Exhibit 10.7 Fifth Amendment to Loan Agreement with Zions First National Bank
Dated November 15, 2002
This Fifth Amendment to Loan Agreement (this "Amendment") is made and
entered into by and between MERIT MEDICAL SYSTEMS, INC., MERIT HOLDINGS, INC.,
and SENTIR SEMICONDUCTOR, INC. (collectively referred to as "Borrowers") and
ZIONS FIRST NATIONAL BANK ("Lender").
Recitals
A. Borrowers and Lender entered into that certain Amended and Restated
Loan Agreement dated August 11, 1999 (the "Agreement").
B. The Agreement has been amended by a First Amendment to Loan
Agreement dated March 14, 2000, a Second Amendment to Loan Agreement dated March
5, 2001, a Third Amendment to Loan Agreement dated July 1, 2001, and a Fourth
Amendment to Loan Agreement dated September 7, 2001 (collectively, the "Previous
Amendments").
C. Borrowers and Lender desire to further modify and amend the
Agreement as provided herein.
Amendment
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Borrowers and Lender hereby agree and amend and
modify the Agreement as follows:
1. Definitions. Except as otherwise expressly provided herein, terms
assigned defined meanings in the Agreement, as amended by the Previous
Amendments, shall have the same defined meanings in this Amendment.
2. Amended Definition. The definition of "Facility Amount" in Section
1.1 of the Agreement, as previously amended, is amended in its entirety to read
as follows:
"Facility Amount" means five hundred thousand dollars ($500,000.00).
3. Conditions to Effectiveness of Amendment. The amendments set forth
above shall become effective, as of the date and year set forth below, on such
date (the "Fifth Amendment Effective Date") when the following conditions shall
have been satisfied in a form and substance acceptable to Lender:
a. This Amendment and all other documents contemplated by this
Amendment to be delivered to Lender prior to funding have been fully
executed and delivered to Lender.
b. All other conditions precedent provided in or contemplated
by the Agreement, the Security Documents, or any other agreement or
document has been performed.
c. As of the Fifth Amendment Effective Date, the following
shall be true and correct: (1) all 0representations and warranties made
by Borrowers in the Agreement are true and correct as of the Fifth
Amendment Effective Date; and (2) no Event of Default has occurred
under the Agreement and no conditions exist and no event has occurred,
which, with the passage of time or the giving of notice, or both, would
constitute an Event of Default under the Agreement.
4. Collateral. The Loan and the Promissory Note are secured by the
collateral identified in and contemplated by the Agreement, including, without
limitation, the various Security Agreements dated August 11, 1999 and any other
Security Agreements subsequently executed by Borrowers and by the Collateral
described in Section 3.1 Collateral of the Agreement, as amended by the Previous
Amendments.
5. Representations and Warranties. Each Borrower hereby affirms and
again makes the representations and warranties set forth in Article 5
Representations and Warranties of the Agreement as of the Fifth Amendment
Effective Date. Each Borrower represents and warrants that there have been no
changes to the Organizational Documents of such Borrower since August 11, 1999.
6. Authorization. Each Borrower represents and warrants that the
execution, delivery, and performance by such Borrower of this Amendment and all
agreements, documents, obligations, and transactions herein contemplated have
been duly authorized by all necessary action on the part of such Borrower and
are not inconsistent with such Borrower's Organizational Documents or any
resolution of the Board of Directors of such Borrower, do not and will not
contravene any provision of, or constitute a default under, any indenture,
mortgage, contract, or other instrument to which such Borrower is a party or by
which it is bound, and that upon execution and delivery hereof, this Amendment
will constitute a legal, valid, and binding agreement and obligation of each
Borrower, enforceable in accordance with their respective terms.
7. Payment of Expenses and Attorney's Fees. Borrowers shall pay all
reasonable expenses of Lender relating to the negotiation, drafting of
documents, and documentation of this Amendment, including, without limitation,
title insurance, recording fees, filing fees, and reasonable attorney's fees and
legal expenses. If such expenses are not promptly paid, Lender is authorized and
directed, upon execution of this Amendment and fulfillment of all conditions
precedent hereunder, to disburse a sufficient amount of the Loan proceeds to pay
in full these expenses.
8. Agreement Remains in Full Force and Effect. Except as expressly
amended or modified by this Amendment, the Agreement, as previously amended by
the Previous Amendments, remains in full force and effect.
9. Counterpart Execution. This Amendment may be executed in several
counterparts, without the requirement that all parties sign each counterpart.
Each of such counterparts shall be an original, but all counterparts together
shall constitute one and the same instrument.
10. Integrated Agreement; Amendment. This Amendment, together with the
Agreement, the Restated Promissory Note, the Security Documents, the Previous
Amendments, and the other agreements, documents, obligations, and transactions
contemplated by the Agreement, the Previous Amendments, and this Amendment,
constitute the entire agreements and understandings between the parties and
supersede all other prior and contemporaneous agreements and may not be altered
or amended except by written agreement signed by the parties. PURSUANT TO UTAH
CODE SECTION 25-5-4, BORROWERS ARE NOTIFIED THAT THESE AGREEMENTS ARE A FINAL
EXPRESSION OF THE AGREEMENT BETWEEN LENDER AND BORROWERS AND THESE AGREEMENTS
MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY ALLEGED ORAL AGREEMENT. All other
prior and contemporaneous agreements, arrangements, and under-standings between
the parties hereto as to the subject matter hereof are, except as otherwise
expressly provided herein, rescinded.
Dated: November 15, 2002.
MERIT MEDICAL SYSTEMS, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------------------
Xxxx Xxxxxxx
Chief Financial Officer
MERIT HOLDINGS, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------------------
Xxxx Xxxxxxx
Chief Financial Officer
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SENTIR SEMICONDUCTOR, INC.
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------------------
Xxxx Xxxxxxx
Chief Financial Officer
ZIONS FIRST NATIONAL BANK
/s/ Xxx X. Xxxxxxxxxxx
By:-----------------------------------------------------------
Xxx X. Xxxxxxxxxxx
Vice President
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