First Amendment to Credit Agreement
Exhibit
10.5
Execution
Version
First
Amendment to Credit Agreement
This
First Amendment to Credit Agreement (this “Amendment”) is entered into
as of February 3, 2009, between Micrus Endovascular Corporation, a Delaware
corporation (“Borrower”), and Xxxxx Fargo
Bank, National Association (“Bank”).
Recitals
Whereas
Borrower is currently indebted to Bank pursuant to the terms and conditions of
that certain Credit Agreement, dated as of November 5, 2008 (as amended,
modified or supplemented prior to the date hereof, the “Credit Agreement”), between
Borrower and Bank; and
Whereas
Bank and Borrower have agreed to certain changes in the terms and conditions set
forth in the Credit Agreement and have agreed to amend the Credit Agreement to
reflect such changes;
Now,
therefore, for valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Bank and Borrower hereby agree that the Credit Agreement
shall be amended as follows; provided that nothing
contained herein shall terminate any security interests, guaranties,
subordinations or other documents in favor of Bank, all of which shall remain in
full force and effect unless expressly amended hereby:
Section 1.Definitions. Each
capitalized term used but not otherwise defined herein has the meaning assigned
to it in the Credit Agreement.
Section 2.Amendments to Credit
Agreement. Subject to Section 3 hereof, the Credit
Agreement is hereby amended as follows:
(a) The
following definition contained in Section 1.1 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
“Maturity Date” means February
1, 2010.
(b) Section
4.2(a) of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
(a) Compliance. The
representations and warranties contained herein and in each of the other Loan
Documents executed by Borrower or any Guarantor shall be true in all material
respects on and as of the date of the signing of this Agreement and on the date
of each extension of credit by Bank pursuant hereto, with the same effect as
though such representations and warranties had been made on and as of each such
date (provided, however, that those representations and warranties expressly
referring to another date shall be true and correct in all material respects as
of such date), and on each such date, no Event of Default as defined herein, and
no condition, event or act which with the giving of notice or the passage of
time or both would constitute such an Event of Default, shall have occurred and
be continuing or shall exist, or would result from such proposed extension of
credit or from the application of the proceeds thereof.
(c) Section
6.3(a) of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
(a) not
later than 20 days after and as of the end of each month, company prepared
monthly consolidated and consolidating unaudited financial statements of
Borrower, which financial statements shall include Borrower’s balance sheet as
of the end of such month and the related statements of Borrower’s income for the
month then ended and any footnotes thereto, all in reasonable detail and
prepared in accordance with GAAP;
Section
3.Conditions
Precedent. This Amendment, including, without limitation the
amendments to the Credit Agreement contained herein, shall become effective as
of the date first set forth above (the “Effective Date”) upon
satisfaction of all of the conditions set forth in this Section 3 to the
satisfaction of Bank; provided that, in the event
such conditions are not so satisfied, then this Amendment shall be of no further
force and effect:
(a) Bank
shall have received each of the following, duly executed and delivered by each
of the applicable parties thereto:
(i)this
Amendment; and
(ii)such other documents as Bank may
require under any other Section of this Amendment; and
(b) No
Event of Default or event which, with the giving of notice, the lapse of time or
both would constitute an Event of Default, shall have occurred and be
continuing; and
(c) Borrower
shall pay an amendment fee of $18,750 to Bank.
Section 4.Interpretation. Except
as specifically provided herein, all terms and conditions of the Credit
Agreement remain in full force and effect, without waiver or
modification. This Amendment and the Credit Agreement shall be read
together, as one document. The Recitals hereto, including the terms
defined therein, are incorporated herein by this reference and acknowledged by
Borrower to be true, correct and complete.
Section 5.Representations, Warranties and
Covenants. Borrower hereby remakes all representations and
warranties contained in the Credit Agreement and reaffirms all covenants set
forth therein (as amended hereby) as of the date of this
Amendment. Borrower further certifies that as of the date of this
Amendment there exists no Default or Event of Default.
Section 6.Further
Assurances. Borrower will make, execute, endorse, acknowledge,
and deliver any agreements, documents, or instruments, and take any and all
other actions, as may from time to time be reasonably requested by Bank to
perfect and maintain the validity and priority of the liens and security
interests granted to Bank pursuant to the Credit Agreement and the other Loan
Documents and to effect, confirm, or further assure or protect and preserve the
interests, rights, and remedies of Bank under the Credit Agreement (as amended
hereby) and the other Loan Documents.
Section 7.Counterparts. This
Amendment may be executed in any number of identical counterparts, any set of
which signed by all the parties hereto shall be deemed to constitute a complete,
executed original for all purposes. Delivery of an executed
counterpart of a signature page of this Amendment by telefacsimile transmission
shall be as effective as delivery of a manually executed counterpart
hereof.
Section 8.Governing
Law. This Amendment shall be governed by and construed in
accordance with the internal laws of the State of California.
[Signatures
follow on next page.]
In
witness whereof, the parties hereto have caused this Amendment to be executed as
of the date first written above.
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MICRUS
ENDOVASCULAR CORPORATION
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XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
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a
Delaware corporation
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a
national banking association
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By:
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/s/
Xxxxxx Xxxxxxxx
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By:
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/s/
Xxxx Xxxxx
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Name:
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Xxxxxx
Xxxxxxxx
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Name:
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Xxxx
Xxxxx
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Title:
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CFO
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Title:
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Vice
President
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By:
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/s/
Xxx Xxxxxxx
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Name:
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Xxx
Xxxxxxx
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Title:
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Vice
President of Finance
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