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Exhibit 10.3.2.a
AMENDMENT NO. 1
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AMENDMENT NO. 1 (this "AMENDMENT"), dated as of August 6, 1996, to the
Credit Agreement, dated as of March 8, 1996, by and among Telxon Corporation
(the "BORROWER"), the Lenders party thereto, and The Bank of New York, as
Issuer, Swing Line Lender and Agent (the "AGREEMENT").
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 Agreement.
II. The Borrower has requested that the Agent, the Issuer and the Swing
Line Lender agree to amend the Agreement upon the terms and conditions contained
herein, and the Agent, the Issuer and the Swing Line Lender are willing so to
agree.
Accordingly, in consideration of the Recitals and the covenants and
conditions hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the Borrower, the
Agent, the Issuer and the Swing Line Lender hereby agree as follows:
1. Section 1.1 of the Agreement is amended by adding the following
definitions in the appropriate alphabetical order:
"BANK ONE": Bank One, Akron, N.A.
"BANK ONE CREDIT LINE": the committed, revolving line of credit, in
the amount of $20,000,000, maintained by Bank One for the Borrower, as the
same may be extended, increased or otherwise modified from time to time.
"BANK ONE SECURITY AGREEMENT": the security agreement, if any, by and
between the Borrower and Bank One, pursuant to which the Borrower grants to
Bank One a security interest, solely in the Collateral, to secure the
obligations of the Borrower to Bank One solely under the Bank One Credit
Line, as the same may be amended, supplemented or otherwise modified from
time to time.
"BORROWING BASE AMOUNT": as of any date, the sum of (i) 70% of an
amount equal to Eligible Accounts Receivable MINUS $8,000,000 and (ii) 40%
of Eligible Inventory,
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as set forth in the Borrowing Base Certificate most recently delivered to
the Agent and the Lenders pursuant to this Agreement.
"BORROWING BASE CERTIFICATE": a certificate of the Borrower in
substantially the form of Exhibit J, duly executed by the chief financial
officer of the Borrower or such other officer of the Borrower as shall be
acceptable to the Agent.
"COLLATERAL": the assets and other property in which a security
interest is granted under the Security Agreement.
"CURRENT RATIO": as of any date, and with respect to the Borrower and
the Subsidiaries on a Consolidated basis, the ratio of (a) accounts
receivable plus inventory to (b) the sum of, without duplication, accounts
payable, accrued liabilities, notes payable, the aggregate Outstandings of
the Issuer, the Swing Line Lender and each Lender, and the current
maturities of all long-term Indebtedness, in each case as such amounts
would be included in a balance sheet as at such date prepared in accordance
with GAAP.
"ELIGIBLE ACCOUNTS RECEIVABLE": as of any date, accounts receivable of
the Borrower (less all applicable pending credits to account debtors and
reserves for doubtful accounts) arising in the ordinary course of business
thereof as to each of which the following requirements are satisfied: (a)
such receivable is payable to the Borrower and the Borrower has sole,
lawful and unencumbered (other than with respect to the Liens, if any,
arising under the Bank One Security Agreement and the Security Agreement)
title to such receivable, (b) assuming the Perfection Date shall have
occurred and the Agent shall have presented for filing all of the Notice
Documents in the appropriate governmental office, the Agent would have a
first Lien thereon in accordance with the Security Agreement and, on and
after the Perfection Date, such Lien shall be perfected, (c) such
receivable is payable in Dollars, (d) the account debtor in respect of such
receivable is organized under the laws of (i) the United States of America
or any State thereof, or (ii) any other jurisdiction, provided however,
that the amount of all receivables due from account debtors organized under
the laws of jurisdictions other than the United States of America or any
State thereof does not exceed $3,000,000 in the aggregate, and (e) such
receivable has
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not been outstanding more than 90 days from the due date thereof.
"ELIGIBLE INVENTORY": as of any date, inventory of the Borrower (less
all applicable reserves with respect thereto) as to each item of which the
following requirements are satisfied: (a) such item consists of (i) first
quality current finished products or service parts held for sale or for use
of the provision of maintenance services to customers of the Borrower in
the ordinary course of its business, (ii) work in process to become
products held for sale to customers of the Borrower in the ordinary course
of business, or (iii) raw materials to become products held for sale to
customers of the Borrower in the ordinary course of business, (b) assuming
the Perfection Date shall have occurred, if such item is located either in
the State of Ohio or the State of Texas, the Agent would have a first Lien
thereon in accordance with the Security Agreement and, on and after the
Perfection Date, if such item is located either in the State of Ohio or the
State of Texas, such Lien shall be perfected, (c) for purposes of this
definition, such item is valued at the lower of cost or market, such value
being determined on a first-in-first-out basis, (d) such item is owned by,
and in the possession of, the Borrower, (e) such item is located (i) in the
United States of America, or (ii) in Singapore, and the Borrower accounts
for such item as if it were located in the State of Texas, (f) such item is
not obsolete, (g) such item has not been returned or rejected as defective
by customers of the Borrower, and (h) such item is not inventory to be
returned to suppliers.
"EXCLUDED AMOUNT": as of any date, the lesser of (i) the aggregate
cost of all Restricted Payments made pursuant to Section 8.6(c) through and
including such date and (ii) the amount set forth below under the heading
"Amount" adjacent to the applicable period during which such date occurs:
Period Amount
------ ------
July 1, 1996 through
September 30, 1996 $25,000,000
October 1, 1996 through
December 31, 1996 $25,000,000
January 1, 1997 through
March 31, 1997 $22,000,000
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April 1, 1997 through
June 30, 1997 $15,000,000
July 1, 1997 and thereafter $0
"INTERCREDITOR AGREEMENT": the Intercreditor Agreement, dated as of
August 6, 1996, by and between Bank One and the Agent.
"NOTICE DOCUMENTS": as defined in Section 34(e) of Amendment No. 1,
dated August 6, 1996, to this Agreement.
"PERFECTION DATE": the date, if any, upon which Required Lenders shall
instruct the Agent, pursuant to and in accordance with Section 9.2(a)(i),
to file the Notice Documents.
"PURCHASE PRICE": as defined in the definition of "Softechnics
Transaction" in this Section 1.1.
"RMS": as defined in the definition of "Softechnics Transaction" in
this Section 1.1.
"RTCS": as defined in the definition of "Softechnics Transaction" in
this Section 1.1.
"SECURITY AGREEMENT": the Security Agreement, dated as of August 6,
1996, by and among the Borrower and the Agent, substantially in the form
attached hereto as Exhibit K, as the same may be amended, supplemented or
otherwise modified from time to time.
"SOFTECHNICS": as defined in the definition of "Softechnics
Transaction" in this Section 1.1.
"SOFTECHNICS TRANSACTION": the transaction by and among the Borrower
and Softechnics, Inc., a Delaware corporation ("SOFTECHNICS"), whereby
(a) the Borrower granted to Softechnics an exclusive license to market
software (the "SOFTWARE") previously marketed for the Borrower by two of
its divisions, Retail Management Systems ("RMS") and Real-Time Computer
Specialists ("RTCS"), in exchange for minimum payments of principal and
interest totaling $6,300,000 (the "PURCHASE PRICE", $150,000 of which was
paid in cash upon the granting of the license and the remainder of which
has been, or is to be, paid in quarterly installments, such remainder
having been evidenced by a promissory note and secured by a security
interest in all of the assets of Softechnics) plus certain royalties on
Softechnics' revenues from the
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Software, (b) the Borrower has covenanted to transfer title to the Software
to Softechnics upon payment in full of the Purchase Price, (c) the Borrower
has been granted an option to purchase up to a 29.4% equity interest in
Softechnics in an amount not exceeding $3,000,000, (d) certain office
equipment previously used by RMS and RTCS has been transferred to
Softechnics, and (e) accounts receivable of RMS and RTCS equal to
$2,800,000 have been transferred to Softechnics (the "TRANSFERRED
ACCOUNTS").
"SOFTWARE": as defined in the definition of "Softechnics Transaction"
in this Section 1.1.
"TRANSFERRED ACCOUNTS": as defined in the definition of "Softechnics
Transaction" in this Section 1.1.
2. Clause (b) of the definition of "Applicable Margin" contained in Section
1.1 of the Agreement is amended and restated in its entirety as follows:
(b) The Applicable Margin shall be based on the Compliance Certificate
most recently delivered with respect to the last fiscal quarter of the
preceding fiscal year pursuant to Section 7.7(d), and shall become
effective on the date such Compliance Certificate is delivered to the
Lenders, provided, however, that prior to the delivery of the Compliance
Certificate with respect to the fiscal quarter ending March 31, 1998
pursuant to Section 7.7(d), in the event (i) the Borrower shall have made a
Restricted Payment pursuant to Section 8.6(c) hereof, and (ii) the
Capitalization Ratio as set forth in any Compliance Certificate or
Borrowing Request delivered to the Agent hereunder shall equal or exceed
45%, then the Applicable Margin shall instead be based on such Compliance
Certificate or Borrowing Request (and shall become effective on the date
such Compliance Certificate is delivered to the Lenders or on the date such
Borrowing Request is delivered to the Agent) and, thereafter until the
delivery of the Compliance Certificate with respect to the fiscal quarter
ending March 31, 1998 pursuant to Section 7.7(d), shall be based on the
Compliance Certificate most recently delivered pursuant hereto, and shall
become effective on the date each such Compliance Certificate is delivered
to the Lenders.
3. The definition of "Capitalization Ratio" in Section 1.1 of the Agreement
is amended and restated in its entirety as follows:
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"CAPITALIZATION RATIO": as of any date of determination, the ratio of
Net Debt to Capitalization.
4. The definition of "Loan Documents" in Section 1.1 of the Agreement is
amended and restated in its entirety as follows:
"LOAN DOCUMENTS": this Agreement, the Subsidiary Guaranty, the
Security Agreement and, upon the execution and delivery thereof, the Notes
and the Reimbursement Agreements.
5. The definitions of "Pricing Level I", "Pricing Level II", "Pricing Level
III", "Pricing Level IV", and "Pricing Level V" in Section 1.1 of the Agreement
are amended and restated in their entirety as follows:
"PRICING LEVEL I": at any time, when the Capitalization Ratio is less
than 20%.
"PRICING LEVEL II": at any time, when the Capitalization Ratio is less
than 25% but greater than or equal to 20%.
"PRICING LEVEL III": at any time, when the Capitalization Ratio is
less than 35% but greater than or equal to 25%.
"PRICING LEVEL IV": at any time, when the Capitalization Ratio is less
than 45% but greater than or equal to 35%.
"PRICING LEVEL V": at any time, when the Capitalization Ratio is
greater than or equal to 45%.
6. Section 2.1 of the Agreement is hereby amended by deleting clause (b) of
the proviso in the first sentence of such Section and replacing such clause with
a new clause (b) as follows:
(b) the Aggregate Revolving Credit Exposure would not exceed the
lesser of (i) the Borrowing Base Amount, or (ii) the Aggregate Revolving
Commitment Amount.
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7. Section 2.3 of the Agreement is hereby amended by deleting clause (b) of
the proviso in the first sentence of such Section and replacing such clause with
a new clause (b) as follows:
(b) the Aggregate Revolving Credit Exposure would not exceed the
lesser of (i) the Borrowing Base Amount, or (ii) the Aggregate Revolving
Commitment Amount.
8. Section 2.9 of the Agreement is further amended by redesignating
subsection (d) thereof as subsection (e) and adding a new subsection (d) as
follows:
(d) MANDATORY BORROWING BASE PREPAYMENT OF REVOLVING LOANS AND SWING
LINE LOANS. If on any date the Aggregate Revolving Credit Exposure shall
exceed the Borrowing Base Amount, the Borrower shall immediately prepay the
Revolving Loans, prepay the Swing Line Loans, make a deposit into the Cash
Collateral Account, or any combination thereof, in an aggregate amount
equal to not less than such excess.
9. Clause (ii) of Section 2.10(a) of the Agreement is amended and restated
as follows:
(ii) the Aggregate Revolving Credit Exposure would not exceed the
lesser of (x) the Borrowing Base Amount, or (y) the Aggregate Revolving
Commitment Amount.
10. Section 6.1 of the Agreement is amended by inserting the words "and the
Security Agreement" immediately after the phrase "contained in this Agreement".
11. Section 7.7 of the Agreement is amended by deleting the word "and"
following subsection (l) thereof, deleting the period at the end of subsection
(m) thereof, adding a semicolon and the word "and" to the end of such subsection
(m), and adding a new subsection (n) as follows:
(n) and to each Lender, as soon as available, but in any
event not later than 20 days after the end of each month, a
Borrowing Base Certificate setting forth the Borrowing Base
Amount as of the last day of such month.
12. Section 7.10(b) of the Agreement is amended and restated in its
entirety as follows:
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(b) Notwithstanding the exceptions set forth in Section 7.10(a), at
all times maintain (directly or indirectly), beneficially and of record,
(i) 85% of the voting control of, and 85% of the equity in, each of its
Material Subsidiaries other than those set forth on Schedule 7.14, and (ii)
70% of the voting control of, and 70% of the equity in, each of its
Material Subsidiaries set forth on Schedule 7.10(b).
13. Sections 7.11, 7.12 and 7.13 of the Agreement are amended and restated
in their entirety as follows:
7.11 LEVERAGE RATIO
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As of any date during each period set forth
below, have a Leverage Ratio not greater than the ratio set forth below
adjacent to such period:
Period Ratio
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Effective Date through
March 30, 1997 3.75:1.00
March 31, 1997 through
June 29, 1997 3.25:1.00
June 30, 1997 through
September 29, 1997 3.00:1.00
September 30, 1997 and
thereafter 2.75:1.00
7.12 TANGIBLE NET WORTH
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As of any date, maintain Tangible Net Worth
of not less than (a) $106,000,000 MINUS (b) the Excluded Amount PLUS
(c) 25% of the positive Consolidated net income of the Borrower and its
Subsidiaries for each completed fiscal quarter ending after December
31, 1995.
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7.13 FIXED CHARGE COVERAGE RATIO
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At each fiscal quarter end during each period
set forth below, have a Fixed Charge Coverage Ratio greater than or
equal to the ratio set forth adjacent to such period:
Period Ratio
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Effective Date through
December 30, 1996 1.00:1.00
December 31, 1996 through
March 30, 1997 1.05:1.00
March 31, 1997 and
thereafter 1.10:1.00
14. Section 7.14(a) of the Agreement is amended by adding the phrase, "or
AIRONET Wireless Communications, Inc." immediately after the words, "(other than
an existing Guarantor" wherever they appear.
15. The Agreement is amended by adding a new Section 7.15 as follows:
7.15 CURRENT RATIO
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As of any date, have a Current Ratio not less
than 1.75:1.00.
16. The Agreement is amended by adding a new Section 7.16 as follows:
7.16 SEARCH REPORTS
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Furnish to the Agent, no later than the date
that is the sixtieth (60th) day following the Amendment Effective Date,
UCC, federal tax and judgment lien search reports (none of which shall
be dated earlier than 30 days prior to the date such reports are
furnished) with respect to each applicable public office where Liens
are or may be filed disclosing that there are no Liens of record in
such official's office covering any Collateral or showing the Borrower
as debtor thereunder (other than Liens permitted under Section 8.2 of
the Agreement).
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17. Section 8.2 of the Agreement is amended by deleting the word "and"
immediately preceding subsection (o) thereof, by deleting the period after the
word "Texas" at the end of such subsection (o) and replacing the period with a
comma, and by adding new subsections (p), (q) and (r) to the end of Section 8.2
of the Agreement as follows:
(p) Liens created under the Security Agreement, (q) Liens created
under the Bank One Security Agreement, and (r) Liens created by the
Borrower in the granting to Softechnics of an exclusive license to market
the Software pursuant to the Softechnics Transaction.
18. Section 8.3 of the Agreement is amended by adding the phrase "(other
than Collateral)" immediately after the first use of the word "Property" in
subsection (g) thereof.
19. Section 8.3 of the Agreement is further amended by deleting the word
"and" immediately preceding subsection (h) thereof, deleting the period
following such subsection (h) and replacing such period with a comma, and by
adding a new subsection (i) to the end of Section 8.3 of the Agreement as
follows:
(i) the Disposition by the Borrower of the license to market the
Software to Softechnics pursuant to the Softechnics Transaction, with title
to the Software vesting in Softechnics upon payment in full of the Purchase
Price pursuant to the Softechnics Transaction, the Disposition by the
Borrower of office equipment used by RMS and RTCS pursuant to the
Softechnics Transaction, and the Disposition by the Borrower of the
Transferred Accounts pursuant to the Softechnics Transaction.
20. Section 8.4 of the Agreement is amended by deleting the word "and"
immediately preceding subsection (f) thereof, deleting the period following such
subsection (f) and replacing such period with a comma, and by adding a new
subsection (g) to the end of Section 8.4 of the Agreement as follows:
(g) the Acquisition by the Borrower of a promissory note from
Softechnics pursuant to the Softechnics Transaction, the Acquisition by the
Borrower of up to a 29.4% equity interest in Softechnics pursuant to the
Softechnics Transaction, and the Acquisition by the Borrower of any
Softechnics assets upon foreclosure on its security interest pursuant to
the Softechnics Transaction.
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21. Section 8.5 of the Agreement is amended by deleting the word "and"
immediately preceding subsection (t) thereof, deleting the period at the end of
such subsection, adding a comma to the end of subsection (t) of such Section,
and adding new subsections (u) and (v) as follows:
(u) Investments contemplated by Section 8.6(c), and
(v) the Investment by the Borrower in the provision of credit to
Softechnics pursuant to the Softechnics Transaction and the Investment by
the Borrower in up to a 29.4% equity interest in Softechnics pursuant to
the Softechnics Transaction.
22. Section 8.6 of the Agreement is amended by deleting the word "and"
immediately preceding clause (b) thereof, deleting the period at the end of such
Section, adding a comma and the word "and" to the end of such Section, and
adding a new clause (c) as follows:
(c) Restricted Payments by the Borrower on or prior to June
30, 1997, in the form of the purchase or repurchase by the Borrower of
outstanding registered shares thereof and/or convertible subordinated
debt thereof, provided that (i) immediately before and after giving
effect thereto no Default or Event of Default shall or would exist, and
(ii) immediately after giving effect to each such Restricted Payment,
the aggregate cost of all such Restricted Payments under Section 8.6(b)
and this Section 8.6(c) shall not exceed $33,000,000.
23. Section 9.1(c) of the Agreement is amended by deleting the word "or"
immediately preceding the term "7.14" and by adding a comma and the words "or
7.15" immediately after the term "7.14".
24. Section 9.1 of the Agreement is further amended by replacing the
period at the end of subsection (n) thereof with "; or" and adding new
subsections (o) and (p) to the end thereof as follows:
(o) The Security Agreement shall cease to be valid and enforceable
(except as otherwise specifically provided therein), an "Event of Default"
shall have occurred under, and as defined in, the Security Agreement or,
from and after the Perfection Date, the Lien granted to the Agent
thereunder shall cease to be a first priority, perfected security interest;
or
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(p) The Intercreditor Agreement shall cease to be valid and
enforceable (except as otherwise specifically provided therein).
25. Section 9.2(a) of the Agreement is amended by inserting the phrase "(i)
file the Notice Documents with the appropriate Governmental Authorities and
other public offices, and/or (ii)" immediately after the phrase "at the written
request of the Required Lenders, shall".
26. Section 11.1 of the Agreement is amended by deleting the word "or"
immediately preceding clause (xi) of subsection (a) thereof, by adding the word
"or" immediately after the comma following such clause (xi), and by adding a new
clause (xii) to subsection (a) of Section 11.1 of the Agreement as follows:
(xii) release any Collateral or any security interest therein (other than
in connection with (A) a Disposition permitted under Section 8.3, (B) any
release specifically provided for in the Security Agreement, or (C) any
release of Collateral having a fair market value of $2,000,000 or less
during any fiscal year),
27. Section 11.1(b) of the Agreement is amended and restated in its
entirety as follows:
(b) Notwithstanding anything to the contrary contained in Section
11.1(a), the Agent may, at any time and from time to time without the
consent of the Issuer, the Swing Line Lender or any one or more of the
Lenders, (i) release all or any of the obligations of a Loan Party under
the Subsidiary Guaranty in connection with a Disposition of such Loan Party
permitted by Section 8.3, or (ii) release any Collateral or any security
interest therein in connection with (A) any Disposition of such Collateral
permitted by Section 8.3, (B) any release specifically provided for in the
Security Agreement, or (C) any release of Collateral having a fair market
value of $2,000,000 or less during any fiscal year.
28. Section 11.7(d) of the Agreement is amended by deleting the word "or"
immediately preceding subclause (H) of clause (vi) of such Section, and by
inserting new subclauses (I) and (J) as follows:
(I) release all of the obligations of or by any Loan Party under the
Security Agreement (other than
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in connection with a Disposition of such Loan Party permitted by Section
8.3), or (J) release all of the Collateral (other than in connection with
(A) a Disposition permitted under Section 8.3, (B) any release specifically
provided for in the Security Agreement, or (C) any release of Collateral
having a fair market value of $2,000,000 or less during any fiscal year).
29. Exhibit C to the Agreement is amended and restated in its entirety as
set forth in Attachment D attached hereto.
30. Exhibit G to the Agreement is amended and restated in its entirety as
set forth in Attachment E attached hereto.
31. The Agreement is amended by adding Exhibit J and Exhibit K thereto in
the forms attached hereto as Attachment A and Attachment B, respectively.
32. The Agreement is amended by (a) amending and restating Schedule 7.14
thereto in the form of Schedule 7.14 hereto, and (b) adding a new Schedule
7.10(b) thereto in the form of Schedule 7.10(b) hereto.
33. Pursuant to Section 11.1 of the Agreement, the Agent hereby releases
AIRONET Wireless Communications, Inc. from its obligations under the Subsidiary
Guaranty.
34. Subject to Paragraph 35 of this Agreement, Paragraphs 1 - 33 of this
Amendment shall not be effective until such date (the "AMENDMENT EFFECTIVE
DATE") as each of the following conditions shall have been satisfied:
(a) The Agent shall have received counterparts of this Amendment
executed by Required Lenders and the Guarantors.
(b) The Agent shall have received from the Borrower, for the pro rata
account of the Lenders, a fee in consideration for this Amendment in an
amount equal to 0.075% of the Aggregate Revolving Commitment Amount.
(c) The Agent shall have received an opinion of special counsel to the
Borrower and the Subsidiaries, in form and substance satisfactory to the
Agent.
(d) The Agent shall have received a certificate of an executive
officer of the Borrower, dated the Amendment Effective Date, certifying
that (i) there exist no Liens on the Collateral other than Liens permitted
under
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the Agreement, (ii) no amendment, supplement, or modification to the
certificate of incorporation or by-laws of the Borrower has been made since
March 8, 1996, and (iii) the Borrower is in good standing and authorized to
conduct business in the State of its formation and each other jurisdiction
where the failure to be in good standing and authorized to conduct business
would have a Material Adverse effect.
(e) The Borrower shall have delivered to the Agent (i) a security
agreement, dated no later than the Amendment Effective Date, executed by
the Borrower and in the form of Attachment B attached hereto, and (ii) such
UCC Financing Statements executed by the Borrower, all other documents and
certificates which may be required to be filed in any public office in
order to perfect the security interest in the collateral located in the
States of Ohio and Texas granted under such security agreement (such UCC
Financing Statements and other documents and certificates being
collectively referred to as the "NOTICE DOCUMENTS"), and such other
documents and instruments as shall be reasonably requested by the Agent in
order to perfect the security interest in the collateral located in the
states of Ohio and Texas granted under such security agreement.
(f) The Agent shall have received a certificate, in all respects
satisfactory to the Agent, of the Secretary of the Borrower (i) attaching a
true and complete copy of the resolutions of its Board of Directors and of
all documents evidencing other necessary corporate action (in form and
substance satisfactory to the Agent) taken by it to authorize the execution
and delivery of this Amendment and the Security Agreement (collectively,
the "AMENDMENT DOCUMENTS"), and the transactions contemplated by the
Amendment Documents, and (ii) setting forth the incumbency of its officer
or officers who may sign the Amendment Documents, including therein a
signature specimen of such officer or officers.
(g) The Agent shall have received (i) a Borrowing Base Certificate,
setting forth Borrowing Base Amount on and as of the Amendment Effective
Date, and (ii) a certificate of the chief financial officer of the Borrower
setting forth the Capitalization Ratio as of the Amendment Effective Date.
(h) The Agent shall have received an intercreditor agreement, dated no
later than the Amendment Effective
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Date, executed by Bank One, acknowledged by the Borrower, and in the form
of Attachment C attached hereto.
(i) The Agent shall have received such other documents, each in form
and substance reasonably satisfactory to the Agent, as the Agent shall
reasonably require in connection with the Amendment Documents.
(j) All legal matters incident to the execution and delivery of the
Amendment Documents shall be reasonably satisfactory to Special Counsel.
(k) The Borrower shall have paid the reasonable fees and disbursements
of Special Counsel which shall have accrued up to the Amendment Effective
Date.
(l) On and as of the Amendment Effective Date, there shall exist no
Default or Event of Default, and all of the representations and warranties
of the Loan Parties contained in the Loan Documents shall be true and
correct with the same effect as though such representations and warranties
had been made on the Amendment Effective Date.
35. Notwithstanding anything in Paragraph 34 to the contrary, Paragraphs 14
and 33 of this Amendment shall not be effective until such date as (a) the Agent
shall have received counterparts of this Amendment executed by Super-Majority
Lenders, and (b) the Agent shall have received evidence satisfactory to it that
the Borrower has disposed of 30% or less of its voting control of, and 30% or
less of its equity interest in, AIRONET Wireless Communications, Inc.
36. On each of the date hereof and the Amendment Effective Date, the
Borrower hereby (a) reaffirms and admits the validity and enforceability of the
Loan Documents and all of its obligations thereunder, (b) agrees and admits that
it has no defenses to or offsets against any such obligation, and (c) represents
and warrants that no Default or Event of Default has occurred and is continuing,
and that each of the representations and warranties made by it in the Agreement
is true and correct with the same effect as though such representation and
warranty had been made on such date.
37. In all other respects, the Loan Documents shall remain in full force
and effect, and no amendment in respect of any term or condition of any Loan
Document contained herein shall be deemed to be an amendment in respect of any
other term or condition contained in any Loan Document.
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38. This Amendment may be executed in any number of counterparts all of
which, taken together, shall constitute one Amendment. In making proof of this
Amendment, it shall only be necessary to produce the counterpart executed and
delivered by the party to be charged.
39. THIS AMENDMENT IS BEING EXECUTED AND DELIVERED IN, AND IS INTENDED TO
BE PERFORMED IN, THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCEABLE IN
ACCORDANCE WITH, AND BE GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
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17
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Amendment to be
executed on its behalf.
TELXON CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
---------------------------------
Title: Senior Vice President,
--------------------------------
Chief Financial Officer
and Treasurer
THE BANK OF NEW YORK, in its capacity
as a Lender, as the Issuer, as the
Swing Line Lender and as the Agent
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
---------------------------------
Title: Vice President
--------------------------------
Each of the following Lenders consents to the execution and
delivery of this Amendment by the Agent and agrees to all of
the terms and conditions hereof:
BANK ONE, AKRON, N.A.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
---------------------------
Title: Vice President
--------------------------
COMERICA BANK
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
---------------------------
Title: Vice President
--------------------------
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18
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxx X. Xxxx
---------------------------
Title: Assistant Vice President
--------------------------
PNC BANK, N.A.
By: /s/ Xxxxx X. Xxxx
-----------------------------
Name: Xxxxx X. Xxxx
---------------------------
Title: Vice President
--------------------------
SOCIETE GENERALE
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------
Title: Vice President
--------------------------
UNITED STATES NATIONAL BANK OF OREGON
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
---------------------------
Title: Vice President
--------------------------
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ Xxxxxxx XxXxxxxx
-----------------------------
Name: Xxxxxxx XxXxxxxx
---------------------------
Title: Joint General Manager
--------------------------
Each of the Guarantors acknowledges the execution and
delivery of this Amendment by the Agent and by signing
below, indicates its reaffirmation of the Guarantor
Obligations (as such term is defined in the Subsidiary
Guaranty):
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AIRONET WIRELESS COMMUNICATIONS, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------
Title: Treasurer
-------------------------------
ITRONIX CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------
Title: Treasurer
-------------------------------
PTC AIRCO, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------
Title: Sr. V.P., C.F.O. and Treasurer
-------------------------------
META HOLDING CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------
Title: Sr. V.P., C.F.O. and Treasurer
-------------------------------
TELETRANSACTION, INC.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
--------------------------------
Title: Sr. V.P., C.F.O. and Treasurer
-------------------------------
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