exv10w1







Exhibit 10.1




Fifth Amendment

to

Loan and Security Agreement




     THIS FIFTH AMENDMENT to Loan and Security Agreement (this “Amendment”) is entered into as of
June 24, 2008, by and between SILICON VALLEY BANK (“Bank”), on the one side, and EV3 ENDOVASCULAR,
INC., a Delaware corporation, EV3 INTERNATIONAL, INC., a Delaware corporation, MICRO THERAPEUTICS,
INC., a Delaware corporation, and FOXHOLLOW TECHNOLOGIES, INC., a Delaware corporation
(collectively and jointly and severally referred to as “Borrowers”), whose address is c/o ev3 Inc.,
9600 54th Avenue North, Plymouth, MN 55442, on the other side.



Recitals




     A. Bank and Borrowers have entered into that certain Loan and Security Agreement dated as of
an Effective Date of June 28, 2006 (as the same may from time to time be further amended, modified,
supplemented or restated, the “Loan Agreement”). The Obligations of the Borrowers have been
guarantied by, among others, the following companies, in favor of Bank: ev3 Inc., a Delaware
corporation; Micro Therapeutics International, Inc., a Delaware corporation; and ev3 Peripheral,
Inc., a Minnesota corporation (collectively, the “Guarantors”).



     B. Bank has extended credit to Borrowers for the purposes permitted in the Loan Agreement.



     C. Borrowers have requested that Bank amend the Loan Agreement to (i) increase the Revolving
Line, (ii) provide for a Term Loan (as defined below), and (iii) make certain other amendments.



     D. Bank has agreed to so amend 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 2.1.10 (Term Loan). The following is hereby added as Section 2.1.10 of the Loan
Agreement to follow current Section 2.1.9 thereof:





	 	 	 	“2.1.10 Term Loan.
	 
	 	 	 	(a)     Availability; Repayment of Equipment Advances. Bank shall make one term loan
available to Borrowers in the amount of $10,000,000 (the “Term Loan”) on or after the
first Business Day following the Effective Date and on or before five Business Days
following the Effective Date, subject to the satisfaction of the terms and conditions of
this Agreement. The proceeds of the Term Loan shall be used to repay all outstanding
principal and interest under the Equipment Advances and the Equipment B Advances, and
the remainder of the Term Loan after such repayment shall be disbursed to Borrowers.
Borrowers authorize and instruct Bank to apply the proceeds of the Term Loan directly to
the outstanding principal and interest under the Equipment Advances and the Equipment B
Advances to the extent necessary to repay the same, and Borrowers agree that the portion
of the Term Loan so applied shall be deemed to have been disbursed to Borrowers in
accordance herewith.
	 
	 	 	 	(b)     Repayment. Borrowers shall repay the Term Loan in (i)
forty-eight (48) equal installments of principal, plus (ii) monthly
payments of accrued interest (the “Term Loan Payment”). Beginning
on the last day of the month following the month in which the
Funding Date for the Term Loan occurs, each Term Loan Payment shall
be payable on the last day of each month. Borrowers’ final Term
Loan Payment, due on the Term Loan Maturity Date, shall include all
outstanding principal and accrued and unpaid interest under the Term
Loan.
	 
	 	 	 	(c)     Prepayment. Borrowers shall have the option to prepay
all, but not less than all, of the Term Loan; provided
Borrowers (i) provide written notice to Bank of Borrowers’ election
to prepay the Term Loan at least thirty (30) days prior to such
prepayment, and (ii) pay, on the date of the prepayment (A) all
amounts due with
respect to the Term Loan (including principal and interest), and (B)
all unpaid accrued interest to the date of the prepayment.
	 
	 	 	 	(d)     Loan Request. To obtain the Term Loan, Borrowers must
notify Bank (the notice is irrevocable) by facsimile no later than
12:00 p.m. Pacific time one Business Day before the proposed Funding
Date for the Term Loan. The notice shall be on a Loan





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	 	 	 	Payment/Advance Request Form and must be signed by a Responsible
Officer or designee.”





          2.2 Section 2.2 (Overadvances). Section 2.2 of the Loan Agreement reads as follows:





	 	 	 	“If, at any time, the Credit Extensions under Sections 2.1.1, 2.1.2,
2.1.3 and 2.1.4 exceed the lesser of either (a) the Revolving Line
or (b) the greater of (i) $12,000,000 or (ii) the Borrowing Base
less applicable reserves, Borrowers shall immediately pay to Bank in
cash such excess.”




Said Section 2.2 is hereby amended to read as follows:





	 	 	 	“If, at any time, the sum of (i) the outstanding balance of all
Advances, plus (ii) the amount of all outstanding Letters of Credit
(including drawn but unreimbursed Letters of Credit) plus an amount
equal to the Letter of Credit Reserves, plus (iii) the amounts used
for Cash Management Services, and plus (iv) the FX Reserve, shall
exceed the lesser of either (y) the Revolving Line or (z) the
greater of $12,000,000 or the Borrowing Base less applicable
reserves, then Borrowers shall immediately pay to Bank in cash such
excess.”





          2.3 Section 2.3(a) (Payment of Interest). The following is hereby added as new subsection
“iii” to Section 2.3(a) of the Loan Agreement to follow current subsection “ii” thereof:





	 	 	 	“(ii)     Term Loan. Subject to Section 2.3(b), the principal
amount outstanding for the Term Loan shall accrue interest at a
floating per annum rate equal to one-half of one (.50) percentage
point above the Prime Rate, which interest shall be payable
monthly.”





          2.4 Section 2.4(c) (Unused Revolving Line Fee). The first sentence of Section 2.4(c) of the
Loan Agreement reads as follows:





	 	 	 	“A fee (the “Unused Revolving Line Fee”), payable quarterly, in
arrears, on a calendar year basis, in an amount equal to
three-eighths of one percent (0.375%) per annum of the average
unused portion of the Revolving Line, as determined by Bank.”




Said sentence is hereby amended to read as follows:





	 	 	 	“A fee (the “Unused Revolving Line Fee”), payable quarterly, in
arrears, on a calendar year basis, in an amount equal to one-quarter
of one percent (0.25%) per annum of the average unused portion of
the Revolving Line, as determined by Bank.”




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          2.5 Section 2.4(d) (Revolving Line Facility Fee). Section 2.4(d) of the Loan Agreement is
hereby amended to read as follows:





	 	 	 	“(d)     [Reserved.]”





          2.6 Section 2.4(e) (Revolving Line Prepayment Fee). Section 2.4(e) of the Loan Agreement is
hereby amended to read as follows:





	 	 	 	“(e)     [Reserved.]”





          2.7 Section 2.4(g) (Float Charge and Credit). The following is hereby added as Section 2.4(g)
to the Loan Agreement:





	 	 	 	“(g)     After the occurrence of the High Level Use Date, Bank shall be
entitled to charge Borrower a “float” charge in an amount equal to
one Business Day interest, at the interest rate applicable to the
Advances, on all Payments received by Bank. (Said float charge is
not included in interest for purposes of computing minimum monthly
interest (if any) under this Agreement.) The float charge for each
month shall be payable on the last day of the month. Bank shall
not, however, be required to credit Borrower’s account for the
amount of any item of payment which is unsatisfactory to Bank in its
good faith business judgment, and Bank may charge Borrower’s
Designated Deposit Account for the amount of any item of payment
which is returned to Bank unpaid.”





          2.8 Section 3.2(a) (Conditions Precedent to all Credit Extensions). Section 3.2(a) reads as
follows:





	 	 	 	“(a)     except as otherwise provided in Section 3.4(a), timely receipt
of an executed Payment/Advance Form;”




Said part of Section 3.2(a) is hereby amended to read as follows:





	 	 	 	“(a)     except as otherwise provided in Section 3.4(a), timely receipt
of an executed Payment/Advance Form and, if the High Level Use Date
has occurred, a completed and executed Transaction Report;”





          2.9 Section 3.4(a) (Procedures for Borrowing). Section 3.4(a) reads in part as follows:





	 	 	 	“Together with any such electronic or facsimile notification,
Borrowers shall deliver to Bank by electronic mail or facsimile a




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	 	 	 	completed Payment/Advance Form executed by a Responsible Officer of
each Borrower or his or her designee.”




Said part of Section 3.4(a) is hereby amended to read as follows:





	 	 	 	“Together with any such electronic or facsimile notification,
Borrowers shall deliver to Bank by electronic mail or facsimile a
completed Payment/Advance Form and, if the High Level Use Date has
occurred, a completed Transaction Report, each executed by a
Responsible Officer of each Borrower or his or her designee.”





          2.10 Section 5.2 (Collateral). The following is added to Section 5.2 of the Loan Agreement as
a new last paragraph thereof:





	 	 	 	“For any item of Inventory consisting of Eligible Inventory in any
Transaction Report or Borrowing Base Certificate, such Inventory
meets all requirements of the definition of “Eligible Inventory”
(except that Borrower makes no representation or warranty with
respect to requirement “f” of said definition (i.e., the Inventory
being acceptable to Bank in its good faith business judgment) except
to the extent that Bank has notified Borrower in writing of any
unacceptability).”





          2.11 Section 6.2(a)(iii) (Cash and Investment Locations). The following parenthetical
language from Section 6.2(a)(iii) of the Loan Agreement:





	 	 	 	“(which, among other things, shall set forth (y) calculations
showing compliance with the financial covenants set forth in this
Agreement and (z) the amount and locations of Parent’s, Borrower’s
and each Guarantor’s cash and Cash Equivalents)”,




is hereby amended to read as follows:





	 	 	 	“(which, among other things, shall set forth (y) calculations
showing compliance with the financial covenants set forth in this
Agreement and (z) the amount and locations of Parent’s, Borrower’s
and each Guarantor’s cash, Cash Equivalents and investments
(including without limitation Securities Accounts and Commodity
Accounts))”.





          2.12 Section 6.2(b) (Collateral Reports and Borrowing Base Certificates). The references to
“Fiscal Quarter” contained in Section 6.2(b) of the Loan Agreement are hereby amended to read
“month”. In addition, the portion of Section 6.2(b) of the Loan Agreement that reads as follows:





	 	 	 	“(iv) if at any time during such Fiscal Quarter the sum of the
Credit Extensions under Sections 2.1.1, 2.1.2, 2.1.3 and 2.1.4





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	 	 	 	exceeds $12,000,0000, a duly completed Borrowing Base Certificate
signed by a Responsible Officer of each Borrower and Parent”,




is hereby amended to read as follows:





	 	 	 	“(iv)  if at any time during such month the sum of (i) the
outstanding balance of all Advances, plus (ii) the amount of all
outstanding Letters of Credit (including drawn but unreimbursed
Letters of Credit) plus an amount equal to the Letter of Credit
Reserves, plus (iii) the amounts used for Cash Management Services,
and plus (iv) the FX Reserve, exceeds $12,000,0000, a duly completed
Borrowing Base Certificate signed by a Responsible Officer of each
Borrower and Parent”.





          2.13 Section 6.2(c) (Collateral Audits). Section 6.2(c) of the Loan Agreement reads as
follows:





	 	 	 	“(c)  Allow Bank to audit each Borrower’s Collateral at Borrowers’
expense. (Without limitation on the foregoing, Borrowers shall
cooperate with Bank completing, within 90 days after the Effective
Date, an audit of each Borrower’s Collateral and books and
records.)”




Section 6.2(c) is hereby amended to read as follows:





	 	 	 	“(c)  Allow Bank to audit each Borrower’s Collateral at Borrowers’
expense (i) annually at such times as Bank shall reasonably request
if the High Level Use Date has not occurred, and (ii) semi-annually
at such times as Bank shall reasonably request if the High Level Use
Date has occurred. Notwithstanding the foregoing, Borrowers shall
allow Bank to audit each Borrower’s Collateral at Borrowers’ expense
at such times as Bank shall determine in its sole discretion after
the occurrence and during the continuance of an Event of Default,
and no such audit done during the continuance of an Event of Default
shall be counted in determining the number of audits that Bank may
require pursuant to “i” and “ii” of the foregoing sentence. In
furtherance of the foregoing, Borrowers agree to allow Bank to
complete an audit of Borrowers’ Collateral by September 30, 2008.”





          2.14 Section 6.2(d) (Borrowing Base Certificate). The references to “Fiscal Quarter”
contained in Section 6.2(d) of the Loan Agreement are hereby amended to read “month”. In addition,
the portion of Section 6.2(d) of the Loan Agreement that reads as follows:




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	 	 	 	“If during a Fiscal Quarter Borrowers desire to obtain Credit
Extensions under Sections 2.1.1, 2.1.2, 2.1.3 and 2.1.4 that
aggregate in excess of $12,000,000”




is hereby amended to read as follows:





	 	 	 	“If during a month Borrowers desire to obtain Credit Extensions such
that the sum of (i) the outstanding balance of all Advances, plus
(ii) the amount of all outstanding Letters of Credit (including
drawn but unreimbursed Letters of Credit) plus an amount equal to
the Letter of Credit Reserves, plus (iii) the amounts used for Cash
Management Services, plus (iv) the FX Reserve, shall aggregate in
excess of $12,000,000”.





          2.15 Section 6.2(e) (Transaction Reports). The following is hereby added as Section 6.2(e) to
the Loan Agreement:





	 	 	 	“(e) If the High Level Use Date has occurred, Borrowers’ shall
provide Bank with a Transaction Report (and any schedules related
thereto) weekly and at the time of each request for an Advance.”





          2.16 Section 6.6(a) (Operating and Collateral Accounts). Section 6.6(a) of the Loan Agreement
reads as follows:





	 	 	 	“(a) Commencing on the date of the initial Credit Extension and
continuing thereafter (i) Maintain an operating account with Bank
and (ii) cause to be maintained in accounts of Parent, Borrower or
Secured Guarantors held with Bank and Bank’s affiliates the lesser
of $15,000,000 or an amount equal to 50% of the aggregate cash and
Cash Equivalents of Borrowers, Parent and Subsidiaries of Parent.”




Section 6.6(a) is hereby amended to read as follows:





	 	 	 	“(a) Maintain an operating account with Bank and maintain Parent’s,
Borrowers’ and Secured Guarantors’ primary investment accounts
(including without limitation Securities Accounts and Commodity
Accounts), with Bank and Bank’s Affiliates. Notwithstanding the
foregoing, promptly following the High Level Use Date but in any
event prior to the expiration of 120 days after the High Level Use
Date, Parent, Borrowers and Secured Guarantors shall each move their
primary operating accounts that are held in the United States or any
state or territory thereof or the
District of Columbia to Bank, including without limitation any
lockbox accounts to which Account Debtors make payments.”




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          2.17 Section 6.7 (Financial Covenants). Section 6.7 of the Loan Agreement is hereby amended
to read as follows:





	 	 	 	“6.7 Financial Covenants.






	 	 	 	Parent shall maintain at all times, to be tested as of the last day
of each month, unless otherwise noted, on a consolidated basis with
respect to Parent and its Subsidiaries:






	 	 	 	(a)     Adjusted Quick Ratio. A ratio of Qualified Quick Assets
to Current Liabilities of at least (i) 0.75 to 1.00 through and
including September 30, 2008, and (ii) 1.00 to 1.00 from October 1,
2008 and thereafter.






	 	 	 	(b)     Tangible Net Worth. A Tangible Net Worth of at least
$117,000,000, provided that Parent shall not be required to comply
with this Tangible Net Worth covenant once Parent is required to
comply with the EBITDA covenant in “c” below as set forth in “c”
below.






	 	 	 	(c)     EBITDA. EBITDA for the three-month period ending on the
date tested of at least $10,000,000, provided that Parent shall not
be required to comply with this EBITDA covenant until beginning the
earlier of December 31, 2008 or the date Parent’s EBITDA is first in
compliance with this covenant.”





          2.18 Section 6.12 (Collection of Accounts). The following is hereby added as Section 6.12 to
the Loan Agreement:





	 	 	 	“6.12 collection of accounts. beginning no later than five business
days following the high level use date and thereafter during the
term of this agreement and so long as any obligation remains
outstanding, borrowers shall be a party to an agreement (the
“lockbox agreement”) with bank and a lockbox provider (the “lockbox
provider”) and the terms of this section 6.12 concerning the lockbox
agreement, the lockbox provider, and collections therefrom shall
apply. the lockbox agreement and lockbox provider shall be
acceptable to bank. borrowers shall use the lockbox address as the
payment address on all invoices issued by
borrowers and shall direct all their account debtors to remit their
payments to the lockbox address. the lockbox agreement shall
provide that the lockbox provider shall remit all collections
received in the lockbox to bank on a daily basis. upon bank’s
receipt of such collections, in immediately available funds, and
after the bank’s ordinary course processing thereof, bank shall
apply such proceeds to the outstanding advances, and if all
outstanding advances have been paid in full, bank shall deposit




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	 	 	 	the remainder into the operating account of borrowers at bank that is
designated by borrowers, provided that if a default or event of
default has occurred and is continuing, without limiting bank’s
other rights and remedies, bank shall have the right to apply such
proceeds to the outstanding obligations in such order as it shall
determine in its discretion. it is understood and agreed by
borrower that this section does not impose any affirmative duty on
bank to do any act other than to turn over such amounts. without
limitation on the foregoing, after the high level use date has
occurred, whether or not an event of default has occurred and is
continuing, borrowers shall hold all payments on, and proceeds of,
accounts that borrowers receive, in trust for bank, and borrowers
shall immediately deliver all such payments and proceeds to bank in
their original form, duly endorsed.”





          2.19 Section 7.1 (Dispositions). The references to “Financed Equipment” contained in Sections
7.1(a) and 7.1(c) of the Loan Agreement are hereby amended to read “Equipment”. In addition, the
final sentence of Section 7.1 of the Loan Agreement, which reads as follows:





	 	 	 	“Notwithstanding the foregoing, Transfers of used Financed Equipment
shall not be permitted under “a” or “c” of this Section 7.1 in a
Fiscal Quarter of Borrower to the extent that the aggregate fair
market value of all used Financed Equipment transferred in such
Fiscal Quarter for all Borrowers exceeds $150,000.”




is hereby amended to read as follows:





	 	 	 	“Notwithstanding the foregoing, Transfers of Equipment shall not be
permitted under “a” or “c” of this Section 7.1 in a Fiscal Quarter
of Borrower to the extent that the aggregate fair market value of
all Equipment transferred in such Fiscal Quarter for all Borrowers
exceeds $500,000.”





          2.20 Section 10 (Notices). The portion of Section 10 of the Loan Agreement that reads as
follows:



Silicon Valley Bank

301 Carlson Parkway, Suite 255

Minnetonka, MN 55305

Attn: Mr. Jay McNeil

Fax: 952.475.471

Email: jmcneil@svbank.com



is hereby amended to read as follows:




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Silicon Valley Bank

Corporate Finance

380 Interlocken Crescent, Suite 600

Broomfield, CO 80021

Attn: Mr. John Kinzer

Fax: 303.469.9028

Email: jkinzer@svb.com




          2.21 Section 13.1 (New Definitions). The following definitions are hereby added to Section
13.1 of the Loan Agreement, in the appropriate alphabetical order:





	 	 	 	“EBITDA” shall mean (a) Net Income, plus (b) Interest Expense, plus
(c) to the extent deducted in the calculation of Net Income,
depreciation expense and amortization expense and any non-cash
compensation expense, plus (d) income tax expense.
	 
	 	 	 	“High Level Use Date” shall mean the date upon which the sum of the
following first exceeds $25,000,000: (a) the outstanding balance of
all Advances, plus (b) the amount of all outstanding Letters of
Credit (including drawn but unreimbursed Letters of Credit) plus an
amount equal to the Letter of Credit Reserves, plus (c) the amounts
used for Cash Management Services, and plus (d) the FX Reserve.
	 
	 	 	 	“Interest Expense” means for any fiscal period, interest expense on
a consolidated basis for Borrowers and their Subsidiaries (whether
cash or non-cash) determined in accordance with GAAP
for the relevant period ending on such date, including, in any
event, interest expense with respect to any Credit Extension and
other Indebtedness of Borrowers and their Subsidiaries, including,
without limitation or duplication, all commissions, discounts, or
related amortization and other fees and charges with respect to
letters of credit and bankers’ acceptance financing and the net
costs associated with interest rate swap, cap, and similar
arrangements, and the interest portion of any deferred payment
obligation (including leases of all types).
	 
	 	 	 	“Lockbox Agreement” is defined in Section 6.12.
	 
	 	 	 	“Lockbox Provider” is defined in Section 6.12.
	 
	 	 	 	“Payment” means all checks, wire transfers and other items of
payment received by Bank (including proceeds of Accounts and payment
of the Obligations in full) for credit to Borrowers or the
Obligations.




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	 	 	 	“Qualified Quick Assets” is, on any date, Parent’s and its
Subsidiaries’ consolidated, unrestricted cash and unrestricted Cash
Equivalents (but in either case excluding auction rate securities),
and net billed trade accounts receivable owing from Parent’s and its
Subsidiaries’ Account Debtors whose chief executive office and
principal place of business are located in the United States or
Canada (excluding Quebec), determined according to GAAP.
	 
	 	 	 	“Term Loan” is defined in Section 2.1.10(a).
	 
	 	 	 	“Term Loan Maturity Date” is June 23, 2012.
	 
	 	 	 	“Term Loan Payment” is defined in Section 2.1.10(b).
	 
	 	 	 	“Transaction Report” is that certain report of transactions and
schedule of collections in the form previously provided by Bank to
Parent.





          2.22 Section 13.1 (Amendment of “Borrowing Base”). That portion of the definition of
“Borrowing Base” (which is contained in Section 13.1 of the Loan Agreement) that reads:





	 	 	 	“(iii) $7,500,000, as determined by Bank from Borrowers’ most recent
Borrowing Base Certificate;”




is hereby amended to read as follows:





	 	 	 	“(iii) $10,000,000, as determined by Bank from Borrowers’ most
recent Borrowing Base Certificate or Transaction Report;”





          2.23 Section 13.1 (Other Amendments to Existing Definitions). The definitions for the
following defined terms from Section 13.1 of the Loan Agreement are hereby amended to read as set
forth below:





	 	 	 	“Compliance Certificate” is that certain certificate in the form
attached hereto as Exhibit D, to which Parent and Borrowers
shall attach a schedule showing the financial covenant calculations
in detail acceptable to Bank in its good faith business judgment.






	 	 	 	“Credit Extension” is any Advance, Equipment Advance, Equipment B
Advance, Term Loan, Letter of Credit, FX Forward Contract, amount
utilized for Cash Management Services, or any other extension of
credit by Bank for any Borrower’s benefit.






	 	 	 	“Eligible Inventory” means, at any time, the aggregate of Borrowers’
Inventory that (a) consists of raw materials or finished goods, in
good, new, and salable condition, which is not perishable, returned,
obsolete, not sellable, damaged, or defective,




11









 












	 	 	 	and is not comprised
of demonstrative or custom inventory, works in progress, packaging
or shipping materials, or supplies; (b) meets all applicable
governmental standards; (c) has been manufactured in compliance with
the Fair Labor Standards Act; (d) is not subject to any Liens,
except the first priority Liens granted or in favor of Bank under
this Agreement or any of the other Loan Documents; (e) is located at
(i) the locations of Borrowers designated in Borrowers’ Perfection
Certificates, or (ii) new locations of Borrowers within the United
States for which Borrowers have given Bank 30 days’ prior written
notice; and (f) is otherwise acceptable to Bank in its good faith
business judgment. Borrowers’ Inventory that is Trunk Inventory or
is located at the premises of consignees of such Inventory shall not
be Eligible Inventory unless from time to time agreed to in writing
by Bank in its sole discretion.
	 
	 	 	 	“Revolving Line” is an Advance or Advances in an aggregate amount of
up to $50,000,000 outstanding at any time.
	 
	 	 	 	“Revolving Line Maturity Date” is June 25, 2010.





          2.24 Exhibit D (Compliance Certificate). Exhibit D to the Loan Agreement is hereby replaced
by Exhibit A hereto.




          2.25 Exhibit E (Transaction Report). Exhibit B hereto is hereby added to the Loan Agreement
as Exhibit E thereto.




     3. Limitation of Amendments.



          3.1 The consents and amendments set forth herein 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
other transaction or 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, shall remain in full force
and effect, and are incorporated herein by reference.




     4. Representations and Warranties. To induce Bank to enter into this Amendment, each 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




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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 previously delivered to Bank 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 either Borrower, except as already have 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. Effectiveness. This Amendment shall be deemed effective upon (a) the due execution and
delivery of this Amendment by each party hereto, and (b) Bank’s receipt of the Acknowledgment of
Amendment and Reaffirmation of and Amendment to Guaranty substantially in the form attached hereto
as Schedule 1, duly executed and delivered by each Guarantor named thereon.



     7. Fee; Expenses. In consideration for Bank entering into this Amendment, Borrower shall
concurrently pay Bank a fee in the amount of $150,000, which fee is deemed fully earned on the date
hereof, and shall be non-refundable and in addition to all interest and



13









 




other fees payable to Bank
under the Loan Documents. Without limitation on the terms of the Loan Documents, Borrowers agree 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
Borrowers’ loan account or any of Borrowers’ deposit accounts maintained with Bank.




[ Signature Page Follows ]




14









 








     In Witness Whereof, the parties hereto have caused this Amendment to be duly executed
and delivered as of the date first written above.



Borrowers:




	 	 	 	 	 	 	 	 	 	 	 
	EV3 ENDOVASCULAR, INC.	 	 	 	EV3 INTERNATIONAL, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Patrick D. Spangler
	 	 	 	By:
	 	/s/ Patrick D. Spangler	 	 
	Name:

	 	 

Patrick D. Spangler
	 	 	 	Name:
	 	 

Patrick D. Spangler
	 	 
	Title:

	 	Vice President
and Chief Financial Officer
	 	 	 	Title:
	 	Treasurer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	MICRO THERAPEUTICS, INC.	 	 	 	FOXHOLLOW TECHNOLOGIES, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Patrick D. Spangler
 

	 	 	 	By:
	 	/s/ Patrick D. Spangler
 

	 	 
	Name:

	 	Patrick D. Spangler
	 	 	 	Name:
	 	Patrick D. Spangler	 	 
	Title:

	 	Chief Financial Officer
and Treasurer
	 	 	 	Title:
	 	Chief Financial Officer
and Treasurer	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Bank:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	SILICON VALLEY BANK	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ John Kinzer
 


	Name:

	 	John Kinzer
	 	 
	Title:

	 	Director







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