EXHIBIT 10.33.1
SECOND AMENDMENT TO LOAN AGREEMENT
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THIS SECOND AMENDMENT TO LOAN AGREEMENT (the "Second Amendment") made and
entered into as of June 30, 2003, by and among WACHOVIA BANK, NATIONAL
ASSOCIATION (f/k/a FIRST UNION NATIONAL BANK), a national banking association,
WACHOVIA BANK, NATIONAL ASSOCIATION, LONDON BRANCH (f/k/a FIRST UNION NATIONAL
BANK, LONDON BRANCH), a national banking association acting through its London
Branch, ARROW INTERNATIONAL, INC., a Pennsylvania corporation, ARROW MEDICAL
PRODUCTS, LTD., a Pennsylvania corporation authorized to engage in business in
Canada, ARROW DEUTSCHLAND GMBH, a corporation organized and existing under the
laws of Germany, ARROW IBERIA, S.A., a corporation organized and existing under
the laws of Spain, ARROW INTERNACIONAL DE MEXICO S.A. DE C.V., a corporation
organized and existing under the laws of Mexico, ARROW HELLAS COMMERCIAL A. E.,
a corporation organized and existing under the laws of Greece, ARROW HOLLAND
MEDICAL PRODUCTS B.V., a corporation organized and existing under the laws of
Holland, ARROW INTERNATIONAL CR, A.S., a corporation organized and existing
under the laws of the Czech Republic, and ARROW ITALY S.R.L., a corporation
organized and existing under the laws of Italy.
BACKGROUND
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A. The Lender and the Borrowers are parties to a loan agreement
dated April 12, 2001, as amended March 29, 2002, pursuant to which the Lender
agreed to provide the Borrowers with Loans in an aggregate outstanding amount
not to exceed at any one time Sixty-Five Million Dollars ($65,000,000), subject
to and in accordance with the terms and conditions set forth therein (the
"Agreement").
B. The Agreement is incorporated by reference in this Second
Amendment. Capitalized terms used herein which are not so defined, but which are
defined in the Agreement, shall have the meanings given such terms in the
Agreement.
C. At the Borrowers' request, the Lender has agreed to extend the
Termination Date under the Agreement, as hereinafter set forth.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual promises contained
herein and intending to be legally bound hereby, the parties hereto covenant and
agree as set forth below.
1. INCORPORATION OF BACKGROUND. The Background provisions of this
Second Amendment are incorporated herein by reference thereto as if fully set
forth in this Second Amendment.
2. AMENDED DEFINED TERMS. The following defined terms as set forth
in Section 1.2 of the Agreement are hereby amended and restated in their
entirety to read as follows:
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"AGREEMENT" shall mean the Loan Agreement among the Lender and
the Borrowers dated April 12, 2001, as amended by the Lender and the
Borrowers pursuant to the First Amendment to Loan Agreement dated as of
March 29, 2002, as further amended by the Lender and the Borrowers pursuant
to the Second Amendment to Loan Agreement dated as of June 30, 2003, and
any future amendments, restatements, modifications or supplements thereof
or thereto.
"BORROWER" shall mean each of Arrow International, Inc., a
Pennsylvania corporation, Arrow Medical Products, Ltd., a Pennsylvania
corporation authorized to engage in business in Canada, Arrow Deutschland
GmbH, a corporation organized and existing under the laws of Germany, Arrow
Iberia, S.A., a corporation organized and existing under the laws of Spain,
Arrow Internacional De Mexico, S.A. de C.V., a corporation organized and
existing under the laws of Mexico, Arrow Hellas Commercial A. E., a
corporation organized and existing under the laws of Greece, Arrow Holland
Medical Products B.V., a corporation organized and existing under the laws
of Holland, Arrow International CR, a.s., a corporation organized and
existing under the laws of the Czech Republic, and Arrow Italy S.r.l., a
corporation organized and existing of the laws of Italy, and "Borrowers"
shall mean any two or more of them.
"TERMINATION DATE" shall mean April 30, 2004 or, if such day is
not a Business Day, the next succeeding Business Day, unless such Business
Day falls in another calendar month, in which case the Termination Date
shall be the next preceding Business Day.
"DEBT" shall mean, with respect to any Person at any applicable
time (without duplication), (i) all obligations of such Person for borrowed
money, (ii) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments, (iii) all obligations of such Person under
conditional sale or other title retention agreements relating to property
purchased by such Person to the extent of the value of such property (other
than customary reservations or retentions of title under agreements with
suppliers entered into in the ordinary course of business), (iv) all
obligations, other than intercompany items, of such Person issued or
assumed as the deferred purchase price of property or services purchased by
such Person which would appear as liabilities on a balance sheet of such
Person, (v) all Debt of others secured by (or for which the holder of such
Debt has an existing right, contingent or otherwise, to be secured by) any
Lien on, or payable out of the proceeds of production from, property owned
or acquired by such Person, whether or not the obligations secured thereby
have been assumed, (vi) all Guaranty Obligations of such Person, (vii) the
principal portion of all Capital Lease Obligations, (viii) all obligations
of such Person in respect of interest rate protection agreements, foreign
currency exchange agreements, or other interest or exchange rate or
commodity price hedging agreements, (ix) the maximum amount of all
performance and standby letters of credit issued or bankers' acceptances
facilities created for the account of such Person and, without duplication,
all drafts drawn thereunder (to the extent unreimbursed), (x) all preferred
stock issued by such Person and required by the terms thereof to be
redeemed, or for which mandatory sinking fund payments are
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due, by a fixed date, and (xi) any other item of indebtedness or liability
that would be reflected on the liabilities side of a balance sheet of such
Person in accordance with GAAP. Notwithstanding the foregoing, Debt shall
not include intercompany items involving members of the Arrow Group on both
sides of a transaction, guarantees of debt obligations of other Borrowers
to the extent the primary obligations are already included as Debt, and
contingent liabilities under foreign currency hedge agreements with or
approved by the Lender.
3. DEBT COVENANT Section 6.2(c) of the Agreement is hereby amended
and restated to read in its entirety as follows:
"(c) Other Debt not to exceed Seventy-Five Million Dollars
($75,000,000) in the aggregate; and".
4. DEFAULT UNDER OTHER OBLIGATIONS. Section 7.1(d) of the Agreement
is hereby amended and restated to read in its entirety as follows:
(d) " DEFAULT UNDER OTHER OBLIGATIONS. The Borrowers or any
Subsidiary:
(i) default in any payment of principal of or interest on
any obligations for borrowed money (other than under the Notes) or for the
deferred purchase price of property beyond any period of grace provided
with respect thereto if the outstanding balance of such obligations exceeds
One Million Dollars ($1,000,000); or
(ii) default in the performance of any other agreement, term
or condition contained in any such obligation or in any agreement relating
thereto, if the effect of such default is to cause, or to permit the holder
or holders of such obligation (or a trustee on behalf of such holder or
holders) to then cause, such obligation to become due prior to its stated
maturity and the outstanding balance of such obligation exceeds One Million
Dollars ($1,000,000).
5. NOTICES. The notice provision of Section 8.2 of the Agreement is
modified so that copies of notices to the Borrowers shall also be sent to Barley
Xxxxxx, 000 Xxxxxxxxxx Xxxxxx, X.X. Xxx 000, Xxxxxxx, Xxxxxxxxxxxx 00000-0000,
Attention: Xxxxxxx X. Xxxxxxxx.
6. PARTICIPATIONS. The following sentence is hereby added at the end
of Section 8.6 of the Agreement:
"Notwithstanding the foregoing, the Lender shall not participate
with other lenders in the Loans and Loan Documents without the prior written
consent of the Borrowers, which consent shall not be unreasonably withheld."
7. Arbitration; Waivers. Section 8.15 of the Agreement is hereby
deleted and replaced in its entirety with the following:
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"8.15 WAIVER OF DAMAGES AND JURY TRIAL.
(a) Each party agrees that it shall not have a remedy of punitive
or exemplary damages against any other party in any dispute,
proceeding or controversy (each, a "Dispute") arising out of,
connected with or relating to this Agreement, and hereby waives any
right or claim to punitive or exemplary damages it has now or which
may arise in the future in connection with any Dispute.
(b) The Borrowers expressly waive any right to a trial by jury in
any Dispute."
8. REPRESENTATIONS AND WARRANTIES. As a material inducement for the
Lender to enter into this Second Amendment, the Borrowers make the following
representations and warranties to the Lender and acknowledge the Lender's
justifiable reliance thereon:
(a) No Default or Event of Default has occurred.
(b) All representations and warranties previously made to the
Lender by the Borrowers remain true, accurate, and complete.
(c) The Agreement, as modified and amended hereby, is the valid and
binding obligation of the Borrowers and is fully enforceable in accordance with
all stated terms.
9. BINDING EFFECT. This Second Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
10. COSTS AND EXPENSES. Without limiting the generality of the
provisions of the Agreement, the Borrower shall reimburse the Lender for its
out-of-pocket expenses, including counsel fees, incurred by the Lender in
connection with the development, preparation, negotiation, and enforcement of
this Second Amendment and all documents executed in connection herewith.
11. EFFECTIVE DATE. This Second Amendment shall be operative and
effective when the Lender has executed this Second Amendment.
12. RATIFICATION. Except as expressly modified and amended herein,
the Agreement and all other Loan Documents are hereby ratified and affirmed, and
the Borrowers expressly ratify and affirm all terms and provisions of the Loan
Documents, including all warrants of attorney to confess judgment as set forth
in the Loan Documents.
13. TERMS CONSISTENT. To the extent that any of the terms or
provisions set forth in the Loan Documents are inconsistent with any of the
terms or provisions hereof, the terms and provisions of this Second Amendment
shall control. References in any of the Loan Documents to the Agreement shall be
deemed references to the Agreement as
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amended, and references in any of the Loan Documents to any defined terms that
have been amended shall be deemed references to such defined terms as amended.
14. EXECUTION IN COUNTERPARTS. This Second Amendment may be executed
in any number of counterparts with the same effect as if the signatures thereto
and hereto were upon the same instrument, but all of such counterparts taken
together shall be deemed to constitute one and the same instrument.
15. FURTHER ASSURANCES. The Borrowers shall immediately execute and
deliver to the Lender any documents or instruments requested by the Lender from
time to time to further evidence, effectuate, secure or carry out the terms of
this Second Amendment or the Loan Documents.
16. ACKNOWLEDGMENTS. The Borrowers acknowledge, represent, warrant
and covenant that they do not have, and have never had, any defense to payment
or performance of any of their obligations under the Agreement and Loan
Documents or any claim, right or cause of action whatsoever, in law or equity,
against the Lender arising under the Agreement or the Loan Documents. The
Borrowers further represent, warrant and covenant that the Lender has not caused
them to suffer any damage, loss, liability, expense or obligation of any nature
whatsoever arising under the Agreement or the Loan Documents.
CONTINUED ON PAGE 6.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to
be duly executed as of the day and year Second above written.
ARROW INTERNATIONAL, INC.
By: /s/ Xxxxxxxxx X. Xxxx
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Name: Xxxxxxxxx X. Xxxx
Title: Vice President-Finance & Chief
Financial Officer
Attest: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President & Chief Operating
Officer
ARROW MEDICAL PRODUCTS, LTD.
By: /s/ Xxxxxxxxx X. Xxxx
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Name: Xxxxxxxxx X. Xxxx
Title: Treasurer
Attest: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
ARROW DEUTSCHLAND GMBH
By: /s/ Xxxxxxxxx X. Xxxx
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Name: Xxxxxxxxx X. Xxxx
Title: Treasurer
Attest: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
TWO ADDITIONAL SIGNATURE PAGES FOLLOW:
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ARROW IBERIA, S.A.
By: /s/ Xxxxxxxxx X. Xxxx
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Name: Xxxxxxxxx X. Xxxx
Title: Treasurer
Attest: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
ARROW INTERNACIONAL DE MEXICO, S.A. DE C.V.
By: /s/ Xxxxxxxxx X. Xxxx
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Name: Xxxxxxxxx X. Xxxx
Title: Treasurer
Attest: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
ARROW HELLAS COMMERCIAL A. E.
By: /s/ Xxxxxxxxx X. Xxxx
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Name: Xxxxxxxxx X. Xxxx
Title: Treasurer
Attest: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
ARROW HOLLAND MEDICAL PRODUCTS B.V.
By: /s/ Xxxxxxxxx X. Xxxx
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Name: Xxxxxxxxx X. Xxxx
Title: Treasurer
Attest: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
ONE ADDITIONAL SIGNATURE PAGE FOLLOWS:
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ARROW INTERNATIONAL CR, A.S.
By: /s/ Xxxxxxxxx X. Xxxx
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Name: Xxxxxxxxx X. Xxxx
Title: Treasurer
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
ARROW ITALY, S.R.L.
By: /s/ Xxxxxxxxx X. Xxxx
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Name: Xxxxxxxxx X. Xxxx
Title: Director
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Director
("Borrowers")
WACHOVIA BANK, NATIONAL ASSOCIATION
By
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Name:
Title:
WACHOVIA BANK, NATIONAL
ASSOCIATION, LONDON BRANCH
By
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Name:
Title:
("Lender")
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