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Exhibit 10.3.1.f
WAIVER EXTENSION AND AGREEMENT
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WAIVER EXTENSION AND AGREEMENT (this "Waiver"), dated as of
February 12, 1999, 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 (as amended, 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, the Agent and the Lenders have heretofore entered into a
Waiver and Agreement, dated as of December 29, 1998 (the "Original Waiver"),
with respect to certain matters relating to the compliance by the Borrower with
certain provisions of the Agreement.
III. The Borrower has requested that the Agent and the Lenders agree to a
further waiver of compliance by the Borrower with certain provisions of the
Agreement, including an extension of the waiver granted in the Original Waiver,
upon the terms and conditions contained herein.
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 and the Required Lenders hereby agree as follows:
1. WAIVERS. Subject to satisfaction of the conditions to
effectiveness set forth in Section 3 below:
(i) The Required Lenders hereby agree that the Waiver
Period (as defined in Section 1 of the Original Waiver) shall
not expire as of the time provided in the Original Waiver but
shall be extended and remain in effect for the period (the
"Extended Waiver Period") from the Effective Date (as defined
in Section 3 hereof) until March 26, 1999.
(ii) The Required Lenders hereby waive, for and
during the Extended Waiver Period, compliance by the Borrower
with the provisions of Sections 7.11 (Leverage Ratio), 7.12
(Tangible Net Worth), 7.13 (Fixed Charge Coverage Ratio) and
7.15 (Current Ratio) of the Agreement and any Defaults or
Events of
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Default under any of said Sections 7.11, 7.12, 7.13 and 7.15
currently existing in respect of the fiscal quarters of the
Borrower ended September 30, 1998 and December 31, 1998 and
any other Defaults or Events of Default hereafter arising
solely by reason of (a) the restatement of the Borrower's
financial statements for any period prior to the September 30,
1998 quarter (any Defaults or Events of Defaults relating to
the restatement of the Borrower's financial statements for the
September 30, 1998 quarter, including the effects thereof on
the Borrower's financial statements for the December 31, 1998
quarter, being waived as provided in the Original Waiver, as
extended by this Waiver), (b) the Borrower's financial results
for the December 31, 1998 quarter as reflected in the
Borrower's financial statements for that period, and/or (c)
any ratios or other computations or certifications required to
be made, maintained or provided under the Agreement or any
other Loan Document (as used in this Waiver, such term shall
include, in addition to the documents specified in the
definition thereof in the Agreement, the Original Waiver)
based upon or in respect of any of the financial statements
referenced in the immediately foregoing clauses (a) and (b).
(iii) The Required Lenders hereby waive, for and
during the Extended Waiver Period, compliance by the Borrower
with the due dates established in Sections 7.7(c) and 7.7(d)
for the delivery of quarterly financial statements and the
associated Compliance Certificate (provided that the Borrower
shall, and the Borrower hereby agrees to, deliver the same
within five (5) days after its filing of a Quarterly Report on
Form 10-Q including such quarterly financial statements) and
any Defaults or Events of Default under Section 7.7 currently
existing in respect of the fiscal quarters of the Borrower
ended September 30, 1998 and December 31, 1998 and any other
Defaults or Events of Default hereafter arising solely by
reason of any financial statements and/or certifications or
other similar documents based thereon or relating thereto
required to be provided by the Borrower under the Agreement or
any other Loan Document in respect of the fiscal quarter ended
December 31, 1998 or any prior period.
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Unless otherwise agreed to by the Required Lenders in writing, upon the
expiration of the Extended Waiver Period, the waivers provided for
herein shall be of no further force or effect, and unless as of that
time the Borrower is then in compliance with all of the provisions of
the Agreement compliance with which is waived in the Original Waiver
and in this Waiver, an Event of Default shall exist, and the Lenders
may exercise any and all rights and remedies available to any of them
under the Agreement, the other Loan Documents or applicable law.
2. AGREEMENTS BY THE BORROWER. Anything in the Agreement to
the contrary notwithstanding, in consideration of the waivers set forth
above, the Borrower hereby agrees as follows during the Extended Waiver
Period:
(i) The obligations of the Borrower under Section 2
of the Original Waiver, except as the same may be modified by
the terms of this Waiver, shall not be limited to the Waiver
Period but shall, as so modified, continue to be performed and
observed by the Borrower for and during the Extended Waiver
Period.
(ii) Unless otherwise agreed to by the Required
Lenders in writing, the Borrower agrees that the maximum
permitted Aggregate Revolving Credit Exposure shall continue
to be determined in accordance with the formula for
determining the same set forth in Section 2(i) of the Original
Waiver, except that the Sixty Million Dollar ($60,000,000)
amount stated in Section 2(i) of the Original Waiver shall
hereby be reduced to Fifty-Five Million Dollars ($55,000,000)
(such sum being the principal amount of indebtedness presently
outstanding under the Agreement), and that it will not request
any new Loans or the issuance of any new Letters of Credit
under the Agreement.
The Borrower agrees that any violation of its agreements set
forth above shall constitute a Default under the Agreement. Unless
otherwise agreed to in writing by the Borrower, the foregoing
agreements of the Borrower shall be of no further force or effect upon
the expiration of the Extended Waiver Period.
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3. EFFECTIVE DATE. Paragraph 1 and 2 of this Waiver shall not
be effective until such date (the "Effective Date") as each of the
following conditions shall have been satisfied:
(i) The Agent or the Borrower shall have received
counterparts of this Amendment executed by the Required
Lenders and the current Guarantors.
(ii) The Borrower shall have paid the reasonable fees
and disbursements of Special Counsel which shall have accrued
up to, and properly invoiced to the Borrower no later than,
the Effective Date.
(iii) On and as of the Effective Date after giving
effect to this Waiver, 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 (in the case
of the affirmation of representations and warranties in
Section 4(c) of the Original Waiver, after giving effect to
this Waiver in addition to the Original Waiver as there
recited) shall be true and correct with the same effect as
though such representations and warranties had been made on
the Effective Date.
(iv) Bank One shall have consented to the waivers and
agreements contemplated hereby with respect to the Bank One
Credit Line.
(v) The Borrower shall have paid to each Lender that
has executed a counterpart of this Waiver on or prior to the
Effective Date a consent fee equal to 0.25% of such Lender's
Revolving Commitment Amount (after giving effect to the
reduction in the Aggregate Revolving Commitment Amount
referred to in Section 3(iv) of the Original Waiver).
4. AFFIRMATION. On each of the date hereof and the Effective
Date, the Borrower hereby (a) reaffirms and admits the validity and
(subject to the terms of the Original Waiver and this Waiver)
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 obligations, and (c) represents and warrants that
after giving effect hereto and to the Original Waiver (as modified
hereby), no Default or Event of Default has occurred and is continuing,
and
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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.
5. WAIVERS LIMITED. In all other respects, the Loan Documents
shall remain in full force and effect, and no waiver or amendment in
respect of any term or condition of any Loan Document contained herein
shall be deemed to be a waiver or amendment in respect of any other
term or condition contained in any Loan Document.
6. COUNTERPARTS. This Waiver may be executed in any number of
counterparts all of which, taken together shall constitute one waiver.
In making proof of this waiver, it shall only be necessary to produce
the counterpart executed and delivered by the party to be charged.
7. GOVERNING LAW. THIS WAIVER 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.
AS EVIDENCE of the agreement by the parties hereto to the
terms and conditions herein contained, each such party has caused this Waiver to
be executed on its behalf.
TELXON CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx,
Xx. V. P. & Chief Financial Officer
THE BANK OF NEW YORK, as Agent
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: VP
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Each of the following Lenders consents to
the execution and delivery of this Waiver by
the Agent, hereby directs the Agent to so
execute and deliver this Waiver and agrees
to all of the terms and conditions hereof:
THE BANK OF NEW YORK
in its capacity as a Lender, as the
Issuer and as the Swing Line Lender
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: VP
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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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COMERICA BANK
By: /s/ Xxxxxxx X. Judge
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Name: Xxxxxxx X. Judge
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Title: Vice President
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THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Vice President
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PNC BANK, N.A.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Vice President
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SOCIETE GENERALE
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Director
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U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
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Title: Vice President
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THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Joint General Manager
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Each of the Guarantors acknowledges the execution and delivery of this Waiver by
the Agent and by signing below, indicates its reaffirmation of the Guarantor
Obligations (as such term is defined in the Subsidiary Guaranty):
PTC AIRCO, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx,
Xx. V. P. & Chief Financial Officer
META HOLDING CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx,
Xx. V. P. & Chief Financial Officer
TELETRANSACTION, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx,
Xx. V. P. & Chief Financial Officer
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