EXHIBIT 10 (ee)
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Agreement") is made
and entered into as of this 28th day of January, 1998 among:
DATA GENERAL CORPORATION, a Delaware corporation ("Borrower"),
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION, a national banking association, THE
BANK OF NEW YORK, FLEET NATIONAL BANK, formerly known as Fleet Bank of
Massachusetts, N.A, THE BANK OF NOVA SCOTIA, CREDIT LYONNAIS NEW YORK BRANCH and
US TRUST (each individually, a "Lender" and collectively, the "Lenders"); and
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION, a national banking
association, in its capacity as agent for the Lenders (in such capacity, the
"Agent");
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agent have entered into a
Credit Agreement dated as of September 30, 1997, (the "Credit Agreement")
pursuant to which the Lenders agreed to make a Revolving Credit Facility
available to the Borrower; and
WHEREAS, the Borrower has requested that the Credit Agreement be
amended in the manner set forth herein and the Agent and the Lenders are willing
to agree to such amendment;
NOW, THEREFORE, in consideration of the mutual covenants and the
fulfillment of the conditions set forth herein, the parties hereto do hereby
agree as follows:
1. Definitions. Any capitalized terms used herein without
definition shall have the meaning set forth in the Credit Agreement.
2. Amendment. Subject to the terms and conditions set forth herein, the
Credit Agreement is hereby amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by
inserting therein the following new defined term in alphabetical
position:
"Stock Buyback Program" means the Data General
Corporation Stock Buyback Program as approved by the Board of
Directors of the Borrower from time to time;
(b) Section 8.6 of the Credit Agreement is hereby amended by (i)
deleting the word "and" at the end of clause (k) thereof, (ii)
deleting the period at the end of clause (l) thereof and inserting
"; and" in replacement thereof and (iii) by adding a new
clause (m) thereto which shall read as follows:
(m) repurchase shares of its own capital stock in one
or more transactions on or prior to January 28, 1999 pursuant
to the Stock Buyback Program for an aggregate purchase price
of up to $60,000,000.
(c) Section 8.8 of the Credit Agreement is hereby
deleted in its entirety and the following new Section 8.8 is
inserted in replacement thereof:
8.8 Restricted Payments. Neither the Borrower nor any
Subsidiary shall make any Restricted Payment or apply or set
apart any of their assets therefor or agree to do any of the
foregoing, provided, however, the Borrower may repurchase
shares of its own capital stock in one or more transactions on
or prior January 28, 1999 pursuant to the Stock Buyback
Program for an aggregate purchase price of up to $60,000,000;
3. Effectiveness. This Agreement shall become effective as of the date
hereof upon receipt by the Agent of seven fully executed copies of this
Agreement (which may be signed in counterparts).
4. Representations and Warranties. In order to induce the Agent and the
Lender to enter into this Agreement, the Borrower represents and warrants to the
Agent and the Lenders as follows:
(a) The representations and warranties made by Borrower in
Article V of the Credit Agreement are true and correct on and as of the
date hereof, except to the extent that such representations and
warranties expressly relate to an earlier date and except that the
financial statements referred to in Section 6.6(a) of the Credit
Agreement shall be deemed to be those financial statements most
recently delivered to the Agent and the Lenders pursuant to Section 7.1
of the Credit Agreement;
(b) There has been no material adverse change in the
condition, financial or otherwise, of the Borrower and its
Subsidiaries, taken as a whole, since the date of the most recent
financial reports of the Borrower received by the Agent and the Lenders
under Section 7.1(a) of the Credit Agreement, other than changes in the
ordinary course of business;
(c) The business and properties of the Borrower and its
Subsidiaries, taken as a whole, are not, and since the date of the most
recent financial report of the Borrower and its Subsidiaries received
by the Agent and the Lenders under Section 7.1(a) of the Credit
Agreement, have not been, adversely affected in any substantial way as
the result of any fire, explosion, earthquake, accident, strike,
lockout, combination of workers, flood, embargo, riot, activities of
armed forces, war or acts of God or the public enemy, or cancellation
or loss of any major contracts; and
(d) No event has occurred and is continuing which constitutes,
and no condition exists which upon the consummation of the transaction
contemplated hereby would constitute, a Default or an Event of Default
on the part of the Borrower under the Credit Agreement.
5. Entire Agreement. This Agreement sets forth the entire understanding
and agreement of the parties hereto in relation to the subject matter hereof and
supersedes any prior negotiations and agreements among the parties relative to
such subject matter.
6. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all other Letter of
Credit Documents are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective terms.
7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original as against any party
whose signature appears thereon, and all of which shall together constitute one
and the same instrument.
8. Governing Law. This Agreement shall in all respects be governed by
the laws and judicial decisions of the State of New York.
9. Enforceability. Should any one or more of the provisions of this
Agreement be determined to be illegal or unenforceable as to one or more of the
parties hereto, all other provisions nevertheless shall remain effective and
binding on the parties hereto.
10. Credit Agreement. All references in any of the Letter of Credit
Documents to the Credit Agreement shall mean the Credit Agreement as amended
hereby.
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers, all as of the day and year
first above written.
BORROWER:
DATA GENERAL CORPORATION
By: s/ Xxxxxx X. XxXxxxx
Name: Xxxxxx X. XxXxxxx
Title: VP/Treasurer
AGENT:
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION, as Agent for
the Lenders
By: /s/ Xxxxxxx X. X'Xxxxxx
Name: Xxxxxxx X. X'Xxxxxx
Title: Vice President
LENDERS:
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. X'Xxxxxx
Name: Xxxxxxx X. X'Xxxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: SVP
THE BANK OF NOVA SCOTIA
By: /s/ X. X. Xxxxxxx
Name: X. X. Xxxxxxx
Title:
Authorized Signatory
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxxxxxx Xxxxx
Name: Xxxxxxxx Xxxxx
Title: First Vice President-Manager
US TRUST
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: SVP
