INVACARE CORPORATION AND EACH OF THE GUARANTORS PARTY HEREIN AND WELLS FARGO BANK, N.A., as Trustee _______________________________ FIRST SUPPLEMENTAL INDENTURE Dated as of November 1, 2010 to Indenture Dated as of February 12, 2007 9% Senior Notes due 2015

 

 

 

AND

 

 

AND

 

 

as Trustee

 

_______________________________

 

 

 

Dated as of November 1, 2010

 

to

 

Indenture

 

Dated as of February 12, 2007

 

9¾% Senior Notes due 2015

 

 
 

 

THIS FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of November 1, 2010, is by and among Invacare Corporation, an Ohio corporation (the “Company”), the Guarantors (as defined in the Indenture referred to herein), and Wells Fargo Bank, N.A., as trustee (the “Trustee”).

 

WHEREAS, the Company, the Guarantors and the Trustee are parties to that certain Indenture dated as of February 12, 2007 (the “Indenture”), relating to the Company’s 9¾% Senior Notes due 2015 (the “Notes”);

 

WHEREAS, $146,000,000 aggregate principal amount of Notes are currently outstanding;

 

WHEREAS, Section 9.02 of the Indenture provides that, with the consent of the Holders of at least a majority in principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a tender offer for Notes), the Company, the Guarantors and the Trustee may enter into an indenture supplemental to the Indenture for the purpose of amending or supplementing the Indenture or the Notes (subject to certain exceptions);

 

WHEREAS, the Company desires and has requested the Trustee to join with it and the Guarantors in entering into this Supplemental Indenture for the purpose of amending the Indenture and the Notes in certain respects as permitted by Section 9.02 of the Indenture;

 

WHEREAS, the Company has been soliciting consents to this Supplemental Indenture upon the terms and subject to the conditions set forth in its Offer to Purchase and Consent Solicitation Statement dated October 1, 2010 and the Consent and Letter of Transmittal (which together, including any amendments, modifications or supplements thereto, constitute the “Tender Offer”);

 

WHEREAS, (1) the Company has received the consent of the Holders of at least a majority in principal amount of the outstanding Notes (excluding any Notes owned by the Company or any of its Affiliates), all as certified by an Officers’ Certificate delivered to the Trustee simultaneously with the execution and delivery of this Supplemental Indenture, (2) the Company has delivered to the Trustee simultaneously with the execution and delivery of this Supplemental Indenture an Opinion of Counsel relating to this Supplemental Indenture as contemplated by Section 9.06 of the Indenture and (3) the Company and the Guarantors have satisfied all other conditions required under Article Nine of the Indenture to enable the Company, the Guarantors and the Trustee to enter into this Supplemental Indenture.

 

NOW, THEREFORE, in consideration of the above premises, each party hereby agrees, for the benefit of the others and for the equal and ratable benefit of the Holders of the Notes, as follows:

 

 

 

Section 1.1                   Amendments to Articles Four, Five and Six.  The Indenture is hereby amended by deleting the following Sections or clauses of the Indenture and all references and definitions related thereto in their entirety:

 

Section 4.03 (Reports);

Section 4.04(b) (Compliance Certificate);

Section 4.05 (Taxes);

Section 4.06 (Stay, Extension and Usury Laws);

Section 4.07 (Incurrence of Indebtedness and Issuance of Disqualified Stock);

Section 4.08 (Restricted Payments);

Section 4.09 (Transactions with Affiliates);

Section 4.10 (Liens);

Section 4.11 (Asset Sales);

Section 4.12 (Issuances of Guarantees by Restricted Subsidiaries);

Section 4.13 (Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries);

Section 4.14 (Sale Leaseback Transactions);

Section 4.15 (Lines of Business);

Section 4.16(c) (Unrestricted Subsidiaries);

Section 4.17 (Payments for Consent);

Section 4.18 (Offer to Repurchase upon a Change of Control);

Clauses (2), (3) and (5) of Section 5.01(a) and clause (2) of Section 5.01(b) (Consolidation, Merger and Sale of Assets); and

Clauses (5) and (7) Section 6.01 (Events of Default).

 

Section 1.2                   Amendments to Notes.  The Notes are hereby amended to delete all provisions inconsistent with the amendments to the Indenture effected by this Supplemental Indenture.

 

 

 

Section 2.1                   Defined Terms.  For all purposes of this Supplemental Indenture, except as otherwise defined or unless the context otherwise requires, terms used in capitalized form in this Supplemental Indenture and defined in the Indenture have the meanings specified in the Indenture.

 

Section 2.2                   Indenture.  Except as amended hereby, the Indenture and the Notes are in all respects ratified and confirmed and all the terms shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby and all terms and conditions of both shall be read together as though they constitute a single instrument, except that in the case of conflict the provisions of this Supplemental Indenture shall control.

Section 2.3                   Governing Law.  THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS RULES THEREOF.

 

Section 2.4                   Successors.  All agreements of the Company and the Guarantors in this Supplemental Indenture and the Notes shall bind their respective successors.  All agreements of the Trustee in this Supplemental Indenture shall bind its successors.

 

Section 2.5                   Duplicate Originals.  All parties may sign any number of copies of this Supplemental Indenture.  Each signed copy shall be an original, but all of them together shall represent the same agreement.  It is the express intent of the parties to be bound by the exchange of signatures on this Supplemental Indenture via telecopy or other form of electronic transmission.

 

Section 2.6                   Severability.  In case any one or more of the provisions in this Supplemental Indenture or in the Notes shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.

 

Section 2.7                   Trustee Disclaimer.  The Trustee accepts the amendments of the Indenture effected by this Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but on the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company and the Guarantors, and the Trustee makes no representation with respect to any such matters.  Additionally, the Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture.

 

Section 2.8                   Effectiveness.  The provisions of this Supplemental Indenture shall be effective only upon execution and delivery of this instrument by the parties hereto.  Notwithstanding the foregoing sentence, the provisions of this Supplemental Indenture shall become operative only upon the purchase by the Company, pursuant to the Tender Offer, of at least a majority in principal amount of the outstanding Notes (excluding any Notes owned by the Company or any of its affiliates), with the result that the amendments to the Indenture effected by this Supplemental Indenture shall be deemed to be revoked retroactive to the dat e hereof if such purchase shall not occur.  The Company shall notify the Trustee promptly after the occurrence of such purchase or promptly after the Company shall determine that such purchase will not occur.

 

Section 2.9                   Endorsement and Change of Form of Notes.  Any Notes authenticated and delivered after the close of business on the date that this Supplemental Indenture becomes operative in substitution for Notes then outstanding and all Notes presented or delivered to the Trustee on and after that date for such purpose shall be stamped, imprinted or otherwise legended by the Company, with a notation as follows:

“Effective as of November 1, 2010, certain restrictive covenants of the Company and certain Events of Default have been eliminated or limited, as provided in the First Supplemental Indenture, dated as of November 1, 2010.  Reference is hereby made to such First Supplemental Indenture, copies of which are on file with the Trustee, for a description of the amendments made therein.”

 

Section 2.10                           Effect of Headings.  The Section headings herein are for convenience only and shall not affect the construction thereof.

 

 

[Remainder of Page Intentionally Left Blank]

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year written above.

 

INVACARE CORPORATION     By:           /s/ Robert K. Gudbranson                                                       Name:             Robert K. Gudbranson Title:Senior Vice President, Chief Financial Officer and Treasurer   GUARANTORS   ADAPTIVE SWITCH LABORATORIES, INC. INVACARE FLORIDA CORPORATION INVACARE CREDIT CORPORATION THE AFTERMARKET GROUP, INC. THE HELIXX GROUP, INC. CHAMPION MANUFACTURING INC. INVACARE CONTINUING CARE, INC. INVACARE CANADIAN HOLDINGS, INC. INVACARE INTERNATIONAL CORPORATION KUSCHALL, INC. ALTIMATE MEDICAL, INC. INVACARE SUPPLY GROUP, INC. INVACARE HOLDINGS, LLC FREEDOM DESIGNS, INC. INVACARE FLORIDA HOLDINGS, LLC     By:           /s/ Gerald B. Blouch                                                                 Name:             Gerald B. Blouch Title:             President   GUARANTORS   MEDBLOC, INC. GARDEN CITY MEDICAL INC.     By:           /s/ Robert K. Gudbranson                                                       Name:             Robert K. Gudbranson Title:             Vice President     WELLS FARGO BANK, N.A., as Trustee     By:           /s/ Lynn M. Steiner                                                       Name:  Lynn M. Steiner Title:    Vice President