EXHIBIT 10.1
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CREDIT AGREEMENT
dated as of
December 29, 2004,
as amended and restated as of
February 16, 2005,
among
SYMBOL TECHNOLOGIES, INC.
The Lenders Party Hereto
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent
and
FLEET NATIONAL BANK
as Syndication Agent
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X.X. XXXXXX SECURITIES INC.,
and BANC OF AMERICA SECURITIES LLC,
as Co-Lead Arrangers and Joint Bookrunners
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FIRST AMENDMENT AND RESTATEMENT dated as of February 16,
2005 (this "Amendment"), of the (a) CREDIT AGREEMENT dated as
of December 29, 2004 (as in effect on the Amendment Closing
Date (as defined below), the "Credit Agreement", and as
amended by this Amendment and as further amended, supplemented
or otherwise modified from time to time, the "Amended Credit
Agreement"), among SYMBOL TECHNOLOGIES, INC. (the "Borrower"),
the lenders from time to time party thereto (the "Lenders"),
and JPMORGAN CHASE BANK, N.A., as administrative agent and
collateral agent (in such capacities, the "Administrative
Agent" and the "Collateral Agent", as the case may be) and (b)
GUARANTEE AND COLLATERAL AGREEMENT dated as of December 29,
2004 (as in effect on the Amendment Closing Date, the "GCA",
and as amended by this Amendment and as further amended,
supplemented or otherwise modified from time to time, the
"Amended GCA") among the Borrower, certain subsidiaries of the
Borrower and JPMORGAN CHASE BANK, N.A., as Collateral Agent.
A. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Amended Credit Agreement
or the Amended GCA, as applicable.
B. Pursuant to Section 5.13 of the Credit Agreement, the Borrower is
required to fully satisfy the Deferred Collateral Requirement no later than
February 16, 2005 and to use its commercially reasonable efforts to cause such
requirement to be satisfied as far in advance of such date as reasonably
practicable. In connection with the satisfaction of such requirement, the
Borrower has requested that the Credit Agreement and the GCA be amended so as to
clarify the requirements set forth in the definition of "Collateral and
Guarantee Requirement" and Schedule 3.12 of the Credit Agreement and to
effectuate certain other amendments to the Credit Agreement and the GCA.
C. The Required Lenders are willing, subject to the terms and
conditions set forth in this Amendment, to effect such amendments to the Credit
Agreement and the GCA.
Accordingly, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments and Restatements of Credit Agreement and GCA.
(a) Effective as of the Amendment Effective Date (as defined in Section 3
hereof), (i) the Credit Agreement is hereby amended and restated in the form of
the Amended and Restated Credit Agreement attached as Exhibit A to this
Amendment (it being understood that all schedules and exhibits to the Credit
Agreement other than Exhibit A and Schedules 2.01 and 3.12 shall continue to
constitute schedules and exhibits to the Credit Agreement, as amended and
restated hereby, in the forms thereof
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immediately prior to the Amendment Effective Date) and (ii) the GCA is hereby
amended and restated in the form of the Amended and Restated Guarantee and
Collateral Agreement attached as Exhibit B to this Amendment.
(b) Amendment to Exhibit A. Exhibit A to the Credit Agreement is
replaced with Exhibit A to the Amended Credit Agreement.
(c) Amendment to Schedule 2.01. Schedule 2.01 to the Credit
Agreement is replaced with a Schedule 2.01(A) attached to the Amended Credit
Agreement reflecting the Commitments in effect immediately prior to the
Amendment Effective Date and a Schedule 2.01(B) attached to the Amended Credit
Agreement reflecting the Commitments in effect after giving effect to the
assignments occurring substantially simultaneously with the Amendment Effective
Date.
(d) Amendment to Schedule 3.12. Schedule 3.12 of the Credit
Agreement is replaced with Schedule 3.12 to the Amended Credit Agreement.
SECTION 2. Representations and Warranties. (a) To induce the other
parties hereto to enter into this Amendment, the Borrower and each of the
Guarantors represents and warrants to each of the Lenders, the Administrative
Agent and the Collateral Agent that, as of each of the Amendment Effective Date:
(i) This Amendment has been duly authorized, executed and delivered
by it and this Amendment and each of the Credit Agreement, as amended and
restated hereby, and the GCA, as amended and restated hereby, constitutes
its valid and binding obligation, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.
(ii) The representations and warranties set forth in Article III of
the Credit Agreement and Sections 3.03 and 4.02 of the GCA are true and
correct in all material respects on and as of the Amendment Effective Date
with the same effect as though made on and as of such date, except to the
extent such representations and warranties expressly relate to an earlier
date (in which case such representations and warranties were true and
correct in all material respects as of such earlier date).
(iii) No Default or Event of Default has occurred and is continuing.
(iv) The Borrower and each of the Guarantors represents and warrants
to each of the Lenders, the Administrative Agent and the Collateral Agent
that, as of the Amendment Effective Date and after giving effect to this
Amendment, the Collateral and Guarantee Requirement shall be satisfied.
SECTION 3. Effectiveness of Amendment. The amendments to the Credit
Agreement and the GCA set forth in Section 1 hereof shall become effective as of
the first date (the "Amendment Effective Date") on which the following
conditions have been satisfied:
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(a) The Administrative Agent (or its counsel) shall have received
duly executed counterparts hereof that, when taken together, bear the signatures
of the Borrower, the Guarantors, the Required Lenders and the Collateral Agent.
(b) The Administrative Agent shall have received a certificate,
dated the Amendment Effective Date and signed by the Chief Executive Officer or
a Financial Officer of the Borrower, confirming compliance with the conditions
set forth in paragraphs (a) and (b) of Section 4.02 of the Credit Agreement.
(c) The Administrative Agent shall have received on the Amendment
Effective Date favorable legal opinions of Xxxxx Xxxx, General Counsel of the
Borrower, Xxxxxx & Xxxxxxx L.L.P. and each other counsel to the Borrower and to
the Guarantors or to the Administrative Agent as shall be required in order to
cause the Collateral and Guarantee Requirement to be satisfied, including
without limitation, counsel in Japan, the Netherlands, Mexico and the United
Kingdom, in each case, addressed to the Administrative Agent and the Lenders and
dated the Amendment Effective Date, covering such matters relating to this
Amendment, the Credit Agreement and the GCA, in each case, as amended and
restated hereby, and the other Loan Documents and security interests thereunder,
as the Administrative Agent may reasonably request, and each such opinion shall
be reasonably satisfactory to the Administrative Agent.
(d) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent may reasonably request relating to the
organization, existence and good standing of each Loan Party, the authorization
of this Amendment and the transactions contemplated hereby and any other legal
matters relating to the Loan Parties, this Amendment, the other Loan Documents
and the transactions contemplated hereby, all in form and substance reasonably
satisfactory to the Administrative Agent.
(e) To the extent deemed necessary or appropriate by the
Administrative Agent, (i) each Security Document required to be executed to
satisfy the Deferred Collateral Requirement and (ii) the Intercreditor Agreement
and the Acknowledgment and Consent, in each case shall have been executed and
delivered. The Collateral and Guarantee Requirement shall have been satisfied
and the benefits of and the security provided by the Security Documents shall
extend to the Obligations, as defined in the GCA after giving effect to the
Amendments hereunder.
(f) To the extent invoiced, the Administrative Agent shall have
received payment or reimbursement of its reasonable out-of-pocket expenses in
connection with this Amendment and any other out-of-pocket expenses of the
Administrative Agent required to be paid or reimbursed pursuant to the Credit
Agreement, including the reasonable fees, charges and disbursements of counsel
for the Administrative Agent.
SECTION 4. Effect of Amendment. (a) Except as amended and restated
hereby, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of or otherwise affect the rights and remedies of the
Lenders or the Administrative Agent under the Credit Agreement, the GCA or any
other Loan Document (including, in
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each case, any guarantees, pledges and grants of security interests or other
similar rights thereunder), and shall not alter, modify, amend or in any way
affect any of the terms, conditions, obligations, covenants, agreements or other
provisions of the Credit Agreement, the GCA or of any other Loan Document
(including, in each case, any guarantees, pledges and grants of security
interests or other similar rights thereunder), all of which are ratified and
affirmed in all respects and shall continue in full force and effect. Nothing
herein shall be deemed to entitle the Borrower or the Guarantors to a consent
to, or a waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement, the GCA or any other Loan Document (including, in each case, any
guarantees, pledges and grants of security interests or other similar rights
thereunder) in similar or different circumstances
(b) On and after each date on which provisions of this Amendment
become effective in accordance with Section 3 hereof, each reference in the
Credit Agreement or the GCA to "this Agreement", "hereunder", "hereof",
"herein", or words of like import, and each reference to the Credit Agreement or
the GCA in any other Loan Document shall be deemed to be a reference to the
Credit Agreement or the GCA, in each case as amended and restated to give effect
to such provisions. This Amendment shall constitute a "Loan Document" for all
purposes of the Credit Agreement and the other Loan Documents (including, in
each case, for all purposes of any guarantees, pledges and grants of security
interests or other similar rights thereunder).
SECTION 5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Costs and Expenses. The Borrower and the Guarantors,
jointly and severally, agree to reimburse the Administrative Agent for its
reasonable out of pocket expenses in connection with this Amendment, including
the reasonable fees, charges and disbursements of counsel for the Administrative
Agent.
SECTION 7. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
Delivery of any executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 8. Headings. The headings of this Amendment are for purposes
of reference only and shall not limit or otherwise affect the meaning hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their authorized officers as of the date first above
written.
SYMBOL TECHNOLOGIES, INC.,
By:
/s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: Sr. Vice President and Chief
Financial Officer
@XXX.XXX, INC.,
By
/s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
COVIGO, INC.,
By
/s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
SYMBOL TECHNOLOGIES
INTERNATIONAL, INC.,
By
/s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
SYMBOLEASE, INC.,
By
/s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
SYMBOL TECHNOLOGIES finance, INC.,
By
/s/ Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
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TELXON CORPORATION,
By
/s/Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Vice President & Treasurer
THE RETAIL TECHNOLOGY GROUP, INC.,
By
/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President
JPMORGAN CHASE BANK, N.A.,
INDIVIDUALLY AND AS ADMINISTRATIVE
AGENT AND COLLATERAL AGENT,
By
/s/ Xxxxxx x. Xxxxxx
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Name: Xxxxxx x. Xxxxxx
Title: Vice President
FLEET NATIONAL BANK,
By
/s/ Xxxxx X. XxxXxxxxxx
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Name: Xxxxx X. XxxXxxxxxx
Title: Managing Director
