SECOND SUPPLEMENTAL AGREEMENT
DATED OCTOBER 24, 1996
BETWEEN
COMDISCO, INC.
and
NATIONAL WESTMINSTER BANK PLC
as Arranger and Administrative Agent
CREDIT LYONNAIS
DEUTSCHE BANK A.G.
UNION BANK OF SWITZERLAND
as Co-Agents
and
THE BANKS
and
NATIONAL WESTMINSTER BANK
as Facility Agent and
Swingline Agent
relating to an Agreement dated December 30, 1994
providing for a revolving credit facility of up to
U.S. $150,000,000
XXXXX & XXXXX
Swiss Bank Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
1
THIS SECOND SUPPLEMENTAL AGREEMENT is made on October 24, 1996 between:
(1) COMDISCO, INC. of 0000 Xxxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000
(the "Company") for itself;
(2) NATIONAL WESTMINSTER BANK PLC of 00 Xxxxxxxx, Xxxxxx XX0X 0XX as
Arranger and Administrative Agent;
(3) CREDIT LYONNAIS, DEUTSCHE BANK A.G. AND UNION BANK OF SWITZERLAND as
Co-Agents;
(4) THE BANKS listed on the signatory pages to this Supplemental Agreement
as Banks;
(5) NATIONAL WESTMINSTER BANK PLC of 00 Xxxxxxxx, Xxxxxx XX0X 0XX as
facility agent, in this capacity, (the "Facility Agent"); and
(6) NATIONAL WESTMINSTER BANK PLC of 000 Xxxxx Xxxxxx, Xxx Xxxx,
XX 00000, X.X.X. as swingline agent (in this capacity, the
"Swingline Agent").
WHEREAS:
(A) This Second 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 first supplemental
agreement dated December 29, 1995 (together, the "Facility Agreement");
(B) at the request of the Company, the Banks have agreed to extend the
existing Commitment Period of the Facility;
(C) the parties to this Second 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;
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, the date on which the Facility Agent
notifies the Company of the satisfaction of the conditions
precedent set out in Clause 4.
2. AMENDMENTS TO THE FACILITY AGREEMENT
2.1 Subject to the satisfaction of the conditions in Clause 4 below and
as provided in Clause 2.2 and 2.3 below, the Facility Agreement is
amended as follows:
(a) In Clause 1.1 the definitions of "Commitment", "Commitment
Period", "Final Maturity Date" and "Finance Documents" shall
be deleted and replaced with the following:
""Commitment"
in relation to a Bank, means the amount in Dollars set
opposite its name in Schedule 1, to the extent not cancelled
or reduced under this Agreement (including by virtue of any
Bank declining to extend its Commitment pursuant to Clause 2.4
of this Agreement) or increased under this Agreement
(including by virtue of any Bank assuming any additional
Commitment pursuant to Clause 2.4 of this Agreement)."
""Commitment Period"
means, subject to any extension as provided in Clause 2.4,
the period ending on December 29, 1996."
""Final Maturity Date"
means December 29, 1997."
""Finance Documents"
means, any of this Agreement, the Substitution Certificates
and any other document designated as such by the Facility
Agent and the Company."
(b) Clause 2.4 (Extension of Commitment Period) shall be amended
by the deletion of paragraphs (a)and (b) and the replacement
thereof by the following:
"2.4 Extension of Commitment Period
(a) The Company or the Borrowers' Agent may, from time to
time and not earlier than 60 days and not later than
30 days prior to the Expiry Date, request the
Facility Agent to request that the Banks agree to an
extension of the Commitments for an additional period
of 364 days upon the terms and conditions of this
Clause 2.4.
(b) Upon receipt of any such request from the
Company or the Borrowers' Agent, the Facility
Agent shall promptly notify each Bank of such
request. Each Bank shall notify the Facility
Agent not later than 20 days prior to the Expiry
Date if, in its sole discretion, it agrees to
extend its Commitment (or any portion thereof) for
such additional 364-day period; each such notice
from a Bank which agrees to extend its Commitment
(each, an "Extending Bank") shall specify (a)
all or that portion of its Commitment which it is
willing to extend and (b) the amount of any
additional Commitment it would be willing to
assume (with respect to any Extending Bank, an
"Additional Commitment"). Any Bank which fails to
deliver such notice to the Facility Agent shall be
deemed to have declined to renew its Commitment
for such additional 364-day period. After receipt
of such notices, the Facility Agent shall allocate
that portion of the Commitments which was not
extended by the Banks (if any) among each Extending
Bank that requested an Additional Commitment pro
rata according to the respective amounts of their
Additional Commitments (provided that in no event
shall any such Extending Bank be allocated an amount
in excess of its Additional Commitment); the
respective Commitments which the Extending Banks have
agreed to extend (after giving effect to such
allocation) are referred to in this Clause as the
"Renewed Commitments." On the first Business Day
after the 20th day prior to the Expiry Date, the
Facility Agent shall advise the Company in writing
(a "Renewal Notice"), with a copy to each of the
Extending Banks, of the affirmative responses
which it has received from the Extending Banks and
the respective amounts of Renewed Commitments of
each Extending Bank.
(c) If the aggregate amount of the Renewed Commitments is
less than or equal to 50% of the aggregate
Commitments of all Banks then in effect, no extension
of the Commitments of the Extending Banks for an
additional 364-day period shall occur, the Advances
will be due and payable on the Final Maturity Date
(or such earlier date as they would otherwise become
due and payable hereunder) together with all other
amounts due hereunder. If the aggregate amount of the
Renewed Commitments is greater than 50% of the
aggregate Commitments of all Banks then in effect the
following shall occur:
(i) the Commitment of each Bank which is not an
Extending Bank (the "Declining Banks"),
shall terminate on the Expiry Date and all
outstanding Advances of the Declining Banks,
together with interest thereon and all other
amounts then due and payable hereunder to
the Declining Banks, shall be due and
payable on the Expiry Date; and
(ii) so long as no Default or Event of Default
has occurred and is continuing (a)
the Expiry Date will automatically be
deemed extended for an additional period
of 364-days with respect to each Extending
Bank. (b) each Extending Bank's
Commitment will automatically be deemed to
be its Renewed Commitment, (c) if the
aggregate outstanding principal amount of
the Advances of the Extending Banks exceeds
the aggregate Renewed Commitments of the
Extending Banks, the Company shall prepay
the Advances in an amount equal to the
amount of such excess (such prepayments
to be applied to the Advances of each
Extending Bank whose outstanding Advances
exceed its Renewed Commitment in an amount
equal to such excess)."
2.2. Subject to the satisfaction of the condition set out in Clause 4 below,
the amendments to the Facility Agreement in Clause 2.1 shall apply as
between all the Contracting Parties.
2.3 The amendments in Clause 2.1 shall be deemed to be effective on and
from the Effective Date.
3. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Facility Agent and the Banks
on its own behalf 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, 1995.
(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.
4. CONDITIONS PRECEDENT
(a) Clause 2 above 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)(iv) 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 October
31, 1996 (or such other 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 and 6)
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. MISCELLANEOUS
The provisions 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.
7. 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.
SIGNATORIES
Company
COMDISCO, INC.
By: XXXXXX X XXXXXXXX
Arranger
NATIONAL WESTMINSTER BANK PLC
By: XXXXXX X XXXXX
Co-Agents
CREDIT LYONNAIS CHICAGO BRANCH
By: XXXX XXX XXXXX
DEUTSCHE BANK A.G.
By: XXXX XXXXXXXX By: XXXX XXXXXXXX
UNION BANK OF SWITZERLAND
By: XXXXXX X XXXXX By: XXXX XXX XXX
Banks
NATIONAL WESTMINSTER BANK PLC
By: XXXXXX X XXXXX
BARCLAYS BANK PLC
By: XXXX X XXXXXXXX
UNION BANK OF SWITZERLAND
By: XXXXXX X XXXXX By: XXXX XXX XXX
CREDIT LYONNAIS CHICAGO BRANCH
By: XXXX XXX XXXXX
BHF-BANK
By: XXXXX XXXXXX By: XXXXX XXXX
DEUTSCHE BANK AG CHICAGO BRANCH AND/OR CAYMAN ISLANDS BRANCH
By: XXXX XXXXXXXX By: XXXX XXXXXXXX
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK AND CAYMAN ISLANDS BRANCH
By: XXXXXXX X XXXXXX By: XXXXX XXXXXXXXX
BAYERISCHE VEREINSBANK AG
By: XX X XXXXXXX By: XXXXXX X XXXXX
DRESDNER BANK AG, CHICAGO AND GRAND CAYMAN BRANCHES
By: XXXXXX NADRAMAI By: XXXX X XXXXXX
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK AG, NEW YORK BRANCH
By: XXXXXXXX XXXXX
NORDDEUTSCHE LANDESBANK GIROZENTRALE
By: XXXXXXX X XXXXXX By: XXXXX XXXXX-XXXX
Facility Agent
NATIONAL WESTMINSTER BANK PLC
By: XXXXXX X XXXXX
Swingline Agent
NATIONAL WESTMINSTER BANK PLC
By: XXXXXX X XXXXX
