exv10w45



 





EXHIBIT 10.45




PROMISSORY NOTE




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Principal
	 	Loan Date
	 	Maturity
	 	Loan No.
	 	Call / Coll
	 	Account
	 	Officer
	 	Initials
	$1,427,105.00
	 	09-30-2005
	 	09-30-2008
	 	232000226394
	 	4A / 51
	 	 	 	***	 	 





References in the shaded area are for Lender’s use only and do not limit the applicability of this document to any 

particular loan or item. Any item above containing “***” has been omitted due to text length limitations.




	 	 	 	 	 	 	 
	Borrower:

	 	SYNERGETICS, INC. (MISSOURI CORPORATION)
	 	Lender:
	 	Union Planters Bank NA
	 

	 	(TIN: 43-1585312)
	 	 	 	Clayton Commercial Lending
	 

	 	3845 CORPORATE CENTRE DRIVE
	 	 	 	8182 Maryland Avenue Suite 200
	 

	 	O’FALLON, MO 63368
	 	 	 	St. Louis, MO 63105






					
	 	 	 	 	 
	Principal Amount: $1,427,105.00
	 	Initial Rate: 6.750%
	 	Date of Note: September 30, 2005





PROMISE TO PAY. SYNERGETICS, INC. (MISSOURI CORPORATION) (“Borrower”) promises to pay to Union
Planters Bank NA (“Lender”), or order, in lawful money of the United States of America, the
principal amount of One Million Four Hundred Twenty-seven Thousand One Hundred Five & 00/100
Dollars ($1,427,105.00), together with interest on the unpaid principal balance from September 30,
2005, until paid in full.



PAYMENT. Subject to any payment changes resulting from changes in the Index, Borrower will pay
this loan in 35 principal payments of $39,641.81 each and one final principal and interest payment
of $39,872.07. Borrower’s first principal payment is due October 30, 2005, and all subsequent
principal payments are due on the same day of each month after that. In addition, Borrower will
pay regular monthly payments of all accrued unpaid interest due as of each payment date, beginning
October 30, 2005, with all subsequent interest payments to be due on the same day of each month
after that. Borrower’s final payment due September 30, 2008, will be for all principal and all
accrued interest not yet paid. Unless otherwise agreed or required by applicable law, payments
will be applied first to any accrued unpaid interest; then to principal; then to any unpaid
collection costs; and then to any late charges. The annual interest rate for this Note is computed
on a 365/360 basis; that is, by applying the ratio of the annual interest rate over a year of 360
days, multiplied by the outstanding principal balance, multiplied by the actual number of days the
principal balance is outstanding. Borrower will pay Lender at Lender’s address shown above or at
such other place as Lender may designate in writing.



VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from time to time
based on changes in an independent index which is the highest base rate on corporate loans at large
U.S. Money Center Commercial Banks that The Wall Street Journal publishes as the prime rate, (the
“Index”). The Index is not necessarily the lowest rate charged by Lender on its loans. If the
Index becomes unavailable during the term of this loan, Lender may designate a substitute index
after notice to Borrower. Lender will tell Borrower the current Index rate upon Borrower’s
request. The interest rate change will not occur more often than each day. Borrower understands
that Lender may make loans based on other rates as well. The Index currently is 6.750% per annum.
The interest rate to be applied to the unpaid principal balance of this Note will be at a rate
equal to the Index, resulting in an initial rate of 6.750% per annum. NOTICE: Under no
circumstances will the interest rate on this Note be more than the maximum rate allowed by
applicable law.



PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed earlier than it
is due, Early payments will not, unless agreed to by Lender in writing, relieve Borrower of
Borrower’s obligation to continue to make payments under the payment schedule. Rather, early
payments will reduce the principal balance due and may result in Borrower’s making fewer payments.
Borrower agrees not to send Lender payments marked “paid in full”, “without recourse”, or similar
language. If Borrower sends such a payment, Lender may accept it without losing any of Lender’s
rights under this Note, and Borrower will remain obligated to pay any further amount owed to
Lender. All written communications concerning disputed amounts, including any check or other
payment instrument that indicates that the payment constitutes “payment in full” of the amount owed
or that is tendered with other conditions or limitations or as full satisfaction of a disputed
amount must be mailed or delivered to: Union Planters Corporation, Attn: Payment Disputes, P.O.
Box 131, Memphis, TN 38103.



LATE CHARGE. If a payment is more than 11 days late, Borrower will be charged 6.000% of the unpaid
portion of the regularly scheduled payment.




 









 




INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, Lender, at its
option, may, if permitted under applicable law, increase the variable interest rate on this Note to
3.000 percentage points over the Index. The interest rate will not exceed the maximum rate
permitted by applicable law.



DEFAULT. Each of the following shall constitute an event of default (“Event of Default”) under
this Note:





Payment Default. Borrower fails to make any payment when due under this Note.




Other Defaults. Borrower fails to comply with or to perform any other term, obligation,
covenant or condition contained in this Note or in any of the related documents or to comply
with or to perform any term, obligation, covenant or condition contained in any other
agreement between Lender and Borrower.




False Statements. Any warranty, representation or statement made or furnished to Lender by
Borrower or on Borrower’s behalf under this Note or the related documents is false or
misleading in any material respect, either now or at the time made or furnished or becomes
false or misleading at any time thereafter.




Insolvency. The dissolution or termination of Borrower’s existence as a going business, the
insolvency of Borrower, the appointment of a receiver for any part of Borrower’s property,
any assignment for the benefit of creditors, any type of creditor workout, or the
commencement of any proceeding under any bankruptcy or insolvency laws by or against
Borrower.




Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings,
whether by judicial proceeding, self-help, repossession or any other method, by any creditor
of Borrower or by any governmental agency against any collateral securing the loan. This
includes a garnishment of any of Borrower’s accounts, including deposit accounts, with
Lender, However, this Event of Default shall not apply if there is a good faith dispute by
Borrower as to the validity or reasonableness of the claim which is the basis of the
creditor or forfeiture proceeding and if Borrower gives Lender written notice of the
creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the
creditor or forfeiture proceeding, in an amount determined by Lender, in its sole
discretion, as being an adequate reserve or bond for the dispute.




Events Affecting Guarantor. Any of the preceding events occurs with respect to any
Guarantor of any of the indebtedness or any Guarantor dies or becomes incompetent, or
revokes or disputes the validity of, or liability under, any guaranty of the indebtedness
evidenced by this Note. In the event of a death, Lender, at its option, may, but shall not
be required to, permit the Guarantor’s estate to assume unconditionally the obligations
arising under the guaranty in a manner satisfactory to Lender, and, in doing so, cure any
Event of Default.




Change In Ownership. Any change in ownership of twenty-five percent (25%) or more of the
common stock of Borrower.




Adverse Change. A material adverse change occurs in Borrower’s financial condition, or
Lender believes the prospect of payment or performance of this Note is impaired.




Insecurity. Lender in good faith believes itself insecure.




Cure Provisions. If any default, other than a default in payment is curable and if Borrower
has not been given a notice of a breach of the same provision of this Note within the
preceding twelve (12) months, it may be cured if Borrower, after receiving written notice
from Lender demanding cure of such default: (1 cures the default within fifteen (15) days;
or (2) if the cure requires more than fifteen (15) days, immediately initiates steps which
Lender deems in Lender’s sole discretion to be sufficient to cure the default and thereafter
continues and completes all reasonable and necessary steps sufficient to produce compliance
as soon as reasonably practical.


LENDER’S RIGHTS. Upon default, Lender may declare the entire unpaid principal balance on this Note
and all accrued unpaid interest immediately due, and then Borrower will pay that amount.



COLLATERAL. Borrower acknowledges this Note is secured by Security Agreement dated 9/30/05 and
Business Loan Agreement dated 9/30/05 and a Security Agreement dated 8/16/95.




					
	 
	 	 	 	 
	 
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ATTORNEYS FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if
Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits
under applicable law, Lender’s attorneys’ fees and Lender’s legal expenses whether or not there is
a lawsuit, including attorneys’ fees and expenses for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay or injunction), and appeals. If not prohibited by applicable
law, Borrower also will pay any court costs, in addition to all other sums provided by law.



JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any action,
proceeding, or counterclaim brought by either Lender or Borrower against the other.



GOVERNING LAW. This Note will be governed by federal law applicable to Lender and, to the extent
not preempted by federal law, the laws of the State of Missouri without regard to its conflicts of
law provisions. This Note has been accepted by Lender in the State of Missouri.



CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender’s request to submit to the
jurisdiction of the courts of St. Louis County, State of Missouri.



DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $15.00 if Borrower makes a payment on
Borrower’s loan and the check or preauthorized charge with which Borrower pays is later dishonored.



RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in
all Borrower’s accounts with Lender (whether checking, savings, or some other account). This
includes all accounts Borrower holds jointly with someone else and all accounts Borrower may open
in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for
which setoff would be prohibited by law. Borrower authorizes Lender, to the extent permitted by
applicable law, to charge or setoff all sums owing on the indebtedness against any and all such
accounts, and, at Lender’s option, to administratively freeze all such accounts to allow Lender to
protect Lender’s charge and setoff rights provided in this paragraph.



ARBITRATION. Borrower and Lender agree that all disputes, claims and controversies between them
whether Individual, joint, or class in nature, arising from this Note or otherwise, including
without limitation contract and tort disputes, shall be arbitrated pursuant to the Rules of the
American Arbitration Association in effect at the time the claim Is filed, upon request of either
party. No act to take or dispose of any collateral securing this Note shall constitute a waiver of
this arbitration agreement or be prohibited by this arbitration agreement. This includes, without
limitation, obtaining Injunctive relief or a temporary restraining order; invoking a power of sale
under any deed of trust or mortgage; obtaining a writ of attachment or imposition of a receiver; or
exercising any rights relating to personal property, including taking or disposing of such property
with or without judicial process pursuant to Article 9 of the Uniform Commercial Code. Any
disputes, claims, or controversies concerning the lawfulness or reasonableness of any act, or
exercise of any right, concerning any collateral securing this Note, including any claim to
rescind, reform, or otherwise modify any agreement relating to the collateral securing this Note,
shall also be arbitrated, provided however that no arbitrator shall have the right or the power to
enjoin or restrain any act of any party. Judgment upon any award rendered by any arbitrator may be
entered in any court having jurisdiction. Nothing In this Note shall preclude any party from
seeking equitable relief from a court of competent jurisdiction. The statute of limitations,
estoppel, waiver, laches, and similar doctrines which would otherwise be applicable in an action
brought by a party shall be applicable in any arbitration proceeding, and the commencement of an
arbitration proceeding shall be deemed the commencement of an action for these purposes. The
Federal Arbitration Act shall apply to the construction, interpretation, and enforcement of this
arbitration provision.



SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and, upon Borrower’s
heirs, personal representatives, successors and assigns, and shall inure to the benefit of Lender
and its successors and assigns.



NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES. Please notify us if
we report any inaccurate information about your account(s) to a consumer reporting agency, Your
written notice describing the specific inaccuracy(ies) should be sent to us at the following
address: Union Planters Corporation Attn: Credit Dispute Dept. P.O. Box 221 Memphis, TN 38101.



GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or remedies under this
Note without losing them. Borrower and any other person who signs, guarantees or endorses this
Note, to the extent allowed by law, waive presentment, demand for payment, and notice of dishonor.
Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no
party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be
released from liability, All such parties agree that Lender may renew or




					
	 
	 	 	 	 
	 
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extend (repeatedly and for any length of time) this loan or release any party or guarantor or
collateral; or impair, fail to realize upon or perfect Lender’s security interest in the
collateral; and take any other action deemed necessary by Lender without the consent of or notice
to anyone. All such parties also agree that Lender may modify this loan without the consent of or
notice to anyone other than the party with whom the modification is made. The obligations under
this Note are joint and several.



ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FOREBEAR FROM ENFORCING REPAYMENT
OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE, REGARDLESS OF THE
LEGAL THEORY UPON WHICH IT IS BASED THAT IS IN ANY WAY RELATED TO THE CREDIT AGREEMENT. TO PROTECT
YOU (BORROWER(S)) AND US (LENDER) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH
COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND EXCLUSIVE STATEMENT
OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.



JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any action,
proceeding, or counterclaim brought by either Lender or Borrower against the other.



PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING
THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE NOTE.



BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY NOTE.



THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.




	 	 	 	 	 
	BORROWER:	 	 
	 
	 	 	 	 
	SYNERGETICS, INC. (MISSOURI CORPORATION)	 	 
	 
	 	 	 	 
	By:

	 	/s/ Gregg D. Scheller	 	 
	 

	 	 	 	 
	 

	 	GREGG D. SCHELLER, President of
SYNERGETICS, INC. (MISSOURI CORPORATION)	 	 






					
	 
	 	 	 	 
	 
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