SECOND AMENDMENT TO CREDIT AND
SECURITY AGREEMENT
This Second
Amendment to Credit and Security Agreement (“Second
Amendment”) is entered into as of December 8, 2006, by
among Synergetics, Inc., a Missouri corporation
(“Synergetics”), and Synergetics USA, Inc., a Delaware
corporation (“Synergetics USA”), (individually, a
“Borrower” and together, the “Borrowers”),
Regions Bank (“Regions”) in its capacities as Agent and
a Lender, and Wachovia Bank, National Association
(“Wachovia”), in its capacity as a Lender.
A. Borrowers
and Regions entered into a certain Credit and Security Agreement
dated as of March 13, 2006, as heretofore amended by First
Amendment (the “First Amendment”) dated as of
September 26, 2006 (as so amended, the “Existing Credit
Agreement”).
B. Borrowers
and Lenders desire to amend the Existing Credit Agreement as
hereinafter provided.
C. The
Existing Credit Agreement and this Second Amendment constitute the
“Credit Agreement” from and after the effectiveness of
this Second Amendment.
NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrowers, Lenders and Agent agree as
follows:
1.
Defined Terms . Each term used herein without
definition or a modification to definition shall have the same
meaning as set forth in the Existing Credit Agreement.
2.
Credit Agreement Amendments . The Existing Credit
Agreement is hereby amended as follows, effective upon fulfillment
of conditions set forth in Section 3 of this Second
Amendment:
Section 1.2 , entitled “ Primary
Definitions ,” is hereby amended by modifying the
following definitions:
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(1)
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“ ‘Notes’ and
‘Revolving Notes’ mean, individually and together, the
Amended and Restated Revolving Notes attached to the Second
Amendment as Exhibit A and Exhibit B ,
respectively, which replace (without novation) the Notes referred
to in the First Amendment.”
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1
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(2)
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“ ‘Revolving Loan
Commitment’ means, collectively, $7,500,000, unless said
amount is reduced pursuant to Section 2.11(b) hereof,
in which event it means the aggregate amount to which said amount
is reduced. The “Revolving Loan Commitment” of each
Lender is as follows:
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Lender’s Revolving
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Lender
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Loan Commitment
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$
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4,773,000
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$
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2,727,000
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.”
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3.
Representations and Warranties . The Borrowers
jointly and severally hereby represent and warrant to the Lenders
and to the Agent as follows:
(a) This
Second Amendment and the Revolving Notes have been duly and validly
executed by authorized officers of the Borrowers and constitute the
legal, valid and binding obligation of the Borrowers, enforceable
against the Borrowers in accordance with their terms. The Existing
Credit Agreement, as amended by this Second Amendment, remains in
full force and effect and remains the valid and binding obligation
of the Borrowers, enforceable against the Borrowers in accordance
with its terms. The Borrowers hereby ratify and confirm the
Existing Credit Agreement, as amended by this Second
Amendment.
(b) No
Default or Event of Default has occurred or now exists under the
Existing Credit Agreement and no Default or Event of Default will
occur as a result of the effectiveness of this Second
Amendment.
(c) The
representations and warranties of the Borrower contained in the
Existing Credit Agreement, as modified by the Disclosure
Schedule Amendment attached hereto as
Exhibit C (the “Disclosure
Schedule Amendment”), are true and correct in all
material respects on and as of the date of this Second
Amendment.
4.
Conditions to Effectiveness of Second Amendment . The
effectiveness of this First Amendment and the agreements set forth
herein are subject to fulfillment, as determined in the sole
judgment of Agent, of the following conditions:
(a) Borrowers
shall have executed and delivered to Agent this Second Amendment,
the Revolving Notes and the Disclosure Schedule Amendment and
Agent shall have determined that the Disclosure
Schedule Amendment is acceptable to Agent in its good faith
determination;
(b) Borrowers
shall have delivered to Agent a Certificate of the Secretary or an
Assistant Secretary of each Borrower certifying appropriate
corporate actions authorizing the execution and delivery of this
Second Amendment and the Revolving Notes and covering such other
matters as Agent may reasonably request;
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(c) Agent
shall have determined that no Default or Event of Default exists;
and
(d) Borrowers
shall have delivered such other documents and shall have taken such
other actions as Agent in its reasonable discretion may
require.
5.
Release . In consideration of the agreement of
Lenders and Agent to modify the terms of the Existing Credit
Agreement as set forth in this Second Amendment, Borrowers hereby
release, discharge and acquit forever Lenders and Agent and any of
their respective officers, directors, servants, agents, employees
and attorneys, past and present, from any and all claims, demands
and causes of action, of whatever nature, whether in contract or
tort, accrued or to accrue, contingent or vested, known or unknown,
arising out of or relating to the loans evidenced by the Existing
Credit Agreement, as hereby amended, or Agent’s or
Lenders’ administration of the same or any other actions
taken pursuant to the Existing Credit Agreement or under any other
documents or instruments evidencing loans made by Lenders to
Borrowers or the administration of same; provided, however, that
the foregoing release and the following indemnity relate only to
actions or inactions of Agent or Lenders through the date
hereof.
6.
Payment of Costs/Expenses . Without limiting the
generality of provisions in the Existing Credit Agreement (as
amended by this Second Amendment) relating to payment of
Agent’s or Lenders’ costs and expenses, the Borrower
will pay all reasonable out-of-pocket expenses, costs and charges
of Agent’s attorneys incurred in connection with the
preparation and implementation of this Second Amendment.
7.
Other Documents/Provisions to Remain in Force .
Except as expressly amended hereby, the Existing Credit Agreement
and all documents and instruments executed in connection therewith
or contemplated thereby and all indebtedness incurred pursuant
thereto shall remain in full force and effect and are in all
respects hereby ratified and affirmed.
8.
Successors and Assigns . Subject to any restriction
on assignment set forth in the Existing Credit Agreement, this
Second Amendment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and
assigns.
9.
Counterparts . This Second Amendment may be executed
in any
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