EXHIBIT 10.5
SECOND AMENDMENT TO PROMISSORY NOTE
-----------------------------------
(Xxxxxx)
This Second Amendment to Promissory Note dated as of May __, 2002 (the
"SECOND AMENDMENT"), is executed by and between X.X. Xxxxxx Group Inc., a
Delaware corporation (the "BORROWER") and Xxxxxx Financial Services, Inc., a
North Carolina corporation (the "LENDER").
RECITALS
A. As of March 27, 2002, the Borrower executed a certain promissory
note (the "XXXXXX PROMISSORY NOTE") that was payable to the Lender.
B. As of April 11, 2002, the Borrower and the Lender executed a certain
First Amendment to Promissory Note (the "FIRST AMENDMENT"; the Xxxxxx Promissory
Note, as amended by the First Amendment, herein referred to as the "ORIGINAL
NOTE") amending the Xxxxxx Promissory Note in certain respects as set forth
therein.
C. The Borrower and the Lender now desire to further amend the Original
Note as hereinafter set forth.
AGREEMENT
In consideration of the agreements contained herein, the Borrower and
the Lender hereby agree as follows:
Section 1. DEFINITIONS. All capitalized terms not otherwise defined
herein shall have the meanings set forth in the Original Note. The first two
paragraphs of Section 1 of the Original Note are hereby incorporated by
reference herein. The term "Note" as defined in Section 1 of the Original Note
is hereby amended to mean the Xxxxxx Promissory Note, as the same was amended by
the First Amendment, as the same is further amended by this Second Amendment,
and as the same may be further amended or modified from time to time.
Section 2. AMENDMENTS. All references in the Original Note and the
Schedules thereto to the maximum principal amount of the Original Note are
hereby amended to refer to a maximum principal amount of THREE MILLION THREE
HUNDRED THOUSAND AND NO/100 DOLLARS ($3,300,000.00). All references in the
Original Note and the Schedules thereto to the maximum amount of the Lender`s
Commitment are hereby amended to refer to a maximum amount of THREE MILLION
THREE HUNDRED THOUSAND AND NO/100 DOLLARS ($3,300,000.00), provided that,
notwithstanding anything to the contrary contained in the Note, it is agreed
that the $1,500,000.00 in additional Loan availability being provided by the
Lender to the Borrower contemporaneously with the execution of this Second
Amendment (a) shall be subject to the conditions precedent set forth in Section
8(b) of the Note, and (b) shall be subject to the further condition precedent
that the Lender, acting in its sole discretion, shall have approved the making
of all such Loans to the Borrower.
Section 3. REPRESENTATIONS AND WARRANTIES. The Borrower represents and
warrants to the Lender that: (a) there exists no Default or Event of Default or
condition or act that constitutes, or with notice or lapse of time would
constitute, an Event of Default under the Note; (b) the Borrower has conformed
and complied in all material respects with the covenants, agreements and
conditions contained in the Note required to be conformed and complied with, and
(c) the representations of the Borrower contained in the Note were true and
correct when made and are true and correct in all material respects at the time
of delivery of the Second Amendment.
Section 4. EFFECT OF AMENDMENT. Except as expressly stated herein, (a)
the Note and the documents executed in connection therewith (including the
Security Documents) are and shall be unchanged and remain in full force and
effect, and (b) this Second Amendment shall not constitute a waiver of any
Default or Event of Default or a waiver of the right of the Lender to insist
upon compliance with any term, covenant, condition, or provision of the Note and
such documents, as amended hereby. Except as specifically stated herein, the
execution and delivery of this Second Amendment shall in no way release, harm or
diminish, impair, reduce or otherwise affect, the respective obligations and
liabilities under the Note and such documents, all of which shall continue in
full force and effect.
Section 5. MISCELLANEOUS. This Second Amendment is a contract made
under and shall be construed in accordance with and governed by the laws of the
state of New York. This Second Amendment shall benefit and bind the parties
hereto and their respective assigns, successors and legal representatives. This
Second Amendment may be executed in two or more counterparts, and it shall not
be necessary that the signatures of all parties hereto be contained on any one
counterpart hereof; each counterpart shall be deemed an original, but all of
which together shall constitute one and the same instrument. All titles or
headings to the sections or other divisions of this Second Amendment are only
for the convenience of the parties and shall not be construed to have any effect
or meaning with respect to the other content of such sections, subsections or
the divisions, such other content being controlling as to the agreement between
the parties hereto.
[SIGNATURE PAGES FOLLOW]
2
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed as of the date first above written.
X.X. XXXXXX GROUP INC.
By:_____________________________
Name:
Title:
S-1
XXXXXX FINANCIAL SERVICES, INC.
By:_____________________________
Name:
Title:
s-2
