Exhibit 10.1
$400,000,000 REVOLVING CREDIT FACILITY
CREDIT AGREEMENT
by and among
INVACARE CORPORATION, as a Borrower
THE OTHER BORROWERS PARTY HERETO
THE GUARANTORS PARTY HERETO
and
THE LENDERS PARTY HERETO
and
PNC BANK, NATIONAL ASSOCIATION, as Administrative Agent
and
KEYBANK NATIONAL ASSOCIATION and
BANK OF AMERICA, N.A.,
as Co-Syndication Agents
and
RBS CITIZENS, N.A., as Documentation Agent
Dated as of October 28, 2010
PNC CAPITAL MARKETS LLC,
KEYBANK NATIONAL ASSOCIATION, and
BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
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Page |
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1. |
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CERTAIN DEFINITIONS |
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1 |
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1.1 |
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Certain Definitions |
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1 |
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1.2 |
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Construction |
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36 |
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1.3 |
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Accounting Principles |
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36 |
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2. |
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REVOLVING CREDIT AND SWING LOAN FACILITIES |
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37 |
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2.1 |
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Revolving Credit and Swing Loan Commitments |
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37 |
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2.1.1 |
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Revolving Credit Commitment |
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37 |
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2.1.2 |
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Swing Loan Commitment |
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39 |
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2.2 |
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Nature of Lenders Obligations with Respect to Revolving Credit Loans |
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41 |
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2.3 |
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Revolving Credit Loan Requests; Swing Loan Requests |
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41 |
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2.3.1 |
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Revolving Credit Loan Requests |
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41 |
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2.3.2 |
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Swing Loan Requests |
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42 |
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2.4 |
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Making and Repaying Revolving Credit Loans and Swing Loans; Presumptions by the Administrative Agent |
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42 |
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2.4.1 |
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Making Revolving Credit Loans |
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42 |
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2.4.2 |
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Presumptions by the Administrative Agent |
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42 |
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2.4.3 |
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Making Swing Loans |
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43 |
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2.4.4 |
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Repayment of Revolving Credit Loans |
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43 |
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2.4.5 |
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Borrowings to Repay Swing Loans |
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43 |
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2.4.6 |
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Swing Loans Under Cash Management Agreements |
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43 |
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2.4.7 |
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Records of Swing Loans in Optional Currencies |
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44 |
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2.5 |
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Letter of Credit Subfacility |
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44 |
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2.5.1 |
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Issuance of Letters of Credit |
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44 |
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2.5.2 |
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Letter of Credit Fees |
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45 |
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2.5.3 |
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Disbursements, Reimbursement |
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45 |
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2.5.4 |
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Repayment of Participation Advances |
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47 |
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2.5.5 |
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Documentation |
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47 |
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2.5.6 |
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Determinations to Honor Drawing Requests |
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47 |
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2.5.7 |
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Nature of Participation and Reimbursement Obligations |
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47 |
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2.5.8 |
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Indemnity |
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49 |
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2.5.9 |
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Liability for Acts and Omissions |
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49 |
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2.5.10 |
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Issuing Lender Reporting Requirements |
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51 |
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2.5.11 |
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Cash Collateral |
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51 |
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2.6 |
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Utilization of Commitments in Optional Currencies |
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51 |
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2.6.1 |
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Periodic Computations of Dollar Equivalent Amounts of Revolving Credit Loans and |
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Letters of Credit Outstanding; Repayment in Same Currency |
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51 |
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2.6.2 |
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Notices From Lenders That Optional Currencies Are Unavailable to Fund New Loans |
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51 |
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2.6.3 |
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Notices From Lenders That Optional Currencies Are Unavailable to Fund Renewals |
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of the Euro-Rate Option |
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52 |
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2.6.4 |
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European Monetary Union |
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53 |
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2.6.5 |
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Requests for Additional Optional Currencies |
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53 |
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2.7 |
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Provisions Applicable to All Loans |
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53 |
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Page |
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2.7.1 |
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Notes |
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53 |
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2.7.2 |
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Use of Proceeds |
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54 |
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2.7.3 |
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Commitment Fees |
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54 |
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2.7.4 |
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Joint and Several Obligations |
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54 |
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3. |
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RESERVED |
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54 |
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4. |
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INTEREST RATES |
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54 |
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4.1 |
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Interest Rate Options |
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54 |
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4.1.1 |
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Revolving Credit Interest Rate Options; Swing Line Interest Rate |
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55 |
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4.1.2 |
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Rate Quotations |
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55 |
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4.2 |
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Interest Periods |
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55 |
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4.2.1 |
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Amount of Borrowing Tranche |
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56 |
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4.2.2 |
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Renewals |
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56 |
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4.3 |
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Interest During Event of Default |
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56 |
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4.3.1 |
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Letter of Credit Fees, Interest Rate |
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56 |
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4.3.2 |
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Other Obligations |
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56 |
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4.3.3 |
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Acknowledgment |
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56 |
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4.4 |
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EuroRate Unascertainable; Illegality; Increased Costs; Deposits Not Available |
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56 |
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4.4.1 |
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Unascertainable |
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56 |
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4.4.2 |
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Illegality; Increased Costs; Deposits Not Available |
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56 |
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4.4.3 |
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Administrative Agents and Lenders Rights |
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57 |
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4.5 |
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Selection of Interest Rate Options |
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57 |
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4.6 |
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Interest Act (Canada) Disclosure |
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58 |
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4.7 |
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Canadian Usury Provision |
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58 |
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4.8 |
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Minimum Interest Clause for Swiss Borrowers |
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58 |
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5. |
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PAYMENTS |
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59 |
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5.1 |
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Payments |
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59 |
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5.2 |
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Pro Rata Treatment of Lenders |
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59 |
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5.3 |
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Sharing of Payments by Lenders |
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60 |
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5.4 |
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Presumptions by Administrative Agent |
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61 |
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5.5 |
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Interest Payment Dates |
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61 |
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5.6 |
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Voluntary Prepayments |
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61 |
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5.6.1 |
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Right to Prepay |
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61 |
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5.6.2 |
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Replacement of a Lender |
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62 |
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5.7 |
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Mandatory Prepayments and Related Commitment Reductions |
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63 |
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5.7.1 |
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Sale of Assets |
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63 |
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5.7.2 |
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Debt Issuances |
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63 |
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5.7.3 |
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Equity Issuances |
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63 |
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5.7.4 |
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Material Recovery Events |
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64 |
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5.7.5 |
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Currency Fluctuations |
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64 |
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5.7.6 |
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Application of Payments |
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64 |
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5.8 |
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Increased Costs |
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65 |
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5.8.1 |
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Increased Costs Generally |
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65 |
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5.8.2 |
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Capital Requirements |
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65 |
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Page |
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5.8.3 |
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Certificates for Reimbursement; Repayment of Outstanding Loans; Borrowing of New |
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Loans |
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66 |
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5.8.4 |
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Delay in Requests |
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66 |
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5.9 |
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Taxes |
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66 |
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5.9.1 |
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Payments Free of Taxes |
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66 |
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5.9.2 |
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Payment of Other Taxes by the Borrowers |
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67 |
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5.9.3 |
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Indemnification by the Borrowers |
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67 |
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5.9.4 |
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Evidence of Payments |
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67 |
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5.9.5 |
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Status of Lenders |
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67 |
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5.9.6 |
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Lenders Cooperation in Tax Matters |
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69 |
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5.10 |
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Indemnity |
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69 |
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5.11 |
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Settlement Date Procedures |
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70 |
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5.12 |
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Interbank Market Presumption |
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70 |
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5.13 |
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Judgment Currency |
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70 |
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5.13.1 |
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Currency Conversion Procedures for Judgments |
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70 |
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5.13.2 |
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Indemnity in Certain Events |
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71 |
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5.14 |
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Parallel Debt (Dutch Law Provisions) |
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71 |
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5.14.1 |
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Corresponding Obligations and relevant US Companies |
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71 |
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5.14.2 |
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Parallel Debt |
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71 |
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5.14.3 |
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Nature of Parallel Debt |
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71 |
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5.14.4 |
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Decrease of Corresponding Obligations / Parallel Debt |
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71 |
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5.14.5 |
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Creditor of the Parallel Debt |
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72 |
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6. |
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REPRESENTATIONS AND WARRANTIES |
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72 |
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6.1 |
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Representations and Warranties |
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72 |
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6.1.1 |
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Organization and Qualification; Power and Authority; Compliance With Laws; Title |
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to Properties; Event of Default |
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72 |
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6.1.2 |
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Subsidiaries and Owners; Investment Companies |
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72 |
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6.1.3 |
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Validity and Binding Effect |
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73 |
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6.1.4 |
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No Conflict; Material Contracts; Consents |
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73 |
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6.1.5 |
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Litigation |
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73 |
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6.1.6 |
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Financial Statements |
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74 |
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6.1.7 |
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Margin Stock |
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74 |
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6.1.8 |
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Full Disclosure |
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74 |
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6.1.9 |
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Taxes |
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75 |
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6.1.10 |
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Patents, Trademarks, Copyrights,
Licenses, Etc. |
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75 |
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6.1.11 |
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Liens in the Collateral |
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75 |
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6.1.12 |
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Insurance |
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75 |
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6.1.13 |
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ERISA Compliance |
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75 |
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6.1.14 |
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Environmental Matters |
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76 |
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6.1.15 |
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Solvency |
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76 |
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6.1.16 |
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Fraud and Abuse |
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76 |
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6.1.17 |
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Licensing and Accreditation |
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77 |
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6.1.18 |
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Other Regulatory Protection |
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77 |
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6.1.19 |
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Compliance with the Swiss Twenty
Non-Bank Rule |
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77 |
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6.2 |
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Updates to Schedules |
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77 |
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7. |
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CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT |
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78 |
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7.1 |
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First Loans and Letters of Credit |
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78 |
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Page |
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7.1.1 |
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Deliveries |
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78 |
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7.1.2 |
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Payment of Fees |
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79 |
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7.2 |
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Each Loan or Letter of Credit |
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79 |
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7.3 |
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PostClosing Covenants |
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80 |
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8. |
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COVENANTS |
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81 |
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8.1 |
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Affirmative Covenants |
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81 |
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8.1.1 |
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Preservation of Existence, Etc. |
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81 |
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8.1.2 |
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Payment of Liabilities, Including
Taxes, Etc. |
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81 |
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8.1.3 |
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Maintenance of Insurance |
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81 |
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8.1.4 |
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Maintenance of Properties and Leases |
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81 |
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8.1.5 |
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Visitation Rights |
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81 |
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8.1.6 |
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Keeping of Records and Books of Account |
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82 |
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8.1.7 |
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Compliance with Laws; Use of Proceeds |
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82 |
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8.1.8 |
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Further Assurances |
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82 |
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8.1.9 |
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Anti-Terrorism Laws |
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82 |
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8.1.10 |
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Material Contracts |
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83 |
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8.1.11 |
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Designation as Senior Debt |
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83 |
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8.1.12 |
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Compliance with the Swiss Twenty Non-Bank Rules |
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83 |
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8.2 |
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Negative Covenants |
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84 |
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8.2.1 |
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Indebtedness |
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84 |
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8.2.2 |
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Liens |
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85 |
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8.2.3 |
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Guaranties |
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85 |
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8.2.4 |
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Loans and Investments |
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85 |
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8.2.5 |
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Dividends and Related Distributions |
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86 |
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8.2.6 |
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Liquidations, Mergers, Consolidations, Acquisitions |
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87 |
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8.2.7 |
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Dispositions of Assets or Subsidiaries |
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87 |
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8.2.8 |
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Affiliate Transactions |
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88 |
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8.2.9 |
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Subsidiaries, Partnerships and Joint Ventures |
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89 |
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8.2.10 |
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Continuation of or Change in Business |
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89 |
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8.2.11 |
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Fiscal Year; Accounting Changes |
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89 |
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8.2.12 |
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Issuance of Stock |
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89 |
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8.2.13 |
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Changes in Organizational Documents |
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90 |
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8.2.14 |
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Capital Expenditures |
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90 |
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8.2.15 |
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Maximum Leverage Ratio |
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90 |
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8.2.16 |
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Minimum Interest Coverage Ratio |
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90 |
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8.2.17 |
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Negative Pledges |
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90 |
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8.2.18 |
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Covenants as to Certain Indebtedness |
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91 |
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8.2.19 |
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Agreements Restricting Dividends |
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91 |
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8.2.20 |
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Designation of Senior Debt |
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92 |
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8.2.21 |
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Restrictions on Insurance Subsidiary and Receivables Subsidiary |
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92 |
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8.2.22 |
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Prepayments, Etc. of Indebtedness |
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92 |
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8.3 |
|
Reporting Requirements |
|
|
92 |
|
|
|
|
|
8.3.1 |
|
Quarterly Financial Statements |
|
|
92 |
|
|
|
|
|
8.3.2 |
|
Annual Financial Statements |
|
|
93 |
|
|
|
|
|
8.3.3 |
|
Certificate of the Company |
|
|
93 |
|
|
|
|
|
8.3.4 |
|
Notices |
|
|
93 |
|
iv
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Page |
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9. |
|
DEFAULT |
|
|
94 |
|
|
|
9.1 |
|
Events of Default |
|
|
94 |
|
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|
|
9.1.1 |
|
Payments Under Loan Documents |
|
|
94 |
|
|
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|
|
9.1.2 |
|
Breach of Warranty |
|
|
94 |
|
|
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|
9.1.3 |
|
Breach of Negative Covenants or Visitation Rights |
|
|
95 |
|
|
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|
9.1.4 |
|
Breach of Other Covenants |
|
|
95 |
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|
9.1.5 |
|
Defaults in Other Agreements or Indebtedness |
|
|
95 |
|
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|
|
9.1.6 |
|
Final Judgments or Orders |
|
|
95 |
|
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|
9.1.7 |
|
Loan Document Unenforceable |
|
|
95 |
|
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|
9.1.8 |
|
Proceedings Against Assets |
|
|
95 |
|
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|
9.1.9 |
|
Events Relating to Plans and Benefit Arrangements |
|
|
95 |
|
|
|
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|
9.1.10 |
|
Change of Control |
|
|
96 |
|
|
|
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|
9.1.11 |
|
Exclusion from Medical Reimbursement Programs |
|
|
96 |
|
|
|
|
|
9.1.12 |
|
Relief Proceedings |
|
|
96 |
|
|
|
9.2 |
|
Consequences of Event of Default |
|
|
96 |
|
|
|
|
|
9.2.1 |
|
Events of Default Other Than
Bankruptcy, Insolvency or Reorganization Proceedings |
|
|
96 |
|
|
|
|
|
9.2.2 |
|
Bankruptcy, Insolvency or Reorganization Proceedings |
|
|
96 |
|
|
|
|
|
9.2.3 |
|
Setoff |
|
|
97 |
|
|
|
|
|
9.2.4 |
|
Certain Other Matters |
|
|
97 |
|
|
|
|
|
9.2.5 |
|
Application of Proceeds |
|
|
97 |
|
|
|
|
|
|
|
|
|
|
|
|
10. |
|
THE ADMINISTRATIVE AGENT |
|
|
98 |
|
|
|
10.1 |
|
Appointment and Authority |
|
|
98 |
|
|
|
10.2 |
|
Rights as a Lender |
|
|
98 |
|
|
|
10.3 |
|
Exculpatory Provisions |
|
|
98 |
|
|
|
10.4 |
|
Reliance by Administrative Agent |
|
|
99 |
|
|
|
10.5 |
|
Delegation of Duties |
|
|
100 |
|
|
|
10.6 |
|
Resignation of Administrative Agent |
|
|
100 |
|
|
|
10.7 |
|
NonReliance on Administrative Agent and Other Lenders |
|
|
101 |
|
|
|
10.8 |
|
No Other Duties, etc |
|
|
101 |
|
|
|
10.9 |
|
Administrative Agents Fee |
|
|
101 |
|
|
|
10.10 |
|
Authorization to Release Collateral and Guarantors |
|
|
101 |
|
|
|
10.11 |
|
No Reliance on Administrative Agents Customer Identification Program |
|
|
102 |
|
|
|
|
|
|
|
|
|
|
|
|
11. |
|
MISCELLANEOUS |
|
|
102 |
|
|
|
11.1 |
|
Modifications, Amendments or Waivers |
|
|
102 |
|
|
|
|
|
11.1.1 |
|
Increase of Commitment |
|
|
102 |
|
|
|
|
|
11.1.2 |
|
Extension of Payment; Reduction of Principal Interest or Fees; Modification of |
|
|
|
|
|
|
|
|
|
|
Terms of Payment |
|
|
102 |
|
|
|
|
|
11.1.3 |
|
Release of Collateral, Borrower or Guarantor |
|
|
102 |
|
|
|
|
|
11.1.4 |
|
Miscellaneous |
|
|
103 |
|
|
|
11.2 |
|
No Implied Waivers; Cumulative Remedies |
|
|
103 |
|
|
|
11.3 |
|
Expenses; Indemnity; Damage Waiver |
|
|
103 |
|
|
|
|
|
11.3.1 |
|
Costs and Expenses |
|
|
103 |
|
|
|
|
|
11.3.2 |
|
Indemnification by the Borrowers |
|
|
104 |
|
|
|
|
|
11.3.3 |
|
Reimbursement by Lenders |
|
|
104 |
|
|
|
|
|
11.3.4 |
|
Waiver of Consequential Damages,
Etc. |
|
|
104 |
|
|
|
|
|
11.3.5 |
|
Payments |
|
|
105 |
|
v
|
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|
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|
|
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|
|
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|
Page |
|
|
|
11.4 |
|
Holidays |
|
|
105 |
|
|
|
11.5 |
|
Notices; Effectiveness; Electronic Communication |
|
|
105 |
|
|
|
|
|
11.5.1 |
|
Notices Generally |
|
|
105 |
|
|
|
|
|
11.5.2 |
|
Electronic Communications |
|
|
105 |
|
|
|
|
|
11.5.3 |
|
Change of Address, Etc. |
|
|
106 |
|
|
|
11.6 |
|
Severability |
|
|
106 |
|
|
|
11.7 |
|
Duration; Survival |
|
|
106 |
|
|
|
11.8 |
|
Successors and Assigns |
|
|
106 |
|
|
|
|
|
11.8.1 |
|
Successors and Assigns Generally |
|
|
106 |
|
|
|
|
|
11.8.2 |
|
Assignments by Lenders |
|
|
107 |
|
|
|
|
|
11.8.3 |
|
Register |
|
|
108 |
|
|
|
|
|
11.8.4 |
|
Participations |
|
|
108 |
|
|
|
|
|
11.8.5 |
|
Limitations upon Participant Rights Successors and Assigns Generally |
|
|
109 |
|
|
|
|
|
11.8.6 |
|
Certain Pledges; Successors and Assigns Generally |
|
|
109 |
|
|
|
|
|
11.8.7 |
|
Disapplication or Amendment of the Swiss Bank Rules |
|
|
109 |
|
|
|
|
|
11.8.8 |
|
Netherlands Bank Rules |
|
|
109 |
|
|
|
11.9 |
|
Confidentiality |
|
|
110 |
|
|
|
|
|
11.9.1 |
|
General |
|
|
110 |
|
|
|
|
|
11.9.2 |
|
Sharing Information With Affiliates of the Lenders |
|
|
110 |
|
|
|
11.10 |
|
Counterparts; Integration; Effectiveness |
|
|
110 |
|
|
|
11.11 |
|
CHOICE OF LAW; SUBMISSION TO JURISDICTION; WAIVER OF VENUE; SERVICE OF PROCESS; WAIVER OF JURY TRIAL |
|
|
111 |
|
|
|
|
|
11.11.1 |
|
Governing Law |
|
|
111 |
|
|
|
|
|
11.11.2 |
|
SUBMISSION TO JURISDICTION |
|
|
111 |
|
|
|
|
|
11.11.3 |
|
WAIVER OF VENUE |
|
|
111 |
|
|
|
|
|
11.11.4 |
|
SERVICE OF PROCESS |
|
|
111 |
|
|
|
|
|
11.11.5 |
|
WAIVER OF JURY TRIAL |
|
|
112 |
|
|
|
11.12 |
|
USA Patriot Act Notice |
|
|
112 |
|
|
|
11.13 |
|
Borrower Agent |
|
|
112 |
|
|
|
11.14 |
|
Foreign Borrowers and Foreign Guarantors |
|
|
112 |
|
|
|
|
|
11.14.1 |
|
Generally |
|
|
112 |
|
|
|
|
|
11.14.2 |
|
Liability of Foreign Borrowers |
|
|
112 |
|
|
|
|
|
11.14.3 |
|
Company as Agent |
|
|
113 |
|
|
|
11.15 |
|
Joinder of Guarantors and Borrowers; Release of Foreign Borrowers and Foreign Guarantors |
|
|
113 |
|
|
|
|
|
11.15.1 |
|
Joinder of Guarantors and Borrowers |
|
|
113 |
|
|
|
|
|
11.15.2 |
|
Release of Foreign Borrowers and Foreign Guarantors |
|
|
113 |
|
vi
LIST OF SCHEDULES AND EXHIBITS
|
|
|
|
|
SCHEDULES |
|
|
|
|
|
|
|
|
|
SCHEDULE 1.1(B)
|
|
|
|
COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES |
SCHEDULE 1.1(D)
|
|
|
|
DOMESTIC EXCLUDED SUBSIDIARIES |
SCHEDULE 1.1(F)
|
|
|
|
FOREIGN EXCLUDED SUBSIDIARIES |
SCHEDULE 1.1(M)
|
|
|
|
MATERIAL SUBSIDIARIES |
SCHEDULE 1.1(P)
|
|
|
|
PERMITTED LIENS |
SCHEDULE 2.5.1
|
|
|
|
EXISTING LETTERS OF CREDIT |
SCHEDULE
6.1.2
|
|
|
|
SUBSIDIARIES |
SCHEDULE 6.1.4
|
|
|
|
REQUIRED CONSENTS |
SCHEDULE
6.1.14
|
|
|
|
ENVIRONMENTAL DISCLOSURES |
SCHEDULE
6.1.18
|
|
|
|
OTHER REGULATORY PROTECTION DISCLOSURES |
SCHEDULE
7.1.1
|
|
|
|
OPINION OF COUNSEL |
SCHEDULE
8.1.3
|
|
|
|
INSURANCE REQUIREMENTS RELATING TO COLLATERAL |
SCHEDULE
8.2.1
|
|
|
|
PERMITTED INDEBTEDNESS |
SCHEDULE 8.2.4
|
|
|
|
INVESTMENTS IN SUBSIDIARIES |
SCHEDULE 8.2.22
|
|
|
|
REPAYMENTS AND REDEMPTIONS OF INDEBTEDNESS |
|
|
|
|
|
|
|
|
|
|
EXHIBITS |
|
|
|
|
|
|
|
|
|
EXHIBIT 1.1(A)
|
|
|
|
ASSIGNMENT AND ASSUMPTION AGREEMENT |
EXHIBIT 1.1(B)
|
|
|
|
BORROWER JOINDER |
EXHIBIT 1.1(G)(1)
|
|
|
|
GUARANTOR JOINDER |
EXHIBIT 1.1(G)(2)
|
|
|
|
GUARANTY AGREEMENT |
EXHIBIT 1.1(N)(1)
|
|
|
|
REVOLVING CREDIT NOTE |
EXHIBIT 1.1(N)(2)
|
|
|
|
SWING LOAN NOTE |
EXHIBIT 1.1(P)(1)
|
|
|
|
PATENT, TRADEMARK AND COPYRIGHT SECURITY
AGREEMENT |
EXHIBIT 1.1(P)(2)
|
|
|
|
PLEDGE AGREEMENT |
EXHIBIT 1.1(S)
|
|
|
|
SECURITY AGREEMENT |
EXHIBIT 2.1
|
|
|
|
LENDER JOINDER |
EXHIBIT 2.3
|
|
|
|
LOAN REQUEST |
EXHIBIT
2.3.2
|
|
|
|
SWING LOAN REQUEST |
EXHIBIT
8.3.3
|
|
|
|
QUARTERLY COMPLIANCE CERTIFICATE |
vii
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (as hereafter amended, the Agreement) is dated as of October 28, 2010
and is made by and among INVACARE CORPORATION, an Ohio corporation (the Company as hereinafter
defined), each of the other BORROWERS (as hereinafter defined), each of the GUARANTORS (as
hereinafter defined), each of the LENDERS (as hereinafter defined), the ISSUING LENDER (as
hereinafter defined), the SWING LOAN LENDERS (as hereinafter defined) and PNC BANK, NATIONAL
ASSOCIATION, in its capacity as Administrative Agent (as hereinafter defined) for the Lenders under
this Agreement.
The Borrowers have requested the Lenders to provide, on a senior secured basis, to the
Borrowers a revolving credit facility to the Borrowers in an aggregate principal amount not to
exceed $400,000,000, with sublimits for the issuance of Letters of Credit in Dollars and Optional
Currencies, borrowings of Swing Loans in Dollars and, subject to certain limitations, Optional
Currencies, and borrowings of Revolving Credit Loans in Dollars and Optional Currencies, with an up
to $75,000,000 accordion feature. In consideration of their mutual covenants and agreements
hereinafter set forth and intending to be legally bound hereby, the parties hereto covenant and
agree as follows:
1. CERTAIN DEFINITIONS
1.1 Certain Definitions.
In addition to words and terms defined elsewhere in this Agreement, the following words and
terms shall have the following meanings, respectively, unless the context hereof clearly requires
otherwise:
2015 Senior Notes shall mean the Companys 9 3/4% senior unsecured notes, issued in
2007 and due in 2015, in the aggregate original principal amount of $175,000,000 guarantied by
certain of the Loan Parties.
2027 Convertible Notes shall mean the Companys 4.125% convertible notes, issued in
2007 and due in 2027, in the aggregate original principal amount of $135,000,000 guarantied by
certain of the Loan Parties.
Administrative Agent shall mean PNC Bank, National Association, and its successors and
assigns.
Administrative Agents Fee shall have the meaning specified in Section 10.9
[Administrative Agents Fee].
Administrative Agents Letter shall have the meaning specified in Section 10.9
[Administrative Agents Fee].
Affiliate as to any Person shall mean any other Person which directly or indirectly
Controls, is Controlled by, or is under common Control with such Person.
AML Legislation shall have the meaning specified in Section 8.1.9 [Anti-Terrorism
Laws].
Anti-Terrorism Laws shall mean any Laws relating to terrorism or money laundering,
including Executive Order No. 13224, the USA Patriot Act, the Laws comprising or implementing the
Bank Secrecy Act, and the Laws administered by the United States Treasury Departments Office of
Foreign Asset Control (as any of the foregoing Laws may from time to time be amended, renewed,
extended, or replaced).
Applicable Commitment Fee Rate shall mean the percentage rate per annum based on the
Leverage Ratio then in effect according to the Pricing Grid below the heading Commitment Fee.
Applicable Letter of Credit Fee Rate shall mean the percentage rate per annum based on
the Leverage Ratio then in effect according to the Pricing Grid below the heading Letter of Credit
Fee.
Applicable Margin shall mean, as applicable:
(i) the percentage spread to be added to the Base Rate applicable to Revolving Credit Loans
under the Base Rate Option based on the Leverage Ratio then in effect according to the Pricing Grid
below the heading Revolving Credit Base Rate Spread, or
(ii) the percentage spread to be added to the Euro-Rate applicable to Revolving Credit Loans
under the Euro-Rate Option based on the Leverage Ratio then in effect according to the Pricing Grid
below the heading Revolving Credit Euro-Rate Spread.
Approved Fund shall mean any fund that is engaged in making, purchasing, holding or
investing in bank loans and similar extensions of credit in the ordinary course of business and
that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or
an Affiliate of an entity that administers or manages a Lender.
Assignment and Assumption Agreement shall mean an assignment and assumption agreement
entered into by a Lender and an assignee permitted under Section 11.8 [Successors and Assigns], in
substantially the form of Exhibit 1.1(A).
Attributable Indebtedness shall mean, on any date, (a) in respect of any Capitalized
Lease of any Person, the capitalized amount thereof that would appear on the balance sheet of such
Person prepared as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease
Obligation, the capitalized amount of the remaining lease or similar payments under the relevant
lease or other applicable agreement or instrument that would appear on a balance sheet of such
Person prepared as of such date in accordance with GAAP if such lease or other agreement or
instrument were accounted for as a Capitalized Lease, (c) in respect of any securitization
transaction of any Person, the outstanding principal amount of such financing, after taking into
account reserve accounts and making appropriate adjustments, as determined by the Administrative
Agent in its reasonable judgment, (d) in respect of any Sale and Leaseback Transaction, the present
value (discounted in accordance with GAAP at the debt rate implied in the applicable lease) of the
obligations of the lessee for rental payments during the term of such lease and (e) all Synthetic
Debt of such Person.
Authorized Officer shall mean, with respect to any Loan Party, the Chief Executive
Officer, President, Chief Financial Officer, Treasurer or Assistant Treasurer of such
2
Loan Party,
other authorized signers on behalf of such Loan Party or such other individuals, designated by
written notice to the Administrative Agent from a Borrower, authorized to execute notices, reports
and other documents on behalf of the Loan Parties required hereunder. A Borrower may amend such
list of individuals from time to time by giving written notice of such amendment to the
Administrative Agent.
Base Rate shall mean, for any day, a fluctuating per annum rate of interest equal to
the highest of (a) the Federal Funds Open Rate, plus fifty basis points (0.5%), (b) the
Prime Rate, and (c) the Daily Euro-Rate, plus 100 basis points (1.0%). Any change in the
Base Rate (or any component thereof) shall take effect at the opening of business on the day such
change occurs.
Base Rate Option shall mean the option of the Borrowers to have Loans (other than
Loans in Optional Currencies) bear interest at the rate and under the terms set forth in Section
4.1.1(i) [Revolving Credit Base Rate Option].
Borrowers shall mean the Company and each of its Affiliates which are Borrowers as
identified on the signature pages hereto or in a Borrower Joinder, and Borrower shall mean
any of the Borrowers.
Borrowing Date shall mean, with respect to any Loan, the date for the making thereof
or the renewal or conversion thereof at or to the same or a different Interest Rate Option, which
shall be a Business Day.
Borrower Joinder shall mean a joinder by a Person as a Borrower under this Agreement
and the other Loan Documents in substantially the form of Exhibit 1.1(B).
Borrowing Tranche shall mean specified portions of Loans outstanding as follows: (i)
any Loans to which a Euro-Rate Option applies which become subject to the same Interest Rate Option
under the same Loan Request by the Borrowers and which have the same Interest Period shall
constitute one Borrowing Tranche, and (ii) all Loans to which a Base Rate Option applies shall
constitute one Borrowing Tranche.
Business Day shall mean any day other than a Saturday or Sunday or a legal holiday on
which commercial banks are authorized or required to be closed for business in Pittsburgh,
Pennsylvania and (i) if the applicable Business Day relates to any Loan to which the Euro-Rate
Option applies, such day must also be a day on which dealings are carried on in the Relevant
Interbank Market, (ii) with respect to advances or payments of Loans or any other matters relating
to Loans denominated in an Optional Currency, such day also shall be a day on which dealings in
deposits in the relevant Optional Currency are carried on in the Relevant Interbank Market, and
(iii) with respect to advances or payments of Loans denominated in an Optional Currency other than
the Euro or the Canadian dollar, such day shall also be a day on which all applicable banks into
which Loan proceeds may be deposited are open for business and foreign exchange markets are open
for business in the principal financial center of the country of such currency and in respect to
advances or payments of Loans denominated in Euro shall be a TARGET Day.
Canadian Borrower shall mean any Borrower incorporated or otherwise organized under
the laws of Canada or any province or territory thereof.
3
Capex Carryover Amount shall have the meaning specified in Section 8.2.14 [Capital
Expenditures].
Capital Expenditures shall mean, with respect to any Person for any period, any
expenditure in respect of the purchase or other acquisition of any fixed or capital asset
(excluding normal replacements and maintenance, and permitted purchases with insurance proceeds,
which are properly charged to current operations) that is treated as a capital expenditure in
accordance with GAAP.
Capitalized Leases shall mean all leases that have been or should be, in accordance
with GAAP, recorded as capitalized leases.
Cash Collateralize shall mean to pledge and deposit with or deliver to Administrative
Agent, for the benefit of the Issuing Lender and the Lenders, as collateral for the Letter of
Credit Obligations, cash or deposit account balances (in Dollars or Optional Currencies, as
applicable) in an amount equal to at least 103% of the face amount of the applicable Letter of
Credit pursuant to documentation satisfactory to Administrative Agent and each Issuing Lender
(which documents are hereby consented to by the Lenders). Such cash collateral shall be maintained
in blocked, non-interest bearing deposit accounts at the Administrative Agent.
Cash Management Agreements shall have the meaning specified in Section 2.4.6 [Swing
Loans under Cash Management Agreements].
CDOR Market shall mean the daily survey of market makers in bankers acceptances, the
result of which is quoted on the CDOR page of Reuters Monitor Service each day.
Change in Law shall mean the occurrence, after the date of this Agreement, of any of
the following: (a) the adoption or taking effect of any Law, (b) any change in any Law or in the
administration, interpretation or application thereof by any Official Body or (c) the making or
issuance of any request, guideline or directive (whether or not having the force of Law) by any
Official Body; provided however, that notwithstanding anything herein to the
contrary, the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules,
regulations, guidelines or directives thereunder or issued in connection therewith shall be deemed
to have been enacted, adopted or issued after the date of this Agreement, regardless of the date
enacted, adopted or issued (even if enacted, adopted or issued before the date hereof).
Change of Control shall mean any of the following occurrences:
(a) any person or group of persons (within the meaning of Sections 13(d) or 14(a) of the
Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership of (within
the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) 35%
or more of the voting power of the Equity Interests of the Company;
(b) within a period of twelve (12) consecutive calendar months, individuals who were directors
of the Company on the first day of such period shall cease to constitute a majority of the board of
directors of the Company;
4
(c) any Person (or Persons acting in concert) shall have acquired by contract or otherwise the
power to exercise, directly or indirectly, a controlling influence over the management or policies
of the Company, or control of the Equity Interests of the Company entitled to vote for members of
the board of directors or equivalent governing body of the Company on a fully-diluted basis (and
taking into account all such Equity Interests that such Person or Persons have the right to acquire
pursuant to any option right) representing 35% or more of the combined voting power of such Equity
Interests;
(d) a change of control or any comparable term under, and as defined in the documents
governing the 2015 Senior Notes, 2027 Convertible Notes or any other material Indebtedness of the
Company shall occur prior to the date such Indebtedness is repaid or redeemed in accordance with,
or to the extent not prohibited by, the provisions of the Credit Agreement; or
(e) the Company shall fail to own and Control, directly or indirectly, 100% of the outstanding
Equity Interests of each Borrower.
CIP Regulations shall have the meaning specified in Section 10.11 [No Reliance on
Administrative Agents Customer Identification Program].
Closing Date shall mean the Business Day on which the first Loan shall be made, which
shall be October 28, 2010.
CMS shall mean the Centers for Medicare and Medicaid Services of HHS, any successor
thereof and any predecessor thereof, including the Health Care Financing Administration.
Code shall mean the Internal Revenue Code of 1986, as the same may be amended or
supplemented from time to time, and any successor statute of similar import, and the rules and
regulations thereunder, as from time to time in effect.
Collateral shall mean the collateral under (i) the Security Agreement, (ii) the Pledge
Agreement and (iii) the Patent, Trademark and Copyright Security Agreement, together with any other
collateral security granted in favor of the Administrative Agent for the benefit of the Lenders
pursuant to the Loan Documents, including without limitation any cash collateral.
Commercial Letter of Credit shall mean a commercial letter of credit issued in respect
of the purchase of goods or services in the ordinary course of business of a Loan Party or another
Subsidiary of the Company.
Commitment shall mean as to any Lender its Revolving Credit Commitment and, in the
case of any Swing Loan Lender, its Swing Loan Commitment, and Commitments shall mean the
aggregate of the Revolving Credit Commitments and Swing Loan Commitment of all of the Lenders.
Commitment Fee shall have the meaning specified in Section 2.7.3 [Commitment Fees].
Company shall mean Invacare Corporation, a corporation organized and existing under
the laws of the State of Ohio.
5
Company Equity Interests shall have the meaning specified in Section 6.1.2
[Subsidiaries and Owners; Investment Companies].
Compliance Certificate shall have the meaning specified in Section 8.3.3 [Certificate
of the Company].
Computation Date shall have the meaning specified in Section 2.6.1 [Periodic
Computations of Dollar Equivalent Amounts of Revolving Credit Loans and Letters of Credit
Outstanding; Repayment in Same Currency].
Consolidated EBITDA shall mean, at any fiscal quarter end date, an amount equal to (a)
Consolidated Net Income of the Company and its Subsidiaries on a consolidated basis for the most
recently completed four (4) fiscal quarters of the Company
plus (b) the following (without
duplication) to the extent deducted in calculating such Consolidated Net Income (and excluding any
item that is excluded in determining Consolidated Net Income pursuant to the definition thereof):
|
(i) |
|
Consolidated Interest Charges, |
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|
(ii) |
|
fees and expenses incurred in connection with the closing under
this Agreement, |
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(iii) |
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the provision for federal, state, local and foreign income tax
expense, |
|
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(iv) |
|
depreciation and amortization expense (including, without
limitation, the amortization of debt issuance costs) and bank or lending fees
classified as selling, general and administrative expenses, |
|
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(v) |
|
non-cash compensation charges or other non-cash expenses or
charges arising from the grant of or issuance of stock, stock options or other
equity-based awards to the directors, officers and employees of the Company and
its Subsidiaries, |
|
|
(vi) |
|
premiums paid, gains/losses incurred, charges and fees paid
with respect to the repayment of the 2015 Senior Notes and the 2027 Convertible
Notes (to the extent any such repayment is permitted pursuant to Section
8.2.22 [Prepayments, Etc. of Indebtedness], |
|
|
(vii) |
|
any non-cash charges relating to cost savings initiatives, |
|
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(viii) |
|
cash charges up to $15,000,000 in the aggregate during the term of this
Agreement relating to cost savings initiatives, and |
|
|
(ix) |
|
any other non-recurring expenses and losses reducing such
Consolidated Net Income which do not represent a cash item in such period or
any future period (in each case of or by the Company and its Subsidiaries for
the most recently completed four (4) fiscal quarters of the Company), |
minus (c) to the extent included in calculating Consolidated Net Income:
6
|
(i) |
|
federal, state, local and foreign income tax credits, and |
|
|
(ii) |
|
all non-recurring non-cash items increasing Consolidated Net
Income (in each case of or by the Company and its Subsidiaries for the most
recently completed four (4) fiscal quarters of the Company). |
Consolidated Funded Indebtedness shall mean, as of any fiscal quarter end date, for
the Company and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money (including Obligations
hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations arising under
letters of credit (including standby and commercial), bankers acceptances, bank guaranties, surety
bonds and similar instruments, (d) all obligations in respect of the deferred purchase price of
property or services (other than trade accounts or accrued expenses payable in the ordinary course
of business and deferred compensation and bonuses), (e) all Attributable Indebtedness, (f) without
duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in
clauses (a) through (e) above of Persons other than the Company or any Subsidiary, and (g) all
Indebtedness of the types referred to in clauses (a) through (f) above of any partnership or joint
venture (other than a joint venture that is itself a corporation or limited liability company) in
which the Company or a Subsidiary is a general partner or joint venturer, unless such Indebtedness
is expressly made non-recourse to the Company or such Subsidiary; provided that
Consolidated Funded Indebtedness shall not include recourse obligations of the Company and its
Subsidiaries with respect to any Vendor Financing, provided, further, for the
avoidance of doubt, Consolidated Funded Indebtedness shall not include (i) intercompany loans, or
(ii) any other short or long term liabilities, not specified above or not constituting
Indebtedness for borrowed money, including but not limited to short-term and long-term accrued
income taxes, accrued product liability obligations, accrued life insurance, and guarantee fair
value liability obligations related to third party financing recorded in accordance with FASB
Interpretation No. 45.
Consolidated Interest Charges shall mean, as of any fiscal quarter end date, an amount
equal to (a) all interest, premium payments, debt discount, fees, charges and related expenses in
connection with borrowed money (including capitalized interest) or in connection with the deferred
purchase price of assets, in each case to the extent treated as interest expense in accordance with
GAAP, plus (b) all interest paid or payable with respect to discontinued operations,
plus (c) the portion of rent expense under Capitalized Leases that is treated as interest
in accordance with GAAP, minus (d) any non-cash interest related to the 2027 Convertible
Senior Notes in accordance with FSP APB 14-1, minus (f) all premiums paid, gains/losses
incurred, charges and fees paid, in each case by the Company and its Subsidiaries in connection
with the redemption, repurchase or retirement of Indebtedness, in each case of or by the Company
and its Subsidiaries on a consolidated basis for the most recently completed four (4) fiscal
quarters of the Company.
Consolidated Interest Coverage Ratio shall mean, as of the end of any fiscal quarter,
the ratio of (a) Consolidated EBITDA for the four (4) fiscal quarters then ending to (b)
Consolidated Interest Charges for the four (4) fiscal quarters then ending.
7
Consolidated Leverage Ratio shall mean, as of the end of any fiscal quarter, the ratio
of (a) Consolidated Funded Indebtedness on such date to (b) Consolidated EBITDA for the four (4)
fiscal quarters then ending.
Consolidated Net Income shall mean the net income (or loss) of the Company and its
Subsidiaries on a consolidated basis for the most recently completed four (4) fiscal quarters of
the Company as determined in accordance with GAAP, adjusted, to the extent included in calculating
such net income (or loss), by excluding, without duplication,
|
(1) |
|
all extraordinary gains or losses (less all fees and expenses
relating thereto) net of taxes, all as determined in accordance with GAAP, |
|
|
(2) |
|
the portion of net income (or loss) of the Company and its
Subsidiaries on a consolidated basis allocable to minority interests in
unconsolidated Persons to the extent that cash dividends or distributions have
not actually been received by the Company or one of its Subsidiaries, |
|
|
(3) |
|
any gain or loss, net of taxes, realized upon the termination
of any employee pension benefit plan, including without limitation any
non-qualified plan, |
|
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(4) |
|
gains or losses (less all fees and expenses relating thereto),
net of taxes, in respect of dispositions of assets other than in the ordinary
course of business, |
|
|
(5) |
|
any impairment charge or write-down of non-current assets, in
each case pursuant to GAAP, |
|
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(6) |
|
any non-cash expenses or charges resulting from stock, stock
option or other equity-based awards, |
|
|
(7) |
|
any cumulative effect of a change in accounting principles, |
|
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(8) |
|
all deferred financing costs written off, and premiums paid,
gains/losses incurred, charges and fees paid, in each case, by the Loan Parties
in connection with any (i) early extinguishment of Indebtedness or (ii)
redemption, repurchase, or retirement of any Indebtedness, |
|
|
(9) |
|
any non-cash restructuring charges, |
|
|
(10) |
|
any non-cash interest charges in relation to the 2027
Convertible Notes pursuant to FSP APB 14-1, and |
|
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(11) |
|
any non-cash gains or losses with respect to a sale/leaseback
transaction. |
Consolidated Total Assets shall mean all property and assets of the Company and its
Subsidiaries on a consolidated basis as set forth in the most recent financial statements of the
Company delivered pursuant to Section 8.3.1 [Quarterly Financial Statements] and Section 8.3.2
[Annual Financial Statements].
8
Control shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. Controlling and Controlled have
meanings correlative thereto.
Currency Hedge shall mean a foreign exchange contract or currency swap agreement or
similar arrangement entered into by the Loan Parties or their Subsidiaries in order to provide
protection to, or minimize the impact upon, the Borrowers, the Guarantors and/or their Subsidiaries
with respect to fluctuations in currency values.
Customer Lease shall mean a lease by the Company or any of its Subsidiaries of product
to a customer for the purpose of financing the purchase thereof by such customer.
Daily Euro-Rate shall mean, for any day, the rate per annum determined by the
Administrative Agent by dividing (x) the Published Rate by (y) a number equal to 1.00 minus the
Euro-Rate Reserve Percentage on such day.
Debt Rating shall mean, as of any fiscal quarter end date, the rating as determined by
either Standard & Poors or Moodys of the Companys non-credit-enhanced, senior unsecured
long-term debt.
Defaulting Lender shall mean any Lender that (a) has failed to fund any portion of the
Loans, participations with respect to Letters of Credit, or participations in Swing Line Loans
required to be funded by it hereunder within two (2) Business Days of the date required to be
funded by it hereunder unless such failure has been cured and all interest accruing as a result of
such failure has been fully paid in accordance with the terms hereof, (b) has otherwise failed to
pay over to the Administrative Agent or any other Lender any other amount required to be paid by it
hereunder within two (2) Business Days of the date when due, unless the subject of a good faith
dispute or unless such failure has been cured and all interest accruing as a result of such failure
has been fully paid in accordance with the terms hereof, (c) has failed at any time to comply with
the provisions of Section 5.3 [Sharing of Payments by Lenders] with respect to purchasing
participations from the other Lenders, whereby such Lenders share of any payment received, whether
by setoff or otherwise, is in excess of its Ratable Share of such payments due and payable to all
of the Lenders, or (d) has since the date of this Agreement been deemed insolvent by an Official
Body or become the subject of a bankruptcy, receivership, conservatorship or insolvency proceeding,
or has a parent company that since the date of this Agreement been deemed insolvent by an Official
Body or become the subject of a bankruptcy, receivership, conservatorship or insolvency proceeding.
Dollar, Dollars, U.S. Dollars and the symbol $ shall mean lawful money of the
United States of America.
Dollar Equivalent shall mean, with respect to any amount of any currency, as of any
Computation Date, the Equivalent Amount of such currency expressed in Dollars.
Dollar Equivalent Revolving Facility Usage shall mean, at any time, the sum of the
Dollar Equivalent of the principal amount of Revolving Credit Loans and Swing Loans then
outstanding and the Dollar Equivalent amount of all Letter of Credit Obligations.
9
Domestic Borrowers shall mean the Borrowers which are organized under the laws of the
United States of America, any State thereof or the District of Columbia.
Domestic Guarantors shall mean the Guarantors which are organized under the laws of
the United States of America, any State thereof or the District of Columbia.
Domestic Loan Parties shall mean the Domestic Borrowers and Domestic Guarantors.
Drawing Date shall have the meaning specified in Section 2.5.3 [Disbursements,
Reimbursement].
Environmental Laws shall mean all applicable federal, state, local, territorial and
foreign Laws (including common law), constitutions, statutes, regulations, rules, ordinances and
codes and any consent decrees, settlement agreements, judgments, orders, directives, policies or
programs issued by or entered into with an Official Body pertaining or relating to: (i) pollution
or pollution control; (ii) protection of human health from exposure to Regulated Substances; (iii)
protection of the environment and/or natural resources; (iv) employee safety in the workplace as
related to exposure to Regulated Substances; (v) the presence, use, management, generation,
manufacture, processing, extraction, treatment, recycling, refining, reclamation, labeling,
packaging, sale, transport, storage, collection, distribution, disposal or release or threat of
release of Regulated Substances; (vi) the presence of contamination; and (vii) the protection of
environmentally sensitive areas.
Equity Interest shall mean, with respect to any Person, any shares of capital stock,
membership interests, partnership interests or other equity interests of any kind (including
without limitation rights of any kind to acquire any such equity interests) in such Person or any
of its Subsidiaries.
Equivalent Amount shall mean, at any time, as determined by Administrative Agent
(which determination shall be conclusive absent manifest error), with respect to an amount of any
currency (the Reference Currency) which is to be computed as an equivalent amount of another
currency (the Equivalent Currency), the amount of such Equivalent Currency converted from such
Reference Currency at Administrative Agents spot selling rate (based on the market rates then
prevailing and available to Administrative Agent) for the sale of such Equivalent Currency for such
Reference Currency at a time determined by Administrative Agent on the second Business Day
immediately preceding the event for which such calculation is made.
Equivalent Currency shall have the meaning specified in the definition of Equivalent
Amount.
ERISA shall mean the Employee Retirement Income Security Act of 1974, as the same may
be amended or supplemented from time to time, and any successor statute of similar import, and the
rules and regulations thereunder, as from time to time in effect.
ERISA Affiliate shall mean any trade or business (whether or not incorporated) under
common control with the Company which is treated as a single employer under Section 414 of the
Code.
10
ERISA Event shall mean (a) a reportable event (under Section 4043 of ERISA and
regulations thereunder) with respect to a Pension Plan; (b) a withdrawal by a Loan Party or any
ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it
was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations
that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by a Loan Party or any ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the
commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an
event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon a Loan Party or any ERISA Affiliate.
ERISA Group shall mean the Loan Parties and all other entities which, together with
the Loan Parties, are treated as a single employer under Section 414 (b) or (c) of the Internal
Revenue Code and Sections 414 (m) and (o) of the Internal Revenue Code for purposes of provisions
relating to Section 412 of the Internal Revenue Code.
Euro shall refer to the lawful currency of the Participating Member States.
European Interbank Market shall mean the European interbank market for Euro operating
in Participating Member States.
Euro-Rate shall mean the following:
(a) with respect to Dollar Loans comprising any Borrowing Tranche to which the Euro-Rate
Option applies for any Interest Period, the interest rate per annum determined by the
Administrative Agent by dividing (the resulting quotient rounded upwards, if necessary, to the
nearest 1/100th of 1% per annum) (i) the rate which appears on the Bloomberg Page BBAM1 (or on such
other substitute Bloomberg page that displays rates at which Dollar deposits are offered by leading
banks in the London interbank deposit market), or the rate which is quoted by another source
selected by the Administrative Agent which has been approved by the British Bankers Association as
an authorized information vendor for the purpose of displaying rates at which US Dollar deposits
are offered by leading banks in the London interbank deposit market (for purposes hereof, an
Alternate Source), at approximately 11:00 a.m., London time, two (2) Business Days prior to the
commencement of such Interest Period as the London interbank offered rate for Dollars for an amount
comparable to the principal amount of such Borrowing Tranche and having a borrowing date and a
maturity comparable to such Interest Period (or if there shall at any time, for any reason, no
longer exist a Bloomberg Page BBAM1 (or any substitute page) or any Alternate Source, a comparable
replacement rate determined by the Administrative Agent at such time (which determination shall be
conclusive absent manifest error)), by (ii) a number equal to 1.00 minus the Euro-Rate Reserve
Percentage. The Euro-Rate with respect to Dollar Loans may also be expressed by the following
formula:
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|
|
|
Euro-Rate =
|
|
London interbank offered rate quoted by |
|
|
Bloomberg or appropriate successor as shown on |
|
|
Bloomberg Page BBAM1 |
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|
|
|
1.00 - Euro-Rate Reserve Percentage |
11
The Euro-Rate shall be adjusted with respect to any Loan to which the Euro-Rate Option applies
that is outstanding on the effective date of any change in the Euro-Rate Reserve Percentage as of
such effective date. The Administrative Agent shall give prompt notice to the Company on behalf of
the Borrowers of the Euro-Rate as determined or adjusted in accordance herewith, which
determination shall be conclusive absent manifest error.
(b) with respect to Optional Currency Loans in currency other than Euro and Canadian dollars
comprising any Borrowing Tranche to which the Euro-Rate Option applies for any Interest Period, the
interest rate per annum determined by Administrative Agent by dividing (i) the rate which appears
on the Bloomberg Page BBAM1 (or on such other substitute Bloomberg page that displays rates at
which deposits in the relevant Optional Currency are offered by leading banks in the Relevant
Interbank Market), or the rate which is quoted by an Alternate Source, at approximately 11:00 a.m.,
London time, two (2) Business Days prior to the commencement of such Interest Period as the
Relevant Interbank Market offered rate for deposits in the relevant Optional Currency for an amount
comparable to the principal amount of such Borrowing Tranche and having a borrowing date and a
maturity comparable to such Interest Period (or if there shall at any time, for any reason, no
longer exist a Bloomberg Page BBAM1 (or any substitute page) or any Alternate Source, a comparable
replacement rate determined by the Administrative Agent at such time (which determination shall be
conclusive absent manifest error)), by (ii) a number equal to 1.00 minus the Euro-Rate Reserve
Percentage. Such Euro-Rate may also be expressed by the following formula:
|
|
|
|
Euro-Rate =
|
|
Relevant Interbank Market offered rate quoted by |
|
|
Bloomberg or appropriate successor as shown on |
|
|
Bloomberg Page BBAM1 |
|
|
|
|
|
1.00 - Euro-Rate Reserve Percentage |
The Euro-Rate shall be adjusted with respect to any Loan to which the Euro-Rate Option applies
that is outstanding on the effective date of any change in the Euro-Rate Reserve Percentage as of
such effective date. The Administrative Agent shall give prompt notice to the Company on behalf of
the Borrowers of the Euro-Rate as determined or adjusted in accordance herewith, which
determination shall be conclusive absent manifest error. The Euro-Rate for any Loans shall be
based upon the Euro-Rate for the currency in which such Loans are requested.
(c) with respect to Optional Currency Loans denominated in Euro comprising any Borrowing
Tranche to which the Euro-Rate Option applies for any Interest Period, the interest rate per annum
determined by Administrative Agent by dividing (i) the rate which appears on the Bloomberg Page
BBAM1 (or on such other substitute Bloomberg page that displays rates at which deposits in Euro are
offered by leading banks in the Relevant Interbank Market) or the rate which is quoted by an
Alternate Source, at approximately 11:00 a.m., Brussels time, two (2) TARGET Days prior to the
commencement of such Interest Period as the Relevant Interbank Market offered rate for deposits in
Euro for an amount comparable to the principal amount of such Borrowing Tranche and having a
borrowing date and a maturity comparable to such Interest Period (or if there shall at any time,
for any reason, no longer exist a
Bloomberg Page BBAM1 (or any substitute page) or any Alternate Source, a comparable
replacement rate determined by the Administrative Agent at such time (which determination
12
shall be
conclusive absent manifest error)), by (ii) a number equal to 1.00 minus the Euro-Rate Reserve
Percentage. Such Euro-Rate may also be expressed by the following formula:
|
|
|
|
Euro-Rate =
|
|
London interbank offered rate quoted by |
|
|
Bloomberg or appropriate successor as shown on |
|
|
Bloomberg Page BBAM1 |
|
|
|
|
|
1.00 - Euro-Rate Reserve Percentage |
The Euro-Rate shall be adjusted with respect to any Loan to which the Euro-Rate Option applies
that is outstanding on the effective date of any change in the Euro-Rate Reserve Percentage as of
such effective date. The Administrative Agent shall give prompt notice to the Company on behalf of
the Borrowers of the Euro-Rate as determined or adjusted in accordance herewith, which
determination shall be conclusive absent manifest error. The Euro-Rate for any Loans shall be
based upon the Euro-Rate for the currency in which such Loans are requested.
(d) with respect to Optional Currency Loans denominated in Canadian dollars and made to a
Canadian Borrower comprising any Borrowing Tranche to which the Euro-Rate Option applies for any
Interest Period, on any day and for any period, an annual rate of interest (also known as the CDOR
Rate) equal to the rate applicable to Canadian dollar bankers acceptances for the applicable
Interest Period appearing on the Reuters Screen CDOR Page (as defined in the International Swaps
and Derivatives Association, Inc. 2000 definitions, as modified and amended from time to time),
rounded to the nearest 1/100th of 1% (with .005% being rounded up), at approximately 10:00 a.m.
(Eastern Time), on such day, or if such day is not a Business Day, then on the immediately
preceding Business Day, provided that if such rate does not appear on the Reuters Screen CDOR Page
on such day, the CDOR Rate on such day shall be the rate for such period applicable to Canadian
dollar bankers acceptances quoted by a bank listed in Schedule I of the Bank Act (Canada), as
selected by the Administrative Agent, as of 10:00 a.m. (Eastern Time) on such day or, if such day
is not a Business Day, then on the immediately preceding Business Day.
Euro-Rate Option shall mean the option of the Borrowers to have Loans bear interest at
the rate and under the terms and conditions set forth in Section 4.1.1(ii).
Euro-Rate Reserve Percentage shall mean as of any day the maximum percentage in effect
on such day, (i) as prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the reserve requirements (including supplemental, marginal and emergency
reserve requirements) with respect to eurocurrency funding (currently referred to as Eurocurrency
Liabilities); and (ii) to be maintained by a Lender as required for reserve liquidity, special
deposit, or similar purpose by any governmental or monetary authority of any country or political
subdivision thereof (including any central bank), against (A) any category of liabilities that
includes deposits by reference to which a Euro-Rate is to be determined, or (B) any category of
extension of credit or other assets that includes Loans or Borrowing Tranches to which a Euro-Rate
applies.
Event of Default shall mean any of the events described in Section 9.1 [Events of
Default] and referred to therein as an Event of Default.
Excluded Subsidiaries shall mean the domestic Subsidiaries listed on Schedule
1.1(D) and the Foreign Excluded Subsidiaries. The Excluded Subsidiaries are not
13
required to
join this Agreement as Guarantors. None of the Excluded Subsidiaries is a Material Subsidiary.
Excluded Taxes shall mean, with respect to the Administrative Agent, any Lender, the
Issuing Lender or any other recipient of any payment to be made by or on account of any obligation
of the Loan Parties hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the Laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
lending office is located, (b) any branch profits taxes imposed by the United States of America or
any similar tax imposed by any other jurisdiction in which a Loan Party is located (c) in the case
of a Foreign Lender, any U.S. federal withholding tax that is imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new lending
office) or is attributable to such Foreign Lenders failure or inability (other than as a result of
a Change in Law) to comply with Section 5.9.5 [Status of Lenders], except to the extent that such
Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Loan Parties with respect to such
withholding tax pursuant to Section 5.9.1 [Payment Free of Taxes], and (d) in the case of a
Foreign Lender (other than an Assignee pursuant to a request by the Company under Section 5.6.2
[Replacement of a Lender]), any U.S. federal withholding Taxes resulting from FATCA (other than as
a result of a Change in Law), except to the extent imposed as a result of the Company not providing
to the IRS the required documentation, certifications, or information prescribed by applicable Law
(including as prescribed by Section 1471(b)(3)(C)(i) of the Code) or to the Administrative Agent
such documentation, certifications, or information reasonably requested by the Administrative
Agent.
Executive Order No. 13224 shall mean the Executive Order No. 13224 on Terrorist
Financing, effective September 24, 2001, as the same has been, or shall hereafter be, renewed,
extended, amended or replaced.
Existing Letters of Credit shall mean the letters of credit issued under the Prior
Senior Credit Facility and identified on Schedule 2.5.1 hereto.
Expiration Date shall mean, with respect to the Revolving Credit Commitments, October
28, 2015.
FATCA shall mean Sections 1471 through 1474 of the Code or any amendment or successor
to any such Section, or any regulation or official interpretation thereof issued with respect
thereto, so long as such amendment, successor, regulation, or interpretation is substantially
similar to, and does not expand the scope of, the reporting or withholding obligations of Sections
1471 through 1474 of the Code as of the date of this Agreement with respect to payments to foreign
entities that have dealings with United States Person or that are significantly owned by United
States Persons.
FDA shall have the meaning specified in Section 6.1.18 [Other Regulatory Protection].
Federal Funds Effective Rate for any day shall mean the rate per annum (based on a
year of 360 days and actual days elapsed and rounded upward to the nearest 1/100 of 1%)
14
announced
by the Federal Reserve Bank of New York (or any successor) on such day as being the weighted
average of the rates on overnight federal funds transactions arranged by federal funds brokers on
the previous trading day, as computed and announced by such Federal Reserve Bank (or any successor)
in substantially the same manner as such Federal Reserve Bank computes and announces the weighted
average it refers to as the Federal Funds Effective Rate as of the date of this Agreement;
provided, if such Federal Reserve Bank (or its successor) does not announce such rate on
any day, the Federal Funds Effective Rate for such day shall be the Federal Funds Effective Rate
for the last day on which such rate was announced.
Federal Funds Open Rate for any day shall mean the rate per annum (based on a year of
360 days and actual days elapsed) which is the daily federal funds open rate as quoted by ICAP
North America, Inc. (or any successor) as set forth on the Bloomberg Screen BTMM for that day
opposite the caption OPEN (or on such other substitute Bloomberg Screen that displays such rate),
or as set forth on such other recognized electronic source used for the purpose of displaying such
rate as selected by the Administrative Agent (for purposes of this definition, an Alternate
Source) (or if such rate for such day does not appear on the Bloomberg Screen BTMM (or any
substitute screen) or on any Alternate Source, or if there shall at any time, for any reason, no
longer exist a Bloomberg Screen BTMM (or any substitute screen) or any Alternate Source, a
comparable replacement rate determined by the Administrative Agent at such time (which
determination shall be conclusive absent manifest error); provided however, that if
such day is not a Business Day, the Federal Funds Open Rate for such day shall be the open rate
on the immediately preceding Business Day. If and when the Federal Funds Open Rate changes, the
rate of interest with respect to any advance to which the Federal Funds Open Rate applies will
change automatically without notice to the Borrowers or any other Loan Party, effective on the date
of any such change.
Foreign
Borrower Sublimit shall mean with respect to any Canadian Borrower,
$15,000,000 and, with respect to each Foreign Borrower (other than a Canadian Borrower),
$10,000,000, provided, that the sublimit of any individual Foreign Borrower may be
increased or decreased from time to time upon not less than five (5) days prior written notice from
the Company to the Administrative Agent, which notice, if requesting an increase, shall be in form
and substance satisfactory to the Administrative Agent and shall certify that any such increase is
in compliance with all Laws and will not result in any adverse tax or other legal consequences to
any Loan Party or any Lender, provided, further, that the aggregate amount of all
Foreign Borrower Sublimits shall not at any time exceed the lesser of (i) $150,000,000 or (ii) the
amount of the Revolving Credit Commitment, and, provided, further, that until such
date as that certain protocol amending the United States-New Zealand tax convention receives final
ratification (thereby reducing the withholding tax rate on interest payments in New Zealand from
10% to 0%), the Foreign Borrower Sublimit with respect to any New Zealand Borrower shall be $0.
Foreign Borrowers shall mean the Borrowers organized under the laws of a jurisdiction
outside the United States of America, any State thereof or the District of Columbia.
Foreign Excluded Subsidiaries shall mean those Foreign Subsidiaries listed on
Schedule 1.1(F)
Foreign Guarantors shall mean the Guarantors organized under the laws of a
jurisdiction outside the United States of America, any State thereof or the District of Columbia.
15
Foreign Lender shall mean any Lender that is organized under the Laws of a
jurisdiction other than that in which the Company is resident for tax purposes. For purposes of
this definition, the United States of America, each State thereof or the District of Columbia shall
be deemed to constitute a single jurisdiction.
Foreign Loan Parties shall mean the Foreign Borrowers and Foreign Guarantors.
Foreign Subsidiary shall mean any Subsidiary which is organized under the laws of a
jurisdiction other than the United States of America, any State thereof or the District of
Columbia.
FSP APB 14-1 shall mean Financial Accounting Standards Board Staff Position No. APB
14-1, Accounting for Convertible Debt Instruments that may be Settled in Cash upon Conversion.
FTC shall have the meaning specified in Section 6.1.18 [Other Regulatory Protection].
GAAP shall mean generally accepted accounting principles of the United States of
America as are in effect from time to time, subject to the provisions of Section 1.3 [Accounting
Principles], and applied on a consistent basis both as to classification of items and amounts.
Guarantor shall mean each of the parties to this Agreement which is designated as a
Guarantor on the signature page hereof and each other Person which joins this Agreement as a
Guarantor after the date hereof.
Guarantor Joinder shall mean a joinder by a Person as a Guarantor under the Loan
Documents in the form of Exhibit 1.1(G)(1).
Guaranty of any Person shall mean any obligation of such Person guaranteeing or in
effect guaranteeing any liability or obligation of any other Person in any manner, whether directly
or indirectly, including any agreement to indemnify or hold harmless any other Person, any
performance bond or other suretyship arrangement and any other form of assurance against loss,
except endorsement of negotiable or other instruments for deposit or collection in the ordinary
course of business.
Guaranty Agreement shall mean the Continuing Agreement of Guaranty and Suretyship in
substantially the form of Exhibit 1.1(G)(2) executed and delivered by each of the
Guarantors.
Guidelines shall mean, together, (i) Guideline S-02.123 in relation to interbank loans
of September 22, 1986 (Merkblatt Verrechnungssteuer auf Zinsen von Bankguthaben, deren Gläubiger
Banken sind (Interbankguthaben) vom 22. September 1986), (ii) Guideline S-02.122.1 in relation to
bonds of April 1999 (Merkblatt Obligationen vom April 1999), (iii) Guideline S-02.128 in relation
to syndicated credit facilities of January 2000 (Merkblatt Steuerliche Behandlung von
Konsortialdarlehen, Schuldscheindarlehen, Wechseln und
Unterbeteiligungen vom Januar 2000) and (iv) Guideline S-02.122.2 in relation to deposits of
16
April 1999 (Merkblatt Kundenguthaben von April 1999) in each case as issued, amended or
substituted from time to time by the Swiss Federal Tax Administration.
HHS shall mean the United States Department of Health and Human Services, or any
successor thereof and any predecessor thereof.
ICC shall have the meaning specified in Section 11.11.1 [Governing Law].
Indebtedness shall mean, as to any Person, any and all indebtedness, obligations or
liabilities (whether matured or unmatured, liquidated or unliquidated, direct or indirect, absolute
or contingent, or joint or several) of such Person for or in respect of: (i) borrowed money, (ii)
amounts raised under or liabilities in respect of any note purchase or acceptance credit facility,
(iii) the maximum amount of all direct or contingent obligations arising under letters of credit,
bankers acceptances, bank guaranties, surety bonds and similar instruments, (iv) the net
obligations under any currency swap agreement, interest rate swap, cap, collar or floor agreements
or other interest rate management devices, provided for purposes of calculating
Indebtedness hereunder, the foregoing net obligations shall not be included unless any such
agreement or device has been closed out or any amount is due and payable thereunder, (v) any other
transaction (including forward sale or purchase agreements, Capitalized Leases and conditional
sales agreements) having the commercial effect of a borrowing of money entered into by such Person
to finance its operations or capital requirements (but not including trade payables and accrued
expenses incurred in the ordinary course of business which are not represented by a promissory note
or other evidence of indebtedness), (vi) all obligations to pay the deferred purchase price of
property or services (other than trade accounts or accrued expenses payable in the ordinary course
of business and deferred compensation and bonuses), (vii) indebtedness (excluding prepaid interest
thereon) secured by a Lien on property owned or being purchased (including indebtedness arising
under conditional sales or other title retention agreements), whether or not such indebtedness
shall have been assumed or is limited in recourse, (viii) all obligations in respect to Capitalized
Leases, synthetic or off-balance sheet leases or in respect of any securitization transactions, in
respect of any sale and leaseback transaction for rental payments during the term of such lease and
in respect of all synthetic or off-balance sheet debt, and (ix) any Guaranty of in respect of any
of the foregoing. For the avoidance of doubt, Indebtedness shall not include any other short or
long term liabilities, not specified above or not constituting Indebtedness for borrowed money,
including but not limited to short-term and long-term accrued income taxes, accrued product
liability obligations, accrued life insurance, and guarantee fair value liability obligations
related to third party financing recorded in accordance with FASB Interpretation No. 45.
Indemnified Taxes shall mean Taxes other than Excluded Taxes.
Indemnitee shall have the meaning specified in Section 11.3.2 [Indemnification by the
Loan Parties].
Increasing Lender shall have the meaning assigned to that term in Section 2.1.1.2
[Discretionary Increase in Revolving Credit Commitments].
Information shall mean all information received from the Loan Parties or any of their
Subsidiaries relating to the Loan Parties or any of such Subsidiaries or any of their
respective businesses, other than any such information that is available to the Administrative
17
Agent, any Lender or the Issuing Lender on a non-confidential basis prior to disclosure by the Loan
Parties or any of their Subsidiaries.
Insolvency Proceeding shall mean, with respect to any Person, (a) a case, action or
proceeding with respect to such Person (i) before any court or any other Official Body under any
bankruptcy, insolvency, reorganization or other similar Law now or hereafter in effect, or (ii) for
the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator, conservator
(or similar official) of any Loan Party or otherwise relating to the liquidation, dissolution,
winding-up or relief of such Person, or (b) any general assignment for the benefit of creditors,
composition, marshaling of assets for creditors, or other, similar arrangement in respect of such
Persons creditors generally or any substantial portion of its creditors; undertaken under any Law.
Insurance Subsidiary shall mean Invatection Insurance Company, a Vermont corporation.
Interest Period shall mean the period of time selected by the Borrowers, in connection
with (and to apply to) any election permitted hereunder by the Borrowers to have Loans bear
interest under the Euro-Rate Option. Subject to the last sentence of this definition, such period
shall be one (1), two (2), three (3) or six (6) Months. Such Interest Period shall commence on the
effective date of such Interest Rate Option, which shall be (i) the Borrowing Date if the Borrowers
are requesting new Loans, or (ii) the date of renewal of or conversion to the Euro-Rate Option if
the Borrowers are renewing or converting to the Euro-Rate Option applicable to outstanding Loans.
Notwithstanding the second sentence hereof: (a) any Interest Period which would otherwise end on a
date which is not a Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, and (b) the Borrowers shall not select, convert to or renew an
Interest Period for any portion of the Loans that would end after the Expiration Date.
Interest Rate Hedge shall mean an interest rate exchange, collar, cap, swap,
adjustable strike cap, adjustable strike corridor or similar agreement entered into by the Loan
Parties or their Subsidiaries in order to provide protection to, or minimize the impact upon, the
Borrowers, the Guarantor and/or their Subsidiaries of increasing floating rates of interest
applicable to Indebtedness.
Interest Rate Option shall mean any Euro-Rate Option or Base Rate Option.
Investments shall have the meaning specified in Section 8.2.4 [Loans and
Investments].
IRS shall mean the Internal Revenue Service.
ISP98 shall have the meaning specified in Section 11.11.1 [Governing Law].
Issuing Lender shall mean PNC, in its individual capacity as issuer of Letters of
Credit hereunder, and any other Lender that may agree from time to time to issue Letters of Credit
hereunder.
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Joint Venture shall mean a corporation, partnership, limited liability company or
other entity in which any Person other than the Loan Parties and their Subsidiaries holds, directly
or indirectly, an Equity Interest.
Law shall mean any law (including common law), constitution, statute, treaty,
regulation, rule or ordinance, or binding opinion, release, ruling, order, injunction, writ,
decree, bond, judgment, authorization or approval, lien or award by or settlement agreement with
any Official Body.
Lender Provided Interest Rate/Currency Hedge shall mean an Interest Rate Hedge or
Currency Hedge which is provided by any Lender or its Affiliate; provided that: (i) with respect to
an Interest Rate Hedge, it is documented in a standard International Swap Dealer Association
Agreement, and (ii) provides for the method of calculating the reimbursable amount of the
providers credit exposure in a reasonable and customary manner.
Lenders shall mean the financial institutions named on Schedule 1.1(B) and
their respective successors and assigns as permitted hereunder, each of which is referred to herein
as a Lender. Lenders may book Loans hereunder at any branch, office, Subsidiary or Affiliate, and
the terms of this Agreement shall apply to such Lender, as it may be acting, through its branches,
offices, Subsidiaries or Affiliates. For the purpose of any Loan Document which provides for the
granting of a security interest or other Lien to the Lenders or to the Administrative Agent for the
benefit of the Lenders as security for the Obligations, Lenders shall include any Affiliate of a
Lender to which such Obligation is owed.
Letter of Credit shall have the meaning specified in Section 2.5.1 [Issuance of
Letters of Credit].
Letter of Credit Borrowing shall have the meaning specified in Section 2.5.3
[Disbursements, Reimbursement].
Letter of Credit Fee shall have the meaning specified in Section 2.5.2 [Letter of
Credit Fees].
Letter of Credit Obligation shall mean, as of any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit on such date (if any Letter of
Credit shall increase in amount automatically and without any conditions in the future, such
aggregate amount available to be drawn shall currently give effect to any such future increase)
plus the aggregate Reimbursement Obligations and Letter of Credit Borrowings on such date.
Letter of Credit Sublimit shall have the meaning specified in Section 2.5.1 [Issuance
of Letters of Credit]. The Letter of Credit Sublimit shall not at any time exceed the amount of
the Revolving Credit Commitment.
Lien shall mean any mortgage, deed of trust, pledge, lien, security interest or other
encumbrance or security arrangement of any nature whatsoever, whether voluntarily or involuntarily
given, including any conditional sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of, security and any filed financing
statement or other notice of any of the foregoing (whether or not a lien or other
19
encumbrance is
created or exists at the time of the filing). The term Lien shall not include
reference to any public record filings for notice purposes only which have, and could not
have, the effect of a true lien or encumbrance.
Loan Documents shall mean this Agreement, the Administrative Agents Letter, the
Guaranty Agreement, the Notes, the Security Agreement, the Pledge Agreement, the Patent, Trademark
and Copyright Security Agreement, the deposit account control agreements referred to in Section
7.1.1(iii), the landlord waiver and other lien waivers referred to in Section 7.1.1(x), and any
other agreements, instruments, certificates or documents delivered in connection herewith or
therewith, in each case as the same may be amended, restated or otherwise modified from time to
time in accordance with its terms.
Loan Parties shall mean the Borrowers and the Guarantors.
Loan Request shall have the meaning specified in Section 2.3 [Revolving Credit Loan
Requests; Swing Loan Requests].
Loans shall mean collectively and Loan shall mean separately all Revolving
Credit Loans and Swing Loans or any Revolving Credit Loan or Swing Loan.
Material Adverse Change shall mean any set of circumstances or events which (a) has or
would reasonably be expected to have any material adverse effect whatsoever upon the validity or
enforceability of this Agreement or any other Loan Document, (b) is or would reasonably be expected
to be material and adverse to the business, properties, assets, financial condition, results of
operations of the Loan Parties taken as a whole, (c) impairs materially or would reasonably be
expected to impair the ability of the Loan Parties taken as a whole to duly and punctually pay or
perform any of the Obligations, or (d) impairs materially or would reasonably be expected to impair
the ability of the Administrative Agent or any of the Lenders, to the extent permitted, to enforce
their legal remedies pursuant to this Agreement or any other Loan Document.
Material Contract shall mean, with respect to any Person, each contract or agreement
(i) to which such Person is a party that is disclosed in a public filing of the Company with the
SEC, (ii) that involves aggregate consideration payable to or by such Person of $10,000,000 or more
in any year, or (iii) that is otherwise material to the business, condition (financial or
otherwise), operations, performance or properties of such Person.
Material Recovery Event means the occurrence of any event giving rise to the receipt
by the Company or any of its Subsidiaries of property or casualty insurance proceeds, condemnation
award proceeds, indemnity payments or tax refunds in an amount in excess of $10,000,000.
Material Subsidiary means each Subsidiary of the Company which is identified on
Schedule 1.1(M) as a Material Subsidiary, and each other Subsidiary of the Company that has
assets at such time, or revenues during the most recently ended fiscal year, comprising 5% or more
of the consolidated assets of the Company and its Subsidiaries at such time, or of the consolidated
revenues of the Company and its Subsidiaries during such Fiscal Year, as the case may be.
20
Medicaid shall mean that entitlement program under Title XIX of the Social Security
Act that provides federal grants to states for medical assistance programs based on specific
eligibility criteria.
Medicaid Provider Agreement shall mean an agreement entered into between a state
agency or other such entity administering the Medicaid program and a health care provider or
supplier under which the health care provider or supplier agrees to provide services for Medicaid
patients in accordance with the terms of the agreement and Medicaid Regulations.
Medicaid Regulations shall mean, collectively, (a) all federal statutes (whether set
forth in Title XIX of the Social Security Act or elsewhere) with respect to Medicaid and any
statutes succeeding thereto, (b) all applicable provisions of all federal rules, regulations,
manuals and orders and administrative, reimbursement and other guidelines having the force of Law
of Official Bodies promulgated pursuant to or in connection with the statutes described in clause
(a), (c) all state statutes and plans for medical assistance enacted in connection with such
statutes and provisions described in clauses (a) and (b), and (d) all applicable provisions of all
other guidelines having the force of Law of all Official Bodies promulgated pursuant to or in
connection with the statutes described in clause (c) and all state administrative, reimbursement
and other guidelines of all Official Bodies having the force of Law promulgated pursuant to or in
connection with the statutes described in clause (b), in each case as may be amended, supplemented
or otherwise modified from time to time.
Medical Reimbursement Programs shall mean the Medicare, Medicaid and TRICARE programs
and any other healthcare program operated by or financed in whole or in party by any foreign,
domestic, federal, state, local or provincial government and any other non-government funded third
party payor programs.
Medicare shall mean that government-sponsored entitlement program under Title XVIII of
the Social Security Act that provides for a health insurance system for eligible elderly and
disabled individuals.
Medicare Provider Agreement shall mean an agreement entered into between CMS or other
such entity administering the Medicare program on behalf of CMS, and a health care provider or
supplier under which the health care provider or supplier agreed to provide services for Medicare
patients in accordance with the terms of the agreement and Medicare Regulations.
Medicare Regulations shall mean, collectively, all federal statutes (whether set forth
in Title XVIII of the Social Security Act or elsewhere) with respect to the health insurance
program for the aged and disabled established by Title XVIII of the Social Security Act and any
statutes succeeding thereto, together with all applicable provisions of all rules, regulations,
manuals and orders and administrative, reimbursement and other guidelines having the force of Law
of all Official Bodies (including, without limitation, HHS, CMS, the OIG or any person succeeding
to the functions of any of the foregoing) promulgated pursuant to or in connection with any of the
foregoing having the force of Law, as each may be amended, supplemented or otherwise modified from
time to time.
Month, with respect to an Interest Period under the Euro-Rate Option, shall mean the
interval between the days in consecutive calendar months numerically corresponding to the
21
first day of such Interest Period. If any Euro-Rate Interest Period begins on a day of a
calendar month for which there is no numerically corresponding day in the month in which such
Interest Period is to end, the final month of such Interest Period shall be deemed to end on the
last Business Day of such final month.
Moodys shall mean Moodys Investors Service, Inc. and any successor thereto.
Multiemployer Plan shall mean any employee benefit plan which is a multiemployer
plan within the meaning of Section 4001(a)(3) of ERISA and to which a Loan Party or any member of
the ERISA Group is then making or accruing an obligation to make contributions or, within the
preceding five Plan years, has made or had an obligation to make such contributions.
Net Cash Proceeds shall mean the after-tax proceeds of any applicable occurrence, as
estimated reasonably and in good faith by the Borrowers, after deduction for permitted repayments
of related Indebtedness, closing fees and commissions, and cash reserves for purchase price
adjustments.
Netherlands Borrower shall mean any Borrower incorporated or otherwise organized under
the laws of the Netherlands.
New Lender shall have the meaning assigned to that term in Section 2.1.1.2
[Discretionary Increase in Revolving Credit Commitments].
New Zealand Borrower shall mean any Borrower incorporated or otherwise organized under
the laws of New Zealand.
Non-Consenting Lender shall have the meaning specified in Section 11.1 [Modifications,
Amendments or Waivers].
Notes shall mean, collectively, the promissory notes in the form of Exhibit
1.1(N)(1) evidencing the Revolving Credit Loans and in the form of Exhibit 1.1(N)(2)
evidencing the Swing Loans.
Obligation shall mean any obligation or liability of any of the Loan Parties and their
respective Subsidiaries, howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become due, under or in connection
with (i) this Agreement, the Notes, the Letters of Credit, the Administrative Agents Letter or any
other Loan Document whether to the Administrative Agent, any of the Lenders or their Affiliates
provided for under such Loan Documents, (ii) any Lender Provided Interest Rate/Currency Hedge and
(iii) any Other Lender Provided Financial Service Product.
Official Body shall mean the government of the United States of America or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).
22
OIG shall mean the Office of Inspector General of HHS and any successor thereof.
OIG Investigation shall mean the investigation initiated pursuant to a subpoena
received by the Company in 2006 from the U.S. Department of Justice seeking documents relating to
three (3) long-standing and well-known promotional and rebate programs maintained by the Company
and its Subsidiaries.
Optional Currency shall mean (i) the following lawful currencies: Canadian dollars,
British pounds sterling, the Euro, Australian dollars, New Zealand dollars, Swedish kroner,
Norwegian kroner, Danish kroner and Swiss francs, and (ii) any other currency approved by
Administrative Agent and all of the Lenders pursuant to Section 2.6.5 [Requests for Additional
Optional Currencies]. Subject to Section 2.6.4 [European Monetary Union], each Optional Currency
must be the lawful currency of the specified country.
Optional Currency Sublimit shall mean (a) with respect to each Optional Currency, the
Dollar Equivalent in such Optional Currency of $200,000,000 and (b) with respect to all Optional
Currencies, the Dollar Equivalent in all Optional Currencies of $200,000,000, provided, the
aggregate amount of all Optional Currency Sublimits shall not at any time exceed the amount of the
Revolving Credit Commitment.
Original Currency shall have the meaning specified in Section 5.13.1 [Currency
Conversion Procedures for Judgments].
OSHA shall have the meaning specified in Section 6.1.18 [Other Regulatory
Protection].
Other Currency shall have the meaning specified in Section 5.13.1 [Currency Conversion
Procedures for Judgments].
Other Lender Provided Financial Service Product shall mean agreements or other
arrangements under which any Lender or Affiliate of a Lender provides any of the following products
or services to any of the Loan Parties or their respective Subsidiaries: (a) credit cards, (b)
credit card processing services, (c) debit cards, (d) purchase cards, (e) ACH transactions, (f)
cash management, including controlled disbursement, accounts or services, or (g) foreign currency
exchange.
Other Taxes shall mean all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.
Overnight Rate shall mean for any day with respect to any Loans in an Optional
Currency, the rate of interest per annum as determined by the Administrative Agent at which
overnight deposits in such currency, in an amount approximately equal to the amount with respect to
which such rate is being determined, would be offered for such day in the Relevant Interbank
Market.
Participant has the meaning specified in Section 11.8.4 [Participations].
23
Participation Advance shall have the meaning specified in Section 2.5.3.3.
Participating Member State shall mean any member State of the European Communities
that adopts or has adopted the euro as its lawful currency in accordance with legislation of the
European Community relating to Economic and Monetary Union.
Patent, Trademark and Copyright Security Agreement shall mean the Patent, Trademark
and Copyright Security Agreement in substantially the form of Exhibit 1.1(P)(1) executed and
delivered by each of the Domestic Loan Parties to the Administrative Agent for the benefit of the
Lenders.
Payment Date shall mean the first day of each calendar quarter after the date hereof
and on the Expiration Date or upon acceleration of the Notes.
Payment In Full shall mean the indefeasible payment in full in cash of the Loans and
other Obligations hereunder, termination of the Commitments and expiration or termination of all
Letters of Credit.
PBGC shall mean the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA or any successor.
Pension Plan shall mean any employee pension benefit plan (as such term is defined
in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA
and is sponsored or maintained by a Loan Party or any ERISA Affiliate or to which a Loan Party or
any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any times
during the immediately preceding five plan years.
Permitted Acquisition shall mean a purchase or other acquisition by the Company or one
of its wholly-owned Subsidiaries of all of the Equity Interests in, or all or substantially all of
the property of, or any division of, any Person that, upon the consummation thereof, will be
wholly-owned directly by the Company or one or more of its wholly-owned Subsidiaries (including as
a result of a merger or consolidation) where such purchase or other acquisition shall meet the
following requirements:
(i) the board of directors or other equivalent governing body of the target of such purchase
or acquisition shall have approved the Permitted Acquisition (to the extent such approval is
required) and in any event such purchase or acquisition is duly authorized;
(ii) the target of such purchase or other acquisition is in the same lines of business as, or
lines of business substantially related or incidental to the principal business of, the Company;
(iii) any Subsidiary created or acquired in connection with such Permitted Acquisition
complies with the requirements of Section 8.2.9 [Subsidiaries, Partnerships and Joint Ventures];
(iv) the total cash and non-cash consideration (including the fair market value of all Equity
Interests issued or transferred to the sellers thereof, all indemnities, earnouts and other
contingent payment obligations to, and the aggregate amounts paid or to be paid under non-
24
compete, consulting and other affiliated agreements with the sellers thereof, all write-downs
of property and reserves for liabilities with respect thereto and all assumptions of debt,
liabilities and other obligations in connection therewith) paid by or on behalf of the Company and
its Subsidiaries for any such purchase or other acquisition, when aggregated with the total cash
and non-cash consideration paid by or on behalf of the Company and its Subsidiaries for all other
purchases and other acquisitions made by the Company and its Subsidiaries pursuant to Section
8.2.6 [Liquidations, Mergers, Consolidations, Acquisitions], shall not exceed, if the Consolidated
Leverage Ratio is greater than or equal to 3.00:1.00 after giving effect to such purchase or
acquisition on a Pro Forma Basis, $50,000,000 for any individual acquisition or in the aggregate in
any fiscal year;
(v) immediately before and after giving effect to such purchase or acquisition on a Pro Forma
Basis, (a) no Event of Default shall have occurred and be continuing, and (b) the Company and its
Subsidiaries shall be in compliance on a Pro Forma Basis with the financial covenants set forth in
this Agreement based on the most recently delivered Compliance Certificate; and
(vi) the Company shall have delivered to the Administrative Agent at least five (5) Business
Days prior to the date on which any such proposed purchase or other acquisition involving total
cash and non-cash consideration in excess of $25,000,000 is to be consummated, a certificate of a
Authorized Officer, in form and substance satisfactory to the Administrative Agent, certifying that
all of the requirements set forth in this definition have been satisfied or will be satisfied prior
to the consummation of such purchase or other acquisition.
Permitted Investments shall mean:
(i) direct obligations of the United States of America or any agency or instrumentality
thereof or obligations backed by the full faith and credit of the United States of America maturing
in twelve (12) months or less from the date of acquisition;
(ii) commercial paper maturing in 180 days or less rated not lower than A-2, by Standard &
Poors or P-2 by Moodys Investors Service, Inc. on the date of acquisition;
(iii) demand deposits, time deposits or certificates of deposit maturing within one year in
commercial banks whose obligations are rated A-1, A or the equivalent or better by Standard &
Poors on the date of acquisition;
(iv) money market or mutual funds whose investments are limited to those types of investments
described in clauses (i)-(iii) above; and
(v) investments made under the Cash Management Agreements or under cash management agreements
with any other Lenders.
Permitted Liens shall mean:
(i) Liens for taxes, assessments, or similar charges, incurred in the ordinary course of
business and which are not yet due and payable;
25
(ii) Pledges or deposits made in the ordinary course of business to secure payment of workers
compensation, or to participate in any fund in connection with workmens compensation, unemployment
insurance, old-age pensions or other social security programs;
(iii) Liens of mechanics, materialmen, warehousemen, carriers, or other like Liens, securing
obligations incurred in the ordinary course of business that are not yet due and payable and Liens
of landlords securing obligations to pay lease payments that are not due and payable or in default;
(iv) Good-faith pledges or deposits made in the ordinary course of business to secure
performance of bids, tenders, contracts (other than for the repayment of borrowed money) or leases,
not in excess of the aggregate amount due thereunder, or to secure statutory obligations, or
surety, appeal, indemnity, performance or other similar bonds required in the ordinary course of
business and earnest money deposits to secure obligations under purchase agreements;
(v) Leases, subleases, licenses and sublicenses granted to others in the ordinary course of
business and encumbrances consisting of zoning restrictions, easements or other restrictions on the
use of real property, none of which materially impairs the use of such property or the value
thereof, and none of which is violated in any material respect by existing or proposed structures
or land use;
(vi) Liens, security interests and mortgages in favor of the Administrative Agent for the
benefit of the Lenders and their Affiliates securing the Obligations (including Lender Provided
Interest Rate/Currency Hedges and Other Lender Provided Financial Services Obligations);
(vii) Liens on property leased by any Loan Party or Subsidiary of a Loan Party under capital
leases permitted in Section 8.2.1 [Indebtedness] securing obligations of such Loan Party or
Subsidiary to the lessor under such leases;
(viii) Any Lien existing on the date of this Agreement and described on Schedule
1.1(P) and extensions and renewals thereof, provided that the principal amount secured
thereby complies with Section 8.2.1 [Indebtedness], and no additional assets become subject to
such Lien;
(ix) Purchase Money Security Interests which do not at any time encumber any property other
than the property financed by the related Indebtedness and where the Indebtedness secured thereby
does not exceed the cost of the property subject to such Purchase Money Security Interest, and
Capitalized Leases; provided that the aggregate amount of loans and deferred payments
secured by such Purchase Money Security Interests and Capitalized Leases does not exceed any
limitations thereon in Section 8.2.1 [Indebtedness];
(x) The following, (A) if the validity or amount thereof is being contested in good faith by
appropriate and lawful proceedings diligently conducted so long as levy and execution thereon have
been stayed and continue to be stayed or (B) if a final judgment is entered and such judgment is
discharged within forty-five (45) days of entry, and in either case they do not affect the
Collateral or, in the aggregate, materially impair the ability of any Loan Party to perform its
Obligations hereunder or under the other Loan Documents:
26
(1) Claims or Liens for taxes, assessments or charges due and payable and subject to interest
or penalty; provided that the applicable Loan Party maintains such reserves or other
appropriate provisions as shall be required by GAAP and pays all such taxes, assessments or charges
forthwith upon the commencement of proceedings to foreclose any such Lien;
(2) Claims, Liens or encumbrances upon, and defects of title to, real or personal property
other than the Collateral, including any attachment of personal or real property or other legal
process prior to adjudication of a dispute on the merits;
(3) Claims or Liens of mechanics, materialmen, warehousemen, carriers, or other statutory
nonconsensual Liens; or
(4) Liens resulting from final judgments or orders which do not constitute Events of Default
under Section 9.1.6 [Final Judgments or Orders];
(xi) statutory, common law, civil law or similar ordinary course Liens of vendors and
financial institutions in foreign jurisdictions;
(xii) Liens granted by the Insurance Subsidiary to the extent required by applicable Law;
(xiii) Liens granted to each of the trustees under the operative documents governing the 2015
Senior Notes and the 2027 Convertible Notes on money and property received and held by each such
trustee from the Company as regularly scheduled payments thereunder in accordance with the terms of
such documents as in effect on the date hereof;
(xiv) other Liens on assets of Subsidiaries which are not Loan Parties securing Indebtedness
permitted to be incurred hereunder in an aggregate principal amount not to exceed $25,000,000;
(xv) Liens created and maintained in the ordinary course of business which are not material in
the aggregate, which would not result in a Material Adverse Change and which:
(1) Constitute a right of title retention in connection with the acquisition of goods in the
ordinary course of business on the suppliers usual term of sale where there is no default in
connection with the relevant acquisition;
(2) Constitute a right of retention of a debtor of such Person with respect to goods of such
Person held by such debtor and in connection with such Person has not paid its obligations owing to
such debtor;
(3) Constitute Liens over stock-in-trade to secure the purchase price of such stock-in-trade
in the ordinary course of business;
(4) Constitute a statutory right of set-off or unregistered statutory inchoate Lien;
(5) Constitute rights reserved to or vested in Official Bodies by statutory provisions or by
the terms of leases, licenses, franchises, grants or permits, which affect any
27
land, to terminate the leases, licenses, franchises, grants or permits to require annual or
other periodic payments as a condition of the continuance thereof;
(6) Constitute securities to public utilities or to any municipalities or other Governmental
Authorities when required by the utility, municipality or Official Body or other public authority
in connection with the supply of services or utilities to a Loan Party or any Subsidiary thereof;
(7) Consist of royalties payable with respect to any asset or property of any Loan Party or
any Subsidiary thereof existing as of the Closing Date; and
(8) Liens for customs and revenue authorities in the ordinary course of business.
Permitted Non-Qualifying Lender shall mean, as determined with respect to Swiss
Borrowers, any bank, financial institution, trust, fund or other entity that is regularly engaged
in or established for the purpose of making, purchasing or investing in loans, securities or other
financial assets, that:
|
(a) |
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is not a Qualifying Bank; and |
|
|
(b) |
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by its accession to this Agreement as an additional Lender does
not increase the number of Lenders that are not Qualifying Banks under this
Agreement to a number that is greater than 10; |
and which has not ceased to be a Lender or ceased to have any interest in any rights of a Lender
hereunder, e.g. through a participation and/or a subparticipation.
Person shall mean any individual, corporation, partnership, limited liability company,
association, joint-stock company, trust, unincorporated organization, joint venture, government or
political subdivision or agency thereof, or any other entity.
Plan shall mean an employee pension benefit plan (including a Multiple Employer Plan,
but not a Multiemployer Plan) which is covered by Title IV of ERISA or is subject to the minimum
funding standards under Section 412 of the Code and either (i) is maintained by any member of the
ERISA Group for employees of any member of the ERISA Group or (ii) has at any time within the
preceding five years been maintained by any entity which was at such time a member of the ERISA
Group for employees of any entity which was at such time a member of the ERISA Group.
Pledge Agreement shall mean the Pledge Agreement in substantially the form of
Exhibit 1.1(P)(2) executed and delivered by each of the Loan Parties to the Administrative
Agent for the benefit of the Lenders.
PNC shall mean PNC Bank, National Association, its successors and assigns.
Potential Default shall mean any event or condition which with notice or passage of
time, or both, would constitute an Event of Default.
28
Pricing Grid shall mean the pricing grid, with pricing expressed in basis points, set
forth below and subject to the limitations and conditions set forth below:
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|
|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
|
|
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Revolving Credit |
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Revolving Credit |
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Consolidated |
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Commitment |
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Letter of Credit |
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Base Rate Spread |
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Euro-Rate Spread |
Tier |
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Leverage Ratio |
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Fee (basis points) |
|
Fee (basis points) |
|
(basis points) |
|
(basis points) |
V
|
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Greater than or
equal to 2.75 to
1.00
|
|
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50.0 |
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300 |
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|
|
200 |
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|
|
300 |
|
IV
|
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Greater than or
equal to 2.00 to
1.00 but less than
2.75 to 1.00
|
|
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45.0 |
|
|
|
275 |
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|
|
175 |
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|
|
275 |
|
III
|
|
Greater than or
equal to 1.25 to
1.00 but less than
2.00 to 1.00
|
|
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40.0 |
|
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250 |
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150 |
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250 |
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II
|
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Greater than or
equal to .50 to 1.00
but less than 1.25
to 1.00
|
|
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35.0 |
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|
|
225 |
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|
|
125 |
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|
|
225 |
|
I
|
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Less than .50 to 1.00
|
|
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30.0 |
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|
|
200 |
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|
100 |
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|
|
200 |
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For purposes of determining the Applicable Margin, the Applicable Commitment Fee Rate and
the Applicable Letter of Credit Fee Rate:
(a) Notwithstanding the foregoing table, on the Closing Date, the Applicable Margin shall be
250 basis points for Revolving Credit Loans bearing interest at the Euro-Rate Option, 150 basis
points for Revolving Credit Loans bearing interest at the Base Rate Option, 40 basis points for the
Commitment Fee and 250 basis points for the Letter of Credit Fee.
(b) Thereafter, the Applicable Margin, the Applicable Commitment Fee Rate and the Applicable
Letter of Credit Fee Rate shall be recomputed as of the end of each fiscal quarter ending after the
Closing Date based on the Leverage Ratio as of such quarter end. Any increase or decrease in the
Applicable Margin, the Applicable Commitment Fee Rate or the Applicable Letter of Credit Fee Rate
computed as of a quarter end shall be effective on the date on which the Compliance Certificate
evidencing such computation is due to be delivered under Section 8.3.3 [Certificate of the
Company]. If a Compliance Certificate is not delivered when due in accordance with such Section
8.3.3 [Certificate of the Company], then the rates in Level V shall apply as of the first Business
Day after the date on which such Compliance Certificate was required to have been delivered and
shall remain in effect until the date on which such Compliance Certificate is delivered.
(c) If, as a result of any restatement of or other adjustment to the financial statements of
the Company and its Subsidiaries or for any other reason, the Borrowers or the Lenders determine
that (i) the Leverage Ratio as calculated by the Borrowers as of any applicable date was inaccurate
and (ii) a proper calculation of the Leverage Ratio would have
29
resulted in higher pricing for such
period, the Borrowers shall immediately and retroactively be
obligated to pay to the Administrative Agent for the account of the applicable Lenders,
promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed
entry of an order for relief with respect to any Borrower under the Bankruptcy Code of the United
States, automatically and without further action by the Administrative Agent or any Lender), an
amount equal to the excess of the amount of interest and fees that should have been paid for such
period over the amount of interest and fees actually paid for such period. This paragraph shall
not limit the rights of the Administrative Agent, any Lender or the Issuing Lender, as the case may
be, under Section 2.5 [Letter of Credit Subfacility] or Section 4.3 [Interest During Event of
Default] or Section 9 [Default]. The Borrowers obligations under this paragraph shall survive the
termination of the Commitments and the repayment of all other Obligations hereunder.
Prime Rate shall mean the interest rate per annum announced from time to time by the
Administrative Agent at its Principal Office as its then prime rate, which rate may not be the
lowest or most favorable rate then being charged commercial borrowers or others by the
Administrative Agent. Any change in the Prime Rate shall take effect at the opening of business on
the day such change is announced.
Principal Office shall mean the main banking office of the Administrative Agent in
Pittsburgh, Pennsylvania.
Prior Security Interest shall mean a valid and enforceable perfected first-priority
security interest under the Uniform Commercial Code in the Collateral which is subject only to
statutory Liens for taxes not yet due and payable or Purchase Money Security Interests.
Prior Senior Credit Facility shall mean the credit facilities provided to the
Borrowers (or certain of them) pursuant to the terms of a Credit Agreement among the Borrowers (or
certain of them), National City Bank, as Multicurrency Administrative Agent, the Affiliates of
Borrowers party thereto as guarantors, and various lending institutions party thereto, dated as of
February 12, 2007, the Borrowers obligations with respect to which are intended to be satisfied in
full on the Closing Date with advances of Loans hereunder.
Professional Market Party . shall have the meaning given in the Dutch Act on
Financial Supervision (Wet op het financieel toezicht) and any regulation promulgated thereunder as
amended or replaced from time to time, which term extends, inter alia, to Persons qualifying as a
licensed bank thereunder, as well as (in relation to the Netherlands Borrower or Persons located in
or organized under the laws of the Netherlands) any Person from which funds are borrowed in an
initial amount of at least the Dollar Equivalent of EUR 50,000.
Pro Forma Basis shall mean, for purposes of calculating the Consolidated Leverage
Ratio and the Consolidated Interest Coverage Ratio, that any Permitted Acquisition, any repurchase
or redemption pursuant to clause (c) of Section 8.2.5 [Dividends and Related Distributions], or
any redemption of the 2015 Senior Notes or the 2027 Convertible Notes pursuant to clause (ii) of
Section 8.2.18 [Covenants as to Certain Indebtedness] shall be deemed to have occurred as of the
first day of the most recent four (4) fiscal quarter period preceding the date of such transaction
for which the Company has delivered financial statements pursuant to Section 8.3.1 [Quarterly
Financial Statements] or Section 8.3.2 [ Annual Financial Statements]. In connection with the
foregoing, with respect to any Permitted Acquisition (i) income statement items (whether positive
or negative) and items on the statement of cash flow attributable to the
30
Person or assets acquired
shall be included to the extent relating to any period applicable in such
calculations to the extent (A) such items are not otherwise included in such income statement
items and items on the statement of cash flow for the Company and its Subsidiaries in accordance
with GAAP or in accordance with any defined terms set forth in Section 1.1 [Certain Definitions]
and (B) such items are supported by audited financial statements (if available) or other
information reasonably satisfactory to the Administrative Agent and (ii) any Indebtedness incurred
or assumed by the Company or any Subsidiary (including the Person or assets acquired) in connection
with such transaction and any Indebtedness of the Person or assets acquired which is not retired in
connection with such transaction (A) shall be deemed to have been incurred as of the first day of
the applicable period and (B) if such Indebtedness has a floating or formula rate, shall have an
implied rate of interest for the applicable period for purposes of this definition determined by
utilizing the rate which is or would be in effect with respect to such Indebtedness as at the
relevant date of determination.
Published Rate shall mean the rate of interest published each Business Day in The Wall
Street Journal Money Rates listing under the caption London Interbank Offered Rates for
a one month period (or, if no such rate is published therein for any reason, then the Published
Rate shall be the rate at which U.S. dollar deposits are offered by leading banks in the London
interbank deposit market for a one month period as published in another publication selected by the
Administrative Agent).
Purchase Money Security Interest shall mean Liens upon tangible personal property
securing loans to any Loan Party or Subsidiary of a Loan Party or deferred payments by such Loan
Party or Subsidiary for the purchase of such tangible personal property.
Qualifying Bank shall mean, with respect to Swiss Borrowers, any Person which is
recognized as a bank by the banking laws in force in its country of incorporation, or if acting
through a branch by the banking laws in force in the country of that branch, and which exercises as
its main purpose a true banking activity, having bank personnel, premises, communication devices of
its own and the authority of decision-making and has a genuine banking activity, in each case as
per the Guidelines.
Ratable Share shall mean the proportion that a Lenders Commitment (excluding the
Swing Loan Commitment) bears to the Commitments (excluding the Swing Loan Commitment) of all of the
Lenders. If the Commitments have terminated or expired, the Ratable Shares shall be determined
based upon the Commitments (excluding the Swing Loan Commitment) most recently in effect, giving
effect to any assignments.
Receivables Subsidiary shall mean any entity established for the sole purpose of
engaging in asset securitizations.
Regulated Substances shall mean, without limitation, any substance, material or waste,
regardless of its form or nature, defined under Environmental Laws as a hazardous substance,
pollutant, pollution, contaminant, hazardous or toxic substance, extremely hazardous
substance, toxic chemical, toxic substance, toxic waste, hazardous waste, special
handling waste, industrial waste, municipal waste, mixed waste, infectious waste,
chemotherapeutic waste, medical waste or regulated substance or any other material, substance
or waste, regardless of its form or nature, which otherwise is regulated by Environmental Laws.
31
Reference Currency shall have the meaning specified in the definition of Equivalent
Amount.
Reimbursement Obligation shall have the meaning specified in Section 2.5.3
[Disbursements, Reimbursement].
Related Parties shall mean, with respect to any Person, such Persons Affiliates and
the partners, directors, officers, employees, agents and advisors of such Person and of such
Persons Affiliates.
Relevant Interbank Market shall mean in relation to Euro, the European Interbank
Market, in relation to the Canadian dollar, the CDOR Market and, in relation to any other currency,
the London interbank market.
Relief
Proceeding shall mean any proceeding seeking a decree or order for relief in
respect of any Loan Party or Subsidiary of a Loan Party in a voluntary or involuntary case under
any applicable bankruptcy, insolvency, reorganization or other similar law (whether domestic or
foreign) now or hereafter in effect, or for the appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator, conservator (or similar official) of any Loan Party or Subsidiary
of a Loan Party for any substantial part of its property, or for the winding-up or liquidation of
its affairs, or an assignment for the benefit of its creditors, or foreign jurisdiction equivalent
of any of the foregoing.
Required Lenders shall mean Lenders (other than any Defaulting Lender) having more
than 50% of the sum of the aggregate amount of the Revolving Credit Commitments of such Lenders
(or, after termination of the Revolving Credit Commitments, the Dollar Equivalent amount of
outstanding Revolving Credit Loans and Ratable Share of Dollar Equivalent Letter of Credit
Obligations of the Lenders).
Required Share shall have the meaning specified in Section 5.11 [Settlement Date
Procedures].
Revolving Credit Commitment shall mean, as to any Lender at any time, the amount
initially set forth opposite its name on Schedule 1.1(B) in the column labeled Amount of
Commitment for Revolving Credit Loans, as such Commitment is thereafter reduced pursuant to
Section 2.1.1.3 [Reduction of Revolving Credit Commitment] or Section 5.7 [Mandatory Prepayments
and Related Commitment Reductions], assigned or modified and Revolving Credit Commitments
shall mean the aggregate Revolving Credit Commitments of all of the Lenders.
Revolving Credit Loans shall mean collectively and Revolving Credit Loan shall
mean separately all Revolving Credit Loans or any Revolving Credit Loan made by the Lenders or one
of the Lenders to the Borrowers pursuant to Section 2.1 [Revolving Credit Commitments] or Section
2.5.3 [Disbursements, Reimbursement].
Revolving Facility Usage shall mean at any time the Dollar Equivalent sum of the
outstanding Revolving Credit Loans, the outstanding Swing Loans, and the Letter of Credit
Obligations.
32
Sale and Leaseback Transaction shall mean, with respect to the Company and its
Subsidiaries, any arrangement, directly or indirectly, with any Person whereby the Company or such
Subsidiary shall sell or transfer any property used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property that it intends to
use for substantially the same purpose or purposes as the property being sold or transferred.
SEC shall mean the United States Securities and Exchange Commission.
Security Agreement shall mean the Security Agreement in substantially the form of
Exhibit 1.1(S) executed and delivered by each of the Loan Parties to the Administrative
Agent for the benefit of the Lenders.
Settlement Date shall mean the Business Day on which the Administrative Agent elects
to effect settlement pursuant to Section 5.11 [Settlement Date Procedures].
Solvent shall mean, with respect to any Person on a particular date, that on such date
(i) the fair value of the property of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person, (ii) the present fair
saleable value of the assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become absolute and matured, (iii)
such Person is able to realize upon its assets and pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the normal course of business, (iv) such Person
does not intend to, and does not believe that it will, incur debts or liabilities beyond such
Persons ability to pay as such debts and liabilities mature, and (v) such Person is not engaged in
business or a transaction, and is not about to engage in business or a transaction, for which such
Persons property would constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which such Person is engaged. In computing the amount of
contingent liabilities at any time, it is intended that such liabilities will be computed at the
amount which, in light of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
Standard & Poors shall mean Standard & Poors Ratings Services, a division of The
McGraw-Hill Companies, Inc. and any successor thereto.
Statements shall have the meaning specified in Section 6.1.6(i) [Historical
Statements].
Subordinated Debt shall mean (a) the 2027 Convertible Notes, (b) subordinated
Indebtedness of any Loan Party evidenced by a Subordinated Seller Note and (c) any other
Indebtedness incurred by any Loan Party which by its terms is specifically subordinated in right of
payment to the prior payment of any or all of the Obligations.
Subordinated Seller Note shall mean a promissory note issued by any Loan Party to the
applicable seller as part of the consideration paid by any Loan Party to such seller in connection
with a Permitted Acquisition.
Subsidiary of any Person at any time shall mean any corporation, trust, partnership,
any limited liability company or other business entity (i) of which more than 50% of
33
the
outstanding voting securities or other interests normally entitled to vote for the election of
one or more directors or trustees (regardless of any contingency which does or may suspend or
dilute the voting rights) is at such time owned directly or indirectly by such Person or one or
more of such Persons Subsidiaries, or (ii) which is controlled or capable of being controlled by
such Person or one or more of such Persons Subsidiaries.
Swing Loan Commitment shall mean each Swing Loan Lenders commitment to make Swing
Loans in Dollars or Optional Currencies to the Borrowers pursuant to Section 2.1.2 [Swing Loan
Commitment] hereof in an aggregate principal amount up to the Dollar Equivalent of the Swing Loan
Sublimit. Swing Loan Commitments shall mean the aggregate Swing Loan Commitments of all
Swing Loan Lenders. The Swing Loan Commitments shall not at any time exceed the Revolving Credit
Commitments. Although PNCs Swing Loan Commitment with respect to Swing Loans in Dollars shall be
equal to the amount of the Swing Loan Sublimit as of the Closing Date, such Swing Loan Commitment
of PNC shall be automatically reduced from time to time after the Closing Date by the amount of any
additional Swing Loan Commitment of any other Swing Loan Lender with respect to Swing Loans in
Optional Currencies, so that the aggregate amount of Swing Loan Commitments at all times complies
with the limitations set forth herein.
Swing Loan Sublimit shall mean $30,000,000.
Swing Loan Lender shall mean PNC, in its individual capacity as Lender of Swing Loans
in Dollars, or PNC or any other Lender, in its individual capacity as Lender of Swing Loans in
Optional Currencies pursuant to Section 2.1.2 [Swing Loan Commitment], and Swing Loan
Lenders shall mean all of the Swing Loan Lenders.
Swing Loan Note shall mean the Swing Loan Note of the Borrowers to PNC in the form of
Exhibit 1.1(N)(2) evidencing the Swing Loans in Dollars or any other Swing Loan Note to PNC
or any other Swing Loan Lender substantially in the form of Exhibit 1.1(N)(2) (or another
form approved by the Borrowers and Administrative Agent) evidencing the Swing Loans in Optional
Currencies, together in each case with all amendments, extensions, renewals, replacements,
refinancings or refundings thereof in whole or in part, and Swing Loan Notes shall mean all
of such Swing Loan Notes.
Swing Loan Request shall mean a request for a Swing Loan made in accordance with
Section 2.3.2 [Swing Loan Requests] hereof.
Swing Loans shall mean collectively and Swing Loan shall mean separately all
Swing Loans or any Swing Loan made by the Swing Loan Lenders to the Borrowers pursuant to Section
2.1.2 [Swing Loan Commitment] hereof.
Swiss Bank Rules shall mean together the Swiss Ten Non-Bank Rule and the Swiss Twenty
Non-Bank Rule.
Swiss Borrowers shall mean all Borrowers incorporated or otherwise organized under the
laws of Switzerland, each of which shall be individually referred to herein as a Swiss
Borrower.
34
Swiss Federal Tax Administration means the Swiss federal tax administration referred
to in Article 34 of the Swiss Withholding Tax Act.
Swiss Ten Non-Bank Rule shall mean the rule that the aggregate number of Lenders and
Participants in respect of Loans to any Swiss Borrower pursuant to this Agreement that are not
Qualifying Banks must not at any time exceed ten, all in accordance with the Guidelines.
Swiss Tranche shall mean that portion of a Loan which can be used by a Swiss Borrower
under this Agreement.
Swiss Twenty Non-Bank Rule shall mean the rule that the aggregate number of lenders
(including the Lenders), other than Qualifying Banks, of any Swiss Borrower under all its
outstanding debts relevant for classification as debenture (Kassenobligation) (including debt
arising under this Agreement, facilities or private placements and intragroup loans, if and to the
extent intragroup loans are not exempt in accordance with the ordinance of the Swiss Federal
Council of June 18, 2010 amending the Swiss Federal Ordinance on withholding tax and the Swiss
Federal Ordinance on stamp duties with effect as of August 1, 2010) must not at any time exceed
twenty, all in accordance with the Guidelines.
Synthetic Debt shall mean, with respect to any Person as of any fiscal quarter end
date thereof, all obligations of such Person in respect of transactions entered into by such Person
that are intended to function primarily as a borrowing of funds (including any minority interest
transactions that function primarily as a borrowing) but are not otherwise included in the
definition of Indebtedness or as a liability on the consolidated balance sheet of such Person and
its Subsidiaries in accordance with GAAP.
Synthetic Lease Obligation shall mean the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property (including Sale and Leaseback Transactions), in each case, creating
obligations that do not appear on the balance sheet of such Person but which, upon the application
of any Relief Proceedings to such Person, would be characterized as the indebtedness of such Person
(without regard to accounting treatment).
TARGET2 shall mean the Trans-European Automated Real-time Gross Settlement Express
Transfer payment system which utilizes a single shared platform and which was launched on 19
November 2007.
TARGET Day shall mean any day on which TARGET2 is open for the settlement of payment
in Euro.
Taxes shall mean all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Official Body, including any
interest, additions to tax or penalties applicable thereto.
TRICARE shall mean the United States Department of Defense health care program for
service families including, but not limited to, TRICARE Prime, TRICARE Extra and TRICARE Standard,
and any successor to or predecessor thereof.
35
UCP shall have the meaning specified in Section 11.11.1 [Governing Law].
USA Patriot Act shall mean the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as
the same has been, or shall hereafter be, renewed, extended, amended or replaced.
Vendor Financingshall mean the sale in the ordinary course of business by the Company
or any of its Subsidiaries to De Lage Landen Financial Services, Inc. or any other Person that is
not an Affiliate of the Company or any of its Subsidiaries of Customer Leases.
1.2 Construction.
Unless the context of this Agreement otherwise clearly requires, the following rules of
construction shall apply to this Agreement and each of the other Loan Documents: (i) references to
the plural include the singular, the plural, the part and the whole and the words include,
includes and including shall be deemed to be followed by the phrase without limitation; (ii)
the words hereof, herein, hereunder, hereto and similar terms in this Agreement or any
other Loan Document refer to this Agreement or such other Loan Document as a whole; (iii) article,
section, subsection, clause, schedule and exhibit references are to this Agreement or other Loan
Document, as the case may be, unless otherwise specified; (iv) reference to any Person includes
such Persons successors and assigns; (v) reference to any agreement, including this Agreement and
any other Loan Document together with the schedules and exhibits hereto or thereto, document or
instrument means such agreement, document or instrument as amended, modified, replaced, substituted
for, superseded or restated; (vi) relative to the determination of any period of time, from means
from and including, to means to but excluding, and through means through and including;
(vii) the words asset and property shall be construed to have the same meaning and effect and
to refer to any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights, (viii) section headings herein and in each other Loan Document are
included for convenience and shall not affect the interpretation of this Agreement or such Loan
Document, and (ix) unless otherwise specified, all references herein to times of day shall be
references to Eastern Time.
1.3 Accounting Principles.
Except as otherwise provided in this Agreement, all computations and determinations as to
accounting or financial matters and all financial statements to be delivered pursuant to this
Agreement shall be made and prepared in accordance with GAAP (including principles of consolidation
where appropriate), and all accounting or financial terms shall have the meanings ascribed to such
terms by GAAP; provided, however, that all accounting terms used in Section 8.2
[Negative Covenants] (and all defined terms used in the definition of any accounting term used in
Section 8.2 [Negative Covenants] shall have the meaning given to such terms (and defined terms)
under GAAP as in effect on the date hereof applied on a basis consistent with those used in
preparing Statements referred to in Section 6.1.6(i) [Historical Statements]. In the event of any
change after the date hereof in GAAP, and if such change would affect the computation of any of the
financial covenants set forth in Section 8.2 [Negative Covenants], then the parties hereto agree
to endeavor, in good faith, to agree upon an amendment to this Agreement that would adjust such
financial covenants in a manner that would preserve the original intent thereof, but would allow
compliance therewith to be determined in accordance with the Companys and its Subsidiaries
financial statements at that time, provided that, until so amended such financial
covenants shall continue to be computed in accordance with GAAP prior to such change therein.
Notwithstanding any other provision of this Agreement, financial
statements of businesses acquired in Permitted
36
Acquisitions directly or indirectly by a Loan
Party or Subsidiary shall not be required to comply with GAAP for periods prior to the date of
consummation of such Permitted Acquisition.
2. REVOLVING CREDIT AND SWING LOAN FACILITIES
2.1 Revolving Credit and Swing Loan Commitments.
2.1.1 Revolving Credit Commitment.
2.1.1.1 Revolving Credit Loans. Subject to the terms and conditions hereof and
relying upon the representations and warranties herein set forth, each Lender holding any Revolving
Credit Commitment severally agrees to make Revolving Credit Loans in either Dollars or one or more
Optional Currencies to the Borrowers at any time or from time to time on or after the date hereof
to the Expiration Date, provided that (i) after giving effect to each such Loan, the
aggregate Dollar Equivalent amount of Revolving Credit Loans from such Lender shall not exceed such
Lenders Revolving Credit Commitment minus such Lenders Revolving Credit Ratable Share of
the Dollar Equivalent amount of Letters of Credit Outstanding, (ii) after giving effect to each
such Loan, the aggregate Dollar Equivalent amount of Revolving Credit Loans from such Lender to any
Foreign Borrower shall not exceed such Lenders Ratable Share of any Foreign Borrower Sublimit,
(iii) the Revolving Facility Usage shall not exceed the aggregate Revolving Credit Commitments, and
(iv) no Revolving Credit Loan to which the Base Rate Option applies shall be made in an Optional
Currency. Within such limits of time and amount and subject to the other provisions of this
Agreement, the Borrowers may borrow, repay and reborrow pursuant to this Section 2.1. The
Borrowers, jointly and severally, subject to Section 11.14 (if applicable), shall repay in full the
outstanding principal amount of the Revolving Credit Loans, together with all accrued interest
thereon and all fees and other amounts owing under any of the Loan Documents relating thereto on
the Expiration Date or earlier termination of the Revolving Credit Commitments in connection with
the terms hereof.
2.1.1.2 Discretionary Increase in Revolving Credit Commitments.
(i) Increasing Lenders and New Lenders. The Borrowers may, at any time, but not more
than two (2) times, prior to the fourth (4th) anniversary of the Closing Date, request that (1) the
current Lenders increase their Revolving Credit Commitments (any current Lender which elects to
increase its Revolving Credit Commitment shall be referred to as an Increasing Lender) or (2) one
or more new lenders (each a New Lender) join this Agreement and provide a Revolving Credit
Commitment hereunder, subject to the following terms and conditions:
(a) No Obligation to Increase. No current Lender shall be obligated to increase its
Revolving Credit Commitment and any increase in the Revolving Credit Commitment by any current
Lender shall be in the sole discretion of such current Lender;
(b) Defaults. There shall exist no Event of Default or, unless consented to by the
Required Lenders, Potential Default on the effective date of such increase, either before or after
giving effect to such increase;
(c) Aggregate Revolving Credit Commitments. After giving effect to such increase, the
total Revolving Credit Commitments shall not exceed the lesser of
37
(i)
$475,000,000 or (ii) the sum of (A) the total Revolving Credit Commitments as in effect on the
date of such request prior to giving effect to any requested increase, plus (B) $75,000,000
minus the amount of any prior increase to the Revolving Credit Commitments under this
Section 2.1.1.2;
(d) Resolutions; Opinion. The Loan Parties shall deliver to the Administrative Agent
on or before the effective date of such increase the following documents in a form reasonably
acceptable to the Administrative Agent: (1) certifications of their corporate secretaries (or
foreign jurisdiction equivalent) with attached resolutions certifying that the increase in the
Revolving Credit Commitment has been approved by such Loan Parties, and (2) opinions of domestic
and foreign counsel (as applicable) addressed to the Administrative Agent and the Lenders
addressing the authorization and execution of the Loan Documents by, and enforceability of the Loan
Documents against, the Loan Parties;
(e) Notes. The Borrowers shall execute and deliver (1) to each Increasing Lender a
replacement revolving credit Note reflecting the new amount of such Increasing Lenders Revolving
Credit Commitment after giving effect to the increase (and the prior Note issued to such Increasing
Lender shall be deemed to be terminated) and (2) to each New Lender a revolving credit Note
reflecting the amount of such New Lenders Revolving Credit Commitment.
(f) Approval of New Lenders. Any New Lender shall be subject to the approval of the
Administrative Agent and the Company and shall not be (1) a Borrower or any of the Borrowers
Subsidiaries or Affiliates or (2) a natural person. The Revolving Credit Commitment of any New
Lender shall not be less than $10,000,000. The share of each New Lender located in or organized
under the laws of the Netherlands and the share of each New Lender hereunder in the Loans to a
Netherlands Borrower shall initially be at least the Dollar Equivalent of EUR 50,000 or such New
Lender shall otherwise qualify as a Professional Market Party, and each such New Lender shall
confirm the foregoing on the date on which it becomes a New Lender hereunder by execution and
delivery of its Lender Joinder and Assumption Agreement in which the New Lender confirms that it is
a Professional Market Party.
(g) Increasing Lenders. Each Increasing Lender shall confirm its agreement to
increase its Revolving Credit Commitment pursuant to an acknowledgement in a form acceptable to the
Administrative Agent, signed by it and the Borrowers and delivered to the Administrative Agent at
least five (5) days before the effective date of such increase.
(h) New LendersJoinder. Each New Lender shall execute a lender joinder in
substantially the form of Exhibit 2.1 pursuant to which such New Lender shall join and
become a party to this Agreement and the other Loan Documents with a Revolving Credit Commitment in
the amount set forth in such lender joinder.
(ii) Treatment of Outstanding Loans and Letters of Credit.
(a) Repayment of Outstanding Revolving Credit Loans; Borrowing of New Revolving Credit
Loans. On the effective date of such increase, at the request of the Administrative Agent, the
Borrowers shall repay all Revolving Credit Loans then outstanding, subject to the Loan Parties
indemnity obligations under Section 5.10 [Indemnity]; provided that they may borrow new
Revolving Credit Loans with a Borrowing Date on such
38
date. Each of the Lenders shall participate in any new Revolving Credit Loans made on or after
such date in accordance with their respective Ratable Shares after giving effect to the increase in
Revolving Credit Commitments contemplated by this Section 2.1.1.2.
(b) Outstanding Letters of Credit. On the effective date of such increase, each
Increasing Lender and each New Lender (i) will be deemed to have purchased a participation in each
then outstanding Letter of Credit equal to its Ratable Share of such Letter of Credit and the
participation of each other Lender in such Letter of Credit shall be adjusted accordingly and (ii)
will acquire (and will pay to the Administrative Agent, for the account of each Lender, in
immediately available funds, an amount equal to) its Ratable Share of all outstanding Participation
Advances.
2.1.1.3 Reduction of Revolving Credit Commitment. The Borrowers shall have the right
at any time after the Closing Date upon five (5) days prior written notice to the Administrative
Agent to permanently reduce (ratably among the Lenders in proportion to their Ratable Shares) the
Revolving Credit Commitments, in a minimum amount of $5,000,000 and whole multiples of $1,000,000,
or to terminate completely the Revolving Credit Commitments, without penalty or premium except as
hereinafter set forth; provided that any such reduction or termination shall be accompanied
by prepayment of the Notes (in accordance with Section 5.6 [Voluntary Prepayments]) (and all
amounts referred to in Section 5.10 [Indemnity] hereof) to the extent necessary to cause the
aggregate Revolving Facility Usage after giving effect to such prepayments to be equal to or less
than the Revolving Credit Commitments as so reduced or terminated. Any notice to reduce the
Revolving Credit Commitments under this Section 2.1.1.3 shall be irrevocable.
2.1.2 Swing Loan Commitment.
2.1.2.1 Swing Loans Generally.
(i) Subject to the terms and conditions hereof and relying upon the representations and
warranties herein set forth, and in order to facilitate loans and repayments between Settlement
Dates, PNC, as a Swing Loan Lender may (unless it has received written notice of the existence of
any Event of Default and so long as such shall continue to exist or, unless consented to by the
Required Lenders, a Potential Default and so long as such shall continue to exist), at its option,
cancelable at any time for any reason whatsoever, make swing loans in Dollars and, subject to
Section 2.1.2.2 below, PNC or any other Swing Loan Lender may (unless such Swing Loan Lender has
received written notice of the existence of any Event of Default and so long as such shall continue
to exist or, unless consented to by the Required Lenders, a Potential Default and so long as such
shall continue to exist), at its option, cancelable at any time for any reason whatsoever, make
swing loans in Optional Currencies (collectively, all such Dollar and Optional Currency swing loans
are referred to as the Swing Loans), to the Borrowers at any time or from time to time after the
date hereof to, but not including, the Expiration Date, in an aggregate principal Dollar Equivalent
amount up to but not in excess of the Swing Loan Sublimit, provided that after giving
effect to each such Loan, the Revolving Facility Usage shall not exceed the Revolving Credit
Commitments.
(ii) Within the limits of time and amount set forth in this Section 2.1.2, and subject to the
other provisions of this Agreement, the Borrowers may borrow, repay and reborrow pursuant to this
Section 2.1.2.
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(iii) Notwithstanding any other provision hereof, as a condition to the making of any optional
Swing Loan, if any Lender is at such time a Defaulting Lender hereunder, PNC may require that
satisfactory arrangements with the Borrowers or such Defaulting Lender be entered into to eliminate
the Swing Loan Lenders risk with respect to such Defaulting Lender (it being understood that PNC
would consider the Borrowers or the Defaulting Lender providing cash collateral to the
Administrative Agent, for the benefit of the Swing Loan Lenders, to secure the Defaulting Lenders
Ratable Share of the Swing Loans, a satisfactory arrangement).
2.1.2.2 Swing Loans in Optional Currencies.
(i) If the Borrowers wish to request a Swing Loan in an Optional Currency, the Borrowers shall
so indicate in their Swing Loan Request delivered pursuant to Section 2.3.2 [Swing Loan Requests]
below. If the request for a Swing Loan in an Optional Currency is an initial request as to which
no Swing Loan Lender has yet agreed to enter into a Swing Loan Commitment, the applicable Swing
Loan Request shall be delivered by Borrowers to the existing Swing Loan Lenders for their
consideration, with a copy to the Administrative Agent. If the request relates to an existing
Swing Loan Commitment in Optional Currencies of a particular Swing Loan Lender, it shall be
delivered to the applicable Swing Loan Lender, with a copy to the Administrative Agent. In the
case of an initial request for a Swing Loan in an Optional Currency as to which no Swing Loan
Lender has provided a Swing Loan Commitment, if the existing Swing Loan Lenders do not agree to
make such requested Swing Loan in an Optional Currency by providing a Swing Loan Commitment with
respect thereto, then the Swing Loan Lenders shall so inform the Administrative Agent, which shall
then submit such request to the other Lenders for their consideration. No Lender shall be
obligated to provide such Swing Loan in an Optional Currency and the provision of any such Swing
Loan in an Optional Currency by any Lender shall be in the sole discretion of such Lender. If any
Lender agrees to make a Swing Loan in an Optional Currency by providing a Swing Loan Commitment
with respect thereto, the Borrowers shall execute and deliver a Swing Loan Note to each such Swing
Loan Lender in the maximum amount of such Swing Loan Lenders Swing Loan Commitment with respect to
Swing Loans in Optional Currencies (or specified Optional Currencies, as the case may be), pursuant
to Section 2.7.1 [Notes], and the applicable Swing Loan Lenders acceptance of such Swing Loan Note
shall provide its Swing Loan Commitment. Swing Loans in Optional Currencies, if made, shall be
made by existing Lenders, who shall by the making of such Swing Loans in Optional Currencies become
Swing Loan Lenders hereunder.
(ii) Swing Loans in Optional Currencies are subject to the following additional limitations:
(a) Swing Loans of all Borrowers in Optional Currencies may not exceed the aggregate Dollar
Equivalent principal amount of $25,000,000; (b) Swing Loans of any Foreign Borrower may not exceed
an aggregate Dollar Equivalent principal amount equal to 20% of such Foreign Borrowers applicable
Foreign Borrower Sublimit; (c) if total Revolving Facility Usage at any time exceeds $325,000,000
(i) no Swing Loans in Optional Currencies may be requested until Revolving Facility Usage falls
below $300,000,000, and (ii) all outstanding Swing Loans in Optional Currencies shall be
immediately converted to Revolving Credit Loans pursuant to Section 2.4.5 [Borrowings to Repay
Swing Loans] if Revolving Credit Loans are then available or, if they are not, repaid in full by
Borrowers; (d) Swing Loans in Optional
Currencies must comply with Section 2.6 [Utilization of Commitments in Optional Currencies],
including without limitation the provision in Section 2.6.1 [Notices From Lenders That Optional
Currencies Are Unavailable to Fund New Loans] that no Swing Loan may be requested if the
40
aggregate
amount of Revolving Credit Loans (including Swing Loans) in all Optional Currencies, taking into
account such requested Swing Loan and all other Revolving Credit Loans (including Swing Loans) then
outstanding in all Optional Currencies, would exceed the aggregate Optional Currency Sublimit
applicable to all Optional Currencies; and (e) if an Event of Default exists, no Swing Loans in
Optional Currencies may thereafter be requested and all outstanding Swing Loans in Optional
Currencies shall be immediately converted to Revolving Credit Loans pursuant to Section 2.4.5
[Borrowings to Repay Swing Loans] if Revolving Credit Loans are then available or, if they are not,
repaid in full by Borrowers.
2.2 Nature of Lenders Obligations with Respect to Revolving Credit Loans.
Each Lender shall be obligated to participate in each request for Revolving Credit Loans
pursuant to Section 2.3 [Revolving Credit Loan Requests; Swing Loan Requests] in accordance with
its Ratable Share. The aggregate Dollar Equivalent of each Lenders Revolving Credit Loans
outstanding hereunder to the Borrowers at any time shall never exceed its Revolving Credit
Commitment minus its Dollar Equivalent Ratable Share of the outstanding Swing Loans and Letter of
Credit Obligations. The obligations of each Lender hereunder are several. The failure of any
Lender to perform its obligations hereunder shall not affect the Obligations of the Borrowers to
any other party nor shall any other party be liable for the failure of such Lender to perform its
obligations hereunder. The Lenders shall have no obligation to make Revolving Credit Loans
hereunder on or after the Expiration Date.
2.3 Revolving Credit Loan Requests; Swing Loan Requests.
2.3.1 Revolving Credit Loan Requests.
Except as otherwise provided herein, the Borrowers may from time to time prior to the
Expiration Date request the Lenders to make Revolving Credit Loans, or renew or convert the
Interest Rate Option applicable to existing Revolving Credit Loans pursuant to Section 4.2
[Interest Periods], by delivering to the Administrative Agent, not later than 12:00 p.m., (i) three
(3) Business Days prior to the proposed Borrowing Date with respect to the making of Revolving
Credit Loans in Dollars to which the Euro-Rate Option applies or the conversion to or the renewal
of the Euro-Rate Option for any Loans in Dollars; (ii) four (4) Business Days prior to the proposed
Borrowing Date with respect to the making of Revolving Credit Loans in an Optional Currency or the
date of conversion to or renewal of the Euro-Rate Option for Revolving Credit Loans in an Optional
Currency; and (iii) the same Business Day of the proposed Borrowing Date with respect to the making
of a Revolving Credit Loan to which the Base Rate Option applies or the last day of the preceding
Interest Period with respect to the conversion to the Base Rate Option for any Loan, of a duly
completed request therefor substantially in the form of Exhibit 2.3 or a request by
telephone immediately confirmed in writing by letter, facsimile or telex in such form (each, a
Loan Request), it being understood that the Administrative Agent may rely on the authority of any
individual making such a telephonic request without the necessity of receipt of such written
confirmation. Each Loan Request shall be irrevocable and shall specify (i) the aggregate amount of
the proposed Loans (expressed in the currency in which such Loans shall be funded) comprising each
Borrowing Tranche, the Dollar Equivalent amount of which shall be in (x) integral multiples of
$500,000 and not less than $1,000,000 for each
Borrowing Tranche to which the Euro-Rate Option applies and (y) integral multiples of $100,000
and not less than $500,000 for each Borrowing Tranche under the Base Rate Option; (ii) whether the
Euro-Rate Option or Base Rate Option shall apply to the proposed Revolving Credit Loans comprising
the applicable Borrowing Tranche; (iii) the currency in which such Loans shall be funded if the
41
Borrowers are electing the Euro-Rate Option; (iv) in the case of a Borrowing Tranche to which the
Euro-Rate Option applies, an appropriate Interest Period for the Loans comprising such Borrowing
Tranche; and (v) which Borrower is requesting the Revolving Credit Loan.
2.3.2 Swing Loan Requests.
Except as otherwise provided herein, the Borrowers may from time to time prior to the
Expiration Date request PNC, as a Swing Loan Lender, to make Swing Loans in Dollars, or request PNC
or any other Swing Loan Lender to make Swing Loans in Optional Currencies, by delivering to such
Swing Loan Lender, with a copy to the Administrative Agent, not later than 12:00 noon on the
proposed Borrowing Date of a duly completed request therefor substantially in the form of
Exhibit 2.3.2 hereto or a request by telephone immediately confirmed in writing by letter,
facsimile or telex (each, a Swing Loan Request), it being understood that the Administrative
Agent and Swing Loan Lenders may rely on the authority of any individual making such a telephonic
request without the necessity of receipt of such written confirmation. Each Swing Loan Request
shall be irrevocable and shall specify the proposed Borrowing Date and the principal amount of such
Swing Loan, which shall be not less than $100,000.
2.4 Making and Repaying Revolving Credit Loans and Swing Loans; Presumptions by the
Administrative Agent.
2.4.1 Making Revolving Credit Loans.
The Administrative Agent shall, promptly after receipt by it of a Loan Request pursuant to
Section 2.3 [Revolving Credit Loan Requests; Swing Loan Requests], notify the Lenders of its
receipt of such Loan Request specifying the information provided by the Borrowers, including the
currency in which Revolving Credit Loan is requested, and the apportionment among the Lenders of
the requested Revolving Credit Loans as determined by the Administrative Agent in accordance with
Section 2.2 [Nature of Lenders Obligations with Respect to Revolving Credit Loans]. Each Lender
shall remit the principal amount of each Revolving Credit Loan in the requested Optional Currency
(or in Dollars if so requested by the Administrative Agent) to the Administrative Agent such that
the Administrative Agent is able to, and the Administrative Agent shall, to the extent the Lenders
have made funds available to it for such purpose and subject to Section 7.2 [Each Loan or Letter
of Credit], fund such Revolving Credit Loans to the Borrowers in immediately available funds in
Dollars or the requested Optional Currency (as applicable) at the Principal Office prior to 2:00
p.m., on the applicable Borrowing Date; provided that if any Lender fails to remit such
funds, in the applicable Optional Currency, to the Administrative Agent in a timely manner, the
Administrative Agent may elect in its sole discretion to fund with its own funds the Revolving
Credit Loans of such Lender on such Borrowing Date, and such Lender shall be subject to the
repayment obligation in Section 2.4.2 [Presumptions by the Administrative Agent].
2.4.2 Presumptions by the Administrative Agent.
Unless the Administrative Agent shall have received notice from a Lender prior to the proposed
date of any Loan that such Lender will not make available to the Administrative Agent such Lenders
share of such Loan, the Administrative Agent may assume that such Lender has made such share
available on such date in accordance with Section 2.4.1 [Making Revolving Credit Loans] and may, in
reliance upon such assumption, make available to the Borrowers a corresponding amount. In such
event, if a Lender has not in fact made its share of the applicable Loan available to the
Administrative Agent, then the applicable Lender and the Borrowers severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the
42
Borrowers to but excluding the
date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Effective Rate (or, with respect to any payment in an
Optional Currency, the Overnight Rate) and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation and (ii) in the case of a payment
to be made by the Borrowers, the interest rate applicable to Loans under the Base Rate Option. If
such Lender pays its share of the applicable Loan to the Administrative Agent, then the amount so
paid shall constitute such Lenders Loan. Any payment by the Borrowers shall be without prejudice
to any claim the Borrowers may have against a Lender that shall have failed to make such payment to
the Administrative Agent.
2.4.3 Making Swing Loans.
So long as each Swing Loan Lender elects to make Swing Loans, such Swing Loan Lender shall,
after receipt by it of a Swing Loan Request pursuant to Section 2.3.2 [Swing Loan Requests] fund
such Swing Loan to the Borrowers in Dollars or, if applicable, the relevant Optional Currency, and
immediately available funds at the Principal Office prior to 4:00 p.m. on the Borrowing Date or, in
the case of Swing Loans in Optional Currencies, prior to such date and time as has been agreed
among the Administrative Agent, relevant Swing Loan Lender and the Borrowers.
2.4.4 Repayment of Revolving Credit Loans.
The Borrowers shall repay the Revolving Credit Loans together with all outstanding interest
thereon on the Expiration Date.
2.4.5 Borrowings to Repay Swing Loans.
Each Swing Loan Lender may, at its option, exercisable at any time for any reason whatsoever,
demand repayment of its Swing Loans, and each Lender shall make a Revolving Credit Loan in Dollars
in an amount equal to such Lenders Ratable Share of the aggregate principal amount of the
outstanding Swing Loans of such Swing Loan Lender, plus, if such Swing Loan Lender so requests,
accrued interest thereon, provided that no Lender shall be obligated in any event to make
Revolving Credit Loans in excess of its Revolving Credit Commitment minus its Ratable Share
of Letter of Credit Obligations (to the extent applicable, calculated using Dollar Equivalents).
Revolving Credit Loans made pursuant to the preceding sentence shall bear interest at the Base Rate
Option and shall be deemed to have been properly requested in accordance with Section 2.3.1
[Revolving Credit Loan Requests] without regard to any of the requirements of that provision. Each
Swing Loan Lender shall provide notice to the Lenders (which may be telephonic or written notice by
letter, facsimile or telex) that such Revolving Credit Loans are to be made under this Section
2.4.5 and of the apportionment among
the Lenders, and the Lenders shall be unconditionally obligated to fund such Revolving Credit
Loans (whether or not the conditions specified in Section 2.3.1 [Revolving Credit Loan Requests]
are then satisfied) by the time such Swing Loan Lender so requests, which shall not be earlier than
3:00 p.m. on the Business Day next after the date the Lenders receive such notice from such Swing
Loan Lender.
2.4.6 Swing Loans Under Cash Management Agreements.
In addition to making Swing Loans pursuant to the foregoing provisions of Section 2.4.3
[Making Swing Loans], without the requirement for a specific request from the Borrowers pursuant to
Section 2.3.2 [Swing Loan Requests], PNC as a Swing Loan Lender may make Swing Loans to the
Borrowers in accordance with the provisions of the agreements between the Company and such Swing
Loan Lender relating to the Companys deposit, sweep and other accounts at such Swing Loan Lender
and related arrangements and agreements regarding the management and investment of the Companys
cash assets as in effect from time to time (the Cash Management Agreements) to the extent of the
daily aggregate net negative balance in the Companys
43
accounts which are subject to the provisions
of the Cash Management Agreements. Swing Loans made pursuant to this Section 2.4.6 in accordance
with the provisions of the Cash Management Agreements shall (i) be subject to the limitations as to
aggregate amount set forth in Section 2.1.2 [Swing Loan Commitment], (ii) not be subject to the
limitations as to individual amount set forth in Section 2.3.2 [Swing Loan Requests], (iii) be
payable by the Borrowers, both as to principal and interest, at the rates and times set forth in
the Cash Management Agreements (but in no event later than the Expiration Date), (iv) not be made
at any time after such Swing Loan Lender has received written notice of the occurrence of an Event
of Default and so long as such shall continue to exist, or, unless consented to by the Required
Lenders, a Potential Default and so long as such shall continue to exist, (v) if not repaid by the
Borrowers in accordance with the provisions of the Cash Management Agreements, be subject to each
Lenders obligation pursuant to Section 2.4.5 [Borrowings to Repay Swing Loans], and (vi) except as
provided in the foregoing subsections (i) through (v), be subject to all of the terms and
conditions of this Section 2. The Borrowers acknowledge and agree that each Borrower materially
benefits from the arrangements made pursuant to Section 2.3 and the Cash Management Agreements, and
each Borrower shall be jointly and severally liable, subject to Section 11.14 [Foreign Borrowers and
Foreign Guarantors], for all Obligations, including without limitation, those arising from the
operation of this Section.
2.4.7 Records of Swing Loans in Optional Currencies.
Each Swing Loan Lender which agrees in its discretion hereunder to provide Swing Loans in
Optional Currencies to the Borrowers shall provide the Administrative Agent with (i) written notice
on the same Business Day of the advancing, repayment or prepayment of each such Swing Loan,
specifying the amount so advanced, repaid or prepaid, (ii) immediately upon execution thereof,
copies of each applicable Swing Loan Note, and (iii) promptly upon request, such other information
as the Administrative Agent may request from time to time with respect to Swing Loans in Optional
Currencies.
2.5 Letter of Credit Subfacility.
2.5.1 Issuance of Letters of Credit.
The Borrowers may at any time prior to the Expiration Date request the issuance of a standby
letter of credit or Commercial Letter of Credit (each a Letter of Credit) which may be
denominated in either Dollars or an Optional Currency on behalf of themselves, another Loan Party
or another Subsidiary of the Company, or the amendment or extension of an existing Letter of
Credit, by delivering or having such other Loan Party deliver to the Issuing Lender (with a copy to
the Administrative Agent) a completed application and agreement for letters of credit, or request
for such amendment or extension, as applicable, in such form as the Issuing Lender may specify from
time to time by no later than 10:00 a.m. at least two (2) Business Days, or such shorter period as
may be agreed to by the Issuing Lender, in advance of the proposed date of issuance. Promptly
after receipt of any letter of credit application, the Issuing Lender shall confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy
of such Letter of Credit application and if not, such Issuing Lender will provide Administrative
Agent with a copy thereof. All letters of credit which are identified on Schedule 2.5.1 hereto,
which shall consist of all letters of credit issued under the Prior Senior Credit Facility which
are outstanding on the Closing Date, shall be deemed to have been issued under this Agreement.
Unless the Issuing Lender has received notice from any Lender, Administrative Agent or any Loan
Party, at least one day prior to the requested date of issuance, amendment or extension of the
applicable Letter of Credit, that one or more applicable conditions in Section 7 [Conditions of
Lending and
44
Issuance of Letters of Credit] is not satisfied, then, subject to the terms and
conditions hereof and in reliance on the agreements of the other Lenders set forth in this Section
2.4.6, the Issuing Lender or any of the Issuing Lenders Affiliates will issue a Letter of Credit
or agree to such amendment or extension, provided that each Letter of Credit shall (A) have
a maximum maturity of twelve (12) months from the date of issuance, and (B) in no event expire
later than the Expiration Date and provided further that in no event shall (i) the Dollar
Equivalent of Letter of Credit Obligations exceed, at any one time, $25,000,000 (the Letter of
Credit Sublimit) or (ii) the Revolving Facility Usage exceed, at any one time, the Revolving
Credit Commitments. Each request by the Borrowers for the issuance, amendment or extension of a
Letter of Credit shall be deemed to be a representation by the Borrowers that they shall be in
compliance with the preceding sentence and with Section 7 [Conditions of Lending and Issuance of
Letters of Credit] after giving effect to the requested issuance, amendment or extension of such
Letter of Credit. Promptly after its delivery of any Letter of Credit or any amendment to a Letter
of Credit to the beneficiary thereof, the applicable Issuing Lender will also deliver to Borrowers
and Administrative Agent a true and complete copy of such Letter of Credit or amendment.
Notwithstanding any other provision hereof, no Issuing Lender shall be required to issue any
Letter of Credit, if any Lender is at such time a Defaulting Lender hereunder, unless such Issuing
Lender has entered into satisfactory arrangements with the Borrowers or such Defaulting Lender to
eliminate the Issuing Lenders risk with respect to such Defaulting Lender (it being understood
that the Issuing Lender would consider the Borrowers or the Defaulting Lender providing cash
collateral to the Administrative Agent, for the benefit of the Issuing Lender, to secure the
Defaulting Lenders Ratable Share of the Letter of Credit, a satisfactory arrangement).
2.5.2 Letter of Credit Fees.
The Borrowers shall pay (i) to the Administrative Agent for the ratable account of the Lenders
a fee (the Letter of Credit Fee) equal to the Applicable Letter of Credit Fee Rate, and (ii) to
the Issuing Lender for its own account a fronting fee equal to .125% per annum (in each case
computed on the basis of a year of 360 days and actual days elapsed), which fees shall be
computed on the Dollar Equivalent daily average Letter of Credit Obligations and shall be
payable quarterly in arrears on each Payment Date following issuance of each Letter of Credit. The
Borrowers shall also pay to the Issuing Lender for the Issuing Lenders sole account the Issuing
Lenders then in effect customary fees and administrative expenses payable with respect to the
Letters of Credit as the Issuing Lender may generally charge or incur from time to time in
connection with the issuance, maintenance, amendment (if any), assignment or transfer (if any),
negotiation, and administration of Letters of Credit.
2.5.3 Disbursements, Reimbursement.
Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby irrevocably and unconditionally agrees to, purchase from the Issuing Lender a participation
in such Letter of Credit and each drawing thereunder in a Dollar Equivalent amount equal to such
Lenders Ratable Share of the maximum amount available to be drawn under such Letter of Credit and
the amount of such drawing, respectively.
2.5.3.1 In the event of any request for a drawing under a Letter of Credit by the beneficiary
or transferee thereof, the Issuing Lender will promptly notify the Borrowers and the Administrative
Agent thereof. Provided that it shall have received such notice, the Borrowers shall reimburse
(such obligation to reimburse the Issuing Lender shall sometimes be referred to as a Reimbursement
Obligation) the Issuing Lender prior to 12:00
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noon on each date that an amount is paid by the
Issuing Lender under any Letter of Credit (each such date, a Drawing Date) by paying to the
Administrative Agent for the account of the Issuing Lender an amount equal to the amount so paid by
the Issuing Lender, in the same currency as paid, unless otherwise required by the Administrative
Agent. In the event the Borrowers fail to reimburse the Issuing Lender (through the Administrative
Agent) for the full amount of any drawing under any Letter of Credit by 12:00 noon on the Drawing
Date, the Administrative Agent will promptly notify each Lender thereof, and the Borrowers shall be
deemed to have requested that Revolving Credit Loans be made in an Equivalent Amount of such
Reimbursement Obligations by the Lenders in Dollars under the Base Rate Option to be disbursed on
the Drawing Date under such Letter of Credit, subject to the amount of the unutilized portion of
the Revolving Credit Commitment and subject to the conditions set forth in Section 7.2 [Each Loan
or Letter of Credit] other than any notice requirements. The Borrowers failure to reimburse the
Issuing Lender pursuant to the foregoing sentence shall not constitute an Event of Default so long
as the amount of the unutilized portion of the Revolving Credit Commitment is sufficient to
reimburse the Issuing Lender and the other conditions set forth in Section 7.2 [Each Loan or
Letter of Credit] other than any notice requirements are satisfied. Any notice given by the
Administrative Agent or Issuing Lender pursuant to this Section 2.5.3.1 may be oral if immediately
confirmed in writing; provided that the lack of such an immediate confirmation shall not
affect the conclusiveness or binding effect of such notice.
2.5.3.2 Each Lender shall upon any notice pursuant to Section 2.5.3.1 make available to the
Administrative Agent for the account of the Issuing Lender an amount in Dollars in immediately
available funds equal to its Ratable Share of the Dollar Equivalent amount of the drawing,
whereupon the participating Lenders shall (subject to Section 2.5.3 [Disbursement; Reimbursement])
each be deemed to have made a Revolving Credit Loan in Dollars under the Base Rate Option to the
Borrowers in that amount. If any Lender so notified fails to make available to the Administrative
Agent for the account of the Issuing Lender the amount of such Lenders Ratable Share of such
amount by no later than 2:00 p.m. on the
Drawing Date, then interest shall accrue on such Lenders obligation to make such payment,
from the Drawing Date to the date on which such Lender makes such payment (i) at a rate per annum
equal to the Federal Funds Effective Rate (or, for any payment in an Optional Currency, the
Overnight Rate) during the first three (3) days following the Drawing Date and (ii) at a rate per
annum equal to the rate applicable to Loans under the Revolving Credit Base Rate Option on and
after the fourth day following the Drawing Date. The Administrative Agent and the Issuing Lender
will promptly give notice (as described in Section 2.5.3.1 above) of the occurrence of the Drawing
Date, but failure of the Administrative Agent or the Issuing Lender to give any such notice on the
Drawing Date or in sufficient time to enable any Lender to effect such payment on such Drawing Date
shall not relieve such Lender from its obligation under this Section 2.5.3.2.
2.5.3.3 With respect to any unreimbursed drawing that is not converted into Revolving Credit
Loans in Dollars under the Base Rate Option to the Borrowers in whole or in part as contemplated by
Section 2.5.3.1, because of the Borrowers failure to satisfy the conditions set forth in Section
7.2 [Each Loan or Letter of Credit] other than any notice requirements, or for any other reason,
the Borrowers shall be deemed to have incurred from the Issuing Lender a borrowing (each a Letter
of Credit Borrowing) in Dollars in the amount of such drawing. Such Letter of Credit Borrowing
shall be due and payable on demand (together with interest) and shall bear interest at the rate per
annum applicable to the Revolving Credit Loans under the Base Rate Option. Each Lenders payment
to the Administrative Agent for the
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account of the Issuing Lender pursuant to Section 2.5.3
[Disbursements, Reimbursement] shall be deemed to be a payment in respect of its participation in
such Letter of Credit Borrowing (each a Participation Advance) from such Lender in satisfaction
of its participation obligation under this Section 2.5.3.
2.5.4 Repayment of Participation Advances.
2.5.4.1 Upon (and only upon) receipt by the Administrative Agent for the account of the
Issuing Lender of immediately available funds from the Borrowers (i) in reimbursement of any
payment made by the Issuing Lender under the Letter of Credit with respect to which any Lender has
made a Participation Advance to the Administrative Agent, or (ii) in payment of interest on such a
payment made by the Issuing Lender under such a Letter of Credit, the Administrative Agent on
behalf of the Issuing Lender will pay to each Lender, in the same funds as those received by the
Administrative Agent, the amount of such Lenders Ratable Share of such funds, except the
Administrative Agent shall retain for the account of the Issuing Lender the amount of the Ratable
Share of such funds of any Lender that did not make a Participation Advance in respect of such
payment by the Issuing Lender.
2.5.4.2 If the Administrative Agent is required at any time to return to any Loan Party, or to
a trustee, receiver, liquidator, custodian, or any official in any Insolvency Proceeding, any
portion of any payment made by any Loan Party to the Administrative Agent for the account of the
Issuing Lender pursuant to this Section in reimbursement of a payment made under the Letter of
Credit or interest or fee thereon, each Lender shall, on demand of the Administrative Agent,
forthwith return to the Administrative Agent for the account of the Issuing Lender the amount of
its Ratable Share of any amounts so returned by the Administrative Agent plus interest thereon from
the date such demand is made to the date such amounts are returned by such Lender to the
Administrative Agent, at a rate per annum equal to the Federal Funds Effective Rate (or, for any
payment in an Optional Currency, the Overnight Rate) in effect from time to time.
2.5.5 Documentation.
Each Loan Party agrees to be bound by the terms of the Issuing Lenders application and
agreement for letters of credit and the Issuing Lenders written regulations and customary
practices relating to letters of credit, though such interpretation may be different from such Loan
Partys own. In the event of a conflict between such application or agreement and this Agreement,
this Agreement shall govern. It is understood and agreed that, except in the case of gross
negligence or willful misconduct, the Issuing Lender shall not be liable for any error, negligence
and/or mistakes, whether of omission or commission, in following any Loan Partys instructions or
those contained in the Letters of Credit or any modifications, amendments or supplements thereto.
2.5.6 Determinations to Honor Drawing Requests.
In determining whether to honor any request for drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to determine that the documents
and certificates required to be delivered under such Letter of Credit have been delivered and that
they comply on their face with the requirements of such Letter of Credit.
2.5.7 Nature of Participation and Reimbursement Obligations.
Each Lenders obligation in accordance with this Agreement to make the Revolving Credit Loans
or Participation Advances, as contemplated by Section 2.5.3 [Disbursements, Reimbursement], as a
47
result of a drawing under a Letter of Credit, and the Obligations of the Borrowers to
reimburse the Issuing Lender upon a draw under a Letter of Credit, shall be absolute, unconditional
and irrevocable, and shall be performed strictly in accordance with the terms of this Section 2.5.7
under all circumstances, including the following circumstances:
(i) any set-off, counterclaim, recoupment, defense or other right which such Lender may have
against the Issuing Lender or any of its Affiliates, the Borrowers or any other Person for any
reason whatsoever, or which any Loan Party may have against the Issuing Lender or any of its
Affiliates, any Lender or any other Person for any reason whatsoever;
(ii) the failure of any Loan Party or any other Person to comply, in connection with a Letter
of Credit Borrowing, with the conditions set forth in Section 2.1 [Revolving Credit Commitments],
Section 2.3 [Revolving Credit Loan Requests; Swing Loan Requests], Section 2.4 [Making Revolving
Credit Loans and Swing Loans; Etc.] or Section 7.2 [Each Loan or Letter of Credit] or as otherwise
set forth in this Agreement for the making of a Revolving Credit Loan, it being acknowledged that
such conditions are not required for the making of a Letter of Credit Borrowing and the obligation
of the Lenders to make Participation Advances under Section 2.5.3 [Disbursements, Reimbursement];
(iii) any lack of validity or enforceability of any Letter of Credit;
(iv) any claim of breach of warranty that might be made by any Loan Party or any Lender
against any beneficiary of a Letter of Credit, or the existence of any claim, set-off, recoupment,
counterclaim, crossclaim, defense or other right which any Loan Party or any Lender may have at any
time against a beneficiary, successor beneficiary any transferee or assignee of any Letter of
Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the
Issuing Lender or its Affiliates or any Lender or any other Person, whether in connection with this
Agreement, the transactions contemplated herein or any unrelated transaction (including any
underlying transaction between any Loan Party or Subsidiaries of a Loan Party and the beneficiary
for which any Letter of Credit was procured);
(v) the lack of power or authority of any signer of (or any defect in or forgery of any
signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy,
enforceability or genuineness of any draft, demand, instrument, certificate or other document
presented under or in connection with any Letter of Credit, or any fraud or alleged fraud in
connection with any Letter of Credit, or the transport of any property or provision of services
relating to a Letter of Credit, in each case even if the Issuing Lender or any of its Affiliates
has been notified thereof;
(vi) payment by the Issuing Lender or any of its Affiliates under any Letter of Credit against
presentation of a demand, draft or certificate or other document which does not comply with the
terms of such Letter of Credit;
(vii) the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit,
or any other Person having a role in any transaction or obligation relating to a Letter of Credit,
or the existence, nature, quality, quantity, condition, value or other characteristic of any
property or services relating to a Letter of Credit;
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(viii) any failure by the Issuing Lender or any of its Affiliates to issue any Letter of
Credit in the form requested by any Loan Party, unless the Issuing Lender has received written
notice from such Loan Party of such failure within three Business Days after the Issuing
Lender shall have furnished such Loan Party and the Administrative Agent a copy of such Letter of
Credit and such error is material and no drawing has been made thereon prior to receipt of such
notice;
(ix) any adverse change in the business, operations, properties, assets, condition (financial
or otherwise) or prospects of any Loan Party or Subsidiaries of a Loan Party;
(x) any breach of this Agreement or any other Loan Document by any party thereto;
(xi) the occurrence or continuance of an Insolvency Proceeding with respect to any Loan Party;
(xii) the fact that an Event of Default or a Potential Default shall have occurred and be
continuing;
(xiii) the fact that the Expiration Date shall have passed or this Agreement or the
Commitments hereunder shall have been terminated; and
(xiv) any other circumstance or happening whatsoever, whether or not similar to any of the
foregoing.
2.5.8 Indemnity. Each Borrower hereby agrees to protect, indemnify, pay and save harmless the Issuing Lender
and any of its Affiliates that has issued a Letter of Credit from and against any and all claims,
demands, liabilities, damages, taxes, penalties, interest, judgments, losses, costs, charges and
expenses (including reasonable fees, expenses and disbursements of counsel) which the Issuing
Lender or any of its Affiliates may incur or be subject to as a consequence, direct or indirect, of
the issuance of any Letter of Credit, other than as a result of (A) the gross negligence or willful
misconduct of the Issuing Lender as determined by a final non-appealable judgment of a court of
competent jurisdiction or (B) the wrongful dishonor by the Issuing Lender or any of Issuing
Lenders Affiliates of a proper demand for payment made under any Letter of Credit, except if such
dishonor resulted from any act or omission, whether rightful or wrongful, of any present or future
de jure or de facto government or Official Body.
2.5.9 Liability for Acts and Omissions. As between any Loan Party and the Issuing Lender, or the Issuing Lenders Affiliates, such
Loan Party assumes all risks of the acts and omissions of, or misuse of the Letters of Credit by,
the respective beneficiaries of such Letters of Credit. In furtherance and not in limitation of
the foregoing, the Issuing Lender shall not be responsible for any of the following, including any
losses or damages to any Loan Party or other Person or property relating therefrom: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party
in connection with the application for an issuance of any such Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged
(even if the Issuing Lender or its Affiliates shall have been notified thereof); (ii) the validity
or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any
such Letter of Credit
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or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason; (iii) the failure of the
beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be
transferred, to comply fully with
any conditions required in order to draw upon such Letter of Credit or any other claim of any
Loan Party against any beneficiary of such Letter of Credit, or any such transferee, or any dispute
between or among any Loan Party and any beneficiary of any Letter of Credit or any such transferee;
(iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by
mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under any such Letter of Credit or of the proceeds
thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds
of any drawing under such Letter of Credit; or (viii) any consequences arising from causes beyond
the control of the Issuing Lender or its Affiliates, as applicable, including any act or omission
of any Official Body, and none of the above shall affect or impair, or prevent the vesting of, any
of the Issuing Lenders or its Affiliates rights or powers hereunder. Nothing in the preceding
sentence shall relieve the Issuing Lender from liability for the Issuing Lenders gross negligence
or willful misconduct in connection with actions or omissions described in such clauses (i) through
(viii) of such sentence. In no event shall the Issuing Lender or its Affiliates be liable to any
Loan Party for any indirect, consequential, incidental, punitive, exemplary or special damages or
expenses (including without limitation attorneys fees), or for any damages resulting from any
change in the value of any property relating to a Letter of Credit.
Without limiting the generality of the foregoing, the Issuing Lender and each of its
Affiliates (i) may rely on any oral or other communication believed in good faith by the Issuing
Lender or such Affiliate to have been authorized or given by or on behalf of the applicant for a
Letter of Credit, (ii) may honor any presentation if the documents presented appear on their face
substantially to comply with the terms and conditions of the relevant Letter of Credit; (iii) may
honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was
pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise,
and shall be entitled to reimbursement to the same extent as if such presentation had initially
been honored, together with any interest paid by the Issuing Lender or its Affiliate; (iv) may
honor any drawing that is payable upon presentation of a statement advising negotiation or payment,
upon receipt of such statement (even if such statement indicates that a draft or other document is
being delivered separately), and shall not be liable for any failure of any such draft or other
document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any
paying or negotiating bank claiming that it rightfully honored under the laws or practices of the
place where such bank is located; and (vi) may settle or adjust any claim or demand made on the
Issuing Lender or its Affiliate in any way related to any order issued at the applicants request
to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar
document (each an Order) and honor any drawing in connection with any Letter of Credit that is
the subject of such Order, notwithstanding that any drafts or other documents presented in
connection with such Letter of Credit fail to conform in any way with such Letter of Credit.
In furtherance and extension and not in limitation of the specific provisions set forth above,
any action taken or omitted by the Issuing Lender or its Affiliates under or in connection with the
Letters of Credit issued by it or any documents and certificates delivered thereunder, if taken or
omitted in good faith, shall not put the Issuing Lender or its Affiliates under any resulting
liability to the Borrowers or any Lender.
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2.5.10 Issuing Lender Reporting Requirements. Any Issuing Lender other than PNC shall, on the first Business Day of each month, provide to
Administrative Agent and Borrowers a schedule of the Letters of Credit issued by it, in form and
substance satisfactory to
Administrative Agent, showing the date of issuance of each Letter of Credit, the account party (if
applicable), the original face amount (if any) and the expiration date of any Letter of Credit of
such Lender outstanding at any time during the preceding month, and any other information relating
to such Letters of Credit that the Administrative Agent may request.
2.5.11 Cash Collateral. Upon the request of Administrative Agent, (i) if any Issuing Lender has honored any full or
partial drawing request under any Letter of Credit and such drawing has resulted in a Letter of
Credit Borrowing which has not been repaid by the Borrowers in accordance with Section 2.5.3.3
[Disbursements, Reimbursement], or (ii) if, on the Expiration Date, any Letter of Credit Obligation
for any reason remains outstanding, Borrowers shall, in each case, immediately Cash Collateralize
the then outstanding amount of all Letter of Credit Obligations. Each Borrower hereby grants to
Administrative Agent, for the benefit of each Issuing Lender and the Lenders, a security interest
in all cash collateral pledged pursuant to this Section or otherwise under this Agreement.
2.6 Utilization of Commitments in Optional Currencies.
2.6.1 Periodic Computations of Dollar Equivalent Amounts of Revolving Credit Loans and
Letters of Credit Outstanding; Repayment in Same Currency.
For purposes of determining utilization of the Revolving Credit Commitments, the Administrative
Agent will determine the Dollar Equivalent amount of (i) proposed Letters of Credit to be
denominated in an Optional Currency as of the requested Borrowing Date or date of issuance, as the
case may be, (ii) Letters of Credit Outstanding denominated in an Optional Currency as of the last
Business Day of each month, and (iii) outstanding Revolving Credit Loans denominated in an Optional
Currency as of the end of each Interest Period and, in the case of Swing Loans, as and when the
Administrative Agent determines such computation is necessary (each such date under clauses (i)
through (iii), and any other date on which the Administrative Agent determines it is necessary or
advisable to make such computation, in its sole discretion, is referred to as a Computation
Date). Unless otherwise provided in this Agreement, each Loan and Reimbursement Obligation shall
be repaid or prepaid in the same currency in which the Loan or Reimbursement Obligation was made.
2.6.2 Notices From Lenders That Optional Currencies Are Unavailable to Fund New
Loans.
The Lenders shall be under no obligation to make the Revolving Credit Loans requested by the
Borrowers which are denominated in an Optional Currency if any Lender notifies the Administrative
Agent by 5:00 p.m. four (4) Business Days prior to the Borrowing Date for such Revolving Credit
Loans that such Lender cannot provide its Revolving Credit Ratable Share of such Revolving Credit
Loans in such Optional Currency. In the event the Administrative Agent timely receives a notice
from a Lender pursuant to the preceding sentence, the Administrative Agent will notify the
Borrowers no later than 12:00 noon three (3) Business Days prior to the Borrowing Date for such
Revolving Credit Loans that the Optional Currency is not then available for such Revolving Credit
Loans, and the Administrative Agent shall promptly thereafter notify the Lenders of the same and
the Lenders shall not make such Revolving Credit Loans requested by the Borrowers under their Loan
Request. The Lenders shall also be under no obligation to make the Revolving Credit Loans
requested by the Borrowers to be denominated in an Optional Currency if the aggregate amount of
Revolving Credit Loans (i) in such Optional
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Currency, taking into account such requested Revolving
Credit Loans and all other Revolving Credit Loans then outstanding in such Optional Currency, would
exceed the individual Optional Currency Sublimit applicable to such requested Optional Currency, or
(ii) in all Optional Currencies, taking into account such requested Revolving Credit Loans and all other Revolving
Credit Loans then outstanding in all Optional Currencies, would exceed the aggregate Optional
Currency Sublimit applicable to all Optional Currencies.
2.6.3 Notices From Lenders That Optional Currencies Are Unavailable to Fund Renewals of
the Euro-Rate Option.
If the Borrowers deliver a Loan Request requesting that the Lenders renew the Euro-Rate Option
with respect to an outstanding Borrowing Tranche of Revolving Credit Loans denominated in an
Optional Currency, the Lenders shall be under no obligation to renew such Euro-Rate Option if any
Lender delivers to the Administrative Agent a notice by 5:00 p.m. four (4) Business Days prior to
the effective date of such renewal that such Lender cannot continue to provide Revolving Credit
Loans in such Optional Currency. In the event the Administrative Agent timely receives a notice
from a Lender pursuant to the preceding sentence, the Administrative Agent will notify the
Borrowers no later than 12:00 noon three (3) Business Days prior to the renewal date that the
renewal of such Revolving Credit Loans in such Optional Currency is not then available, and the
Administrative Agent shall promptly thereafter notify the Lenders of the same. If the
Administrative Agent shall have so notified the Borrowers that any such continuation of such
Revolving Credit Loans in such Optional Currency is not then available, any notice of renewal with
respect thereto shall be deemed withdrawn, and such Loans shall be redenominated into Loans in
Dollars at the Base Rate Option or Euro-Rate Option, at the Companys option on behalf of the
Borrowers (subject, in the case of the Euro-Rate Option, to compliance with Section 2.4 [Making
Revolving Credit Loans, Etc.] and Section 4.1 [Interest Rate Options]), with effect from the last
day of the Interest Period with respect to any such Loans. The Administrative Agent will promptly
notify the Borrowers and the Lenders of any such redenomination, and in such notice, the
Administrative Agent will state the aggregate Dollar Equivalent amount of the redenominated
Revolving Credit Loans in an Optional Currency as of the applicable Computation Date with respect
thereto and such Lenders Revolving Credit Ratable Share thereof.
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2.6.4 European Monetary Union.
2.6.4.1 Payments In Euros Under Certain Circumstances. If (i) any Optional Currency
ceases to be lawful currency of the nation issuing the same and is replaced by the Euro or (ii) any
Optional Currency and the Euro are at the same time recognized by any governmental authority of the
nation issuing such currency as lawful currency of such nation and the Administrative Agent or the
Required Lenders shall so request in a notice delivered to the Borrowers, then any amount payable
hereunder by any party hereto in such Optional Currency shall instead by payable in the Euro and
the amount so payable shall be determined by translating the amount payable in such Optional
Currency to the Euro at the exchange rate established by that nation for the purpose of
implementing the replacement of the relevant Optional Currency by the Euro (and the provisions
governing payments in Optional Currencies in this Agreement shall apply to such payment in the Euro
as if such payment in the Euro were a payment in an Optional Currency). Prior to the occurrence of
the event or events described in clause (i) or (ii) of the preceding sentence, each amount payable
hereunder in any Optional Currency will, except as otherwise provided herein, continue to be
payable only in that currency.
2.6.4.2 Additional Compensation Under Certain Circumstances. The Borrowers agree, at
the request of any Lender, to compensate such Lender for any loss, cost, expense or reduction in
return that such Lender shall reasonably determine shall be incurred or sustained by such Lender as
a result of the replacement of any Optional Currency by the Euro
and that would not have been incurred or sustained but for the transactions provided for
herein. A certificate of any Lender setting forth such Lenders determination of the amount or
amounts necessary to compensate such Lender shall be delivered to the Borrowers and shall be
conclusive absent manifest error so long as such determination is made on a reasonable basis. The
Borrowers shall pay such Lender the amount shown as due on any such certificate within ten (10)
days after receipt thereof.
2.6.5 Requests for Additional Optional Currencies.
The Borrowers may deliver to the Administrative Agent a written request that Revolving Credit
Loans hereunder also be permitted to be made in any other lawful currency (other than Dollars), in
addition to the currencies specified in the definition of Optional Currency herein,
provided that such currency must be freely traded in the offshore interbank foreign
exchange markets, freely transferable, freely convertible into Dollars and available to the Lenders
in the Relevant Interbank Market. The Administrative Agent will promptly notify the Lenders of any
such request promptly after the Administrative Agent receives such request. The Administrative
Agent will promptly notify the Borrowers of the acceptance or rejection by the Administrative Agent
and each of the Lenders of the Borrowers request. The requested currency shall be approved as an
Optional Currency hereunder only if the Administrative Agent and all of the Lenders approve of the
Borrowers request.
2.7 Provisions Applicable to All Loans.
2.7.1 Notes.
The Obligation of the Borrowers to repay the aggregate unpaid principal amount of the
Revolving Credit Loans and Swing Loans made to them by each Lender, together with interest thereon,
shall be evidenced by a revolving credit Note and Swing Loan Notes dated as of the Closing Date
(or, if later, the date such Lender becomes a Lender or Swing Loan Lender, as the case may be,
hereunder in accordance with this Agreement), payable to the order of such Lender in a face amount
equal to the Revolving Credit Commitment or
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Swing Loan Commitment, as applicable, of such Lender.
Upon request to the Administrative Agent made prior to the Closing Date (or, if later, the date
such Lender becomes a Lender or a Swing Loan Lender, as the case may be, hereunder in accordance
with this Agreement), any Lender may elect to evidence the aggregate unpaid principal amount of
all Revolving Credit Loans and Swing Loans made by it through the maintenance in the ordinary
course of business of accounts or records, which accounts or records shall be available to the
Administrative Agent to review promptly upon request, in lieu of receipt of original Notes. In the
event of any conflict between the accounts and records maintained by any Lender and the accounts
and records of the Administrative Agent with respect to such matters, the accounts and records of
the Administrative Agent shall control absent manifest error.
2.7.2 Use of Proceeds.
The proceeds of Revolving Credit Loans shall be used for repaying in full and terminating the
Prior Senior Credit Facility and financing working capital, permitted capital expenditures,
Permitted Acquisitions, the redemption, purchase or repurchase of 2015 Senior Notes and/or 2027
Convertible Notes and general corporate purposes (including the payment of fees and expenses
related to foregoing permitted purposes).
2.7.3 Commitment Fees.
Accruing from the date hereof until the Expiration Date, the Borrowers agree to pay in Dollars
to the Administrative Agent for the account of each Lender, a nonrefundable commitment fee (the
Commitment Fee) equal to the Applicable Commitment Fee Rate (computed on the basis of a year of
360 days and actual days
elapsed) multiplied by the average daily difference between the amount of (i) such Lenders
Revolving Credit Commitment and (ii) such Lenders Ratable Share of the Revolving Facility Usage
(except that for purposes of this computation, each Swing Loan Lenders Swing Loans shall be deemed
to be borrowed amounts under its Revolving Credit Commitment and not under the Revolving Credit
Commitments of the other Lenders); provided, however, that any Commitment Fee
accrued with respect to the Revolving Credit Commitment of a Defaulting Lender during the period
prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not be
payable by the Borrowers so long as such Lender shall be a Defaulting Lender except to the extent
that such Commitment Fee shall otherwise have been due and payable by the Borrowers prior to such
time; and provided further that no Commitment Fee shall accrue with respect to the
Revolving Credit Commitment of a Defaulting Lender so long as such Lender shall be a Defaulting
Lender. Subject to the proviso in the directly preceding sentence, all Commitment Fees shall be
payable in arrears on each Payment Date.
2.7.4 Joint and Several Obligations.
Subject to any limitations expressly set forth in Section 11.14 [Foreign Borrowers and
Guarantors] with respect to Foreign Borrowers and in any Guaranty Agreement of any Foreign
Guarantor with respect to Foreign Guarantors, all Obligations of the Borrowers and the Guarantors
are joint and several.
3. RESERVED
4. INTEREST RATES
4.1 Interest Rate Options. The Borrowers shall pay interest in respect of the outstanding unpaid principal amount of the
Loans as selected by them from the Base Rate Option or Euro-Rate Option set forth below applicable
to the Loans, it being understood that, subject to the provisions of this Agreement, the Borrowers
may select different Interest Rate Options and different Interest Periods to apply simultaneously
to the Loans comprising different Borrowing
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Tranches and may convert to or renew one or more
Interest Rate Options with respect to all or any portion of the Loans comprising any Borrowing
Tranche; provided that there shall not be at any one time outstanding more than twelve (12)
Borrowing Tranches in the aggregate among all of the Loans and provided further that if an
Event of Default exists and is continuing, the Borrowers may not request, convert to, or renew the
Euro-Rate Option for any Loans and all existing Borrowing Tranches bearing interest under the
Euro-Rate Option shall be converted as their Interest Periods expire to the Base Rate Option. If
at any time the designated rate applicable to any Loan made by any Lender exceeds such Lenders
highest lawful rate, the rate of interest on such Lenders Loan shall be limited to such Lenders
highest lawful rate. Interest on the principal amount of each Loan made in an Optional Currency
shall be paid by the Borrowers in such Optional Currency.
4.1.1 Revolving Credit Interest Rate Options; Swing Line Interest Rate.
Subject to Section 4.3 [Interest During Event of Default], the Borrowers shall have the right
to select from the following Interest Rate Options applicable to the Revolving Credit Loans except
that no Loan to which a Base Rate shall apply may be made in an Optional Currency:
(i) Revolving Credit Base Rate Option: A fluctuating rate per annum (computed on the
basis of a year of 365 or 366 days, as the case may be, and actual days elapsed) equal to the Base
Rate plus the Applicable Margin, such interest rate to change automatically from time to
time effective as of the effective date of each change in the Base Rate; or
(ii) Revolving Credit Euro-Rate Option: A rate per annum (computed on the basis of a
year of 360 days and actual days elapsed) equal to the Euro-Rate plus the Applicable
Margin; provided, however, that in the case of a Revolving Credit Loan which is
denominated in Canadian dollars, such rate per annum shall be calculated on the basis of a 365 day
year.
(iii) Swing Loans: Swing Loans shall bear interest at a rate per annum (computed on
the basis of a year of 360 days and actual days elapsed) equal to Daily Euro-Rate plus the
Applicable Margin with respect to Loans bearing interest at the Euro-Rate Option; provided,
however, that Swing Loans in Optional Currencies may, if necessary, bear interest based on an
alternative daily floating rate of interest agreed among the applicable Swing Loan Lenders and
Borrowers.
4.1.2 Rate Quotations.
The Borrowers may call the Administrative Agent on or before the date on which a Loan Request
is to be delivered to receive an indication of the rates then in effect, but it is acknowledged
that such projection shall not be binding on the Administrative Agent or the Lenders nor affect the
rate of interest which thereafter is actually in effect when the election is made.
4.2 Interest Periods.
At any time when the Borrowers shall select, convert to or renew a Euro-Rate Option, the
Borrowers shall notify the Administrative Agent thereof at least four (4) Business Days prior to
the effective date of such Interest Rate Option, with respect to a Loan in an Optional Currency,
and, in all other cases, three (3) Business Days prior to the effective date of such Euro-Rate
Option by delivering a Loan Request. The notice shall specify an Interest Period during which such
Interest Rate Option shall apply. Notwithstanding the preceding sentence, the following provisions
shall apply to any selection of, renewal of, or conversion to a Euro-Rate Option:
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4.2.1 Amount of Borrowing Tranche.
Each Borrowing Tranche of Loans under the Euro-Rate Option shall be in integral multiples of
$500,000 and not less than $1,000,000; and
4.2.2 Renewals.
In the case of the renewal of a Euro-Rate Option at the end of an Interest Period, the first
day of the new Interest Period shall be the last day of the preceding Interest Period, without
duplication in payment of interest for such day.
4.3 Interest During Event of Default.
To the extent permitted by Law, upon the occurrence of an Event of Default and until such time
such Event of Default shall have been cured or waived, and at the discretion of the Administrative
Agent (or as directed by the Required Lenders in their discretion) effective following notice to
the Borrowers:
4.3.1 Letter of Credit Fees, Interest Rate.
The Letter of Credit Fees and the rate of interest for each Loan otherwise applicable pursuant
to Section 2.5.2 [Letter of Credit Fees] or Section 4.1 [Interest Rate Options], respectively,
shall be increased either: (i) in the case of Letter of Credit Fees, if so directed by the
Required Lenders, by 2.00% per annum; or (ii) in the case of each Loan, by an amount equal to the
sum of (a) the excess, if any, of (x) the highest Applicable Margin set forth in Schedule
1.1(A) [Pricing Grid] with respect to Loans accruing interest based on the Base Rate Option,
over (y) the existing Applicable Margin for such Loan, expressed as a percentage per annum,
plus (b) if so directed by the Required Lenders, 2.00% per annum;
4.3.2 Other Obligations.
Each other Obligation hereunder if not paid when due shall bear interest at a rate per annum
equal to the sum of the rate of interest applicable under the Base Rate Option plus an
additional 2.00% per annum from the time such Obligation becomes due and payable and until it is
paid in full; and
4.3.3 Acknowledgment.
The Borrowers acknowledge that the increase in rates referred to in this Section 4.3
reflects, among other things, the fact that such Loans or other amounts have become a substantially
greater risk given their default status and that the Lenders are entitled to additional
compensation for such risk; and all such interest shall be payable by Borrowers upon demand by
Administrative Agent.
4.4 Euro-Rate Unascertainable; Illegality; Increased Costs; Deposits Not Available.
4.4.1 Unascertainable.
If on any date on which a Euro-Rate would otherwise be determined, the Administrative Agent
shall have determined that:
(i) adequate and reasonable means do not exist for ascertaining such Euro-Rate, or
(ii) a contingency has occurred which materially and adversely affects the London interbank
eurodollar market or the CDOR Market, the Administrative Agent shall have the rights specified in
Section 4.4.3 [Administrative Agents and Lenders Rights].
4.4.2 Illegality; Increased Costs; Deposits Not Available.
If at any time any Lender shall have determined that:
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(i) the making, maintenance or funding of any Loan to which a Euro-Rate Option applies has
been made impracticable or unlawful by compliance by such Lender in good faith with any Law or any
interpretation or application thereof by any Official Body or with any request or directive of any
such Official Body (whether or not having the force of Law), or
(ii) such Euro-Rate Option will not adequately and fairly reflect the cost to such Lender of
the establishment or maintenance of any such Loan, or
(iii) after making all reasonable efforts, deposits of the relevant amount in Dollars or in
the Optional Currency (as applicable) for the relevant Interest Period for a Loan, or to banks
generally, to which a Euro-Rate Option applies, respectively, are not available to such Lender with
respect to such Loan, or to banks generally, in the interbank eurodollar market,
then the Administrative Agent shall have the rights specified in Section 4.4.3 [Administrative
Agents and Lenders Rights].
4.4.3 Administrative Agents and Lenders Rights.
In the case of any event specified in Section 4.4.1 [Unascertainable] above, the
Administrative Agent shall promptly so notify the Lenders and the Borrowers thereof, and in the
case of an event specified in Section 4.4.2 [Illegality; Increased Costs; Deposits Not Available]
above, such Lender shall promptly so notify the Administrative Agent and endorse a certificate to
such notice as to the specific circumstances of such notice, and the Administrative Agent shall
promptly send copies of such notice and certificate to the other Lenders and the Borrowers. Upon
such date as shall be specified in such notice (which shall not be earlier than the date such
notice is given), the
obligation of (A) the Lenders, in the case of such notice given by the Administrative Agent,
or (B) such Lender, in the case of such notice given by such Lender, to allow the Borrowers to
select, convert to or renew a Euro-Rate Option or select on Optional Currency (as applicable) shall
be suspended until the Administrative Agent shall have later notified the Borrowers, or such Lender
shall have later notified the Administrative Agent, of the Administrative Agents or such Lenders,
as the case may be, determination that the circumstances giving rise to such previous determination
no longer exist. If at any time the Administrative Agent makes a determination under Section
4.4.1 [Unascertainable] and the Borrowers have previously notified the Administrative Agent of
their selection of, conversion to or renewal of a Euro-Rate Option and such Interest Rate Option
has not yet gone into effect, such notification shall be deemed to provide for selection of,
conversion to or renewal of the Base Rate Option otherwise available with respect to such Loans.
If any Lender notifies the Administrative Agent of a determination under Section 4.4.2
[Illegality; Increased Costs; Deposits Not Available], the Borrowers shall, subject to the
Borrowers indemnification Obligations under Section 5.10 [Indemnity], as to any Loan of the Lender
to which a Euro-Rate Option applies, on the date specified in such notice either (i) as applicable,
convert such Loan to the Base Rate Option otherwise available with respect to such Loan, or select
a different Optional Currency or Dollars, or (ii) prepay such Loan in accordance with Section 5.6
[Voluntary Prepayments]. Absent due notice from the Borrowers of conversion or prepayment, such
Loan shall automatically be converted to the Base Rate Option otherwise available with respect to
such Loan upon such specified date.
4.5 Selection of Interest Rate Options.
If the Borrowers fail to select a new Interest Period or Optional Currency to apply to any
Borrowing Tranche of Loans under the Euro-Rate Option at the expiration of an existing Interest
Period applicable to such Borrowing Tranche in
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accordance with the provisions of Section 4.2
[Interest Periods], the Borrowers shall be deemed to have converted such Borrowing Tranche to the
Base Rate Option, commencing upon the last day of the existing Interest Period.
4.6 Interest Act (Canada) Disclosure.
For the purposes of the Interest Act (Canada) and disclosure thereunder, whenever any interest
or any fee to be paid hereunder or in connection herewith is to be calculated on the basis of a
360-day year or any other period less than a full year, the yearly rate of interest to which the
rate used in such calculation is equivalent is the rate so used multiplied by the actual number of
days in the calendar year in which the same is to be ascertained and divided by 360 or the number
of days in such other period, as applicable. The rates of interest under this Agreement are
nominal rates, and not effective rates or yields. The principle of deemed reinvestment of interest
does not apply to any interest calculation under this Agreement.
4.7 Canadian Usury Provision.
If any provision of this Agreement would oblige a Canadian Borrower to make any payment of
interest or other amount payable to any Lender in an amount or calculated at a rate which would be
prohibited by law or would result in a receipt by that Lender of interest at a criminal rate
(as such terms are construed under the Criminal Code (Canada)), then, notwithstanding such
provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the
maximum amount or rate of interest, as the case may be, as would not be so prohibited by applicable
law or so result in a receipt by that Lender of interest at a criminal rate, such adjustment to
be effected, to the extent necessary (but only to the extent necessary), as follows:
(i) first, by reducing the amount or rate of interest; and
(ii) thereafter, by reducing any fees, commissions, costs, expenses, premiums and other
amounts required to be paid which would constitute interest for purposes of section 347 of the
Criminal Code (Canada).
4.8 Minimum Interest Clause for Swiss Borrowers.
The rates of interest provided for in this Agreement, insofar as they relate to the Swiss
Tranche, are minimum interest rates. When entering into this Agreement, the parties have assumed
that the interest payable by Swiss Borrowers at the rates set out in this Section or in other
Sections of this Agreement is not and will not become subject to Swiss Withholding Tax.
Notwithstanding that the parties hereto do not anticipate that any payment of interest will be
subject to Swiss Withholding Tax, such parties agree that, in the event that (a) Swiss Withholding
Tax is imposed on interest payments by any Swiss Borrower and (b) such Swiss Borrower is unable,
solely by reason of the Swiss Withholding Tax Act, to comply with Section 5.9.1 [Payments Free of
Taxes], then
(i) the applicable interest rate in relation to that interest payment shall be (A) the
interest rate which would have applied to that interest payment as provided for in Section 4.1
[Interest Rate Options] divided by (B) 1 minus the rate at which the relevant Tax deduction is
required to be made under Swiss domestic tax law and/or applicable double taxation treaties (where
the rate at which the relevant Tax deduction is required to be made is for this purpose expressed
as a fraction of 1); and
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(ii) the Swiss Borrower shall (A) pay the relevant interest at the adjusted rate in accordance
with paragraph (i) above, (B) make the Tax deduction on the interest so recalculated and (C) all
references to a rate of interest under the Agreement shall be construed accordingly.
To the extent that interest payable by a Swiss Borrower under this Agreement becomes subject
to Swiss Withholding Tax, at the Borrowers expense, the Parties shall promptly cooperate in
completing any procedural formalities (including submitting forms and documents required by the
appropriate Tax authority) to the extent possible and necessary for the specific Swiss Borrower to
obtain the tax ruling from Swiss Federal Tax Administration.
All the other provisions of Section 5.9 [Taxes] shall otherwise apply except for the gross-up
requirement provided for under Section 5.9.1 [Payments Free of Taxes].
5. PAYMENTS
5.1 Payments.
All payments and prepayments to be made in respect of principal, interest, Commitment Fees,
Letter of Credit Fees, Administrative Agents Fee or other fees or amounts due from the Borrowers
hereunder shall be payable prior to 11:00 a.m. on the date when due without presentment, demand,
protest or notice of any kind, all of which are hereby expressly waived by the Borrowers, and
without set-off, counterclaim or other deduction of any nature, and an action therefor shall
immediately accrue. Such payments shall be made to the Administrative Agent at the Principal
Office for the account of the Swing Loan Lenders with respect to the Swing Loans and for the
ratable accounts of the Lenders with respect to the Revolving Credit Loans in Dollars (unless
otherwise provided herein) and in immediately
available funds, and the Administrative Agent shall promptly distribute such amounts to the
Lenders in immediately available funds; provided that in the event payments are received by
11:00 a.m. by the Administrative Agent with respect to the Loans and such payments are not
distributed to the Lenders on the same day received by the Administrative Agent, the Administrative
Agent shall pay the Lenders the Federal Funds Effective Rate in the case of Loans or other amounts
due in Dollars, or the Overnight Rate in the case of Loans or other amounts due in an Optional
Currency, with respect to the amount of such payments for each day held by the Administrative Agent
and not distributed to the Lenders. The Administrative Agents and each Lenders statement of
account, ledger or other relevant record shall, in the absence of manifest error, be conclusive as
the statement of the amount of principal of and interest on the Loans and other amounts owing under
this Agreement and shall be deemed an account stated.
5.2 Pro Rata Treatment of Lenders.
Each borrowing of Revolving Credit Loans shall be allocated to each Lender according to its
Ratable Share, and each selection of, conversion to, or renewal of, any Interest Rate Option and
each payment or prepayment by the Borrowers with respect to principal, interest, Commitment Fees,
Letter of Credit Fees, or other fees (except for the Administrative Agents Fee and the Issuing
Lenders fronting fee) or amounts due from the Borrowers hereunder to the Lenders with respect to
the Commitments and Loans, shall (except as otherwise may be provided with respect to a Defaulting
Lender and except as provided in Section 4.3 [Administrative Agents and Lenders Rights] in the
case of an event specified in Section 4.4 [Euro-Rate Unascertainable; Etc.], Section 5.6.2
[Replacement of a Lender] or Section 5.8 [Increased Costs]) be payable ratably among the Lenders
entitled to such payment in accordance with the amount of principal, interest, Commitment Fees,
Letter of Credit Fees, and other fees or amounts then due or payable to such Lenders as set forth
in this Agreement.
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Notwithstanding any of the foregoing, each borrowing or payment or prepayment
by the Borrowers of principal, interest, fees or other amounts due from the Borrowers solely with
respect to Swing Loans shall be made by or to the Swing Loan Lenders according to Section 2.4.5
[Borrowings to Repay Swing Loans].
5.3 Sharing of Payments by Lenders.
If any Lender shall, by exercising any right of setoff, counterclaim or bankers lien, by
receipt of voluntary payment, by realization upon security, or by any other non-pro rata source,
obtain payment in respect of any principal of or interest on any of its Loans or other obligations
hereunder resulting in such Lenders receiving payment of a proportion of the aggregate amount of
its Loans and accrued interest thereon or other such obligations greater than its pro rata share of
the amount such Lender is entitled thereto, then the Lender receiving such greater proportion shall
(a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Loans and such other obligations of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them, provided that:
(i) if any such participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase price restored to the
extent of such recovery, together with interest or other amounts, if any, required by Law
(including court order) to be paid by the Lender or the holder making such purchase; and
(ii) the provisions of this Section 5.3 shall not be construed to apply to (x) any payment
made by the Loan Parties pursuant to and in accordance with the express terms of the Loan Documents
or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or Participation Advances to any assignee or participant, other
than to the Borrowers or any Subsidiary thereof (as to which the provisions of this Section 5.3
shall apply).
Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so
under applicable Law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against each Loan Party rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of each Loan Party in the
amount of such participation.
Any Lender that fails at any time to comply with the provisions of this Section 5.3 shall be
deemed a Defaulting Lender until such time as it performs its obligations hereunder and is not
otherwise a Defaulting Lender for any other reason. A Defaulting Lender shall be deemed to have
assigned any and all payments due to it from the Borrower, whether on account of or relating to
outstanding Loans, Letters of Credit, interest, fees or otherwise, to the remaining non-defaulting
Lenders for application to, and reduction of, their respective Ratable Share of all outstanding
Loans and other unpaid
Obligations of any of the Loan Parties. The Defaulting Lender hereby
authorizes the Administrative Agent to distribute such payments to the non-defaulting Lenders in
proportion to their respective Ratable Share of all outstanding Loans and other unpaid Obligations
of any of the Loan Parties to which such Lenders are entitled. A Defaulting Lender shall be deemed
to have satisfied the provisions of this Section 5.3 when and if, as a result of application of
the assigned payments to all outstanding Loans and other unpaid
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Obligations of any of the Loan
Parties to the non-defaulting Lenders, the Lenders respective Ratable Share of all outstanding
Loans and unpaid Obligations have returned to those in effect immediately prior to such violation
of this Section 5.3.
5.4 Presumptions by Administrative Agent.
Unless the Administrative Agent shall have received notice from the Borrowers prior to the
date on which any payment is due to the Administrative Agent for the account of the Lenders or the
Issuing Lender hereunder that the Borrowers will not make such payment, the Administrative Agent
may assume that the Borrowers have made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Lender, as the case may
be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each
of the Lenders or the Issuing Lender, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such Lender or the Issuing
Lender, with interest thereon, for each day from and including the date such amount is distributed
to it to but excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate (or, for payments in an Optional Currency, the Overnight Rate) and a
rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation.
5.5 Interest Payment Dates.
Interest on Loans to which the Base Rate Option applies shall be due and payable in arrears on
each Payment Date. Interest on Loans to which the Euro-Rate Option applies shall be due and
payable on the last day of each Interest Period for those Loans and, if such Interest Period is
longer than three (3) Months, also on the 90th day of such Interest Period. Interest on mandatory
prepayments of principal under Section 5.7 [Mandatory
Prepayments and Related Commitment Reductions] shall be due on the date such mandatory
prepayment is due. Interest on the principal amount of each Loan or other monetary Obligation
shall be due and payable on demand after such principal amount or other monetary Obligation becomes
due and payable (whether on the stated Expiration Date, upon acceleration or otherwise).
5.6 Voluntary Prepayments.
5.6.1 Right to Prepay.
The Borrowers shall have the right at their option from time to time to prepay the Loans in
whole or part without premium or penalty (except as provided in Section 5.6.2 [Replacement of a
Lender] below, in Section 5.8 [Increased Costs] and Section 5.10 [Indemnity]). Whenever the
Borrowers desire to prepay any part of the Loans, they shall provide a prepayment notice to the
Administrative Agent by 12:00 p.m. on the date of prepayment of the Revolving Credit Loans, and at
least four (4) Business Days prior to the date of prepayment of any Loans in an Optional Currency,
or no later than 1:00 p.m. on the date of prepayment of Swing Loans, setting forth the following
information:
(w) the date, which shall be a Business Day, on which the proposed prepayment
is to be made;
(x) a statement indicating the application of the prepayment between the
Revolving Credit Loans and Swing Loans;
(y) a statement indicating the application of the prepayment between Loans to
which the Base Rate Option applies and Loans to which the Euro-Rate Option applies;
and
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(z) the total principal amount of such prepayment, which shall not be less than
the lesser of (i) the Revolving Facility Usage or $500,000 for any Revolving Credit
Loan or (ii) $100,000 for any Swing Loan.
All prepayment notices shall be irrevocable. The principal amount of the Loans for which a
prepayment notice is given, together with interest on such principal amount except with respect to
Loans to which the Base Rate Option applies, shall be due and payable on the date specified in such
prepayment notice as the date on which the proposed prepayment is to be made. Except as provided
in Section 4.4.3 [Administrative Agents and Lenders Rights], if the Borrowers prepay a Loan but
fail to specify the applicable Borrowing Tranche which the Borrowers are prepaying, the prepayment
shall be applied first to Loans to which the Base Rate Option applies, and then to Loans to which
the Euro-Rate Option applies which are not in Optional Currencies, and then to Loans in Optional
Currencies. Any prepayment hereunder shall be subject to the Borrowers Obligation to indemnify
the Lenders under Section 5.10 [Indemnity]. Prepayments shall be made in the currency in which
such Loan was made, unless otherwise directed by the Administrative Agent. Revolving Credit Loan
prepayments shall not result in a reduction of the Revolving Credit Commitments unless the
Borrowers have so elected pursuant to Section 2.1.1.3 [Reduction in Revolving Credit Commitments],
or as may otherwise be provided in this Agreement.
5.6.2 Replacement of a Lender.
In the event any Lender (i) gives notice under Section 4.4 [Euro-Rate Unascertainable, Etc.],
(ii) requests compensation under Section 5.8 [Increased Costs], or requires the Borrowers to pay
any additional amount to any Lender or any Official Body for the account of any Lender pursuant to
Section 5.9 [Taxes], (iii) is a Defaulting Lender, (iv) becomes subject to the control of an
Official Body (other than normal
and customary supervision), or (v) is a Non-Consenting Lender referred to in Section 11.1
[Modifications, Amendments or Waivers], then in any such event the Borrowers may, at their sole
expense, upon notice to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 11.8 [Successors and Assigns]), all of its interests, rights and
obligations under this Agreement and the related Loan Documents to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such assignment),
provided that:
(i) the Borrowers shall have paid to the Administrative Agent the assignment fee specified in
Section 11.8 [Successors and Assigns];
(ii) such Lender shall have received payment of an amount equal to the outstanding principal
of its Loans and Participation Advances, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents (including any amounts under
Section 5.10 [Indemnity]) from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrowers (in the case of all other amounts);
(iii) in the case of any such assignment resulting from a claim for compensation under Section
5.8.1 [Increased Costs Generally] or payments required to be made pursuant to Section 5.9
[Taxes], such assignment will result in a reduction in such compensation or payments thereafter;
and
(iv) such assignment does not conflict with applicable Law.
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A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Borrowers to
require such assignment and delegation cease to apply.
5.7 Mandatory Prepayments and Related Commitment Reductions.
5.7.1 Sale of Assets.
Within five (5) Business Days of any sale of assets by any Loan Party or any of its
Subsidiaries (other than an Excluded Subsidiary) authorized by clause (viii) of Section 8.2.7
[Dispositions of Assets or Subsidiaries] resulting in Net Cash Proceeds in excess of $15,000,000 in
the aggregate in any fiscal year or any other sale of assets not permitted under Section 8.2.7
[Disposition of Assets or Subsidiaries], if the proceeds are not intended by such Loan Party to be
used within 270 days for the purchase of replacement of assets (or on such 270th day if the Loan
Parties intended to use such proceeds for such replacement but fail to do so within such 270-day
period), the Borrowers shall prepay an aggregate principal amount of Loans (or Dollar Equivalent
thereof, as applicable) equal to 100% of the Net Cash Proceeds of such sale immediately upon
receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth
below in this Section 5.7); provided that at any time the Consolidated Leverage Ratio, as
of the fiscal quarter most recently ended prior to such sale for which a Compliance Certificate has
been delivered pursuant to Section 8.3.3 [Certificate of the Company], is equal to or less than
2.25 to 1.00 and no Event of Default exists, then such prepayment otherwise required as the result
of a sale of assets authorized by Section 8.2.7(viii) shall not be required.
5.7.2 Debt Issuances.
Upon the incurrence or issuance by any Loan Party or any of its Subsidiaries (other than an
Excluded Subsidiary) of any Indebtedness in excess of $15,000,000 in the aggregate in any fiscal
year authorized by Section 8.2.1(x) or any other incurrence or issuance of Indebtedness by any Loan
Party or any of its Subsidiaries not permitted to be incurred or issued in accordance with Section
8.2.1 [Indebtedness], the Borrowers shall prepay an aggregate principal amount of Loans (or Dollar
Equivalent thereof, as applicable) equal to 100% of all Net Cash Proceeds received therefrom
immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be
applied as set forth below in this Section 5.7); provided that if the Consolidated
Leverage Ratio, as of the fiscal quarter most recently ended prior to such issuance for which a
Compliance Certificate has been delivered pursuant to Section 8.3.3 [Certificate of the Company],
is equal to or less than 2.25 to 1.00 and no Event of Default exists, then such prepayment
otherwise required as the result of the incurrence or issuance of any Indebtedness authorized by
Section 8.2.1(x) shall not be required.
5.7.3 Equity Issuances.
Upon the sale or issuance by any Loan Party or any of its Subsidiaries of any Equity Interests
(other than sales or issuances expressly permitted to be consummated in accordance with Section
8.2.12 [Issuance of Stock]), the Borrowers shall prepay an aggregate principal amount of Loans (or
Dollar Equivalent thereof, as applicable) equal to 50% of all Net Cash Proceeds received therefrom
immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be
applied as set forth below in this Section 5.7); provided that if the Consolidated
Leverage Ratio, as of the fiscal quarter most recently ended prior to such issuance for which a
Compliance Certificate has been delivered pursuant to Section 8.3.3 [Certificate of the Company],
is equal to or less than 2.25 to 1.00 and no Event of Default exists, then such prepayment shall
not be required.
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5.7.4 Material Recovery Events.
Upon the receipt of proceeds of any Material Recovery Event by or paid to or for the account
of any Loan Party or any Subsidiary of a Loan Party, not otherwise described in a preceding section
of this Section 5.7, if the recovered proceeds are not intended by such Loan Party to be used
within 270 days for the repair, replacement or restoration of damaged property or in the case of a
Material Recovery Event consisting of a tax refund, to pay taxes (or on such 270th day if the
Borrowers intended to use such proceeds for such repair, replacement, restoration or payment of
taxes but fail to so use all such proceeds within such 270-day period), the Borrowers shall prepay
an aggregate principal amount of Loans (or Dollar Equivalent thereof, as applicable) equal to 100%
of all Net Cash Proceeds (or such lesser amount as shall not have been used as permitted hereunder
to repair, replace or restore damaged property or payment of taxes) received therefrom immediately
upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set
forth below in this Section 5.7); provided that if the Consolidated Leverage Ratio, as of
the fiscal quarter most recently ended prior to such issuance for which a Compliance Certificate
has been delivered pursuant to Section 8.3.3 [Certificate of the Company], is equal to or less
than 2.25 to 1.00 and no Event of Default exists, then such prepayment shall not be required.
5.7.5 Currency Fluctuations.
If on any Computation Date, the sum of the Dollar Equivalent Revolving Facility Usage is
greater than the Revolving Credit Commitments (or, in the case of Swing Loans, the sum of the
Dollar Equivalent Swing Loans is greater than any of the limitations thereupon set forth in Section
2.1.2.2 [Swing Loans in Optional Currencies]) as a result of a change in exchange rates between one
(1) or more Optional Currencies and Dollars, then the Administrative Agent shall notify the
Borrowers of the same. Subject to Section 2.4.5 [Borrowings to Repay Swing Loans] if applicable
with respect to Swing
Loans, the Borrowers shall pay or prepay the Revolving Credit Loans (subject to Borrowers
indemnity obligations contained in this Agreement, including, without limitation, under Section
5.8 [Increased Costs], Section 5.9 [Taxes] and Section 5.10 [Indemnity]) within three (3)
Business Days after receiving such notice such that the sum of the Dollar Equivalent Revolving
Facility Usage no longer exceeds the aggregate Revolving Credit Commitments (or, in the case of
Swing Loans, such other limitations thereupon set forth in Section 2.1.2.2 [Swing Loans in Optional
Currencies]).
5.7.6 Application of Payments.
5.7.6.1 Application Among Interest Rates and Currencies. All prepayments required
pursuant to this Section 5.7 shall first be applied among the Interest Rate Options to the
principal amount of the applicable Loans subject to the Base Rate Option, then to Loans denominated
in Dollars and subject to a Euro-Rate Option and then to Loans of Optional Currencies subject to
the Euro-Rate Option, and the Borrowers will be subject to the indemnity obligation set forth in
Section 5.8 [Increased Costs] and Section 5.9 [Taxes]. In accordance with Section 5.10
[Indemnity], each Borrower shall indemnify the Lenders for any loss or expense, including loss of
margin, incurred with respect to any such prepayments applied against Loans subject to a Euro-Rate
Option on any day other than the last day of the applicable Interest Period.
5.7.6.2 Application of Prepayments. All prepayments pursuant to this Section 5.7
shall be applied to reduce the Revolving Credit Loans (without a permanent corresponding Revolving
Credit Commitment reduction unless otherwise provided in this Agreement).
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5.7.6.3 No Deemed Cure. The payment of any mandatory prepayment as required by this
Section 5.7 shall not be deemed to cure any Event of Default caused under another provision of
this Agreement by the same occurrence which gave rise to the mandatory prepayment obligation under
this Section 5.7.
5.8 Increased Costs.
5.8.1 Increased Costs Generally.
If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance
charge or similar requirement against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve requirement reflected in the
Euro-Rate) or the Issuing Lender;
(ii) subject any Lender or the Issuing Lender to any tax of any kind whatsoever with respect
to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any Loan under
the Euro-Rate Option made by it, or change the basis of taxation of payments to such Lender or the
Issuing Lender in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section
5.9 [Taxes] and the imposition of, or any change in the rate of, any Excluded Tax payable by such
Lender or the Issuing Lender); or
(iii) impose on any Lender, the Issuing Lender or the London interbank market any other
condition, cost or expense affecting this Agreement or any Loan under the Euro-Rate Option made by
such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Loan under the Euro-Rate Option (or of maintaining its obligation to make any such
Loan), or to increase the cost to such Lender or the Issuing Lender of participating in, issuing or
maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue
any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or
the Issuing Lender hereunder (whether of principal, interest or any other amount) then, upon
request of such Lender or the Issuing Lender, the Borrowers will pay to such Lender or the Issuing
Lender, as the case may be, such additional amount or amounts as will compensate such Lender or the
Issuing Lender, as the case may be, for such additional costs incurred or reduction suffered.
5.8.2 Capital Requirements.
If any Lender or the Issuing Lender determines that any Change in Law affecting such Lender or
the Issuing Lender or any lending office of such Lender or such Lenders or the Issuing Lenders
holding company, if any, regarding capital requirements has or would have the effect of reducing
the rate of return on such Lenders or the Issuing Lenders capital or on the capital of such
Lenders or the Issuing Lenders holding company, if any, as a consequence of this Agreement, the
Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by,
such Lender, or the Letters of Credit issued by the Issuing Lender, to a level below that which
such Lender or the Issuing Lender or such Lenders or the Issuing Lenders holding company could
have achieved but for such Change in Law (taking into consideration such Lenders or the Issuing
Lenders policies and the policies of such Lenders or the Issuing Lenders holding company with
respect to capital adequacy), then from time to time the Borrowers will pay to such Lender or the
Issuing Lender, as the case may be, such additional amount or amounts as will compensate such
Lender or the
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Issuing Lender or such Lenders or the Issuing Lenders holding company for any such
reduction suffered.
5.8.3 Certificates for Reimbursement; Repayment of Outstanding Loans; Borrowing of New
Loans.
A certificate of a Lender or the Issuing Lender setting forth the amount or amounts necessary
to compensate such Lender or the Issuing Lender or its holding company, as the case may be, as
specified in Section 5.8.1 [Increased Costs Generally] or Section 5.8.2 [Capital Requirements]
and in reasonable detail the calculations necessary to determine such amount or amounts and
delivered to the Borrowers shall be conclusive absent manifest error. The Borrowers shall pay such
Lender or the Issuing Lender, as the case may be, the amount shown as due on any such certificate
within ten (10) days after receipt thereof.
5.8.4 Delay in Requests.
Failure or delay on the part of any Lender or the Issuing Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lenders or the Issuing Lenders
right to demand such compensation, provided that the Borrowers shall not be required to
compensate a Lender or the Issuing Lender pursuant to this Section for any increased costs incurred
or reductions suffered more than six(6) months prior to the date that such Lender or the Issuing
Lender, as the case may be, notifies the Borrowers of the Change in Law giving rise to such
increased costs or reductions and of such Lenders or the Issuing Lenders intention to claim
compensation therefor (except that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the six (6) month period referred to above shall be extended to
include the period of retroactive effect thereof).
5.9 Taxes.
5.9.1 Payments Free of Taxes.
Any and all payments by or on account of any obligation of the Borrowers hereunder or under
any other Loan Document shall be made free and clear of and without reduction or withholding for
any Indemnified Taxes or Other Taxes; provided that if the Borrowers shall be required by
applicable Law to deduct or withhold any Indemnified Taxes (including any Other Taxes) from such
payments, then (i) the sum payable shall be increased as necessary so that after making all
required deductions and withholdings (including deductions and withholdings applicable to
additional sums payable under this Section), the Administrative Agent, Lender or Issuing Lender, as
the case may be, receives a net payment equal to the amount it would have received had no such
deductions or withholdings been made, (ii) the Borrowers shall make such deductions and
withholdings and (iii) the Borrowers shall timely pay the full amount deducted to the relevant
Official Body in accordance with applicable Law. For the avoidance of doubt, Borrowers
obligations hereunder shall apply regardless of whether the Indemnified Taxes or other Taxes are an
obligation of any Borrower or of any Lender. Each Foreign Borrower undertakes to provide the
Administrative Agent, promptly upon request, with such documents as may be reasonably necessary
under any Law or treaty for the availability of any relief from the a foreign jurisdiction
withholding or other applicable tax.
Each Lender participating in any Loan to a Swiss Borrower represents and warrants as at the
date of this Agreement that it is a Qualifying Bank or, if participating in any Loan as a Permitted
Non-Qualifying Lender, that any information given by it to all Swiss Borrowers to determine whether
they would constitute one (1) person only for the purposes of the Swiss Bank Rules is accurate in
all material respects and each Lender becoming a Lender by assignment or transfer under Section
11.8.2 [Assignments by Lenders] shall represent and warrant as at the
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effective date of such
assignment or transfer that it is a Qualifying Bank by delivery of its Assignment and Assumption
Agreement or, if it is a Permitted Non-Qualifying Lender, that any information given by it to the
Swiss Borrowers to determine compliance with the Swiss Bank Rules is accurate in all material
respects.
5.9.2 Payment of Other Taxes by the Borrowers.
Without limiting the provisions of Section 5.9.1 [Payments Free of Taxes] above, the
Borrowers shall timely pay any Other Taxes to the relevant Official Body in accordance with
applicable Law.
5.9.3 Indemnification by the Borrowers.
The Borrowers shall indemnify the Administrative Agent, each Lender and the Issuing Lender,
within ten (10) days after demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section 5.9) paid by the Administrative Agent, such Lender or the Issuing
Lender, as the case may be, and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Official Body. A certificate as to the amount of such
payment or liability delivered to the Borrowers by a Lender or the Issuing Lender (with a copy to
the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a
Lender or the Issuing Lender, shall be conclusive absent manifest error.
5.9.4 Evidence of Payments.
As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the Borrowers
to an Official Body, the Borrowers shall
deliver to the Administrative Agent the original or a certified copy of a receipt issued by
such Official Body evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative Agent.
5.9.5 Status of Lenders.
Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under
the Law of the jurisdiction in which each Borrower is resident for tax purposes, or any treaty to
which such jurisdiction is a party, with respect to payments hereunder or under any other Loan
Document shall deliver to the Borrowers (with a copy to the Administrative Agent), at the time or
times prescribed by applicable Law or reasonably requested by the Borrowers or the Administrative
Agent, such properly completed and executed documentation prescribed by applicable Law as will
permit such payments to be made without withholding or at a reduced rate of withholding.
Notwithstanding the submission of a such documentation claiming a reduced rate of or exemption from
U.S. withholding tax, the Administrative Agent shall be entitled to withhold United States federal
income taxes at the full 30% withholding rate if in its reasonable judgment it is required to do so
under the due diligence requirements imposed upon a withholding agent under § 1.1441-7(b) of the
United States Income Tax Regulations. Further, the Administrative Agent is indemnified under §
1.1461-1(e) of the United States Income Tax Regulations against any claims and demands of any
Lender or assignee or participant of a Lender for the amount of any tax it deducts and withholds in
accordance with regulations under § 1441 of the Internal Revenue Code. In addition, any Lender, if
requested by the Borrowers or the Administrative Agent, shall deliver such other documentation
prescribed by applicable Law or reasonably requested by the Borrowers or the Administrative Agent
as will enable the Borrowers or the Administrative Agent to determine whether or not such Lender is
subject to backup withholding or information reporting requirements.
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If the Administrative Agent, any Lender or the Issuing Lender determines, in good faith and in
its sole discretion, that it has received a refund of any taxes in respect of or calculated with
reference to Indemnified Taxes or Other Taxes as to which it has been indemnified by a Loan Party
or with respect to which a Loan Party has paid additional amounts
pursuant to this Section 5.9, it
shall pay over such refund to such Loan Party (but only to the extent of indemnity payments made,
or additional amounts paid, by such Loan Party under this
Section 5.9 with respect to the
Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of
the Administrative Agent, such Lender or the Issuing Lender (including any Taxes imposed with
respect to such refund) as is determined by the Administrative Agent, such Lender or the Issuing
Lender in good faith and in its sole discretion, and without interest (other than any interest paid
by the relevant Governmental Authority with respect to such refund); provided that such
Loan Party, upon the request of the Administrative Agent, such Lender or the Issuing Lender, agrees
to repay as soon as reasonably practicable the amount paid over to such Loan Party (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority) to the
Administrative Agent, such Lender or the Issuing Lender in the event the Administrative Agent, such
Lender or the Issuing Lender is required to repay such refund to such Governmental Authority. This
Section shall not be construed to require the Administrative Agent, any Lender or the Issuing
Lender to make available its tax returns (or any other information relating to its Taxes which it
deems confidential) to the Loan Parties or any other Person.
Without limiting the generality of the foregoing, in the event that any Borrower is resident
for tax purposes in the United States of America, any Foreign Lender shall deliver to the
Borrower and the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the request of the Borrowers or the Administrative
Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is
applicable:
(i) two (2) duly completed valid originals of IRS Form W-8BEN claiming eligibility for
benefits of an income tax treaty to which the United States of America is a party,
(ii) two (2) duly completed valid originals of IRS Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio
interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender
is not (A) a bank within the meaning of section 881(c)(3)(A) of the Code, (B) a 10 percent
shareholder of any Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a
controlled foreign corporation described in section 881(c)(3)(C) of the Code and (y) two (2) duly
completed valid originals of IRS Form W-8BEN,
(iv) any other form prescribed by applicable Law as a basis for claiming exemption from or a
reduction in United States Federal withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable Law to permit the Borrowers to determine the
withholding or deduction required to be made, or
(v) to the extent that any Lender is not a Foreign Lender, such Lender shall submit to the
Administrative Agent two (2) originals of an IRS Form W-9 or any other form prescribed by
applicable Law demonstrating that such Lender is not a Foreign Lender.
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If a payment made to a Lender under this Agreement would not be subject (in whole or in part)
to U.S. federal withholding tax imposed by FATCA if such Lender were to comply with the applicable
reporting or disclosure requirements of FATCA (including those contained in Section 1471(b) or
1472(b) of the Code, as applicable), such Lender shall deliver to the Company and Administrative
Agent, at the time or times prescribed by Law and at such time or times reasonably requested by the
Company or Administrative Agent, such documentation or certifications prescribed by applicable Law
(including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation
or certifications reasonably requested by the Company or Administrative Agent as may be necessary
for the Company or Administrative Agent to comply with its obligations to withhold or report under
FATCA, to determine that such Lender has complied with such Lenders obligations under FATCA, or to
determine the amount (if any) to deduct and withhold from such payment.
5.9.6 Lenders Cooperation in Tax Matters.
Promptly upon request by the Administrative Agent, at the Borrowers expense, each of the
Lenders agrees to cooperate in completing any procedural formalities necessary for any Loan Party
to obtain authorization to make any payments under this Agreement without any deduction or
withholding for or on account of taxes from a payment under a Loan Document. Each of the Lenders
further agrees to provide such information as any Swiss Borrower may reasonably request from time
to time to determine such Swiss Borrowers compliance with Swiss Bank Rules.
Within thirty (30) days after request by any Lender that holds a passport under the HMRC DT
Treaty Passport scheme and which wishes that scheme to apply to this Agreement,
Invacare Limited shall file a duly completed form DTTP-2 in respect of such Lender, with HM
Revenue and Customs and shall promptly provide Lender with a copy of that filing.
5.10 Indemnity.
In addition to the compensation or payments required by
Section 5.8 [Increased Costs] or
Section 5.9 [Taxes], the Borrowers shall indemnify each Lender against all liabilities, losses or
expenses (including any reasonably calculated loss of any foreign exchange losses and any loss or
expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan,
from fees payable to terminate the deposits from which such funds were obtained or from the
performance of any foreign exchange contract) which such Lender sustains or incurs as a consequence
of any
(i) payment, prepayment, conversion or renewal of any Loan to which a Euro-Rate Option applies
on a day other than the last day of the corresponding Interest Period (whether or not such payment
or prepayment is mandatory, voluntary or automatic and whether or not such payment or prepayment is
then due),
(ii) attempt by the Borrowers to revoke (expressly, by later inconsistent notices or
otherwise) in whole or part any Loan Requests under Section 2.3 [Revolving Credit Loan Requests;
Swing Loan Requests] or Section 4.2 [Interest Periods] or notice relating to prepayments under
Section 5.6 [Voluntary Prepayments], or
(iii) default by the Borrowers in the performance or observance of any covenant or condition
contained in this Agreement or any other Loan Document, including any failure of the Borrowers to
pay when due (by acceleration or otherwise) any principal, interest, Commitment Fee or any other
amount due hereunder.
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If any Lender sustains or incurs any such loss or expense, it shall from time to time notify
the Borrowers of the amount determined in good faith by such Lender (which determination may
include such assumptions, allocations of costs and expenses and averaging or attribution methods as
such Lender shall deem reasonable) to be necessary to indemnify such Lender for such loss or
expense. Such notice shall set forth in reasonable detail the basis for such determination. Such
amount shall be due and payable by the Borrowers to such Lender ten (10) Business Days after such
notice is given.
5.11 Settlement Date Procedures.
In order to minimize the transfer of funds between the Lenders and the Administrative Agent,
the Borrowers may borrow, repay and reborrow Swing Loans and the Swing Loan Lenders may make Swing
Loans as provided in Section 2.1.2 [Swing Loan Commitments] hereof during the period between
Settlement Dates. The Administrative Agent shall notify each Lender of its Ratable Share of the
total of the Revolving Credit Loans and the Swing Loans (each a Required Share). On such
Settlement Date, each Lender shall pay to the Administrative Agent the amount equal to the
difference between its Required Share and its Revolving Credit Loans, and the Administrative Agent
shall pay to each Lender its Ratable Share of all payments made by the Borrowers to the
Administrative Agent with respect to the Revolving Credit Loans. The Administrative Agent shall
also effect settlement in accordance with the foregoing sentence on the proposed Borrowing Dates
for Revolving Credit Loans and on any dates scheduled for mandatory prepayments hereunder, and may
at its option effect settlement on any other Business Day. These settlement procedures are
established solely as a matter of administrative convenience, and nothing contained in this Section
5.11 shall relieve the Lenders of their obligations to fund Revolving Credit Loans on
dates other than a Settlement Date pursuant to Section 2.1.2 [Swing Loan Commitment]. The
Administrative Agent may at any time at its option for any reason whatsoever require each Lender to
pay immediately to the Administrative Agent such Lenders Ratable Share of the outstanding
Revolving Credit Loans and each Lender may at any time require the Administrative Agent to pay
immediately to such Lender its Ratable Share of all payments made by the Borrowers to the
Administrative Agent with respect to the Revolving Credit Loans.
5.12 Interbank Market Presumption.
For all purposes of this Agreement and each Note with respect to any aspects of the Euro-Rate,
any Loan under the Euro-Rate Option or any Optional Currency, each Lender and Administrative Agent
shall be presumed to have obtained rates, funding, currencies, deposits, and the like in the
Relevant Interbank Market regardless of whether it did so or not; and, each Lenders and
Administrative Agents determination of amounts payable under, and actions required or authorized
by, Section 5.8 [Increased Costs], Section 5.9
[Taxes] and Section 5.10 [Indemnity] shall be
calculated, at each Lenders and Administrative Agents option, as though each Lender and
Administrative Agent funded each Borrowing Tranche of Loans under the Euro-Rate Option through the
purchase of deposits of the types and maturities corresponding to the deposits used as a reference
in accordance with the terms hereof in determining the Euro-Rate applicable to such Loans, whether
in fact that is the case.
5.13 Judgment Currency.
5.13.1 Currency Conversion Procedures for Judgments.
If for the purposes of obtaining judgment in any court, it is necessary to convert a sum due
hereunder or under a Note in any currency (the Original Currency) into another currency (the
Other Currency), the parties hereby agree, to the fullest extent permitted by Law, that the rate
of exchange used
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shall be that at which, in accordance with normal banking procedures, each Lender
could purchase the Original Currency with the Other Currency after any premium and costs of
exchange on the Business Day preceding that on which final judgment is given.
5.13.2 Indemnity in Certain Events.
The obligation of the Borrowers in respect of any sum due from the Borrowers to any Lender
hereunder shall, notwithstanding any judgment in an Other Currency, whether pursuant to a judgment
or otherwise, be discharged only to the extent that, on the Business Day following receipt by any
Lender of any sum adjudged to be so due in such Other Currency, such Lender may in accordance with
normal banking procedures purchase the Original Currency with such Other Currency. If the amount
of the Original Currency so purchased is less than the sum originally due to such Lender in the
Original Currency, the Borrowers agree, as a separate obligation and notwithstanding any such
judgment or payment, to indemnify such Lender against such loss. If the amount of the Original
Currency so purchased is greater than the sum originally due to such Lender in the Original
Currency, such Lender agrees to return the amount of any excess to the Borrowers (or to any other
Person who may be entitled thereto under applicable Law).
5.14 Parallel Debt (Dutch Law Provisions).
5.14.1 Corresponding Obligations and relevant US Companies.
In this Section 5.14, Corresponding Obligations means any obligation, present or future, to
pay an amount to the Administrative Agent, the Lenders or any one or more of them, under the Loan
Documents (other than the Parallel Debt (as defined below)). In this Section 5.14, US Company
means each of Invacare Holdings LLC and Invacare International Corporation.
5.14.2 Parallel Debt.
Each US Company irrevocably and unconditionally undertakes to pay to the Administrative Agent
an amount equal to the aggregate amount payable by it in respect of its Corresponding Obligations
as they may exist from time to time. The payment undertaking of each US Company to the
Administrative Agent under this clause is referred to as a Parallel Debt. Each Parallel Debt
will be payable in the currency or currencies of the relevant Corresponding Obligations.
5.14.3 Nature of Parallel Debt.
Each Parallel Debt of an US Company:
(i) will become due and payable upon the Administrative Agents first demand, which may be
made at any time on or after the date on which one or more of the Corresponding Obligations of that
US Company become due and payable;
(ii) constitutes an undertaking, obligation and liability of the relevant US Company to the
Administrative Agent which is separate and independent from, and without prejudice to, the
Corresponding Obligations; and
(iii) represents the Administrative Agents own separate and independent claim to receive
payment of that Parallel Debt from the relevant US Company,
provided that the total amount which may become due under the Parallel Debt of such US
Company under this Section 5.14 will never exceed the total amount which may become due under the
Corresponding Obligations of such US Company.
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5.14.4 Decrease of Corresponding Obligations / Parallel Debt.
(i) The total amount due by an US Company as the Parallel Debt under this Section 5.14 will be
decreased to the extent that such US Company has paid any amount to the Administrative Agent, the
Lenders or any one or more of them to reduce such US Companys outstanding Corresponding
Obligations or the Administrative Agent, the Lenders or any one or more of them otherwise
receive(s) any amount in payment of such Corresponding Obligations (other than by virtue of
subparagraph (ii) below); and
(ii) to the extent that an US Company has paid any amount to the Administrative Agent under
the Parallel Debt or the Administrative Agent has otherwise received monies in payment of such
Parallel Debt, the total amount due under the Corresponding Obligations will be decreased.
5.14.5 Creditor of the Parallel Debt.
Any security rights governed by Dutch law granted under the Loan Documents to the
Administrative Agent to secure the Parallel Debt are granted to the Administrative Agent in its
capacity as creditor of the Parallel Debt and shall not be held on trust.
6. REPRESENTATIONS AND WARRANTIES
6.1 Representations and Warranties.
The Loan Parties, jointly and severally, represent and warrant to the Administrative Agent and
each of the Lenders as follows:
6.1.1 Organization and Qualification; Power and Authority; Compliance With Laws; Title
to Properties; Event of Default.
Each Loan Party and each Subsidiary of each Loan Party (i) is a corporation, partnership or
limited liability company (or foreign jurisdictional equivalent) duly organized, validly existing
and in good standing (or foreign jurisdictional equivalent) under the laws of its jurisdiction of
organization, (ii) has the lawful power to own or lease its properties and to engage in the
business it presently conducts or proposes to conduct, (iii) is duly licensed or qualified and in
good standing (or foreign jurisdictional equivalent) in each jurisdiction where such licensing or
qualification is required, except where the failure to so qualify will not result in a Material
Adverse Change, (iv) has full power to enter into, execute, deliver and carry out this Agreement
and the other Loan Documents to which it is a party, to incur the Indebtedness contemplated by the
Loan Documents and to perform its Obligations under the Loan Documents to which it is a party, and
all such actions have been duly authorized by all necessary proceedings on its part, (v) is in
compliance in all material respects with all applicable Laws (other than Environmental Laws which
are specifically addressed in Section 6.1.14 [Environmental Matters] and other regulatory
protections that are addressed in Section 6.1.18 [Other Regulatory Protections]) in all
jurisdictions in which any Loan Party or Subsidiary of any Loan Party is presently or will be doing
business except where the failure to do so would not constitute a Material Adverse Change, and (vi)
has good and, with respect to real property interests, marketable title to or valid leasehold
interest in all material properties, assets and other rights which it purports to own or lease or
which are reflected as owned or leased on its books and records, free and clear of all Liens and
encumbrances except Permitted Liens. No Event of Default exists or is continuing.
6.1.2 Subsidiaries and Owners; Investment Companies.
Schedule 6.1.2 states (i) the name of each of the Companys Subsidiaries, its
jurisdiction of organization and the amount, percentage and type of equity interests in such
Subsidiary and (ii) any options, warrants
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or other rights outstanding to purchase any such equity
interests referred to in clause (i) (collectively, the Company Equity Interests). Each of the
Borrowers and each Subsidiary of the Borrowers has good title to all of the Company Equity
Interests it purports to own, free and clear in each case of any Lien and all such Company Equity
Interests been validly issued, fully paid and nonassessable. None of the Loan Parties or
Subsidiaries of any Loan Party is an investment company registered or required to be registered
under the Investment Company Act of 1940 or under the control of an investment company as such
terms are defined in the Investment Company Act of 1940 and shall not become such an investment
company or under such control. None of the Excluded Subsidiaries is a Material Subsidiary. The
Loan Parties and the Excluded Subsidiaries represent all of the Subsidiaries of the Company.
6.1.3 Validity and Binding Effect.
This Agreement and each of the other Loan Documents (i) has been duly and validly executed and
delivered by each Loan Party, and (ii) constitutes, or will constitute, legal, valid and binding
obligations of each Loan Party which is or will be a party thereto, enforceable against such Loan
Party in accordance with its terms, subject to (a) the effects of bankruptcy, insolvency,
examinership, moratorium, reorganization, fraudulent conveyance or other similar laws affecting
creditors rights generally, (b) general principles of equity (regardless of when such
enforceability is considered in a proceeding in equity or at law) and (c) implied covenants of good
faith and fair dealing.
6.1.4 No Conflict; Material Contracts; Consents.
Neither the execution and delivery of this Agreement or the other Loan Documents by any Loan
Party nor the consummation of the transactions herein or therein contemplated or compliance with
the terms
and provisions hereof or thereof by any of them will conflict with, constitute a default under
or result in any breach of (i) the terms and conditions of the certificate of incorporation,
bylaws, certificate of limited partnership, partnership agreement, certificate of formation,
limited liability company agreement or other organizational documents of any Loan Party or (ii) any
Law or any Material Contract or instrument or order, writ, judgment, injunction or decree to which
any Loan Party is a party or by which it is bound or to which it is subject, or result in the
creation or enforcement of any Lien, charge or encumbrance whatsoever upon any property (now or
hereafter acquired) of any Loan Party (other than Liens granted under the Loan Documents and other
Permitted Liens). There is no default under any Material Contract which constitutes a Material
Adverse Change, and none of the Loan Parties or their Subsidiaries is bound by any contractual
obligation, or subject to any restriction in any organization document, or any requirement of Law
which constitutes a Material Adverse Change. Except as set forth in Schedule 6.1.4, no
consent, approval, exemption, order or authorization of, or a registration or filing with, any
Official Body or any other Person is required by any Law or any material agreement in connection
with the execution, delivery and carrying out of this Agreement and the other Loan Documents. All
consents set forth on Schedule 6.1.4 shall be obtained prior to the Closing Date.
6.1.5 Litigation.
There are no actions, suits, proceedings or investigations pending or, to the knowledge of any
Loan Party, threatened against such Loan Party or any Subsidiary of such Loan Party at law or in
equity before any Official Body which individually or in the aggregate constitutes a Material
Adverse Change. None of the Loan Parties or any Subsidiaries of any Loan Party is in violation of
any order, writ, injunction or any decree of any Official Body which constitutes a Material Adverse
Change.
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6.1.6 Financial Statements.
(i) Historical Statements. The Company has delivered to the Administrative Agent a
copy of Annual Report on Form 10-K for and as of the end of the fiscal year ended December 31,
2009. In addition, the Company has delivered to the Administrative Agent copies of its Quarterly
Report on Form 10-Q for the fiscal quarters ended March 31, 2010 and June 30, 2010 (all such annual
and interim statements being collectively referred to as the Statements). The Statements were
compiled from the books and records maintained by the Companys management, are correct and
complete in all material respects and fairly represent the consolidated financial condition of the
Company and its Subsidiaries as of the respective dates thereof and the results of operations for
the fiscal periods then ended and have been prepared in accordance with GAAP consistently applied,
subject (in the case of the interim statements) to normal year-end audit adjustments and footnotes.
(ii) Accuracy of Financial Statements. Neither the Company nor any Subsidiary of the
Company has any material liabilities, contingent or otherwise, or forward or long-term commitments
that are not disclosed in the Statements or in the notes thereto or in other public releases or
filings, and except as disclosed therein there are no unrealized or anticipated losses from any
commitments of the Company or any Subsidiary of the Company which constitutes a Material Adverse
Change. Since December 31, 2009, no Material Adverse Change has occurred.
6.1.7 Margin Stock.
None of the Loan Parties or any Subsidiaries of any Loan Party engages or intends to engage
principally, or as one of its important activities, in the
business of extending credit for the purpose, immediately, incidentally or ultimately, of
purchasing or carrying margin stock (within the meaning of Regulation U, T or X as promulgated by
the Board of Governors of the Federal Reserve System). No part of the proceeds of any Loan has
been or will be used, immediately, incidentally or ultimately, to purchase or carry any margin
stock or to extend credit to others for the purpose of purchasing or carrying any margin stock or
which is inconsistent with the provisions of the regulations of the Board of Governors of the
Federal Reserve System. None of the Loan Parties or any Subsidiary of any Loan Party holds or
intends to hold margin stock in such amounts that more than 25% of the reasonable value of the
assets of any Loan Party or Subsidiary of any Loan Party are or will be represented by margin
stock.
6.1.8 Full Disclosure.
Neither this Agreement nor any other Loan Document, nor any certificate, statement, agreement
or other documents furnished to the Administrative Agent or any Lender in connection herewith or
therewith, all as supplemented by securities Law filings, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the statements contained
herein and therein, in light of the circumstances under which they were made, not misleading in any
material respect. There is no fact known to any Loan Party which materially adversely affects the
business, property, assets, financial condition, results of operations of any Loan Party or
Subsidiary of any Loan Party which has not been set forth in this Agreement, in securities Law
filings or in the certificates, statements, agreements or other documents furnished in writing to
the Administrative Agent and the Lenders prior to or at the date hereof in connection with the
transactions contemplated hereby.
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6.1.9 Taxes.
All foreign, federal and state, and material local, provincial and other tax returns required
to have been filed with respect to each Loan Party and each Subsidiary of each Loan Party have been
filed, and payment or adequate provision has been made for the payment of all taxes, fees,
assessments and other governmental charges which have or may become due pursuant to said returns or
to assessments received, except (i) to the extent that such taxes, fees, assessments and other
charges are being contested in good faith by appropriate proceedings diligently conducted and for
which such reserves or other appropriate provisions, if any, as shall be required by GAAP shall
have been made or (ii) with respect to any state or local returns which have not been filed, such
reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been
made; provided, further, the failure to file any such return does not constitute a
Material Adverse Change.
6.1.10 Patents, Trademarks, Copyrights, Licenses, Etc.
Each Loan Party and each Subsidiary of each Loan Party owns or possesses all the material
patents, trademarks, service marks, trade names, copyrights, licenses, registrations, franchises,
permits and rights necessary to own and operate its properties and to carry on its business as
presently conducted and currently planned to be conducted by such Loan Party or Subsidiary, without
known possible, alleged or actual conflict with the rights of others (except where such conflict
would not constitute a Material Adverse Change).
6.1.11 Liens in the Collateral.
The Liens in the Collateral granted to the Administrative Agent for the benefit of the Lenders
pursuant to the Pledge Agreement, the Security Agreement (and the deposit account control
agreements to be executed in connection therewith) and the Patent, Trademark and Copyright
Security Agreement (collectively, the Collateral Documents) constitute and will continue to
constitute (except as expressly
provided otherwise in the Security Agreement) Prior Security Interests in the Collateral.
All filing fees and other expenses in connection with the perfection of such Liens have been or
will be paid by the Borrowers promptly after request by the Administrative Agent.
6.1.12 Insurance.
The properties of each Loan Party and each of its Subsidiaries are insured pursuant to
policies and other bonds which provide coverage from reputable and financially sound insurers in
amounts sufficient to insure the assets and risks of each such Loan Party and Subsidiary in
accordance with past practice.
6.1.13 ERISA Compliance.
(i) Each Plan is in compliance with the applicable provisions of ERISA, the Code and other
federal or state Laws, except where the failure to be in compliance would not constitute a Material
Adverse Change. Each Plan that is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the best knowledge of Borrowers,
nothing has occurred which would prevent, or cause the loss of, such qualification, except where
any such loss would not constitute a Material Adverse Change. Each Borrower and each ERISA
Affiliate have made all required contributions to each Plan subject to Section 412 of the Code, and
no application for a funding waiver or an extension of any amortization period pursuant to Section
412 of the Code has been made with respect to any Plan, except where any such failure would not
constitute a Material Adverse Change.
(ii) No ERISA Event has occurred or is reasonably expected to occur; (a) no Pension Plan has
any unfunded pension liability (i.e. excess of benefit liabilities over the
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current value of that
Pension Plans assets, determined in accordance with the assumptions used for funding the Pension
Plan for the applicable plan year), except where such liability would not constitute a Material
Adverse Change; (b) neither any Borrower nor any ERISA Affiliate has incurred, or reasonably
expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA), except where such liability
would not constitute a Material Adverse Change; (c) neither any Borrower nor any ERISA Affiliate
has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with
the giving of notice under Section 4219 of ERISA, would result in such liability) under Sections
4201 or 4243 of ERISA with respect to a Multiemployer Plan, except where such liability would not
constitute a Material Adverse Change; and (d) neither any Borrower nor any ERISA Affiliate has
engaged in a transaction that could be subject to Sections 4069 or 4212(c) of ERISA, except where
such transaction would not constitute a Material Adverse Change.
6.1.14 Environmental Matters.
Each Loan Party is and, to the knowledge of each respective Loan Party, and each Subsidiary of
each Loan Party, is and has been in compliance with applicable Environmental Laws except as
disclosed on Schedule 6.1.14; provided that such matters so disclosed would not
constitute a Material Adverse Change.
6.1.15 Solvency.
The Loan Parties on a consolidated basis are Solvent. After giving effect to the transactions
contemplated by the Loan Documents, including all Indebtedness incurred thereby, the Liens granted
by the Domestic Borrowers in connection therewith and the payment of all fees related thereto, the
Loan Parties will be Solvent, determined on a consolidated basis as of the Closing Date.
6.1.16 Fraud and Abuse.
Except as could not, individually or in the aggregate, constitute a Material Adverse Change or
result in liability for the Loan Parties in excess of $15,000,000 or result in criminal liability
for any Loan Party, neither any Loan Party and its Subsidiaries nor, to the knowledge of any Chief
Executive Officer, Chief Financial Officer, Treasurer or Compliance Officer of the Company, any of
their officers or directors, have engaged in any activities which are prohibited under federal
Medicare and Medicaid statutes, 42 U.S.C. Section 1320a-7b or 42 U.S.C. Section 1395nn or the
regulations promulgated pursuant to such statutes or related state, local or provincial statutes or
regulations, or which are prohibited by binding rules of professional conduct, including but not
limited to the following: (a) knowingly and willfully making or causing to be made a false
statement or misrepresentation of a material fact in any applications for any benefit or payment;
(b) knowingly and willfully making or causing to be made any false statement or misrepresentation
of a material fact for use in determining rights to any benefit or payment; (c) failing to disclose
knowledge by a claimant of the occurrence of any event affecting the initial or continued right to
any benefit or payment on its own behalf or on behalf of another with the intent to secure such
benefit or payment fraudulently; (d) knowingly and willfully soliciting or receiving any
remuneration (including any kickback, bribe or rebate), directly or indirectly, overtly or
covertly, in cash or in kind, or offering to pay such remuneration (i) in return for referring an
individual to a Person for the furnishing or arranging for the furnishing of any item or service
for which payment may be made in whole or in part by Medicare, Medicaid or other applicable third
party payors, or (ii) in return for purchasing, leasing or ordering or arranging for or
recommending the purchasing, leasing or ordering of any good, facility, service, or item for which
payment may be made in whole or in part by Medicare, Medicaid or other applicable third party
payors.
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Notwithstanding the foregoing, the Loan Parties are aware of, and have disclosed, the
existence of the OIG Investigation. The Loan Parties believe that the programs described in the
subpoena are in compliance with all applicable Laws, except where the failure to be in compliance
would not constitute a Material Adverse Change. The Loan Parties are cooperating fully with the
government inquiry.
6.1.17 Licensing and Accreditation.
Except as could not, individually or in the aggregate, constitute a Material Adverse Change or
result in liability for the Loan Parties and their Subsidiaries in excess of $15,000,000 or result
in criminal liability for any Loan Party, (a) each of the Loan Parties and their Subsidiaries has,
to the extent applicable: (i) obtained and maintains in good standing all required licenses; and
(ii) to the extent prudent and customary in the industry in which it is engaged, obtained and
maintains accreditation from all generally recognized accrediting agencies; and (b) all such
required licenses and accreditations are in full force and effect on the date hereof and have not
been revoked or suspended or otherwise limited.
6.1.18 Other Regulatory Protection.
Except for oxygen products, none of the Loan Parties and their Subsidiaries manufactures
pharmaceutical products. Except as set forth on Schedule 6.1.18, none of the Loan Parties
and none of the Subsidiaries of the Loan Parties (a) participates in Medicare or Medicaid as a
provider or supplier, rather, the Loan Parties and their Subsidiaries are manufacturers and sell to
providers for purposes of Medicare, Medicaid and any other Medical Reimbursement Program, (b) is a
party to any Medicare Provider Agreement or Medicaid Provider Agreement, or (c) bills for items or
services to any Medical Reimbursement Program. Each of the Loan Parties and its Subsidiaries is in
compliance with all applicable rules, regulations and other requirements of the Food and Drug
Administration (FDA), the Federal Trade Commission (FTC), the Occupational Safety and
Health Administration (OSHA), the Consumer Product Safety Commission, the United States Customs
Service and the United States Postal Service and other state or federal regulatory authorities or
jurisdictions in which such Loan Party or any of its Subsidiaries do business or distribute and
market products, except to the extent that any such noncompliance, individually or in the
aggregate, does not constitute a Material Adverse Change. Neither the FDA, the FTC, OSHA, the
Consumer Product Safety Commission, nor any other such regulatory authority has requested (or, to
the knowledge of any Authorized Officer, are considering requesting) any product recalls or other
enforcement actions that (a) if complied with, individually or in the aggregate, could constitute a
Material Adverse Change or (b) with which the Loan Parties and their Subsidiaries have not complied
within the time period allowed.
6.1.19 Compliance with the Swiss Twenty Non-Bank Rule.
Subject to the Lenders complying with their representations under Section 5.9.1 [Payments Free
of Taxes] and the requirement of Section 5.9.6 [Lenders Cooperation in Tax Matters], each Swiss
Borrower is in compliance with the Twenty Non-Bank Rule (taking into account in particular the
ordinance of the Swiss Federal Council of June 18, 2010 amending the Swiss Federal Ordinance on
withholding tax and the Swiss Federal Ordinance on stamp duties with effect as of August 1, 2010).
Each Swiss Borrower, in determining compliance with Swiss Bank Rules, may assume that up to ten
(10) of the Lenders under this Agreement are not Qualifying Banks if it cannot determine the exact
number thereof.
6.2 Updates to Schedules.
Should any of the information or disclosures provided on any of the Schedules attached hereto
pursuant to this Section 6 become outdated or incorrect in any material respect, the Borrowers
shall promptly provide the Administrative Agent in writing
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with such revisions or updates to such
Schedule as may be necessary or appropriate to update or correct same. No Schedule shall be
deemed to have been amended, modified or superseded by any such correction or update, nor shall any
breach of warranty or representation resulting from the inaccuracy or incompleteness of any such
Schedule be deemed to have been cured thereby, unless and until the Required Lenders, in their sole
and absolute discretion, shall have accepted in writing such revisions or updates to such Schedule;
provided, however, that the Borrowers may update Schedules 6.1.1,
6.1.2 and 6.1.14 without any Lender approval in connection with any transaction
permitted under Section 8.2.6 [Liquidations, Mergers, Consolidations, Acquisitions], Section
8.2.7 [Dispositions of Assets or Subsidiaries] and Section 8.2.9 [Subsidiaries, Partnerships and
Joint Ventures].
7. CONDITIONS OF LENDING AND ISSUANCE OF LETTERS OF CREDIT
The obligation of each Lender to make Loans and of the Issuing Lender to issue Letters of
Credit hereunder is subject to the performance by each of the Loan Parties of its Obligations to be
performed hereunder at or prior to the making of any such Loans or issuance of such Letters of
Credit and to the satisfaction of the following further conditions:
7.1 First Loans and Letters of Credit.
7.1.1 Deliveries.
On the Closing Date, the Administrative Agent shall have received each of the following in
form and substance satisfactory to the Administrative Agent:
(i) A certificate of each of the Loan Parties signed by an Authorized Officer, dated the
Closing Date stating that (w) all representations and warranties of the Loan Parties set forth in
this Agreement are true and correct in all material respects, (x) the Loan Parties are in
compliance with each of the covenants and conditions hereunder, (y) no Event of Default or
Potential Default exists, and (z) no Material Adverse Change has occurred since December 31, 2009.
(ii) A certificate dated the Closing Date and signed by the Secretary or an Assistant
Secretary or an Authorized Officer of each of the Loan Parties, certifying as appropriate as to:
(a) all action taken by each Loan Party in connection with this Agreement and the other Loan
Documents; (b) the names of the Authorized Officers authorized to sign the Loan Documents and their
true signatures; and (c) copies of its organizational documents as in effect on the Closing Date
certified by the appropriate state or foreign jurisdiction official where such documents are filed
in the appropriate state or foreign jurisdiction office together with certificates from the
appropriate state or foreign jurisdiction office officials as to the continued existence and good
standing (or foreign jurisdiction equivalent, if any) of each Loan Party in each state where
organized or qualified to do business;
(iii) This
Agreement and each of the other Loan Documents (subject to
Section 7.3
[Post-Closing Covenant]) signed by an Authorized Officer, all appropriate financing statements,
appropriate stock powers and certificates evidencing the pledged Collateral and deposit account
control agreements, in form and substance reasonably satisfactory to the Administrative Agent, with
respect to each deposit account of the Domestic Loan Parties;
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(iv) Written opinions of domestic and foreign counsel for the Loan Parties (in each case in
accordance with relevant local law and local market practice), dated the Closing Date and, subject
to such local law and local market practice, as to the matters set forth in Schedule
7.1.1;
(v) Evidence that adequate insurance required to be maintained under this Agreement is in full
force and effect, with additional insured and lender loss payable special endorsements attached
thereto in form and substance satisfactory to the Administrative Agent and its counsel naming the
Administrative Agent as additional insured and lender loss payee;
(vi) A duly completed Compliance Certificate as of the fiscal quarter of Company ended June
30, 2010, signed by an Authorized Officer of Company;
(vii) All material consents required to effectuate the transactions contemplated hereby;
(viii) Evidence that the Prior Senior Credit Facility has been terminated, and all outstanding
obligations thereunder have been paid and all Liens securing such obligations have been released;
(ix) Domestic Lien searches in acceptable scope and with acceptable results listing all of the
effective financing statements filed against any Domestic Loan Party, together with copies of such
financing statements;
(x) An executed landlords waiver or other lien waiver agreement from the lessor, warehouse
operator or other applicable Person from the lessor for each domestic leased Collateral location as
required under the Security Agreement; and
(xi) Such other documents in connection with such transactions as the Administrative Agent or
said counsel may reasonably request.
7.1.2 Payment of Fees.
The Borrowers shall have paid all fees payable on or before the Closing Date as required by
this Agreement, the Administrative Agents Letter or any other Loan Document.
7.2 Each Loan or Letter of Credit.
At the time of making any Loans or issuing, extending or increasing any Letters of Credit and
after giving effect to the proposed extensions of credit: (i) the representations and warranties
of the Loan Parties shall then be true and correct in all material respects (except for those
representations and warranties qualified by reference to a Material Adverse Change or other
reference to materiality, which shall be true and correct); (ii) no Event of Default or, unless
consented to by the Required Lenders, Potential Default shall have occurred and be continuing;
(iii) the making of the Loans or issuance, extension or increase of such Letter of Credit shall not
contravene any Law applicable to any Loan Party or Subsidiary of any Loan Party or any of the
Lenders; (iv) the making of such Loan or the issuance, extension or increase of such Letter of
Credit shall not cause (a) the Revolving Facility Usage to exceed the Revolving Credit Commitments
or (b) any Foreign Borrower Sublimit to be exceeded, and (v) the Borrowers shall have delivered to
the Administrative Agent a duly executed and completed Loan Request or to the Issuing Lender an
application for a Letter of Credit, as the case may be.
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7.3 Post-Closing Covenants.
The Company shall deliver or cause to be delivered the following, each in form and substance
acceptable to the Administrative Agent:
(i) on or before the 30th day after the Closing Date (which period may be extended by the
Administrative Agent in its reasonable discretion), the Patent, Trademark and Copyright Security
Agreement and evidence of its filing in the Patent and Trademark Office;
(ii) on or before the 60th day after the Closing Date (which period may be extended by the
Administrative Agent in its reasonable discretion), evidence of compliance with the Federal
Assignment of Claims Act of 1940 with respect to receivables to the extent required by the Security
Agreement;
(iii) on or before the 60th day after the Closing Date (which period may be extended by the
Administrative Agent in its reasonable discretion), deposit account control agreements executed by
the applicable Loan Parties, the Administrative Agent and the appropriate depositary institutions,
to the extent required by the Security Agreement;
(iv) on or before the 60th day after the Closing Date (which period may be extended by the
Administrative Agent in its reasonable discretion), any intercompany notes required to be delivered
pursuant to the terms of the Loan Documents and not delivered on the Closing Date, with an allonge
thereto;
(v) on or before the 60th day after the Closing Date (which period may be extended by the
Administrative Agent in its reasonable discretion), an opinion of counsel supplementing the opinion
delivered at closing as to the matters set forth above;
(vi) on or before the 60th day after the Closing Date (which period may be extended by the
Administrative Agent in its reasonable discretion), evidence that certain UCC financing statements
naming JPMorgan Chase Bank, N.A. as secured party will be terminated and certain UCC financing
statements naming VGM Financial Services, a division of TCF Equipment Finance, Inc. as secured
party will be amended so that only specific equipment will be identified as collateral;
(vii) on or before the 10th day after the Closing Date (which period may be extended by the
Administrative Agent in its reasonable discretion), Invacare Holdings Two AB, a Swedish limited
liability company and a Foreign Borrower, shall restore its capital deficiency by ensuring that its
equity is at least equal to its registered share capital as set forth in the Swedish Companies Act
(Sw. aktiebologslag 2005:551); provided until such capital deficiency no longer exists, it
shall not be permitted to borrow under the Credit Agreement or request the issuance of any Letter
of Credit;
(viii) on or before the 10th day after the Closing Date (which period may be extended by the
Administrative Agent in its reasonable discretion), the Foreign Loan Parties domiciled in Australia
and the Netherlands shall provide certificates required by Section 7.1.1(ii); and
(ix) [certain other deliveries including opinions from foreign counsel and additional insured
endorsements to insurance are expected shortly but will be added here if not received prior to
funding.]
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8. COVENANTS
The Loan Parties, jointly and severally, covenant and agree that until Payment In Full, the
Loan Parties shall comply at all times with the following covenants:
8.1 Affirmative Covenants.
8.1.1 Preservation of Existence, Etc.
Each Loan Party shall, and shall cause each of its Subsidiaries to, maintain its legal
existence as a corporation, limited partnership or limited liability company and its license or
qualification and good standing in each jurisdiction in which its ownership or lease of property or
the nature of its business makes such license or qualification necessary, except (i) where the
failure to so maintain would not constitute a Material Adverse Change and (ii) as otherwise
expressly permitted in Section 8.2.6 [Liquidations, Mergers, Etc.] or Section 8.2.7(xii)
[Dispositions of Assets or Subsidiaries].
8.1.2 Payment of Liabilities, Including Taxes, Etc.
Each Loan Party shall, and shall cause each of its Subsidiaries to, duly pay and discharge all
liabilities to which it is subject or which are asserted against it, promptly as and when the same
shall become due and payable, including all material taxes, assessments and governmental charges
upon it or any of its properties, assets, income or profits, prior to the date on which penalties
attach thereto, except to the extent that such liabilities, including taxes, assessments or
charges, are being contested in good faith and by appropriate and lawful proceedings diligently
conducted and for which such reserve or other appropriate provisions, if any, as shall be required
by GAAP shall have been made but only to the extent that failure to discharge any such liabilities
would not result in a Material Adverse Change; provided that notwithstanding the foregoing,
the Loan Parties and their Subsidiaries will pay all liabilities forthwith upon the commencement of
proceedings to foreclose any Lien which may have attached as security therefor.
8.1.3 Maintenance of Insurance.
Each Loan Party shall, and shall cause each of its Subsidiaries to, insure its properties and
assets against loss or damage by fire and such other insurable hazards as such assets are commonly
insured (including fire, extended coverage, property damage, workers compensation, public
liability and business interruption insurance) and against other risks (including errors and
omissions) in such amounts as similar properties and assets are insured by prudent companies in
similar circumstances carrying on similar businesses, and with reputable and financially sound
insurers, including self-insurance to the extent customary. The Loan Parties shall comply with the
covenants and provide the endorsement set forth on Schedule 8.1.3 relating to property and
related insurance policies covering the Collateral.
8.1.4 Maintenance of Properties and Leases.
Each Loan Party shall, and shall cause each of its Subsidiaries to, maintain in good repair,
working order and condition (ordinary wear and tear and casualty excepted) in accordance with the
past practice of the Company, all of those properties useful or necessary to its business, and from
time to time, such Loan Party will make or cause to be made all appropriate repairs, renewals or
replacements thereof.
8.1.5 Visitation Rights.
Each Loan Party shall, and shall cause each of its Subsidiaries to, permit any of the officers
or authorized employees or representatives of the Administrative Agent or any of the Lenders to
visit and inspect any of its properties and to
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examine and make excerpts from its books and records and discuss its business affairs,
finances and accounts with its officers, all in such detail and at such times and as often as any
of the Lenders may reasonably request, provided, so long as no Event of Default exists,
such visits and inspections shall be limited to no more frequently than twice per calendar year
and; provided, further, that each Lender shall provide the Company and the
Administrative Agent with reasonable notice prior to any visit or inspection. In the event any
Lender desires to conduct an audit of any Loan Party, such Lender shall make a reasonable effort to
conduct such audit contemporaneously with any audit to be performed by the Administrative Agent.
8.1.6 Keeping of Records and Books of Account.
The Loan Parties shall, and shall cause each Subsidiary of the Loan Parties to, maintain and
keep proper books of record and account which enable the Company and its Subsidiaries to issue
financial statements in accordance with GAAP and as otherwise required by applicable Laws of any
Official Body having jurisdiction over the Company or any Subsidiary of the Company, and in which
full, true and correct entries shall be made in all material respects of all its dealings and
business and financial affairs.
8.1.7 Compliance with Laws; Use of Proceeds.
Each Loan Party shall, and shall cause each of its Subsidiaries to, comply with all applicable
Laws, including all Environmental Laws, in all respects; provided that it shall not be
deemed to be a violation of this Section 8.1.7 if any failure to comply with any Law would not
result in fines, penalties, remediation costs, other similar liabilities or injunctive relief which
in the aggregate would constitute a Material Adverse Change. The Loan Parties will use the Letters
of Credit and the proceeds of the Loans only in accordance with
Section 2.7.2 [Use of Proceeds]
and as permitted by applicable Law.
8.1.8 Further Assurances.
Each Loan Party shall, from time to time, at its expense, faithfully preserve and protect the
Administrative Agents Lien on and (except as expressly provided otherwise in the Security
Agreement) Prior Security Interest in the Collateral whether now owned or hereafter, and shall do
such other acts and things as the Administrative Agent in its sole discretion may deem necessary or
advisable from time to time in order to preserve, perfect and protect the Liens granted under the
Loan Documents and to enable the Administrative Agent to exercise and enforce its rights and
remedies thereunder with respect to the Collateral.
8.1.9 Anti-Terrorism Laws.
None of the Loan Parties is or shall be (i) a Person with whom any Lender is
restricted from doing business under Executive Order No. 13224 or any other Anti-Terrorism Law,
(ii) engaged in any business involved in making or receiving any contribution of funds, goods or
services to or for the benefit of such a Person or in any transaction that evades or avoids, or has
the purpose of evading or avoiding, the prohibitions set forth in any Anti-Terrorism Law, or (iii)
otherwise in violation of any Anti-Terrorism Law. The Loan Parties shall provide to the Lenders
any certifications or information that a Lender requests to confirm compliance by the Loan Parties
with Anti-Terrorism Laws. Notwithstanding the preceding sentence and except as may otherwise be
agreed in writing, each of the Lenders agrees that the Administrative Agent has no obligation to
ascertain the identity of the Loan Parties or any authorized signatories of the Loan Parties on
behalf of any Lender, or to confirm the completeness or accuracy of any information it obtains from
the Loan Parties or any such authorized signatory in doing so.
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The Loan Parties acknowledge that, pursuant to the Proceeds of Crime (Money Laundering) and
Terrorist Financing Act (Canada) and other applicable anti-money laundering, anti-terrorist
financing, government sanction and know your client Laws, whether within Canada or elsewhere
(collectively, including any guidelines or orders thereunder, AML Legislation), the Lenders and
the Administrative Agent may be required to obtain, verify and record information regarding the
Loan Parties, their respective directors, authorized signing officers, direct or indirect
shareholders or other Persons in control of the Loan Parties, and the transactions contemplated
hereby. The Loan Parties shall promptly provide all such information, including supporting
documentation and other evidence, as may be reasonably requested by any Lender or the
Administrative Agent, or any prospective assign or participant of a Lender or the Administrative
Agent, in order to comply with any applicable AML Legislation, whether now or hereafter in
existence. If the Administrative Agent has ascertained the identity of the Loan Parties or any
authorized signatories of the Loan Parties for the purposes of applicable AML Legislation, then the
Administrative Agent: (a) shall be deemed to have done so as an agent for each Lender, and this
Agreement shall constitute a written agreement in such regard between each Lender and the
Administrative Agent within the meaning of applicable AML Legislation; and (b) shall provide to
each Lender copies of all information obtained in such regard without any representation or
warranty as to its accuracy or completeness.
8.1.10 Material Contracts.
Each of the Loan Parties shall, and shall cause each of their Subsidiaries to, perform and
observe all of the terms and provisions of each Material Contract (including, without limitation,
each Medicare Provider Agreement, Medicaid Provider Contract and other contract and agreement
relating to Medical Reimbursement Programs) to be performed or observed by it, maintain each such
Material Contract in full force and effect, and enforce each such Material Contract in accordance
with its terms, in each case unless (a) the applicable Loan Party or Subsidiary determines in the
exercise of its good faith judgment that any such action is not in the best business interests of
such Loan Party or Subsidiary or (b) the failure of such Loan Party or Subsidiary to take any such
action would not constitute a Material Adverse Change.
8.1.11 Designation as Senior Debt.
Each of the Loan Parties shall cause the Obligations to be designated as Designated Senior
Indebtedness under, and as defined in, the governing documents with respect to the 2027
Convertible Notes (as in effect from time to time).
8.1.12 Compliance with the Swiss Twenty Non-Bank Rules.
Each Swiss Borrower shall ensure at any time that it is in compliance with the Swiss Twenty
Non-Bank Rules (taking into account in particular the ordinance of the Swiss Federal Council of
June 18, 2010 amending the Swiss Federal Ordinance on withholding tax and the Swiss Federal
Ordinance on stamp duties with effect as of August 1, 2010), provided that a Swiss Borrower shall
not be in breach of this Section 8.1.12 if its number of creditors in respect of the Swiss Twenty
Non-Bank Rule is exceeded solely by reason of a failure by one or more of the Lenders to comply
with their obligations under Section 5.9.1 [Payments Free of Taxes], Section 11.8.2 [Assignments by
Lenders] or Section 5.9.6 [Lenders Cooperation in Tax Matters]. Each Swiss Borrower, in
determining compliance with Swiss Bank Rules, may assume that up to ten (10) of the Lenders under
this Agreement are not Qualifying Banks if it cannot determine the exact number thereof.
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8.2 Negative Covenants.
8.2.1 Indebtedness.
Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, at any
time create, incur, assume or suffer to exist any Indebtedness, except:
(i) Indebtedness under the Loan Documents;
(ii) Existing Indebtedness as set forth on Schedule 8.2.1 and any refinancing,
refunding, extension or renewal thereof; provided that the amount of such Indebtedness is
not increased at the time of such refinancing, refunding, renewal or extension except by an amount
equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably
incurred, in connection with such refinancing and by an amount equal to any existing commitments
unutilized thereunder and the direct or any contingent obligor with respect thereto is not changed
as a result of or in connection with such refinancing, refunding, renewal or extension;
provided further, that the terms relating to principal amount, amortization,
maturity, collateral (if any) and subordination (if any), and other material terms taken as a
whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement
entered into and of any instrument issued in connection therewith, are no less favorable in any
material respect to the Loan Parties or the Lenders than the terms of any agreement or instrument
governing the Indebtedness being refinanced, refunded, renewed or extended and the interest rate
applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed
the then applicable market interest rate;
(iii) Indebtedness secured by Purchase Money Security Interests and Synthetic Lease
Obligations, which when added with all Indebtedness in respect of Capitalized Leases, does not
exceed $25,000,000 in the aggregate;
(iv) Intercompany Indebtedness between or among the Company and its Subsidiaries and between
or among the Subsidiaries in the ordinary course of business and consistent with past practice,
provided that such intercompany Indebtedness shall be unsecured and the intercompany
Indebtedness owed to one or more of the Domestic Loan Parties shall be pledged as Collateral under
the Security Agreement;
(v) Any (a) Lender Provided Interest Rate/Currency Hedge, (b) other Interest Rate Hedge or
Currency Hedge or (c) Indebtedness under any Other Lender Provided Financial Services Product;
provided, however, that the Loan Parties and their Subsidiaries shall enter into a
Lender Provided Interest Rate/Currency Hedge or another Interest Rate Hedge or Currency Hedge only
for hedging (rather than speculative) purposes.
(vi) the 2015 Senior Notes and the 2027 Convertible Notes (subject to compliance with Section
8.2.18 [Covenants as to Certain Indebtedness]);
(vii) Indebtedness owed to third party financing companies in the form of limited recourse
obligations that finance receivables of customers of the Loan Parties and their Subsidiaries in the
ordinary course of business; provided that such Indebtedness shall not exceed at any time
outstanding the lesser of (a) 75% of the total owed by the customers of the Loan Parties and their
Subsidiaries to such financing companies and (b) $100,000,000;
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(viii) Indebtedness under performance, surety, statutory or appeal bonds or with respect to
workers compensation claims or other bonds permitted hereunder and incurred in the ordinary course
of business;
(ix) Indebtedness constituting customary indemnification obligations under purchase
agreements;
(x) Performance Guarantees by the Company or any Subsidiary with respect to the performance of
any obligation of any other Subsidiary entered into in the ordinary course of business consistent
with past practice; and
(xi) other Indebtedness of the Loan Parties and the Subsidiaries in an aggregate amount at any
time outstanding not to exceed $100,000,000.
8.2.2 Liens.
Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, at any
time create, incur, assume or suffer to exist any Lien on any of its property or assets, tangible
or intangible, now owned or hereafter acquired, or agree or become liable to do so, except
Permitted Liens.
8.2.3 Guaranties.
Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, at any
time, directly or indirectly, become or be liable in respect of any Guaranty, or assume, guarantee,
become surety for, endorse or otherwise agree, become or remain directly or contingently liable
upon or with respect to any obligation or liability of any other Person, except for Guaranties of
Indebtedness of the Loan Parties and their Subsidiaries permitted hereunder.
8.2.4 Loans and Investments.
Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, at any
time make or suffer to remain outstanding any loan or advance to, or purchase, acquire or own any
stock, bonds, notes or securities of, or any partnership interest (whether general or limited) or
limited liability company interest in, or any other investment or interest in, or make any capital
contribution to (collectively, Investments), any other Person, or agree, become or remain liable
to do any of the foregoing, except:
(i) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors to the extent reasonably necessary in order to prevent or limit loss;
(ii) advances to officers, directors and employees consistent with past practice, for travel,
entertainment, relocation and analogous ordinary business purposes;
(iii) Permitted Investments;
(iv) Investments listed on Schedule 8.2.4;
(v) Investments by the Company and its Subsidiaries in their respective Subsidiaries in the
ordinary course of business and consistent with past practice;
(vi) Guaranties permitted by Section 8.2.3 [Guaranties];
85
(vii) Investments otherwise permitted under this Agreement pursuant to Permitted Acquisitions;
(viii) Investments consisting of key man life insurance;
(ix) Investments in Joint Ventures; provided that the amount of Investments in Joint
Ventures shall not exceed $25,000,000 in the aggregate; provided, further, that in
no event shall any Loan Party or Subsidiary of any Loan Party be liable, or agree to become
liable, for any liabilities of the Joint Venture beyond such Loan Partys or Subsidiarys equity
interest in such Joint Venture; and
(x) Other Investments not to exceed $5,000,000 in the aggregate at any time outstanding.
8.2.5 Dividends and Related Distributions.
Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, make or
pay, or agree to become or remain liable to make or pay, any dividend or other distribution of any
nature (whether in cash, property, securities or otherwise) on account of or in respect of its
shares of capital stock, partnership interests, limited liability company interests or other Equity
Interests or any payment (including whether in cash, securities or other property) including any
sinking fund or similar deposit on account of the purchase, redemption, retirement or acquisition
of its shares of capital stock (or warrants, options or rights therefor), partnership interests,
limited liability company interests or other Equity Interests, except: (a) dividends or other
distributions payable by any Subsidiary, directly or indirectly, to the Company, by any Domestic
Loan Party to another Domestic Loan Party, by any Foreign Guarantor to a Foreign Borrower or
another Foreign Guarantor or by a Subsidiary that is not a Loan Party to another Subsidiary; (b)
the Company and each Subsidiary may declare and make dividend payments or other distributions
payable solely in the common stock or other common Equity Interests of such Person; (c) repurchases
or redemptions by the Company of any Equity Interests in the Company (i) in an amount not to exceed
$25,000,000 in the aggregate for the most recently completed three (3) fiscal quarters of the
Company and the fiscal quarter in which the repurchase or redemption is proposed to be made if the
Consolidated Leverage Ratio as of the most recent fiscal quarter then ended is equal to or less
than 2.25 to 1.00 or (ii) in an amount not to exceed $5,000,000 in the aggregate for the most
recently completed three (3) fiscal quarters of the Company and the fiscal quarter in which the
repurchase or redemption is proposed to be made if the Consolidated Leverage Ratio as of the most
recent fiscal quarter then ended is greater than 2.25 to 1.00 provided that, prior to
consummating any such repurchase or redemption, the Company shall demonstrate to the satisfaction
of the Administrative Agent that after giving effect to such repurchase or redemption on a Pro
Forma Basis, the Loan Parties shall be in compliance with their financial covenants set forth in
this Agreement and shall certify that no Event of Default exists; (d) except to the extent the Net
Cash Proceeds thereof are required to be applied to the prepayment of the Loans pursuant to Section
5.7.3 [Equity Issuances], the Company and each Subsidiary may purchase, redeem or otherwise
acquire its common Equity Interests with the proceeds received from the substantially concurrent
issue of new common Equity Interests so long as no Event of Default exists at the time of such
purchase, redemption or acquisition; and (e) dividends on the common and preferred stock of the
Company in an aggregate amount not to exceed $5,000,000 per annum. The Loan Parties shall not be
considered to have violated clause (c) of this Section 8.2.5 [Dividends and Related Distributions]
if the Company shall have satisfied the requirements of such clause at the time of the repurchase
or redemption, irrespective of whether the Consolidated
86
Leverage Ratio calculation, for the fiscal quarter in which such repurchase or redemption shall have been
made or any subsequent fiscal quarter, would not permit such purchase or redemption
8.2.6 Liquidations, Mergers, Consolidations, Acquisitions.
(i) Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to,
dissolve (other than a dissolution contemplated by Section 8.2.7(xii)), liquidate or wind-up its
affairs, or become a party to any merger or consolidation, or acquire by purchase, lease or
otherwise all or substantially all of the assets or capital stock of any other Person;
provided that (i) any Domestic Loan Party other than the Company, any Foreign Loan Party or
any other Subsidiary that is not a Loan Party (other than the Insurance Subsidiary or the
Receivables Subsidiary) may consolidate or merge into another Domestic Loan Party which is
wholly-owned by one or more of the other Domestic Loan Parties so long as such Domestic Loan Party
is the survivor, (ii) Excluded Subsidiaries (other than the Insurance Subsidiary and the
Receivables Subsidiary) may consolidate or merge into other Excluded Subsidiaries (other than the
Insurance Subsidiary and the Receivables Subsidiary), (iii) Foreign Loan Parties not directly owned
by a Domestic Loan Party may consolidate or merge into other such Foreign Loan Parties, (iv) any
Subsidiary (other than the Insurance Subsidiary and the Receivables Subsidiary) may merge into the
Company so long as the Company is the survivor, and (v) the Company and its wholly-owned
Subsidiaries may engage in one or more purchases or other acquisitions of all of the Equity
Interests in, or all or substantially all of the property of or a division of, any Person that,
upon the consummation thereof, will be wholly-owned directly by the Company or one or more of its
wholly-owned Subsidiaries (including as a result of a merger or consolidation) provided
that each such purchase or other acquisition is a Permitted Acquisition and the provisions of
Section 8.2.9 [Subsidiaries, Partnerships and Joint Ventures] are complied with.
8.2.7 Dispositions of Assets or Subsidiaries.
Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, sell,
convey, assign, lease, abandon or otherwise transfer or dispose of, voluntarily or involuntarily,
any of its properties or assets, tangible or intangible (including sale, assignment, discount or
other disposition of accounts, contract rights, chattel paper, equipment or general intangibles
with or without recourse or of capital stock, shares of beneficial interest, partnership interests
or limited liability company interests of a Subsidiary of such Loan Party), except:
(i) transactions involving the sale of inventory or intellectual property in the ordinary
course of business;
(ii) any sale, transfer or lease of assets in the ordinary course of business which are no
longer necessary or required in the conduct of such Loan Partys or such Subsidiarys business;
(iii) any sale, transfer or lease of assets between the Company or any Subsidiary,
provided that if the transferor of such property is a Domestic Loan Party and the
transferee of such property is a Foreign Subsidiary, any such net disposition of assets shall not
exceed an aggregate amount of ten percent (10%) of value of the domestic assets of the Domestic
Loan Parties as set forth in the most recent financial statements of the Company delivered pursuant
to Section 8.3.1 [Quarterly Financial Statements] and Section 8.3.2 [Annual Financial Statements]
in any fiscal year; provided, further, that after giving effect to any such transfer to a
Foreign Subsidiary, the value of the domestic assets of the Domestic Loan Parties in
87
the aggregate shall be no less than $250,000,000 and the value of the domestic assets other
than inventory and receivables of the Domestic Loan Parties in the aggregate shall be no less than
$40,000,000.
(iv) any sale, transfer or lease of assets in the ordinary course of business which are
replaced by substitute assets acquired or leased within the parameters of Section 8.2.14 [Capital
Expenditures] and Section 8.2.1 [Indebtedness]; provided such substitute assets are
subject to the Lenders Prior Security Interest;
(v) Sale and Leaseback Transactions in an aggregate amount not to exceed $35,000,000;
(vi) dispositions of equipment or real property to the extent that (a) such property is
exchanged for credit against the purchase price of similar replacement property or (b) the proceeds
of such disposition are reasonably promptly applied to the purchase price of such replacement
property; provided that in the case of a disposition by a Domestic Loan Party or any
Foreign Loan Party, the replacement property shall be owned by a Domestic Loan Party or such
Foreign Loan Party, as applicable;
(vii) dispositions of Customer Leases in connection with Vendor Financings;
(viii) any disposition of assets, other than those specifically excepted pursuant to clauses
(i) through (vii) above, so long as the after-tax proceeds (as reasonably estimated by the Company)
are applied as a mandatory prepayment of the Loans in accordance with the provisions of Section
5.7.1 [Sale of Assets] above, in an aggregate amount not to exceed ten percent (10%) of
Consolidated Total Assets in any fiscal year;
(ix) dispositions constituting conversion of cash equivalents into other cash equivalents;
(x) dispositions constituting casualty events;
(xi) grants of Permitted Liens;
(xii) dissolution of Morris Surgical Pty. Ltd., Home Health Equipment Pty. Ltd. and Healthcare
Equipment WA Pty. Ltd., each a Subsidiary of Invacare Australia Pty. Ltd., and transfer of all of
the assets of each such dissolved Subsidiary to and into Invacare Australia Pty. Ltd., and
dissolution of I.H.H. Corp. and transfer of all of its assets to a Domestic Loan Party which, in
each case, if the Company shall have determined to effectuate such dissolutions, shall occur by
December 31, 2010; and
(xiii) waivers of contract rights in the ordinary course of business.
8.2.8 Affiliate Transactions.
Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, enter
into or carry out any transaction with any Affiliate of any Loan Party (including purchasing
property or services from or selling property or services to any Affiliate of any Loan Party)
unless such transaction is entered into in the ordinary course of business upon fair and reasonable
arms-length terms and conditions; provided that the foregoing restriction shall not apply
to (a) transactions between or among the Domestic Loan Parties, (b) transactions between or among
the Foreign Loan Parties or (c) any other transactions between
88
or among the Company and any of its Subsidiaries or between or among any of such Subsidiaries,
unless prohibited pursuant to this Agreement.
8.2.9 Subsidiaries, Partnerships and Joint Ventures.
Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, own or
create directly or indirectly any Subsidiaries other than (i) any Subsidiary which has joined this
Agreement as a Borrower or Guarantor on the Closing Date and the Excluded Subsidiaries;
provided if I.H.H. Corp. is not dissolved and all of its assets transferred to a Domestic
Loan Party by December 31, 2010, it shall on or before December 31, 2010, become a Domestic
Guarantor pursuant to the provisions of Section 11.15.1 [Joinder of Guarantors and Borrowers]; (ii)
any Subsidiary (A) formed (or acquired) after the Closing Date which joins this Agreement as a
Domestic Guarantor or Foreign Guarantor, or elects instead to join this Agreement as a Domestic
Borrower or Foreign Borrower, and satisfies each other applicable requirement set forth in Section
11.15.1 [Joinder of Guarantors and Borrowers], or (B) in the case of an Excluded Subsidiary as of
the Closing Date that subsequently becomes a Material Subsidiary, which joins this Agreement as a
Domestic Guarantor or Foreign Guarantor, or elects instead to join this Agreement as a Domestic
Borrower or Foreign Borrower, and satisfies each other applicable requirement set forth in Section
11.15.1 [Joinder of Guarantors and Borrowers], (iii) any Foreign Subsidiary which is not organized
in the same jurisdiction as a Loan Party and which is not a Material Subsidiary, and (iv) Morris
Surgical Pty. Ltd., Home Health Equipment Pty. Ltd. and Healthcare Equipment WA Pty. Ltd., each a
Subsidiary of Invacare Australia Pty. Ltd., which Subsidiaries shall be Guarantors on the Closing
Date but may be dissolved and all of their assets transferred to and into Invacare Australia Pty.
Ltd. (and if such dissolutions occur, such must be consummated by December 31, 2010), and the
Borrowers shall provide copies of the appropriate dissolution and asset transfer documents with
respect thereto to the Administrative Agent not later than ten (10) Business Days after such
dissolution and asset transfer. Each of the Loan Parties shall not become or agree to become a
party to a Joint Venture other than a Joint Venture permitted under Section 8.2.4 [Loans and
Investments].
8.2.10 Continuation of or Change in Business.
Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, engage in
any material line of business other than those lines of business conducted by the Company and its
Subsidiaries on the date hereof and any business that, in the good faith judgment of the Board of
Directors of the Company, is reasonably related, incidental, ancillary, supplementary or
complimentary thereto, or reasonable extensions thereof.
8.2.11 Fiscal Year; Accounting Changes.
Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, make any
change in (a) accounting policies or reporting practices, except as required by or acceptable under
GAAP, or (b) its fiscal year.
8.2.12 Issuance of Stock.
Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, issue any
additional shares of its capital stock or any options, warrants or other rights in respect thereof,
unless (a) no cash proceeds are received (other than from any of the Subsidiaries) as the result of
such issuance, (b) if any cash proceeds are received (other than from any of the Subsidiaries), any
Net Cash Proceeds thereof are applied as a mandatory prepayment if so required in accordance with
the provisions of Section 5.7.3 [Equity Issuances] or (c) such issuance is pursuant to the terms
of the Companys Performance Plan and, in each event, the Loan Parties party to the Pledge
Agreement continue to comply therewith.
89
8.2.13 Changes in Organizational Documents.
Each of the Loan Parties (other than the Company) shall not, and shall not permit any of its
Subsidiaries to, amend in any respect its certificate of incorporation (including any provisions or
resolutions relating to capital stock), by-laws, certificate of limited partnership, partnership
agreement, certificate of formation, limited liability company agreement or other organizational
documents without providing at least fifteen (15) days prior written notice to the Administrative
Agent and, in the event that such change would be materially adverse to the Lenders as determined
by the Administrative Agent in its sole discretion, obtaining the prior written consent of the
Required Lenders. The Company shall not amend in any respect its articles of incorporation or code
of regulations if such amendment would limit the Companys ability to grant Liens to the Lenders,
adversely affect the Companys ability to comply with, or obligations under, the Loan Documents or
impair the ability of the Administrative Agent or any of the Lenders, to the extent applicable, to
enforce their legal remedies pursuant to this Agreement or any other Loan Document;
provided the Company shall provide a copy of any such amendment within fifteen (15) days
following the effective date of such amendment.
8.2.14 Capital Expenditures.
Each of the Loan Parties shall not, and shall not permit any of its Subsidiaries to, make any
payments in any fiscal year on account of Capital Expenditures, except for Capital Expenditures:
(i) made with insurance proceeds from (a) casualty events, or (b) condemnation awards, (ii) made
with proceeds from (a) Sale and Leaseback Transactions or (b) other dispositions permitted under
Section 8.2.7 [Dispositions of Assets or Subsidiaries], (iii) in connection with like-kind
exchanges under Section 1031 of the Code, and (iv) in addition to the Capital Expenditures
permitted by the foregoing clauses (i) (iii), Capital Expenditures in the ordinary course of
business not exceeding $35,000,000 in the aggregate for the Company and its Subsidiaries during
each fiscal year; provided, however, that so long as no Event of Default exists or
would result from such expenditure, any portion of such amount not expended in such fiscal year may
be carried over for expenditure solely in the next fiscal year (the Capex Carryover Amount);
provided, further, if any such amount is so carried over, it will be used in the
fiscal year to which it is carried forward after the $35,000,000 allocated to such fiscal year is
used.
8.2.15 Maximum Leverage Ratio.
The Loan Parties shall not permit the Consolidated Leverage Ratio of the Company and its
Subsidiaries, as measured at the end of each fiscal quarter, to exceed 3.50 to 1.00.
8.2.16 Minimum Interest Coverage Ratio.
The Loan Parties shall not permit the Consolidated Interest Coverage Ratio of the Company and
its Subsidiaries, as measured at the end of each fiscal quarter, to be less than 3.50 to 1.00.
8.2.17 Negative Pledges.
Each of the Loan Parties covenants and agrees that it shall not, and shall not permit any of
its Subsidiaries to, enter into any Agreement with any Person which, in any manner, whether
directly or contingently, prohibits, restricts or limits the right of any of the Loan Parties or
their Subsidiaries (other than the Insurance Subsidiary or the Receivables Subsidiary), from
granting any Liens to the Administrative Agent or the Lenders on any assets or properties
(including real estate) of the Loan Parties or their Subsidiaries (other than the Insurance
Subsidiary or the Receivables Subsidiary) except:
90
(i) customary restrictions and conditions on a Subsidiary imposed pursuant to an agreement
entered into for the sale or disposition of the Equity Interests or assets of a Subsidiary
permitted hereunder pending the closing of such sale or disposition;
(ii) any restrictions imposed by any agreement relating to secured Indebtedness permitted by
this Agreement to the extent that such restrictions apply only to the property or assets securing
such Indebtedness;
(iii) customary provisions contained in licenses of intellectual property and other similar
agreements entered into in the ordinary course of business;
(iv) customary provisions restricting subletting or assignment of any lease governing a
leasehold interest;
(v) customary provisions restricting assignment of any agreement entered into in the ordinary
course of business;
(vi) any restrictions imposed by applicable Law;
(vii) customary provisions in any joint venture or similar agreement applicable to a Joint
Venture permitted hereunder and entered into in the ordinary course of business; and
(viii) any agreement in effect at the time a person becomes a Subsidiary of the Company, so
long as such agreement was not entered into in contemplation of such Person becoming a Subsidiary.
8.2.18 Covenants as to Certain Indebtedness.
(i) Each of the Loan Parties shall not, and shall not permit any of its Subsidiary to, amend
or modify any provisions of the documents governing the 2015 Senior Notes or 2027 Convertible Notes
in any material and adverse way (with any changes to the interest rate, redemption requirements,
amortization schedule, negative covenants and events of default deemed to be material for purposes
hereof, but without limiting any other changes which may be material) without providing at least
fifteen (15) calendar days prior written notice to the Administrative Agent and the Lenders, and
obtaining the prior written consent of the Required Lenders.
(ii) Borrowers shall redeem, purchase or repurchase no less than $100,000,000 of the 2015
Senior Notes and/or the 2027 Convertible Notes by February 28, 2011. Thereafter, the Borrowers may
redeem, purchase or repurchase the 2015 Senior Notes and/or the 2027 Convertible Notes so long as
(a) no Event of Default is then occurring or would be caused thereby, and (b) the Consolidated
Leverage Ratio, determined on a Pro Forma Basis after taking into effect such r ;
Attorney-In-Fact |
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INVACARE DOLOMITE AB
a Swedish limited liability company
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By: |
/s/ Robert K. Gudbranson
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Name: |
Robert K. Gudbranson |
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Title: |
Attorney-In-Fact |
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INVACARE REA AB
a Swedish limited liability company
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By: |
/s/ Robert K. Gudbranson
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Name: |
Robert K. Gudbranson |
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Title: |
Attorney-In-Fact |
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INVACARE UK OPERATIONS LIMITED
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By: |
/s/ Robert K. Gudbranson
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Acting Name: |
Robert K. Gudbranson |
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Title: |
Director |
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In presence of:
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Signature:
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/s/ Rachel Ann Sabato |
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Full Name:
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Rachel Ann Sabato |
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Address:
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Calfee, Halter & Griswold LLP |
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800 Superior Avenue, Suite 1400 |
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Cleveland, OH 44114 |
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Occupation:
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Paralegal/Notary |
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SCHEDULE 1.1(B)
COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES
Part 1 Commitments of Lenders and Addresses for Notices to Lenders
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Amount of Commitment for |
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Lender |
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Revolving Credit Loans |
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Ratable Share |
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Name: PNC Bank, National Association
Address: 1900 East Ninth Street
Cleveland, OH 44114
Attention: David A. Burns
Telephone: (216) 222-3061
Telecopy: (216) 222-7079 |
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$ |
55,000,000.00 |
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13.750000000 |
% |
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|
|
Name: KeyBank National Association
Address: 127 Public Square
Cleveland, OH 44114
Attention: Sukanya Raj
Telephone: (216) 689-7669
Telecopy: (216) 689-8329 |
|
$ |
55,000,000.00 |
|
|
|
13.750000000 |
% |
|
|
|
|
|
|
|
|
|
Name: Bank of America, N.A.
Address: 100 N. Tryon St.
17th Floor
Charlotte, NC 28255
Attention: Yinghua Zhang
Telephone: (980) 387.5915
Telecopy: (980) 683.6305 |
|
$ |
55,000,000.00 |
|
|
|
13.750000000 |
% |
|
|
|
|
|
|
|
|
|
Name: RBS Citizens, N.A.
Address: 1215 Superior Avenue, 5th Floor
Cleveland, OH 44114
Attention: Joshua Botnick
Telephone: (216) 277-0250
Telecopy: (216) 277-1205 |
|
$ |
40,000,000.00 |
|
|
|
10.000000000 |
% |
|
|
|
|
|
|
|
|
|
Name: SunTrust Bank
Address: 303 Peachtree St. NE, 23rd Fl
Atlanta, GA 30308
Attention: John Cappellari
Telephone: 404-813-6001
Telecopy: 404-214-8481 |
|
$ |
30,000,000.00 |
|
|
|
7.500000000 |
% |
SCHEDULE 1.1(B) - 1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount of Commitment for |
|
|
|
|
Lender |
|
Revolving Credit Loans |
|
|
Ratable Share |
|
Name: JPMorgan Chase Bank, National Association
Address: 10 S. Dearborn, Fl 09
Chicago, IL 60603
Attention: Dana J Moran
Telephone: 312-732-8159
Telecopy: 312-212-5914 |
|
$ |
30,000,000.00 |
|
|
|
7.500000000 |
% |
|
|
|
|
|
|
|
|
|
Name: DNB Nor Bank ASA, New York Branch
Address: 200 Park Avenue, 31st Floor
New York, NY 10166
Attention: Phil Kurpiewski
Telephone: (212) 681-3866
Telecopy: (212) 681-3900 |
|
$ |
30,000,000.00 |
|
|
|
7.500000000 |
% |
|
|
|
|
|
|
|
|
|
Name: Nordea Bank Finland Plc
Address: 437 Madison Avenue
New York, NY 10022
Attention: Henrik Steffensen
Telephone: (212) 318-9303
Telecopy: (212) 318-9318 |
|
$ |
25,000,000.00 |
|
|
|
6.250000000 |
% |
|
|
|
|
|
|
|
|
|
Name: HSBC Bank USA, N.A.
Address: One HSBC Center
Buffalo, NY 14203
Attention: Robert J. McArdle
Telephone: (716) 841-7410
Telecopy: (716) 841-6930 |
|
$ |
20,000,000.00 |
|
|
|
5.000000000 |
% |
|
|
|
|
|
|
|
|
|
Name: The Huntington National Bank
Address: 41 South High Street (HC 0735)
Columbus, OH 43215
Attention: Amanda Sigg
Telephone: (614) 480-4767
Telecopy: (877) 274-8593 |
|
$ |
20,000,000.00 |
|
|
|
5.000000000 |
% |
|
|
|
|
|
|
|
|
|
Name: FirstMerit Bank N.A.
Address: 106 S. Main Street
Akron, OH 44308
Attention: Robert G. Morlan
Telephone: (330) 996-6420
Telecopy: (330) 996-6394 |
|
$ |
20,000,000.00 |
|
|
|
5.000000000 |
% |
|
|
|
|
|
|
|
|
|
Name: First Commonwealth Bank
Address: 437 Grant Street, Suite 1600
Pittsburgh, PA 15219
Attention: Stephen J. Orban
Telephone: (412) 690-2212
Telecopy: (412) 690-2206 |
|
$ |
10,000,000.00 |
|
|
|
2.500000000 |
% |
SCHEDULE 1.1(B) - 2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount of Commitment for |
|
|
|
|
Lender |
|
Revolving Credit Loans |
|
|
Ratable Share |
|
Name: TriState Capital Bank
Address: 200 Public Square, Suite 3020
Cleveland, OH 44114
Attention: Tricia Balser
Telephone: (216) 575-4002
Telecopy: (216) 575-7555 |
|
$ |
10,000,000.00 |
|
|
|
2.500000000 |
% |
|
|
|
|
|
|
|
|
|
Total |
|
$ |
400,000,000 |
|
|
|
100.000000000 |
% |
|
|
|
|
|
|
|
SCHEDULE 1.1(B) - 3
SCHEDULE 1.1(B)
COMMITMENTS OF LENDERS AND ADDRESSES FOR NOTICES
Part 2 Addresses for Notices to Borrowers and Guarantors:
ADMINISTRATIVE AGENT
Name: PNC Bank, National Association
Address: 1900 East Ninth Street
Cleveland, OH 44114
Attention: David A. Burns
Telephone: (216) 222-3061
Telecopy: (216) 222-7079
With a Copy To:
Agency Services, PNC Bank, National Association
Mail Stop: P7-PFSC-04-I
Address: 500 First Avenue
Pittsburgh, PA 15219
Attention: Agency Services
Telephone: (412) 762-6442
Telecopy: (412) 762-8672
BORROWERS:
|
|
|
|
|
INVACARE CORPORATION, an Ohio corporation |
|
|
|
|
INVACARE AUSTRALIA PTY. LTD., an Australian proprietary limited company |
|
|
|
|
INVACARE CANADA L.P., an Ontario limited partnership |
|
|
|
|
SCANDINAVIAN MOBILITY INTERNATIONAL APS, a Danish limited liability company |
|
|
|
|
INVACARE GERMANY HOLDING GMBH, a Germany corporation |
|
|
|
|
INVACARE HOLDINGS C.V., a limited partnership (commanditaire vennootschap) established under the laws of the Netherlands |
|
|
|
|
INVACARE HOLDINGS NEW ZEALAND, a New Zealand corporation |
|
|
|
|
INVACARE HOLDING AS, a Norwegian corporation |
|
|
|
|
INVACARE HOLDINGS TWO AB, a Swedish limited liability company |
|
|
|
|
INVACARE INTERNATIONAL SÀRL, a Swiss corporation |
|
|
|
|
INVACARE LIMITED |
|
|
|
|
For the above listed Borrowers, all Notices to Borrowers should be addressed to: |
|
|
|
|
|
|
|
Name:
|
|
Invacare Corporation |
Address:
|
|
One Invacare Way |
|
|
Elyria, OH 44035 |
Attention:
|
|
Robert K. Gudbranson |
Telephone:
|
|
(440) 329-6111 |
Telecopy:
|
|
(440) 366-9008 |
SCHEDULE 1.1(B) - 4
DOMESTIC GUARANTORS:
|
|
|
|
|
ADAPTIVE SWITCH LABORATORIES, INC., a Texas corporation |
|
|
|
|
THE AFTERMARKET GROUP, INC., a Delaware corporation |
|
|
|
|
ALTIMATE MEDICAL, INC., a Minnesota corporation |
|
|
|
|
CENTRALIZED MEDICAL EQUIPMENT LLC, a Massachusetts limited liability company |
|
|
|
|
CHAMPION MANUFACTURING INC., a Delaware corporation |
|
|
|
|
FAMILY MEDICAL SUPPLY LLC, a Delaware limited liability company |
|
|
|
|
FREEDOM DESIGNS, INC., a California corporation |
|
|
|
|
GARDEN CITY MEDICAL INC., a Delaware corporation |
|
|
|
|
THE HELIXX GROUP, INC., an Ohio corporation |
|
|
|
|
INVACARE CANADIAN HOLDINGS, INC., a Delaware corporation |
|
|
|
|
INVACARE CANADIAN HOLDINGS, LLC, a Delaware limited liability company |
|
|
|
|
INVACARE CONTINUING CARE, INC., a Missouri corporation |
|
|
|
|
INVACARE CREDIT CORPORATION, an Ohio corporation |
|
|
|
|
INVACARE FLORIDA CORPORATION, a Delaware corporation |
|
|
|
|
INVACARE FLORIDA HOLDINGS, LLC, a Delaware limited liability company |
|
|
|
|
INVACARE HCS, LLC, an Ohio limited liability company |
|
|
|
|
INVACARE HOLDINGS, LLC, an Ohio limited liability company |
|
|
|
|
INVACARE INTERNATIONAL CORPORATION, an Ohio corporation |
|
|
|
|
INVACARE SUPPLY GROUP, INC., a Massachusetts corporation |
|
|
|
|
INVAMEX HOLDINGS LLC. an Delaware limited liability company |
|
|
|
|
KUSCHALL, INC., a Delaware corporation |
|
|
|
|
ROADRUNNER MOBILITY, INCORPORATED, a Texas corporation |
|
|
|
|
FOREIGN GUARANTORS:
|
|
|
|
|
HEALTHCARE EQUIPMENT WA PTY. LTD., an Australian proprietary limited company |
|
|
|
|
HOME HEALTH EQUIPMENT PTY. LTD, an Australian proprietary limited company |
|
|
|
|
MORRIS SURGICAL PTY. LTD, an Australian proprietary limited company |
|
|
|
|
6123449 CANADA INC., a Canadian corporation |
|
|
|
|
CARROLL HEALTHCARE GENERAL PARTNER, INC., an Ontario corporation |
|
|
|
|
CARROLL HEALTHCARE INC., an Ontario corporation |
|
|
|
|
CARROLL HEALTHCARE L.P., an Ontario limited partnership |
|
|
|
|
INVACARE CANADA GENERAL PARTNER INC., a Canadian corporation |
|
|
|
|
MOTION CONCEPTS L.P., an Ontario limited partnership |
|
|
|
|
PERPETUAL MOTION ENTERPRISES LIMITED, an Ontario corporation |
|
|
|
|
INVACARE A/S, a Danish limited liability company |
|
|
|
|
INVACARE EC-HØNG A/S, a Danish limited liability company |
|
|
|
|
INVACARE B.V., a Dutch private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) |
|
|
|
|
INVACARE HOLDINGS TWO B.V., a Dutch private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid |
|
|
|
|
AQUATEC OPERATIONS GmbH, a German corporation |
|
|
|
|
INVACARE AQUATEC GMBH, a German corporation |
|
|
|
|
INVACARE (DEUTSCHLAND) GMBH, a German corporation |
|
|
|
|
SCANDINAVIAN MOBILITY GMBH, a German corporation |
|
|
|
|
ULRICH ALBER GMBH, a German corporation |
|
|
|
|
SCHEDULE 1.1(B) - 5
|
|
|
|
|
DYNAMIC CONTROLS, a New Zealand corporation |
|
|
|
|
DYNAMIC SUZHOU HOLDINGS NEW ZEALAND, a New Zealand corporation |
|
|
|
|
INVACARE NEW ZEALAND, a New Zealand corporation |
|
|
|
|
INVACARE AS, a Norwegian limited liability company |
|
|
|
|
DOLOMITE AB, a Swedish limited liability company |
|
|
|
|
DOLOMITE HOLDING AB, a Swedish limited liability company |
|
|
|
|
INVACARE AB, a Swedish limited liability company |
|
|
|
|
INVACARE HOLDING AB, a Swedish limited liability company |
|
|
|
|
INVACARE DOLOMITE AB, a Swedish limited liability company |
|
|
|
|
INVACARE REA AB, a Swedish limited liability company |
|
|
|
|
INVACARE UK OPERATIONS LIMITED |
|
|
|
|
For the above listed Domestic Guarantors and Foreign Guarantors, all Notices to Guarantors should
be addressed to:
|
|
|
Name:
|
|
Invacare Corporation |
Address:
|
|
One Invacare Way |
|
|
Elyria, OH 44035 |
Attention:
|
|
Robert K. Gudbranson |
Telephone:
|
|
(440) 329-6111 |
Telecopy:
|
|
(440) 366-9008 |
SCHEDULE 1.1(B) - 6
SCHEDULE 1.1(D)
DOMESTIC EXCLUDED SUBSIDIARIES
|
|
|
|
|
I.H.H. CORP. |
|
|
|
|
INVATECTION INSURANCE COMPANY |
|
|
|
|
MEDBLOC, INC. |
|
|
|
|
SCHEDULE 1.1(F)
FOREIGN EXCLUDED SUBSIDIARIES
|
|
|
|
|
INVAMEX, S. DE R.L. DE C.V. |
|
|
|
|
INVACARE MAURITIUS HOLDINGS |
|
|
|
|
INVACARE ASIA LTD. |
|
|
|
|
INVACARE REHABILITATION EQUIPMENT (SUZHOU) COMPANY, LTD. |
|
|
|
|
INVACARE MEDICAL EQUIPMENT (SUZHOU) COMPANY, LTD. |
|
|
|
|
INVACARE PORTUGAL LDA |
|
|
|
|
INVACARE SA |
|
|
|
|
INVACARE (PORTUGAL) II LDA |
|
|
|
|
INVACARE MECCSAN SRL |
|
|
|
|
DYNAMIC EUROPE LTD. |
|
|
|
|
DYNAMIC CONNECT (SUZHOU) HI TECH ELECTRONICS CO. LTD. |
|
|
|
|
KUSCHALL AG |
|
|
|
|
INVACARE AG |
|
|
|
|
INVACARE FRANCE OPERATIONS SAS |
|
|
|
|
INVACARE POIRIER SAS |
|
|
|
|
INVACARE NV |
|
|
|
|
BENCRAFT LIMITED |
|
|
|
|
POIRIER (U.K.) LIMITED |
|
|
|
|
MEDICAL SUPPORT SYSTEMS HOLDINGS LIMITED |
|
|
|
|
INVACARE IRELAND LTD. |
|
|
|
|
M.S.S. CARE DIRECT LIMITED |
|
|
|
|
M.S.S. (EUROPE) LIMITED |
|
|
|
|
MEDICAL SUPPORT SYSTEMS LIMITED |
|
|
|
|
INVACARE (UK) LIMITED |
|
|
|
|
INVACARE VERWALTUNGS GMBH |
|
|
|
|
INVACARE AUSTRIA GMBH |
|
|
|
|
ALBER GMBH |
|
|
|
|
SCI DES HAUTES ROCHES |
|
|
|
|
SCHEDULE 1.1(M)
MATERIAL SUBSIDIARIES
|
|
|
|
|
INVACARE CORPORATION |
|
|
|
|
INVACARE AUSTRALIA PTY. LTD. |
|
|
|
|
INVACARE CANADA L.P. |
|
|
|
|
INVACARE GERMANY HOLDING GMBH |
|
|
|
|
INVACARE HOLDING AS |
|
|
|
|
INVACARE HOLDINGS C.V. |
|
|
|
|
INVACARE HOLDINGS NEW ZEALAND |
|
|
|
|
INVACARE HOLDING TWO AB |
|
|
|
|
INVACARE INTERNATIONAL SÀRL |
|
|
|
|
INVACARE LIMITED |
|
|
|
|
SCANDINAVIAN MOBILITY INTERNATIONAL APS |
|
|
|
|
|
|
|
|
|
ADAPTIVE SWITCH LABORATORIES, INC. |
|
|
|
|
ALTIMATE MEDICAL, INC. |
|
|
|
|
CENTRALIZED MEDICAL EQUIPMENT LLC |
|
|
|
|
CHAMPION MANUFACTURING INC. |
|
|
|
|
FAMILY MEDICAL SUPPLY LLC |
|
|
|
|
FREEDOM DESIGNS, INC. |
|
|
|
|
GARDEN CITY MEDICAL INC. |
|
|
|
|
INVACARE CANADIAN HOLDINGS, INC. |
|
|
|
|
INVACARE CANADIAN HOLDINGS, LLC |
|
|
|
|
INVACARE CONTINUING CARE, INC. |
|
|
|
|
INVACARE CREDIT CORPORATION |
|
|
|
|
INVACARE FLORIDA CORPORATION |
|
|
|
|
INVACARE FLORIDA HOLDINGS, LLC |
|
|
|
|
INVACARE HCS, LLC |
|
|
|
|
INVACARE HOLDINGS, LLC |
|
|
|
|
INVACARE INTERNATIONAL CORPORATION |
|
|
|
|
INVACARE SUPPLY GROUP, INC. |
|
|
|
|
INVAMEX HOLDINGS LLC |
|
|
|
|
KUSCHALL, INC. |
|
|
|
|
ROADRUNNER MOBILITY, INCORPORATED |
|
|
|
|
THE AFTERMARKET GROUP, INC. |
|
|
|
|
THE HELIXX GROUP, INC. |
|
|
|
|
|
|
|
|
|
6123449 CANADA INC. |
|
|
|
|
AQUATEC OPERATIONS GMBH |
|
|
|
|
CARROLL HEALTHCARE GENERAL PARTNER, INC. |
|
|
|
|
CARROLL HEALTHCARE INC. |
|
|
|
|
CARROLL HEALTHCARE L.P. |
|
|
|
|
DOLOMITE AB |
|
|
|
|
DOLOMITE HOLDING AB |
|
|
|
|
DYNAMIC CONTROLS |
|
|
|
|
|
|
|
|
|
DYNAMIC SUZHOU HOLDINGS NEW ZEALAND |
|
|
|
|
HEALTHCARE EQUIPMENT WA PTY. LTD. |
|
|
|
|
HOME HEALTH EQUIPMENT PTY. LTD |
|
|
|
|
INVACARE (DEUTSCHLAND) GMBH |
|
|
|
|
INVACARE A/S |
|
|
|
|
INVACARE AB |
|
|
|
|
INVACARE AQUATEC GMBH |
|
|
|
|
INVACARE AS |
|
|
|
|
INVACARE B.V. |
|
|
|
|
INVACARE CANADA GENERAL PARTNER INC. |
|
|
|
|
INVACARE DOLOMITE AB |
|
|
|
|
INVACARE EC-HØNG A/S |
|
|
|
|
INVACARE HOLDING AB |
|
|
|
|
INVACARE HOLDINGS TWO B.V. |
|
|
|
|
INVACARE NEW ZEALAND |
|
|
|
|
INVACARE REA AB |
|
|
|
|
INVACARE UK OPERATIONS LIMITED |
|
|
|
|
MORRIS SURGICAL PTY. LTD |
|
|
|
|
MOTION CONCEPTS L.P. |
|
|
|
|
PERPETUAL MOTION ENTERPRISES LIMITED |
|
|
|
|
SCANDINAVIAN MOBILITY GMBH |
|
|
|
|
ULRICH ALBER GMBH |
|
|
|
|
SCHEDULE 1.1(P)
PERMITTED LIENS
See Schedule 1.1(P) attached.
SCHEDULE 1.1(P)
INVACARE CORPORATION
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Invacare Corp.
Invacare Florida Corp.
d/b/a Invacare
(defendants)
|
|
Carrington Smith
(plaintiff)
|
|
Pinellas County
Florida
|
|
|
09.22.09 |
|
|
09-CA 16805
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corp.
Invacare Florida Corp.
d/b/a Invacare
(defendants)
|
|
National City Bank, as Multicurrency Collateral Agent
|
|
Seminole County
Florida
|
|
|
02.13.07 |
|
|
|
2007022559* |
|
|
fixture |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
St Johns Mercy Health Services, L.L.C.
St Johns Mercy Health System
Sisters of Mercy Health System
(defendants)
|
|
Rosene Ruzzo
(plaintiff)
|
|
St. Louis County
Missouri
|
|
|
01.29.09 |
|
|
09SL-CC00436
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
(movant/defendant/cross claimant/ cross defendant) et al.
|
|
Dr. Milton Prystowsky
(plaintiff) et al.
|
|
U.S. District Court
New Jersey District
|
|
|
01.04.07 |
|
|
07-CV-00072-SDW-MCA
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
(defendant)
|
|
Federal Insurance Company
(plaintiff)
|
|
Middlesex County
New Jersey
|
|
|
08.03.09 |
|
|
|
J 257434 09 |
|
|
judgment lien in Bergen County |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
LaSalle National Leasing Corporation
|
|
Ohio
Secretary of State
|
|
|
04.11.01 |
|
|
AP328066
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Citicorp Del Lease, Inc. As Agent For Harrison Credit Corp.
|
|
Ohio
Secretary of State
|
|
|
09.21.01 |
|
|
OH00038885573
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
NMHG Financial Services, Inc.
|
|
Ohio
Secretary of State
|
|
|
06.10.03 |
|
|
OH00064882084
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
LaSalle National Leasing Corporation
Deutsche Financial Services Corporation
|
|
Ohio
Secretary of State
|
|
|
11.18.03 |
|
|
OH00070848969
|
|
listed equipment |
SCHEDULE 1.1(P)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Steelcase Financial Services Inc.
|
|
Ohio
Secretary of State
|
|
|
11.09.04 |
|
|
OH00083364483
|
|
leased furniture and equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Steelcase Financial Services
Inc.
(assignor)
De Lage Landen Financial Services Inc.
(assignee)
|
|
Ohio
Secretary of State
|
|
|
12.28.04 |
|
|
|
20043640520 |
|
|
leased furniture and equipment partial assignment of OH00083364483 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Steelcase Financial Services
Inc.
(assignor)
De Lage Landen Financial Services
Inc.
(assignee)
|
|
Ohio
Secretary of State
|
|
|
02.15.05 |
|
|
|
20050470662 |
|
|
leased furniture and equipment
partial assignment of OH00083364483 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Breckenridge
Invacare Corporation
|
|
Intellipack, Inc.
|
|
Ohio
Secretary of State
|
|
|
01.24.05 |
|
|
OH00085786489
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Banc of America Leasing & Capital, LLC
|
|
Ohio
Secretary of State
|
|
|
10.05.05 |
|
|
OH00094016661
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Banc of America Leasing & Capital, LLC
|
|
Ohio
Secretary of State
|
|
|
10.05.05 |
|
|
OH00094016994
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
10.13.05 |
|
|
OH00094306242
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc
|
|
Ohio
Secretary of State
|
|
|
10.21.05 |
|
|
OH00094610772
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Dell Financial Services, L.P.
|
|
Ohio
Secretary of State
|
|
|
12.07.05 |
|
|
OH00096326175
|
|
leased computer equipment and peripherals |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
IBM Credit LLC
|
|
Ohio
Secretary of State
|
|
|
12.12.05 |
|
|
OH00096534742
|
|
leased equipment and related software |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Banc of America Leasing & Capital LLC
|
|
Ohio
Secretary of State
|
|
|
12.22.05 |
|
|
OH00096933990
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Banc of America Leasing & Capital LLC
|
|
Ohio
Secretary of State
|
|
|
01.25.06 |
|
|
OH00098076227
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Banc of America Leasing & Capital LLC
|
|
Ohio
Secretary of State
|
|
|
02.17.06 |
|
|
OH00098820852
|
|
specific computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Banc of America Leasing & Capital LLC
|
|
Ohio
Secretary of State
|
|
|
05.02.06 |
|
|
OH00101688937
|
|
leased computer equipment |
SCHEDULE 1.1(P)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Banc of America Leasing & Capital LLC
|
|
Ohio
Secretary of State
|
|
|
05.02.06 |
|
|
OH00101689161
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
07.07.06 |
|
|
OH00104167431
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
OFC Capital Corporation
|
|
Ohio
Secretary of State
|
|
|
07.07.06 |
|
|
OH00104167542
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Crown Credit Company
|
|
Ohio
Secretary of State
|
|
|
09.14.06 |
|
|
OH00106526889
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
09.20.06 |
|
|
OH00106756947
|
|
specific leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Banc of America Leasing & Capital LLC
|
|
Ohio
Secretary of State
|
|
|
12.21.06 |
|
|
OH00110183372
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
12.28.06 |
|
|
OH00110419404
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
12.28.06 |
|
|
OH00110419626
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Crown Credit Company
|
|
Ohio
Secretary of State
|
|
|
01.31.07 |
|
|
OH00111510873
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Crown Credit Company
|
|
Ohio
Secretary of State
|
|
|
03.19.07 |
|
|
OH00112980788
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
De Lage Landen Financial Services, Inc.
|
|
Ohio
Secretary of State
|
|
|
04.05.07 |
|
|
OH00113715758
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
De Lage Landen Financial Services, Inc.
|
|
Ohio
Secretary of State
|
|
|
04.05.07 |
|
|
OH00113715970
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
National City Bank, as Administrative Agent
|
|
Ohio
Secretary of State
|
|
|
04.27.07 |
|
|
OH00114555345*
|
|
all assets and personal property |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
IBM Credit LLC
|
|
Ohio
Secretary of State
|
|
|
05.18.07 |
|
|
OH00115306400
|
|
leased equipment and related software |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
IBM Credit LLC
|
|
Ohio
Secretary of State
|
|
|
06.15.07 |
|
|
OH00116280425
|
|
leased equipment and related software |
SCHEDULE 1.1(P)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
De Lage Landen Financial Services, Inc.
|
|
Ohio
Secretary of State
|
|
|
06.29.07 |
|
|
OH00116809508
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
OFC Capital Corporation
|
|
Ohio
Secretary of State
|
|
|
08.01.07 |
|
|
OH00117868452
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
OFC Capital Corporation
|
|
Ohio
Secretary of State
|
|
|
08.01.07 |
|
|
OH00117868674
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Bank of Blue Valley
|
|
Ohio
Secretary of State
|
|
|
08.01.07 |
|
|
OH00117869020
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
IBM Credit LLC
|
|
Ohio
Secretary of State
|
|
|
10.01.07 |
|
|
OH00119687915
|
|
leased equipment and related software |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
OFC Capital Corporation
|
|
Ohio
Secretary of State
|
|
|
10.11.07 |
|
|
OH00120109257
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
OFC Capital Corporation
|
|
Ohio
Secretary of State
|
|
|
10.11.07 |
|
|
OH00120109479
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
TCF Equipment Finance, Inc.
|
|
Ohio
Secretary of State
|
|
|
01.21.08 |
|
|
OH00123050013
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Toyota Motor Credit Corporation
|
|
Ohio
Secretary of State
|
|
|
01.22.08 |
|
|
OH00123163951
|
|
specific leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
BancorpSouth Equipment Finance, a division of BancorpSouth Bank
|
|
Ohio
Secretary of State
|
|
|
02.13.08 |
|
|
OH00123859310
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
BancorpSouth Equipment Finance, a division of BancorpSouth Bank
|
|
Ohio
Secretary of State
|
|
|
02.13.08 |
|
|
OH00123859532
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
Invacare Top End
|
|
Specialized Bicycle Components, Inc.
|
|
Ohio
Secretary of State
|
|
|
04.04.08 |
|
|
OH00125435667
|
|
all inventory of goods and merchandise, materials and equipment now held or hereafter sold bearing the trade name Specialized |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
BancorpSouth Equipment Finance, a division of BancorpSouth Bank
|
|
Ohio
Secretary of State
|
|
|
04.11.08 |
|
|
OH00125697994
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
BancorpSouth Equipment Finance, a division of BancorpSouth Bank
|
|
Ohio
Secretary of State
|
|
|
04.11.08 |
|
|
OH00125699352
|
|
leased computer equipment |
SCHEDULE 1.1(P)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Crown Credit Company
|
|
Ohio
Secretary of State
|
|
|
04.23.08 |
|
|
OH00125956530
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
05.02.08 |
|
|
OH00126323075
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Crown Credit Company
|
|
Ohio
Secretary of State
|
|
|
05.29.08 |
|
|
OH00127068822
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Crown Credit Company
|
|
Ohio
Secretary of State
|
|
|
05.30.08 |
|
|
OH00127099190
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Crown Credit Company
|
|
Ohio
Secretary of State
|
|
|
06.27.08 |
|
|
OH00127827418
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
First Federal Leasing
|
|
Ohio
Secretary of State
|
|
|
07.28.08 |
|
|
OH00128529962
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
First Federal Leasing
|
|
Ohio
Secretary of State
|
|
|
07.28.08 |
|
|
OH00128530096
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
07.28.08 |
|
|
OH00128547637
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Banc of America Leasing & Capital, LLC
|
|
Ohio
Secretary of State
|
|
|
08.07.08 |
|
|
OH00128749231
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
08.11.08 |
|
|
OH00128847007
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
IBM Credit LLC
|
|
Ohio
Secretary of State
|
|
|
08.14.08 |
|
|
OH00128908421
|
|
leased equipment and related software |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Wells Fargo Bank, N.A.
|
|
Ohio
Secretary of State
|
|
|
09.02.08 |
|
|
OH00129273829
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Wells Fargo Bank, N.A.
|
|
Ohio
Secretary of State
|
|
|
09.02.08 |
|
|
OH00129274053
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Wells Fargo Bank, N.A.
|
|
Ohio
Secretary of State
|
|
|
09.18.08 |
|
|
OH00129640919
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
IBM Credit LLC
|
|
Ohio
Secretary of State
|
|
|
10.01.08 |
|
|
OH00129955128
|
|
leased equipment and related software |
SCHEDULE 1.1(P)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
SG Equipment Finance USA Corp.
|
|
Ohio
Secretary of State
|
|
|
10.06.08 |
|
|
OH00130045819
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
10.06.08 |
|
|
OH00130045920
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Isuzu Finance of America, Inc.
|
|
Ohio
Secretary of State
|
|
|
10.14.08 |
|
|
OH00130206912
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Isuzu Finance of America, Inc.
|
|
Ohio
Secretary of State
|
|
|
10.14.08 |
|
|
OH00130207035
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Isuzu Finance of America, Inc.
|
|
Ohio
Secretary of State
|
|
|
10.14.08 |
|
|
OH00130207146
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
De Lage Landen Financial Services, Inc.
|
|
Ohio
Secretary of State
|
|
|
10.14.08 |
|
|
OH00130222007
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
BancorpSouth Equipment Finance, a division of BancorpSouth Bank
|
|
Ohio
Secretary of State
|
|
|
10.15.08 |
|
|
OH00130295777
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Banc of America Leasing & Capital, LLC
|
|
Ohio
Secretary of State
|
|
|
10.17.08 |
|
|
OH00130298925
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Crown Credit Company
|
|
Ohio
Secretary of State
|
|
|
10.29.08 |
|
|
OH00130565114
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
IBM Credit LLC
|
|
Ohio
Secretary of State
|
|
|
11.10.08 |
|
|
OH00130830490
|
|
leased equipment and related software |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
IBM Credit LLC
|
|
Ohio
Secretary of State
|
|
|
11.11.08 |
|
|
OH00130851757
|
|
leased equipment and related software |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Banc of America Leasing & Capital, LLC
|
|
Ohio
Secretary of State
|
|
|
11.24.08 |
|
|
OH00131166533
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
11.26.08 |
|
|
OH00131284543
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
IBM Credit, LLC
|
|
Ohio
Secretary of State
|
|
|
12.11.08 |
|
|
OH00131536326
|
|
leased equipment and related software |
SCHEDULE 1.1(P)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Isuzu Finance of America, Inc.
|
|
Ohio
Secretary of State
|
|
|
12.22.08 |
|
|
OH00131744993
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Park National Bank
|
|
Ohio
Secretary of State
|
|
|
01.06.09 |
|
|
OH00132058090
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
01.08.09 |
|
|
OH00132133363
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Wells Fargo Bank, N.A.
|
|
Ohio
Secretary of State
|
|
|
01.12.09 |
|
|
OH00132176444
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Wells Fargo Bank, N.A.
|
|
Ohio
Secretary of State
|
|
|
01.16.09 |
|
|
OH00132265544
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Bank of the West, Trinity Division
|
|
Ohio
Secretary of State
|
|
|
02.09.09 |
|
|
OH00132690565
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
SG Equipment Finance USA Corp.
|
|
Ohio
Secretary of State
|
|
|
03.18.09 |
|
|
OH00133392019
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Banc of America Leasing & Capital, LLC
|
|
Ohio Secretary of State
|
|
|
03.31.09 |
|
|
OH00133668185
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
IBM Credit LLC
|
|
Ohio
Secretary of State
|
|
|
04.20.09 |
|
|
OH00134089835
|
|
leased equipment and related software |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
De Lage Landen Financial Services, Inc.
|
|
Ohio
Secretary of State
|
|
|
05.19.09 |
|
|
OH00134783392
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
06.11.09 |
|
|
OH00135312619
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Park National Bank
|
|
Ohio
Secretary of State
|
|
|
06.22.09 |
|
|
OH00135535469
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Breckenridge Paper & Packaging
Invacare Corporation
|
|
Intellipack, Inc.
|
|
Ohio
Secretary of State
|
|
|
06.24.09 |
|
|
OH00135571798
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
SG Equipment Finance USA Corp.
|
|
Ohio
Secretary of State
|
|
|
06.24.09 |
|
|
OH00135595314
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Bank of the West, Trinity Division
|
|
Ohio
Secretary of State
|
|
|
07.17.09 |
|
|
OH00136037333
|
|
leased computer equipment |
SCHEDULE 1.1(P)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Park National Bank
|
|
Ohio
Secretary of State
|
|
|
07.17.09 |
|
|
OH00136065120
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Breckenridge Paper and Packaging
Invacare Corporation
|
|
Intellipack, Inc.
|
|
Ohio
Secretary of State
|
|
|
07.29.09 |
|
|
OH00136292696
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
SG Equipment Finance USA Corp.
|
|
Ohio
Secretary of State
|
|
|
08.05.09 |
|
|
OH00136419373
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
09.18.09 |
|
|
OH00137239160
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
09.18.09 |
|
|
OH00137240749
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
10.30.09 |
|
|
OH00138105421
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Wells Fargo Bank, N.A.
|
|
Ohio
Secretary of State
|
|
|
11.03.09 |
|
|
OH00138211284
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Wells Fargo Bank, N.A.
|
|
Ohio
Secretary of State
|
|
|
11.03.09 |
|
|
OH00138214654
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Wells Fargo Bank, N.A.
|
|
Ohio
Secretary of State
|
|
|
11.03.09 |
|
|
OH00138215222
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Bank of the West, Trinity Division
|
|
Ohio
Secretary of State
|
|
|
12.17.09 |
|
|
OH00139106888
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
RBS Asset Finance, Inc.
|
|
Ohio
Secretary of State
|
|
|
02.06.10 |
|
|
OH00140143920
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
MacQuarie Equipment Finance, LLC
|
|
Ohio
Secretary of State
|
|
|
02.06.10 |
|
|
OH00140144154
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
03.18.10 |
|
|
OH00140851981
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
03.25.10 |
|
|
OH00141015576
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
03.25.10 |
|
|
OH00141015687
|
|
leased computer equipment |
SCHEDULE 1.1(P)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Banc of America Leasing & Capital, LLC
|
|
Ohio
Secretary of State
|
|
|
04.05.10 |
|
|
OH00141232475
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
06.16.10 |
|
|
OH00142965964
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
RBS Asset Finance, Inc.
|
|
Ohio
Secretary of State
|
|
|
06.29.10 |
|
|
OH00143289638
|
|
leased equipment and related software |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Tennessee Commerce Bank
Tamco Financial Services, LLC
|
|
Ohio
Secretary of State
|
|
|
07.21.10 |
|
|
OH00143793960
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Wells Fargo Equipment Finance, Inc.
|
|
Ohio
Secretary of State
|
|
|
08.04.10 |
|
|
OH00144139571
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
08.10.10 |
|
|
OH00144222619
|
|
leased equipment, related software and personal property |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Isuzu Finance of America, Inc.
|
|
Ohio
Secretary of State
|
|
|
08.30.10 |
|
|
OH00144621978
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
Isuzu Finance of America, Inc.
|
|
Ohio
Secretary of State
|
|
|
08.31.10 |
|
|
OH00144664948
|
|
leaseed equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
08.31.10 |
|
|
OH00144670800
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
CSI Leasing, Inc.
|
|
Ohio
Secretary of State
|
|
|
08.31.10 |
|
|
OH00144683403
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
(plaintiff) et al.
|
|
Medical Depot, Inc.
(defendant) et al.
|
|
U.S. District Court
Northern District
Ohio
|
|
|
07.21.09 |
|
|
09-CV-1677-SO
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
(defendants) et al.
|
|
David M Detray
(plaintiffs)
et al.
|
|
Lorain County
Ohio
|
|
|
06.08.10 |
|
|
10CV167890
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
LaSalle National Leasing Corporation
|
|
Lorain County
Ohio
|
|
|
04.11.01 |
|
|
|
743333-1698 |
|
|
fixture |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation
|
|
National City Bank, as Multicurrency Collateral Agent
|
|
Lorain County
Ohio
|
|
|
02.13.07 |
|
|
|
2007-0178329* |
|
|
fixture |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
|
** |
|
To be amended post-closing. |
SCHEDULE 1.1(P)
ADAPTIVE SWITCH LABORATORIES, INC.
Fka Bargmann Management LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Adaptive Switch Laboratories, Inc.
|
|
National City Bank, as
Administrative Agent
|
|
Texas
Secretary of State
|
|
|
04.26.07 |
|
|
07-0014061342 *
|
|
All assets and personal property |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
THE AFTERMARKET GROUP, INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
The Aftermarket Group, Inc.
|
|
National City Bank, as
Administrative Agent
|
|
Delaware
Secretary of State
|
|
|
04.26.07 |
|
|
2007 1567824 *
|
|
all assets and personal property |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
ALTIMATE MEDICAL, INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Altimate Medical, Inc.
|
|
National City Bank, as
Administrative Agent
|
|
Minnesota
Secretary of State
|
|
|
04.26.07 |
|
|
200716540951 *
|
|
all assets and personal property |
|
|
|
|
|
|
|
|
|
|
|
|
|
Altimate Medical, Inc.
|
|
Signal Bank National
|
|
Renville County
Minnesota
|
|
|
12.03.01 |
|
|
379-299 #318222
|
|
combination mortgage, security agreement and fixture |
|
|
|
|
|
|
|
|
|
|
|
|
|
Altimate Medical, Inc.
|
|
National City Bank, as
Administrative Agent
|
|
Renville County
Minnesota
|
|
|
12.18.07 |
|
|
A 346519 *
|
|
leasehold mortgage, assignment of leases and rents, security agreement and fixture |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
CENTRALIZED MEDICAL EQUIPMENT LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Centralized Medical Equipment LLC
|
|
Medela, Inc.
|
|
Massachusetts
Secretary of State
|
|
|
10.26.07 |
|
|
|
200760764280 |
|
|
leased consumer goods, equipment, inventory bearing trademark Medela |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Centralized Medical Equipment LLC
|
|
VGM Financial Services, a Division
of TCF Equipment Finance, Inc.
|
|
Massachusetts
Secretary of State
|
|
|
05.06.08 |
|
|
|
200865128310 * |
|
|
accounts, money, general intangibles, instruments, documents and chattel paper |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Centralized Medical Equipment LLC
Specialty Medical Equipment
(defendants)
|
|
Rian Mallari
(plaintiff)
|
|
Massachusetts
Secretary of State
|
|
|
06.22.10 |
|
|
NOCV2010-01143
|
|
|
|
|
|
* |
|
To be amended post-closing. |
SCHEDULE 1.1(P)
CHAMPION MANUFACTURING, INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Champion Manufacturing Inc.
|
|
National City Bank, as
Administrative Agent
|
|
Delaware
Secretary of State
|
|
|
04.26.07 |
|
|
2007 1567592 *
|
|
all assets and personal property |
|
|
|
|
|
|
|
|
|
|
|
|
|
Champion Manufacturing Inc.
Invacare Corporation
(defendants)
|
|
Douglas Keeslar
(plaintiff)
|
|
Elkhart County
Indiana
|
|
|
04.05.10 |
|
|
20D01-1004-PL-13
|
|
|
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
FREEDOM DESIGNS, INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Freedom Designs, Inc.
|
|
De Lage Landen Financial
Services, Inc.
|
|
California
Secretary of State
|
|
|
02.01.07 |
|
|
07-7101562786
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
Freedom Designs, Inc.
|
|
National City Bank, as
Administrative Agent
|
|
California
Secretary of State
|
|
|
04.26.07 |
|
|
07-7111878181*
|
|
all assets and personal property |
|
|
|
|
|
|
|
|
|
|
|
|
|
Freedom Designs, Inc.
|
|
Intech Funding Corp.
|
|
California
Secretary of State
|
|
|
08.20.08 |
|
|
08-7169346701
|
|
specific equipment |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
GARDEN CITY MEDICAL, INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Garden City Medical Inc.
|
|
National City Bank, as
Administrative Agent
|
|
Delaware
Secretary of State
|
|
|
04.26.07 |
|
|
2007 1567113 *
|
|
all assets and personal property |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
THE HELIXX GROUP, INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
The Helixx Group
|
|
National City Bank, as
Administrative Agent
|
|
OH
Secretary of State
|
|
|
04.27.07 |
|
|
OH00114555123 *
|
|
all assets and personal property |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
INVACARE CANADIAN HOLDINGS, INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Invacare Canadian Holdings, Inc.
|
|
National City Bank, as
Administrative Agent
|
|
Delaware
Secretary of State
|
|
|
04.26.07 |
|
|
2007 1567709 *
|
|
all assets and personal property |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
INVACARE CANADIAN HOLDINGS, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Invacare Canadian Holdings, Inc.
|
|
National City Bank, as
Administrative Agent
|
|
Delaware
Secretary of State
|
|
|
04.26.07 |
|
|
2007 1567709 *
|
|
all assets and personal property |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
INVACARE CONTINUING CARE, INC.
fka HEALTHTECH PRODUCTS, INC.
dba NAYLOR MEDICAL SALES & RENTAL, INC.
dba SPECIALTY MEDICAL EQUIPMENT, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Invacare Continuing Care, Inc.
(defendant)
|
|
Rosene Ruzzo
(plaintiff)
|
|
St. Louis County
Missouri
|
|
|
01.29.09 |
|
|
09SL-CC00436
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Continuing Care, Inc.
(defendant)
|
|
Naylor Medical Sales & Rentals
(plaintiff)
|
|
U.S. District Court
Western District
Tennessee
|
|
|
06.02.09 |
|
|
2:09-CV-02344-
STA-cgc
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Healthtech Products, Inc.
|
|
JPMorgan Chase Bank, N.A.,
as Agent
|
|
Missouri
Secretary of State
|
|
|
10.05.05 |
|
|
20050100775J *
|
|
right, title and interest in
and to all receivables |
|
|
|
|
|
|
|
|
|
|
|
|
|
Healthtech Products, Inc.
|
|
National City Bank, as
Administrative Agent
|
|
Missouri
Secretary of State
|
|
|
04.26.07 |
|
|
20070049218E **
|
|
all assets and personal property |
|
|
|
|
|
|
|
|
|
|
|
|
|
Specialty Medical Equipment LLC
|
|
VGM Financial Services, a
Division of TCF Equipment
Finance Inc.
|
|
Massachusetts
Secretary of State
|
|
|
05.06.08 |
|
|
200865128220 ***
|
|
blanket |
|
|
|
|
|
|
|
|
|
|
|
|
|
Specialty Medical Equipment LLC
|
|
VGM Financial Services, a
Division of TCF Equipment
Finance Inc.
|
|
Massachusetts
Secretary of State
|
|
|
12.18.08 |
|
|
200870224780 ***
|
|
blanket |
|
|
|
|
|
|
|
|
|
|
|
|
|
Specialty Medical Equipment LLC
|
|
Konica Minolta Premier Finance
|
|
Massachusetts
Secretary of State
|
|
|
04.16.09 |
|
|
200972470850 ***
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
Specialty Medical Equipment LLC
|
|
VGM Financial Services, a
Division of TCF Equipment
Finance Inc.
|
|
Massachusetts
Secretary of State
|
|
|
07.24.09 |
|
|
200974465250 ***
|
|
blanket |
|
|
|
|
|
|
|
|
|
|
|
|
|
Specialty Medical Equipment LLC
|
|
VGM Financial Services, a
Division of TCF Equipment
Finance Inc.
|
|
Massachusetts
Secretary of State
|
|
|
10.08.09 |
|
|
200975906680 ***
|
|
blanket |
|
|
|
|
|
|
|
|
|
|
|
|
|
Specialty Medical Equipment LLC
|
|
Invacare Credit Corporation
|
|
Massachusetts
Secretary of State
|
|
|
10.26.09 |
|
|
200976236830 ***
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
Specialty Medical Equipment LLC
|
|
Invacare Credit Corporation
|
|
Massachusetts
Secretary of State
|
|
|
01.26.10 |
|
|
201078016490 ***
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
Centralized Medical Equipment LLC
Specialty Medical Equipment
(defendants)
|
|
Rian Mallari
(plaintiff)
|
|
Norfolk County
Massachusetts
|
|
|
06.22.10 |
|
|
NOCV2010-01143
|
|
|
|
|
|
* |
|
To be terminated post-closing. |
|
** |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
|
*** |
|
To be amended post-closing. |
SCHEDULE 1.1(P)
INVACARE CREDIT CORPORATION
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Invacare Credit Corporation
|
|
De Lage Landen Financial
Services Inc.
|
|
Ohio
Secretary of State
|
|
|
02.26.07 |
|
|
OH00112234030
|
|
all leases and or financing
agreements with Invacare Credit
Corporation as lessor, payee or
creditor |
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Credit Corporation
|
|
National City Bank, as
Administrative Agent
|
|
Ohio
Secretary of State
|
|
|
04.27.07 |
|
|
OH00114555456 *
|
|
all assets and personal property |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
INVACARE FLORIDA CORPORATION
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Invacare Florida Corporation
|
|
National City Bank, as
Administrative Agent
|
|
Delaware
Secretary of State
|
|
|
04.26.07 |
|
|
2007 1567667 *
|
|
all assets and personal property |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
INVACARE FLORIDA HOLDINGS, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Invacare Florida Holdings, LLC
|
|
National City Bank, as
Administrative Agent
|
|
Delaware
Secretary of State
|
|
|
04.26.07 |
|
|
2007 1567683 *
|
|
all assets and personal property |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
INVACARE HCS, LLC
fka Bargmann Management LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Invacare HCS
|
|
Noble Systems Corporation
|
|
Ohio
Secretary of State
|
|
|
05.05.09 |
|
|
OH00134455135
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare HCS, LLC
|
|
Pitney Bowes Global
Financial Services LLC
|
|
Ohio
Secretary of State
|
|
|
09.24.09 |
|
|
OH00137355378
|
|
equipment
manufactured, sold,
distributed or
financed by Pitney
Bowes |
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare HCS, LLC
|
|
Pitney Bowes Global
Financial Services LLC
|
|
Ohio
Secretary of State
|
|
|
03.09.10 |
|
|
OH00140671090
|
|
equipment
manufactured, sold,
distributed or
financed by Pitney
Bowes |
SCHEDULE 1.1(P)
INVACARE HOLDINGS, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Invacare Holdings, LLC
|
|
National City Bank, as
Administrative Agent
|
|
Ohio
Secretary of State
|
|
|
04.27.07 |
|
|
OH00114555789 *
|
|
all assets and personal property |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
INVACARE INTERNATIONAL CORPORATION
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Invacare International Corporation
|
|
National City Bank, as
Administrative Agent
|
|
Ohio
Secretary of State
|
|
|
04.27.07 |
|
|
OH00114555901 *
|
|
all assets and personal property |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
INVACARE SUPPLY GROUP, INC.
d/b/a SUBURBAN OSTOMY SUPPLY CO., INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Invacare Supply Group, Inc.
|
|
JP Morgan Chase Bank, N.A., as agent
|
|
Massachusetts
Secretary of State
|
|
|
10.04.05 |
|
|
|
200542490310 * |
|
|
right, title and interest in
and to all receivables |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group Inc.
|
|
Raymond Leasing Corporation
|
|
Massachusetts
Secretary of State
|
|
|
11.18.05 |
|
|
|
200543599300 |
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group Inc.
|
|
Raymond Leasing Corporation
|
|
Massachusetts
Secretary of State
|
|
|
11.18.05 |
|
|
|
200543599580 |
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
Banc of America Leasing & Capital, LLC
|
|
Massachusetts
Secretary of State
|
|
|
03.16.06 |
|
|
|
200646389880 |
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
De Lage Landen Financial Services Inc.
|
|
Massachusetts
Secretary of State
|
|
|
07.26.06 |
|
|
|
200649900280 |
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
CSI Leasing, Inc.
|
|
Massachusetts
Secretary of State
|
|
|
07.26.06 |
|
|
|
200649900730 |
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
Raymond Leasing Corporation
|
|
Massachusetts
Secretary of State
|
|
|
12.26.06 |
|
|
|
200653521910 |
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
Raymond Leasing Corporation
|
|
Massachusetts
Secretary of State
|
|
|
01.04.07 |
|
|
|
200753737040 |
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
De Lage Landen Financial Services, Inc.
|
|
Massachusetts
Secretary of State
|
|
|
02.13.07 |
|
|
|
200754700610 |
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
National City Bank, as Administrative
Agent
|
|
Massachusetts
Secretary of State
|
|
|
04.26.07 |
|
|
|
200756401010 * |
|
|
all assets and personal property |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
De Lage Landen Financial Services, Inc.
|
|
Massachusetts
Secretary of State
|
|
|
10.10.07 |
|
|
|
200760349180 |
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
De Lage Landen Financial Services, Inc.
|
|
Massachusetts
Secretary of State
|
|
|
12.20.07 |
|
|
|
200761989510 |
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
BancorpSouth Equipment Finance, a
Division of BancorpSouth Bank
|
|
Massachusetts
Secretary of State
|
|
|
02.25.08 |
|
|
|
200863445680 |
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
OFC Capital Corporation
|
|
Massachusetts
Secretary of State
|
|
|
02.28.08 |
|
|
|
200863543160 |
|
|
leased equipment |
SCHEDULE 1.1(P)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Invacare Supply Group, Inc.
|
|
BancorpSouth Equipment Finance, a
division of BancorpSouth Bank
|
|
Massachusetts
Secretary of State
|
|
|
03.10.08 |
|
|
|
200863786350 |
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
CSI Leasing, Inc.
|
|
Massachusetts
Secretary of State
|
|
|
05.09.08 |
|
|
|
200865250020 |
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
BancorpSouth Equipment Finance, a
division of BancorpSouth Bank
|
|
Massachusetts
Secretary of State
|
|
|
06.27.08 |
|
|
|
200866674870 |
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
Park National Bank
|
|
Massachusetts
Secretary of State
|
|
|
12.30.08 |
|
|
|
200870393990 |
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
Park National Bank
|
|
Massachusetts
Secretary of State
|
|
|
02.03.09 |
|
|
|
200971057890 |
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
Crown Credit Company
|
|
Massachusetts
Secretary of State
|
|
|
03.03.09 |
|
|
|
200971593460 |
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
Crown Credit Company
|
|
Massachusetts
Secretary of State
|
|
|
03.03.09 |
|
|
|
200971596560 |
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
Bank of the West, Trinity Division
|
|
Massachusetts
Secretary of State
|
|
|
05.21.09 |
|
|
|
200973219890 |
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
SG Equipment Finance USA Corp
|
|
Massachusetts
Secretary of State
|
|
|
07.28.09 |
|
|
|
200974518280 |
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
CSI Leasing, Inc.
|
|
Massachusetts
Secretary of State
|
|
|
09.17.09 |
|
|
|
200975512980 |
|
|
leased computer equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
CSI Leasing, Inc.
|
|
Massachusetts
Secretary of State
|
|
|
10.30.09 |
|
|
|
200976332190 |
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
Wells Fargo Bank, N.A.
|
|
Massachusetts
Secretary of State
|
|
|
11.10.09 |
|
|
|
200976550620 |
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
Wells Fargo Bank, N.A.
|
|
Massachusetts
Secretary of State
|
|
|
11.10.09 |
|
|
|
200976550990 |
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
CSI Leasing, Inc.
|
|
Massachusetts
Secretary of State
|
|
|
03.18.10 |
|
|
|
201078999810 |
|
|
leased computer equipment |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
KUSCHALL, INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Kuschall, Inc.
|
|
National City Bank, as
Administrative Agent
|
|
Delaware
Secretary of State
|
|
|
04.26.07 |
|
|
2007 1567758 *
|
|
all assets and personal property |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
ROADRUNNER MOBILITY, INCORPORATED
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Road Runner Mobility, Incorporated
|
|
US Bancorp
|
|
Texas
Secretary of State
|
|
|
10.02.06 |
|
|
06-0032690490
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
Road Runner Mobility, Incorporated
|
|
US Bancorp
|
|
Texas
Secretary of State
|
|
|
10.26.06 |
|
|
06-0035470914
|
|
specific equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
Road Runner Mobility, Incorporated
|
|
US Bancorp
|
|
Texas
Secretary of State
|
|
|
07.26.07 |
|
|
07-0025289629
|
|
specific equipment |
SCHEDULE 1.1(P)
6123449 CANADA INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
6123449 Canada Inc.
|
|
National City Bank
|
|
Province of Ontario
Canada
|
|
|
02.09.07 |
|
|
632720043*
|
|
inventory,
equipment ,
accounts other |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
CARROLL HEALTHCARE GENERAL PARTNER, INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Carroll
Healthcare General
Partners, Inc.
Carroll Healthcare L.P.
|
|
National City Bank
|
|
Province of Ontario
Canada
|
|
|
07.15.09 |
|
|
654912486 *
|
|
inventory,
equipment ,
accounts other |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
CARROLL HEALTHCARE, INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Carroll Healthcare, Inc.
|
|
1537638 Ontario Limited
|
|
Province of Ontario
Canada
|
|
|
10.12.05 |
|
|
|
619638408 |
|
|
equipment,
accounts, listed
equipment copier |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carroll Healthcare, Inc.
|
|
National City Bank
|
|
Province of Ontario
Canada
|
|
|
02.09.07 |
|
|
|
632715858* |
|
|
inventory,
equipment ,
accounts other |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
CARROLL HEALTHCARE L.P.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Carroll Healthcare L.P.
Carroll Healthcare General
Partners, Inc
|
|
National City Bank
|
|
Province of Ontario
Canada
|
|
|
07.15.09 |
|
|
654912486 *
|
|
inventory,
equipment ,
accounts other |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
INVACARE CANADA L.P.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Invacare Canada L.P.
|
|
IOS Financial Services
|
|
Province of Ontario Canada
|
|
|
09.01.10 |
|
|
|
664138719 |
|
|
equipment, other |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Jim Peplinskis Leasemaster Huberview Motors Incorporated
|
|
Province of Ontario Canada
|
|
|
08.20.10 |
|
|
|
663823215 |
|
|
equipment, other, motor vehicle
2010 Dodge Grand Caravan vin: 2D4RN4DX3AR403732 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Jim Peplinskis Leasemaster Huberview Motors Incorporated
|
|
Province of Ontario Canada
|
|
|
08.20.10 |
|
|
|
663823233 |
|
|
equipment, other, motor vehicle
2010 Dodge Grand Caravan vin: 2D4RN4DX2AR403284 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Jim Peplinskis Leasemaster Huberview Motors Incorporated
|
|
Province of Ontario Canada
|
|
|
07.15.10 |
|
|
|
662971536 |
|
|
inventory, motor vehicle
2010 Dodge Grand Caravan vin: 2D4RN4DX6AR336852 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Jim Peplinskis Leasemaster Huberview Motors Incorporated
|
|
Province of Ontario Canada
|
|
|
06.28.10 |
|
|
|
662512464 |
|
|
inventory, motor vehicle
2010 Dodge Grand Caravan vin: 2D4RN4DX2AR403284 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Jim Peplinskis Leasemaster Huberview Motors Incorporated
|
|
Province of Ontario Canada
|
|
|
06.28.10 |
|
|
|
662513319 |
|
|
inventory, motor vehicle
2010 Dodge Grand Caravan vin: 2D4RN4DX3AR403732 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Jim Peplinskis Leasemaster Huberview Motors Incorporated
|
|
Province of Ontario Canada
|
|
|
06.24.10 |
|
|
|
662430321 |
|
|
inventory, motor vehicle
2010 Dodge Grand Caravan vin: 2D4RN4DX8AR336853 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Province of Ontario Canada
|
|
|
05.31.10 |
|
|
|
661747329 |
|
|
goods, equipment, other, motor vehicle
2010 Dodge Grand Caravan vin: 2D4RN4DX5AR336762 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
CSI Leasing Canada LTD.
|
|
Province of Ontario Canada
|
|
|
05.12.10 |
|
|
|
661323915 |
|
|
leased computer equipment and peripherals |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Province of Ontario Canada
|
|
|
04.26.10 |
|
|
|
660850263 |
|
|
equipment, other, motor vehicle
2004 Raymond Lift Truck vin: 0190450411 |
SCHEDULE 1.1(P)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Province of Ontario Canada
|
|
|
04.26.10 |
|
|
|
660850299 |
|
|
equipment, other, motor vehicle
1998 Raymond Lift Truck vin: 1129821746 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Jim Peplinskis Leasemaster Huberview Motors Incorporated
|
|
Province of Ontario Canada
|
|
|
02.02.10 |
|
|
|
659046429 |
|
|
inventory, motor vehicle
2010 Dodge Grand Caravan vin: 2D4RN4DX9AR190219 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Jim Peplinskis Leasemaster Huberview Motors Incorporated
|
|
Province of Ontario Canada
|
|
|
02.02.10 |
|
|
|
659048139 |
|
|
inventory, motor vehicle
2010 Dodge Grand Caravan vin: 2D4RN4DX7AR190218 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Jim Peplinskis Leasemaster National Huberview Motors Incorporated
|
|
Province of Ontario Canada
|
|
|
01.22.10 |
|
|
|
658880973 |
|
|
equipment, other, motor vehicle
2010 Dodge Grand Caravan vin: 2D4RN4DX7AR190218 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Province of Ontario Canada
|
|
|
01.22.10 |
|
|
|
658881054 |
|
|
goods, equipment other, motor vehicle
2010 Dodge Grand Caravan vin: 2D4RN4DX9AR190219 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Province of Ontario Canada
|
|
|
12.17.09 |
|
|
|
658277568 |
|
|
goods, equipment other, motor vehicle
2010 Dodge Grand Caravan vin: 2D4RN4DX6AR184930 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P. Invacare Canada Inc.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Province of Ontario Canada
|
|
|
12.17.09 |
|
|
|
658277667 |
|
|
goods, equipment other, motor vehicle
2010 Dodge Grand Caravan vin: 2D4RN4DX6AR190220 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Province of Ontario Canada
|
|
|
11.10.09 |
|
|
|
657512037 |
|
|
goods, equipment other, motor vehicle
2008 Volvo vin: YV4CZ982X81427623 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Province of Ontario Canada
|
|
|
10.19.09 |
|
|
|
657009423 |
|
|
goods, equipment other, motor vehicle
2010 Sienna Limited vin: 5TDDK4CC0AS031563 |
SCHEDULE 1.1(P)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Province of Ontario Canada
|
|
|
10.09.09 |
|
|
|
656869095 |
|
|
goods, equipment other, motor vehicle
2010 Dodge Grand Caravan vin: 2D4RN4DX4AR164188 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Jim Peplinskis Leasemaster Huberview Motors Incorporated
|
|
Province of Ontario Canada
|
|
|
09.30.09 |
|
|
|
656649009 |
|
|
inventory, motor vehicle
2010 Dodge Grand Caravan vin: 2D4RN4DX2AR164190 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Jim Peplinskis Leasemaster Huberview Motors Incorporated
|
|
Province of Ontario Canada
|
|
|
09.15.09 |
|
|
|
656289297 |
|
|
equipment, motor vehicle
2010 Do Grand Caravan vin: 2D4RN4DX2AR164187 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Jim Peplinskis Leasemaster Huberview Motors Incorporated
|
|
Province of Ontario Canada
|
|
|
09.15.09 |
|
|
|
656289378 |
|
|
inventory, motor vehicle
2010 Do Grand Caravan vin: 2D4RN4DX4AR164188 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Province of Ontario Canada
|
|
|
06.22.09 |
|
|
|
654361749 |
|
|
goods, equipment, other, motor vehicle
2009 Dodge Grand Caravan vin: 2D8HN44X69R655819 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada Inc. Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Province of Ontario Canada
|
|
|
06.22.09 |
|
|
|
654361839 |
|
|
goods, equipment, other, motor vehicle
2009 Dodge Grand Caravan vin: 2D8HN44X99R664918 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Province of Ontario Canada
|
|
|
06.15.09 |
|
|
|
654199389 |
|
|
equipment, other, motor vehicle
2009 Dodge Grand Caravan vin: 2D8HN44XX9R657198 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada Inc. Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Province of Ontario Canada
|
|
|
05.12.09 |
|
|
|
653382621 |
|
|
goods, equipment, other, motor vehicle
2009 Dodge Grand Caravan vin: 2D8HN44X49R639635 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada Inc. Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Province of Ontario Canada
|
|
|
05.11.09 |
|
|
|
653356683 |
|
|
goods, equipment, other, motor vehicle
2009 Dodge Grand Caravan vin: 2D8HN44X79R505251 |
SCHEDULE 1.1(P)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Invacare Canada L.P.
|
|
CSI Leasing Canada LTD.
|
|
Province of Ontario Canada
|
|
|
02.27.09 |
|
|
|
651766401 |
|
|
leased computer equipment and peripherals |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Province of Ontario Canada
|
|
|
01.16.09 |
|
|
|
651062781 |
|
|
goods, equipment, other, motor vehicle
2009 Dodge Grand Caravan vin: 2D8HN44X69R581799 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P. Invacare Canada Inc.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Province of Ontario Canada
|
|
|
01.16.09 |
|
|
|
651063177 |
|
|
goods, equipment, other, motor vehicle
2009 Dodge Grand Caravan vin: 2D8HN44X79R505251 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
IOS Financial Services
|
|
Province of Ontario Canada
|
|
|
11.25.08 |
|
|
|
650125764 |
|
|
equipment, other |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Pitney Bowes Global Financial Services
|
|
Province of Ontario Canada
|
|
|
10.01.08 |
|
|
|
648947394 |
|
|
equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
CSI Leasing Canada LTD.
|
|
Province of Ontario Canada
|
|
|
09.12.08 |
|
|
|
648488286 |
|
|
leased computer equipment and peripherals |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Province of Ontario Canada
|
|
|
03.20.08 |
|
|
|
643509855 |
|
|
equipment, other, motor vehicle
2007 Lexus RX350 vin: 2T2HK31U97C037060 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Province of Ontario Canada
|
|
|
01.24.08 |
|
|
|
642262383 |
|
|
equipment, other, motor vehicle
2008 Dodge Grand Caravan vin: 1D8HN11H68B133880 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Pitney Bowes of Canada LTD
|
|
Province of Ontario Canada
|
|
|
07.06.07 |
|
|
|
637046127 |
|
|
inventory, equipment copiers |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
CSI Leasing Canada LTD.
|
|
Province of Ontario Canada
|
|
|
07.03.07 |
|
|
|
636906042 |
|
|
leased computer equipment and peripherals |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
National City Bank
|
|
Province of Ontario Canada
|
|
|
02.09.07 |
|
|
|
632715903* |
|
|
inventory, equipment, accounts other, motor vehicle |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
CSI Leasing Canada LTD.
|
|
Province of Ontario Canada
|
|
|
08.24.06 |
|
|
|
628288569 |
|
|
leased computer equipment and peripherals |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
CSI Leasing Canada LTD.
|
|
Province of Ontario Canada
|
|
|
01.13.06 |
|
|
|
622011267 |
|
|
leased computer equipment and peripherals |
SCHEDULE 1.1(P)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Invacare Canada L.P.
|
|
Roy Foss Motors LTD.
|
|
Province of Ontario Canada
|
|
|
12.12.05 |
|
|
|
621258219 |
|
|
equipment, other motor vehicle |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation et al Invacare Corporation Invamex (defendants)
|
|
Soneil International Limited Soneil Shagun Limited (plaintiffs)
|
|
Peel (Brampton) Superior Court Canada
|
|
|
09.21.05 |
|
|
CV5000096430000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
National City Bank
|
|
Government of British Columbia Canada
|
|
|
02.09.07 |
|
|
496601D * B7839127
|
|
all present and after acquired personal property |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Government of British Columbia Canada
|
|
|
03.20.08 |
|
|
253785E B8619569
|
|
2007 Lexus RX350 vin: 2T2HK31U97C037060 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Government of British Columbia Canada
|
|
|
01.16.09 |
|
|
785800E B9168774
|
|
2009 Dodge Grand Caravan vin: 2D8HN44X69R581799 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Government of British Columbia Canada
|
|
|
06.15.09 |
|
|
023944F B9413531
|
|
2009 Dodge Grand Caravan vin: 2D8HN44XX9R657198 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Government of British Columbia Canada
|
|
|
01.22.10 |
|
|
375789F B9774216
|
|
2010 Dodge Grand Caravan vin: 2D4RN4DX9AR190219 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Government of New Brunswick Canada
|
|
|
01.16.09 |
|
|
17090739 32566
|
|
2009 Dodge Grand Caravan vin: 2D8HN44X79R505251 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Government of New Brunswick Canada
|
|
|
05.11.09 |
|
|
17466491 133149
|
|
2009 Dodge Grand Caravan vin: 2D8HN44X79R505251 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Pitney Bowes of Canada LTD
|
|
Registre Quebec Canada
|
|
|
07.11.07 |
|
|
|
07-0395527-0001 |
|
|
leased equipment |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Huberview Motors Incorporated Jim Peplinskis Leasemaster
|
|
Registre Quebec Canada
|
|
|
01.25.10 |
|
|
|
10-0041445-0001 |
|
|
2010 Dodge Grand Caravan vin: 2D4RN4DX9AR190219 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Jim Peplinskis Leasemaster Huberview Motors Incorporated
|
|
Registre Quebec Canada
|
|
|
12.17.09 |
|
|
|
09-0783234-0001 |
|
|
2010 Dodge Grand Caravan vin: 2D4RN4DX6AR184930 |
SCHEDULE 1.1(P)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Invacare Canada L.P.
|
|
Bay Street Funding Trust (assignee) Montreal Trust Company of Canada (Trustee)
|
|
Registre Quebec Canada
|
|
|
05.07.08 |
|
|
|
08-0259375-0001 |
|
|
2008 Dodge Grand Caravan vin: 2D8HN44P88R673785 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
National City Bank
|
|
Registre Quebec Canada
|
|
|
02.12.07 |
|
|
|
07-0072674-0001 * |
|
|
bond no. 1 dated as of 02.12.07 (as amended, restated, renewed, re-issued, supplemented or
modified from time to time) in favor of the holder) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
National City Bank
|
|
Registre Quebec Canada
|
|
|
02.12.07 |
|
|
|
07-0072674-0002 * |
|
|
bond no. 1 dated as of 02.12.07 (as amended, restated, renewed, re-issued, supplemented or
modified from time to time) in favor of the holder |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
National City Bank
|
|
Registre Quebec Canada
|
|
|
02.09.07 |
|
|
|
07-0070870-0001 * |
|
|
the universality of all of the movable and immovable property of the Grantor, corporeal and
incorporeal, present and future, of any nature whatsoever and wheresoever situated, the
whole including, without limitation, of present and future property |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Bay Street Funding Trust (assignee) Montreal Trust Company of Canada (Trustee)
|
|
Registre Quebec Canada
|
|
|
01.25.08 |
|
|
|
08-0041231-0001 |
|
|
2008 Dodge Grand Caravan vin: 1D8HN11H68B133880 |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
INVACARE CANADA GENERAL PARTNER INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Invacare Canada General Partner Inc.
|
|
G.N. Johnson Equipment Co., Ltd
|
|
Province of Ontario Canada
|
|
|
08.24.07 |
|
|
|
638473572 |
|
|
equipment, motor vehicle 2006 raymond lift truck vin: dss-06-06534 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Corporation et al Invacare Corporation Invamex (defendants)
|
|
Soneil International Limited Soneil Shagun Limited (plaintiffs)
|
|
Province of Ontario Canada
|
|
|
09.21.05 |
|
|
CV5000096430000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Invacare Canada General Partner Inc.
|
|
G.N. Johnson Equipment Co., Ltd
|
|
Province of British Columbia Canada
|
|
|
05.12.06 |
|
|
001513D B7330658
|
|
specific equipment |
SCHEDULE 1.1(P)
MOTION CONCEPTS L.P.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Motion Concepts L.P.
|
|
National City Bank
|
|
Province of Ontario
Canada
|
|
|
02.09.07 |
|
|
632715912 *
|
|
inventory,
equipment ,
accounts other |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing. |
SCHEDULE 1.1(P)
PERPETUAL MOTION ENTERPRISES LIMITED
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FILE |
|
|
|
|
DEBTOR |
|
SECURED PARTY |
|
JURISDICTION |
|
DATE |
|
FILE NO. |
|
DESCRIPTION |
Perpetual Motion Enterprises
Limited
|
|
National City Bank
|
|
Province of Ontario
Canada
|
|
|
02.09.07 |
|
|
63715921 *
|
|
inventory,
equipment ,
accounts other |
|
|
|
* |
|
To be released at closing by payoff letter. Further release steps to be taken post-closing.. |
SCHEDULE 2.5.1
EXISTING LETTERS OF CREDIT
|
|
|
|
|
Beneficiary |
|
Issuing Lender |
|
Face Amount |
Federal Insurance Company
|
|
PNC Bank, National
Association
|
|
$1,326,000 |
|
|
|
|
|
Western Surety Co / Federal
Insurance Co
|
|
PNC Bank, National
Association
|
|
$ 668,000 |
|
|
|
|
|
Commerzbank AG
|
|
PNC Bank, National
Association
|
|
EUR 700,000
(USD equivalent $887,075) |
|
|
|
|
|
Ohio Bureau of Workers Compensation
|
|
PNC Bank, National
Association
|
|
$42,000 |
|
|
|
|
|
FirstEnergy Solutions
|
|
PNC Bank, National
Association
|
|
$145,000 |
SCHEDULE 6.1.2
SUBSIDIARIES
See Schedule 6.1.2 attached.
SCHEDULE 6.1.2
SUBSIDIARIES AND OWNERS; INVESTMENT COMPANIES
(i):
* Indicates that some or all of the equity interests listed were pledged to Administrative Agent in
connection with a previous financing.
|
|
|
|
|
|
|
|
|
U.S. State of |
|
|
|
|
|
|
Organization |
|
|
|
|
|
|
(if U.S. entity) |
|
|
|
|
|
|
or |
|
|
|
|
|
|
Country of |
|
|
|
|
|
|
Organization |
|
|
|
|
|
|
(if non-U.S. |
|
|
|
Amount of Equity Interests |
Company Subsidiaries |
|
entity) |
|
Holder(s) of Equity Interests |
|
Issued (specifying type)1 |
Adaptive Switch Laboratories, Inc.
|
|
State of Texas
|
|
Invacare Corporation
|
|
*10,000 common shares, $0.10 par value
|
|
|
|
|
|
|
|
The Aftermarket Group, Inc.
|
|
State of Delaware
|
|
Invacare Corporation
|
|
*100 common shares, no par value
|
|
|
|
|
|
|
|
Alber GmbH
|
|
Switzerland
|
|
Invacare AG
|
|
19 Class A shares at CHF 1,000
1 Class B share at CHF 1,000
|
|
|
|
|
|
|
|
Altimate Medical, Inc.
|
|
State of Minnesota
|
|
Invacare Corporation
|
|
*207,900 common shares, $0.01 par value
|
|
|
|
|
|
|
|
Aquatec Operations GmbH
|
|
Germany
|
|
Invacare Germany Holding GmbH
|
|
25,000 EUR
|
|
|
|
|
|
|
|
Bencraft Limited
|
|
United Kingdom
|
|
Scandinavian Mobility International ApS
|
|
2,200 preference shares of £1.00 each
4429 ordinary shares of £1.00 each
|
|
|
|
|
|
|
|
Carroll Healthcare General Partner, Inc.
|
|
Ontario
|
|
Invacare Canadian Holdings, Inc.
|
|
431,918 common shares, no par value
|
|
|
|
|
|
|
|
Carroll Healthcare Inc.
|
|
Ontario
|
|
Invacare Canadian Holdings, Inc.
|
|
722,000 common shares, no par value
|
|
|
|
1 |
|
Ownership percentages are provided where an
entity has more than one (1) equity holder. |
|
|
|
|
|
|
|
|
|
U.S. State of |
|
|
|
|
|
|
Organization |
|
|
|
|
|
|
(if U.S. entity) |
|
|
|
|
|
|
or |
|
|
|
|
|
|
Country of |
|
|
|
|
|
|
Organization |
|
|
|
|
|
|
(if non-U.S. |
|
Holder(s) of Equity |
|
Amount of Equity Interests |
Company Subsidiaries |
|
entity) |
|
Interests |
|
Issued (specifying type)1 |
Carroll Healthcare L.P.
|
|
Ontario
|
|
Carroll Healthcare General Partner, Inc.
Carroll Healthcare Inc.
|
|
431,819 General Partner units issued to Carroll Healthcare General Partner, Inc. (1%)
42,750,099 Limited Partner units issued to Carroll Healthcare Inc. (99%)
|
|
|
|
|
|
|
|
Centralized Medical Equipment LLC
|
|
State of Massachusetts
|
|
Invacare Continuing Care, Inc.
|
|
Invacare Continuing Care, Inc. is the sole member.
|
|
|
|
|
|
|
|
Champion Manufacturing Inc.
|
|
State of Delaware
|
|
Invacare Corporation
|
|
*100 common shares, $0.01 par value
|
|
|
|
|
|
|
|
Dolomite AB
|
|
Sweden
|
|
Dolomite Holding AB
|
|
[information not needed]
|
|
|
|
|
|
|
|
Dolomite Holding AB
|
|
Sweden
|
|
Invacare Holding Two AB
|
|
[information not needed]
|
|
|
|
|
|
|
|
Dynamic Connect (Suzhou) Hi Tech Electronics Co. Ltd.
|
|
China
|
|
Dynamic Suzhou Holdings New Zealand
|
|
US$1,540,000 paid up capital |
|
|
|
|
|
|
|
Dynamic Controls
|
|
New Zealand
|
|
Invacare Holdings New Zealand
|
|
950,000 ordinary shares @ $1NZD
|
|
|
|
|
|
|
|
Dynamic Europe Ltd.
|
|
United Kingdom
|
|
Dynamic Controls
Invacare Holdings New Zealand
|
|
Dynamic Controls: 99 ordinary shares of £1.00 each (99%)
Invacare Holdings New Zealand: 1 ordinary share of £1.00 (1%)
|
|
|
|
|
|
|
|
Dynamic Suzhou Holdings New Zealand
|
|
New Zealand
|
|
Dynamic Controls
|
|
100 ordinary shares @ $1NZD
|
|
|
|
|
|
|
|
Family Medical Supply LLC
|
|
State of Delaware
|
|
Invacare Corporation
|
|
Invacare Corporation is the sole member.
|
|
|
|
|
|
|
|
Freedom Designs, Inc.
|
|
State of California
|
|
Invacare Corporation
|
|
*9,000 common shares, no par value
|
|
|
|
|
|
|
|
Garden City Medical Inc.
|
|
State of Delaware
|
|
Invacare Corporation
|
|
*100 common shares, $0.01 par value
|
|
|
|
|
|
|
|
|
|
U.S. State of |
|
|
|
|
|
|
Organization |
|
|
|
|
|
|
(if U.S. entity) |
|
|
|
|
|
|
or |
|
|
|
|
|
|
Country of |
|
|
|
|
|
|
Organization |
|
|
|
|
|
|
(if non-U.S. |
|
Holder(s) of Equity |
|
Amount of Equity Interests |
Company Subsidiaries |
|
entity) |
|
Interests |
|
Issued (specifying type)1 |
Healthcare Equipment WA Pty. Ltd.
|
|
Australia
|
|
Invacare Australia Pty. Ltd.
|
|
100 $1.00 ordinary shares (issued capital $100)
|
|
|
|
|
|
|
|
The Helixx Group, Inc.
|
|
State of Ohio
|
|
Invacare Corporation
|
|
*100 common shares, no par value
|
|
|
|
|
|
|
|
Home Health Equipment Pty. Ltd.
|
|
Australia
|
|
Invacare Australia Pty. Ltd.
|
|
3000 $0.0333 ordinary shares (issued capital $99.90)
|
|
|
|
|
|
|
|
I.H.H. Corp.
|
|
State of Delaware
|
|
Invacare Corporation
|
|
[information not needed] |
|
|
|
|
|
|
|
Invacare AB
|
|
Sweden
|
|
Invacare Holding AB
|
|
[information not needed]
|
|
|
|
|
|
|
|
Invacare AG
|
|
Switzerland
|
|
Invacare Holdings Two B.V.
|
|
[information not needed]
|
|
|
|
|
|
|
|
Invacare Aquatec GmbH
|
|
Germany
|
|
Invacare Germany Holding GmbH
|
|
25,000 EUR
|
|
|
|
|
|
|
|
Invacare Asia Ltd.
|
|
Hong Kong
|
|
Invacare International Corporation
|
|
50,000 common shares, $1 par value
|
|
|
|
|
|
|
|
Invacare AS
|
|
Norway
|
|
Invacare Holding AS
Scandinavian Mobility International ApS
|
|
Invacare Holding AS: 7,600 shares at NOK 500 (80%)
Scandinavian Mobility International ApS: 1,900 shares at NOK 500 (20%)
|
|
|
|
|
|
|
|
Invacare A/S
|
|
Denmark
|
|
Scandinavian Mobility International ApS
|
|
Share amount nominally DKK 10,000,000 owned by Scandinavian Mobility International ApS
|
|
|
|
|
|
|
|
Invacare Australia Pty. Ltd.
|
|
Australia
|
|
Invacare Holdings Two B.V.
|
|
12,300,000 $1.00 A Class shares = $12,300,000
23,700,012 $1.00 ordinary shares = $23,700,012
|
|
|
|
|
|
|
|
Invacare Austria GmbH
|
|
Austria
|
|
Invacare Germany Holding GmbH
|
|
[information not needed]
|
|
|
|
|
|
|
|
|
|
U.S. State of |
|
|
|
|
|
|
Organization |
|
|
|
|
|
|
(if U.S. entity) |
|
|
|
|
|
|
or |
|
|
|
|
|
|
Country of |
|
|
|
|
|
|
Organization |
|
|
|
|
|
|
(if non-U.S. |
|
Holder(s) of Equity |
|
Amount of Equity Interests |
Company Subsidiaries |
|
entity) |
|
Interests |
|
Issued (specifying type)1 |
Invacare B.V.
|
|
Netherlands
|
|
Invacare Holdings Two B.V.
|
|
[information not needed]
|
|
|
|
|
|
|
|
Invacare Canada General Partner Inc.
|
|
Canada
|
|
Invacare Canadian Holdings, Inc.
|
|
*1,001 common shares, no par value
|
|
|
|
|
|
|
|
Invacare Canada L.P.
|
|
Ontario
|
|
Invacare Canada General Partner Inc.
Carroll Healthcare Inc.
|
|
General Partner: 1 unit issued to Invacare Canada General Partner Inc. (1%)
Limited Partner: 99 units issued to Carroll Healthcare Inc. (99%)
|
|
|
|
|
|
|
|
Invacare Canadian Holdings, LLC
|
|
State of Delaware
|
|
Invacare Canadian Holdings, Inc.
|
|
Invacare Canadian Holdings, Inc. is the sole member.
|
|
|
|
|
|
|
|
Invacare Canadian Holdings, Inc.
|
|
State of Delaware
|
|
Invacare International Corporation
|
|
Class A Voting Common Stock: *1,000, $0.01 par value
Class B Non-Voting Common Stock: *3,000, $0.01 par value
|
|
|
|
|
|
|
|
Invacare Continuing Care, Inc.
|
|
State of Missouri
|
|
Invacare Corporation
|
|
Class A Common Shares: *150,000, no par value
Class B Common Shares: *166,750, no par value
|
|
|
|
|
|
|
|
Invacare Credit Corporation
|
|
State of Ohio
|
|
Invacare Corporation
|
|
*100 common shares, $1.00 par value
|
|
|
|
|
|
|
|
Invacare (Deutschland) GmbH
|
|
Germany
|
|
Invacare Germany Holding GmbH
|
|
127,822.97 EUR
|
|
|
|
|
|
|
|
Invacare Dolomite AB
|
|
Sweden
|
|
Invacare Holdings Two B.V.
|
|
[information not needed]
|
|
|
|
|
|
|
|
Invacare EC-Høng A/S
|
|
Denmark
|
|
Scandinavian Mobility International ApS
|
|
Share amount nominally DKK 17,000,000 owned by Scandinavian Mobility International ApS
|
|
|
|
|
|
|
|
|
|
U.S. State of |
|
|
|
|
|
|
Organization |
|
|
|
|
|
|
(if U.S. entity) |
|
|
|
|
|
|
or |
|
|
|
|
|
|
Country of |
|
|
|
|
|
|
Organization |
|
|
|
|
|
|
(if non-U.S. |
|
Holder(s) of Equity |
|
Amount of Equity Interests |
Company Subsidiaries |
|
entity) |
|
Interests |
|
Issued (specifying type)1 |
Invacare Florida Corporation
|
|
State of Delaware
|
|
Invacare Florida Holdings, LLC
|
|
*400 common shares, $0.01 par value
|
|
|
|
|
|
|
|
Invacare Florida Holdings, LLC
|
|
State of Delaware
|
|
Invacare Canadian Holdings, Inc.
|
|
*343,837 Class A Common Shares
196,163 Special Shares
|
|
|
|
|
|
|
|
Invacare France Operations SAS
|
|
France
|
|
Invacare Holdings Two B.V.
|
|
[information not needed]
|
|
|
|
|
|
|
|
Invacare Germany Holding GmbH
|
|
Germany
|
|
Scandinavian Mobility International ApS
|
|
EUR 7,800,000
|
|
|
|
|
|
|
|
Invacare HCS, LLC
|
|
State of Ohio
|
|
Invacare Corporation
|
|
Invacare Corporation is the sole member.
|
|
|
|
|
|
|
|
Invacare Holding AB
|
|
Sweden
|
|
Invacare Holding Two AB
|
|
[information not needed]
|
|
|
|
|
|
|
|
Invacare Holding AS
|
|
Norway
|
|
Invacare Holdings Two B.V.
|
|
1,000 shares, each with a par value of NOK 100
|
|
|
|
|
|
|
|
Invacare Holdings C.V.
|
|
Netherlands
|
|
Invacare International Corporation
Invacare Holdings, LLC
|
|
99% Invacare International Corporation
1% Invacare Holdings, LLC
|
|
|
|
|
|
|
|
Invacare Holdings, LLC
|
|
State of Ohio
|
|
Invacare International Corporation
|
|
Invacare International Corporation is the sole member.
|
|
|
|
|
|
|
|
Invacare Holdings New Zealand
|
|
New Zealand
|
|
Invacare Holdings Two B.V.
|
|
100 ordinary shares @ $1NZD
|
|
|
|
|
|
|
|
Invacare Holding Two AB
|
|
Sweden
|
|
Scandinavian Mobility International ApS
|
|
[information not needed]
|
|
|
|
|
|
|
|
Invacare Holdings Two B.V.
|
|
Netherlands
|
|
Invacare Holdings C.V.
|
|
[information not needed]
|
|
|
|
|
|
|
|
Invacare International Corporation
|
|
State of Ohio
|
|
Invacare Corporation
|
|
*100 common shares, no par value
|
|
|
|
|
|
|
|
Invacare International Sàrl
|
|
Switzerland
|
|
Invacare Holdings Two B.V.
|
|
1 share with a par value of CHF 1020000
|
|
|
|
|
|
|
|
|
|
U.S. State of |
|
|
|
|
|
|
Organization |
|
|
|
|
|
|
(if U.S. entity) |
|
|
|
|
|
|
or |
|
|
|
|
|
|
Country of |
|
|
|
|
|
|
Organization |
|
|
|
|
|
|
(if non-U.S. |
|
Holder(s) of Equity |
|
Amount of Equity Interests |
Company Subsidiaries |
|
entity) |
|
Interests |
|
Issued (specifying type)1 |
Invacare Ireland Ltd.
|
|
Ireland
|
|
Invacare UK Operations Limited
|
|
[information not needed]
|
|
|
|
|
|
|
|
Invacare Limited
|
|
United Kingdom
|
|
Invacare UK Operations Limited
|
|
49,607 ordinary shares of £1.00 each
|
|
|
|
|
|
|
|
Invacare Mauritius Holdings
|
|
Mauritius
|
|
Invacare International Corporation
|
|
[information not needed]
|
|
|
|
|
|
|
|
Invacare Mecc San SRL
|
|
Italy
|
|
Invacare Holdings Two B.V.
Invacare International Corporation
|
|
[information not needed] |
|
|
|
|
|
|
|
Invacare Medical Equipment (Suzhou) Company, Ltd.
|
|
China
|
|
Invacare Mauritius Holdings
|
|
Registered capital of $5,000,000.00 |
|
|
|
|
|
|
|
Invacare New Zealand
|
|
New Zealand
|
|
Invacare Holdings New Zealand
|
|
100 ordinary shares @ $1NZD each
|
|
|
|
|
|
|
|
Invacare NV
|
|
Belgium
|
|
Scandinavian Mobility International ApS
|
|
[information not needed] |
|
|
|
|
|
|
|
Invacare Poirier SAS
|
|
France
|
|
Invacare France Operations SAS
|
|
[information not needed]
|
|
|
|
|
|
|
|
Invacare Portugal Lda
|
|
Portugal
|
|
Invacare International Corporation
Invacare Corporation
|
|
[information not needed] |
|
|
|
|
|
|
|
Invacare (Portugal) II Lda
|
|
Portugal
|
|
Invacare Portugal Lda
|
|
[information not needed]
|
|
|
|
|
|
|
|
Invacare Rea AB
|
|
Sweden
|
|
Invacare Holding AB
|
|
[information not needed]
|
|
|
|
|
|
|
|
Invacare Rehabilitation Equipment (Suzhou) Company, Ltd.
|
|
China
|
|
Invacare Mauritius Holdings
|
|
Registered capital of $2,531,977.00 |
|
|
|
|
|
|
|
|
|
U.S. State of |
|
|
|
|
|
|
Organization |
|
|
|
|
|
|
(if U.S. entity) |
|
|
|
|
|
|
or |
|
|
|
|
|
|
Country of |
|
|
|
|
|
|
Organization |
|
|
|
|
|
|
(if non-U.S. |
|
Holder(s) of Equity |
|
Amount of Equity Interests |
Company Subsidiaries |
|
entity) |
|
Interests |
|
Issued (specifying type)1 |
Invacare SA
|
|
Spain
|
|
Invacare International Corporation
|
|
[information not needed] |
|
|
|
|
|
|
|
Invacare Supply Group, Inc.
|
|
State of Massachusetts
|
|
Invacare Corporation
|
|
*200 common shares, no par value
|
|
|
|
|
|
|
|
Invacare (UK) Limited
|
|
United Kingdom
|
|
Scandinavian Mobility International ApS
Invacare Limited
|
|
100,000 ordinary shares of £1.00 each issued to Scandinavian Mobility International ApS (91%)
10,000 deferred shares of £1.00 each issued to Invacare Limited (9%)
|
|
|
|
|
|
|
|
Invacare UK Operations Limited
|
|
United Kingdom
|
|
Scandinavian Mobility International ApS
|
|
5,550,272 ordinary shares of £1.00 each
|
|
|
|
|
|
|
|
Invacare Verwaltungs GmbH
|
|
Germany
|
|
Scandinavian Mobility International ApS
|
|
[information not needed]
|
|
|
|
|
|
|
|
Invamex Holdings LLC
|
|
State of Delaware
|
|
Invacare Corporation
|
|
Invacare Corporation is the sole member.
|
|
|
|
|
|
|
|
Invamex, S. de R.L. de C.V.
|
|
Mexico
|
|
Invacare Corporation
Invamex Holdings LLC
|
|
[information not needed] |
|
|
|
|
|
|
|
Invatection Insurance Company
|
|
State of Vermont
|
|
Invacare Corporation
|
|
1,000 common shares, $100 par value
|
|
|
|
|
|
|
|
Küschall AG
|
|
Switzerland
|
|
Invacare Holdings Two B.V.
|
|
[information not needed]
|
|
|
|
|
|
|
|
Kuschall, Inc.
|
|
State of Delaware
|
|
Invacare Corporation
|
|
*1,500 common shares, no par value
|
|
|
|
|
|
|
|
Medbloc, Inc.
|
|
State of Delaware
|
|
Motion Concepts L.P.
|
|
868 common shares, no par value
|
|
|
|
|
|
|
|
|
|
U.S. State of |
|
|
|
|
|
|
Organization |
|
|
|
|
|
|
(if U.S. entity) |
|
|
|
|
|
|
or |
|
|
|
|
|
|
Country of |
|
|
|
|
|
|
Organization |
|
|
|
|
|
|
(if non-U.S. |
|
Holder(s) of Equity |
|
Amount of Equity Interests |
Company Subsidiaries |
|
entity) |
|
Interests |
|
Issued (specifying type)1 |
Medical Support Systems Holdings Limited
|
|
United Kingdom
|
|
Invacare UK Operations Limited
|
|
5,797,917 ordinary shares of £1.00 each
|
|
|
|
|
|
|
|
Medical Support Systems Limited
|
|
United Kingdom
|
|
M.S.S. (Europe) Limited
|
|
100 ordinary shares of £1.00
|
|
|
|
|
|
|
|
Morris Surgical Pty. Ltd.
|
|
Australia
|
|
Invacare Australia Pty. Ltd.
|
|
3000 $2.00 ordinary shares (issued capital $6000)
|
|
|
|
|
|
|
|
Motion Concepts L.P.
|
|
Ontario
|
|
Invacare Canada L.P.
Carroll Healthcare Inc.
6123449 Canada Inc.
|
|
Limited Partners: 5,000 units issued to Invacare Canada L.P. (13%)
33,000 units issued to Carroll Healthcare Inc. (87%)
General Partner: 6123449 Canada Inc. (not required to contribute capital to or be issued units by the limited partnership)
|
|
|
|
|
|
|
|
M.S.S. Care Direct Limited
|
|
United Kingdom
|
|
Medical Support Systems Holdings Limited
|
|
2 ordinary shares of £1.00 each |
|
|
|
|
|
|
|
M.S.S. (Europe) Limited
|
|
United Kingdom
|
|
Medical Support Systems Holdings Limited
|
|
250,000 ordinary shares of £1.00 each |
|
|
|
|
|
|
|
Perpetual Motion Enterprises Limited
|
|
Ontario
|
|
Motion Concepts L.P.
|
|
50 common shares, no par value
|
|
|
|
|
|
|
|
Poirier (U.K.) Limited
|
|
United Kingdom
|
|
Invacare UK Operations Limited
|
|
100,100 ordinary shares of £1.00 each
|
|
|
|
|
|
|
|
Roadrunner Mobility, Incorporated
|
|
State of Texas
|
|
Invacare Corporation
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1,059 common shares, no par value
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Scandinavian Mobility GmbH
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Germany
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Invacare Germany Holding GmbH
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1,406,052.67 EUR
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U.S. State of |
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Organization |
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(if U.S. entity) |
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or |
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Country of |
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Organization |
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Holder(s) of Equity |
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Amount of Equity Interests |
Company Subsidiaries |
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entity) |
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Interests |
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Issued (specifying type)1 |
Scandinavian Mobility International ApS
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Denmark
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Invacare Holdings Two B.V.
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Share amount nominally DKK 600,000,000 owned by Invacare Holdings Two B.V.
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SCI des Hautes Roches
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France
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Invacare France Operations SAS
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[information not needed]
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Ulrich Alber GmbH
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Germany
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Invacare Germany Holding GmbH
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25,000 EUR
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6123449 Canada Inc.
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Canada
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Invacare Canadian Holdings, Inc.
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*1,000 common shares, no par value
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(ii):
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1. |
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Options outstanding under Companys Performance Plan. |
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2. |
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Forward Subscription Agreement, dated December 23, 2009, between 12707273 Alberta ULC
(n/k/a Carroll Healthcare Inc.) (as issuer) and Invacare Canadian Holdings, Inc. (as
subscriber). |
SCHEDULE 6.1.4
REQUIRED CONSENTS
UCC-1 financing statements to be filed at closing by the Administrative Agent for each of the
Domestic Loan Parties at the Office of the Secretary of State in the State of
incorporation/formation of each such Domestic Loan Party.
Patent, Trademark and Copyright Security Agreement to be filed post-closing by the Administrative
Agent at the Patent and Trademark Office.
SCHEDULE 6.1.14
ENVIRONMENTAL DISCLOSURES
NONE
SCHEDULE 6.1.18
OTHER REGULATORY PROTECTION DISCLOSURES
1. ROADRUNNER MOBILITY, INCORPORATED
2. CENTRALIZED MEDICAL EQUIPMENT LLC
SCHEDULE 7.1.1
REQUIREMENTS OF OPINIONS OF COUNSEL
The opinions of counsel shall confirm those representations and warranties contained in
Section 6.1 of the Credit Agreement which are listed below:
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6.1.1 |
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Organization and Qualification; Power and Authority |
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6.1.2 |
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Subsidiaries; Investment Companies |
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6.1.3 |
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Validity and Binding Effect |
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6.1.4 |
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No Conflict; Consents |
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6.1.5 |
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Litigation |
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6.1.11 |
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Liens in Collateral |
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6.1.17 |
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Licensing and Accreditation |
Such other matters as the Administrative Agent may reasonably request
SCHEDULE 8.1.3
INSURANCE REQUIREMENTS RELATING TO THE COLLATERAL
COVENANTS:
At the request of the Administrative Agent, the Loan Parties shall deliver to the Administrative
Agent and each of the Lenders (x) on the Closing Date and annually thereafter an original
certificate of insurance signed by the Loan Parties independent insurance broker describing and
certifying as to the existence of the insurance on the Collateral required to be maintained by this
Agreement and the other Loan Documents, together with a copy of the endorsement described in the
next sentence attached to such certificate, and (y) from time to time a summary schedule indicating
all insurance then in force with respect to each of the Loan Parties. Such policies of insurance
shall contain special endorsements which include the provisions set forth below or are otherwise in
form acceptable to the Administrative Agent in its discretion. The applicable Loan Parties shall
notify the Administrative Agent promptly of any occurrence causing a material loss or decline in
value of the Collateral and the estimated (or actual, if available) amount of such loss or decline.
Any monies received by the Administrative Agent constituting insurance proceeds may, at the option
of the Administrative Agent, (i) in the case of property insurance proceeds received during the
existence of an Event of Default, be applied by the Administrative Agent to the payment of the
Obligations in accordance with the terms of the Credit Agreement, (ii) for losses of less than
$15,000,000 received at such time as no Event of Default exists, be disbursed by the Administrative
Agent to the applicable Loan Parties, and (iii) for losses equal to or greater than $15,000,000
received at such time as no Event of Default exists, be disbursed by the Administrative Agent to
the applicable Loan Parties on such terms as are deemed appropriate by the Administrative Agent for
the repair, restoration and/or replacement of Collateral and other property in respect of which
such proceeds were received.
ENDORSEMENT:
(i) specify the Administrative Agent as an additional insured, mortgagee and lender loss payee as
its interests may appear (as applicable),
(ii) with respect to all property insurance policies, provide that the interest of the Lenders
shall be insured regardless of any breach or violation by the applicable Loan Parties of any
warranties, declarations or conditions contained in such policies or any action or inaction of the
applicable Loan Parties or others insured under such policies, except that the insurer shall not be
obligated to maintain the insurance if the breach consists of non-payment of premiums which
continues for 30 days after written notice to Administrative Agent,
(iii) provide a waiver of any right of the insurers to set off or counterclaim or any other
deduction, whether by attachment or otherwise,
(iv) provide that any and all rights of subrogation which the insurers may have or acquire against
the Loan Parties shall be, at all times and in all respects, junior and subordinate to the prior
Payment In Full of the Indebtedness hereunder and that no insurer shall exercise or assert any
right of subrogation until such time as the Indebtedness hereunder has been paid in full and the
Commitments have terminated,
(v) provide that no cancellation of such policies for any reason (including non-payment of premium)
nor any change therein shall be effective until at least thirty (30) days after receipt by the
Administrative Agent of written notice of such cancellation or change,
(vi) be primary without right of contribution of any other insurance carried by or on behalf of any
additional insureds with respect to their respective interests in the Collateral, and
(vii) provide that inasmuch as the policy covers more than one insured, all terms, conditions,
insuring agreements and endorsements (except limits of liability) shall operate as if there were a
separate policy covering each insured.
SCHEDULE 8.2.1
EXISTING INDEBTEDNESS
1. |
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All indebtedness related to the Permitted Liens set forth on Schedule 1.1(P) |
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2. |
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All indebtedness related to Letters of Credit set forth on Schedule 2.5.1 |
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3. |
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Indebtedness under performance, surety, statutory, appeal or other bonds in an aggregate
amount equal to $3,224,760 |
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4. |
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Other indebtedness related to real estate building leases with respect to the following
properties in an aggregate amount equal to $8,657,971: |