AMENDMENT NO. 5
TO
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AND SECURITY AGREEMENT
THIS AMENDMENT NO. 5 ("Amendment") is entered into as of April,
1997, among GENERAL DATACOMM INDUSTRIES, INC., a corporation organized under the
laws of the State of Delaware, 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 Lenders amend certain of the financial
covenants contained in the Loan Agreement 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 6.5 of the Loan Agreement is amended in its entirety
to provide as follows:
"6.5 Tangible Net Worth. Cause to be maintained at the
end of each fiscal quarter a Tangible Net Worth in an amount not less than the
amount set opposite such fiscal quarter end below:
FISCAL QUARTER ENDING MINIMUM TANGIBLE NET WORTH
--------------------- --------------------------
March 31, 1997 $70,044,000
June 30, 1997 $60,503,000
September 30, 1997 $55,119,000
December 31, 1997 and at the the sum of (i) (a) $77,566,000
end of each fiscal quarter if the minimum Tangible Net Worth at
thereafter the end of the fiscal quarter ending
June 30, 1997 is less than $80,566,000
or (b) an amount equal to the actual
Tangible Net Worth at the end of the
fiscal quarter ending June 30, 1997
less $3,000,000 if such actual Tangible
Net Worth is equal to or greater than
$80,566,000 plus (ii) the product of
(x) 75% times (y) Net Income (if
positive) during the fiscal quarter
then ended (excluding net additions to
capitalized software) plus (iii) the
product of (x) 75% times (y) the sum
of additional equity contributed to GDC
(excluding stock options and stock
purchase plan payments) and the amount
of subordinated debt proceeds received
by GDC and its Subsidiaries on a
consolidated basis during such fiscal
quarter."
(b) Section 6.6 of the Loan Agreement is amended in its entirety
to provide as follows:
"6.6 Total Liabilities to Tangible Net Worth. Cause to be
maintained as of the end of each fiscal quarter a ratio of Total Liabilities to
Tangible Net Worth of not greater than the ratio set opposite such fiscal
quarter end below:
RATIO OF TOTAL
LIABILITIES
FISCAL QUARTER END TO TANGIBLE NET WORTH
------------------ ---------------------
March 31, 1997 1.20 to 1.0
June 30, 1997 1.45 to 1.0
September 30, 1997 1.70 to 1.0
December 31, 1997 1.00 to 1.0
March 31, 1998 1.00 to 1.0
June 30, 1998 0.95 to 1.0
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September 30, 1998 0.95 to 1.0"
(c) Section 6.7 of the Loan Agreement is amended in its entirety
to provide as follows:
"6.7 Fixed Charge Coverage Ratio. Cause to be maintained as of
the end of each fiscal quarter a Fixed Charge Coverage Ratio for the immediately
preceding fiscal quarter equal to or greater than the ratio set opposite such
fiscal quarter end below:
FIXED CHARGE
FISCAL QUARTER ENDING COVERAGE RATIO
--------------------- --------------
March 31, 1997 (3.36) to 1.00
June 30, 1997 (2.31) to 1.00
September 30, 1997 (0.99) to 1.00
December 31, 1997 1.30 to 1.00
March 31, 1998 1.40 to 1.00
June 30, 1998 1.50 to 1.00
September 30, 1998 1.60 to 1.00"
(d) Section 6.8 of the Loan Agreement is amended in its entirety
to provide as follows:
"6.8 Net Income. Cause Net Income (loss) for each fiscal
period set forth below to be not less than (more than) the amount set opposite
such fiscal period below:
FISCAL PERIOD NET INCOME (LOSS)
------------- -----------------
October 1, 1996 - March 31, 1997 ($18,700,000)
January 1, 1997 - June 30, 1997 ($21,700,000)
October 1, 1996 - September 30, 1997 ($33,651,000)
April 1, 1997 - September 30, 1997 ($16,700,000)
July 1, 1997 - December 31, 1997 $ -0-
October 1, 1997 - March 31, 1998 $ 1,000,000
January 1, 1998 - June 30, 1998 $ 2,000,000
October 1, 1997 - September 30, 1998 $ 4,000,000
April 1, 1998 - September 30, 1998 $ 3,000,000"
(e) Section 6.9 of the Loan Agreement is amended in its entirety
to provide as follows:
"6.9 Working Capital. Cause to be maintained as of the
end of each fiscal quarter, Working Capital in an amount not less than the
amount set opposite such fiscal quarter end below.
FISCAL QUARTER END WORKING CAPITAL
------------------ ---------------
March 31, 1997 $45,059,000
June 30, 1997 $35,736,000
September 30, 1997 $30,695,000
December 31, 1997 $53,000,000
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March 31, 1998 $55,000,000
June 30, 1998 $57,000,000
September 30, 1998 $60,000,000"
3. Conditions of Effectiveness. This Amendment shall become effective
upon satisfaction of the following conditions precedent: Agent shall have
received (i) four (4) copies of this Amendment executed by Borrowers and
consented and agreed to by Guarantors, (ii) an amendment fee of $10,000, 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.
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.
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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
--------------------------
Xxxxxx X. Xxxxxx, the Vice-
President of each of the foregoing
corporations
THE BANK OF NEW YORK COMMERCIAL
CORPORATION, as Agent and Lender
By: /s/ XXXX PEAK
-------------------------------
Name: Xxxx Peak
Its: Vice President
CONSENTED AND AGREED TO:
DATACOMM RENTAL CORPORATION
By: /s/ XXXXXX X. XXXXXX
-------------------------
Name: Xxxxxx X. Xxxxxx
Its: Vice President & Treasurer
GENERAL DATACOMM LTD.
By: /s/ XXXXXX X. XXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxx
Its: Vice President & Treasurer
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GENERAL DATACOMM FRANCE S.A.R.L.
By: /s/ XXXXXX X. XXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxx
Its: Vice President & Treasurer
GENERAL DATACOMM DE MEXICO S.A. DE C.V.
By: /s/ XXXXXX X. XXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxx
Its: Vice President & Treasurer
GENERAL DATACOMM PTY LIMITED
By: /s/ XXXXXX X. XXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxx
Its: Vice President & Treasurer
GENERAL DATACOMM S.A.R.L.
By: /s/ XXXXXX X. XXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxx
Its: Vice President & Treasurer
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