SEVENTH AMENDMENT TO LOAN AGREEMENT
ARROW
INTERNATIONAL, INC.
Exhibit
10.1
SEVENTH
AMENDMENT TO LOAN AGREEMENT
THIS
SEVENTH AMENDMENT TO LOAN AGREEMENT (the “Seventh Amendment”) made and entered
into as of March __, 2007, 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 NEDERLAND
B.V., a corporation organized and existing under the laws of the Netherlands,
ARROW MEDICAL HOLDINGS B.V., a corporation organized and existing under the
laws
of the Netherlands, ARROW INTERNATIONAL CR, A.S., a corporation organized and
existing under the laws of the Czech Republic, ARROW ITALY SpA, a corporation
organized and existing under the laws of Italy, and ARROW INTERNATIONAL UK
LTD.,
a corporation organized and existing under the laws of the United Kingdom.
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, April 23, 2004,
May 27, 2005, May 25, 2006, and August 8, 2006 (with certain of the Borrowers
joining in the loan agreement through an amendment to the loan agreement),
pursuant to which the Lender agreed to provide the Borrowers with Loans in
an
aggregate outstanding amount not to exceed at any one time Ninety Million
Dollars ($90,000,000), subject to and in accordance with the terms and
conditions set forth therein (the “Agreement”).
B.
The
Agreement is incorporated by reference in this Seventh 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 Seventh Amendment are incorporated herein by
reference thereto as if fully set forth in this Seventh 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:
“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 27, 2005, as
further amended by the Lender and the Borrowers pursuant to the Fifth Amendment
to Loan Agreement dated as of May 25, 2006, as further amended by the Lender
and
the Borrowers pursuant to the Sixth Amendment to Loan Agreement dated as of
August 8, 2006, and as further amended by the Lender and the Borrowers
pursuant to the Seventh Amendment to Loan Agreement dated as of March __, 2007,
and any future amendments, restatements, modifications or supplements thereof
or
thereto.
"Termination
Date” shall mean April 30, 2008 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.
ARROW
INTERNATIONAL, INC.
3.
Representations
and Warranties.
As a
material inducement for the Lender to enter into this Seventh 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.
4.
Binding
Effect.
This
Seventh Amendment shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted
assigns.
5.
Costs
and Expenses.
Without
limiting the generality of the provisions of the Agreement, the Borrowers 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 Seventh Amendment and all documents
executed in connection herewith.
6.
Effective
Date.
This
Seventh Amendment shall be operative and effective when the Lender has executed
this Seventh Amendment.
7.
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.
8.
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 Seventh 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.
9.
Execution
in Counterparts.
This
Seventh 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.
10.
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 Seventh Amendment or the
Loan
Documents.
11.
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]
ARROW
INTERNATIONAL, INC.
IN
WITNESS WHEREOF, the parties hereto have caused this Seventh Amendment to Loan
Agreement to be duly executed as of the day and year first above
written.
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ARROW
INTERNATIONAL, INC.
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By:
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/s/ Xxxx X. Xxxxxxxx, Xx.
Name:
Xxxx X. Xxxxxxxx, Xx.
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Title:
Chairman, CEO & President
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Attest: |
/s/
Xxxx X. Xxxx
Name:
Xxxx X. Xxxx
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Title:
Secretary & Treasurer
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ARROW
MEDICAL PRODUCTS, LTD.
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By:
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/s/ Xxxx X. Xxxxxxxx, Xx.
Name:
Xxxx X. Xxxxxxxx, Xx.
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Title:
Director
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Attest: |
/s/
Xxxx X. Xxxx
Name:
Xxxx X. Xxxx
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Title:
Director
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ARROW
DEUTSCHLAND GMBH
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By:
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/s/ Xxxx X. Xxxxxxxx, Xx.
Name:
Xxxx X. Xxxxxxxx, Xx.
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Title:
Director
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Attest: |
/s/
Xxxx X. Xxxx
Name:
Xxxx X. Xxxx
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Title:
Director
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[SIGNATURES
CONTINUE ON FOLLOWING PAGES]
ARROW
INTERNATIONAL, INC.
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ARROW
IBERIA, S.A.
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By:
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/s/ Xxxx X. Xxxxxxxx, Xx.
Name:
Xxxx X. Xxxxxxxx, Xx.
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Title:
Director
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Attest: |
/s/
Xxxx X. Xxxx
Name:
Xxxx X. Xxxx
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Title:
Director
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ARROW
INTERNACIONAL DE MEXICO, S.A. DE C.V.
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By:
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/s/ Xxxxxxx Xxxxxxxx
Name:
Xxxxxxx
Xxxxxxxx
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Title:
Director
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Attest: |
Name:
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Title:
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ARROW
HELLAS COMMERCIAL A. E.
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By:
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/s/ Xxxx X. Xxxx
Name:
Xxxx
X. Xxxx
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Title:
Director
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Attest: |
/s/
Xxxxxxx Xxxxx
Name:
Xxxxxxx
Xxxxx
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Title:
Treasure
Manager, AI
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ARROW
NEDERLAND B.V.
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By:
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/s/ Xxxx X. Xxxx
Name:
Xxxx
X. Xxxx
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Title:
Director
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Attest: |
/s/
Xxxxxxx Xxxxx
Name:
Xxxxxxx
Xxxxx
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Title:
Treasure
Manager, AI
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[SIGNATURES
CONTINUE ON FOLLOWING PAGE]
ARROW
INTERNATIONAL, INC.
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ARROW
INTERNATIONAL CR, A.S.
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By:
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/s/ Xxxx X. Xxxxxxxx, Xx.
Name:
Xxxx X. Xxxxxxxx, Xx.
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Title:
Director
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Attest: |
/s/
Xxxx X. Xxxx
Name:
Xxxx X. Xxxx
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Title:
Director
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ARROW
ITALY, SpA
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By:
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/s/ Xxxx X. Xxxxxxxx, Xx.
Name:
Xxxx
X. Xxxxxxxx, Xx.
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Title:
Director
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Attest: |
/s/
Xxxx X. Xxxx
Name:
Xxxx X. Xxxx
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Title:
Director
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ARROW
MEDICAL HOLDINGS B.V.
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By:
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/s/ Xxxx X. Xxxxxxxx, Xx.
Name:
Xxxx
X. Xxxxxxxx, Xx.
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Title:
Director
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Attest: |
/s/
Xxxx X. Xxxx
Name:
Xxxx X. Xxxx
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Title:
Director
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ARROW
INTERNATIONAL UK LTD.
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By:
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/s/
Xxxx X. Xxxx
Name:
Xxxx
X. Xxxx
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Title:
Director
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Attest: |
/s/
Xxxxxxx Xxxxx
Name: Xxxxxxx
Xxxxx
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Title:
Treasure Manager, AI
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(“Borrowers”)
[SIGNATURES
CONTINUE ON FOLLOWING PAGE]
ARROW
INTERNATIONAL, INC.
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WACHOVIA
BANK, NATIONAL ASSOCIATION
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By:
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/s/ Xxxxxx X. Xxxxxx
Name:
Xxxxxx
X. Xxxxxx
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Title:
Sr.
Vice President
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WACHOVIA
BANK, NATIONAL ASSOCIATION, LONDON
BRANCH
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By:
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Name:
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Title:
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(“Lender”)