SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
Exhibit 4.1
SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT dated as of February [___], 2009 (the
“Agreement”) is entered into among EMS Technologies, Inc., a Georgia corporation
(“EMS”), EMS Technologies Canada, Ltd., a Canadian federal corporation (the “Canadian
Borrower”; together with EMS, the “Borrowers”), the Guarantors, the Lenders party
hereto, Bank of America, National Association, as Domestic Administrative Agent and Domestic L/C
Issuer and Bank of America, National Association, acting through its Canada branch, as Canadian
Administrative Agent and Canadian L/C Issuer. All capitalized terms used herein and not otherwise
defined herein shall have the meanings given to such terms in the Credit Agreement (as defined
below).
RECITALS
WHEREAS, the Borrowers, the Guarantors, the Lenders, Bank of America, National Association, as
Domestic Administrative Agent and Domestic L/C Issuer and Bank of America, National Association,
acting through its Canada branch, as Canadian Administrative Agent and Canadian L/C Issuer entered
into that certain Credit Agreement dated as of February 29, 2008 (as amended or modified from time
to time, the “Credit Agreement”); and
WHEREAS, EMS has requested that the Lenders amend the Credit Agreement as set forth below;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Consents. The Lenders hereby consent to (a) the Domestic Administrative Agent’s
release of the Domestic Administrative Agent’s security interests in the Equity Interests in 990834
Ontario Inc. and each of the Foreign Subsidiaries identified on Schedule 7.16 to the Credit
Agreement at such time as such Equity Interests are contributed by EMS and LXE to Lux SNC and (b)
the dissolution of LXE Australia Pty, LTD. (the “Australian Dissolution Subsidiary”)
provided that any proceeds of the assets of the Australian Dissolution Subsidiary are transferred
to a Domestic Loan Party prior to such dissolution. The above-referenced consents are limited
solely to the matters described in the preceding sentence, and nothing contained in this Agreement
shall be deemed to constitute a waiver of any rights or remedies the Domestic Administrative Agent,
the Canadian Administrative Agent or any Lender may have under the Credit Agreement, the Loan
Documents or applicable law.
2. Amendments. The Credit Agreement is hereby amended as follows:
(a) The following definitions are hereby added to Section 1.01 of the Credit
Agreement in the appropriate alphabetical order to read as follows:
“990834 Ontario” means 990834 Ontario Inc., a corporation incorporated
under the laws of the province of Ontario.
“EMS Lux SARL” means EMS Holdings S.à.x.x., a Luxembourg limited
liability company.
“Eurodollar Base Rate” means, the rate per annum equal to (i) BBA
LIBOR, as published by Reuters (or other commercially available source providing
quotations of
BBA LIBOR as designated by the applicable Administrative Agent from time to
time) at approximately 11:00 a.m., London time, on the date of determination
(provided that if
such date is not a Business Day, the next preceding Business Day)
for deposits in the relevant currency (for delivery on such date) with a term
equivalent to one month or (ii) if such rate is not available at such time for any
reason, the rate per annum determined by the applicable Administrative Agent to be
the rate at which deposits in the relevant currency for delivery on the date of
determination in same day funds in the approximate amount of the Base Rate Loan
being made, continued or converted by Bank of America and with a term equivalent to
one month would be offered by Bank of America’s London Branch to major banks in the
London interbank eurodollar market at their request at approximately 11:00 a.m.
(London time) on the date of determination.
“Formation” means Formation, Inc., a New Jersey corporation.
“Immaterial LXE Foreign Subsidiaries” means the collective reference to
LXE France SARL, LXE Australia Pty, LTD. and LXE Singapore Pte Ltd.
“Lux SNC” means EMS Technologies – LXE S.e.n.c., a Luxembourg
partnership.
“Lux SNC Loan” means that certain intercompany loan by EMS to Lux SNC
in the principal amount of $28,714,535, as evidenced by that certain promissory note
executed by Lux SNC in favor of EMS.
“LXE” means LXE Inc., a Georgia corporation.
“LXE Foreign Subsidiaries” means those certain Foreign Subsidiaries
identified on Schedule 7.16 to the Credit Agreement.
“Project Saxon Reorganization” has the meaning provided in the
definition of “Disposition” in Section 1.01.
“UK Acquisition” means the Acquisition by UK Acquisition Company of the
Equity Interests of the UK Target pursuant to the terms of that certain Share
Purchase Agreement between the persons listed on Schedule 1 thereto, UK Acquisition
Company and EMS dated November 20, 2008, as amended.
“UK Acquisition Company” means EMS Acquisition Company Limited, a
company incorporated in England and Wales.
“UK Acquisition Company Lux Loan” means the collective reference to (a)
that certain intercompany loan by EMS Lux SARL to UK Acquisition Company in the
principal amount of 19,000,000 Pounds Sterling and (b) that certain intercompany
loan by EMS Lux SARL to UK Acquisition Company in the principal amount of 5,500,000
Pounds Sterling, each made in connection with the Project Saxon Reorganization.
“UK Target” means Satamatics Global Limited, a company incorporated and
registered in England and Wales.
“Unsecured Canadian Guarantors” means the collective reference to EMS
Lux SARL, Lux SNC, UK Acquisition Company, UK Target and each of the LXE Foreign
Subsidiaries, and “Unsecured Canadian Guarantor” means any one of them.
(b) The definition of “Base Rate” in Section 1.01 of the Credit
Agreement is hereby amended to read as follows:
“Base Rate” means
(a) in the case of Domestic Revolving Loans, for any day a fluctuating rate per
annum equal to the highest of (i) the Federal Funds Rate plus 1/2 of 1%,
(ii) the Domestic Prime Rate and (iii) the Eurodollar Base Rate plus 1.00%;
(b) in the case of Canadian Revolving Loans denominated in Canadian Dollars,
for any day a fluctuating rate per annum equal to the highest of (i) the CDOR Rate
plus 1/2 of 1%, (ii) the Canadian Prime Rate and (iii) the Eurodollar Base
Rate plus 1.00%; and
(c) in the case of Canadian Revolving Loans denominated in U.S. Dollars, for
any day a fluctuating rate per annum equal to the highest of (i) the rate which the
Canadian Administrative Agent in Toronto, Ontario announces from time to time as the
reference rate for loans in U.S. Dollars to its Canadian borrowers, (ii) the Federal
Funds Rate plus 1/2 of 1% and (c) the Eurodollar Base Rate plus 1.00%.
(c) The definition of “Change of Control” in Section 1.01 of the Credit
Agreement is hereby amended by deleting the period at the end of subclause (b) thereof,
inserting the following text “; or” in replacement thereof and adding new subclauses (c) and
(d) at the end thereof which shall read as follows:
(c) subsequent to LXE’s contribution of the Equity Interests in the LXE Foreign
Subsidiaries to Lux SNC, Lux SNC shall cease to own and control, of record and
beneficially, directly or indirectly, 100% of the Voting Stock in each of the LXE
Foreign Subsidiaries; or
(d) EMS shall cease to own and control, of record and beneficially, directly or
indirectly, 100% of the Equity Interests of the Canadian Borrower or any other
Subsidiary, except for ownership of nominal Equity Interests necessary to qualify
directors where required by applicable law or to satisfy other requirements of
applicable law.
(d) The definition of “Consolidated Net Income” in Section 1.01 of the
Credit Agreement is hereby amended to read as follows:
“Consolidated Net Income” means, for any period, for EMS and its
Subsidiaries on a consolidated basis, the net income of EMS and its Subsidiaries for
such period, but excluding therefrom (to the extent otherwise included therein): (a)
any extraordinary gains or losses, (b) any gains or non-cash losses attributable to
write-ups or impairment of assets, (c) any equity interest of any Loan Party in the
unremitted earnings of any Person that is not a Subsidiary, (d) any income of any
Subsidiary of EMS which is not a Guarantor to the extent the payment of such income
in the form of dividends or other distributions to either EMS or any Subsidiary is
then prohibited, whether on account of restrictions in such Subsidiary’s
organizational documents or restrictions in any agreement, document, contract, deed
or other instrument applicable to such Subsidiary
and (e) any acquisition-related costs in connection with any Investment or
Acquisition permitted hereunder, including finder’s fees, advisory, legal,
accounting, valuation or
other professional or consulting fee that are required to
be expensed as incurred in accordance with Financial Accounting Standards Board
Statement of Financial Accounting Standards No. 141(R) – Business Combinations, all
as determined in accordance with GAAP.
(e) The definition of “Disposition” in Section 1.01 of the Credit
Agreement is hereby amended to read as follows:
“Disposition” or “Dispose” means the sale, transfer, license,
lease or other disposition (including any Sale and Leaseback Transaction) of any
property by EMS or any Subsidiary (including the Equity Interests of any
Subsidiary), including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith, but excluding (a) the sale, lease, license,
transfer or other disposition of inventory in the ordinary course of business, (b)
the sale, lease, license, transfer or other disposition in the ordinary course of
business of surplus, obsolete or worn out property no longer useful in the conduct
of business of EMS and its Subsidiaries, (c) any Involuntary Disposition, (d) any
sale, lease, license, transfer or other disposition (i) by a Loan Party to any
Domestic Loan Party, (ii) by one Canadian Loan Party to another Canadian Loan Party
(other than any Unsecured Canadian Guarantor), (iii) by any Subsidiary that is not a
Loan Party to any Loan Party or any other Subsidiary that is not a Loan Party, (e)
the following dispositions to be made in connection with the reorganization
described in the Deloitte presentation entitled “Project Saxon” dated February 4,
2009 (the “Project Saxon Reorganization”): (i) the transfer by LXE to Lux
SNC of LXE’s Equity Interests in EMS Lux SARL, (ii) the transfer by EMS to Lux SNC
of EMS’s Equity Interests in 990834 Ontario, (iii) the transfer by EMS to EMS Lux
SARL of EMS’s Equity Interests in UK Acquisition Company and (iv) the transfer by
LXE to Lux SNC of LXE’s Equity Interests in the LXE Foreign Subsidiaries and the
Immaterial LXE Foreign Subsidiaries, (f) any sale by Formation on a non-recourse
basis of accounts receivable from Rockwell Xxxxxxx, Inc. to Citibank, N.A. in an
aggregate amount not to exceed $600,000 at any one time outstanding pursuant to the
terms of a Supplier Agreement between Formation and Citibank, N.A. dated as of
September 7, 2004 and (g) any transfer of cash by and among Subsidiaries of Lux SNC
through a centralized account at LXE Netherlands B.V. pursuant to a cash pooling
arrangement serviced by Bank of America, as servicer.
(f) The language preceding the proviso in the definition of “Permitted
Acquisition” in Section 1.01 of the Credit Agreement is hereby amended to read
as follows:
“Permitted Acquisitions” means Investments consisting of an Acquisition
by any Loan Party (other than any Unsecured Canadian Guarantor);
(g) The last three sentences of Section 6.20 of the Credit Agreement are hereby
amended to read as follows:
The exact legal name and state of organization of each Loan Party as of the Closing
Date is as set forth on Schedule 6.13. Set forth on Schedule
6.20(b) is a list of (a) all locations in Canada where any personal property of
a Loan Party (other than any Unsecured Canadian Guarantor) is located, including
province or territory where located and (ii) the chief executive office in Canada,
if any, of the Canadian Borrower and each Canadian Subsidiary.
Except as set forth on Schedule 6.20(c), no Loan Party (other than any
Unsecured Canadian Guarantor) has during the five years preceding the Closing Date
(i) changed its legal name,
(ii) changed its jurisdiction of formation, or (iii)
been party to a merger, consolidation or other change in structure.
(h) Section 7.01(a) of the Credit Agreement is hereby amended to read as
follows:
(a) upon the earlier of the date that is ninety (90) days after the end of each
fiscal year of EMS or the date such information is filed with the SEC, (i) a
consolidated balance sheet of EMS and its Subsidiaries as at the end of such fiscal
year, and the related consolidated statements of income or operations, changes in
shareholders’ equity and cash flows for such fiscal year, setting forth in each case
in comparative form the figures for the previous fiscal year, and prepared in
accordance with GAAP, audited and certified by a report and opinion of an
independent certified public accountant of nationally recognized standing reasonably
acceptable to the Required Lenders, which certification shall be prepared in
accordance with generally accepted auditing standards and shall not be subject to
any “going concern” or like qualification or exception or any qualification or
exception as to the scope of such audit and (ii) a consolidating balance sheet of
EMS and its Subsidiaries as at the end of such fiscal year, and the related
consolidating statements of income or operations, changes in shareholders’ equity
and cash flows for such fiscal year, setting forth in each case in comparative form
the figures for the previous fiscal year, certified by a Responsible Officer of EMS
as fairly presenting the financial condition, results of operations, shareholders’
equity and cash flows of EMS and its Subsidiaries in accordance with GAAP; and
(i) Section 8.01 of the Credit Agreement is hereby amended by deleting the
period at the end of subclause (t) thereof, inserting the following text “; and” in
replacement thereof and adding a new subclause (u) at the end thereof which shall read as
follows:
(u) Liens of Citibank, N.A. on accounts receivable from Rockwell Xxxxxxx
purchased from Formation by Citibank, N.A. on a non-recourse basis in an aggregate
amount not to exceed $600,000 at any one time outstanding pursuant to the terms of a
Supplier Agreement between Formation and Citibank, N.A. dated as of September 7,
2004.
(j) Section 8.02 of the Credit Agreement is hereby amended to read as follows:
8.02 Investments.
Make any Investments, except:
(a) Investments held by EMS or such Subsidiary in the form of Cash Equivalents;
(b) Investments existing as of the Closing Date and set forth in Schedule
8.02;
(c) Investments by any Domestic Loan Party in any other Domestic Loan Party;
(d) Investments by any Canadian Loan Party (other than any Domestic
Guarantor) in any other Loan Party (other than any Unsecured Canadian
Guarantor);
(e) (i) Investments by any Subsidiary of EMS that is not a Loan Party in any
other Subsidiary of EMS that is not a Loan Party and (ii) Investments by any
Unsecured Canadian Guarantor in any other Unsecured Canadian Guarantor;
(f) Permitted Acquisitions;
(g) Guarantees permitted by Section 8.03;
(h) the following Investments to be made in connection with the Project Saxon
Reorganization: (i) the capital contribution by EMS of Euro 1,378 in Lux SNC, (ii)
the Lux SNC Loan, (iii) the 1 Pound Sterling equity contribution by EMS in UK
Acquisition Company, (iv) the equity contribution by LXE in Lux SNC of LXE’s Equity
Interests in EMS Lux SARL, (v) the equity contribution by EMS in Lux SNC of EMS’s
Equity Interests in 990834 Ontario, (vi) the 8,426,957 Pounds Sterling equity
contribution by EMS Lux SARL in UK Acquisition Company and (vii) the equity
contribution by LXE in Lux SNC of LXE’s Equity Interests in the LXE Foreign
Subsidiaries and the Immaterial LXE Foreign Subsidiaries;
(i) the UK Acquisition (including EMS’s Guarantee of UK Acquisition Company’s
obligations related to the UK Acquisition); provided, that both before and
immediately after giving effect to such UK Acquisition and such Guarantee, no
Default shall have occurred and be continuing;
(j) any contribution of cash by any Subsidiary of Lux SNC into a centralized
account at LXE Netherlands B.V. pursuant to a cash pooling arrangement serviced by
Bank of America, as servicer; and
(h) other Investments not exceeding US$2,500,000 in the aggregate in any fiscal
year of EMS.
(k) Section 8.03 of the Credit Agreement is hereby amended to read as follows:
8.03 Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness of EMS and its Subsidiaries listed on Schedule 8.03;
(c) the Lux SNC Loan, the UK Acquisition Company Lux Loan and any other
intercompany Indebtedness permitted under Section 8.02;
(d) obligations (contingent or otherwise) of any Borrower existing or arising
under any Swap Contract; provided that (i) such obligations are (or were)
entered into by such Person in the ordinary course of business for the purpose of
directly mitigating risks associated with liabilities, commitments, investments,
assets, or property held or reasonably anticipated by such Person, or changes in the
value of securities issued by such Person, and not for purposes of speculation or
taking a “market view” and (ii) such
Swap Contract does not contain any provision exonerating the non-defaulting
party from its obligation to make payments on outstanding transactions to the
defaulting party;
(e) purchase money Indebtedness (including obligations in respect of Capital
Leases or Synthetic Leases) hereafter incurred by EMS or the Canadian Borrower to
finance the purchase of fixed assets, and renewals, refinancings and extensions
thereof; provided that (i) the total of all such Indebtedness for all such
Persons taken together shall not exceed an aggregate principal amount of
US$2,000,000 at any one time outstanding; (ii) such Indebtedness when incurred shall
not exceed the purchase price of the asset(s) financed; and (iii) no such
Indebtedness shall be refinanced for a principal amount in excess of the principal
balance outstanding thereon at the time of such refinancing;
(f) other unsecured Indebtedness of EMS and the Canadian Borrower not to exceed
US$5,000,000 in the aggregate at any one time outstanding;
(g) other unsecured Indebtedness of UK Acquisition Company not to exceed
US$1,000,000 in the aggregate at any one time outstanding; and
(h) secured or unsecured Indebtedness of EMS and the Canadian Borrower assumed
in connection with a Permitted Acquisition so long as such Indebtedness (i) was not
incurred in anticipation of or in connection with the respective Permitted
Acquisition and (ii) does not exceed $10,000,000 in the aggregate at any time
outstanding.
Notwithstanding the foregoing, neither Lux SNC, EMS Lux SARL, UK Acquisition
Company, UK Target, nor any LXE Foreign Subsidiary shall create, incur, assume or
suffer to exist any Indebtedness other than (x) Lux SNC’s obligations under the Lux
SNC Loan, (y) UK Acquisition Company’s obligations under the UK Acquisition Company
Lux Loan and (z) any Indebtedness permitted by clauses (c) and (g) above.
(l) Clause (c) in Section 8.04 of the Credit Agreement is hereby amended to
read as follows:
(c) any Canadian Loan Party other than the Canadian Borrower, any Domestic Guarantor
and any Unsecured Canadian Guarantor may amalgamate with any other Canadian Loan
Party other than the Canadian Borrower, any Domestic Guarantor or any Unsecured
Canadian Guarantor,
(m) Clause (b) in Section 8.06 of the Credit Agreement is hereby amended to
read as follows:
(b) each Canadian Subsidiary may make Restricted Payments to any Canadian Loan Party
(other than any Unsecured Canadian Guarantor);
(n) Section 8.06 of the Credit Agreement is hereby amended by deleting the
period at the end of subclause (d) thereof, inserting the following text “, and” in
replacement thereof and adding a new subclause (e) at the end thereof which shall read as
follows:
(e) in connection with the Project Saxon Reorganization, 990834 Ontario may
make a Euro 15,663,210 distribution to EMS Lux SARL with proceeds received from the
CAN$24,886,050 distribution made by the Canadian Borrower to 990834
Ontario.
(o) Clauses (c) and (d) in Section 8.08 of the Credit Agreement are each hereby
amended to read as follows:
(c) advances of working capital from a Canadian Loan Party (other than any Domestic
Guarantor) to another Canadian Loan Party (other than any Unsecured Canadian
Guarantor), (d)(i) transfers of cash and assets from a Canadian Loan Party (other
than any Domestic Guarantor) to another Canadian Loan Party (other than any
Unsecured Canadian Guarantor) and (ii) any transfers of cash by and among
Subsidiaries of Lux SNC through a centralized account of LXE Netherlands B.V.
pursuant to a cash pooling arrangement serviced by Bank of America, N.A., as
servicer,
(p) Section 8.11(b) of the Credit Agreement is hereby amended to read as
follows:
(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio as of the end of any fiscal quarter of EMS to be greater than (i) 3.5 to 1.0
as of any fiscal quarter ending on or before December 31, 2008, (ii) 2.75 to 1.0 as
of the end of any fiscal quarter ending during the period from March 31, 2009 to and
including June 30, 2010, and (iii) 2.5 to 1.0 as of the end of any fiscal quarter
ending thereafter.
(q) Schedule 8.02 to the Credit Agreement is hereby amended to read as provided
on Schedule 8.02 attached hereto.
(r) Schedule 8.03 to the Credit Agreement is hereby amended to read as provided
on Schedule 8.03 attached hereto.
3. Conditions Precedent. This Agreement shall be effective upon the satisfaction of
the following conditions precedent:
(a) receipt by the Domestic Administrative Agent of counterparts of this Agreement duly
executed by the Borrowers, the Guarantors, the Required Lenders, Bank of America, National
Association, as Domestic Administrative Agent and Bank of America, National Association,
acting through its Canada branch, as Canadian Administrative Agent;
(b) receipt by the Domestic Administrative Agent of the original promissory note
executed by Lux SNC in favor of EMS in connection with the Lux SNC Loan (as defined above),
together with a duly executed allonge in a form satisfactory to the Domestic Administrative
Agent;
(c) receipt by the Domestic Administrative Agent of a certificate of a Responsible
Officer of each Loan Party, (i) certifying that the Organization Documents of each Loan
Party delivered on the Closing Date have not been amended, supplemented or otherwise
modified since the Closing Date and remain in full force and effect as of the date hereof
and (ii) attaching resolutions of each Loan Party approving and adopting this Agreement, in
form and substance reasonably satisfactory to the Domestic Administrative Agent, and
authorizing the execution and delivery of this Agreement and certifying that such
resolutions have not been amended, supplemented or otherwise modified and remain in full
force and effect as of the date hereof;
(d) receipt by the Domestic Administrative Agent of favorable opinions of legal counsel
to the Loan Parties, addressed to the Administrative Agents and each Lender, dated as of
the date hereof, in form and substance satisfactory to the Domestic Administrative
Agent; and
(e) receipt by the Administrative Agent (i) for the account of each Lender executing
this Amendment on or before February 11, 2009, a fee of $20,000 and (ii) of any other fees
and expenses owing to the Administrative Agent or BAS.
4. Lux SNC Equity. Within forty-five (45) days of the date hereof, EMS shall pledge
to the Domestic Administrative Agent 65% of the Equity Interests of Lux SNC (the “Lux SNC
Equity Interests”) pursuant to a pledge agreement satisfactory to the Domestic Administrative
Agent together with (a) favorable opinions of counsel for EMS regarding EMS’s pledge of the Lux SNC
Equity Interests and (b) such other documentation reasonably requested by the Domestic
Administrative Agent necessary to perfect its security interests in the Lux SNC Equity Interests,
in each case in form and substance satisfactory to the Domestic Administrative Agent. The Loan
Parties’ failure to comply with the terms of this Section 4 shall constitute an Event of Default
under the Loan Documents.
5. Guarantees. Within thirty (30) days of the date hereof, the Loan Parties shall
cause EMS Lux SARL, Lux SNC, UK Acquisition Company, UK Target and each of the LXE Foreign
Subsidiaries (collectively, the “Unsecured Canadian Guarantors”) to each become a Canadian
Guarantor by executing and delivering to the Canadian Administrative Agent a guaranty agreement
with respect to the Canadian Obligations in form and substance satisfactory to the Canadian
Administrative Agent and deliver to the Canadian Administrative Agent documents of the type
referred to in Section 5.01(f) of the Credit Agreement and favorable opinions of counsel to such
Person in form and substance satisfactory to the Canadian Administrative Agent. Notwithstanding
any terms to the contrary contained herein or in the Loan Documents, it is understood and agreed
that none of Unsecured Canadian Guarantors shall be required to pledge any of their respective
assets to secure the Canadian Obligations. The Loan Parties’ failure to comply with the terms of
this Section 5 shall constitute an Event of Default under the Loan Documents.
6. Miscellaneous.
(a) The Credit Agreement, and the obligations of the Loan Parties thereunder and under
the other Loan Documents, are hereby ratified and confirmed and shall continue and remain in
full force and effect according to their terms.
(b) The Guarantors (a) acknowledge and consent to all of the terms and conditions of
this Agreement, (b) affirm all of their obligations under the Loan Documents and (c) agree
that this Agreement and all documents executed in connection herewith do not operate to
reduce or discharge their obligations under the Credit Agreement or the other Loan
Documents.
(c) The Borrowers and each Guarantor hereby represent and warrant as follows:
(i) Each Loan Party has taken all necessary action to authorize the execution,
delivery and performance of this Agreement.
(ii) This Agreement has been duly executed and delivered by the Loan Parties
and constitutes each of the Loan Parties’ legal, valid and binding obligations,
enforceable in accordance with its terms, except as such enforceability may be
subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or similar laws affecting creditors’ rights generally and (ii)
general principles of equity.
(iii) No consent, approval, authorization or order of, or filing, registration
or
qualification with, any court or governmental authority or third party is required
in connection with the execution, delivery or performance by any Loan Party of this
Agreement.
(d) The Loan Parties represent and warrant to the Lenders that (i) the representations
and warranties of the Loan Parties set forth in Article VI of the Credit Agreement and in
each other Loan Document are true and correct as of the date hereof with the same effect as
if made on and as of the date hereof, except to the extent such representations and
warranties expressly relate solely to an earlier date and (ii) no event has occurred and is
continuing which constitutes a Default or an Event of Default.
(e) This Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be an original, but all of which shall constitute one and the
same instrument. Delivery of an executed counterpart of this Agreement by telecopy shall be
effective as an original and shall constitute a representation that an executed original
shall be delivered.
(f) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
[Signature pages follow]
Each of the parties hereto has caused a counterpart of this Agreement to be duly executed and
delivered as of the date first above written.
| BORROWERS: | EMS TECHNOLOGIES, INC., | |||||
| a Georgia corporation, as a Borrower and, with | ||||||
| respect to the Canadian Obligations, as a Guarantor | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| EMS TECHNOLOGIES CANADA, LTD., | ||||||
| a Canadian federal corporation, as a Borrower | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| DOMESTIC GUARANTORS: | LXE INC., | |||||
| a Georgia corporation | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| FORMATION, INC., | ||||||
| a New Jersey corporation | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| ADVANCED INTEGRATED RECORDERS, INC., a | ||||||
| Delaware corporation | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| CANADIAN GUARANTORS: | 990834 ONTARIO INC., | |||||
| an Ontario corporation | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
EMS TECHNOLOGIES, INC.
SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
DOMESTIC |
||||||
| ADMINISTRATIVE AGENT: | BANK OF AMERICA, | |||||
| NATIONAL ASSOCIATION, | ||||||
| as Domestic Administrative Agent | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
CANADIAN |
||||||
| ADMINISTRATIVE AGENT: | BANK OF AMERICA, | |||||
| NATIONAL ASSOCIATION, | ||||||
| acting through its Canada branch, | ||||||
| as Canadian Administrative Agent | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| DOMESTIC LENDERS: | BANK OF AMERICA, | |||||
| NATIONAL ASSOCIATION, | ||||||
| as a Domestic Lender and Domestic L/C Issuer | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| SUNTRUST BANK, | ||||||
| as a Domestic Lender, | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| WACHOVIA BANK, N.A., | ||||||
| as a Domestic Lender, | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
EMS TECHNOLOGIES, INC.
SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
| CANADIAN LENDERS: | BANK OF AMERICA, | |||||
| NATIONAL ASSOCIATION, | ||||||
| acting through its Canada branch, | ||||||
| as a Canadian Lender and Canadian L/C Issuer | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| SUNTRUST BANK, | ||||||
| as a Canadian Lender, | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| WACHOVIA BANK, N.A., | ||||||
| as a Canadian Lender, | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
EMS TECHNOLOGIES, INC.
SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
Schedule 8.02
Existing Investments
| Loan Party | Description of Investment | |
EMS Technologies, Inc.
|
24.09% ownership interest in Miraxis License Holdings, LLC | |
LXE Inc.
|
Loan of $14,970,150.32 to LXE Nordics (formerly known as LXE Scandinavia AB) |
EMS TECHNOLOGIES, INC.
SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
Schedule 8.03
Existing Indebtedness
| Loan | ||||||
| Party/Subsidiary | Lender | Type | Amount | |||
EMS Technologies, Inc.
|
General Electric Capital | Mortgage on 660 | $7,019,782.45 | |||
| Engineering Drive, | (as of January 31, 2009) | |||||
| Norcross, GA | ||||||
LXE Inc.
|
Xxxx Xxxxxxx Mutual | Mortgage on 125 | $3,417,508.61 | |||
| Life Insurance Company | Technology Parkway, | (as of January 31, 2009) | ||||
| Norcross, GA | ||||||
EMS Technologies
|
Nexcap | Capital lease of | CAN$3,669.17 | |||
Canada, Ltd.
|
office equipment | (as of January 31, 2009) | ||||
EMS Technologies
|
Nexcap | Capital lease of | CAN$6,629.01 | |||
Canada, Ltd.
|
office equipment | (as of January 31, 2009) |
EMS TECHNOLOGIES, INC.
SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
SECOND AMENDMENT TO CREDIT AGREEMENT AND CONSENT
