SEVENTH AMENDMENT TO LOAN AGREEMENT
Exhibit
10.1
SEVENTH
AMENDMENT
SEVENTH
AMENDMENT, dated May 1, 2006 (the "Amendment"),
to
the Loan 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 "Borrowers"),
(ii) the lenders party thereto from time to time (the "Lenders"),
and
(iii) ABLECO FINANCE LLC, as agent for the Lenders (in such capacity, the
"Agent").
WHEREAS,
the Borrowers are obligated to repay certain indebtedness owing to the 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
"Loan
Agreement");
WHEREAS,
the Borrowers have requested that the Lenders permit the Borrowers to modify
the
amortization schedule in respect of the Term A Loan for the period beginning
as
of May 1, 2006 to and including August 25, 2006 and pay principal in weekly
installments of $25,000 during such period.
WHEREAS,
the Lenders are willing to consent to the accommodations described in the
immediately preceding paragraph, subject to (i) the execution and delivery
of
this Amendment by the Borrowers, 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:
1.1 Definitions
in Amendment.
Any
capitalized term used herein and not defined shall have the meaning assigned
to
it in the Loan Agreement.
1.2 Term
A
Loan Amortization:
Section
2.4(a)(i)(B) of the Loan Agreement is hereby amended in its entirety to read
as
follows:
"(B) on
January 1, 2005 and each month thereafter, the Term A Loan shall be repaid
in monthly installments of principal equal to the greater of (I) the product
of
(x) the principal amount of the Term A Loan outstanding on December 31,
2004 multiplied by (y) 1/36th
and (II)
$250,000; provided
that,
notwithstanding the foregoing (x) for the period commencing as of May 1, 2006
to
and including August 25, 2006, the Term A loan shall be repaid in weekly
installments of principal equal to $25,000 on the last Business Day of each
week
during such period, (y) for the period commencing on September 1, 2006 to and
including October 31, 2006, the Term Loan A shall be repaid in monthly
installments of principal equal to $250,000 on the last Business Day of each
month during such period, and (z) for the period commencing November 1, 2006
to
and including February 28, 2007, the Term Loan A shall be repaid in monthly
installments of principal equal to $393,750 on the last Business Day of each
month during such period."
1.3 Financial
Covenant Amendment. A
new
sentence is hereby inserted at the end of Section 7.20 of the Loan Agreement
to
read as follows:
"In
addition, (i) Borrowers shall not be required to maintain the applicable EBIDTA
for the fiscal quarters ending September 30, 2004 and June 30, 2006, (ii)
Borrowers' EBITDA for such quarterly periods shall not be included in the
calculations of EBITDA for the purpose of this Section 7.20 either for such
fiscal periods or any other fiscal periods, and (iii) Borrowers shall not be
required to deliver to Agent a Compliance Certificate in accordance with Section
6.2 hereof for any fiscal quarter described in clause (i) above." Lenders
acknowledge Borrowers are in compliance under Sections 6.2 and 7.20 as of the
date hereof.
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2. Conditions. The
effectiveness of this Amendment is subject to the fulfillment, in a manner
satisfactory to the Agent, of each of the following conditions precedent (the
date such conditions are fulfilled or waived by the Agent is hereinafter
referred to as the "Amendment
Effective Date"):
(a) Representations
and Warranties; No Event of Default.
The
representations and warranties contained herein, in Section 5 of the Loan
Agreement and in each other Loan Document and certificate or other writing
delivered to the Agent or any Lender pursuant hereto on or prior to the
Amendment Effective Date shall be correct on and as of the Amendment Effective
Date as though made on and as of such date, except to the extent that such
representations and warranties (or any schedules related thereto) expressly
relate solely to an earlier date (in which case such representations and
warranties shall be true and correct on and as of such date); and, except as
set
forth in the Compliance Certificates delivered by Borrower to Agent prior to
the
date hereof pursuant to Section 6.2 of the Loan Agreement, no Default or Event
of Default shall have occurred and be continuing on the Amendment Effective
Date
or would result from this Amendment becoming effective in accordance with its
terms.
(b) Delivery
of Documents.
The
Agent shall have received on or before the Amendment Effective Date the
following, each in form and substance satisfactory to the Agent and, unless
indicated otherwise, dated the Amendment Effective Date:
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(i) counterparts
of this Amendment duly executed by the Borrowers and the Lenders;
and
(ii) such
other agreements, instruments, approvals, opinions and other documents as the
Agent may reasonably request.
(c) Proceedings.
All
proceedings in connection with the transactions contemplated by this Amendment,
and all documents incidental thereto, shall be satisfactory to the Agent and
its
special counsel, and the Agent and such special counsel shall have received
all
such information and such counterpart
originals or certified copies of documents, and such other agreements,
instruments, approvals, opinions and other documents, as the Agent or such
special counsel may reasonably request.
(d) Fees
and Expenses.
The
Borrowers shall have paid all unpaid legal fees and expenses incurred by Agent
in connection with the administration of, and the preparation, delivery,
execution and modification, of the Loan Agreement and the other related
agreements, instruments and documents.
3. Representations
and Warranties.
Each
Borrower hereby represents and warrants to the Agent and the Lenders as
follows:
(a) Representations
and Warranties; No Event of Default.
The
representations and warranties
herein,
in Section 5 of the Loan Agreement and in each other Loan Document and
certificate or other writing delivered to the Agent or any Lender pursuant
hereto on or prior to the Amendment Effective Date are correct on and as of
the
Amendment Effective Date as though made on and as of such date, except to the
extent that such representations and warranties (or any schedules related
thereto) expressly relate solely to an earlier date (in which case such
representations and warranties are true and correct on and as of such date);
and, except as set forth in the Compliance Certificates delivered by Borrower
to
Agent prior to the date hereof pursuant to Section 6.2 of the Loan Agreement,
no
Default or Event of Default has occurred and is continuing on the Effective
Date
or would result from this Amendment becoming effective in accordance with its
terms.
b) Organization,
Good Standing, Etc.
Such
Borrower (i) is a corporation duly organized, validly
existing
and in good standing under the laws of the state of its organization,
(ii) has all requisite power and authority to execute, deliver and perform
this Amendment and the other Loan Documents to which it is a party being
executed in connection with this Amendment, and to perform the Loan Agreement,
as amended hereby, and (iii) is duly qualified to do business and is in
good standing in each jurisdiction in which the character of the properties
owned or leased by it or in which the transaction of its business makes such
qualification necessary except where the failure to be so qualified reasonably
could not be expected to have a Material Adverse Change.
(c) Authorization,
Etc.
The
execution, delivery and performance by such Borrower of this Amendment and
each
other Loan Document to which it is a party being executed in connection with
this Amendment, and the performance by such Borrower of the Loan Agreement,
as
amended hereby, (i) have been duly authorized by all necessary action,
(ii) do not and will not contravene such Borrower's charter or by-laws, any
applicable law or any contractual restriction binding on or otherwise affecting
it or any of its properties, (iii) do not and will not result in or require
the creation of any Lien (other than pursuant to any Loan Document) upon or
with
respect to any of its properties, and (iv) do not and will not result in
any suspension, revocation, impairment, forfeiture or nonrenewal of any permit,
license, authorization or approval applicable to its operations or any of its
properties.
4. Miscellaneous.
(a) Continued
Effectiveness of the Loan Agreement.
Except
as otherwise expressly provided herein, the Loan Agreement and the other Loan
Documents are, and shall continue to be, in full force and effect and are hereby
ratified and confirmed in all respects, except
that on
and
after the Amendment Effective Date (i) all references in the Loan Agreement
to
"this Agreement", "hereto", "hereof", "hereunder" or words of like import
referring to the Loan Agreement shall mean the Loan Agreement as amended by
this
Amendment, and (ii) all references in the other Loan Documents to which any
Borrower is a party to the "Loan Agreement", "thereto", "thereof", "thereunder"
or words of like import referring to the Loan Agreement shall mean the Loan
Agreement as amended by this Amendment. Except as expressly provided herein,
the
execution, delivery and effectiveness of this Amendment shall not operate as
an
amendment of any right, power or remedy of the Lender under the Loan Agreement
or any other Loan Document, nor constitute an amendment of any provision of
the
Loan Agreement or any other Loan Document.
(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.
(e) Costs
and Expenses.
The
Borrowers jointly and severally agree to pay on demand all fees, costs and
expenses of the Agent and each Lender in connection with the preparation,
execution and delivery of this Amendment and the other related agreements,
instruments and documents.
(f) Amendment
as Loan Document.
Each
Borrower hereby acknowledges and agrees that this Amendment constitutes a "Loan
Document" under the Loan Agreement. Accordingly, it shall be an Event of Default
under the Loan Agreement if (i) any representation or warranty made by a
Borrower under or in connection with this Amendment shall have been untrue,
false or misleading in any material respect when made, or (ii) a Borrower shall
fail to perform or observe any term, covenant or agreement contained in this
Amendment.
(g) Waiver
of Jury Trial.
EACH
BORROWER, THE AGENT AND THE LENDER EACH HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AMENDMENT OR
THE
ACTIONS OF THE AGENT OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT HEREOF.
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
and delivered as of the date first above written.
Borrowers:
GENERAL
DATACOMM INDUSTRIES, INC.,
a
Delaware corporation
By
_______________________________
Title:
Vice
President
GENERAL
DATACOMM, INC.,
a
Delaware corporation
By
_______________________________
Title: Vice
President
DATACOMM
LEASING CORPORATION,
a
Delaware corporation
By
_______________________________
Title:
Vice
President
GDC
HOLDING COMPANY, LLC,
a
Delaware limited liability company
By
_______________________________
Title:
Vice
President
GDC
FEDERAL SYSTEMS, INC.,
a
Delaware corporation
By
_______________________________
Title:
Vice
President
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GDC
NAUGATUCK, INC.,
a
Delaware corporation
By
_______________________________
Title:
Vice
President
GDC
REALTY, INC.,
a
Texas
corporation
By
_______________________________
Title:
Vice
President
Agent
and Lender:
ABLECO
FINANCE LLC,
a
Delaware limited liability company, on behalf
of
itself
and its affiliated assigns
By
_______________________________
Title:
Vice
President
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