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AMENDMENT NO. 3
TO
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AND SECURITY AGREEMENT
THIS AMENDMENT NO. 3 ("Amendment") is entered into as of September 27,
1996, among GENERAL DATACOMM INDUSTRIES, INC., a corporation organized under the
laws of the State of Delaware ("GDC"), GENERAL DATACOMM, INC., a corporation
organized under the laws of the State of Delaware, GDC REALTY, INC., a
corporation organized under the laws of the State of Texas, GDC NAUGATUCK, INC.,
a corporation organized under the laws of the State of Delaware, GENERAL
DATACOMM INTERNATIONAL CORP., a corporation organized under the laws of the
State of Delaware, GDC FEDERAL SYSTEMS, INC. (formerly known as GENERAL DATACOMM
SYSTEMS, INC.), a corporation organized under the laws of the State of Delaware
(each a "Borrower" and jointly and severally, the "Borrowers"), the undersigned
financial institutions (each a "Lender" and collectively, "Lenders") and THE
BANK OF NEW YORK COMMERCIAL CORPORATION ("BNYCC"), a New York corporation, as
agent for Lenders (BNYCC in such capacity, "Agent").
BACKGROUND
Borrowers, Lenders and Agent are parties to a Third Amended and
Restated Revolving Credit and Security Agreement dated as of November 30, 1995
(as amended, supplemented or otherwise modified from time to time, the "Loan
Agreement") pursuant to which Lenders provide Borrowers with certain financial
accommodations.
Borrowers have requested that Agent and Lenders consent to the issuance
of certain preferred stock of GDC and Agent and Lenders are willing to do so on
the terms and conditions hereafter set forth.
NOW, THEREFORE, in consideration of any loan or advance or grant of
credit heretofore or hereafter made to or for the account of Borrowers by
Lenders or Agent, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. All capitalized terms not otherwise defined herein shall
have the meanings given to them in the Loan Agreement.
2. Amendment to Loan Agreement. Subject to satisfaction of the conditions
precedent set forth in Section 3 below, the Loan Agreement is hereby amended as
follows:
(a) Section 1.2 of the Loan Agreement is amended by adding the following
definition in the appropriate alphabetical order:
"Preferred Stock" means the 9% $20,000,000 Cumulative
Convertible Exchangeable Preferred Stock of GDC to be issued
on or about September 30, 1996.
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(b) The following language is added to the end of Section 7.7 of the Loan
Agreement:
"provided, however, GDC may pay dividends on the Preferred
Stock in accordance with the terms thereof so long as (i) no
notice of termination with regard to this Agreement shall be
outstanding and (ii) no Default or Event of Default shall have
occurred and be continuing prior to or after giving effect to
such payment."
(c) Section 7.8 of the Loan Agreement is amended by deleting the period at
the end thereof and replacing it with the following language:
"; and (vii) Indebtedness evidenced by the Preferred Stock
provided that in the event the Preferred Stock is converted
into subordinated debt in accordance with the terms thereof
such debt is subordinated to the Obligations on terms and
conditions satisfactory to Agent, Lenders and their counsel."
3. Conditions of Effectiveness. This Amendment shall become effective upon
receipt by Agent of (i) four (4) copies of this Amendment executed by Borrowers
and consented and agreed to by Guarantors, (ii) the Certificate of the Powers,
Designation, Preferences, Rights and Limitations of the Preferred Stock and
(iii) such other certificates, instruments, documents, agreements and opinions
of counsel as may be required by Agent, Lenders or their counsel, each of which
shall be in form and substance satisfactory to Agent, Lenders and their counsel.
4. Representations and Warranties. Each Borrower hereby represents and
warrants as follows:
(a) This Amendment and the Loan Agreement, as amended hereby, constitute
legal, valid and binding obligations of Borrowers and are enforceable against
Borrowers in accordance with their respective terms.
(b) Upon the effectiveness of this Amendment, each Borrower hereby
reaffirms all covenants, representations and warranties made in the Loan
Agreement to the extent the same are not amended hereby and agree that all such
covenants, representations and warranties shall be deemed to have been remade as
of the effective date of this Amendment.
(c) No Event of Default or Default has occurred and is continuing or would
exist after giving effect to this Amendment.
(d) Borrowers have no defense, counterclaim or offset with respect to the
Loan Agreement.
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5. Effect on the Loan Agreement.
(a) Upon the effectiveness of Section 2 hereof, each reference in the Loan
Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of like
import shall mean and be a reference to the Loan Agreement as amended hereby.
(b) Except as specifically amended herein, the Loan Agreement, and all
other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not
operate as a waiver of any right, power or remedy of Agent or Lenders, nor
constitute a waiver of any provision of the Loan Agreement, or any other
documents, instruments or agreements executed and/or delivered under or in
connection therewith.
6. Governing Law. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
shall be governed by and construed in accordance with the laws of the State of
New York.
7. Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
8. Counterparts. This Amendment may be executed by the parties hereto in
one or more counterparts, each of which shall be deemed an original and all of
which when taken together shall constitute one and the same agreement.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first written above.
GENERAL DATACOMM INDUSTRIES, INC.
GENERAL DATACOMM, INC.
GDC REALTY, INC.
GDC NAUGATUCK, INC.
GENERAL DATACOMM INTERNATIONAL CORP.
GDC FEDERAL SYSTEMS, INC.
By:/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Its: Vice President and Treasurer
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THE BANK OF NEW YORK COMMERCIAL
CORPORATION, as Agent and Lender
By:/s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Its: Vice President
CONSENTED AND AGREED TO:
DATACOMM RENTAL CORPORATION
By:/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Its: V.P. and Treasurer
GENERAL DATACOMM LTD.
By:/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Its: V.P. and Treasurer
GENERAL DATACOMM FRANCE S.A.R.L.
By:/s/ Xxxxxx X.Xxxxxx
Name: Xxxxxx X. Xxxxxx
Its: V.P. and Treasurer
GENERAL DATACOMM DE MEXICO S.A. DE C.V.
By:/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Its: V.P. and Treasurer
GENERAL DATACOMM PTY LIMITED
By:/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Its: V.P. and Treasurer
GENERAL DATACOMM S.A.R.L.
By:/s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Its: V.P. and Treasurer
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