Exhibit 10.1
SECOND AMENDMENT TO CREDIT AND SECURITY AGREEMENT
This Second Amendment to Credit and
Security Agreement (“Second Amendment”) is entered into
as of June 5, 2008, by and among Synergetics, Inc., a Missouri
corporation, Synergetics USA, Inc., a Delaware corporation,
Synergetics Germany, GMBH, a German limited liability company,
Synergetics Italia, SRL, an Italian limited liability company, and
Synergetics France, SARL, a French company (“Synergetics
France”) (individually, a “Borrower” and,
collectively, the “Borrowers”), and Regions Bank
(“Lender”).
RECITALS
A. Borrowers and Lender entered
into a certain Credit and Security Agreement dated as of June 20,
2007, as heretofore amended by First Amendment dated as of
January 31, 2008 (“First Amendment”) (as so
amended, the “Existing Credit Agreement”).
B. Synergetics France, a newly
formed Affiliate, desires to join the Existing Credit Agreement, as
herein amended, as a Borrower.
C. Borrowers and Lender desire
to amend the Existing Credit Agreement as hereinafter
provided.
D. 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, and Lender 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 4 of this Second Amendment:
A. Section 1.2 , entitled
“Primary Definitions,” is hereby amended by modifying
the following definitions to read as follows in their
entirety:
(1)
“Revolving Loan Commitment” means $2,500,000, unless
such amount is reduced pursuant to
Section 2.6(b) hereof, in which event it means
the amount to which said amount is reduced.
(2)
“Revolving Note” means the Second Amended and Restated
Foreign Accounts Revolving Note, on the terms attached to the
Second Amendment as Exhibit A in maximum
principal amount of $2,500,000 (the “Second Amended Revolving
Note”).
(3)
“Termination Date” means June 4, 2009.
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B. The Borrowing Base Certificate
attached to the First Amendment is hereby deleted and is superseded
by the Borrowing Base Certificate attached to this Second Amendment
as Exhibit B .
C. Synergetics France hereby joins
the Credit Agreement as a Borrower and grants Lender a security
interest in its assets to the extent set forth in
Article III of the Credit Agreement.
3. Representations and
Warranties . The Borrowers jointly and severally hereby
represent and warrant to the Lender as follows:
(a) This Second Amendment and the
Second Amended Revolving Note 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, 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 Second Amendment and the agreements set forth herein are
subject to fulfillment, as determined in the sole judgment of
Lender, of the following conditions:
(a) Borrowers shall have executed and
delivered to Lender this Second Amendment and the Amended Revolving
Note;
(b) Lender shall have determined that
no Default or Event of Default exists; and
(c) Borrowers shall have delivered
such other documents and shall have taken such other actions as
Lender in its reasonable discretion may require.
5. Post-Effectiveness
Covenant . Within thirty (30) days after the date of
this Second Amendment, Borrowers agree to cause Synergetics France
to provide Lender such officer’s certificate, resolutions
authorizing the Credit Agreement and other documents regarding
Synergetics France as Lender may reasonably require.
6. Release . In
consideration of the agreement of Lender to modify the terms of the
Existing Credit Agreement as set forth in this Second Amendment,
Borrowers hereby release, discharge and acquit forever Lender and
any of its officers, directors, servants, agents,
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