EXHIBIT 10.5
AMENDMENT AGREEMENT dated as of August 2, 2005 (this
"Amendment"), in respect of the Amended and Restated Credit
Agreement dated as of December 29, 2004, as amended and
restated as of February 16, 2005, as amended and restated as
of February 16, 2005, as amended by the Waiver and Amendment
(the "Waiver and Amendment") dated as of June 30, 2005 (as
amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among Symbol Technologies, Inc.
("Symbol"), the lenders from time to time party thereto (the
"Lenders") and JPMorgan Chase Bank, N.A., as Administrative
Agent.
The Borrower has requested that the Credit Agreement be amended as
set forth herein.
In consideration of the premises and the agreements, provisions and
covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. Amendment. Upon the effectiveness of this Amendment as
provided in Section 3 below:
(a) The definition of "Fixed Charge Coverage Ratio" in Section 1.01
of the Credit Agreement is amended to read in its entirely as follows:
"Fixed Charge Coverage Ratio" means, for any period, the ratio
of (a) the Consolidated EB1TDA for such period plus up to a cumulative
aggregate amount of $55,000,000 of cash charges and non-cash charges
representing accruals of or reserves for cash expenditures in future
periods that, in each case, are recorded in one of the last three fiscal
quarters of the fiscal year ending December 31, 2005 and that relate to
the Borrower's restructuring plan announced June 28, 2005, minus the
amount of Capital Expenditures of the Borrower and the consolidated
Subsidiaries for such period to (b) the sum for such period of (i)
Consolidated Interest Expense, (ii) Capital Lease Principal Payments and
amortization payments with respect to Long-Term Indebtedness and (iii) the
aggregate amount of Taxes paid in cash by the Borrower and its
Subsidiaries.
SECTION 2. Representations and Warranties. The Borrower represents
and warrants as of the Amendment Effective Date (defined below) to the Lenders
that:
(a) Before and after giving effect to this Amendment, all
representations and warranties of each Loan Party set forth in the Loan
Documents (as amended hereby) are true and correct in all material
respects except to the extent that any representation or warranty
expressly relates to an earlier date (in which case such representation or
warranty is correct as of such earlier date).
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(b) Immediately before and after giving effect to this Amendment, no
Default has occurred and is continuing.
SECTION 3. Conditions to Effectiveness. This Amendment shall become
effective on the date (the "Amendment Effective Date") on which the
Administrative Agent shall have received counterparts hereof duly executed and
delivered by the Borrower, the Administrative Agent and the Required Lenders.
The Administrative Agent shall notify the Borrower and the Lenders of the
Amendment Effective Date, and such notice shall be conclusive and binding.
SECTION 4. Agreements. (a) Except as specifically stated herein, the
provisions of the Credit Agreement are and shall remain in full force and
effect. As used therein, the terms "Credit Agreement", "herein", "hereunder",
"hereinafter", "hereto", "hereof" and words of similar import shall, unless the
context otherwise requires, refer to the Credit Agreement, as amended hereby.
(b) Except as expressly set forth herein, 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 or any other Loan Document, and shall not alter, modify,
amend or in any way affect any of the terms, conditions, obligations, covenants
or agreements contained in the Credit Agreement or any other Loan Document, 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 any
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 or any other Loan Document in similar or different
circumstances. This Amendment shall constitute a "Loan Document" for all
purposes of the Credit Agreement and the other Loan Documents.
SECTION 5. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Counterparts. This Amendment may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract. Delivery of an executed
counterpart of a signature page of this Amendment by telecopy shall be effective
as delivery of a manually executed counterpart of this Amendment.
SECTION 7. Expenses. The Borrower agrees to reimburse the
Administrative Agent for all reasonable out-of-pocket expenses incurred by it in
connection with this Amendment, including the reasonable fees, charges and
disbursements of Cravath, Swaine & ▇▇▇▇▇ LLP, counsel for the Administrative
Agent.
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SECTION 8. Headings. The headings of this Amendment arc 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 respective authorized officers as of the day and year
first above written.
SYMBOL TECHNOLOGIES, INC.,
by /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President Tax and Treasurer
JPMORGAN CHASE BANK, N.A.,
individually and AS Administrative Agent,
by
___________________________
Name:
Title:
5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed by their respective authorized officers as of the day and year
first above written.
SYMBOL TECHNOLOGIES, INC.,
by
___________________________
Name:
Title:
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent,
by /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: SENIOR VICE PRESIDENT
6
SIGNATURE PAGE to the AMENDMENT AGREEMENT
dated as of August 2, 2005, in respect of the
AMENDED AND RESTATED CREDIT AGREEMENT dated as
of December 29, 2004, as amended and restated
as of February 16, 2005.
To approve the amendment"
Lender: Bank Leumi USA
By: /s/ ▇▇▇▇▇ Winfoot
----------------------------------
Name: ▇▇▇▇▇ Winfoot
Title: Vice President
Lender: Bank Leumi USA
By: /s/ ▇▇▇▇ ▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: First Vice President
7
SIGNATURE PAGE to the AMENDMENT AGREEMENT
dated as of August 2, 2005, in respect of the
AMENDED AND RESTATED CREDIT AGREEMENT dated as
of December 29, 2004, as amended and restated
as of February 16, 2005.
To approve the amendment"
Lender: Bank of America
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
Lender: ______________________________________
By: __________________________________
Name:
Title:
8
SIGNATURE PAGE to the AMENDMENT AGREEMENT
dated as of August 2, 2005, in respect of the
AMENDED AND RESTATED CREDIT AGREEMENT dated as
of December 29, 2004, as amended and restated
as of February 16, 2005.
To approve the amendment"
Lender: BARCLAYS BANK PLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Associate Director
Lender: ______________________________________
By: __________________________________
Name:
Title:
9
SIGNATURE PAGE to the AMENDMENT AGREEMENT
dated as of August 2, 2005, in respect of the
AMENDED AND RESTATED CREDIT AGREEMENT dated as
of December 29, 2004, as amended and restated
as of February 16, 2005.
To approve the amendment"
Lender: Citibank, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Lender: ______________________________________
By: __________________________________
Name:
Title:
10
SIGNATURE PAGE to the AMENDMENT AGREEMENT
dated as of August 2, 2005, in respect of the
AMENDED AND RESTATED CREDIT AGREEMENT dated as
of December 29, 2004, as amended and restated
as of February 16, 2005.
To approve the amendment"
Lender: HSBC Bank USA, National Association
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: First Vice President
Lender: ______________________________________
By: __________________________________
Name:
Title:
11
SIGNATURE PAGE to the AMENDMENT AGREEMENT
dated as of August 2, 2005, in respect of the
AMENDED AND RESTATED CREDIT AGREEMENT dated as
of December 29, 2004, as amended and restated
as of February 16, 2005.
To approve the amendment"
Lender: JPMorgan Chase Bank, N.A.
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior vice President
Lender: ______________________________________
By: __________________________________
Name:
Title:
12
SIGNATURE PAGE to the AMENDMENT AGREEMENT
dated as of August 2, 2005, in respect of the
AMENDED AND RESTATED CREDIT AGREEMENT dated as
of December 29, 2004, as amended and restated
as of February 16, 2005.
To approve the amendment"
Lender: KeyBank National Association
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
Lender: ______________________________________
By: __________________________________
Name:
Title:
13
SIGNATURE PAGE to the AMENDMENT AGREEMENT
dated as of August 2, 2005, in respect of the
AMENDED AND RESTATED CREDIT AGREEMENT dated as
of December 29, 2004, as amended and restated
as of February 16, 2005.
To approve the amendment"
Lender: NORTH FORK BANK
By: /s/ Enrilo ▇▇▇▇▇
----------------------------------
Name: ENRILO ▇▇▇▇▇
Title: VICE PRESIDENT
Lender: ______________________________________
By: __________________________________
Name:
Title:
14
SIGNATURE PAGE to the AMENDMENT AGREEMENT
dated as of August 2, 2005, in respect of the
AMENDED AND RESTATED CREDIT AGREEMENT dated as
of December 29, 2004, as amended and restated
as of February 16, 2005.
To approve the amendment"
Lender: WACHOVIA BANK, NA
By: /s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Lender: ______________________________________
By: __________________________________
Name:
Title: