EX-4.9 AMENDMENT 3 TO US REVOLVING CREDIT AGRMT



 





EXHIBIT 4.9




THIRD AMENDMENT AND CONSENT




          THIS THIRD AMENDMENT AND CONSENT dated as of November 30, 2006 (this “Amendment”), by
and among EMS TECHNOLOGIES, INC., a Georgia corporation (the “Borrower”), the Lenders
listed on the signature page hereof and SUNTRUST BANK, in its capacity as the Administrative Agent
(the “Administrative Agent”).




W I T N E S S E T H:




          WHEREAS, the Borrower, the Lenders and the Administrative Agent entered into that certain U.S.
Revolving Credit Agreement dated as of December 10, 2004, as amended by that certain First
Amendment to U.S. Revolving Credit Agreement dated as of February 11, 2005 and as further amended
by that certain Second Amendment, Limited Waiver and Consent dated as of August 10, 2005 (as so
amended, the “Credit Agreement”);




          WHEREAS, the Borrower, the Lenders and the Administrative Agent desire to amend the Credit
Agreement in certain respects on the terms and conditions contained herein; and




          WHEREAS, the Borrower has informed the Administrative Agent and the Lenders that the Borrower
intends to sell the assets of the business currently conducted by the Borrower’s EMS Wireless
division (the “Wireless Assets”) and has requested that the Administrative Agent and the
Lenders consent to the sale of the Wireless Assets as required under Section 7.6 of the Credit
Agreement.




          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 Administrative
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. Amendments.




     (a) The Credit Agreement is hereby amended by adding the following new defined terms to
Section 1.1. in the appropriate alphabetical order:




“‘Collateral Account’ means a deposit account established with and maintained by the
Issuing Bank for the purpose of holding cash collateral to secure obligations owing
by the Borrower to the Issuing Bank under and in respect of Letters of Credit.”




“‘Facility Termination Date’ has the meaning set forth in Section 2.27.”



     (b) The Credit Agreement is hereby further amended by deleting subsection (a) of Section 2.26.
in its entirety and inserting in lieu thereof the following:



 









 






“(a) During the Availability Period, the Issuing Bank, in reliance upon the
agreements of the other Lenders pursuant to Section 2.26(e), agrees to
issue, at the request of the Borrower, Letters of Credit for the account of the
Borrower on the terms and conditions hereinafter set forth; provided, that (i) each
Letter of Credit shall be a standby letter of credit which shall expire not later
than the date that is eighteen (18) months after the date of issuance of such Letter
of Credit (or in the case of any renewal or extension thereof, one year after such
renewal or extension); (ii) each Letter of Credit shall be in a stated amount of at
least $50,000; and (iii) the Borrower may not request any Letter of Credit, if,
after giving effect to such issuance (A) the aggregate LC Exposure would exceed the
LC Commitment or (B) the aggregate LC Exposure, plus the aggregate
outstanding Revolving Loans of all Lenders would exceed the Aggregate Revolving
Commitments. Upon the issuance of each Letter of Credit (including the Existing
Letters of Credit), each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Bank without recourse a
participation in such Letter of Credit equal to such Lender’s Pro Rata Share of the
aggregate amount available to be drawn under such Letter of Credit. Each issuance
of a Letter of Credit shall be deemed to utilize the Revolving Commitment of each
Lender by an amount equal to the amount of such participation.”



(c) The Credit Agreement is hereby further amended by adding the following new Sections 2.27.
and 2.28 immediately following Section 2.26 thereof:




“Section 2.27. Expiration or Termination Date of Letters of Credit Past Commitment
Termination Date.




Upon the Facility Termination Date (as defined below), the Borrower shall deposit in
the Collateral Account with the Issuing Bank an amount of Dollars equal to 105%
times the aggregate stated amount of all Letters of Credit with an expiration or
termination date occurring after the Facility Termination Date. If a drawing
pursuant to any such Letter of Credit occurs on or prior to the expiration or
termination date of such Letter of Credit but after the Facility Termination Date,
the Borrower hereby authorizes the Issuing Bank to use the monies deposited in the
Collateral Account to make payment to the beneficiary or other payee with respect to
such drawing. If no drawing occurs on or prior to the expiration or termination
date of such Letter of Credit, the Issuing Bank shall return to the Borrower the
monies deposited in the Collateral Account with respect to such outstanding Letter
of Credit on or before the date thirty (30) Business Days after the expiration or
termination date with respect to such Letter of Credit. The “Facility
Termination Date” shall mean the earlier of (a) the date that is ten (10)
Business Days prior to the Commitment Termination Date and (b) the date on which
this Agreement or the Commitments are terminated (whether voluntarily, by reason of
the occurrence of an Event of Default or otherwise).



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Section 2.28. Collateral Account.




     The Collateral Account shall be in the name of the Issuing Bank as a cash
collateral account and the Issuing Bank shall have sole dominion and control over,
and sole access to, the Collateral Account subject to the Issuing Bank’s obligations
set forth in Section 2.27 and this Section 2.28. Neither the Borrower nor any
Person claiming on behalf of or through the Borrower shall have any right to
withdraw any of the funds held in the Collateral Account. The Borrower agrees that
it will not (i) sell or otherwise dispose of any interest in the Collateral Account
or any funds held therein, or (ii) create or permit to exist any Lien upon or with
respect to the Collateral Account or any funds held therein, except as expressly
provided in this Agreement. The Issuing Bank shall exercise reasonable care in the
custody and preservation of any funds held in the Collateral Account and shall be
deemed to have exercised such care if such funds are accorded treatment
substantially equivalent to that which the Issuing Bank accords other funds
deposited with the Issuing Bank, it being understood that the Issuing Bank shall not
have any responsibility for taking any necessary steps to preserve rights against
any parties with respect to any funds held in the Collateral Account. Subject to
the right of the Issuing Bank to withdraw funds from the Collateral Account as
provided herein, the Issuing Bank may in its sole discretion and without any
obligation to do so whatsoever invest funds on deposit in the Collateral Account,
reinvest proceeds of any such investments which may mature or be sold, and invest
interest or other income received from any such investments, in each case, in
Permitted Investments of the type described in clauses (a) through (e) of the
definition thereof, as the Issuing Bank may select or in such other investments as
shall be agreed upon by the Issuing Bank and the Borrower. Unless the Facility
Termination Date has occurred by reason of the occurrence of an Event of Default,
the proceeds of such investments shall be the property of the Borrower and the
Issuing Bank shall account to the Borrower for any such investments from time to
time as agreed upon by the Borrower and the Issuing Bank. However, if an Event of
Default has occurred and is continuing and any Obligations remain outstanding,
proceeds of investments shall be distributed to the Lenders pro rata in accordance
with their respective Pro Rata Share at such times as the Administrative Agent and
the Issuing Bank shall reasonably designate. After payment in full of all
Obligations and/or the expiration of all Letters of Credit and the distribution of
monies contained therein to the Lenders as provided above, the Issuing Bank shall
deliver to the Borrower any monies remaining in the Collateral Account.”



(d) The Credit Agreement is hereby further amended by re-numbering clauses (e) and (f) in
Section 5.2 thereof as clauses (f) and (g), respectively, and adding the following new clause (e)
in the appropriate alphabetic order:




“(e) any claims or potential claims arising under that certain Asset Purchase
Agreement dated as of October 31, 2006 between Andrew Corporation and the Borrower
with respect to breaches, misrepresentations or indemnities of either party which
could reasonably be expected to equal or exceed $1,000,000;”



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3. 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
Wireless Assets in accordance with the terms of that certain Asset Purchase Agreement dated as of
October 31, 2006 between Andrew Corporation and the Borrower. 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
Administrative Agent following the occurrence of any present or future Default or Event of Default
(whether or not related to the sale of the Wireless Assets) under the Credit Agreement or any other
Loan Document.



4. Effectiveness of Amendment. The effectiveness of this Amendment 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 Administrative Agent of counterparts of this Amendment duly
executed by the Borrower, the Subsidiary Loan Parties, the Administrative Agent and the
Lenders constituting the Required Lenders;
	 
	 	(b)	 	Receipt by the Administrative Agent of the Written Consent of the Instructing
Group attached hereto duly executed by the Instructing Group (as defined in the
Intercreditor Agreement) and instructing the Collateral Agent to release its Liens on
the Wireless Assets;
	 
	 	(c)	 	Payment of all fees, costs and expenses of the Administrative Agent and
Lenders, including the fees of Administrative Agent’s counsel incurred through the date
of this Amendment; and
	 
	 	(d)	 	Such other documents, agreements, instruments, certificates or other
confirmations as the Administrative Agent may reasonably request.




5. Representations of the Borrower. The Borrower represents and warrants to the
Administrative Agent and the Lenders that:




     (a) Corporate Power and Authority. The execution, delivery and performance of this
Amendment 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 Borrower has duly executed
and delivered the Amendment, and, both the Amendment and the Credit Agreement as amended by the
Amendment, constitute the Borrower’s legal, valid and binding obligation 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 generally



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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 Amendment 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, (i) the execution, delivery and performance of the
Amendment by the Borrower or (ii) the legality, validity, binding effect or enforceability of any
such Amendment against the Borrower.



     (c) No Default. No Default or Event of Default will exist immediately after giving
effect to this Amendment.


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
Administrative 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 Amendment) with the same
force and effect as if such representations and warranties were set forth in this Amendment in full
(except to the extent that such representations and warranties relate expressly to an earlier
date).



7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAW OF THE STATE OF GEORGIA.



8. No Further Amendments; Ratification of Liability. Except as expressly amended hereby,
the Credit Agreement and each of the other Loan Documents shall remain in full force and effect in
accordance with their respective terms. The Borrower hereby ratifies, confirms and reaffirms its
liabilities, its payment and performance obligations (contingent or otherwise) and its agreements
under the Credit Agreement and the other Loan Documents to the extent the Borrower is a party
thereto, all as amended by this Amendment, and the liens and security interests granted, created
and perfected thereby.



9. No Waiver; References to the Credit Agreement. Nothing contained herein shall be deemed
to constitute a waiver of compliance with any term or condition contained in the Credit Agreement
or any of the other Loan Documents, or constitute a course of conduct or dealing among the parties.
The Administrative Agent and the Lenders reserve all rights, privileges and remedies under the
Loan Documents. Each reference to the Credit Agreement in any of the Loan Documents (including the
Credit Agreement) shall be deemed to be a reference to the Credit Agreement, as amended by this
Amendment.



10. No Novation. Nothing in this Amendment is intended, or shall be construed, to
constitute a novation or an accord and satisfaction of any of the Obligations or to modify, affect
or impair the perfection, priority or continuation of the security interests in, security titles to
or other Liens on any Collateral for the Obligations.



11. Benefits. This Amendment shall be binding upon and shall inure to the benefit of the
parties


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hereto and their respective permitted successors and assigns. This Amendment is solely for
the benefit of the Borrower, the Lenders and the Administrative Agent, and no term or provision
hereof shall be deemed to confer and benefit or rights on any other Person.



12. Expenses. The Borrower agrees to reimburse the Lenders and the Administrative Agent on
demand for all reasonable costs and expenses (including, without limitation, attorneys’ fees)
incurred by such parties in negotiating, documenting and consummating this Amendment, the other
documents referred to herein, and the transactions contemplated hereby and thereby.



13. Severability. In case any provision of or obligation under this Amendment shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.



14. Headings. Headings and captions used in this Amendment are included for convenience of
reference only and shall not be given any substantive effect.



15. Counterparts; Integration. This Amendment may be executed and delivered via facsimile
with the same force and effect as if an original were executed and may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the signatures hereto
were upon the same instrument. This Amendment constitutes the entire agreement and understanding
among the parties hereto with respect to the subject matter hereof and supersede any and all prior
agreements and understandings, oral or written, relating to the subject matter hereof.




[SIGNATURES ON FOLLOWING PAGES]




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          IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent have caused
this Third Amendment and Consent to be duly executed by their respective duly authorized officers
as of the day and year first above written.




	 	 	 	 	 	 	 
	 	 	EMS TECHNOLOGIES, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	SUNTRUST BANK, in its capacities as a Lender,	 	 
	 	 	Swingline Lender and as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	BANK OF AMERICA, NATIONAL ASSOCIATION,	 	 
	 	 	in its capacity as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	GENERAL ELECTRIC CAPITAL CORPORATION,	 	 
	 	 	in its capacity as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 






 









 





REAFFIRMATION OF OBLIGATIONS UNDER LOAN DOCUMENTS




     Each of the undersigned Subsidiary Loan Parties hereby reaffirms its continuing obligations
owing to the Administrative Agent and each Lender under the Loan Documents to which such Person is
a party and agrees that the foregoing Third Amendment and 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 State of Georgia.



     IN WITNESS WHEREOF, each of the undersigned has duly executed and delivered this Reaffirmation
of Obligations under Loan Documents as of November 30, 2006.



	 	 	 	 	 	 	 	 	 
	 	 	EMS INVESTMENT HOLDINGS, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	LXE INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:
	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Title:
	 	 	 	 
	 

	 	 	 	 	 	 	 	 






 









 








WRITTEN CONSENT OF THE INSTRUCTING GROUP




November 30, 2006




SunTrust Bank, as Collateral Agent

c/o SunTrust Robinson Humphrey

303 Peachtree Street, N.E./25th Floor

Atlanta, GA 30308

Attention: Agency Services




SunTrust Bank

303 Peachtree Street, N.E., 3rd Floor

Atlanta, GA 30308

Attention: Bradley J. Staples




Ladies and Gentlemen:



Reference is hereby made to that certain Third Amendment and Consent dated as of the date hereof
(the “Third Amendment”) by and among EMS Technologies, Inc. (the “Borrower”), the
lenders party thereto (the “Lenders”) and SunTrust Bank (the “Administrative
Agent”) which amends that certain U.S. Revolving Credit Agreement dated as of December 10, 2004
(the “Credit Agreement”) by and among the Borrower, the Lenders and the Administrative
Agent. Unless otherwise stated herein, capitalized terms used and not defined herein shall have
the respective meanings given such terms in the Third Amendment or the Credit Agreement as
applicable.



Pursuant to Section 6.01(d) of the Intercreditor Agreement, the undersigned, constituting the
Instructing Group under and as defined in the Intercreditor Agreement, consent to the Collateral
Agent’s release of the Collateral Agent’s Liens on the Wireless Assets. The undersigned hereby
authorize and instruct the Collateral Agent to take such actions as may be necessary to release and
terminate such Liens.




[Signatures on Following Pages]




 









 








[Signature page to Written Consent of Instructing Group]




	 	 	 	 	 	 	 
	 	 	SUNTRUST BANK	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	BANK OF AMERICA, NATIONAL ASSOCIATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	GENERAL ELECTRIC CAPITAL CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	BANK OF AMERICA, NATIONAL ASSOCIATION, CANADA BRANCH	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	GE CANADA FINANCE HOLDING COMPANY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title: