EXHIBIT 5.1
INTELLECTUAL PROPERTY SECURITY AGREEMENT
THIS AGREEMENT is made as of December 10, 2004 by EMS Technologies Canada,
Ltd. ("EMS Canada") in favour of Bank of America, National Association (Canada
branch), as Canadian collateral agent for the Lenders in connection with the
Credit Agreement as defined below (the "the Secured Party").
WHEREAS EMS Canada has entered into a credit agreement made as of December
10, 2004 with Bank of America, National Association (Canada branch) (in its
capacity as Canadian administrative agent and funding agent for the Lenders),
the lenders party thereto from time to time (the "Lenders") and EMS
Technologies, Inc. (as amended, supplemented, restated or replaced from time to
time, the "Credit Agreement");
AND WHEREAS EMS Canada has agreed to grant to the Secured Party a security
interest in EMS Canada's intellectual property and other related assets by
entering into this agreement (as amended, supplemented, restated or replaced
from time to time, this "Security Agreement");
NOW THEREFORE, for good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), EMS Canada covenants,
acknowledges, represents and warrants as follows:
1. INTERPRETATION
Capitalized terms used but not defined in this Security Agreement
shall have the meanings set out in the Credit Agreement. In this Security
Agreement:
"COLLATERAL" means all Intellectual Property and all Records with respect
thereto and the Proceeds thereof, wherever located, and any item or part
thereof;
"CONFIDENTIAL INFORMATION" means trade secrets, confidential information
and confidential know-how which EMS Canada now or hereafter owns or in
which EMS Canada now or hereafter has an interest. Confidential
Information includes, without limitation, the following:
(i) all unpatented inventions;
(ii) all customer and supplier lists;
(iii) all unpublished studies and data, prototypes, drawings, design
and construction specifications and production, operating and
quality control manuals;
(iv) all marketing strategies and business plans;
(v) all current or proposed business opportunities; and
(vi) all documents, materials and media embodying other items of
Confidential Information;
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"COPYRIGHTS" means all copyrights that EMS Canada now or hereafter owns or
in which EMS Canada now or hereafter has an interest including, without
limitation, all copyrights in the works listed on Schedule "A". Copyrights
include, without limitation, all registrations and applications that have
been or shall be made or filed in the Canadian Copyright Office or any
similar office in any country in the world and all records thereof and all
reissues, extensions or renewals thereof.
"DESIGNS" means all industrial designs, design patents and other designs
that EMS Canada now or hereafter owns or in which EMS Canada now or
hereafter has an interest including, without limitation, all industrial
designs, design patents and other designs listed on Schedule "B". Designs
include, without limitation, all registrations and applications that have
been or shall be made or filed in the Canadian Industrial Design Office or
any similar office in any country in the world and all records thereof and
all reissues, extensions or renewals thereof.
"INTELLECTUAL PROPERTY" means Confidential Information, Copyrights,
Designs, Licence Agreements, Patents, Software and Trade-marks;
"LICENCE AGREEMENTS" means the Licensor Licence Agreements and the
Licensee Licence Agreements;
"LICENSEE LICENCE AGREEMENTS" means all agreements under which EMS Canada
has obtained or hereafter obtains rights or an option to acquire rights to
use any intellectual property owned by a third party including, without
limitation, those agreements listed on Schedule "C";
"LICENSOR LICENCE AGREEMENTS" means all agreements under which EMS Canada
has granted or hereafter grants to a Person rights or an option to acquire
rights to use any Intellectual Property including, without limitation,
those agreements listed on Schedule "D";
"MATERIAL INTELLECTUAL PROPERTY" means the Intellectual Property the
absence or loss of use which could reasonably be expected to have a
Material Adverse Effect.
"OBLIGATIONS" has the meaning assigned in the Credit Agreement;
"PATENTS" means all letters patent of invention and all applications for
letters patent, renewals, reissues, extensions, divisions, continuations
and continuations-in-part thereof which EMS Canada now or hereafter owns
or in which EMS Canada now or hereafter has an interest including, without
limitation, all letters patent, applications, renewals, reissues,
extensions, divisions, continuations and continuations-in-part thereof
listed on Schedule "E". Patents include, without limitation, all
registrations and applications that have been or shall be made or filed in
the Canadian Patent Office or any similar office in any country in the
world and all records thereof and all reissues, extensions or renewals
thereof.
"PERSON" is to be broadly interpreted and shall include an individual, a
corporation, a limited liability company, an unlimited liability company,
a partnership, a trust, an incorporated organization, a joint venture, the
government of a country or any political
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subdivision of a country, or an agency or department of any such
government, and the executors, administrators or other legal
representatives of an individual in such capacity;
"PPSA" means the Personal Property Security Act of the Province of
Ontario;
"PROCEEDS" means all fixtures, accounts, chattel paper, documents of
title, instruments, money, securities, proceeds, earnings, income,
royalties, rents, issues, profits and personal property in any form
derived directly or indirectly from any dealing with or use of any item or
part of the Collateral, or that indemnifies or compensates for such
property destroyed, damaged, infringed upon or used without authorization
and proceeds of Proceeds whether or not of the same type, class or kind as
the original Proceeds, and any item or part thereof;
"RECORDS" means:
(i) all copies and representations of Intellectual Property in
any form now known or in the future developed or discovered
including, without limitation, those on paper, magnetic and
optical media, and all working papers, notes, charts,
drawings, materials and diagrams created in the process of
developing the Intellectual Property;
(ii) all books, accounts, invoices, letters, papers, security
certificates, documents and other records in any form
evidencing or relating in any way to the Collateral;
(iii) all contracts, securities, instruments and other rights and
benefits in respect of the Collateral; and
(iv) any item or part of any of the preceding;
"SCHEDULE" means any schedule attached to this Security Agreement and all
such schedules shall form part of this Security Agreement.
"SECURITY INTEREST" has the meaning set forth in Section 2(a) hereof;
"SOFTWARE" means all computer programs and databases in whatever form and
on whatever medium those programs or databases are expressed, fixed,
embodied or stored from time to time, and the copyright therein which EMS
Canada now or hereafter owns or in which EMS Canada now or hereafter has
an interest in, including, without limitation, those listed on Schedule
"F". Software includes both the object code and source code versions of
each such program and all corrections, updates, enhancements,
translations, modifications, adaptations and new versions thereof together
with both the media upon or in which such software and databases are
expressed, fixed, embodied or stored (such as disks, diskettes, tapes and
semiconductor chips) and all flow charts, manuals, instructions,
documentation and other material relating thereto; and
"TRADE-MARKS" means all trade-marks that EMS Canada now or hereafter owns
or in which EMS Canada now or hereafter has an interest, including,
without limitation, those listed on Schedule "G". Trade-marks include,
without limitation, the following:
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(v) trade-marks, both registered and unregistered;
(vi) designs, logos, indicia, trade-names, corporate names,
company names, business names, trade styles and other source
or business identifiers;
(vii) fictitious characters; and
(viii) all registrations and applications that have been or shall be
made or filed in the Canadian Trade-marks Office or any
similar office in any country in the world and all records
thereof and all reissues, extensions, or renewals thereof.
Words and phrases defined in the PPSA and used without initial capitals in this
Security Agreement and the terms "instrument" and "chattel paper" have the
meanings assigned to them in the PPSA, unless the context otherwise requires.
2. GRANT OF SECURITY INTEREST
(a) As general and continuing security for the due payment and
performance of all Obligations, EMS Canada grants to the Secured
Party, by way of charge, a security interest (the "Security
Interest") in the Collateral;
(b) the last day of the term of each licence granted to EMS Canada
pursuant to the Licensee Licence Agreements shall be excepted from
the Security Interest and shall not form part of the Collateral. EMS
Canada shall stand possessed of that day in trust to assign and
dispose of it as the Secured Party directs; and
(c) if the granting of the Security Interest would result in a default
under any contract forming part of the Collateral, then the
attachment of the Security Interest to such contract shall be
postponed until the earlier of (a) such time as EMS Canada is able
to obtain, using reasonable efforts, the consent of the other
parties to such contract to the granting of the Security Interest
and (b) the occurrence of a default, under such contract and until
the earlier of (a) and (b) EMS Canada shall stand possessed of such
contract and shall hold it in trust to assign the same or dispose of
the same to any person as requested by the Secured Party. In order
that the full value of all such contracts may be realized for the
benefit of the Secured Party, EMS Canada shall at its expense and at
the request of the Secured Party from time to time, take all such
action and do or cause to be done all such things as shall, in the
reasonable opinion of the Secured Party, be necessary or proper in
order that all such contracts shall enure to the benefit of the
Secured Party.
3. REPRESENTATIONS AND WARRANTIES
EMS Canada represents and warrants to and in favour of the Secured
Party as follows:
(a) to the extent that any of the Schedules have been completed, they
contain complete and accurate lists of the Material Intellectual
Property of the type described in the applicable Schedule;
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(b) all applications, registrations and grants for any of the Material
Intellectual Property, including as identified in the Schedules, are
subsisting and are in good standing, and all required filings with
any governmental intellectual property office have been made and all
required filing, registration, maintenance and other fees have been
paid and, to the knowledge of EMS Canada, all applications and
registrations and grants of any of the Material Intellectual
Property are valid;
(c) to the knowledge of EMS Canada, the use of any of the Material
Intellectual Property by EMS Canada does not contravene any law or
violate or infringe upon the rights of any Person, and no such claim
has been made, except for those Trade-marks identified by an
asterisk in Schedule "G", which are subject to opposition
proceedings pursuant to the Trade-marks Act;
(d) except for rights granted under Licensor Licence Agreements, rights
retained by any licensor under Licensee Licence Agreements, Liens
granted to the Secured Party and Permitted Encumbrances, EMS Canada
is the sole legal and beneficial owner of the Material Intellectual
Property free and clear of all Encumbrances.
The Secured Party has relied upon each such representation and warranty
notwithstanding any investigation the Secured Party may have made.
4. COVENANTS
(a) EMS Canada shall use the Collateral and conduct its business in a
proper and efficient manner so as to preserve and protect the
Collateral, provided that it is acknowledged and agreed that EMS
Canada is under no obligation to use or continue to use any Material
Intellectual Property if it determines that such Material
Intellectual Property is no longer commercially beneficial in the
normal conduct of its business;
(b) to the extent it is commercially reasonable, EMS Canada shall duly
comply with all requirements of any governmental authority
applicable to any Collateral or its use and with all covenants,
terms or conditions upon which any Collateral is held or used;
(c) EMS Canada shall at all times do, execute, acknowledge and deliver
or cause to be done, executed, acknowledged and delivered all such
further acts, deeds, transfers, assignments, agreements and
assurances as the Secured Party may reasonably require in order to
give effect to the provisions of this Security Agreement;
(d) EMS Canada shall notify the Secured Party in writing:
(i) forthwith of any loss of or damage to any Material
Intellectual Property or to any Collateral that could
reasonably be expected to have a Material Adverse Effect;
(ii) forthwith of the failure of any account debtor or licensee to
pay any amount or perform any obligations due to EMS Canada in
respect of the
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Collateral, provided such failure could reasonably be expected
to have a Material Adverse Effect;
(iii) forthwith of any action or proceeding, including, without
limitation, any proceeding before any court, administrative
board or other tribunal, which, if determined adversely to it,
could reasonably be expected to have a Material Adverse Effect
on the financial condition of EMS Canada, any Collateral or
EMS Canada's rights in any Collateral; and
(iv) on December 10th each year and provide updated versions of the
Schedules, including all changes to the Material Intellectual
Property and License Agreements, including additional Material
Intellectual Property in which EMS Canada thereafter has
rights;
(e) EMS Canada shall:
(i) protect, defend and maintain the ownership, validity and
enforceability of the Material Intellectual Property, provided
that it is acknowledged and agreed that it is under no
obligation to use or continue to use any Material Intellectual
Property if it determines that such Material Intellectual
Property is no longer commercially beneficial in the normal
conduct of its business, or to pursue infringers or violators
of the Intellectual Property if in its reasonable judgment it
would not be commercially prudent to do so and the ownership,
validity and enforceability of the Material Intellectual
Property is not otherwise at risk;
(ii) in accordance with its prudent business judgment, apply to
register (to the extent registrable) with the Canadian
Intellectual Property Office any unregistered Material
Intellectual Property and any additional Material Intellectual
Property developed or acquired by it from time to time;
(iii) cause Persons who have access to the Confidential Information
to enter into non-disclosure agreements in a form acceptable
to the Secured Party, acting reasonably;
(iv) ensure that Licence Agreements executed by EMS Canada
adequately protect, in its reasonable business judgment, EMS
Canada's rights in the subject Intellectual Property;
(v) perform its obligations under Licence Agreements;
(vi) commence and prosecute, at its own expense, such suits,
proceedings or other actions for infringement, passing off,
unfair competition, dilution or other damage as are in its
reasonable business judgment necessary to protect the
Collateral;
(vii) diligently, at its own expense, enforce its rights under any
agreements which, in its reasonable business judgment, enhance
the value of and/or protect the Collateral;
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(f) EMS Canada shall, on request from the Secured Party, put all source
code for the Software owned by it in escrow with an escrow agent
acceptable to the Secured Party under a software escrow agreement
acceptable to the Secured Party acting reasonably;
(g) EMS Canada shall not, without the prior written consent of the
Secured Party, enter into any further material Licence Agreements
except in the ordinary course of business or if the entering into of
such Licence Agreement by EMS Canada would not reasonably be
expected to have a Material Adverse Effect; and
(h) EMS Canada appoints any officer or director or branch manager of the
Secured Party to be its attorney in accordance with the Powers of
Attorneys Act (Ontario) with full power of substitution and to do on
EMS Canada's behalf anything that EMS Canada can lawfully do by an
attorney to register and otherwise perfect the Security Interest in
the Collateral and, after default (as that term is defined in
Section 6 below), to preserve and protect the Collateral and to
carry out EMS Canada's obligations under this Security Agreement.
This power of attorney is coupled with an interest and is
irrevocable until the release or discharge of the Security Interest.
5. INDEMNITY
(a) EMS Canada agrees to indemnify, reimburse and hold the Secured Party
and the Lenders, and their respective successors, assigns,
employees, officers, directors, affiliates, agents and servants
(hereinafter in this Section referred to individually as an
"Indemnitee," and, collectively, as "Indemnitees") harmless from any
and all liabilities, obligations, losses, damages, injuries,
penalties, claims, demands, actions, suits, judgments and any and
all costs, expenses or disbursements (including reasonable
attorneys' fees and expenses) (for the purposes of this Section the
foregoing are collectively called "expenses") of whatsoever kind and
nature imposed on, asserted against or incurred by any of the
Indemnitees in any way relating to or arising out of this Agreement,
any other Loan Documents or any other document executed in
connection herewith or therewith or in any other way connected with
the administration of the transactions contemplated hereby or
thereby or the enforcement of any of the terms of, or the
preservation of any rights under any thereof, or in any way relating
to or arising out of the manufacture, ownership, ordering, purchase,
delivery, control, acceptance, lease, financing, possession,
operation, condition, sale, return or other disposition, or use of
the Collateral (including, without limitation, latent or other
defects, whether or not discoverable), including the violation by
EMS Canada of the laws of any country, state or other governmental
body or unit, any tort (including, without limitation, claims
arising or imposed under the doctrine of strict liability, or for or
on account of injury to or the death of any Person (including any
Indemnitee), or property damage), claim that the Intellectual
Property infringes or violates any third party rights, or contract
claim; provided that such indemnity shall not, as to any Indemnitee,
be available to the extent that such losses, claims, damages,
liabilities or related expenses (i) are determined by a court of
competent jurisdiction by final and nonappealable judgment to have
resulted from the gross negligence or wilful misconduct of such
Indemnitee or (ii) result from a claim brought by EMS
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Canada against an Indemnitee for a material breach of such
Indemnitee's obligations hereunder, if EMS Canada has obtained a
final and nonappealable judgment in its favour on such claim as
determined by a court of competent jurisdiction. EMS Canada agrees
that upon written notice by any Indemnitee of the assertion of such
a liability, obligation, loss, damage, injury, penalty, claim,
demand, action, suit or judgment, EMS Canada shall assume full
responsibility for the defense thereof. Each Indemnitee agrees to
use its commercially reasonable efforts to promptly notify EMS
Canada of any such assertion of which such Indemnitee has knowledge.
(b) Without limiting the application of subsection (a) above, EMS Canada
agrees to pay, or reimburse the Secured Party for any and all
reasonable fees, costs and expenses of whatever kind or nature
incurred in connection with the creation, preservation or protection
of the Secured Party's security interest in the Collateral,
including, without limitation, all fees and taxes in connection with
the recording or filing of instruments and documents in public
offices, payment or discharge of any taxes or Liens upon or in
respect of the Collateral, premiums for insurance with respect to
the Collateral and all other reasonable fees, costs and expenses in
connection with protecting, maintaining or preserving the Collateral
and the Secured Party's interest therein, whether through judicial
proceedings or otherwise, or in defending or prosecuting any
actions, suits or proceedings arising out of or relating to the
Collateral.
(c) Without limiting the application of subsections (a) or (b) above,
the EMS Canada agrees to pay, indemnify and hold each Indemnitee
harmless from and against any loss, costs, damages and expenses
which such Indemnitee may suffer, expend or incur in consequence of
or growing out of any material misrepresentation by EMS Canada in
this Agreement, any other Loan Document or in any writing
contemplated by or made or delivered pursuant to or in connection
with this Agreement or any other Loan Document.
(d) If and to the extent that the obligations of EMS Canada under this
Section are unenforceable for any reason, EMS Canada hereby agrees
to make the maximum contribution to the payment and satisfaction of
such obligations which is permissible under applicable law. This
Section 5 shall survive the termination of this Agreement.
6. DEFAULT
The happening of an Event of Default, as defined in the Credit
Agreement, shall constitute a default hereunder and shall be referred to
hereafter as a "default".
7. REMEDIES
(a) On or after the occurrence and during the continuance of any Event
of Default, (i) any or all of the Obligations will at the option of
the Secured Party become immediately due and payable or be subject
to immediate performance, as the case may be, without presentment,
protest or notice of dishonour, all of which are expressly waived;
(ii) the obligation, if any, of the Secured Party to extend further
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credit to EMS Canada will cease; (iii) any or all security granted
hereby will, at the option of the Secured Party, become immediately
enforceable; and (iv) in addition to any right or remedy provided by
law, the Secured Party will have the rights and remedies set out
below, all of which rights and remedies will be enforceable
successively, concurrently or both:
(i) the Secured Party may by appointment in writing appoint a
receiver or receiver and manager (each herein referred to as
the "Receiver") of the Collateral (which term when used in
this Section 7(a)(i) will include the whole or any part of
the Collateral) and may remove or replace such Receiver from
time to time or may institute proceedings in any court of
competent jurisdiction for the appointment of a Receiver of
the Collateral; and the term "Secured Party" when used in
this Section 7(a)(i) will include any Receiver so appointed
and the agents, officers and employees of such Receiver; and
the Secured Party will not be in any way responsible for any
misconduct or negligence of any such Receiver;
(ii) the Secured Party may take possession of the Collateral and
require EMS Canada to assemble the Collateral and deliver or
make the Collateral available to the Secured Party at such
place or places as may be specified by the Secured Party
acting reasonably;
(iii) the Secured Party may take such steps as it considers
desirable to maintain, preserve or protect the Collateral;
(iv) the Secured Party may carry on or concur in the carrying on
of all or any part of the business of EMS Canada;
(v) the Secured Party may enforce any rights of EMS Canada in
respect of the Collateral by any manner permitted by law;
(vi) the Secured Party may sell, lease or otherwise dispose of the
Collateral at public auction, by private tender, by private
sale or otherwise either for cash or upon credit upon such
terms and conditions as the Secured Party may determine and
without notice to EMS Canada unless required by law;
(vii) the Secured Party may accept the Collateral in satisfaction
of the Obligations upon notice to EMS Canada of its intention
to do so in the manner required by law;
(viii) subject to Applicable Law, the Secured Party may, for any
purpose specified herein, borrow money on the security of the
Collateral in priority to the security interest, assignment
and mortgage and charge granted by this Security Agreement;
(ix) the Secured Party may enter upon, occupy and use all or any
of the premises, buildings and plants occupied by EMS Canada
and use all or any of the equipment and other personal
property of EMS Canada for such time as the Secured Party
requires to facilitate the realization of the
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Collateral, free of charge, and the Secured Party will not be
liable to EMS Canada for any neglect in so doing or in
respect of any rent, charges, depreciation or damages in
connection with such actions;
(x) the Secured Party may charge on its own behalf and pay to
others all reasonable amounts for expenses incurred and for
services rendered in connection with the exercise of the
rights and remedies of the Secured Party hereunder,
including, without limiting the generality of the foregoing,
reasonable legal, Receiver and accounting fees and expenses,
and in every such case the amounts so paid together with all
costs, charges and expenses incurred in connection therewith,
including interest thereon at such rate as the Secured Party
deems reasonable, will be added to and form part of the
Obligations hereby secured; and
(xi) the Secured Party may discharge any claim, lien, mortgage,
charge, security interest, encumbrance or any rights of
others that may exist or be threatened against the
Collateral, and in every such case the amounts so paid
together with costs, charges and expenses incurred in
connection therewith will be added to the Obligations hereby
secured.
(b) The Secured Party may (i) grant extensions of time, (ii) take and
perfect or abstain from taking and perfecting security, (iii) give
up securities, (iv) accept compositions or compromises, (v) grant
releases and discharges, and (vi) release any part of the Collateral
or otherwise deal with EMS Canada, debtors of EMS Canada, sureties
and others and with the Collateral and other security as the Secured
Party sees fit without prejudice to the liability of EMS Canada to
the Secured Party or the Secured Party's rights hereunder.
(c) The Secured Party will not be liable or responsible for any failure
to seize, collect, realize, or obtain payment with respect to the
Collateral and is not bound to institute proceedings or to take
other steps for the purpose of seizing, collecting, realizing or
obtaining possession or payment with respect to the Collateral or
for the purpose of preserving any rights of the Secured Party, EMS
Canada or any other person, in respect of the Collateral.
(d) The Secured Party may apply any proceeds of realization of the
Collateral to payment of expenses in connection with the
preservation and realization of the Collateral as above described
and the Secured Party may apply any balance of such proceeds to
payment of the Obligations in such order as the Secured Party sees
fit. If there is any surplus remaining, the Secured Party may pay it
to any person having a claim thereto in priority to EMS Canada of
whom the Secured Party has knowledge and any balance remaining must
be paid to EMS Canada. If the disposition of the Collateral fails to
satisfy the Obligations secured by this Security Agreement and the
aforesaid expenses, EMS Canada will be liable to pay any deficiency
to the Secured Party forthwith on demand.
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8. EMS CANADA REMAINS LIABLE
(a) EMS Canada shall perform all of its duties and obligations under all
License Agreements unless EMS Canada not doing so would not
reasonably be expected to have a Material Adverse Effect.
(b) In no event shall the Secured Party have any obligation or liability
under the Licence Agreements by reason of this Security Agreement,
nor shall the Secured Party be obliged to perform any of the
obligations or duties of EMS Canada thereunder or to take any action
to collect or enforce any claim for payment assigned hereunder. The
rights and powers conferred on the Secured Party hereunder are
solely to protect its interest in the Collateral and shall not
impose any duty upon it to exercise any such powers.
9. MISCELLANEOUS
(a) No delay or omission by the Secured Party in exercising any right or
remedy hereunder or with respect to any Obligations shall operate as
a waiver thereof or of any other right or remedy, and no single or
partial exercise thereof shall preclude any other or further
exercise thereof or the exercise of any other right or remedy.
Furthermore, the Secured Party may remedy any default by EMS Canada
hereunder or with respect to any Obligations in any reasonable
manner without waiving the default remedied and without waiving any
other prior or subsequent default by EMS Canada. All rights and
remedies of the Secured Party granted or recognized herein are
cumulative and may be exercised at any time and from time to time
independently or in combination;
(b) the headings used in this Security Agreement are for convenience
only and are not to be considered a part of this Security Agreement
and do not in any way limit or amplify the terms and provisions of
this Security Agreement;
(c) when the context so requires, the singular number shall be read as
if the plural were expressed and the provisions hereof shall be read
with all grammatical changes necessary dependent upon the person
referred to being a male, female, firm or corporation;
(d) the Security Interest created hereby is intended to attach when this
Security Agreement is signed by EMS Canada and delivered to the
Secured Party;
(e) the Secured Party may grant extensions of time and other
indulgences, take and give up security, accept compositions,
compound, compromise, settle, grant releases and discharges and
otherwise deal with EMS Canada, debtors of EMS Canada, sureties and
others and with Collateral and other security as the Secured Party
may see fit without prejudice to the liability of EMS Canada or the
Secured Party's right to hold and realize the Security Interest.
Furthermore, the Secured Party may demand, collect and xxx on
Collateral in either EMS Canada's or the Secured Party's name, at
the Secured Party's option, and may endorse EMS Canada's name on any
and all cheques, commercial paper and any other Instruments
pertaining to or constituting Collateral;
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(f) notice to be given under this Security Agreement shall be given and
received in accordance with the Credit Agreement;
(g) this Security Agreement shall be governed by and interpreted in
accordance with the laws of the Province of Ontario and the laws of
Canada applicable therein and each of the parties irrevocably
attorns to the non-exclusive jurisdiction of the courts of Ontario;
(h) EMS Canada hereby acknowledges receipt of a copy of this Security
Agreement;
(i) any provision of this Security Agreement which is or becomes
prohibited or unenforceable in any relevant jurisdiction shall not
invalidate or impair the remaining provisions hereof which shall be
deemed severable from such prohibited or unenforceable provision and
any such prohibition or unenforceability in any such jurisdiction
shall not invalidate or render unenforceable such provision in any
other jurisdiction;
(j) EMS Canada hereby acknowledges that the Secured Party may record a
confirmation of this Security Agreement, in the form attached hereto
as Schedule "H" (the "Confirmation of Security Agreement"),
including, without limitation, in any government offices in any
jurisdiction worldwide, and in such event it will be available to
the public for inspection. EMS Canada shall cooperate with and
assist the Secured Party, as requested by the Secured Party, with
respect to any recordal of or relating to the Confirmation of
Security Agreement, which the Secured Party deems appropriate; and
(k) This Agreement has been entered into pursuant to the provisions of
the Credit Agreement and is subject to all the terms and conditions
thereof and, if there is any conflict or inconsistency between the
provisions of this Agreement and the provisions of the Credit
Agreement, the rights and obligations of the parties will be
governed by the provisions of the Credit Agreement.
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IN WITNESS WHEREOF EMS Canada has executed this Security Agreement as of the
date first above referenced.
EMS TECHNOLOGIES CANADA, LTD.
By: __________________________
Name:
Title:
By: __________________________
Name:
Title:
SCHEDULE "A"
COPYRIGHTS
SCHEDULE `B'
DESIGNS
APPLICATION
DESIGN STATUS NO./DATE REGISTRATION NO./DATE
------ ------ ----------- ---------------------
------ ------ ----------- ---------------------
SCHEDULE "C"
LICENSEE LICENCE AGREEMENTS
SCHEDULE "D"
LICENSOR LICENCE AGREEMENTS
SCHEDULE `E'
PATENTS
SCHEDULE "F"
SOFTWARE
SCHEDULE "G"
TRADE-MARKS
TRADE-XXXX
(* INDICATES OPPOSITION) STATUS APPLICATION NO./DATE REGISTRATION NO./DATE
------------------------ ------ -------------------- ----------------------
------------------------ ------ -------------------- ----------------------
------------------------ ------ -------------------- ----------------------
SCHEDULE "H"
CONFIRMATION OF SECURITY AGREEMENT
BACKGROUND:
(A) EMS TECHNOLOGIES CANADA, LTD., of -, a corporation existing under the laws
of the Province of - (the "BORROWER"), is the owner of (i) the trade-marks,
registrations and applications for trade-marks set forth in Schedule "A", the
underlying goodwill associated with the business in association with which such
trade-marks are used (collectively, the "TRADE-MARKS") and (ii) the inventions,
patent applications and patents in relation thereto set forth in Schedule "B"
(collectively, the "PATENTS");
(B) Pursuant to a Credit Agreement, dated as of -, 2004, (as amended, amended
and restated, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT"), amongst the Borrower and the Bank of America, National Association
(Canada branch), in its capacity as Canadian administrative agent and funding
agent for the Lenders) (the "SECURED PARTY"), the lenders party thereto from
time to time (the "Lenders") and EMS Technologies, Inc., the Secured Party has
agreed to make available to or for the account of the Borrower certain financial
accommodations as specified therein.
(C) In accordance with its obligations under the Credit Agreement, the Borrower
entered into an Intellectual Property Security Agreement, dated -, 2004 (the "IP
SECURITY AGREEMENT") pursuant to which the Borrower granted a security interest
in and to, inter alia, the Trademarks and Patents to the Secured Party in order
to secure the payment and performance of its Obligations described therein.
NOW THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Borrower hereby confirms the grant under the
IP Security Agreement to the Secured Party of the security interest in and to
the Trademarks and Patents.
DATED at _______________________ this _______ day of December, 2004.
[SIGNATURE PAGE FOLLOWS]
EMS TECHNOLOGIES CANADA, LTD.
By: _____________________________
Name:
Title:
By: _____________________________
Name:
Title:
