EXHIBIT 10 (bb)
AMENDMENT NO. 3 TO LETTER OF CREDIT
AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT NO. 3 TO LETTER OF CREDIT AND REIMBURSEMENT
AGREEMENT (this "Agreement") is made and entered into as of this 11th day of
December, 1996 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 among the Borrower,
the Lenders and the Agent and as hereby amended (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) The definitions of "Commitment Termination Date" shall
be amended and restated in its entirety to read as follows:
"Commitment Termination Date" means the earliest
to occur of (i) December 17, 1997 (364 days after the
Commitment Termination Date established pursuant to
Amendment No. 2 to Letter of Credit and Reimbursement
Agreement dated as of December 10, 1995 among all parties
hereto), or (ii) the date of termination of Lenders'
obligations pursuant to Section 8.01 hereof upon the
occurrence of an Event of Default, or (iii) such date as
the Borrower may voluntarily and permanently terminate the
Letter of Credit Facility by causing all Obligations of the
Borrower to NationsBank and the Lenders to be Fully
Satisfied and terminating all obligations of NationsBank
and the Lenders with respect to Letters of Credit and
Participations;
3. Amendment Fee. The Borrower shall pay to the Agent for the pro rata
benefit of the Lenders based on their Applicable Commitment Percentages, a fee
(the "Facility Fee") equal to the product of the Total Letter of Credit
Commitment multiplied by 1/8 of 1% (.125%).
4. Effectiveness. This Agreement shall become effective as of the date
hereof upon receipt by the Agent of (a) seven fully executed copies of this
Agreement (which may be signed in counterparts) and (b) payment in full of the
Facility 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
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.
6. 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.
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 the
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 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:
