Exhibit 10.34
AMENDMENT AND WAIVER, dated as of June 14, 2004 (this "Amendment and
Waiver"), 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, on May 6, 2004 a judgment was entered in the matter of Telxon
Corporation, Plaintiff, v. Smart Media of Delaware, Inc., et al., Defendants,
pursuant to which Telxon Corporation is obligated to pay to the Defendants in
such action an aggregate amount of $218,606,880 (the "Judgment"); and
WHEREAS, the Lenders have determined that such event constitutes an Event
of Default under Section 8.01(j) of the Credit Agreement; and
WHEREAS, the Company does not concur that an Event of Default has occurred
under Section 8.01(j) of the Credit Agreement and, without conceding that an
Event of Default has occurred, the Company has requested and the Administrative
Agent and the Required Lenders have agreed to waive certain provisions of the
Credit Agreement as provided herein; and
WHEREAS, the Company has requested and the Administrative Agent and the
Required Lenders have agreed, subject to the terms and conditions of this
Amendment and Waiver, 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. WAIVER.
The Administrative Agent and the Required Lenders hereby waive any Event
of Default under Section 8.01(j) of the Credit Agreement that resulted from
entry of the Judgment, if any.
2. AMENDMENTS.
(a) The definition of the terms "Borrowing Base" included in Section
1.01 of the Credit Agreement is hereby amended by deleting subsection (c)
therefrom and substituting the following in its place:
"(c) for the period following the completion of the Initial Field
Exam satisfactory to the Agent in its sole discretion and receipt by
the Agent of the 2002 and 2003 Financial Statements and Filings,
seventy-five percent (75%) of Eligible Receivables."
(b) Section 7.13(c) of the Credit Agreement is hereby deleted and the
following is substituted in its place:
"(c) Minimum Unencumbered Cash. Maintain less than $75,000,000 of
unencumbered cash at any time."
(c) Section 8.01(p) of the Credit Agreement is hereby amended and
restated to provide in its entirety as follows:
"(p) (i) the cash component of all agreements entered into by the
Company or any Subsidiary of the Company to settle any actions,
suits or proceedings at law or in equity or before or by any
Governmental Authority, net of insurance proceeds actually received
by the Company or any Subsidiary of the Company, calculated at the
time such settlements are agreed to (including, without limitation,
the cash component of the settlements by the Company and its
Subsidiaries of the actions brought by Shareholders of Telxon
Corporation to the extent such amounts were paid after November 17,
2003); plus (ii) the cash component of all judgments rendered
against the Company or any Subsidiary of the Company, net of
insurance proceeds actually received by the Company or any
Subsidiary of the Company, calculated at the time when all appeals
have been exhausted or when the execution of any such judgment shall
not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Company
or any Subsidiary to enforce any such judgment; plus (iii) the cash
component of all fines, orders or decrees rendered against the
Company or any Subsidiary of the Company, net of insurance proceeds
actually received by the Company or any Subsidiary of the Company,
calculated at the time when such fines, orders or decrees are
rendered, which are payable, in each case, by the Company or any
Subsidiary of the Company during the period from November 17, 2003
through the Revolving Credit Commitment Termination Date, shall
exceed $150,000,000 in aggregate;"
3. 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 Waiver, and each Lender is authorized to annex a copy of this
Amendment and Waiver to its respective Revolving
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Credit Note, if any. Except as so amended hereby, the Credit Agreement and the
other Loan Documents shall remain in full force and effect in accordance with
their respective terms.
4. 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 and Waiver (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 and Waiver 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
and Waiver.
(b) The Company has the power to execute, deliver and perform this
Amendment and Waiver and each of the other agreements, instruments and documents
to be executed by it in connection with this Amendment and Waiver. 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 Waiver and the other agreements,
instruments and documents executed in connection with this Amendment and Waiver
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 Waiver and each of the other agreements, instruments, and
documents to be executed by it in connection with this Amendment and Waiver, and
the execution and delivery by each of the Guarantors of the Consent to this
Amendment and Waiver, (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 Waiver and each of the other agreements, instruments
and documents executed in connection with this Amendment and Waiver 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
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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.
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 amendment and waiver 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 and Waiver 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 and Waiver. This Amendment and Waiver shall
become effective when (i) 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 and (ii) the Company shall have paid to
the Administrative Agent, for the ratable benefit of the Lenders, an amendment
fee of $60,000.
THIS AMENDMENT AND WAIVER 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 and Waiver 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/Xxxxxxxxxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
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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 and Waiver 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 Xxxxxxxx
-------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
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