AMENDMENT NO. 1
to
CREDIT AGREEMENT
dated as of December 20, 1994
THIS AMENDMENT NO. 1 to CREDIT AGREEMENT ("Amendment") is dated
as of December 18, 1995 and entered into among COMDISCO, INC., a Delaware
corporation, (the "Borrower") the financial institutions from time to time party
to the "Credit Agreement" (as defined below) as Banks, NATIONSBANK, N.A.
(formerly NationsBank of North Carolina, N.A.), in its capacity as Lending Agent
for the Banks under the Credit Agreement, and CITIBANK, N.A., in its capacity as
Administrative Agent for the Banks under the Credit Agreement. Capitalized terms
used herein which are defined in the Credit Agreement shall have the meanings
herein ascribed to such terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Company, the Banks, the Lending Agent, and the
Administrative Agent are parties to that certain Credit Agreement dated as of
December 20, 1994 (the "Credit Agreement");
WHEREAS, the parties to the Credit Agreement have
agreed to amend the Credit Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the terms and conditions
contained herein, and of any loans or extensions of credit heretofore, now or
hereafter made to or for the benefit of the Company by the Banks and the Agents,
the parties hereto hereby agree as follows:
1. Amendment to Credit Agreement. Effective as of
December 18, 1995, upon condition of the conditions precedent
set forth in Section 2 below, the Credit Agreement is hereby
amended as follows:
1.1 Section 1.01 is amended to (i) delete the definitions of
"Banks", "Commitment", "Commitment Termination Date", "Global Credit Agreement",
and "NationsBank" in their entirety and substitute the following definitions
therefor:
"Banks" means each of the financial institutions party to this
Agreement and named on the signature pages of Amendment No. 1 to this
Agreement dated as of December 18, 1995 as a Bank or which becomes a
party to this Agreement
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pursuant to an Assignment and Acceptance from a Bank in
accordance with Section 8.06.
"Commitment" means, for each Bank, the amount set forth opposite
such Bank's name under the heading "Commitment" on the signature pages
of Amendment No. 1 to this Agreement dated as of December 18, 1995 or,
if such Bank has entered into one or more Assignment and Acceptances,
the amount set forth for such Bank in the Register, as such amount may
be reduced or otherwise adjusted from time to time pursuant to the terms
of this Agreement;"
"Commitment Termination Date" means December 16, 1996, as such
date may be extended pursuant to Section 8.07.
"Global Credit Agreement" means that certain Fourth Amended and
Restated Global Credit Agreement of even date herewith among the
Company, certain of its Subsidiaries, the financial institutions from
time to time party thereto, NationsBank, as bid agent thereunder,
Citicorp International, Ltd., as Asia bid agent thereunder, and
Citibank, as administrative agent thereunder, as the same may be
amended, restated, supplemented or otherwise modified from time to time.
"NationsBank" means NationsBank, N.A., a national banking
association, formerly known as NationsBank of North Carolina, N.A.
and (ii) add the following definitions thereto:
"Applicable Margin Rate" means, as of any date of determination,
a per annum rate equal to the rate set forth below opposite the then
applicable Performance Level set forth below:
Performance Level Applicable Margin Rate
Xxxxx 0 0.300%
Xxxxx 0 0.325%
Xxxxx 0 0.400%
"Facility Margin Rate" means, as of any date of determination, a
per annum rate equal to the rate set forth below opposite the then
applicable Performance Level set forth below:
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Performance Level Facility Margin Rate
Xxxxx 0 0.100%
Xxxxx 0 0.125%
Xxxxx 0 0.150%
"Performance Levels" means, collectively, Performance Xxxxx 0,
Xxxxxxxxxxx Xxxxx 0, and Performance Level 3; and "Performance Level"
means, any of Performance Xxxxx 0, Xxxxxxxxxxx Xxxxx 0, or Performance
Level 3. For purposes of determination of a given Performance Level, (i)
if either Standard & Poor's Rating Group or Xxxxx'x Investors Service,
Inc. does not, at any given date, have in effect a rating designated in
the definition of Performance Level 1 or Performance Xxxxx 0, then
Performance Level 3 shall be deemed to be the applicable Performance
Level; (ii) if the ratings of the respective rating agencies fall within
different Performance Levels, the applicable Performance Level shall be
determined based upon the higher of the two ratings; (iii) if the rating
by either rating agency shall be changed (other than as a result of a
change in the rating system of such rating agency), such change shall be
effective as of the date on which it is first announced by such rating
agency and continue effective until the date immediately preceding the
effective date of the next subsequent change. If the rating system of
either rating agency shall change, or if either rating agency shall
cease to be in the business of rating corporate debt obligations or
shall not have in effect a rating for reasons outside the control of the
Company, the parties hereto shall negotiate in good faith to amend this
definition to reflect such changed rating system or the absence of such
rating and, pending the effectiveness of any such amendment, the
applicable Performance Level shall be determined by reference to the
rating from the other rating agency specified.
"Performance Level 1" means that level of financial performance
of the Company, on a consolidated basis, in effect on any given date at
which the long term, senior unsecured, non-credit enhanced Indebtedness
of the Company is rated at least BBB+ by Standard & Poor's Rating Group
or Baa1 by Xxxxx'x Investors Service, Inc.
"Performance Level 2" means that level of financial performance
of the Company, on a consolidated basis, in effect on any given date at
which the long term, senior
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unsecured, non-credit enhanced Indebtedness of the Company is rated
lower than that required for Performance Xxxxx 0, but is rated at least
BBB by Standard & Poor's Rating Group or Baa2 by Xxxxx'x Investors
Service, Inc.
"Performance Level 3" means that level of financial performance
of the Company, on a consolidated basis, in effect on any given date at
which the long term, senior unsecured, non-credit enhanced Indebtedness
of the Company is rated lower than that required for Performance Level
2.
1.2 Section 2.05(a) is amended to delete the provisions thereof
in their entirety and substitute the following therefor:
(a) Fees. The Company agrees to pay to the Administrative Agent,
for the account of each Bank, a facility fee in an amount equal to the then
applicable Facility Margin Rate applied to each Bank's Pro Rata Share of (i) the
average daily Commitments (irrespective of usage and without giving effect to
any Bid Rate Reduction) from the Closing Date (or, if applicable, from the
effective date specified in an Assignment and Acceptance pursuant to which it
became a Bank hereunder) until the Termination Date and (ii) the outstanding
Syndicated Loans from the Termination Date until the payment of the Syndicated
Loans in full, in each case payable in arrears (A) during the period commencing
on December 31, 1994 and ending on December 17, 1995, on the last Business Day
of each calendar quarter and on December 18, 1995 and (B) during the period
commencing on December 18, 1995, on (x) the last Business Day of each calendar
quarter, commencing December 31, 1995, (y) the Termination Date and (z) the date
the Syndicated Loans are paid in full.
1.3 Section 2.07(a)(ii) is amended to delete the provisions
thereof in their entirety and substitute the following therefor:
(ii) Eurodollar Rate Loans. If such Loan is a Eurodollar Rate
Loan, a rate per annum equal at all times during the Interest Period for
such Loan to the sum of the Eurodollar Rate for such Interest Period
plus the then effective Applicable Margin Rate, payable on the last day
of such Interest Period and, if such Interest Period has a duration of
more than three months, on each day which occurs during such Interest
Period every three months from the first day of such Interest Period.
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1.4 Section 5.01(k) is amended to delete the provisions thereof
in their entirety and substitute the following therefor:
(k) Notice of Change in Ratings. Shall promptly notify the
Agents in writing if it receives notice of any increase or decrease in the
ratings of any long term, senior unsecured, non-credit enhanced Indebtedness of
the Company or of any of the Company's other publicly-traded debt.
1.5 Section 8.02 is amended to delete the provisions thereof in
their entirety and substitute the following therefor:
SECTION 8.02. Notices. To be effective, all notices and other
communications provided for hereunder shall be in writing or by telecopy
transmission or telephone (to be confirmed in writing) and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when
delivered by hand, when deposited in the mail, air postage prepaid, or in the
case of notice by telecopy transmission, when sent, addressed as follows in the
case of the Company, the Banks and the Agents, or to such address as may be
hereafter notified in writing by the respective parties hereto and any future
holders of a Note, provided that all Notices of Syndicated Borrowing under
Section 2.02 hereof, all Notices of Bid Rate Borrowing under Section 2.04
hereof, all Notices of Conversion/Continuation under Section 2.08 hereof and all
notices and communications to the Agents pursuant to Article VII shall only be
effective when received:
(a) If to the Company:
Comdisco, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Vice President and Treasurer
Telephone: (000) 000-0000 or (000) 000-0000*1
Telecopy: (000) 000-0000 or (000) 000-0000*
--------
1 * numbers to become effective as of January 20, 1996
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with a copy to:
Comdisco, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000 or (000) 000-0000*
Telecopy: (000) 000-0000 or (000) 000-0000*
(b) If to any Bank:
To its address set forth below its name on the signature pages
hereof, with a copy to the Administrative Agent;
(c) If to the Administrative Agent:
Citibank, N.A.
c/o Citicorp Securities, Inc.
000 Xxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: XxXxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(d) If to the Lending Agent:
NationsBank, N.A.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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and/or, as applicable:
NationsBank, N.A.
Agency Services
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: XxXxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
1.6 Schedules 1.01 and 4.01(i) to the Agreement are deleted in
their entirety and Schedules 1.01 and 4.01(i) attached hereto substituted
therefor.
2. Conditions to Effectiveness. The amendments set forth in this
Amendment shall become effective as of December 18, 1995 provided that the
Administrative Agent shall have received all of the following, each in form and
substance satisfactory to the Banks (as indicated by each Bank's signature
hereto) and, in the case of item (i) below, in sufficient copies for each of the
Banks:
(i) This Amendment, executed by the parties hereto,
(ii) The Company Notes, with appropriate insertions,
executed by the Company and payable to the order of each
Bank,
(iii) Certified copies of the resolutions of the Board of
Directors of the Company approving this Agreement, the Company Notes,
and the other Credit Documents to be delivered by the Company in
connection herewith,
(iv) A certificate of the Secretary or an Assistant Secretary of
the Company certifying (1) the Certificate of Incorporation of the
Company, (2) the By-laws of the Company, and (3) the names and true
signatures of the officers of the Company authorized to sign this
Agreement and the other Credit Documents to be delivered by the Company
in connection herewith,
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(v) A certificate of good standing of the Company
issued by the Secretaries of State of Illinois and
Delaware,
(vi) A favorable opinion of the General Counsel of the Company,
dated the Closing Date, relating to such matters as the Administrative
Agent and the Lending Agent deem appropriate and in form and substance
satisfactory to each such Agent,
(vii) A favorable opinion of Sidley & Austin, counsel
to the Administrative Agent and the Lending Agent, and
(viii) Such other documentation as the Administrative Agent or
the Lending Agent may reasonably request.
(b) All accrued and unpaid interest, fees and expenses due and
payable by the Company under the Credit Agreement on or prior to December 18,
1995 shall have been paid in full in cash.
(c) There shall have been no material adverse change in the
business, operations, assets or financial or other condition of the Company and
its Subsidiaries taken as a whole, in the judgment of the Agents and the Banks
(as evidenced by their execution of this Amendment).
(e) Each condition precedent set forth in Section 3.02, and
Section 3.03 of the Credit Agreement, shall be satisfied on and as of December
18, 1995.
3. Representations, Warranties and Covenants.
3.1 The Borrower hereby represents and warrants that this
Amendment and the Credit Agreement, as amended hereby, constitute the legal,
valid and binding obligations of the Borrower and are enforceable against the
Borrower in accordance with their terms.
3.2 The Borrower hereby represents and warrants that, before and
after giving effect to this Amendment, no Event of Default or Unmatured Event of
Default has occurred and is continuing.
3.3 The Borrower hereby reaffirms all agreements, covenants,
representations and warranties made in the Credit Agreement, to the extent the
same are not amended hereby, and agrees that all such agreements, covenants,
representations and warranties shall be deemed to have been remade as of the
effective date of this Amendment. To the extent the Credit
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Agreement is amended hereby to modify or add agreements and covenants, such
agreements and covenants are made as of the date on which this Amendment becomes
effective with respect thereto.
4. Reference to and Effect on the Credit Agreement.
4.1 Upon the effectiveness of this Amendment, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import shall mean and be a reference to the Credit Agreement as
amended by this Amendment.
4.2 Except as specifically amended above, the Credit Agreement
shall remain in full force and effect, and is hereby ratified and confirmed.
4.3 The execution, delivery, and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of the Agents or Banks, or constitute a waiver of any
provision of any of the Credit Documents.
5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
6. 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.
7. Counterparts. This Amendment may be executed by
one or more of the parties hereto on any number of separate
counterparts, each of which shall be deemed an original and all
of which, taken together, shall be deemed to constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
COMDISCO, INC.
By
Xxxxxx X. Xxxxxxxx
Vice President and Treasurer
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Commitment
$13,500,000 CITIBANK, N.A., as Administrative
Agent and as a Bank
By
Name:
Title:
Address:
c/o Citicorp Securities, Inc.
000 Xxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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Commitment
$13,500,000 NATIONSBANK, N.A.,
as Lending Agent and as a Bank
By_________________________________
Name:
Title:
Address:
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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Commitment
$6,000,000 WESTPAC BANKING CORPORATION,
as a Bank
By
Name:
Title:
Address:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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Commitment
$10,000,000 THE BANK OF TOKYO, LTD., CHICAGO
BRANCH, as a Bank
By
Name:
Title:
Address:
00 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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Commitment
$7,500,000 THE FIRST NATIONAL BANK OF BOSTON,
as a Bank
By
Name:
Title:
Address:
000 Xxxxxxx Xxxxxx
Mail Stop: 01-09-06
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-14-
Commitment
$5,000,000 CAISSE NATIONALE DE CREDIT AGRICOLE,
as a Bank
By
Name:
Title:
Address:
00 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-15-
Commitment
$5,000,000 COMERICA BANK, as a Bank
By
Name:
Title:
Address:
0000 Xxxx Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Block
Telephone: (000) 000-00000
Telecopy: (000) 000-0000
2 Area code changes to 847 effective January 20, 1996.
-16-
Commitment
$10,000,000 CIBC, INC., as a Bank
By
Name:
Title:
Address:
Xxx Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-17-
Commitment
$6,000,000 BANK HAPOALIM, as a Bank
By
Name:
Title:
By
Name:
Title:
Address:
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
-18-
Commitment
$5,000,000 U.S. BANK OF OREGON, as
a Bank
By
Name:
Title:
Attention:
National Corporate Banking
000 X.X. Xxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-19-
Commitment
$10,000,000 THE FUJI BANK, LIMITED,
as a Bank
By
Name:
Title:
Attention:
The Fuji Bank, Limited, Chicago Branch
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000 or
(000) 000-0000
-20-
Commitment
$7,500,000 THE SANWA BANK, LIMITED, CHICAGO
BRANCH, as a Bank
By
Name:
Title:
Address:
00 Xxxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-21-
Commitment
$10,000,000 THE YASUDA TRUST & BANKING CO., LTD.,
as a Bank
By
Name:
Title:
Address:
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-22-
Commitment
$7,500,000 THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., CHICAGO BRANCH, as a Bank
By
Name:
Title:
Address:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-23-
Commitment
$10,000,000 MELLON BANK, N.A., as a Bank
By
Name:
Title:
Address:
c/o Mellon Financial Services
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: M. Xxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-24-
Commitment
$7,500,000 THE SAKURA BANK, LIMITED, as
a Bank
By
Name:
Title:
Address:
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-25-
Commitment
$5,000,000 NBD BANK, as a Bank
By
Name:
Title:
Address:
Midwest Banking Division
000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Xx.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-26-
Commitment
$6,000,000 SOCIETE GENERALE, as a Bank
By
Name:
Title:
By
Name:
Title:
Address:
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: May X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
-27-
Commitment
$5,000,000 THE FIRST NATIONAL BANK OF CHICAGO, as
a Bank
By__________________________
Name:
Title:
Address:
One First Xxxxxxxx Xxxxx
Xxxx Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx X. Xxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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