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EXHIBIT 10.40
ACKNOWLEDGEMENT, CONSENT AND AMENDMENT
ACKNOWLEDGEMENT, CONSENT AND AMENDMENT, dated as of February 29, 1996
(this "Amendment"), to the documents listed on Schedule 1 hereto (the
"Documents") made by each of the corporations that are signatories hereto (each
a "Grantor"), in favor of CHEMICAL BANK, a New York banking corporation, as
agent (in such capacity, the "Agent") for the lenders (the "Lenders") from time
to time parties to the Credit Agreement referred to below.
W I T N E S S E T H
WHEREAS, Xxxx Electronics Group, Inc. (f/k/a Xxxx Electronics, Inc.)
(the "Borrower"), Xxxx Electronics Corp. (f/k/a Xxxx X.X. Holdings, Inc.)
("Holdings"), the Lenders and the Agent entered into the Credit Agreement dated
as of February 26, 1993 (as previously amended, and as the same may be further
amended, supplemented or otherwise modified from time to time, the "Original
Credit Agreement"); and
WHEREAS, to secure and guarantee the obligations of the Borrower under
the Original Credit Agreement, each Grantor entered into Documents to which it
is a party; and
WHEREAS, the Original Credit Agreement was amended and restated on May
23, 1994 (the "Amended and Restated Credit Agreement"); and
WHEREAS, the Amended and Restated Credit Agreement is being refinanced
by a new Credit Agreement dated as of the date hereof, (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement")
among the Borrower, Holdings, the Agent and the Lenders; and
WHEREAS, it is a condition precedent to the making of the Loans under
the Credit Agreement that each Grantor execute and deliver this Amendment to
confirm that the security interests granted under the Documents secure the
Obligations of the Borrower under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other valuable consideration, the receipt of which is
hereby acknowledged, each Grantor and the Agent hereby agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, terms which
are defined in the Credit Agreement and used herein are so used as so defined.
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SECTION 2. Amendment of Documents. All references to the terms "Notes"
and "Loans" in the Documents shall be amended to be references to Notes and
Loans, respectively, as defined in the Credit Agreement. Each Grantor further
agrees that the term "Lenders" in the Documents includes any lenders from time
to time parties to the Credit Agreement, that the term "Obligations" means
Obligations as defined in the Credit Agreement, and that the Documents shall be
amended accordingly.
SECTION 3. Representations and Warranties. Each Grantor represents
and warrants that upon the execution and delivery of this Amendment, the
Documents, as acknowledged, consented to, and amended hereby, shall constitute
a valid and continuing lien on and, to the extent provided therein, perfected
security interest in, the collateral referred to in the Documents, as
acknowledged, consented to, and amended hereby, in favor of the Agent for the
ratable benefit of the Lenders.
SECTION 4. Acknowledgement and Consent. Each Grantor hereby:
(a) acknowledges and consents to the execution, delivery and
performance of (i) the Credit Agreement, as amended, supplemented or otherwise
modified from time to time, and (ii) all of the documents and transactions
contemplated thereby;
(b) agrees that such execution, delivery and performance shall not in
any way affect such Grantor's obligations under any Loan Document (as defined
in the Credit Agreement) to which such Grantor is a party, which obligations on
the date hereof remain absolute and unconditional and are not subject to any
defense, set-off or counterclaim; and
(c) grants to the Agent, for the ratable benefit of the Lenders, and
pursuant to the terms and conditions of the Documents a lien on and security
interest in all collateral described in the Documents as security for the
Obligations (as defined in the Credit Agreement).
SECTION 5. Miscellaneous. (a) Each amendment contained herein shall
not constitute an amendment of any provision of the Documents for any purpose
except as expressly set forth herein.
(b) This Amendment may be executed in any number of separate
counterparts, and all of said counterparts taken together shall constitute one
and the same instrument.
(c) This Amendment shall become effective when executed by each
Grantor and the Agent.
(d) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective duly authorized offices as of the
date first written above.
XXXX TECHNOLOGY, INC.
BY: /s/ XXXXX X. XXXXXXX
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Name: XXXXX X. XXXXXXX
Title: Assistant Secretary
XXXX HOLDINGS U.S., INC.
BY: /s/ XXXXX X. XXXXXXX
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Name: XXXXX X. XXXXXXX
Title: Assistant Secretary
CONNECTOR SYSTEMS (U.S.) INC.
BY: /s/ XXXXX X. XXXXXXX
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Name: XXXXX X. XXXXXXX
Title: Assistant Secretary
HARBOR ELECTRONICS, INC.
BY: /s/ XXXXX X. XXXXXXX
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Name: XXXXX X. XXXXXXX
Title: Assistant Secretary
SOCKET EXPRESS, INC.
BY: /s/ XXXXX X. XXXXXXX
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Name: XXXXX X. XXXXXXX
Title: Assistant Secretary
ELECTRONICS CORP.
BY: /s/ XXXXX X. XXXXXXX
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Name: XXXXX X. XXXXXXX
Title: Assistant Secretary
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XXXX ELECTRONICS GROUP, INC.
By: /s/ XXXXX X. XXXXXXX
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Name: XXXXX X. XXXXXXX
Title: Assistant Secretary
SPECIALTY CONNECTOR COMPANY
By: /s/ XXXXX X. XXXXXXX
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Name: XXXXX X. XXXXXXX
Title: Assistant Secretary
XXXX EMPLOYMENT COMPANY
By: /s/ XXXXX X. XXXXXXX
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Name: XXXXX X. XXXXXXX
Title: Assistant Secretary
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Schedule 1 to
Acknowledgement,
Consent and Amendment
DOCUMENTS
The Borrower Security Agreement dated as of February 26, 1993 by Xxxx
Electronics, Inc. in favor of Chemical Bank, as Agent
The Holdings Pledge Agreement dated as of February 26, 1993 by Xxxx XX
Holdings, Inc. in favor of Chemical Bank, as Agent
The Borrower Domestic Pledge Agreement dated as of February 26, 1993 by
Xxxx Electronics, Inc., and Xxxx Employment Company in favor of Chemical Bank,
as Agent
The Intermediate Holdings Pledge Agreement dated as of February 26,
1993 by Xxxx Holdings U.S., Inc. in favor of Chemical Bank, as Agent
The Note Pledge and Assignment Agreement dated as of February 26, 1993
by Xxxx Electronics, Inc. in favor of Chemical Bank, as Agent
The Open-End Mortgage and Security Agreement dated as of February 26,
1993 by Xxxx Electronics, Inc. in favor of Chemical Bank, as Agent
The [DuPont] Assignment dated as of February 26, 1993 by Xxxx
Electronics, Inc. in favor of Chemical Bank, as Agent
The Foreign Subsidiaries Guarantee dated as of February 26, 1993 by
Xxxx Electronics Distributor, B.V., Connector Systems Technology, N.V., Xxxx
Electronics Manufacturing, B.V., Xxxx Electronics (France) S.A., Xxxx
Electronics Singapore Pte Ltd., Xxxx Electronics Japan, K.K., Connector
Systems, B.V., Xxxx Connector Systems, S.L., Xxxx Electronics Gmbm, Xxxx
Electronics S.r.l., Connector Systems Limited and Xxxx Electronics Hong Kong
Limited in favor of Xxxx Electronics, Inc.
The Patent Security Agreement dated as of February 26, 1993 by Xxxx
Technology, Inc., Harbor Electronics, Inc., and Socket Express, Inc. in favor
of Chemical Bank, as Agent
The Trademark Security Agreement dated as of February 26, 1993 by Xxxx
Technology, Inc. and Harbor Electronics, Inc. in favor of Chemical Bank, as
Agent
The Domestic Subsidiary Security Agreement dated as of February 26,
1993 by Xxxx Technology, Inc., Harbor Electronics, Inc., Socket Express, Inc.,
Specialty Connector Company, and Xxxx Employment Company in favor of Chemical
Bank, as Agent
The AT&T Assignment dated as of May 23, 1994 by Xxxx Electronics, Inc.,
in favor of Chemical Bank, as Agent
The Assignment and Assumption Agreement dated as of March 1, 1994 among
Mold-Con, Inc., Tre-Tec Engineering Corporation, Contex Electronics, Inc.,
Harbor Electronics, Inc. and Xxxx Electronics, Inc.
The Borrower Trademark Security Agreement dated as of May 23, 1994 by
Xxxx Electronics, Inc. in favor of Chemical Bank, as Agent
The Borrower Patent Security Agreement dated as of May 23, 1994 by Xxxx
Electronics, Inc. in favor of Chemical Bank, as Agent
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The Foreign Pledge Agreements
- Pledge Agreement dated as of March 1, 1993 between Xxxx Electronics,
Inc. and Chemical Bank, as Agent, of Connector Systems, Korea Ltd.
shares. [Korea]
-Pledge Agreement dated as of March 1, 1993 between Xxxx Holdings U.S.
Inc. and Chemical Bank, as Agent, of Connector Systems B.V. shares
[Netherlands]
- Pledge Agreement dated as of March 1, 1993 between Connector Systems
B.V. and Xxxx Electronics, Inc. of Xxxx Electronics Distributor B.V.
and Xxxx Electronics Manufacturing B.V. shares [Netherlands]
- Pledge Agreement dated as of February 26, 1993 between Xxxx Holdings
U.S. Inc. and Chemical Bank, as Agent, of Connector Systems
Technology N.V. shares [Netherlands]
- Pledge Agreement dated as of March 20, 1993 between Xxxx Holding
U.S., Inc. and Chemical Bank, as Agent, of Xxxx Connector Systems S.L.
shares [Spain]
- Pledge Agreement dated as of February 26, 1993 between Xxxx Holding
U.S., Inc. and Chemical Bank, as Agent, of Xxxx Connector Systems, S.L.
shares [France]
- Pledge Agreement dated as of April 1, 1993 between Xxxx Holding U.S.,
Inc. and Chemical Bank, as Agent, of Xxxx Connector Systems Gmbh
shares [Germany]
- Pledge Agreement dated as of February 26, 1993 between Xxxx Holding
U.S., Inc. and Chemical Bank, as Agent, of CBOS Electronics AB shares
[Sweden]
- Pledge Agreement dated as of February 26, 1993 between Xxxx Holding
U.S., Inc. and Chemical Bank, as Agent, of Bergtronics Oy shares
[Finland]
- Pledge Agreement dated as of February 26, 1993 between Xxxx Holding
U.S., Inc. and Chemical Bank, as Agent, of Xxxx Electronics S.A. shares
[Switzerland]
- Pledge Agreement dated as of February 26, 1993 between Xxxx Holding
U.S., Inc. and Chemical Bank, as Agent, of Xxxx Electronics S.r.l.
shares [Italy]
- Pledge Agreement dated as of February 26, 1993 between Xxxx Holding
U.S., Inc. and Chemical Bank, as Agent, of Connector Systems Limited
shares [England]
- Pledge Agreement dated as of February 26, 1993 between Xxxx Holding
U.S., Inc. and Chemical Bank, as Agent, of Xxxx Electronics Canada,
Inc. shares [Canada]
- Pledge Agreement dated as of February 26, 1993 between Xxxx Holding
U.S. and Chemical Bank, as Agent, of Xxxx Electronics Hong Kong Limited
shares [Hong Kong]
- Pledge Agreement dated as of February 26, 1993 between Xxxx Holding
U.S., Inc. and Chemical Bank, as Agent, of Xxxx Electronics Singapore
PTE Ltd. shares [Singapore]
- Pledge Agreement dated as of February 26, 1993 between Connector
Systems U.S. Inc. and Chemical Bank, as Agent, of Xxxx Electronics
Taiwan Ltd. shares [Taiwan]
