EXHIBIT 10 (cc)
AMENDMENT NO. 4 TO LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT NO. 4 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
(this "Agreement") is made and entered into as of this 18th day of April,
1997 among:
DATA GENERAL CORPORATION, a Delaware corporation ("Borrower"),
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION, a national banking association, THE
BANK OF NEW YORK and FLEET NATIONAL BANK, formerly known as Fleet Bank of
Massachusetts, N.A. (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
Letter of Credit and Reimbursement Agreement dated as of December 21, 1994, as
amended by Amendment No. 1 to Letter of Credit and Reimbursement Agreement dated
as of October 5, 1995, as further amended by Amendment No. 2 to Letter of Credit
and Reimbursement Agreement dated as of December 10, 1995, and as further
amended by Amendment No. 3 to Letter of Credit and Reimbursement Agreement dated
as of December 11, 1996, among the Borrower, the Lenders and the Agent (as
amended, the "Credit Agreement") pursuant to which the Lenders agreed to issue
certain letters of credit on behalf of 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 terms in alphabetical
position:
"Acquisition" means the acquisition of (i) a
controlling equity interest in another Person engaged in the
same or similar line of business of the Borrower (including
the purchase of an option, warrant or convertible or similar
type security to acquire such a controlling interest at the
time it becomes exercisable by the holder thereof), whether by
purchase of such equity interest or upon exercise of an option
or warrant for, or conversion of securities into, such equity
interest, or (ii) assets of another Person engaged in the same
or similar line of business of the Borrower which constitute
all or substantially all of the assets of such Person or of a
line or lines of business conducted by such Person.
"Cost of Acquisition" means, with respect to any
Acquisition, as at the date of entering into any agreement
therefor, the sum of the following (without duplication): (i)
the value of the capital stock, warrants or options to acquire
capital stock of the Borrower or any Subsidiary to be
transferred in connection therewith, (ii) any cash or other
property (excluding property described in clause (i)) and the
unpaid principal amount of any debt instrument given as
consideration, (iii) any Indebtedness assumed by the Borrower
or its Subsidiaries in connection with such Acquisition, and
(iv) out of pocket transaction costs for the services and
expenses of attorneys, accountants and other consultants
incurred in effecting such a transaction, and other similar
transaction costs so incurred. For purposes of determining the
Cost of Acquisition for any transaction, (A) the capital stock
of the Borrower shall be valued (I) at its market value as
reported on the New York Stock Exchange with respect to shares
that are freely tradeable, and (II) with respect to shares
that are not freely tradeable, as determined by the Board of
Directors of the Borrower and, if requested by the Agent,
determined to be a reasonable valuation by the independent
public accountants referred to in Section 6.01(a) hereof, (B)
the capital stock of any Subsidiary shall be valued as
determined by the Board of Directors of such Subsidiary and,
if requested by the Agent, determined to be a reasonable
valuation by the independent public accountants referred to in
Section 6.01(a) hereof, and (C) with respect to any
Acquisition accomplished pursuant to the exercise of options
or warrants or the conversion of securities, the Cost of
Acquisition shall include both the cost of acquiring such
option, warrant or convertible security as well as the cost of
exercise or conversion.
(b) Section 7.01 of the Credit Agreement is hereby amended by
deleting the ratio ".45 to 1.00" in the second line thereof and
inserting in replacement thereof the ratio ".55 to 1.00".
(c) Section 7.05 of the Credit Agreement is hereby amended by
deleting the word "and" at the end of clause (iii) thereof, deleting
the period at the end of clause (iv) thereof and inserting in
replacement thereof "; " and by inserting after clause (iv) thereof new
clauses (v) and (vi) which shall read as follows:
(v) Indebtedness in an aggregate principal
amount of up to $200,000,000 evidenced by certain
convertible bonds or similar instruments issued by the
Borrower;
(vi) Indebtedness of a Person acquired in an
Acquisition permitted under Section 7.07 hereof so long as (i)
such Indebtedness is not incurred in contemplation of such
Acquisition, (ii) neither the Borrower nor any Subsidiary
(other than the Person being acquired or a subsidiary of the
Person being acquired) is liable for or assumes such
Indebtedness and such Indebtedness is, and continues after
such Acquisition to be, non-recourse to the Borrower and all
Subsidiaries (other than the Person acquired or a subsidiary
of such Person) and (iii) the aggregate principal amount of
all such Indebtedness does not exceed $10,000,000; and
(vii) Indebtedness constituting part of the Cost
of Acquisition of any Acquisition permitted hereunder.
(d) Section 7.06(a) of the Credit Agreement is hereby amended
by (A) deleting the word "and" at the end of clause (v) thereof, (B)
deleting the period at the end of clause (vi) thereof and inserting in
replacement thereof the words "; and", (C) inserting after clause (vi)
thereof a new clause (vii) which shall read "(vii) Liens on assets
acquired in an Acquisition permitted under Section 7.07 hereof so long
as such Liens (i) are not incurred in contemplation of such Acquisition
and (ii) do not extend to any assets other than the assets being
acquired in such Acquisition."
(e) Section 7.07 of the Credit Agreement is hereby amended by
(A) deleting the word "and" at the end of clause (v) thereof, (B)
deleting the period at the end of clause (vi) thereof and inserting in
replacement thereof the words "; and", (C) inserting after clause (vi)
thereof a new clause (vii) which shall read "(vii) investments in an
aggregate amount not in excess of $200,000,000 in any Person or Persons
engaged in the same or similar line of business as the Borrower,
provided that if the amount of any individual investment exceeds
$25,000,000, the Borrower shall have furnished to the Agent a
certificate in the form of Exhibit E prepared on a historical pro forma
basis giving effect to such investment and demonstrating that no
Default or Event of Default would exist immediately after giving effect
thereto" and (D) by inserting the following new paragraph after clause
(vii);
; provided, however, the Borrower shall be permitted to make
Acquisitions if (i) the Person to be (or whose assets are to
be) acquired does not oppose such Acquisition, (ii) no Default
or Event of Default shall exist immediately after giving
effect to such Acquisition, and (iii) the Borrower shall have
furnished to the Agent (A) if the Cost of Acquisition shall
exceed $25,000,000, a certificate in the form of Exhibit E
prepared on a historical pro forma basis giving effect to such
Acquisition, which certificate shall demonstrate that no
Default or Event of Default would exist immediately after
giving effect thereto, and (B) if the Cost of Acquisition
shall exceed $200,000,000, pro forma historical financial
statements as of the end of the most recently completed Fiscal
Year of the Borrower and most recent interim fiscal quarter,
if applicable giving effect to such Acquisition.
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 5.01(e)(i) of the Credit
Agreement shall be deemed to be those financial statements most
recently delivered to the Agent and the Lenders pursuant to Section
6.01 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 6.01(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 6.01(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, either
immediately or with the lapse of time or the giving of notice, or both.
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:
Name:
Title:
LENDERS:
NATIONSBANK OF TEXAS,
NATIONAL ASSOCIATION
By:
Name:
Title:
THE BANK OF NEW YORK
By:
Name:
Title:
FLEET NATIONAL BANK
By:
Name:
Title:
AGENT:
NATIONSBANK OF TEXAS,
NATIONAL ASSOCIATION
as Agent for the Lenders
By:
Name:
Title: