EXHIBIT 10.21
AMENDED AND RESTATED
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS AMENDED AND RESTATED SECOND AMENDMENT TO CREDIT
AGREEMENT dated as of September 11, 2001 (the "Amendment"), is
entered into by and among Symbol Technologies, Inc., a Delaware
corporation (the "Company"), the several financial institutions
party to the Credit Agreement (collectively, the "Banks"), and Bank
of America, N.A., as agent for the banks (in such capacity, the
"Agent").
RECITALS
A. The Company, Banks and Agent are parties to that
certain 2000 Amended and Restated Credit Agreement dated as of
August 3, 2000 (as amended by that certain First Amendment to Credit
Agreement dated as of March 28, 2001, and as amended by that certain
Second Amendment to Credit Agreement dated as of July 25, 2001, the
"Existing Credit Agreement") pursuant to which the Banks have
extended certain credit facilities.
B. The Company has requested that the Majority Banks
agree to amend and restate the Second Amendment to Credit Agreement
in the form hereof in order to permit and allow the Company to add
back the non-recurring charges related to the Company's write down
of company-owned inventory and probable losses expected to be
incurred as a result of the Company's OEM partners not being able to
sell Company product inventory in the fiscal quarter ended June 30,
2001 to its calculation of Operating Income solely for the purposes
of complying with the financial covenants set forth in Sections 8.15
and 8.16 of the Credit Agreement for the fiscal quarters ending June
30, 2001, September 30, 2001, December 31, 2001 and March 31, 2002.
C. The Majority Banks are willing to so amend and
restate the Second Amendment to Credit Agreement, subject to the
terms and conditions herein.
NOW, THEREFORE, for valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein,
capitalized terms used herein (including in the Recitals hereof)
shall have the meanings, if any, assigned to them in the Existing
Credit Agreement.
2. Amendment to Credit Agreement. The definition of
"Operating Income" as set forth in Section 1.01 of the Credit
Agreement shall be amended and restated to read in its entirety as
follows:
"Operating Income" means, for any period, for
the Company and its Subsidiaries on a consolidated
basis, earnings (or losses) from operations, calcu-
lated in accordance with the methodology used for
calculating "Earnings from Operations" in the
financial statements referenced in Section 6.10;
provided, however,
(a) that only for the fiscal quarters ending
December 31, 2000 and March 31, 2001 and solely for
the purposes of complying with the financial
covenants set forth in Sections 8.15 and 8.16 of the
Credit Agreement (Leverage Ratio and Fixed Charge
Coverage Ratio) for the foregoing fiscal quarters,
the Company shall be permitted to add back to the
calculation thereof the Telxon Special Charges. As
used in this definition, "Telxon Special Charges"
means an amount (not exceeding $274,000,000 before
taxes) equal to the aggregate of special charges
associated with the Company's acquisition of Telxon
Corporation, to extent deducted in arriving at
Operating Income for the fiscal quarter ended
December 31, 2000;
(b) that only for the fiscal quarters ending
June 30, 2001 and September 30, 2001 and solely for
the purposes of complying with the financial
covenants set forth in Sections 8.15 and 8.16 of the
Credit Agreement (Leverage Ratio and Fixed Charge
Coverage Ratio) for the foregoing fiscal quarters,
the Company shall be permitted to add back to the
calculation thereof the Telxon Special Charges and
the Q2 2001 Special Charges; provided, however, that
for purposes of determining the Applicable Amount as
set forth in Annex I of the Existing Credit
Agreement, the Leverage Ratio for the fiscal quarter
ended June 30, 2001 shall be calculated on the basis
of $100,000,000 in Q2 Special Charges as originally
set forth in the Second Amendment to Credit
Agreement. As used in this definition, "Q2 2001
Special Charges" means an amount (not exceeding
$126,000,000 before taxes) equal to the aggregate of
special charges associated with the Company's write
down of company-owned inventory and probable losses
expected to be incurred as a result of the Company's
OEM partners not being able to sell Company product
inventory, to the extent deducted in arriving at
Operating Income for the fiscal quarter ended June
30, 2001; and
(c) that only for the fiscal quarters ending
December 31, 2001 and March 31, 2002 and solely for
the purpose of complying with the financial
covenants set forth in Sections 8.15 and 8.16 of the
Credit Agreement (Leverage Ratio and Fixed Charge
Coverage Ratio) for the foregoing fiscal quarters,
the Company shall be permitted to add back to the
calculation thereof the Q2 2001 Special Charges.
3. Representations and Warranties. The Company hereby
represents and warrants to the Agent and the Banks as follows:
(a) No Default or Event of Default has occurred and
is continuing.
(b) The execution, delivery and performance by the
Company of this Amendment have been duly authorized by all necessary
corporate and other action and do not and will not require any
registration with, consent or approval of, notice to or action by,
any Person (including any Governmental Authority) in order to be
effective and enforceable. The Existing Credit Agreement as amended
by this Amendment constitutes the legal, valid and binding
obligations of the Company, enforceable against it in accordance
with its respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally or by equitable
principles relating to enforceability, without defense, counterclaim
or offset.
(c) All representations and warranties of the
Company contained in the Existing Credit Agreement are true and
correct on and as of the date hereof.
(d) The Company is entering into this Amendment on
the basis of its own investigation and for its own reasons, without
reliance upon the Agent, the Banks or any other Person.
4. Restatement Processing Fee. The Company shall pay
(through the Agent) to each Bank that executes and delivers this
Amendment by no later than September 11, 2001 a non-refundable
restatement processing fee equal to $5,000. Such restatement
processing fee shall be fully-earned upon becoming due and payable,
shall not be refundable for any reason whatsoever and shall be in
addition to any fee, cost or expense otherwise payable by the
Company pursuant to the Existing Credit Agreement or this Amendment.
5. Effectiveness. Upon receipt by the Agent of (i) the
restatement processing fee referred to in Section 4 hereof, (ii)
counterparts of this Amendment executed by the Company and the
Majority Banks, and (iii) a Guarantor Consent Agreement, in form and
substance satisfactory to the Agent, executed by the Guarantors,
this Amendment shall be come effective as of the date hereof (the
"Effective Date").
6. Reservation of Rights. The Company acknowledges and
agrees that the execution and delivery by the Agent and the Banks of
this Amendment shall not be deemed to create a course of dealing or
otherwise obligate the Agent or the Banks to enter into amendments
under the same, similar or any other circumstances in the future.
7. Miscellaneous.
(a) Except as herein expressly amended, all terms,
covenants and provisions of the Existing Credit Agreement are and
shall remain in full force and effect and all references therein and
in the other Loan Documents to such Existing Credit Agreement shall
henceforth refer to the Existing Credit Agreement as amended by this
Amendment. This Amendment shall be deemed incorporated into, and a
part of, the Existing Credit Agreement. This Amendment is a Loan
Document.
(b) This Amendment amends and restates in its
entirety the Second Amendment to Credit Agreement; provided,
however, that any fees paid by the Company pursuant to Section 4
thereof remain fully earned and non-refundable.
(c) This Amendment shall be binding upon and inure to
the benefit of the parties hereto and to the Existing Credit
Agreement and their respective successors and assigns. No third
party beneficiaries are intended in connection with this Amendment.
(d) This Amendment shall be governed by and construed
in accordance with the laws of the State of New York.
(e) This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all
such counterparts together shall constitute but one and the same
instrument. Each of the parties hereto understands and agrees that
this document (and any other document required herein) may be
delivered by any party thereto either in the form of an executed
original or an executed original sent by facsimile transmission to
be followed promptly by mailing of a hard copy original, and that
receipt by the Agent of a facsimile transmitted document purportedly
bearing the signature of a Bank or the Company shall bind such Bank
or the Company, respectively, with the same force and effect as the
delivery of a hard copy original. Any failure by the Agent to
receive the hard copy executed original of such document shall not
diminish the binding effect of receipt of the facsimile transmitted
executed original of such document of the party whose hard copy page
was not received by the Agent, and the Agent is hereby authorized to
make sufficient photocopies thereof to assemble complete
counterparty documents.
(f) This Amendment, together with the Existing Credit
Agreement, contains the entire and exclusive agreement of the
parties hereto with reference to the matters discussed herein and
therein. This Amendment supersedes all prior drafts and
communications with respect thereto. This Amendment may not be
amended except in accordance with the provisions of Section 11.01 of
the Existing Credit Agreement.
(g) If any term or provision of this Amendment shall
be deemed prohibited by or invalid under any applicable law, such
provision shall be invalidated without affecting the remaining
provisions of this Amendment or the Existing Credit Agreement,
respectively.
(h) The Company covenants to pay or reimburse the
Agent, upon demand, for all reasonable out-of-pocket costs and
expenses (including the reasonable fees, charges and disbursements
of counsel (including the allocated costs and expenses of in-house
counsel)) incurred by the Agent in connection with the development,
preparation, negotiation, execution and delivery of this Amendment.
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