EXHIBIT 10.3
AMENDMENT TO SUBORDINATION AGREEMENT
THIS AMENDMENT TO SUBORDINATION AGREEMENT (this "SUBORDINATION AGREEMENT
AMENDMENT") is dated as of , 1998. The parties to it are MAXXIM MEDICAL, INC.
(the "SUBORDINATE CREDITOR"), a Delaware corporation, XXXXXX HEALTHCARE, INC.
(formerly known as Lasermedics, Inc.) (the "BORROWER"), a Texas corporation, and
COMERICA BANK - TEXAS ("SENIOR CREDITOR"), a Texas banking association.
RECITALS:
A. Borrower and Senior Creditor have entered into that certain Loan
Agreement dated as of May 20, 1996 (as the same has been amended, restated,
modified, replaced and supplemented from time to time, the "ORIGINAL LOAN
AGREEMENT"), pursuant to which, among other things, Senior Creditor agreed to
provide certain financial accommodations to Borrower.
B. Borrower and Senior Creditor have executed and delivered an Amended and
Restated Loan Agreement (as the same may be amended, restated, modified,
replaced and supplemented from time to time, the "LOAN AGREEMENT"), dated as of
June 30, 1997, providing for, among other things, an increase in the maximum
principal amount of Indebtedness to an amount less than $10,000,000, and
otherwise amending and restating the Original Loan Agreement.
C. As a condition, among others, for the extension of credit under the
terms of the Loan Agreement and the other Senior Loan Documents (as that term is
defined in the Loan Agreement), Subordinated Creditor, Senior Creditor and
Borrower entered into that certain Subordination Agreement (as the same has
heretofore been amended, restated, modified, replaced and supplemented from time
to time, the "ORIGINAL SUBORDINATION AGREEMENT").
D. Borrower has requested Senior Creditor to enter into a Fourth Amendment
to Amended and Restated Loan Agreement, substantially in the form attached
hereto as EXHIBIT A and incorporated herein by reference for all purposes.
E. Senior Creditor is unwilling to do unless and until Subordinate
Creditor enters into this Subordination Agreement Amendment to make certain
changes to the Original Subordination Agreement, all as is more fully described
hereinbelow, which shall control over any inconsistencies or conflicts with the
foregoing recitals.
1
AGREEMENTS:
In consideration of the premises and the mutual agreements herein set
forth, the patties hereto hereby agree as follows:
1. DEFINITION OF SENIOR CLAIMS AMENDED. The definition of "Senior Claims"
contained in Section 1 of the Original Subordination Agreement is hereby amended
by deleting the amount "$12,000,000" where it appears therein and substituting
therefor the amount "$14,000,000" where it appears therein.
2. GENERAL RATIFICATION. The parties hereto expressly acknowledge, confirm
ratify and agree that, except as expressly modified hereby, all terms of the
Original Subordination Agreement remain in full force and effect.
3. CERTAIN DEFINITIONS AND REFERENCES. Terms used but not defined herein,
but which are defined in the Original Subordination Agreement or in the other
Senior Loan Documents (as that term is defined in the Loan Agreement), shall
have the meanings herein ascribed to them therein. The term "Agreement" as used
in the Original Subordination Agreement shall mean the Original Subordination
Agreement, as hereby amended.
4. EXPENSES. Borrower hereby agrees to pay upon demand all attorneys' fees
and expenses reasonably incurred by Senior Creditor in connection with the
enforcement of its rights under this Subordination Agreement Amendment.
5. MISCELLANEOUS. This Subordination Agreement Amendment (a) shall bind
and benefit Borrower and, except as herein expressly limited, Bank, and their
respective receivers, trustees, successors and assigns (PROVIDED, that Borrower
may not assign its rights hereunder without the prior written consent of Bank);
(b) may be modified or amended only by a writing signed by each party; (c) SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE APPLICABLE LAWS OF THE STATE
OF TEXAS AND THE UNITED STATES OF AMERICA FROM TIME TO TIME IN EFFECT; (d) may
be executed in several counterparts, and by the parties hereto in separate
counterparts, and each counterpart, when executed and delivered, shall
constitute an original agreement enforceable against all who signed it without
production of or accounting for any other counterpart, and all separate
counterparts shall constitute the same agreement and (e) embodies the entire
agreement and understanding between the parties with respect to modifications of
instruments provided for herein and supersedes all prior conflicting or
inconsistent agreements, consents and understandings relating to such subject
matter. The parties hereto acknowledge and agree that there are no oral
agreements among any of them with respect to the transactions contemplated by
the Senior Loan Documents which have not been incorporated in this Subordination
Agreement Amendment or in the Senior Loan Documents. If any provision of this
Subordination Agreement Amendment should be determined by any court of competent
jurisdiction to be illegal, invalid or unenforceable under present or future
laws, the legality, validity and enforceability of the remaining provisions of
this Subordination Agreement Amendment shall not be
2
affected thereby. Each waiver in this Subordination Agreement Amendment is
subject to the overriding and controlling rule that it shall be effective only
if and to the extent that (a) it is not prohibited by applicable law and (b)
applicable law neither provides for nor allows any material sanctions to be
imposed against Bank for having bargained for and obtained it. Wherever the term
"including" or a similar term is used in this Subordination Agreement Amendment,
it shall be read as if it were "including by way of example only and without in
any way limiting the generality of the clause or concept referred to." Any
exhibits, appendices and annexes described in this Subordination Agreement
Amendment as being attached to it are hereby incorporated into it. The headings
in this Subordination Agreement Amendment shall be accorded no significance in
interpreting it.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement effective as of the date first above-written.
"SUBORDINATE CREDITOR"
MAXXIM MEDICAL, INC., a Delaware corporation
By:
Name:
Title:
3
"BORROWER"
XXXXXX HEALTHCARE, INC., a Texas
corporation
By: /S/ XXXXXXX X. XXXXXXX
Name: XXXXXXX X. XXXXXXX
Title: PRESIDENT
4
"SENIOR CREDITOR"
COMERICA BANK - TEXAS, a Texas banking
corporation
By: /S/ XXXXX X. XXXXXX
Xxxxx X. XxXxxx, Vice President
ATTACHMENTS:
EXHIBIT A - Fourth Amendment to Amended and Restated Loan Agreement
5
THE STATE OF TEXAS ss.
ss.
COUNTY OF XXXXXX xx.
This instrument was acknowledged before me on , 1998, by of MAXXIM
MEDICAL, INC., a Delaware corporation, on behalf of said corporation.
Notary Public in and for the State of TEXAS
Printed Name:
My Commission Expires:
THE STATE OF TEXAS ss.
ss.
COUNTY OF XXXXXX xx.
This instrument was acknowledged before me JUNE 5 on , 1998, by XXXXXXX X.
XXXXXXX, PRESIDENT of XXXXXX HEALTHCARE, INC., a Texas corporation, on behalf of
said corporation.
/S/ N. H. XXXXXXXX
Notary Public in and for the State of TEXAS
Printed Name: XXXX X. XXXXXXXX
My Commission Expires: 10-18-2001
6
THE STATE OF TEXAS ss.
ss.
COUNTY OF XXXXXX xx.
This instrument was acknowledged before me on _____________, 1998, by
Xxxxx X. XxXxxx, Vice President of COMERICA BANK - TEXAS, a Texas banking
association, on behalf of said association.
Notary Public in and for the State of TEXAS
Printed Name:
My Commission Expires:
7
