EXHIBIT 4.20
CONSENT AND AMENDMENT AGREEMENT
THIS CONSENT AND AMENDMENT AGREEMENT dated as of February ____, 2006 (this
"Consent"), by and among EMS TECHNOLOGIES CANADA, LTD., a Canadian corporation
(the "Borrower"), EMS TECHNOLOGIES, INC., a Georgia corporation
(the "Parent"), the Lenders listed on the signature page hereof and BANK OF
AMERICA, NATIONAL ASSOCIATION (CANADA BRANCH), in its capacities as the Funding
Agent and the Canadian Agent (the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Parent, the Lenders and the Agent entered into
that certain Canadian Revolving Credit Agreement dated as of December 10, 2004,
as amended by amending agreements dated as of February 11, 2005, June 24, 2005
and August 10, 2005 (as so amended, the "Credit Agreement");
WHEREAS, the Borrower has informed the Agent and the Lenders that the
Borrower intends to sell the business currently conducted by the Borrower's EMS
Satellite Networks division from leased facilities located in Montreal, Quebec
(the "SatNet Assets") and has requested that the Agent and the Lenders consent
to the sale of the SatNet Assets as required under Section 7.6 of the Credit
Agreement; and
WHEREAS, the Agent and the Lenders are willing to provide their consent to
the sale of the SatNet Assets, but only upon the terms and conditions of this
Consent.
NOW, THEREFORE, for and in consideration of good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties hereto, the Lenders, the Agent and the Borrower hereby agree as
follows:
1. DEFINED TERMS. Capitalized terms which are used herein without definition and
which are defined in the Credit Agreement shall have the same meanings ascribed
to them as in the Credit Agreement.
2. CONSENT. At the request of the Borrower, but subject to the satisfaction of
the conditions precedent set forth in Section 4 below, the Lenders hereby
consent to the sale of the SatNet Assets; provided, that (i) the Parent, the
Borrower and/or any Subsidiary of either of them receives, on the closing of
such sale, cash consideration in an amount not less than U.S.$6,400,000; (ii)
the Parent, the Borrower and/or any Subsidiary of either of them receives a
promissory note in the principal amount of not less than U.S.$2,300,000 (the
"Note"); (iii) the original of the Note, together with any required
endorsements, is pledged in accordance with the terms of the Collateral
Documents or the U.S. Loan Documents, as applicable; and (iv) (x) the Aggregate
Revolving Commitments under the Credit Agreement are permanently reduced by 25%
of the Net Proceeds of the sale of the SatNet Assets and thereafter the Borrower
repays the amount, if any, that the aggregate of all outstanding Borrowings
together with the face amount of all issued Letters of Credit then exceeds the
Aggregate Revolving Commitments (as so reduced); and (y) 25% of such Net
Proceeds are applied in
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accordance with Section 2.14 of the U.S. Revolving Credit Agreement and at such
time the Revolving Commitment under the U.S. Revolving Credit Agreement is
permanently reduced by such amount. The Borrower acknowledges and agrees that
the Net Proceeds of the Note, as and when received by the Borrower, will be
applied in the same manner (including a permanent reduction to the Commitment as
described in clause (iv) immediately above. The Borrower acknowledges and agrees
that the consent contained in the foregoing sentence shall not waive or amend
(or be deemed to be or constitute an amendment to or waiver of) any other
covenant, term or provision in the Credit Agreement or hinder, restrict or
otherwise modify the rights and remedies of the Lenders and the Agent following
the occurrence of any present or future Default or Event of Default (whether or
not related to the sale of the SatNet Assets) under the Credit Agreement or any
other Loan Document.
3. AMENDMENT TO CREDIT AGREEMENT. Section 7.13(a) of the Credit Agreement is
hereby amended by (i) deleting the words "jurisdictions identified in Schedule
II" in the fifth and sixth lines thereof and replacing them with the words "the
Province of Ontario"; (ii) adding the words "will not" before the word "store"
in the fifth line thereof; and (iii) deleting the words "one jurisdiction" in
the sixth line thereof and replacing them with the words "the Province of
Ontario".
4. EFFECTIVENESS OF CONSENT. The effectiveness of this Consent is subject to the
truth and accuracy of the representations set forth in Sections 5 and 6 below
and satisfaction of each of the following conditions:
(a) Receipt by the Agent of counterparts of this Consent duly executed
by the Borrower, each Guarantor, the Agent and the Lenders
constituting the Required Lenders;
(b) Receipt by the Agent of a consent substantially in the same form and
content as this Consent executed by each of the parties to the U.S.
Revolving Credit Agreement;
(c) Payment of all fees, costs and expenses of the Agent and Lenders,
including the fees of Agent's counsel incurred through the date of
this Consent; and
(d) Such other documents, agreements, instruments, certificates or other
confirmations as the Agent may reasonably request.
5. REPRESENTATIONS OF THE BORROWER. The Borrower represents and warrants to the
Agent and the Lenders that:
(a) Corporate Power and Authority. The execution, delivery and performance
of this Consent and the transactions contemplated hereby (i) are within the
corporate authority of the Borrower, (ii) have been duly authorized by all
necessary corporate proceedings, if any, (iii) do not and will not violate any
provision of law, statute, rule or regulation to which the Borrower is subject
or any judgment, order, writ, injunction, license or permit applicable to the
Borrower and (iv) does not violate or breach any provision of the organizational
documents of, or any agreement or other instrument binding upon, the Borrower or
its Subsidiaries. The Loan Documents constitute the legal, valid and binding
obligations of each of the Loan Parties who is a party thereto, enforceable in
accordance with their respective terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws
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generally affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law).
(b) Governmental Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except for those that have otherwise been obtained or made on or prior to the
date of the effectiveness of this Consent and which remain in full force and
effect on such date), or exemption by, any Governmental Authority, is required
to authorize, or is required in connection with, the execution, delivery and
performance of this Consent by the Borrower.
(c) No Default. No Default or Event of Default will exist immediately
after giving effect to this Consent.
6. REAFFIRMATION OF REPRESENTATIONS. Without limiting Section 5 hereof, the
Borrower hereby repeats and reaffirms all representations and warranties made by
the Borrower to the Agent and the Lenders in the Credit Agreement and the other
Loan Documents to which it is a party on and as of the date hereof (after giving
effect to this Consent) with the same force and effect as if such
representations and warranties were set forth in this Consent in full (except to
the extent that such representations and warranties relate expressly to an
earlier date).
7. GOVERNING LAW. THIS CONSENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAW OF THE PROVINCE OF ONTARIO.
8. EFFECT. Except as expressly provided for herein, the terms and conditions of
the Credit Agreement and the other Loan Documents shall remain in full force and
effect.
9. COUNTERPARTS. This Consent 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.
10. ENTIRE AGREEMENT. THIS CONSENT CONSTITUTES THE ENTIRE AGREEMENT AMONG THE
PARTIES HERETO RELATING TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY AND ALL
PREVIOUS DISCUSSIONS, CORRESPONDENCE, AGREEMENTS AND OTHER UNDERSTANDINGS,
WHETHER ORAL OR WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF.
11. RELEASE OF SECURITY. The Lenders hereby confirm that contemporaneously with
the sale of the SatNet Assets consented to hereby, the Agent will be releasing
all hypothecs and other security interests held by the Agent for the benefit of
the Lenders in the assets of the Borrower located in the Province of Quebec. The
Agent shall, and the Lenders authorize and direct the Agent to, from time to
time, execute and deliver, at the cost of the Borrower, all such discharges,
releases and other documents as the Borrower may reasonably request to give
effect to such releases.
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent have caused
this Consent and Amendment Agreement to be duly executed by their respective
duly authorized officers as of the day and year first above written.
EMS TECHNOLOGIES CANADA, LTD.
By: __________________________________
Name:
Title:
EMS TECHNOLOGIES, INC.
By: __________________________________
Name:
Title:
BANK OF AMERICA, NATIONAL ASSOCIATION,
(CANADA BRANCH) in its capacities as Funding
Agent, Canadian Administrative Agent, Issuing Bank,
Swingline Lender and Lender
By: __________________________________
Name:
Title:
GE CANADA FINANCE HOLDING COMPANY, in
its capacity as a Lender
By: __________________________________
Name:
Title:
REAFFIRMATION OF OBLIGATIONS UNDER LOAN DOCUMENTS
Each of the undersigned hereby reaffirms its continuing obligations owing
to the Agent and each Lender under the Loan Documents to which such Person is a
party and agrees that the foregoing Consent shall not in any way affect the
validity and enforceability of any such Loan Document, or reduce, impair or
discharge the obligations of such Person thereunder.
This reaffirmation shall be construed in accordance with and be governed
by the laws (without giving effect to the conflict of law principles thereof) of
the Province of Ontario.
IN WITNESS WHEREOF, each of the undersigned has duly executed and
delivered this Reaffirmation of Obligations under Loan Documents as of February
____, 2006.
EMS TECHNOLOGIES INC.
By: _________________________________
Name: __________________________
Title: __________________________
EMS INVESTMENT HOLDINGS, INC.
By: _________________________________
Name: __________________________
Title: __________________________
LXE INC.
By: _________________________________
Name: __________________________
Title: __________________________
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990834 ONTARIO INC.
By: ________________________________
Name: __________________________
Title: __________________________
