Exhibit 10.5
FIRST AMENDMENT TO CONVERTIBLE SENIOR
SUBORDINATED ZERO-COUPON PROMISSORY NOTE
THIS FIRST AMENDMENT TO CONVERTIBLE
SENIOR SUBORDINATED ZERO-COUPON PROMISSORY NOTE (this
“Amendment”) is made and entered into as of the 10
th day
of December, 2007, by and among Third Wave Technologies, Inc., a
Delaware corporation (the “Company”), and Stark Onshore
Master Holding LLC (“Holder”).
STATEMENT OF PURPOSE
The Company is indebted to Holder
pursuant to that certain Convertible Senior Subordinated
Zero-Coupon Promissory Note dated December 20, 2006, in the
original principal amount at maturity of $20,000,000 (the
“Note”). The Company and Holder have agreed to certain
modifications and amendments to the Note as provided for
herein.
NOW, THEREFORE, in consideration of
the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
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Amendment of Section 4
. Section 4 of the Note is hereby amended by adding the
following clauses at the end thereof:
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(xii) |
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any “event of default”
under (and as defined in) any agreement evidencing Subordinated
Indebtedness; or
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(xiii) |
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the validity of or the Securities
Purchase Agreement or this Note shall be contested by any
legislative, executive or judicial body of any jurisdiction, or any
treaty, law, regulation, communiqué, decree, ordinance or
policy of any jurisdiction shall purport to render any material
provision of the Securities Purchase Agreement or this Note invalid
or unenforceable or shall purport to prevent or materially delay
the performance or observance by the Company of its obligations
under the Securities Purchase Agreement or this Note;
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(xiv) |
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there is a failure to perform in
any agreement to which the Company is a party with a third party or
parties resulting in a right by such third party or parties to
accelerate the maturity of any Indebtedness in an amount in excess
of $500,000, and such acceleration right is exercised;
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(xv) |
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the Company makes any payment on
account of Subordinated Indebtedness except as permitted by the
Subordination Agreement;
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(xvi) |
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Any license, permit or approval
held by the Company from any Government Authority shall have been
suspended, canceled or revoked and such suspension, cancellation or
revocation could reasonably be expected to have a Material Adverse
Effect, and such suspension, cancellation or revocation .shall not
have been cured within 30 days;
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