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Exhibit 10.3.4.a
CONSENT
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CONSENT (this "CONSENT"), dated as of December 29, 1998, given
under the Business Purpose Revolving Promissory Note (Swing Line), dated August
4, 1998 (the "NOTE"), by Telxon Corporation (the "BORROWER") in favor of Bank
One, NA (f/k/a Bank One, Akron, NA; hereafter, the "BANK").
RECITALS
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I. Capitalized terms used herein which are not otherwise defined herein shall
have the respective meanings ascribed thereto in the Note.
II. The Borrower has requested that the Bank consent to the waiver and
agreement, dated as of the date hereof, under the Credit Agreement, dated as of
March 8, 1996, by and among the Borrower, the lenders party thereto, and The
Bank of New York, as issuer, swing line lender and agent (the "CREDIT
AGREEMENT"); such waiver and agreement substantially in the form attached hereto
as Exhibit A (the "AMENDMENT").
III. Certain defaults have occurred under the Credit Agreement and the Note,
which defaults have been waived in the manner, and for the period, provided in
the Amendment and hereunder.
Accordingly, in consideration of the Recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Bank does hereby agree as follows:
1. CONSENT. The Bank does hereby consent to the execution and
delivery by the Borrower of the Amendment. This Consent will be
effective for the period from the effective date of the Amendment until
the earlier of (i) February 15, 1999 and (ii) the date of the delivery
by the Borrower of the financial statements required by Section 7.7(b)
of the Credit Agreement for the Borrower's fiscal quarter ending
December 31, 1998, together with the associated compliance certificate
required by Section 7.7(d) of the Credit Agreement.
2. AFFIRMATION; ACKNOWLEDGMENTS. The Borrower hereby (i)
reaffirms and admits the validity and enforceability of the Note and
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all of its obligations thereunder as of the date hereof, (ii)
acknowledges that the Bank is in compliance with all of its
obligations under the Note as of the date hereof and (iii) acknowledges
that no further draws can be made by the Borrower under the Note
without the consent of the Bank.
3. CONSENT LIMITED. In all other respects, the Note shall
remain in full force and effect.
4. COUNTERPARTS. This Consent may be executed in any number of
counterparts all of which, taken together shall constitute one Consent.
In making proof of this Consent, it shall only be necessary to produce
the counterpart executed and delivered by the party to be charged.
5. GOVERNING LAW. THIS CONSENT IS BEING EXECUTED AND DELIVERED
IN, AND IS INTENDED TO BE PERFORMED IN, THE STATE OF OHIO AND SHALL BE
CONSTRUED AND ENFORCEABLE IN ACCORDANCE WITH, AND BE GOVERNED BY, THE
INTERNAL LAWS OF THE STATE OF OHIO, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
IN WITNESS WHEREOF, each of the undersigned have caused this
Consent to be executed on its behalf as of the date first above written.
BANK ONE, NA
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Vice President
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TELXON CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Senior Vice President & CFO
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