Exhibit 10.1
AMENDMENT
TO
LOAN AND SECURITY AGREEMENT
THIS AMENDMENT to Loan and Security Agreement (this "Amendment") is entered as
of August 15, 2006, by and between Silicon Valley Bank ("Bank") and ATS Medical,
Inc., a Minnesota corporation (the "Borrower") whose address is 3905 Annapolis
Lane, Suite 105, Minneapolis, Minnesota 55447.
RECITALS
A. Bank and Borrower have entered into that certain Loan and Security
Agreement dated as of July 28, 2004 (as amended, modified, supplemented or
restated from time to time, the "Loan Agreement").
B. Bank has extended credit to Borrower for the purposes permitted in
the Loan Agreement.
C. Borrower has requested that Bank amend the Loan Agreement to (i)
extend the dates for delivery of certain invoices and the repayment of any
Excess New Equipment Advance, and (ii) make certain other revisions to the Loan
Agreement as more fully set forth herein.
D. Bank has agreed to so amend certain provisions of the Loan
Agreement, but only to the extent, in accordance with the terms, subject to the
conditions and in reliance upon the representations and warranties set forth
below.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used but not defined in this Amendment
shall have the meanings given to them in the Loan Agreement.
2. Amendments to Loan Agreement.
2.1 Section 2.1.6(a) (Purchase Dates). The second sentence of Section
2.1.6(a) reads as follows:
The New Equipment Advance may only be used to finance or
refinance Eligible Equipment purchased on or after June 1, 2005
1
and on or before May 31, 2006 ("New Equipment Advance Eligible
Equipment").
Said sentence is hereby amended to read as follows:
The New Equipment Advance may only be used to finance or
refinance Eligible Equipment purchased on or after June 1, 2005
and on or before October 31, 2006 ("New Equipment Advance
Eligible Equipment").
2.2 Section 2.1.6(a) (Excess Payment Date). The fourth sentence of
Section 2.1.6(a) reads as follows:
If on June 30, 2006 the outstanding amount of the New Equipment
Advance exceeds the aggregate Eligible Equipment Invoice Amounts
for which Borrower has provided Bank with invoices, then Borrower
shall immediately pay the amount of such excess (the "Excess New
Equipment Advance") to Bank.
Said sentence is hereby amended to read as follows:
If on October 31, 2006 the outstanding amount of the New
Equipment Advance exceeds the aggregate Eligible Equipment
Invoice Amounts for which Borrower has provided Bank with
invoices, then Borrower shall immediately pay the amount of such
excess (the "Excess New Equipment Advance") to Bank.
2.3 Updated Financial Statements and TNW Covenant. Pursuant to the
Amendment to Loan and Security Agreement dated March 29, 2006 among Bank and
Borrower, Borrower agreed that (a) Borrower would provide Bank with updated
financial statements by June 1, 2006, which financial statements would reflect
the impact of the Acquisition (as defined therein), and (b) the Tangible Net
Worth financial covenant would then be reset based upon such updated financial
statements. Such agreement by Borrower is hereby amended to read as follows:
(a) Borrower shall provide Bank with updated financial statements
30 days following the closing of the Acquisition (as defined in
such Amendment), which financial statements shall reflect the
impact of the Acquisition, and (b) the Tangible Net Worth
financial covenant shall then be reset based upon such updated
financial statements (provided that it shall not be reset to less
than $40,000,000).
3. LIMITATION OF AMENDMENTS.
3.1 The amendments set forth in SECTION 2, above, are
effective for the purposes set forth herein and shall be limited precisely as
written and shall not be deemed to (a) be a consent to any amendment, waiver or
modification of any other term or condition of any Loan Document, or (b)
otherwise prejudice any right or remedy which Bank may now have or may have in
the future under or in connection with any Loan Document.
3.2 This Amendment shall be construed in connection with
and as part of the Loan Documents and all terms, conditions, representations,
warranties, covenants and agreements set forth in the Loan Documents, except as
herein amended, are hereby ratified and confirmed and shall remain in full force
and effect.
4. REPRESENTATIONS AND WARRANTIES. To induce Bank to enter into
this Amendment, Borrower hereby represents and warrants to Bank as follows:
4.1 Immediately after giving effect to this Amendment (a)
the representations and warranties contained in the Loan Documents are true,
accurate and complete in all material respects as of the date hereof (except to
the extent such representations and warranties relate to an earlier date, in
which case they are true and correct as of such date), and (b) no Event of
Default has occurred and is continuing;
4.2 Borrower has the power and authority to execute and
deliver this Amendment and to perform its obligations under the Loan Agreement,
as amended by this Amendment;
4.3 The organizational documents of Borrower delivered to
Bank on the Effective Date remain true, accurate and complete and have not been
amended, supplemented or restated and are and continue to be in full force and
effect;
4.4 The execution and delivery by Borrower of this
Amendment and the performance by Borrower of its obligations under the Loan
Agreement, as amended by this Amendment, have been duly authorized;
4.5 The execution and delivery by Borrower of this
Amendment and the performance by Borrower of its obligations under the Loan
Agreement, as amended by this Amendment, do not and will not contravene (a) any
law or regulation binding on or affecting Borrower, (b) any contractual
restriction with a Person binding on Borrower, (c) any order, judgment or decree
of any court or other governmental or public body or authority, or subdivision
thereof, binding on Borrower, or (d) the organizational documents of Borrower;
4.6 The execution and delivery by Borrower of this
Amendment and the performance by Borrower of its obligations under the Loan
Agreement, as amended by this Amendment, do not require any order, consent,
approval, license, authorization or
validation of, or filing, recording or registration with, or exemption by any
governmental or public body or authority, or subdivision thereof, binding on
Borrower, except as already has been obtained or made; and
4.7 This Amendment has been duly executed and delivered
by Borrower and is the binding obligation of Borrower, enforceable against
Borrower in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or
other similar laws of general application and equitable principles relating to
or affecting creditors' rights.
5. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
6. FEES AND EXPENSES. In consideration for Bank entering into
this Amendment, Borrower shall concurrently pay Bank a fee in the amount of
$1,000, which fee is deemed fully earned on the date hereof, and shall be
non-refundable and in addition to all interest and other fees payable to Bank
under the Loan Documents. Without limitation on the terms of the Loan Documents,
Borrower agrees to reimburse Bank for all its costs and expenses (including
reasonable attorneys' fees) incurred in connection with this Amendment. Bank is
authorized to charge said fees, costs and expenses to Borrower's loan account or
any of Borrower's deposit accounts maintained with Bank.
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the date first written above.
BANK BORROWER
Silicon Valley Bank ATS Medical, Inc.
By: /s/ Charles Roehl By: /s/ Deborah K. Chapman
Name: Charles Roehl Name: Deborah K. Chapman
Title: VP -- Relationship Manager Title: Controller