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Exhibit 10.3.4.b
FURTHER CONSENT
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FURTHER CONSENT (this "Consent"), dated as of February 12,
1999, 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 (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 and the Bank are parties to a Consent, dated as of December 29,
1998 (the "Original Consent") pursuant to which the Bank has consent to the
Waiver and Agreement, dated as of even date with the Original Consent (the
"Amendment"), 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 (as amended from time to time, the "Credit
Agreement").
III. The Borrower has requested that the parties to the Credit Agreement grant a
further waiver to the Borrower under the Credit Agreement, including an
extension of the waiver granted under the Amendment, such further waiver being
substantially in the form of the Waiver Extension and Agreement attached as
Exhibit A hereto (the "Further Amendment"), and accordingly, has requested that
the Bank consent to the Further Amendment.
IV. Certain defaults have occurred or may occur under the Credit Agreement and
the Note, which defaults are being waived in the manner, and for the period,
provided in the Further 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 Further Amendment, provided that this
Consent shall not become effective unless and until the Borrower shall
have provided the Bank with written certification that the Borrower's
Eligible Accounts Receivable and Eligible Inventory (as such terms are
defined in the Credit Agreement) as of January 31, 1999 are sufficient
under the formula set forth in Section 2(i) of the Amendment, as being
modified by the Further Amendment, to support the Borrower's currently
outstanding borrowings under the Credit Agreement. Subject to the
Bank's receipt of the foregoing certification, this Consent will be
effective until March 26, 1999. The Bank further agrees that the
effectiveness of the Original Consent shall not expire as of the time
provided therein but shall be extended and remain in effect for and
until the end of the period specified in the immediately preceding
sentence.
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2. AFFIRMATION; ACKNOWLEDGMENTS. The Borrower hereby (i)
reaffirms and admits the validity and (subject to the terms of the
Credit Agreement as referenced in and made a part of the terms of the
Note, as such Credit Agreement terms are waived or modified by the
Amendment and the Further Amendment) enforceability of the Note and 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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Xxxxxxx X. Xxxxx,
Senior Vice President and
Chief Financial Officer
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