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 WELLS FARGO BANK,
NATIONAL ASSOCIATION (the “Lender”), acting through its
Wells Fargo Business Credit operating division.
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. Wells Fargo consents
to the Proposed Sale subject to Wells Fargo’s receipt of
$1,804,665.25 from the proceeds of the Proposed Sale, such that all
Advances made by Wells 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 Wells 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
Warr