Exhibit 10.1





AMENDMENT NO. 1 TO LOAN AGREEMENT


 


This Amendment No. 1
(the “Amendment”) dated as of March 10, 2009, is made by and among Bank of
America, N.A. (the “Bank”) and Merit Medical Systems, Inc., a Utah
corporation (the “Borrower”).


 


RECITALS


 


A.  The Bank and Borrower entered
into a certain Loan Agreement dated as of December 7, 2006 (together with
any previous amendments, the “Agreement”).


 


B.  The Bank and the Borrower
desire to amend the Agreement to permit the Borrower to make certain acquisitions
more fully described below and to make other changes in the Agreement.


 


AGREEMENT


 


1.  Definitions.  Capitalized terms used but not defined in
this Amendment shall have the meaning given to them in the Agreement.


 


2.  Amendments to Agreement.  The Agreement is hereby amended by the Bank
and the Borrower as follows:


 


2.1  Consent
to Acquisitions.  Notwithstanding the
provisions of Section 7.11(b) of the Agreement, the Bank consents to (a) the
Borrower’s acquisition of Alveolus for consideration of approximately $19
million and (b) the Borrower’s acquisition of Biosearch Inc. for
consideration of approximately $1.6 million (the “2009 Acquisitions”).  Furthermore, the Bank agrees that
consideration paid by Borrower for the 2009 Acquisitions, so long as not
exceeding the amounts listed above, shall not be taken into account for
computing (i) the 2009 $15 million per annum ceiling on consideration for
acquisitions and (ii) the life of the loan $40 million ceiling on
consideration for acquisitions, as provided in Section 7.11(b).


 


2.2   Interest
Rate.  Paragraph 1.4 is amended in
its entirety to read as follows:


 


“1.4  Interest
Rate.


 


(a)                                  The
interest rate (the “Base Rate”) is a rate per year to the lesser of (i) the
maximum lawful rate of interest permitted under applicable usury laws, now or
hereafter enacted (the “Maximum Rate”), or (ii) the sum of (x) the
greater of the BBA LIBOR Daily Floating Rate or the Index Floor, plus (y) the
Applicable Rate as Defined below.  For
the purposes of this subparagraph, “Index Floor” means (i) 0.50 percent
between March 10, 2009  and June 9,
2009, and (ii) from June 10, 2009 and thereafter, 0.75 percent.


 


(b)                                 The
BBA LIBOR Daily Floating Rate is a fluctuating rate of interest equal to the
rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”),
as published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as selected by the Bank from time to time) as
determined for each banking day at approximately 11:00 a.m. London time
two (2) London Banking Days prior to the date in question, for U.S. Dollar
deposits (for delivery on the first day of such interest period) with a one
month term, as adjusted from time to time in the Bank’s sole discretion for
reserve requirements, deposit insurance assessment rates and other regulatory
costs.  If such rate is not available at
such time for any reason, then the rate for that interest period will be
determined by such alternate 


 


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method as
reasonably selected by the Bank.  A “London
Banking Day” is a day on which banks in London are open for business and
dealing in offshore dollars.”


 


2.3  Optional
Interest Rates  Paragraph 1.5(a) is
amended in its entirety to read as follows:


 


“(a) the
lesser of (i) the maximum rate of interest permitted under applicable
usury laws, now or hereafter enacted (the “Maximum Rate”), or ( ii) the sum of (x) the
greater of the LIBOR Rate or the Index Floor, plus (y) the Applicable Rate
as defined below.  For the purposes of
this subparagraph, “Index Floor” means (i) 0.50 percent between March 10,
2009, and June 9, 2009, and (ii) from June 10, 2009 and
thereafter, 0.75 percent.”


 


2.4  Applicable
Margin.  In Paragraph 1.6 “Applicable
Margin,” the column headed entitled “Bank’s Prime” is deleted in its
entirety, and the column to the right with the heading entitled “LIBOR” is
amended by changing the heading to read “Base Rate or LIBOR.”  For the sake of clarity, this means that the
applicable basis points listed under the heading “LIBOR” will be added as the
Applicable Margin to the Base Rate interest rate and to the LIBOR interest
rate, as the case may be.


 


3.             Conditions of
Effectiveness. 
This Amendment shall be effective as of the Amendment date first set
forth above, subject to the following:


(a)           The Bank shall have
received counterparts of this Amendment executed by the Borrower;


(b)           Borrower
shall have delivered to the Bank a secretary’s certificate, with incumbency
provision, certifying the effective corporate resolutions of the Borrower
authorizing the Borrower to enter into this Amendment, and


(c)           Borrower shall deliver to the Bank an
amendment fee in the amount of $30,000.00.


 


4.  Representations and
Warranties.  Borrower represents and
warrants to the Bank that:  (a) there
is no event which is, or with notice or lapse of time or both would be, a
default under the Agreement except those events, if any, that have been
disclosed in writing to the Bank or waived in writing by the Bank, (b) the
representations and warranties in the Agreement are true as of the date of this
Amendment as if made on the date of this Amendment, (c) this Amendment
does not conflict with any law, agreement, or obligation by which the Borrower
is bound, and (d) this Amendment is within the powers of the Borrower, has
been duly authorized, and does not conflict with any of the Borrower’s
organizational papers.


 


5.  Effect of
Amendment.  Except as provided in
this Amendment, all of the terms and conditions of the Agreement, Security
Agreements and Guaranties shall remain in full force and effect.


 


6.  Counterparts.  This Amendment may be executed in
counterparts, each of which when so executed shall be deemed an original, but
all such counterparts together shall constitute but one and the same
instrument.


 


7. 
FINAL AGREEMENT.  BY
SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT:  (A) THIS DOCUMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, (B) THIS
DOCUMENT SUPERSEDES ANY COMMITMENT LETTER, TERM SHEET OR OTHER WRITTEN OUTLINE
OF TERMS AND CONDITIONS RELATING TO THE SUBJECT MATTER HEREOF, UNLESS SUCH
COMMITMENT LETTER, TERM SHEET OR OTHER WRITTEN OUTLINE OF TERMS AND CONDITIONS
EXPRESSLY PROVIDES TO THE CONTRARY, (C) THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES, AND (D) THIS DOCUMENT MAY NOT BE
CONTRADICTED BY EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OR UNDERSTANDINGS OF THE PARTIES.


 


8. 
Notice of Final Agreement. 
THE WRITTEN AGREEMENT AND THE LOAN DOCUMENTS EXECUTED IN CONNECTION
HEREWITH REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.


 


THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.


 


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This Amendment is
executed as of the date stated at the beginning of this Amendment.


 


 


	
   

  	
  BANK:

  
	
   

  	
   

  
	
   

  	
  Bank
  of America, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/

  
	
   

  	
   

  	
  Authorized Signer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MERIT
  MEDICAL SYSTEMS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/

  



 


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