EXHIBIT 10 (z)
AMENDMENT NO. 2 TO LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT NO. 2 TO LETTER OF CREDIT AND REIMBURSEMENT
AGREEMENT (this "Agreement") is made and entered into as of this
10th day of December, 1995 among:
DATA GENERAL CORPORATION, a Delaware corporation ("Borrower"),
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION, a national banking association, THE
BANK OF NEW YORK and FLEET BANK OF MASSACHUSETTS, N.A. (each individually, a
"Lender" and collectively, the "Lenders"); and
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION, a national banking
association, in its capacity as agent for the Lenders (in such capacity, the
"Agent");
W I T N E S S E T H:
--------------------
WHEREAS, the Borrower, the Lenders and the Agent have entered into a
Letter of Credit and Reimbursement Agreement dated as of December 21, 1994, as
amended by Amendment No. 1 to Letter of Credit and Reimbursement Agreement dated
as of October 5, 1995 among the Borrower, the Lenders and the Agent and as
hereby amended (as amended, the "Credit Agreement"), pursuant to which the
Lenders agreed to issue certain letters of credit on behalf of the Borrower; and
WHEREAS, the Borrower has requested that the Credit Agreement be
amended in the manner set forth herein and the Agent and the Lenders are willing
to agree to such amendment;
NOW, THEREFORE, in consideration of the mutual covenants and the
fulfillment of the conditions set forth herein, the parties hereto do hereby
agree as follows:
1. Definitions. Any capitalized terms used herein without
definition shall have the meaning set forth in the Credit
Agreement.
2. Amendment. Subject to the terms and conditions set forth
herein, the Credit Agreement is hereby amended as follows:
(a) The definitions of "Commitment Termination Date" and
"Consolidated Tangible Net Worth" shall be amended and
restated in their entirety to read as follows:
"Commitment Termination Date" means the earliest to
occur of (i) December 18, 1996 (364 days after the initial
Commitment Termination Date following the Closing Date prior
to amendment hereby pursuant to Amendment No. 2 to Letter of
Credit and Reimbursement Agreement dated as of December 10,
1995 among all parties hereto), or
(ii) the date of termination of Lenders' obligations pursuant
to Section 8.01 hereof upon the occurrence of an Event of
Default, or (iii) such date as the Borrower may voluntarily
and permanently terminate the Letter of Credit Facility by
causing all Obligations of the Borrower to NationsBank and the
Lenders to be Fully Satisfied and terminating all obligations
of NationsBank and the Lenders with respect to Letters of
Credit and Participations;
"Consolidated Net Worth" means, at any time as of
which the amount thereof is to be determined, Consolidated
Shareholders' Equity less the effect of any amount in the
foreign exchange cumulative translation adjustment account as
disclosed on the consolidated financial statements of the
Borrower and its Subsidiaries referred to in Section
5.01(e)(i) hereof and to be delivered under Section 6.01
hereof, all as determined on a consolidated basis in
accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis;
(b) Section 7.03 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
7.03 Consolidated Net Worth. Permit at any
Determination Date the Consolidated Net Worth to be less than
(a) $250,000,000 as at December 31, 1995 and (b) as at each
succeeding Determination Date, the sum of (i) the amount of
Consolidated Net Worth required to be maintained pursuant to
this Section 7.03 as at the end of the immediately preceding
Fiscal Quarter, plus (ii) 50% of cumulative Consolidated Net
Income calculated for the Fiscal Quarter ending on such
Determination Date ("Minimum Consolidated Net Worth");
provided, however, in no event shall such Minimum Consolidated
Net Worth be decreased as a result of any net loss of the
Borrower and its Subsidiaries (i.e., negative Consolidated Net
Income) during any Fiscal Quarter.
3. Amendment Fee. The Borrower shall pay to the Agent for the pro rata
benefit of the Lenders based on their Applicable Commitment Percentages, a fee
(the "Facility Fee") equal to the product of the Total Letter of Credit
Commitment multiplied by 1/8 of 1% (.125%).
4. Effectiveness. This Agreement shall become effective as of the date
hereof upon receipt by the Agent of (a) seven fully executed copies of this
Agreement (which may be signed in counterparts) and (b) payment in full of the
Facility Fee to be held by the Agent for the pro rata benefit of the Lenders.
5. Representations and Warranties. In order to induce the
Agent and the Lender to enter into this Agreement, the Borrower
represents and warrants to the Agent and the Lender as follows:
(a) The representations and warranties made by Borrower in
Article V of the Credit Agreement are true and correct on and as of the
date hereof, except to the extent that such representations and
warranties expressly relate to an earlier date and except that the
financial statements referred to in Section 5.01(e)(i) of the Credit
Agreement shall be deemed to be those financial statements most
recently delivered to the Agent and the Lenders pursuant to Section
6.01 of the Credit Agreement;
(b) There has been no material adverse change in the
condition, financial or otherwise, of the Borrower and its
Subsidiaries, taken as a whole, since the date of the most recent
financial reports of the Borrower received by the Agent and the Lenders
under Section 6.01(a) of the Credit Agreement, other than changes in
the ordinary course of business;
(c) The business and properties of the Borrower and its
Subsidiaries, taken as a whole, are not, and since the date of the most
recent financial report of the Borrower and its Subsidiaries received
by the Agent and the Lenders under Section 6.01(a) of the Credit
Agreement, have not been, adversely affected in any substantial way as
the result of any fire, explosion, earthquake, accident, strike,
lockout, combination of workers, flood, embargo, riot, activities of
armed forces, war or acts of God or the public enemy, or cancellation
or loss of any major contracts; and
(d) No event has occurred and is continuing which constitutes,
and no condition exists which upon the consummation of the transaction
contemplated hereby would constitute, a Default or an Event of Default
on the part of the Borrower under the Credit Agreement, either
immediately or with the lapse of time or the giving of notice, or both.
6. Entire Agreement. This Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to
the subject matter hereof and supersedes any prior negotiations and
agreements among the parties relative to such subject matter.
7. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all other Letter of
Credit Documents are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective terms.
8. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original
as against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument.
9. Governing Law. This Agreement shall in all respects be
governed by the laws and judicial decisions of the State of New
York.
10. Enforceability. Should any one or more of the provisions
of this Agreement be determined to be illegal or unenforceable as
to one or more of the parties hereto, all other provisions
nevertheless shall remain effective and binding on the parties
hereto.
11. Credit Agreement. All references in any of the Letter of
Credit Documents to the Credit Agreement shall mean the Credit
Agreement as amended hereby.
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers, all as of the day and year
first above written.
BORROWER:
DATA GENERAL CORPORATION
By:
Name:
Title:
LENDERS:
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION
By:
Name:
Title:
THE BANK OF NEW YORK
By:
Name:
Title:
FLEET BANK OF MASSACHUSETTS, N.A.
By:
Name:
Title:
AGENT:
NATIONSBANK OF TEXAS, NATIONAL
ASSOCIATION as Agent for the Lenders
By:
Name:
Title:
