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EXHIBIT 10.58
FIRST AMENDMENT TO PROMISSORY NOTE
This First Amendment to Promissory Note (the "Amendment") is made as of
October 29, 1996, and amends and restates certain portions of that certain
Promissory Note dated as of May 24, 1996 with a principal amount of $2,000,000
(the "2,000,000 Note"), issued pursuant to that certain Credit Agreement dated
May 24, 1996 (the "Credit Agreement") between Interact Medical Technologies
Corporation, a Delaware corporation ("Borrower") and Xxxxxx Healthcare
Corporation, a Delaware corporation ("Lender"). Capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in the $2,000,000 Note.
RECITALS
A. Lender and Borrower desire to restate certain terms of the
$2,000,000 Note;
B. This Amendment is executed pursuant to Section 6.04 of the Credit
Agreement, which permits the amendment of any of the notes issued pursuant to
the Credit Agreement with the signatures of both Lender and Borrower.
AMENDMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Amendment to the $2,000,000 Note. The second sentence of the second
paragraph of the $2,000,000 Note is hereby amended and restated in its entirety
as follows:
"If the closing date for the Borrower's IPO occurs before December 31,
1996, then immediately following such closing the principal amount,
together with all accrued interest, shall be converted into Common
Stock at the price to the public for shares of Common Stock issued in
the IPO as stated in the Registration Statement (the "IPO Price")."
2. Effect of Amendment; Conflicts. Except as amended and set forth
above, the $2,000,000 Note shall continue in full force and effect. In the event
of any conflict between the terms of the $2,000,000 Note and the terms of this
Amendment, the terms of this Amendment shall govern and control.
3. Further Assurances. The parties agree to execute such further
instruments, agreements and documents and to take such further action as may
reasonably be necessary to carry out the intent of this Amendment.
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4. Counterparts. This Amendment may be executed in any number of
counterparts, each which shall be deemed an original, and all of which together
shall constitute one instrument.
5. Severability. If one or more provisions of this Amendment are held
to be unenforceable under applicable law, such provision(s) shall be excluded
from this Amendment and the balance of the Amendment shall be interpreted as if
such provision(s) were so excluded and shall be enforceable in accordance with
its terms.
6. Entire Agreement. This Amendment, together with the $2,000,000 Note,
constitute the full and entire understanding and agreement among the parties
with regard to the subjects hereof and thereof.
7. Governing Law. This Amendment shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
8. Binding Effect. This Amendment shall be binding upon Lender and
Borrower pursuant to Section 6.04 of the Credit Agreement.
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IN WITNESS WHEREOF, this Amendment is hereby executed as of the date
first above written.
BORROWER:
INTERACT MEDICAL TECHNOLOGIES
CORPORATION, a Delaware corporation
By:_________________________________
Xxxxxx Xxxxxxxxxx,
Chief Financial Officer
LENDER:
XXXXXX HEALTHCARE CORPORATION, a
Delaware corporation
By:_________________________________
Xxx Xxxxxxxx,
Vice President
[SIGNATURE PAGE TO FIRST AMENDMENT TO
PROMISSORY NOTE]
