exv10w42



 





EXHIBIT 10.42




CHANGE IN TERMS AGREEMENT




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Principal
	 	Loan Date
	 	Maturity
	 	Loan No.
	 	Call / Coll
	 	Account
	 	Officer
	 	Initials
	$1,250,000.00
	 	02-15-2005
	 	02-15-2006
	 	500369790000
	 	4A / 61
	 	 	 	***	 	 





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. (TIN: 43-1585312)
	 	Lender:
	 	Union Planters Bank NA
	 

	 	3845 CORPORATE CENTER DRIVE
	 	 	 	Clayton Commercial Lending
	 

	 	O’FALLON, MO 63304
	 	 	 	8182 Maryland Avenue
Suite 200

St. Louis, MO 63105






					
	 	 	 	 	 
	Principal Amount: $1,250,000.00
	 	Initial Rate: 5.250%
	 	Date of Agreement: February 15, 2005





DESCRIPTION OF EXISTING INDEBTEDNESS. The Promissory Note Dated March 10, 2000 from Synergetics,
Inc. to Lender.



DESCRIPTION OF COLLATERAL. A Commercial Security Agreement and Loan Agreement Dated March 10, 2000
from Synergetics, Inc. to Lender.



DESCRIPTION OF CHANGE IN TERMS. Extend Maturity Date to February 15, 2006.



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 Two Hundred Fifty Thousand & 00/100 Dollars ($1,250.000.00),
together with interest on the unpaid from February 15, 2005, until paid in full.



PAYMENT. Borrower will pay this loan in one principal payment of $1,250,000 plus interest on
February 15, 2006. This payment due on February 15, 2006, will be for all principal and all
accrued interest not yet paid. In addition, Borrower will pay regular monthly payments of all
accrued unpaid interest due as of each payment date, beginning March 15, 2005, with all subsequent
interest payments to be due on the same day of each month after that. 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. Interest on this
Agreement is computed on a 365/360 simple interest 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 Agreement is subject to change from time to time
based on changes in an index which is Lender’s Prime Rate (the
“Index”). This is the rate Lender charges, or would charge,
on 90-day unsecured loans to the most creditworthy corporate
customers. This rate may or may not be the lowest rate available from
Lender at any given time. 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 5.500% per annum.
The interest rate to be applied to the unpaid principal balance of the Note will be at a rate of
0.250 percentage points under the Index, resulting in an initial rate of 5.250% per annum. NOTICE:
Under no circumstances will the interest rate on the 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. 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 Agreement, 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
Agreement to 3.000 percentage points. The interest rate will not exceed the maximum
rate permitted by applicable law.



DEFAULT. Each of the following shall constitute an Event of Default under this Agreement:





Payment Default. Borrower fails to make any payment when due under the Indebtedness.




Other Defaults. Borrower fails to comply with or to perform any other term, obligation,
covenant or condition contained in this Agreement 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 Borrowers behalf under this Agreement 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 Indebtedness.
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, endorser, surety, or accommodation party of any of the Indebtedness or any guarantor, endorser, surety, or a accomidation party 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 the Indebtedness 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 Agreement 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.


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




					
	 
	 	 	 	 
	 
	 	2	 	 






 









 




COLLATERAL. Borrower acknowledges this Agreement is secured by A Commercial Security Agreement and
Loan Agreement Dated March 10, 2000 from Synergetics, Inc. to Lender.



ATTORNEYS’ FEES; EXPENSES. Lender may hire or pay someone else to help collect this Agreement 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 Agreement 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 Agreement 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 Agreement 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 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, including any claim to rescind, reform, or
otherwise modify any agreement relating to the Collateral, 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 Agreement 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.



CONTINUING VALIDITY. Except as expressly changed by this Agreement, the terms of the original
obligation or obligations, including all agreements evidenced or securing the obligation(s), remain
unchanged and in full force and effect. Consent by Lender to this Agreement does not waive
Lender’s right to strict performance of the obligation(s) as changed, nor obligate Lender to make
any future change in terms. Nothing in this Agreement will constitute a satisfaction of the
obligation(s). It is the intention of Lender to retain as liable parties all makers and endorsers
of the original obligation(s), including accommodation parties, unless a party is expressly
released by Lender in writing. Any maker or endorser, including accommodation makers, will not be
released by virtue of this Agreement. If any person who signed the original obligation does not
sign this Agreement below, then all persons signing below acknowledge that this Agreement is given
conditionally, based on the representation to Lender that the non-signing party consents




					
	 
	 	 	 	 
	 
	 	3	 	 






 









 




to the changes and provisions of this Agreement or otherwise will not be released by it. This
waiver applies not only to any initial extension, modification or release, but also to all such
subsequent actions.



PRIOR NOTE. The Promissory Note Dated March 10, 2000 from Synergetics, Inc. to Lender.



SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this Agreement on transfer of
Borrower’s interest, this Agreement shall be binding upon and inure to the benefit of the parties,
their successors and assigns. If ownership of the Collateral becomes vested in a person other than
Borrower, Lender, without notice to Borrower, may deal with Borrower’s successors with reference to
this Agreement and the Indebtedness by way of forbearance or extension without releasing Borrower
from the obligations of this Agreement or liability under the Indebtedness.



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.



MISCELLANEOUS PROVISIONS. Lender may delay or forgo enforcing any of its rights or remedies under
this Agreement without losing them. Borrower and any other person who signs, guarantees or
endorses this Agreement, to the extent allowed by law, waive presentment, demand for payment, and
notice of dishonor. Upon any change in the terms of this Agreement, and unless otherwise expressly
stated in writing, no party who signs this Agreement, whether as maker, guarantor, accommodation
maker or endorser, shall be released from liability. All such parties agree that Lender may renew
or 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 Agreement 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 AGREEMENT, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS AGREEMENT,
INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE AGREEMENT.



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)	 	 






					
	 
	 	 	 	 
	
	 	4