NINTH 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 EXTENDING BANKS
and
THE NEW BANKS
and
NATIONAL WESTMINSTER BANK PLC
as Facility Agent, Tender Panel Agent
and Swingline Agent
and
BARCLAYS BANK PLC
as Letter of Credit Agent
--------------------------------
relating to an Agreement dated
June 4, 1991 (as amended by supplemental
agreements dated August 27, 1991, April 20, 1992
September 21, 1992, April 23, l993, May
9, 1994, August 12, 1994, December 30, 1994 and December
29, 1995)
providing for a revolving credit facility
of up to U.S.$300,000,000
-------------------------------
Xxxxx & Xxxxx
New York
THIS NINTH SUPPLEMENTAL AGREEMENT is made on December 30, 1996 between:
(1) COMDISCO, INC. (the "Company") for itself and on behalf of those
Additional Borrowers party to the Facility Agreement defined below;
(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 "Extending Banks";
(5) THE BANKS listed on the signatory pages to this Supplemental Agreement
under the heading "New Banks";
(6) NATIONAL WESTMINSTER BANK PLC as facility agent, tender panel agent and
swingline agent (the "Facility Agent"); and
(7) BARCLAYS BANK PLC as Letter of Credit Agent.
WHEREAS:
(A) This Supplemental Agreement is supplemental to a facility agreement
dated June 4, 1991 in respect of a revolving credit facility of up to
U.S. $300,000,000 as amended by a supplemental agreement dated August
27, 1991, a second supplemental agreement dated April 20, 1992, a third
supplemental agreement dated September 21, 1992, a fourth supplemental
agreement dated April 23, 1993, a fifth supplemental agreement dated
May 9, 1994, a sixth supplemental agreement dated August 12, 1994, a
seventh supplemental agreement dated December 30, 1994 and an eighth
Supplemental Agreement dated December 29, 1995 (together the "Facility
Agreement");
(B) at the request of the Company, the Extending Banks have agreed to
extend the Final Maturity Date of the Facility;
(C) 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
(D) the New Banks have agreed to become party to the Facility Agreement
with effect from the Effective Date (as defined below) of this
Supplemental Agreement.
1
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.
2
(c) "Effective Date" means, subject to satisfaction of the conditions
precedent set out in Clause 4, January 3, 1997.
(d) "Extending Banks" means those parties to this Supplemental Agreement
listed under the heading "Extending Banks" on the signatory pages.
(e) "New Banks" means the parties to this Supplemental Agreement listed
under the heading "New Banks" on the signatory pages.
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
Extending Banks and the New Banks.
(b) In Clause 1.1:
the definitions of "Agent", "Final Maturity Date", "Maturity
Date", "Tenor", "Underwritten CD Margin", "Underwritten LIBOR
Margin" and "Utilisation" shall be deleted and replaced with
the following:
""Agent" means the Facility Agent, the Tender Panel Agent and
the Swingline Agent.""Final Maturity Date"
in relation to an Underwriter means, subject to Clause 2.4,
December 31, 1999."
""Maturity Date"
means:
(a) in relation to an Advance, the last day of its Term;
(b) in relation to a Xxxx, the last day of its Tenor."
""Tenor"
means in relation to a Xxxx or Utilisation comprising Bills,
the period for which the Xxxx is to be outstanding, or
available for drawing, as the case may be, as selected by the
Company or relevant Borrower in the relevant Request."
""Underwritten CD Margin"
means, in the case of an Underwritten CD Advance:
(a) where on the applicable Rate Fixing Day the Company's
Long Term Debt Rating is A- or A3 or higher, 0.285
per cent per annum;
(b) where on the applicable Rate Fixing Day the Company's
Long Term Debt Rating is BBB+ or Baa1, 0.325 per
cent. per annum;
(c) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB or Baa2,
0.375 per cent. per annum; and
(d) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB- or Baa3,
0.425 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,
0.625 per cent per annum.
3
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
Underwritten CD Margin."
""Underwritten LIBOR Margin"
means, in the case of an Underwritten LIBOR Advance:
(a) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is A- or A3 or
higher, 0.16 per cent per annum;
(b) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB+ or Baa1,
0.20 per cent. per annum;
(c) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB or Baa2, 0.25
per cent. per annum;
(d) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB- or Baa3,
0.30 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,
0.50 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 Underwritten LIBOR Margin."
""Utilisation"
means all the Advances or Bills comprised in a utilisation of
a Facility."
(c) In Clause 1.1., the following definitions and all references
to such terms in the Facility Agreement shall be deleted:
"Beneficiary", "Cash Collateral Account", "Commercial Paper",
CP Dealer", "CP Notes", "CP Programme", "Dealer Agreement",
"Delayed Note", "Depository Agreement", "Issuer", "Issuing
Bank", "Letter of Credit", "L/C Amount", "L/C Obligation",
"Letter of Credit Outstanding".
(d) In Clause 1.1:
(i) in the definition of "Business Day" paragraph (i)
shall be deleted and be replaced by the following:
"(a) London, Chicago and New York City except in
the case of any Utilisation of the Swingline
Advance Facility for which purpose banks in
London and New York City only need be open
for business,";
(ii) in the definition of "Facility", paragraph (e)
shall be deleted and the subsequent paragraphs
re-ordered alphabetically;
(iii) in the definition of "Finance Document", the words
", the Letter(s) of Credit" shall be deleted;
(iv) in the definition of "Original Dollar Amount", the
word "or" at the end of paragraph (b) shall be
deleted and shall be replaced by a full stop and
paragraph (c) shall be deleted;
(v) in the definition of "Request", paragraph (e) shall
be deleted, the word "and" shall be added to the end
of paragraph (d) and paragraph (f) will be
redesignated "(e)".
(vi) in the definition of "Utilisation Date", paragraph
(c) shall be deleted, the word "and" shall be added
to the end of paragraph (a) and the word "; and"
shall be removed from the end of paragraph (b) shall
be replaced by a comma.
(e) In Clause 1.2 paragraph (f) shall be deleted and shall be
replaced by the following:
"(f) a reference to a "principal amount" in relation to
Xxxx(s) is a reference to the face amount of the Xxxx(s);".
(f) The following Clauses shall be deleted from the Facility
Agreement 2.1(e), 2.2(c), 5.4(b)(vi), 8.4(b)(vi), 9, 20.10
(j), 20.20, 20.21, 20.22, 21.3, 00.0, 00.0, 00.0, 00.0(x)(x),
0
(x), 00.0(xx), 29.4(b)(ii) and Exhibits H and Q, and in each
case the clause reference or Exhibit heading shall remain and
the words "deliberately left blank" inserted into the Facility
Agreement.
(g) Clause 2.3(a) shall be deleted and shall be replaced by the
following:
"(a) Committed Banks: No Committed Bank is obliged to make
a Committed Advance if it would cause the aggregate
of the Original Dollar Amount of any outstanding
Advances made and Bills accepted by it (including in
its capacity as a Tender Panel Member) and its
Affiliated Bank(s) to exceed its Commitment.".
(h) Clause 2.4(b) shall be deleted and shall be replaced by the
following:
"(b) Each Underwriter will notify the Facility Agent in
writing if it wishes its Final Maturity Date to be
extended. Such notification must be given prior to 5
Business Days before the relevant Anniversary (or
then latest Final Maturity Date). If an Underwriter
does so notify, its Final Maturity Date shall be
extended by one year with the effect from close of
business on the relevant Anniversary (or then latest
Final Maturity Date), regardless of whether or not
any other Underwriters also agree.".
(i) In Clause 2.5 the final sentence thereof shall be deleted.
(j) Clause 3.1(a) shall be deleted and shall be replaced by the
following:
"(a) the proceeds of each Utilisation shall be as follows:
(i) in the case of Advances and Bills, applied
by each Borrower in repayment or payment (as
appropriate) of all amounts outstanding
under the Existing Facility as and when they
fall due in accordance with the terms of the
existing Facility Agreement; and
(ii) applied by each Borrower towards its general
corporate purposes.".
(k) 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;".
(l) The word "; and" shall be removed from the end of the
paragraph (i) in Clause 20.10, the word "and;" shall be added
to the end of paragraph (j) thereof and the following shall be
added after paragraph (j):
(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
5
transactions or business continuity services, where
such indebtedness had constituted a Non-Recourse
Obligation prior to the insolvency of such
Subsidiary.
(m) Paragraph (ii) of clause 20.11(d) shall be deleted and shall
be replaced by the following:
"(ii) 5.50 to 1 at any time thereafter;".
(n) Clause 20.11(f) shall be deleted.
(o) Clause 20.11(g) shall be deleted.
(p) Clause 20.11(h) shall be re-designated as Clause 20.11(f) and
the numbers "1.25:1" at the end thereof shall be deleted and
shall be replaced by "1.10:1".
(q) Clause 23 shall be deleted and shall be replaced by the
version thereof set out at Schedule 2 to this Supplement
Agreement.
(r) Clause 24.1(a)(Facility Fee)shall be deleted and replaced with
the following:
"24.1 Facility Fee
(a) The Company shall pay to the Facility Agent for the
account of each Underwriter a facility fee in Dollars
computed on the amount of that Underwriter's
Commitment during the period from December 30, 1996
up to and including the Final Maturity Date for that
Underwriter, computed at the following rates:
(i) where the Company's Long Term Debt Rating is
A- or A3 or higher, 0.09 per cent. per
annum;
(ii) where the Company's Long Term Debt Rating is
BBB+ or Baa1 or higher, 0.10 per cent. per
annum;
(iii) where the Company's Long Term Debt Rating is
BBB or Baa2, 0.15 per cent. per annum;
(iv) where the Company's Long Term Debt Rating is
BBB- or Baa3, 0.20 per cent. per annum; and
(v) where the Company's Long Term Debt Rating is
BB+ or Ba1 or lower or unrated, 0.25 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.
6
(s) Clause 24.3 shall be deleted and shall be replaced by the
following:
"Clause 24.3 Accrual
The facility fee referred to in Clause 24.1 shall accrue from
day to day and be calculated on the basis of a year of 360
days and for the actual number of days elapsed.".
(t) Clause 27.1(a) the second sentence shall be deleted therefrom.
(u) In Clause 29.3(a) the words "and the Issuing Banks" shall be
deleted therefrom and in Clause 29.3(b)(i) the following words
shall be deleted at the end thereof: "and the Letter of Credit
Agent".
(v) In Clause 29.4(a) the words "and the Issuing Banks" in the
fifth line thereof and the words "(which shall promptly notify
the Letter of Credit Agent)" shall be deleted therefrom.
(w) In Clause 29.4(b)(i) the words "the Letter of Credit Agent" at
the end thereof shall be deleted.
(x) In Exhibit A,
(i) Part I (The Underwriters and Commitments) shall be
deleted and shall be replaced with the form set out
in Schedule 1 to this Supplemental Agreement;
(ii) Part II (The Swingline Banks) shall be deemed to
include the New Banks;
(iii) Part III (The Issuing Banks) shall be deleted;
(iv) Part IV (The Tender Panel Members) shall be
re-numbered "Part III" and shall be deemed to include
the New Banks.
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
7
(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 19.1 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:
8
(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 Underwriter, Swingline Bank and Tender Panel
Member.
(b) The Commitment of each New Bank in its capacity as Underwriter
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 15.4(d) of the Facility Agreement and
undertakes the obligations set forth in Clause
15.4(e) of the Facility Agreement.
7. MISCELLANEOUS
The provision of Clauses 15 (Payments), 26 (Stamp Duties), 27
(Amendments, Waivers, Remedies Cumulative), 34 (Jurisdiction) and 36
(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.
9
SCHEDULE 1
PART I
THE UNDERWRITERS AND COMMITMENTS
Banks Commitments
U.S.$
NATIONAL WESTMINSTER BANK PLC .................................................. 32,400,000
CREDIT LYONNAIS ................................................................ 31,200,000
DEUTSCHE BANK AG ............................................................... 31,200,000
UNION BANK OF SWITZERLAND ...................................................... 31,200,000
BARCLAYS BANK PLC .............................................................. 24,000,000
NORDDEUTSCHE LANDESBANK GIROZENTRALE ........................................... 24,000,000
BHF-BANK ATKIENGESELLSCHAFT .................................................... 18,000,000
BAYERISCHE VEREINSBANK ......................................................... 18,000,000
DRESDNER BANK AG ............................................................... 18,000,000
WESTDEUTSCHE LANDESBANK GIROZENTRALE ........................................... 18,000,000
BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN ISLANDS BRANCH ...................... 18,000,000
DEN DANSKE BANK AKTIESELKAB, CAYMAN ISLANDS BRANCH ............................. 18,000,000
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK AG, NEW YORK ............................ 18,000,000
BRANCH
Total Commitments .............................................................. 300,000,000
10
SCHEDULE 2
(Form of Clause 23 to the Facility Agreement)
23. THE AGENTS AND THE ARRANGER
23.1 Appointment
(a) Each Bank and the Arranger irrevocably appoints each of the
Facility Agent and the Swingline Agent to act as its agent
under this Agreement and irrevocably authorises each of them
on the Bank's or the Arranger's behalf, as the case may be, to
perform those duties and to exercise those rights and powers
that are specifically delegated to it under the terms of this
Agreement, together with such rights, powers and discretions
as are reasonably incidental thereto.
(b) Each Borrower irrevocably appoints the Tender Panel Agent to
act as its agent under this Agreement in connection with the
obtaining and receipt of offers in relation to Utilisations of
the Uncommitted Facilities and irrevocably authorises the
Tender Panel Agent to exercise those rights, powers and
discretions that are specifically delegated to it by each
Borrower under the terms of this Agreement, together with all
such rights, powers as it shall see fit.
(c) Notwithstanding any provision of this Agreement, the Co-Agents
shall have no powers, duties, responsibilities or liabilities
under this Agreement and shall not constitute an agent,
trustee or fiduciary. The Co-Agents shall, however in their
individual capacities as Banks, have the same rights and
powers under this Agreement as any other Bank and may exercise
those rights and powers as though they were not Co-Agents.
23.2 Majority Underwriters' directions
In the exercise of any right or power and as to any matter not
expressly provided for by this Agreement each of the Facility Agent and
the Swingline Agent shall act in accordance with the instructions of
the Majority Underwriters and shall be fully protected in so doing. In
the absence of any such instructions, each of the Facility Agent and
the Swingline Agent may act or refrain from acting and discretions as
are reasonably incidental thereto. Any such instructions shall be
binding on all the Banks.
23.3 Relationship
(a) The relationship between each of the Arranger and the Banks
and each of the Facility Agent and the Swingline Agent is that
of principal and agent only.
(b) The relationship between each of the Borrowers and the Tender
Panel Agent is that of principal and agent only.
(c) Nothing in this Agreement shall constitute any Agent or the
Arranger as trustee or fiduciary for any Contracting Party or
any other person and none of the Agents shall be liable to any
Contracting Party for any breach by any other Contracting
Party of any Finance Document.
11
23.4 Delegation
Each of the Agents may act under the Finance Documents through its
officers and employees.
23.5 Documentation
None of the Agents, the Arranger nor any of their respective officers,
employees and agents shall be responsible to any Contracting Party for:
(a) the legality, validity, effectiveness, adequacy, accuracy or
completeness of any Finance Document or any other document; or
(b) the collectability of amounts payable under the Finance
Documents; or
(c) the accuracy of any statements (whether written or oral) made
in or in connection with the Finance Documents or any other
document.
23.6 Default
The Facility Agent shall not be required to ascertain or enquire as to
the performance or observance by the Company or any Borrower of the
terms of any Finance Document or any other document. The Facility Agent
shall not be deemed to have knowledge of the occurrence of any Default
unless it has received notice from a Contracting Party describing the
Default and indicating that the notice is a "Notice of Default". If the
Facility Agent receives a Notice of Default, or any of their respective
officers engaged in its agency functions under this Agreement has
actual knowledge of a Default, the Facility Agent shall promptly give
notice thereof to the Banks. The Facility Agent shall take or refrain
from taking such action with respect to the Default as shall be
reasonably directed by the Majority Underwriters. Until the Facility
Agent has received directions, it may (but shall not be obliged to)
take or refrain from taking such action in connection with the Default
as it shall see fit.
23.7 Exoneration
Neither the Agents nor any of their officers, employees or agents shall
be liable to any other Contracting Party for any action taken or
omitted under or in connection with any Finance Document unless caused
by its or their negligence or wilful misconduct.
23.8 Reliance
The Agents may:
(a) rely on any communication or document reasonably believed by
it to be genuine and correct; and
(b) engage, pay for and rely on legal or other professional
advisers selected by it in good faith.
23.9 Credit approval
Each of the Banks severally represents and warrants to each of the
Agents and the Arranger that it has made its own independent
investigation and assessment of the financial condition and affairs of
each Borrower and its related entities in connection with its
participation in this Agreement and has not relied and will not rely on
any Agent or the Arranger to keep under review on its behalf the
financial condition, creditworthiness, condition, affairs, status or
nature of each Borrower or any of
12
its related entities. Each Bank represents, warrants and undertakes to
each of the Agents, and the Arranger that it shall continue to make its
own independent appraisal of the creditworthiness of each Borrower and
its related entities while any amount is or may be outstanding or any
Commitment is in force.
23.10 Information
(a) The Facility Agent shall supply each Bank with a copy of any
documents received by it under Clause 20 (but the Facility
Agent is not obliged to review or check their accuracy or
completeness) and, if requested by a Bank, supply that Bank
with a copy of all documents received by the Facility Agent
under Clause 4 or Clause 29.10.
(b) None of the Agents and the Arranger shall have any duty:
(i) either initially or on a continuing basis to provide
any Bank with any credit or other information
concerning the financial condition or affairs of any
Borrower or any of its related entities whether
coming into its possession or that of any of its
related entities before the Signing Date or at any
time thereafter; or
(ii) in the case of the Facility Agent and unless
specifically requested to do so by a Bank, to request
any certificates or other documents from any
Borrower.
(c) No Agent need disclose any information relating to the Company
or any of its related entities if the disclosure would or
might, in the opinion of the Agent, constitute a breach of any
law or any duty of secrecy or confidence.
23.11 The Agents and the Arranger individually
(a) If it is also a Bank, each of the Agents and the Arranger
shall have the same rights and powers under this Agreement as
any other Bank and may exercise those rights and powers as
though it were not an Agent or the Arranger.
(b) Each of the Agents and the Arranger may accept deposits from,
lend money to and generally engage in any kind of banking,
trust, advisory or other business with any Borrower and any of
its related entities and accept and retain any fees payable by
any Borrower or any of its related entities for its own
account (including, without limitation, any fees payable by
any Borrower in connection with any Facility) without
liability to account to any other Financial Institution.
23.12 Indemnities
(a) Subject to paragraph (C) below, the Borrowers shall indemnify
the Tender Panel Agent on demand for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses and disbursements of any kind which are
imposed on, incurred by, or asserted against, the Tender Panel
Agent in any way relating to or arising out of its acting as
the Tender Panel Agent under the Finance Documents except for
disbursements arising in the ordinary course of its acting as
the Tender Panel Agent which are intended to be covered by the
fee referred to in Clause 24.5.
(b) Subject to paragraph (C) below, each Underwriter shall
indemnify the Facility Agent and the Swingline Agent on
demand (to the extent not reimbursed by a Borrower and without
prejudice to any liability of the Borrowers under this
Agreement) for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses
13
and disbursements of any kind which may be imposed on,
incurred by or asserted against the Facility Agent or the
Swingline Agent in anyway relating to or arising out of its
acting as the Facility Agent or the Swingline Agent, as the
case may be, under any of the Finance Documents (including,
without limitation, the charges, expenses and stamp Taxes
referred to in Clauses 25 and 26). The indemnification by
each Underwriter shall be pro rata to its Commitment at the
time of the relevant demand or, if the Total Commitments have
been reduced to zero at the time of the demand, at the time
when the Total Commitments last exceeded zero.
(c) No Contracting Party shall be liable for any portion of the
foregoing arising from the relevant Agent's negligence or
wilful misconduct.
23.13 Legal restrictions
Each of the Agents may refrain from doing anything which would or
might, in its opinion, be contrary to the law of any jurisdiction or
any official directive or render it liable to any person, and may do
anything which in its opinion is necessary to comply with any such law
or directive.
23.14 Resignation
Any Agent may resign by giving notice to the Banks and the Borrowers in
which case the Majority Underwriters in consultation with the Company
or the Company in consultation with the Underwriters (in the case of
the Tender Panel Agent) may appoint a successor Agent. If the Majority
Underwriters or the Company (as the case may be) have not within 30
days after notice of resignation, appointed a successor Agent which
accepts the appointment, the retiring Agent will have the right to
appoint a successor Agent. The resignation of the retiring Agent and
the appointment of any successor Agent will both become effective upon
the successor Agent notifying all the Contracting Parties in writing
that it accepts the appointment, whereupon the successor Agent will
succeed to the position of the retiring Agent and the term "Facility
Agent", "Tender Panel Agent" or "Swingline Agent", as appropriate,
shall mean the successor Agent. This Clause 23 shall continue to
benefit a retiring Agent in respect of any action taken or omitted by
it under this Agreement while it was an Agent.
23.15 Banks/Facility Offices/Addresses for Notices
(a) Each Agent and the Company and Company's Agent may treat each
Bank named as a Contracting Party as such a party, as entitled
to payments under this Agreement and as acting through its
Facility Office until it has received five Business Days'
notice from the Bank to the contrary.
(b) The Facility Agent shall maintain a list of the Banks and
their Facility Offices and addresses for notices, and shall,
promptly upon request from any Contracting Party from time to
time, supply a copy of the list to that Contracting Party.
23.16 Removal of Agents
The Majority Banks may remove an Agent and appoint a successor Agent
upon 90 days prior written notice to such Agent, the Facility Agent (if
such Agent is not the Facility Agent) and the Company. The removal of
an Agent and the appointment of any successor Agent will both become
effective upon the successor Agent notifying all the Contractual
Parties in writing that it accepts the appointment, whereupon the
successor Agent will succeed to the position of the retiring Agent and
the term "Facility Agent", "Tender Panel Agent" or "Swingline Agent",
as appropriate, shall mean
14
the successor Agent. This Clause 23 shall continue to benefit an Agent
who is removed in respect of any action or omitted by it under this
Agreement while it was an Agent.
15
SIGNATORIES
Company
COMDISCO, INC. (on behalf of itself and on behalf of those Additional Borrowers
party to the Facility Agreement)
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
16
Extending Banks
NATIONAL WESTMINSTER BANK PLC
By: XXX XXXXXX
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
BARCLAYS BANK PLC
By: XXXX XXXXXXXX
BHF-BANK ATKIENGESELLSCHAFT
By: XXXXX XXXX XXXXX XXXXXX
BAYERISCHE HYPOTHEKIEN-UND WECHSEL-BANK AG,
NEW YORK BRANCH
By: XXXXXX X. XXXX
BAYERISCHE VEREINSBANK
By:XX X. XXXXXXX XXXXXX XXXXX
17
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCH
By: XXXXXX X. XXXXXXXX XXXX X. XXXXXXX
NORDDEUTSCHE LANDESBANK GIROZENTRALE
By: XXXXX XXXX XXXXXXX X. XXXXXX
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH
By: XXXXXXX X. XXXXXX XXXXX XXXXXXXXX
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, Tender Panel Agent and Swingline Agent
NATIONAL WESTMINSTER BANK PLC
By: XXX XXXXXX
Letter of Credit Agent
BARCLAYS BANK PLC
By: XXXX XXXXXXXX
18
