Exhibit 10.40
AGREEMENT TO AMEND NOTES
This Agreement to Amend Notes (the "Agreement") is entered into as of
September __, 2003 by and among Xxxxxx Respiratory Care Inc., a California
corporation (the "Company"), and a majority of the holders of the outstanding
principal amount of those certain Unsecured Senior Promissory Notes due 2004
that are signatories hereto (the "Holders"). All capitalized terms used in this
Agreement not otherwise defined herein shall have the same meanings given to
such terms in the Notes.
R E C I T A L S
- - - - - - - -
WHEREAS, the Company has previously issued a series of Unsecured Senior
Promissory Notes due 2004 in an aggregate principal amount of $12,000,000 to the
holders set forth on Schedule A hereto (the "Notes");
WHEREAS, pursuant to Section 7 of the Notes, the Holders of a majority of
the outstanding principal amount of the Notes may amend all of the outstanding
Notes in the series by an agreement in writing with the Company;
WHEREAS, the Company wishes to obtain credit facility subject to the terms
and provisions of a Loan and Security Agreement by and among Parent, Xxxxx Fargo
Foothill, Inc., as the Arranger and Administrative Agent and the Lenders that
are signatory thereto and a Loan and Security Agreement by and among Parent, MW
Post Advisory Group, LLC, as the Administrative Agent and the Lenders that are
signatory thereto (collectively, the "Loan and Security Agreements");
WHEREAS, it is a condition to the making of loans under the Loan and
Security Agreements to Parent that the Company amend the Notes to extend the
maturity date of the Notes to March 31, 2008; and
WHEREAS, a majority of the Holders of the outstanding principal amount of
the Notes have agreed to amend the Notes.
A G R E E M E N T
- - - - - - - - -
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements of the parties contained herein, the parties hereby
agree as follows:
1. Amendments to the Notes. The opening paragraph of the Notes is hereby
amended to extend the Maturity Date of the Notes to March 31, 2008.
2. Scope. This Agreement shall have the effect of amending the Notes as
appropriate to express the agreements contained herein. In all other respects,
the Notes shall remain in full force and effect in accordance with their
respective terms.
3. Governing Law. In all respects, including all matters of construction,
validity and performance, this Agreement and the rights and obligations arising
hereunder shall be governed by, and construed and enforced in accordance with,
the internal laws of the State of California applicable to contracts made and
performed in such state (without regard to the choice of law or conflicts of law
principles there).
4. Counterparts; Facsimile. This Agreement may be executed in any number
of counterparts and by facsimile, each of which shall be deemed an original, but
all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
first written above.
THE COMPANY: XXXXXX RESPIRATORY CARE INC.,
a California corporation
By:
-------------------------------------
Name:
Title:
HOLDERS: FS EQUITY PARTNERS IV, L.P.,
a Delaware limited partnership
$10,860,000 principal
amount of the Notes By: FS Capital Partners LLC
Its: General Partner
By:
--------------------------------
Name:
Title:
$1,086,000 principal THE XXXXX XXXXXX SEPARATE
amount of the Notes PROPERTY TRUST U/D/T DATED
JULY 17, 1998
By:
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Xxxxx Xxxxxx Xxxxxx
Trustee
SCHEDULE A
PRINCIPAL AMOUNT
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HOLDER OF NOTE
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FS Equity Partners IV, L.P. $ 10,860,000
The Xxxxx Xxxxxx Separate Property Trust $ 1,086,000
U/D/T dated July 17, 1997
Xxxx Xxxxxx $ 54,000
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Aggregate Principal Amount: $ 12,000,000
