ARROW INTERNATIONAL, INC.
EXHIBIT 10.1
FIFTH AMENDMENT TO LOAN AGREEMENT
THIS FIFTH AMENDMENT TO LOAN AGREEMENT (the "Fifth Amendment") made and
entered into as of April __, 2006, 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, April 23, 2004, and
May 27, 2005, 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 Fifth 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 Fifth
Amendment are incorporated herein by reference thereto as if fully set forth in
this Fifth 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, and as further
amended by the Lender and the Borrowers pursuant to the Fifth Amendment
to Loan Agreement dated as of April __, 2006, and any future
amendments, restatements, modifications or supplements thereof or
thereto.
"Alternative Currency Borrowing Sub-Limit" shall mean Fifty
Million Dollars ($50,000,000) (based on the Dollar Equivalent of the
Alternative Currencies).
"Termination Date" shall mean April 30, 2007 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. Alternative Currency Borrowing Sub-Limit. Section 2.1(a) of the
Agreement is hereby amended and modified by deleting at the end of such Section
the dollar amount "Twenty-Five Million Dollars ($25,000,000)" and replacing it
with the dollar amount "Fifty Million Dollars ($50,000,000)".
4. Withholdings and Deductions. Section 2 of the Agreement is hereby
amended and modified by adding at the end thereof a new Section 2.20, which
Section 2.20 shall read in its entirety as follows:
"Section 2.20 Withholdings and Deductions. All sums received
by the Lender under any of the Loan Documents, whether in respect of
principal, interest, fees, costs or otherwise, shall be received in
full without any set-off or counter-claim by the Borrowers free and
clear of and without any deduction or withholding for or on account of
any present or future income or other taxes, levies, imposts, duties,
charges or withholdings of any nature whatsoever. In the event that any
such deduction or withholding from any payment for the account of the
Lender under any of the Loan Documents shall be required or in the
event that any payment on or in relation to any amount received by the
Lender on account of taxes or otherwise shall be required to be made,
in each case under any present or future law, directive, regulation or
practice, then the Borrowers shall forthwith pay to the Lender such
additional amounts as will result (after the making of such deduction,
withholding or payment) in the receipt and retention by the Lender of
the same amount which would otherwise have been received and retained
by it pursuant to such Loan Document had no such deduction, withholding
or payment been made."
5. Representations and Warranties. As a material inducement for the
Lender to enter into this Fifth 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.
6. Binding Effect. This Fifth Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
7. 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 Fifth Amendment and all documents executed in connection herewith.
8. Effective Date. This Fifth Amendment shall be operative and
effective when the Lender has executed this Fifth Amendment.
9. 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.
10. 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 Fifth 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.
11. Execution in Counterparts. This Fifth 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.
12. 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 Fifth Amendment or the Loan Documents.
13. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment
to Loan Agreement 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:
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:
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")