AMENDMENT NO. 3
TO
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AND SECURITY AGREEMENT
THIS AMENDMENT NO. 3 TO ("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.
(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/
Name: Xxxxxx X. Xxxxxx
Its: V.P. and Treasurer
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THE BANK OF NEW YORK COMMERCIAL
CORPORATION, as Agent and Lender
By: /s/
Name: Xxxxxxx Xxxxxxxxx
Its: Vice President
CONSENTED AND AGREED TO:
DATACOMM RENTAL CORPORATION
By: /s/
Name: Xxxxxx X. Xxxxxx
Its: V.P. and Treasurer
GENERAL DATACOMM LTD.
By: /s/
Name: Xxxxxx X. Xxxxxx
Its: V.P. and Treasurer
GENERAL DATACOMM FRANCE S.A.R.L
By: /s/
Name: Xxxxxx X. Xxxxxx
Its: V.P. and Treasurer
GENERAL DATACOMM DE MEXICO S.A. DE C.V.
By: /s/
Name: Xxxxxx X. Xxxxxx
Its: V.P. and Treasurer
GENERAL DATACOMM PTY LIMITED
By: /s/
Name: Xxxxxx X. Xxxxxx
Its: V.P. and Treasurer
GENERAL DATACOMM S.A.R.L.
By: /s/
Name: Xxxxxx X. Xxxxxx
Its: V.P. and Treasurer
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