EX-10.1






Exhibit 10.1




CONSENT AND AMENDMENT AGREEMENT




THIS CONSENT AND AMENDMENT AGREEMENT is made and entered into effective as of October 31, 2006
(this “Consent”) by and among CYBERONICS, INC. (the “Borrower”), MERRILL LYNCH
CAPITAL, a division of Merrill Lynch Business Financial Services Inc., individually as a Lender, as
Administrative Agent, Sole Bookrunner and Sole Lead Arranger (the “Administrative Agent”)
and the Lenders now or from time to time party to the Credit Agreement referenced below (the
“Lenders”). All capitalized terms used but not defined herein shall have the meanings
given to such terms in the Credit Agreement (as defined below).



RECITALS




A. Borrower entered into a certain Credit Agreement dated as of January 13, 2006 among
Borrower, Administrative Agent and the Lenders party thereto (as amended, supplemented, restated or
otherwise modified from time to time, the “Credit Agreement”).



B. The Credit Agreement requires the Borrower to (a) comply with applicable Laws, including
the filing of its annual report on Form 10-K, quarterly financial reports on Form 10-Q, proxy
statement and registration statements (“SEC Filings”), and (b) satisfy all applicable
listing criteria for the Principal Stock market on which the Borrower’s common stock is listed;



C. The Credit Agreement also requires the Borrower to deliver, on an ongoing basis, certain
financial information that is prepared in compliance with GAAP.



D. The Borrower has received notice that the Securities and Exchange Commission is conducting
an informal inquiry and has received a subpoena from the Office of the United States Attorney for
the Southern District of New York regarding its stock option granting practices, and the Audit
Committee of the Borrower’s Board of Directors has undertaken an independent investigation of such
options practices.



E. The Borrower obtained an extension from the Securities and Exchange Commission until July
27, 2006 to file its annual report on Form 10-K for the fiscal year ended April 28, 2006 (the
“2006 Annual Report”).



F. The Audit Committee of the Borrower’s Board of Directors is proceeding diligently with its
independent investigation, but the investigation is not yet complete, resulting in Borrower’s
inability to file its 2006 Annual Report with the Securities and Exchange Commission on or before
July 27, 2006.



G. Borrowers have informed Administrative Agent that it will not be able to file on a timely
basis its 2006 Annual Report with the Securities and Exchange Commission until on or before
December 31, 2006.



H. Further, Borrowers have also informed Administrative Agent that it will not be able to file
on a timely basis the Form 10-Q with the Securities and Exchange Commission for the period ending
July 28, 2006 until on or before December 31, 2006 (with the 2006 Annual Report, the “SEC
Reports”).



I. The Borrower has requested that the Administrative Agent and Lenders consent to the
extension of time for filing the SEC Reports and delivery of the related financial statements as
required by the Credit Agreement.



NOW, THEREFORE, in consideration of the foregoing, the sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:



(1) Subject to Section 2 below, the Borrower, Administrative Agent and Lenders hereby consent
to and agree that:




(a) Notwithstanding anything to the contrary in the Credit Agreement, including without
limitation in Sections 4.1(a), 4.1(e), 4.5 and 11.1(b), Borrower shall have until December
31, 2006 to deliver the SEC Reports to Administrative Agent and file the SEC Reports with
the Securities and Exchange Commission, and during such period such delay in filing the SEC
Reports shall not constitute an “Event of Default” pursuant to the Credit Agreement.




(b) Notwithstanding anything to the contrary contained in Section 11.1(bb) of the
Credit Agreement, Borrower’s failure to be in compliance with the Nasdaq Stock Market, Inc.
listing standards, due solely to Borrower’s failure to timely file or deliver the SEC
Reports on or prior to December 31, 2006, will not constitute an “Event of Default” pursuant
to the Credit Agreement.




(c) Notwithstanding anything to the contrary contained in Section 11.1(e) of the Credit
Agreement, Borrower shall have until December 31, 2006 to file the registration statement
required by the Registration Agreement dated September 27, 2005 between the Borrower and the
“Initial Purchaser” named therein, and such default under the Registration Agreement shall
not constitute an “Event of Default” pursuant to the Credit Agreement unless such
registration statement is not filed on or prior to December 31, 2006.




(d) Notwithstanding anything to the contrary contained in Section 4.1(b)(v) of the
Credit Agreement, the Compliance Certificates delivered by Borrower may include the
following footnote: “The Audit Committee of the Borrower’s Board of Directors is conducting
an independent internal investigation of the Borrower’s stock option grants, procedures, and
practices, including compliance with Generally Accepted Accounting Principles and all
applicable statutes, rules, and regulations. The Securities and Exchange Commission and the
Department of Justice are conducting their own investigations of the same matters. The
financial statement accompanying this certificate may change upon the conclusion of these
investigations and our analysis of the results of the investigations.” The existence of
such footnote shall not be construed as or deemed an acceptance by Administrative Agent or
Lenders of any restatement of financial statements or reports that may be required upon the
conclusion of such investigations or construed as or deemed a waiver of any Defaults or
Event of Defaults resulting from any such restatement or reports.




(e) Administrative Agent acknowledges that Borrower has received a notice of default
and demand letters from Wells Fargo Bank National Association (“Trustee”), in connection
with the Indenture dated September 27, 2005 (“Indenture”), between Borrower, as issuer and
Trustee as a result of the failure to timely file and deliver the SEC Reports (the “Alleged
Indenture Default”). Borrower disputes that such a default has occurred under the Indenture
and has filed an action for declaratory judgment. So long as there is no determination by a
court and Borrower has not otherwise acknowledged that a default has occurred under the
Indenture, Administrative Agent will not declare an Event of Default under the Credit
Agreement solely as a result of the Alleged Indenture Default.




(f) Notwithstanding anything to the contrary in the Credit Agreement, until such time
as the SEC Reports have been delivered to Administrative Agent and the notice of the Alleged
Indenture Default has been withdrawn by the Trustee or a court has determined that the
Alleged Indenture Default has not occurred under the Indenture to Administrative Agents
satisfaction, the Revolving Loan Outstandings shall not at any time exceed $7,500,000 in the
aggregate. The limitation on Revolving Loan Borrowings provided for in this paragraph shall
not in any way limit or reduce any charge, fee or other sum due to Administrative Agent or
Lenders under the Credit Agreement.



(2) The Administrative Agent’s and Lenders’ consent and agreement to each of the provisions of
Section 1 above constitutes an amendment to the Credit Agreement.



(3) In consideration for the accommodations and amendments made herein, Borrower agrees to pay
to Administrative Agent an “Amendment Fee” in the amount of Fifteen Thousand Dollars
($15,000), which fee is fully earned and non-refundable upon the effectiveness hereof. Borrower
authorizes Administrative Agent to charge the loan for the payment of such Amendment Fee



(4) The effectiveness of this Consent is conditioned upon each of Administrative Agent and
Borrower receiving one (1) counterpart hereof duly executed by the Borrower and the Administrative
Agent. This Consent shall be binding on all parties to the Credit Agreement and their successors
and assigns upon the effectiveness hereof.



(5) Borrower covenants, confirms and agrees that as security for the repayment of the
Obligations, and any extensions, renewals, replacements, restructurings, or modifications thereof,
Lenders have, and shall continue to have, a continuing first perfected lien on and security
interest in all of the Collateral (as defined in the Credit Agreement). Borrower acknowledges and
agrees that nothing herein contained in any way impairs Lenders’ rights or priority in such
security.



(6) The execution, delivery and effectiveness of this Consent shall not operate as a waiver of
any Event of Default under the Finance Documents, of any event which with the passage of time or
the giving of notice or both would constitute an Event of Default, nor does it obligate
Administrative Agent, or Lenders to agree to any further modifications of the terms of any of the
Finance Documents or constitute a waiver of any other rights or remedies of Administrative Agent or
Lenders.



(7) The parties hereto hereby acknowledge and agree that, except as specifically modified
hereby, the Credit Agreement shall remain in full force and effect in accordance with its terms.
The Credit Agreement and this Consent shall be read, taken, together and construed as one and the
same instrument.



(8) This Consent may be executed in any number of counterparts, all of which taken together
shall constitute one agreement, and any of the parties hereto may execute this Consent by signing
any such counterpart.



(9) THIS CONSENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED AND TO BE PERFORMED IN SUCH STATE, AND SHALL FURTHER BE SUBJECT TO
THE PROVISIONS OF SECTION 14 (GOVERNING LAW; CHOICE OF FORUM; SERVICE OF PROCESS; JURY
TRIAL WAIVER) IN THE CREDIT AGREEMENT.



[SIGNATURE PAGES IMMEDIATELY FOLLOW]




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IN WITNESS WHEREOF, the parties hereto have executed this Consent and Amendment
Agreement to be effective as provided herein.



CYBERONICS, INC., a Delaware corporation



By:     /S/     Pamela B. Westbrook      



Pamela B. Westbrook, Chief Financial Officer



	 	 	 	 	 
	MERRILL LYNCH CAPITAL, a division of Merrill
	 	 
	 
	 	 	 	 
	Lynch Business Financial Services Inc., as Lender
	 	and as Administrative Agent
	 
	 	 	 	 
	By:

	 	/S/ Paula K. Berry
	 	

	 

	 	 
	 	

	Name:

	 	Paula K. Berry
	 	

	
 
	 	 
	 	

	Title:

	 	Vice President
	 	

	 

	 	 
	 	

	 
	 	 	 	 







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