EXHIBIT 10.5
SECOND MODIFICATION TO CONVERTIBLE
SUBORDINATED PROMISSORY NOTE
THIS SECOND MODIFICATION TO CONVERTIBLE SUBORDINATED PROMISSORY NOTE (this
"Modification") dated as of June 5, 1998, between Xxxxxx Healthcare, Inc., a
Texas corporation (the "Company"), and Maxxim Medical, Inc., a Delaware
corporation (the "Holder"). Hereinafter, capitalized words and phrases used
herein which are defined in the Note (as such term is hereinafter defined) are
used herein as therein defined, unless otherwise indicated.
WITNESSETH :
WHEREAS, the Company issued to the Holder a $7,000,000 Convertible
Subordinated Promissory Note dated as of April 30, 1996 (the "Note") which was
previously modified by that certain First Modification To Convertible
Subordinated Note dated September 30, 1997;
WHEREAS, the Company intends to consummate a purchase agreement between
the Company and Delft Instruments ("Delft"), whereby the Company will acquire
Enraf Nonius, a wholly-owned subsidiary of Delft ("Enraf");
WHEREAS, in connection with the Enraf acquisition, the Company has
requested that the Holder execute an amendment (the "Subordination Amendment")
to that certain Subordination Agreement, dated as of April 30, 1996, by and
among the Holder, the Company and Comerica Bank -Texas (the "Subordination
Agreement"), which was previously amended on September 30, 1997, increasing the
amount of allowable indebtedness under the Senior Loan Documents (as defined in
the Subordination Agreement) from $12,000,000 to 14,000,000; and
WHEREAS, the parties hereto desire to modify the applicable provisions of
the Note.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
1. MODIFICATION OF THE NOTE. Section 6.7(b) of the Note is hereby deleted
and the following section is substituted therefor:
"(b) Funded Debt of the Company under the Senior Indebtedness
not exceeding $14,000,000 in aggregate principal amount at any one
time outstanding;"
2. CONSENT AND WAIVER. Holder hereby consents to the Company's incurrence
of certain debt in connection with the Enraf acquisition as shall be evidenced
by the notes to be issued by the Company (directly or indirectly through any of
its subsidiaries) to (i) Delft in the principal amount of no more than
$4,500,000, and (ii) the Bank of Artesia in the principal amount of no more than
$8,000,000, and the Company's guarantee of the debts of Xxxxxx BV. Holder waives
the event of default which may have otherwise occurred as a result of the
issuance of the notes or giving of the guarantee pursuant to Section 6.7 and 6.8
of the Note; provided, however, that the Holders's consent
and waiver hereunder shall not be construed as an agreement or acknowledgment to
subordinate the Note except as specifically provided by its terms or the
Subordination Agreement, as amended.
3. NO FURTHER EFFECT. Except as expressly modified hereby, the Note shall
remain in full force and effect.
4. GOVERNING LAW. This Modification shall be governed by and construed in
accordance with the laws of the State of Texas.
5. COUNTERPARTS; EFFECTIVENESS. This Modification may be signed in any
number of counterparts, each of which shall be an original, and with the effect
as if the signatures thereto and hereto were upon the same instrument. This
Modification shall be effective as of the date hereof when each of the parties
hereto shall have executed counterparts hereof.
6. ORAL AGREEMENTS. This Modification represents the final expression
between the parties with respect to the subject matter hereof, and may not be
contradicted by evidence of prior or contemporaneous oral agreement of the
parties.
IN WITNESS WHEREOF, the parties hereto have caused this Modification to be
executed as of the date first written above.
XXXXXX HEALTHCARE, INC.
a Texas corporation
By: /s/ XXXXXXX X. XXXXXXX
Xxxxxxx X. Xxxxxxx,
President and Chief Executive Officer
MAXXIM MEDICAL, INC.
a Delaware corporation
By:
Name:
Title:
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