of such types, on such terms and in such
20
amounts (including deductibles, co-insurance, self-insurance and insurance
provided by captive insurance companies, if adequate reserves are maintained
with respect thereto) as is customary in the case of entities of established
reputations engaged in the same or a similar business and similarly situated.
Section 10.3. Maintenance of Properties. The Company will and will cause
each of its Subsidiaries to maintain and keep, or cause to be maintained and
kept, their respective properties in good repair, working order and condition
(other than ordinary wear and tear), so that the business carried on in
connection therewith may be properly conducted at all times, provided that this
Section shall not prevent the Company or any Subsidiary from discontinuing the
operation and the maintenance of any of its properties if such discontinuance is
desirable in the conduct of its business and the Company has concluded that such
discontinuance could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
Section 10.4. Payment of Taxes and Claims. The Company will and will cause
each of its Subsidiaries to file all tax returns required to be filed in any
jurisdiction and to pay and discharge all taxes shown to be due and payable on
such returns and all other taxes, assessments, governmental charges, or levies
imposed on them or any of their properties, assets, income or franchises, to the
extent such taxes, assessments, charges and levies have become due and payable
and before they have become delinquent and all claims for which sums have become
due and payable that have or might become a Lien on properties or assets of the
Company or any Subsidiary (including, without limitation, mechanic's liens or
other similar construction liens), provided that neither the Company nor any
Subsidiary need pay any such tax, assessment, charge, levy or claim if (a) the
amount, applicability or validity thereof is contested by the Company or such
Subsidiary on a timely basis in good faith and in appropriate proceedings, and
the Company or such Subsidiary has established adequate reserves therefore in
accordance with GAAP on the books of the Company or such Subsidiary or (b) the
nonpayment of all such taxes, assessments, charges, levies and claims in the
aggregate could not reasonably be expected to have a Material Adverse Effect.
Section 10.5. Corporate Existence, Etc. The Company will at all times
preserve and keep in full force and effect its corporate existence. Subject to
Section 11.2 and Section 11.8, the Company will at all times preserve and keep
in full force and effect the corporate or other entity existence of each of its
Subsidiaries (unless merged into the Company or a Subsidiary) and all rights and
franchises of the Company and its Subsidiaries unless, in the good faith
judgment of the Company, the termination of or failure to preserve and keep in
full force and effect such corporate existence, right or franchise could not,
individually or in the aggregate, have a Material Adverse Effect.
Section 10.6. Pari Passu Obligations. The Company covenants that its
obligations under the Notes and under this Agreement and the Other Agreements do
and will rank at least pari passu in right of payment with all of its present
and future unsecured and unsubordinated indebtedness, except for those
obligations that are mandatorily preferred by law.
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SECTION 11. NEGATIVE COVENANTS.
The Company covenants that so long as any of the Notes are outstanding:
Section 11.1. Transactions with Affiliates. The Company will not and will
not permit any Subsidiary to enter into directly or indirectly any transaction
or Material group of related transactions (including, without limitation, the
purchase, lease, sale or exchange of properties of any kind or the rendering of
any service) with any Affiliate (other than the Company or a Subsidiary), except
in the ordinary course and pursuant to the reasonable requirements of the
Company's or such Subsidiary's business and upon fair and reasonable terms no
less favorable to the Company or such Subsidiary than would be obtainable in a
comparable arm's-length transaction with a Person not an Affiliate.
Section 11.2. Merger, Consolidation, Etc. The Company will not and will not
permit any of its Subsidiaries to consolidate, amalgamate or merge with or into
any other Person or convey, transfer or lease all or substantially all of its
assets in a single transaction or series of transactions to any Person (except
that (x) any Subsidiary may consolidate, amalgamate or merge with or into, or
convey, transfer or lease all or substantially all of its assets in a single
transaction or series of transactions to, the Company or any Wholly-Owned
Subsidiary and (y) any Subsidiary may transfer or lease all or substantially all
of its assets if permitted pursuant to Sections 11.8(d), (e) or (f)), provided
that the foregoing restrictions do not apply to the consolidation, amalgamation
or merger of the Company with or into, or the conveyance, transfer or lease of
all or substantially all of the assets of the Company in a single transaction or
series of transactions to, any Person so long as:
(i) the successor formed by such consolidation or amalgamation or the
survivor of such merger or the Person that acquires by conveyance, transfer
or lease all or substantially all of the assets of the Company as an
entirety, as the case may be (the "Successor Company"), shall be a solvent
corporation organized and existing under the laws of the United States of
America or any State thereof (including, without limitation, the District
of Columbia);
(ii) if the Company is not the Successor Company, such Successor
Company shall have executed and delivered to each holder of any Notes its
assumption of the due and punctual payment of the principal of and premium,
if any, and interest on all of the Notes, according to their tenor, and the
due and punctual performance and observance of each covenant and condition
of this Agreement, the Other Agreements and the Notes and shall have caused
to be delivered to each holder of any Notes an opinion of nationally
recognized independent counsel, or other independent counsel reasonably
satisfactory to the Required Holders, to the effect that all agreements or
instruments effecting such assumption have been duly authorized, executed
and delivered and are enforceable in accordance with their terms and comply
with the terms hereof; and
(iii) immediately before and after giving effect to such transaction
no Default or Event of Default would exist.
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Section 11.3. Maximum Amount of Consolidated Debt. The Company will not at
any time permit the ratio of Consolidated Debt as of the date of calculation to
Consolidated Operating Cash Flow for the four fiscal quarter period taken as a
single accounting period ending on or most recently prior to the date of
calculation to exceed 3.50 to 1.00 (or such lower ratio at all times during
which the Credit Agreement requires a lower ratio).
Section 11.4. Priority Debt. The Company will not, at any time, permit
Priority Debt to exceed 30% of Consolidated Net Worth determined as of the end
of the most recently ended fiscal quarter of the Company.
Section 11.5. Subsidiary Debt. In addition to and not in limitation of any
other applicable restrictions herein, including Sections 11.3 and 11.4, the
Company will not, at any time, permit any Subsidiary to, directly or indirectly,
create, incur, assume, guarantee, have outstanding, or otherwise become or
remain directly or indirectly liable with respect to, any Debt other than:
(a) Debt of a Subsidiary outstanding on the date of Closing and
identified on Schedule 5.15 and any extension, renewal, refinancing or
refunding thereof, provided that the principal amount thereof is not
increased;
(b) Debt of a Subsidiary owed to the Company or a Wholly-Owned
Subsidiary;
(c) Debt of a Subsidiary outstanding at the time such Subsidiary
becomes a Subsidiary, provided that (i) such Debt shall not have been
incurred in contemplation of such Subsidiary becoming a Subsidiary and (ii)
immediately after such Subsidiary becomes a Subsidiary, no Default or Event
of Default shall exist, and provided, further, that such Debt shall not be
extended, renewed, refinanced or refunded except as otherwise provided
herein;
(d) Debt of one or more Special Purpose Subsidiaries incurred in
connection with a Permitted Receivables Securitization Program, which Debt
shall not at any time exceed $150,000,000 aggregate principal amount
aggregating all such Special Purpose Subsidiaries; and
(e) Debt of a Subsidiary in addition to that otherwise permitted by
the foregoing provisions, provided that on the date such Subsidiary incurs
or otherwise becomes liable with respect to any such Debt, and immediately
after giving effect to the incurrence thereof, no Default or Event of
Default exists hereunder, including, without limitation, under Section
11.4.
For the purposes of this Section 11.5, any Person becoming a Subsidiary
after the date of the Closing shall be deemed, at the time it becomes such a
Subsidiary, to have incurred all of its then outstanding Debt.
23
Section 11.6. Consolidated Net Worth. The Company will not, at any time,
permit Consolidated Net Worth to be less than the sum of
(i) $410,000,000, plus
(ii) an aggregate amount equal to 25% of Consolidated Net Earnings
(but only if a positive number) for each completed Fiscal Year beginning
with the Fiscal Year ending December 31, 2003.
Section 11.7. Liens. The Company will not and will not permit any of its
Subsidiaries to directly or indirectly create, incur, assume or permit to exist
(upon the happening of a contingency or otherwise) any Lien on or with respect
to any property or asset (including, without limitation, any document or
instrument in respect of goods or accounts receivable) of the Company or such
Subsidiary, whether now owned or held or hereafter acquired, or any income or
profits therefrom or assign or otherwise convey any right to receive such income
or profits (unless it makes, or causes to be made, effective provision whereby
the Notes will be equally and ratably secured with any and all other obligations
thereby secured, such security to be pursuant to an agreement reasonably
satisfactory to the Required Holders providing for such security (including an
opinion of counsel to the Company to the effect that the holders of the Notes
are so equally and ratably secured) and, in any such case, the Notes shall have
the benefit, to the fullest extent that, and with such priority as, the holders
of the Notes may be entitled under applicable law, of an equitable Lien on such
property), provided that the foregoing restrictions and limitations shall not
apply to:
(a) (i) Liens for taxes, assessments or other governmental charges
(including ERISA Liens) the payment of which is not at the time required by
Section 10.4, and (ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen, inventory suppliers and other similar
Liens, in each case, incurred in the ordinary course of business for sums
not yet due or the payment of which is not at the time required by Section
10.4;
(b) Liens (i) arising from judicial attachments and judgments, (ii)
securing appeal bonds or supersedeas bonds, or (iii) arising in connection
with court proceedings (including, without limitation, surety bonds and
letters of credit or any other instrument serving a similar purpose),
provided that (1) the execution or other enforcement of such Liens is
effectively stayed, (2) the claims secured thereby are being actively
contested in good faith and by appropriate proceedings and (3) adequate
book reserves shall have been established and maintained with respect
thereto in accordance with GAAP;
(c) Liens (other than any Lien imposed by ERISA) incurred or deposits
made in the ordinary course of business (i) in connection with workers'
compensation, unemployment insurance and other types of social security or
retirement benefits, or (ii) to secure (or to obtain letters of credit that
secure) the performance of tenders, statutory obligations, surety bonds,
appeal bonds, bids, leases (other than Capital Leases), performance bonds,
purchase, construction or sales contracts, leases and other similar
obligations, in each case not incurred or made in connection with the
24
borrowing of money, the obtaining of advances or credit or the payment of
the deferred purchase price of property, and which Liens do not, in the
aggregate, materially impair the use of the property subject thereto in the
operation of the business of the Company and the Subsidiaries, taken as a
whole, or the value of such property for the purposes of such business;
(d) leases or subleases granted to others, easements, rights-of-way,
restrictions, zoning restrictions, governmental restrictions in respect of
any property or property right or franchise of the Company or any
Subsidiary and other similar charges or encumbrances, in each case
incidental to, and not interfering with, the ordinary conduct of the
business of the Company and the Subsidiaries, taken as a whole, provided
that such charges and encumbrances do not, in the aggregate, materially
detract from the value of such property;
(e) Liens existing on the date of the Closing as set forth on Schedule
11.7;
(f) Liens on property or assets of the Company or any of its
Subsidiaries securing Debt owing to the Company or any Subsidiary;
(g) Liens arising from the Transfer by ICC (or any other Subsidiary
primarily responsible for providing credit to the customers of the Company
and its Subsidiaries) of all or any of its receivables, whether with or
without recourse to ICC, the Company or any other Subsidiary, which Liens
shall extend solely to such receivables, the proceeds in respect thereof,
receivables substituted therefor and books or records in respect thereof,
provided that such Transfer is an arm's-length transaction, not accounted
for under GAAP as a secured loan and, in the good faith opinion of a Senior
Financial Officer, for fair value and in the best interests of the Company
and the Subsidiaries, taken as a whole, and provided, further, that
recourse to ICC, the Company or any other Subsidiary in connection with any
such Transfer shall be limited to (i) liabilities arising from the breach
of warranties made by ICC or such other Subsidiary in connection with such
Transfer and (ii) an amount, with respect to any such Transfer and in
addition to clause (i) above, not in excess of 30% of the proceeds of the
disposition of the receivables so transferred in such Transfer;
(h) Liens created to secure all or any part of the purchase price, or
to secure Debt incurred or assumed to pay all or any part of the purchase
price or cost of construction, of property (or any improvement thereon)
acquired or constructed by the Company or any of its Subsidiaries, provided
that all of the following conditions are satisfied:
(i) any such Lien shall extend solely to the item or items of
such property (or improvement thereon) or proceeds thereof so acquired
or constructed and, if required by the terms of the instrument
originally creating such Lien, other property (or improvement thereon)
which is an improvement to or is acquired for specific use in
connection with such acquired or constructed property (or improvement
25
thereon) or which is real property being improved by such acquired or
constructed property (or improvement thereon),
(ii) the principal amount of the Debt secured by any such Lien
shall at no time exceed an amount equal to the lesser of (A) the cost
to such Person of the property (or improvement thereon) so acquired or
constructed and (B) the Fair Market Value (as determined in good faith
by the Board of Directors of the Company) of such property (or
improvement thereon) at the time of such acquisition or construction,
(iii) any such Lien shall be created contemporaneously with, or
within 180 days after, the acquisition or construction of such
property, and
(iv) at the time of creation, incurrence, assumption or guarantee
of the Debt secured by such Liens and after giving effect thereto, no
Default or Event of Default would exist;
(i) Liens existing on property of a Person immediately prior to its
being consolidated or amalgamated with or merged into the Company or any
Subsidiary or its becoming a Subsidiary, or any Lien existing on any
property acquired by the Company or any Subsidiary at the time such
property is so acquired (whether or not the Debt secured thereby shall have
been assumed), provided that
(i) no such Lien shall have been created or assumed in
contemplation of such consolidation, amalgamation or merger or such
Person's becoming a Subsidiary or such acquisition of property,
(ii) each such Lien shall extend solely to the item or items of
property so acquired and proceeds thereof and, if required by the
terms of the instrument originally creating such Lien, other property
which is an improvement to or is acquired for specific use in
connection with such acquired property,
(iii) the principal amount of the Debt secured by any such Lien
shall at no time exceed an amount equal to the Fair Market Value (as
determined in good faith by the Board of Directors of the Company) of
such property (or improvement thereon) at the time of such
consolidation, merger, becoming a Subsidiary or acquisition, and
(iv) at the time of such consolidation, merger, becoming a
Subsidiary or acquisition and, after giving effect thereto, no Default
or Event of Default would exist;
(j) Liens renewing, extending or replacing Liens permitted by clause
(e), (h) or (i) above, provided that all of the following conditions are
satisfied:
26
(i) no such new Lien shall extend to any property of the Company
or any of its Subsidiaries other than property already encumbered by
the existing Lien being so renewed or replaced,
(ii) the principal amount of the underlying obligation secured by
such existing Lien outstanding at the time of such renewal or
replacement shall not be increased in connection with such renewal or
replacement and the average life thereof shall not be reduced, and
(iii) immediately after such extension, renewal or refunding no
Default or Event of Default would exist;
(k) Liens on assets of Special Purpose Subsidiaries securing
indebtedness of such Special Purpose Subsidiaries pursuant to the Permitted
Receivables Securitization Program; and
(l) if and so long as no Default or Event of Default exists hereunder,
including, without limitation under Section 11.4, Liens securing Debt of
the Company or any Subsidiary in addition to those described in clauses (a)
through (k) above.
For the purposes of this Section 11.7, any Person becoming a Subsidiary after
the date of the Closing shall be deemed, at the time it becomes such a
Subsidiary, to have incurred all of its then existing Liens securing outstanding
Debt.
Section 11.8. Sale of Assets, Etc. The Company will not and will not permit
any of its Subsidiaries to make any Transfer, provided that the foregoing
restriction does not apply to a Transfer if:
(a) the property that is the subject of such Transfer constitutes
either (i) inventory or (ii) equipment, fixtures, supplies or materials no
longer required in the operation of the business of the Company or any of
its Subsidiaries or that is obsolete, and, in each case, such Transfer is
in the ordinary course of business;
(b) such Transfer is (i) from a Subsidiary to the Company or a
Wholly-Owned Subsidiary or (ii) from the Company to a Wholly-Owned
Subsidiary, in each case, so long as immediately before and after giving
effect to the consummation of any such Transfer, no Default or Event of
Default would exist;
(c) such Transfer is subject to Section 11.2 and satisfies the
requirements thereof;
(d) such Transfer is of receivables of ICC (or any other Subsidiary
primarily responsible for providing credit to the customers of the Company
and its Subsidiaries), whether with or without recourse to ICC, the Company
or any other Subsidiary, provided that such Transfer is an arm's-length
transaction, not accounted for under GAAP as a secured loan and, in the
good-faith opinion of a Senior Financial Officer, for fair value and in the
27
best interests of the Company and the Subsidiaries, taken as a whole, and
provided, further, that recourse to ICC, the Company or any other
Subsidiary in connection with any such Transfer shall be limited to (i)
liabilities arising from the breach of warranties made by ICC or such other
Subsidiary in connection with any such Transfer and (ii) an amount, with
respect to any such Transfer and in addition to clause (i) above, not in
excess of 30% of the proceeds of the disposition of the receivables so
transferred in such Transfer;
(e) such Transfer involves only receivables, related assets and rights
to collections owned by the Company or a Subsidiary being sold or otherwise
transferred to a Special Purpose Subsidiary for fair market value pursuant
to the Permitted Receivables Securitization Program; or
(f) such Transfer is not a Transfer described in clause (a) through
clause (e) above (each such Transfer is referred to as a "Basket
Transfer"), and all of the following conditions shall have been satisfied
with respect to such Transfer:
(i) in the good faith opinion of the Board of Directors of the
Company, the Transfer is in exchange for consideration with a Fair
Market Value at least equal to that of the property exchanged, and is
in the best interests of the Company and its Subsidiaries, taken as a
whole,
(ii) immediately before and after giving effect to such
transaction no Default or Event of Default would exist, and
(iii) immediately after giving effect to such Transfer, the book
value of all property (including the property that was the subject of
such Transfer) that was the subject of each Basket Transfer occurring
during the current Fiscal Year would not exceed 15% of Consolidated
Total Assets determined as of the end of the then most recently ended
Fiscal Year.
If the Net Proceeds Amount for any Basket Transfer is applied to a
Debt Offered Prepayment Application and/or is applied to, or committed in
writing to, a Property Reinvestment Application, in each case within 365
days after the consummation of such Transfer (and, in the case of any such
commitment, such Property Reinvestment Application is actually consummated
within 30 days after the expiration of such 365-day period), then such
Basket Transfer, to the extent of such application or applications of such
Net Proceeds Amount, shall be excluded from any calculations set forth
above in subclause (iii) of this clause (f).
For purposes of determining the book value of any property that is the
subject of a Transfer, such book value shall be the book value of such property,
as determined in accordance with GAAP, at the time of the consummation of such
Transfer, provided that, in the case of a Transfer of any capital stock or other
equity interests of a Subsidiary, the book value thereof shall be deemed to be
an amount equal to
28
(A) the remainder (determined after eliminating all intra-company
transactions, assets and liabilities in accordance with GAAP) of
(1) the book value of the total net assets of such Subsidiary
less
(2) the liabilities of such Subsidiary times
(B) a percentage that is equal to the percentage of total equity
interests of such Subsidiary attributable to the capital stock or other
equity interest being so Transferred.
Section 11.9. Line of Business. The Company will not and will not permit
any of its Subsidiaries to engage in any business if, as a result, the general
nature of the business in which the Company and its Subsidiaries, taken as a
whole, would then be engaged would be substantially changed from the general
nature of the business in which the Company and its Subsidiaries, taken as a
whole, are engaged on the date of the Closing as described in the Memorandum.
SECTION 12. EVENTS OF DEFAULT.
An "Event of Default" shall exist if any of the following conditions or
events shall occur and be continuing:
(a) the Company defaults in the payment of any principal or Make-Whole
Amount, if any, on any Note when the same becomes due and payable, whether
at maturity or at a date fixed for prepayment or by declaration or
otherwise; or
(b) the Company defaults in the payment of any interest on any Note
for more than 5 Business Days after the same becomes due and payable; or
(c) the Company defaults in the performance of or compliance with any
term contained in any of Section 11.2 through Section 11.6, inclusive,
Section 11.8, Section 11.9, or Section 7.1(d); or
(d) the Company defaults in the performance of or compliance with any
term contained herein or in any Other Agreement (other than those referred
to in paragraph (a), (b) or (c) of this Section 12) and such default is not
remedied within 30 days after the earlier of (i) a Senior Financial Officer
obtaining actual knowledge of such default and (ii) the Company's receiving
written notice of such default from any holder of a Note (any such written
notice to be identified as a "notice of default" and to refer specifically
to this paragraph (d) of Section 12); or
(e) any representation or warranty made in writing by or on behalf of
the Company or by any officer of the Company in this Agreement, any Other
Agreement or in any writing furnished in connection with the transactions
contemplated hereby or thereby proves to have been false or incorrect in
any material respect on the date as of which made; or
29
(f) (i) the Company or any Subsidiary is in default (as principal or
as guarantor or other surety) in the payment of any principal of or
premium or make-whole amount or interest on any Debt (other than Debt
under this Agreement, the Other Agreements and the Notes) after notice
and beyond any period of grace provided with respect thereto, that
individually or together with such other Debt as to which any such
failure exists has an aggregate outstanding principal amount of at
least $10,000,000 (or its equivalent in other applicable currencies),
or
(ii) 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 this Agreement, the Other
Agreements and the 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 $10,000,000 (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, due and payable before its
stated maturity or before its regularly scheduled dates of payment, or
(iii) as a consequence of the occurrence or continuation of any
event or condition (other than the passage of time, the right of the
holder of Debt to convert such Debt into equity interests or in
respect of any scheduled or contractually agreed upon payments),
(A) the Company or any Subsidiary has become obligated
(other than at the Company's election) to purchase or repay Debt
before its regular maturity or before its regularly scheduled
dates of payment in an aggregate outstanding principal amount of
at least $10,000,000 (or its equivalent in other applicable
currencies), or
(B) one or more Persons have the right to require the
Company or any Subsidiary to purchase or repay such Debt and have
exercised such right; or
(g) the Company or any Material Subsidiary (i) is generally not
paying, or admits in writing its inability to pay, its debts as they become
due, (ii) files, or consents by answer or otherwise to the filing against
it of, a petition for relief or reorganization or arrangement or any other
petition in bankruptcy, for liquidation or to take advantage of any
bankruptcy, insolvency, reorganization, moratorium or other similar law of
any jurisdiction, (iii) makes an assignment for the benefit of its
creditors, (iv) consents to the appointment of a custodian, receiver,
trustee or other officer with similar powers with respect to it or with
respect to any substantial part of its property, (v) is adjudicated as
insolvent or to be liquidated, or (vi) takes corporate action for the
purpose of any of the foregoing; or
30
(h) a court or governmental authority of competent jurisdiction enters
an order appointing, without consent by the Company or any Material
Subsidiary, a custodian, receiver, trustee or other officer with similar
powers with respect to the Company or any Material Subsidiary or with
respect to any substantial part of the property of the Company or any
Material Subsidiary, or constituting an order for relief or approving a
petition for relief or reorganization or any other petition in bankruptcy
or for liquidation or to take advantage of any bankruptcy or insolvency law
of any jurisdiction, or ordering the dissolution, winding-up or liquidation
of the Company or any Material Subsidiary, or any such petition shall be
filed against the Company or any Material Subsidiary and such petition
shall not be dismissed within 60 days; or
(i) a final judgment or judgments for the payment of money aggregating
in excess of $10,000,000 (or its equivalent in other applicable currencies)
are rendered against one or more of the Company and the Subsidiaries and
which judgments are not, within 60 days after entry thereof, bonded,
discharged or stayed pending appeal, or are not discharged within 60 days
after the expiration of such stay; or
(j) if (i) any, Plan shall fail to satisfy the minimum funding
standards of ERISA or the Code for any plan year or part thereof or a
waiver of such standards or extension of any amortization period is sought
or granted under section 412 of the Code,
(ii) a notice of intent to terminate any Plan shall have been or
is reasonably expected to be filed with the PBGC or the PBGC shall
have instituted proceedings under ERISA section 4042 to terminate or
appoint a trustee to administer any Plan or the PBGC shall have
notified the Company or any ERISA Affiliate that a Plan may become a
subject of any such proceedings,
(iii) the aggregate "amount of unfunded benefit liabilities"
(within the meaning of section 4001 (a)(18) of ERISA) under all Plans
subject to Title IV of ERISA, determined in accordance with Title IV
of ERISA, shall exceed $10,000,000,
(iv) the Company or any ERISA Affiliate shall have incurred or is
reasonably expected to incur any liability in the nature of a penalty,
excise tax or fine pursuant to Title I or IV of ERISA or the penalty
or excise tax provisions of the Code relating to employee benefit
plans,
(v) the Company or any ERISA Affiliate withdraws from any
Multiemployer Plan, or
(vi) the Company or any Subsidiary establishes or amends any
employee welfare benefit plan that provides post-employment welfare
benefits in a manner that would increase the liability of the Company
or such Subsidiary thereunder;
31
and any such event or events described in clauses (i) through (vi)
above, either individually or together with any other such event or
events, could reasonably be expected to have a Material Adverse
Effect.
As used in Section 12(j), the terms "employee benefit plan" and "employee
welfare benefit plan" shall have the respective meanings assigned to such terms
in section 3 of ERISA.
SECTION 13. REMEDIES ON DEFAULT, ETC.
Section 13.1. Acceleration. (a) If an Event of Default with respect to the
Company described in paragraph (g) or paragraph (h) of Section 12 (other than an
Event of Default described in clause (i) of paragraph (g) or described in clause
(vi) of paragraph (g) by virtue of the fact that such clause encompasses clause
(i) of paragraph (g)) has occurred, all the Notes then outstanding shall
automatically become immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, any
holder or holders of more than 50% in principal amount of the Notes at the time
outstanding may at any time at its or their option, by notice or notices to the
Company, declare all the Notes then outstanding to be immediately due and
payable.
(c) If any Event of Default described in paragraph (a) or (b) of Section 12
has occurred and is continuing, any holder or holders of Notes at the time
outstanding affected by such Event of Default may at any time, at its or their
option, by notice or notices to the Company, declare all the Notes held by it or
them to be immediately due and payable.
Upon any Notes becoming due and payable under this Section 13.1, whether
automatically or by declaration, such Notes will forthwith mature and the entire
unpaid principal amount of such Notes, plus (x) all accrued and unpaid interest
thereon and (y) the Make-Whole Amount determined in respect of such principal
amount (to the full extent permitted by applicable law), shall all be
immediately due and payable, in each and every case without presentment, demand,
protest or further notice, all of which are hereby waived. The Company
acknowledges, and the parties hereto agree, that each holder of a Note has the
right to maintain its investment in such Note free from repayment by the Company
(except as herein specifically provided for) and that the provision for payment
of a Make-Whole Amount by the Company in the event that such Note is prepaid or
is accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such circumstances.
Section 13.2. Other Remedies. If any Default or Event of Default has
occurred and is continuing, and irrespective of whether any Notes have become or
have been declared immediately due and payable under Section 13.1, the holder of
any Note at the time outstanding may proceed to protect and enforce the rights
of such holder by an action at law, suit in equity or other appropriate
proceeding, whether for the specific performance of any agreement contained
herein or in any Note, or for an injunction against a violation of any of the
terms hereof or thereof, or in aid of the exercise of any power granted hereby
or thereby or by law or otherwise.
32
Section 13.3. Rescission. At any time after any Notes have been declared
due and payable pursuant to clause (b) or clause (c) of Section 13.1, the
holders of more than 50% in principal amount of the Notes then outstanding, by
written notice to the Company, may rescind and annul any such declaration and
its consequences if (a) the Company has paid all overdue interest on the Notes,
all principal due and payable on any Notes other than by reason of such
declaration, and all interest on such overdue principal, if any, and any
Make-Whole Amount that is due and payable in respect of the Notes other than by
reason of such declaration and any interest thereon and (to the extent permitted
by applicable law) any overdue interest in respect of the Notes, at the
applicable Default Rate, (b) all Events of Default and Defaults, other than
non-payment of amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to Section 18, and (c)
no judgment or decree has been entered for the payment of any monies due
pursuant hereto or to the Notes. No rescission and annulment under this Section
13.3 will extend to or affect any subsequent Event of Default or Default or
impair any right consequent thereon.
Section 13.4. No Waivers or Election of Remedies, Expenses, Etc. No course
of dealing and no delay on the part of any holder of any Note in exercising any
right, power or remedy shall operate as a waiver thereof or otherwise prejudice
such holder's rights, powers or remedies. No right, power or remedy conferred by
this Agreement or by any Note upon any holder thereof shall be exclusive of any
other right, power or remedy referred to herein or therein or now or hereafter
available at law, in equity, by statute or otherwise. Without limiting the
obligations of the Company under Section 16, the Company will pay to the holder
of each Note on demand such further amount as shall be sufficient to cover all
reasonable costs and expenses of such holder incurred in any enforcement or
collection under this Section 13, including, without limitation, reasonable
attorneys' fees, expenses and disbursements.
SECTION 14. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
Section 14.1. Registration of Notes. The Company shall keep at its
principal executive office a register for the registration and registration of
transfers of Notes. The name and address of each holder of one or more Notes,
each transfer thereof and the name and address of each transferee of one or more
Notes shall be registered in such register. Prior to due presentment for
registration of transfer, the Person in whose name any Note shall be registered
shall be deemed and treated as the owner and holder thereof for all purposes
hereof, and the Company shall not be affected by any notice or knowledge to the
contrary. The Company shall give to any holder of a Note that is an
Institutional Investor promptly upon request therefor, a complete and correct
copy of the names and addresses of all registered holders of Notes.
Section 14.2. Transfer and Exchange of Notes. Upon surrender of any Note at
the principal executive office of the Company for registration of transfer or
exchange (and in the case of a surrender for registration of transfer, duly
endorsed or accompanied by a written instrument of transfer duly executed by the
registered holder of such Note or his attorney duly authorized in writing and
accompanied by the address for notices of each transferee of such Note or part
thereof), the Company shall execute and deliver, at the Company's expense
(except as provided below), one or more new Notes (as requested by the holder
33
thereof) in exchange therefor, in an aggregate principal amount equal to the
unpaid principal amount of the surrendered Note. Each such new Note shall be
payable to such Person as such holder may request and shall be substantially in
the form of Exhibit 1. Each such new Note shall be dated and bear interest from
the date to which interest shall have been paid on the surrendered Note or dated
the date of the surrendered Note if no interest shall have been paid thereon.
The Company may require payment of a sum sufficient to cover any stamp tax or
governmental charge imposed in respect of any such transfer of Notes. Notes
shall not be transferred in denominations of less than $1,000,000, provided that
if necessary to enable the registration of transfer by a holder of its entire
holding of Notes, one Note may be in a denomination of less than $1,000,000. Any
transferee, by its acceptance of a Note registered in its name (or the name of
its nominee), shall be deemed to have made the representation set forth in
Section 6.2.
Section 14.3. Replacement of Notes. Upon receipt by the Company of evidence
reasonably satisfactory to it of the ownership of and the loss, theft,
destruction or mutilation of any Note (which evidence shall be, in the case of
an Institutional Investor, notice from such Institutional Investor of such
ownership and such loss, theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity reasonably
satisfactory to it (provided that if the holder of such Note is, or is a
nominee for, an original Purchaser or another holder of a Note with a
minimum net worth of at least $250,000,000, such Person's own unsecured
agreement of indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation
thereof,
the Company at its own expense shall execute and deliver, in lieu thereof, a new
Note, dated and bearing interest from the date to which interest shall have been
paid on such lost, stolen, destroyed or mutilated Note or dated the date of such
lost, stolen, destroyed or mutilated Note if no interest shall have been paid
thereon.
SECTION 15. PAYMENTS ON NOTES.
Section 15.1. Place of Payment. Subject to Section 15.2, payments of
principal, Make-Whole Amount, if any, and interest becoming due and payable on
the Notes shall be made in Elyria, Ohio at the principal office of the Company
in such jurisdiction. The Company may at any time, by notice to each holder of a
Note, change the place of payment of the Notes so long as such place of payment
shall be either the principal office of the Company in the United States of
America or the principal office of a bank or trust company in the United States
of America.
Section 15.2. Home Office Payment. So long as you or your nominee shall be
the holder of any Note, and notwithstanding anything contained in Section 15.1
or in such Note to the contrary, the Company will pay all sums becoming due on
such Note for principal, Make-Whole Amount, if any, and interest by the method
and at the address specified for such purpose below your name in Schedule A, or
by such other method or at such other address as you shall have from time to
time specified to the Company in writing for such purpose, without the
presentation or surrender of such Note or the making of any notation thereon,
except that upon written request of the Company made concurrently with or
reasonably promptly after payment or prepayment in full of any Note, you shall
34
surrender such Note for cancellation, reasonably promptly after any such
request, to the Company at its principal executive office or at the place of
payment most recently designated by the Company pursuant to Section 15.1. Prior
to any sale or other disposition of any Note held by you or your nominee you
will, at your election, either endorse thereon the amount of principal paid
thereon and the last date to which interest has been paid thereon or surrender
such Note to the Company in exchange for a new Note or Notes pursuant to Section
14.2. The Company will afford the benefits of this Section 15.2 to any
Institutional Investor that is the direct or indirect transferee of any Note
purchased by you under this Agreement and that has made the same agreement
relating to such Note as you have made in this Section 15.2.
SECTION 16. EXPENSES, ETC.
Section 16.1. Transaction Expenses. Whether or not the transactions
contemplated hereby are consummated, the Company will pay all reasonable costs
and expenses (including reasonable attorneys' fees of a special counsel and, if
reasonably required, local or other counsel) incurred by you and each Other
Purchaser or holder of a Note in connection with such transactions and in
connection with any amendments, waivers or consents under or in respect of this
Agreement or the Notes (whether or not such amendment, waiver or consent becomes
effective), including, without limitation: (a) the reasonable costs and expenses
incurred in enforcing or defending (or determining whether or how to enforce or
defend) any rights under this Agreement or the Notes or in responding to any
subpoena or other legal process or informal investigative demand issued in
connection with this Agreement or the Notes, or by reason of being a holder of
any Note, and (b) the reasonable costs and expenses, including financial
advisors' fees, incurred in connection with the insolvency or bankruptcy of the
Company or any Subsidiary or in connection with any work-out or restructuring of
the transactions contemplated hereby and by the Notes. The Company will pay, and
will save you and each other holder of a Note harmless from, all claims in
respect of any fees, costs or expenses if any, of brokers and finders (other
than those retained by you).
Section 16.2. Survival. The obligations of the Company under this Section
16 will survive the payment or transfer of any Note, the enforcement, amendment
or waiver of any provision of this Agreement or the Notes and the termination of
this Agreement.
SECTION 17. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the
execution and delivery of this Agreement and the Notes, the purchase or transfer
by you of any Note or portion thereof or interest therein and the payment of any
Note, and may be relied upon by any subsequent holder of a Note, regardless of
any investigation made at any time by or on behalf of you or any other holder of
a Note. All statements contained in any certificate or other instrument
delivered by or on behalf of the Company pursuant to this Agreement shall be
deemed representations and warranties of the Company under this Agreement.
Subject to the preceding sentence, this Agreement and the Notes embody the
entire agreement and understanding between you and the Company and supersede all
prior agreements and understandings relating to the subject matter hereof.
35
SECTION 18. AMENDMENT AND WAIVER.
Section 18.1. Requirements. This Agreement and the Notes may be amended,
and the observance of any term hereof or of the Notes may be waived (either
retroactively or prospectively), with (and only with) the written consent of the
Company and the Required Holders, except that (a) no amendment or waiver of any
of the provisions of any of Sections 1, 2, 3, 4, 5, 6 and 22, or any defined
term (as it is used therein), will be effective as to you unless consented to by
you in writing, and (b) no such amendment or waiver may, without the written
consent of the holder of each Note at the time outstanding affected thereby, (i)
subject to the provisions of Section 13 relating to acceleration or rescission,
change the amount or time of any prepayment or payment of principal of, or
reduce the rate or change the time of payment or method of computation of
interest or of the Make-Whole Amount on, the Notes, (ii) change the percentage
of the principal amount of the Notes the holders of which are required to
consent to any such amendment or waiver, or (iii) amend any of Sections 8,
12(a), 12(b), 13, 18 and 21.
Section 18.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder of the Notes
(irrespective of the amount of Notes then owned by it) with sufficient
information, sufficiently far in advance of the date a decision is required, to
enable such holder to make an informed and considered decision with respect to
any proposed amendment, waiver or consent in respect of any of the provisions
hereof or of the Notes. The Company will deliver executed or true and correct
copies of each amendment, waiver or consent effected pursuant to the provisions
of this Section 18 to each holder of outstanding Notes promptly following the
date on which it is executed and delivered by, or receives the consent or
approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or indirectly pay or cause to be
paid any remuneration, whether by way of supplemental or additional interest,
fee or otherwise, or grant any security, to any holder of Notes as consideration
for or as an inducement to the entering into by any holder of Notes of any
waiver or amendment of any of the terms and provisions hereof unless such
remuneration is concurrently paid, or security is concurrently granted, on the
same terms, ratably to each holder of Notes then outstanding even if such holder
did not consent to such waiver or amendment.
Section 18.3. Binding Effect, Etc. Any amendment or waiver consented to as
provided in this Section 18 applies equally to all holders of Notes and is
binding upon them and upon each future holder of any Note and upon the Company
without regard to whether such Note has been marked to indicate such amendment
or waiver. No such amendment or waiver will extend to or affect any obligation,
covenant, agreement, Default or Event of Default not expressly amended or waived
or impair any right consequent thereon. No course of dealing between the Company
and the holder of any Note nor any delay in exercising any rights hereunder or
under any Note shall operate as a waiver of any rights of any holder of such
Note. As used herein, the term "this Agreement" and references thereto shall
mean this Agreement as it may from time to time be amended or supplemented.
36
Section 18.4. Notes Held by Company, Etc. Solely for the purpose of
determining whether the holders of the requisite percentage of the aggregate
principal amount of Notes then outstanding approved or consented to any
amendment, waiver or consent to be given under this Agreement or the Notes, or
have directed the taking of any action provided herein or in the Notes to be
taken upon the direction of the holders of a specified percentage of the
aggregate principal amount of Notes then outstanding, Notes directly or
indirectly owned by the Company or any of its Affiliates shall be deemed not to
be outstanding.
SECTION 19. NOTICES.
All notices and communications provided for hereunder shall be in writing
and sent (a) by telecopy if the sender on the same day sends a confirming copy
of such notice by a recognized overnight delivery service (charges prepaid), or
(b) by registered or certified mail with return receipt requested (postage
prepaid), or (c) by a recognized overnight delivery service (with charges
prepaid). Any such notice must be sent:
(i) if to you or your nominee, to you or it at the address specified
for such communications in Schedule A, or at such other address as you or
it shall have specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at such
address as such other holder shall have specified to the Company in
writing, or
(iii) if to the Company, to the Company at its address set forth at
the beginning hereof to the attention of Chief Financial Officer, or at
such other address as the Company shall have specified to the holder of
each Note in writing.
Notices under this Section 19 will be deemed given only when actually received.
SECTION 20. REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and other information
previously or hereafter furnished to you, may be reproduced by you by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and you may destroy any original document so reproduced. The
Company agrees and stipulates that, to the extent permitted by applicable law,
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by you in the regular
course of business) and any enlargement, facsimile or further reproduction of
such reproduction shall likewise be admissible in evidence. This Section 20
shall not prohibit the Company or any other holder of Notes from contesting any
such reproduction to the same extent that it could contest the original, or from
introducing evidence to demonstrate the inaccuracy of any such reproduction.
37
SECTION 21. CONFIDENTIAL INFORMATION.
For the purposes of this Section 21, "Confidential Information" means
information delivered to you by or on behalf of the Company or any of its
Subsidiaries in connection with the transactions contemplated by or otherwise
pursuant to this Agreement that is proprietary in nature and that was clearly
marked or labeled or otherwise adequately identified when received by you as
being confidential information of the Company and/or its Subsidiaries, provided
that such term does not include information that
(a) was publicly known or otherwise known to you prior to the time of
such disclosure,
(b) subsequently becomes publicly known through no act or omission by
you or any Person acting on your behalf,
(c) otherwise becomes known to you other than through disclosure by
the Company or any of its Subsidiaries, or
(d) constitutes financial statements delivered to you under Section
7.1 that are otherwise publicly available.
You will maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by you in good faith to protect confidential
information of third parties delivered to you, provided that you may deliver or
disclose Confidential Information to:
(i) your directors, officers, trustees, employees, agents, attorneys
and affiliates (to the extent such disclosure reasonably relates to the
administration of the investment represented by your Notes),
(ii) your financial advisors and other professional advisors who agree
to hold confidential the Confidential Information substantially in
accordance with the terms of this Section 21,
(iii) any other holder of any Note other than a Competitor,
(iv) any Institutional Investor to which you sell or offer to sell
such Note or any part thereof or any participation therein (if such Person
has agreed in writing prior to its receipt of such Confidential Information
to be bound by the provisions of this Section 21),
(v) any Person other than a Competitor from which you offer to
purchase any security of the Company (if such Person has agreed in writing
prior to its receipt of such Confidential Information to be bound by the
provisions of this Section 21),
(vi) any federal or state regulatory authority having jurisdiction
over you,
38
(vii) the National Association of Insurance Commissioners or any
similar organization, or any nationally recognized rating agency that
requires access to information about your investment portfolio, or
(viii) any other Person to which such delivery or disclosure may be
necessary or appropriate:
(A) to effect compliance with any law, rule, regulation or order
applicable to you,
(B) in response to any subpoena or other legal process,
(C) in connection with any litigation to which you are a party,
or
(D) if an Event of Default has occurred and is continuing, to the
extent you may reasonably determine such delivery and disclosure to be
necessary or appropriate in the enforcement or for the protection of
the rights and remedies under your Notes and this Agreement.
Each holder of a Note, by its acceptance of a Note, will be deemed to have
agreed to be bound by and to be entitled to the benefits of this Section 21 as
though it were a party to this Agreement. On reasonable request by the Company
in connection with the delivery to any holder of a Note of information required
to be delivered to such holder under this Agreement or requested by such holder
(other than a holder that is a party to this Agreement or its nominee), such
holder will enter into an agreement with the Company embodying the provisions of
this Section 21. Notwithstanding anything to the contrary set forth herein or in
any other written or oral understanding or agreement to which the parties hereto
are parties or by which they are bound, the parties acknowledge and agree that
(i) any obligations of confidentiality contained herein and therein do not apply
and have not applied from the commencement of discussions between the parties to
the tax treatment and tax structure of the transaction (and any related
transactions or arrangements), and (ii) each party (and each of its employees,
representatives, or other agents) may disclose to any and all persons, without
limitation of any kind, the tax treatment and tax structure of the transaction
and all materials of any kind (including opinions or other tax analyses) that
are provided to such party relating to such tax treatment and tax structure, all
within the meaning of U.S. Treasury Regulations Section 1.6011-4.
SECTION 22. SUBSTITUTION OF PURCHASER.
You shall have the right to substitute any one of your Affiliates as the
purchaser of the Notes that you have agreed to purchase hereunder, by written
notice to the Company, which notice shall be signed by both you and such
Affiliate, shall contain such Affiliate's agreement to be bound by this
Agreement and shall contain a confirmation by such Affiliate of the accuracy
with respect to it of the representations set forth in Section 6. Upon receipt
of such notice, wherever the word "you" is used in this Agreement (other than in
this Section 22), such word shall be deemed to refer to such Affiliate in lieu
of you. In the event that such Affiliate is so substituted as a purchaser
hereunder and such Affiliate thereafter transfers to you all of the Notes then
39
held by such Affiliate, upon receipt by the Company of notice of such transfer,
wherever the word "you" is used in this Agreement (other than in this Section
22), such word shall no longer be deemed to refer to such Affiliate, but shall
refer to you, and you shall have all the rights of an original holder of the
Notes under this Agreement.
SECTION 23. ADDITIONAL NOTE PROVISIONS.
Subject to the terms and provisions hereof (including, but not limited to,
Section 11.3), the Company may, from time to time, issue and sell additional
promissory notes pursuant to agreements which may incorporate by reference all
or certain of the provisions of this Agreement and the Other Agreements. Such
incorporation by reference shall not have the effect of constituting such
promissory notes as Notes for any purpose, whether for acceleration of the
Notes, rescission of such acceleration, or the exercise of any other amendments
or waivers of the provisions hereof or of the Other Agreements, or otherwise.
SECTION 24. MISCELLANEOUS.
Section 24.1. Successors and Assigns. All covenants and other agreements
contained in this Agreement by or on behalf of any of the parties hereto bind
and inure to the benefit of their respective successors and assigns (including,
without limitation, any subsequent holder of a Note) whether so expressed or
not.
Section 24.2. Payments Due on Non-Business Days. Anything in this Agreement
or the Notes to the contrary notwithstanding, any payment of principal of or
Make-Whole Amount or interest on any Note that is due on a date other than a
Business Day shall be made on the next succeeding Business Day without including
the additional days elapsed in the computation of the interest payable on such
next succeeding Business Day.
Section 24.3. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full extent permitted by law)
not invalidate or render unenforceable such provision in any other jurisdiction.
Section 24.4. Construction. Each covenant contained herein shall be
construed (absent express provision to the contrary) as being independent of
each other covenant contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be deemed to excuse
compliance with any other covenant. Where any provision herein refers to action
to be taken by any Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken directly or
indirectly by such Person.
Section 24.5. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute one instrument. Each counterpart may consist of a number of copies
hereof, each signed by less than all, but together signed by all, of the parties
hereto.
40
Section 24.6. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, 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 THE LAWS OF A JURISDICTION OTHER
THAN SUCH STATE.
Section 24.7 Jurisdiction and Process; Waiver of Jury Trial. (a) The
Company irrevocably submits to the non-exclusive jurisdiction of any
New York
State or federal court sitting in the Borough of Manhattan, The City of
New
York, over any suit, action or proceeding arising out of or relating to this
Agreement or the Notes. To the fullest extent permitted by applicable law, the
Company irrevocably waives and agrees not to assert, by way of motion, as a
defense or otherwise, any claim that it is not subject to the jurisdiction of
any such court, any objection that it may now or hereafter have to the laying of
the venue of any such suit, action or proceeding brought in any such court and
any claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.
(b) The Company consents to process being served by or on behalf of any
holder of Notes in any suit, action or proceeding of the nature referred to in
Section 24.7(a) by mailing a copy thereof by registered or certified mail (or
any substantially similar form of mail), postage prepaid, return receipt
requested, to it at its address specified in Section 19 or at such other address
of which such holder shall then have been notified pursuant to said Section. The
Company agrees that such service upon receipt (i) shall be deemed in every
respect effective service of process upon it in any such suit, action or
proceeding and (ii) shall, to the fullest extent permitted by applicable law, be
taken and held to be valid personal service upon and personal delivery to it.
Notices hereunder shall be conclusively presumed received as evidenced by a
delivery receipt furnished by the United States Postal Service or any reputable
commercial delivery service.
(c) Nothing in this Section 24.7 shall affect the right of any holder of a
Note to serve process in any manner permitted by law, or limit any right that
the holders of any of the Notes may have to bring proceedings against the
Company in the courts of any appropriate jurisdiction or to enforce in any
lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
(d) THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN ANY ACTION BROUGHT ON
OR WITH RESPECT TO THIS AGREEMENT, THE NOTES OR ANY OTHER DOCUMENT EXECUTED IN
CONNECTION HEREWITH OR THEREWITH.
* * * * *
[Remainder of page intentionally blank. Next page is signature page.]
41
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
Company, whereupon the foregoing shall become a binding agreement between you
and the Company.
Very truly yours,
INVACARE CORPORATION
By: /s/Xxxx X. Xxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President and Treasurer
The foregoing is hereby agreed to as of the date thereof.
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
METLIFE INVESTORS INSURANCE COMPANY
TRAVELERS LIFE AND ANNUITY REINSURANCE COMPANY
BY: METROPOLITAN LIFE INSURANCE COMPANY,
ITS INVESTMENT MANAGER
By: /s/Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
The foregoing is hereby agreed to as of the date thereof.
AXA EQUITABLE LIFE INSURANCE COMPANY
By: /s/Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Investment officer
MONY LIFE INSURANCE COMPANY OF AMERICA
By: /s/Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Investment officer
MONY LIFE INSURANCE COMPANY
By: /s/Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Investment officer
The foregoing is hereby agreed to as of the date thereof.
HORIZON BLUE CROSS BLUE SHIELD OF NEW JERSEY
By: /s/Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
The foregoing is hereby agreed to as of the date thereof.
SYMETRA LIFE INSURANCE COMPANY,
a Washington corporation
By: Principal Global Investors, LLC, a
Delaware limited liability company,
its authorized signatory
By: /s/Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Counsel
By: /s/Xxxxx X. Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Counsel
PRINCIPAL LIFE INSURANCE COMPANY
By: Principal Global Investors, LLC, a
Delaware limited liability company,
its authorized signatory
By: /s/Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Counsel
By: /s/Xxxxx X. Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Counsel
VANTISLIFE INSURANCE COMPANY
By: Principal Global Investors, LLC, a
Delaware limited liability company,
its authorized signatory
By: /s/Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx X. Xxxxx
Title: Counsel
By: /s/Xxxxx X. Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Counsel
The foregoing is hereby agreed to as of the date thereof.
AVIVA LIFE INSURANCE COMPANY
By: Mellon Bank, N.A., solely in its capacity
as Custodian for Aviva Life-Principal
Glob Priv General Account Deferred TSA
(as directed by the Principal Global Investors,
LLC), and not in its individual capacity
(MAC & CO) - Nominee Name
By: /s/Xxxxxx Xxxxx
----------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
AVIVA LIFE INSURANCE COMPANY
By: Mellon Bank, N.A., solely in its capacity
as Custodian for Aviva Life-Principal
Glob Priv EG Convertible Securities (as
directed by the Principal Global Investors,
LLC), and not in its individual capacity
(MAC & CO) - Nominee Name
By: /s/Xxxxxx Xxxxx
----------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
The foregoing is hereby agreed to as of the date thereof.
THE GUARDIAN LIFE INSURANCE COMPANY
OF AMERICA
By: /s/Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
The foregoing is hereby agreed to as of the date thereof.
BERKSHIRE LIFE INSURANCE COMPANY
OF AMERICA
By: /s/Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
The foregoing is hereby agreed to as of the date thereof.
TEACHERS INSURANCE AND ANNUITY ASSOCIATION
OF AMERICA
By: /s/W. Xxxxxx Xxxxxxxx
----------------------------
Name: W. Xxxxxx Xxxxxxxx
Title: Managing Director
The foregoing is hereby agreed to as of the date thereof.
WOODMEN OF THE WORLD LIFE INSURANCE SOCIETY
By: /s/Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President Investments
The foregoing is hereby agreed to as of the date thereof.
LIFE INSURANCE COMPANY OF THE SOUTHWEST
By: /s/R. Xxxxx Xxxxxxx
----------------------------
Name: R. Xxxxx Xxxxxxx
Title: Vice President, Sentinel Asset Management
The foregoing is hereby agreed to as of the date thereof.
OHIO NATIONAL LIFE ASSURANCE CORPORATION
By: /s/Xxx X. Xxxxxx
----------------------------
Name: Xxx X. Xxxxxx
Title: Vice President, Private Placements
The foregoing is hereby agreed to as of the date thereof.
AMERICAN FAMILY LIFE INSURANCE COMPANY
By: /s/Xxxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Investment Director
SCHEDULE A
INFORMATION RELATING TO PURCHASERS
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
--------------------------------------------------------- $38,000,000
METROPOLITAN LIFE INSURANCE COMPANY
1 MetLife Plaza
00-00 Xxxxxx Xxxxx Xxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Payments
All scheduled payments of principal and interest by wire transfer of immediately
available funds to:
Bank Name: XX Xxxxxx Xxxxx Bank
ABA Routing#: 000-000-000
Account Number: 002-2-410591
Account Name: Metropolitan Life Insurance Company
Reference: Invacare
With sufficient information to identify the source and application of
such funds, including issuer, PPN#, interest rate, maturity and
whether payment is of principal, interest, make whole amount or
otherwise.
For all payments other than scheduled payments of principal and
interest, the Company shall seek instructions from the holder, and in
the absence of instructions to the contrary, will make such payments
to the account and in the manner set forth above.
Notices
All notices and communications:
Metropolitan Life Insurance Company
Investments, Private Placements
P. O. Box 1902 10 Park Avenue
Morristown, New Jersey 07962-1902
Attention: Director
Fax Number: (000) 000-0000
With a copy (OTHER than with respect to deliveries of
financial statements) to:
Metropolitan Life Insurance Company
P. O. Xxx 0000
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Chief Counsel - Securities Investments (PRIV)
Fax Number: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
Securities should be delivered to:
Metropolitan Life Insurance Company
Securities Investments, Law Department
X.X. Xxx 0000
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxx xx Xxxxx, Esq.
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
METLIFE INVESTORS INSURANCE COMPANY $1,000,000
c/o Metropolitan Life Insurance Company
1 MetLife Plaza
00-00 Xxxxxx Xxxxx Xxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Payments
All scheduled payments of principal and interest by wire transfer of immediately
available funds to:
JPMorgan Chase Bank
ABA #000-000-000
Account Number: 000-0-00000
Account Name: MetLife Investors Insurance Company
Reference: Invacare
With sufficient information to identify the source and application of
such funds, including issuer, PPN#, interest rate, maturity and
whether payment is of principal, interest, make whole amount or
otherwise.
For all payments other than scheduled payments of principal and
interest, the Issuers shall seek instructions from the holder, and in
the absence of instructions to the contrary, will make such payments
to the account and in the manner set forth above.
Notices
All notices and communications:
MetLife Investors Insurance Company
c/o Metropolitan Life Insurance Company
Investments, Private Placements
P. O. Box 1902 10 Park Avenue
Morristown, New Jersey 07962-1902
Attention: Director
Fax Number: (000) 000-0000
With a copy (OTHER than with respect to deliveries of financial
statements) to:
MetLife Investors Insurance Company
c/o Metropolitan Life Insurance Company
P. O. Xxx 0000 00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Chief Counsel - Securities Investments (PRIV)
Fax Number: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
Securities should be delivered to:
MetLife Investors Insurance Company
c/o Metropolitan Life Insurance Company
Securities Investments, Law Department
X.X. Xxx 0000
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxx xx Xxxxx, Esq.
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
THE TRAVELERS LIFE AND ANNUITY REINSURANCE COMPANY $1,000,000
c/o Metropolitan Life Insurance Company
1 MetLife Plaza
00-00 Xxxxxx Xxxxx Xxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Payments
All scheduled payments of principal and interest by wire transfer of immediately
available funds to:
XX Xxxxxx Chase Bank
ABA #000000000
Account Number: 304-170364
Account Name: The Travelers Life and Annuity Reinsurance Company
Reference: Invacare
With sufficient information to identify the source and application of
such funds, including issuer, PPN#, interest rate, maturity and
whether payment is of principal, interest, make whole amount or
otherwise.
For all payments other than scheduled payments of principal and
interest, the Issuers shall seek instructions from the holder, and in
the absence of instructions to the contrary, will make such payments
to the account and in the manner set forth above.
Notices
All notices and communications:
The Travelers Life and Annuity Reinsurance Company
c/o Metropolitan Life Insurance Company
Investments, Private Placements
P. O. Box 1902 10 Park Avenue
Morristown, New Jersey 07962-1902
Attention: Director
Fax Number: (000) 000-0000
With a copy (OTHER than with respect to deliveries of financial
statements) to:
The Travelers Life and Annuity Reinsurance Company
c/o Metropolitan Life Insurance Company
P. O. Xxx 0000 00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Chief Counsel - Securities Investments (PRIV)
Fax Number: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
Securities should be delivered to:
The Travelers Life and Annuity Reinsurance Company
c/o Metropolitan Life Insurance Company
Securities Investments, Law Department
X.X. Xxx 0000
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxx xx Xxxxx, Esq.
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
AXA EQUITABLE LIFE INSURANCE COMPANY $2,000,000
1290 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Payments
All payments shall be made by wire transfer of immediately available
funds to:
The Chase Manhattan Bank, N.A.
Account(s): AXA Equitable Life Insurance Company
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
ABA #021-000021
Bank Account: 000-0-000000
Custody Account G07126
Face Amount of $2,000,000.00
Each such wire shall show the name of the Company, the Private Placement Number,
the due date of the payment being made and, if such payment is a final payment.
Notices
All notices of payment and written confirmation of wire transfers
should be sent to:
AXA Equitable Life Insurance Company
x/x XxxxxxxxXxxxxxxxx XX
0000 Xxxxxx of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx: Telephone: (000) 000-0000
All other notices and communications to be addressed:
AXA Equitable Life Insurance Company
x/x XxxxxxxxXxxxxxxxx XX
0000 Xxxxxx of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx XxXxxxxx
AllianceBernstein LP
Telephone Number: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-000-0000
Securities to be delivered to:
AXA Equitable Life Insurance Company
1290 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Phone: 000-000-0000
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
AXA EQUITABLE LIFE INSURANCE COMPANY $19,000,000
1290 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Payments
All payments shall be made by wire transfer of immediately available
funds to:
The Chase Manhattan Bank, N.A.
Account(s): AXA Equitable Life Insurance Company
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
ABA #021-000021
Bank Account: 000-0-000000
Custody Account G05476
Face Amount of $19,000,000.00
Each such wire shall show the name of the Company, the Private Placement Number,
the due date of the payment being made and, if such payment is a final payment.
Notices
All notices of payment and written confirmation of wire transfers
should be sent to:
AXA Equitable Life Insurance Company
x/x XxxxxxxxXxxxxxxxx XX
0000 Xxxxxx of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx: Telephone: (000) 000-0000
All other notices and communications to be addressed:
AXA Equitable Life Insurance Company
x/x XxxxxxxxXxxxxxxxx XX
0000 Xxxxxx of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx XxXxxxxx
AllianceBernstein LP
Telephone Number: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-000-0000
Securities to be delivered to:
AXA Equitable Life Insurance Company
1290 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Phone: 000-000-0000
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
MONY LIFE INSURANCE COMPANY OF AMERICA $5,000,0000
c/o AXA Equitable Life Insurance Company
1290 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Rekasha Xxxxxxxx-XxXxxxxx, Law Department
Telephone: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
Invacare Corporation, 6.15% Senior Notes due 2016, PPN 461203 C* 0, principal,
premium or interest") to:
XX Xxxxxx/Xxxxx
ABA No.: 021-000021
For credit to MONY Life Insurance Company of America
Account Number: 000-0000-000
A/C: MONY America - G 52964
Face Amount of $5,000,000.00
Each such wire shall show the name of the Company, the private placement number,
the due date of the payment being made and, if such payment is a final payment.
Notices
All notices of payment and written confirmation of wire transfers
should be sent to:
MONY Life Insurance Company of America
x/x XxxxxxxxXxxxxxxxx XX
0000 Xxxxxx of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Address for all other communications to be addressed:
MONY Life Insurance Company of America
x/x XxxxxxxxXxxxxxxxx XX
0000 Xxxxxx of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx XxXxxxxx
Telephone Number: (000) 000-0000
Name of Nominee in which Notes are to be issued: J. ROMEO & CO
Purchaser's Taxpayer I.D. Number: 00-0000000
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
MONY LIFE INSURANCE COMPANY $7,000,0000
c/o AXA Equitable Life Insurance Company
1290 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Rekasha Xxxxxxxx-XxXxxxxx, Law Department
Telephone: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
Invacare Corporation, 6.15% Senior Notes due 2016, PPN 461203 C* 0, principal,
premium or interest") to:
XX Xxxxxx/Chase
ABA No.: 021-000021
For credit to MONY Life Insurance Company
Account Number: 000-0000-000
A/C: MONY Closed Block - G 52963
Face Amount of $7,000,000.00
Each such wire shall show the name of the Company, the private placement number,
the due date of the payment being made and, if such payment is a final payment.
Notices
All notices of payment and written confirmation of wire transfers
should be sent to:
MONY Life Insurance Company
x/x XxxxxxxxXxxxxxxxx XX
0000 Xxxxxx of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Address for all other communications to be addressed:
MONY Life Insurance Company
x/x XxxxxxxxXxxxxxxxx XX
0000 Xxxxxx of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx XxXxxxxx
Telephone Number: (000) 000-0000
Name of Nominee in which Notes are to be issued: J. ROMEO & CO
Purchaser's Taxpayer I.D. Number: 00-0000000
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
HORIZON BLUE CROSS BLUE SHIELD OF NEW $2,000,000
JERSEY
c/o AllianceBernstein LP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx/Xxxxx Xxxxxxx
Insurance Operations
Telephone: (000) 000-0000 or
(212) 969 -6384
Payments
All payments shall be made by wire transfer of immediately available
funds to:
XX Xxxxxx/Chase
ABA No.: 021-000021
For credit to Private Income Processing Group
Account Number: 000-0000-000
Account: Horizon Xxxx Xxxxx Xxxx Xxxxxx xx Xxx Xxxxxx-X00000
Face Amount of $2,000,000.00
Each such wire shall show the name of the Company, the Private Placement Number,
the due date of the payment being made and, if such payment is a final payment.
Notices
All notices of payments and written confirmations of wire transfers
should be sent to:
XX Xxxxxx Xxxxx Manhattan Bank
00000 X. Xxxxxx Xxxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000-0000
Fax: (000) 000-0000
Second copy of payments and written confirmations should be sent to:
Horizon Blue Cross Blue Shield of New Jersey
c/o AllianceBernstein LP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxx/Xxxx Xxxxx
Telephone: (000) 000-0000/(000) 000-0000
Fax: (000) 000-0000
Third copy of payments and written confirmations should be sent to:
Horizon Blue Cross Blue Shield of New Jersey
Three Xxxx Xxxxx
XX-00X
Xxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxx XxXxxxxx-Manager Cash & Investments
Telephone: (000) 000-0000 or (000) 000-0000
Fax: (000) 000-0000
Address for all other communications:
AllianceBernstein LP
1345 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Senior Vice President
Telephone: (000) 000-0000
Fax: (000) 000-0000
Name of Nominee in which Notes are to be issued: XXXX & Co.
Purchaser's Taxpayer I.D. Number: 00-0000000
Securities to be delivered to:
AllianceBernstein LP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx/Xxxxx Xxxxxxx
Insurance Operations
Phone: 000-000-0000 or 000-000-0000
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
SYMETRA LIFE INSURANCE COMPANY $3,000,000
c/o Principal Global Investors, LLC
000 Xxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Fixed Income Private Placements
Payments
All payments on or in respect of the Notes to be made by 12:00 noon (
New York
City time) by wire transfer of immediately available funds to:
JPMorgan Chase
ABA #000000000
For Acct: Funds Clearance
Account: 9009002859
OBI PFGSE (S) B0068681()
Attention: PPN Number 461203 C* 0 -
Invacare Corporation
Symetra Life - Annuities/AFS #P21158
With sufficient information (including interest rate, maturity date,
interest amount, principal amount and premium amount, if applicable) to
identify the source and application of such funds.
All notices to:
Symetra Life Insurance Company
c/o Principal Global Investors, LLC
000 Xxxx Xxxxxx, X-00
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Fixed Income Private Placements
and via Email: Xxxxxxxxxxxxxxxxx0@xxxxxxxx.xxxxxxxxx.xxx
With a copy of any notices related to scheduled payments, prepayments,
rate reset notices to:
Symetra Life Insurance Company
c/o Principal Global Investors, LLC
000 Xxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Investment Accounting Fixed Income Securities
Name of Nominee in which Notes are to be issued: Xxxx & Co.
Purchaser's Taxpayer I.D. Number: 00-0000000
Notes should be delivered to:
Xxxxxxxx Xxxxxx
White Mountains Advisors LLC
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
With a copy to XxXxxxx X. Xxxxx at Principal Global Investors LLC
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
SYMETRA LIFE INSURANCE COMPANY $2,750,000
c/o Principal Global Investors, LLC
000 Xxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Fixed Income Private Placements
Payments
All payments on or in respect of the Notes to be made by 12:00 noon (
New York
City time) by wire transfer of immediately available funds to:
JPMorgan Chase
ABA #000000000
For Acct: Funds Clearance
Account: 9009002859
OBI PFGSE (S) B0068681()
Attention: PPN Number 461203 C* 0 -
Invacare Corporation
Symetra Life - BOLI U LIFE #P21163
With sufficient information (including interest rate, maturity date,
interest amount, principal amount and premium amount, if applicable) to
identify the source and application of such funds.
All notices to:
Symetra Life Insurance Company
c/o Principal Global Investors, LLC
000 Xxxx Xxxxxx, X-00
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Fixed Income Private Placements
and via Email: Xxxxxxxxxxxxxxxxx0@xxxxxxxx.xxxxxxxxx.xxx
With a copy of any notices related to scheduled payments, prepayments,
rate reset notices to:
Symetra Life Insurance Company
c/o Principal Global Investors, LLC
000 Xxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Investment Accounting Fixed Income Securities
Name of Nominee in which Notes are to be issued: Xxxx & Co.
Purchaser's Taxpayer I.D. Number: 00-0000000
Notes should be delivered to:
Xxxxxxxx Xxxxxx
White Mountains Advisors LLC
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
With a copy to XxXxxxx X. Xxxxx at Principal Global Investors LLC
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
SYMETRA LIFE INSURANCE COMPANY $3,000,000
c/o Principal Global Investors, LLC
000 Xxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Fixed Income Private Placements
Payments
All payments on or in respect of the Notes to be made by 12:00 noon (
New York
City time) by wire transfer of immediately available funds to:
The Bank of New York
ABA #000-000-000
BNF: IOC566
F/A/O Symetra Life LTD Maturity #196
Account #318572
Attention: P & I Department
OBI PFGSE (S) B0068681()
Attention: PPN Number 461203 C* 0 -
Invacare Corporation
With sufficient information (including interest rate, maturity date,
interest amount, principal amount and premium amount, if applicable) to
identify the source and application of such funds.
All notices to:
Symetra Life Insurance Company
c/o Principal Global Investors, LLC
000 Xxxx Xxxxxx, X-00
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Fixed Income Private Placements
and via Email: Xxxxxxxxxxxxxxxxx0@xxxxxxxx.xxxxxxxxx.xxx
With a copy of any notices related to scheduled payments, prepayments,
rate reset notices to:
Symetra Life Insurance Company
c/o Principal Global Investors, LLC
000 Xxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Investment Accounting Fixed Income Securities
Name of Nominee in which Notes are to be issued: HARE & CO
Purchaser's Taxpayer I.D. Number: 00-0000000
Notes should be delivered to:
Xxxxxxxx Xxxxxx
White Mountains Advisors LLC
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
With a copy to XxXxxxx X. Xxxxx at Principal Global Investors LLC
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
AVIVA LIFE INSURANCE COMPANY $4,000,000
c/o Principal Global Investors, LLC
000 Xxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Fixed Income Private Placements
Payments
All payments on or in respect of the Notes to be made by 12:00 noon (New York
City time) by wire transfer of immediately available funds to:
Mellon Bank (Boston Safe Deposit)
000000000/BOS SAFE DEP
DDA#: 125261
Cost Center #1253
For Acct: Aviva Life-Principal Glob Priv General Account Deferred TSA
Account: AVAF2010522
OBI PFGSE (S) B0068681()
Attention: PPN Number 461203 C* 0 -
Invacare Corporation
With sufficient information (including CUSIP number, interest rate,
maturity date, interest amount, principal amount and premium amount, if
applicable) to identify the source and application of such funds.
All notices and communications, including notices with respect to payments, to:
Aviva Life Insurance Company
c/o Principal Global Investors, LLC
000 Xxxx Xxxxxx, X-00
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Fixed Income Private Placements
and via Email: Xxxxxxxxxxxxxxxxx0@xxxxxxxx.xxxxxxxxx.xxx
With a copy of any notices related to scheduled payments, prepayments,
rate reset notices to:
Aviva Life Insurance Company
c/o Principal Global Investors, LLC
000 Xxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Investment Accounting Fixed Income Securities
Name of Nominee in which Notes are to be issued: MAC & CO
Purchaser's Taxpayer I.D. Number: 00-0000000
Securities to be delivered to:
Mellon Securities Trust Company
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
AVIVA LIFE INSURANCE COMPANY $3,000,000
c/o Principal Global Investors, LLC
000 Xxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Fixed Income Private Placements
Payments
All payments on or in respect of the Notes to be made by 12:00 noon (New York
City time) by wire transfer of immediately available funds to:
Mellon Bank (Boston Safe Deposit)
000000000/BOS SAFE DEP
DDA#: 125261
Cost Center #1253
For Acct: Aviva Life-Principal Glob Priv EG Convertible Securities
Account: AVAF2011412
OBI PFGSE (S) B0068681()
Attention: PPN Number 461203 C* 0 - Invacare Corporation
With sufficient information (including CUSIP number, interest rate,
maturity date, interest amount, principal amount and premium amount, if
applicable) to identify the source and application of such funds.
All notices and communications, including notices with respect to payments, to:
Aviva Life Insurance Company
c/o Principal Global Investors, LLC
000 Xxxx Xxxxxx, X-00
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Fixed Income Private Placements
and via Email: Xxxxxxxxxxxxxxxxx0@xxxxxxxx.xxxxxxxxx.xxx
With a copy of any notices related to scheduled payments, prepayments,
rate reset notices to:
Aviva Life Insurance Company
c/o Principal Global Investors, LLC
000 Xxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Investment Accounting Fixed Income Securities
Name of Nominee in which Notes are to be issued: MAC & CO
Purchaser's Taxpayer I.D. Number: 00-0000000
Securities to be delivered to:
Mellon Securities Trust Company
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
PRINCIPAL LIFE INSURANCE COMPANY $5,275,000
c/o Principal Global Investors, LLC $1,000,000
000 Xxxx Xxxxxx x000,000
Xxx Xxxxxx, Xxxx 00000-0000 $400,000
$375,000
$300,000
$250,000
$150,000
Payments
All payments on or in respect of the Notes to be made by 12:00 noon (New York
City time) by wire transfer of immediately available funds to:
ABA #000000000
Xxxxx Fargo Bank, N.A.
San Francisco, CA
For credit to Principal Life Insurance Company
Account Xx. 0000000000
XXX XXXXX (X) B0068681()
Attention: PPN Number 461203 C* 0 - Invacare Corporation
With sufficient information (including Cusip number, interest rate,
maturity date, interest amount, principal amount and premium amount, if
applicable) to identify the source and application of such funds.
All notices to:
Principal Global Investors, LLC
000 Xxxx Xxxxxx, X-00
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Fixed Income Private Placements
and via Email: Xxxxxxxxxxxxxxxxx0@xxxxxxxx.xxxxxxxxx.xxx
With a copy of any notices related to scheduled payments, prepayments,
rate reset notices to:
Principal Global Investors, LLC
000 Xxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Investment Accounting Fixed Income Securities
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
Original Notes delivered to:
Principal Global Investors, LLC
000 Xxxx Xxxxxx, X-00
Xxx Xxxxxx, Xxxx 00000-0000
Attention: XxXxxxx X. Xxxxx
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
VANTISLIFE INSURANCE COMPANY $1,000,000
c/o Principal Global Investors, LLC
000 Xxxx Xxxxxx, X-00
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Fixed Income Private Placements
Payments
All payments on or in respect of the Notes to be made by 12:00 noon (New York
City time) by wire transfer of immediately available funds to:
ABA #000000000
Bank Name: BNIM (BANKNORTH WEALTH MANAGEMENT GROUP)
DDA #0060157930
For credit to the account of: VantisLife Insurance Company
FFC a/c: 749546016
OBI PFGSE (S) B0068681()
Attention: PPN Number 461203 C* 0 - Invacare Corporation
With sufficient information (including Cusip number, interest rate,
maturity date, interest amount, principal amount and premium amount, if
applicable) to identify the source and application of such funds.
All notices to:
VantisLife Insurance Company
c/o Principal Global Investors, LLC
000 Xxxx Xxxxxx, X-00
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Fixed Income Private Placements
and via Email: Xxxxxxxxxxxxxxxxx0@xxxxxxxx.xxxxxxxxx.xxx
With a copy of any notices related to scheduled payments, prepayments,
rate reset notices to:
VantisLife Insurance Company
c/o Principal Global Investors, LLC
000 Xxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Investment Accounting Fixed Income Securities
Name of Nominee in which Notes are to be issued: HARE & CO
Purchaser's Taxpayer I.D. Number: 00-0000000
Notes should be delivered by overnight courier to:
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Free Reserve Dept. (OWs 5)
With a copy to:
VantisLife Insurance Company
000 Xxx Xxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
and to XxXxxxx X. Xxxxx at Principal Life Insurance Company
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA $15,000,000
0 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxxxx, Investment Dept. 20-D
Fax Number: (000) 000-0000/2656
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
Invacare Corporation, 6.15% Senior Notes due 2016, PPN 461203 C* 0, principal,
premium or interest") to:
XX Xxxxxx Chase
FED ABA #000000000
CHASE/NYC/CTR/BNF
A/C 000-0-000000
Reference A/C #G05978, Guardian Life, PPN 461203 C* 0, Invacare
Corporation
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
BERKSHIRE LIFE INSURANCE COMPANY OF AMERICA $5,000,000
c/o The Guardian Life Insurance Company of America
0 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxxxx, Investment Dept. 20-D
Fax Number: (000) 000-0000/2656
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
Invacare Corporation, 6.15% Senior Notes due 2016, PPN 461203 C* 0, principal,
premium or interest") to:
XX Xxxxxx Chase
FED ABA #000000000
CHASE/NYC/CTR/BNF
A/C 000-0-000000
Reference A/C #G07064, Berkshire Life Insurance, PPN 461203 C* 0,
Invacare Corporation
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
TEACHERS INSURANCE AND ANNUITY $13,000,000
ASSOCIATION OF AMERICA
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Payments
All payments on or in respect of the Notes shall be made in immediately
available funds on the due date by electronic funds transfer, through the
Automated Clearing House System, to:
JPMorgan Chase Bank, N.A.
ABA #000-000-000
Account Number 000-0-000000
Account Name: TIAA
For Further Credit to the Account Number: G07040
Reference: PPN 461203 C* 0/Invacare Corporation
Maturity Date: April 27 2016/Interest Rate: 6.15%/P&I Breakdown
Notices
All notices with respect to payments and prepayments of the Notes shall
be sent to:
Teachers Insurance and Annuity Association of America
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Securities Accounting Division
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
JPMorgan Chase Bank, N.A.
P. O. Xxx 00000
Xxxxxx, Xxx Xxxxxx 00000
Contemporaneous written confirmation of any electronic funds transfer shall be
sent to the above addresses setting forth: (1) the full name, private placement
number, interest rate and maturity date of the Notes; (2) the allocation of the
payment between principal, interest, Make-Whole Amount, other premium or any
special payment; and (3) the name and address of the bank from which such
electronic funds transfer was sent.
All notices and communications, including notices with respect to payments and
prepayments, shall be delivered or mailed to:
Teachers Insurance and Annuity Association of America
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Fixed Income and Real Estate
Phone: (000) 000-0000 (Xxxxxx Xxxxxxxx)
(000) 000-0000 (General Number) Fax: (000) 000-0000
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
Deliver Notes to:
JPMorgan Chase Bank, N.A.
4 New York Xxxxx
Xxxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
For TIAA A/C #G07040
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
WOODMEN OF THE WORLD LIFE INSURANCE $5,000,000
SOCIETY
0000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Securities Department
Telecopier Number: (000) 000-0000
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
Invacare Corporation, 6.15% Senior Notes due 2016, PPN 461203 C* 0, principal,
premium or interest") to:
First Bank, N.A.
ABA #000000000
0000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
for the account of: WOW
Account Number 1-487-477-7-0730
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
LIFE INSURANCE COMPANY OF THE SOUTHWEST $5,000,000
c/o National Life Insurance Company
One National Life Drive
Montpelier, Vermont 05604
Attention: Private Placements
Fax Number: (000) 000-0000
E-mail: xxxxxxxx@xxxxxxxxxxxx.xxx
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
Invacare Corporation, 6.15% Senior Notes due 2016, PPN 461203 C* 0, principal,
premium or interest") to:
X.X. Xxxxxx Xxxxx & Xx. Xxx Xxxx, Xxx Xxxx 00000
ABA #000000000
Account Number 000-0-000000
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
OHIO NATIONAL LIFE ASSURANCE CORPORATION $4,000,000
P. O. Xxx 000
Xxxxxxxxxx, Xxxx 00000
Attention: Investment Department
Telefacsimile: (000) 000-0000
Overnight Delivery Address:
Xxx Xxxxxxxxx Xxx
Xxxxxxxxxx, Xxxx 00000
Attention: Investment Department
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds (identifying each payment as
Invacare Corporation, 6.15% Senior Notes due 2016, PPN 461203 C* 0, principal,
premium or interest") to:
U.S. Bank N.A. (ABA #042-0000-13) 0xx xxx Xxxxxx Xxxxxxx Xxxxxxxxxx,
Xxxx 00000
for credit to: Ohio National Life Assurance Corporation's Account
Number 000-000-0
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment, to be addressed as first provided
above.
Name of Nominee in which Notes are to be issued: None
Taxpayer I.D. Number: 00-0000000
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
AMERICAN FAMILY LIFE INSURANCE COMPANY $2,000,000
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Investment Division - Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds. Each such wire transfer shall set
forth the name of the Company, the full title (including the coupon rate and
final maturity date) of the Notes, and the due date and application among
principal and interest of the payment being made. Payment shall be made to:
US Bank, N.A.
Trust Services
00 Xxxxxxxxxx Xxx., Xx. Xxxx, XX 00000-0000
ABA #000000000
Beneficial Account #180183083765
FFC to American Family Trust Account #000018012510 for AFLIC-Universal
Life Portfolio Credit for PPN 461203 C* 0
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment as well as quarterly and annual
financial statements, to be addressed as first provided above. Audit
confirmations should be sent to: "Attention: Treasury Department" at the same
address.
Name of Nominee in which Notes are to be issued: BAND & Co.
Taxpayer I.D. Number: 00-0000000
Notes to be delivered to:
US Bank Milwaukee, N.A.
Attn: Xxxxx Xxxxxx (XX-XX-1E)
Trust Officer, Account Manager
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
with a copy of the Notes to American Family Life Insurance Company as
addressed above.
PRINCIPAL AMOUNT OF NOTES
NAME AND ADDRESS OF PURCHASER TO BE PURCHASED
AMERICAN FAMILY LIFE INSURANCE COMPANY $1,000,000
0000 Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Investment Division - Private Placements
Payments
All payments on or in respect of the Notes to be by bank wire transfer of
Federal or other immediately available funds. Each such wire transfer shall set
forth the name of the Company, the full title (including the coupon rate and
final maturity date) of the Notes, and the due date and application among
principal and interest of the payment being made. Payment shall be made to:
US Bank, N.A.
Trust Services
00 Xxxxxxxxxx Xxx., Xx. Xxxx, XX 00000-0000
ABA #000000000
Beneficial Account #180183083765
FFC to American Family Trust Account #000018012800 for AFLIC-Annuities
Portfolio Credit for PPN 461203 C* 0
Notices
All notices and communications, including notices with respect to payments and
written confirmation of each such payment as well as quarterly and annual
financial statements, to be addressed as first provided above. Audit
confirmations should be sent to: "Attention: Treasury Department" at the same
address.
Name of Nominee in which Notes are to be issued: BAND & Co.
Taxpayer I.D. Number: 00-0000000
Notes to be delivered to:
US Bank Milwaukee, N.A.
Attn: Xxxxx Xxxxxx (XX-XX-1E)
Trust Officer, Account Manager
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
with a copy of the Notes to American Family Life Insurance Company as
addressed above.
SCHEDULE B
(to
Note Purchase Agreement)
DEFINED TERMS
As used herein, the following terms have the respective meanings set forth
below or set forth in the Section hereof following such term:_______
"Affiliate" means, at any time,
(a) with respect to any Person, any other Person that at such time
directly or indirectly through one or more intermediaries Controls, or is
Controlled by, or is under common Control with, such first Person, and
(b) with respect to the Company, any Person beneficially owning or
holding, directly or indirectly, 10% or more of any class of voting or
equity interests of the Company or any Subsidiary or any corporation,
company, partnership or other entity of which the Company and its
Subsidiaries beneficially own or hold, in the aggregate, directly or
indirectly, 10% or more of any class of voting or equity interests.
As used in this definition, "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise. Unless the context otherwise clearly requires, any
reference to an "Affiliate" is a reference to an Affiliate of the Company.
"Agreement, this" is defined in Section 18.3.
"Basket Transfer" is defined in Section 11.8.
"Board of Directors" means, the board of directors of the Company or any
committee thereof which, in the instance, shall have the lawful power to
exercise the power and authority of such board of directors.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks in New York, New York or Cleveland, Ohio are authorized
or required to close under the laws of the State of New York or the State of
Ohio (other than a general banking moratorium or holiday for a period exceeding
four consecutive days).
"Capital Lease" means, with respect to the Company or any of its
Subsidiaries, a lease with respect to which such Person is required concurrently
to recognize the acquisition of an asset and the incurrence of a liability in
accordance with GAAP (whether pursuant to an entry or entries on the balance
sheet of such Person or in a footnote to its financial statements).
"Capital Lease Obligation" means, with respect to the Company or any of its
Subsidiaries and a Capital Lease, the amount of the obligation of such Person as
the lessee under such Capital Lease which would, in accordance with GAAP, appear
as a liability on a balance sheet of such Person.
"Change in Control" means, at any time, either
(a) the acquisition by any person (as such term is used in section
13(d) and section 14(d)(2) of the Exchange Act) or related persons
constituting a group (as such term is used in Rule 13d-5 under the Exchange
Act), directly or indirectly, of the beneficial ownership and control of
more than 50% of the total voting power of all of the then issued and
outstanding Voting Stock of the Company or any Successor Company, provided,
however, if the Management Team or persons constituting a group (as such
term is used in Rule 13d-5 under the Exchange Act) of which the Management
Team is a part shall acquire, directly or indirectly, the beneficial
ownership and control of more than 50% of the total voting power of the
then issued and outstanding Voting Stock of the Company or any Successor
Company, no "Change in Control" shall be deemed to have occurred or
(b) with respect to any period of 12 consecutive months, the failing
by individuals who, at the beginning of such period, constitute the Board
of Directors (such individuals being referred to herein as the "original
members") (including among such original members (i) any new director who
was elected by the Board of Directors during such period to replace any
other director that may have died, may have become disabled, was
involuntarily dismissed for breach of his or her fiduciary duties or
otherwise voluntarily resigned for personal reasons during such period,
(ii) any new director that is a member of the Management Team or (iii) any
new director whose election to the Board of Directors or whose nomination
for election by the Company's shareholders was approved by a vote of not
less than 50% of the directors then still in office who either were
original members, whose election or nomination was previously approved as
provided in this clause (iii) by more than 50% of the original members or
who qualify under either subclause (i) or (ii) above) to constitute for any
reason a majority of the Board of Directors then in office, provided that
if an original member should die, become disabled, be involuntarily
dismissed for breach of his or her fiduciary duties or shall otherwise
voluntarily resign for personal reasons during such period and shall not be
replaced by the Board of Directors, then such original member shall be
deemed, for purposes of this clause (b), not to have been an original
member of the Company during any portion of such 12 consecutive month
period.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time.
"Company" is defined in the introductory sentence of this Agreement.
"Competitor" means
(a) each Person which is (i) engaged in the design, manufacture or
distribution of medical equipment for the home, healthcare, retail or
extended care markets and (ii) identified as a "Competitor" on Schedule B-C
and the successors and assigns thereof;
(b) each Person which is (i) engaged in the design, manufacture or
distribution of medical equipment for the home, healthcare, retail or
extended care markets and (ii) identified by the Company as a "Competitor"
in a certification delivered to the holders of the Notes from time to time,
which Person so identified is consented to by the Required Holders (which
consent shall not be unreasonably withheld);
(c) any Person legally or beneficially owning, directly or indirectly,
more than 25% of the issued and outstanding Voting Stock of any Person
which would qualify as a "Competitor" under clause (a) or clause (b) of
this definition; and
(d) any Person more than 25% of the issued and outstanding Voting
Stock of which is legally or beneficially owned by any Person which would
qualify as a "Competitor" under clause (a) or clause (b) of this
definition,
provided that
(i) none of the Purchasers or their affiliates, and
(ii) no Person that is primarily a bank, trust company, savings
and loan association or other financial institution, a pension plan
(other than a pension plan for a Competitor), an investment company,
an insurance company, a broker or dealer, or any other similar
financial institution or entity (regardless of legal form),
shall be considered or deemed to be a "Competitor."
"Confidential Information" is defined in Section 21.
"Consolidated Debt" means, as of any date of determination, the total of
all Debt of the Company and its Subsidiaries outstanding on such date,
determined on a consolidated basis at such time in accordance with GAAP.
"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 in any Person that is not a Subsidiary.
"Consolidated Net Worth" means, at any time, the total shareholders' equity
of the Company and its Subsidiaries as would be shown on a consolidated balance
sheet of the Company and its Subsidiaries as of such time prepared in accordance
with GAAP.
"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.
"Consolidated Total Assets" means, at any time, the total assets of the
Company and its Subsidiaries determined on a consolidated basis at such time in
accordance with GAAP, less, to the extent otherwise included in shareholders'
equity, all assets that have been pledged in connection with, have been
purported to be sold or otherwise transferred under or otherwise relate to the
Permitted Receivables Securitization Program in an amount equal to the amount of
the related Debt.
"Control Event" means:
(a) the execution by the Company, a Subsidiary or an Affiliate of the
Company of any agreement or letter of intent with respect to any proposed
transaction or event or series of transactions or events which,
individually or in the aggregate, may reasonably be expected to result in a
Change in Control,
(b) the execution of any written agreement which, when fully performed
by the parties thereto, would result in a Change in Control, or
(c) the making of any written offer by any person (as such term is
used in section 13(d) and section 14(d)(2) of the Exchange Act) or related
persons constituting a group (as such term is used in Rule 13d-5 under the
Exchange Act) to the holders of the Voting Stock of the Company, which
offer, if accepted by the requisite number of holders, would result in a
Change in Control.
"Control Prepayment Date" is defined in Section 8.6.
"Credit Agreement" means that certain Credit Agreement dated as of January
14, 2005 among the Company, the Subsidiaries who are signatories thereto,
JPMorgan Chase Bank, N.A. as Agent, Keybank National Association as Syndication
Agent, X.X. Xxxxxx Securities Inc. and Keybank National Association as Co-Lead
Arrangers and the banks set forth on the signature pages thereto, as amended,
refinanced or otherwise modified from time to time.
"Debt" means, with respect to the Company or any of its Subsidiaries,
without duplication,
(a) its liabilities for borrowed money and its redemption obligations
in respect of mandatorily redeemable preferred stock;
(b) its liabilities for the deferred purchase price of property
acquired by such Person (excluding accounts payable arising in the ordinary
course of business, but including, without limitation, all liabilities
created or arising under any conditional sale or other title retention
agreement with respect to any such property);
(c) its Capital Lease Obligations;
(d) all liabilities for borrowed money secured by any Lien with
respect to any property owned by such Person (whether or not it has assumed
or otherwise become liable for such liabilities);
(e) all reimbursement obligations in respect of any letter of credit
issued for the account of such Person other than (i) commercial letters of
credit issued in the ordinary course of such Person's business (and not as
a substitute for direct borrowing or Guaranties thereof) and (ii) letters
of credit issued in the ordinary course of such Person's business that act
as the functional equivalent of a surety bond or performance bond for such
Person;
(f) Swaps of such Person; and
(g) any Guaranty of such Person with respect to liabilities of a type
described in any of clauses (a) through (f) hereof.
For the purposes of the avoidance of doubt, "Debt" shall not include (i)
any benefit liability or funding obligation of the Company or any of its
Subsidiaries in respect of any Plan or (ii) amounts outstanding under any
Permitted Receivables Securitization Program, whether or not such amounts are
shown as a liability on the balance sheet of the Company or any of its
Subsidiaries. For purposes of determining "Debt," no amount listed above shall
be included more than once in such determination.
"Debt Offered Prepayment Application" means, with respect to any Transfer
of property, the offering, in writing, by the Company of cash in an amount not
exceeding the Net Proceeds Amount with respect to such Transfer to pay any
Senior Debt (other than Senior Debt owing to any Affiliate and other than Senior
Debt in respect of any revolving credit or similar credit facility providing the
Company or any Subsidiary with the right to obtain loans or other extensions of
credit from time to time, except to the extent that in connection with such
payment of Senior Debt the availability of credit under such credit facility is
permanently reduced by an amount not less than the amount of such proceeds
applied to the payment of such Senior Debt) and any interest and premium in
respect thereof, provided that in connection with any such Transfer and payment
of such Senior Debt, the Company shall have offered to prepay the Ratable
Portion in respect of each outstanding Note in accordance with Section 8.4 and
shall have prepaid each holder of each such Note that shall have accepted such
offer of prepayment in accordance with said Section in a principal amount which,
when added to the Make-Whole Amount applicable thereto, if any, and any accrued
and unpaid interest thereon, equals the Ratable Portion for such Note. For
purposes of Section 11.7, a Net Proceeds Amount shall be deemed applied to a
Debt Offered Prepayment Application upon the extension of the offer in respect
of such Debt Offered Prepayment Application, provided that if the actual
prepayments in respect thereof, if any, are not made in accordance with the
requirements of such offer or, in any case, are not made within 365 days after
the applicable Transfer, such application of such Net Proceeds Amount will be
deemed not to have been made.
"Default" means an event or condition the occurrence or existence of which
would, with the lapse of time or the giving of notice or both, become an Event
of Default.
"Default Rate" means the lesser of:
(a) the maximum rate of interest allowed by applicable law, and
(b) the greater of (i) 8.15% per annum and (ii) 2% per annum over the
rate of interest publicly announced from time to time by XX Xxxxxx Chase
Bank N.A. (or its successors) in New York, New York, as its "base" or
"prime" rate.
"Environmental Laws" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including but not limited to
those related to hazardous substances or wastes, air emissions and discharges to
waste or public systems.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
that is treated as a single employer together with the Company under section 414
of the Code.
"Event of Default" is defined in Section 12.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Fair Market Value" means, at any time and with respect to any property,
the sale value of such property that would be realized in an arm's-length sale
at such time between an informed and willing buyer and an informed and willing
seller (neither being under a compulsion to buy or sell).
"Fiscal Quarter" means the fiscal period in respect of which the Company's
consolidated quarterly financial statements are prepared.
"Fiscal Year" means the fiscal period in respect of which the Company's
consolidated annual financial statements are prepared.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"Governmental Authority" means:
(a) the government of:
(i) the United States of America or any state or other political
subdivision thereof, or
(ii) any jurisdiction in which the Company or any of its
Subsidiaries conducts all or any part of its business, or that asserts
jurisdiction over any properties of any such Person, or
(b) any entity exercising executive, legislative, judicial, regulatory
or administrative functions of, or pertaining to, any such government.
"Guaranty" means, with respect to any Person (for the purposes of this
definition, the "guarantor"), any obligation (except the endorsement in the
ordinary course of business of negotiable instruments for deposit or collection)
of such Person guaranteeing or in effect guaranteeing any indebtedness, dividend
or other obligation of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, including, without limitation, obligations
incurred through an agreement, contingent or otherwise, by the guarantor:
(a) to purchase such indebtedness or obligation or any property
constituting security therefor;
(b) to advance or supply funds:
(i) for the purchase or payment of such indebtedness, dividend or
obligation, or
(ii) to maintain working capital or other balance sheet condition
or any income statement condition of the primary obligor or otherwise
to advance or make available funds for the purchase or payment of such
indebtedness, dividend or obligation;
(c) to lease property or to purchase securities or other property or
services primarily for the purpose of assuring the owner of such
indebtedness or obligation of the ability of the primary obligor to make
payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of the indebtedness or obligation of
the primary obligor against loss in respect thereof.
For purposes of computing the amount of any Guaranty in connection with any
computation of indebtedness or other liability, it shall be assumed that the
indebtedness or other liabilities that are the subject of such Guaranty are
direct obligations of the issuer of such Guaranty.
"Hazardous Material" means any and all pollutants, toxic or hazardous
wastes or any other substances that might pose a hazard to health or safety, the
removal of which may be required or the generation, manufacture, refining,
production, processing, treatment, storage, handling, transportation, transfer,
use, disposal, release, discharge, spillage, seepage, or filtration of which is
or shall be restricted, prohibited or penalized by any applicable law
(including, without limitation, asbestos, urea formaldehyde foam insulation and
polychlorinated biphenyls).
"Holder" means, with respect to any Note, the Person in whose name such
Note is registered in the register maintained by the Company pursuant to Section
14.1.
"ICC" means Invacare Credit Corporation, an Ohio corporation, as in
existence on the date hereof.
"Institutional Investor" means (a) any original purchaser of a Note, (b)
any holder of a Note (other than a Competitor) holding more than 10% of the
aggregate principal amount of the Notes then outstanding, (c) any bank, trust
company, savings and loan association or other financial institution, any
pension plan (other than a pension plan for a Competitor), any investment
company, any insurance company, any broker or dealer, or any other similar
financial institution or entity, regardless of legal form.
"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.
"Lien" means, with respect to the Company or any Subsidiary, any mortgage,
lien, pledge, charge, security interest or other encumbrance, or any interest or
title of any vendor, lessor, lender or other secured party to or of such Person
under any conditional sale or other title retention agreement or Capital Lease,
upon or with respect to any property or asset of such Person. The term "Lien"
shall not include any so-called "negative pledge" provisions in agreements
covering the incurrence of Debt.
"Make-Whole Amount" is defined in Section 8.7.
"Management Team" means the group of individuals set forth on Schedule
B-MT, provided that, if more than 50% of such individuals shall no longer be
actively involved in the management of the Company, whether pursuant to death,
disability, voluntary or involuntary disassociation with the Company, retirement
or otherwise, the "Management Team" will be deemed to no longer exist.
"Material" means material in relation to the business, operations, affairs,
financial condition, assets, properties, or prospects of the Company and its
Subsidiaries, taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets, prospects or
properties of the Company and its Subsidiaries, taken as a whole, or (b) the
ability of the Company to perform its obligations under this Agreement, the
Other Agreements and the Notes, or (c) the validity or enforceability of this
Agreement, the Other Agreements or the Notes.
"Material Debt" means, as of the date of any determination thereof, one or
more obligations of the Company or any Subsidiary constituting Debt which,
individually or in the aggregate, exceeds $5,000,000.
"Material Subsidiary" means any Subsidiary if:
(a) the assets of such Subsidiary (valued at the greater of book or
fair market) as of the last day of the then most recently completed Fiscal
Year exceed 10% of Consolidated Total Assets determined on the same day; or
(b) the portion of Consolidated Net Earnings which was contributed by
such Subsidiary during the then most recently completed Fiscal Year exceeds
10% of Consolidated Net Earnings for such Fiscal Year.
"Memorandum" is defined in Section 5.3.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as such
term is defined in section 4001(a)(3) of ERISA).
"Net Proceeds Amount" means, with respect to any Transfer of any property
by the Company or any Subsidiary, an amount equal to the difference of:
(a) the aggregate amount of the consideration (valued at the Fair
Market Value of such consideration at the time of the consummation of such
Transfer as determined by the Board of Directors of the Company in good
faith) paid by the transferee in respect of such Transfer, minus
(b) all ordinary and reasonable out-of-pocket costs and expenses
actually incurred by the transferor in connection with such Transfer
(including, without limitation, all income taxes on gains on such Transfer)
and all Debt secured by such property and required by its terms to be paid
in connection with the consummation of such Transfer.
"Non-US Pension Plan" means any plan, fund or other similar program that
(a) is established or maintained outside of the United States of America by any
one or more of the Company or its Subsidiaries primarily for the benefit of the
employees of the Company or such Subsidiaries substantially all of whom are
non-resident aliens, which plan, fund or other similar program provides for
retirement income for such employees or results in a deferral of income for such
employees in contemplation of retirement and (b) is not subject to control under
ERISA or the Code.
"Notes" is defined in Section 1.
"Officer's Certificate" means a certificate of a Senior Financial Officer
or of any other officer of the Company whose responsibilities extend to the
subject matter of such certificate.
"Other Agreements" is defined in Section 2.
"Other Purchasers" is defined in Section 2.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA or any successor thereto.
"Permitted Receivables Securitization Program" means one or more
transactions wherein the Company and/or a Subsidiary sells or otherwise
transfers receivables, related assets and rights to collections of the Company
and/or such Subsidiary to a Special Purpose Subsidiary which issues or incurs
Debt (which Debt may be secured by all or substantially all of the assets of
such Special Purpose Subsidiary); provided, however, that (i) as part of such
sale or transfer, the Company and/or such Subsidiary shall not have any
obligation with respect to any payments in respect of such Debt or any other
amounts owing with respect to such transferred assets to the extent that such
obligations constitute credit recourse with respect to such transferred assets,
such Debt to be recourse only to such receivables and such Special Purpose
Subsidiary, (ii) the aggregate principal amount of all indebtedness outstanding
of all Special Purpose Subsidiaries pursuant to such transactions shall not at
any time exceed $150,000,000 and (iii) at the time of any such transaction and
immediately after giving effect thereto, no Default or Event of Default would
exist and the Company could incur at least $1.00 of additional Debt pursuant to
Section 11.4 and 11.5.
"Person" means an individual, partnership, corporation, limited liability
company, association, trust, unincorporated organization, or a government or
agency or political subdivision thereof.
"Plan" means an "employee benefit plan" (as defined in section 3(3) of
ERISA) that is or, within the preceding five years, has been established or
maintained, or to which contributions are or, within the preceding five years,
have been made or required to be made, by the Company or any ERISA Affiliate or
with respect to which the Company or any ERISA Affiliate may have any liability.
"Preferred Stock" means any class of capital stock of a corporation that is
preferred over any other class of capital shares of such corporation as to the
payment of dividends or the payment of any amount upon liquidation or
dissolution of such corporation.
"Priority Debt" means the sum, without duplication, of (i) Debt of the
Company secured by Liens not otherwise permitted by clauses (a) through (k) of
Section 11.7, and (ii) all Debt of all Subsidiaries not otherwise permitted by
clauses (a) through (d) of Section 11.5; provided, however, notwithstanding the
foregoing, "Priority Debt" shall include all Debt of Subsidiaries outstanding
under the Credit Agreement.
"property" or "properties" means, unless otherwise specifically limited,
real or personal property of any kind, tangible or intangible, xxxxxx or
inchoate.
"Property Reinvestment Application" means, with respect to any Transfer of
property, the application of an amount not exceeding the Net Proceeds Amount
with respect to such Transfer to the acquisition by the Company or a Subsidiary
of (a) property to be used in the business of the Company and the Subsidiaries
or (b) a business reasonably related to the business of the Company and the
Subsidiaries, taken as a whole, and, in either case, of at least an equivalent
value in respect of the property that was so Transferred.
"PTE" is defined in Section 6.2.
"QPAM Exemption" means Prohibited Transaction Class Exemption 84-14 issued
by the United States Department of Labor.
"Ratable Portion" means, with respect to any Note and any Debt Offered
Prepayment Application with respect thereto, an amount equal to the product of
(a) the Net Proceeds Amount being offered to the payment of Senior Debt in
connection with such Debt Offered Prepayment Application multiplied by (b) a
fraction the numerator of which is the outstanding principal amount of such Note
and the denominator of which is the aggregate principal amount of all Senior
Debt with respect to which such offer of prepayment is made.
"Required Holders" means, at any time, the holders of more than 50% in
principal amount of the Notes at the time outstanding (exclusive of Notes then
owned by the Company or any of its Subsidiaries or any Affiliates thereof).
"Responsible Officers" means any Senior Financial Officer and any other
officer of the Company with responsibility for the administration of the
relevant portion of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Senior Debt" means (a) any unsecured Debt of the Company that is not in
any manner subordinated in right of payment to the Notes or to any other Debt of
the Company or (b) unsecured Debt of any Subsidiary, if, but only if, the
Transfer of property giving rise to a corresponding Debt Offered Prepayment
Application is in respect of property owned by such Subsidiary.
"Senior Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or comptroller of the Company.
"Source" is defined in Section 6.2.
"Special Purpose Subsidiary" means a Wholly-Owned Subsidiary organized
under the laws of the United States or any State thereof and authorized solely
to (i) purchase or otherwise acquire receivables, related assets and rights to
collections from the Company or a Subsidiary, and (ii) engage in other
activities reasonably necessary to effectuate the transactions referred to in
clause (i).
"Subsidiary" means, as to any Person, any corporation, association, limited
liability company or other similar business entity in which such Person or one
or more of its Subsidiaries or such Person and one or more of its Subsidiaries
owns sufficient equity or voting interests to enable it or them (as a group)
ordinarily, in the absence of contingencies, to elect a majority of the
directors (or Persons performing similar functions) of such entity, and any
partnership or joint venture if more than a 50% interest in the profits or
capital thereof is owned by such Person or one or more of its Subsidiaries or
such Person and one or more of its Subsidiaries (unless such partnership or
joint venture can and does ordinarily take major business actions without the
prior approval of such Person or one or more of its Subsidiaries). Unless the
context otherwise clearly requires, any reference to a "Subsidiary" is a
reference to a Subsidiary of the Company, provided that "Subsidiary" shall not
include a special purpose entity (a) that is formed for the sole purpose of
acquiring receivables from ICC (or any other Subsidiary primarily responsible
for providing credit to the customers of the Company and its Subsidiaries), (b)
that meets the requirements of GAAP with respect to special purpose entities and
the off-balance sheet treatment of the transfer of financial assets thereto, (c)
that is not required by GAAP to be consolidated with the Company and its other
Subsidiaries, (d) with respect to which the Transfer of such receivables is
treated under GAAP as a sale of the same and (e) with respect to which the
Transfer of such receivables qualifies as a so-called "true sale" under
applicable law and such qualification is confirmed by the delivery to the
Company of a customary "true sale" opinion.
"Successor Company" is defined in Section 11.2.
"Swaps" means, with respect to any Person, payment obligations with respect
to interest rate swaps, currency swaps and similar obligations obligating such
Person to make payments, whether periodically or upon the happening of a
contingency. For the purposes of this Agreement, the amount of the obligation
under any Swap shall be the amount determined in respect thereof as of the end
of the then most recently ended fiscal quarter of such Person, based on the
assumption that such Swap had terminated at the end of such fiscal quarter, and
in making such determination, if any agreement relating to such Swap provides
for the netting of amounts payable by and to such Person thereunder or if any
such agreement provides for the simultaneous payment of amounts by and to such
Person, then in each such case, the amount of such obligation shall be the net
amount so determined. For purposes of this Agreement, any such interest rate
swap, currency swap or other similar obligation which is or will be entered into
and is being or will be used by such Person in the ordinary course of its
business to hedge an existing or future risk or exposure of such Person in
respect of its liabilities or assets (and not for speculative purposes) shall
not be deemed a "Swap" for purposes of this definition.
"Transfer" means, with respect to the Company or any Subsidiary, any
transaction, or series of related transactions, in which such Person sells,
conveys, transfers or leases (as lessor) any of its property. The verb
"Transfer" has the meaning correlative to the meaning of the noun.
"Voting Stock" means capital stock or other equity interests or capital of
any class or classes of a corporation, partnership, association or other
business entity, the holders of which are ordinarily, in the absence of
contingencies, entitled to elect the directors (or Persons performing similar
functions) of such entity (including, without limitation, capital stock and
other equity interests of a Subsidiary).
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary 100% of all of
the equity interests (except directors' qualifying shares and other equity
holdings (not in excess of 1% of such equity interests) required to comply with
foreign local ownership requirements and the like) and voting interests of which
are owned by any one or more of the Company and other Wholly-Owned Subsidiaries
at such time.
SCHEDULE C
(to
Note Purchase Agreement)
WIRING INSTRUCTIONS AT CLOSING
To: National City Bank
Cleveland, Ohio
ABA No.: 041 000 124
Credit: Invacare Corporation
Account No.: 0000000
Contact: Xxxxxx Xxxxxxxx
Phone: (000) 000-0000
SCHEDULE 4.9
(to
Note Purchase Agreement)
CHANGES IN CORPORATE STRUCTURE
None.
SCHEDULE 5.3
(to
Note Purchase Agreement)
DISCLOSURE MATERIALS
None.
-4-
SCHEDULE 5.4
(to
Note Purchase Agreement)
OWNERSHIP OF THE COMPANY; AFFILIATES
(i) The Company's Subsidiaries:
JURISDICTION OF % OF VOTING STOCK
NAME OF SUBSIDIARY INCORPORATION OWNED
Xxx Xxxxx Industries, Incorporated Missouri 100%
Genus Medical Products USA, Inc. New York 100%
Scandinavian Mobility Niltek A/S Denmark 100%
Invacare Bencraft Limited United Kingdom 100%
Scandinavian Mobility Radius A/S Denmark 100%
The Aftermarket Group, Inc. Delaware 100%
Dynamic Europe Limited United Kingdom 100%
Dynamic Controls Limited New Zealand 100%
Invacare LDA Portugal 100%
Invacare International Sarl Switzerland 100%
Healthtech Products, Inc. Missouri 100%
Scandinavian Mobility International ApS Denmark 100%
Adaptive Switch Laboratories, Inc. Texas 100%
Invacare AB Sweden 100%
Invacare Australia Pty Ltd. Australia 100%
Invacare Credit Corporation Ohio 100%
Invacare (Deutschland) GmbH Germany 100%
Invacare Florida Corporation Delaware 100%
Invacare Holdings LLC Ohio 100%
Invacare International Corporation Ohio 100%
Invacare New Zealand Limited New Zealand 100%
Invacare Trading Company, Inc. Virgin Islands 100%
Invacare (UK) Limited United Kingdom 100%
Invamex, S.A. de C.V. Mexico 100%
Invatection Insurance Company, Inc. Vermont 100%
Invacare AG Switzerland 100%
Invacare Hong A/S Denmark 100%
Invacare A/S Denmark 100%
Mobilite Building Corporation Florida 100%
Invacare NV Belgium 100%
EC-Invest A/S Denmark 100%
Invacare Holdings AS Norway 100%
Groas A/S Norway 100%
Invacare Xxx XX Sweden 100%
Invacare Xxxxxxx France 100%
Scandinavian Mobility GmbH Germany 100%
Invacare BV Netherlands 100%
Quantrix Consultants Limited New Zealand 100%
Rehadap S.A. Spain 100%
Rollerchair Pty Ltd. Australia 100%
Xxxxxxxx Mobility Unlimited New Zealand 100%
Pro Med Equipment Pty, Limited Australia 100%
Invacare, S.A. Spain 100%
Invacare Holdings, CV Netherlands 100%
Invacare Holdings New Zealand New Zealand 000%
XXX Xxx Xxxxxx Xxxxxx Xxxxxx 000%
XXX Xxx Xxxxxx Xxxxxx 100%
Silcraft Corporation Michigan 100%
Garden City Medical Delaware 100%
Invacare Supply Group Massachusetts 100%
Subsidiaries of Invacare International Corporation:
JURISDICTION OF % OF VOTING STOCK
NAME OF SUBSIDIARY INCORPORATION OWNED
Invacare Canada Inc. Ontario 100%
6123449 Canada Inc. Canada (Federal) 100%
Invacare Canadian Holdings, Inc. Delaware 100%
Subsidiaries of Invacare Canadian Holdings, Inc.:
JURISDICTION OF % OF VOTING STOCK
NAME OF SUBSIDIARY INCORPORATION OWNED
3080359 Nova Scotia Company Nova Scotia 100%
2030604 Ontario Inc. Ontario 100%
Ownership of Motion Concepts, L.P.(an Ontario limited partnership):
JURISDICTION OF PARTNERSHIP
NAME OF PARTNER INCORPORATION INTEREST OWNED
Invacare Canada Inc. Ontario 13% Limited
6123449 Canada Inc. Canada (Federal) 0.01% General*
3080359 Nova Scotia Company Nova Scotia 87% Limited
*Income interest only.
Subsidiaries of Motion Concepts, L.P.:
JURISDICTION OF % OF VOTING STOCK
NAME OF SUBSIDIARY INCORPORATION OWNED
Medbloc, Inc. Delaware 100%
Perpetual Motion Enterprises Limited Ontario 100%
Subsidiary of 2030604 Ontario Inc.:
JURISDICTION OF % OF VOTING STOCK
NAME OF SUBSIDIARY INCORPORATION OWNED
Xxxxxxx Heathcare Inc. Ontario 100%
Subsidiaries of Xxxxxxx Heathcare Inc.:
JURISDICTION OF % OF VOTING STOCK
NAME OF SUBSIDIARY INCORPORATION OWNED
Xxxxxxx Heathcare (USA) Inc. Nevada 100%
Carrold Heathcare Inc. (Chile) Limitada Chile 99.48%*
*Remaining 0.52% interest is in process of being transferred from third parties
to 6123449 Canada Inc.
(ii) The Company's Affiliates, other than Subsidiaries: (The following
persons beneficially own or hold, directly or indirectly, 10% or more of a class
of voting or equity interests of the Company).
A. Xxxxxxx Xxxxx, III
Xxx Xxxxxxxx Xxx
Xxxxxx, XX 00000
Xxxxxx X. Xxxxxx, XX
Xxx Xxxxxxxx Xxx
Xxxxxx, XX 00000
Invacare Corporation Employees'
Stock Bonus Trust and Plan
Xxx Xxxxxxxx Xxx
Xxxxxx, XX 00000
Ariel Capital Management, Inc.
000 X. Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
(iii) The Company's directors and senior officers:
NAME TITLE OR OFFICE
A. Xxxxxxx Xxxxx, III Director, Chairman of the Board, Chief Executive Officer
Xxxxx X. Xxxxxx Director
Xxxxxxx X. Xxxxxxx Director
Xx. Xxxxxxxxx X. Xxxxx Director
Xxxx Xxxxxx Director
Xxxxxx Xxxxxx Director
Xxxxxxx Xxxxx Director
Xxx X. Xxxxx, III Director
Xxxxxx X. Xxxxxx, XX Director, President of Invacare Technologies, Senior Vice President of
Electronic and Design Engineering
Xxxxxxx X. Xxxxx Director
Xxxxxx X. Xxxxxx Director, President, Chief Operating Officer
Xxxxxxx X. Xxxxxxxx Senior Vice President and Chief Financial Officer
Xxxx X. XxXxxxx Senior Vice President, Business Development and General Counsel
Louis X. X. Xxxxxxx Senior Vice President, Global Market Development
Xxxxxx Xxxx Senior Vice President, Human Resources
SCHEDULE 5.5
(to
Note Purchase Agreement)
FINANCIAL STATEMENTS
Consolidated balance sheets of the Company and its Subsidiaries as of December
31, for each of the years 2001 through 2005, and the related consolidated
statements of income, stockholders' equity and cash flows for each of the years
ended December 31, 2001 through 2005.
SCHEDULE 5.8
(to
Note Purchase Agreement)
CERTAIN LITIGATION
None.
SCHEDULE 5.11
(to
Note Purchase Agreement)
LICENSES, PERMITS, ETC.
None.
SCHEDULE 5.12(g)
(to Note Purchase Agreement)
CERTAIN PENSION PLANS
The Company maintains an unfunded non-qualified defined benefit
Supplemental Executive Retirement Plan (SERP) effective May 1, 1995, for certain
key executives to recapture benefits lost due to governmental limitations on
qualified plan contributions.
SCHEDULE 5.14
(to Note Purchase Agreement)
USE OF PROCEEDS; MARGIN STOCK
The proceeds of the sale of the Notes will be used by the Company to
repay revolving bank debt under the Credit Agreement and for its general
corporate purposes.
SCHEDULE 5.15
(to Note Purchase Agreement)
EXISTING INDEBTEDNESS
AS OF MARCH 31, 2006
REVOLVER DEBT
BORROWER AMOUNT TERM ALL-IN RATE
Ontario, Inc. CAD 46,140,540.04 03/31/06--05/31/06 4.6250
Invacare Australia AUD 12,000,000.00 03/20/06--04/20/06 6.1983
Invacare UK GBP 6,000,000.00 03/31/06--04/13/06 5.1350
IVC International SARL CHF 1,000,000.00 03/16/06--04/13/06 1.6350
IVC International SARL CHF 1,000,000.00 03/24/06--04/13/06 1.7150
IVC International SARL CHF 1,200,000.00 03/30/06--04/28/06 1.7150
IVC International SARL CHF 600,000.00 03/31/06--04/28/06 1,4950
IVC International SARL CHF 1,750,000.00 02/24/06--04/28/06 1.6350
IVC International SARL CHF 7,890,364.07 02/28/06--04/28/06 1.6450
IVC International SARL CHF 2,300,000.00 02/06/06--04/28/06 1.5850
IVC International SARL CHF 1,500,000.00 03/01/06--04/28/06 1.6950
IVC International SARL EUR 3,000,000.00 03/24/06--04/13/06 3.2050
IVC International SARL EUR 2,000,000.00 03/31/06--04/13/06 3.2150
IVC International SARL SEK 48,350,216.39 03/06/06--04/28/06 2.7050
IVC International SARL DKK 33,930,631.35 03/31/06--04/28/06 3.4450
SMI Aps DKK 21,870,463.78 03/31/06--04/28/06 3.4450
SMI Aps DKK 176,326,032.87 02/28/06--04/28/06 3.3250
IVC International SARL NOK 17,521,876.44 03/31/06--04/28/06 3.3550
Invacare Corporation USD 6,461,000.00 03/30/06--04/02/06 5.4450
Invacare Corporation USD 132,000,000.00 03/31/06--04/28/06 5.4038
PRIVATE PLACEMENT DEBT
BORROWER AMOUNT
Invacare Corporation USD 180,000,000.00
SECURED BORROWING FACILITY
BORROWER AMOUNT
Invacare Receivables Corp. 79,463,551.00
SCHEDULE 11.7
(to Note Purchase Agreement)
EXISTING LIENS
None.
SCHEDULE B-C
(to Note Purchase Agreement)
COMPETITORS
OMPANY LOCATION OWNERSHIP
Sunrise Medical, Inc. Boulder, CO Private
Respironics, Inc. Pittsburgh, PA Public
Resmed, Inc. San Diego, CA Public
MEYRA Germany Private
Pride Mobility Exeter, PA(?) Private
Permobil Sweden Private
Drive Medical New York Private
SCHEDULE B-MT
(to Note Purchase Agreement)
MANAGEMENT TEAM
A. Xxxxxxx Xxxxx, III - Chairman of the Board and Chief Executive Officer
Xxxxxx X. Xxxxxx - President and Chief Operating Officer
Xxxxxxx X. Xxxxxxxx - Chief Financial Officer
Xxxxxx X. Xxxxxx, XX - President of Invacare Technologies and Senior Vice
President of Electronic and Design Engineering
Xxxx X. XxXxxxx - Senior Vice President, Business Development and General
Counsel
Louis X. X. Xxxxxxx - Senior Vice President, Global Market Development
Xxxxxx Xxxx - Senior Vice President, Human Resources
EXHIBIT 1
(to Note Purchase Agreement)
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. NEITHER THIS NOTE NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION
OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
[FORM OF SENIOR NOTE]
INVACARE CORPORATION
6.15% SENIOR NOTE DUE APRIL 27, 2016
No. R-__
PPN: 461203 C* 0
$__________ [Date]
FOR VALUE RECEIVED, the undersigned, INVACARE CORPORATION, an Ohio
corporation (herein called the "Company"), hereby promises to pay to
_______________ or registered assigns, the principal sum of
_________________________________ DOLLARS ($__________) on April 27, 2016, with
interest (computed on the basis of a 360-day year of twelve 30-day months) (a)
on the unpaid balance thereof at a rate equal to 6.15% per annum from the date
hereof, payable semiannually on April 27 and October 27 in each year, commencing
with the April 27 or October 27 next succeeding the date hereof, until the
principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Purchase Agreements), payable
semiannually as aforesaid (or, at the option of the registered holder hereof, on
demand), at a rate per annum from time to time equal to the Default Rate (as
defined in the Note Purchase Agreements).
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at Elyria, Ohio or at such other place as the Company shall have
designated by written notice to the holder of this Note as provided in the Note
Purchase Agreements referred to below.
This Note is one of the 6.15% Senior Notes due April 27, 2016 (herein
called the "Notes") issued pursuant to separate Note Purchase Agreements, each
dated as of April 27, 2006 (as from time to time amended, the "Note Purchase
Agreements"), among the Company and the respective Purchasers named therein and
is entitled to the benefits thereof. Each holder of this Note will be deemed, by
its acceptance hereof, (i) to have agreed to the confidentiality provisions set
forth in Section 21 of the Note Purchase Agreements and (ii) to have made the
representation set forth in Section 6.2 of the Note Purchase Agreements.
This Note is a registered Note and, as provided in the Note Purchase
Agreements, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
This Note is subject to certain prepayments in the events, on the terms and
in the manner and amounts as provided in the Note Purchase Agreements. This Note
is also subject to optional prepayment, in whole or from time to time in part,
at the times and on the terms specified in the Note Purchase Agreements, but not
otherwise.
If an Event of Default, as defined in the Note Purchase Agreements, occurs
and is continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Purchase Agreements.
THIS NOTE SHALL BE CONSTRUED AND ENFORCED 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 THE LAWS OF A JURISDICTION OTHER THAN SUCH
STATE.
INVACARE CORPORATION
By:
Name: ____________________________________________
Title: ___________________________________________
EXHIBIT 4.4(a)
(to Note Purchase Agreement)
[FORM OF CLOSING OPINION OF GENERAL COUNSEL FOR THE COMPANY]
[LETTERHEAD OF COMPANY'S GENERAL COUNSEL]
April 27, 2006
To each of the Persons
listed on Annex 1 hereto
Re: Invacare Corporation
Ladies and Gentlemen:
Reference is made to the separate Note Purchase Agreements, each dated as
of April 27, 2006 (collectively, the "Note Purchase Agreements"), between
Invacare Corporation, an Ohio corporation (the "Company"), and each of the
purchasers listed on Schedule A to the Note Purchase Agreements (the
"Purchasers"), which provide for the issuance and sale by the Company of its
6.15% Senior Notes due April 27, 2016 (the "Notes"). The capitalized terms used
herein and not defined herein have the meanings specified in the Note Purchase
Agreements.
I am the General Counsel to the Company and have represented it in
connection with the transactions contemplated by the Note Purchase Agreements.
This opinion is being delivered pursuant to Section 4.4(a) of the Note Purchase
Agreements. In acting as the General Counsel to the Company, I have examined:
(a) the Note Purchase Agreements;
(b) the Notes dated the date hereof, in the form of Exhibit 1 to the
Note Purchase Agreements and registered in the names and in the principal
amounts set forth on Schedule A to the Note Purchase Agreements;
(c) the articles of incorporation and code of regulations of the
Company, as in effect on the date hereof;
(d) a good standing certificate from the State of Ohio, the state of
incorporation of the Company, and a foreign good standing certificate for
the Company from the State of New York,;
(e) a letter, dated the date hereof, to Xxxxxx Xxxxxxx & Xxxxx LLP,
the Company, certain other persons and me from Banc of America Securities
LLC, regarding the manner of the offering of the Notes (the "Offeree
Letter"); and
(f) originals, or copies certified or otherwise identified to my
satisfaction, of such other documents, records, instruments and
certificates of public officials or officers of the Company as I have
deemed necessary or appropriate to enable me to render this opinion.
In rendering my opinion, I have relied, to the extent I deem necessary
and proper, on:
(a) warranties and representations as to certain factual matters
contained in the Note Purchase Agreements; and
(b) the Offeree Letter.
I have no actual personal knowledge of any material inaccuracies in any of the
facts contained in the documents listed in item (a) or item (b).
The opinions which follow are subject to the following assumptions,
limitations and qualifications:
(a) I have assumed the genuineness of all signatures, other than
signatures of the Company, the authenticity of all documents submitted to
me as originals, and the conformity with the original documents of all
documents submitted to me as reproduced copies, and the authenticity of all
such latter documents.
(b) I have assumed (to the extent relevant to the opinions expressed
herein) the organization, existence, good standing and capacity of all
persons and entities other than the Company and that such persons and
entities, other than the Company, have the right, power and authority to
execute and deliver the Note Purchase Agreements and to perform thereunder.
(c) I have assumed (to the extent relevant to the opinions expressed
herein) that the Purchasers' obligations under the Note Purchase Agreements
are within the powers of the Purchasers and that the Note Purchase
Agreements have (if and to the extent required) been duly executed and
validly delivered by the Purchasers.
(d) As to various questions of fact material to this opinion, I have
made such factual inquiries of the Company, and have examined such other
documents and made such examinations of applicable laws, as I have deemed
necessary for purposes of the opinions expressed herein. However, where I
state that a matter is to the best of my knowledge, I have, to the extent
that such matter is not known to my personal knowledge, and, after
reasonable investigation on my part, relied upon the written statements of
the Company and the officers of the Company (as the case may be), with no
inquiry as to the facts other than as necessary to establish that such
reliance was reasonable on my part. In all such instances of reliance by
me, I have no reason to believe that the factual matters assumed by me are
not true and correct.
(e) The opinions expressed in paragraph 8 below shall not be construed
as being applicable to any subsequent sale or transfer of the Notes, with
respect to which I render no opinion.
My opinion is based upon the laws of the State of Ohio and the United
States of America.
Based on the foregoing, I am of the following opinions:
1. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Ohio.
2. The Company is duly qualified as a foreign corporation and is in
good standing in the State of New York.
3. Except as disclosed in Schedule 5.8 to the Note Purchase
Agreements, to the best of my knowledge after due inquiry there are no
actions, suits or proceedings pending or , threatened against or affecting
the Company, any property of the Company, any Subsidiary or any property of
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.
4. The Company has the requisite corporate power and authority to
execute and deliver the Note Purchase Agreements, to issue and sell the
Notes, and to perform its obligations set forth in each of the Note
Purchase Agreements and the Notes.
5. Each of the Note Purchase Agreements and the Notes has been duly
authorized by all necessary corporate action on the part of the Company (no
action of shareholders of the Company being required) and has been executed
and delivered by a duly authorized officer of the Company.
6. The execution and delivery of the Note Purchase Agreements by the
Company, the execution, issuance, sale and delivery of the Notes by the
Company and the performance by the Company of its obligations thereunder do
not conflict with, constitute a violation of, result in a breach of any
provision of, constitute a default under with or without notice, or lapse
of time, or both, or result in the creation or imposition of any Lien or
encumbrance upon any of its properties pursuant to the articles of
incorporation or code of regulations of the Company, any applicable
statute, rule or regulation of the State of Ohio or the United States of
America to which the Company is subject, or any agreement or instrument
listed on Annex 2 hereto.
7. No consents, approvals or authorizations of Ohio Governmental
Authorities are required on the part of the Company in connection with the
execution, delivery and performance of the Note Purchase Agreements and the
Notes.
8. Under existing law, registration of the Notes under the "blue sky"
laws of the State of Ohio is not required in connection with the offering,
issuance, sale and delivery of the Notes by the Company under the
circumstances contemplated by the Note Purchase Agreements.
Each of the opinions set forth above is subject to the following
qualifications, assumptions, limitations and exceptions:
(a) Any opinion contained herein with respect to the enforceability of
the Note Purchase Agreements and the Notes is qualified to the extent that:
(i) the enforceability of the Note Purchase Agreements and the
Notes is subject to the effect of general principles of equity,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing and the possible
unavailability of specific performance or injunctive relief regardless
of whether considered in a proceeding in equity or at law; and
(ii) the enforceability of certain terms provided in the Note
Purchase Agreements and the Notes may be limited by applicable
bankruptcy, administration, reorganization, arrangement, insolvency,
moratorium or similar laws affecting the enforcement of creditors'
rights generally as at the time in effect.
(b) This opinion speaks only as of the date of its issue and may not
be relied upon to the extent subsequent legislative actions or judicial
decisions cause changes in the law which would affect the validity of this
opinion if given at that time.
(c) I assume no responsibility to revise or amend this opinion in the
event of such actions or decisions.
(d) This opinion is being issued and delivered solely for the benefit
of the addressees hereof and any future holder of Notes and may not be
relied upon by any other person.
(e) I am qualified to practice law in the State of Ohio and do not
purport to be an expert on, or to express any opinion herein concerning,
any law other than the internal laws of the State of Ohio and the federal
law of the United States of America.
I acknowledge that this opinion is being issued at the request of the
Company pursuant to Section 4.4(a) of the Note Purchase Agreements. Xxxxxx
Xxxxxxx & Xxxxx LLP, special counsel to the Company, and Xxxxxxx and Xxxxxx LLP,
special counsel to the Purchasers, may rely on this opinion for the sole purpose
of rendering their opinions to be rendered pursuant to Section 4.4(b) and
Section 4.4(c), respectively, of the Note Purchase Agreements.
Very truly yours,
Xxxx X. XxXxxxx
Senior Vice President
and General Counsel
ANNEX 1
ADDRESSEES
ANNEX 2
AGREEMENTS
EXHIBIT 4.4(b)
(to Note Purchase Agreement)
[FORM OF CLOSING OPINION OF NEW YORK SPECIAL COUNSEL FOR THE COMPANY]
[LETTERHEAD OF COMPANY'S SPECIAL COUNSEL]
[Closing Date]
To each of the Persons
listed on Annex 1 hereto
Re: Invacare Corporation
--------------------------------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the separate Note Purchase Agreements, each dated as
of April 27, 2006 (collectively, the "Note Purchase Agreements"), between
Invacare Corporation, an Ohio corporation, and each of the purchasers listed on
Schedule A to the Note Purchase Agreements (the "Purchasers"), which provide for
the issuance and sale by the Company of its 6.15% Senior Notes due April 27,
2016 in the aggregate principal amount of $150,000,000. The capitalized terms
used herein and not defined herein have the meanings specified in the Note
Purchase Agreements.
We have acted as special New York counsel to the Company in connection with
the transactions contemplated by the Note Purchase Agreements. This opinion is
being delivered pursuant to Section 4.4(b) of the Note Purchase Agreements.
In acting as such counsel, we have examined:
(a) a form of Note Purchase Agreement, which has been represented to
us to be identical, in all respects material to this opinion, to individual
Note Purchase Agreements that were entered into between the Company and
each of the Purchasers as described in the first paragraph of this opinion;
(b) the Company's 6.15% Senior Notes due April 27, 2016, in the form
of Exhibit 1 to the Note Purchase Agreements, dated the date hereof,
registered in the names and in the principal amounts set forth on Schedule
A to the Note Purchase Agreements and issued in accordance with the Note
Purchase Agreements (the "Notes");
(c) a letter, dated the date hereof, to __________________, certain
other Persons and the Company from Banc of America Securities LLC,
regarding the manner of the offering of the Notes (the "Offeree Letters");
(d) the opinion of Xxxx X. XxXxxxx, Esq., General Counsel of the
Company, dated the date hereof, delivered to you pursuant to Section 4.4(a)
of the Note Purchase Agreements; and
(e) the opinion of Xxxxxx, Halter & Xxxxxxxx LLP, Special Counsel to
the Company, dated the date hereof, delivered to you pursuant to Section
4.4(c) of the Note Purchase Agreements, and the Officer's Certificate with
respect to the Company, the form of which is attached thereto as Exhibit A
(the "Officer's Certificate").
Other than our review of the foregoing documents, we have not reviewed any
other documents or made any independent investigation whatsoever for the
purposes of rendering this opinion, and we make no representation as to the
scope or sufficiency of our document review for your purposes. With your
consent, our opinion is qualified in all respects by the scope of such document
examination.
In rendering this opinion, we have made such examination of laws as we have
deemed relevant for the purposes hereof. We have not participated in any aspect
of the negotiation, documentation or consummation of the transactions underlying
or contemplated by, or entered into concurrently with, the Note Purchase
Agreements and have therefore assumed and relied upon, without independent
investigation, inter alia, the following:
(1) we have relied upon the Offeree Letters and the Officer's Certificate;
(2) we have assumed that
(a) the Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Ohio;
(b) the Company is duly qualified as a foreign corporation and is in
good standing in the State of New York;
(c) the Company has the requisite corporate power and authority to
execute and deliver the Note Purchase Agreements, to issue and sell the
Notes, and to perform its obligations set forth in each of the Note
Purchase Agreements and the Notes;
(d) each of the Note Purchase Agreements and the Notes has been duly
authorized by all necessary corporate action on the part of the Company (no
action of shareholders of the Company being required) and has been executed
and delivered by a duly authorized officer of the Company;
(e) the execution and delivery of the Note Purchase Agreements by the
Company, the execution, issuance, sale and delivery of the Notes by the
Company and the performance by the Company of its obligations thereunder do
not conflict with, constitute a violation of, result in a breach of any
provision of, constitute a default under with or without notice, or lapse
of time, or both, or result in the creation or imposition of any Lien or
encumbrance upon any of its properties pursuant to the articles of
incorporation or code of regulations or other organizational documents of
the Company, any applicable statute, rule or regulation to which the
Company is subject or any agreement or instrument to which the Company is a
party or by which its property may be bound;
(f) under existing law, the registration of the Notes under the
Securities Act is not required in connection with the offering, issuance,
sale and delivery of the Notes by the Company on the date hereof under the
circumstances contemplated by the Note Purchase Agreements by reason of the
exemption provided under Section 4(2) of the Securities Act;
(g) each Purchaser and each offeree of the Notes is either a bank,
corporation, savings institution, trust company, insurance company,
investment company, as defined in the Investment Company Act of 1940, as
amended, pension or profit-sharing trust, or other financial institution or
institutional buyer, whether acting for itself or in some fiduciary
capacity.
(3) we have assumed that any action taken by any Person in connection with
the performance or enforcement of the Note Purchase Agreement to which
it is a party, or any Note of which it is the holder, will be lawful,
commercially reasonable and taken in good faith and that such parties
will perform their obligations, or seek to enforce their respective
rights, thereunder only in circumstances and in a manner in which it
is equitable and commercially reasonable to do so and otherwise in
accordance with applicable law;
(4) we have assumed the truth, accuracy and completeness of the
representations and warranties of each party contained in the Note
Purchase Agreement to which it is a party;
(5) we have assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, and the conformity with
the original documents of all documents submitted to us as reproduced
copies, and the authenticity of all such latter documents;
(6) we have assumed, to the extent relevant to the opinions expressed
herein, (i) the organization, existence, good standing and capacity of
all Purchasers, (ii) that all Purchasers have the right, power and
authority to execute and deliver the Note Purchase Agreements and to
perform thereunder, (iii) that a Note Purchase Agreement has been duly
authorized and executed and validly delivered by each Purchaser and
(iv) the legality, validity and binding effect of such Note Purchase
Agreement with respect to each Purchaser; and with your permission,
but without rendering any opinion thereon, we have assumed that the
individual Note Purchase Agreements together constitute a written
agreement for purposes of Section 5-501 6 b of the New York General
Obligations Law.
Based upon, and subject to, the foregoing and the various qualifications
set forth below, we are of the opinion, as of the date hereof, that:
1. Each of the Note Purchase Agreements and the Notes constitutes a legal,
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms.
2. Based on our examination of documents described above, no consents,
approvals or authorizations of Governmental Authorities in respect of the
Company are required under the laws of the State of New York in connection with
the execution and delivery by the Company of each of the Note Purchase
Agreements and the Notes and the offer, issuance, sale and delivery by the
Company of the Notes under the circumstances contemplated by the Note Purchase
Agreements. Our opinion in this paragraph 2 is based solely on a review of
generally applicable laws of New York, and not on any search with respect to, or
review of, any orders, decrees, judgments or other determinations specifically
applicable to the Company.
3. Under existing law, no registration of the Company under the "blue sky"
laws of the State of New York is required in connection with the offering,
issuance, sale and delivery of the Notes by the Company on the date hereof under
the circumstances contemplated by the Note Purchase Agreements.
All opinions contained herein with respect to the enforceability of the
Note Purchase Agreements and the Notes are qualified to the extent that:
(a) the availability of equitable remedies, including, without
limitation, specific enforcement and injunctive relief, is subject to the
discretion of the court before which any proceedings therefor may be
brought;
(b)the enforceability of certain terms provided in the Note Purchase
Agreements and the Notes may be limited by applicable bankruptcy,
administration, reorganization, arrangement, insolvency, fraudulent
conveyance, moratorium or similar laws affecting the enforcement of
creditors' rights generally as at the time in effect;
(c)we express no opinion herein as to (i) the validity or
enforceability of any waiver of service of judicial process or statute of
limitations, or any provision of the Note Purchase Agreements or the Notes
which might be construed as a waiver of counterclaims; or (ii) the right of
any holder of any Note to collect any payment to the extent that such
payment constitutes a penalty, forfeiture, late payment charge or interest
on interest;
(d)we express no opinion with respect to compliance by the Company or
any other party with the disclosure or anti-fraud requirements of the New
York "blue sky" laws or the effect of any non-compliance with such
requirements on the enforceability of the Note Purchase Agreements; and
(e)the opinions expressed in paragraphs 2 and 3 above shall not be
construed as being applicable to any subsequent sale or resale of the
Notes, with respect to which we render no opinion.
We express no opinion as to the law of any jurisdiction other than the law
of the State of New York.
This opinion speaks only as of the date of its issue and may not be relied
upon to the extent subsequent legislative actions or judicial decisions cause
changes in the law which would affect the validity of this opinion if given at
that time. We assume no responsibility to revise or amend this opinion in the
event of such actions or decisions. This opinion is being issued and delivered
solely for the benefit of the addressees hereof and any future holders of Notes
and may not be relied upon by any other person; provided that Xxxxxxx and Xxxxxx
LLP may rely on this opinion as if it were addressed to them.
Very truly yours,
XXXXXX, XXXXXXX & XXXXX LLP
ANNEX 1
ADDRESSES
EXHIBIT 4.4(c)
(to Note Purchase Agreement)
[FORM OF CLOSING OPINION OF OHIO SPECIAL COUNSEL FOR THE COMPANY]
[LETTERHEAD OF COMPANY'S SPECIAL COUNSEL]
April 27, 2006
To each of the Persons
listed on Annex 1 hereto
Re: Invacare Corporation
Ladies and Gentlemen:
Reference is made to the separate Note Purchase Agreements, each dated as
of April 27, 2006 (collectively, the "Note Purchase Agreements"), between
Invacare Corporation, an Ohio corporation (the "Company"), and each of the
purchasers listed on Schedule A to the Note Purchase Agreements (the
"Purchasers"), which provide for the issuance and sale by the Company of its
6.15% Senior Notes due April 27, 2016 in the aggregate principal amount of
$150,000,000 (the "Notes"). The capitalized terms used herein and not defined
herein have the meanings specified in the Note Purchase Agreements.
We have acted as special counsel to the Company in connection with the
transactions contemplated by the Note Purchase Agreements. This opinion is being
delivered pursuant to Section 4.4(c) of the Note Purchase Agreements.
In acting as such counsel to the Company we have examined:
(a) the Note Purchase Agreements;
(b) the Notes dated the date hereof, in the form of Exhibit 1 to
the Note Purchase Agreements and registered in the names and in the
principal amounts set forth on Schedule A to the Note Purchase
Agreements;
(c) certain documents executed and delivered by the Company in
connection with the transactions contemplated by the Note Purchase
Agreements, including, without limitation, the certificates of certain
officers of the Company delivered pursuant to Section 4.3 of the Note
Purchase Agreements and the documents attached thereto;
(d) a letter, dated the date hereof, to the Company and certain
other persons from Banc of America Securities LLC regarding the manner
of the offering of the Notes (the "Offeree Letter");
(e) the Officer's Certificate with respect to certain matters,
the form of which is attached hereto as Exhibit A (the "Officer's
Certificate"); and,
(f) originals, or copies certified or otherwise identified to our
satisfaction, of such other documents, records, instruments and
certificates of public officials or officers of the Company as we have
deemed necessary or appropriate to enable us to render this opinion.
In rendering our opinion, we have assumed the genuineness of all signatures
and documents submitted to us as originals, that all copies submitted to us
conform to the originals, the legal capacity of all natural Persons, that each
Person executing documents had the power to enter into and perform its
obligations under such documents, and that such documents have been duly
authorized, executed and delivered by such Persons. We have also assumed that
the Purchasers of the Notes have complied with the covenants of such Purchasers
contained in the Note Purchase Agreements.
In rendering our opinion, we have relied, to the extent we deem
necessary and proper, on:
(a) warranties and representations as to certain factual matters
contained in the Note Purchase Agreements;
(b) the Offeree Letter; and
(c) the Officer's Certificate.
Insofar as an opinion is based upon matters set forth in the Officer's
Certificate, we have relied solely upon such Officer's Certificate with respect
to the accuracy and completeness of the matters contained therein and we have
not independently verified or established the accuracy or completeness of such
matters; however, in the course of our representation of the Company nothing has
come to our attention that makes such reliance unwarranted or that leads us to
question the accuracy or completeness of the Officer's Certificate. Our opinions
set forth in paragraphs 1, 2 and 3 are based upon (i) the factual matters set
forth in the Officer's Certificate and (ii) as to factual matters the actual
knowledge of the attorneys in this office who have, as attorneys, devoted
substantive attention to the transactions contemplated by the Note Purchase
Agreements. With respect to the opinions expressed in paragraph 1 below, we have
assumed the accuracy of the warranties and representations made by Banc of
America Securities LLC in the Offeree Letter. Further, the opinions expressed in
paragraph 1 below shall not be construed as being applicable to any subsequent
sale or transfer of the Notes, with respect to which we render no opinion.
Based on the foregoing, we are of the following opinions:
1. Under existing law, the registration of the Notes under the
Securities Act is not required for the offering, issuance, sale and
delivery thereof by the Company on the date hereof in the manner and under
the circumstances contemplated by the Note Purchase Agreements. Under
existing law, the qualification of an indenture under the Trust Indenture
Act of 1939, as amended, is not required in connection with the offering,
issuance, sale and delivery of the Notes by the Company on the date hereof
under the circumstances contemplated by the Note Purchase Agreements.
2. Neither the issuance of the Notes nor the use of the proceeds
thereof (as set forth in Section 5.14 of the Note Purchase Agreements) will
violate Regulations T, U or X of the Federal Reserve Board.
3. The Company is not an "investment company" or controlled by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
This opinion speaks only as of the date hereof. Further, this opinion may
not be relied upon to the extent subsequent legislative actions or judicial
decisions cause changes in the law which would affect the validity of this
opinion if given at that time. We assume no responsibility to revise or amend
this opinion in the event of such actions or decisions.
We express no opinion as to the law of any jurisdiction other than the
federal law of the United States of America.
We express no opinion with respect to (i) the accuracy or completeness of
any information provided by the Company to the Purchasers regarding the Company
or (ii) compliance by the Company or any other party with the disclosure or
anti-fraud requirements of federal or state securities laws or the effect of any
noncompliance with such laws of the Note Purchase Agreements. This opinion is
being issued and delivered solely for the benefit of the addressees hereof;
provided that Xxxxxxx and Xxxxxx LLP, Xxxxxx, Xxxxxxx & Xxxxx LLP and future
holders of the Notes may rely on this opinion as if it were addressed to them.
Very truly yours,
ANNEX 1
TO OPINION LETTER
EXHIBIT A
FORM OF OFFICER'S CERTIFICATE
OFFICER'S CERTIFICATE
Invacare Corporation
To: Xxxxxx, Halter & Xxxxxxxx LLP
The undersigned, being the duly elected and acting Vice President and
Treasurer Invacare Corporation (the "Company") does hereby certify, in his
capacity as an officer of the Company and on behalf of the Company, that he has
monitored all legal proceedings against the Company and that, as of the date
hereof:
1. The Company and each of its subsidiaries are primarily engaged, both
directly and through their respective subsidiaries, in businesses other than the
business of investing, reinvesting, owning, holding or trading in securities.
2. Neither the Company nor any of its subsidiaries holds itself out as
being engaged primarily, or proposes to engage primarily, in the business of
investing, reinvesting or trading in securities.
3. Neither the Company nor any of its subsidiaries is engaged or proposes
to engage in the business of issuing any certificate, investment contract or
other security which represents an obligation on the part of its issuer to pay a
stated or determinable sum or sums at a fixed or determinable date or dates more
than 24 months after the date of issuance, in consideration of the payment of
periodic installments of a stated or determinable amount, and neither the
Company nor any such subsidiary has engaged in such business and has any such
certificate outstanding.
4. Neither the Company nor any subsidiary (i) is engaged or proposes to
engage in the business of investing, reinvesting or trading in securities, and
(ii) owns or proposes to acquire investment securities having a value exceeding
40% of the value of any such entity's total assets (exclusive of any security
issued or guaranteed as to principal or interest by the United States, or by a
person controlled or supervised by and acting as an agent or instrumentality of
the Government of the United States pursuant to authority granted by the
Congress of the United States, or any certificate of deposit for any of the
foregoing, and exclusive of cash items) on an unconsolidated basis.
5. No part of the proceeds of the Notes will be used to purchase or carry
(i) any equity security registered or having unlisted trading privileges on a
national securities exchange; (ii) any over-the-counter security designated as
qualified for trading in the national market system under a designation plan
approved by the Securities and Exchange Commission; (iii) any debt security
convertible into or carrying a warrant or right to subscribe to or purchase a
security described in clauses (i), (ii) and (v) of this paragraph, (iv) any
warrant or right to subscribe to a security described in clauses (i), (ii) and
(v) of this paragraph, or (v) any security issued by an investment company
registered under Section 8 of the Investment Company Act of 1940.
6. Offers and sales of the Notes were made only through direct negotiations
with the offerees by the Company or anyone acting on its behalf, and without any
advertising or public solicitations of any sort. Neither the Company nor anyone
acting on its behalf authorized anyone other than Banc of America Securities LLC
to solicit any person to purchase the Notes.
7. Each offeree of the Notes is a sophisticated investor able to evaluate
the merits and risks of the Notes, and to best of the undersigned's knowledge,
is an "accredited investor" within the meaning of Rule 501 promulgated under the
Securities Act of 1933, as amended.
8. All of the offerees were provided with, had access to, or had the
opportunity for access to all material information regarding the Company that
may have been necessary to evaluate the Company and an investment in the Notes.
9. To the best of the undersigned's knowledge, the Notes are being acquired
solely for the account of each investor for investment purposes, and not with a
view to, or for sale in connection with, any distribution of the Notes.
10. The Company is not making and does not currently propose to make a
public offering of the Notes.
All capitalized terms not otherwise defined or referenced in this
certificate are used herein as defined in the opinion of Xxxxxx, Halter &
Xxxxxxxx LLP to which this certificate is attached.
The undersigned acknowledges and agrees that Xxxxxx, Halter & Xxxxxxxx LLP,
Xxxxxx, Xxxxxxx & Xxxxx LLP and Xxxxxxx and Xxxxxx LLP intends to, and may, rely
on this Certificate and the matters contained herein, in rendering opinions in
connection with the transactions contemplated by the Note Purchase Agreements
and the Notes referred to therein.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
this 27th day of April, 2006.
INVACARE CORPORATION
-----------------------
Xxxxxxx X. Xxxxxxxx
Chief Financial Officer
