AMENDMENT NO. 7 TO THE LOAN AND SECURITY AGREEMENT
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This AMENDMENT XX. 0 ("Xxxxxxxxx Xx. 0") dated as of September 12, 2006
to the Loan and Security Agreement dated as of January 18, 2002 by and between
MISONIX, INC., a New York corporation with offices at 0000 Xxx Xxxxxxx,
Xxxxxxxxxxx, Xxx Xxxx 00000 ("Debtor") and BANK OF AMERICA, N.A., as successor
by merger to Fleet National Bank, a national banking association having a place
of business at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 ("Secured
Party"), as amended by Amendment No. 1 to the Loan and Security Agreement dated
as of November 12, 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 further amended by Amendment No. 5 to the Loan and Security Agreement
dated as of February 14, 2006, as further amended by Amendment No. 6 to the Loan
and Security Agreement dated on or about May 11, 2006.
W I T N E S S E T H :
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WHEREAS, on January 18, 2002, Debtor and Secured Party had entered into
a certain loan and security agreement, 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 further amended by
Amendment No. 5 to the Loan and Security Agreement dated as of February 14,
2006, as further amended by Amendment No. 6 to the Loan and Security Agreement
dated on or about May 11, 2006 (the aforesaid agreement, including all
amendments thereto, the "Loan Agreement").
WHEREAS, Debtor has requested that Secured Party, among other things,
amend certain financial covenants, and the Secured Party has agreed to do so, in
the manner set forth below, provided however, that, among other things, Debtor
execute this Amendment No. 7.
NOW, THEREFORE, in consideration of the mutual promises and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto agree as follows:
1. The definition of "Borrowing Capacity" is hereby amended to read in
its entirety as follows:
BORROWING CAPACITY means, at the time of computation, with respect
to the Revolving Credit Facility, Two Million ($2,000,000.00).
2. The definition of "Floating Rate Option" is hereby amended to read
in its entirety as follows:
FLOATING RATE OPTION means a rate per annum equal to the Prime Rate
plus 200 basis points.
3. The definition of "Interest Rate" is hereby amended to read in its
entirety as follows:
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INTEREST RATE shall mean the Floating Rate Option. All computations
of interest shall be made on the basis of a three hundred sixty
(360) day year and the actual number of days elapsed.
4. This Amendment No. 7 and the other Transaction Documents, and the
rights and obligations of the parties hereunder or thereunder, as the
case may be, will be construed and interpreted in accordance with the
laws of the State of New York (excluding the laws applicable to
conflicts or choice of law).
5. DEBTOR AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS AMENDMENT
NO. 7 OR ANY OF THE OTHER TRANSACTION DOCUMENTS MAY, AT THE OPTION OF
SECURED PARTY, BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY
FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT
BEING MADE UPON DEBTOR BY MAIL AT THE ADDRESS SET FORTH IN THIS
AMENDMENT NO. 7. DEBTOR HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT
SUCH SUIT IS BROUGHT IN AN INCONVENIENT FORUM.
6. Debtor hereby grants to Secured Party a continuing lien, security
interest and right of setoff as security for all liabilities and
obligations to Secured Party, whether now existing or hereafter
arising, upon and against all deposits, credits, collateral and
property, now or hereafter in the possession, custody, safekeeping or
control of Secured Party or any entity under the control of Bank of
America or in transit to any of them. At any time, without demand or
notice (any such notice being expressly waived by Debtor), Secured
Party may set off the same or any part thereof and apply the same to
any liability or obligation of Debtor even though unmatured and
regardless of the adequacy of any other collateral securing the Loans.
ANY AND ALL RIGHTS TO REQUIRE SECURED PARTY TO EXERCISE ITS RIGHTS OR
REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOANS,
PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS,
CREDITS OR OTHER PROPERTY OF THE DEBTOR OR ANY GUARANTOR, ARE HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
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7. DEBTOR AND SECURED PARTY (BY ENTERING INTO THIS AMENDMENT NO. 7)
MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING
OUT OF, UNDER OR IN CONNECTION WITH THE AGREEMENT (INCLUDING THIS
AMENDMENT NO. 7) OR ANY OF THE OTHER TRANSACTION DOCUMENTS CONTEMPLATED
TO BE EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE
OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS OR ACTIONS OF SECURED PARTY RELATING TO THE
ADMINISTRATION OF THE LOANS OR ENFORCEMENT OF THE TRANSACTION
DOCUMENTS, AND AGREE THAT NEITHER PARTY WILL SEEK TO CONSOLIDATE ANY
SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR
HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, DEBTOR HEREBY WAIVES
ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES
OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. DEBTOR CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF SECURED PARTY HAS PRESENTED,
EXPRESSLY OR OTHERWISE, THAT SECURED PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. THIS WAIVER
CONSTITUTES A MATERIAL INDUCEMENT FOR SECURED PARTY TO ENTER INTO THIS
AMENDMENT NO. 7.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 7 as
of the day and year first above written.
BANK OF AMERICA, N.A., as successor by
merger to Fleet National Bank
By:/s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Senior Vice President
MISONIX, INC.
By:/s/ Xxxxxxx X. XxXxxxx, Xx
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Name: Xxxxxxx X. XxXxxxx, Xx.
Title: President and Chief Executive
Officer
