SUPPLEMENTAL AGREEMENT
DATED December 29, 1995
BETWEEN
COMDISCO, INC.
and
NATIONAL WESTMINSTER BANK PLC
as Arranger
CREDIT LYONNAIS
DEUTSCHE BANK AG
UNION BANK OF SWITZERLAND
as Co-Agents
and
THE BANKS
and
NATIONAL WESTMINSTER BANK PLC
as Facility Agent
and
NATIONAL WESTMINSTER BANK PLC
as Swingline Agent
--------------------------------
relating to an Agreement dated
December 30, 1994
providing for a revolving credit facility
of up to U.S.$150,000,000
-------------------------------
1
THIS SUPPLEMENTAL AGREEMENT is made on December 29, 1995 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
as Banks;
(5) NATIONAL WESTMINSTER BANK PLC as facility agent (the "Facility Agent");
and
(6) NATIONAL WESTMINSTER BANK PLC as swingline agent(the"Swingline Agent").
WHEREAS:
(A) This Supplemental Agreement is supplemental to a facility agreement
dated December 30, 1994 (the "Facility Agreement");
(B) the Company has requested and the Banks have agreed that the Commitment
Period of the Facility be extended in accordance with Clause 2.4 of the
Facility Agreement with the result that the new Expiry Date is December
13, 1996;
(C) at the request of the Company, the Banks have agreed to extend the
Final Maturity Date of the Facility; and
(D) the parties to this Supplemental Agreement have agreed that certain
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, subject to satisfaction of the
conditions precedent set out in Clause 4, December 30, 1995.
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 following new definitions shall be added to Clause 1.1:
"Long Term Debt Rating"
means, on any date, the Company's senior unsecured non
credit-enhanced long term debt rating as determined by a
Rating Agency.
"Rating Agency"
means each of Standard & Poor's Ratings Group and Xxxxx'x
Investors Service, Inc..
(c) In Clause 1.1:
the definitions of "CD Margin", "Final Maturity Date" and
"LIBOR Margin" shall be deleted and replaced with the
following:
""CD Margin"
means, in the case of each CD Advance:
(a) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB+ or Baa1 or
higher, 0.425 per cent. per annum;
(b) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB or Baa2, 0.45
per cent. per annum; and
(c) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB- or Baa3 or
lower or is unrated, 0.525 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."
""Final Maturity Date"
means December 13, 1997."
""LIBOR Margin"
means, in the case of each LIBOR Advance:
(a) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB+ or Baa1 or
higher, 0.30 per cent. per annum;
(b) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB or
Baa2, 0.325 per cent. per annum; and
(c) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB- or Baa3 or
lower or is unrated, 0.40 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 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,
1995 up to and including the Expiry Date for that Bank,
computed at the following rates:
(i) where the Company's Long Term Debt Rating is BBB+
or Baa1 or higher, 0.10 per cent. per annum;
(ii) where the Company's Long Term Debt Rating is BBB or
Baa2, 0.125 per cent. per annum; and
(iii) where the Company's Long Term Debt Rating is BBB- or
Baa3 or lower or is unrated, 0.15 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."
(d) Part I of Schedule 1 (The Banks and Commitments) shall be deleted and
replaced with the form set out in Schedule 1 to this Supplemental
Agreement.
3. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Facility Agent and the Banks
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 January
6, 1996 (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 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 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.
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.
SCHEDULE 1
Schedule 1
PART I - The Underwriters and Commitments
THE BANKS AND COMMITMENTS
Banks Commitments
U.S.$
NATIONAL WESTMINSTER BANK PLC 19,333,333.34
CREDIT LYONNAIS 18,000,000.00
DEUTSCHE BANK AG 18,000,000.00
UNION BANK OF SWITZERLAND 18,000,000.00
BARCLAYS BANK PLC 13,333,333.33
BHF-BANK 13,333,333.33
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK AG, NEW YORK 10,000,000.00
BRANCH
BAYERISCHE VEREINSBANK 10,000,000.00
DRESDNER BANK AG 10,000,000.00
NORDDEUTSCHE LANDESBANK GIROZENTRALE 10,000,000.00
WESTDEUTSCHE LANDESBANK GIROZENTRALE 10,000,000.00
Total Commitments 150,000,000.00
SIGNATORIES
Company
COMDISCO, INC.
By: XXXXXX X. XXXXXXXX
Arranger
NATIONAL WESTMINSTER BANK PLC
By: XXXXXX X. XXXXX
Co-Agents
CREDIT LYONNAIS CHICAGO BRANCH
By: XXXXXX XXX
CREDIT LYONNAIS CAYMAN ISLANDS BRANCH
By: XXXXXX XXX
DEUTSCHE BANK AG CHICAGO BRANCH AND/OR CAYMAN ISLANDS BRANCH
By: XXXXX X. XXXXXX By: XXXX XXXXXXXX
UNION BANK OF SWITZERLAND
By: XXXXX X. XXXXXXXX XX By: XXXXXX XXXXXX
Xxxxx
NATIONAL WESTMINSTER BANK PLC
By: XXXXXX X. XXXXX
CREDIT LYONNAIS CHICAGO BRANCH
By: XXXXXX XXX
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: XXXXXX XXX
DEUTSCHE BANK AG CHICAGO BRANCH AND/OR CAYMAN ISLANDS BRANCH
By: XXXXX X. XXXXXX By: XXXX XXXXXXXX
UNION BANK OF SWITZERLAND
By: XXXXX X. XXXXXXXX XX By: XXXXXX XXXXXX
BARCLAYS BANK PLC
By: XXXX XxXXXXXXXX
BHF-BANK
By: XXXXX XXXX By: XXXXX XXXXXXXX
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK AG, NEW YORK BRANCH
By: XXXXXXXX X. XXXXX By: XXXXXXXX XXXXXXX
BAYERISCHE VEREINSBANK AG
By: XX X. XXXXXXX By: XXXXXX X. X'XXXXXX
DRESDNER BANK AG, CHICAGO AND GRAND CAYMAN BRANCHES
By: XXXX X. XXXXXXXXXX By: XXXXXXX X. XXXXXX
NORDDEUTSCHE LANDESBANK GIROZENTRALE
By: XXXXXXX X. XXXXXX By: XXXXX XXXXX-XXXX
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
AND CAYMAN ISLANDS BRANCHES
By: XXXXXXX X. XXXXXXXX By: XXXXX XXXXXXXXX
Facility Agent
NATIONAL WESTMINSTER BANK PLC
By: XXXXXX X. XXXXX
Swingline Agent
NATIONAL WESTMINSTER BANK PLC
By: XXXXXX X. XXXXX
