UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
______________________
 
FORM 8-K
 
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
 
June 28, 2016
Date of Report (Date of earliest event reported)
 
BOVIE MEDICAL CORPORATION
(Exact name of registrant as specified in its Charter)
 
 
 
Delaware
 
012183
 
11-2644611
(State or other jurisdiction
of incorporation)
 
(Commission File Number)
 
(IRS Employer Identification No.)
 
4 Manhattanville Road, Suite 106
Purchase, New York 10577
(Address of principal executive offices) (Zip Code)
 
(914) 468-4009
Registrant's telephone number, including area code
 
 
(Former name or former address, if changed since last report)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
 
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
   
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
   
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
   
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 

 
 
 

Item 1.01 Entry into a Definitive Material Agreement.
 
On June 28, 2016, Bovie Medical Corporation (the “Company”) entered into a transaction with Bank of Tampa, a Florida banking corporation (“Lender”) wherein Lender amended the terms of a loan (the “Loan”) originally executed on March 20, 2014.  The Initial Maturity Date of the Loan was amended to be July 20, 2019 from March 19, 2017, and the Extended Maturity Date was amended to July 20, 2024 from March 20, 2022.  In addition, the Lender released as collateral to the Loan the Company’s working capital accounts in exchange for setting a limit to the aggregate indebtedness secured by these accounts.  Borrowings under the Loan will still bear interest at the London Interbank Offered Rate plus 3.5% and contain customary affirmative and negative covenants and events of default.
 
The terms of the amended Loan were set forth in a First Amendment to Loan Agreement, Amended and Restated Promissory Note, Mortgage and Other Loan Documents Extension and Modification Agreement (collectively, the “Amended Loan Documents”) and ancillary documents executed by the Company in favor of Lender.
 
THE FOREGOING IS A SUMMARY OF THE MATERIAL TERMS OF THE AMENDED LOAN DOCUMENTS AND IS QUALIFIED BY THE TERMS OF THE AMENDED LOAN DOCUMENTS, COPIES OF WHICH ARE FILED WITH THIS REPORT ON FORM 8-K.
 
 
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
 
The disclosure in Item 1.01 above is incorporated herein by reference in its entirety.
 
 
Item 9.01
Financial Statements and Exhibits
(d)
Exhibit No.
 
Description
10.1
 
First Amendment to Loan Agreement dated June 28, 2016, between the Company and Lender
10.2
10.3
 
Amended and Restated Promissory Note
Mortgage and Other Loan Documents Extension and Modification Agreement
 
 
SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
Date:  July 5, 2016
 
BOVIE MEDICAL CORPORATION
     
   
By:    /s/  Robert L. Gershon
   
Robert L. Gershon
   
Chief Executive Officer
 

 
 
 

    
FIRST AMENDMENT TO LOAN AGREEMENT
 
THIS FIRST AMENDMENT TO LOAN AGREEMENT (the " Amendment ") is made this 27th day of June, 2016, and is by and between The Bank of Tampa, a Florida banking corporation (" Lender "), having an address of Post Office Box One, Tampa, Florida 33601 and Bovie Medical Corporation, a Delaware corporation (" Borrower "), having an address of 5115 Ulmerton Road, Clearwater, Florida 33760.
 
 
W I T N E S S E T H:
 
WHEREAS , the parties have previously entered into that certain Loan Agreement (the "Agreement") dated as of March 20, 2014, and the parties have mutually agreed to make certain amendments and modifications to the Agreement as herein provided;
 
NOW, THEREFORE , for and in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties agree as follows:
 
1.            Recitals . The foregoing recitals are true and correct and are hereby incorporated by reference as if fully set forth herein.
 
2.            Certain Terms . Capitalized or initially capitalized terms used herein which are not otherwise defined herein shall have the meanings ascribed to said terms in the Agreement.
 
3.            Amendments to Definitions .
 
(a)           The term "Collateral" and its definition are hereby amended and restated in their entirety as of, from and after the date hereof, so as to read as follows:
 
" Collateral " shall mean all the assets, property and interests in property that shall from time to time be pledged or be purported to be pledged as direct or indirect security for any of the Obligations pursuant to anyone or more of the Security Documents.
 
      (b)           The term "Extended Maturity Date" and its definition are hereby amended and restated in their entirety as of, from and after the date hereof, so as to read as follows:
 
" Extended Maturity Date " shall mean July 20, 2024.
 
      (c)           A new term "First Amendment" and its definition reading as follows are hereby added to Section 1.01 of the Agreement in its correct alpha-numeric sequence:
 
" First Amendment " shall mean that certain First Amendment to Loan Agreement dated as of the First Amendment Effective Date between Lender and Borrower.
 
      (d)           A new term "First Amendment" and its definition reading as follows are hereby added to Section 1.01 of the Agreement in its correct alpha-numeric sequence:
 
"First Amendment Effective Date " shall mean June ___, 2016.
 
      (e)           A new term "First Amendment Fee" and its definition reading as follows are hereby added to Section 1.01 of the Agreement in its correct alpha-numeric sequence:
 
" First Amendment Fee " shall mean a fee in the amount of $7,682.00 payable by Borrower to Lender as a condition of Lender's entering into the First Amendment as of the First Amendment Effective Date.

 
 
 
 
(f)           The term "Initial Maturity Date" and its definition are hereby amended and restated in their entirety as of, from and after the date hereof, so as to read as follows:
 
" Initial Maturity Date " shall mean July 20, 2019.
 
       (g)           The term "Note" and its definition are hereby amended and restated in their entirety as of, from and after the date hereof, so as to read as follows:
 
" Note " shall mean (i) prior to the First Amendment Effective Date, that certain Promissory Note dated March 20, 2014, in the original principal amount of .$3,592,000.00 and (ii) as of and after the First Amendment Effective Date, that certain Amended and Restated Promissory Note dated as of the First Amendment Effective Date and in a principal amount equal to the outstanding principal balance of the Loan as of the First Amendment Effective Date, as the same may be amended, modified, restated or supplemented at any time or from time to time.
 
(h)           As of, from and after the date hereof, the term "Security Agreement" and its definition are hereby deleted from the Loan Agreement, and each reference in the Loan Agreement to the term "Security Agreement" shall be deemed to be deleted and no longer effective.
 
4.            Amendment of Article Two . Article Two of the Loan Agreement is hereby amended and restated in its entirety as of, from and after the date hereof so as to read as follows:
 
ARTICLE TWO
CREDIT
 
2.01            Loan . Lender has previously made to Borrower, and Borrower has taken, all as of March 20, 2014, the Loan in the original principal amount of $3,592,000.00, and having an outstanding principal balance as of the date of the First Amendment Effective Date of $3,053,199.88, which was originally evidenced by that certain Promissory Note dated March 20, 2014, in the principal sum of $3,592,000.00, made by Borrower and payable to the order of Lender, and which as of, from and after the First Amendment Effective Date is evidenced by that certain Amended and Restated Promissory Note in the principal sum of $3,053,199.88 dated as of the First Amendment Effective Date, made by Borrower and payable to the order of Lender. The Loan was advanced to Borrower in a single advance on or about March 20, 2014 for the purpose of refinancing then-existing mortgage debt previously secured by the Real Estate Collateral, and the Loan has been fully advanced, without any further additional advances to be made thereunder. The Loan shall be due and payable in full on the Initial Maturity Date, unless all of the conditions set forth in Section 2.04 hereof shall have been satisfied prior to the Initial Maturity Date in which case the maturity of the Loan shall be extended and the Loan shall be due and payable in full on the Extended Maturity Date. Until maturity of the Loan, the Loan shall be payable by Borrower as provided in and in accordance with the terms of the Note.
 
2.02            Loan Fees . As a condition of the original Loan, Borrower has previously paid to Lender the Loan Fee on or about March 20, 2014. In connection with the First Amendment, Borrower shall unconditionally pay to Lender the First Amendment Fee, which shall be due and payable in good, collected funds on the First Amendment Effective Date.
 
2.03            Document Fee . As a condition of the original Loan, Borrower has previously paid to Lender a Document Fee on or about March 20, 2014. In connection with the First Amendment, Borrower shall unconditionally pay to Lender an additional Document Fee, which shall be due and payable in good, collected funds on First Amendment Effective Date.
 

 
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2.04            Extension of Maturity of Loan . Provided that all of the following terms and conditions shall have been met or exist on or before the Initial Maturity Date, the maturity of the Loan shall be extended until the Extended Maturity Date:
 
           (a)           No Event of Default or Default Condition shall then exist; and,
 
           (b)           Borrower shall have maintained a Debt Service Coverage Ratio for each of the preceding four (4) consecutive fiscal quarters of not less than 1.00 to 1.00.
 
In the event that the foregoing conditions have not been satisfied as of, on or before the Initial Maturity Date, then the Loan shall mature and be due and payable in full as provided in the Note on the Initial Maturity Date.
 
5.            Addition of New Section 6.07 . Article Six of the Agreement is hereby modified and amended as of, from and after the date hereof so as to add the following new Section 6.07 thereto immediately after the existing Section 6.06 thereof:
 
6.07            Limitation on Indebtedness Secured by Accounts . Borrower shall not incur any Indebtedness secured by its Accounts in excess of the maximum principal amount of $2,000,000.00.
 
      6.            Release of Security Agreement . Lender does hereby release and terminate the Security Agreement.
 
7.            Reaffirmation . Borrower acknowledges that the Loan Agreement and each of the other Loan Documents continues to remain in full force and effect in the manner and extent provided therein, except as modified hereby, or by any other documents or instrument executed in connection with the modifications made herein, and the Loan Agreement each such Loan Document constitute the legal, valid and binding obligation of the Borrower, enforceable against it in accordance with their respective terms, except as modified hereby or in any such other document or instrument.
 
     8.            Representations and Warranties . Borrower hereby represents and warrants to Lender that:
 
      (a)           the representations and warranties of Borrower contained in the Loan Agreement and each of the other Loan Documents (as amended hereby), or which are contained in any document furnished at any time under or in connection herewith or therewith, are true and correct in all material respects on and as of the date of this Agreement, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date;
 
      (b)           this Amendment, the Loan Agreement and each of the other Loan Documents constitute the legal, valid, and binding obligation of the Loan Parties to the extent a party thereto, enforceable against Borrower in accordance with their respective terms;
 
         (c)           no Event of Default and/or Default Condition has occurred and is continuing, which will not be cured by, or will result from, the execution, delivery and performance of the terms and conditions of this Amendment;
 
       (d)           no event or circumstance since the effective date of the Loan Agreement has occurred that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and
 
       (e)           Borrower has performed all of its obligations under the Loan Agreement and each of the other Loan Documents which are to be performed contemporaneously with or prior to the date hereof.
 
 
 
3
 

9.            Conditions Precedent . The effectiveness of this Agreement is subject to the receipt by the Lender of each of the following (each appropriately completed and duly executed and delivered as required and otherwise in form and substance satisfactory to the Lender):
 
(a)           this Amendment;
 
(b)           evidence of payment by the Borrower of all accrued and unpaid fees, costs and expenses to the extent then due and payable on the date hereof, including without limitation the First Amendment Fee and the Document Fee related to the First Amendment together with all attorneys' fees and costs of Lender incurred in connection with the evaluation of the circumstances surrounding, the negation of, and the documentation of this Agreement;
 
(c)           such other instruments, agreements and documents as the Lender may reasonably request, including without limitation an Amended and Restated Note, and a Mortgage and Other Loan Documents Modification Agreement;
 
(d)           at Borrower's sole cost and expense, an endorsement to Lender's existing mortgagee's policy of title insurance insuring the Mortgage as modified by that certain Mortgage and Other Loan Documents Modification Agreement dated on or about the date hereof as a first mortgage lien, subject only to such exceptions as the Lender shall approve.
 
10.            Costs . Borrower shall pay all costs of the modification made hereby, to include without limitation attorneys' fees. Such costs shall be due upon execution hereof and the payment thereof shall be a condition precedent to Lender's duties hereunder. In the event it is determined that additional costs relating to this transaction are due, Borrower agrees to pay such costs immediately upon demand.
 
11.            Merger . Neither Lender nor any of its employees, attorneys, representatives or other agents has made any representations, covenants, promises or warranties with respect to the subject matter hereof, express or implied, except as explicitly set forth herein or in the other Loan Documents and no rights or privileges are or shall be acquired by Borrower by implication or otherwise, except as expressly set forth herein or in the other Loan Documents.
 
12.            Paragraph Headings . The paragraph headings used herein are for convenience of reference only and are not to be used in the construction or interpretation hereof.
 
13.            Governing Law . This Amendment shall be governed, interpreted and construed by, through and under the laws of the State of Florida, excepting, however, its laws or principles regarding choice of laws or conflicts of laws.
 
14.            Construction . As used herein the neuter gender shall include the masculine and the feminine genders and vice versa, and the singular the plural and vice versa, as the context demands.
 
15.            Time of Essence . Time is of the essence of this Amendment.
 
16.            Attorneys' Fees . All costs incurred by Lender in enforcing the Loan Agreement as modified by this Amendment or otherwise in conjunction with this Amendment and in collection of sums due Lender from Borrower, to include without limitation reasonable attorneys' fees through all trials, appeals and proceedings, to include without limitation any proceedings pursuant to the bankruptcy laws of the United States or arbitration proceedings, shall be paid by Borrower. Borrower further acknowledges, stipulates and agrees that its obligations to pay attorneys' fees or costs under any Loan Document extend to all obligations of the Borrower under all Loan Documents as modified and amended by this Amendment. Attorneys' fees shall include charges for paralegals and law clerks operating under the supervision of an attorney. Any award or payment of attorneys' fees hereunder shall include as a part thereof any and all sales or use taxes imposed thereon by any appropriate governmental authority.
 

 
4
 

17.            Binding Effect . This Amendment shall inure to the benefit of and be binding upon the parties hereto, as well as their respective successors and assigns, heirs and personal representatives.
 
18.            Counterparts . This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
 
19.            Waiver and Release . Borrower hereby: (a) affirms that it is indebted to the Lender under the terms and conditions of the Agreement and the other Loan Documents, each of which constitutes the valid and binding obligation of Borrower, enforceable in accordance with their respective terms, and that no offsets, expenses or counterclaims to their respective obligations thereunder exist; (b) affirmatively waives any right to challenge the liens and security interests granted in favor of the Lender under the Agreement and the other Loan Documents or hereunder; and (c) further releases the Lender from and affirmatively waives any and all claims, counterclaims, or affirmative defenses it may have against the Lender as of and prior to the date hereof.
 
20. Waiver of Jury Trial. THE PARTIES HERETO EACH HEREBY VOLUNTARILY , KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG BORROWER AND LENDER ARISING OUT OF OR IN ANY WAY RELATED TO THE LOAN AGREEMENT, THIS AMENDMENT, ANY OTHER LOAN DOCUMENT, OR ANY RELATIONSHIP BETWEEN BORROWER AND LENDER. THIS PROVISION IS A MATERIAL INDUCEMENT TO LENDER TO RENEW THE LOAN DESCRIBED HEREIN AND IN THE OTHER LOAN DOCUMENTS.
 
[Remainder of Page Intentionally Blank]
 
 

 
5
 

IN WITNESS WHEREOF , the parties have executed and delivered this Agreement as of the day and year first above written.
 
 
Lender :
 
 
THE BANK OF TAMPA,
 
a Florida banking corporation
   
 
By:  /s/David E. Brown                              
 
      David E. Brown, Senior Vice President
 
STATE OF FLORIDA
 
COUNTY OF HILLSBOROUGH
 
THE FOREGOING INSTRUMENT was acknowledged before me this _ day of June, 2016, David E. Brown, as a Senior Vice President of The Bank of Tampa, a Florida banking corporation, on behalf of the corporation. He/she o  is personally known to me or  o  has produced ________________, as identification.
 
 
 
___________________________________
Notary Public
 
 
___________________________________
(Printed Name)
   
 
My commission expires
___________________________________
(Rank or Serial Number)
 
 
[Remainder of Page Intentionally Blank]

 
6
 

 
Borrower:
 
 
 
BOVIE MEDICAL CORPORATION,
 a Delaware corporation
 
 
 
By: /s/Robert L. Gershon                                 
      Robert L. Gershon, Chief Executive Officer
 
STATE OF NEW YORK
 
COUNTY OF                                   
 
 
THE FOREGOING INSTRUMENT was acknowledged before me this _ day of June, 2016, Robert L. Gershon, as Chief Executive Officer of Bovie Medical Corporation, a Delaware corporation, on behalf of the corporation. he/she o is personally known to me or o has produced ______________, as identification.
 
 
 
 
___________________________________
Notary Public
 
 
___________________________________
(Printed Name)
   
 
My commission expires
___________________________________
(Rank or Serial Number)
 

 
7
 

                             
 
THIS AMENDED AND RESTATED PROMISSORY NOTE AMENDS, RESTATES AND REPLACES IN ITS ENTIRETY THAT CERTAIN PROMISSORY NOTE (THE "PRIOR NOTE") DATED MARCH 20, 2014, IN THE ORIGINAL PRINCIPAL AMOUNT OF $3,592,000.00, MADE BY THE MAKER HEREIN AND PAYABLE TO THE ORDER OF THE PAYEE HEREIN, WHICH PRIOR NOTE HAS AN OUTSTANDING PRINCIPAL BALANCE AS OF THE DATE HEREOF OF $3,053,199.88; THE INDEBTEDNESS EVIDENCED BY THE PRIOR NOTE SHALL NOW BE PAID PURSUANT TO THE TERMS OF THIS AMENDED AND RESTATED PROMISSORY NOTE.
 
AMENDED AND RESTATED PROMISSORY NOTE
 
 
 
$3,053,199.88                                                                   Clearwater, Florida
                                                                           June 27, 2016
 
 
FOR VALUE RECEIVED , the undersigned, Bovie Medical Corporation, a Delaware corporation (the " Maker ") unconditionally promises to pay to the order of The Bank of Tampa , a Florida banking corporation (" Payee ," which shall include any subsequent holder hereof or any interest herein), at Post Office Box One, Tampa, Florida 33601, or at such other place as the Payee may from time to time designate in writing, without grace, the principal sum of $3,053,199.88, together with interest on the unpaid principal balance from time to time outstanding in accordance with the following provisions:
 
(a)            In addition to the other terms elsewhere defined in this Note, the following terms shall have the respective meanings set forth below:
 
" Business Day " shall mean (i) any day other than a Saturday, Sunday or any other day on which Payee is not open for business and (ii) with respect to all notices, determinations, funding and payments in connection with the LlBOR Rate, any day that is a Business Day pursuant to clause (i) and that is also a day on which trading is carried on by and between banks in the London interbank market.
 
" Extended Maturity Date " shall mean July 20, 2024.
 
" Initial Maturity Date " shall mean July 20, 2019.
 
" Interest Period " shall mean each one month period commencing on the first day of each calendar month and ending on the last day of each calendar month, provided that the initial Interest Period shall commence on the date hereof and shall end on June 30,2016.
 
" Interest Rate " shall mean a monthly adjusting interest rate per annum equal to the sum of (A) the LlBOR Rate as in effect as of the first Business Day of each Interest Period plus (B) the Interest Rate Margin and fixed until the first day of the next succeeding Interest Period at which time the Interest Rate shall be adjusted as herein provided. The maintenance of principal at the Interest Rate shall be subject to the following additional terms and conditions:
 
(i)            If Payee notifies Maker that reasonable means do not exist for Payee to determine the LlBOR Rate, as determined by Payee in its sole discretion, then the principal subject or to be subject to the Interest Rate shall accrue or shall continue to accrue interest at a rate as determined by Payee in its discretion based on a reasonably comparable index and an interest rate margin determined by Payee in its reasonable discretion.

 
 
 

(ii)            If any treaty, statute, regulation, interpretation thereof, or any directive, guideline, or otherwise by a central bank or fiscal authority (whether or not having the force of law) shall either prohibit or extend the time at which any principal subject to Interest Rate, or corresponding deposits, if any, may be purchased, maintained, or repaid, then on and as of the date the prohibition or extension becomes effective, the principal subject to that prohibition or extension shall continue to accrue interest at a rate as determined by Payee in its discretion based on a reasonably comparable index and an interest rate margin determined by Payee in its reasonable discretion.
 
(iii)           All payments of principal and interest shall be made net of any taxes, costs, fees, losses and expenses incurred or charged by Payee resulting from having principal outstanding hereunder at the Interest Rate, including:
 
(A)           taxes (or the withholding of amounts for taxes) of any nature whatsoever including income, excise, and interest equalization taxes (other than income taxes imposed by the United States or any state thereof on the income of Payee), as well as all levies, imposts, duties, or fees whether now in existence or resulting from a change in, or promulgation of, any treaty, statute, regulation, interpretation thereof, or any directive, guideline, or otherwise, by a central bank or fiscal authority (whether or not having the force of law) or a change in the basis of, or time of payment of, such taxes and other amounts resulting therefrom;
 
(B)           any reserve or special deposit requirements against assets or liabilities of, or deposits with or for the account of, Payee with respect to principal outstanding at the Interest Rate (including those imposed under Regulation 0 of the Federal Reserve Board) or resulting from a change in, or the promulgation of, such requirements by treaty, statute, regulation, interpretation thereof, or any directive, guideline, or otherwise by a central bank or fiscal authority (whether or not having the force of law);
 
(C)           any other costs resulting from compliance with treaties, statutes, regulations, interpretations, or any directives or guidelines, or otherwise by a central bank or fiscal authority (whether or not having the force of law);
 
(D)           Any breakage fees and other losses and expenses (including interest rate margin and any other losses of anticipated profits, and any minimum breakage fee charged by Payee from time to time) incurred by reason of the liquidation or re-employment of deposits or other funds acquired by Payee to make the loan evidenced by this Note or maintain principal outstanding at the Interest Rate as a result of a prepayment of the loan evidenced by this Note on a day other than the last day of an Interest Period ..
 
If Payee incurs or charges any such taxes, costs, fees, losses and expenses, Maker, upon demand in writing specifying the amounts thereof, shall promptly pay them; save for manifest error Payee's specification shall be presumptively deemed correct. The loan evidenced by this Note shall be conclusively deemed to have been funded by or on behalf of Payee in the London or another offshore interbank market by the purchase of U.S. Dollar deposits or other funds corresponding in amount to the amounts under this Note for each Interest Period.
 
"Interest Rate Margin" shall mean 3.50%.
 
 
 
2
 
" LlBOR Rate" shall mean the One Month LlBOR (London Interbank Offered Rate) published in The Wall Street Journal on the 1st Business Day ofeach Interest Period.
 
       (b) This Note shall bear interest at the Interest Rate, as from time to time in effect.
 
(c)           Commencing on July 20, 2016, and on the numerically corresponding day of each and every calendar month thereafter during the term of this Note, Maker shall pay to Payee equal monthly installments of principal of $19,955.56 each plus accrued interest at the Interest Rate.
 
(d)           The entire outstanding principal balance together with all accrued interest owed thereon, as well as all other costs associated with the indebtedness evidenced hereby, shall be due and payable in full on the Initial Maturity Date; provided, however , that in the event that all of the terms and conditions as set forth in the Loan Agreement (as hereinafter defined) with respect to extension of the maturity of this Note until the Extended Maturity Date then the maturity of this Note shall be extended until the Extended Maturity Date, at which time the entire outstanding principal balance together with all accrued interest owed thereon, as well as all other costs associated with the indebtedness evidenced hereby, shall be due and payable in full. In the event that the maturity of this Note is extended until the Extended Maturity Date, Maker shall continue to make the payments of principal plus interest as provided in subparagraph (c) above.
 
In the event that any interest index referred to herein which is used as the basis for determination of any rate of interest set forth herein ceases to be published or made available, the rate of interest charged hereunder shall be based upon similar published averages reasonably selected by Payee.
 
This Note is (i) made pursuant to the terms of that certain Loan Agreement by and between Payee and Maker dated as of May 20, 2014, as the same has been modified and amended by that certain First Amendment to Loan Agreement dated on or about the date hereof (collectively, as amended, modified, restated or supplemented at any time or from time to time, the " Loan Agreement ") by and between Payee and Maker and (ii) secured by, among other things, that certain Mortgage, Security Agreement, Financing Statement and Assignment of Rents dated May 20,2014, from Maker in favor of Payee, as the same has been modified and amended by that certain Mortgage Modification Agreement dated on or about the date hereof (collectively, as amended, modified or restated at any time or from time to time, the " Mortgage "), which is a lien on a certain estate in real property described therein, and other loan documents (together with any document or instrument now or hereafter executed in connection with any obligation of Maker to Payee, as the same may be amended, modified or restated at any time or from time to time, the " Loan Documents ").
 
If any payment hereunder is due on a date which is not a Business Day (as defined below), the due date therefor shall be extended to the next succeeding Business Day, and interest shall be payable at the then applicable rate during such extension. All payments hereunder shall be first applied to any accrued unpaid interest, principal, unpaid collection costs, and the balance, if any, to unpaid late charges. All interest provided for in this Note shall be calculated on the basis of a three hundred sixty (360) day year, based on the actual number of days elapsed. Payments must be made in legal tender of the United States of America in good, collected funds at the place of payment. Any payment received after 5:00 p.rn. (place of payment time) shall be credited on the next succeeding Business Day.
 
Any payment which is not made within ten (10) days of when due, shall be assessed a "late charge" of five percent (5%) of such payment, which shall be immediately due and payable to Payee.
 
Prepayments may be made in whole or in part at any time without penalty or premium. All prepayments of principal shall be applied in the inverse order of maturity, or in such other order as Payee shall determine in its sole discretion.
 
 
 
 

 
3
 

Maker, any endorser, any guarantor hereof or any other party hereto (individually, an " Obligor " and collectively, " Obligors ") and each of them jointly and severally: (a) waive presentment, demand, protest, notice of demand, notice of intent to accelerate, notice of acceleration of maturity, notice of protest, notice of nonpayment, notice of dishonor, and any other notice required to be given under the law to any Obligor in connection with the delivery, acceptance, performance, default or enforcement of this Note, any endorsement or guaranty of this Note, or any other documents executed in connection with this Note or any other note or other Loan Documents; (b) consent to all delays, extensions, renewals or other modifications of this Note or the Loan Documents, or waivers of any term hereof or of the Loan Documents, or release or discharge by Payee of any of Obligors, or release, substitution or exchange of any security for the payment hereof, or the failure to act on the part of Payee, or any indulgence shown by Payee (without notice to or further assent from any of Obligors), and agree that no such action, failure to act or failure to exercise any right or remedy by Payee shall in any way affect or impair the obligations of any Obligors or be construed as a waiver by Payee of, or otherwise affect, any of Payee's rights under this Note, under any endorsement or guaranty of this Note or under any of the Loan Documents; and (c) agree to pay, on demand, all costs and expenses of collection or defense of this Note or of any endorsement or guaranty hereof and/or the enforcement or defense of Payee's rights with respect to, or the administration, supervision, preservation, protection of, or realization upon, any property securing payment hereof, including, without limitation, attorneys' and paralegals' fees (including, without limitation, any allocated costs of Holder's in-house counselor legal staff to the extent permitted by applicable law), including fees related to any suit, mediation or arbitration proceeding, out of court payment agreement, trial, appeal, bankruptcy proceedings (including without limitation seeking relief from the stay of 11 U.S.C. §362 and limiting the use of cash collateral under 11 U.S.C. §363), receivership, or other proceeding, in such amount as may be determined reasonable by any arbitrator or court, whichever is applicable. Any award or payment of attorneys' or paralegals' fees hereunder or by order of a court of competent jurisdiction shall include as a part thereof any and all sales or use taxes imposed thereon by any appropriate governmental authority.
 
Anyone or more of the following shall constitute an " Event of Default " hereunder: (a) the failure to make any payment of principal and/or interest under this Note or any other obligation of any Obligor to Payee (i) within ten (10) days of when due, as to any regular payment and/or (ii) when due as to any payment due on demand, at maturity or by acceleration; (b) if any representation or warranty of any Obligor in any of the Loan Agreement, the Mortgage, the other Loan Documents, any endorsement, any guaranty, or in any certificate or statement furnished at any time thereunder or in connection therewith proves to be untrue or misleading in any material respect when made or furnished; (c) default which is not otherwise the subject of any other provision of this paragraph shall occur in the performance of any of the covenants or agreements of any Obligor contained in this Note, the Loan Agreement, the Mortgage, any guaranty, or any other Loan Document and such default is not capable of being cured, or if capable of being cured shall continue uncured to the reasonable satisfaction of Payee for a period of forty-five (45) days after written notice thereof from Payee to Maker, or such other lesser or greater period of time, if any, with or without notice as specifically set forth in the applicable document or instrument; provided, however , in the event that such default is capable of being cured but not within forty-five (45) days or such other greater or lesser curative with respect to the particular default, Maker shall have such additional time, not to exceed and additional fifteen (15) days within which to cure such default, provided that it commences such cure within the original curative period therefor and thereafter diligently prosecutes the same to completion; (d) the commencement of a proceeding by or against any Obligor for dissolution or liquidation, the voluntary or involuntary termination or dissolution of any Obligor or the merger or consolidation of any Obligor with or into another entity and, in the case of an involuntary proceeding only, such proceeding is not dismissed within sixty (60) days from the date of filing thereof; (e) the insolvency of, the business failure of, the appointment of a custodian, trustee, liquidator or receiver for or for any of the property of, the assignment for the benefit of creditors by, or the filing of a petition under bankruptcy, insolvency or debtor's relief law or the filing of a petition for any adjustment of indebtedness, composition or extension by or against any Obligor, and, in the case of an involuntary proceeding only, such proceeding is not dismissed within sixty (60) days from the date of filing thereof;

 
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(I) the failure of any Obligor to timely deliver such financial statements, including tax returns, other statements of condition or other information, as required by the Loan Agreement or as Payee shall request from time to time; (g) the entry of a judgment against any Obligor which Payee deems to be of a material nature, in Payee's sole discretion, which is not released or satisfied within forty-five (45) days of the entry thereof; (h) the seizure or forfeiture of, or the issuance of any writ of possession, garnishment or attachment, or any turnover order for any property of any Obligor, including without limitation the property encumbered by the Mortgage; (i) should Payee's liens, mortgages or security interests in any of the collateral for this Note become unenforceable, or cease to be first priority liens, mortgages or security interests; U) the determination by Payee that a material adverse change has occurred in the financial condition of Maker that has a material adverse effect on Maker, its business or the property encumbered by the Mortgage; or (k) the failure of Maker's business to comply with any law or regulation controlling its operation.
 
Upon the occurrence of an Event of Default, (a) Payee shall have the optional right to accelerate and declare as immediately due and payable in full the entire balance (principal, interest and all other charges due hereunder or under the Loan Documents) outstanding hereunder and all other obligations of any Obligor to Payee (however acquired or evidenced) and/or (b) to the extent permitted by law, the rate of interest on the unpaid principal shall be increased at Payee's discretion up to the Maximum Rate (as defined below), or if there shall cease to be a Maximum Rate at a simple interest rate of 25% per annum (the "Default Rate "). The provisions herein for a Default Rate shall not be deemed to extend the time for any payment hereunder or to constitute a "grace period" giving Obligors a right to cure any default. At Payee's option, any accrued and unpaid interest, fees or charges may, for purposes of computing and accruing interest on a daily basis after the due date of this Note or any installment thereof, be deemed to be a part of the principal balance, and interest shall accrue on a daily compounded basis after such date at the Default Rate provided in this Note until the entire outstanding balance of principal and interest is paid in full. Payee is hereby authorized at any time to set off any charge against any deposit accounts of any Obligor, as well as any money, instruments, securities, documents, chattel paper, credits, claims, demands, income and any other property, rights and interests of any Obligor which at any time shall come into the possession or custody or under the control of Payee or any of its agents, affiliates or correspondents, without notice or demand, any and all obligations due hereunder. Additionally, Payee shall have all rights and remedies available under each of the Loan Documents, including without limitation foreclosure of the Mortgage, as well as all rights and remedies available at law or in equity. Any judgment rendered on this Note shall bear interest at the highest rate of interest permitted pursuant to Chapter 687, Florida Statutes.
 
The failure at any time of Payee to exercise any of its options or any other rights hereunder shall not constitute a waiver thereof, nor shall it be a bar to the exercise of any of its options or rights at a later date. All rights and remedies of Payee shall be cumulative and may be pursued singly, successively or together, at the option of Payee. The acceptance by Payee of any partial payment shall not constitute a waiver of any default or of any of Payee's rights under this Note. No waiver of any of its rights hereunder, and no modification or amendment of this Note, shall be deemed to be made by Payee unless the same shall be in writing, duly signed on behalf of Payee; each such waiver shall apply only with respect to the specific instance involved, and shall in no way impair the rights of Payee or the obligations of Obligor to Payee in any other respect at any other time.
 
This Note, the Loan Documents, and the rights and obligations of Maker and Payee shall be governed by and interpreted in accordance with the law of the State of Florida. In any litigation in connection with or to enforce this Note or any endorsement or guaranty of this Note or any Loan Documents (as defined in the Mortgage), each Obligor irrevocably consents to and confers personal jurisdiction on the courts of the State of Florida or the United States located within the State of Florida and expressly waives any objections as to venue in any such courts. Nothing contained herein shall, however, prevent Payee from bringing any action or exercising any rights within any other state or jurisdiction or from obtaining personal jurisdiction by any other means available under applicable law.
 
 

 
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Notwithstanding anything contained in this Note to the contrary, Payee shall never be deemed to have contracted for or be entitled to receive, collect or apply as interest on this Note, any amount in excess of the amount permitted and calculated at the Maximum Rate, and, in the event Payee ever receives, collects or applies as interest any amount in excess of the amount permitted and calculated at the Maximum Rate, such amount which would be excessive interest shall be applied to the reduction of the unpaid principal balance of this Note, and, if the principal balance of this Note is paid in full, any remaining excess shall forthwith be paid to Maker. In determining whether or not the interest paid or payable under any specific contingency exceeds the Maximum Rate, Maker and Payee shall, to the maximum extent permitted under applicable law, (i) characterize any non-principal payment (other than payments which are expressly designated as interest payments hereunder) as an expense, fee, or premium, rather than as interest, (ii) exclude voluntary prepayments and the effect thereof, and (iii) spread the total amount of interest throughout the entire contemplated term of this Note. The term " Maximum Rate " shall mean, as to Payee, the maximum nonusurious interest rate, if any, that at any time, or from time to time, may be contracted for, taken, reserved, charged, or received on the indebtedness evidenced by this Note under the laws which are presently in effect of the United States and the State of Florida applicable to Payee and such indebtedness or, to the extent permitted by applicable law, under such applicable laws of the United States and the State of Florida which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow.
 
Time is of the essence hereunder.
 
Any notice to be given or to be served upon any party hereto shall be given as provided in the Mortgage.
 
In this Note, whenever the context so requires, the neuter gender includes the feminine and/or masculine, as the case may be, and the singular number includes the plural.
 
MAKER KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS MAKER MAY HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING BASED ON, ARISING OUT OF, OR IN ANY WAY RELATED TO: THIS NOTE; THE OBLIGATIONS; ANY NOTES, LOAN AGREEMENTS, OR ANY OTHER LOAN DOCUMENT OR AGREEMENT EXECUTED OR CONTEMPLATED TO BE EXECUTED IN CONNECTION WITH ANY OF THE OBLIGATIONS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. THIS JURY WAIVER ALSO APPLIES TO ANY CLAIM, COUNTERCLAIM, CAUSE OF ACTION OR DEMAND ARISING FROM OR RELATED TO (I) ANY COURSE OF CONDUCT, COURSE OF DEALING, OR RELATIONSHIP OF MAKER, ANY OBLIGOR, OR ANY OTHER PERSON WITH HOLDER OR ANY EMPLOYEE, OFFICER, DIRECTOR OR ASSIGNEE OF HOLDER IN CONNECTION WITH THE OBLIGATIONS; OR (II) ANY STATEMENT (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PERSON BY OR ON BEHALF OF HOLDER TO MAKER, ANY OBLIGOR, OR ANY OTHER PERSON IN CONNECTION WITH THE OBLIGATIONS, REGARDLESS OF WHETHER SUCH CAUSE OF ACTION ARISES BY CONTRACT, TORT OR OTHERWISE. MAKER HEREBY ACKNOWLEDGES THAT THIS WAIVER OF JURY TRIAL IS A MATERIAL INDUCEMENT TO THE HOLDER IN EXTENDING CREDIT TO THE MAKER, THAT THE HOLDER WOULD NOT HAVE EXTENDED SUCH CREDIT WITHOUT THIS JURY TRIAL WAIVER, AND THAT MAKER HAS BEEN REPRESENTED BY AN ATTORNEY OR HAS HAD AN OPPORTUNITY TO CONSULT WITH AN ATTORNEY IN CONNECTION WITH THIS JURY TRIAL WAIVER AND UNDERSTANDS THE LEGAL EFFECT OF THIS WAIVER. MAKER FURTHER CERTIFIES THAT NO PERSON HAS REPRESENTED TO IT, EXPRESSLY OR OTHERWISE, THAT HOLDER OR ANY OTHER PERSON WOULD NOT, IN THE EVENT OF A LEGAL PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER.
 
[Remainder of Page Intentionally Blank]
 
 

 
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IN WITNESS WHEREOF , Maker has caused this Note to be executed in its name as of the day and year first above written.
 
 
Maker:
 
 
BOVIE MEDICAL CORPORATION,
a Delaware corporation
 
 
 
By: /s/Robert L. Gershon                                 
 
      Robert L. Gershon, Chief Executive Officer
 
 
STATE OF NEW YORK
 
COUNTY OF __________
 
THE FOREGOING INSTRUMENT was acknowledged before me this _ day of June, 2016, Robert L. Gershon, as Chief Executive Officer of Bovie Medical Corporation, a Delaware corporation, on behalf of the corporation. He/she o is personally known to me or o has produced _____________ , as identification.
 
 
   
Notary Public
 
 
 
 
    (Printed Name)
 
 
 
 
  My commission expires:     (Rank or Serial Number)
 
 
DOCUMENTARY STAMP TAXES IN THE AMOUNT OF $12,572.00 ON THE PRIOR NOTE HAVE BEEN PAID ON THE MORTGAGE SECURING THIS NOTE. THIS AMENDED AND RESTATED PROMISSORY NOTE EVIDENCES THE AMENDMENT AND RESTATEMENT OF THE PRIOR NOTE WITHOUT ENLARGEMENT OF THE OBLIGATIONS OF THE MAKER AND WITHOUT THE ADDITION OF ANY OTHER OBLIGOR, THEREFORE, NO DOCUMENTARY STAMP TAXES ARE DUE HEREON.
 
 

 
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MORTGAGE AND OTHER LOAN DOCUMENTS EXTENSION AND MODIFICATION AGREEMENT
 
Between
 
THE BANK OF TAMPA,
a Florida banking corporation
 
as "Lender";
 
and
 
 
BOVIE MEDICAL CORPORATION ,
a Delaware corporation
 
as " Borrower ".
 
Renewal Loan Amount: $3,053,199.88
 
 
NOTE TO RECORDER : DOCUMENTARY STAMP TAX IN THE AMOUNT OF $12,572.00 AND NON-RECURRING INTANGIBLES TAX IN THE AMOUNT OF $7,184.00 HAVE BEEN PAID ON THE MORTGAGE MODIFIED HEREBY. THIS INSTRUMENT EVIDENCES THE EXTENSION OF THE MATURITY OF THE INDEBTEDNESS DESCRIBED HEREIN WITHOUT ENLARGEMENT OF THE TERMS THEREOF OR THE ADDITION OF ANY OTHER OBLIGOR, AND THEREFORE NO FURTHER OR ADDITIONAL DOCUMENTARY STAMP TAXES OR INTANGIBLES TAXES ARE DUE IN CONNECTION WITH THE RECORDING HEREOF.

 
 
 

MORTGAGE AND OTHER LOAN DOCUMENTS EXTENSION AND MODIFICATION AGREEMENT
 
THIS MORTGAGE AND OTHER LOAN DOCUMENTS RENEWAL AND MODIFICATION AGREEMENT (the " Agreement ") is made and entered as of the 27th day of June, 2016 , between The Bank of Tampa, a Florida banking corporation, having an address of Post Office Box One, Tampa, Florida 33601 (" Lender ") and Bovie Medical Corporation, a Delaware corporation, having an address of 5115 Ulmerton Road, Clearwater, Florida 33760 (" Borrower ").
 
W I T N E S S E T H:
 
WHEREAS , Lender is the owner and holder of, inter alia , the following loan documents:
 
(a)           Loan Agreement (as amended, modified, restated, renewed, or supplemented at any time or from time to time, the " Loan Agreement ") dated March 20, 2014 between The Bank of Tampa and Borrower;
 
(b)           Promissory Note (as amended, modified, restated, renewed, consolidated, increased, decreased, or supplemented at any time or from time to time, together with any prior promissory notes renewed or modified thereby, the " Prior Note ") dated March 20, 2014 in the original principal amount of $3,592,000.00, made by Borrower, payable to the order of The Bank of Tampa, and having an outstanding principal balance as of the date hereof of $3,053,199.88;
 
(c)           Mortgage, Security Agreement, Financing Statement and Assignment of Rents (as amended, modified, restated, renewed, consolidated, increased, decreased, spread or supplemented at any time or from time to time, the " Mortgage ") dated March 20, 2014, and recorded in the Public Records of Pinellas County, Florida, at O.R. Book 18349, Page 51, et seq. from Borrower in favor of The Bank of Tampa;
 
(d)           Assignment of Rents, Leases, Profits and Contracts (as amended, modified, restated, renewed, or supplemented at any time or from time to time, the " Assignment of Rents ") dated March 20, 2014 and recorded in the Public Records of Pinellas County, Florida, at O.R . Book 18349, Page 73, et seq .;
 
(e)           UCC-1 Financing Statement (as amended, modified, restated, renewed, or supplemented at any time or from time to time, the " County Financing Statement ") recorded in the Public Records of Pinellas County, Florida, at O.R. Book 18349, Page 81, et seq. ;
 
the foregoing documents together with all other documents or instruments executed and/or delivered at any time or from time to time with respect to the Loan being herein referred to as the " Loan Documents ";
 
WHEREAS , the indebtedness evidenced by the Prior Note matures as of March 20, 2017, unless the same is extended in accordance with the terms of the Prior Note until March 20, 2022, as provided therein, and Borrower has requested that Lender extend the initial maturity and, to the extent applicable, the extended maturity of the Prior Note until July 20, 2019, and July 20, 2024, respectively, and Lender is willing to do so upon and subject to the terms and conditions contained herein;
 
NOW, THEREFORE , for and in consideration of the sum of Ten Dollars ($10.00), the mutual covenants and agreements contained herein, and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties hereto agree as follows:
 
 
 
 

 
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1.            Recitals . The foregoing recitals are true and correct and are hereby incorporated by reference for all purposes as if fully set forth herein.
 
2.            Initially Capitalized Terms . The initially capitalized terms used herein which are not otherwise defined herein shall have the meanings ascribed to said terms in the Mortgage.
 
3.            Extension of Maturity . This Agreement evidences the extension of the maturity of the indebtedness evidenced by the Prior Note and the Loan Documents. Borrower has as of even date herewith executed and delivered to Lender its Amended and Restated Promissory Note (as amended, modified, restated, extended, increased, decreased or supplemented at any time or from time to time, the " Replacement Note ") in the principal amount of $3,053,199.88, which is payable to the order of Lender, and which Replacement Note is hereby incorporated by reference as if fully set forth herein. The Replacement Note shall mature on July 20, 2019, unless the maturity thereof is extended until July 20, 2024, as provided in and upon the terms and conditions of the Replacement Note and the Loan Agreement, as the same has been modified and amended by that certain First Amendment to Loan Agreement between Lender and Borrower, dated as of the date hereof (the "Loan Agreement Amendment").
 
4.            Amendment of Mortgage and Other Loan Documents . The Mortgage and other Loan Documents are hereby modified and amended in accordance with, and to reflect, the terms, conditions and provisions of this Agreement. The term "Mortgage" as used in any of the Loan Documents shall mean and include without limitation this Agreement. The terms "Note," "Promissory Note," "Mortgage Note" or other terms of like meaning as used in any of the Loan Documents shall mean and include without limitation the Replacement Note. The term "Loan Agreement" as used in any of the Loan Documents shall mean and include without limitation the Loan Agreement as modified by the Loan Agreement Amendment.
 
5.            Representations and Warranties . Borrower affirms, warrants and represents that all the warranties and representations made by Borrower in the Mortgage and other Loan Documents are true and correct as though made as of the date hereof.
 
6.            Release . Borrower hereby releases Lender and its shareholders, officers, directors, employees, agents and attorneys, of and from any and all past and present claims, demands, damages, causes, losses, expenses, actions and causes of action including, without limiting the generality of the foregoing, any and all known and unknown injuries and damages with respect to or arising out of (i) the transactions represented by the Loan Documents or any other document or instrument executed in conjunction with the financings provided for or contemplated in or by the Loan Documents and/or this Agreement and the other documents executed and/or delivered in conjunction with this Agreement (whether one or more, the " Credit Facilities "), (ii) the administration of the Credit Facilities or (iii) all matters in any manner related to the Credit Facilities. Borrower hereby expressly understands and agrees that this release and waiver extends to all claims of every nature whatsoever known or unknown, suspected or unsuspected, existing, claiming to exist or which may hereafter arise out of or result from, or be connected with the matters and things covered as described herein relating to the Credit Facilities, in any manner. The rights and defenses being waived and released hereunder include without limitation any claim or defense based on the Lender having charged or collected interest at a rate greater than that allowed to be contracted for by applicable law; provided, however , that in no event shall such waiver and release be deemed a change to, or modify the terms of, the Loan Documents which provide that sums paid or received in excess of the maximum rate allowed by applicable law, as amended from time to time, shall reduce the principal sum due; said provision to be in full force and effect.
 
7.            Ratification . Except as herein modified and amended or as modified and amended by the other Loan Documents, including without limitation the Replacement Note, executed and/or delivered by Borrower in connection with the modifications made herein, the terms and conditions of the Mortgage and the other Loan Documents are hereby ratified and affirmed and shall remain in full force and effect.

 
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8.            No Novation . It is the intent of the parties that this instrument shall not constitute a novation and shall in no way adversely affect the lien priority of the Mortgage or the other Loan Documents, to the extent that the other Loan Documents create liens or grant security interests. In the event that this Agreement, or any part hereof, shall be construed by a court of competent jurisdiction as operating to affect the lien priority of the Mortgage or the other Loan Documents over the claims which would otherwise be subordinate thereto, then to the extent so ruled by such court, and to the extent that third parties acquiring an interest in such property as is encumbered by the Mortgage or such other Loan Documents between the time of execution of the Mortgage and/or the other Loan Documents and the execution hereof are prejudiced thereby, this Agreement, or such portion hereof as shall be so construed, shall be void and of no force and effect and this Agreement shall constitute, as to that portion, a subordinate lien on the collateral described therein, incorporating by reference the terms of the Mortgage and the other Loan Documents, which then shall be enforced pursuant to the terms therein contained, independent of this Agreement; provided, however , that notwithstanding the foregoing, the parties hereto, as between themselves, shall be bound by all terms and conditions hereof until all indebtedness owing from the Borrower to Lender shall have been paid in full.
 
9.            Patriot Act Compliance . Borrower is not a person who at any time: (i) is listed in the Annex to Executive Order No. 13224, 66 Fed. Reg. 49709 (Sept. 25, 2001), (ii) is listed on the list of Specially Designated Nationals and Blocked Persons generated and maintained by Office of Foreign Assets Control of the United States Treasury Department, (iii) is a person with whom Lender is prohibited from doing business or entering into any transaction with pursuant to any law, regulation or order relating to terrorism or money laundering, or (iv) is an affiliate of, or is controlled by, any person described in clauses (i), (ii) or (iii) (a " Prohibited Person "). Additionally, Borrower is, and shall at all times for so long as the Credit Facilities remain unpaid in full be, in full compliance with the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended at any time or from time to time (the "Patriot Act"), Executive Order No. 13224, 66 Fed. Reg. 49709 (Sept. 25, 2001) and all applicable, orders, rules, or regulations promulgated under or in connection therewith. Borrower shall not: (i) conduct any business, or engage in any transaction or dealing, with any Prohibited Person, including without limitation knowingly making or receiving any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person; or (ii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in Executive Order No. 13224, 66 Fed. Reg. 49709 (Sept. 25, 2001) or the Patriot Act. On request from time to time by Lender, Borrower shall promptly deliver to Lender any such certification or other evidence as Lender shall reasonably require confirming that, to Lender's knowledge, no violation of this paragraph shall have occurred.
 
10.            Costs . Borrower shall pay all costs of the modification made hereby, to include without limitation attorneys' fees and recording fees, as well as the cost of an endorsement to Lender's title insurance policy insuring the lien of the Mortgage after the recording of this Agreement as a valid and subsisting first lien, subject only to such exceptions as are acceptable to Lender in its sole discretion. Such costs shall be due upon execution hereof and the payment thereof shall be a condition precedent to Lender's duties hereunder. In the event it is determined that additional costs relating to this transaction are due, Borrower agrees to pay such costs immediately upon demand.
 
11.            Cross Default . Any default by Borrower under the terms of the Mortgage, as modified hereby, or the other Loan Documents shall be a default under this Agreement and all other documents or instruments executed with respect to the Credit Facilities and any default by Borrower under the terms of this Agreement, or any other document or instrument executed with respect hereto shall be a default under the Mortgage and the other Loan Documents.
 
 
 
 

 
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12.            Acknowledgments . Borrower acknowledges, represents, warrants and agrees: (i) the Mortgage and the other Loan Documents are in full force and effect; and (ii) no notice limiting the maximum principal amount of the indebtedness secured by the Mortgage pursuant to the terms of § 697.04(b), Florida Statutes , as amended from time to time, has been filed in the public records of the county in which the Premises are located nor has any such notice been executed or delivered unless Borrower has given written notice of such event to Lender in a sworn affidavit of even date with this Agreement. In the event any such notice limiting the principal amount which may be secured by the Mortgage has been recorded, executed or delivered, then this Agreement shall also constitute a rescission of such notice, which notice, upon the execution and delivery of this Agreement, shall be deemed to be void and of no further force and effect.
 
13.            Documentary Stamp Taxes; Intangible Taxes . Borrower acknowledges, stipulates, covenants and agrees that Borrower is solely responsible for payment of any and all documentary stamp taxes and intangible taxes with respect to the Credit Facilities. In the event that at any time or from time to time the Florida Department of Revenue shall impose any documentary stamp tax, intangible tax, interest, penalties or fines with respect to any of said instruments, Borrower shall pay same immediately upon demand and Borrower shall indemnify, defend and hold Lender harmless of, from and against any and all such documentary stamp tax, intangible tax, interest, penalties or fines, together with all costs of collection thereof.
 
14.            Merger . Neither Lender nor any of its employees, attorneys, representatives or other agents has made any representations, covenants, promises or warranties with respect to the subject matter hereof, express or implied, except as explicitly set forth herein or in the other Loan Documents and no rights or privileges are or shall be acquired by Borrower by implication or otherwise, except as expressly set forth herein or in the other Loan Documents.
 
15.            Exhibits . The exhibits or schedules attached hereto and referenced herein, if any, are an integral part hereof and are hereby incorporated herein for all purposes.
 
16.            Paragraph Headings . The paragraph headings used herein are for convenience of reference only and are not to be used in the construction or interpretation hereof.
 
17.            Governing Law . This Agreement shall be governed, interpreted and construed by, through and under the laws of the State of Florida, excepting , however , its laws or principles regarding choice of laws or conflicts of laws.
 
18.            Construction . As used herein the neuter gender shall include the masculine and the feminine genders and vice versa, and the singular the plural and vice versa, as the context demands.
 
19.            Time of Essence . Time is of the essence of this Agreement.
 
20.            Attorneys' Fees . All costs incurred by Lender in enforcing this Agreement and in collection of sums due Lender from Borrower, to include without limitation reasonable attorneys' fees through all trials, appeals and proceedings, to include without limitation any proceedings pursuant to the bankruptcy laws of the United States or arbitration proceedings, shall be paid by Borrower. Borrower further acknowledges, stipulates and agrees that its obligations to pay attorneys' fees or costs under any Loan Document extend to all obligations of the Borrower under all Loan Documents as modified and amended by this Agreement. Attorneys' fees shall include charges for paralegals and law clerks operating under the supervision of an attorney. Any award or payment of attorneys' fees hereunder shall include as a part thereof any and all sales or use taxes imposed thereon by any appropriate governmental authority.
 
21.            Binding Effect. This Agreement shall inure to the benefit of and be binding upon the parties hereto, as well as their respective successors and assigns, heirs and personal representatives.

 
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22.            Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.
 
23.            Waiver of Jury TRIAL. BORROWER KNOWINGLY , VOLUNTARILY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS BORROWER MAY HAVE TO TRIAL BY JURY IN ANY LEGAL PROCEEDING BASED ON , ARISING OUT OF , OR IN ANY WAY RELATED TO : THIS AGREEMENT; THE OBLIGATIONS; ANY NOTES , LOAN AGREEMENTS, OR ANY OTHER LOAN DOCUMENTS OR AGREEMENT EXECUTED OR CONTEMPLATED TO BE EXECUTED IN CONNECTION WITH ANY OF THE OBLIGATIONS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. THIS JURY WAIVER ALSO APPLIES TO ANY CLAIM OR , COUNTERCLAIM, CAUSE OF ACTION OR DEMAND ARISING FROM OR RELATED TO (I) ANY COURSE OF CONDUCT , COURSE OF DEALING, OR RELATIONSHIP OF BORROWER , ANY OBLIGOR, OR ANY OTHER PERSON WITH LENDER OR ANY EMPLOYEE , OFFICER , DIRECTOR OR ASSIGNEE OF LENDER IN CONNECTION WITH THE OBLIGATIONS WITH LENDER; OR (II) ANY STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON BY OR ON BEHALF OF LENDER TO BORROWER, ANY OBLIGOR, OR ANY OTHER PERSON IN CONNECTION WITH THE OBLIGATIONS OR LENDER REGARDLESS OF WHETHER SUCH CAUSE OF ACTION ARISES BY CONTRACT, TORT OR OTHERWISE. BORROWER ACKNOWLEDGES THAT THIS WAIVER OF JURY TRIAL IS A MATERIAL INDUCEMENT TO THE LENDER IN EXTENDING CREDIT TO BORROWER, THAT THE LENDER WOULD NOT HAVE EXTENDED SUCH CREDIT WITHOUT THIS JURY TRIAL WAIVER, AND THAT BORROWER HAS BEEN REPRESENTED BY AN ATTORNEY OR HAS HAD AN OPPORTUNITY TO CONSULT WITH AN ATTORNEY IN CONNECTION WITH THIS JURY TRIAL WAIVER AND UNDERSTANDS THE LEGAL EFFECT OF THIS WAIVER. BORROWER FURTHER CERTIFIES THAT NO PERSON HAS REPRESENTED TO IT , EXPRESSLY OR OTHERWISE, THAT LENDER OR ANY OTHER PERSON WOULD NOT, IN THE EVENT OF A LEGAL PROCEEDING , SEEK TO ENFORCE THE FOREGOING WAIVER.
 
[Remainder of Page Intentionally Blank]

 
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IN WITNESS WHEREOF , the parties have executed this Agreement as of the day and year written above.
 
 
Lender:
 
 
THE BANK OF TAMPA ,
 
a Florida banking corporation
 
 
 
By:  /s/David E. Brown                               
       David E. Brown, Senior Vice President
 
STATE OF FLORIDA
 
COUNTY OF HILLSBOROUGH
 
THE FOREGOING INSTRUMENT was acknowledged before me this _ day of June, 2016, David E. Brown, as a Senior Vice President of The Bank of Tampa, a Florida banking corporation, on behalf of the corporation. He/she o is personally known to me or o has produced ____________ , as identification.
 
 
 
_____________________________
Notary Public
 
 
_____________________________
(Printed Name)
 
My commission expires:
_____________________________
(Rank or Serial Number)
 
 [Remainder of Page Intentionally Blank]

 
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Borrower:
 
 
BOVIE MEDICAL CORPORATION,
a Delaware corporation
 
 
 
By: /s/Robert L. Gershon                               
     Robert L. Gershon, Chief Executive Officer
STATE OF NEW YORK
 
COUNTY OF ______
 
THE FOREGOING INSTRUMENT was acknowledged before me this _ day of June, 2016, Robert L. Gershon, as Chief Executive Officer of Bovie Medical Corporation, a Delaware corporation, on behalf of the corporation. He/she o is personally known to me or o has produced ____________ , as identification.
 
 
 
_____________________________
Notary Public
 
 
_____________________________
(Printed Name)
 
My commission expires:
_____________________________
(Rank or Serial Number)
 
 

 
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