EXHIBIT 10.46
515 Penn Street
PO Box 141
Reading PA 19603
610 655 8109
Fax 610 655 8208
Philip B Shober
Vice President
CORESTATES
HAMILTON BANK
AMH (Arrow Medical Holdings) B.V.
c/o Arrow International, Inc.
P. 0. Box 12888
Reading, PA 19612
Attn.: Mr. John Broadbent, Jr.
Vice President - Finance
Dear John:
I am very pleased to advise you that CoreStates Bank, N.A. ("Bank") has
approved an unsecured bullet loan to AMH (Arrow Medical Holdings)
B.V. ("Borrower") as follows:
Principal Amount of Loan 20 Million Dutch Guilders
Interest Rate Adjusted LIBOR plus .75%, or
a fixed rate as quoted
Repayment Schedule Interest quarterly or at the
expiration of an interest
rate period (whichever is
sooner); principal due at
maturity on July 31, 2001
Use of Proceeds Refinance construction of
plant in Czech Republic
This loan shall have the corporate suretyship of Arrow International, Inc.
("Guarantor"). The Borrower is a wholly-owned subsidiary of the
Guarantor. The form of suretyship ("Guaranty") shall contain a
confession of judgment clause.
The conditions applicable to this credit facility are as follows:
A. The ratio of the Guarantor's "total liabilities" to "tangible
net worth" shall not exceed 1.50 to 1 (tested quarterly).
B. The ratio of the Guarantor's "cash flow" to "debt service"
shall meet or exceed 1.25 to 1, tested annually based on
the consolidated audited financial statement. ("Cash flow"
defined as Net Income plus Depreciation, plus
Amortization, minus Dividends, minus Capital
Expenditures not funded by Bank financing or equity
AMH (Arrow Medical Holdings) B.V.
c/o Arrow International, Inc.
Page Two
injection, plus interest. "Debt Service" defined as
scheduled principal payments on long term debt during the
year, plus interest.)
C. "All General Conditions" as described in the Letter
Agreement dated February 25, 1993 between the Bank and
the Guarantor shall also apply hereto. These General
Conditions are restated below.
a. Receipt of annual consolidated audited financial
statement of the Guarantor prepared by an
independent accounting firm acceptable to the
Bank, within 120 days after the close of the fiscal
year
b. Receipt of quarterly company-prepared financial
statements of the Guarantor.
c. All of the credit facilities now or hereafter
outstanding between the Bank, Borrower,
Guarantor, or any of the Guarantor's wholly-owned
subsidiaries shall be cross-defaulted, such that a
default under any of the credit facilities shall,
without more, constitute a default under all of the
credit facilities.
d. The Guarantor will not merge into, or consolidate
with, one or more corporations where the
Guarantor is not the surviving corporation, or be a
party to any transaction involving the transfer, or
pledging as collateral, of any material portion of its
assets, revenues, or properties to or with any lender
or other Creditor, or any other corporation or other
Person, or resulting in any material change of
control of the Guarantor, without the prior written
consent of the Bank.
e. Any change in the senior management personnel of
the Guarantor must be promptly disclosed in
writing to the Bank.
D. All other terms and conditions as outlined in the
Commercial Promissory Note and Addendum thereto of
even date herewith, the terms of which are incorporated
herein by reference.
All costs incurred by the Bank on connection with the extension and/or
establishment of the credit facilities as outlined above, including but not
limited to the reasonable fees of Bank's legal counsel shall be paid by the
Borrower.
The Borrower has not breached and is not in violation of any
environmental protection law, rule, or regulation. The Borrower further
agrees to notify the Bank in writing immediately of any such breach or
violation.
AMH (Arrow Medical Holdings) B.V.
c/o Arrow International, Inc.
Page Three
The availability of the foregoing is also contingent upon the execution and
delivery to the Bank of such other loan documentation, including
commercial loan notes, corporate borrowing resolutions, and other
documentation ("Related Documentation") as may be required by the
Bank. The terms and conditions of this Letter shall survive the execution
and/or delivery of any other documentation and shall remain in full force
and effect until all obligations of the Borrower to the Bank are performed
and paid in full. Any failure by the Borrower and/or the Guarantor to
fulfill and perform any of their obligations to the Bank hereunder or
under the credit facilities provided or extended herein shall be deemed a
default hereunder, under all other obligations of the Borrower and/or the
Guarantor, and under any related documentation. Any default under or
pursuant to any other obligations of the Borrower and/or the Guarantor or
under any related documentation shall be deemed a default hereunder and
under the credit facilities provided or extended herein.
Please acknowledge your concurrence with these terms and conditions by
signing, dating and returning the enclosed copy of this letter to the Bank.
Sincerely,
Philip B. Shober
Vice President
PBS/pl
July 11, 1996
Enclosures
ACKNOWLEDGMENT PAGE FOLLOWS.
AMH (Arrow Medical Holdings) B.V.
c/o Arrow International, Inc.
Page Four
ACKNOWLEDGMENT
--------------
The terms and conditions outlined in this letter
are hereby accepted and agreed to, intending to be
legally bound this 17th day of July, 1996.
AMH (ARROW MEDICAL HOLDINGS) B.V.
By: /s/Marlin Miller, Jr.
-------------------------------------
Marlin Miller, Jr., Managing Director
By: /s/John Broadbent, Jr.
--------------------------------------
John Broadbent, Jr., Managing Director
GUARANTOR:
ARROW INTERNATIONAL, INC.
By: /s/Marlin Miller, Jr.
-------------------------------------
Marlin Miller, Jr., Managing Director
By: /s/John Broadbent, Jr.
--------------------------------------
John Broadbent, Jr., Managing Director
For Bank Use Only
COMMERCIAL PROMISSORY NOTE
CORESTATES
$20,000,000 Guilder July 17, 1996
- ------------------- -------------
FOR VALUE RECEIVED, each of the undersigned, jointly and
severally if more than one (hereinafter collectively referred to as
"Borrower"), promises to pay to the order of CORESTATES BANK,
N.A.*, a national banking association (the "Bank"), organized under the
laws of the United States of America, through its offices in London and
in the manner and place set forth in the attached Addendum to
Commercial Promissory Note, the terms of which are incorporated herein
and shall be controlling, the principal sum of Twenty Million Guilder,
currently of The Netherlands, plus interest, as set forth in the Addendum.
ADDITIONAL TERMS OF THIS NOTE - EACH OF THE FOLLOWING
PROVISIONS SHALL APPLY TO THIS NOTE, TO ANY EXTENSION OR MODIFICATION
HEREOF AND TO THE INDEBTEDNESS EVIDENCED HEREBY, EXCEPT AS OTHERWISE
EXPRESSLY STATED ABOVE OR IN A SEPARATE WRITING SIGNED BY BANK AND
BORROWER.
INTEREST - Interest shall be calculated on the basis of a 360-day year
and shall be charged for the actual number of days elapsed. Accrued
interest shall be payable monthly. Accrued interest shall also be payable
when the entire principal balance of this Note becomes due and payable
(whether by demand, stated maturity or acceleration) or, if earlier, when
such principal balance is actually paid to Bank. If the rate at which
interest accrues is based on the "Prime Rate", that term is defined as the
rate of interest for loans established by Bank from time to time as its
prime rate. Said per annum rate of interest shall change each time Bank's
prime rate shall change, effective on and as of the date of the change.
Interest shall accrue on each disbursement hereunder from the date such
disbursement is made by Bank, provided, however, that to the extent this
Note represents a replacement, substitution, renewal or refinancing of
existing indebtedness, interest shall accrue from the date hereof. Interest
shall accrue on the unpaid balance hereof at the rate provided for in this
Note until the entire unpaid balance has been paid in full, notwithstanding
the entry of any judgment against Borrower.
PREPAYMENT - If this Note bears interest at a floating or variable rate
and no floor or minimum rate is specified, Borrower may prepay all or
any portion of the principal balance of this Note at any time, without
premium or penalty. If not permitted under the preceding sentence. any
prepayment of principal (including any principal repayment as a result of
acceleration by Bank of this Note) shall require immediate payment to
Bank of a prepayment fee equal to the amount, if any, by which the
aggregate present value of scheduled principal and interest payments
eliminated by the prepayment exceeds the principal amount being
prepaid. Said present value shall be calculated by application of a
discount rate determined by Bank in its reasonable judgment to be the
yield-to-maturity at the time of prepayment on U.S. Treasury securities
having a maturity which most closely approximates the final maturity date
of the principal balance then outstanding. Whether or not a prepayment
fee is required hereunder, prepayments shall be applied to scheduled
installments of principal in the inverse order of their maturity, shall be
accompanied by payment of accrued interest on the principal amount
being prepaid and, unless this Note has been accelerated by Bank, shall
not be permitted in an amount less than the scheduled principal
installment immediately prior to final maturity of the outstanding
principal balance.
COLLATERAL - As security for all indebtedness to Bank now or
hereafter incurred by Borrower, under this Note or otherwise, Borrower
grants Bank a lien upon and security interest in any securities,
instruments or other personal property of Borrower now or hereafter in
Bank's possession and in any deposit balances now or hereafter held by
Bank for Borrower's account, and in all proceeds of any such personal
property or deposit balances. Such liens and security interest shall be
independent of Bank's right of setoff. This Note and the indebtedness
evidenced hereby shall be additionally secured by any lien or security
interest evidenced by a writing (whether now existing or hereafter
executed) which contains a provision to the effect that such lien or
security interest is intended to secure (a) this Note or indebtedness
evidenced hereby or (b) any category of liabilities, obligations or
indebtedness of Borrower to Bank which includes this Note or the
indebtedness evidenced hereby, and all property subject to any such lien
or security interest shall be collateral for this Note.
EVENTS OF DEFAULT - Each of the following shall be an Event of
Default hereunder: (a) the nonpayment when due of any amount payable
under this Note or under any obligation or indebtedness to Bank of
Borrower or any person liable, either absolutely or contingently, for
payment of any indebtedness evidenced hereby, including endorsers,
guarantors and sureties (each such person is referred to as an "Obligor");
(b) if Borrower or any Obligor has failed to observe or perform any other
existing or future agreement with Bank of any nature whatsoever; (c) if
any representation, warranty, certificate, financial statement or other
information made or given by Borrower or any Obligor to Bank is
materially incorrect or misleading; (d) if Borrower or any Obligor shall
become insolvent or make an assignment for the benefit of creditors or if
any petition shall be filed by or against Borrower or any Obligor under
any bankruptcy or insolvency law; (e) the entry of any judgment against
Borrower or any Obligor which remains unsatisfied for 15 days or the
issuance of any attachment, tax lien, levy or garnishment against any
property of material value in which Borrower or any Obligor has an
interest; (f) if any attachment, levy, garnishment or similar legal process
is served upon Bank as a result of any claim against Borrower or any
Obligor or against any property of Borrower or any Obligor; (g) the
dissolution, merger, consolidation or change in control (as control is
defined in Rule 12b-2 Under the Securities Exchange Act of 1934), of
any Borrower which is a corporation or partnership, or the sale or
transfer of any substantial portion of any of Borrower's assets, or if any
agreement for such dissolution, merger, or consolidation, change in
control, sale or transfer is entered into by Borrower, without the written
consent of Bank; (h) the death of any Borrower or Obligor who is a
natural person; (i) if Bank determines reasonably and in good faith that an
event has occurred or a condition exists which has had, or is likely to
have, a material adverse effect on the financial condition or
creditworthiness of Borrower or any Obligor, or on the ability of
Borrower or any Obligor to perform its obligation evidenced by this
Note; (j) if Borrower shall fail to remit promptly when due to the
appropriate government agency or authorized depository, any amount
collected or withheld from any employee of Borrower for payroll taxes,
Social Security payments or similar payroll deductions; (k) if any Obligor
shall attempt to terminate or disclaim such Obligor's liability for the
indebtedness evidenced by this Note; (l) if Bank shall reasonably and in
good faith determine and notify Borrower that any collateral for this Note
or for the indebtedness evidenced hereby is insufficient as to quality or
quantity; (m) if Borrower shall fail to pay when due any material
indebtedness for borrowed money other than to Bank; or (n) if Borrower
shall be notified of the failure of Borrower or any Obligor to provide
financial and other information promptly when reasonably requested by
Bank. IF THIS NOTE IS PAYABLE ON DEMAND, Bank's right to demand
payment hereof shall not be restricted or impaired by the absence,
non-occurrence or waiver of an Event of Default, and it is understood that
if this Note is payable on demand, Bank may demand payment at any
time.
- ------------------------------------------------------------------------
* CoreStates Bank, N.A. also conducts business as Philadelphia National
Bank, as CoreStates First Pennsylvania Bank and as CoreStates Hamilton
Bank
8979-C 10/93
BANK'S REMEDIES - Upon the occurrence of one or more Events of
Default (including, if this Note is payable on demand, any Event of
Default resulting from Borrower's failure to make any payment hereunder
when demanded), unless Bank elects otherwise, the entire unpaid balance
of this Note and all accrued interest shall be immediately due and payable
without notice to Borrower or any Obligor, and Bank may, immediately
or at any time thereafter, exercise any or all of its rights and remedies
hereunder or under any agreement or otherwise under applicable law
against Borrower, any Obligor and any collateral. Bank may exercise its
rights and remedies in any order and may, at its option, delay in or
refrain from exercising some or all of its rights and remedies without
prejudice thereto. Upon the occurrence of any such Event of Default or
at any time thereafter, Bank may, at its option, and upon five days
written notice to Borrower, begin accruing interest on this Note, at a rate
not to exceed five percent (5%) per annum in excess of the greater of (a)
the rate of interest provided for above, or (b) the Prime Rate in effect
from time to time on the unpaid principal balance hereof; provided,
however, that no interest shall accrue hereunder in excess of the
maximum rate permitted by law. All such additional interest shall be
payable on demand.
NOTICE TO BORROWER - Any notice required to be given by Bank
under the provisions of this Note shall be effective as to each Borrower
and each Obligor when addressed to Borrower and deposited in the mail
postage prepaid, for delivery by first class mail at Borrower's mailing
address as it appears on Bank's record.
DISBURSEMENTS AND PAYMENTS - The proceeds of this Note, or
any portion thereof, may be credited by Bank to the deposit account of
Borrower, or disbursed in any other manner requested by Borrower and
approved by Bank. If Borrower so requests, Bank may, at its option,
disburse the proceeds of this Note in more than one disbursement on the
same or different dates, but except as otherwise agreed by Bank in
writing, no action taken by Bank in response to any such request shall be
deemed to create or shall imply the existence of any commitment or
obligation to pay or credit the undisbursed portion of this Note. All
payments due under this Note are to be made in immediately available
funds. If Bank accepts payment in any other form, such payment shall
not be deemed to have been made until the funds comprising such
payment have actually been received by or made available to Bank. If
Borrower is not an individual, Borrower authorizes Bank (but Bank shall
have no obligation) to charge any deposit account in Borrower's name for
any and all payments of principal or any other amounts due under this
Note.
PAYMENT OF COSTS - In addition to the principal and interest payable
hereunder, Borrower agrees to pay Bank, on demand, all costs and
expenses (including reasonable attorneys' fees and disbursements) which
may be incurred by Bank in the collection of this Note or the enforcement
of Bank's rights and remedies hereunder.
REPRESENTATIONS BY BORROWER - If Borrower is a corporation
or a general or limited partnership, Borrower represents and warrants that
it is validly existing and in good standing in the jurisdiction under whose
laws it was organized. If Borrower is a corporation, Borrower represents
and warrants that the execution, delivery and performance of this Note
are within Borrower's corporate powers, have been duly authorized by all
necessary action by Borrower's Board of Directors, and are not in
contravention of the terms of Borrower's charter, by-laws, or any
resolution of its Board of Directors. If Borrower is a general or limited
partnership, Borrower represents and warrants that the execution,
delivery and performance of this Note have been duly authorized and are
not in conflict with any provision of Borrower's partnership agreement or
certificate of limited partnership. Borrower further represents and
warrants that this Note has been validly executed and is enforceable in
accordance with its terms, that the execution, delivery and performance
by Borrower of this Note are not in contravention of law and do not
conflict with any indenture, agreement or undertaking to which Borrower
is a party or is otherwise bound, and that no consent or approval of any
governmental authority or any third party is required in connection with
the execution, delivery and performance of this Note.
WAIVER, ETC. - Borrower and each Obligor waive presentment,
dishonor, notice of dishonor, protest and notice of protest. Neither the
failure nor any delay on the part of Bank to exercise any right, remedy,
power or privilege hereunder shall operate as a waiver or modification
thereof. No consent, waiver or modification of the terms of this
Note shall be effective unless set forth in a writing signed by Bank.
All rights and remedies of Bank are cumulative and concurrent and no single
or partial exercise of any power or privilege shall preclude any other or
further exercise of any right, power or privilege.
MISCELLANEOUS - This Note is the unconditional obligation of
Borrower and Borrower agrees that Bank shall not be required to exercise
any of its rights or remedies against any collateral in which it holds a lien
or security interest or against which it has a right of setoff or against any
particular Obligor. All representations, warranties and agreements herein
are made jointly and severally by each Borrower. If any provision of this
Note shall be held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provision hereof. To the extent
that this Note represents a replacement, substitution, renewal or
refinancing of a pre-existing note or other evidence of indebtedness, the
indebtedness represented by such pre-existing note or other instrument
shall not be deemed to have been extinguished hereby. In the event that
any due date specified or otherwise provided for in this Note shall fall on
a day on which Bank is not open for business, such due date shall be
postponed until the next banking day, and interest and any fees or similar
charges shall continue to accrue during period of postponement. This
Note has been delivered in and shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania without
regard to the law of conflicts. This Note shall be binding upon each
Borrower and each Obligor and upon their personal representatives,
heirs, successors and assigns, and shall benefit Bank and its successors
and assigns.
CONSENT TO JURISDICTION AND VENUE - IN ANY LEGAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE
RELATIONSHIP EVIDENCED HEREBY. EACH UNDERSIGNED
PARTY HEREBY IRREVOCABLY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH
OF PENNSYLVANIA WHERE BANK MAINTAINS AN OFFICE
AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH
JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE
VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH
UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN
ANY SUCH PROCEEDING, MAY BE DULY EFFECTED UPON IT
BY MAILING A COPY THEREOF, BY REGISTERED MAIL,
POSTAGE PREPAID, TO EACH UNDERSIGNED PARTY.
WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY
HEREBY WAIVES, AND BANK BY ITS ACCEPTANCE HEREOF
THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO
THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR BANK TO
ENTER INTO, ACCEPT OR RELY UPON THIS NOTE.
IN WITNESS WHEREOF, Borrower, intending this to be a sealed
instrument and intending to be legally bound hereby, has executed and
delivered this Note as of the day and year first above written.
- -------------------------------------------------------------------------
Name of Corporation
or Partnership AMH (Arrow Medical Holdings) B.V.
By: /s/Marlin Miller, Jr. By: /s/John Broadbent, Jr.
-------------------------------- --------------------------------
(Signature of Authorized Signer) (Signature of Authorized Signer)
Marlin Miller, Jr., Managing Director John Broadbent, Jr., Managing Director
(Print or Type Name and Title of Signer Above)
(Print or Type Name and Title of Signer Above)
INDIVIDUALS SIGN BELOW
- ---------------------- --------------------------- (Seal)
(Signature of Witness) (Signature of Individual Borrower)
- ------------------------------------- ------------------------------
(Print or Type Name of Above Witness)
(Print or Type Name of Borrower Signing Above)
- ---------------------- -------------------------- (Seal)
(Signature of Witness) (Signature of Individual Borrower)
- ------------------------------------- ------------------------------
(Print or Type Name of Above Witness)
(Print or Type Name of Borrower Signing Above)
GUARANTY
CORESTATES
This Guaranty is made and entered into by the undersigned, and
by each of them if more than one (the "Guarantor"), for the benefit of
CoreStates Bank, N.A.*, a national banking association (the "Bank").
1. OBLIGOR. the "Obligor" means the following person or entity, and
if more than one, any or all of the following persons or entities:
AMH (Arrow Medical Holdings) B.V.
---------------------------------
2. OBLIGATIONS. The "Obligations" means all existing and hereafter
incurred or arising indebtedness, obligations and liabilities of the Obligor
to the Bank, whether absolute or contingent, direct or indirect and out of
whatever transactions arising, and includes without limitation, all matured
and unmatured indebtedness, obligations and liabilities of the Obligor
under or in connection with existing and future loans and advances
evidenced by promissory notes or otherwise, letters of credit,
acceptances, all other extensions of credit, repurchase agreements,
security agreements, mortgages, overdrafts, foreign exchange contracts
and all other contracts for payment or performance, indemnities, and all
indebtedness, obligations and liabilities under any guaranty or surety
agreement, or as co-maker or co-obligor with any person for any of the
foregoing, including without limitation all interest, expenses, costs
(including collection costs) and fees (including reasonable attorney's fees
and prepayment fees) incurred, arising or accruing (whether prior or
subsequent to the filing of any bankruptcy petition by or against any
Obligor) under or in connection with any of the foregoing. If the term
"Obligor" includes more than one person or entity, the Obligations shall
include all Obligations of any one or more of such persons or entities,
whether such Obligations are individual, joint, several or joint and
several.
3. UNCONDITIONAL GUARANTY. In consideration of any existing
Obligations and any Obligations which may hereafter arise or be
incurred, each Guarantor, intending to be legally bound absolutely and
unconditionally (and jointly and severally if more than one) guaranties to
Bank the payment, performance and satisfaction when due (whether by
stated maturity, demand, acceleration or otherwise) of all Obligations.
The obligations of the Guarantor hereunder shall continue in full force
and effect irrespective of the validity, legality or enforceability of any
agreements, notes or documents pursuant to which any of the Obligations
arise, or the existence, value or condition of any collateral for any of the
Obligations, or of any other guaranty of the Obligations, or any other
circumstance which might otherwise constitute a legal or equitable
discharge of a surety or guarantor.
4. COST OF ENFORCEMENT. Each Guarantor agrees jointly and
severally if more than one) to pay Bank all costs and expenses (including
reasonable attorneys' fees) at any time incurred by Bank in the
enforcement of this Guaranty against any Guarantor.
5. PAYMENT BY GUARANTOR. Payment by each Guarantor is due upon
demand by Bank and is payable in immediately available funds in Dutch
Guilders at CoreStates Bank, London, England.
6. CONTINUING GUARANTY. This Guaranty shall continue in full force
and effect with respect to each Guarantor and may not be revoked until
all existing Obligations and all Obligations hereafter incurred or arising
have been paid, performed and satisfied in full. Notwithstanding the
foregoing, any Guarantor may, by written notice to Bank, terminate its
liability hereunder with respect to Obligations which are not Pre-
Termination Obligations as hereinafter defined. Such notice shall be
ineffective unless sent via certified mail to: Special Notices Section,
Commercial Loan Services, CoreStates Bank, N.A., P. 0. Box 3850, F.
C. 6-93-1-42, Lancaster, PA 17604
The burden of establishing (i) that Bank has received any termination
notice hereunder and (ii) the day on which such notice was received shall
be on Guarantor. In the event that Bank receives an effective termination
notice from Guarantor in accordance with the provisions of this
paragraph, such termination shall not affect Guarantor's liability (a) for
Obligations incurred or arising on or prior to the tenth day following
receipt by Bank of such termination notice, or any earlier day, on which
Bank determines in good faith that the appropriate Bank officers have
actual knowledge of Bank's receipt of such notice (the "Termination
Effective Date"), (b) for Obligations which are renewals, modifications,
amendments, extensions, substitutions, replacements or rollovers of, or
which consist of accrued interest on, Obligations incurred or arising on
or prior to the Termination Effective Date, or (c) for Obligations incurred
or arising pursuant to a commitment existing on the Termination
Effective Date under which Bank was obligated to extend credit or make
payments to Obligor or for Obligor's account, all Obligations referred to
in this sentence being hereinafter collectively called "Pre-Termination
Obligations". It is understood that for purposes of this Guaranty and
regardless of any conflicting agreement between Bank and any Obligor,
all payments on and other reductions of the Obligations subsequent to the
Termination Effective Date (other than payments made by Guarantor in
respect of the Guaranty itself) shall, unless Bank elects otherwise in
writing, be applied first to Obligations other than Pre-Termination
Obligations, and then to Pre-Termination Obligations. It is further
understood that the provisions of the preceding sentence shall be
applicable regardless of the amount of any new Obligations incurred or
arising subsequent to the Termination Effective Date.
7. WAIVERS AND CONSENTS BY GUARANTOR. Each Guarantor
unconditionally consents to, and waives as a defense to liability
hereunder, each of the following:
(a) any waiver, inaction, delay or lack of diligence by Bank in enforcing
its rights against any Obligor or in any property, or the unenforceability
of any such rights, including any failure to perfect, protect or preserve
any lien or security interest which may be intended directly or indirectly
to secure any of the Obligations, and the absence of notice thereof to any
Guarantor, (b) the absence of any notice of the incurrence or existence of
any Obligation, (c) any action, and the absence of notice thereof to any
Guarantor, taken by Bank or any Obligor with respect to any of the
Obligations, including any release, subordination or substitution of any
collateral or release, termination, compromise, modification or
amendment of any instrument executed by or applicable to any Obligor or
of any claim, right or remedy against any Obligor or any property, (d)
any impairment of Guarantor's right to reimbursement by way of
subrogation, indemnification or contribution, (e) any other action taken or
omitted by Bank in good faith with respect to the Obligations, (f) the
absence or inadequacy of any formalities of every kind in connection with
enforcement of the Obligations, including presentment, demand, notice
and protest, and (g) the waiver of any rights of Bank under or any action
taken or omitted by Bank with respect to any other guaranty of the
Obligations.
8. OTHER AGREEMENTS BY GUARANTOR. Each Guarantor agrees that
there shall be no requirement that Bank document its acceptance of this
Guaranty, evidence its reliance thereon, or that Bank take any action
against any person or any property prior to taking action against any
Guarantor. Each Guarantor further agrees that Bank's rights and
remedies hereunder shall not be impaired or subject to any stay,
suspension or other delay as a result of Obligor's insolvency or as a result
of any proceeding applicable to Obligor or Obligor's property under any
bankruptcy or insolvency law. Each Guarantor also agrees that payments
and other reductions on the Obligations may be applied to such of the
Obligations and in such order as Bank may elect.
9. SUBROGATION AND SIMILAR RIGHTS. No Guarantor will exercise
any rights with respect to Bank or any Obligor related to or acquired in
connection with or as a result of its making of this Guaranty which it may
acquire by way of subrogation, indemnification or contribution, by reason
of payment made by it hereunder or otherwise, until after the date on
which all of the Obligations shall have been satisfied in full. Until such
time, any such rights against the Obligor shall be fully subordinate in lien
and payment to any claim in connection with the Obligations which Bank
now or hereafter has against the Obligor. If any amount shall be paid to
any Guarantor on account of such subrogation, indemnification or
contribution at any time when all of the Obligations and all other
expenses guaranteed pursuant hereto shall not have been paid in full, such
amount shall be held in trust for the benefit of Bank, shall be segregated
from the other funds of Guarantor and shall forthwith be paid over to
Bank to be applied in whole or in part by Bank against the Obligations,
whether matured or unmatured, in such order as the Bank shall determine
in its sole discretion. If Guarantor shall make payment to the Bank of all
or any portion of the Obligations and all of the Obligations shall be paid
in full, Guarantor's right of subrogation shall be without recourse to and
without any implied warranties by Bank and shall remain fully subject
and subordinate to Bank's right to collect any other amounts which may
thereafter become due to the Bank by the Obligor in connection with the
Obligations.
- ------------------------------------------------------------------------
* CoreStates Bank, N.A. also conducts business as Philadelphia National
Bank, as CoreStates First Pennsylvania Bank and as CoreStates Hamilton
Bank
10. REINSTATEMENT OF LIABILITY. If any claim is made upon the Bank
for repayment or recovery of any amount or amounts received by Bank in
payment or on account of any Obligations and Bank repays all or part of
said amount by reason of (a) any judgment, decree or order of any court
or administrative body having jurisdiction over the Bank or any of its
property, or (b) any settlement or compromise in good faith with any
such claimant (including Obligor), then and in such event each Guarantor
agrees that any such judgment, decree, order, settlement or compromise
shall be binding upon the Guarantor, notwithstanding any termination
hereof or the cancellation of any note or other instrument evidencing any
Obligation, and each Guarantor shall remain liable to the Bank hereunder
for the amount so repaid or recovered to the same extent as if such
amount had never originally been received by Bank.
11. SECURITY INTEREST. Each Guarantor hereby assigns to the Bank
and grants to the Bank a security interest in any balance or assets in any
deposit or other account of such Guarantor in or with the Bank whenever
and so long as any of the Obligations shall be outstanding and unpaid and
agrees that the security interest hereby granted shall be independent of the
right of setoff.
12. FINANCIAL INFORMATION ON GUARANTOR. Each Guarantor hereby
agrees to provide the Bank with such information on the business affairs
and financial condition of such Guarantor as the Bank from time to time
may reasonably request and to notify the Bank of any change in the
address of such Guarantor. In the event that such Guarantor fails to
comply with a request for information as herein agreed, within ten (10)
days after receipt of the request, such Guarantor upon demand by the
Bank agrees to purchase from the Bank without representation, warranty
or recourse the Obligations and to pay therefor the unpaid principal
amount of all such Obligations, including interest thereon to the date of
purchase.
13. EFFECT OF OTHER AGREEMENTS. The provisions of this Guaranty
are cumulative and concurrent with Bank's rights and remedies against
Guarantor under any existing or future agreement pertaining or
evidencing any of the Obligations. No such additional agreement shall be
deemed a modification or waiver hereof unless expressly so agreed by
Bank in writing. If Bank holds any other guaranty or surety agreement
applicable to any of the Obligations, the liability of each Guarantor
hereunder shall be joint and several with each party obligated on such
other guaranty or surety agreement, unless otherwise agreed by Bank in
writing.
14. CONFESSION OF JUDGEMENT: WARRANT OF ATTORNEY - Each Guarantor
irrevocably authorizes and empowers any attorney or any clerk of court
of record, upon the occurrence of a default or an Event of Default under
or in connection with any of the Obligations, or at any time thereafter, to
appear for and confess judgment against such Guarantor for the full
amount of such Guarantor's liability under paragraph 3 hereof, with or
without declaration with costs of suit and release of errors, without stay
of execution and with an amount not to exceed the greater of five percent
(5%) of the principal amount of such judgment or $5,000 added for
collection fees. If a copy of this Guaranty, verified by affidavit by or on
behalf of Bank, shall have been filed in such action, it shall not be
necessary to file the original of this Guaranty. The authority granted
hereby shall not be exhausted by the initial exercise thereof and may be
exercised by Bank from time to time. There shall be excluded from the
lien of any judgment obtained solely pursuant to this paragraph all
improved real estate in any area identified by the Federal Emergency
Management Agency as having special flood hazards if the community in
which such area is located is participating in the National Flood Insurance
Program. Any such exclusion shall not affect any lien upon property not
so excluded.
15. GUARANTOR'S ADDRESS. Guarantor warrants and represents that
the address set forth below is Guarantor's correct mailing address and
agrees immediately to notify Bank in the event of any change therein.
16. MISCELLANEOUS. (a) No amendment of any provision of this
Guaranty shall be effective unless it is in writing and signed by each
Guarantor and Bank, and no waiver of any provisions of this Guaranty,
and no waiver or consent to any departure by the Guarantor therefrom,
shall be effective unless it is in writing and signed by Bank, and then
such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given. (b) Any provision of this
Guaranty which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining portions hereof or
affecting the validity or enforceability of such provisions in any other
jurisdiction. (c) The obligations of each Guarantor hereunder shall not be
subject to any counterclaim, setoff, deduction or defense based upon any
related or unrelated claim which such Guarantor may now or hereafter
have against Bank or any Obligor, except payment of the Obligations,
and shall not be affected by any change in Obligor's legal status or
ownership or by any change in corporate, partnership or other
organizational structure applicable to Obligor. (d) This Guaranty shall (i)
be binding on each Guarantor and its personal representatives, estate,
heirs, successors and assigns, and (ii) inure, together, with all rights and
remedies of Bank hereunder, to the benefit of the Bank and its successors,
transferees and assigns. Notwithstanding the foregoing clause (i), none
of the rights or obligations of any Guarantor hereunder may be assigned
or otherwise transferred without the prior written consent of the Bank. (e)
This Guaranty shall be governed by and construed in accordance with the
internal laws, and not the law of conflicts, of the Commonwealth of
Pennsylvania.
17. CONSENT TO JURISDICTION AND VENUE. IN ANY
LEGAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED
TO THIS GUARANTY OR THE RELATIONSHIP EVIDENCED
HEREBY, EACH UNDERSIGNED PARTY HEREBY
IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED IN ANY COUNTY IN THE COMMONWEALTH OF
PENNSYLVANIA WHERE BANK MAINTAINS AN OFFICE AND
AGREES NOT TO RAISE ANY OBJECTION TO SUCH
JURISDICTION OR TO THE LAYING OR MAINTAINING OF
THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY.
EACH UNDERSIGNED PARTY AGREES THAT SERVICE OF
PROCESS IN ANY SUCH PROCEEDING MAY BE DULY
EFFECTED UPON IT BY MAILING A COPY THEREOF, BY
REGISTERED MAIL, POSTAGE PREPAID, TO EACH
UNDERSIGNED PARTY.
18. WAIVER OF JURY TRIAL. EACH UNDERSIGNED PARTY
HEREBY WAIVES, AND BANK BY ITS ACCEPTANCE HEREOF
THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED
TO THIS GUARANTY OR THE RELATIONSHIP EVIDENCED
HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT
FOR BANK TO ENTER INTO, ACCEPT OR RELY UPON THIS
GUARANTY.
IN WITNESS WHEREOF, each Guarantor has executed this Guaranty as
of the 17th day of July 1996.
ARROW INTERNATIONAL, INC.
-------------------------
NAME OF CORPORATION OR PARTNERSHIP GUARANTOR
ADDRESS
By: /s/Marlin Miller, Jr. By: /s/John Broadbent, Jr.
--------------------- ----------------------
Marlin Miller, Jr., President John Broadbent, Jr., Vice President
INDIVIDUALS OR PROPRIETORS SIGN BELOW
--------- ---------------------- ------------------------
WITNESS ADDRESS OF GUARANTOR SIGNATURE OF GUARANTOR
--------- ---------------------- ------------------------
WITNESS ADDRESS OF GUARANTOR SIGNATURE OF GUARANTOR
ADDENDUM
TO
COMMERCIAL PROMISSORY NOTE ("Note")
Note Dated: July 17, 1996
Maker/Borrower: AMH (Arrow Medical Holdings) B.V.
Payee/Bank/Lender: CoreStates Bank, N.A.
Principal Amount: 20,000,000.00 Dutch Guilder
This Addendum is a part of and is hereby incorporated into the
Note. In the event of any inconsistency between the terms of the Note
and the terms of this Addendum, the terms of this Addendum shall
control.
1. Interest Rates and Due Date.
---------------------------
1.1 The entire principal balance outstanding hereunder shall
bear interest for each day during each Interest Period
hereafter established at a rate per annum to be selected by
the Borrower, subject to the conditions set forth herein,
from among the following interest rate options:
(a) "Interest Rate Option A": the LIBOR Rate plus
three-quarters of one percent (0.75%); or
(b) "Interest Rate Option B": a fixed rate of interest for
a specified Interest Period quoted by the Lender and
accepted by the Borrower quoted by the Lender and
accepted by the Borrower.
1.2 As used herein, the "LIBOR Rate" means the interest rate
per annum determined by averaging the respective rates at which
deposits in Dutch Guilder are offered to leading banks in the
London Interbank Market at the Lender's request at or about
11:00 a.m. prevailing London time two (2) Working Days before
the date that the LIBOR Rate shall become applicable hereto, for a
period of time comparable to the Interest Period to be made
applicable hereto and in an amount comparable to the principal
amount outstanding hereunder.
1.3 As used herein, "Interest Period" shall mean:
(a) with respect to Interest Rate Option B described hereinabove,
such period of time as the Lender shall specify in conjunction with
the quotation of the fixed rate; or
(b) with respect to Interest Rate Option A described hereinabove,
the following:
(i) initially, the period commencing on the
borrowing or conversion date, as the case may be,
with respect to such LIBOR Rate and ending one,
two, three, six or twelve months thereafter, as
selected by the Borrower in its notice of borrowing
or notice of conversion, as the case may be,
given with respect thereto; and
(ii) thereafter, each period commencing on the day
following the last day of the next preceding Interest
Period applicable to such LIBOR Rate and ending
one, two, three, six or twelve months thereafter, as
selected by the Borrower by irrevocable notice to
the Lender;
provided that, all of the foregoing provisions
relating to Interest Periods are subject to the
following:
(1) if any Interest Period pertaining to the
LIBOR Rate would otherwise end on a day that is
not a Working Day, such Interest Period shall be
extended to the next succeeding Working Day
unless the result of such extension would be to
carry such Interest Period into another calendar
month in which event such Interest Period shall end
on the immediately preceding Working Day;
(2) any LIBOR Rate Interest Period that would
otherwise extend beyond the Due Date of this Note
shall end on the Due Date of this Note; and
(3) any Interest Period pertaining to a LIBOR
Rate that begins on the last Working Day of a
calendar month (or on a day for which there is no
numerically corresponding day in the calendar
month at the end of such Interest Period) shall end
on the last Working Day of a calendar month.
1.4 The selection by Borrower of an interest rate permitted
pursuant to Section 1.1 hereinabove, as well as the acceptance by
Borrower of an interest rated quoted by the Lender pursuant to
Interest Rate Option B, shall be accomplished by the Borrower
delivering to Lender its irrevocable written notice at least two (2)
Business Days prior to the proposed starting date of an Interest
Period for Interest Rate Option B or at least two (2) Working
Days prior to the proposed starting date of an Interest Period for
Interest Rate Option A. Such written notices from Borrower to
Lender shall be deemed given when received by the Lender and
may be transmitted by regular mail, delivery service or telecopier
addressed to the "Attention of Loan Administration" at the
following address:
CoreStates Bank, N.A. - London
Centurion House
2
24 Monument Street
London EC 3R 8AJ
England
Telecopier: 071 623 5346
1.5 All outstanding and unpaid principal, accrued and unpaid
interest and any other sums remaining unpaid hereunder shall be
due and payable in full on July 31, 2001 (the "Due Date"). Prior
to the Due Date, Borrower shall pay interest quarterly, at the end
of each calendar quarter, or at the expiration of the applicable
Interest Period, if same occurs prior to the end of the then current
calendar quarter.
1.6 The Borrower may on the last day of any Interest Period
prepay this Note in whole or in part, without premium or penalty,
upon at least two (2) Working Days' irrevocable notice to the
Lender while Interest Rate Option A is in effect or upon two (2)
Business Days' irrevocable notice to the Lender while Interest
Rate Option B is in effect, specifying the date and the amount of
prepayment. Any prepayment prior to the conclusion of an
Interest Period shall be accompanied by the Breakage Costs.
Partial prepayments shall be in an aggregate principal amount of
$100,000.00 or a whole multiple of $50,000.00 in excess thereof.
Principal amounts prepaid prior to the Due Date hereunder may
not be reborrowed.
1.7 As used in this Addendum, the following terms shall have
the following meanings:
(a) "Breakage Costs" shall mean the aggregate amount of
such costs and fees as are determined by Lender in its sole
reasonable discretion to be applicable and payable upon the
prepayment, prior to the conclusion of the then applicable
Interest Period as to which Interest Option A is in effect, of
all or any portion of this Note, including but not limited to
any loss, including loss of interest income, costs or expenses
arising from the redeployment of funds and fees payable to
terminate the deposits from which such funds were obtained.
(b) "Business Day" or "Business Days" shall mean any day
or days other than a Saturday, Sunday, a public holiday
under the laws of the Commonwealth of Pennsylvania and/or
the United States of America, or other day on which banking
institutions are authorized or obligated to close in
Philadelphia, Pennsylvania.
(c) "Working Day" shall mean any Business Day on which
dealings in foreign currencies and exchange between banks
may be carried on in London, England.
3
1.8 Inability to Determine Interest Rate. If prior to the first
------------------------------------
day of any Interest Period:
(a) the Lender shall have determined (which determination
shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for
ascertaining the LIBOR Rate for such Interest Period, or
(b) the Lender shall have determined that the LIBOR Rate
determined or to be determined for such Interest Period
will not adequately and fairly reflect the cost to the Lender
(as conclusively certified by the Lender) of maintaining the
loan evidenced by the Note during such Interest Period,
the Lender shall give telecopy or telephonic notice thereof to the
Borrower as soon as practicable thereafter. If such notice is
given, and until the same is withdrawn by the Lender in writing,
Interest Rate Option A shall be unavailable and Interest Rate
Option B shall be applicable hereto.
2. Procedure for Borrowing. The full principal sum shall be
-----------------------
advanced by the Lender to the Borrower concurrently with the execution
of this Note and all related documentation executed in connection
herewith, and shall be paid to or on behalf of the Borrower in accordance
with the Borrower's written instructions.
3. Payments.
--------
3.1 Any payment to be made by the Borrower hereunder shall
be made in immediately available cleared funds in Dutch Guilder
before 2:00 o'clock p.m. London time on the date on which
payment thereof is due by Borrower's payment to Rabo Bank,
Utrecht The Netherlands (SWIFT address RABONL2U), for the
account of CoreStates Bank, N.A. - London (Account No.
390804959A00NLG).
3.2 All sums required to be paid under this Note shall be paid
in full without setoff or counterclaim.
4
3.3 Taxes. All payments made by the Borrower under this
-----
Note shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any governmental authority,
excluding, in the case of the Lender, net income taxes and
franchise taxes (imposed in lieu of net income taxes) imposed on
the Lender, as the case may be, as a result of a present or former
connection between the jurisdiction of the government or taxing
authority imposing such tax and the Lender (excluding a
connection arising solely from the Lender having executed,
delivered or performed its obligations or received a payment
under, or enforced, this Note) or any political subdivision or
taxing authority thereof or therein (all such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions and withholdings
being hereinafter called ("Taxes"). If any Taxes are required to
be withheld from any amounts payable to the Lender hereunder,
the amounts so payable to the Lender shall be increased to the
extent necessary to yield to the Lender (after payment of all
Taxes) interest or any such other amounts payable hereunder at
the rates or in the amounts specified in this Note. Whenever any
Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Lender a certified copy
of an original official receipt received by the Borrower showing
payment thereof. If the Borrower fails to pay any Taxes when due
to the appropriate taxing authority or fails to remit to the Lender
the required receipts or other required documentary evidence, the
Borrower shall indemnify the Lender for any incremental taxes,
interest or penalties that may become payable by the Lender as a
result of any such failure. The agreements in this Subsection 3.3
shall survive the payment of this Note and all amounts payable
hereunder.
4. Requirements of Law. In the event that after the date hereof, any
-------------------
change in any law, regulation or treaty or in the interpretation or
application thereof or compliance by the Lender with any request or
directive (whether or not having the force of law) from any central bank
or other governmental authority, agency or instrumentality:
(i) subjects or shall subject the Lender to any tax of
any kind whatsoever with respect to this Note, the loan made
hereunder, or changes the basis of taxation of payments to the
Lender of principal, interest or any other amount payable
hereunder (except for changes in the rate of tax on the overall net
income of the Lender); or
(ii) imposes, modifies or holds or shall impose, modify
or hold applicable any reserve, special deposit, compulsory loan
or similar requirement against assets held by, or deposits or other
liabilities in or for the account of, advances or loans by, or other
credit extended by, or any other acquisition of funds by, any
office of the Lender, which reserve, special deposit, compulsory
loan or similar requirement is not otherwise included in the
determination of the interest rate hereunder; or
(iii) imposes or shall impose on the Lender any other
condition;
and the result of any of the foregoing is to, directly or indirectly, increase
the cost to the Lender of making, renewing or maintaining advances or
extensions of credit or to reduce any account receivable thereunder then,
5
in any such case, the Borrower shall promptly pay the Lender, upon its
demand, any additional amounts necessary to compensate the Lender for
such additional cost or reduced account receivable. If the Lender
becomes entitled to claim any additional amounts pursuant to this section,
it shall promptly notify the Borrower of the event by reason of which it
has become so entitled. The good faith determination as to any additional
amounts payable pursuant to the foregoing sentence by the Lender shall
be conclusive in the absence of manifest error. This covenant shall
survive the payment of this Note and the payment of all amounts payable
hereunder.
(b) If the Lender shall have determined that the adoption of or
any change in any requirement of law regarding capital adequacy or in
the interpretation or application thereof or compliance by the Lender or
any corporation controlling the Lender with any request or directive
regarding capital adequacy (whether or not having the force of law) from
any governmental authority made subsequent to the date hereof does or
shall have the effect of reducing the rate of return on the Lender's or such
corporation's capital as a consequence of its obligations hereunder to a
level below that which the Lender or such corporation could have
achieved but for such change or compliance (taking into consideration the
Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by the Lender to be material then from time to
time, after submission by the Lender to the Borrower of a written request
therefor, the Borrower shall pay to the Lender such additional amount or
amounts as will compensate the Lender for such reduction.
(c) Notwithstanding any other provision herein, if the adoption
of or any change in any requirement of law or in the interpretation or
application thereof shall make it unlawful for the Lender to make or
maintain LIBOR Rate loans as contemplated herein, (a) the commitment
of the Lender hereunder to make the LIBOR Rate available, continue the
LIBOR Rate as such and convert this Note to the LIBOR Rate shall
forthwith be cancelled and (b) the sum then outstanding hereunder at the
LIBOR Rate, if any, shall be converted automatically to Interest Rate
Option B on the last day of the then current Interest Period with respect
thereto or within such earlier period as required by law. If any such
conversion occurs on a day which is not the last day of the then current
Interest Period, the Borrower shall pay to the Lender the Breakage Costs.
5. Currency Conversion. If any amount paid to or for the account of
-------------------
or recovered by the Lender in a currency ("Relevant Currency") other
than the currency in which it is expressed to be due or required to be paid
under this Note (the "Due Currency") and the amount paid or recovered
in the Relevant Currency when converted into the Due Currency (by the
Lender purchasing the Due Currency with the amounts so paid or
recovered in the London foreign exchange market at or about 10:00 a.m.
on the date of receipt after meeting all costs and expenses incurred in
effecting such purchase (save that if such date is not a Working Day, on
the next succeeding Working Day) is less than the relevant amount
6
originally due under this Note, the Borrower shall as a separate and
independent obligation immediately reimburse the Lender in the Due
Currency in respect of the amount of the shortfall and shall indemnify the
Lender against any direct loss or damage arising as a result of a failure to
make such reimbursement. If the payment made in the Relevant
Currency when converted at the applicable rate of exchange into the Due
Currency exceeds the relevant unpaid amount originally due under this
Note, then the Lender shall, after meeting all costs and expenses incurred
in effecting the purchase of the Due Currency with the Relevant Currency
and so long as no Event of Default shall then be subsisting, pay to the
Borrower an amount equal to the amount of such excess.
6. Indemnity. The Borrower agrees to indemnify the Lender and to
---------
hold the Lender harmless from any loss or expense which the Lender may
sustain or incur as a consequence of (a) default by the Borrower in
conversion into or continuation of a LIBOR Rate Interest Period after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Note, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice thereof in accordance
with the provisions of this Note or (c) the making of a prepayment while
Interest Option A is in effect on a day which is not the last day of the
Interest Period with respect thereto, including, without limitation, the
Breakage Costs. This covenant shall survive the payment of this Note
and all amounts payable hereunder.
7. References in this Addendum and/or in the Note to either the
"Note" or the "Addendum" shall be deemed to be references to both the
Note and this Addendum, unless the context clearly requires otherwise.
IN WITNESS WHEREOF, the Borrower, intending this to be a
sealed instrument and intending to be legally bound hereby, has executed and
delivered this Addendum as of the day and year first above written.
BORROWER:
--------
AMH (ARROW MEDICAL HOLDINGS) B.V.
By: /s/Marlin Miller, Jr.
-------------------------------------
Marlin Miller, Jr., Managing Director
Attest: /s/John Broadbent, Jr.
-------------------------------------
John Broadbent, Jr. Managing Director
7
EXPLANATION AND WAIVER OF RIGHTS
REGARDING CONFESSION OF JUDGMENT
1. On the date hereof, Arrow International, Inc., a(an) corporation
(the "Obligor") is signing and delivering to CoreStates Bank, N.A. (the
"Bank") a:
___ Promissory note in the principal sum of Dollars ($_____________);
X Guaranty of Obligations of AMH (Arrow Medical Holdings) B.V.
--- ---------------------------------
Other_______________________________________________________
---
(as the same may be renewed, modified, amended, extended, restated or
replaced, whether one or more, the "Obligation"). The Obligor has been
advised by the Bank (and by the Obligor's legal counsel, if applicable)
that the Obligation contains a clause that provides that the Bank may
confess judgment against the Obligor. The Obligor has read the
Obligation and clearly and specifically understands that by signing the
Obligation which contains such confession of judgment clause:
(a) The Obligor is authorizing the Bank to enter a
judgment against the Obligor and in favor of the Bank, which will give
the Bank a lien upon any real estate which the Obligor may own in any
county where the judgment is entered;
(b) Obligor is giving up an important right to any
notice or opportunity for a hearing before the entry of this judgment on
the records of the Court;
(c) The Obligor is agreeing that the Bank may enter
this judgment and understands that the Obligor will be unable to contest
the validity of the judgment, should the Bank enter it, unless the Obligor
successfully challenges entry of the judgment through a petition to open
or strike the judgment, which will require the Obligor to retain counsel at
the Obligor's expense;
(d) The Obligor may be giving up an important right to
any notice or opportunity for a hearing before the Bank may request and
use the power of the state government to deprive the Obligor of its
property pursuant to the judgment by seizing or having the Sheriff or
other official seize the Obligor's bank accounts, inventory, equipment,
furnishings, or any other personal property that the Obligor may own, to
satisfy the Obligation;
(e) The Obligor may be immediately deprived of the
use of any property that is seized by the Bank pursuant to the judgment
without notice or a hearing, and the procedural rules of Pennsylvania's
court system do not guarantee that the Obligor will receive a prompt
hearing after the Obligor's property is seized; and
(f) If the Obligation is the Bank's printed form of
Master Demand Note, Commercial Promissory Note or Security
Agreement, or a Master Note Agreement prepared by the Bank, the
Obligor is agreeing that the Bank may enter judgment whether or not
there is a default under the Obligation.
2. The Obligor knows and understands that it is the confession of
judgment clause in the Obligation which gives the Bank the rights
described in subparagraphs (a) through (f) of paragraph 1 above.
3. Fully and completely understanding the rights which are being
given up if the Obligor signs the Obligation containing the confession of
judgment, the Obligor nevertheless freely, knowingly and voluntarily
waives said rights and chooses to sign the Obligation.
4. Obligor acknowledges that the proceeds of the Obligation are to
be used for business purposes.
5. If the Obligor is an individual, the Obligor certifies that his/her
annual income exceeds $10,000.00.
Dated this 17th day of July, 1996.
THE OBLIGOR HAS READ THIS EXPLANATION AND WAIVER
PRIOR TO SIGNING THE OBLIGATION AND FULLY
UNDERSTANDS ITS CONTENTS.
ARROW INTERNATIONAL, INC.
---------------------------------
[Name of Corporation/Partnership]
By: /s/Marlin Miller, Jr. By: /s/John Broadbent, Jr.
----------------------------- -----------------------------------
Marlin Miller, Jr., President John Broadbent, Jr., Vice President
----------------------------- -----------------------------------
(Print name and Title) (Print name and Title)
INDIVIDUALS OR PROPRIETORS SIGN BELOW
-------------------- ----------------------------------
(Witness Signature) (Signature of Individual Obligor)
-------------------- ----------------------------------
(Witness Signature) (Signature of Individual Obligor)
CORPORATE ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF
On the 17th day of July, 1996, before me, a notary public for said
Commonwealth and County, the undersigned officer, personally appeared
Marlin Miller, Jr. and John H. Broadbent, Jr. who acknowledged
themselves to be the President and Vice-President of Arrow International,
Inc. and that they, as such officers, being authorized to do so, executed
the foregoing Explanation and Waiver of Rights Regarding Confession of
Judgment for the purposes therein contained by signing the name of the
corporation by themselves as such officers. And said Marlin Miller, Jr.
and John H. Broadbent, Jr. did further certify and acknowledge that they
received a true, correct and complete copy of the foregoing Explanation
and Waiver of Rights Regarding Confession of Judgment.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ Maureen C. Zielaskowski
--------------------------- Notarial Seal
Notary Public Maureen C. Zielaskowski, Notary Public
My Commission Expires July 27, 1998 Bern Twp., Berks County
Seal My Commission Expires July 27, 1998
PARTNERSHIP ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF
On the ______ day of ______, 19__, before me, a notary public for
said Commonwealth and County, the undersigned officer, personally
appeared ______________ who acknowledged himself/herself/themselves
to be General Partner(s) of _________________, a partnership, and who, I am
satisfied is/are the person(s) named in and who executed the within
Explanation and Waiver of Rights Regarding Confession of Judgment and
he/she/they severally acknowledged that he/she/they signed, sealed and
delivered the same as the act and deed of the said partnership for the uses
and purposes therein expressed by signing the name of the partnership by
himself/herself/themselves as partner(s). And said __________ and that
they, each did further certify and acknowledge that he/she/they received a
true, correct and complete copy of the within Explanation and Waiver of
Rights Regarding Confession of Judgment.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
Notary Public
My Commission Expires
Seal
INDIVIDUAL ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF
On the _________ day of _______, 19__, before me, a notary public
for said Commonwealth and County, the undersigned officer, personally
appeared ____________ who, I am satisfied is/are the person(s) named
in and who executed the within Explanation and Waiver of Rights
Regarding Confession of Judgment and he/she/they did severally
acknowledge that he/she/they signed, sealed and delivered the same as
his/her/their act and deed for the uses and purposes therein expressed.
And said __________________ did further certify and acknowledge that
he/she/they received a true, correct and complete copy of the within
Explanation and Waiver of Rights Regarding Confession of Judgment.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal.
Notary Public
My Commission Expires
Seal