[Bank of America Logo]
As of February 13, 2006
Misonix, Inc.
1938 New Highway
Farmingdale, New York 11735
RE: Bank of America, N.A., as successor by merger to Fleet National Bank with
Misonix, Inc.
Reference is made to the Loan and Security Agreement dated as
of January 18, 2002 by and between MISONIX, INC., a New York corporation having
a place of business at with offices at 1938 New Highway, Farmingdale, New York
11735 (the "Debtor") and FLEET NATIONAL BANK, having a place of business at 000
Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 (the "Secured Party"), as amended by
Amendment No. 1 to the Loan and Security Agreement dated on or about November
11, 2002, as further amended by Amendment No. 2 to the Loan and Security
Agreement dated June 20, 2003, as further amended by Amendment No. 3 to the Loan
and Security Agreement dated as of January 18, 2005, as further amended by
Amendment No. 4 to the Loan and Security Agreement dated as of February 18,
2005, as may be further amended from time to time (the "Agreement"). All
capitalized terms not otherwise defined herein shall have the meanings set forth
in the Agreement.
Debtor has requested that Secured Party waive Debtor's
compliance, (i) for the periods ended September 30, 2005 and December 31, 2005,
with paragraph 9.26.(a), and (ii) for the period ended December 31, 2005, with
paragraph 9.26.(c), provided operating loss shall not be greater than
$2,800,000.00 for the 2 consecutive fiscal quarters ended December 31, 2005, and
the Secured Party has agreed to do so provided that Debtor execute and deliver
this letter agreement to the Secured Party.
The waiver herein is limited to the waiver of paragraphs
9.26.(a) and 9.26.(c) of the Agreement for the periods specified only; this
waiver agreement shall not be construed to waive any other provision of the
Agreement, or to waive compliance paragraphs 9.26.(a) and 9.26.(c) of the
Agreement for a period other than as provided herein, or to waive any default
under the Agreement or other Transaction Documents which has occurred or shall
occur.
As an inducement to Secured Party entering into this waiver
agreement, the Debtor represents and warrants to Secured Party that (a) the
representations and warranties set forth in the Agreement and other Transaction
Documents are true and correct in all material respects, (b) no event has
occurred and is continuing, which constitutes an "Event of Default" under the
Agreement and/or the other Transaction documents, (c) Debtor is in compliance,
in all
material respects, with the covenants and agreements set forth in the
Agreement and/or the other Transaction Documents and (d) Debtor, upon receipt of
this waiver agreement, will pay to Secured Party a fee of five thousand
($5,000.00) dollars.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Agreement. Except as expressly permitted herein,
all other provisions of the Agreement and the other Transaction Documents remain
unmodified and are in full force and effect.
BANK OF AMERICA, N.A., as successor
by merger to Fleet National Bank
By: /s/ Xxxxxx Xxxxx
--------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
MISONIX, INC.
By: /s/ Xxxxxxx X. XxXxxxx
-----------------------------------
Name: Xxxxxxx X. XxXxxxx, Xx.
Time: President and Chief Executive Officer
