EXHIBIT 4.1
FIFTH AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AGREEMENT
THIS FIFTH AMENDMENT to the SECOND AMENDED AND RESTATED LOAN AGREEMENT
dated as of August 31, 2004 between EMS TECHNOLOGIES, INC. (formerly
Electromagnetic Sciences, Inc.), a Georgia corporation (the "Borrower"), and
SUNTRUST BANK (f/k/a SunTrust Bank, Atlanta), a Georgia banking corporation
(the "Lender").
WITNESSETH:
WHEREAS, the Borrower and the Lender have entered into the Second
Amended and Restated Loan Agreement dated as of November 9, 1998, as amended by
the First Amendment and Consent dated as of January 29, 1999, by the Second
Amendment to the Second Amended and Restated Loan Agreement dated as of
February 24, 1999, by the Third Amendment to the Second Amended and Restated
Loan Agreement dated as of July 31, 2001 and by the Fourth Amendment to the
Second Amended and Restated Loan Agreement dated as of October 31, 2003 (as so
amended, the "Agreement"); and
WHEREAS, the Borrower has requested that the Lender amend the
Agreement to extend the Commitment Termination Date to November 30, 2004; and
WHEREAS, the Lender has agreed to so extend the Commitment Termination
Date on the terms and conditions contained herein;
NOW, THEREFORE, for and in consideration of the mutual premises,
covenants and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
SS.1. DEFINED TERMS. Capitalized terms which are used herein without
definition and which are defined in the Agreement shall have the same meanings
herein as in the Agreement.
SS.2. AMENDMENT TO AGREEMENT. Section 1.1(a) of the Agreement is hereby
amended by deleting in the first sentence thereof "August 31, 2004 (the
"Commitment Termination Date")" and substituting in lieu thereof "November 30,
2004 (the "Commitment Termination Date")". It is understood and agreed by all
parties hereto that hereafter all references to "Commitment Termination Date"
in the Agreement and all other Loan Documents shall mean November 30, 2004.
SS.3. ACKNOWLEDGMENT OF SUBSIDIARY GUARANTORS. The Domestic Subsidiary
Guarantor under the Domestic Subsidiary Guaranty and EMS Technologies Canada,
Ltd. under the CAL Corporation Guaranty, by their execution of this Fifth
Amendment, hereby acknowledge and agree to the terms and conditions hereof and
hereby confirm that each of the Domestic Subsidiary Guaranty and the CAL
Corporation Guaranty dated November 9, 1998 remains in full force and effect.
SS.4. CONDITIONS PRECEDENT/EXTENSION FEE. This Fifth Amendment shall become
effective (i) upon the receipt by the Lender of this Fifth Amendment duly
executed by the Lender, the Borrower and acknowledged by the Subsidiary
Guarantors pursuant to Paragraph 3 of this Fifth Amendment
and (ii) payment on the date hereof to the Lender of an extension fee in an
amount equal to $50,000.00. The foregoing extension fee shall be fully earned
upon execution of this Fifth Amendment by the parties hereto and non-refundable
for any reason whatsoever; provided, however, that Borrower shall be entitled
to apply the full amount of such extension fee as a credit towards the
arrangement fee that would otherwise be owing to Lender (or an affiliate of
Lender) if Lender (or an affiliate of Lender) is selected by Borrower to serve
as lead arranger for the new debt financing that will replace the Agreement
upon its expiration.
SS.5. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants,
on and as of the date of this Fifth Amendment, that:
(a) The execution and delivery by Borrower of this Fifth
Amendment is within the corporate authority of Borrower, has been duly
authorized by all requisite shareholder and corporate action on the part of
Borrower and does not and will not (i) violate any provision of any law, rule
or regulation, any judgment, order or ruling of any court or governmental
agency, the organizational papers or by-laws of Borrower, or any indenture,
material agreement or other material instrument to which Borrower is a party or
by which Borrower or any of its properties is bound, or (ii) be in conflict
with, result in a breach of, or constitute with notice or lapse of time or both
a default under any such indenture, material agreement or other material
instrument. This Fifth Amendment has been duly executed by the Borrower.
(b) The Agreement, as amended by this Fifth Amendment, is and
remains in full force and effect and constitutes the legal, valid and binding
obligations of the Borrower, enforceable in accordance with its terms, except
as limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or affecting generally the enforcement of creditor's rights.
(c) After giving effect to this Fifth Amendment, no Default or
Event of Default exists.
SS.6. MISCELLANEOUS PROVISIONS.
(a) RATIFICATION. The Borrower hereby restates, ratifies and
reaffirms each and every term, covenant and condition set forth in the
Agreement, as hereby amended, effective as of the date hereof.
(b) COUNTERPARTS. This Fifth Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to
be an original, and all counterparts, taken together, shall constitute but one
and the same document.
(c) GOVERNING LAW. THIS FIFTH AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE OF GEORGIA.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Fifth Amendment as of the date first above written.
EMS TECHNOLOGIES, INC.
By: /s/
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Executive Vice President,
Chief Financial Officer and
Treasurer
SUNTRUST BANK
By: /s/
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
Acknowledged and agreed to
this 31st day of August, 2004.
"SUBSIDIARY GUARANTOR"
LXE Inc.
By /s/
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Name: Xxx X. Xxxxxx
Title: Treasurer
EMS Technologies Canada, Ltd.
f/k/a CAL Corporation
By /s/
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Name: Xxx X. Xxxxxx
Title: Chief Financial Officer
