EXHIBIT 10.15
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AMENDMENT NO. 1
TO
THIRD AMENDED AND RESTATED
REVOLVING CREDIT AND SECURITY AGREEMENT
THIS AMENDMENT NO. 1 ("Amendment") is entered into as of April 17, 1996, 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 Sections 7.3, 7.8
and 7.17 of 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 7.3 of the Loan Agreement is hereby amended in
its entirety to provide as follows:
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"7.3. Guarantees. Become liable upon the obligations of any person, firm or
corporation by assumption, endorsement or guaranty thereof or otherwise
(other than to Lenders pursuant to this Agreement
or the other Documents) except (a) as disclosed on Schedule 7.3, (b) the
endorsement of checks or negotiable instruments in the ordinary course of
business, (c) guarantees by GDC of the obligations of any of its Subsidiaries
under lease arrangements for real property entered into in the ordinary course
of business, provided, that the aggregate amount of indebtedness covered by such
guarantees does not at any time exceed the amount of rental payments permitted
under Section 7.11, (d) guarantees by Borrowers of the obligations of GDC or its
Subsidiaries under leases of personal property, excluding capital equipment
subject to (f) below, in the ordinary course of business, provided, that the
aggregate amount of indebtedness covered by such guarantees does not exceed
$5,000,000 at any time outstanding, (e) guarantees by Borrowers relating to the
issuance of bid or performance bonds required to be issued by any Borrower or
any Guarantor, provided, that the aggregate amount so guaranteed does not exceed
$5,000,000 at any time outstanding, (f) guarantees by GDC of the obligations of
other Borrowers under capital equipment financing arrangements, provided, that
such financing arrangements are permitted hereunder and the aggregate amount of
indebtedness covered by such guarantees does not exceed the amount of capital
expenditures permitted pursuant to Section 7.6, (g) non-financial support
agreements by GDC relating to its Subsidiaries, provided, that such support
agreements are substantially similar to the support agreement issued by GDC
dated June 30, 1989 in favor of Sanwa Business Credit Corporation, (h)
guarantees of the obligations of another Borrower, (i) guarantees by GDC of the
obligations of DataComm Leasing under lease financing agreements for the
discounting of leases of personal property manufactured or offered by GDC in the
ordinary course of business, provided that the aggregate amount of indebtedness
covered by such guarantees does not exceed $15,000,000 at any time outstanding
and (j) guarantees by Borrowers of the obligations of any Guarantor not
otherwise covered by subsections (a) through (i) above, provided, that the
aggregate amount of indebtedness covered by such guarantees does not in the
aggregate exceed $500,000 at any time outstanding."
(b) The references to the amount "$25,000,000" in Section 7.8 and
7.17 of the Loan Agreement are hereby deleted and the following amount is
substituted therefor:
"$2,000,000".
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 and (ii) 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
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EXHIBIT 10.15
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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.
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.
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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:________________________________
Dennis J. Nesler, the Vice-
President of each of the
foregoing corporations
1579 Straits Turnpike
Middlebury, Connecticut 06762-1299
THE BANK OF NEW YORK COMMERCIAL
CORPORATION
By:_______________________________
Name:
Its:
1290 Avenue of the Americas
New York, New York 10104
Commitment Percentage: 100%
THE BANK OF NEW YORK COMMERCIAL
CORPORATION, as Agent
By:_______________________________
Name:
Its:
CONSENTED AND AGREED TO:
DATACOMM RENTAL CORPORATION
By:__________________________
Name: William S. Lawrence
Its: Senior Vice President
GENERAL DATACOMM LTD.
By:__________________________
Name: William S. Lawrence
Its: Senior Vice President
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GENERAL DATACOMM FRANCE S.A.R.L.
By:__________________________
Name: William S. Lawrence
Its: Senior Vice President
GENERAL DATACOMM DE MEXICO S.A. DE C.V.
By:__________________________
Name: William S. Lawrence
Its: Senior Vice President
GENERAL DATACOMM PTY LIMITED
By:__________________________
Name: William S. Lawrence
Its: Senior Vice President
GENERAL DATACOMM S.A.R.L.
By:__________________________
Name: William S. Lawrence
Its: Senior Vice President
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