EXHIBIT 10.1
FOURTH AMENDMENT
TO ADDITIONAL SENIOR SECURITY AGREEMENT
FOURTH AMENDMENT, dated September 30, 2004 (the "Amendment"), to the
Additional Senior Security Agreement referred to below, by and among (i) GENERAL
DATACOMM INDUSTRIES, INC., a Delaware corporation, GENERAL DATACOMM, INC., a
Delaware corporation ("GDC"), DATACOMM LEASING CORPORATION, a Delaware
corporation, GDC HOLDING COMPANY, LLC, a Delaware limited liability company, GDC
NAUGATUCK, INC., a Delaware corporation, GDC FEDERAL SYSTEMS, INC., a Delaware
corporation, GDC REALTY, INC., a Texas corporation (each, a "Borrower" and
collectively, the "Debtors") and Xxxxxx X. Xxxxxx ("Xxxxxx") --------- -------
and Xxxx X. Xxxxxx (together with their successors and assigns the "Secured
Party")
WHEREAS, the Debtors are obligated to repay certain indebtedness
owing to Ableco Finance LLC as Agent and the Lenders under that certain Loan and
Security Agreement dated as of August 20, 2002 (as amended, supplemented and
otherwise modified from time to time, the " Senior Loan Agreement");
WHEREAS, GDC and the other Debtors have requested that Xxxxxx as a
Secured Party loan GDC an additional $250,000 which shall be used to pay and
replace $250,000 of the obligations owed to the Lenders under the Senior Loan
Agreement, subject to (i) the execution and delivery of this Amendment by the
Debtors, and (ii) the other terms and conditions set forth in this Amendment;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto hereby agree as follows:
1. Definitions in Amendment. Any capitalized term used herein and not
defined shall have the meaning assigned to it in the Additional Senior Security
Agreement dated December 30, 2003 between the Debtors and the Secured Party (
the "Security Agreement").
2. Replacement Loans. In consideration of the principal amount of
$250,000 to be loaned September 30, 2004 by Xxxxxx as a Secured Party to GDC
reflected by a note of $250,000, plus the issuance of a warrant to Xxxxxx in
connection therewith, GDC covenants and agrees such funds shall be used to pay
and replace Indebtedness of a like amount owed to the Lenders under the Senior
Loan Agreement onOctober1, 2004 and shall be Replacement Debt as defined in the
Subordinated Security Agreement dated September 15, 2003 between the Debtors and
HSBC Bank USA as Trustee and as provided in the Indenture dated September 15,
2003 between General DataComm Industries, Inc. and HSBC Bank USA.
3. Indebtedness Secured. Paragraph 3 of the Security Agreement is
amended to read in its entirety as follows: " Indebtedness Secured. The Security
Interest granted by Debtors secures payment of any and all indebtedness of
Parent and its subsidiaries incurred under the promissory notes payable to
Secured Party dated December 30, 2003 in the original aggregate principal amount
of $600,000, the promissory notes payable to Secured Party dated March 1, 2004
in the original aggregate principal amount of $250,000, the promissory notes
payable to Secured Party dated April 1, 2004 in the aggregate principal amount
of $250,000, the promissory note payable to Xxxxxx as a Secured Party dated June
30, 2004 in the original
principal amount of $250,000, the promissory note payable to Xxxxxx as a Secured
Party dated September 30, 2004 in the original principal amount of $250,000, and
which notes total $1,600,000 (the "Notes") whether or not any such indebtedness
is now existing or hereafter incurred, of every kind and character, direct or
indirect, and whether any such indebtedness is from time to time reduced and
thereafter increased, or entirely extinguished and thereafter reincurred,
including, without limitation, any sums advanced by Secured Party for taxes,
assessments, insurance and other charges and expenses as hereinafter provided,
and all amounts owed under any modifications, renewals or extensions of any of
the foregoing obligations (collectively, the "Indebtedness")."
4. Miscellaneous.
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(a) Continued Effectiveness of Security Agreement. Except as
otherwise expressly provided herein, the Security Agreement shall continue to
be, in full force and effect and is hereby ratified and confirmed in all
respects. Except as expressly provided herein, the execution, delivery and
effectiveness of this Amendment shall not constitute an amendment of any other
provision of the Security Agreement.
(b) Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement.
(c) Headings. Section headings herein are included for convenience
of reference only and shall not constitute a part of this Amendment for any
other purpose.
(d) Governing Law. This Amendment shall be governed by, and
construed in accordance with, the law of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered as of the date first above written.
Borrowers:
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GENERAL DATACOMM INDUSTRIES, INC.,
a Delaware corporation
By:
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Title:
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GENERAL DATACOMM, INC.,
a Delaware corporation
By:
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Title:
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DATACOMM LEASING CORPORATION,
a Delaware corporation
By:
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Title:
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GDC HOLDING COMPANY, LLC,
a Delaware limited liability company
By:
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Title:
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GDC FEDERAL SYSTEMS, INC.,
a Delaware corporation
By:
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Title:
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GDC NAUGATUCK, INC.,
a Delaware corporation
By:
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Title:
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GDC REALTY, INC.,
a Texas corporation
By:
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Title:
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Secured Party:
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/s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
/s/ XXXX X. XXXXXX
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Xxxx X. Xxxxxx
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