Exhibit 10.32
CONSENT AND WAIVER
Reference is made to (i) the Waiver Agreement, dated as of March 26, 2003 (the
"Waiver Agreement"), entered into by and among Symbol Technologies, Inc., a
Delaware corporation (the "Company"), the Banks party thereto, and Bank of
America, N.A., as agent for the Banks (in such capacity, the "Agent"), and (ii)
the Consent, dated as of June 30, 2003, entered into by and among the Company,
the Banks party thereto, and the Agent (the "June 2003 Consent"). Unless
otherwise defined herein, capitalized terms used herein shall have the meanings,
if any, assigned to them in the Waiver Agreement.
The Banks party hereto hereby (i) consent to the extension of the expiration
date of the Waiver Period to September 15, 2003, effective as of August 14,
2003, and (ii) waive non-compliance with Sections 7.01(b) and 7.02(a) of the
Credit Agreement during the Waiver Period (as extended hereby) resulting from
the non-delivery during such Waiver Period of the unaudited financial statements
for the fiscal quarter ended June 30, 2003 (the "FQ2 Financial Statements") and
the associated non-delivery during such Waiver Period of the Compliance
Certificate due in connection with the delivery of the FQ2 Financial Statements;
provided that the Company shall pay (through the Agent) to each Bank that
executes and delivers this Consent and Waiver by no later than 5:00 p.m. Pacific
time on Thursday, August 14, 2003, a non-refundable waiver fee equal to $5,000.
The foregoing consent fee shall be fully-earned upon becoming due and payable,
shall not be refundable for any reason whatsoever and shall be in addition to
any fee, cost or expense otherwise payable by the Company pursuant to the Credit
Agreement.
Upon receipt by the Agent of (i) the consent fee referred to above for the
account of the Banks entitled thereto, and (ii) counterparts of this Consent and
Waiver executed by the Company and the Majority Banks, this Consent and Waiver
shall become effective.
The Company acknowledges and agrees that the execution and delivery by the Agent
and the Banks of this Consent and Waiver shall not be deemed to create a course
of dealing or otherwise obligate the Agent or the Banks to provide consents,
waivers or enter into amendments under the same, similar or any other
circumstances in the future.
Except as herein expressly modified, all terms, covenants and provisions of the
Waiver Agreement (as modified by the June 2003 Consent) are and shall remain in
full force and effect.
This Consent and Waiver shall be binding upon and inure to the benefit of the
parties hereto and to the Credit Agreement and their respective successors and
assigns. No third party beneficiaries are intended in connection with this
Consent and Waiver.
This Consent and Waiver shall be governed by and construed in accordance with
the laws of the State of New York.
This Consent and Waiver may be executed in any number of counterparts, each of
which shall be deemed an original, but all such counterparts together shall
constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document (and any other document required
herein) may be delivered by any party thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be followed
promptly by mailing of a hard copy original, and that receipt by the Agent of a
facsimile transmitted document purportedly bearing the signature of a Bank or
the Company shall bind such Bank or the Company, respectively, with the same
force and effect as the delivery of a hard copy original. Any failure by the
Agent to receive the hard copy executed original of such document shall not
diminish the binding effect of receipt of the facsimile transmitted executed
original of such document of the party whose hard copy page was not received by
the Agent, and the Agent is hereby authorized to make sufficient photocopies
thereof to assemble complete counterparty documents.
This Consent and Waiver, together with the Waiver Agreement and the June 2003
Consent, contains the entire and exclusive agreement of the parties hereto with
reference to the matters discussed herein and therein. This Consent and Waiver
supersedes all prior drafts and communications with respect thereto. This
Consent and Waiver may not be amended except in accordance with the provisions
of Section 11.01 of the Credit Agreement.
(remainder of page intentionally left blank)
IN WITNESS WHEREOF, the parties hereto have duly executed this Consent and
Waiver, as of the date first above written.
THE BORROWER
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SYMBOL TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
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Title: Vice President & Treasurer
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THE AGENT
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BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
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Title: Managing Director
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THE BANKS
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BANK OF AMERICA, N.A., as a Bank, as Fronting
Bank and as Issuing Bank
By: /s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
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Title: Managing Director
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JPMORGAN CHASE BANK (formerly known as The Chase
Manhattan Bank), as Documentation Agent and as a
Bank
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxx
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Title: Vice President
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BANK HAPOALIM BM
By: /s/ Xxxxx Briedbart
-------------------------
Name: Xxxxx Briedbart
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Title: Vice President
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INTESA BCI, LOS ANGELES FOREIGN BRANCH (formerly
known as BANCA COMMERCIALE ITALIANA, NEW YORK
BRANCH
By: /s/ Xxxxx Xxxxxx
-------------------------
Name: Xxxxx Xxxxxx
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Title: Vice President
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BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ Xxxxxxx Xxx
-------------------------
Name: Xxxxxxx Xxx
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Title: Vice President
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BNP PARIBAS
By: /s/ Xxxxx Xxxxxxxxx
-------------------------
Name: Xxxxx Xxxxxxxxx
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Title: Managing Director
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COMERICA BANK
By: /s/ Xxxx X. Xxxxxx
----------------------------
Name: Xxxx X. Xxxxxx
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Title: Assistant Vice President
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DZ BANK AG DEUTSCHEZENTRAL-GENOSSENSCHAFTSBANK,
FRANKFURT AM MAIN, (successor by merger to DZ
BANK DEUTSCHE GENOSSENSCHAFTSBANK AG), as a Bank
By: /s/ Bernd Xxxxxx Xxxxxx
-------------------------
Name: Bernd Xxxxxx Xxxxxx
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Title: Vice President
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FLEET NATIONAL BANK (formerly Known as FLEET BANK
N.A.)
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxxxx
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Title: SVP
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MELLON BANK, N.A.
By: /s/ Xxxxx X. XxXxxxx
----------------------------
Name: Xxxxx X. XxXxxxx
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Title: Assistant Vice President
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THE BANK OF NEW YORK
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxx
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Title: Vice President
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THE BANK OF NOVA SCOTIA
By: /s/ Xxxx Xxxxxxx
-------------------------
Name: Xxxx Xxxxxxx
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Title: Director
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WACHOVIA BANK, N.A.
By: /s/ Xxxxx X. Heatville
-------------------------
Name: Xxxxx X. Heatville
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