AMENDMENT TO CREDIT AND SECURITY AGREEMENT
Exhibit 10.1
AMENDMENT TO CREDIT AND SECURITY AGREEMENT
THIS AMENDMENT (the “Amendment”), dated as of October 2, 2009, is entered into by and among
MISONIX, INC., ACOUSTIC MARKETING RESEARCH, INC. d/b/a SONORA MEDICAL SYSTEMS, and HEARING
INNOVATIONS INCORPORATED (collectively, the “Borrowers”), and XXXXX FARGO BANK, NATIONAL
ASSOCIATION (the “Lender”), acting through its Xxxxx Fargo Business Credit operating division.
RECITALS
The Borrowers and the Lender are parties to a Credit and Security Agreement dated December 29,
2006 (as amended from time to time, the “Credit Agreement”). Capitalized terms used in this
Amendment have the meanings given to them in the Credit Agreement unless otherwise specified.
The Borrowers have requested that certain amendments be made to the Credit Agreement, which
the Lender is willing to make pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
herein contained, it is agreed as follows:
1. Section 1.1 of the Credit Agreement shall be amended by deleting the definition of “Minimum
Loan Amount” in its entirety and replacing it with the following:
“‘Minimum Loan Amount’ shall mean $500,000.”
2. Termination. The Borrowers acknowledge and agree that the term of the Credit
Agreement shall not be renewed, and the Termination Date shall be December 29, 2009.
3. No Other Changes. Except as explicitly amended by this Amendment, all of the terms
and conditions of the Credit Agreement shall remain in full force and effect and shall apply to any
advance or letter of credit thereunder.
4. Asset Sale. The Borrowers have requested that the Lender agree to allow Acoustic to
sell, assign, transfer and/or deliver to Medical Imaging Holdings, Inc. certain MRI products and
other assets (the “Proposed Sale”), pursuant to the terms and conditions contained in the Asset
Purchase Agreement, the September 16, 2009 draft of which (the “Draft APA”) is attached hereto.
Xxxxx Fargo consents to the Proposed Sale subject to Xxxxx Fargo’s receipt of $1,804,665.25 from
the proceeds of the Proposed Sale, such that all Advances made by Xxxxx Fargo based upon the
Purchased Assets will have been paid in full by the Borrowers and that there would remain excess
Availability of at least $500,000 after giving effect to the Proposed Sale.
5. Conditions Precedent. This Amendment shall he effective when the Lender shall have
received an executed original hereof, together with each of the following, each in substance and
form acceptable to the Lender in its sole discretion:
(a) Execution and delivery to the Lender of a fully executed copy of this Amendment.
(b) Execution and delivery to the Lender of a fully executed Securities Account Control
Agreement (the “Control Agreement”) in form and substance acceptable to the Lender in its sole
discretion.
(c) Funding of an additional $1,000,000 (the “Additional Cash Collateral”) to account #
[omitted] at Xxxxx Fargo Brokerage Services, LLC, which account and Additional Cash Collateral
shall he subject to the Control Agreement.
(d) Such other matters as the Lender may require.
6. Representations and Warranties. The Borrowers hereby represent and warrant to the
Lender as follows:
(a) The Borrowers have all requisite power and authority to execute this Amendment and any
other agreements or instruments required hereunder and to perform all of their obligations
hereunder, and this Amendment and all such other agreements and instruments have been duly executed
and delivered by the Borrowers and constitute the legal, valid and binding obligation of the
Borrowers, enforceable in accordance with their terms.
(b) The execution, delivery and performance by the Borrowers of this Amendment and any other
agreements or instruments required hereunder have been duly authorized by all necessary corporate
action and do not (i) require any authorization, consent or approval by any governmental
department, commission, board, bureau, agency or instrumentality, domestic or foreign, (ii) violate
any provision of any law, rule or regulation or of any order, writ, injunction or decree presently
in effect, having applicability to the Borrowers, or the articles of incorporation or by-laws of
the Borrowers, or (iii) result in a breach of or constitute a default under any indenture or loan
or credit agreement or any other agreement, lease or instrument to which the Borrowers are a party
or by which they or their properties may he bound or affected.
(c) All of the representations and warranties contained in Article V of the Credit Agreement
are correct on and as of the date hereof as though made on and as of such date, except to the
extent that such representations and warranties relate solely to an earlier date.
7. References. All references in the Credit Agreement to “this Agreement” shall he
deemed to refer to the Credit Agreement as amended hereby; and any and all references in the
Security Documents to the Credit Agreement shall he deemed to refer to the Credit Agreement as
amended hereby.
8. No Waiver. The execution of this Amendment and the acceptance of all other
agreements and instruments related hereto shall not be deemed to be a waiver of any Default or
Event of Default under the Credit Agreement or a waiver of any breach, default or event of default
under any Security Document or other document held by the Lender, whether or not known to the
Lender and whether or not existing on the date of this Amendment.
2
9. Release. The Borrowers hereby absolutely and unconditionally release and forever
discharge the Lender, and any and all participants, parent corporations, subsidiary corporations,
affiliated corporations, insurers, indemnitors, successors and assigns thereof, together with all
of the present and former directors, officers, agents and employees of any of the foregoing, from
any and all claims, demands or causes of action of any kind, nature or description, whether arising
in law or equity or upon contract or tort or under any state or federal law or otherwise, which the
Borrowers have had, now have or have made claim to have against any such person for or by reason of
any act, omission, matter, cause or thing whatsoever arising from the beginning of time to and
including the date of this Amendment, whether such claims, demands and causes of action are matured
or unmatured or known or unknown.
10. Costs and Expenses. The Borrowers hereby reaffirm their agreement under the Credit
Agreement to pay or reimburse the Lender on demand for all costs and expenses incurred by the
Lender in connection with the Loan Documents, including without limitation all reasonable fees and
disbursements of legal counsel. Without limiting the generality of the foregoing, the Borrowers
specifically agree to pay all fees and disbursements of counsel to the Lender for the services
performed by such counsel in connection with the preparation of this Amendment and the documents
and instruments incidental hereto. The Borrowers hereby agree that the Lender may, at any time or
from time to time in its sole discretion and without further authorization by the Borrowers, make a
loan to the Borrowers under the Credit Agreement, or apply the proceeds of any loan, for the
purpose of paying any such fees, disbursements, costs and expenses.
11. Miscellaneous. This Amendment may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original and all of which counterparts,
taken together, shall constitute one and the same instrument.
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of
the date first above written.
| XXXXX FARGO BANK, | MISONIX, INC. | |||||||||
| NATIONAL ASSOCIATION | ||||||||||
By:
|
/s/Xxxxxxx X. Xxxxxxx | By: | /s/ Xxxxxxx Xxxxxxx | |||||||
| Xxxxxxx X. Xxxxxxx, Vice President | Xxxxxxx Xxxxxxx, Xx. Vice President | |||||||||
| ACOUSTIC MARKETING RESEARCH INC. | ||||||||||
| d/b/a SONORA MEDICAL SYSTEMS | ||||||||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||||||||
| Xxxxxxx Xxxxxxx, Xx. Vice President | ||||||||||
| HEARING INNOVATIONS INCORPORATED | ||||||||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||||||||
| Xxxxxxx Xxxxxxx, Xx. Vice President | ||||||||||
4
