EXHIBIT 4
GMAC COMMERCIAL FINANCE LLC
(as successor by merger to GMAC Commercial Credit LLC)
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as of February 5, 2003
TII NETWORK TECHNOLOGIES, INC.
0000 Xxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Re: Waiver
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Gentlemen:
Reference is made to certain financing arrangements by and among GMAC
COMMERCIAL FINANCE LLC, as successor by merger to GMAC Commercial Credit LLC
("Lender"), TII NETWORK TECHNOLOGIES, INC., formerly known as TII Industries,
Inc., ("Borrower") and TII Corporation (which was subsequently dissolved),
pursuant to certain financing agreements, including that certain Revolving
Credit, Term Loan and Security Agreement dated April 30, 1998 (the "Credit
Agreement"), together with various other agreements, documents and instruments
referred to therein or at any time executed and/or delivered in connection
therewith or related thereto (all of the foregoing, together with the Credit
Agreement, as the same has been, is hereby being, and may hereafter be amended,
restated, renewed, extended, supplemented, substituted or otherwise modified,
collectively, the "Loan Documents").
Borrower has requested that Lender waive the Borrower's non-compliance
with Minimum Net Worth covenant as set forth in the Credit Agreement for the
Borrower's fiscal quarter ending December 31, 2002, which Lender has agreed to
do subject to the terms and provisions hereof.
In consideration of the foregoing, the parties hereto hereby agree as
follows:
1. With regard to the Minimum Net Worth covenant as set forth in the
Credit Agreement, Lender hereby waives the non-compliance by the Borrower with
the provisions of said covenant solely for the Borrower's fiscal quarter ending
December 31, 2002, provided that, nothing contained herein shall be construed to
limit, impair or otherwise affect Lender's right to declare a default with
respect to any future non-compliance with the above referenced covenant or any
other covenants contained in the Credit Agreement or any other terms and
provisions of the Credit Agreement or any Loan Documents.
2. In consideration of the waiver to the Loan Documents set forth
herein, Borrower unconditionally agrees to pay a fee in the amount of $5,000,
which fee shall be fully earned as of the date of hereof, shall not be subject
to refund, rebate or proration for any reason whatsoever, and shall be charged
by Lender to Borrower as of the date hereof.
3. Except as expressly set forth herein, no other changes or
modifications to the Credit Agreement or any other Loan Document are intended or
implied, and the Credit Agreement and the other Loan Documents and the liens
granted thereunder are hereby specifically ratified and confirmed as being in
full force and effect as of the date hereof. Except as otherwise expressly
provided in any of the Loan Documents, in all respects, including all matters of
construction, validity and performance, this letter shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York
applicable to contracts made and performed in such state, without regard to the
principles thereof regarding conflicts of laws, and any applicable laws of the
United States of America.
4. To the extent that any term or provision of the Credit Agreement or
the other Loan Documents conflicts with any term or provision hereof, the terms
and provisions hereof shall control.
5. This letter shall be effective upon execution of each of the parties
hereto and may be executed in any number of counterparts, each of which shall be
an original, but all of which, when taken together, shall constitute one and the
same instrument.
GMAC COMMERCIAL CREDIT LLC
By: /s/ Xxxxx Xxxxx
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Title: Senior Vice President
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ACKNOWLEDGED AND AGREED:
TII NETWORK TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Vice President Finance
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