Exhibit 10.36
AMENDMENT, dated as of September 8, 2004 (this "Amendment"), to the Credit
Agreement dated as of November 17, 2003 (as amended, restated, modified or
otherwise supplemented, from time to time, the "Credit Agreement") by and among
SYMBOL TECHNOLOGIES, INC., a Delaware corporation (the "Company"), FLEET
NATIONAL BANK, a Bank of America Company, as Administrative Agent and a Lender,
BANK OF TOKYO-MITSUBISHI TRUST COMPANY, as Co-Documentation Agent and a Lender,
and JPMORGAN CHASE BANK, as Co-Documentation Agent and a Lender, and the other
lenders from time to time party thereto.
RECITALS
WHEREAS, the Company intends to enter into the Bridge Loan Facility (as
hereinafter defined), which financing provides for bridge loans of up to
$250,000,000 and the issuance by the Company of Senior Exchange Notes.
WHEREAS, the Company has requested and the Administrative Agent and the
Required Lenders have agreed, subject to the terms and conditions of this
Amendment, to amend certain provisions of the Credit Agreement as set forth
herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
1. APPROVAL AND AMENDMENTS. The Lenders hereby approve the terms of the
Bridge Loan Facility on substantially the terms set forth in the Bridge Loan
Agreement attached hereto as Exhibit A and the Exchange Note Indenture attached
hereto as Exhibit B, and any refinancing of such Indebtedness permitted in
accordance with Section 7.01(m) of the Credit Agreement. In connection with such
approval, and not in limitation thereof, the Credit Agreement is amended as
follows:
(a) Section 1.01 of the Credit Agreement is hereby amended to add the
following new definition in their appropriate alphabetical order:
"Amendment" shall mean the Amendment, dated as of September 8, 2004,
to this Agreement, by and among the Company, the Lenders and the
Administrative Agent.
"Bridge Loan Facility" shall mean (i) that certain bridge loan
facility described in the Bridge Loan Agreement attached as Exhibit
A to the Amendment and (ii) the issuance by the Company of up to
$250,000,000 of Senior Exchange Notes pursuant to the Exchange Note
Indenture attached as Exhibit B to the Amendment, as such Bridge
Loan Facility may be refinanced in accordance with the terms and
conditions set forth in Section 7.01(m) hereof.
"Consolidated Funded Debt" shall mean, on the date of determination,
the sum of all Indebtedness of the Company and its Subsidiaries,
including, without limitation, the face amount of any outstanding
Letters of Credit, on a consolidated basis, for borrowed money,
including the current portion thereof and including obligations
with respect to Capital Leases, determined in accordance with
Generally Accepted Accounting Principles applied on a consistent
basis. For purposes of this definition, Indebtedness shall exclude
the Indebtedness related to the SAILS described on Schedule 7.01 to
the Credit Agreement."
"Matrics Acquisition" shall mean the Company's acquisition of
Matrics, Inc., pursuant to the terms of that certain Agreement and
Plan of Merger among the Company, Xxxxxx Acquisition Corp. and
Matrics, Inc., dated July 26, 2004.
"Testing Period" shall mean all times during which the Company shall
have Indebtedness owing under the Bridge Loan Facility or
Indebtedness incurred to refinance such Bridge Loan Facility.
(b) Section 7.01(e) of the Credit Agreement is hereby amended to add the
following language immediately preceding the semi-colon at the end thereof:
"except that in the event the Company issues Subordinated
Indebtedness in connection with the refinancing of the Bridge Loan
Facility, the proceeds of such Subordinated Indebtedness may first
be applied to satisfy any Indebtedness owing under the Bridge Loan
Facility"
(c) Section 7.01 of the Credit Agreement is further amended to (i)
replace the period at the end of subsection "(l)" thereof with the word "and",
and (ii) to add a new subsection "(m)" immediately following subsection "(l)" as
follows:
"(m) Indebtedness of the Company owing to JPMorgan Chase Bank and
the other bridge loan lenders and noteholders pursuant to the Bridge
Loan Facility (the "Original Indebtedness") and any refinancing of
such Original Indebtedness whether through the incurrence of
Indebtedness (the "Refinancing Indebtedness") or with the proceeds
of an equity offering provided that (i) the aggregate principal
amount of such Refinancing Indebtedness is not in excess of the
Original Indebtedness refinanced thereby and (ii) the terms of such
Refinancing Indebtedness are no less favorable, taken as a whole, to
the Lenders or the Company as currently provided in the Bridge Loan
Facility; provided further that such Refinancing Indebtedness shall
not be on a senior secured position, without the prior written
approval of the Lenders."
(d) Section 7.03 of the Credit Agreement is hereby amended to (i)
replace the period at the end of subsection "(d)" thereof with the word "and",
and (ii) to add a new subsection "(e)" immediately following subsection "(d)" as
follows:
"(e) guaranties by any Subsidiary of the Company of any Indebtedness
of the Company pursuant to the Bridge Loan Facility, including any
refinancing of the Bridge Loan Facility as set forth in Section
7.01(m) hereto."
(e) Subsection "(b)" of Section 7.06 of the Credit Agreement is hereby
amended and restated to provide as follows:
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"(b) Permitted Acquisitions and the Matrics Acquisition, provided
that the Company has complied with its obligations under Section
6.12, if applicable;"
(f) Section 7.12 of the Credit Agreement is hereby amended by deleting
the phrase "Except for Permitted Acquisitions" at the beginning thereof and
substituting in its place: "Except for Permitted Acquisitions and the Matrics
Acquisition."
(g) Section 7.13 of the Credit Agreement is hereby amended by inserting
a new paragraph (d) to the end of such section which provides as follows:
"(d) Maximum Consolidated Funded Debt to Consolidated EBITDA. At all
times during the Testing Period, permit its ratio of Consolidated
Funded Debt to Consolidated EBITDA to be greater than 1.75:1.00."
(h) Section 7.17 of the Credit Agreement is hereby amended by inserting
the following provision immediately preceding the period at the end thereof:
"except as provided in the Bridge Loan Facility, including any
refinancing of the Bridge Loan Facility as set forth in Section
7.01(m) hereto"
2. CONFORMING AMENDMENTS. The Credit Agreement, the Loan Documents and all
agreements, instruments and documents executed and delivered in connection with
any of the foregoing, shall each be deemed to be amended and supplemented hereby
to the extent necessary, if any, to give effect to the provisions of this
Amendment, and each Lender is authorized to annex a copy of this Amendment to
its respective Revolving Credit Note, if any.
3. REPRESENTATIONS AND WARRANTIES. The Company hereby represents and warrants
to the Lenders and the Administrative Agent as follows:
(a) After giving effect to this Amendment (i) each of the
representations and warranties set forth in Article IV of the Credit Agreement
is true and correct in all material respects on and as of the date hereof as if
made on and as of the date of this Amendment except to the extent such
representations or warranties relate to an earlier date in which case they shall
be true and correct in all material respects as of such earlier date, and (ii)
no Default or Event of Default has occurred and is continuing as of the date
hereof or shall result from after giving effect to this Amendment.
(b) The Company has the power to execute, deliver and perform this
Amendment and each of the other agreements, instruments and documents to be
executed by it in connection with this Amendment. No registration with or
consent or approval of, or other action by, any Governmental Authority is
required in connection with the execution, delivery and performance of this
Amendment and the other agreements, instruments and documents executed in
connection with this Amendment by the Company, other than registration, consents
and approvals received prior to the date hereof and disclosed to the Lenders and
which are in full force and effect.
(c) The execution, delivery and performance by the Company of this
Amendment and each of the other agreements, instruments, and documents to be
executed by it
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in connection with this Amendment, and the execution and delivery by each of the
Guarantors of the Consent to this Amendment, (i) have been duly authorized by
all requisite corporate action, (ii) will not violate (A) any provision of law
applicable to the Company or any Guarantor, any rule or regulation of any
Governmental Authority applicable to the Company or any Guarantor or (B) the
certificate of incorporation, by-laws, or other organizational documents, as
applicable, of the Company or of any Guarantor or (C) any order of any court or
other Governmental Authority binding on the Company or any Guarantor or any
indenture, agreement or other instrument to which the Company or any Guarantor
is a party, or by which the Company or any Guarantor or any of their respective
properties are bound, and (iii) will not be in conflict with, result in a breach
of or constitute (with due notice and/or lapse of time) a default under, any
such indenture, agreement or other instrument, or result in the creation or
imposition of any Lien, of any nature whatsoever upon any of the property or
assets of the Company or any Guarantor other than as contemplated by the Credit
Agreement, except for any such violation, conflict, breach or default or Lien
provided in clauses (ii)(A), (ii)(B) or (ii)(C) which could not, individually,
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) This Amendment and each of the other agreements, instruments and documents
executed in connection with this Amendment to which the Company or the
Guarantors are a party have been duly executed and delivered by the Company and
each Guarantor, as the case may be, and constitutes a legal, valid and binding
obligation of the Company and each Guarantor enforceable, as the case may be, in
accordance with its terms, except to the extent that enforcement may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium, or other
similar laws, now or hereafter in effect, relating to or affecting the
enforcement of creditors' rights generally and by equitable principles of
general application, regardless of whether considered in a proceeding in equity
or at law.
4. CONDITIONS TO EFFECTIVENESS. This Amendment shall be subject to the
condition that, upon consummation of the Matrics Acquisition, the Company shall
comply with the requirements of Section 6.12 of the Credit Agreement
5. MISCELLANEOUS.
Capitalized terms used herein and not otherwise defined herein shall have
the same meanings as defined in the Credit Agreement.
Except as expressly amended and waived hereby, the Credit Agreement shall
remain in full force and effect in accordance with the original terms thereof.
The amendments herein contained are limited specifically to the matters
set forth above and do not constitute directly or by implication an amendment or
a waiver of any other provision of Credit Agreement or a waiver of any Default
or Event of Default which may occur or may have occurred under the Credit
Agreement.
This Amendment may be executed in one or more counterparts, each of which
shall constitute an original, but all of which when taken together shall
constitute but one Amendment. This Amendment shall become effective when duly
executed counterparts hereof which, when taken together, bear the signatures of
each of the parties hereto shall have been delivered to the Administrative
Agent.
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THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
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IN WITNESS WHEREOF, the Company and the Administrative Agent, as
authorized on behalf of the Required Lenders, have signed and delivered this
Amendment as of the date first written above.
SYMBOL TECHNOLOGIES, INC.
By: S/ Xxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
FLEET NATIONAL BANK, A BANK OF AMERICA COMPANY,
AS ADMINISTRATIVE AGENT
By: S/Xxxxx X. XxxXxxxxxx
----------------------
Name: Xxxxx X. XxxXxxxxxx
Title: Managing Director
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CONSENT
Each of the undersigned, not parties to the Credit Agreement but each a
Guarantor under a Guaranty dated as of November 17, 2003 hereby consents to and
acknowledges the terms of the Amendment to which this consent is attached and
confirms that its Guaranty is in full force and effect and reaffirms its
continuing liability under its Guaranty in respect of the Credit Agreement as
amended hereby and all the documents, instruments and agreements executed
pursuant thereto or in connection therewith, without offset, defense or
counterclaim (any such offset, defense or counterclaim as may exist being hereby
irrevocably waived by such guarantor).
TELXON CORPORATION
By: S/ Xxxx X. Xxxxxxxxx
--------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
@XXX.XXX, INC.
By: S/ Xxxx X. Xxxxxxxx
-------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
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