Exhibit 10.33.2
FOURTH AMENDMENT TO LOAN AGREEMENT
THIS FOURTH AMENDMENT TO LOAN AGREEMENT (the "Fourth Amendment") made
and entered into as of May __, 2005, 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
A. The Lender and the Borrowers are parties to a loan agreement
dated April 12, 2001, as amended March 29, 2002, June 30, 2003, and April 23,
2004, 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 Fourth
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
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
Fourth Amendment are incorporated herein by reference thereto as if fully set
forth in this Fourth 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, as further amended by the Lender and the Borrowers pursuant to the
Third Amendment to Loan Agreement dated as of April 23, 2004, as further
amended by the Lender and the Borrowers pursuant to the Fourth Amendment
to Loan Agreement dated as of May __, 2005, and any future amendments,
restatements, modifications or supplements thereof or thereto.
"TERMINATION DATE" shall mean April 30, 2006 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.
3. DELETION OF CASH FLOW COVERAGE RATIO. Section 5.8 of the
Agreement is hereby deleted in its entirety.
4. REPRESENTATIONS AND WARRANTIES. As a material inducement for the
Lender to enter into this Fourth 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.
5. BINDING EFFECT. This Fourth Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
6. 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 Fourth Amendment and all documents executed in connection herewith.
7. EFFECTIVE DATE. This Fourth Amendment shall be operative and
effective when the Lender has executed this Fourth Amendment.
8. 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.
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9. 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 Fourth Amendment
shall control. References in any of the Loan Documents to the Agreement shall be
deemed references to the Agreement as 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.
10. EXECUTION IN COUNTERPARTS. This Fourth 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.
11. 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 Fourth Amendment or the Loan Documents.
12. 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment
to be duly executed as of the day and year first above written.
ARROW INTERNATIONAL, INC.
By______________________________________
Name:
Title:
Attest:_________________________________
Name:
Title:
ARROW MEDICAL PRODUCTS, LTD.
By______________________________________
Name:
Title:
Attest:_________________________________
Name:
Title:
ARROW DEUTSCHLAND GMBH
By______________________________________
Name:
Title:
Attest:_________________________________
Name:
Title:
[SIGNATURES CONTINUE ON FOLLOWING PAGES]
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ARROW IBERIA, S.A.
By______________________________________________
Name:
Title:
Attest:_________________________________________
Name:
Title:
ARROW INTERNACIONAL DE MEXICO, S.A. DE C.V.
By______________________________________________
Name:
Title:
Attest:_________________________________________
Name:
Title:
ARROW HELLAS COMMERCIAL A. E.
By______________________________________________
Name:
Title:
Attest:_________________________________________
Name:
Title:
ARROW HOLLAND MEDICAL PRODUCTS B.V.
By______________________________________________
Name:
Title:
Attest:_________________________________________
Name:
Title:
[SIGNATURES CONTINUE ON FOLLOWING PAGES]
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ARROW INTERNATIONAL CR, A.S.
By________________________________________________
Name:
Title:
Attest:___________________________________________
Name:
Title:
ARROW ITALY, S.R.L.
By________________________________________________
Name:
Title:
Attest:___________________________________________
Name:
Title:
("Borrowers")
WACHOVIA BANK, NATIONAL ASSOCIATION
By________________________________________________
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION, LONDON BRANCH
By________________________________________________
Name:
Title:
("Lender")
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