THIRD SUPPLEMENTAL AGREEMENT
DATED December 30, 1996
BETWEEN
COMDISCO, INC.
and
NATIONAL WESTMINSTER BANK PLC
as Arranger and Administrative Agent
CREDIT LYONNAIS
DEUTSCHE BANK AG
UNION BANK OF SWITZERLAND
as Co-Agents
and
THE NEW BANKS
and
NATIONAL WESTMINSTER BANK PLC
as Facility Agent
and Swingline Agent
--------------------------------
relating to an Agreement dated
December 30, 1994 (as amended by supplemental
agreements dated December 29, 1995 and October 24, 1996)
providing for a revolving credit facility
of up to U.S.$150,000,000
-------------------------------
Xxxxx & Xxxxx
New York
THIS THIRD SUPPLEMENTAL AGREEMENT is made on December 30, 1996 between:
(1) COMDISCO, INC. (the "Company");
(2) NATIONAL WESTMINSTER BANK PLC as Arranger and Administrative Agent;
(3) CREDIT LYONNAIS, DEUTSCHE BANK AG and UNION BANK OF SWITZERLAND as
Co-Agents;
(4) THE BANKS listed on the signatory pages to this Supplemental Agreement
under the heading "Banks"; and
(5) THE BANKS listed on the signatory pages to this Supplement Agreement
under the heading "New Banks".
WHEREAS:
(A) This Supplemental Agreement is supplemental to a facility agreement
dated December 30, 1994 in respect of a revolving credit facility of up
to U.S. $150,000,000 as amended by a supplemental agreement dated
December 29, 1995 and a second supplemental agreement dated October 24,
1996 (together the "Facility Agreement"); and
(B) the parties to this Supplemental Agreement have agreed that certain
other changes shall be made to the terms of the Facility Agreement, as
set out in Clause 2.1 below; and
(C) the Banks, together with the New Banks, have agreed to increase the
level of Total Commitments under the Facility Agreement from
U.S.$150,000,000 to U.S.$200,000,000
IT IS AGREED as follows:
1. INTERPRETATION
(a) A term defined in the Facility Agreement has, unless this Supplemental
Agreement or the context otherwise requires, the same meaning when used
in this Supplemental Agreement.
(b) Clause 1.2 of the Facility Agreement is deemed to be set out in this
Supplemental Agreement as if references therein to the Facility
Agreement are references to this Supplemental Agreement.
(c) "Effective Date" means, subject to satisfaction of the conditions
precedent set out in Clause 4, December 30, 1996.
2. AMENDMENTS TO THE FACILITY AGREEMENT
2.1 Subject to the satisfaction of the condition in Clause 4 below, the
Facility Agreement is amended as follows:
(a) The definition of "Banks" in Clause 1.1 shall include the
Banks and the New Banks.
(b) In Clause 1.1:
the definitions of "CD Margin" "Commitment Period", "Final
Maturity Date", and "LIBOR Margin" shall be deleted and
replaced with the following:
""CD Margin"
means, in the case of an CD Advance:
(a) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is A- or A3 or
higher, 0.305 per cent per annum;
(b) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB+ or Baa1,
0.345 per cent. per annum;
(c) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB or Baa2,
0.425 per cent. per annum; and
(d) where on the applicable Rate Fixing Day the Company's
Long Term Debt Rating is BBB- or Baa3, 0.50 per cent.
per annum; and
(e) where on the applicable Rate Fixing Day the Company's
Long Term Debt Rating is BB+/Ba1 or lower or unrated,
0.70 per cent per annum.
and, where the Company's Long Term Debt Rating as determined
by a Rating Agency is of a different grade to that determined
by the other Rating Agency, the higher of the two ratings
shall apply for the purposes of calculating the applicable CD
Margin."
""Commitment Period" means, subject to Clause 2.4, the period
commencing on the date of the Third Supplemental Agreement and
expiring on the date 364 days thereafter."
"Final Maturity Date" means December 29, 1998.
""LIBOR Margin"
means, in the case of an LIBOR Advance:
(a) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is A- or A3
or higher, 0.18 per cent per annum;
(b) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB+ or Baa1, 0.22
per cent. per annum;
(c) where on the applicable Rate Fixing Day the Company's
Long Term Debt Rating is BBB or Baa2, 0.30 per cent.
per annum;
(d) where on the applicable Rate Fixing Day the Company's
Long Term Debt Rating is BBB- or Baa3, 0.375 per
cent. per annum; and
(e) where on the applicable Rate Fixing Day the Company's
Long Term Debt Rating is BB+/Ba1 or lower or unrated,
0.575 per cent per annum.
and, where the Company's Long Term Debt Rating as determined
by one Rating Agency is of a different grade to that
determined by the other Rating Agency, the higher of the two
ratings shall apply for the purposes of calculating the
applicable LIBOR Margin."
(c) Clause 5.2(d)(i)(C) shall be deleted and shall be replaced by
the following:
"(C) if the Advances are to be denominated in an Optional
Currency other than Sterling, be a minimum amount of
the equivalent of U.S.$5,000,000 in the relevant
Optional Currency;".
(d) Clause 16.11(d) shall be deleted and shall be replaced by the
following:
"(d) the Recourse Liabilities Ratio as of the end of any
Fiscal Year to exceed 5.50 to 1;".
(e) Clauses 16.11(f) and 16.11(g) shall be deleted.
(f) Clause 16(h) shall be re-designated as Clause 16(f) and the
numbers "1.25:1" at the end thereof shall be deleted and shall
be replaced by "1.10:1".
(g) Clause 20.1(a) (Facility Fee) shall be deleted and replaced
with the following:
"20.1 Facility Fee
(a) The Company shall pay to the Facility Agent for the
account of each Bank a facility fee in Dollars
computed on the amount of that Bank's Commitment
during the period from December 30, 1996 up to and
including the Final Maturity Date for that Bank,
computed at the following rates:
(i) where the Company's Long Term Debt Rating is
A- or A3 or higher, 0.07 per cent. per
annum;
(ii) where the Company's Long Term Debt Rating is
BBB+ or Baa1 or higher, 0.08 per cent. per
annum;
(iii) where the Company's Long Term Debt Rating is
BBB or Baa2, 0.10 per cent. per annum;
(iv) where the Company's Long Term Debt Rating is
BBB- or Baa3, 0.125 per cent. per annum; and
(v) where the Company's Long Term Debt Rating is
BB+ or Ba1 or lower or unrated, 0.175 per
cent. per annum.
Any change to the rate used in the computation of
facility fee shall become effective on the day on
which the Company's revised Long Term Debt Rating is
published by the relevant Rating Agency. Where the
Company's Long Term Debt Rating as determined by one
Rating Agency is of a different grade to that
determined by the other Rating Agency, the higher of
the two ratings shall apply for the purposes of
calculating the facility fee.".
(h) The word "; and" shall be removed from the end of paragraph
(i) in Clause 16.10, the word "; and" shall be inserted after
paragraph (j) thereof and the following shall be added after
paragraph (j) in clause 16.10:
(k) Security Interests securing indebtedness of
an insolvent Subsidiary of the Company
incurred in connection with leasing
transactions or business continuity services
provided in the ordinary course of business
of such Subsidiary and attaching only to the
Equipment and any related Contract with
respect to such leasing transactions or
business continuity services, where such
indebtedness had constituted a Non-Recourse
Obligation prior to the insolvency of such
Subsidiary.
(i) Schedule 1 (Banks and Commitments) to the Facility Agreement
shall be deleted and shall be replaced by Schedule 1 to this
Supplemental Agreement.
3. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Facility Agent and the Banks
on its own behalf and on behalf of all the Additional Borrowers that:
(a) Powers and authority: It has the power to enter into and
perform, and has taken all necessary action to authorise the
entry into, performance and delivery of, this Supplemental
Agreement and the transactions contemplated by this
Supplemental Agreement.
(b) Legal Validity: This Supplemental Agreement constitutes its
legal, valid and binding obligation.
(c) Non-conflict: The entry into and performance by it of, and the
transactions contemplated by, this Supplemental Agreement do
not and will not:
(i) conflict with any law or regulation or any official
or judicial order applicable to it; or
(ii) conflict with its constitutive documents; or
(iii) conflict with any document which is binding on it or
any of its assets.
(d) Authorisations: All authorisations, approvals, consents,
licences, exemptions, filings, registrations, notarisations
and other matters, official or otherwise, required or
desirable in connection with the entry into, performance,
validity and enforceability of, and the transactions
contemplated by this Supplemental Agreement have been obtained
or effected (as appropriate) and are in full force and effect.
(e) Material Adverse Change: There has been no material adverse
change in the consolidated financial condition of the Group
since September 30, 1996.
(f) Representations and Warranties in the Facility Agreement: The
representations and warranties set out in Clause 15.1 of the
Facility Agreement are true as if made on the date of this
Supplemental Agreement and as if references in that Clause to
the Facility Agreement were references to the Facility
Agreement as amended by this Supplemental Agreement.
(g) Other Borrowers: The other Borrowers are bound by the terms of
this Supplemental Agreement.
4. CONDITIONS PRECEDENT
(a) Clause 2 above and Clause 6 below shall come into effect when the
Facility Agent has confirmed to the Company and the Banks (which
confirmation the Facility Agent undertakes to give promptly) that it
has received a legal opinion from any of the Senior Vice President -
Legal, Vice President and General Counsel or Vice President and
Associate General Counsel of the Company, reaffirming the matters set
forth in his opinion delivered pursuant to Clause 4.1(a)(vi) of the
Facility Agreement with reference to this Supplemental Agreement and
the Facility Agreement as amended hereby.
(b) If the above condition is not satisfied on or prior to January 6, 1997
(or such later date as may be agreed between the Company and the
Facility Agent) this Supplemental Agreement will lapse and (with the
exception of Clauses 1, 5, 7 and 8) shall cease to have any effect.
5. INCORPORATION
(a) This Supplemental Agreement is a Finance Document.
(b) This Supplemental Agreement is deemed to be incorporated as part of the
Facility Agreement.
(c) Except as otherwise provided in this Supplemental Agreement, the
Finance Documents remain in full force and effect.
6. NEW BANK
6.1 Subject to Clause 4 above, on the Effective Date:
(a) Each of the New Banks shall become a Bank under the Facility
Agreement and will be bound by the provisions of the Facility
Agreement as if it were an original party thereto in the
capacity as a Bank.
(b) The Commitment of each New Bank in its capacity as a Bank
shall be the amount in Dollars set opposite its name in
Schedule 1.
(c) Each of the New Banks:
(i) represents and warrants that it is a bank whose
ordinary business is or includes the making of, or
the participating in, Sterling and Eurocurrency
loans;
(ii) confirms that it has received a copy of the Facility
Agreement together with such other documents and
information as it has requested in connection with
this transaction;
(iii) agrees that it has not relied and will not rely on
any other Contracting Party to assess or keep under
review on its behalf the financial condition,
creditworthiness, condition, affairs, status or
nature of any Borrower or any other party to the
Facility Agreement or any other Finance Documents;
and
(iv) makes the representations and warranties set forth in
Clause 11.4(d) of the Facility Agreement and
undertakes the obligations set forth in Clause
11.4(e) of the Facility Agreement.
7. MISCELLANEOUS
The provision of Clauses 11 (Payments), 22 (Stamp Duties), 23
(Amendments, Waivers, Remedies Cumulative), 30 (Jurisdiction) and 32
(Counterparts) of the Facility Agreement shall apply to this
Supplemental Agreement as though they were set out in this Supplemental
Agreement, but as if references in those Clauses to the Facility
Agreement are references to this Supplemental Agreement.
8. GOVERNING LAW
This Supplemental Agreement is governed by English law.
AS WITNESS the hands of the parties (or their duly authorised representatives)
on the date which appears first on page 1.
SCHEDULE 1
PART I
THE UNDERWRITERS AND COMMITMENTS
Banks Commitments
U.S.$
NATIONAL WESTMINSTER BANK PLC..................................................... 21,600,000
CREDIT LYONNAIS .................................................................. 20,800,000
DEUTSCHE BANK AG ................................................................. 20,800,000
UNION BANK OF SWITZERLAND ........................................................ 20,800,000
BARCLAYS BANK PLC ................................................................ 16,000,000
NORDDEUTSCHE LANDESBANK GIROZENTRALE ............................................. 16,000,000
BHF-BANK AKTIENGESELLSCHAFT ...................................................... 12,000,000
BAYERISCHE VEREINSBANK ........................................................... 12,000,000
DRESDNER BANK AG ................................................................. 12,000,000
WESTDEUTSCHE LANDESBANK GIROZENTRALE ............................................. 12,000,000
BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN ISLANDS BRANCH ........................ 12,000,000
DEN DANSKE BANK AKTIESELKAB, CAYMAN ISLANDS BRANCH ............................... 12,000,000
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK AG, NEW YORK .............................. 12,000,000
BRANCH
Total Commitments ................................................................ 200,000,000
SIGNATORIES
Company
COMDISCO, INC.
By: XXXXXX X. XXXXXXXX
Arranger
NATIONAL WESTMINSTER BANK PLC
By: XXX XXXXXX
Co-Agents
CREDIT LYONNAIS CHICAGO BRANCH
By: XXXX XXX XXXXX
DEUTSCHE BANK AG CHICAGO BRANCH AND/OR CAYMAN ISLANDS BRANCH
By: XXXXXXXX X. XXXXX XXXX XXXXXXXX
UNION BANK OF SWITZERLAND
By: XXXXXX X. XXXXX XXXX XXX XXX
EXISTING BANKS
NATIONAL WESTMINSTER BANK PLC
By: XXX XXXXXX
BARCLAYS BANK PLC
By: XXXX XXXXXXXX
UNION BANK OF SWITZERLAND
By: XXXXXX X. XXXXX XXXX XXX XXX
CREDIT LYONNAIS CHICAGO BRANCH
By: XXXX XXX XXXXX
BHF-BANK AKTIENGESELLSCHAFT
By: XXXXX XXXX XXXXX XXXXXX
DEUTSCHE BANK AG CHICAGO BRANCH AND/OR CAYMAN ISLANDS BRANCH
By: XXXXXXXX X. XXXXX XXXX XXXXXXXX
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: XXXXXXX X. XXXXXX XXXXX XXXXXXXXX
BAYERISCHE VEREINSBANK
By: XX X. XXXXXXX XXXXXX XXXXX
DRESDNER BANK AG NEW YORK AND GRAND CAYMAN BRANCH
By: XXXXXX X. XXXXXXXX XXXX X. XXXXXXX
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK AG,
NEW YORK BRANCH
By: XXXXXX X. XXXX
NORDDEUTSCHE LANDESBANK GIROZENTRALE
By: XXXXX XXXX XXXXXXX X. XXXXXX
New Banks
BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN ISLANDS BRANCH
By: XXXXXXXX XXXXXXXXXXXXX XXXXX XXXXXXXX
DEN DANSKE BANK AKTIESELSKAB, CAYMAN ISLANDS BRANCH
By: XXXX X. X'XXXXX XXXXX X. XXXXXXXXX
Facility Agent and Swingline Agent
NATIONAL WESTMINSTER BANK PLC
By: Xxx Xxxxxx
