exv10w34



 




Exhibit 10.34




 

 





(The above space is reserved for Recorder’s Certification.)




FIRST SUPPLEMENTAL FUTURE ADVANCE DEED OF TRUST

AND SECURITY AGREEMENT




     THIS FIRST SUPPLEMENTAL FUTURE ADVANCE DEED OF TRUST AND SECURITY AGREEMENT SECURES FUTURE
ADVANCES AND FUTURE OBLIGATIONS AND SHALL BE GOVERNED BY SECTION 443.055 R.S.MO., AS AMENDED. THE
TOTAL PRINCIPAL AMOUNT OF THE PRESENT AND FUTURE ADVANCES AND OBLIGATIONS WHICH MAY BE SECURED
HEREBY IS $4,975,000.



     THE REAL PROPERTY ENCUMBERED BY THIS FUTURE ADVANCE DEED OF TRUST AND SECURITY AGREEMENT IS
LEGALLY DESCRIBED ON PAGE A-1 HEREOF.



     THIS FIRST SUPPLEMENTAL FUTURE ADVANCE DEED OF TRUST AND SECURITY AGREEMENT (this “First
Supplemental Deed of Trust”) is dated as of this 1st day of December, 2004, by and between
SYNERGETICS DEVELOPMENT COMPANY, L.L.C., a Missouri limited liability company (hereinafter called
“Grantor”) having a mailing address of 3845 Corporate Centre Drive, O’Fallon, Missouri 63304, and
Victor Zarrilli, as trustee (“Trustee”) having a mailing address of 6 South Broadway, St. Louis,
Missouri 63102, and THE INDUSTRIAL DEVELOPMENT AUTHORITY OF ST. CHARLES COUNTY, MISSOURI, a public
corporation as beneficiary (“Beneficiary”) having a mailing address of 5988 Mid Rivers Mall Drive,
St. Charles, Missouri 63304.



     WITNESSETH:



     WHEREAS, the Grantor did execute and deliver a Future Advance Deed of Trust and Security
Agreement dated as of September 1, 2002 (the “Original Mortgage” and, as supplemented by this First
Supplemental Deed of Trust, the “Mortgage”) for the benefit of the Beneficiary, which Original
Mortgage encumbered the real property described on page A-1 hereto and was recorded in the
real estate records of St. Charles County, Missouri in Book 3033, Page 1075; and



     WHEREAS, the Beneficiary assigned its interests in and to the Original Mortgage to the Trustee
pursuant to the Assignment dated as of September 1, 2002, which was recorded in the real estate
records of St. Charles County, Missouri in Book 3033, Page 1095; and



 









 





     WHEREAS, in connection with the issuance of additional bonds and an additional promissory note
(the “Series 2004 Note “), the Grantor desires to amend the Mortgage to secure the payments and
performance of the obligations of the Grantor under the Note, the Series 2004 Note, the Loan
Agreement and the Mortgage, as supplemented hereby.



     NOW, THEREFORE, THIS FIRST SUPPLEMENTAL DEED OF TRUST WITNESSETH:



     Section 1. The last recital of the Original Mortgage is hereby amended to read as follows:




     WHEREAS, the parties intend that this Deed of Trust shall secure the payment of
and obligations under the Note and the Series 2004 Note, all obligations of the
Grantor under the Loan Agreement, all obligations of Grantor under this Deed of
Trust, and any and all other present and future indebtedness (principal, interest,
fees and other amounts), liabilities and obligations of Grantor to Beneficiary
arising under the Note, the Series 2004 Note, the Loan Agreement or any other Debt
Instruments, including any and all amendments, modifications, extensions or renewals
thereof, whether now existing or made or incurred after the date of execution of this
Deed of Trust, in the maximum principal amount (exclusive of sums spent for the
reasonable protection of the security of this Deed of Trust, if any), of $4,975,000
(collectively, the “Indebtedness”); and



     Section 2. All references to the Note in the Original Mortgage are hereby amended to refer to
the Note and the Series 2004 Note.



     Section 3. Except as otherwise provided in this First Supplemental Deed of Trust, the
provisions of the Original Mortgage are hereby ratified, approved and confirmed. This First
Supplemental Deed of Trust shall be construed as having been authorized, executed and delivered
under the provisions of Section 1101(iv) of the Original Indenture.



     Section 4. If any provision of this First Supplemental Deed of Trust shall be held or deemed
to be invalid, inoperative or unenforceable as applied in any particular case in any jurisdiction
or jurisdictions or in all jurisdictions, or in all cases because it conflicts with any other
provision or provisions hereof or any constitution or statute or rule of public policy, or for any
other reason, such circumstances shall not have the effect of rendering the provision in question
inoperative or unenforceable in any other case or circumstance, or of rendering any other provision
or provisions herein contained invalid, inoperative or unenforceable to any extent whatever.



     Section 5. This First Supplemental Deed of Trust may be simultaneously executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the
same instrument.



     Section 6. The Mortgage, including without limitation this First Supplemental Deed of Trust,
shall be governed exclusively by and be construed in accordance with the applicable laws of the
State of Missouri.



     Section 7. Capitalized words and terms used herein, unless the context requires otherwise,
shall have the same meanings as set forth in the Indenture of Trust dated as of September 1, 2002,
as supplemented by the First Supplemental Indenture of Trust dated as of December 1, 2004 between
the Beneficiary and UMB Bank, N.A., as Trustee.



-2-









 





     IN WITNESS WHEREOF, Grantor has executed this Future Advance Deed of Trust and Security
Agreement the day and year first above written.



     Grantor:



	 	 	 	 	 
	 	SYNERGETICS DEVELOPMENT COMPANY, L.L.C.

 	 
	 	By     /s/ Kurt W. Gampp
 	 
	 	Name:  	 	 
	 	Title:  	Member 	 
	 



	 	 	 
	STATE OF MISSOURI

	)	 
	 

	)	   SS.
	COUNTY OF ST. CHARLES

	)	 






     On this 20th day of December, 2004, before me appeared Kurt W. Gampp, to me personally known, who, being by me duly sworn, did say that he/she is a member
of Synergetics Development Company, L.L.C., a Missouri limited liability company and that said
instrument was signed in behalf of said limited liability company by authority of its members; and
said he acknowledged said instrument to be the free act and deed of
said limited liability company.



     IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official seal in the County
and State aforesaid, the day and year first above written.



	 	 	 	 	 
	 	 	 
	(SEAL)         [SEAL]	/s/ Kathryn M. Norton
 	 
	 	Notary Public 	 
	 	 	 
	 



My term expires                                         .





-3-