EXHIBIT 10 (dd)
AMENDMENT NO. 5 TO LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT NO. 5 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT (this
"Agreement") is made and entered into as of this 19th day of May, 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:
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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, as further amended by
Amendment No. 3 to Letter of Credit and Reimbursement Agreement dated as of
December 11, 1996, and as further amended by Amendment No. 4 to Letter of Credit
and Reimbursement Agreement dated as of April 18, 1997 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,
Section 7.05 of the Credit Agreement is hereby amended by deleting the dollar
figure "$200,000,000" in clause (v) thereof and inserting in replacement thereof
the dollar figure "$250,000,000".
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 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 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:
