Exhibit 10.4
SECOND OMNIBUS WAIVER,
AMENDMENT AND REAFFIRMATION OF PERFORMANCE UNDERTAKING
THIS
SECOND OMNIBUS
WAIVER, AMENDMENT AND REAFFIRMATION OF PERFORMANCE
UNDERTAKING, dated as of December 15, 2006 (this "Waiver"), is by
and among:
(a) Invacare Corporation, an Ohio corporation ("Invacare"),
Healthtech
Products, Inc., a Missouri corporation, and Invacare Supply Group, Inc.,
a
Massachusetts
corporation (each of the foregoing including Invacare, an
"Originator" and collectively, the "Originators"),
(b) Invacare
Receivables
Corporation, a
Delaware corporation ("IRC"
and,
together with the Originators, the "Companies"),
(c) Park Avenue Receivables Company, LLC ("Conduit"), and
(d) JPMorgan Chase Bank, N.A., individually (together with Conduit,
the
"Purchasers") and as agent (together with its successors and
assigns in
such
capacity, the "Agent").
W I T N E S S E T H :
WHEREAS, the
Originators
and IRC are parties to that certain
Receivables Sale
Agreement,
dated
as of September 30, 2005 (the
"Receivables Sale Agreement");
WHEREAS, IRC, as Seller, Invacare, as Servicer, the Purchasers and
the
Agent are parties to that certain Receivables Purchase Agreement dated as
of
September 30, 2005, as
heretofore amended
(the "Receivables
Purchase
Agreement" and,
together
with the Receivable Sale Agreement, the
"Agreements");
WHEREAS, Invacare has
executed that certain
Performance
Undertaking
dated as of
September 30, 2005, in favor of IRC (the "Performance
Undertaking);
WHEREAS, the parties
entered into an
Omnibus Waiver,
Amendment and
Reaffirmation of Performance Undertaking dated as of November 14,
2006 (the
"Existing Waiver")
pursuant to which the
Agent and the Purchasers, among
other things, waived a Termination Event and Amortization Event
through and
including the date hereof;
WHEREAS, the
Companies have asked the Agent and the
Purchasers
to
extend the waivers granted pursuant to the Existing Waiver
through January
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31,
2007 (as the same may be extended in accordance with the terms hereof,
the
"Outside Waiver Termination Date");
WHEREAS, the parties
wish to (a) extend the waivers granted under the
Existing Waiver through the Outside Waiver Termination Date, (b) amend
the
Receivables
Purchase
Agreement, and
(c) reaffirm the Performance
Undertaking, in each
case, on the terms and subject to the conditions
hereinafter set forth; and
WHEREAS, simultaneously herewith, Invacare and various noteholders
are
entering into a Second Waiver and Amendment, dated as of December 15, 2006
(the
"Noteholder
Waiver") to the separate and several Note Purchase
Agreements dated as of
April 27, 2006, and a First Amendment to Waiver and
Amendment Agreement,
dated as of December
15, 2006 with respect
to their
certain Credit
Agreement dated as of January 14, 2005 (the
"Bank Waiver"
and,
together with the Noteholder Waiver, the "Other December 2006
Waivers");
NOW,
THEREFORE, in consideration of the premises herein contained,
and for
other good
and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1.
Defined Terms.
Capitalized terms used
herein and not otherwise defined
shall have their meanings as attributed to such terms in the
Agreements.
2.
Limited Waivers; Amendments.
2.1.
Limited Waivers.
(a) Any Potential Termination Event or Termination Event that may
have
arisen (or that
may at any time
hereafter prior to the Outside Waiver
Termination Date
arise) under: (i)
Section 5.1(c) of the Receivables Sale
Agreement by virtue of
Invacare's
failure to observe Sections 5.2(a),
5.2(c), 6.1(c) and 6.1(f) of the Five-Year Credit Agreement and/or
Sections
7.1(d), 11.3 and 12 of
each of the note
purchase agreements
executed in
connection with the
Senior Unsecured
Notes (as defined in
the Five-Year
Credit Agreement) and
incorporated by reference into Section 5.2(k) of the
Five-Year Credit Agreement, (ii) Section 5.1(a)(ii) of the
Receivables Sale
Agreement by virtue of Invacare's failure to observe Section
4.1(b)(i) of
the
Receivables
Sale Agreement, and (iii) Section 9.1(a)(ii) of the
Receivables Purchase
Agreement by virtue of
Invacare's failure to observe
Section 7.1(b)(v)
of the Receivables Purchase Agreement (all of the
foregoing,
collectively, the "Existing Defaults") is hereby waived for the
period commencing on
the date hereof
through the earliest to occur of (A)
the
Outside Waiver Termination Date, (B) any Potential Termination
Event or
Termination Event
other than the Cross Defaults, (C) the breach or
nonperformance by any
of the Companies
of any covenant, agreement or
condition set
forth in this Waiver, and (D) the date on which any
representation or
warranty in Section 3 hereof fails to be true and
correct.
2
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(b) Any Amortization
Event or Potential
Amortization Event
that may
have
arisen (or that may at any time hereafter prior to the Outside Waiver
Termination Date
arise) under Section 9.1(c) of the Receivables Purchase
Agreement by virtue of
the Existing
Defaults is hereby waived for the
period commencing on
the date hereof
through the earliest to occur of (i)
the
Outside Waiver
Termination Date, (B) any Potential Amortization Event
or
Amortization Event other than the Existing Defaults, (C) the breach or
nonperformance by any
of the Companies
of any covenant, agreement or
condition set
forth in this Waiver, and (D) the date on which any
representation or
warranty in Section 3 hereof fails to be true and
correct.
(c) The Outside Waiver Termination Date shall be automatically
extended from January 31, 2007 to February 15, 2007, without notice or any
other action,
if (i) on or prior
to December 22, 2006, Invacare has
provided the Agent with a fully executed commitment letter or letters (as
amended or
otherwise modified from time to time, collectively, the
"Commitment Letters") providing fully underwritten co
