Amendment to Loan Documents, dated April 7, 2012, by and between the Company and PNC Bank, National Association

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B.           The Borrower and the Bank desire to amend the Loan Documents as provided for in this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants herein contained and intending to be legally bound hereby, the parties hereto agree as follows:

2.           The Borrower hereby certifies that: (a) all of its representations and warranties in the Loan Documents, as amended by this Amendment, are, except as may otherwise be stated in this Amendment: (i) true and correct as of the date of this Amendment, (ii) ratified and confirmed without condition as if made anew, and (iii) incorporated into this Amendment by reference, (b) no Event of Default or event which, with the passage of time or the giving of notice or both, would constitute an Event of Default, exists under any Loan Document which will not be cured by the execution and effectiveness of this Amendment, (c) no consent, approval, order or authorization of, or registration or filing with, any third party is required in connection with the execution, delivery and carrying out of this Amendment or, if required, has been obtained, and (d) this Amendment has been duly authorized, executed and delivered so that it constitutes the legal, valid and binding obligation of the Borrower, enforceable in accordance with its terms.  The Borrower confirms that the Obligations remain outstanding without defense, set off, counterclaim, discount or charge of any kind as of the date of this Amendment.

3.           The Borrower hereby confirms that any collateral for the Obligations, including liens, security interests, mortgages, and pledges granted by the Borrower or third parties (if applicable), shall continue unimpaired and in full force and effect, and shall cover and secure all of the Borrower’s existing and future Obligations to the Bank, as modified by this Amendment.

4.           As a condition precedent to the effectiveness of this Amendment, the Borrower shall comply with the terms and conditions (if any) specified in Exhibit A.

 

 

5.           To induce the Bank to enter into this Amendment, the Borrower waives and releases and forever discharges the Bank and its officers, directors, attorneys, agents, and employees from any liability, damage, claim, loss or expense of any kind that it may have against the Bank or any of them arising out of or relating to the Obligations.  The Borrower further agrees to indemnify and hold the Bank and its officers, directors, attorneys, agents and employees harmless from any loss, damage, judgment, liability or expense (including attorneys’ fees) suffered by or rendered against the Bank or any of them on account of any claims arising out of or relating to the Obligations.  The Borrower further states that it has carefully read the foregoing release and indemnity, knows the contents thereof and grants the same as its own free act and deed.

6.           This Amendment may be signed in any number of counterpart copies and by the parties to this Amendment on separate counterparts, but all such copies shall constitute one and the same instrument.   Delivery of an executed counterpart of a signature page to this Amendment by facsimile transmission shall be effective as delivery of a manually executed counterpart.  Any party so executing this Amendment by facsimile transmission shall promptly deliver a manually executed counterpart, provided that any failure to do so shall not affect the validity of the counterpart executed by facsimile transmission.

7.           This Amendment will be binding upon and inure to the benefit of the Borrower and the Bank and their respective heirs, executors, administrators, successors and assigns.

8.           This Amendment has been delivered to and accepted by the Bank and will be deemed to be made in the State where the Bank’s office indicated in the Loan Documents is located.  This Amendment will be interpreted and the rights and liabilities of the parties hereto determined in accordance with the laws of the State where the Bank’s office indicated in the Loan Documents is located, excluding its conflict of laws rules.

9.           Except as amended hereby, the terms and provisions of the Loan Documents remain unchanged, are and shall remain in full force and effect unless and until modified or amended in writing in accordance with their terms, and are hereby ratified and confirmed.  Except as expressly provided herein, this Amendment shall not constitute an amendment, waiver, consent or release with respect to any provision of any Loan Document, a waiver of any default or Event of Default under any Loan Document, or a waiver or release of any of the Bank’s rights and remedies (all of which are hereby reserved).  The Borrower expressly ratifies and confirms and waiver of jury trial provisions contained in the Loan Documents.

 

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WITNESS the due execution of this Amendment as a document under seal as of the date first written above.

 

Signed and delivered in the presence of:	BORROWER:
	BOVIE MEDICAL CORPORATION, a Delaware corporation

 

/s/ Debi Haley			By:	/s/ J. Robert Saron
Print Name:	Debi Haley			Name:	J. Robert Saron
				Title:	President
/s/ Gary D. Pickett
Print Name:	Gary D. Pickett

 

                                                                                    

 

A.	The “Loan Documents” that are the subject of this Amendment include the following (as any of the foregoing have previously been amended, modified or otherwise supplemented):

1.

Revolving Loan Agreement dated as of October 31, 2011 between Borrower and the Bank with attached Borrowing Base Rider, as amended by Amendment to Loan Documents dated March 8, 2012 (as amended, the “Revolving Loan Agreement”)

2.

Revolving Line of Credit Note dated October 31, 2011 in the face amount of $6,000,000.00 executed by the Borrower in favor of the Bank

3.

Security Agreement (Revolving Loan) dated as of October 31, 2011 executed by the Borrower in favor of the Bank (the “Revolving Security Agreement”)

4.

Equipment Line Loan Agreement dated as of October 31, 2011 between the Borrower and the Bank (the “Equipment Loan Agreement” and collectively with the Revolving Loan Agreement, the “Loan Agreements”)

5.

Non-Revolving Equipment Line of Credit Note dated as of October 31, 2011 in the face amount of $1,000,000.00 executed by the Borrower in favor of the Bank

6.

Security Agreement (Equipment Loan) dated as of October 31, 2011 executed by the Borrower in favor of the Bank (the “Equipment Security Agreement” and collectively with the Revolving Security Agreement, the “Security Agreements”)

7.

All other documents, instruments, agreements, and certificates executed and delivered in connection with the Loan Documents listed in this Section A.

 

B.           The Loan Documents are amended as follows:

1.

The definition of the term “EBITDA” contained in the Financial Covenants portion of the Addendum attached to the Loan Agreements is hereby amended and restated in its entirety as follows:

 

2.

The Security Agreements are modified by the addition at the end of the definition of “Collateral” contained in Section 1 thereof of the following:

 

 

“Notwithstanding the foregoing, the Collateral shall exclude all Debtor's right, title and interest in and to (i) Modular Ergonomic Grip ("MEG") device, (ii) Modullion, (iii) RF Skin Resurfacing, (iv) Scannula, (v) Double Jaw Forceps and (vi) Tip-On-Tube, designs and trade names and licenses or other general intangibles related thereto and all cash and noncash proceeds thereof. ”

 

C.	Conditions to Effectiveness of Amendment: The Bank’s willingness to agree to the amendments set forth in this Amendment is subject to the prior satisfaction of the following conditions:

1.

Execution by all parties and delivery to the Bank of this Amendment.

2.

Payment by the Borrower of the filing fees in the amount of $60.00 to amend the Bank's existing UCC financing statements.

3.

Reimbursement by the Borrower to the Bank of the fees and expenses of the Bank's outside and in-house counsel in connection with this Amendment and the waiver letter of even date herewith, which fees and expenses as of the date of this Amendment are $____________.