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EXHIBIT 10.3.3.e
SECOND AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT (this "Amendment") is entered into as of
February 11, 2000 between TELXON CORPORATION, a Delaware corporation
("Borrower"), and FOOTHILL CAPITAL CORPORATION, as Lender and as Agent for the
Lenders.
WHEREAS, Borrower, certain financial institutions from time to time a
party thereto ("Lenders"), Foothill Capital Corporation, as agent for Lenders
("Agent") are parties to a Loan and Security Agreement dated as of August 26,
1999 (as previously amended, the "Loan Agreement");
WHEREAS, Borrower, Lenders and Agent have agreed to amend Borrower's
minimum required EBITDA for December 31, 1999 with a retroactive effect December
31, 1999;
NOW THEREFORE, in consideration of the premises and mutual agreements
herein contained, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized terms
used herein shall have the meanings ascribed to such terms in the Loan
Agreement.
2. Amendments to Loan Agreement. Upon the receipt of executed
reaffirmations in the form attached hereto, effective as of December 31, 1999,
Section 7.20(c) of the Loan Agreement is amended by deleting the amount
"$4,030,000" set forth opposite the period ending December 31, 1999 and
inserting "$(21,000,000)" in its place.
3. Ratification. This Amendment, subject to satisfaction of the
conditions provided in Section 4 below, shall constitute amendments to the Loan
Agreement and all of the Loan Documents as appropriate to express the agreements
contained herein. In all other respects, the Loan Agreement and the Loan
Documents shall remain unchanged and in full force and effect in accordance with
their original terms.
4. Miscellaneous.
(a) Warranties and Absence of Defaults. In order to induce Lenders to
enter into this Amendment, Borrower hereby warrants to Lenders, as of the date
hereof, that:
(i) The warranties of Borrower contained in the Loan Agreement, as
herein amended, are true and correct as of the date hereof as if made
on the date hereof.
(ii) All information, reports and other papers and data heretofore
furnished to Agent and Lenders by Borrower in connection with this
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Amendment, the Loan Agreement and the other Loan Documents are accurate
and correct in all material respects and complete insofar as may be
necessary to give Agent and Lenders true and accurate knowledge of the
subject matter thereof. None of the information furnished to Agent or
Lenders by or on behalf of Borrower contained any material misstatement
of fact or omitted to state a material fact or any fact necessary to
make the statements contained herein or therein not materially
misleading.
(iii) No Event of Default or event which, with giving of notice or
the passage of time, or both would become an Event of Default, exists
as of the date hereof.
(b) Expenses. Borrower agrees to pay on demand all costs and expenses
of Agent (including the reasonable fees and expenses of outside counsel for
Agent) in connection with the preparation, negotiation, execution, delivery and
administration of this Amendment and all other instruments or documents provided
for herein or delivered or to be delivered hereunder or in connection herewith.
In addition, Borrower agrees to pay, and save Agent harmless from all liability
for, any stamp or other taxes which may be payable in connection with the
execution or delivery of this Amendment or the Loan Agreement, as amended
hereby, and the execution and delivery of any instruments or documents provided
for herein or delivered or to be delivered hereunder or in connection herewith.
All obligations provided in this Section 5(b) shall survive any termination of
this Amendment and the Loan Agreement as amended hereby.
(c) Governing Law. This Amendment shall be a contract made under and
governed by the internal laws of the State of Illinois.
(d) Counterparts. This Amendment may be executed in any number of
counterparts, and by the parties hereto on the same or separate counterparts,
and each such counterpart, when executed and delivered, shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same Amendment.
(e) Reference to Loan Agreement. On and after the effectiveness of the
amendment to the Loan Agreement accomplished hereby, each reference in the Loan
Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of like
import, and each reference to the Loan Agreement in any Loan Documents, or other
agreements, documents or other instruments executed and delivered pursuant to
the Loan Agreement, shall mean and be a reference to the Loan Agreement, as
amended by this Amendment.
(f) Successors. This Amendment shall be binding upon Borrower, Agent,
Lenders and their respective successors and assigns, and shall inure to the
benefit of Borrower, Agent, Lenders and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized
and delivered as of the date first above written.
TELXON CORPORATION
By /s/ Xxxxx X. XxXxx
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Its Vice President and Chief Financial Officer
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FOOTHILL CAPITAL CORPORATION,
as Lender and as Agent
By /s/ Xxxxx Droof
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Its Vice President
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