EXHIBIT 10 (dd)
AMENDMENT NO. 1 TO LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
THIS AGREEMENT NO. 1 TO LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
(this "Agreement") is made and entered into as of the 5th day of October,
1995 amount;
DATA GENERAL CORPORATION, a Delaware corporation ("Borrower"), NATIONSBANK
OF TEXAS, NATIONAL ASSOCIATION, a banking association, THE BANK OF NEW
YORK and 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 hereby (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; and
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 definitions
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 7.03 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
7.03 Consolidated Tangible New Worth. Permit at any Determination
Date Consolidated Tangible Net Worth to be less than $340,000,000.
3. Amendment Fee. The Borrower shall pay to the Agent for the pro
rata benefit of the Lenders an amendment fee (the "Amendment Fee") in
an amount equal to $30,000.
4. Effectiveness. This Agreement shall become effective as of the date
hereof upon receipt by the Agent of (a) seven fully executed copies of the
Agreement (which may be signed in counterparts) and (b) payment in full of
the Amendment Fee to be held by the Agent for the pro rata benefit of the
Lenders.
5. Representations and Warranties. In order to induce the Agent and the
Lenders 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 if 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 the armed forces, war or acts of God or the public enemy, or
cancellations 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 part of the Borrower under the Credit
Agreement, either immediately or with the lapse of time or
giving of notice, or both.
6. Entire Agreement. This Agreement sets forth the entire
understanding and agreement of parties hereto in relation to the
subject matter hereof and supersedes any prior negotiations and
agreements among the parties relative to such subject matter.
7. 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.
8. 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.
9. Governing Law. This Agreement shall in all respects be governed by
laws and judicial decisions of the State of New York.
10. 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.
11. 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 there 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 BANK OF MASSACHUSETTS, N.A.
By:
Name:
Title:
AGENT:
NATIONSBANK OF TEXAS, NATIONAL ASSOCIATION
as Agent for the Lenders
By:
Name:
Title:
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