Exhibit 10.8
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT (this "Agreement") dated as of the Effective
Date between SILICON VALLEY BANK, a California corporation ("Bank"), on the one
side, and EV3 ENDOVASCULAR, INC., a Delaware corporation, EV3 INTERNATIONAL,
INC., a Delaware corporation, and MICRO THERAPEUTICS, INC., a Delaware
corporation (collectively and jointly and severally referred to as "Borrowers"),
provides the terms on which Bank shall lend to Borrowers and Borrowers shall
repay Bank. The parties agree as follows:
1
ACCOUNTING AND OTHER TERMS
Accounting terms not defined in this Agreement shall be construed following
GAAP. Calculations and determinations must be made following GAAP. Capitalized
terms not otherwise defined in this Agreement shall have the meanings set forth
in Section 13. All other terms contained in this Agreement, unless otherwise
indicated, shall have the meaning provided by the Code to the extent such terms
are defined therein.
2
LOAN AND TERMS OF PAYMENT
2.1
PROMISE TO PAY. BORROWERS HEREBY
UNCONDITIONALLY PROMISE TO PAY BANK THE OUTSTANDING PRINCIPAL AMOUNT OF ALL
CREDIT EXTENSIONS AND ACCRUED AND UNPAID INTEREST THEREON AS AND WHEN DUE IN
ACCORDANCE WITH THIS AGREEMENT.
2.1.1
REVOLVING ADVANCES.
(A)
AVAILABILITY. SUBJECT TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT, BANK SHALL MAKE ADVANCES NOT EXCEEDING THE
AVAILABILITY AMOUNT. AMOUNTS BORROWED UNDER THE REVOLVING LINE MAY BE REPAID
AND, PRIOR TO THE REVOLVING LINE MATURITY DATE, REBORROWED, SUBJECT TO THE
APPLICABLE TERMS AND CONDITIONS PRECEDENT HEREIN.
(B)
TERMINATION; REPAYMENT. THE REVOLVING LINE
TERMINATES ON THE REVOLVING LINE MATURITY DATE, WHEN THE PRINCIPAL AMOUNT OF ALL
ADVANCES, THE UNPAID INTEREST THEREON, AND ALL OTHER OBLIGATIONS RELATING TO THE
REVOLVING LINE SHALL BE IMMEDIATELY DUE AND PAYABLE.
2.1.2
LETTERS OF CREDIT SUBLIMIT.
(A)
AS PART OF THE REVOLVING LINE, BANK SHALL
ISSUE OR HAVE ISSUED LETTERS OF CREDIT FOR BORROWERS' ACCOUNT. THE FACE AMOUNT
OF OUTSTANDING LETTERS OF CREDIT (INCLUDING DRAWN BUT UNREIMBURSED LETTERS OF
CREDIT AND ANY LETTER OF CREDIT RESERVE) MAY NOT EXCEED THE OVERALL ANCILLARY
SUBLIMIT SET FORTH IN SECTION 2.1.6. SUCH AGGREGATE AMOUNTS UTILIZED HEREUNDER
SHALL AT ALL TIMES REDUCE THE AMOUNT OTHERWISE AVAILABLE FOR CREDIT EXTENSIONS
UNDER THE REVOLVING LINE. IF, ON THE REVOLVING MATURITY DATE OR ANY EARLIER DATE
OF TERMINATION OF THE REVOLVING LINE, THERE ARE ANY OUTSTANDING LETTERS OF
CREDIT, THEN ON SUCH DATE BORROWERS SHALL PROVIDE TO BANK CASH COLLATERAL IN AN
AMOUNT EQUAL TO 100% OF THE FACE AMOUNT OF ALL SUCH LETTERS OF CREDIT PLUS ALL
INTEREST, FEES, AND COSTS DUE OR TO BECOME DUE IN CONNECTION THEREWITH (AS
ESTIMATED BY BANK IN ITS GOOD FAITH BUSINESS JUDGMENT), TO SECURE ALL OF THE
OBLIGATIONS RELATING TO SAID LETTERS OF CREDIT. ALL LETTERS OF CREDIT SHALL BE
IN FORM AND SUBSTANCE ACCEPTABLE TO BANK IN ITS SOLE DISCRETION AND SHALL BE
SUBJECT TO THE TERMS AND CONDITIONS OF BANK'S STANDARD APPLICATION AND LETTER OF
CREDIT AGREEMENT (THE "LETTER OF CREDIT APPLICATION"). BORROWERS AGREE TO
EXECUTE ANY FURTHER DOCUMENTATION IN CONNECTION WITH THE LETTERS OF CREDIT AS
BANK MAY REASONABLY REQUEST.