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GUARANTEE AGREEMENT
made by
AEROFLEX INCORPORATED
and certain of its Subsidiaries
in favor of
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
Dated as of March 21, 2006
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINED TERMS...................................................2
1.1 Definitions.....................................................2
1.2 Other Definitional Provisions...................................3
SECTION 2. GUARANTEE.......................................................3
2.1 Guarantee.......................................................3
2.2 Right of Contribution...........................................4
2.3 No Subrogation..................................................4
2.4 Amendments, etc. with respect to the Borrower Obligations.......5
2.5 Guarantee Absolute and Unconditional............................5
2.6 Reinstatement...................................................6
2.7 Payments........................................................6
SECTION 3. REPRESENTATIONS AND WARRANTIES..................................6
SECTION 4. COVENANTS.......................................................6
SECTION 5. MISCELLANEOUS...................................................6
5.1 Amendments in Writing...........................................6
5.2 Notices.........................................................6
5.3 No Waiver by Course of Conduct; Cumulative Remedies.............7
5.4 Enforcement Expenses; Indemnification...........................7
5.5 Successors and Assigns..........................................7
5.6 Set-Off.........................................................7
5.7 Counterparts....................................................8
5.8 Severability....................................................8
5.9 Section Headings................................................8
5.10 Integration.....................................................8
5.11 GOVERNING LAW...................................................8
5.12 Submission To Jurisdiction; Waivers.............................8
5.13 Acknowledgements................................................9
5.14 Additional Guarantors...........................................9
5.15 Releases........................................................9
5.16 WAIVER OF JURY TRIAL............................................9
SCHEDULES
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Schedule 1 Notice Addresses
Schedule 2 Jurisdictions of Organization and Chief Executive Offices
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GUARANTEE AGREEMENT
GUARANTEE AGREEMENT, dated as of March 21, 2006, made by each of the
signatories hereto, in favor of JPMorgan Chase Bank, N.A., as Administrative
Agent (in such capacity, the "Administrative Agent") for the banks and other
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financial institutions or entities (the "Lenders") from time to time parties to
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the Credit Agreement, dated as of March 21, 2006 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among Aeroflex
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Incorporated ("Aeroflex"), Aeroflex Test Solutions Limited ("Solutions" and,
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collectively with Aeroflex, the "Borrowers"), the Lenders and the Administrative
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Agent.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make extensions of credit to the Borrowers upon the terms and subject
to the conditions set forth therein;
WHEREAS, each Borrower is a member of an affiliated group of companies that
includes each other Guarantor;
WHEREAS, the proceeds of the extensions of credit under the Credit
Agreement will be used in part to enable the Borrowers to make valuable
transfers to one or more of the Guarantors in connection with the operation of
their respective businesses;
WHEREAS, the Borrowers and the Guarantors are engaged in related
businesses, and each Guarantor will derive substantial direct and indirect
benefit from the making of the extensions of credit under the Credit Agreement;
and
WHEREAS, it is a condition precedent to the obligation of the Lenders to
make their respective extensions of credit to the Borrowers under the Credit
Agreement that the Guarantors shall have executed and delivered this Agreement
to the Administrative Agent for the ratable benefit of the Credit Parties;
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective extensions of credit to the
Borrowers thereunder, each Guarantor hereby agrees with the Administrative
Agent, for the ratable benefit of the Credit Parties, as follows:
SECTION 1. DEFINED TERMS
1.1 Definitions. (a). Unless otherwise defined herein, terms defined in
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the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
(b) The following terms shall have the following meanings:
"Agreement": this Guarantee Agreement, as the same may be amended,
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supplemented or otherwise modified from time to time.
"Borrower Obligations": with respect to each of the Borrowers, the
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collective reference to the unpaid principal of and interest on the Loans and
Reimbursement Obligations and all other obligations and liabilities of such
Borrower (including, without limitation, interest accruing at the then
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applicable rate provided in the Credit Agreement after the maturity of the Loans
and Reimbursement Obligations and interest accruing at the then applicable rate
provided in the Credit Agreement after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or like proceeding,
relating to such Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding) to the Administrative
Agent or any Lender (or, in the case of any Specified Swap Agreement, any
Affiliate of any Lender), whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, the Credit Agreement, this Agreement, the
other Loan Documents, any Letter of Credit, any Specified Swap Agreement or any
other document made, delivered or given in connection with any of the foregoing,
in each case whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses or otherwise (including, without
limitation, all fees and disbursements of counsel to the Administrative Agent or
to the Lenders that are required to be paid by such Borrower pursuant to the
terms of any of the foregoing agreements).
"Credit Parties": the collective reference to the Administrative Agent, the
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Lenders and any affiliate of any Lender to which Borrower Obligations or
Guarantor Obligations, as applicable, are owed.
"Guarantor Obligations": with respect to any Guarantor, all obligations and
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liabilities of such Guarantor which may arise under or in connection with this
Agreement (including, without limitation, Section 2) or any other Loan Document,
any Specified Swap Agreement to which such Guarantor is a party, in each case
whether on account of guarantee obligations, reimbursement obligations, fees,
indemnities, costs, expenses or otherwise (including, without limitation, all
fees and disbursements of counsel to the Administrative Agent or to the Lenders
that are required to be paid by such Guarantor pursuant to the terms of this
Agreement or any other Loan Document).
"Guarantors": (a) with respect to the Borrower Obligations of Aeroflex,
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each of the signatories to this Agreement (together with any other entity that
may become a party hereto as provided herein) other than Aeroflex; and (b) with
respect to the Borrower Obligations of Solutions, each of the signatories to
this Agreement (together with any other entity that may become a party hereto as
provided herein).
"Obligations": (i) in the case each of the Borrowers, its respective
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Borrower Obligations, and (ii) in the case of each Guarantor, its Guarantor
Obligations.
"Subsidiary Guarantors": the collective reference to each Guarantor other
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than Aeroflex.
1.2 Other Definitional Provisions. (a) The words "hereof," "herein",
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"hereto" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section and Schedule references are to this Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
SECTION 2. GUARANTEE
2.1 Guarantee. (a) Each of the Guarantors hereby, jointly and severally,
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unconditionally and irrevocably, guarantees to the Administrative Agent, for the
ratable benefit of the Credit Parties and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
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performance by each of the Borrowers when due (whether at the stated maturity,
by acceleration or otherwise) of the Borrower Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder and under the
other Loan Documents shall in no event exceed the amount which can be guaranteed
by such Guarantor under applicable federal and state laws relating to the
insolvency of debtors (after giving effect to the right of contribution
established in Section 2.2).
(c) Each Guarantor agrees that the Borrower Obligations may at any time and
from time to time exceed the amount of the liability of such Guarantor hereunder
without impairing the guarantee contained in this Section 2 or affecting the
rights and remedies of the Administrative Agent or any Lender hereunder.
(d) The guarantee contained in this Section 2 shall remain in full force
and effect until all the Borrower Obligations and the obligations of each
Guarantor under the guarantee contained in this Section 2 shall have been
satisfied by payment in full, no Letter of Credit shall be outstanding and the
Revolving Commitments shall be terminated, notwithstanding that from time to
time during the term of the Credit Agreement the Borrowers may be free from any
Borrower Obligations.
(e) No payment made by either of the Borrowers, any of the Guarantors, any
other guarantor or any other Person or received or collected by the
Administrative Agent or any Lender from either of the Borrowers, any of the
Guarantors, any other guarantor or any other Person by virtue of any action or
proceeding or any set-off or appropriation or application at any time or from
time to time in reduction of or in payment of the Borrower Obligations shall be
deemed to modify, reduce, release or otherwise affect the liability of any
Guarantor hereunder which shall, notwithstanding any such payment (other than
any payment made by such Guarantor in respect of the Borrower Obligations or any
payment received or collected from such Guarantor in respect of the Borrower
Obligations), remain liable for the Borrower Obligations up to the maximum
liability of such Guarantor hereunder until the Borrower Obligations are paid in
full, no Letter of Credit shall be outstanding and the Revolving Commitments are
terminated.
2.2 Right of Contribution. Each Subsidiary Guarantor hereby agrees that
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to the extent that a Subsidiary Guarantor shall have paid more than its
proportionate share of any payment made hereunder, such Subsidiary Guarantor
shall be entitled to seek and receive contribution from and against any other
Subsidiary Guarantor hereunder which has not paid its proportionate share of
such payment. Each Subsidiary Guarantor's right of contribution shall be subject
to the terms and conditions of Section 2.3. The provisions of this Section 2.2
shall in no respect limit the obligations and liabilities of any Subsidiary
Guarantor to the Administrative Agent and the Lenders, and each Subsidiary
Guarantor shall remain liable to the Administrative Agent and the Lenders for
the full amount guaranteed by such Subsidiary Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any Guarantor
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hereunder or any set-off or application of funds of any Guarantor by the
Administrative Agent or any Lender, no Guarantor shall be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against either of the Borrowers or any Guarantor or any collateral security or
guarantee or right of offset held by the Administrative Agent or any Lender for
the payment of the Borrower Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from either of the Borrowers
or any Guarantor in respect of payments made by such Guarantor hereunder, until
all amounts owing to the Administrative Agent and the Lenders by each of the
Borrowers on account of the Borrower Obligations are paid in full, no Letter of
Credit shall be outstanding and the Revolving Commitments are terminated. If any
amount shall be paid to any Guarantor on account of such subrogation rights at
any time when all
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of the Borrower Obligations shall not have been paid in full, such amount shall
be held by such Guarantor in trust for the Administrative Agent and the Lenders,
segregated from other funds of such Guarantor, and shall, forthwith upon receipt
by such Guarantor, be turned over to the Administrative Agent in the exact form
received by such Guarantor (duly indorsed by such Guarantor to the
Administrative Agent, if required), to be applied against the Borrower
Obligations, whether matured or unmatured, in such order as the Administrative
Agent may determine.
2.4 Amendments, etc. with respect to the Borrower Obligations. Each
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Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Borrower
Obligations made by the Administrative Agent or any Lender may be rescinded by
the Administrative Agent or such Lender and any of the Borrower Obligations
continued, and the Borrower Obligations, or the liability of any other Person
upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Administrative Agent or any Lender, and the
Credit Agreement and the other Loan Documents and any other documents executed
and delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Administrative Agent (or the Required
Lenders or all Lenders, as the case may be) may deem advisable from time to
time, and any collateral security, guarantee or right of offset at any time held
by the Administrative Agent or any Lender for the payment of the Borrower
Obligations may be sold, exchanged, waived, surrendered or released. Neither the
Administrative Agent nor any Lender shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the
Borrower Obligations or for the guarantee contained in this Section 2 or any
property subject thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any and
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all notice of the creation, renewal, extension or accrual of any of the Borrower
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon the guarantee contained in this Section 2 or acceptance of the
guarantee contained in this Section 2; the Borrower Obligations, and any of
them, shall conclusively be deemed to have been created, contracted or incurred,
or renewed, extended, amended or waived, in reliance upon the guarantee
contained in this Section 2; and all dealings between either of the Borrowers
and any of the Guarantors, on the one hand, and the Administrative Agent and the
Lenders, on the other hand, likewise shall be conclusively presumed to have been
had or consummated in reliance upon the guarantee contained in this Section 2.
Each Guarantor waives diligence, presentment, protest, demand for payment and
notice of default or nonpayment to or upon either of the Borrowers or any of the
Guarantors with respect to the Borrower Obligations. Each Guarantor understands
and agrees that the guarantee contained in this Section 2 shall be construed as
a continuing, absolute and unconditional guarantee of payment without regard to
(a) the validity or enforceability of the Credit Agreement or any other Loan
Document, any of the Borrower Obligations or any other collateral security
therefor or guarantee or right of offset with respect thereto at any time or
from time to time held by the Administrative Agent or any Lender, (b) any
set-off or counterclaim which may at any time be available to or be asserted by
either of the Borrowers or any other Person against the Administrative Agent or
any Lender, or (c) any other circumstance whatsoever (with or without notice to
or knowledge of either of the Borrowers or such Guarantor) which constitutes, or
might be construed to constitute, an equitable or legal discharge of either of
the Borrowers for the Borrower Obligations, or of such Guarantor under the
guarantee contained in this Section 2, in bankruptcy or in any other instance.
When making any demand hereunder or otherwise pursuing its rights and remedies
hereunder against any Guarantor, the Administrative Agent or any Lender may, but
shall be under no obligation to, make a similar demand on or otherwise pursue
such rights and remedies as it may have against either of the Borrowers, any
Guarantor or any other Person or against any collateral security or guarantee
for the Borrower Obligations or any right of offset with respect thereto, and
any failure by the Administrative Agent or any Lender to
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make any such demand, to pursue such other rights or remedies or to collect any
payments from either of the Borrowers, any Guarantor or any other Person or to
realize upon any such collateral security or guarantee or to exercise any such
right of offset, or any release either of the Borrowers, any Guarantor or any
other Person or any such collateral security, guarantee or right of offset,
shall not relieve any Guarantor of any obligation or liability hereunder, and
shall not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the Administrative Agent or any Lender against
any Guarantor. For the purposes hereof "demand" shall include the commencement
and continuance of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2 shall
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continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Borrower Obligations is rescinded or
must otherwise be restored or returned by the Administrative Agent or any Lender
upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of
either of the Borrowers or any Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, either of the Borrowers or any Guarantor or any substantial part of
its property, or otherwise, all as though such payments had not been made.
2.7 Payments. Each Guarantor hereby guarantees that payments hereunder
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will be paid to the Administrative Agent without set-off or counterclaim in
Dollars at the Funding Office.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into the Credit
Agreement and to induce the Lenders to make their respective extensions of
credit to each of the Borrowers thereunder, each Guarantor hereby represents and
warrants to the Administrative Agent and each Lender that on the date hereof,
such Subsidiary Guarantor's jurisdiction of organization, identification number
from the jurisdiction of organization (if any), and the location of such
Subsidiary Guarantor's chief executive office or sole place of business or
principal residence, as the case may be, are specified on Schedule 2. Such
Subsidiary Guarantor has furnished to the Administrative Agent a certified
charter, certificate of incorporation or other organization document and
long-form good standing certificate as of a date which is recent to the date
hereof.
SECTION 4. COVENANTS
Each Guarantor covenants and agrees with the Administrative Agent and the
Lenders that, from and after the date of this Agreement until the Obligations
shall have been paid in full, no Letter of Credit shall be outstanding and the
Revolving Commitments shall have terminated, such Guarantor will not, except
upon 15 days' prior written notice to the Administrative Agent, change its
jurisdiction of organization or the location of its chief executive office or
sole place of business or principal residence from that referred to in Section
3.1.
SECTION 5. MISCELLANEOUS
5.1 Amendments in Writing. None of the terms or provisions of this
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Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with Section 10.1 of the Credit Agreement.
5.2 Notices. All notices, requests and demands to or upon the
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Administrative Agent or any Guarantor hereunder shall be effected in the manner
provided for in Section 10.2 of the Credit
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Agreement; provided that any such notice, request or demand to or upon any
Guarantor shall be addressed to such Guarantor at its notice address set forth
on Schedule 1.
5.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
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Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 5.1), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Administrative Agent or any Lender of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Administrative Agent or such Lender would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
5.4 Enforcement Expenses; Indemnification. (a) Each Guarantor agrees to
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pay or reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in collecting against such Guarantor under the guarantee
contained in Section 2 or otherwise enforcing or preserving any rights under
this Agreement and the other Loan Documents to which such Guarantor is a party,
including, without limitation, the reasonable fees and disbursements of counsel
to each Lender and of counsel to the Administrative Agent.
(b) Each Guarantor agrees to pay, and to save the Administrative Agent and
the Lenders harmless from, any and all liabilities with respect to, or resulting
from any delay in paying, any and all stamp, excise, sales or other taxes which
may be payable or determined to be payable with respect to any of the Collateral
or in connection with any of the transactions contemplated by this Agreement.
(c) Each Guarantor agrees to pay, and to save the Administrative Agent and
the Lenders harmless from, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement to the extent each
of the Borrowers would be required to do so pursuant to Section 10.5 of the
Credit Agreement.
(d) The agreements in this Section 5.4 shall survive repayment of the
Obligations and all other amounts payable under the Credit Agreement and the
other Loan Documents.
5.5 Successors and Assigns. This Agreement shall be binding upon the
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successors and assigns of each Guarantor and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and assigns; provided
that no Guarantor may assign, transfer or delegate any of its rights or
obligations under this Agreement without the prior written consent of the
Administrative Agent.
5.6 Set-Off. Each Guarantor hereby irrevocably authorizes the
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Administrative Agent and each Lender at any time and from time to time, without
notice to such Guarantor or any other Guarantor, any such notice being expressly
waived by each Guarantor, to set-off and appropriate and apply any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Administrative Agent or such Lender
to or for the credit or the account of such Guarantor, or any part thereof in
such amounts as the Administrative Agent or such Lender may elect, against and
on account of the obligations and liabilities of such Guarantor to the
Administrative Agent or such Lender hereunder and claims of every nature and
description of the Administrative Agent or such Lender against such Guarantor,
in any currency, whether
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arising hereunder, under the Credit Agreement, any other Loan Document or
otherwise, as the Administrative Agent or such Lender may elect, whether or not
the Administrative Agent or any Lender has made any demand for payment and
although such obligations, liabilities and claims may be contingent or
unmatured. The Administrative Agent and each Lender shall notify such Guarantor
promptly of any such set-off and the application made by the Administrative
Agent or such Lender of the proceeds thereof, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of the Administrative Agent and each Lender under this Section 5.6 are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Administrative Agent or such Lender may have.
5.7 Counterparts. This Agreement may be executed by one or more of the
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parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
5.8 Severability. Any provision of this Agreement which is prohibited or
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unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
5.9 Section Headings. The Section headings used in this Agreement are
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for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
5.10 Integration. This Agreement and the other Loan Documents represent
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the agreement of the Guarantors, the Administrative Agent and the Lenders with
respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof and thereof not expressly set forth or
referred to herein or in the other Loan Documents.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
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AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
5.12 Submission To Jurisdiction; Waivers. Each Guarantor hereby
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irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Agreement and the other Loan Documents to which it is a party,
or for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage
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prepaid, to such Guarantor at its address referred to in Section 5.2 or at such
other address of which the Administrative Agent shall have been notified
pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to sue in
any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may
have to claim or recover in any legal action or proceeding referred to in this
Section any special, exemplary, punitive or consequential damages.
5.13 Acknowledgements. Each Guarantor hereby acknowledges that:
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(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents to which it is a party;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to any Guarantor arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Guarantors, on the one hand, and the Administrative Agent and Lenders, on
the other hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Guarantors and the Lenders.
5.14 Additional Guarantors. Each Subsidiary of Aeroflex (other than any
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Excluded Foreign Subsidiary or Immaterial Subsidiary) is required to become a
party to this Agreement and shall become a Guarantor for all purposes of this
Agreement upon execution of this Agreement or upon execution and delivery by
such Subsidiary of an Assumption Agreement in the form of Annex 1 hereto.
5.15 Releases. (a) At such time as the Loans, the Reimbursement
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Obligations and the other Obligations (other than Obligations in respect of
Specified Swap Agreements) shall have been paid in full, the Revolving
Commitments have been terminated and no Letters of Credit shall be outstanding,
this Agreement and all obligations (other than those expressly stated to survive
such termination) of the Administrative Agent and each Guarantor hereunder shall
terminate, all without delivery of any instrument or performance of any act by
any party.
(b) At the request and sole expense of the Borrowers, a Subsidiary
Guarantor shall be released from its obligations hereunder in the event that all
the Capital Stock of such Subsidiary Guarantor shall be sold, transferred or
otherwise disposed of in a transaction permitted by the Credit Agreement;
provided that the Borrowers shall have delivered to the Administrative Agent, at
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least ten Business Days prior to the date of the proposed release, a written
request for release identifying the relevant Subsidiary Guarantor and the terms
of the sale or other disposition in reasonable detail, including the price
thereof and any expenses in connection therewith, together with a certification
by the Borrowers stating that such transaction is in compliance with the Credit
Agreement and the other Loan Documents.
5.16 WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY IRREVOCABLY AND
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UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee
Agreement to be duly executed and delivered as of the date first above written.
AEROFLEX INCORPORATED
AEROFLEX PLAINVIEW, INC.
AEROFLEX POWELL, INC.
AEROFLEX COLORADO SPRINGS, INC.
AEROFLEX WITCHITA, INC.
AEROFLEX MICROELECTRONIC SOLUTIONS, INC.
AEROFLEX / INMET, INC.
AEROFLEX / WEINSCHEL, INC.
AEROFLEX / KDI, INC.
AEROFLEX / METELICS, INC.
IFR SYSTEMS, INC.,
IFR FINANCE, INC.
MCE ASIA, INC.,
as Guarantors
By: /s/Charles T. Badlato
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Name: Charles T. Badlato
Title: Assistant Secretary of each of the above
entities
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NOTICE ADDRESSES OF GUARANTORS
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Schedule 2
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LOCATION OF JURISDICTION OF ORGANIZATION AND CHIEF EXECUTIVE OFFICE
Subsidiary Guarantor Jurisdiction of Location of Chief
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Organization Executive Office
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12
Annex 1 to
Guarantee Agreement
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ASSUMPTION AGREEMENT, dated as of ______________, 200_, made by
______________________________ (the "Additional Guarantor"), in favor of
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JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the
"Administrative Agent") for the banks and other financial institutions or
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entities (the "Lenders") parties to the Credit Agreement referred to below. All
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capitalized terms not defined herein shall have the meaning ascribed to them in
such Credit Agreement.
W I T N E S S E T H :
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WHEREAS, Aeroflex Incorporated ("Aeroflex"), Aeroflex Test Solutions
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Limited ("Solutions" and collectively with Aeroflex, the "Borrowers"), the
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Lenders and the Administrative Agent have entered into a Credit Agreement, dated
as of March 21, 2006 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement");
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WHEREAS, in connection with the Credit Agreement, the Borrowers and certain
of its Affiliates (other than the Additional Guarantor) have entered into the
Guarantee Agreement, dated as of March 21, 2006 (as amended, supplemented or
otherwise modified from time to time, the "Guarantee Agreement") in favor of the
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Administrative Agent for the ratable benefit of the Credit Parties;
WHEREAS, the Guarantee Agreement requires the Additional Guarantor to
become a party to the Guarantee Agreement; and
WHEREAS, the Additional Guarantor has agreed to execute and deliver this
Assumption Agreement in order to become a party to the Guarantee Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee Agreement. By executing and delivering this Assumption
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Agreement, the Additional Guarantor, as provided in Section 5.14 of the
Guarantee Agreement, hereby becomes a party to the Guarantee Agreement as a
Guarantor thereunder with the same force and effect as if originally named
therein as a Guarantor and, without limiting the generality of the foregoing,
hereby expressly assumes all obligations and liabilities of a Guarantor
thereunder. The information set forth in Annex 1-A hereto is hereby added to the
information set forth in the Schedules to the Guarantee Agreement. The
Additional Guarantor hereby represents and warrants that each of the
representations and warranties contained in Section 3 of the Guarantee Agreement
is true and correct on and as the date hereof (after giving effect to this
Assumption Agreement) as if made on and as of such date.
2. Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND
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CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to
be duly executed and delivered as of the date first above written.
[ADDITIONAL GUARANTOR]
By:___________________________
Name:
Title:
2
Annex 1-A to
Assumption Agreement
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Supplement to Schedule 1
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Supplement to Schedule 2
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