Exhibit 10.40
RATIFICATION OF GUARANTY
(Exim Bank-Guaranteed Line of Credit)
THIS RATIFICATION OF GUARANTY (the "RATIFICATION") is effective on
November 30, 2003, by CDC ACQUISITION CORP. ("GUARANTOR"), in favor of BANK OF
AMERICA, N.A. (the "LENDER").
RECITALS
A. Guarantor has executed a Guaranty dated April 3, 2001 (the "GUARANTY")
in favor of Lender in connection with a Loan Agreement (Exim Bank-Guaranteed
Line of Credit) dated as of June 1, 2000 as amended by a First Amendment to Loan
Agreement dated as of April 3, 2001, as amended by a Second Amendment to Loan
Agreement (Exim Bank- Guaranteed Line of Credit) dated as of June 30, 2001
between Drew Scientific, Inc., d/b/a Danam Electronics, formerly known as MWI,
Inc. d/b/a Danam Electronics ("BORROWER") and Lender (collectively, the
"ORIGINAL LOAN AGREEMENT"). The Original Loan Agreement was amended and restated
by that certain Amended and Restated Loan Agreement (Ex-Im Bank Guaranteed Line
of Credit) effective as of September 30, 2001 by and between Borrower and
Lender, as further amended by that certain First Amendment to Amended and
Restated Loan Agreement (Ex-Im Bank Guaranteed Line of Credit) effective on
January 7, 2002 between Borrower and Lender, as further amended by that certain
Second Amendment to Amended and Restated Loan Agreement (Ex-Im Bank Guaranteed
Line of Credit) dated as of July 8, 2002 (but effective on June 30, 2002), as
further amended by that certain Third Amendment to Amended and Restated Loan
Agreement (Ex-Im Bank Guaranteed Line of Credit) dated as of September 5, 2002
(but effective on August 30, 2002) and further amended by that certain Fourth
Amendment to Amended and Restated Loan Agreement (Ex-Im Bank Guaranteed Line of
Credit) dated as of October 2, 2002 (but effective on September 30, 2002), and
as further amended by that certain Fifth Amendment to Amended and Restated Loan
Agreement (Ex-Im Bank-Guaranteed Line of Credit) dated as of September 30, 2003
(collectively, the "AMENDED AND RESTATED LOAN AGREEMENT"). Borrower executed a
Seventh Amended and Restated Revolving Promissory Note dated effective on
September 30, 2003 made payable to the order of Lender in the original principal
amount of $2,000,000.00 (the "ORIGINAL NOTE").
B. Borrower has requested that Lender amend the Amended and Restated Loan
Agreement and the Original Note to extend the maturity date of the Original Note
from November 30, 2003 to May 31, 2004 and to modify certain other terms
thereof. Lender is willing to make such changes subject to Guarantor giving
Lender the representations, assurances and other agreements hereinafter set
forth.
C. Lender and Borrower shall execute (i) a Sixth Amendment to Amended and
Restated Loan Agreement (the "SIXTH AMENDMENT"); and (ii) a Eighth Amended and
Restated Revolving Promissory Note (the "EIGHTH AMENDED NOTE"). Guarantor and
Drew Scientific Group PLC shall ratify their respective guaranties of the Note.
AGREEMENT
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
because Guarantor will benefit from some of the changes to the Amended and
Restated Loan Agreement, Guarantor does hereby agree as follows:
1. The Recitals hereinabove contained are true and correct and are made a
part hereof.
2. Guarantor acknowledges receipt of the Sixth Amendment and agrees,
ratifies and confirms that the Guaranty remains in full force and effect with
respect to (a) the Original Loan Agreement as amended and restated by the
Amended and Restated Loan Agreement as amended by the Sixth Amendment and (b)
the Eighth Amended Note.
3. Guarantor represents and warrants unto Lender that (i) the Guaranty and
all other documents executed by Guarantor in connection therewith are valid and
binding obligations of Guarantor, enforceable in accordance with their terms;
(ii) the Eighth Amended Note shall continue to be guaranteed by the Guarantor
pursuant to the Guaranty; (iii) all of the terms, covenants, conditions,
representations, warranties and agreements contained in the Guaranty are hereby
ratified and confirmed in all respects; and (iii) no oral representations,
statements, or inducements have been made by Lender with respect to the Eighth
Amended Note, the Sixth Amendment, this Ratification or the Guaranty.
IN WITNESS WHEREOF, the Guarantor has caused this Ratification to be
executed as of the day and year first above written.
GUARANTOR:
CDC ACQUISITION CORP.
BY: /s/ K. R. Drew
----------------------
Name: K. R. Drew
Title: Director
EFFECTIVE: November 30, 2003
EXECUTED this 8th day of December, 2003.
STATE OF Texas
COUNTY OF Dallas
The foregoing was executed and acknowledged before me this 8th day of December,
2003 by Keith Drew, as Director of CDC Acquisition Corp. Such person is
personally known to me or produced _____________ as identification and did/did
not take an oath.
[SEAL] Katherine A Chavez
Notary Public State of Texas
Print Name: Katherine A Chavez
My Commission expires: 11-12-2006
Commission No:_____________________
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