Exhibit
10.1


 


Certain
information has been excluded from the exhibit because it is not material and would likely cause competitive harm to the company
if publicly disclosed. [***] indicates the redacted confidential portions of this exhibit.


 


SECOND
AMENDMENT TO


AMENDED
AND RESTATED CREDIT AGREEMENT


 


THIS
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”), dated as of June 30, 2020,
is entered into by and among SOLSYS MEDICAL, LLC, a Delaware limited liability company formerly known as Soluble Systems,
LLC (“Soluble”), MISONIX, INC., a Delaware corporation formerly known as New Misonix, Inc. (“Misonix”,
and together with Soluble, each individually and collectively referred to herein as “Borrower”),
each of the undersigned financial institutions (individually each a “Lender” and collectively “Lenders”)
and SWK FUNDING LLC, a Delaware limited liability company, in its capacity as administrative agent for the other Lenders
(in such capacity, “Agent”).


 


RECITALS


 


WHEREAS,
Borrower, Agent and Lenders entered into that certain Amended and Restated Credit Agreement dated as of September 27, 2019, (as
the same may be amended, modified or restated from time to time, being hereinafter referred to as the “Credit Agreement”);
and


 


WHEREAS,
Borrower, Agent and Lenders desire to amend the Credit Agreement as set forth herein.


 


AGREEMENT


 


NOW,
THEREFORE, in consideration of the premises herein contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:


 


Article
I





Definitions


 


1.1
Capitalized terms used in this Amendment are defined in the Credit Agreement, as amended hereby, unless otherwise stated.


 


ARTICLE
II





Amendments


 


2.1
Amendment to Section 1.1. Effective as of the date hereof, the definition of “Contract Rate” in Section
1.1 of the Credit Agreement is amended and restated to read as follows:


 


“Contract
Rate means a rate per annum equal to (x) the LIBOR Rate, plus (y)(1) as of any date of determination
where the EBITDA of Parent and its Subsidiaries was positive for the prior Fiscal Quarter, seven and one-half of one percent (7.50%)
or (2) at all other times, the applicable margin as identified in the table below:


 


	Condition	 	(y)
    Applicable Margin
	 	 	 
	As
    of any date of determination where the Market Capitalization of Parent (commencing after the August 2020 Payment Date, as
    measured by the volume weighted average price of Parent common stock for the ten trading days immediately prior to the end
    of each fiscal quarter) is less than $[***].	 	
    ten and one quarter of one percent (10.25%)
	As
    of any date of determination where the Market Capitalization of Parent (commencing after the August 2020 Payment Date, as
    measured by the volume weighted average price of Parent common stock for the ten trading days immediately prior to the end
    of each fiscal quarter) is equal to or greater than $[***], but less than $[***]	 	Nine
    percent (9.00%)
	As
    of any date of determination where the Market Capitalization of Parent (commencing after the August 2020 Payment Date, as
    measured by the volume weighted average price of Parent common stock for the ten trading days immediately prior to the end
    of each fiscal quarter) is equal to or greater than $[***]	 	Eight
    percent (8.00%)


”


 




    	 



     


    

 


2.2
Amendment to Section 7.13.2. Effective as of the date hereof, Section 7.13.2 of the Credit Agreement is amended
and restated in its entirety to read as follows:


 


“7.13.2
Minimum Aggregate Revenue.


 


Not
permit the Aggregate Revenue for the consecutive month period ending on the last Business Day of any Fiscal Quarter set forth
in the table below to be less than the applicable amount set forth in the table below for such period.


 


	Minimum
    LTM Aggregate Revenue as of the end of:
	 
	Twelve
    (12) month period ending June 30, 2020	$[***]
	Twelve
    (12) month period ending September 30, 2020	$[***]
	Twelve
    (12) month period ending December 31, 2020	$[***]
	Twelve
    (12) month period ending March 31, 2021	$[***]
	Twelve
    (12) month period ending June 30, 2021	$[***]
	Twelve
    (12) month period ending September 30, 2021 	$[***]
	Twelve
    (12) month period ending December 31, 2021 and each Fiscal Quarter thereafter	$[***]


 


For
purposes of clarification, if Aggregate Revenue is calculated for a period that includes any period prior the consummation of
the Merger, Aggregate Revenue will include, without duplication, the combined aggregate of Net Sales, Royalties and any other
income or revenue recognized by Parent and/or its Subsidiaries, on one hand, and by Current Borrower and/or its Subsidiaries,
on the other hand, for such period.”


 






    	 	 	 



     


    

 


2.3
Amendment to Section 7.13.3. Effective as of the date hereof, Section 7.13.3 of the Credit Agreement is amended
and restated in its entirety to read as follows:


 


“7.13.3
Minimum EBITDA.


 


Not
either (a) fail to maintain an average Market Capitalization of Parent (as measured by the volume weighted average price of Parent
common stock for the ten trading days immediately prior to the end of each fiscal quarter) greater than or equal to $[***] or
(b) to the extent any such average Market Capitalization of Parent is less than $[***] for any Fiscal Quarter, permit the EBITDA
of Parent and its Subsidiaries for the consecutive month period ending on the last Business Day of any Fiscal Quarter ending immediately
prior to such date of determination to be less than the applicable amount set forth in the table below for such period of measure
set forth in the table below.


 


	Minimum
    LTM EBITDA as of the end of:
	 
	Twelve
    (12) month period ending June 30, 2020	[***]
	Twelve
    (12) month period ending September 30, 2020	[***]
	Twelve
    (12) month period December 31, 2020	[***]
	Twelve
    (12) month period ending March 31, 2021	[***]
	Twelve
    (12) month period ending June 30, 2021 and each Fiscal Quarter thereafter	[***]


 


Notwithstanding
the foregoing, any failure of Borrower to satisfy the requirements set forth in this Section 7.13.3 shall not otherwise
constitute an Event of Default so long as Borrower maintains Consolidated Unencumbered Liquid Assets of at least the greater of
(i) $7,500,000 or (ii) an amount equal to four hundred percent (400%) of the Operational Burn for the prior Fiscal Quarter at
all times until the Borrower is otherwise in compliance with this Section 7.13.3.”


 


ARTICLE
III





Conditions
Precedent


 


3.1
Conditions Precedent. The effectiveness of this Amendment is subject to the satisfaction of the following conditions
precedent in a manner satisfactory to Agent, unless specifically waived in writing by Agent in its sole discretion:


 


A.
Agent shall have received (i) this Amendment duly executed by Borrower, and (ii) payment of an amendment fee in the amount of
$20,000, which fee shall be deemed fully-earned and non-refundable as of the date hereof.


 


B.
The representations and warranties contained herein and in the Credit Agreement and the other Loan Documents, as each is amended
hereby, shall be true and correct as of the date hereof in all material respects, as if made on the date hereof, except for such
representations and warranties as are by their express terms limited to a specific date.


 


C.
No Default or Event of Default under the Credit Agreement, as amended hereby, shall have occurred and be continuing, unless such
Default or Event of Default has been otherwise specifically waived in writing by Agent.


 


D.
All corporate proceedings taken in connection with the transactions contemplated by this Amendment and all documents, instruments
and other legal matters incident thereto shall be satisfactory to Agent; and Borrower shall provide to Agent a Manager’s
certificate with resolutions in form and substance acceptable to Agent.


 




    	 



     


    

 


ARTICLE
IV





No
Waiver, Ratifications, Representations and Warranties


 


4.1
No Waiver. Nothing contained in this Amendment or any other communication between Agent, any Lender, Borrower or any
other Loan Party shall be a waiver of any past, present or future violation, Default or Event of Default of Borrower under the
Credit Agreement or any Loan Document. Agent and each Lender hereby expressly reserves any rights, privileges and remedies under
the Credit Agreement and each Loan Document that Lender may have with respect to any violation, Default or Event of Default, and
any failure by Agent or any Lender to exercise any right, privilege or remedy as a result of the violations set forth above shall
not directly or indirectly in any way whatsoever either (i) impair, prejudice or otherwise adversely affect the rights of Agent
or any Lender, except as set forth herein, at any time to exercise any right, privilege or remedy in connection with the Credit
Agreement or any Loan Document, (ii) amend or alter any provision of the Credit Agreement or any Loan Document or any other contract
or instrument or (iii) constitute any course of dealing or other basis for altering any obligation of Borrower or any other Loan
Party or any rights, privilege or remedy of Agent or any Lender under the Credit Agreement or any Loan Document or any other contract
or instrument. Nothing in this Amendment shall be construed to be a consent by Agent or any Lender to any prior, existing or future
violations of the Credit Agreement or any Loan Document.


 


4.2
Ratifications. The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms
and provisions set forth in the Credit Agreement and the other Loan Documents, and, except as expressly modified and superseded
by this Amendment, the terms and provisions of the Credit Agreement and the other Loan Documents are ratified and confirmed and
shall continue in full force and effect. Borrower, Lenders and Agent agree that the Credit Agreement and the other Loan Documents,
as amended hereby, shall continue to be legal, valid, binding and enforceable in accordance with their respective terms. Borrower
agrees that this Amendment is not intended to and shall not cause a novation with respect to any or all of the Obligations.


 


4.3
Representations and Warranties. Borrower hereby represents and warrants to Agent and Lenders that (a) the execution,
delivery and performance of this Amendment, any and all other Loan Documents executed and/or delivered in connection herewith
have been authorized by all requisite action (as applicable) on the part of Borrower and will not violate the organizational documents
of Borrower; (b) Borrower’s directors have authorized the execution, delivery and performance of this Amendment any and
all other Loan Documents executed and/or delivered in connection herewith; (c) the representations and warranties contained in
the Credit Agreement, as amended hereby, and any other Loan Document are true and correct in all material respects on and as of
the date hereof and on and as of the date of execution hereof as though made on and as of each such date (except to the extent
such representations and warranties expressly relate to an earlier date); (d) upon the effectiveness of this Amendment, no Default
or Event of Default under the Credit Agreement, as amended hereby, has occurred and is continuing; (e) except as it relates to
the Specified Defaults, Borrower is in full compliance in all material respects with all covenants and agreements contained in
the Credit Agreement and the other Loan Documents, as amended hereby; and (f) except as disclosed to Agent, Borrower has not amended
its organizational documents since the date of the Credit Agreement.


 




    	 



     


    

 


ARTICLE
V


Miscellaneous
Provisions


 


5.1
Survival of Representations and Warranties. All representations and warranties made in the Credit Agreement or any
other Loan Document, including, without limitation, any document furnished in connection with this Amendment, shall survive the
execution and delivery of this Amendment and the other Loan Documents, and no investigation by Agent or any Lender or any closing
shall affect the representations and warranties or the right of Agent and each Lender to rely upon them.


 


5.2
Reference to Credit Agreement. Each of the Credit Agreement and the other Loan Documents, and any and all other Loan
Documents, documents or instruments now or hereafter executed and delivered pursuant to the terms hereof or pursuant to the terms
of the Credit Agreement, as amended hereby, are hereby amended so that any reference in the Credit Agreement and such other Loan
Documents to the Credit Agreement shall mean a reference to the Credit Agreement, as amended hereby.


 


5.3
Expenses of Agent. As provided in the Credit Agreement, Borrower agrees to pay on demand all costs and expenses incurred
by Agent, or its Affiliates, in connection with the preparation, negotiation, and execution of this Amendment and the other Loan
Documents executed pursuant hereto and any and all amendments, modifications, and supplements thereto, including, without limitation,
the reasonable costs and fees of legal counsel, and all costs and expenses incurred by Agent and each Lender in connection with
the enforcement or preservation of any rights under the Credit Agreement, as amended hereby, or any other Loan Documents, including,
without, limitation, the reasonable costs and fees of legal counsel.


 


5.4
Severability. Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable
shall not impair or invalidate the remainder of this Amendment and the effect thereof shall be confined to the provision so held
to be invalid or unenforceable.


 


5.5
Successors and Assigns. This Amendment is binding upon and shall inure to the benefit of Agent and each Lender and
Borrower and their respective successors and assigns, except that Borrower may not assign or transfer any of its rights or obligations
hereunder without the prior written consent of Agent.


 


5.6
Counterparts. This Amendment may be executed in one or more counterparts, each of which when so executed shall be deemed
to be an original, but all of which when taken together shall constitute one and the same instrument. This Amendment may be executed
by facsimile or electronic (.pdf) transmission, which facsimile or electronic (.pdf) signatures shall be considered original executed
counterparts for purposes of this Section 5.6, and each party to this Amendment agrees that it will be bound by its own
facsimile or electronic (.pdf) signature and that it accepts the facsimile or electronic (.pdf) signature of each other party
to this Amendment.


 




    	 



     


    

 


5.7
Effect of Waiver. No consent or waiver, express or implied, by Agent to or for any breach of or deviation from any
covenant or condition by Borrower shall be deemed a consent to or waiver of any other breach of the same or any other covenant,
condition or duty.


 


5.8
Headings. The headings, captions, and arrangements used in this Amendment are for convenience only and shall not affect
the interpretation of this Amendment.


 


5.9
Applicable Law. THE TERMS AND PROVISIONS OF SECTIONS 10.17 (GOVERNING LAW) AND 10.18 (FORUM SELECTION;
CONSENT TO JURISDICTION) OF THE CREDIT AGREEMENT ARE HEREBY INCORPORATED HEREIN BY REFERENCE, AND SHALL APPLY TO THIS AMENDMENT
MUTATIS MUTANDIS AS IF FULLY SET FORTH HEREIN.


 


5.10
Final Agreement. THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS, EACH AS AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION
OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS, AS AMENDED HEREBY, MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT
OF ANY PROVISION OF THIS AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY Borrower
AND AGENT.


 


[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]


 




    	 



     


    

 


IN
WITNESS WHEREOF, this Amendment has been executed and is effective as of the date first written above.


 


	 	BORROWER:
	 	 
	 	MISONIX,
    INC.,
	 	a
    Delaware Corporation (f/k/a New Misonix, Inc.)
	 	 	 
	 	By:	/s/
    Joseph Dwyer
	 	Name:	Joseph
    Dwyer
	 	Title:	Chief
    Financial Officer


 


	 	SOLSYS
    MEDICAL, LLC,
	 	a
    Delaware limited liability company (f/k/a Soluble Systems, LLC)
	 	 	 
	 	By:
    	MISONIX,
    INC.,
	 	 	its
    sole member
	 	 	 
	 	By:	/s/
    Joseph Dwyer
	 	Name:	Joseph
    Dwyer
	 	Title:	Chief
    Financial Officer


 




    	 



     


    

 


	 	AGENT
    AND LENDER:
	 	 
	 	SWK
    FUNDING LLC,
	 	as
    Agent and a Lender
	 	 	 
	 	By:
    	SWK
    Holdings Corporation,
	 	 	its
    sole Manager
	 	 	 
	 	By:
    	/s/
    Winston Black
	 	Name:	Winston
    Black
	 	Title:	Chief
    Executive Officer