SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Filed pursuant to Section 13 or 15(d) of
THE SECURITIES EXCHANGE ACT OF 1934
February 15, 1995
Date of Earliest Event Reported
COMDISCO, INC.
(a Delaware Corporation)
6111 North River Road
Rosemont, Illinois 60018
Telephone (708) 698-3000
Commission file number 1-7725
I.R.S. Employer Identification Number 36-2687938
Item 7. Financial Statements and Exhibits
(c) Exhibits
10.01 Revolving Credit Facility for Comdisco, Inc. and National Westminster
Bank PLC as arranger and administrative agent and Barclays Bank PLC, Credit
Lyonnais, Union Bank of Switzerland as co-agents.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this Current Report on Form 8-K to be signed on its
behalf by the undersigned hereunto duly authorized.
COMDISCO, INC.
Date: February 15, 1995 by: /s/ David J. Keenan
David J. Keenan
Vice President and
Corporate Controller
<PAGE>
THIS FACILITY AGREEMENT is dated June 4, 1991 and made BETWEEN:
(1) COMDISCO,INC.of 6111 North River Road, Rosemont, Illinois 60018 as
borrower and drawer (the "COMPANY");
(2) NATIONAL WESTMINSTER BANK PLC of National Westminster Tower, 25 Old
Broad Street, London EC2N 1HQ as arranger (in this capacity the "ARRANGER");
(3) THE BANKS whose names appear in Parts I, II, III and IV of Exhibit A
as, respectively, underwriters, swingline banks, issuing banks and tender
panel members;
(4) NATIONAL WESTMINSTER BANK PLC of National Westminster Tower, 25 Old
Broad Street, London EC2N 1HQ as facility agent (in this capacity the
"FACILITY AGENT") and as tender panel agent (in this capacity the "TENDER
PANEL AGENT");
(5) NATIONAL WESTMINSTER BANK PLC of 175 Water Street, New York, N.Y.
10038, U.S.A. as swingline agent (in this capacity the "SWINGLINE AGENT"); and
(6) BARCLAYS BANK PLC of 75 Wall Street, New York, NY 10265 as letter of
credit agent (in this capacity the "LETTER OF CREDIT AGENT").
1. INTERPRETATION
1.1 TERMS DEFINED
In this Agreement:
"ACCEPTANCE COMMISSION RATE"
in relation to a Tender Panel Member and a Bill, means the rate of acceptance
commission bid by the Tender Panel Member for the acceptance of the Bill.
"ADDITIONAL BORROWER"
means a Borrower which has become a Borrower in accordance with Clause 29.11.
"ADDITIONAL COST"
in relation to an Advance denominated in Sterling, (other than an Advance
maintained in Euro-Sterling) means the cost imputed to the Bank making the
Advance of compliance with the Mandatory Liquid Assets requirements of the
Bank of England during the Term of the Advance, expressed as a rate per annum
and calculated in accordance with Exhibit C.
"ADJUSTED CD RATE"
means, as of any date, the rate per annum (rounded upwards, if necessary, to
two decimal places) determined by the Facility Agent to be equal to the sum of
(1)(A) the CD Bid Rate as of such date, divided by (B) 1 minus the Reserve
Requirement on such date, plus (if the relevant Bank is FDIC insured) (2) the
FDIC Assessment Rate in effect on such date.
"ADVANCE"
means:
(a) when designated "UNDERWRITTEN", an advance made or to be made by an
Underwriter under the Underwritten Advance Facility referred to in Clause
2.1(a);
(b) when designated "UNCOMMITTED", an advance made or to be made by a
Tender Panel Member under the Uncommitted Advance Facility referred to in
Clause 2.1(b);
(c) when designated "SWINGLINE", an advance made or to be made by a
Swingline Bank under the Swingline Advance Facility referred to in Clause
2.1(d);
(d) when designated "COMMITTED", an Underwritten Advance or a Swingline
Advance; and
(e) without any designation, any of the above advances, as the
context requires.
"AFFILIATE"
in relation to a person, means any Subsidiary or holding company of that
person, and any other Subsidiary of that holding company.
"AFFILIATED BANK"
in relation to a Bank, means any other Bank which is an Affiliate of the Bank,
unless either Bank notifies the Facility Agent and the Company that it is not
to be regarded as the other's Affiliated Bank for the purposes of this
Agreement.
"AGENT"
means the Facility Agent, the Tender Panel Agent, the Swingline Agent or the
Letter of Credit Agent.
"AGGREGATE MATERIAL AMOUNT"
means, at any time, an amount equal to the higher of (i) five per cent. of
Consolidated Tangible Net Worth of the Company and its Subsidiaries at such
time and (ii) U.S. $25,000,000.
"ANNIVERSARY"
means December 30 in any year.
"APPLICABLE RATE"
means, on any day, the higher of:
(a) the Prime Rate; and
(b) the aggregate of the Federal Funds Rate and nought point five per
cent. (0.5),
on that day.
"AVAILABLE FACILITY AMOUNT"
means, at any time, the Total Commitments at that time less the Original
Dollar Amount of the then outstanding Utilisations which have not fallen due
for repayment or payment (as appropriate) (including for this purpose the
Letter of Credit Outstandings), but in the case of the determination of the
Available Facility Amount at the date of delivery of a Request or at any time
between then and the related Utilisation Date, it shall be adjusted as
follows:
(a) the Original Dollar Amount of any other Utilisation which is to be
made on or before the relevant Utilisation Date and having a Maturity Date
falling after the relevant Utilisation Date shall be deducted;
(b) the Original Dollar Amount of any Utilisation which has been made
and which will have fallen due for repayment or payment (as appropriate) on or
before the relevant Utilisation Date shall be added;
(c) the amount of any reduction or cancellation of the Total
Commitments which is then scheduled to occur during the proposed Terms or
Tenor of the Utilisation shall be deducted;
(d) the aggregate amount of all Existing Facility Outstandings which
will fall due for repayment or payment (as appropriate) under the Existing
Facility Agreement (calculated as an Original Dollar Amount in accordance with
the Existing Facility Agreement) after the Utilisation Date shall be deducted;
and
(e) the Original Dollar Amount of any Utilisation (both as determined in
accordance with the Existing Facility Agreement) which is to be made on or
before the relevant Utilisation Date under this Facility Agreement and having
a Maturity Date determined under the Existing Facility Agreement falling after
the relevant Utilisation Date under this Facility Agreement shall be deducted.
"BANK"
means any of the Underwriters, Swingline Banks, Issuing Banks and Tender Panel
Members.
"BENEFICIARY"
means Manufacturers Hanover Trust Company of New York or its successor as
Depositary or such other person as may be appointed a Depositary under a CP
Programme and approved in accordance with this Agreement, being the
beneficiary in whose favour a Letter of Credit is issued for the benefit of
the holders of Commercial Paper.
"BILL"
means a Sterling bill of exchange drawn by a Borrower, substantially in the
form of Exhibit I accepted or to be accepted by a Tender Panel Member under
the Uncommitted Bankers' Acceptance Facility.
"BORROWER"
means the Company or any Additional Borrower and shall include Finance in its
capacity as an Issuer.
"BORROWERS' AGENT"
means the agent of the Borrowers, being a wholly owned subsidiary of the
Company, appointed under Clause 29.11(b) and any successor appointed
thereunder.
"BUSINESS DAY"
means a day (other than a Saturday or a Sunday) on which banks are open for
business in each of:
(a) London, Chicago and New York City (except (i) in the case of any
Utilisation of the Letter of Credit Facility (not being for the first issue of
a Letter of Credit or for a Utilisation of a Letter of Credit for a CP
Programme backing Euro-commercial paper), for which purpose, banks in New York
City and Chicago only need be open for business and (ii) 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,
(b) in the case of a determination of LIBOR for an Advance denominated
in Sterling and maintained in Euro-Sterling, Paris, and
(c) (if on that day a payment is to be made in an Optional Currency
other than Sterling) the principal financial centre of the country of that
Optional Currency.
"BUY-LEASE"
means:
(a) any lease of any Equipment; or
(b) any conditional sale or similar arrangement providing for the sale
of any Equipment and for the retention by the vendor of a Security Interest in
such Equipment to secure the payment of amounts payable thereunder by the
purchaser,
but in each case only if a member of the Group is the lessee or purchaser
thereunder (or assignee of any thereof).
"CAPITALIZED LEASE"
means any lease, the obligations to pay rent or other amounts under which
constitute Capitalized Lease Obligations.
"CAPITALIZED LEASE OBLIGATIONS"
means, as to any person, the obligations of such person to pay rent or other
amounts under a lease of (or other agreement conveying the right to use) real
and/or personal property, which obligations are required to be classified and
accounted for as a capital lease on a balance sheet of such person, under
generally accepted accounting principles and, for the purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with generally accepted accounting
principles.
"CASH COLLATERAL ACCOUNT"
means an account to be established by the Facility Agent under Clause 21.3 as
security for, and for application by, the Facility Agent for the reimbursement
of payments made under a Letter of Credit by an Issuing Bank.
"CASH EQUIVALENT INVESTMENT"
means at any time:
(a) any evidence of indebtedness issued or guaranteed by the Government
of the United States of America;
(b) commercial paper, maturing not more than three months after the date
of issue and rated P-2 or better by Moody's Investors Service, Inc. or A-2 or
better by Standard & Poor's Corporation, issued by a corporation (excepting
the Company or any Affiliate) organised under the laws of any State of the
United States of America; and
(c) any certificate of deposit or acceptance, maturing not more than six
months thereafter, issued by a commercial banking institution which is a
member of the Federal Reserve System and which has a combined capital and
surplus and undivided profits of not less than $500,000,000.
"CD ADVANCE"
means an Advance denominated in Dollars in respect of which the relevant
Borrower has elected interest be calculated by reference to the Adjusted CD
Rate.
"CD BID RATE"
means in relation to any CD Advance, the rate for the relevant Rate Fixing
Date determined by the Facility Agent to be the arithmetic mean (rounded
upwards, if necessary, to two decimal places) of the secondary market offered
rates of the Reference Dealers as of 10.00 a.m., New York City time, on such
Rate Fixing Day for negotiable certificates of deposit of major United States
money center banks with a remaining maturity as close as possible to the
specified term and in an amount determined by the Facility Agent to be
comparable with the amounts in which such certificates of deposit are normally
issued by such banks to major institutional investors. As used herein, "THE
SPECIFIED TERM" means the Term of the CD Advance in respect of which the CD
Bid Rate is to be determined on a particular Rate Fixing Day.
"CODE"
means the Internal Revenue Code of the U.S.A. of 1986, as amended, and any
successor statute of similar import, together with the regulations thereunder,
in each case as in effect from time to time. Reference to sections of the
Code shall be construed to also refer to any successor sections.
"COMMERCIAL PAPER"
means commercial paper issued by an Issuer under a CP Programme.
"COMMITMENT"
in relation to a Bank, means:
(a) if the Bank is an Underwriter, the amount in Dollars set opposite
its name; or
(b) if the Bank is not an Underwriter, the amount in Dollars set
opposite the name of its Affiliated Bank (if any) which is an Underwriter,
in Part I of Exhibit A, to the extent not cancelled or reduced under this
Agreement (including by virtue of any Underwriter declining to extend its
Commitment pursuant to Clause 2.4 of this Agreement) (together the "TOTAL
COMMITMENTS").
"COMMITTED BANK"
means an Underwriter or a Swingline Bank.
"COMPLIANCE CERTIFICATE"
means a compliance certificate, including all Attachments annexed thereto,
substantially in the form of Exhibit P duly executed by the Chief Executive
Officer or Chief Financial Officer or Controller of the Company together with
such changes therein as the Facility Agent may from time to time reasonably
request, provided, however, that such certificate shall demonstrate compliance
with the covenants contained in Clause 20.ll of this Facility Agreement.
"COMPOSITE 3.30 P.M. QUOTATIONS FOR U.S. GOVERNMENT SECURITIES"
means the daily statistical release designated as such, or any successor
publication, published by the Federal Reserve Bank of New York.
"CONSOLIDATED NET INCOME"
shall have the meaning given to it in accordance with generally accepted
accounting principles.
"CONSOLIDATED TANGIBLE NET WORTH"
means at any time the consolidated capital (including in excess of par value
but excluding the effect of deferred translation adjustment and retained
earnings of the Company and its Subsidiaries less all franchises, patents,
patent applications, trademarks, goodwill, research and development expense,
the after-tax effect of unamortized debt discount and any other unamortised
debt expense and other intangibles, calculated in accordance with Attachment 1
to the form of Compliance Certificate set forth in Exhibit P.
"CONTINENTAL AGREEMENT"
means the credit agreement dated as of March 1, 1990 made between the Company,
Comdisco Disaster Recovery Services, Inc., various financial institutions and
Continental Bank, N.A. as agent.
"CONTRACT"
means:
(a) any lease of any Equipment;
(b) any conditional sale or similar arrangement providing for the sale
of any Equipment and for the retention by the vendor of a Security Interest in
such Equipment to secure the payment of amounts payable thereunder by the
purchaser; or
(c) any note (and any related loan or other agreement) evidencing a loan
to finance the acquisition (including an acquisition theretofore made) of any
Equipment and secured by a Security Interest in such Equipment,
but in each case only if a member of the Group is the lessor, vendor or lender
thereunder (or assignee of any thereof) and "RELATED CONTRACT" shall, when
used with reference to any Equipment, mean the Contract covering or secured by
such Equipment.
"CONTRACTING PARTY"
means any of the Financial Institutions and the Borrowers.
"CONTRACT RECEIVABLE"
means all amounts due and to become due from time to time under each Contract
from the person who is lessee, purchaser or borrower thereunder to a member of
the Group, whether or not subject to any termination or similar option, and
including, without limitation, in the case of any lease, all amounts payable
as rental or pursuant to any purchase, renewal, termination or other
obligation or option of such person, in the case of any conditional sale
agreement or similar arrangement, all amounts payable as purchase price
(including interest) or pursuant to any other obligation or option of such
person, and in the case of any note evidencing a loan, all amounts payable as
principal and interest or pursuant to any other obligation or option of such
person; and "RELATED CONTRACT RECEIVABLE" shall mean the Contract Receivable
with respect to a Contract.
"CP DEALER"
means in respect of the U.S. CP Programme any of the following Merrill Lynch
Money Markets, Inc. and Barclays de Zoete Wedd Securities, Inc. and in respect
of the Euro- CP Programme any of the following NatWest Capital Markets
Limited, Barclays de Zoete Wedd Ltd., UBS Phillips & Drew Securities Ltd., or,
in each case any substitute or additional dealer appointed under Clause 9.24.
"CP NOTES"
means short-term commercial paper notes issued by an Issuer under a Depositary
Agreement pursuant to a CP Programme constituting (in respect of the U.S. CP
Programme), "COMDISCO BAB Notes" and "COMDISCO UBS Notes" and (in respect of
the Euro-CP Programme) "COMDISCO NWB Notes" or "COMDISCO FINANCE NWB Notes".
"CP PROGRAMME"
means a U.S. domestic ("US") or Euro-commercial ("Euro") paper programme, the
terms of which (including the paying agency and depositary arrangements) shall
have been approved in accordance with Clause 9 by the Facility Agent, the
Letter of Credit Agent and the Issuing Bank whose Letter of Credit will be
supporting the same, pursuant to which the Company or Finance (guaranteed by
the Company) will issue Commercial Paper through the relevant CP Dealers.
"CUMULATIVE NET LOSSES"
means the aggregate consolidated net losses of the Group set out in
Attachment 7 to the form of Compliance Certificate set forth in Exhibit P.
"DEALER AGREEMENT"
means the agreement between the Company and each CP Dealer in relation to each
CP Dealer's purchase of CP Notes.
"DEFAULT"
means any Event of Default and any event or condition which, with the giving
of notice to the Company, lapse of time or fulfilment of any other applicable
condition (or any combination of the foregoing), would constitute an Event of
Default.
"DELAYED NOTE"
means any CP Note that is not presented for payment before close of business
(local time) on the l5th day after the Stated Maturity Date of such CP Note
(or if such l5th day is not a Business Day, on the first Business Day
thereafter)
"DEPOSITARY AGREEMENT"
shall mean the depositary agreement or, in the case of a Euro-CP Programme,
issuing and paying agency agreement entered into or to be entered into among
the depositary or issuing and paying agent, as the case may be, named therein
(the "DEPOSITARY") the Company and in the case of a Euro-CP Programme, Finance
and an Issuing Bank or, if not a party, to be accepted by an Issuing Bank in
respect of a CP Programme and approved in accordance with Clause 9 below.
"DOLLARS" or "U.S.$"
means the lawful currency for the time being of the U.S.A.
"EARNINGS FROM CONTINUING OPERATIONS BEFORE TAXES"
means at any time the earnings from continuing operations of the Company and
its Subsidiaries
before any adjustments for or on account of any income taxes.
"ELIGIBLE BILL"
means a Sterling bill of exchange eligible for rediscounting at the Bank of
England.
"ELIGIBLE BILL DISCOUNT RATE"
in relation to any Bill, means the rate (as determined by the Facility Agent
at or about 10.30 a.m. on the date of receipt by the Facility Agent of the
relevant Request or on its Utilisation Date as the case may be) at which
Eligible Bills of an equivalent tenor, accepted by banks whose acceptances are
for the time being treated as eligible acceptances by the Bank of England, can
be discounted in the London Discount Market at that time.
"ELIGIBLE CONTRACT"
shall mean any Contract which meets each of the following requirements:
(a) the lessee, purchaser or borrower thereunder (the "OBLIGOR") is not
an affiliate of the Company;
(b) the Company or a Subsidiary is (i) lawful owner of the Equipment
subject to such Contract or (ii) if such Contract is a sublease, the lessee of
such Equipment or (iii) the holder of a perfected security interest in such
Equipment; and
(c) the related Obligor shall not have:
(i) asserted any then existing offset, counterclaim or other defence
with respect to any amount due or to become due under such Contract,
(ii) failed (which failure is then continuing) to pay in full any
amount payable by it, or to perform fully any other obligation to be performed
by it, under such Contract within 90 days after such amount is due and payable
or such other obligation is to be performed, or
(iii) become insolvent, or generally failed to pay its debts as they
become due, or admitted in writing its inability or refusal to pay its debts
as they matured; or consented to or acquiesced in the appointment of a
trustee, receiver or other custodian for it or any of its property; or, in the
absence of such application, consent or acquiescence, had a trustee, receiver
or other custodian appointed for such Obligor or for a substantial part of its
property; or had any bankruptcy, reorganisation, debt arrangement or other
proceeding under any bankruptcy or insolvency law, or any dissolution or
liquidation proceeding, instituted by or against such Obligor; or taken any
corporate action to authorise any of the foregoing; PROVIDED, HOWEVER, that
any Contract which is not eligible solely due to the provisions of this clause
(iii) shall become eligible upon affirmation of such Contract by the Obligor
(or the trustee for or other successor-in-interest to the Obligor) in an
appropriate proceeding.
"EQUIPMENT"
means tangible personal property (whether such tangible personal property is
defined as inventory, equipment or farm products under the Illinois Uniform
Commercial Code) used in business (i.e., used for any purpose other than
personal, family or household purposes); and "RELATED EQUIPMENT" shall, when
used with reference to any Contract, mean the Equipment subject to or securing
such Contract.
"ERISA"
means the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute of similar import, together with the regulations thereunder,
in each case as in effect from time to time.
"ERISA AFFILIATE"
means any corporation, trade or business that is, along with the Company, a
member of a controlled group of corporations or a controlled group of trades
or businesses, as described in sections 414(b) and 414(c), respectively, of
the Code or section 4001 of ERISA.
"EVENT OF DEFAULT"
means any of the events specified in Clause 21.1.
"EXISTING FACILITY AGREEMENT"
means the facility agreement dated l2th May, l989 as amended by Supplemental
Agreements dated 20th April l990 and 28th September l990 between the Company,
the Borrowers' Agent, the Arranger, certain Banks as defined therein and
others.
"EXISTING FACILITY OUTSTANDINGS"
in relation to a Bank, means the amount (calculated as an "Original Dollar
Amount" in accordance with the Existing Facility Agreement) of any Utilisation
which remains outstanding to such Bank under the Existing Facility Agreement.
"FACILITY"
means:
(a) when designated "UNDERWRITTEN ADVANCE", the committed multicurrency
advance facility referred to in Clause 2.1(a);
(b) when designated "UNCOMMITTED ADVANCE", the uncommitted multicurrency
advance facility referred to in Clause 2.1(b);
(c) when designated "UNCOMMITTED BANKERS' ACCEPTANCE", the uncommitted
Sterling bankers' acceptance facility referred to in Clause 2.1(c);
(d) when designated "SWINGLINE ADVANCE", the committed Dollar swingline
advance facility referred to in Clause 2.1(d);
(e) when designated "LETTER OF CREDIT", the committed letter of credit
facility referred to in Clause 2.l(e);
(f) when designated "COMMITTED", any of the above committed facilities,
as the context requires;
(g) when designated "UNCOMMITTED", either of the above uncommitted
facilities, as the context requires; and
(h) without any designation, any of the above facilities, as the context
requires.
"FACILITY AGENT'S SPOT RATE OF EXCHANGE"
means, on any day, the Facility Agent's spot rate of exchange for the purchase
of the relevant Optional Currency in the London Foreign Exchange Market with
Dollars at or about 11.00 a.m. on that day.
"FACILITY OFFICE"
in relation to a Bank, means:
(a) the office(s) of the Bank notified to the Facility Agent prior to
the Signing Date; or
(b) in the case of a Bank which becomes a Contracting Party after the
Signing Date, the office(s) of the Bank notified by the Bank to the Facility
Agent before or upon becoming a Bank; or
(c) any other office(s) notified by the Bank to the Facility Agent in
accordance with Clause 29.7,
in each case as the office(s) through which the Bank will perform all or any
of its obligations under the Finance Documents provided that in the case of
the Issuing Banks such office shall always be located in New York City or
Chicago.
"FDIC ASSESSMENT RATE"
means, at any time, the rate at which premiums for deposit insurance are then
charged by the Federal Deposit Insurance Corporation (or any successor) to the
relevant Bank for Dollar time deposits after giving effect to any rebates or
credits granted to the relevant Bank during the 12 month period immediately
preceding the relevant determination date, as reasonably estimated by the
relevant Bank and advised to the relevant Borrower through the Facility Agent.
"FEDERAL FUNDS RATE"
means, on any day, the weighted average of the rates on overnight federal
funds transactions with member banks of the Federal Reserve System arranged by
Federal funds brokers as published by the Federal Reserve Bank for such day,
or if such day is not a Business Day, for the next preceding Business Day (or,
if such rate is not so published for any such day, the average rate charged to
the Swingline Agent on such day on such transactions as reasonably determined
by the Swingline Agent). Each change in the interest rate on a Swingline
Advance which results from a change in the Federal Funds Rate shall become
effective on the day on which the change in the Federal Funds Rate becomes
effective.
"FINAL MATURITY DATE"
in relation to an Underwriter, means, subject to Clause 2.4, December 31,
1997.
"FINANCE"
means Comdisco Finance (Nederland) B.V.
"FINANCE DOCUMENT"
means any of this Agreement, the Depositary Agreement(s), the Dealer
Agreement(s), the Bills, the Letter(s) of Credit and the Substitution
Certificates.
"FINANCIAL INSTITUTION"
means the Arranger, an Agent or a Bank.
"FISCAL YEAR"
means a fiscal year of the Company.
"FIXED CHARGE COVERAGE RATIO"
means the ratio set forth in, and calculated in accordance with, Attachment 2
to the form of Compliance Certificate attached hereto as Exhibit P.
"GLOBAL AGREEMENT (ORIGINAL)"
"GLOBAL AGREEMENT"
means the multicurrency credit agreement originally dated as of July 12, 1990
and currently between the Company, Citibank, N.A. as Administrative Agent,
NationsBank of North Carolina, N.A. as Bid Agent and various other financial
institutions, as amended and restated pursuant to a Third Amended and Restated
Global Credit Agreement dated as of December 20, 1994, together with a
multicurrency U.S. $150,000,000 credit agreement dated as of December 20, 1994
between the Company, Citibank, N.A. as Administrative Agent, NationsBank of
North Carolina, N.A. as Lending Agent and the other financial institutions
named therein."
"GROUP"
means the Company and the Subsidiaries for the time being.
"GUARANTEE"
of any person means any agreement or undertaking pursuant to which such person
guarantees, assumes or otherwise becomes secondarily, contingently or
otherwise liable for any obligation of any other person (other than by virtue
of endorsement of instruments in the ordinary course of deposit or collection)
and shall include, without limitation, any agreement to supply or advance
funds or property to such other person by any means or to acquire indebtedness
of such other person.
"INDIVIDUAL MATERIAL AMOUNT"
means, at any time, an amount equal to the higher of (i) two per cent. of the
Consolidated Tangible Net Worth of the Company and its Subsidiaries at such
time and (ii) U.S. $10,000,000.
"ISSUER"
means an issuer of CP Notes, being either the Company under a U.S. CP
Programme or the Company or Finance (guaranteed by the Company) under a
Euro-CP Programme.
"ISSUING BANK"
means a bank or financial institution whose name appears in Part III of
Exhibit A or any successor issuing entity which has been properly appointed
under this agreement or any side agreement between the Company and the initial
Issuing Banks, in its capacity as an issuer of Letters of Credit under the
Letter of Credit Facility.
"LETTER OF ACCESSION"
means a letter of accession executed or to be executed by an Additional
Borrower substantially in the form of Exhibit L (Part I) and/or by a
Borrowers' Agent substantially in the form of Exhibit L (Part II).
"LETTER OF CREDIT"
means an irrevocable transferable direct pay letter of credit substantially to
the effect set out in Exhibit Q issued by an Issuing Bank under the Letter of
Credit Facility in favour of a Beneficiary in respect of Commercial Paper
issued by an Issuer under a CP Programme (as such Letter of Credit may be
amended or substituted from time to time).
"L/C AMOUNT"
means in relation to a particular Letter of Credit and a Bank an amount equal
to that proportion of the Letter of Credit Outstanding which such Bank assumes
and which is to be calculated in accordance with Clause 9.12 and which shall
include an amount of the Letter of Credit Outstanding retained by the Issuing
Bank for its own account (together the "TOTAL L/C AMOUNTS").
"L/C OBLIGATION"
means in relation to an Issuing Bank the amount set opposite its name in Part
III of Exhibit A (together the "TOTAL L/C OBLIGATIONS").
"LETTER OF CREDIT OUTSTANDING"
means, at any time, the aggregate actual and/or contingent liability of an
Issuing Bank under a Letter of Credit issued by it (the aggregate of such
liabilities of all the Issuing Banks under all the Letters of Credit being the
"LETTER OF CREDIT OUTSTANDINGS").
"LIEN"
means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other) or preference, priority or other
security agreement or preferential arrangement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction).
"LIBOR"
means in relation to a LIBOR Advance, the arithmetic mean (rounded upwards, if
necessary, to two decimal places) of the respective rates, as supplied to the
Facility Agent at its request, quoted by the Reference Banks to leading banks
in the London (or, if the Advance is maintained in Euro-Sterling, Paris)
Interbank Market at or about 11.00 a.m. (London or Paris time, as the case may
be) on the Rate Fixing Day for the offering of deposits in the currency of the
Advance, in an amount comparable to one-third of the amount, and for a period
equal to the Term, of the relevant Utilisation. If any of the Reference Banks
is unable or otherwise fails to supply an offered rate by 11.30 a.m. on the
Rate Fixing Day, LIBOR shall, subject to Clause 14.1(a)(i), be determined on
the basis of the quotations of the remaining Reference Banks.
"LIBOR ADVANCE"
means an Advance in respect of which the relevant Borrower has requested
interest be calculated by reference to LIBOR.
"LIMITED RECOURSE OBLIGATION"
means any obligation of any member of the Group with respect to which a
portion, but not all, of the liability of that member of the Group thereunder
constitutes a Non-Recourse Obligation.
"LOCAL ADVANCE"
means an Advance denominated in an Optional Currency in respect of which the
relevant Borrower has requested via the Company or the Borrowers' Agent
interest be calculated by reference to a basis (other than LIBOR) to be agreed
between the Company or the Borrowers' Agent and the Facility Agent.
"MAJORITY UNDERWRITERS"
means, at any time, Underwriters whose Commitments:
(a) then aggregate more than 66 2/3 per cent. of the Total Commitments;
or
(b) if the Total Commitments have been reduced to zero, aggregated more
than 66 2/3 per cent. of the Total Commitments immediately before the
reduction.
"MARGIN STOCK"
has the meaning ascribed to such term in Regulation U of the Board of
Governors of the Federal Reserve System or any regulations substituted
therefor, as from time to time in effect.
"MATERIAL SUBSIDIARY"
means any Subsidiary of the Company which has total assets, determined in
accordance with generally accepted accounting principles, of at least
$20,000,000 at such time of calculation, it being understood that, subject as
provided below, once a Subsidiary is a Material Subsidiary it shall remain as
such for the purposes of this Agreement notwithstanding any subsequent
decrease in its total assets; provided that if a Material Subsidiary ceases to
have total assets of at least U.S.$20,000,000 and the board of directors of
the Company determines that such Subsidiary is not material to the
consolidated financial condition or operations of the Group and has notified
the Facility Agent in writing of the same, such Subsidiary shall no longer be
a Material Subsidiary (unless such Subsidiary subsequently has total assets of
at least $20,000,000).
"MATURITY DATE"
means:
(a) in relation to an Advance, the last day of its Term;
(b) in relation to a Bill, the last day of its Tenor; and
(c) in relation to a Letter of Credit, its Stated Termination Date (as
defined therein).
"NET BOOK (OR RESIDUAL) VALUE"
has the meaning provided in Clause 20.11(h) hereof.
"NET CASH PROVIDED BY OPERATING ACTIVITIES RATIO"
means the ratio set forth in, and calculated in accordance with, Attachment 6
to the form of Compliance Certificate attached hereto as Exhibit P.
"NON-RECOURSE OBLIGATION"
means any obligation of any member of the Group incurred to finance any
Equipment or the purchase or lease thereof which is secured by a Security
Interest in (and only in) such Equipment, any related Contract, the related
Contract Receivable, proceeds of insurance covering such Equipment, any
insurance policy from insurers which are not affiliated with the Company
insuring a portion of the related Contract Receivable, or any combination of
the foregoing, but only if:
(a) such Non-Recourse Obligation is payable solely out of the security
therefor;
(b) no member of the Group in any respect guarantees or otherwise
becomes responsible for the performance of any warranty or agreement of the
person obligated under any related Contract; and
(c) no member of the Group has any liability in connection with such
Non-Recourse Obligation, except for warranties as to genuineness of
signatures, the Company's or the relevant Subsidiary's title to or interest in
the related Equipment and similar warranties as not being inconsistent with a
Non-Recourse Obligation with respect to such Equipment and the related
Contract.
"OPTIONAL CURRENCY"
means, subject to Clause 11.1, any currency (other than Dollars or European
currency units) which is freely transferable and convertible into Dollars in
the London foreign exchange market.
"ORIGINAL DOLLAR AMOUNT"
means:
(a) in relation to any Utilisation or Advance denominated in Dollars,
its principal amount; or
(b) in relation to any Utilisation or Advance denominated in an
Optional Currency or any Utilisation comprising a Bill or Bills, its
principal amount (or in the case of Bills, its discounted amount,
determined by reference to the Eligible Bill Discount Rate on the date of
receipt by the Facility Agent of the relevant Request) in Dollars if it had
been translated into Dollars on the basis of the Facility Agent's Spot Rate
of Exchange on the date of receipt by the relevant Agent of the relevant
Request; or
(c) in relation to any Letter of Credit, its Stated Amount.
"PRESCRIBED TIME"
in relation to each sub-Clause or paragraph of each of Clauses 5 to 9
(inclusive), means the time(s) set opposite the number of that sub-Clause or
paragraph under the heading "TIME" in Exhibit O or, in the case of Local
Advances, such times as shall be agreed by the Company or the Borrowers' Agent
with the Facility Agent from time to time.
"PRIME RATE"
means, on any day, the prime commercial lending rate from time to time
publicly announced by the Swingline Agent, which rate may not be the lowest
rate charged to its borrowers. Each change in the interest rate on a
Swingline Advance which results from a change in the Prime Rate shall become
effective on the day on which the change in the Prime Rate becomes effective.
"RATE FIXING DAY"
means:
(a) in relation to any CD Advance or any Advance denominated in Sterling
(unless it is maintained in Euro-Sterling), its Utilisation Date; and
(b) in relation to any other Advance, the second Business Day before its
Utilisation Date.
"RECOURSE LIABILITIES RATIO"
means the ratio set forth in, and calculated in accordance with, Attachment 4
to the form of Compliance Certificate attached hereto as Exhibit P.
"REFERENCE BANKS"
means, subject to Clause 29.5, the principal London offices of National
Westminster Bank PLC, Barclays Bank PLC and Union Bank of Switzerland or, in
the case of a determination of LIBOR in relation to Advance denominated in
Sterling and maintained in Euro-Sterling, the principal Paris offices of the
above banks.
"REFERENCE DEALERS"
means (a) for the purposes of determining the CD Bid Rate, three leading
nonbank dealers in negotiable Dollar certificates of deposit in New York City
selected by the Facility Agent, in consultation with the Company, and (b) for
the purposes of determining the Federal Funds Rate, three leading brokers of
Federal funds transactions in New York City selected by the Facility Agent, in
consultation with the Company.
"REMARKETING REVENUES"
shall have the meaning provided in Clause 20.ll(h) hereof.
"REQUEST"
means:
(a) when designated "UNDERWRITTEN ADVANCE", a request, substantially in
the form of Exhibit D, made by a Borrower in accordance with Clause 5.1, to
utilise the Underwritten Advance Facility;
(b) when designated "UNCOMMITTED ADVANCE", a request, substantially in
the form of Exhibit E, made by a Borrower in accordance with Clause 6.1, to
utilise the Uncommitted Advance Facility;
(c) when designated "UNCOMMITTED BANKERS' ACCEPTANCE", a request,
substantially in the form of Exhibit F, made by a Borrower in accordance with
Clause 7.1, to utilise the Uncommitted Bankers' Acceptance Facility;
(d) when designated "SWINGLINE ADVANCE", a request, substantially in
the form of Exhibit G, made by a Borrower in accordance with Clause 8.1, to
utilise the Swingline Advance Facility;
(e) when designated "LETTER OF CREDIT", a request, substantially in the
form of Exhibit H Parts 1 or 2 made by the Company in accordance with Clause
9.1 to utilise the Letter of Credit Facility; and
(f) without any designation, any of the above requests, as the context
requires.
"REQUESTED AMOUNT"
in relation to a Request, means the amount of the Utilisation requested in the
Request and, for the avoidance of doubt, in the case of a Request for a
Utilisation comprising Bills, the amount of the Utilisation requested in the
Request shall mean the principal amount of such Bills rather than the
discounted amount.
"REQUIREMENT(S) OF LAW"
shall mean as to any person, the certificate of incorporation and by-laws or
other organizational or governing documents of such person, and any law,
treaty, rule or regulation, or determination of an arbitrator or a court or
other governmental authority, in each case applicable to or binding upon such
person or any of its property or to which such person or any of its property
is subject.
"RESERVE REQUIREMENT"
means, for any date, the average rate at which reserves (including any
marginal, supplemental or emergency reserves) are required to be maintained on
such date under Regulation D by member banks of the Federal Reserve System in
New York, New York U.S.A. with deposits exceeding U.S. $1,000,000,000 against
nonpersonal Dollar time deposits in an amount of U.S. $l00,000 or more the
tenor of which are comparable to the relevant Term.
"SAME DAY FUNDS"
means Dollar funds settled through the New York Clearing House Interbank
Payments System or such other same day funds for payment in Dollars as the
Facility Agent may specify to the Company as being customary at the time for
the settlement of international transactions in New York City of the type
contemplated by this Agreement.
"SECURITY INSTRUMENT"
means any mortgage, deed of trust, security agreement, amendment or supplement
thereto, financing statement, continuation statement, chattel mortgage,
chattel mortgage note assignment, pledge agreement, or other agreement
providing for, evidencing or perfecting any security interest in real or
personal property.
"SECURITY INTEREST"
means any Lien, encumbrance or security interest of any kind whatsoever,
whether arising under a Security Instrument or as a matter of law, judicial
process or otherwise.
"SIGNING DATE"
means the date of this Agreement.
"SPECIFIED SUBSIDIARY"
means a Subsidiary whose name and registered office is set out in Part I of
Exhibit B and which may become an Additional Borrower pursuant to Clause
29.11.
"STATED AMOUNT"
means, in relation to a Letter of Credit, the maximum aggregate amount of the
Letter of Credit (as may be decreased in accordance therewith).
"STERLING" or ""
means the lawful currency for the time being of the United Kingdom.
"SUBORDINATED DEBT"
means any unsecured indebtedness for borrowed money of any member of the Group
which is subordinate to the obligations of the Borrowers under the Finance
Documents.
"SUBSIDIARY"
means any person of which or in which the Company or any of its Subsidiaries
own directly or indirectly 50 per cent. or more of:
(a) the combined voting power of all classes of stock having general
voting power under ordinary circumstances to elect a majority of the board of
directors of such person, if it is a corporation;
(b) the capital interest or profits interest of such person, if it is
a partnership, joint venture or similar entity; or
(c) the beneficial interest of such person, if it is a trust,
association or other unincorporated organisation.
Unless the context otherwise requires, references in this Facility Agreement
to "Subsidiary" or "Subsidiaries" shall be deemed to be references to
Subsidiary or Subsidiaries of the Company.
"SUBSTITUTION CERTIFICATE"
has the meaning given to it in Clause 29.4.
"SWINGLINE BANK"
means a bank or financial institution whose name appears in Part II of Exhibit
A, in its capacity as a participant in the Swingline Advance Facility as
referred to in Clause 2.1(d).
"TAXES"
includes all present and future income and other taxes, levies, imposts,
deductions, charges, duties and withholdings and any charges of a similar
nature, together with interest thereon and penalties with respect thereto, if
any, and any payments made on or in respect thereof; "TAXATION" and "TAX"
shall be construed accordingly.
"TENDER PANEL MEMBER"
means a bank or financial institution whose name appears in Part IV of Exhibit
A, and any bank or financial institution which has executed and delivered an
undertaking to the Facility Agent under Clause 29.9, in its capacity as a
participant in either of the Uncommitted Facilities.
"TENOR"
in relation to a Bill or Utilisation comprising Bills, or a Letter of Credit
or Utilisation comprising Letters of Credit means the period for which the
Bill or the Letter of Credit, 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.
"TERM"
in relation to an Advance or Utilisation comprising Advances, means the period
for which it is to be borrowed, as selected by the relevant Borrower in the
relevant Request.
"TOTAL LIABILITIES TO ADJUSTED NET WORTH RATIO"
means the ratio set forth in, and calculated in accordance with, Attachment 3
to the form of Compliance Certificate attached hereto as Exhibit P.
"UNDERWRITER"
means a bank or financial institution whose name appears in Part I of Exhibit
A in its capacity as a participant in the Underwritten Advance Facility.
"UNDERWRITTEN CD ADVANCE"
means an Underwritten Advance which is also a CD Advance.
"UNDERWRITTEN CD MARGIN"
means 0.475 per cent. per annum.
"UNDERWRITTEN LIBOR ADVANCE"
means an Underwritten Advance which is also a LIBOR Advance.
"UNDERWRITTEN LIBOR MARGIN"
means 0.35 per cent. per annum.
"UNENCUMBERED CASH FLOW TO CONTRACTUAL PAYMENTS RATIO"
means the ratio set forth in, and calculated in accordance with, Attachment 5
to the form of Compliance Certificate attached hereto as Exhibit P.
"U.S. AGREEMENT"
means the loan agreement dated April 20, 1990 between the Company, Comdisco
Medical Leasing Group, Inc., various financial institutions and National
Westminster Bank U.S.A., as agent.
"U.S.A."
means the United States of America.
"U.S. $150,000,000 REVOLVING CREDIT FACILITY"
means the Revolving Credit Facility dated December 30, 1994 between the
Company (1), National Westminster Bank PLC as arranger and administrative
agent (2), the Co-Agents (as defined therein) (3), the Banks (as defined
therein) (4), National Westminster Bank PLC as facility agent (5) and National
Westminster Bank PLC as swingline agent (6) in respect of a Revolving Credit
Facility of U.S. $150,000,000.
"UTILISATION"
means all the Advances, Bills or Letters of Credit (or amendments to Letters
of Credit) comprised in a utilisation of a Facility.
"UTILISATION DATE"
means:-
(a) in relation to any Advance or Utilisation comprising Advances, the
date for the making of the Advances;
(b) in relation to any Bill or Utilisation comprising Bills, the date
for the acceptance of the Bills; and
(c) in relation to any Letter of Credit or Utilisation comprising
Letters of Credit, the date for issue of the Letter of Credit or any amendment
thereto,
as specified by the relevant Borrower in the relevant Request.
1.2 CONSTRUCTION
In this Agreement, unless the context otherwise requires:
(a) a reference to "ASSETS" includes property and rights of every kind,
present, future and contingent (including uncalled share capital), and every
kind of interest in an asset;
(b) a reference to "DISCOUNTED AMOUNT" in relation to Bill(s) is the
amount received by the relevant Borrower in accordance with Clause 7.6(d)(ii)
in respect of the Bill(s);
(c) a reference to "INDEBTEDNESS" means with respect to any person all
(i) liabilities or obligations, direct and contingent, which in accordance
with generally accepted accounting principles would be included in determining
total liabilities as shown on the liability side of a balance sheet of such
person at the date as of which indebtedness is to be determined, including,
without limitation, contingent liabilities which, in accordance with such
principles, would be set forth in a specific Dollar amount on the liability
side of such balance sheet, and Capitalized Lease Obligations of such person;
(ii) the shortfall from sublease payables minus sublease receivables listed as
item 2(e) of Attachment 3 of Exhibit P hereto; (iii) discounted lease rentals
(non-recourse) as listed in item 2 of Attachment 4 of Exhibit P hereto; (iv)
liabilities or obligations of others for which such person is directly or
indirectly liable, by way of guaranty (whether by direct guaranty, suretyship,
discount, endorsement, take-or-pay agreement, agreement to purchase or advance
or keep in funds or other agreement having the effect of a guaranty) or
otherwise; and (v) liabilities or obligations secured by liens on any assets
of such person, whether or not such liabilities or obligations shall have been
assumed by it;
(d) a reference to an Advance denominated in Sterling being "MAINTAINED
IN EURO-STERLING" means an Advance in Sterling by a Bank through a Facility
Office situated outside the U.K.;
(e) a reference to a "PERSON" means an individual, a company, a
corporation, a partnership, a joint venture, a trust or unincorporated
organization, joint stock company or other similar organization, a government
or any political subdivision thereof, a court, or any other legal entity,
whether acting in an indvidual, fiduciary or other capacity;
(f) a reference to "PRINCIPAL AMOUNT" in relation to Bill(s) or
Letter(s) of Credit is a reference to the face amount of the Bill(s) or
Letter(s) of Credit as the case may be;
(g) a reference to the "WINDING UP" of a corporation shall be construed
so as to include any equivalent or analogous proceedings under the law of any
jurisdiction in which the company is incorporated or any jurisdiction in which
the company carries on business;
(h) a reference to a Contracting Party or a Reference Bank is, where
relevant and subject to Clauses 23 and 29, a reference to or to include, as
appropriate, their respective successors or assigns;
(i) references to Clauses, Exhibits and Attachments are references
to, respectively, clauses of and exhibits and attachments to this Agreement;
(j) a reference to another agreement shall be construed as a reference
to that other agreement as it may have been, from time to time, amended,
varied, supplemented or novated;
(k) references to "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" are
references to generally accepted accounting principles in the U.S.A.;
(l) a reference to a time of day is, unless otherwise stated, a
reference to London time;
(m) a period of a month or months is the period commencing on the first
day thereof and ending on the numerically corresponding day in the relevant
subsequent month or, if there is no such day, the last day of the relevant
subsequent month; and
(n) the index to and the headings in this Agreement are for convenience
only and shall be ignored in construing this Agreement.
2. FACILITIES
2.1 FACILITIES
Subject to the terms of this Agreement, the Banks grant to the Borrowers the
following facilities:
(a) UNDERWRITTEN ADVANCE FACILITY: a committed short-term multicurrency
advance facility whereby the Underwriters shall, when requested by a Borrower,
make to that Borrower Underwritten Advances;
(b) UNCOMMITTED ADVANCE FACILITY: an uncommitted short-term
multicurrency advance facility whereby a Borrower may, through the Tender
Panel Agent, invite offers from Tender Panel Members to make to that Borrower
Uncommitted Advances;
(c) UNCOMMITTED BANKERS' ACCEPTANCE FACILITY: an uncommitted Sterling
bankers' acceptance facility whereby a Borrower may, through the Tender Panel
Agent, invite offers from Tender Panel Members to accept Bills; and
(d) SWINGLINE ADVANCE FACILITY: a committed Dollar swingline advance
facility whereby the Swingline Banks shall, when requested by a Borrower, make
to that Borrower Swingline Advances.
(e) LETTER OF CREDIT FACILITY: a committed letter of credit facility
whereby an Issuing Bank shall, when requested by the Company, through the
Letter of Credit Agent, issue a Letter of Credit or an amendment to a Letter
of Credit.
2.2 FACILITY LIMITS
(a) The aggregate Original Dollar Amount of all outstanding Utilisations
at any one time shall not exceed the Total Commitments at that time.
(b) The Facilities are not separate and independent and a Utilisation in
respect of any one of the Facilities shall reduce the Available Facility
Amount by the Original Dollar Amount of the Utilisation.
(c) The aggregate amount of Letter of Credit Outstandings shall not
exceed U.S. $
300,000,000or such lesser amount as may apply if an Issuing Bank does not
agree to an extension of the Final Maturity Date under Clause 2.4.
2.3 NATURE OF THE BANKS' RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT
(a) COMMITTED BANKS: No Committed Bank is obliged to make a Committed
Advance or to assume an L/C Amount if it would cause the aggregate of the
Original Dollar Amount of its L/C Amounts and 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. No Issuing Bank is
obliged to issue a Letter of Credit in excess of its L/C obligation.
(b) OBLIGATIONS SEVERAL: The obligations of each Financial Institution
owed under the Finance Documents are several, and failure of a Financial
Institution to carry out those obligations shall not relieve any other party
of its obligations under the Finance Documents. No Financial Institution
shall be responsible for the obligations of any other Financial Institution
under the Finance Documents.
(c) RIGHTS SEVERAL: The obligations of each Borrower towards each of
the Financial Institutions under the Finance Documents are given to each of
them as separate and independent rights, and each Financial Institution may,
except as otherwise stated in this Agreement, separately enforce those rights.
2.4 EXTENSION OF FINAL MATURITY DATES
(a) The Company or the Borrowers' Agent may from time to time notify
the Facility Agent (which shall promptly notify the Underwriters) if it wishes
the Final Maturity Date to be extended. Any such notification to the Facility
Agent must be given at least 60 days prior to an Anniversary and, in the case
of the Final Maturity Date, no later than 90 days prior to the Final Maturity
Date.
(b) Each Underwriter and each Issuing Bank 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 or an
Issuing Bank does so notify, its Final Maturity Date shall be extended by one
year with effect from close of business on the relevant Anniversary (or then
latest Final Maturity Date), regardless of whether or not any other
Underwriters or Issuing Banks also agree. For the avoidance of doubt, an
Underwriter which is also an Issuing Bank or whose Affiliate is an Issuing
Bank shall be capable of agreeing to an extension of the Final Maturity Date
even if it or its Affiliate does not so agree in its capacity as Issuing Bank.
2.5 THE BORROWERS
Each of the Borrowers (other than the Company) irrevocably authorises and
instructs each of the Company and the Borrowers' Agent to give and receive as
agent on its behalf all notices and take such other action as may be necessary
or desirable under or in connection with any Finance Document and confirms
that it will be bound accordingly. Requests may only be given by the Company
or the Borrowers' Agent, and, if the Request is given by the Borrowers' Agent
on behalf of a Borrower, all communications by or to that Borrower in respect
of the Utilisation requested in the Request shall be made via the Borrowers'
Agent. Letter of Credit Requests may only be given by the Company.
3. EXISTING FACILITY AGREEMENT AND PURPOSE OF THE FACILITIES
3.1 PURPOSE OF THE FACILITIES
(a) The proceeds or, in the case of a Letter of Credit Utilisation, the
purpose, 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 Agreement as and when they fall due in accordance with the
terms of the Existing Facility Agreement;
(ii) in the case of Letters of Credit, as credit enhancement for a
CP Programme; and
(iii) applied by each Borrower towards its general corporate
purposes.
(b) Without prejudice to paragraph (a) above and the remaining provisions
of this Agreement, none of the Financial Institutions shall be bound to
enquire as to, nor shall any of them be responsible for, the application by
the Borrowers of the proceeds of any Utilisation.
3.2 CANCELLATION OF THE EXISTING FACILITY AGREEMENT
(a) Upon the Signing Date:
(i) the Company shall and shall procure that each Borrower (as
defined in the Existing Facility Agreement) shall immediately cease to
utilise any of the Facilities under the Existing Facility Agreement and
shall make no further utilisations thereunder; and
(ii) the Company shall immediately cancel the whole of the Total
Commitments (as that term is defined in the Existing Facility Agreement) under
the Existing Facility Agreement in accordance with Clause 9.2 of the Existing
Facility Agreement (and the Banks which are party to the Existing Facility
Agreement hereby waive the requirement of notice of cancellation) and if any
utilized portion of such Total Commitments shall subsequently become available
the Company shall immediately cancel the same.
(b) It is hereby acknowledged by the Contracting Parties that the
undertakings of the Company and each Borrower under this Clause 3.2 are
without prejudice to the outstanding obligations of the Company and such
Borrower under the Existing Facility Agreement but upon the notification by
the Facility Agent pursuant to Clause 4.1(d) all Advances as defined in and
outstanding under the Existing Facility Agreement and which are then owed to
entities which are Banks under this Agreement shall be deemed to be owed under
and pursuant to the terms of this Agreement and be deemed made pursuant to a
Utilisation under this Agreement rather than the Existing Facility Agreement
but with the same interest rate and Maturity Date as applied under the
Existing Facility Agreement.
4. CONDITIONS PRECEDENT
4.1 DOCUMENTARY CONDITIONS PRECEDENT
(a) The obligations of each Agent and each Bank under this Agreement are
subject to the condition that the Facility Agent has received all of the
following in form and substance satisfactory to it:
(i) certified copies of resolutions of the Board of Directors of
the Company authorising or ratifying the execution, delivery and
performance of the Finance Documents to which it is or will be a party;
(ii) certified copies of all documents evidencing any necessary
corporate action, consent, and governmental or regulatory approval (if any)
with respect to the Finance Documents to which the Company is or will be a
party;
(iii) a certificate of the Secretary or an Assistant Secretary of
the Company certifying the names of the officer or officers of the Company
authorised to sign the Finance Documents to which it is or will be a party,
together with a sample of the true signature of each such officer (it being
understood that each Financial Institution may conclusively rely on such
certificate until formally advised by a like certificate of any changes
therein);
(iv) a Certificate of Good Standing for the Company, issued by
the Office of the Secretary of State of Delaware and dated within ten days of
the Signing Date;
(v) certified copies of the Restated Certificate of Incorporation
and By-laws of the Company;
(vi) an opinion of Philip A. Hewes, General Counsel of the Company,
addressed to the Financial Institutions, substantially in the form of Exhibit
M;
(vii) evidence of the acceptance by the process agent specified in
Clause 34 of its appointment under that Clause; and
(viii) a legal opinion from Allen & Overy, English legal
advisers to the Arranger and the Facility Agent, addressed to the Financial
Institutions, substantially in the form of Exhibit N.
(b) Each of the documents specified in paragraphs (a)(i) to (v)
(inclusive) above shall be certified by a duly authorised officer of the
Company as being correct, complete and in full force and effect as at a
date no earlier than the Signing Date.
(c) (i) In respect of the Continental Agreement, each of Barclays
Bank PLC and BHF - Bank shall have received:
(AA) repayment or prepayment, as the case may be,
(together with all funding indemnities provided for thereunder) of all
loans outstanding from such Banks under the Continental Agreement together
with all accrued and unpaid fees owing to such banks under the Continental
Agreement; and
(BB) an agreement in form and substance satisfactory to
it from the Company and the other parties to the Continental Agreement,
cancelling any further liability of such banks under the Continental Agreement;
(ii) in respect of the Global Agreement (Original), Union Bank
of Switzerland shall have received:-
(AA) repayment or prepayment, as the case may be,
(together with all funding indemnities provided for thereunder) of all loans
outstanding from it under the Global Agreement (Original) together with all
accrued and unpaid fees owing to it under the Global Agreement (Original); and
(BB) an agreement in form and substance satisfactory to
it from the Company and the other parties to the Global Agreement
(Original), cancelling any further liability of it under the Global Agreement
(Original); and
(iii) in respect of the U.S. Agreement, the Facility Agent
shall have received evidence satisfactory to it of the cancellation of the U.S.
Agreement, subject only to any condition contained therein relating to the
signing or coming into effect of this Agreement.
(d) The Facility Agent shall promptly notify the Company and the
Banks of receipt of all of the above documents in form and substance
satisfactory to the Facility Agent.
4.2 CONDITIONS PRECEDENT TO EACH REQUEST AND EACH UTILISATION
The obligations of each Agent and each Bank in respect of each Utilisation are
subject to the further conditions precedent that:-
(a) both on the date of the relevant Request and on the relevant
Utilisation Date:
(i) the matters represented by the Borrowers and set out in
Clause 19.1 (other than paragraph (j)) are correct on and as at each of
those dates as if made on each date ,
(ii) no Default has occurred and is continuing or would result
from the Utilisation;
(iii) the Utilisation would not exceed the Available Facility
Amount; and
(iv) the Utilisation would, when added to the most recently
calculated Recalculated Amount (as defined in Clause 11.3), not exceed the
Total Commitments;
and
(b) no more than five Utilisations in respect of the Facilities (other
than the Letter of Credit Facility) may be made on the same day.
5. UTILISATIONS OF THE UNDERWRITTEN ADVANCE FACILITY
5.1 DELIVERY OF UNDERWRITTEN ADVANCE REQUESTS
Subject to the terms of this Agreement, a Borrower may utilise the
Underwritten Advance Facility by the Company or the Borrowers' Agent
delivering to the Facility Agent, not earlier than the fifteenth Business Day
before the proposed Utilisation Date nor later than the Prescribed Time, a
duly completed Underwritten Advance Request.
5.2 FORM OF UNDERWRITTEN ADVANCE REQUESTS
Each Underwritten Advance Request shall specify:
(a) the identity of the Borrower;
(b) the proposed Utilisation Date, which shall be:
(i) a Business Day falling one month or more before the then
latest Final Maturity Date; and
(ii) not within three Business Days before or after the
Utilisation Date specified in any other Underwritten Advance Request(s), but
the Company or the Borrowers' Agent may, subject to the terms of this
Agreement, deliver more than one Underwritten Advance Request having the same
Utilisation Date;
(c) the currency of denomination of the requested Advances, which
shall be Dollars or an Optional Currency; each Underwritten Advance Request
shall request one currency only;
(d) the Requested Amount, which shall:
(i) (A) if the Advances are requested to be denominated in
Dollars, be a minimum of U.S.$10,000,000 and an integral multiple of U.S.
$5,000,000; or
(B) if the Advances are requested to be denominated in
sterling, be an integral multiple of 2,500,000; or
(C) if the Advances are requested to be denominated in an
Optional Currency other than Sterling, be of such minimum amount and
integral multiple as may have been agreed between the Company or the
Borrowers' Agent and the Facility Agent before the delivery of the Request;
and
(ii) not exceed the Available Facility Amount;
(e) the Term of the requested Advances, which shall be:
(i) a period of one, two, three or six months in each case
ending on or before the then latest Final Maturity Date; and
(ii) the same period in respect of all the Advances requested in the
Underwritten Advance Request;
(f) whether the Advances are to be LIBOR Advances or CD Advances; and
(g) the details of the bank and account to which the proceeds of the
Utilisation are to be made available to the relevant Borrower in accordance
with Clause 15.1.
5.3 NOTIFICATION OF UNDERWRITERS
The Facility Agent shall, promptly after receipt by it of a duly completed
Underwritten Advance Request and in any event not later than the Prescribed
Time, notify each Underwriter of the details of the requested Advances and the
amount of that Underwriter's Advance.
5.4 AMOUNT OF EACH UNDERWRITER'S ADVANCE
(a) Subject to paragraph (b) below and to Clause 15.4(i) the amount of an
Underwriter's Advance shall be the proportion of the Requested Amount which
its Commitment bears to the Total Commitments on the relevant Utilisation
Date.
(b) No Underwriter shall be obliged to make an Advance in the amount
calculated in accordance with the ratio referred to in paragraph (a) above if
the aggregate of the Original Dollar Amount of:
(i) the amount of any Existing Facility Outstandings which
fall due for repayment or payment (as appropriate) after the relevant
Utilisation Date;
(ii) the amount of any Utilisation under the Existing
Facility Agreement which is to be made on or before the relevant Utilisation
Date under this Facility Agreement and which will fall due for repayment or
payment (as appropriate) after the relevant Utilisation Date;
(iii) any Advance or Bill that has been or is deemed to have
been, or is to be, made or accepted, as the case may be, by it (including
in its capacity as a Swingline Bank or Tender Panel Member) and its
Affiliated Bank(s) having a Maturity Date which falls after the relevant
Utilisation Date;
(iv) the Advance proposed to be made by it on the relevant
Utilisation Date in accordance with paragraph (a) above;
(v) any other Advance or Bill to be made or accepted, as the
case may be, by it (including in its capacity as a Swingline Bank or Tender
Panel Member) and its Affiliated Bank(s) on the relevant Utilisation Date; and
(vi) its L/C Amount and that of its Affiliated Bank(s) on the
relevant Utilisation Date (taking into account any decrease therein to be
made on that date),
would be in excess of its Commitment at any time during the Term of the
proposed Advance.
(c) If the aggregate amount calculated in accordance with paragraph (b)
above would be so in excess of the Commitment of an Underwriter (the "AFFECTED
UNDERWRITER"), then:
(i) the Affected Underwriter shall be obliged to make an Advance
under this Clause 5 only to the extent that its Commitment will not be
exceeded; and
(ii) the amount of each other Underwriter's Advance shall be
re-calculated in accordance with the ratio referred to in paragraph (a)
above, except that for the purposes of the re-calculation:
(A) the Affected Underwriter's Commitment shall be
deducted from the Total Commitments; and
(B) the amount of the Affected Underwriter's proposed
Advance (if any) shall be deducted from the Requested Amount.
This calculation shall be applied to each Underwriter in turn until the
apportionment of the Requested Amount between the Underwriters is finally
determined.
5.5 PAYMENT OF PROCEEDS
Subject to the terms of this Agreement, each Underwriter shall, on the
relevant Utilisation Date, make its Advance available to the Facility Agent
for the account of the relevant Borrower in accordance with Clause 15.1 and,
subject to Clause 11.1, in the currency requested by the relevant Borrower.
6. UTILISATIONS OF THE UNCOMMITTED ADVANCE FACILITY
6.1 DELIVERY OF UNCOMMITTED ADVANCE REQUESTS
Subject to the terms of this Agreement, any Borrower may utilise the
Uncommitted Advance Facility by the Company or the Borrowers' Agent delivering
to the Tender Panel Agent, not earlier than the fifteenth Business Day before
the proposed Utilisation Date nor later than the Prescribed Time, a duly
completed Uncommitted Advance Request.
6.2 FORM OF UNCOMMITTED ADVANCE REQUESTS
Each Uncommitted Advance Request shall specify:
(a) the identity of the Borrower;
(b) the proposed Utilisation Date, which shall be:
(i) a Business Day falling one month or more before the then
latest Final Maturity Date; and
(ii) not within three Business Days before or after the
Utilisation Date specified in any other Uncommitted Advance Request(s), but
the Company or the Company's Agent may, subject to the terms of this
Agreement, deliver more than one Uncommitted Advance Request having the same
Utilisation Date;
(c) the Requested Amount, which shall:
(i) (A) if the Advances are requested to be denominated in
Dollars, be an integral multiple of U.S.$500,000; or
(B) if the Advances are requested to be denominated in
Sterling, be an integral multiple of 500,000; or
(C) if the Advances are requested to be denominated in an
Optional Currency other than Sterling, be of such minimum amount and
integral multiple as may have been agreed between the Company or the
Company's Agent and the Facility Agent before the delivery of the Request;
and
(ii) not exceed the Available Facility Amount;
(d) the currency of denomination of the requested Advances, which
shall be Dollars or an Optional Currency; each Uncommitted Advance Request
shall request one currency only;
(e) the Term of the requested Advances, which shall be:
(i) a period of one, two, three or six months in each case ending
on or before the then latest Final Maturity Date; and
(ii) the same period in respect of all the Advances requested in the
Uncommitted Advance Request;
(f) whether the Advances are to be LIBOR Advances, CD Advances or Local
Advances;
(g) if the Advances are to be Local Advances, the basis agreed between
the Company or the Borrowers' Agent and the Facility Agent by reference to
which such Local Advances are to bear interest and the Prescribed Times
relating to such Advances as have been similarly agreed; and
(h) the details of the bank and account to which the proceeds of the
Utilisation are to be made available to the relevant Borrower in accordance
with Clause 15.1.
6.3 INVITATIONS TO THE TENDER PANEL MEMBERS
The Tender Panel Agent shall, promptly after receipt by it of a duly completed
Uncommitted Advance Request and in any event not later than the Prescribed
Time, notify the Facility Agent, each Underwriter and each Tender Panel Member
of the details of the requested Advances and invite each Tender Panel Member
to make an offer or offers to make any of those Advances.
6.4 OFFERS FROM TENDER PANEL MEMBERS
(a) Each Tender Panel Member may, but shall not be obliged to, make an
offer or offers (subject to a maximum of three in respect of each Request) to
make any Advances, by delivering to the Tender Panel Agent, not later than the
Prescribed Time, a notice bearing that Tender Panel Member's name and marked
"COMDISCO, INC.-UNCOMMITTED ADVANCES" and specifying:
(i) the relevant Borrower;
(ii) the relevant Utilisation Date; and
(iii) in relation to each offer:
(1) the principal amount of the Advances which it offers to
make, which shall be:-
(A) an integral multiple of U.S.$500,000; or
(B) an integral multiple of 500,000; or
(C) such multiple as may have been agreed between the
Company or the Borrowers' Agent and the Facility Agent before the delivery of
the relevant Request,
as appropriate; and either
(2) the margin (positive or negative), if any, by reference to
LIBOR or the Adjusted CD Rate at which the offer is made, expressed as an
annual percentage rate to four decimal places, or
(3) if the Advances are to be Local Advances, the rate of
interest calculated on the basis agreed between the Company or the Borrowers'
Agent and the Facility Agent.
Offers for the making of Advances which are received by the Tender Panel Agent
later than the Prescribed Time shall be disregarded for the purposes of this
Agreement.
(b) Each offer made by a Tender Panel Member under paragraph (a) above
shall be treated as a separate offer and shall be irrevocable and capable of
acceptance by the relevant Borrower in accordance with Clause 6.5.
(c) Notwithstanding the foregoing provisions of this Clause 6.4, an
offer for the making of Advances by the Tender Panel Agent (or any Affiliate of
the Tender Panel Agent) in its capacity as a Tender Panel Member may only be
made if the Tender Panel Agent or the Affiliate, as the case may be,
notifies its offer or offers to the Company or the Borrowers' Agent not later
than the Prescribed Time. Any such offers not so notified shall be
disregarded for the purposes of this Agreement.
(d) The Tender Panel Agent shall, as soon as practicable and in any
event not later than the Prescribed Time, notify the Company or the
Borrowers' Agent of any valid offers that have been made, specifying in
respect of each offer:
(i) the principal amount of the Advances for which it was made;
(ii) the margin (positive or negative), if any, (or rate of
interest in the case of Local Advances) at which it was made, expressed as an
annual percentage to four decimal places; and
(iii) the identity of the offeror.
6.5 ACCEPTANCE OF OFFERS
(a) (i) If the Tender Panel Agent (or any Affiliate of the Tender
Panel Agent) notifies the Company or the Borrowers' Agent of any offers under
Clause 6.4, the Company or the Borrowers' Agent shall, not later than the
Prescribed Time, notify the Tender Panel Agent of the aggregate principal
amount of the offers which it wishes to accept (the "ACCEPTED AMOUNT"), which
shall be:
(A) an integral multiple of U.S.$500,000; or
(B) an integral multiple of 500,000; or
(C) such integral multiple as the Company or the
Borrowers' Agent and the Facility Agent may have agreed before the delivery
of the relevant Request,
as appropriate, and may, so long as the Available Facility Amount is not
exceeded, exceed the Requested Amount.
(ii) Subject to the terms of this Agreement, each acceptance of
an offer shall be irrevocable and binding on the relevant Borrower and
the relevant Tender Panel Member.
(iii) If the Company or the Borrowers' Agent fails so to notify
the Tender Panel Agent, the Borrower shall be deemed to have elected not to
proceed with the Utilisation.
(b) Each acceptance by the Company or the Borrowers' Agent of the
offers made by the Tender Panel Members shall be made on the basis of
accepting offers in ascending order of their margins or on such other basis
as the Company or the Borrowers' Agent may select but if, as a result, two
or more offers at the same margin would be accepted in part, those offers
shall be accepted rateably in the proportion which their respective
principal amounts bear to each other.
(c) The Tender Panel Agent shall, not later than the Prescribed Time,
notify:
(i) each Tender Panel Member which has made an offer or offers
whether or not its offer or offers have been accepted, in whole or in part,
and, in respect of any offer which has been accepted, of:
(1) the principal amount in respect of which it was accepted;
and
(2) the margin at which it was made;
and
(ii) the Company or the Borrowers' Agent, the Facility Agent and
each Underwriter of the Original Dollar Amount and Term of any Advances to be
made.
6.6 PAYMENT OF PROCEEDS
If the Tender Panel Agent notifies any Tender Panel Member of the acceptance
by a Borrower, in whole or in part, of any offer made by the Tender Panel
Member, then, on the proposed Utilisation Date, that Tender Panel Member shall
make its Advance available to the Facility Agent for the account of the
relevant Borrower in accordance with Clause 15.1 and, subject to Clause 11.1,
in the currency requested by the Company.
7. UTILISATIONS OF THE UNCOMMITTED BANKERS' ACCEPTANCE FACILITY
7.1 DELIVERY OF UNCOMMITTED BANKERS' ACCEPTANCE REQUESTS
Subject to the terms of this Agreement, any Borrower may utilise the
Uncommitted Bankers' Acceptance Facility by the Company or the Borrowers'
Agent delivering to the Tender Panel Agent, not earlier than the fifteenth
Business Day before the proposed Utilisation Date nor later than the
Prescribed Time, a duly completed Uncommitted Bankers' Acceptance Request.
7.2 FORM OF UNCOMMITTED BANKERS' ACCEPTANCE REQUESTS
Each Uncommitted Bankers' Acceptance Request shall specify:
(a) the identity of the Borrower;
(b) the proposed Utilisation Date, which shall be:
(i) a Business Day falling one month or more before the then latest
Final Maturity Date; and
(ii) not within three Business Days before or after the Utilisation
Date specified in any other Uncommitted Bankers' Acceptance Request(s), but a
Borrower may, subject to the terms of this Agreement, deliver more than one
Uncommitted Bankers' Acceptance Request having the same Utilisation Date;
(c) the Requested Amount, which shall:
(i) be an integral multiple of 500,000; and
(ii) not exceed the Available Facility Amount;
(d) the Tenor of the requested Bills, which shall be:
(i) a period of one, two, three or six months in each case ending on
or before the then latest Final Maturity Date; and
(ii) the same period in respect of all the Bills requested in the
Uncommitted Bankers' Acceptance Request;
and
(e) the details of the bank and account to which the proceeds of the
Utilisation are to be made available to the relevant Borrower in accordance
with Clause 15.1.
7.3 INVITATIONS TO THE TENDER PANEL MEMBERS
The Tender Panel Agent shall, promptly after receipt by it of a duly completed
Uncommitted Bankers' Acceptance Request and in any event not later than the
Prescribed Time, notify the Facility Agent, each Underwriter and each Tender
Panel Member of the details of the requested Bills and invite each Tender
Panel Member to make an offer or offers to accept any of those Bills.
7.4 OFFERS FROM TENDER PANEL MEMBERS
(a) Each Tender Panel Member may, but shall not be obliged to, make an
offer or offers (subject to a maximum of three in respect of each Request) to
accept any Bills by delivering to the Tender Panel Agent, not later than the
Prescribed Time, a notice bearing that Tender Panel Member's name and marked
"COMDISCO, INC. - UNCOMMITTED BANKERS' ACCEPTANCES" and specifying:
(i) the relevant Borrower;
(ii) the relevant Utilisation Date; and
(iii) in relation to each offer:
(1) the aggregate principal amount of Bills which the Tender
Panel Member offers to accept, which shall be an integral multiple of
500,000; and
(2) the Acceptance Commission Rate at which the offer is made,
expressed as an annual percentage rate to four decimal places on the
principal amount of each Bill for its Tenor.
Offers to accept Bills which are received by the Tender Panel Agent later than
the Prescribed Time shall be disregarded for the purposes of this Agreement.
(b) Each offer made by a Tender Panel Member under paragraph (a) above
shall be treated as a separate offer and shall be irrevocable and capable of
acceptance by the relevant Borrower in accordance with Clause 7.5.
(c) Notwithstanding the foregoing provisions of this Clause 7.4, an
offer to accept Bills by the Tender Panel Agent (or any Affiliate of the
Tender Panel Agent) in its capacity as a Tender Panel Member may only be
made if the Tender Panel Agent or the Affiliate, as the case may be, notifies
its offer or offers to the relevant Borrower not later than the Prescribed
Time. Any such offers not so notified shall be disregarded for the purposes
of this Agreement.
(d) The Tender Panel Agent shall, as soon as practicable and in any
event not later than the Prescribed Time, notify the relevant Borrower of any
valid offers that have been made, specifying in respect of each offer:
(i) the aggregate principal amount of Bills offered to be accepted;
(ii) the Acceptance Commission Rate at which it was made; and
(iii) the identity of the offeror.
7.5 ACCEPTANCE OF OFFERS
(a) (i) If the Tender Panel Agent (or any Affiliate of the Tender
Panel Agent) notifies the Company or the Borrowers' Agent of any offers under
Clause 7.4, the Company or the Borrowers' Agent shall, not later than the
Prescribed Time, notify the Tender Panel Agent of the aggregate principal
amount of the offers which it wishes to accept (the "ACCEPTED AMOUNT"). The
Accepted Amount shall be an integral multiple of 500,000 and may, so long
as the Available Facility Amount is not exceeded, exceed the Requested Amount.
(ii) Subject to the terms of this Agreement, each acceptance of an
offer shall be irrevocable and binding on the relevant Borrower and the
relevant Tender Panel Member.
(iii) If the Company or the Borrowers' Agent fails so to notify the
Tender Panel Agent, the Borrower shall be deemed to have elected not to
proceed with the Utilisation.
(b) (i) Subject to sub-paragraph (ii) below, each acceptance by the
Company or the Borrowers' Agent of the offers made by the Tender Panel Members
shall be made on the basis of accepting offers in ascending order of their
Acceptance Commission Rates or on such other basis as the Company or the
Borrowers' Agent may select but if, as a result, two or more offers at the
same Acceptance Commission Rate would be accepted in part, those offers shall
be accepted rateably in the proportion which their respective principal
amounts bear to each other.
(ii) The Tender Panel Agent may, in its absolute discretion, round
(either up or down) the aggregate principal amount of Bills to be accepted by
each Tender Panel Member to ensure that the face amount of each Bill is a
minimum of 250,000 and an integral multiple of 10,000.
(iii) Subject to sub-paragraph (ii) above, the Tender Panel Agent
shall ensure that the aggregate principal amount of all the Bills to be
accepted by the Tender Panel Members equals the Accepted Amount.
(c) The Tender Panel Agent shall, not later than the Prescribed Time,
notify:-
(i) each Tender Panel Member which has made an offer or offers
whether or not its offer or offers have been accepted in whole or in part
and, in respect of any offer which has been accepted, of:-
(1) the principal amount in respect of which it was accepted; and
(2) the Acceptance Commission Rate at which it was made;
and
(ii) the Company or the Borrowers' Agent, the Facility Agent and each
Underwriter of the aggregate principal amount of any Bills to be accepted and
also the Original Dollar Amount thereof.
7.6 ACCEPTANCE AND DISCOUNTING OF BILLS
(a) The Tender Panel Agent shall, not later than the Prescribed Time,
deliver to each Tender Panel Member which has made an accepted offer, Bills of
the requisite Tenor and amount, executed on behalf of the Borrower as drawer
and completed by the Tender Panel Agent in accordance with Clause 7.7. Each
Tender Panel Member shall accept the Bills delivered to it.
(b) Each Tender Panel Member which has accepted a Bill shall be
entitled to an acceptance commission calculated in each case at the
applicable Acceptance Commission Rate on the principal amount of the Bill.
(c) Subject to the terms of this Agreement, each Tender Panel Member
may arrange for the Bills accepted by it to be discounted in the London
Discount Market or elsewhere, or discount the Bills itself.
(d) On the Utilisation Date:
(i) the Facility Agent shall notify each Tender Panel Member of the
Eligible Bill Discount Rate not later than the Prescribed Time; and
(ii) each Tender Panel Member shall pay to the Facility Agent for the
account of the Borrower an amount equal to the amount it would have received
as the proceeds of discounting if it had discounted the Bills accepted by it
at the Eligible Bill Discount Rate but shall deduct and retain for its own
account the acceptance commission to which it is entitled under paragraph (b)
above.
(e) The Facility Agent shall account to the Borrower in accordance with
Clause 15.1 for all the amounts received by it from the Tender Panel Members
under paragraph (d) above.
(f) All determinations by the Tender Panel Agent or a Tender Panel
Member under this Clause 7 of amounts of acceptance commission shall be
made on the basis of a year of 365 days and the actual number of days in the
relevant Tenor.
7.7 THE BILLS
(a) Each Borrower shall, upon delivery to the Tender Panel Agent of any
Uncommitted Bankers' Acceptance Request, ensure that the Tender Panel Agent
has a sufficient stock of its Bills to enable the Tender Panel Agent to
proceed with the Utilisation.
(b) Each Bill shall:
(i) be drawn by the relevant Borrower in its own favour and endorsed by
it in blank;
(ii) be undated;
(iii) have the Maturity Date and the principal amount left blank; and
(iv) be claused in such a manner as to comply with the Bank of
England's requirements for Eligible Bills at that time.
(c) Each Borrower irrevocably authorises and requests the Tender Panel
Agent:
(i) to date each of its Bills with the relevant Utilisation Date;
(ii) to insert in each of its Bills the name of the Tender Panel
Member on which it is drawn, its Maturity Date and its principal amount; and
(iii) to deliver the requisite number of duly completed Bills to the
relevant Tender Panel Members for acceptance in accordance with Clause 7.6(a).
7.8 INFORMATION
Each Borrower shall promptly on request supply to the Facility Agent or each
Tender Panel Member which has accepted a Bill, as appropriate:
(a) such information relating to the underlying trade transaction to
which the Bill relates as the Facility Agent or the Tender Panel Member,
through the Facility Agent, may reasonably require; and
(b) such information directly relating to any Bill as may be required of
the Facility Agent or the Tender Panel Member by the Bank of England or any
other fiscal or monetary authority in the United Kingdom.
7.9 ELIGIBLE BILLS
The relevant Borrower shall ensure that each Bill accepted by a Tender Panel
Member is an Eligible Bill.
8. UTILISATIONS OF THE SWINGLINE ADVANCE FACILITY
8.1 DELIVERY OF SWINGLINE ADVANCE REQUESTS
Subject to the terms of this Agreement, any Borrower may utilise the Swingline
Advance Facility by the Company or the Borrowers' Agent delivering to the
Swingline Agent not later than the Prescribed Time a duly completed Swingline
Advance Request (with a copy to the Facility Agent).
8.2 FORM OF SWINGLINE ADVANCE REQUESTS
Each Swingline Advance Request shall specify:
(a) the identity of the Borrower;
(b) the proposed Utilisation Date, which shall be a Business Day
falling before the then latest Final Maturity Date;
(c) the Requested Amount, which shall:
(i) be not less than U.S.$10,000,000 and an integral multiple of
U.S.$5,000,000; and
(ii) not exceed the Available Facility Amount;
(d) the Term of the requested Advances, which shall be:
(i) a period not exceeding seven Business Days ending on a Business
Day on or before the then latest Final Maturity Date; and
(ii) the same period in respect of all the Advances requested in the
Swingline Advance Request; and
(e) the details of the bank and account to which the proceeds of the
Utilisation are to be made available to the relevant Borrower in accordance
with Clause 15.1.
8.3 NOTIFICATION
The Swingline Agent shall, promptly after the receipt by it of a Swingline
Advance Request and in any event not later than the Prescribed Time, notify
the Facility Agent, each Underwriter and each Swingline Bank of the details of
the requested Swingline Advances and each Swingline Bank of the amount of its
Advance.
8.4 AMOUNT OF EACH SWINGLINE BANK'S ADVANCE
(a) Subject to paragraph (b) below and Clause 15.4(i), the amount of
each Swingline Bank's Advance shall be the proportion of the Requested Amount
which its Commitment bears to the Total Commitments on the relevant
Utilisation Date and, for this purpose, the Commitment of a Swingline Bank
shall include that or those of its Affiliated Bank(s) if such Affiliated
Bank(s) is not also a Swingline Bank.
(b) No Swingline Bank shall be obliged to make an Advance in the amount
calculated in accordance with the ratio referred to in paragraph (a) above if
the aggregate of the Original Dollar Amount of:
(i) the amount of any Existing Facility Outstandings which fall due
for repayment or payment (as appropriate) after the relevant Utilisation Date;
(ii) the amount of any Utilization under the Existing Facility
Agreement which is to be made on or before the relevant Utilization Date
under this Facility Agreement and which will fall due for repayment or
payment (as appropriate) after the relevant Utilization Date;
(iii) any Advance or Bill that has been or is deemed to have been,
or is to be, made or accepted, as the case may be, by it (including in its
capacity as an Underwriter or Tender Panel Member) and its Affiliated
Bank(s) having a Maturity Date which falls after the relevant Utilisation
Date;
(iv) the Swingline Advance proposed to be made by it on the relevant
Utilisation Date in accordance with paragraph (a) above;
(v) any other Advance or Bill to be made or accepted, as the case
may be, by it (including in its capacity as an Underwriter or Tender Panel
Member) and its Affiliated Bank(s) on the relevant Utilisation Date; and
(vi) its L/C Amounts and those of its Affiliated Banks on the
relevant Utilisation Date (taking into account any decrease therein to be
made on that date).
would be in excess of its Commitment at any time during the Term of the
proposed Advance.
(c) If the aggregate amount calculated in accordance with paragraph (b)
above would so be in excess of the Commitment of a Swingline Bank (an
"AFFECTED SWINGLINE BANK"), then:-
(i) the Affected Swingline Bank shall only be obliged to make a
Swingline Advance to the extent that its Commitment is not exceeded; and
(ii) the amount of each other Swingline Bank's Advance shall be
re-calculated in accordance with the ratio referred to in paragraph (a) above,
except that for the purposes of the re-calculation:
(1) the Affected Swingline Bank's Commitment shall be deducted from
the Total Commitments; and
(2) the amount of the Affected Swingline Bank's Advance shall be
deducted from the Requested Amount.
This calculation shall be applied to each Swingline Bank in turn until the
apportionment of the Requested Amount between the Swingline Banks is finally
determined.
8.5 PAYMENT OF PROCEEDS
Subject to the terms of this Agreement, each Swingline Bank shall, on the
relevant Utilisation Date, make its Advance available to the Swingline Agent
for the account of the relevant Borrower in Dollars in accordance with Clause
15.1.
9. CP PROGRAMMES AND LETTER OF CREDIT FACILITY
Whether the CP Programme is for U.S. Commercial paper or for Euro-Commercial
paper, the Company and Finance shall comply with the requirements set out in
Clauses 9.1 to 9.4, except as varied by Clause 9.5 in respect of the issue of
Euro-Commercial Paper and unless otherwise agreed by the Facility Agent, the
Letter of Credit Agent and the Issuing Banks.
9.1 APPROVAL OF CP PROGRAMMES
(a) Prior to the Company making any Utilization of the Letter of Credit
Facility the Company shall have presented for approval to the Facility Agent,
the Letter of Credit Agent and the Issuing Bank whose Letter of Credit is to
support the proposed programme:
(i) details of the proposed CP Dealers;
(ii) details of the proposed Depositary;
(iii) copies of the proposed dealer agreements and Depositary
Agreement;
(iv) the name of the Issuing Bank whose Letter of Credit is to
support the proposed programme, such Issuing Bank being National
Westminster Bank PLC in respect of COMDISCO NWB Notes and COMDISCO FINANCE
NWB Notes, Barclays Bank PLC in respect of COMDISCO BAB Notes and Union Bank
of Switzerland in respect of COMDISCO UBS Notes; and
(v) such other information as may be requested.
(b) The Letter of Credit Agent and the Facility Agent and the relevant
Issuing Bank whose Letter of Credit is to support the proposed programme shall
notify the Company within ten Business Days of receipt of the items specified
in paragraph (a) above whether or not they approve the proposed CP Dealers and
Depositary (such approval to be in their absolute discretion) and whether or
not they approve the proposed Dealer Agreements and Depositary Agreements
(such approval not to be unreasonably withheld) and if they all so approve, it
shall constitute a CP Programme for the purposes of the Letter of Credit
Facility. If any one of the foregoing does not so approve, the proposed
programme shall not constitute a CP Programme and no Letter of Credit shall be
issued in support of it.
9.2 ISSUE OF CP NOTES
(a) CP Notes may only be issued in accordance with this Agreement and the
applicable provisions of the relevant Depositary Agreement.
(b) Prior to the first issuance and delivery of the CP Notes in respect of
any particular CP Programme, the Facility Agent, the Letter of Credit Agent,
the relevant Issuing Bank, the Depositary and the Company shall have received
(i) a copy of a letter from Standard and Poor's Corporation and Duff & Phelps,
Inc. stating that the CP Notes when issued under that CP Programme, shall be
rated respectively "A-1+" and "D-1+" and (ii) a legal opinion from Mayer,
Brown & Platt acceptable to the Facility Agent, the relevant Issuing Bank and
the Letter of Credit Agent covering matters relating to the CP Programme and
the relevant Depositary Agreement.
(c) The aggregate Face Amount (as defined in the Letter of Credit) of CP
Notes that may be issued and outstanding under any CP Programme at any time
shall not exceed the Stated Amount of the Letter of Credit to be issued in
support.
(d) The CP Notes shall (i) be dated their date of issuance, (ii) be
issued on a discount basis, (iii) be issuable only as bearer notes without
coupons in the minimum denomination of One Hundred Thousand United States
Dollars ($100,000) and in integral multiples of One Thousand United
States Dollars ($1,000) in excess thereof, (iv) be numbered in the
customary manner of the Depositary, (v) be in a Face Amount which, when
added to the Face Amount of all other CP Notes under that CP Programme
maturing on the same maturity date for such CP Notes would not exceed
$25,000,000, (vi) not be subject to automatic extension, renewal or
rollover and (vii) otherwise have such terms and conditions as shall be set
forth in the instructions provided by the Company to the Depositary pursuant
to the Depositary Agreement. Each CP Note shall mature on a day no later
than the earlier (determined on the date of issuance) to occur of (a) the two
hundred seventieth (270th) calendar day next succeeding the date of
issuance thereof and (b) fifteen (15) calendar days prior to the Stated
Termination Date of the Letter of Credit issued in support thereof (as
defined in the Letter of Credit).
(e) Neither Issuer shall issue, or cause to be issued, CP Notes on any
day unless both before and after giving effect thereto, no Default has
occurred and is continuing. Notwithstanding any provision of this
Agreement or the Depositary Agreement to the contrary, neither Issuer shall
issue, or cause to be issued, any CP Notes upon and after the Company's
receipt of notice from the Facility Agent or the relevant Issuing Bank that
such Issuer is not authorized to issue CP Notes pursuant to the terms of this
Agreement.
(f) For all purposes of this Agreement, Delayed Notes and CP Notes for
the payment of which moneys are on deposit in the Special Account or with
respect to which a drawing has been honored under the Letter of Credit (but
funds for the payment of which have not yet been deposited in the Special
Account) shall be deemed not to be "outstanding".
(g) For the avoidance of doubt, CP Notes issued under the U.S. CP
Programme may be issued through The Depositary Trust Company's book-entry
system, in which event the Depositary and the Company shall follow the
relevant procedures set out in the Depositary Agreement.
(h) Anything in this Agreement, the Notes or the Depositary Agreement to
the contrary notwithstanding, neither Issuer shall issue any CP Notes if the
interest thereon or the discount from the sale price would be, in excess of
any maximum permitted by applicable law. In determining whether or not any
interest payable under the Notes exceeds the maximum rate permitted by
applicable law, any non-principal payment, except payments specifically stated
to be "interest" shall be deemed, to the extent permitted by applicable law,
to be a fee, expense, reimbursement or penalty rather than interest.
9.3 ESTABLISHMENT OF ACCOUNTS RELATED TO CP NOTES
(a) Prior to the initial issuance of any CP Notes, the Company shall
cause the Depositary to establish and at all times maintain at its bank in
New York City a special purpose restricted deposit Account (the "Commercial
Paper Account") in the name of the Company and, in the case of the Euro-CP
Programme, Finance but under the sole dominion and control of the relevant
Issuing Bank over which the relevant Issuing Bank shall have the sole right to
direct withdrawals therefrom. All proceeds of the sale of the CP Notes issued
by the Depositary and deposits (if any) by an Issuer for the purpose of
reimbursing the Issuing Bank for LOC Payments shall be initially deposited by
the Depositary in the Commercial Paper Account. Funds deposited in the
Commercial Paper Account on any day shall, to the extent necessary to
reimburse the relevant Issuing Bank for each payment made by the relevant
Issuing Bank honoring a demand for payment made by the Depositary under the
Letter of Credit and any other amounts payable to the relevant Issuing Bank in
respect of Clause 9 of this Agreement be automatically withdrawn from the
Commercial Paper Account and paid (free of any deductions or withholdings
whatsoever) to the relevant Issuing Bank on such day by deposit to the Letter
of Credit Account (as defined below). Any amounts in the Commercial Paper
Account in excess of the amount necessary to so reimburse the relevant Issuing
Bank shall be automatically withdrawn from the Commercial Paper Account and
transferred by the Depositary to the Company or Finance, as the case may be,
on such day, unless prior to the time such transfer is made the Depositary
shall receive notice from the Facility Agent or the relevant Issuing Bank that
a Default has occurred and is continuing. If such notice has been received by
the Depositary, no such withdrawals or transfers shall be made. In any event,
no payment shall be made out of the Commercial Paper Account prior to ll:00
a.m. on any day.
(b) The Company (and, where applicable, Finance) hereby irrevocably
acknowledges and agrees that the relevant Issuing Bank shall have complete and
absolute control over the Commercial Paper Account and any and all funds on
deposit in, or otherwise to the credit of, the Commercial Paper Account
subject, however, to the applicable provisions of the Depositary Agreement and
this Agreement.
(c) Prior to the initial issuance of any CP Notes under a CP Programme,
the Company (and, where applicable, Finance) shall also cause the
Depositary to establish and at all times maintain at its bank in New York
City a special purpose trust Account for the benefit of the holders from
time to time of the CP Notes under that CP Programme (the "Special Account").
Amounts deposited in the Special Account shall be held in trust by the
Depositary for the benefit of the holders of the CP Notes under that CP
Programme and shall be used solely for the purpose of paying the CP Notes
under that CP Programme. The Issuers shall have no legal, equitable or
beneficial interest in or rights to the Special Account or the funds on
deposit therein. Only funds provided by the relevant Issuing Bank shall be
deposited or held in the Special Account. At no time shall any funds on
deposit in the Special Account be invested.
(d) Prior to the initial issuance of any CP Notes under a CP Programme
the relevant Issuing Bank shall establish with the Depositary a special
Account of the relevant Issuing Bank for the sole and exclusive benefit of
the relevant Issuing Bank (the "Letter of Credit Account"). Funds in the
Letter of Credit Account shall be subject to withdrawal solely by the
relevant Issuing Bank. When the Depositary is required by the terms of the
Depositary Agreement to make a payment to the relevant Issuing Bank such
payment may be made by crediting the amount thereof in immediately available
Dollars to the Letter of Credit Account. All amounts in the Letter of Credit
Account shall be automatically transferred to the account of the relevant
Issuing Bank at its Facility Office. The Issuers shall have no legal,
equitable or beneficial interest in or rights to the Letter of Credit Account
or the funds on deposit therein.
9.4 NOTIFICATIONS BY DEPOSITARY, THE FACILITY AGENT AND THE ISSUING BANK
(a) Each time new CP Notes are issued the Company will cause the
Depositary to notify promptly the relevant Issuing Bank and the Letter of
Credit Agent of (i) the date, the aggregate Face Amount and maturity dates of
the newly issued CP Notes, (ii) the aggregate Face Amount and maturity dates
of CP Notes previously issued and outstanding, (iii) the aggregate Face
Amount and maturity date of all CP Notes then issued and outstanding,
including (without limitation) those which were newly issued. Monthly and,
in the case of (B) below, on such other occasions as may be reasonably
requested by an Issuing Bank, the Company will cause the Depositary to notify
the relevant Issuing Bank and the Letter of Credit Agent of (A) the aggregate
Face Amount and maturity dates of all CP Notes then issued but not yet paid
and (B) the amount of any funds in the Special Account, Commercial Paper
Account and Letter of Credit Account, in each case for the closing date for
the most recent statement for such account received by the Company from the
Depositary as to monthly reports and as to other reports for the ending date
requested.
(b) Each time the Facility Agent or an Issuing Bank gives a notice to
the Company or the Depositary in relation to Clause 9, it shall promptly
send a copy thereof to the Letter of Credit Agent.
9.5 REQUIREMENTS FOR EURO-COMMERCIAL PAPER
(a) The requirements set out in this Agreement shall apply to a Euro-CP
Programme except where stated, and provided that such requirements shall be
varied for a Euro-CP Programme as follows:
(i) The denomination of each CP Note shall be either $500,000 or
$l,000,000;
(ii) the CP Notes may be issued in global or definitive form;
(iii) each CP Note shall mature no earlier than seven days from its
date of issuance nor later than the earlier of (x) l83 days after its date of
issuance and (y) fifteen days prior to the Stated Termination Date of the
Letter of Credit issued in support thereof (as defined in the Letter of
Credit);
(iv) In Clause 9.2(b)(i), a copy of a Letter from Moody's Investors
Service, Inc., stating that the CP Notes when issued under that CP Programme,
shall be rated "P-l", shall be required in place of the letter from Duff &
Phelps, Inc.;
(v) In Clause 9.2(c), the aggregate Face Amount of CP Notes that
may be issued and outstanding under the Euro-CP Programme shall not exceed the
Principal Amount (as defined in the Letter of Credit) of the Letter of Credit
to be issued in support;
(vi) For the avoidance of doubt, the Depositary shall establish a
separate Commercial Paper Account and Special Account in respect of each of
the Company and Finance;
(vii) In Clause 9.3(d), the words "immediately available" in the
fourteenth line shall be replaced by the words "same day".
(viii) In Clause 9.4(a), delete the whole paragraph and insert the
following paragraph in its place:
"Each time new Notes are issued the Company will cause the Depositary to
notify promptly in writing the Issuing Bank, the Letter of Credit Agent, and
the relevant Issuer of (i) the date, the aggregate Face Amount and maturity
dates of the newly issued Notes, (ii) the aggregate Face Amount and maturity
date of Notes previously issued and outstanding, (iii) the aggregate Face
Amount and maturity date of all Notes then issued and outstanding, including
(without limitation) those which were newly issued. Monthly and, in the case
of (BB) below, on such other occasions as may be reasonably requested by the
Issuing Bank, Company shall cause the Depositary to notify in writing each
Issuer, the Issuing Bank and Letter of Credit Agent of (AA) the aggregate Face
Amount and maturity date of all Notes then issued but not yet paid and (BB)
the amount of any funds in the Special Accounts, Commercial Paper Accounts,
and Letter of Credit Account, in each case for the closing date for the most
recent statement for such account received by the relevant Issuer from the
Depositary provided that notifications other than monthly notifications shall
be in respect of the latest date reasonably available".
(ix) In Clause 9.l0(b), the following paragraph shall be inserted:
"(iv) upon becoming aware that Additional Amounts (as defined in the Letter of
Credit) will be payable, the Depositary shall make an Additional Amounts
Drawing (as defined in the Letter of Credit) in an amount equal to the
Additional Amounts (as defined in the Letter of Credit) payable under CP Notes
in respect of which a Maturity Drawing, Acceleration Drawing or Expiration
Drawing has been made and which are not Delayed Notes."
(x) In Clause 9.l3(a), the words "immediately available" in the second
line shall be deleted and the words "same day" inserted in their place and
in the sixth line, the words "by the Depositary" shall be deleted.
(xi) In Clause 9.l5(a), the time 3:00 p.m. (New York time) shall be
deleted and the time l2:00 noon (New York time) inserted in its place.
(xii) In Clause 9.23(a), this paragraph shall apply with the
substitution of Moody's Investors Service, Inc. (and a corresponding P-l
rating) in place of Duff & Phelps, Inc. (D-l rating).
(xiii) In Clause 27.1(a) and Clause 29.l0, the references to Duff &
Phelps, Inc. shall be replaced by references to Moody's Investors Service, Inc.
(b) (i) Each Issuer shall promptly notify the Facility Agent, Letter of
Credit Agent and the relevant Issuing Bank if it becomes required by law to
pay any Additional Amounts (as defined in the Letter of Credit).
(ii) Each Issuer shall make the notification under paragraph (i)
above if it is aware that any Additional Amounts are likely to become payable.
(iii) If notification under paragraphs (i) or (ii) is made, or if,
in the reasonable opinion of the Facility Agent, Letter of Credit Agent or the
relevant Issuing Bank, any Additional Amounts are likely to become payable in
respect of an Issuer, the person holding such opinion shall notify the other
two persons and the Company and, upon receipt by the Facility Agent of such
notification the Facility Agent shall immediately direct the relevant Issuer
and the Depositary not to issue any further CP Notes of such Issuer, provided
that such direction shall not be made until 10 Business Days after the
notification is received by the Facility Agent if (AA) the relevant Issuer
reimburses the Issuing Bank with the amount of any amounts drawn under the
Letter of Credit in respect of Additional Amounts and (BB) the Additional
Amounts paid or estimated by the Facility Agent to be payable in respect of CP
Notes of such Issuer issued up until close of business on the last day of such
l0 day period do not exceed US $1,000,000.
(iv) During the 10 Business Day period referred to in paragraph (iii),
the Facility Agent and the Company shall use their reasonable endeavours to
establish whether the determination referred to in paragraph (v) below can
properly be made. If such determination can be made by the end of such
period, the Facility Agent shall, without prejudice to its rights of future
action in respect of the issue of CP Notes, not make the direction referred to
in paragraph (iii).
(v) The Facility Agent shall not rescind its instructions to cease
issuing CP Notes of any Issuer until it has determined that Additional
Amounts are not payable in respect of CP Notes issued by that Issuer and that
the ratings previously allocated by the relevant rating agencies in respect
of the Euro-CP Programme have been reaffirmed.
9.6 DELIVERY OF LETTER OF CREDIT REQUESTS
Subject to the terms of this Agreement, the Company may utilise the Letter of
Credit Facility by delivering to the Letter of Credit Agent, not later than
the Prescribed Time, a duly completed Letter of Credit Request in the form of
Part I of Exhibit H for the issue of a new Letter of Credit and in the form of
Part 2 of Exhibit H for the amendment (by way of extension of the Maturity
Date or reduction in the Stated Amount only) of a Letter of Credit. The
Company may not request the extension of the Maturity Date of a Letter of
Credit more than once in any thirty day period and if any Letter of Credit has
been cancelled or reduced in amount the Company may not request another Letter
of Credit to be issued by the same Issuing Bank (unless it otherwise agrees in
writing). When a Letter of Credit has been issued, the Stated Amount of that
Letter of Credit cannot be subsequently increased. The Company will not serve
a Letter of Credit Request for the issue of a Letter of Credit for the Euro-CP
Programme until Finance shall have become an Additional Borrower.
9.7 FORM OF LETTER OF CREDIT REQUESTS
Each Letter of Credit Request shall specify:
(a) the identity of the Beneficiary;
(b) the CP Programme for which the Letter of Credit or amendment
thereto is to be issued;
(c) the Issuing Bank for the Letter of Credit or amendment thereto;
(d) the proposed Utilisation Date, which shall be a Business Day
falling one month or more before the then latest Final Maturity Date provided
that, if the Request is for the issue of a Letter of Credit, the proposed
Utilisation Date shall be no later than September 4, 1991 and no Letter of
Credit shall be issued thereafter (otherwise than in substitution for a
Letter of Credit in accordance with its terms or the terms of this Agreement);
(e) if it calls for the issue of a Letter of Credit, the Requested
Amount which shall not:
(i) cause the Letter of Credit Outstandings to exceed
$325,000,000; or
(ii) exceed the Issuing Bank's L/C Obligation; or
(iii) exceed the Available Facility Amount;
(f) the Maturity Date or, in the case of an extension of a Letter of
Credit, the extended Maturity Date of the Letter of Credit which in each case
shall be no later than two Business Days prior to the Final Maturity Date, or
more than twelve months after the Utilisation Date; and
(g) if the Letter of Credit Request is to reduce the Stated Amount of
the Letter of Credit, it shall be accompanied by a Request for Change in
Stated Amount and Reduction Certificate (as defined in the Letter of Credit)
executed and delivered by the Beneficiary of the Letter of Credit and, in the
case of the Request for Change in Stated Amount, the Company.
9.8 NOTIFICATION OF ISSUING BANKS AND OTHERS
(a) The Letter of Credit Agent shall, promptly after receipt by it of a
duly completed Letter of Credit Request (and, where appropriate, accompanying
documents) and in any event not later than the Prescribed Time, notify the
Facility Agent and the relevant Issuing Bank of the details of the Letter of
Credit Request.
(b) The Facility Agent shall, promptly after receipt by it of notice
under Clause 9.8(a) above and in any event not later than the Prescribed Time
notify each Bank of details of the Letter of Credit Request and its L/C
Amount or revized L/C Amount and shall notify the Letter of Credit Agent and
the relevant Issuing Bank of each Bank's L/C Amount or revized L/C Amount in
that Letter of Credit. If the Letter of Credit Request is for first
issuance of a Letter of Credit, the Facility Agent shall also notify the
Letter of Credit Agent of the Available Facility Amount
9.9 ISSUE OF AND AMENDMENTS TO LETTERS OF CREDIT
(a) Following receipt of details of the Letter of Credit Request the
relevant Issuing Bank shall subject to the provisions of this Agreement issue
the Letter of Credit or amendment thereto through its principal office in New
York City or Chicago (as it may in its discretion decide) in accordance with
the Letter of Credit Request provided no Issuing Bank shall be required to
issue a Letter of Credit in respect of more than one CP Programme at any one
time.
(b) If the Stated Amount of a Letter of Credit is to be reduced pursuant
to a Letter of Credit (Amendment) Request, the relevant Issuing Bank shall,
after the effective date of such change require the Beneficiary
simultaneously to surrender the relevant outstanding Letter of Credit to
the relevant Issuing Bank and to accept, in substitution for such Letter
of Credit a substitute irrevocable transferable direct pay letter of credit,
dated such effective date, for an amount equal to the amount to which the
Stated Amount shall have been reduced but otherwise having terms identical
to such Letter of Credit. Alternatively, the relevant Issuing Bank shall,
in its sole discretion, elect to deliver to the Beneficiary a Stated Amount
Amendment in the form of Appendix VI to the Letter of Credit, dated the
effective date of such change in the Stated Amount of the Letter of Credit
and stating the amount to which the Stated Amount has been reduced.
9.10 LETTER OF CREDIT AUTHORITY AND DRAWINGS
(a) Each Issuer hereby irrevocably and unconditionally instructs the
relevant Issuing Bank to perform in accordance with the terms of the Letter of
Credit issued by it, including the making of payments as therein provided and
the automatic reinstatement of all Maturity Drawings (as defined in the Letter
of Credit) paid by the relevant Issuing Bank in accordance with the terms of
its Letter of Credit.
(b) As set forth in the Letter of Credit, the Beneficiary is authorized
to make the following types of drawings under the Letter of Credit:
(i) on (and not before) the Business Day preceding the Stated Maturity
Date of any outstanding CP Notes, the Beneficiary shall make a Maturity
Drawing for the aggregate Face Amount of all such outstanding CP Notes
with such Stated Maturity Date.
(ii) upon receipt by the Beneficiary of an Acceleration Notice from the
Facility Agent, the Depositary shall make an Acceleration Drawing (as defined
in the Letter of Credit) for the aggregate Face Amount of all CP Notes
outstanding on the date of such Acceleration Drawing and in respect of which a
Maturity Drawing has not been made.
(iii) if prior to 15 calendar days before the Stated Termination Date of
a Letter of Credit (the "EXPIRING LETTER OF CREDIT") either (a) such Stated
Termination Date shall not have been extended to a date being the earlier of
(i) twelve months from such Stated Termination Date and (ii) the date being
two Business Days prior to the Final Maturity Date (the "REVISED STATED
TERMINATION DATE") or (b) a new Letter of Credit in substitution for the
Expiring Letter of Credit has not been issued in like amount but with the
Revised Stated Termination Date and to be available for drawing on the
Business Day following the Stated Termination Date of the Expiring Letter of
Credit, then the Depositary shall make an Expiration Drawing (as defined in
the Letter of Credit) for the aggregate Face Amount of all CP Notes
outstanding on the date of such Expiration Drawing and in respect of which a
Maturity Drawing has not been made.
(c) All drawings to be made under the Letter of Credit shall be made by
telecopy or other facsimile communication in the form of Appendices III, IV,
IX (and X in relation to the Euro-CP Programme) to the relevant Letter of
Credit submitted by the Beneficiary addressed to the Issuing Bank and no
further presentation of documentation, including the original Letter of
Credit, need be made; it being understood that the telecopy or other facsimile
communication shall be the sole operative instrument of drawing. The Issuing
Bank may rely upon any such telecopy or other facsimile communication drawing,
which it, in good faith, believes to have been despatched by the Beneficiary.
9.11 PAYMENT OF AMOUNTS DRAWN UNDER THE LETTER OF CREDIT
(a) All payments to be made under a Letter of Credit by the Issuing Bank
shall be paid to the Depositary by the relevant Issuing Bank by its
irrevocably depositing or causing to be deposited to the Special Account the
amount drawn under the relevant Letter of Credit, from the Issuing Bank's own
funds, in immediately available Dollars within the time limits as provided in
the relevant Letter of Credit.
(b) Funds deposited or caused to be deposited by the relevant Issuing
Bank in the Special Account shall be held by the Depositary for the benefit
of each CP Note holder and applied by the Depositary in accordance with the
terms of the Depositary Agreement directly to the payment in full of each CP
Note presented to the Depositary for payment with respect to which demand
was made under the relevant Letter of Credit.
(c) Funds deposited in the Commercial Paper Account on each day shall, to
the extent necessary to reimburse the Issuing Bank for each payment made to
the Depositary under the relevant Letter of Credit, be withdrawn (but not
before ll:00 a.m., New York time) from the Commercial Paper Account and paid
to the relevant Issuing Bank by deposit in the Letter of Credit Account on
each day that such reimbursement is required.
(d) Failure by the Depositary to notify the relevant Issuer of any
drawing under a Letter of Credit or the relevant Issuer's failure to receive
such notice, shall not in any manner whatsoever (i) alter the relevant
Issuer's obligations or the relevant Issuing Bank's or any Bank's rights,
hereunder, or (ii) impose any liability on the Letter of Credit Agent, the
relevant Issuing Bank or any Bank of any sort, or (iii) alter the relevant
Issuing Bank's obligations under the Letter of Credit to the Beneficiary.
(e) All payments made by the Issuing Bank pursuant to the Letter of
Credit shall be made from the general funds of the Issuing Bank and in no
event shall such payments be made with funds obtained from the Company or
Finance.
(f) The Company and, in the case of the Euro-CP Programme, Finance hereby
agrees to indemnify the relevant Issuing Bank and the Banks against any loss
or expense which the relevant Issuing Bank and the Banks may sustain or incur,
as reasonably determined by the relevant Issuing Bank and the Banks, as a
result of the failure of any of the CP Dealers to make timely payment for
newly issued CP Notes on the day of purchase, including any such loss or
expense incurred in connection with the investment or other reemployment of
anticipated receipt of funds.
9.12 L/C AMOUNT OF EACH UNDERWRITER
(a) Subject to paragraph (b) below, when a Letter of Credit is first
issued the L/C Amount of an Underwriter shall be the proportion of the
Requested Amount which its Commitment bears to the Total Commitments on the
relevant Utilisation Date provided that in relation to the Letters of Credit
issued by Barclays Bank PLC and Union Bank of Siwtzerland on August 15, 1991,
Norddeutsche Landesbank Girozentrale shall be deemed to have assumed an L/C
Amount in respect of each such Letter of Credit in the proportion which its
Commitment bears to the Total Commitments on the Effective Date and the L/C
Amounts of the other Underwriters in such Letters of Credit shall be adjusted
accordingly. For any subsequent decrease in the Stated Amount of a Letter of
Credit each Underwriter's L/C Amount shall be adjusted downwards by an amount
equal to the proportion of the amount of the reduction which its L/C Amount
bears to the Total L/C Amounts in that Letter of Credit on the relevant
Utilization Date;
(b) No Underwriter shall be obliged to assume an L/C Amount in the amount
calculated in accordance with the ratio referred to in paragraph (a) above if
the aggregate of the Original Dollar Amount of:
(i) the amount of any Existing Facility Outstandings which fall
due for repayment or payment (as appropriate) after the relevant Utilisation
Date;
(ii) the amount of any Utilisation under the Existing Facility
Agreement which is to be made on or before the relevant Utilisation Date
under this Facility Agreement and which will fall due for repayment or
payment (as appropriate) after the relevant Utilisation Date;
(iii) any Advance or Bill that has been or is deemed to have been,
or is to be, made or accepted, as the case may be, by it (including in its
capacity as a Swingline Bank or Tender Panel Member) and its Affiliated Bank
(s) having a Maturity Date which falls after the relevant Utilisation Date;
(iv) the L/C Amount or adjustment therein proposed to be assumed
by it on the relevant Utilisation Date in accordance with paragraph (a) above;
(v) any Advance or Bill to be made or accepted, as the case may
be, by it (including in its capacity as a Swingline Bank or Tender Panel
Member) and its Affiliated Bank(s) on the relevant Utilisation Date; and
(vi) its other L/C Amounts and that of its Affiliated Bank(s) on the
relevant Utilisation Date (taking into account any decrease therein to be made
on that date),
would be in excess of its Commitment at any time during the Tenor of the
proposed Letter of Credit.
(c) If the aggregate amount calculated in accordance with paragraph (b)
above would be so in excess of the Commitment of an Underwriter (the "AFFECTED
UNDERWRITER"), then:
(i) the Affected Underwriter shall be obliged to assume an L/C Amount or
adjustment therein under this Clause 9 only to the extent that its Commitment
will not be exceeded; and
(ii) the amount of each other Underwriter's L/C Amount or adjustment
therein shall be re-calculated in accordance with the ratio referred to in
paragraph (a) above, except that for the purposes of the re-calculation:
(A) the Affected Underwriter's Commitment shall be deducted from
the Total Commitments; and
(B) the amount of the Affected Underwriter's proposed L/C Amount or
adjustment therein (if any) shall be deducted from the Requested Amount.
This calculation shall be applied to each Underwriter in turn until the
apportionment of the Requested Amount between the Underwriters is finally
determined.
9.13 REIMBURSEMENT OF DRAWINGS UNDER LETTERS OF CREDIT
(a) The Issuer of CP Notes shall pay to the relevant Issuing Bank in
immediately available Dollars the amount of each drawing in each case prior to
l2:00 noon (New York time) on the day when payment of the drawing is required
to be made by the relevant Issuing Bank. Such payment shall include the
amount of immediately available proceeds deposited by the Depositary in the
Commercial Paper Account.
(b) The Issuer of CP Notes shall, if applicable, promptly provide the
relevant Issuing Bank with confirmation in form satisfactory to the relevant
Issuing Bank that it has effected full payment in accordance with paragraph
(a).
(c) If the Issuer of CP Notes is unable to give the confirmation of
payment referred to in paragraph (b), it shall, not later than 11:00 a.m.
(New York time) on the date of payment of a drawing under a Letter of Credit,
confirm to the Letter of Credit Agent (which shall notify the relevant
Issuing Bank and the Facility Agent) that payment of the relevant drawing
will be reimbursed in full on that day.
9.14 PAYMENT UNDER THE SWINGLINE ADVANCE FACILITY
(a) If the Issuer of CP Notes shall not have notified the Letter of
Credit Agent in accordance with Clause 9.13 (c) or the Letter of Credit
Agent shall not have received by 11:00 a.m. (New York time) on that day
irrevocable confirmation of payment instructions satisfactory to it from
the relevant CP Dealer, then the Letter of Credit Agent shall promptly
notify the Swingline Agent and the Company shall be deemed to have issued a
Swingline Advance Request on such date under Clause 8.2 specifying:
(i) such Issuer as borrower;
(ii) the date of payment of the drawing under the Letter of Credit as
the Utilisation Date;
(iii) the Requested Amount being the lesser of (a) the principal
amount of that drawing under the Letter of Credit and (b) the Available
Facility Amount;
(iv) a Term of three days; and
(v) a direction to pay the proceeds of the Swingline Advance to the
relevant Issuing Bank in satisfaction of the Company's obligation under Clause
9.13.
(b) In the event of a deemed Swingline Advance Request, the Swingline
Agent shall notify the Company promptly of the same.
9.15 REIMBURSEMENT FROM THE BANKS
(a) On any Business Day the Depositary will inform the Issuing Bank
by 3:00 p.m. (New York time) if the aggregate of the funds standing to the
credit of the Commercial Paper Account and the Letter of Credit Account is
insufficient to fully reimburse that Issuing Bank for the principal amount
of the drawing made that day under the Letter of Credit. If such
notification is made or if the conditions precedent to the making of a
Swingline Advance cannot be satisfied, the Issuing Bank or the Swingline
Agent, as the case may be, shall promptly notify the Letter of Credit Agent.
(b) If notified under paragraph (a) above before 4:00 p.m. (New York
time) on any day, the Letter of Credit Agent shall notify each Underwriter by
close of business (New York time) on that day. If so notified after
4:00 p.m. (New York time), the Letter of Credit Agent shall notify each
Underwriter by 11:00 a.m. on the next Business Day.
(c) Each Underwriter shall pay to the Issuing Bank its proportion of
the unpaid principal amount of the drawing under such Letter of Credit
which is the proportion which its L/C Amount bears to the Total L/C Amounts
attributable to such Letter of Credit on such date, provided that no
Underwriter (other than the Issuing Bank in its capacity as Underwriter) shall
be obliged to pay the Issuing Bank in respect of that part of a drawing under
the Letter of Credit issued in support of the Euro-CP Programme as is drawn to
pay Additional Amounts (as defined in the Letter of Credit) or in respect of
an Additional Amounts Drawing (as defined in such Letter of Credit). If
notified by the Letter of Credit Agent no later than 5:00 p.m. (New York time)
on any Business Day, each Underwriter shall make such payment by 12:00 noon
(New York time) on the immediately following Business Day and if notified
later than 5:00 p.m. (New York time) on any Business Day then each Underwriter
shall make such payment by close of business the immediately following
Business Day.
9.16 DEEMED ADVANCE AND INTEREST
(a) The Issuer of the relevant CP Notes shall pay interest to the
relevant Issuing Bank on any amount paid by it under a Letter of Credit
which is not reimbursed by the Issuer by 4:00 p.m. (New York time) on the
date of the drawing. Interest shall be determined in accordance with Clause
12.3 (default rate) as if the amount related to a Swingline Advance.
(b) The amounts paid by each Underwriter under Clause 9.15 (including
any amount paid by the Issuing Bank in respect of its L/C Amount) shall be
deemed to be an Advance made to such Issuer bearing interest at a rate
determined in accordance with Clause 12.3 as if it constituted a
Swingline Advance for a Term equal to the shorter of three days and the
period ending on the Final Maturity Date. If such amounts are paid after
the occurrence of a Default falling under Clause 2l.2(d),(e) or (f), such
amounts shall not be deemed an Advance but shall bear interest at a rate
determined in accordance with Clause 12.3 as if they were default amounts
relating to a Swingline Advance.
9.17 INDEMNITY
(a) The Issuer of the relevant CP Notes hereby agrees to pay to the
Facility Agent for the account of each Bank on demand from the Facility Agent
an amount in Dollars equal to each amount paid out by a Bank under Clause 9.15
together with interest thereon or as the case may be to pay the Issuing Bank
on demand from the Facility Agent each amount demanded in accordance with
Clause 9.16(a) above and undertakes to indemnify and hold harmless each
Financial Institution from and against all liabilities, costs, losses, damages
and expenses (except normal overheads) which the Financial Institution may
incur or sustain by reason of or arising in any way whatsoever in connection
with or by reference to the issue of a Letter of Credit or its performance of
the obligations expressed to be assumed under a Letter of Credit.
Notwithstanding the foregoing herein, the Issuers shall have no obligation to
indemnify an Issuing Bank in respect of any liability incurred by such Issuing
Bank (i) arising solely out of the gross negligence or wilful misconduct of
such Issuing Bank, as determined by a court of competent jurisdiction (it
being understood that in making such payment each Issuing Bank's exclusive
reliance on the documents presented to such Issuing Bank in accordance with
the terms of the Letter of Credit as to any and all matters set forth therein,
whether or not any statement or any document presented pursuant to the Letter
of Credit proves to be forged, fraudulent, invalid or insufficient in any
respect or any statement whatsoever, shall not be deemed wilful misconduct or
gross negligence of such Issuing Bank), or (ii) arising solely out of the
wrongful dishonor by such Issuing Bank of proper demand for payment made under
and substantially in conformity with the Letter of Credit issued by it.
(b) The Issuers and each Bank unconditionally and irrevocably:-
(i) authorise and direct each Issuing Bank to pay any demand under
and in accordance with a Letter of Credit without requiring proof of the
agreement of the Issuers or any Bank that the amounts so demanded or paid
are or were due and notwithstanding that an Issuer may dispute the validity
of any such request, demand or payment;
(ii) confirm that each Issuing Bank deals in documents only and shall
not be concerned with the legality of the claim or any other underlying
transaction or any set off, counterclaim or defence as between the Issuers and
the Beneficiary; and
(iii) agree that no Issuing Bank nor any other Bank need have regard to
the sufficiency, accuracy or genuineness of any such demand or any
certificate or statement in connection therewith or any incapacity of or
limitation upon the powers of any person signing or issuing such demand,
certificate or statement which appears on its face to be in order and
agree that no Issuing Bank nor any other Bank shall be obliged to enquire as
to any such matters and may assume that any such demand, certificate or
statement which appears on its face to be in order is correct and properly
made.
9.18 RIGHTS OF CONTRIBUTION AND SUBROGATION
Until all amounts which may be or may become payable under or in connection
with the Finance Documents have been irrevocably paid in full, neither Issuer
nor any other Borrower shall, by virtue of any payment made by it or them
under or in connection with or referable to this Clause 9 or otherwise, be
subrogated to any rights, security or moneys held or received by a Financial
Institution or be entitled at any time to exercise, claim or have the benefit
of any right of contribution or subrogation or similar right against a
Financial Institution. All rights of contribution or similar rights against
any Financial Institution are hereby waived by each Issuer and each other
Borrower.
9.19 WAIVER OF DEFENCES
Subject as provided in Clause 9.l7(a), each Issuer agrees that its obligations
under this Clause 9 shall not be affected by any act, omission, matter of
thing which but for this provision might operate to release or otherwise
exonerate it from its obligations hereunder in whole or in part, including
without limitation and whether or not known to it:-
(a) any time or waiver granted to or composition with a Financial
Institution, the Beneficiary or any other person;
(b) any taking, variation, compromise, renewal or release of, or
refusal or neglect to perfect or enforce, any rights, remedies or securities
available to any Financial Institution or other person or arising under any
Finance Document; and
(c) any variation or extension of or increase in liabilities under any
Finance Document, so that references in this Agreement to a Finance Document
shall include each such variation, extension and variation.
9.20 CONTINUING INDEMNITY
This shall be a continuing indemnity, shall extend to the ultimate balance of
the obligations and liabilities of the relevant Issuer under this Clause 9 and
shall continue in force notwithstanding any intermediate payment in whole or
in part of such obligations or liabilities.
9.21 ADDITIONAL SECURITY
The obligations of the Issuers under this Clause 9 shall be in addition to and
shall not be in any way prejudiced by any collateral or other security now or
hereafter held by any Financial Institution as security or any lien to which
that Financial Institution may be entitled.
9.22 PRESERVATION OF RIGHTS
No invalidity or unenforceability of all or any part of this Clause 9 shall
affect any rights of indemnity or otherwise which any Financial Institution
would or may have in the absence of or in addition to this clause.
9.23 CANCELLATION OF A LETTER OF CREDIT
(a) Notwithstanding any provisions of the Depositary Agreement or any
other document to the contrary, each Issuer agrees not to, and agrees to
cause the Beneficiary not to, cancel a Letter of Credit unless (i) no CP
Notes eligible for payment under the Letter of Credit are outstanding or all
drawings required to be made under the Depositary Agreement and available
under the Letter of Credit have been made and honoured or (ii) the short-
term rating assigned to the CP Notes shall be reduced either below "A1+"
in the case of Standard & Poor's Corporation or "D-1+" (in the case of Duff &
Phelps, Inc.) due to a change in the short-term rating assigned to the
relevant Issuing Bank's short-term debt. In the event of a rating
reduction as described in clause (ii), the Company shall have the right to
obtain a substitute letter of credit in form identical to the Letter of
Credit from another issuer so long as the short term securities issued by or
supported by letters of credit issued by such issuer shall be assigned a
rating of "A1+" and "D-1+" respectively.
(b) Upon cancellation of the Letter of Credit under (i) or (ii) of
paragraph (a) above, the Company shall execute and deliver, and cause the
Depositary to execute and deliver to the Issuing Bank, a Notice of Termination
in the form of Appendix I to the form of the Letter of Credit.
(c) At the close of the relevant Issuing Bank's business (New York
time) on the fifteenth day following receipt by the Issuing Bank from the
Depositary of a Notice of Termination, the Letter of Credit shall terminate
and no further drawings will be or need be honored thereunder.
(d) Upon the exercise of the Company's right in paragraph (a), the
Issuers and the other parties agree to execute any necessary documentation
and carry out any necessary further action for the purpose of enabling an
approved issuer to take over the role and functions of the Issuing Bank
affected by the change in its short-term rating.
9.24 REMOVAL AND APPOINTMENT OF COMMERCIAL PAPER DEALER
With the prior written consent of the Letter of Credit Agent, the Facility
Agent and the relevant Issuing Bank, the Company may from time to time remove
any CP Dealer and appoint a successor CP Dealer. The Company shall make such
request in writing to the Letter of Credit Agent which shall promptly notify
the Facility Agent and the Issuing Banks thereof. The Letter of Credit Agent,
the Facility Agent and the Issuing Banks agree to respond to such written
request of the Company within ten (10) Business Days of their receipt of such
request. If the prior written consent of the Facility Agent, the Letter of
Credit Agent and the relevant Issuing Banks is not obtained such successor may
not be appointed. If such prior written consent of the Facility Agent, the
Letter of Credit Agent and the relevant Issuing Bank is obtained, the
requested successor may be appointed subject to the review and approval by the
Letter of Credit Agent and the relevant Issuing Bank (which approval, as to
the Letter of Credit Agent, shall not be unreasonably withheld) of the form of
the Dealer Agreement between the Company and such successor and such other
matters as the Letter of Credit Agent deems appropriate.
9.25 TERMINATION OF ISSUANCE OF NEW CP NOTES
Upon the occurrence of any of the following, the Facility Agent may, and upon
the request of the Majority Underwriters or the relevant Issuing Bank, the
Facility Agent shall, direct each Depositary, or in the case of an event
specified in any of paragraphs (b) to (g) below affecting a particular
Depositary or particular CP Dealer direct that Depositary so affected or that
Depositary for the CP Programme under which the affected CP Dealer is
operating as such in writing, with a copy to the Company and the relevant
Issuing Bank not to authenticate or deliver any new CP Notes under the
relevant Depositary Agreement:
(a) the occurrence and continuance of a Default;
(b) the Depositary shall be in default under any material provision
of the Depositary Agreement;
(c) the Depositary shall, for any reason, cease to act as depositary
and issuing and paying agent under the relevant Depositary Agreement or such
Depositary Agreement shall, for any reason, cease to remain in full force and
effect.
(d) default by any of the CP Dealers in the payment of any amounts
payable under its dealer agreement with the Company relating to the CP Notes;
(e) default shall occur in the payment when due of any indebtedness or
obligation which exceeds in the aggregate ten Million United States Dollars
(U.S. $10,000,000) (or its equivalent in another currency or currencies)
issued, assumed or guaranteed by the Depositary or any of the CP Dealers and
shall continue beyond any applicable period of grace, or default shall occur
under any indenture, agreement or other instrument under which the same may be
issued, and such default shall continue for a period of time sufficient to
permit the acceleration of the maturity of any such indebtedness;
(f) the Depositary or any of the CP Dealers makes an assignment for the
benefit of creditors, files a petition in bankruptcy, is unable generally to
pay its debts as they come due, is adjudicated insolvent or bankrupt or there
is entered any order or decree granting relief in any involuntary case
commenced against the Depositary or any of the CP Dealers under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or if
the Depositary or any of the CP Dealers petitions or applies to any tribunal
for any receiver, trustee, liquidator, assignee, custodian, sequestrator or
other similar official for the Depositary or any of the CP Dealers or of any
substantial part of their respective properties, or commences any proceeding
in a court of law for a reorganization, readjustment of debt, dissolution,
liquidation or other similar procedure under the law or statutes of any
jurisdiction, whether now or hereafter in effect, or if there is commenced
against the Depositary or any of the CP Dealers any such proceeding in a court
of a law which remains undismissed or shall not be discharged, vacated, or
stayed, or such jurisdiction shall not be relinquished, within sixty (60) days
after commencement, or the Depositary or any of the CP Dealers by any act,
indicates its consent to, approval of, or acquiescence in any such proceeding
in a court of law which remains undismissed or shall not be discharged,
vacated, or stayed, or such jurisdiction shall not be relinquished, within
sixty (60) days after commencement, or the Depositary or any of the CP Dealers
by any act, indicates its consent to, approval or, or acquiescence in any such
proceeding in a court of law, or to order for relief in an involuntary case
commenced against the Depositary or any of the CP Dealers under any such law,
or the appointment of any receiver, administrator, trustee, liquidator,
assignee, custodian, sequestrator or other similar official for the Depositary
or any of the CP Dealers or a substantial part of their respective properties,
or if the Depositary or any of the CP Dealers suffers any such receivership,
administration, trusteeship, liquidation, assignment, custodianship,
sequestration or other similar procedure to continue undischarged for a period
of sixty (60) days after commencement or if the Depositary or any of the CP
Dealers takes any action for the purposes of effecting the foregoing; or
(g) judgment for the payment of money in excess of an aggregate of ten
Million United States Dollars (U.S. $10,000,000) (or its equivalent in another
currency or currencies) shall be rendered against the Depositary or any of the
CP Dealers and the same shall remain undischarged for a period of thirty (30)
consecutive days during which execution shall not be effectively stayed or for
the payment of which a surety bond or other adequate security has not been
obtained in the opinion of the Facility Agent.
With respect to any of the events described in clauses (b) through (g) above,
if the Company effectively, removes the Depositary or such defaulting CP
Dealer, as the case may be, or accepts the Depositary's or defaulting CP
Dealer's, as the case may be, written resignation and appoints a successor
Depositary or CP Dealer, as the case may be (which must be consented to in
writing by the Letter of Credit Agent, the Facility Agent and the relevant
Issuing Bank) then the Company may, subject to the other terms and conditions
of this Agreement, direct such successor Depositary (or in the case of a CP
Dealer default, the existing Depositary) in writing, with a copy to the Letter
of Credit Agent, and the Facility Agent which shall notify the Banks, to
authenticate and deliver new CP Notes in accordance with the Depositary
Agreement.
10. REDUCTION AND CANCELLATION OF THE TOTAL COMMITMENTS
10.1 AUTOMATIC REDUCTION OF EACH UNDERWRITER'S COMMITMENT
The amount of each Underwriter's Commitment shall (if not already so reduced)
be automatically reduced to zero at close of business on the Final Maturity
Date for that Underwriter.
10.2 VOLUNTARY CANCELLATION
(a) (i) Subject to sub-paragraph (ii) below, the Company may, on giving
not less than five Business Days' prior notice to the Facility Agent (which
shall promptly give notice thereof to the other Agents and the Banks), cancel
the Total Commitments in whole or in part (but, if in part, in a minimum
amount of $25,000,000 and in an integral multiple of $1,000,000 if more).
(ii) Any cancellation may only take effect in respect of the
unutilised portion of the Facilities.
(b) Any cancellation in part under this Clause 10.2 shall be applied
against the Commitment of each Underwriter pro rata.
10.3 IRREVOCABLE
(a) Any notice by the Company under this Clause 10 of cancellation of the
whole or any part of the Total Commitments shall be irrevocable and shall
specify the date upon which the cancellation is to become effective and the
amount of the Total Commitments to be cancelled.
(b) No amount of the Total Commitments cancelled under this Agreement may
subsequently be
reinstated.
11. AVAILABILITY OF OPTIONAL CURRENCIES
11.1 CHANGE OF CURRENCY
(a) If, before 9.00 a.m. on the Utilisation Date relative to an Advance
which it is proposed be denominated in an Optional Currency (other than
Sterling which is not maintained in Euro-Sterling), the Facility Agent
receives notice from a Bank that:
(i) it is impracticable for the Bank to fund its Advance in the
proposed Optional Currency in the ordinary course of business in the
London or Paris Interbank Market, as the case may be;
(ii) central bank or other governmental authorisation in the country
of the proposed Optional Currency is required to permit its use by the Bank
(through its relevant Facility Office) for lending under this Agreement and
the authorisation has not been obtained (the Bank having used reasonable
endeavours to obtain it) or is not in full force and effect; or
(iii) the use of proposed Optional Currency is restricted or prohibited
by any request, directive, regulation or guideline of any governmental body,
agency, department or regulatory or other authority (whether or not having the
force of law) in accordance with which the Bank is accustomed to act,
the Facility Agent shall give notice to the Company or the Borrowers' Agent to
that effect before 10.00 a.m. on that day.
(b) If the Facility Agent delivers a notice under paragraph (a) above:
(i) the Company or the Borrowers' Agent and the relevant Bank may
agree that the Advance shall not be made;
(ii) in the absence of agreement, the Advance shall be denominated in
Sterling (but not maintained in Euro-Sterling) or, if the Borrower so
requests, Dollars, during its Term and there shall be substituted in the
definition of "LIBOR" contained in Clause 1.1 for the time "11.00 a.m." the
time "1.00 p.m." and, if the Advance is to be denominated in Dollars, the
"Rate Fixing Day" for the purposes of the definition of LIBOR shall be its
Utilisation Date; and
(iii) in any event, the Company or the Borrowers' Agent, as the case
may be, shall indemnify the Bank against any loss and expense which the
Bank may have incurred as a consequence of the operation of this Clause 11.1.
11.2 NOTIFICATION
The Facility Agent shall notify the Company or the Borrowers' Agent and the
relevant Banks of the Facility Agent's Spot Rate of Exchange and relevant
Original Dollar Amounts promptly upon ascertaining the same.
11.3 RECALCULATION OF ORIGINAL DOLLAR AMOUNTS
(a) Each Underwriter may at any time request the Facility Agent to make
a notional recalculation of the Original Dollar Amount of all Utilisations
outstanding together with all Utilisations in respect of which a Request has
been delivered (the "RECALCULATED AMOUNT") on a specified date (the
"RECALCULATION DATE") on the basis of the Facility Agent's Spot Rate of
Exchange on the Recalculation Date. In the absence of such a request, the
Facility Agent shall be under no obligation to make any such recalculation.
(b) In the event that the Recalculated Amount exceeds the Total
Commitments:
(i) no further Utilisations shall be made and no further Utilisation
Requests delivered until the Facility Agent notifies the Company that such
Utilisation would not cause the Recalculated Amount (as calculated by the
Facility Agent at the request of the Company) to exceed the Total Commitments;
and
(ii) the Company shall forthwith, and in any event within three
Business Days of notice from the Facility Agent, at the discretion of each
individual Bank either, (1) subject to Clause 31.2(a)(iii), prepay (or
procure prepayment of) sufficient Advances, or parts thereof (in the Optional
Currencies in which they are denominated) to cause the Recalculated Amount
to be no greater than the Total Commitments, together with all other amounts
payable under the Finance Documents in respect of such prepayment and/or (2)
pay to the Facility agent on behalf of the Underwriters, for crediting to a
cash collateral account to be established by the Facility Agent, an amount in
Dollars equal to the excess of the Recalculated Amount over the Total
Commitments.
(c) As security for the payment when due of the obligations referred to
above, the Company hereby pledges, charges and assigns and agrees to pledge,
charge and assign all of its right, title and interest in the cash collateral
account referred to above to the Facility Agent for the benefit of the
Underwriters, to the extent permitted by law and without prejudice to any
rights of set-off and agrees on request to enter into such further
documentation as the Facility Agent may reasonably require to give effect to
or to perfect the security created or agreed to be created by this clause and
hereby irrevocably appoints the Facility Agent as its attorney for the
purposes of executing any such documentation on its behalf.
12. INTEREST
12.1 RATE
(a) The rate of interest applicable to each Advance (other than a
Swingline Advance or a Local Advance) for its Term shall be the rate per annum
determined by the Facility Agent to be the aggregate of:
(i) (1) in the case of an Underwritten LIBOR Advance, the
Underwritten LIBOR Margin;
(2) in the case of an Underwritten CD Advance, the Underwritten CD
Margin; or
(3) in the case of an Uncommitted Advance, the margin (if any)
specified in the relevant offer by the relevant Tender Panel Member;
(ii) (1) in the case of a LIBOR Advance, LIBOR relative to the Advance;
or
(2) in the case of a CD Advance, the Adjusted CD Rate relative to
the Advance;
and
(iii) in the case of an Advance denominated in Sterling unless it is
maintained in Euro-Sterling the Additional Cost relative to the Advance.
(b) The rate of interest applicable to each Swingline Advance for its
Term shall be the rate per annum determined by the Swingline Agent to be the
Applicable Rate for each day during the period from and including the
Utilisation Date of the Swingline Advance until but excluding its Maturity
Date.
(c) The rate of interest applicable to each Local Advance for its Term
shall be the rate per annum determined by the Facility Agent by reference to
the basis for calculation of interest agreed between the Company or the
Borrowers' Agent and each of the Banks for such Local Advance and the rate
specified in the relevant offer by the relevant Tender Panel Member.
12.2 DUE DATES
Save as otherwise provided in this Agreement, accrued interest in relation to
each Advance shall be payable by the relevant Borrower on the Maturity Date of
that Advance.
12.3 DEFAULT INTEREST
(a) If a Borrower fails to pay any amount payable by it under this
Agreement or in respect of any Bill on the due date, it shall, on demand by
the Facility Agent from time to time, pay interest on the overdue amount from
the due date up to the date of actual payment, as well after as before
judgment, at a rate, subject to paragraph (c) below, determined by the
Facility Agent to be two per cent. (2%) per annum above the higher of:
(i) the rate applicable to the overdue amount under Clause 12.1(a)
immediately before the due date (if of principal); and
(ii) (A) if the overdue amount relates to a Swingline Advance, the
Applicable Rate; or
(B) in all other cases, the rate which would have been payable if the
overdue amount had, during the period of non-payment, constituted an
Underwritten LIBOR Advance in the currency of the overdue amount made under
this Agreement for successive Terms of up to three months, as the Facility
Agent may determine from time to time (each a "DESIGNATED TERM").
(b) The rate of interest shall be determined:
(i) if calculated by reference to the Applicable Rate, on each day; or
(ii) if calculated by reference to LIBOR, on each Business Day, the
first day of, or two Business Days before the first day of, the relevant
Designated Term, as the Facility Agent may reasonably determine from time to
time.
(c) If the Facility Agent (after consultation with the Reference Banks)
determines that deposits in the currency of the overdue amount are not or were
not, as the case may be, being made available by the Reference Banks to
leading banks in the London Interbank Market in the ordinary course of
business, the rate shall be determined by reference to the cost of funds to
the Reference Banks from such other sources as the Facility Agent (after
consultation with the Reference Banks) may from time to time determine.
(d) Interest shall be compounded monthly (if calculated by reference to
the Applicable Rate) or at the end of each Designated Term (if calculated by
reference to LIBOR).
12.4 BANK BASIS
Interest shall accrue from day to day, and be computed on the basis of a year
of 360 days or, in the case of interest payable in respect of a Swingline
Advance or an amount denominated in Sterling or any other currency for which
it is market practice, 365 days, and, in all cases, for the actual number of
days elapsed.
12.5 NOTIFICATION
Each determination of a rate of interest by the Facility Agent under this
Agreement shall promptly be notified to the relevant Contracting Parties.
13. REPAYMENT AND PREPAYMENT OF ADVANCES AND PAYMENT OF BILLS
13.1 REPAYMENT OF ADVANCES
Each Borrower shall repay each Advance made to it in full on its Maturity Date
to the Facility Agent for the account of the Bank which made the Advance.
13.2 PAYMENT OF BILLS
Each Borrower shall pay an amount equal to the principal amount of each Bill
drawn by it on its Maturity Date to the Facility Agent for the account of the
Bank which accepted the Bill.
13.3 PREPAYMENT OF ADVANCES
(a) A Borrower may, on giving not less than 3 Business Days' notice via
the Company or the Borrowers' Agent (if the Borrower is not the Company)
to the Facility Agent and subject to Clause 31.2(a)(iii), prepay any Advance
made to it.
(b) A Borrower may not prepay any Advance except as expressly provided in
this Agreement.
(c) Prepayments shall be made together with accrued interest.
13.4 EARLY PAYMENT OF BILLS
Any Borrower may, on giving not less than 3 Business Days' notice, via the
Company or the Borrowers' Agent if the Borrower is not the Company to the
Facility Agent, comply prematurely with its obligations under Clause 13.2. If
it does do so then the amount payable by the Borrower shall be discounted on
the basis of such normal commercial rates prevailing at the time of payment
for Sterling deposits of an amount equal to the face amount of the Bill for
the period from the time of payment to the Maturity Date of the Bill as the
Facility Agent (after consultation with the relevant Borrower) may reasonably
determine.
14. MARKET DISRUPTION
14.1 ADVANCES
(a) If, in relation to any proposed Utilisation comprising Advances
(other than Swingline Advances):
(i) no, or only one, Reference Bank is able to supply a rate for the
purposes of determining LIBOR (in the case of a Utilisation comprising
Uncommitted Advances or Underwritten LIBOR Advances) or no, or only one of the
Reference Dealers is able to supply a rate for the purposes of determining the
Adjusted CD Rate (in the case of a utilisation comprising Underwritten CD
Advances) relative to the Utilisation or the Facility Agent otherwise
determines (which determination shall be conclusive and binding on all the
Contracting Parties) that adequate and fair means do not exist for
ascertaining LIBOR or the Adjusted CD Rate, as appropriate, relative to the
Utilisation; or
(ii) the Facility Agent receives notification:
(A) from Banks participating in more than 50 per cent. by value
of the proposed Advances to be comprised in the Utilisation but for this
purpose, a Utilisation comprising Advances denominated in Sterling shall be
regarded as consisting of two separate Utilisations, one comprising Advances,
not maintained in Euro-Sterling and the other comprising Advances maintained
in Euro-Sterling that, in their opinion, neither Dollar nor Sterling
deposits of equal duration to the Term requested will be available to them
in the London or Paris Interbank Market in the ordinary course of business
in sufficient amounts to fund their Advances for that Term; or
(B) from Banks participating in more than 50 per cent. by value
of the proposed Advances to be comprised in the Utilisation that, by reason of
circumstances affecting the London or Paris Interbank Market, as the case may
be, the cost to them of deposits obtained in the London or Paris Interbank
Market as the case may be, to fund their Advances would be in excess of the
relevant LIBOR, the Facility Agent shall
promptly serve a notice (a "SUSPENSION NOTICE") on the Borrowers and the
relevant Banks stating that the relevant event has occurred and that this
Clause 14 is in operation.
(b) After a Suspension Notice has been served:
(i) notwithstanding any other provision of this Agreement, the
Advances comprised in the Utilisation shall not be made;
(ii) no further Utilisation Requests for Advances in the currency
affected by the Suspension Notice may be delivered by the Borrowers until
the Facility Agent notifies the Company that the event specified in the
Suspension Notice no longer prevails, which the Facility Agent shall do as
soon as practicable after so ascertaining;
(iii) if the Company so requires, within five Business Days of service
of a Suspension Notice, the Company and the Facility Agent shall enter into
negotiations (which the Facility Agent shall not be obliged to continue for a
period of more than 30 days) in good faith with a view to agreeing a
substitute basis for determining the rate of interest and/or funding
applicable to any future Advances; and
(iv) any substitute basis agreed under sub-paragraph (iii) above shall,
with the prior consent of all the Underwriters, take effect in accordance with
its terms and be binding on all the Contracting Parties.
14.2 BILLS
(a) If, in relation to any Bills:
(i) the Facility Agent determines (which determination shall be
conclusive and binding on all the Contracting Parties) that adequate and
fair means do not exist for ascertaining the Eligible Bill Discount Rate
applicable to the Bills; or
(ii) the Facility Agent determines that the Bills do not comply with
the then current Bank of England regulations for Sterling bankers'
acceptances,
the Facility Agent shall promptly notify the Company and the relevant Banks of
the fact.
(b) After any notification under paragraph (a) above:
(i) notwithstanding any other provision of this Agreement, those Bills
shall not be accepted under Clause 7.6 or, if they have been accepted, they
shall automatically be cancelled; and
(ii) in the case of paragraph (a)(i) above, no further Utilisation
Requests for Bills may be delivered by any Borrower until the Facility Agent
notifies the Company that it is once again able to determine the Eligible Bill
Discount Rate, which the Facility Agent shall do as soon as practicable after
so ascertaining.
15. PAYMENTS
15.1 FUNDS AND PLACE
(a) Except as otherwise provided in this Agreement, all payments to be
made by a Borrower or any Bank under this Agreement shall, subject as
otherwise provided in Clause 9, be made to the Facility Agent or the
Swingline Agent, as the case may be, as follows:
(i) if in Dollars (unless the payment is in respect of the Swingline
Facility), to the account of the Facility Agent at National Westminster Bank
PLC, 175 Water Street, New York, N.Y. 10038, U.S.A. for value on the due date
in Dollars and in either immediately available Federal funds (ABA No.
026002749) for credit to Account No. 00150509) or Same Day Funds (ABA No. 274,
CHIPS UID 49291 for credit to Account No. 00150509 CHIPS UID No. 49291) or at
such other office or bank in New York City as the Facility Agent shall have
previously notified to the Borrower or Bank, as the case may be;
(ii) if in Dollars and the payment is in respect of the Swingline
Facility, to the account of the Swingline Agent at National Westminster
Bank PLC, 175 Water Street, New York, N.Y. 10038, U.S.A. for value on the due
date in Dollars and in either immediately available Federal funds (ABA No.
026002749) or Same Day Funds (ABA No. 274, CHIPS UID 49291) or at such
office or bank in New York City as the Swingline Agent shall have previously
notified to the Borrower or Bank, as the case may be;
(iii) if in Sterling, not later than 1.00 p.m. on the due date in
Sterling and in immediately available funds to National Westminster Bank PLC
at National Westminster Tower, 25 Old Broad Street, London EC2N 1HQ for the
account of the Facility Agent (Account No. 04607236) or in such manner or at
such other office or bank in London as the Facility Agent shall have
previously notified to the Borrower or Bank, as the case may be; or
(iv) if in an Optional Currency (other than Sterling), not later than
11.00 a.m. local time in the place for payment (or such other time as may be
required by law or practice for the settlement of foreign exchange
transactions in the place of payment) on the due date in lawful money of the
country of that Optional Currency and in immediately available funds to the
account of the Facility Agent at such bank in the principal financial centre
of the country of that Optional Currency as the Facility Agent shall have
previously notified to the Borrower or Bank, as the case may be.
(b) Subject to Clause 15.3, each payment received by the Facility Agent
or the Swingline Agent as the case may be, for the account of another person
under paragraph (a) above shall:
(i) in the case of a payment received for the account of a Borrower,
be made available by the Facility Agent or the Swingline Agent as the case
may be, to the Borrower by application:
(A) first, in or towards payment (on the date and in the currency
and funds of receipt) of any amount due from the Borrower under this
Agreement or in or towards the purchase of any amount of any currency to be
so applied; and
(B) secondly, in payment (on the date and in the currency and funds
of receipt):
(1) if in Dollars, to the account of the Borrower with such
office or bank in New York City as it shall have previously notified to the
Facility Agent or the Swingline Agent, as the case may be;
(2) if in Sterling, to the account of the Borrower at such office
or bank in London as it shall have previously notified to the Facility Agent;
and
(3) if in an Optional Currency (other than Sterling), to the
account of the Borrower with such office or bank in the principal
financial centre of the country of that currency as it shall have previously
notified to the Facility Agent;
and
(ii) 0in the case of any other payment, be made available by the
Facility Agent or the Swingline Agent as the case may be, to the person for
whose account the payment was received (in the case of a Bank for the account
of its Facility Office) on the date and in the currency and funds of receipt:
(A) if in Dollars, for the account of such person to such account
of the person with such office or bank in New York City as it shall have
previously notified to the Facility Agent or the Swingline Agent as the case
may be;
(B) if in Sterling, for the account of such person to such account
of the person with such office or bank in London as it shall have previously
notified to the Facility Agent; and
(C) if in an Optional Currency (other than Sterling), to the
account of the person with such office or bank in the principal financial
centre of the country of that currency as it shall have previously notified
to the Facility Agent.
(c) Each of the Facility Agent and the Swingline Agent shall promptly
distribute payments received for the account of the Banks among the Banks pro
rata to their respective entitlements.
15.2 CURRENCY
(a) Any repayment or prepayment of any Advance shall be made in the
currency in which it is denominated on the due date.
(b) Interest shall be payable in the currency in which the relevant
amount in respect of which it is payable is denominated.
(c) Any payment in respect of a Bill shall be payable in Sterling.
(d) Any other amount payable under this Agreement shall, unless
otherwise provided in this Agreement, be payable in Dollars.
15.3 RECOVERY OF PAYMENTS
Unless the relevant Agent has received notice from a Bank or Borrower not less
than two Business Days before the date upon which the Bank or Borrower (the
"PARTY LIABLE") is to pay an amount to the Agent for transfer to a Borrower or
Bank respectively (the "PAYEE") that the party liable does not intend to make
that amount available to the Agent, the Agent may assume that the party liable
has paid the amount to it on the due date in accordance with this Agreement.
In reliance upon that assumption, the Agent may (but shall not be obliged to)
make available to the payee(s) a corresponding sum. If the amount is not in
fact made available to the Agent and the party liable does not forthwith on
demand pay the amount to the Agent together with interest on the amount until
its payment at a rate determined by the Agent to reflect its cost of funds,
the payee(s) shall forthwith on demand repay the amount to the Agent together
with interest on the amount calculated as above. The provisions of this
Clause 15.3 are without prejudice to any rights which the Agent and the payee
may have against the party liable.
15.4 TAXES
(a) All payments to be made by a Borrower under the Finance Documents
shall be made:-
(i) without set-off or counterclaim; and
(ii) free and clear of and without deduction for or on account of all
Taxes except to the extent that the Borrower is compelled by law to make
payment subject to any Taxes.
For the purposes of this Clause 15, "RELEVANT TAX" means any Tax imposed in
the U.K. or the jurisdiction of incorporation of any Borrower or any other
jurisdiction from or through which a payment is made under any Finance
Document (or any federation or organisation of which any of those
jurisdictions is at the relevant time a member) or any political sub-division
or taxing authority of any of the foregoing.
(b) All Taxes required to be deducted or withheld from any amounts paid
or payable under the Finance Documents shall be paid by the Borrower promptly
and in any event before penalties attach thereto. If any Relevant Taxes or
amounts in respect of Relevant Taxes must be deducted from any amounts payable
or paid by a Borrower under the Finance Documents (or payable or paid by an
Agent to a Financial Institution under the Finance Documents), the Borrower
shall pay such additional amounts as may be necessary to ensure that the
relevant Financial Institution receives a net amount equal to the full amount
which it would have received had payment not been made subject to Relevant
Tax; provided, however, that no such additional amounts shall be paid for the
account of a Financial Institution for or on account of:
(i) any Relevant Tax if such Financial Institution ceases to be
exempt from deduction or withholding of such Relevant Tax in respect of
payments to it hereunder for a reason that is not related to a change in any
law, regulation or official interpretation relating to any Relevant Tax and
is not related to an amendment, modification or revocation of an applicable
double tax treaty or a change in official position regarding the application
or interpretation thereof, in each case occurring after the date as to which
the representation and warranty made or deemed made by such Financial
Institution in accordance with Clause 15.4(d) with respect to payments by
such Borrower is applicable; or
(ii) any Relevant Tax that would not have been imposed but for (x) the
representations and warranties made or deemed made by such Financial
Institution in accordance with Clause 15.4(d) not being true and accurate in
all material respects or (y) the failure of such Financial Institution to
comply with the obligations undertaken (or deemed undertaken) by it under
Clause 15.4(e).
(c) Within thirty days of each payment by a Borrower under sub-paragraph
(b) above of Tax or in respect of Taxes, it shall deliver to the Facility
Agent for the relevant Financial Institution an original receipt, a certified
copy thereof, or other appropriate evidence issued by the authority to whom
the payment was made that the Tax has been duly remitted to the appropriate
authority.
(d) (i) Each Financial Institution represents and warrants to the
Company and to each Specified Subsidiary that, at the Signing Date (or in the
case of any Assignee, New Bank or new Tender Panel Member, as of the date of
the relevant assignment, transfer or nomination becoming effective or, in the
case of any change in Facility Office by a Bank, as of the date such change is
effective), that as to the Company and the Specified Subsidiaries and
currencies specified in the letter from the relevant Financial Institution to
the Company in the form set out in Exhibit R, dated the Signing Date (or such
effective date, as the case may be, which letter the relevant Assignee, New
Bank, or new Tender Panel Member agrees to deliver to the Company on the
effective date) such Financial Institution is entitled to receive all payments
made by the Company or such Specified Subsidiary without deduction or
withholding for or on account of any Relevant Taxes. If any representation
made under this subclause (d) was untrue when made or deemed made, the
consequences for the relevant Financial Institution hereunder shall be only as
set out in sub-clauses 15.4(b) and 15.4(f).
(ii) Within 21 days after any Proposed Borrower that is not a
Specified Subsidiary becoming an Additional Borrower under Clause 29.10
below, each Financial Institution undertakes to deliver a letter to the
Company stating whether such Financial Institution is entitled to receive
payments made by such Additional Borrower without deduction or witholding
for or on account of any Relevant Tax. By delivery of such letter, such
Financial Institution will be deemed to make the representation and warranty
contained in sub-paragraph (d)(i) above to the extent that such letter
indicates that such Financial Institution is entitled to recover payments
made by such Additional Borrower without deduction or withholding for and
on account of any Relevant Tax, but with reference to the date of such letter.
(e) (i) Each Financial Institution that is not a corporation or other
entity created or organized under the laws of the U.S.A. (a "NON-UNITED STATES
PERSON") agrees to execute and deliver to the Company (for the attention of
the Director of Taxes), (s) within 30 days of the signing of this Agreement
(or, in the case of any Assignee, New Bank or new Tender Panel Member, within
30 days of the date the relevant assignment or transfer or nomination becomes
effective or, in the case of any change in Facility Office by a Bank, within
30 days of the date such change is effective) but in no event later than the
date of the first payment to such Financial Institution and (t) before the
first scheduled payment date by the Company in each taxable year of such
Financial Institution, either one Internal Revenue Service Form 1001 or two
Internal Revenue Service Forms 4224 or such other forms at the time fulfil the
same purpose, in each case, together with such other related forms as the
Company may reasonably request, properly completed and claiming complete or
partial, as the case may be, exemption from withholding and deduction of
United States federal Taxes.
(ii) Each Financial Institution agrees to execute and deliver to the
Company and each Additional Borrower, when required by law or when otherwise
reasonably requested by the Company or such Additional Borrower, such forms as
are required, or that the Company or such Additional Borrower may reasonably
request, to establish that such Financial Institution is entitled to complete
or partial, as the case may be, exemption from deduction or withholding for or
on account of any Relevant Taxes with respect to all payments to be made by
such Additional Borrower under the Finance Documents.
(iii) Each Financial Institution agrees that, to the extent any form
claiming or otherwise establishing complete or partial exemption from
withholding and deduction of Relevant Taxes delivered under this Agreement is
incomplete or incorrect in any material respect when delivered or thereafter,
such Financial Institution shall execute and deliver complete and correct
replacement forms.
(f) In the event that (x) any Borrower makes payments to any Financial
Institution without any deduction or withholding on account of any Taxes, (y)
it is later determined that such Borrower is liable for such deduction or
withholding, and (z) such Financial Institution would not, at the time of such
payments, have been entitled to an additional amount in respect of such
deduction or withholding under Clause 15.4(b) had the deduction or withholding
been made, then such Financial Institution shall indemnify such Borrower (on
an after-tax basis) for any amounts that such Borrower remits to the
governmental or other authority as a result of such determination.
(g) If any Borrower pays any additional amount or indemnity under
paragraph (b) above (a "TAX PAYMENT") and any Bank effectively obtains a
refund of Tax, or credit against Tax, by reason of that Tax Payment (a "TAX
CREDIT"), and the Bank is able to identify the Tax Credit as being
attributable to the Tax Payment, then the Bank shall reimburse to the
Borrower such amount as the Bank shall, in its absolute discretion,
determine to be the proportion of the Tax Credit as will leave the Bank
(after that reimbursement) in no better or worse position than it would have
been in if the Tax Payment had not been required. The Bank shall have
an absolute discretion as to whether to claim any Tax Credit and, if it does
claim, the extent, order and manner in which it does so. None of the Banks
shall be obliged to disclose any information regarding its tax affairs or
computations to any Borrower.
(h) (i) Subject to sub-paragraph (ii) below, if Relevant Taxes must
be withheld or deducted from any amounts payable or paid by a Borrower to a
Bank under the Finance Documents such Borrower may by giving not less than ten
Business Days' notice to the Bank (through the Facility Agent):
(A) prepay in full any Advance made to it by the Bank together with
all other amounts payable to the Bank under the Finance Documents;
(B) comply prematurely with its obligations (whether or not such
obligations are then due for performance) under Clause 13.2 in respect of all
outstanding Bills accepted by the Bank with the amount to be so paid to be
discounted in accordance with Clause 13.4;
(C) arrange for that Bank's liability, actual or contingent, in
respect of any Letter of Credit to be cancelled or released; and
(D) if the Bank is a Committed Bank, cancel that Bank's Commitment;
(ii) any notice by a Borrower shall be irrevocable and may only be
given under sub-paragraph (a) above whilst the duty to withhold or deduct
continues; if a Bank is a Committed Bank, its Commitment shall be cancelled
on the giving of the notice.
(i) Notwithstanding any provision herein to the contrary but except as
provided below, no Committed Bank shall be obliged to make an Advance in any
currency to any Specified Subsidiary (except for Swingline Advances to
Finance) other than in those currencies and to those Specified Subsidiaries
set forth in the letter delivered by such Committed Bank pursuant to Clause
15.4(d)(i) above. If such an Advance is requested, then for the purposes of
determining the amount of each other Bank's Advance under Clause 5.4 or 8.4,
that Bank's Commitment shall be deducted from the Total Commitments.
15.5 NON-BUSINESS DAYS
Whenever any payment under the Finance Documents becomes due on a day which is
not a Business Day, then the due date shall instead be the next Business Day
in that calendar month (if there is one) or the preceding Business Day (if
there is not). During any extension of the due date for payment of any
principal under this Agreement interest shall be payable on the principal at
the rate payable on the original due date.
15.6 CERTIFICATIONS
Any certification or determination of a rate or amount made by a Financial
Institution shall be prima facie evidence of the matters certified or
determined.
15.7 APPROPRIATIONS
In the case of a partial payment, the relevant Agent may appropriate the
payment towards the obligations of the Borrowers under the Finance Documents
in the following order:
(a) FIRST, in or towards payment pro rata of any costs and expenses
of the Financial Institutions due but unpaid under the Finance Documents;
(b) SECONDLY, in or towards payment pro rata of any accrued interest
due but unpaid under the Finance Documents;
(c) THIRDLY, in or towards payment pro rata of any principal due but
unpaid under the Finance Documents; and
(d) FOURTHLY, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.
Any appropriation as above shall override any appropriation made by a
Borrower.
15.8 MITIGATION
If, in respect of any Bank, circumstances arise which would, or would on the
giving of notice, result in:-
(a) any additional amounts becoming payable under Clause 15.4(b) (Taxes);
or
(b) any amount becoming payable under Clause 16 (Increased Costs); or
(c) any prepayment or cancellation under Clause 17 (Illegality),
then, without limiting the obligations of the Borrowers under this Agreement
and without prejudice to the terms of Clauses 15.4, 16 and 17, the Bank shall,
in consultation with the Facility Agent and the Company, take such reasonable
steps as may be open to it (including, without limitation, changing a Facility
Office) to mitigate or remove such circumstance, including (without
limitation) the transfer of its rights and obligations under this Agreement to
another bank or financial institution acceptable to the Company, unless to do
so might (in the opinion of the Bank) in any way be prejudicial to it or would
otherwise be contrary to its banking policy.
16. INCREASED COSTS
16.1 INCREASED COSTS
Subject to Clause 16.2, if the result of:
(a) the introduction of or any change in any law, regulation, treaty or
official directive or request from any governmental or regulatory authority
(whether or not having the force of law but if not having the force of law,
being of a type with which the Bank is accustomed to comply) or any change in
the interpretation or application thereof; and/or
(b) compliance (without adopting materially less prudent policies or
standards than those previously adopted by it) by any Financial Institution
with any of the matters mentioned in paragraph (a) above,
including in each case, without limitation, those relating to Taxation, any
reserve, special deposit, cash ratio, liquidity or capital adequacy
requirement or any other form of banking or monetary controls, is that:
(i) a Financial Institution incurs an additional cost as a result of
having entered into, or performing, maintaining or funding its obligations
under, any Finance Document; or
(ii) a Bank incurs an additional cost in making, funding or
maintaining all or any advances comprised in a class of advances formed by
or including the Advances made or to be made by it under this Agreement; or
(iii) any amount payable to a Financial Institution or the effective
return to a Financial Institution under this Agreement or on its capital is
reduced; or
(iv) a Financial Institution makes any payment or foregoes any
interest or other return on or calculated by reference to any amount received
or receivable by it from any Borrower or the Facility Agent under any
Finance Document,
then and in each such case:
(A) the Financial Institution shall notify the Company through the
Facility Agent of the relevant event promptly upon becoming aware of the
event and of the amount of any claim under this Clause 16.1 promptly upon
ascertaining that amount;
(B) promptly following any demand from time to time by the Financial
Institution through the Facility Agent, the Company shall pay to the Facility
Agent for the account of the Financial Institution such amount as the
Financial Institution shall certify will compensate the Financial Institution
for the additional cost (or, in the case of paragraph (ii) above, the
proportion of the additional cost as is attributable to its making, funding or
maintaining Advance(s)), reduction, payment or forgone interest or other
return attributable to the period commencing not earlier than the day falling
three months before the date of notification of the relevant event under
paragraph (A) above.
(C) (a) subject to sub-paragraph (b) below, each Borrower may
via the Company or the Borrowers' Agent (if the Borrower is not the Company)
by giving not less than ten Business Days' notice to the Bank (through the
Facility Agent):
(i) prepay in full any Advance made to it by the Bank
together with all other amounts payable to the Bank under the Finance
Documents;
(ii) comply prematurely with its obligations (whether or not such
obligations are then due for performance) under Clause 13.2 in respect of all
outstanding Bills accepted by the Bank with the amount to be so paid to be
discounted in accordance with Clause 13.4;
(iii) arrange for that Bank's liability, actual or contingent, in
respect of any Letter of Credit to be cancelled or released; and
(iv) if the Bank is a Committed Bank, cancel that Bank's Commitment;
and
(b) any notice by a Borrower shall be irrevocable and may only be given
under sub-paragraph (a) above whilst the circumstances giving rise to the
notification under paragraph (A) above continue; if a Bank is a Committed
Bank, its Commitment shall be cancelled on the giving of the notice.
16.2 EXCEPTIONS
Clause 16.1 shall not apply to or in respect of:
(a) any amount covered by the Additional Cost;
(b) any change in the rate of Taxation on the overall net income of a
Bank (or the overall net income of a division or branch of the Bank) imposed
in the jurisdiction in which its principal office or Facility Office for
the time being is situate; and
(c) any circumstances referred to in Clause 15.4 (Taxes).
17. ILLEGALITY
If the introduction of or any change in any law, regulation, treaty or
official directive (whether or not having the force of law but, if not having
the force of law, being of a type with which the Bank is accustomed to comply)
shall make it unlawful or contrary to an official directive ("SUPERVENING
ILLEGALITY") in any jurisdiction for any Bank to make available or fund or
maintain any Advance or to give effect to its obligations as contemplated by
this Agreement, the Bank may give notice thereof to the Company through the
Facility Agent, whereupon:-
(a) each Borrower shall, within the time allowed by the relevant law,
regulation, treaty or official directive, prepay the Bank's Advances to it
together with all other amounts payable to the Bank under the Finance
Documents and arrange for that Banks's liability, actual or contingent, in
respect of any Letter of Credit to be cancelled or released;
(b) each Borrower shall, within the time allowed by the relevant law,
regulation, treaty or official directive, comply forthwith with its
obligations under Clause 13.2 (whether or not they are then due for
performance) in respect of any outstanding Bills accepted by the Bank;
(c) the Company shall arrange for that Bank's liability, actual or
contingent, in respect of any Letter of Credit to be cancelled or released;
and
(d) if the Bank is a Committed Bank, its Commitment shall forthwith be
cancelled,
to the extent required to remove the Supervening Illegality.
18. GUARANTEE
18.1 GUARANTEE
The Company irrevocably and unconditionally:
(a) guarantees to the Financial Institutions, as principal obligor
and not merely as surety, prompt performance by the Borrowers of all their
obligations under this Agreement and the payment of all sums payable now or
in the future to the Financial Institutions by the Borrowers under this
Agreement when and as they become due; and
(b) undertakes with the Financial Institutions that if and whenever a
Borrower is in default in the payment of any amount under this Agreement the
Company shall forthwith pay the amount as if the Company instead of the
Borrower were expressed to be the principal obligor, together with interest on
the amount at the rate per annum from time to time payable by the Borrowers on
the amount from the date when it becomes payable by the Company until payment
of it in full.
18.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and shall extend to the ultimate
balance of all sums payable by the Borrowers under the Finance Documents.
18.3 REINSTATEMENT
Where any discharge (whether in respect of the obligations of any Borrower or
any security for those obligations or otherwise) is made in whole or in part
or any arrangement is made on the faith of any payment, security or other
disposition which is avoided or must be repaid on bankruptcy, liquidation or
otherwise without limitation, the liability of the Company under this
guarantee shall continue as if the discharge or arrangement, as the case may
be, had not occurred. Each of the Financial Institutions is entitled to
concede or compromise any claim that any payment, security or other
disposition is liable to avoidance or repayment.
18.4 WAIVER OF DEFENCES
The obligations of the Company under this Clause 18 shall not be affected by
any act, omission, matter or thing which, but for this provision, might
operate to release or otherwise exonerate it from its obligations under this
Clause 18 in whole or in part, including without limitation and whether or not
known to it or any Financial Institution:
(a) any time or waiver granted to or composition with any Borrower or
any other person;
(b) the taking, variation, compromise, renewal or release of, or refusal
or neglect to perfect or enforce, any rights, remedies or securities against
any Borrower or any other person;
(c) any legal limitation, disability, incapacity or other circumstances
relating to any Borrower or any other person;
(d) any variation of a Finance Document or any other document or security
so that references to the Finance Document in this Clause 18 shall include
each variation (including without limitation any substitute basis agreed under
Clause 14); or
(e) any unenforceability, invalidity or frustration of any obligations of
any Borrower or any other person under any Finance Document or any other
document or security, to the intent that the Company's obligations under this
Clause 18 shall remain in full force and its guarantee be construed
accordingly, as if there were no unenforceability, invalidity or frustration.
18.5 IMMEDIATE RECOURSE
The Company waives any right it may have of first requiring any of the
Financial Institutions to proceed against or enforce any other rights or
security or claim payment from any other person before claiming from the
Company under this Clause 18.
18.6 PRESERVATION OF RIGHTS
Until all amounts which may be or become payable by the Borrowers under or in
connection with this Agreement have been irrevocably paid and discharged in
full, each Financial Institution may:
(a) refrain from applying or enforcing, as appropriate, any other moneys,
security or rights held or received by that Financial Institution in respect
of those amounts, or apply and enforce the same in such manner and order as it
sees fit (whether against those amounts or otherwise) and no Borrower shall be
entitled to the benefit of the same; and
(b) hold in a suspense account any moneys received from the Company or on
account of the Company's liability under this Clause 18.
18.7 NON-COMPETITION
(a) Until all amounts which may be or become payable by the Borrowers
under this Agreement have been irrevocably paid in full, the Company shall
not, after a claim has been made under this Clause 18:
(i) be subrogated to any rights, security or moneys held, received or
receivable by any Financial Institution or be entitled to any right of
contribution in respect of any payment made or moneys received on account of
the Company's liability under this Clause 18;
(ii) be entitled and claim to rank as a creditor against the estate or
in the bankruptcy or liquidation of any other Borrower in competition with any
Financial Institution; or
(iii) receive, claim or have the benefit of any payment, distribution or
security from or on account of any other Borrower, or exercise any right of
set-off as against any other Borrower.
(b) The Company shall forthwith pay to the Facility Agent for the
account of the Financial Institutions an amount equal to any set-off in fact
exercised by it and shall hold in trust for and forthwith pay or transfer, as
the case may be, to the Facility Agent for the Financial Institutions any
payment or distribution or benefit of security in fact received by it.
18.8 OTHER DOCUMENTS
This guarantee shall be in addition to and shall not in any way be prejudiced
by any other guarantee or any security now or hereafter held by any Financial
Institution in respect of the obligations of the Borrowers under this
Agreement.
18.9 CERTIFICATE
A certificate of the Facility Agent as to any amount owing from the Borrowers
under this Agreement shall be prima facie evidence of that amount.
19. REPRESENTATIONS AND WARRANTIES
19.1 REPRESENTATIONS AND WARRANTIES
Each Borrower (in respect of itself and its Subsidiaries only) represents and
warrants to each of the Financial Institutions that:-
(a) Organisation, etc.
(i) Each member of the Group is a corporation validly organised and
existing and in good standing under the laws of the State or jurisdiction of
its incorporation, is duly qualified to do business and in good standing as a
foreign corporation in each jurisdiction where the nature of its business
makes such qualification necessary and has full power and authority to own its
property and conduct its business substantially as presently conducted and as
presently proposed to be conducted by it;
(ii) Each Borrower has full power and authority to enter into and to
perform its obligations under the Finance Documents; and
(iii) It is in compliance with all Requirements of Law, except to the
extent that the failure to comply therewith could not, in the aggregate, have
a material adverse effect on the business, operations, property or financial
or other condition of the Group, and could not materially adversely affect the
ability of each Borrower to perform its obligations under any Finance
Document.
(b) Due Authorisation
The execution and delivery by each Borrower of the Finance Documents executed
or to be executed by it, the performance by each Borrower of its obligations
under the Finance Documents and the transactions contemplated by the Finance
Documents:
(i) have been duly authorised by all necessary corporate action;
(ii) do not and will not require any approval or consent of any
governmental agency or authority;
(iii) do not and will not conflict with, result in any violation of, or
constitute a default under any provision of the constitutive documents of any
Borrower or any agreement, instrument or document binding upon or applicable
to it, or any present law or governmental regulation or court or
administrative decree or order applicable to it;
(iv) will not result in or require the creation or imposition of any
Security Interest on any property of any member of the Group pursuant to the
provisions of any agreement, indenture or other instrument or document binding
upon or applicable to any member of the Group.
(c) Validity of the Finance Documents
Each Finance Document executed by a Borrower will on the due execution and
delivery thereof be the legal, valid and binding obligation of that Borrower
enforceable against the Borrower in accordance with its terms, subject only to
bankruptcy, insolvency, reorganisation, moratorium or similar laws at the time
in effect affecting the enforceability of the rights of creditors generally.
(d) Financial Information
All balance sheets, statements of income and shareholders' equity,
changes in financial position and other financial information which have been
or will be furnished by a Borrower to any Financial Institution for the
purposes of or in connection with this Agreement or any transaction
contemplated hereby have been or will be prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved (except as disclosed therein) and do or will present fairly the
consolidated or consolidating, as appropriate, financial condition of the
Group as at the dates thereof and the results of their operations for the
periods then ended, including, without limitation:
(A) the consolidated balance sheet at September 30, 1990 and
consolidated statements of income, shareholders' equity, and cash flows for
the Fiscal Year then ended, of the Group, certified by KMPG Peat, Marwick; and
(B) the consolidating balance sheet at September 30, 1990 and
consolidating statements of income, shareholders' equity and cash flows for
the Fiscal Year then ended, of the Group, certified by the Senior Vice
President and Chief Financial Officer of the Company.
(e) Absence of Default
No member of the Group is in default, subject to any applicable grace period,
in the payment of any indebtedness representing any borrowing or financing or
any other material obligation (except for defaults in payments of Non-Recourse
Obligations )or under any law or governmental regulation or court or
administrative decree or order materially affecting its property or business,
or aware of any facts or circumstances which would give rise to any such
default.
(f) Litigation, etc.
No litigation or arbitration involving individually more than the Individual
Material Amount or, in the aggregate, more than the Aggregate Material Amount
or governmental investigation (except audits by the Internal Revenue Service
not involving a Special Agent) or proceeding against any member of the Group
or to which any of the properties of any thereof is subject is pending or, to
the knowledge of the Borrower, threatened which, if adversely determined,
might materially adversely affect the consolidated financial condition or
operations of the Group or impair the ability of any Borrower to perform any
of its obligations under any Finance Document.
(g) Regulation U
(i) No Borrower is engaged principally, or as one of its material
activities, in the business of extending credit for the purpose of purchasing
or carrying Margin Stock;
(ii) less than 25 per cent. of the assets of the Company and of the
Company and its Subsidiaries taken as a whole consists of Margin Stock; and
(iii) no amount raised under the Finance Documents will be used for the
purpose of, or be made available by any Borrower in any manner to any other
person to enable or assist such person in, purchasing or carrying Margin Stock
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System or any regulations substituted therefor, as from time to time
in effect.
(h) No Burdensome Agreement
No member of the Group is a party to any agreement or other instrument or
document, or subject to any charter or other corporate restriction, materially
adversely affecting its business, properties, assets, operations or condition
(financial or otherwise).
(i) Taxes
Each member of the Group has filed all tax returns and reports required by law
to have been filed by them and have paid all taxes and governmental charges
thereby shown to be owing.
(j) Subsidiaries
The Company has no Subsidiaries except those listed in Exhibit B.
(k) ERISA
Neither the Company nor any Subsidiary has a pension benefit plan subject to
Title IV of ERISA. No unpaid or contingent liability to the Pension Benefit
Guaranty Corporation ("PBGC") has been or is expected to be incurred, directly
or indirectly, by the Company or a Subsidiary (other than for payment of PBGC
premiums in the ordinary course). No event has occurred and there exists no
condition or set of circumstances which presents a material risk of the
termination or partial termination of any Plan which could result, directly or
indirectly, in a liability on the part of the Company or a Subsidiary to the
PBGC.
19.2 REPETITION
The representations and warranties set out in Clause 19.1 shall:
(a) be made on the Signing Date;
(b) survive the execution of this Agreement and the making of each
Utilisation; and
(c) (with the exception of paragraph (j)) be deemed to be repeated on
the date of delivery of each Request and on each Utilisation Date, with
reference to the facts and circumstances then subsisting, as if made at such
time.
20. COVENANTS
The covenants in this Clause 20 shall remain in force from the Signing Date
for so long as the Commitment is in force or any amount is outstanding under
the Finance Documents.
20.1 FINANCIAL INFORMATION, ETC.
The Company will furnish, or will cause to be furnished, to each Bank (through
the Facility Agent) copies of the following financial statements, reports and
information:
(a) together with the financial statements delivered pursuant to Clauses
20.l(b) and (c) hereof, a Compliance Certificate;
(b) within 45 days after the close of each of the first three
quarters of each Fiscal Year, consolidated and consolidating balance sheets
of the Group and balance sheets of any Additional Borrower at the close of
such quarter, and the related consolidated and consolidating statements of
earnings, stockholders' equity and cash flows of the Group and statements
of earnings, stockholders' equity and cash flows of any Additional Borrower
for the period commencing at the end of the previous Fiscal Year and ending
with the close of such quarter, certified by the Vice President and
Controller or Executive Vice President and Chief Financial Officer of the
Company;
(c) within 90 days after the close of each Fiscal Year:
(i) consolidated balance sheets at the close of such Fiscal Year and
the related consolidated statements of earnings, stockholders' equity and
cash flows for such Fiscal Year, of the Group, certified without
qualification by KPMG Peat Marwick or other independent public accountants of
recognised standing selected by the Company and acceptable to the Majority
Underwriters;
(ii) a written statement by such accountants setting forth in
reasonable detail a calculation of the financial covenants set forth in
Clause 20.11 at the close of such Fiscal Year and further to the effect that
they have examined the provisions of this Agreement and at the date of
such statement are not aware of any default in the performance by any member
of the Group of any obligation to be performed by it under any Finance
Document, except such, if any, as may be disclosed in such statement; and
(iii) a consolidating balance sheet at the close of such Fiscal Year,
and the related consolidating statements of earnings, stockholders'
equity and cash flows of the Group and balance sheet and statements of
earnings, stockholders' equity and cash flows of any Additional Borrower for
such Fiscal Year, certified by the Vice President and Controller or Executive
Vice President and Chief Financial Officer of the Company;
(d) promptly upon receipt thereof, copies of all detailed financial and
management reports submitted to the Company by independent public accountants
in connection with each annual or interim audit made by such accountants of
the books of any member of the Group;
(e) promptly upon the mailing thereof to stockholders of the Company
generally, any annual report, proxy statement or other communication;
(f) promptly upon any filing thereof by the Company with the
Securities and Exchange Commission, any annual, periodic or special report
or registration statement (exclusive of exhibits thereto) generally available
to the public;
(g) promptly from time to time a written report, (which may be
contained in the Company's form l0Q or l0K as filed from time to time with
the Securities and Exchange Commission) of any changes in the list of the
Subsidiaries from that which appears in Part II of Exhibit B; and
(h) promptly from time to time such other information with respect to
the financial condition and operations of the Group as any Bank may,
through the Facility Agent, from time to time reasonably request.
20.2 MAINTENANCE OF CORPORATE EXISTENCE
Except as permitted by Clause 20.16, the Company will cause to be done at all
times all things necessary to maintain and preserve its corporate existence.
20.3 FOREIGN QUALIFICATION
Each Borrower will, and the Company will cause each Material Subsidiary to,
cause to be done at all times all things necessary to be duly qualified to do
business and in good standing as a foreign corporation in:-
(a) each jurisdiction where the failure to be so qualified might
materially adversely affect the consolidated financial condition or
operations of the Group; and
(b) each other jurisdiction in which such entity has Equipment subject
to Contracts under which the aggregate Contract Receivables exceed $500,000
(excluding, however, in any jurisdiction where the failure to be so qualified
may be fully cured by subsequent qualification, any Contract Receivables
securing Non-Recourse Obligations).
20.4 PAYMENT OF TAXES, ETC.
Each Borrower will, and the Company shall cause each Subsidiary to, pay and
discharge, as the same may become due and payable, all taxes, assessments and
other governmental charges or levies on it or on any of its property, as well
as claims of any kind which, if unpaid, might become a lien upon any of its
properties, provided, however, that the foregoing shall not require any member
of the Group to pay any such tax, assessment, charge, levy or lien so long as
it shall contest the validity thereof in good faith by appropriate proceedings
and shall set aside and maintain, in accordance with generally accepted
accounting principles, adequate reserves with respect thereto.
20.5 INSURANCE
Each Borrower will, and the Company will cause each other member of the Group
to, maintain insurance coverage by financially sound and reputable insurers in
such forms and amounts, with such deductibles and against such risks as are
customary for corporations engaged in the same or a similar business and
owning and operating similar properties.
20.6 NOTICE OF DEFAULT OR LITIGATION
The Company will immediately give notice to the Facility Agent of:
(a) the occurrence of any Default and any event specified in Clause 9.25;
(b) any litigation or arbitration involving individually more than the
Individual Material Amount or, in the aggregate, more than the Aggregate
Material Amount or any governmental investigation (except audits by the
Internal Revenue Service unless a special agent is involved in such audit) or
proceeding previously not disclosed by the Company to the Banks which has been
instituted or, to the knowledge of any Borrower, is threatened against any
member of the Group or to which any of the properties of any thereof is or may
become subject which, if adversely determined, might materially adversely
affect the consolidated financial condition or operations of the Group or
impair the ability of any Borrower to perform its obligations under any
Finance Document; and
(c) any material adverse development which shall occur in any litigation,
arbitration or governmental investigation or proceeding previously disclosed
by the Company to the Banks.
20.7 CONDUCT OF BUSINESS
Each Borrower will, and the Company will cause each Material Subsidiary to do
or cause to be done all things reasonably necessary to preserve and keep in
full force and effect its existence and all franchises, rights and privileges
necessary for the proper conduct of its business in substantially the same
manner and in substantially the same fields as such business is now carried on
or conducted, provided that the Company agrees that it shall not engage in
risk arbitrage activities as conducted by it prior to November l987.
20.8 PERFORMANCE OF OBLIGATIONS
Each Borrower will perform promptly and faithfully all of its obligations
under the Finance Documents.
20.9 BOOKS AND RECORDS
Each Borrower will, and the Company will cause each other member of the Group
to, keep books and records reflecting all of its business affairs and
transactions in accordance with generally accepted accounting principles and
permit any Bank or any of its representatives, at reasonable times and
intervals, to visit all of its offices, discuss its financial matters with its
officers and independent accountants (and hereby authorises such independent
accountants to discuss its financial matters with the Facility Agent or any
Bank or its representatives) and examine any of its books and other corporate
records.
20.10 SECURITY INTERESTS
No Borrower will, and the Company will not permit any Subsidiary to, create,
incur, assume or suffer to exist any Security Interest upon any of its
property or assets, whether now owned or hereafter acquired, except:
(a) Security Interests securing Non-Recourse Obligations of any member of
the Group incurred in connection with leasing transactions in the ordinary
course of business of that member of the Group;
(b) Security Interests incurred in connection with the acquisition of any
Equipment and attaching only to the Equipment and any related Contract being
acquired so long as the indebtedness secured thereby does not exceed the fair
market value of such Equipment and any related Contract at the time of
acquisition thereof;
(c) Security Interests securing indebtedness of a Subsidiary to another
member of the Group;
(d) liens for taxes, assessments or other governmental charges or levies,
and liens securing claims or demands of mechanics and materialmen incurred in
the ordinary course of business, provided in each case that:
(i) payment thereof is not at the time required by Clause 20.4; and
(ii) if required by generally accepted accounting principles, the
applicable member of the Group shall have set aside and maintained adequate
reserves with respect thereto;
(e) liens incurred in the ordinary course of business in connection with
workmen's compensation, unemployment insurance or other forms of governmental
insurance or benefits, or to secure performance of tenders, statutory
obligations, leases and contracts (other than for borrowed money) entered into
in the ordinary course of business or to secure obligations on surety or
appeal bonds;
(f) judgment liens in existence less than 10 days after the entry
thereof or with respect to which execution has been stayed or the payment of
which is covered in full (subject to a customary deductible) by insurance;
(g) rights of lessees, sublessees, conditional sale purchasers and
borrowers under Contracts;
(h) mortgages, conditional sale contracts, Security Interests or other
arrangements for the retention of title (including capitalised leases) created
or incurred for the financing or purchase of real property of any member of
the Group and attaching only to the property being acquired or financed, so
long as the indebtedness secured thereby:
(i) was not in existence prior to the creation of such Security
Interest;
and
(ii) did (or, in the case of property acquired or financed after the
date hereof, does) not exceed the fair market value of such property at the
time of creation of such Security Interest; and
(i) Security Interests (other than the Security Interests permitted by
paragraphs (a) through (h) above) securing:
(i) indebtedness for borrowed money of, or guaranteed by, any member
of the Group; or
(ii) obligations of any member of the Group arising under Buy-Leases;
provided that the sum of:
(I) all such indebtedness for borrowed money (excluding the
non-recourse portion of any Limited Recourse Obligations); and
(II) the excess of (A) the present value (discounted at the
reference rate most recently announced by the Swingline Agent) of all
obligations of the Group under Buy-Leases over (B) the present value
(discounted at the reference rate most recently announced by the Swingline
Agent) of all Contract Receivables arising under Eligible Contracts which
are related to the same Equipment as such Buy-Leases
shall not at any time exceed 20% of Consolidated Tangible Net Worth; and
(j) Security Interests in favour of the Banks in respect of the Cash
Collateral Account and the corresponding account under the Global Agreement
and any cash collateral account established pursuant to Clause 11.3.
20.11 FINANCIAL CONDITION
The Company will not permit:
(a) Consolidated Tangible Net Worth as of the end of any quarter of any
Fiscal Year to be less than the sum of:-
(i) U.S.$ 587,000,000; and
(ii) 50 per cent. of the Consolidated Net Income of the Group for the
period from 30 September, l994 to and including the last day of such quarter
(without any adjustment to the requirements set forth in this covenant to
reflect losses in any Fiscal Year or, if applicable, in the portion of the
current Fiscal Year then ended);
(b) the Fixed Charge Coverage Ratio as of the end of the following
quarters of any Fiscal Year on a rolling four quarter basis to fall below the
following figures:
March 31, 1992 - 1.07 to 1.00
June 30,1992 - 1.05 to 1.00
September 30, 1992 - 1.03 to 1.00
December 31, 1992 - 1.01 to 1.00
and in respect of any other quarter of any Fiscal Year (both before and after
the above quarters) on a rolling four quarter basis to fall below 1.15 to
1.00; or
(c) the Total Liabilities to Adjusted Net Worth Ratio as of the end of
any quarter of any Fiscal Year to exceed 6.5 to 1;
(d) the Recourse Liabilities Ratio as of the end of any quarter of any
Fiscal Year to exceed:-
(i) 4.25 to 1 at any time up to and including 3lst March, 1992;
(ii) 4.50 to 1 at any time thereafter;
PROVIDED THAT the ratio will only increase after 3lst March 1992, if (x) no
Default has occurred during the twelve month period preceding such date and
(y) the ratings for the Company's long-term unsecured senior public debt by
any of Moody's Investors Service Inc., Standard & Poor's Corporation or Duff &
Phelps Inc. have not during such twelve month period been lower than Baa2,
BBB+ or A-, respectively;
(e) the Unencumbered Cash Flow to Contractual Payments Ratio as of
the end of any quarter of each Fiscal Year, to be less than 1.00 to 1.00;
(f) Cumulative Net Losses (arising in computing Consolidated Net
Income) in any four consecutive quarters of any Fiscal Year(s) to exceed
US$l0,000,000;
(g) the Net Cash Provided by Operating Activities Ratio as of the end
of any quarter of any Fiscal Year on a rolling four quarter basis to be
less than 0.25:1;
(h) the ratio of Remarketing Revenues to Net Book (or Residual) Value
set out in Attachment 8 to the form of Compliance Certificate attached
hereto as Exhibit P (both terms to be calculated in a manner consistent with
the computation thereof as set forth in the Company's financial statements
referred to in Clause 19.1(d)(i)) as of the end of each Fiscal Year, to be
less than l.25:1.
20.12 GUARANTEES
No Borrower will, and the Company will not permit any other member of the
Group to, become or be liable in respect of any Guarantee except for:
(a) Guarantees by the Company of lease and other obligations relating
to contract performance of its Subsidiaries in the ordinary course of
business;
(b) Guarantees by the Company of obligations of its Subsidiaries in
respect of indebtedness;
(c) the Guarantee by the Company of the obligations of its Subsidiaries
under the Global Agreement; and
(d) the Guarantee by the Company of the Additional Borrowers (as
defined in the U.S.$150,000,000 Revolving Credit Facility) pursuant to the
U.S.$150,000,000 Revolving Credit Facility.
20.13 DIVIDENDS, STOCK PURCHASES
The Company will not:-
(a) declare or pay any dividends, either in cash or property, on any
shares of its capital stock of any class (except dividends or other
distributions payable solely in shares of capital stock of the Company); or
(b) directly or indirectly, or through any Subsidiary, purchase, redeem
or retire any shares of its capital stock of any class or any warrants,
rights or options to purchase or acquire any shares of its capital stock
(other than in exchange for or out of the net proceeds to the Company from
the substantially concurrent issue or sale of other shares of capital
stock of the Company or warrants, rights or options to purchase or acquire
any shares of its capital stock); or
(c) make any other payment or distribution, either directly or
indirectly or through any Subsidiary, in respect of its capital stock,
at any time when a Default has occurred and is continuing or would result
therefrom.
20.14 SALE AND LEASEBACKS
No Borrower will, and the Company will not permit any Subsidiary to, enter
into any arrangement whereby any member of the Group shall sell or transfer
any property owned by any member of the Group to any person other than another
member of the Group and thereupon the member of the Group shall lease or
intend to lease, as lessee, the same property (any such transaction being
referred to as a "SALE AND LEASEBACK") except:
(a) Sale and Leasebacks of any disaster recovery site; and
(b) Sale and Leasebacks in the ordinary course of business of Equipment
included in the Company's leasing portfolio for the purpose of recapturing the
Company's equity investment in such Equipment.
20.15 TAKE OR PAY CONTRACTS
No Borrower will, and the Company will not permit any other member of the
Group to, enter into or be a party to any arrangement for the purchase of
materials, supplies, other property or services if such arrangement requires
that payment be made by the member of the Group regardless of whether or not
such materials, supplies, other property or services are delivered or
furnished to the member of the Group.
20.16 CONSOLIDATION, MERGER, ETC.
No Borrower will, and the Company will not permit any of its Material
Subsidiaries to, consolidate with or merge into or with any other corporation,
or purchase or otherwise acquire all or substantially all of the assets of any
person or sell, transfer, lease or otherwise dispose of all or any substantial
part of its assets to any person, except:
(a) the merger, consolidation or liquidation of any Material Subsidiary
into or with any other member of the Group;
(b) the merger, consolidation or liquidation into the Company or any
Material Subsidiary, or the acquisition by the Company or any Material
Subsidiary of all or substantially all the assets, of any other person, but
only if:
(i) such person is engaged exclusively in a business in which the
person is permitted by Clause 20.7 to engage; and
(ii) any such merger or acquisition would not cause the Company to
violate any other provision of this Agreement; or
(c) the sale, transfer, lease or other disposition of Equipment in the
ordinary course of its business;
provided, however, that any such action of the nature referred to in paragraph
(a) or (b) of this Clause shall only be permitted if no Default has occurred
and is continuing or would result therefrom.
20.17 PLANS
No Borrower will, and the Company will not permit any ERISA Affiliate to,
establish, or incur or suffer to exist any obligations with respect to, any
employee pension benefit plan maintained for the employees of the Company or
any ERISA Affiliate and covered by Title IV of ERISA.
20.18 SUBORDINATED DEBT
No Borrower will, and the Company will not permit any other member of the
Group to pay or prepay any principal of, or make any payment of interest on,
or redeem, purchase or otherwise acquire any Subordinated Debt at any time a
Default has occurred and is continuing.
20.19 INCONSISTENT AGREEMENTS
No Borrower will, and the Company will not permit any other member of the
Group to, enter into any agreement containing any provision which would be
violated or breached by any borrowing by the Borrowers made under this
Agreement or by the performance by the Borrowers of their obligations under
the Finance Documents.
20.20 CP NOTES
The Company will not amend or modify any of the terms or provisions of the
Depositary Agreements, the Dealer Agreements, the CP Notes or any memorandum
prepared by a CP Dealer with regard to the distribution of the CP Notes
without the prior written consent of the Letter of Credit Agent and the
relevant Issuing Bank.
20.21 DEPOSITARY AND CP DEALERS
Save as otherwise permitted in this Agreement, the Company will not replace
the Depositary or the CP Dealers without the prior written consent of the
Letter of Credit Agent and the relevant Issuing Bank.
20.22 OFFERING CIRCULAR
Neither Issuer will include any material relating to any Agent or any Bank in
any offering circular used in the offering or sale of CP Notes and will only
include in such offering circular material relating to the Facilities or an
Issuing Bank with such Issuing Bank's prior written approval.
20.23 ERISA AND COMPLIANCE WITH REQUIREMENTS OF LAW
The Company shall comply with all applicable provisions of ERISA now or
hereafter in effect. The Company will, and will cause each Subsidiary to,
comply in all respects with all Requirements of Law, the noncompliance with
which could have a material adverse effect on the business operations,
financial condition or properties of the Company or any Subsidiary or on the
ability of the Company to perform its obligations under this Agreement.
21. DEFAULT
21.1 EVENTS OF DEFAULT
Each of the following events is an Event of Default:
(a) Non-Payment under the Finance Documents
(i) Default, and the continuance thereof for three Business Days
following written notice from the Facility Agent, in the payment when due of
any interest or any fee or other amount payable by a Borrower under the
Finance Documents or (ii) default, and the continuance thereof for one
Business Day in the payment when due of any amount payable under Clause 9.l3,
or (iii) default in the payment when due of any principal;
(b) Non-Payment of Other Indebtedness
Any member of the Group defaults in the payment when due, whether by
acceleration or otherwise (subject to any applicable grace period), of any
other indebtedness of, or guaranteed by, any member of the Group other than
(i) any indebtedness of any Subsidiary to any other member of the Group and
(ii) any Non-Recourse Obligation; and provided that the amount of any
individual item of indebtedness shall be at least the higher of the Individual
Material Amount or the aggregate amount of all such indebtedness shall be in
excess of the Aggregate Material Amount;
(c) Acceleration of Other Indebtedness
Any event or condition occurs which results in the acceleration of the
maturity of any indebtedness of, or guaranteed by, any member of the Group
(other than any indebtedness of any Subsidiary to any other member of the
Group and other than any Non-Recourse Obligation) or enables the holder or
holders of any such indebtedness or any trustee or agent for such holders (any
required notice of default having been given and any applicable grace period
having expired) to accelerate the maturity of such indebtedness; provided that
(other than in the case of the Existing Facility Agreement) the amount of any
individual item of indebtedness shall be at least equal to the Individual
Material Amount (or its equivalent) or the aggregate amount of all such
indebtedness shall be in excess of the Aggregate Material Amount (or its
equivalent);
(d) Other Obligations
Default in the payment when due, whether by acceleration or otherwise, or in
the performance or observance (subject to any applicable grace period) of any
material obligation or agreement of any member of the Group to or with any
other person involving any individual claim in excess of the Individual
Material Amount (or its equivalent) or claims together aggregating in excess
of the Aggregate Material Amount (or its equivalent) other than:
(i) any such material obligation or agreement constituting or
related to indebtedness;
(ii) any agreement of a Borrower under the Finance Documents; and
(iii) any material obligation or agreement of any Subsidiary to any
other member of the Group,
except to the extent that the existence of any such default is being contested
by the relevant member of the Group, in good faith and by appropriate
proceedings and the relevant member of the Group has set aside on its books
such reserves or other appropriate provisions therefor as may be required by
generally accepted accounting principles;
(e) Insolvency of any Borrower or a Material Subsidiary
(i) Any Borrower or any Material Subsidiary shall become insolvent or
generally fail to pay, or admit in writing its inability or refusal to pay,
debts as they become due; or
(ii) any Borrower or any Material Subsidiary shall make a general
assignment for the benefit of creditors; or
(iii) any Borrower or any Material Subsidiary shall apply for, consent
to, or acquiesce in the appointment of a trustee, receiver or other
custodian for such Borrower or such Material Subsidiary or any property of
any thereof, or, in the absence of such application, consent or acquiescence,
a trustee, receiver or other custodian shall be appointed for any Borrower or
any material Subsidiary or for a substantial part of the property of any
thereof and not be discharged within 60 days; or
(iv) any bankruptcy, reorganisation, debt arrangement, or other case
or proceeding under any bankruptcy or insolvency law, or any dissolution or
liquidation proceeding (except the voluntary dissolution, not under any
bankruptcy or insolvency law, of any Material Subsidiary), shall be commenced
in respect of any Borrower or any Material Subsidiary, and, if not commenced
by such Borrower or such Material Subsidiary, shall be consented to or
acquiesced in by such Borrower or such Material Subsidiary or remain for 60
days undismissed; or
(v) any Borrower or any Material Subsidiary shall take any corporate
action to authorise, or in furtherance of, any of the foregoing;
(f) Insolvency of Other Subsidiaries
In any twelve-month period, Subsidiaries having aggregate total assets of
U.S.$20,000,000 or more:
(i) shall become insolvent or generally fail to pay or admit in writing
inability or refusal to pay debts as they become due; or
(ii) shall make general assignments for the benefit of creditors; or
(iii) shall apply for, consent to or acquiesce in the appointment of
trustees, receivers or other custodians for such Subsidiaries or any property
thereof, or, in the absence of such application, consent or acquiescence,
trustees, receivers or other custodians shall be appointed for such
Subsidiaries or for a substantial part of the property thereof and shall not
be discharged within 60 days;
(iv) shall become the subject of any bankruptcy, reorganisation, debt
arrangement or other case or proceeding under any bankruptcy or insolvency
law, or any dissolution or liquidation proceeding (except voluntary
dissolution not under any bankruptcy or insolvency law), and if not commenced
by the applicable Subsidiary, shall be consented to or acquiesced in or remain
for 30 days undismissed; or
(v) shall take any corporate action to authorise or in furtherance of
any of the foregoing;
it being understood that if any 60-day period provided in clause (iii) above
or 30-day period provided in clause (iv) above would end after any
twelve-month period, then such twelve-month period shall be extended to
include the additional number of days necessary to include all of the 60 and
30-day periods provided by clause (iii) and (iv) for all Subsidiaries covered
by this clause (f);
(g) Agreements
(i) The Company shall default in the due performance of any agreement
contained in Clauses 20.10, 20.11, 20.13, 20.18, 20.19, 20.20, 20.21; or
(ii) any Borrower shall default in the due performance of any other
agreement set forth herein (and not constituting an Event of Default under any
of the other provisions of this Clause 21.1) and such default continues for 30
days after notice thereof to the Company from the Facility Agent;
(h) Warranty
Any representation or warranty made by a Borrower in this Agreement shall be
untrue or misleading in any material respect when made or deemed made or
repeated ; or any schedule, statement, report, notice, certificate or other
writing furnished by a Borrower to the Facility Agent or any Bank shall be
untrue or misleading in any material respect on the date as of which the facts
set forth therein are stated or certified; or any certification made or deemed
made or repeated by a Borrower to the Facility Agent or any Bank shall be
untrue or misleading in any material respect on or as of the date made or
deemed made or repeated;
(i) Litigation
There shall be entered against any member of the Group one or more judgments
or decrees in excess of an amount equal to, individually, the Individual
Material Amount or, in the aggregate, the Aggregate Material Amount at any one
time outstanding for the Group and all such judgments or decrees shall not
have been vacated, discharged, stayed or bonded pending appeal within 60 days
from the entry thereof, excluding those judgments or decrees for and to the
extent which the applicable member of the Group is insured and with respect to
which the insurer has assumed responsibility in writing or for and to the
extent which the member of the Group is otherwise indemnified if the terms of
such indemnification are satisfactory to the Majority Underwriters; or
(j) Change of Control
Any person or group of persons (within the meaning of Section 13 or 14 of the
Securities Exchange Act of 1934, as amended), shall acquire beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the Securities and
Exchange Commission under such Act) of 35 per cent. or more of the outstanding
shares of common stock of the Company.
21.2 ACCELERATION
(a) Subject to paragraph (b) below, upon the occurrence of an Event of
Default and at any time thereafter so long as the same is continuing, the
Facility Agent may, and shall if so directed by the Majority Underwriters or,
in the case of the Letter of Credit Facility, the Letter of Credit Agent or
any Issuing Bank, by notice to the Company:
(i) declare that the Facilities or any of them shall be cancelled
forthwith, whereupon the same shall be so cancelled; and/or
(ii) declare all or part of the Advances immediately due and payable,
whereupon they shall become immediately due and payable together with all
interest accrued thereon and all other amounts payable under the Finance
Documents; and/or
(iii) declare that each Borrower shall immediately perform all its
obligations under Clause 13.2 (whether or not they are then due for
performance) in respect of all outstanding Bills, whereupon each Borrower
shall immediately perform those obligations.
(b) Upon the occurrence of an Event of Default referred to in Clause
21.1(e):
(i) the Facilities shall be automatically cancelled;
(ii) the Advances shall automatically become due and payable,
together with all interest accrued thereon and all other amounts payable
under the Finance Documents; and
(iii) each Borrower shall immediately perform all its obligations
under Clause 13.2 in respect of all outstanding Bills,
without presentment, demand, protest or other formalities of any kind, all of
which are expressly waived by the Borrowers.
21.3 RETIREMENT OF LETTERS OF CREDIT
(a) Subject to paragraph (b) below, on and at any time after the
occurrence of an Event of Default the Facility Agent may, and shall if so
directed by the Majority Underwriters, the Letter of Credit Agent or any
Issuing Bank, by notice to the Company:
(i) cancel the Letter of Credit Commitments; and/or
(ii) by notice to the Company require the Company to pay to the
Facility Agent for crediting to the Cash Collateral Account an amount in
Dollars equal to the difference on the day such notice is given between (a)
the Letter of Credit Outstandings and (b) the amount (if any) then standing
to the credit of the Cash Collateral Account; the Company shall forthwith
comply with such requirement and such requirement shall immediately
constitute a liquidated and accrued debt due and payable for the benefit of
the Banks pro rata; and/or
(iii) issue an Acceleration Notice (as defined in the Letter of
Credit); and/or
(iv) enter into any arrangements which the Facility Agent may (with
the consent of the Majority Underwriters and the Issuing Bank) consider fit
in respect of the Banks' liabilities to each Issuing Bank under Clause 9.15
(Reimbursement from the Banks) and (with the consent of the Issuing Bank) each
Issuing Bank's liabilities in respect of the Letter of Credit issued by it
(including, but not limited to, negotiating any compromise, release, reduction
or retirement of the Issuing Bank's liability in respect of such Letter of
Credit then outstanding) and any payment made pursuant to the same shall be
treated as a payment made pursuant to a demand under the Letter of Credit for
the purposes of Clause 9.17 (Indemnity).
(b) Upon the occurrence of an Event of Default referred to in Clause
21.1(e), and, in addition to the application of paragraph (a) above:
(i) the Letter of Credit Commitments shall be automatically cancelled;
and
(ii) each Issuer shall automatically comply with Clause 21.3(a)(ii)
without notice from the Facility Agent,
without presentment, demand, protest or other formalities of any kind, all of
which are expressly waived by the Issuers.
(c) As security for the payment when due of all of the obligations
of the Issuers under this Agreement and the Letters of Credit, each Issuer
hereby pledges, charges and assigns and agrees to pledge, charge and assign
all of its right, title and interest in the Cash Collateral Account to the
Facility Agent for the benefit of the Issuing Banks and the Underwriters, to
the extent permitted by law and without prejudice to any rights of set-off
and agrees on request to enter into such further documentation as the
Facility Agent may reasonably require to give effect to or to perfect the
security created or agreed to be created by this clause and hereby
irrevocably appoints the Facility Agent as its attorney for the purposes of
executing any such documentation on its behalf.
22. ACCOUNTS AS EVIDENCE
Accounts maintained by a Bank in connection with this Agreement shall
constitute prima facie evidence of sums owing to the Bank.
23. THE AGENTS, THE ARRANGER AND THE ISSUING BANKS
23.1 APPOINTMENT
(a) Each Bank and the Arranger irrevocably appoints each of the Facility
Agent, the Swingline Agent and the Letter of Credit 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 and the Letters of Credit, 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 and
discretions as are reasonably incidental thereto.
(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 or the Letters of Credit, each of the Facility
Agent, the Swingline Agent and the Letter of Credit 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, the Swingline Agent and the Letter of Credit Agent may act
or refrain from acting as it shall see fit. 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, the Swingline Agent and the Letter of Credit
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, Issuing Bank
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.
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, the Issuing Banks 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
Neither the Facility Agent nor the Letter of Credit Agent shall 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. Neither
the Facility Agent nor the Letter of Credit Agent shall 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 or the Letter of Credit 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 (and, in
the case of the Letter of Credit Agent, it shall promptly give notice thereof
to the Facility Agent, which shall promptly notify the Banks thereof). 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 or,
as regards the Letter of Credit Facility, by the Majority Underwriters or any
Issuing Bank. 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
None of the Agents nor the Issuing Banks or 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
Each of the Agents and Issuing Banks 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, the
Issuing Banks 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, Issuing Bank 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 its related entities. Each Bank represents, warrants and undertakes to
each of the Agents, the Issuing Banks 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, the Issuing Banks 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 or Issuing Bank 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 or Issuing Bank, constitute a breach of any law or
any duty of secrecy or confidence.
23.11 THE AGENTS, THE ISSUING BANKS AND THE ARRANGER INDIVIDUALLY
(a) If it is also a Bank, each of the Agents, the Issuing Banks 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, Issuing Bank or the Arranger.
(b) Each of the Agents, the Issuing Banks 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 paragraphs (c) and (d) 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 paragraphs (c) and (d) below, each Underwriter shall
indemnify the Facility Agent, the Swingline Agent, each Issuing Bank and the
Letter of Credit 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 and disbursements of any kind
which may be imposed on, incurred by or asserted against the Facility Agent,
the Swingline Agent, the Issuing Bank or the Letter of Credit Agent in any
way relating to or arising out of its acting as the Facility Agent, the
Letter of Credit Agent, Issuing Bank 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 or Issuing Bank's negligence or
wilful misconduct.
(d) In respect of the Euro-CP Programme, the Underwriters shall not be
liable to the Issuing Bank in respect of payments by it under its Letter of
Credit insofar as such payments represent Additional Amounts Drawings (as
defined in the Letter of Credit) or that part of any drawing made to pay
Additional Amounts (as defined in the Letter of Credit).
23.13 LEGAL RESTRICTIONS
Each of the Agents and Issuing Banks 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 (in the case
of the Facility Agent or the Letter of Credit Agent) 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", "LETTER OF CREDIT 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", "LETTER OF CREDIT AGENT" or "SWINGLINE AGENT", as appropriate, shall
mean the successor Agent. This Clause 23 shall continue to benefit an Agent
who is removed in respect of any action taken or omitted by it under this
Agreement while it was an Agent.
24 FEES
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 at the rate of 0.20 per cent.
per annum on the amount of that Underwriter's Commitment during the period
from December 30, 1994 up to and including the Final Maturity Date for that
Underwriter. The amount of such fee payable to an individual Underwriter
shall be reduced by the amount of the facility fee payable to such Underwriter
during that period in respect of such Underwriter's commitment under the
Existing Facility Agreement or under the Continental Agreement or under the
Global Agreement (Original).
(b) If, following any cancellation of an Underwriter's Commitment under
this Agreement, there are outstanding Committed Advances made or accepted by
the Underwriter or any L/C Amount attributable to an Underwriter and its
Affiliated Bank(s) in an aggregate principal amount in excess of the
Underwriter's Commitment at that time, then, for the purpose of calculating
facility fee payable under this Clause 24.1 only and notwithstanding any other
provision of this Agreement to the contrary, the Underwriter's Commitment
shall be deemed to be the greater of:
(i) the aggregate principal amount of the Committed Advances and the
L/C Amount made by or attributed to the Underwriter and its Affiliated
Bank(s); and
(ii) the amount which, but for this paragraph (b), would have been its
Commitment.
(c) Accrued facility fee shall be payable quarterly in arrear on
September 4, December 4, March 4 and June 4 in each calendar year and on the
Final Maturity Date and shall be calculated to and including the last day of
the immediately preceding month. Accrued facility fee shall also be
payable to the Facility Agent for the account of the relevant Underwriter(s)
on the cancelled amount of any Commitment at the time the cancellation
comes into effect.
24.2 LETTER OF CREDIT FEE
(a) The Company shall pay to the Facility Agent a letter of credit fee
computed in Dollars of
0.35 per cent. per annum on the total Letter of Credit Outstandings from
time to time for the account of the Banks in the proportion which the total of
each Bank's L/C Amount bears to the Total L/C Amounts. Such fee shall be
payable during the Tenor of each Letter of Credit.
(b) Accrued letter of credit fee shall be payable quarterly in arrears
on September 4, December 4, March 4 and June 4 in each calendar year and
shall be calculated to and including the last day of the immediately
preceding month. Accrued letter of credit fee shall also be payable to the
Facility Agent for the account of the Banks on the Maturity Date of each
Letter of Credit.
24.3 ACCRUAL
The facility fee and letter of credit fee referred to in Clauses 24.l and 24.2
respectively 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.
24.4 MANAGEMENT FEE
The Company shall pay to the Facility Agent for the account of the Arranger on
the date falling thirty days after the Signing Date or (if earlier) the date
of the first Utilisation a management fee in the amount agreed between the
Facility Agent and the Company in a letter dated the Signing Date for
distribution to the Underwriters in the proportions agreed between the
Arranger and the Underwriters prior to the Signing Date.
24.5 FACILITY AGENT'S FEE
The Company shall pay to the Facility Agent for its own account an annual
agency fee of the amount agreed between the Facility Agent and the Company in
the letter referred to in Clause 24.4. The Facility Agent's fee shall be
payable quarterly in advance for so long as any amount is or may be
outstanding under the Finance Documents or any Commitment is in force. The
first such payment will be made within 30 days of the Signing Date and
subsequent quarterly payments will be made on September 4, December 4, March 4
and June 4 in each calendar year.
24.6 ISSUING BANKS' FEES
The Company shall pay to the Facility Agent for the account of the Issuing
Banks fees relating to Letters of Credit, the non- utilisation or cancellation
thereof and Total L/C Obligations as agreed between the Company and the
Issuing Banks in a letter dated the Signing Date.
24.7 LETTER OF CREDIT AGENT'S FEE
The Company shall pay to the Letter of Credit Agent for its own account an
annual agency fee in the amount agreed between the Letter of Credit Agent and
the Company in a letter dated the Signing Date. The Letter of Credit Agent's
fee shall be payable on the same basis and at the same time as the fee
referred to in Clause 24.5.
24.8 VAT
Any fee referred to in this Clause 24 is exclusive of any value added tax or
any other tax chargeable in connection with that fee. If any value added tax
or other tax is so chargeable, it shall be paid by the relevant Borrower at
the same time as it pays the relevant fee.
25. EXPENSES
25.1 FACILITY EXPENSES
The Company shall reimburse the Facility Agent or the Arranger, as
appropriate, and, in addition in the case of paragraph (c) below, the Letter
of Credit Agent on demand for the reasonable charges and expenses (together
with value added tax or any similar tax thereon and including, without
limitation, the reasonable fees and expenses of legal advisers) incurred by
the Facility Agent or the Arranger or, in the case of paragraph (c) below, the
Letter of Credit Agent, as the case may be, in connection with:
(a) the negotiation, preparation, printing and execution of this
Agreement and any other documents referred to in this Facility Agreement;
(b) any other Finance Document; and
(c) all supplements, waivers and variations in relation to the Finance
Documents and any other documents referred to therein.
25.2 ENFORCEMENT EXPENSES
The Company shall reimburse each of the Financial Institutions on demand for
the charges and expenses (together with value added tax or any similar tax
thereon and including, without limitation, the fees and expenses of legal
advisers) incurred by any of them in connection with the enforcement of, or
the preservation of any rights under, any of the Finance Documents.
26. STAMP DUTIES
The Company shall pay, and on demand indemnify, each of the Financial
Institutions against any and all stamp, registration and similar Taxes which
may be payable in connection with the entry into or performance of any of the
Finance Documents (other than any Substitution Certificate) or the enforcement
of any of the Finance Documents.
27. AMENDMENTS, WAIVERS, REMEDIES CUMULATIVE
27.1 AMENDMENTS
(a) Subject to paragraph (b) below, if authorised by the Majority
Underwriters, the Facility Agent may, on behalf of the Banks, grant waivers or
consents or (with the prior consent of the Company) vary the terms of the
provisions of any Finance Document, unless the express provisions of the
relevant Finance Document provide that the same can only be granted or
effected by another authority. Notwithstanding the foregoing, the terms of
any Letter of Credit or Depositary Agreement or any other document in respect
of a CP Programme and the provisions of this Agreement relating to the Letters
of Credit, Depositary Agreement and CP Programmes may be varied with the
approval of the Company, the Facility Agent acting on behalf of the Banks and
the relevant Issuing Bank if such variation is required by either Standard and
Poor's Corporation or Duff & Phelps, Inc. provided such variation does not, in
the reasonable opinion of the Facility Agent, increase the obligation of any
Bank under this Agreement. Any waiver, consent or variation so authorised and
effected by the Facility Agent shall be binding on all the Contracting Parties
and the Facility Agent shall be under no liability whatsoever in respect of
any such waiver, consent or variation.
(b) Nothing in paragraph (a) above shall authorise:
(i) except with the prior consent of all the Underwriters:
(A) subject to Clause 2.4, the extension of any Final Maturity
Date; or
(B) any variation of the definition of "MAJORITY UNDERWRITERS" in
Clause 1.1; or
(C) any change in any rate at which interest is payable under any
of the Finance Documents; or
(D) any extension of the date for, or alteration in the amount or
currency of, any payment of principal, interest, fee, commission or any other
amount payable under any of the Finance Documents; or
(E) any increase in any Underwriter's Commitment; or
(F) subject to Clause 29.10, the incorporation of additional
borrowers and/or drawers; or
(G) any variation or amendment to any provision of the Finance
Documents requiring the unanimous consent of the Underwriters which would
result in the removal of such requirement; or
(H) any release of the Guarantee contained in Clause 18.
(ii) except with the prior consent of a Tender Panel Member which has
made an Uncommitted Advance or accepted a Bill, which is still outstanding:
(A) any change in the rate at which interest is payable in respect
of the Uncommitted Advance; or
(B) any agreed extension of the date for, or alteration in the
amount or currency of, any payment of principal or interest on the
Uncommitted Advance or any commission in respect of the Bill;
and
(iii) except with the prior consent of all the Underwriters and
Tender Panel Members which have made Uncommitted Advances or accepted
Bills, which are still outstanding, any variation of Clause 32 (Pro Rata
Sharing) or this Clause 27.1.
27.2 WAIVERS
No failure to exercise and no delay in exercising, on the part of any
Contracting Party, any right, power or privilege under any Finance Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege preclude any other or further exercise thereof,
or the exercise of any other right, power or privilege. No waiver by any
Contracting Party shall be effective unless it is in writing and signed by the
waiving party.
27.3 REMEDIES CUMULATIVE
The rights and remedies of each Contracting Party provided in the Finance
Documents are cumulative and not exclusive of any rights or remedies provided
by law.
28. NOTICES
28.1 ADDRESS
(a) Except as otherwise stated in this Agreement, all notices or other
communications under this Agreement to any Contracting Party shall be made by
letter, telex (other than to any Bank without a telex facility) or facsimile
and shall be deemed to be duly given or made when delivered (in the case of a
letter), when despatched (in the case of telex, provided always that the
relevant answerback has been received) or when received (in the case of
facsimile) to or by the Contracting Party addressed to it at its address,
telex number or facsimile number:
(i) notified to the Facility Agent prior to the Signing Date; or
(ii) in the case of a Contracting Party which becomes a Contracting
Party after the Signing Date, notified to the Facility Agent before or at the
time it becomes a Contracting Party;
(iii) in the case of the Facility Agent and Tender Panel Agent, at its
address, telex number of facsimile number set out in paragraph (b) below; or
(iv) in the case of the Swingline Agent, at its address, telex number
or facsimile number set out in paragraph (c) below; or
(v) in the case of the Letter of Credit Agent, at its address and
facsimile number set out in paragraph (d) below; or
(vi) in the case of each Borrower, at the Company's address, telex
number or facsimile number set out in paragraph (e) below; or
(vii) as the Contracting Party may, after the Signing Date, specify to
the Facility Agent for such purpose by not less than five Business Days'
notice; or
(viii) in the case of the Facility Agent, as the Facility Agent may
specify to the other Contracting Parties, for such purpose by not less than five
Business Days' notice.
(b) The Facility Agent's and Tender Panel Agent's address, telex
number and facsimile number for notices as at the Signing Date is:
King's Cross House,
200 Pentonville Road,
King's Cross,
London N1 9HL.
Telex No.: 8813611
Facsimile No.: 01-837 0582
For the attention of: Manager, Commercial Loans.
(c) The Swingline Agent's address, telex number and facsimile number for
notices as at the Signing Date is:
175 Water Street,
New York, New York 10038
U.S.A.
Telex No.: 233222
Facsimile No.: 212 602-4118
For the attention of: Managers Department.
(d) The Letter of Credit Agent's address, telex number and facsimile
number for notices as at the Signing Date is:-
75 Wall Street
New York, N.Y. l0265
Facsimile No: (212) 4l2-4090/3460/3080
For the attention of: Larry Sola
(e) The Company's address, telex number and facsimile number for notices
as at the Signing Date is:
6111 North River Road,
Rosemont, Illinois 60018
USA
Telex No.: 4330257 COMD UI
Facsimile No.: 312 518 5060/5854
For the attention of: Raymond J. Siegel,Vice President and Treasurer
28.2 NON-WORKING DAYS
A notice or other communication received on a non-working day or after
business hours in the place of receipt shall be deemed to be served on the
next following working day in that place.
28.3 AGENTS
If the Facility Agent and the Tender Panel Agent shall cease to be the same
entity, a copy of all notices sent between the Borrowers and the Tender Panel
Agent shall also be sent to the Facility Agent.
29. ALTERATIONS TO THE CONTRACTING PARTIES
29.1 SUCCESSORS
This Agreement shall be binding upon and inure to the benefit of each of the
Contracting Parties and their respective successors and permitted assigns.
29.2 ASSIGNMENTS AND TRANSFERS BY BORROWERS
No Borrower may assign or otherwise transfer all or any part of its rights or
obligations under the Finance Documents without the prior consent of all the
Underwriters.
29.3 ASSIGNMENTS AND TRANSFERS BY BANKS
(a) Subject to paragraph (b) below, any Bank (the "ASSIGNOR") may at any
time (with the prior written consent of the Company and the Issuing Banks)
assign or otherwise transfer all or any part of its rights or obligations
under this Agreement to another bank or financial institution (the
"ASSIGNEE").
(b) (i) Prior consent of the Company shall not be required in the case
of an assignment or transfer to any Federal Reserve Bank or an Affiliate of
the Assignor or to another Bank or an Affiliate of another Bank, but, in any
such case, the Assignor shall give prompt notice of the assignment or transfer
to the Facility Agent and the Letter of Credit Agent.
(ii) Prior consent of the Issuing Banks shall not be required if the
assignment or transfer occurs after the latest date for issuance of Letters of
Credit under Clause 9 (and no Letters of Credit have been issued) or occurs
after such date and does not relate to or affect all or any part of the
Assignor's rights or obligations under Clause 9 of this Agreement.
(iii) A transfer of obligations shall only be effective if the
Assignee has confirmed to the Facility Agent and the Company (on behalf of
itself and the other Borrowers), prior to the transfer taking effect, that it
undertakes to be bound by the terms of this Agreement as a Bank in form and
substance satisfactory to the Facility Agent and the Company; on any such
transfer becoming effective and the Assignee becoming bound, the Assignor
shall be relieved of its obligations to the extent that they are transferred
to the Assignee.
(iv) Each Assignee shall be deemed to make the representations and
warranties set forth in Clause 15.4(d) and to undertake the obligations set
forth in Clause 15.4(e).
(c) Nothing in this Agreement restricts the ability of a Bank:
(i) to sub-contract an obligation if that Bank remains liable under
this Agreement for that obligation; or
(ii) to sub-participate its rights. However in the case of any such
sub-contract or sub-participation, the Bank must retain sole management and
voting powers under this Agreement in relation to the obligations and rights
concerned.
29.4 SUBSTITUTION CERTIFICATES
(a) If any Bank (the "EXISTING BANK") wishes to transfer all or any
of its rights and/or obligations under this Agreement to another bank or
financial institution (the "NEW BANK") as contemplated in Clause 29.3, then,
as an alternative to Clause 29.3 and subject to paragraph (b) below, such
transfer may (with the prior written consent of the Company and the Issuing
Banks) be effected by way of a novation by the delivery to, and the
execution by, the Facility Agent (which shall promptly notify the Letter of
Credit Agent) of a duly completed certificate, substantially in the form of
Exhibit J (a "SUBSTITUTION CERTIFICATE").
(b) (i) Prior consent of the Company shall not be required in the case
of a transfer to any Federal Reserve Bank, an Affiliate of the Existing Bank
or to another Bank or to an Affiliate of another Bank, but, in any such case,
the Existing Bank shall give prompt notice thereof to the Facility Agent and
the Letter of Credit Agent.
(ii) Prior consent of the Issuing Banks shall not be required if the
transfer occurs after the latest date for issuance of Letters of Credit under
Clause 9 (and no Letters of Credit have been issued) or occurs after such date
and does not relate to or affect all or any part of the Existing Bank's rights
or obligations under Clause 9 of this Agreement.
(c) On the date specified in the Substitution Certificate:
(i) to the extent that in the Substitution Certificate the Existing
Bank seeks to transfer its rights and/or obligations under this Agreement,
each Borrower and the Existing Bank shall each be released from further
obligations to each other under this Agreement and their respective rights
against each other shall be cancelled (such rights and obligations being
referred to in this Clause 29.4 as "DISCHARGED RIGHTS AND OBLIGATIONS");
(ii) each Borrower and the New Bank shall each assume obligations
towards each other and/or acquire rights against each other which differ from
the Discharged Rights and Obligations only insofar as the Borrower and
the New Bank have assumed and/or acquired them in place of the Borrower and
the Existing Bank;
(iii) the New Bank and the other Contracting Parties shall acquire the
same rights and assume the same obligations between themselves as they would
have acquired and assumed had the New Bank been a Contracting Party as a
Bank with the rights and/or the obligations acquired or assumed by it as a
result of the transfer, and, on the date upon which the transfer takes
effect, the New Bank named therein shall pay to the Facility Agent for its
own account a transfer fee of 200; and
(iv) each New Bank shall be deemed to make the representations and
warranties set forth in Clause 15.4(d) and to undertake the obligations set
forth in Clause 15.4(e).
(d) (i) Subject to sub-paragraph (ii) below, each of the Contracting
Parties authorises the Facility Agent to execute any duly completed
Substitution Certificate on its behalf.
(ii) The authorisation contained in sub-paragraph (i) above does not
extend to the execution of a Substitution Certificate on behalf of either the
Existing Bank or the New Bank named therein.
(e) The Facility Agent shall promptly notify the other Contracting
Parties of the receipt and execution on their behalf by it of any Substitution
Certificate.
29.5 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not an Underwriter, the
Underwriter of which it is an Affiliate) ceases to be one of the Underwriters,
the Facility Agent will, in consultation with the Company, appoint another
Underwriter or an Affiliate of an Underwriter as a Reference Bank.
29.6 DISCLOSURE
Each Bank may disclose to a proposed assignee or transferee or a New Bank or
any sub-participant, risk participant or other participant proposing to enter
or having entered into a contract with the Bank regarding any Finance Document
any information in the possession of the Bank received under this Agreement
relating to any Borrower or any of its related entities as it sees fit.
29.7 CHANGE OF FACILITY OFFICE
Each Bank shall participate in this Agreement through its Facility Office(s),
but may change any Facility Office from time to time by five Business Days'
prior notice to the Facility Agent.
29.8 INCREASED COSTS/WITHHOLDING TAXES
If:
(a) any assignment or transfer of all or any part of the rights or
obligations of a Bank pursuant to Clause 29.3 or 29.4; or
(b) any change in a Bank's Facility Office,
results at that time in amounts becoming due under Clause 15.4(b) (Taxes) or
16.1 (Increased Costs), then the assignee, transferee, New Bank or Bank, as
the case may be, shall be entitled to receive those amounts only to the extent
that the assignor, transferor, Existing Bank or Bank, as the case may be,
would have been so entitled had there been no assignment, transfer,
substitution or change in Facility Office.
29.9 THE TENDER PANEL
(a) Subject to paragraph (b) below, the Company may, after consultation
with the Tender Panel Agent, from time to time require the termination or
suspension of the right of any Tender Panel Member to make offers in respect
of proposed Utilisations by notice to the Tender Panel Agent and the Tender
Panel Member concerned.
(b) Any termination under paragraph (a) above shall be without prejudice to
the validity of any offer of the Tender Panel Member which was accepted before
the termination. The Company shall not be permitted to terminate or suspend
the membership of any Tender Panel Member for as long as the Tender Panel
Member is an Underwriter or an Affiliate of an Underwriter.
(c) The Company may from time to time, with the prior consent of the
Facility Agent, nominate any bank or financial institution as a new Tender
Panel Member, in which event:
(i) the Company shall procure the delivery to the Facility Agent of
an undertaking, substantially in the form set out in Exhibit K, duly
completed by the proposed Tender Panel Member;
(ii) upon the delivery of the undertaking to the Facility Agent and
the counter-signature thereof by the Facility Agent on behalf of all the
Contracting Parties, the proposed Tender Panel Member shall become a
Contracting Party with the rights and obligations of a Tender Panel Member and
references to the Tender Panel Members shall include the new Tender Panel
Member; the Facility Agent is authorised by the Contracting Parties to
counter-sign on their behalf a copy of any undertaking; and
(iii) the Facility Agent shall notify the Company and the other Tender
Panel Members accordingly.
(d) Any Tender Panel Member may, by notice to the Tender Panel Agent,
retire as a Tender Panel Member, whereupon its right to receive notice of any
Request shall be terminated. The Tender Panel Agent shall notify the Company
and the other Tender Panel Members accordingly.
29.10 BANKS
The Company may from time to time with the prior written consent of the
Issuing Banks and upon notice to the Facility Agent and the relevant Bank
request that the relevant Bank transfer all or any of its rights and/or
obligations under this Agreement to another bank or financial institution
nominated by the Company, in which event, provided that, as a result of the
transfer, the credit rating issued by each of Standard & Poor's Corporation
and Duff & Phelps, Inc. would be equal to or higher than that issued under
Clause 9.2 of this Agreement,
(i) such transfer shall be effected by way of novation pursuant to
Clause 29.4 and the Company shall deliver to the relevant Bank a Substitution
Certificate duly executed by the bank or financial institution nominated by
the Company as a "NEW BANK" in accordance with Clause 29.4.
(ii) Immediately upon receipt of the Substitution Certificate the relevant
Bank will execute the same as the "EXISTING BANK" in accordance with Clause
29.4 and deliver the Substitution Certificate to the Facility Agent as
provided in Clause 29.4(a).
29.11 ADDITIONAL BORROWERS AND BORROWERS' AGENT
(a) If the Company wishes any Subsidiary (the "PROPOSED BORROWER") to
become an Additional Borrower, then:
(i) the Company may, if the Subsidiary is a Specified Subsidiary, or
with the prior consent of all the Underwriters if the Subsidiary is not a
Specified Subsidiary, deliver to the Facility Agent the following documents
in form and substance satisfactory to the Facility Agent:
(A) a Letter of Accession duly executed by the Proposed Borrower
and the Company;
(B) a copy of the constitutive documents of the Proposed Borrower;
(C) copies of all other resolutions, authorisations, approvals,
consents and licences, corporate, official or otherwise, necessary or
desirable for the entry into and performance of the Letter of Accession and
the transactions contemplated thereby and for the validity and enforceability
thereof;
(D) a copy of a resolution of the Board of Directors of the
Proposed Borrower approving the Letter of Accession and authorising a
specified person or persons, on behalf of the Proposed Borrower, to execute
the Letter of Accession and to sign and/or despatch all notices, certificates
and other documents to be signed and/or despatched under the Finance
Documents to which it is or will be a party;
(E) a copy of the signatures of those persons authorised, on
behalf of the Proposed Borrower to execute the Letter of Accession and to
sign and/or despatch all notices, certificates and other documents in
connection with the Finance Documents;
(F) A copy of the balance sheet and statements of income,
shareholders' equity and cash flows for the preceding two Fiscal Years
and the financial quarters (if any) succeeding the end of the last Fiscal Year;
(G) legal opinion(s) from legal advisers acceptable to the
Facility Agent, addressed to the Financial Institu-tions, in such form as the
Facility Agent may reasonably require; and
(H) such other documents, consents, licences, opinions,
certificates and authorisations as the Facility Agent may reasonably request.
Each of the documents specified in sub-paragraphs (B) to (E) (inclusive) and
(G) above shall be certified by a duly authorised officer of the Proposed
Borrower as being correct, complete and in full force and effect as at a date
no earlier than the date of the Letter of Accession; and
(ii) the Facility Agent shall promptly notify the Company and the
other Financial Institutions of receipt of all of the above documents in
form and substance satisfactory to the Facility Agent, whereupon the proposed
Borrower shall become an Additional Borrower with like rights and obligations
as though it had been an original Contracting Party as a Borrower and
references to the Borrowers shall include the Proposed Borrower with effect
from the date of the notification or (if later) the date referred to as the
"ACCESSION DATE" in the relevant Letter of Accession.
(b) If the Company wishes on behalf of the Borrowers to appoint a
Borrowers' Agent or to replace the Borrower's Agent so appointed then:
(i) the Company shall deliver to the Facility Agent the following
documents in form and substance satisfactory to the Facility Agent:
(A) a document substantially in the form of the Letter of Accession
duly executed by the prospective Borrowers' Agent;
(B) a copy of the constitutive documents of the proposed
Borrowers' Agent (or if the same have previously been delivered, a
certificate of no change);
(C) copies of all other resolutions, authorisations, approvals,
consents and licences, corporate, official or otherwise, necessary or
desirable for the entry into and performance of the Letter of Accession and
the transactions contemplated thereby and for the validity and enforceability
thereof;
(D) a copy of a resolution of the Board of Directors of the proposed
Borrowers' Agent approving the Letter of Accession and authorising a specified
person or persons, on behalf of the proposed Borrowers' Agent to execute the
Letter of Accession and to sign and/or despatch all notices, certificates and
other documents to be signed and/or despatched under the Finance Documents to
which it is or will be a party;
(E) a copy of the signatures of those persons authorised, on
behalf of the proposed Borrowers' Agent to execute the Letter of Accession
and to sign and/or despatch all notices, certificates and other documents in
connection with the Finance Documents;
(F) an opinion of a lawyer, acceptable to the Facility Agent,
relating to the Borrowers' Agent, in a form to be agreed by the Facility
Agent and the Company; and
(G) such other documents, consents, licences, opinions,
certificates and authorisations as the Facility Agent may reasonably request.
Each of the documents specified in sub-paragraphs (B) to (E) (inclusive) and
(G) above shall be certified by a duly authorised officer of the Borrowers'
Agent as being correct, complete and in full force and effect as at a date no
earlier than the date of the Letter of Accession; and
(ii) the Facility Agent shall promptly notify the Company and the
other Financial Institutions of receipt of all of the above documents in
form and substance satisfactory to the Facility Agent, whereupon the proposed
Borrowers' Agent shall become the Borrowers' Agent with like rights and
obligations as though it had been an original Contracting Party with effect
from the date of the notification or (if later) the date referred to as the
"ACCESSION DATE" in the relevant Letter of Accession.
30. SET-OFF
Each Financial Institution may (but shall not be obliged to) set off against
any obligation of any Borrower due and payable by that Borrower under any
Finance Document any moneys held by the Bank for the account of the Borrower
at any office of the Financial Institution anywhere and in any currency. The
Financial Institution may effect any appropriate currency exchanges to
implement such set-off.
31. INDEMNITIES
31.1 CURRENCY INDEMNITY
(a) If:
(i) any amount payable by a Borrower under or in connection with any
Finance Document is received by a Financial Institution in a currency (the
"PAYMENT CURRENCY") other than that agreed in the relevant Finance Document
(the "AGREED CURRENCY"), whether as a result of any judgment or order or the
enforcement thereof, the liquidation of the Borrower or otherwise; and
(ii) the amount produced by converting the Payment Currency so received
into the Agreed Currency is less than the relevant amount of the Agreed
Currency,
then the relevant Borrower shall, as an independent obligation, indemnify the
Financial Institution for the deficiency and any loss sustained as a result.
Such conversion shall be made promptly following receipt at such prevailing
rate of exchange, in such market as is reasonably determined by the Financial
Institution as being most appropriate for the conversion. The relevant
Borrower shall in addition pay the reasonable costs of the conversion.
(b) Each Borrower waives any right it may have in any jurisdiction to
pay any amount under any Finance Document in a currency other than that in
which it is expressed to be payable in the relevant Finance Document.
31.2 OTHER INDEMNITIES
(a) Each Borrower shall indemnify each Financial Institution against any
loss or expense which that Financial Institution may reasonably sustain or
incur as a consequence of:
(i) the occurrence of any Default; or
(ii) the operation of Clause 21.2 (Default); or
(iii) any repayment or prepayment of an Advance or payment of an
overdue amount being made otherwise than on a Maturity Date relative thereto
and, for the purpose of this Clause 31.2(a)(iii), a Maturity Date relative to
an overdue amount shall be the last day of any Designated Term (as defined in
Clause 12.3(a)(ii)(B)); or
(iv) (other than by reason of gross negligence or default by any Bank
or any Agent) any Utilisation not being effected after:
(A) in the case of a Committed Facility, a Request has been served
in respect thereof; or
(B) in the case of an Uncommitted Facility, a Borrower has accepted
offers for Advances or Bills in respect thereof; or
(v) any prepayment not being made following notice thereof by a
Borrower.
(b) Each Company's liability under paragraph (a) above shall include,
without limitation, any loss (but not loss of margin) or expense on account of
funds borrowed, contracted for or utilised to fund any amount payable under
any Finance Document, any amount repaid or prepaid or any Advance or Bill (as
the case may be).
32. PRO RATA SHARING
32.1 REDISTRIBUTION
(a) Subject to Clause 32.2, if at any time the proportion which any Bank
(the "RECEIVING BANK") has received or recovered (whether by set-off or
otherwise) in respect of its portion of any sum due and owing from a Borrower
under any Finance Document is greater (the amount of excess being referred to
in this Clause 32.1 as the "EXCESS AMOUNT") than the proportion received or
recovered by the Bank receiving or recovering the smallest proportion (which
shall include a nil receipt), then:
(i) the receiving Bank shall promptly notify the Facility Agent;
(ii) the receiving Bank shall promptly and in any event within ten
days of receipt or recovery of the excess amount pay to the Facility Agent an
amount equal to the excess amount;
(iii) the Facility Agent shall treat the payment as if it were a
payment by the Borrower on account of a sum owed to the Banks and shall pay
the same to the Banks (including the receiving Bank) pro rata to their
respective entitlements; and
(iv) as between the Borrower and the receiving Bank the excess amount
shall be treated as not having been paid, while as between the Borrower and
each Bank (including the receiving Bank), it shall be treated as having been
paid to the extent receivable by the Bank.
(b) If a receiving Bank is subsequently required to repay to a Borrower
any amount received or recovered by it and dealt with under paragraph (a)
above, each Bank shall promptly repay to the Facility Agent for the account of
the receiving Bank the portion of the amount distributed to it, together with
interest thereon at a rate sufficient to reimburse the receiving Bank for any
interest which it has been required to pay to the Borrower in respect of the
portion of such amount.
32.2 NOTIFICATION
(a) Each Bank shall promptly give notice to the Facility Agent of the
receipt or recovery by the Bank of any amount received or recovered by it in
respect of this Agreement otherwise than through the Facility Agent.
(b) Each Bank shall give notice to the Facility Agent before instituting
any legal action or proceedings under or in connection with this Agreement.
(c) Upon receipt of any notice under paragraph (a) or (b) above, the
Facility Agent will as soon as practicable notify all the other Banks.
33. GOVERNING LAW
This Agreement is governed by English law.
34. JURISDICTION
(a) Each of the Contracting Parties irrevocably agrees for the benefit
of each of the other Contracting Parties that the Courts of England shall have
jurisdiction to hear and determine any suit, action or proceeding and to
settle any disputes, which may arise out of or in connection with the Finance
Documents, and for such purposes irrevocably submits to the jurisdiction of
such Courts.
(b) Without prejudice to paragraph (a) above, each Contracting Party
irrevocably agrees that the State Courts or the Federal District Courts
sitting in New York City shall have jurisdiction to hear and determine any
suit, action or proceeding, and to settle any disputes, which may arise out of
or in connection with the Finance Documents, and for such purposes irrevocably
submits to the jurisdiction of such Courts.
(c) Each Contracting Party irrevocably waives any objection which
it may have now or hereafter to such Courts as are referred to in paragraph
(a) or (b) above being nominated as the forum to hear and determine any suit,
action or proceeding, and to settle any disputes, which may arise out of or in
connection with the Finance Documents and any claim that any such Court is not
a convenient or appropriate forum.
(d) Each Borrower agrees that the process by which any suit, action or
proceeding in England is begun may be served on such Borrower by being
delivered to Comdisco United Kingdom Limited at Comdisco House, Bennetts
Close, Chippenham, Berkshire, SL1 5AP and that the process by which any suit
action or proceeding in New York is begun may be served on such Borrower by
being delivered to CT Corporation System, 1633 Broadway New York, New York,
10019.
(e) The submission to the said jurisdictions shall not (and shall not be
construed so as to) limit the right of any of the Contracting Parties to take
proceedings against any other Contracting Party in any other court of
competent jurisdiction, nor shall the taking of proceedings in any one or more
jurisdictions preclude the taking of proceedings in any other jurisdiction,
whether concurrently or not.
(f) Each Borrower further irrevocably consents to the service of process
out of the aforesaid Courts in any such action or proceedings by the mailing
of copies thereof by registered or certified airmail, postage prepaid to the
Borrower at its address applying for the time being under Clause 28.1
(g) Nothing herein shall affect the right to serve process in any other
manner7 permitted by law.
35. SEVERABILITY
If any provision of this Agreement is prohibited or unenforceable in any
jurisdiction, the prohibition or unenforceability shall not invalidate the
remaining provisions of this Agreement or affect the validity or
enforceability of the provision in any other jurisdiction.
36. COUNTERPARTS
This Agreement may be executed in any number of counterparts and all of the
counterparts taken together shall be deemed to constitute one and the same
instrument.
37. LANGUAGE
Each document referred to herein or to be delivered hereunder shall be in the
English language or accompanied by an English translation thereof certified as
accurate by an officer of the Company or the Borrowers' Agent. In the case of
confilict and unless the Facility Agent otherwise specifies, the English
language version of any such document shall prevail.
IN WITNESS whereof the parties hereto have caused this Agreement to be duly
executed on the date first written above.
<TABLE>
<CAPTION>
EXHIBIT A
PART I
THE UNDERWRITERS AND COMMITMENTS
BANKS COMMITMENTS U.S.$
<S> <C>
NATIONAL WESTMINSTER BANK PLC 42,000,000.00
BARCLAYS BANK PLC 40,000,000.00
UNION BANK OF SWITZERLAND 40,000,000.00
CREDIT LYONNAIS 40,000,000.00
BHF-BANK 26,666,666.66
DEUTSCHE BANK AG 26,666,666.66
WESTDEUTSCHE LANDESBANK GIROZENTRALE 20,000,000.00
BAYERISCHE VEREINSBANK 16,666,666.67
DRESDNER BANK AG 16,666,666.67
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK AG, NEW YORK BRANCH 16,666,666.67
NORDDEUTSCHE LANDESBANK GIROZENTRALE 14,666,666.67
TOTAL COMMITMENTS 300,000,000.00
</TABLE>
PART II
THE SWINGLINE BANKS
NATIONAL WESTMINSTER BANK PLC
BARCLAYS BANK PLC
UNION BANK OF SWITZERLAND
CREDIT LYONNAIS
BHF- BANK
DEUTSCHE BANK AG
WESTDEUTSCHE LANDESBANK GIROZENTRALE
BAYERISCHE VEREINSBANK
DRESDNER BANK AG
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK AG, NEW YORK BRANCH
NORDDEUTSCHE LANDESBANK GIROZENTRALE
<TABLE>
<CAPTION>
PART III
THE ISSUING BANKS
ISSUING BANKS LC OBLIGATION
U.S.$
<S> <C>
NATIONAL WESTMINSTER BANK PLC 100,000,000
BARCLAYS BANK PLC 100,000,000
UNION BANK OF SWITZERLAND 100,000,000
TOTAL 300,000,000
__________
</TABLE>
PART IV
THE TENDER PANEL MEMBERS
NATIONAL WESTMINSTER BANK PLC
BARCLAYS BANK PLC
UNION BANK OF SWITZERLAND
CREDIT LYONNAIS
BHF- BANK
DEUTSCHE BANK AG
WESTDEUTSCHE LANDESBANK GIROZENTRALE
BAYERISCHE VEREINSBANK
DRESDNER BANK AG
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK AG, NEW YORK BRANCH
NORDDEUTSCHE LANDESBANK GIROZENTRALE
<TABLE>
<CAPTION>
EXHIBIT B
SCHEDULE 2
PART I - SPECIFIED SUBSIDIARIES
<S> <C>
COMDISCO DEUTSCHLAND GMBH (GERMANY)
COMDISCO UNITED KINGDOM LIMITED (ENGLAND)
COMDISCO SWITZERLAND S.A. (SWITZERLAND)
COMDISCO FINANCE (NEDERLAND) B.V. (NETHERLANDS)
COMDISCO NEDERLAND N.V. (NETHERLANDS)
PROMODATA, S.A. (FRANCE)
COMDISCO FRANCE S.A. (FRANCE)
</TABLE>
PART II - OTHER SUBSIDIARIES
FOREIGN SUBSIDIARIES
(A) EUROPEAN
COMDISCO BELGIUM S.A.
COMDISCO DANMARK A/S
COMDISCO DEUTSCHLAND GmbH
COMDISCO FACTORING (NEDERLAND) B.V.
COMDISCO FINANCE, LTD.
COMDISCO FINANCE (NEDERLAND) B.V.
COMDISCO FINLAND OY
COMDISCO FRANCE S.A.
COMDISCO FUNDING, LTD.
COMDISCO HANDELSGESELLSCHAFT M.B.H.
COMDISCO HOLDINGS U.K. LTD.
COMDISCO ITALIA, S.R.L.
COMDISCO NEDERLAND B.V.
COMDISCO NORWAY A/S
COMDISCO PORTUGAL COMPUTADORES LDA
COMDISCO SWEDEN A.B.
COMDISCO SWITZERLAND, S.A.
COMDISCO UNITED KINGDOM LIMITED
COMPUTER DISCOUNT CORPORATION S.A. - MADRID
PROMODATA, S.A.
(B) FAR EAST/PACIFIC
COMDISCO ASIA PTE. LTD.
COMDISCO AUSTRALIA PTY. LTD.
COMDISCO JAPAN
COMDISCO (NZ) LIMITED
COMPUTER RECOVERY CENTRE SDN BHD
(C) CANADA
COMDISCO CANADA EXPLORATION LTD.
COMDISCO CANADA LTD.
COMDISCO CANADA RESOURCES LTD.
COMDISCO DISASTER RECOVERY SERVICES CANADA LTD.
628761 ALBERTA LTD
(D) CARIBBEAN
COMDISCO INTERNATIONAL TRADE CORPORATION
II. DOMESTIC - OPERATING - GENERAL SUBSIDIARIES
CDC REALTY, INC.
COMDISCO AVIATION, INC.
COMDISCO EXPLORATION, INC.
COMDISCO FINANCIAL SERVICES, INC.
COMDISCO INTERNATIONAL TRADE CORPORATION (VIRGIN ISLANDS)
COMDISCO INVESTMENT GROUP, INC.
COMDISCO MAINTENANCE SERVICES, INC.
COMDISCO MEDICAL EQUIPMENT GROUP, INC. (formerly COMDISCO MEDICAL
LEASING GROUP, INC.)
COMDISCO MEDICAL EXCHANGE, INC.
COMDISCO RESOURCES, INC.
COMDISCO SYSTEMS, INC.
COMDISCO TRADE, INC.
III. DOMESTIC SPECIFIC PURPOSE SUBSIDIARIES
CFS RAILCAR, INC.
COMDISCO RECEIVABLES, INC.
COM-L 1989-A CORPORATION
COM-L 1989-B CORPORATION
COMMEDCO, INC.
COMDISCO CANADA FINANCE LLC
IV. CDRS COMPANIES
(A) FOREIGN
AGERIS INTERNATIONAL, S.A.
CDRS NEDERLAND B.V.
COMDISCO DISASTER RECOVERY SERVICES (U.K.) Ltd.
FAILSAFE/ROC LTD.
ROC LTD. (RECOVERY OPERATION CENTRES LTD.)
(B) DOMESTIC
CDS FOREIGN HOLDINGS, INC.
COMDISCO COMPUTING SERVICES CORPORATION
V. DORMANT OR DISSOLVED
(A) DORMANT
COMPUTER DISCOUNT CORPORATION
(B) DISSOLVED
(X) DOMESTIC
BAY AREA COMPUTER CORPORATION (Nov. 19, 1991)
CDC SALES & LEASING, INC. (Sept. 30, 1991)
CL FINANCE CORPORATION (April 30, 1990)
COM-L CORPORATION (June 4, 1990)
COMDISCO ACQUISITION CORPORATION, INC. (March 31, 1992)
COMDISCO CAPITAL LEASING, INC. (Sept. 30, 1991)
COMDISCO CAPITAL MARKETS, INC. (Oct. 22, 1991)
COMDISCO COMPUTER MANAGEMENT INC. (May 23, 1985)
COMDISCO DATA CENTER DEVELOPMENT, INC. (Dec. 19, 1989)
COMDISCO DATA SERVICE, INC. (June 19, 1992)
COMDISCO DISASTER RECOVERY SERVICES, INC. (Sept. 28, 1992)
COMDISCO EQUIPMENT TRUST CORPORATION (Aug. 7, 1987)
COMDISCO EQUITIES, INC. (Sept. 30, 1988)
COMDISCO GROUP, INC. (July 8, 1998)
COMDISCO INTERNATIONAL SALES CORPORATION (Sept. 15, 1989)
COMDISCO INVESTMENT CORPORATION (March 24, 1987)
COMDISCO PORTFOLIO ASSET MANAGEMENT, INC. (Sept. 27, 1991)
COMDISCO TECHNICAL SERVICES, INC. (Nov. 17, 1989)
COMDISCO TRANSPORT, INC. (Nov. 17, 1989)
COMDISCO WORLDWIDE TRADE, INC. (Sept. 27, 1991)
CPL CORPORATION (Sept. 30, 1991)
CR-TAB, INC. (Dec., 1988)
INFORMATION PROCESSING SYSTEMS, INC. (Aug. 31, 1992)
SYSTEMS TECHNOLOGY APPLIED RESEARCH CORPORATION (July 30, 1992)
785089 ONTARIO LIMITED
775886 ONTARIO LIMITED
791348 ONTARIO LIMITED
(Y) FOREIGN
CDRS DEUTSCHLAND GmbH
COMDISCO EQUITY LIMITED
COMDISCO ESPANA S.A.
COMDISCO FINANCE LIMITED
COMDISCO FINANCIAL SERVICES VmbH
COMDISCO FUNDING LIMITED
COMDISCO LEASING LIMITED
COMDISCO LEASING S.A./N.V.
COMDISCO S.A.
MEGALEASING B.V. (inactive)
MEGALEASING INTERNATIONAL B.V. (inactive)
ORBAT GmbH
SYSTEMS ON SITE LIMITED
<PAGE>
EXHIBIT C
CALCULATION OF ADDITIONAL COST
(1) The Additional Cost relative to each Advance denominated in Sterling
(other than an Advance maintained in Euro-Sterling) is, subject as provided
below in this Exhibit C, the arithmetic mean of the percentage rates of the
Reference Banks (calculated by the Facility Agent on the basis of the rates
supplied by each Reference Bank to the Facility Agent) arrived at by applying
the following formula:-
Additional Cost = BY + L(Y-X) + S(Y-Z) % per
100-(B + S) annum
Where:-
B = The percentage of each Reference Bank's eligible liabilities
required, on the first day of the relevant period, to be held on a
non-interest-bearing deposit account with the Bank of England pursuant to the
cash ratio requirements of the Bank of England.
Y = The rate at which Sterling deposits in an amount comparable to
one-third of the aggregate amount of the Advances comprised in the same
Utilisation as the Advance are offered by each Reference Bank to leading banks
in the London Interbank Market at or about 11.00 a.m. on the first day of the
relevant period for a period comparable to the relevant period.
L = The average percentage of eligible liabilities which the Bank of
England as at the first day of the relevant period requires each Reference
Bank to maintain as secured money with members of the London Discount Market
Association and/or as secured call money with those money brokers and
gilt-edged primary market makers recognised by the Bank of England.
X = The rate at which secured Sterling deposits in an amount comparable
to one-third of the aggregate amount of the Advances comprised in the same
Utilisation as the Advance may be placed by each Reference Bank with members
of the London Discount Market Association and/or as secured call money with
money brokers and gilt-edged primary market makers at or about 11.00 a.m. on
the first day of the relevant period for a period comparable to the relevant
period.
S = The percentage of each Reference Bank's eligible liabilities
required on the first day of the relevant period to be placed as a special
deposit with the Bank of England.
Z = The percentage interest rate per annum payable by the Bank of
England on special deposits or, if lower, Y%.
For the purposes of this paragraph:-
(a) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" shall bear the meanings
ascribed to them from time to time by the Bank of England; and
(b) "RELEVANT PERIOD" means, if the Term of the Advance is three months or
less, the Term or, if the Term is longer than three months, each period of
three months and any necessary shorter period in the Term.
(2) In the application of the above formula, B, Y, L, X, S and Z will be
included in the formula as figures and not as percentages, e.g. if B = 0.5%
and Y = 15%, BY will be calculated as 0.5 x 15 and not as 0.5% x 15%.
(3) The Additional Cost shall be computed by the Facility Agent on the
first day of each relevant period, and shall, if necessary, be rounded upward
to the nearest four decimal places. If there is more than one relevant period
comprised in the relevant Term, then the Additional Cost for that Term is the
aggregate of the amounts so computed for the relevant periods comprised in
that term.
(4) Calculations will be made on the basis of a year of 365 days.
(5) If a Reference Bank fails to furnish a rate for the purposes of this
Exhibit C, the Additional Cost shall be determined on the basis of the rates
furnished by the remaining Reference Banks. If no Reference Bank furnishes a
rate for the purposes of this Exhibit C, the Additional Cost payable by the
relevant Borrower in respect of the Advance shall be determined by the
Facility Agent on such comparable basis as it may reasonably determine.
(6) If a change in circumstances (including the imposition of alternative
or additional official requirements) renders the above formula inapplicable,
the Facility Agent (after consultation with the Reference Banks) shall notify
the Borrowers of the manner in which the Additional Cost shall thereafter be
determined. Each Borrower shall be bound by any such determination.
EXHIBIT D
FORM OF UNDERWRITTEN ADVANCE REQUEST
To: NATIONAL WESTMINSTER BANK PLC as Facility Agent
From: [ ]
Date: [ ], 19[ ]
Dear Sirs,
COMDISCO, INC. - U.S.$ 300,000,000 REVOLVING CREDIT
FACILITY DATED [ ], 1991 (THE "FACILITY AGREEMENT")
1. We refer to Clause 5 of the Facility Agreement. Terms defined in the
Facility Agreement shall have the same meanings in this Request.
2. We wish to borrow Underwritten Advances with the following
specifications:
(a) Borrower: [ ]
(b) Utilisation Date: [ ], 19[ ]
(c) Requested Amount: [ ]
(d) Currency: [ ]
(e) Term: [ ]
(f) Type: [CD/LIBOR]
(g) Payment Instructions: [ ]
3. We confirm that:
(a) the representations and warranties set out in Clause 19.1 (other
than paragraph (j)) of the Facility Agreement are correct on the date of this
Request as if made with reference to the facts and circumstances now
prevailing and
(b) no Default has occurred and is continuing or would result from the
proposed Utilisation.
Yours faithfully,
[Authorised Signatory]
for and on behalf of
[ ]
EXHIBIT E
FORM OF UNCOMMITTED ADVANCE REQUEST
To: NATIONAL WESTMINSTER BANK PLC as Tender Panel Agent
From: [ ]
Date: [ ], 19[ ]
Dear Sirs,
COMDISCO, INC. - U.S.$ 300,000,000 REVOLVING CREDIT
FACILITY DATED [ ], 1991 (THE "FACILITY AGREEMENT")
1. We refer to Clause 6 of the Facility Agreement. Terms defined in the
Facility Agreement shall have the same meanings in this Request.
2. We wish you to request the Tender Panel Members to make offers of
Uncommitted Advances with the following specifications:
(a) Borrower: [ ]
(b) Utilisation Date: [ ], 19[ ]
(c) Requested Amount: [ ]
(d) Currency: [ ]
(e) Term: [ ]
(f) Type: [CD/LIBOR/LOCAL ADVANCE]
(g) Payment instructions: [ ]
[(h) [LOCAL ADVANCES ONLY The agreed interest rate basis and Prescribed
Times]*
3. We confirm that:
(a) the representations and warranties set out in Clause 19.1 (other than
paragraph (j)) of the Facility Agreement are correct on the date of this
Request as if made with reference to the facts and circumstances now
prevailing ; and
(b) no Default has occurred and is continuing or would result from the
proposed Utilisation.
Yours faithfully,
[Authorised Signatory]
for and on behalf of
[ ]
EXHIBIT F
FORM OF UNCOMMITTED BANKERS' ACCEPTANCE REQUEST
To: NATIONAL WESTMINSTER BANK PLC as Tender Panel Agent
From: [ ]
Date: [ ], 19[ ]
Dear Sirs,
COMDISCO, INC. - U.S.$ 300,000,000 REVOLVING CREDIT
FACILITY DATED [ ], 1991 (THE "FACILITY AGREEMENT")
1. We refer to Clause 7 of the Facility Agreement. Terms defined in the
Facility Agreement shall have the same meanings in this Request.
2. We wish you to request the Tender Panel Members to make offers to accept
Bills with the following specifications:
(a) Borrower: [ ]
(b) Utilisation Date: [ ], 19[ ]
(c) Requested Amount: [ ]
(d) Tenor: [ ]
(e) Payment instructions: [ ]
3. We confirm that:
(a) the representations and warranties set out in Clause 19.1 (other than
paragraph (j)) of the Facility Agreement are correct on the date of this
Request as if made with reference to the facts and circumstances now
prevailing ; and
(b) no Default has occurred and is continuing or would result from the
proposed Utilisation.
Yours faithfully,
[Authorised Signatory]
for and on behalf of
[ ]
EXHIBIT G
FORM OF SWINGLINE ADVANCE REQUEST
To: NATIONAL WESTMINSTER BANK PLC as Swingline Agent
c.c. NATIONAL WESTMINSTER BANK PLC as Facility Agent
From: [ ]
Date: [ ], 19[ ]
Dear Sirs,
COMDISCO, INC. - U.S.$ 300,000,000 REVOLVING CREDIT FACILITY DATED [
], 1991 (THE "FACILITY AGREEMENT")
1. We refer to Clause 8 of the Facility Agreement. Terms defined in the
Facility Agreement shall have the same meanings in this Request.
2. We wish to borrow Swingline Advances with the following specifications:
(a) Borrower: [ ]
(b) Utilisation Date: [ ], 19[ ]
(c) Requested Amount U.S.$[ ]
(d) Term: [ ] day[s]
(e) Payment Instructions: [ ]
3. We confirm that:
(a) the representations and warranties set out in Clause 19.1 (other than
paragraph (j)) of the Facility Agreement are correct on the date of this
Request as if made with reference to the facts and circumstances now
prevailing , and
(b) no Default has occurred and is continuing or would result from the
proposed Utilisation.
Yours faithfully,
[Authorised Signatory]
for and on behalf of
[ ]
EXHIBIT H
PART I
FORM OF LETTER OF CREDIT REQUEST
To: BARCLAYS BANK PLC as
Letter of Credit Agent
c.c.: NATIONAL WESTMINSTER BANK as Facility Agent
From: COMDISCO, INC.
Date: [ ], 19[ ]
Dear Sirs,
COMDISCO, INC. - U.S.$ 300,000,000 REVOLVING CREDIT
FACILITY DATED [ ], 1991 (THE "FACILITY AGREEMENT")
1. We refer to Clause 9.7 of the Facility Agreement. Terms defined in the
Facility Agreement shall have the same meanings in this Request.
2. We request you to issue a Letter of Credit in accordance with the
following specifications:
(a) Beneficiary [ ]
(b) CP Programme: [ ]
(c) Issuing Bank: [ ]
(d) Utilization Date [ ]
(e) Requested Amount [ ]
(f) Maturity Date: [ ]
3. We confirm that:
(a) the representations and warranties set out in Clause l9.l (other than
paragraph (j) of the Facility Agreement) are correct on the date of this
Request as if made with reference to the facts and circumstances now
prevailing and
(b) no Default has occurred and is continuing or would result from the
proposed Utilisation.
4. The credit will be subject to the uniform customs and practice for
documentary credits, l983 revision, icc publication no. 400 (the "uniform
customs") insofar as these are applicable, except article 45 and the first two
sentences of Article 54(e) As to matters not governed by the uniform customs,
the credit will be governed by and construed in accordance with the laws of
the state of New York.
Yours faithfully,
[Authorised Signatory]
for and on behalf of
...............................................
COMDISCO, INC.
[and
on behalf of
COMDISCO FINANCE (NEDERLAND) B.V.]
EXHIBIT H
PART II
FORM OF LETTER OF CREDIT (AMENDMENT) REQUEST
To: BARCLAYS BANK PLC as Letter of Credit Agent
c.c.: NATIONAL WESTMINSTER BANK as Facility Agent
From: COMDISCO, INC.
Date: [ ], 19[ ]
Dear Sirs,
COMDISCO, INC. - U.S.$ 300,000,000 REVOLVING CREDIT
FACILITY DATED [ ], 1991 (THE "FACILITY AGREEMENT")
1. We refer to clause 9.7 of the Facility Agreement. Terms defined in the
Facility Agreement shall have the same meanings in this Request.
2. We request you to issue an amended Letter of Credit (reduced Stated
Amount or extension of Maturity Date) in accordance with the following
specifications:
(a) Beneficiary: [ ]
(b) CP Programme: [ ]
(c) Issuing Bank: [ ]
(d) Utilization Date (being, in the case of a Reduced Stated Amount, the
Effective Date defined as such in the Request for Change in Stated Amount):
[ ]
(e) Requested Amount (being, in the case of request for a Reduced Stated
Amount, the revised Stated Amount of the Letter of Credit to which it should
be reduced): [ ]
(f) Maturity Date or extended Maturity Date: [ ]
3. We confirm that:
(a) the representations and warranties set out in Clause l9.l (other than
paragraph (j) of the Facility Agreement) are correct on the date of this
Request as if made with reference to the facts and circumstances now
prevailing ; and
(b) no Default has occurred and is continuing or would result from the
proposed Utilisation.
4. Accompanying this request is a Request for Change in Stated Amount and a
Reduction Certificate (each as defined in the Letter of Credit) signed by the
Beneficiary and, in the case of the Request for Change in stated amount,
ourselves.
5. The credit will be subject to the Uniform Customs and Practice for
Documentary Credits, l983 Revision, Publication No. 400 (the "Uniform
Customs") insofar as these are applicable, except Article 45 and the first two
sentences of Article 54(e). As to matters not governed by the Uniform
Customs, the credit will be governed by and construed in accordance with the
laws of the State of New York.
Yours faithfully,
[Authorised Signatory]
for and on behalf of
.......................................................
COMDISCO, INC.
[and
on behalf of
COMDISCO FINANCE (NEDERLAND) B.V.]
<PAGE>
EXHIBIT I
FORM OF BILL
FACE OF BILL
London, ....................19....
On.................19.. pay this Bill of Exchange to our order the sum of
............................... Pounds Sterling drawn against [ ].
Accepted by:
For and on behalf of For and on behalf of
[Borrower] [Accepting Bank]
................................
................................
Authorised Signatory Authorised Signatory
To [Name and address
of Accepting Bank]
ON REVERSE
For and on behalf of
[Borrower]
..........................................
Authorised Signatory
EXHIBIT J
FORM OF SUBSTITUTION CERTIFICATE
SUBSTITUTION CERTIFICATE
WARNING: Banks are advised not to use Substitution Certificates or
otherwise to assign or transfer interests in the Facility Agreement without
first ensuring that the transaction complies with all applicable laws and
regulations, including the Financial Services Act 1986 and regulations made
thereunder.
To: NATIONAL WESTMINSTER BANK PLC as agent
for and on behalf of itself and the other
Contracting Parties (as defined in the Facility Agreement
referred to below).
c.c. Letter of Credit Agent
This substitution certificate ("SUBSTITUTION CERTIFICATE") relates to a
facility agreement dated [ ], 1991 and made between Comdisco, Inc. as
borrower and drawer (1), National Westminster Bank PLC as arranger (2), the
Banks (as defined therein) (3), National Westminster Bank PLC as facility
agent and tender panel agent (4) and National Westminster Bank PLC as
swingline agent, (5) and Barclays Bank plc as letter of credit agent (6) in
respect of a revolving credit facility of U.S.$ 300,000,000 (the "FACILITY
AGREEMENT" which term includes any amendments or supplements thereto). Terms
defined in the Facility Agreement shall, unless otherwise defined in this
Substitution Certificate, have the same meanings when used in this
Substitution Certificate.
1. [Existing Bank] (the "EXISTING BANK"):
(a) confirms that to the extent that details appear in the Schedule to
this Substitution Certificate under the heading "EXISTING BANK'S COMMITMENT"
and/or "ADVANCE(S) TO BE TRANSFERRED" and/or "L/C AMOUNT TO BE TRANSFERRED",
those details accurately summarise its Commitment and/or the amount, Terms and
Maturity Dates of one or more existing Advances owed to it or its L/C Amount
assumed by it; and
(b) requests [New Bank] (the "NEW BANK") to accept and procure, in
accordance with Clause 29.4 of the Facility Agreement, the substitution of the
Existing Bank by the New Bank in respect of the portion specified in the
Schedule of its Commitment and/or the Advance(s) and/or L/C Amount by
counter-signing this Substitution Certificate executed by the Existing Bank
and delivering it to the Facility Agent at its address for the service of
notices applying for the purposes of Clause 28.1 of the Facility Agreement.
2. The New Bank hereby requests the Contracting Parties to accept this
Substitution Certificate executed by it as being delivered under and for the
purposes of Clause 29.4 of the Facility Agreement so as to take effect in
accordance with the terms of that sub-clause on [date of substitution].
3. The New Bank undertakes to pay to the Facility Agent for the Facility
Agent's own account a transfer fee of 200 as provided in Clause 29.4(c) of the
Facility Agreement.
4. The New Bank:
(a) 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;
(b) 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;
(c) confirms that it has not relied and will not rely on the Existing
Bank to check or enquire on its behalf into the legality, validity,
effectiveness, adequacy, accuracy or completeness of any such documents or
information;
(d) 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
Document; and
(e) 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.
5. The New Bank undertakes with the Existing Bank and each of the other
Contracting Parties that it will perform in accordance with its terms all
those obligations which, by the terms of the Facility Agreement, are assumed
by it by delivery of this Substitution Certificate to the Facility Agent.
6. On execution of this Substitution Certificate by the Facility Agent on
their behalf, each of the other Contracting Parties accepts the New Bank as a
Contracting Party in substitution for the Existing Bank with respect to all
those rights and/or obligations which by the terms of the Facility Agreement
are assumed by the New Bank.
7. None of the Financial Institutions:
(a) makes any representation or warranty or assumes any responsibility
with respect to the legality, validity, effectiveness, adequacy or
enforceability of the Facility Agreement or any other Finance Document or any
document relating to the Finance Documents; or
(b) assumes any responsibility for the financial condition of any
Borrower or any other party to the Facility Agreement or any other Finance
Document or any other document or for the performance and observance by
any Borrower or any other party to the Facility Agreement or any other
Finance Document or any other document (save as otherwise expressly provided
therein) and any and all conditions and warranties, whether express or
implied by law or otherwise, are excluded (save as aforesaid).
8. The New Bank confirms that its Facility Office and address(es) for
notices for the purposes of the Facility Agreement are as set out in the
Schedule.
9. This Substitution Certificate is governed by English law.
THE SCHEDULE
EXISTING BANK'S COMMITMENT PORTION TRANSFERRED
ADVANCE(S) TO BE TRANSFERRED PORTION TRANSFERRED
Amount:
Currency:
Term:
Maturity Date:
L/C AMOUNT TO BE TRANSFERRED PORTION TRANSFERRED
[Existing Bank] [New Bank]
By: By:
Date: Date:
[NEW BANK]
FACILITY OFFICE ADDRESS(ES) FOR NOTICES
[ [
] ]
For the attention of: [ ]
Telex no: [ ]
Facsimile no: [ ]
NATIONAL WESTMINSTER BANK PLC
as agent for and on behalf of itself
and the other Contracting Parties.
By:
Date:
EXHIBIT K
FORM OF UNDERTAKING OF NEW TENDER PANEL MEMBER
UNDERTAKING
To NATIONAL WESTMINSTER BANK PLC as agent
for and on behalf of itself and the other
Contracting Parties (as defined in the
Facility Agreement referred to below).
[ ], 19[ ]
Dear Sirs,
We refer to the Facility Agreement dated [ ], 1991 and made between
Comdisco, Inc. as borrower and drawer (1), National Westminster Bank PLC as
arranger (2), the Banks (as defined therein) (3), National Westminster Bank
PLC as facility agent and tender panel agent (4) and National Westminster Bank
PLC as swingline agent (5) and Barclays Bank plc as letter of credit agent (6)
in respect of a revolving credit facility of U.S.$ 300,000,000 (the "FACILITY
AGREEMENT" which term includes all amendments and supplements thereto). Terms
defined in the Facility Agreement shall, unless otherwise defined in this
letter, have the same meanings when used in this letter.
We agree to become, with effect from the date of the confirmation by the
Facility Agent referred to in the penultimate paragraph of this letter, a
Tender Panel Member under the Facility Agreement and accordingly to perform
and comply with our obligations as a Tender Panel Member.
We confirm that we have received a copy of the Facility Agreement together
with such other documents and information as we have requested in connection
with this transaction and that we have not relied and will not rely on any
other Financial Institution to check or enquire on our behalf into the
legality, validity, effectiveness, adequacy, accuracy or completeness of the
Facility Agreement or any such documents and information and further agree
that we have not relied and will not rely on any other Financial Institution
to assess or keep under review on our behalf the financial condition,
creditworthiness, condition, affairs, status or nature of any Borrower or any
other Contracting Party.
We confirm that our Facility Office and address(es) for notices for the
purposes of the Facility Agreement are:-
We confirm that (a) we make the representations contained in Clause 15.4(d)(i)
of the Facility Agreement and (b) that we undertake the obligations set forth
in Clause 15.4(e) of the Facility Agreement.
FACILITY OFFICE ADDRESS(ES) FOR NOTICES
[ [
] ]
For the attention of: [ ]
Telex no: [ ]
Facsimile no: [ ]
We should be grateful if you would confirm our becoming a Tender Panel Member
by the Facility Agent counter-signing the attached copy of this letter as
provided in Clause 29.9(c)(ii) of the Facility Agreement.
This letter is governed by English law.
Yours faithfully,
For and on behalf of
[New Tender Panel Member]
[On copy]
We confirm, on behalf of all the Contracting Parties, that you have become a
Tender Panel Member in accordance with the above letter with effect from [ ].
For and on behalf of
NATIONAL WESTMINSTER BANK PLC
EXHIBIT L
PART I
FORM OF LETTER OF ACCESSION FOR ADDITIONAL BORROWERS
LETTER OF ACCESSION
To: NATIONAL WESTMINSTER BANK PLC as agent
for and on behalf of itself and the other
Contracting Parties (as defined in the Facility
Agreement referred to below).
[Date]
Dear Sirs,
We refer to the Facility Agreement dated [ ], 1991 and made between
Comdisco, Inc. as borrower and drawer (1), National Westminster Bank PLC as
arranger (2), the Banks (as defined therein) (3), National Westminster Bank
PLC as the facility agent and tender panel agent (4), National Westminster
Bank PLC as swingline agent (5), and Barclays Bank plc as letter of credit
agent (6) in respect of a revolving credit facility of U.S.$ 300,000,000 (the
"FACILITY AGREEMENT" which term shall include any amendments and supplements
thereto). Terms defined in the Facility Agreement shall, unless otherwise
defined in this letter, have the same meanings in this letter.
We wish to inform you that as from the date (the "ACCESSION DATE") which is
the later of [insert date] and the date of satisfaction of the conditions
imposed by Clause 29.11 of the Facility Agreement, the following company (the
"PROPOSED BORROWER") namely [name] of [address] intends to become an
Additional Borrower under the Facility Agreement.
As from the Accession Date the Proposed Borrower shall become an Additional
Borrower under the Facility Agreement and shall have like rights, and be under
the like obligations, as though it had been an original party to the Facility
Agreement as a Borrower.
The Proposed Borrower agrees that the representations and warranties set out
in Clause 19.1 of the Facility Agreement (other than paragraph (j)) are
correct on the date of this letter as if made on such date with reference to
the facts and circumstances now subsisting
The Company confirms that Clause 18 of the Facility Agreement shall apply to
the obligations of the Proposed Borrower under the Facility Agreement.
The Proposed Borrower confirms that its address for notices for the purposes
of the Facility Agreement is:-
[ ]
Telex no: [ ]
Facsimile no: [ ]
For the attention of: [ ]
This letter is governed by English law.
Yours faithfully,
on behalf of on behalf of
[Additional Borrower] COMDISCO, INC.
EXHIBIT L
PART II
FORM OF LETTER OF ACCESSION FOR (REPLACEMENT) BORROWERS' AGENT
LETTER OF ACCESSION
To: NATIONAL WESTMINSTER BANK PLC as agent
for and on behalf of itself and the other
Contracting Parties (as defined in the Facility
Agreement referred to below).
[Date]
Dear Sirs,
We refer to the Facility Agreement dated [ ], 1991 and made between
Comdisco, Inc. as borrower and drawer (1), National Westminster Bank PLC as
arranger (2), the Banks (as defined therein) (3), National Westminster Bank
PLC as the facility agent and tender panel agent (4), National Westminster
Bank PLC as swingline agent (5), and Barclays Bank plc as letter of credit
agent (6) in respect of a revolving credit facility of U.S.$ 300,000,000 (the
"FACILITY AGREEMENT" which term shall include any amendments and supplements
thereto). Terms defined in the Facility Agreement shall, unless otherwise
defined in this letter, have the same meanings in this letter.
We wish to inform you that as from the date (the "ACCESSION DATE") which is
the later of [insert date] and the date of satisfaction of the conditions
imposed by Clause 29.11 of the Facility Agreement, the following company (the
"PROPOSED BORROWERS' AGENT") namely [name] of [address] intends to become a
[Replacement] Borrowers' Agent under the Facility Agreement.
As from the Accession Date the Proposed Borrowers' Agent shall become the
Borrowers' Agent under the Facility Agreement and shall have like rights, and
be under the like obligations, as though it had been an original party to the
Facility Agreement.
The Proposed Borrowers' Agent agrees that the representations and warranties
set out in Clause 19.1 of the Facility Agreement (other than paragraph (j))
are correct on the date of this letter as if made on such date with reference
to the facts and circumstances now subsisting
The Proposed Borrowers' Agent confirms that it is a wholly owned subsidiary of
Comdisco, Inc. and that its address for notices for the purposes of the
Facility Agreement is:-
[ ]
Telex no: [ ]
Facsimile no: [ ]
For the attention of: [ ]
This letter is governed by English law.
Yours faithfully,
on behalf of on behalf of
[Replacement] [Borrowers' Agent] COMDISCO, INC.
EXHIBIT M
FORM OF LEGAL OPINION OF U.S. COUNSEL TO COMDISCO, INC.
To: The Financial Institutions
party to the Facility Agreement
referred to below.
[ ], 1991
I am [ ] of Comdisco, Inc., a Delaware corporation
(the "COMPANY"), and have acted as counsel for the Company in connection with
the Facility Agreement, dated as of [ ], 1991 (the "FACILITY
AGREEMENT"), among (inter alia) the Company, various Banks and National
Westminster Bank PLC, as Facility Agent. Terms defined in the Facility
Agreement are, unless otherwise defined herein or the context otherwise
requires, used herein as defined therein.
I have examined originals, or copies certified or otherwise identified to my
satisfaction, of the Facility Agreement and such other instruments and
documents, including such corporate records and certificates or comparable
documents of public officials and of officers and representatives of the
Company, as I have deemed relevant and necessary as a basis for the opinions
hereinafter expressed. In such examination, I have assumed the genuineness of
all signatures (other than signatures of officers or representatives of the
Company), the authenticity of all documents submitted to me as originals, the
conformity to original documents of all documents submitted to me as certified
or photostatic copies, and the authenticity of such latter documents. I also
have assumed that the Facility Agreement has been duly executed and delivered
by, and is the legal, valid and binding obligation of, each Financial
Institution.
Based on and subject to the foregoing, I am of the opinion that:
1 Each member of the Group (a) is a corporation validly organized and
existing and in good standing under the laws of the jurisdiction of its
incorporation, (b) is duly qualified to do business and in good standing as a
foreign corporation in each jurisdiction where the nature of its business
makes such qualification necessary and (c) has full power and authority to own
its property and conduct its business substantially as presently conducted and
as proposed to be conducted by it.
2. The Company has full power and authority to enter into and perform
its obligations under the Finance Documents.
3. The execution and delivery by the Company of the Finance Documents,
the performance by the Company of its obligations thereunder and the
transactions contemplated by the Finance Documents (a) have been duly
authorized by all necessary corporate action, (b) do not and will not require
any approval or consent of any governmental agency or authority, (c) do not
and will not conflict with, result in any violation of, or constitute a
default under any provision of the Certificate of Incorporation or By-Laws of
the Company, any agreement, instrument or document binding upon or applicable
to the Company, or any present law or governmental regulation or court or
administrative decree or order applicable to the Company, and (d) will not
result in or require the creation or imposition of any Security Interest in
any property of any member of the Group pursuant to the provisions of any
agreement, indenture or other instrument or document binding upon or
applicable to any member of the Group.
4. Each of the Finance Documents constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject only to bankruptcy, insolvency,
reorganization, moratorium or similar laws from time to time in effect
affecting the enforceability of the rights of creditors generally assuming
that each of the Finance Documents is such an obligation under English law, by
which each of the Finance Documents is expressed to be governed.
5. The Company is not engaged principally, or as one of its material
activities, in the business of extending credit for the purpose of purchasing
or carrying Margin Stock.
I am a member of the bar of the State of Illinois, and I express no opinion
herein as to the law of any jurisdiction other than the law of the State of
Illinois, the federal law of the United States and the corporate law of the
State of Delaware.
Very truly yours,
EXHIBIT N
FORM OF LEGAL OPINION OF ALLEN & OVERY
To: National Westminster Bank PLC as Facility Agent for the Banks
King's Cross House parties to the Facility
200 Pentonville Road Agreement referred to below,
King's Cross and to the other Financial
London N1 9HL Institutions (as defined in
the Facility Agreement referred
to below).
[ ], 1991
Dear Sirs,
We have acted as legal advisers in England to National Westminster Bank PLC in
connection with a Facility Agreement (the "FACILITY AGREEMENT") dated [
], 1991 between Comdisco, Inc. as borrower and drawer (1), National
Westminster Bank PLC as arranger (2), the Banks (as defined therein) (3),
National Westminster Bank PLC as facility agent and tender panel agent (4),
National Westminster Bank PLC as swingline agent (5), and Barclays Bank plc as
letter of credit agent (6) in respect of a multiple option facility of U.S.$
300,000,000.
Terms defined in the Facility Agreement shall, unless otherwise defined in
this opinion, have the same meanings in this opinion.
We have received instructions from and participated in discussions with the
Arranger and the Agents concerning the provisions contained in the Facility
Agreement.
We have examined the following documents:
(a) an executed copy of the Facility Agreement; and
(b) a copy of the legal opinion referred to in Clause 4.1(a)(vi) of the
Facility Agreement.
For the purposes of this opinion, we have assumed that the Facility Agreement
has been duly authorised and entered into by each of the parties thereto and
that so far as any laws of the U.S.A. and any State thereof are concerned, the
Facility Agreement constitutes a legal and binding obligation of the Company
in accordance with its terms.
Based upon the foregoing and subject to the qualifications set out below and
to any matters not disclosed to us and to matters of fact which would affect
the conclusions set out below, it is our opinion that so far as the present
laws of England are concerned, the Facility Agreement constitutes a legal,
valid and binding obligation of the Company.
Notwithstanding the foregoing this opinion is subject to the following
qualifications:
(i) The validity, performance and enforcement of the Finance Documents may
be limited by bankruptcy, insolvency, reorganisation or similar laws affecting
creditors' rights generally.
(ii) Remedies such as specific performance or the issue of an injunction
are available only at the discretion of the court. Specific performance is
not usually granted and an injunction is not usually issued where damages
would be an adequate alternative.
(iii) English courts are now prepared to render judgments for a monetary
amount in foreign currencies but the judgment may be converted into Sterling
for enforcement purposes. Foreign currency amounts claimed in an English
liquidation must be converted into Sterling at the rate prevailing at the
commencement of the liquidation.
(iv) Clause 12.3 of the Facility Agreement provides for interest to be
paid on overdue amounts. Such interest may amount to a penalty under English
law and may therefore not be recoverable.
(v) No opinion is expressed with respect to the Substitution Certificates
provided for in the Facility Agreement and it should be noted that in certain
circumstances transactions employing Substitution Certificates and/or
assignments or transfers of interests in the Facility Agreement may require
compliance with the Financial Services Act 1986.
(vi) No opinion is expressed with respect to the enforceability in all
circumstances of Clause 32 of the Facility Agreement (Pro Rata Sharing).
(vii) An English court might not treat as conclusive those certificates and
determinations which the Facility Agreement states are to be so treated.
(viii) As regards Clause 34 (Jurisdiction), an English court may stay
proceedings if concurrent proceedings are being brought elsewhere.
(ix) Clause 33 of the Facility Agreement (Severability) may not be
effective in certain circumstances depending on the nature of the prohibition
or unenforceability in question.
(x) The Facility Agreement may be amended orally by the Contracting
Parties notwithstanding provisions therein to the contrary.
(xi) The effectiveness of certain provisions exculpating a party from a
liability or duty otherwise owed may be limited by law.
(xii) English courts may not give effect to any indemnity for legal costs
incurred by an unsuccessful litigant.
(xiii) This opinion relates only to English domestic law and not its
conflict of laws rules. It is assumed that no law of a jurisdiction other
than England affects the conclusions in this opinion.
(xiv) There are no provisions or laws of any jurisdiction outside England
which would be contravened by the execution or delivery of the Finance
Documents and that, insofar as any obligation under the Facility Agreement or
any other document entered into pursuant thereto falls to be performed in any
jurisdiction outside of England, its performance will not be illegal by virtue
of the laws of that jurisdiction.
(xv) No opinion is expressed concerning the validity or enforceability of
the charge over the Cash Collateral Account.
This opinion is solely for the benefit of the persons to whom it is addressed
and is not to be relied on by any assignees thereof or by any other person or
for any other purpose, nor is it to be quoted or made public in any way
without our prior written consent.
Yours faithfully
Allen & Overy
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT O
TIMETABLES
<S>
In this Exhibit O:-
<S> <C> <C>
D-[x] = x Business Days before the relevant Utilisation Date
FA = Facility Agent
TPA = Tender Panel Agent
SA = Swingline Agent
LC = Letter of Credit
LCA = Letter of Credit Agent
U = Underwriter
TPM = Tender Panel Member
SB = Swingline Bank
IB = Issuing Bank
EBDR = Eligible Bill Discount Rate
</TABLE>
<TABLE>
<CAPTION>
CLAUSE 5 - UNDERWRITTEN ADVANCE FACILITY
CLAUSE EVENT TIME
<S> <C> <C>
5.1 Receipt by FA of Request D-3
4:00 p.m.
5.3 FA to notify U's of Request D-3
5:00 p.m.
</TABLE>
<TABLE>
<CAPTION>
CLAUSE 6 - UNCOMITTED ADVANCE FACILITY
CLAUSE EVENT TIME
<S> <C> <C>
6.1 Receipt by TPA of Request D-4
3:00 p.m.
6.3 TPA to notify (inter alia) TPM's of Request D-4
5:00 p.m.
6.4(c) Offers by TPA and Affiliates to Borrower D-4
5:00 p.m.
6.4(a) Offers by TPM's to TPA D-3
11:00 a.m.
6.4(d) TPA to notify Borrower of offers by TPM's D-3
3:00 p.m.
6.5(a) Borrower to accept or reject offers D-3
4:00 p.m.
6.5(c) TPA to inform (inter alia) TPM's of
results of offers D-3
4:30 p.m.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
CLAUSE 7 - UNCOMMITTED BANKERS' ACCEPTANCE FACILITY
CLAUSE EVENT TIME
<S> <C> <C>
7.1 Receipt by TPA of Request D3
9:00 a.m.
7.3 TPA to notify (inter alia) TP's of Request D-3
11:00 a.m.
7.4(c) Offers by TPA and Affiliates to Borrower D-3
2:00 p.m.
7.4(a) Offers by TPM's to TPA D-3
3:00 p.m.
7.4(d) TPA to notify Borrower of offers D-2
4:00 p.m.
7.5(a) Borrower to accept or reject offers D-1
9:00 a.m.
7.5(c) TPA to inform (inter alia) TPM's of
results of offers D-1
5:00 p.m.
7.6(a) TPA to deliver Bills to TPM's D
11:00 a.m.
7.6(d) FA to notify TPM's and Borrower of EBDR D
11:00 a.m.
</TABLE>
<TABLE>
<CAPTION>
CLAUSE 8 - SWINGLINE ADVANCE FACILITY
CLAUSE EVENT TIME
<S> <C> <C>
8.1 Receipt by SA of Request D
10:30 a.m. (New York time)
8.3 SA to notify (inter alia) SB's of Request D
12:00 noon (New York time)
9.14(a) Receipt by S.A. of Deemed Request 11:00 a.m. (New York time)
</TABLE>
<TABLE>
<CAPTION>
CLAUSE 9 - LETTER OF CREDIT FACILITY
CLAUSE EVENT TIME
<S> <C> <C>
9.6 Receipt by LCA of Request to issue a new LC D-5
9.6 Receipt by LCA of Request to decrease Stted
Amount of existing LC or extend its maturity D-30
9.8 (a) LCA to notify (inter alia) D-4
(i) IB's of Request to issue a new LC D-25
(ii) IB's of Request to amend LC
9.8(b) (b) FA to notify U's of L/C Amount D-4
</TABLE>
EXHIBIT P
COMPLIANCE CERTIFICATE
To: National Westminster Bank PLC
individually and as Agent, and the
other Banks party to the Facility
Agreement, dated December as of [
] (as amended from
time to time, the "FACILITY AGREEMENT")
with the undersigned
[ ], 19[ ]
Ladies/Gentlemen:
This Compliance Certificate is delivered to you pursuant to Clause 20.1 of the
Facility Agreement. Capitalized terms used herein and not otherwise defined
are used as defined in the Facility Agreement.
The undersigned hereby certifies that (a) the information set forth in
Attachments 1,2,3,4,5 6,7, and 8 hereto was true and correct as of [
], 19[ ] (the "QUARTERLY COMPLIANCE DATE") and (b) except as stated on
Attachment [ ] hereto (if any), no Default had occurred and was continuing on
the Quarterly Compliance Date or has occurred and is continuing on the date of
this Compliance Certificate.
The undersigned hereby further certifies that all calculations were prepared
in accordance with generally accepted accounting principles or as presented in
the annual report on a consistent basis with the Company's financial
statements referred to in Clause l9.l(d) of the Facility Agreement, all as
required by the Facility Agreement.
COMDISCO, INC.
By: ___________________________________
Title: __________________________________
ATTACHMENT 1
CONSOLIDATED TANGIBLE NET WORTH RATIO
1. The consolidated capital (including in excess of par value but
excluding effects of deferred translation adjustment) and retained
earnings of the Company and Subsidiaries $[ ]
2. All franchises, patents, patent applications, trademarks, goodwill,
research and development expense, the after-tax effect of
unamortised debt discount and any other unamortised debt
expense and other intangibles shown on the consolidated balance
sheet of the Company and Subsidiaries as at the Quarterly
Compliance Date. $[ ]
3. Consolidated Tangible Net Worth
(Item 1 minus Item 2) $[ ]
4. 50% of Consolidated Net Income from September 30, 1994, with
no adjustment for losses $[ ]
5. $587,000,000 plus Item 4 $[ ]
6. Item 3 minus Item 5 (shall not be less than zero) $[ ]
ATTACHMENT 2
FIXED CHARGE COVERAGE RATIO
1. EARNINGS FROM CONTINUING OPERATIONS $[ ]
BEFORE TAXES
2. INTEREST EXPENSE $[ ]
3. AMOUNT AVAILABLE $[ ]
(Item 1 plus Item 2)
4. RATIO OF EARNINGS TO FIXED CHARGES $[ ] : 1
(Item 3 divided by item 2)
5. COMPLIANCE RATIO 1.15 : 1
ATTACHMENT 3
TOTAL LIABILITIES TO ADJUSTED NET WORTH RATIO
1. LIABILITIES AS SHOWN ON CONSOLIDATED BALANCE SHEET $[ ]
2. OTHER LIABILITIES
(a) Guarantees (other than endorsements
for deposit or collection in the
ordinary course of business) $[ ]
(b) Indebtedness of joint ventures or
partnerships for which the Company
or a Subsidiary is liable $[ ]
(c) Other contingent liabilities
(specify on separate sheet) $[ ]
(d) Shortfall from sublease payables
minus sublease receivables $[ ]
TOTAL OTHER LIABILITIES $[ ]
3. ADJUSTED LIABILITIES $[ ]
(Item 1 plus item 2)
4. ANY LIABILITY FOR DEFERRED INCOME TAXES $[ ]
5. ANY LIABILITY FOR DEFERRED INCOME $[ ]
6. TOTAL LIABILITIES $[ ]
(Item 3 minus sum of Items 4 and 5)
7. CONSOLIDATED TANGIBLE NET WORTH
(Item 3 of Attachment 1)
8. THE AGGREGATE OF: $[ ]
(a) new moneys or other assets invested in any
oil or gas joint venture on or after the
Signing Date (except as provided for in
paragraph (b)(iii) below); and
(b) investments in excess of U.S.$l00,000,000
excluding (i) Cash Equivalent Investments.
(ii)investments in joint ventures that are
engaged in business (other than the
oil or gas business) in which the Company or a
Material Subsidiary could engage pursuant to
Clause 20.7 of the Facility Agreement and
(iii) the Company's investment in its oil and
gas joint venture as of September 30, l990 and
all profits in respect thereof retained in
such joint venture.
9. ADJUSTED TANGIBLE NET WORTH $[ ]
(Item 7 minus Item 8)
10. RATIO OF TOTAL LIABILITIES TO ADJUSTED TANGIBLE NET WORTH
(Item 6 to Item 9) $[ ]
11. COMPLIANCE RATIO 6.5 : 1
ATTACHMENT 4
RECOURSE LIABILITIES RATIO
1. TOTAL LIABILITIES $[ ]
(Item 6 on Attachment 3)
2. NON-RECOURSE DISCOUNTED LEASE RENTALS $[ ]
3. RECOURSE LIABILITIES $[ ]
(Item l minus Item 2)
4. ADJUSTED TANGIBLE NET WORTH $[ ]
(Item 9 on Attachment 3)
5. RATIO OF RECOURSE LIABILITIES TO ADJUSTED [ ] : 1
TANGIBLE NET WORTH
(Item 3 to Item 4)
6. COMPLIANCE RATIO 4.50 : 1
ATTACHMENT 5
UNENCUMBERED CASH FLOW TO CONTRACTUAL PAYMENTS RATIO
1. CONTRACTUAL PAYMENTS TO BE RECEIVED $[ ]
(Less six times 75% of total accounts receivable
90 days or more past due)
2. RENTS RECEIVABLE ON NON-OWNED EQUIPMENT $[ ]
3. ACCOUNTS RECEIVABLE $[ ]
(less than 90 days past due)
4. CASH $[ ]
5. INVENTORY $[ ]
6. 3% OF TOTAL ASSETS $[ ]
7. APPLICABLE INVENTORY $[ ]
(Lesser of Item 5 or 6)
8. UNENCUMBERED CASH FLOW $[ ]
(The sum of Items 1,2,3,4 and 7)
9. DISASTER RECOVERY CONTRACTUAL Payments $[ ]
10. RENTS PAYABLE ON NON-OWNED EQUIPMENT $[ ]
11. ACCOUNTS PAYABLE $[ ]
12. NOTES PAYABLE $[ ]
13. TERM NOTES PAYABLE $[ ]
14. SENIOR NOTES $[ ]
15. SUBORDINATED DEBT $[ ]
16. CONTRACTUAL PAYMENTS $[ ]
(The sum of Items 9 through and including l5)
17. RATIO OF UNENCUMBERED CASH FLOW
TO CONTRACTUAL PAYMENTS
(Item 8 divided by Item 16) $[ ]
18. COMPLIANCE RATIO 1.00 : 1.00
ATTACHMENT 6
NET CASH PROVIDED
BY
OPERATING ACTIVITIES
1. NET CASH PROVIDED BY
OPERATING ACTIVITIES ON A ROLLING
FOUR-QUARTER BASIS (as shown on the
consolidated statement of cash flows)
$[ ]
2. TOTAL LIABILITIES AS SHOWN ON
CONSOLIDATED BALANCE SHEET (INCLUDING
NON-RECOURSE DISCOUNTED LEASE RENTALS)
(Item 6 on Attachment 3) $[ ]
3. RATIO OF NET CASH PROVIDED BY
OPERATING ACTIVITIES ON A ROLLING
FOUR-QUARTER BASIS TO TOTAL LIABILITIES
AS OF THE END OF ANY QUARTER
(Item 1 divided by Item 2) [ ] : 1
4. COMPLIANCE RATIO 0.25 : 1
ATTACHMENT 7
CUMULATIVE NET LOSSES
NET INCOME OR
(LOSS)
Third Previous Quarter $[ ]
Second Previous Quarter $[ ]
First Previous Quarter $[ ]
This Quarter $[ ]
TOTAL $[ ]
Maximum Net Loss $(l0,000,000)
ATTACHMENT 8
REMARKETING REVENUES
TO
NET BOOK (OR RESIDUAL) VALUE
1. REMARKETING REVENUE $[ ]
2. NET BOOK VALUE AT LEASE TERMINATION $[ ]
3. DIVIDE ITEM 1 BY ITEM 2 [ ] : 1
4. COMPLIANCE RATIO 1.25
EXHIBIT Q
PART I
ECP NOTES
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
[ ], 1991
No. _______________
Manufacturers Hanover Trust Company
as Issue and Paying Agent
(the "Depositary") under the Issue
and Paying Agency Agreement
dated as of , 1991
between the Depositary, Comdisco, Inc., Comdisco Finance (Nederland) B.V.
and National Westminster Bank PLC
(together with all exhibits,
attachments, appendices and schedules
thereto, as amended from time to
time, the "Depositary Agreement").
Attention: Commercial Paper Issuance
Gentlemen:
We, National Westminster Bank PLC acting through our branch at [ ]
London [ ], England (herein referred to as "we", "us", "our" or the
"Bank") hereby establish in your favor as fiduciary and Depositary for the
benefit of the holders of the CP Notes (hereinafter defined), our Irrevocable
Transferable Letter of Credit No. _______________ (together with Appendices I
through and including X hereto, as amended from time to time, this "Letter of
Credit") at the request and for the account of Comdisco, Inc., a Delaware
corporation, (the "Company") and Comdisco Finance (Nederland) B.V. ("Finance")
whereby we irrevocably authorize you to draw on us, from time to time, from
and after the date hereof to 5:00 p.m. New York time on the date (the
"Expiration Date") (provided that if such date is not a Business Day
(hereinafter defined), then the Expiration Date shall be the first Business
Day occurring thereafter) which is the earlier to occur of (i) [ ] (such
date and each date to which such date is extended in accordance herewith being
called the "Stated Termination Date") and (ii) fifteen (l5) calendar days
following our receipt from you and the Company of a certificate in the form of
Appendix I hereto (appropriately completed) ("Notice of Termination") in a
maximum aggregate amount, (the "Stated Amount") not exceeding the sum of:
(i) a maximum aggregate amount (as may be decreased in accordance
herewith, the "Principal Amount") of one hundred million United States Dollars
(U.S.$l00,000,000) which may be drawn to pay the Face Amount (hereinafter
defined) of the COMDISCO/COMDISCO FINANCE NWB Series short-term
Euro-commercial paper notes issued by the Company or Finance, and duly
authenticated and delivered by you, pursuant to and in accordance with the
Depositary Agreement (collectively, the "CP Notes"); and
(ii) any other amounts which may be drawn to pay Additional Amounts (as
defined below) under the CP Notes.
The term "CP Notes" shall be deemed to include the obligations of each Issuer
under the Deed of Covenant (as defined in the Depositary Agreement) executed
by it and the references to "Face Amount" and "Additional Amounts" herein
shall be construed accordingly.
This Letter of Credit is available to you against presentation of the
following documents (collectively, the "Payment Documents" and individually, a
"Payment Document") presented to us care of our New York Branch at 175 Water
Street, New York, N.Y. l0038 Attention: Alastair Dalzell (or to such other
place or person as we may from time to time specify):
A certificate (i) in the form attached as Appendix III hereto to pay the Face
Amount (hereinafter defined) of CP Notes and Additional Amounts (hereinafter
defined) (if any) thereunder on the Stated Maturity Date (hereinafter defined)
thereof (each, a "Maturity Drawing"), or (ii) in the form of Appendix IV
hereto to pay the Face Amount of all outstanding CP Notes and Additional
Amounts (if any) which will be payable thereunder upon your receipt of an
Acceleration Notice (an "Acceleration Drawing"), (iii) in the form of Appendix
IX hereto to pay the Face Amount of all outstanding CP Notes and Additional
Amounts (if any) which will be payable thereunder (an "Expiration Drawing") or
(iv) in the form of Appendix X hereto to pay Additional Amounts payable under
CP Notes in respect of which a Maturity Drawing, Acceleration Drawing or
Expiration Drawing has been made and which are not Delayed Notes (as defined
in the Depositary Agreement) (an "Additional Amounts Drawing"). Each
certificate (appropriately completed) is to state therein that it is given by
your duly authorised officer and is to be dated the date such certificate is
presented hereunder.
For all purposes of this Letter of Credit, Delayed Notes (as defined in the
Depositary Agreement) and CP Notes for the payment of which monies are on
deposit in the relevant Special Account (as hereinafter defined) or with
respect to which a Maturity Drawing has been honored (but funds for the
payment of which have not yet been deposited in the relevant Special Account)
shall be deemed not to be outstanding.
A Maturity Drawing shall be presented no earlier than the Business Day
(hereinafter defined) prior to the Stated Maturity Date (hereinafter defined)
of the CP Notes and no later than the earliest of (a) the Expiration Date, (b)
the Principal Amount Reduction Date and (c) the fifteenth day following the
Stated Maturity Date of the CP Notes, or if such fifteenth day is not a
Business Day, the next succceeding Business Day. An Expiration Drawing shall
only take place where, prior to l5 calendar days before the Stated Termination
Date of a Letter of Credit (the "Expiring Letter of Credit"), either (a) such
Stated Termination Date shall not have been extended to a date being the
earlier of (i) twelve months after such Stated Termination Date and (ii) the
date being two Business Days prior to the Final Maturity Date (as defined in
the Facility Agreement) (the "Revised Stated Termination Date") or (b) a new
Letter of Credit in substitution for the Expiring Letter of Credit has not
been issued in like amount but with the Revised Stated Termination Date and to
be available for drawing on the Business Day following the Stated Termination
Date of the Expiring Letter of Credit.
An Additional Amounts Drawing may only be made in respect of CP Notes for
which a Maturity Drawing, Acceleration Drawing or Expiration Drawing has been
made and may be made as soon as you are aware that Additional Amounts will be
payable on such CP Notes and no later than the earlier of (a) the Expiration
Date and (b) the fifteenth day following the Stated Maturity Date of such CP
Notes, or if such fifteenth day is not a Business Day, the next succeeding
Business Day.
All drawings shall be made by telecopy or other facsimile telecommunication
without further need of documentation, including the original of this Letter
of Credit, it being understood that each Payment Document submitted via such
telecopy or other facsimile telecommunication is to be the sole operative
instrument of drawing.
We agree to honor and pay the amount of any Maturity Drawing, or Acceleration
Drawing or Expiration Drawing or Additional Amounts Drawing if timely
presented to us in compliance with all of the terms of this Letter of Credit.
If such drawing certificate is presented prior to 3:00 p.m., New York time, on
a Business Day, payment shall be made by us to you of the amount specified, in
immediately available funds, before 10:30 a.m., New York time, on the next
Business Day. If any such drawing certificate is presented after 3:00 p.m.,
New York time, on a Business Day, payment shall be made by us to you of the
amount specified in immediately available funds, by the close of our business,
New York time, on the next Business Day.
All payments to be made by us hereunder shall be made to the relevant special
purpose trust account (the "Special Account") established by you, entitled
"COMDISCO NWB CP Noteholders Special Account" in respect of the COMDISCO NWB
Notes and entitled "COMDISCO FINANCE NWB CP Noteholders Special Account" in
respect of the COMDISCO FINANCE NWB Notes), for the benefit of the holders,
from time to time, of the CP Notes and pursuant to the transfer instructions
provided by you to us in your applicable Payment Document. All payments made
by us under this Letter of Credit shall be made by us with our own general
funds and in no event shall such payments be made with funds obtained from the
Company or Finance.
If a demand for payment made hereunder does not, in any instance, conform in
all substantial respects to the terms and conditions of this Letter of Credit,
the Bank shall give you prompt notice that the demand for payment was not
effected in accordance with the terms and conditions of this Letter of Credit,
stating the reasons therefor and that the Bank will, upon your instructions,
hold any documents at your disposal or return the same to you. Upon your
being notified by us that the demand for payment was not effectuated in
conformity with this Letter of Credit, you may attempt to correct any such
non-conforming demand for payment in accordance with the terms and procedures
set forth in this Letter of Credit prior to the expiry hereof.
No increase in the Principal Amount shall be permitted. The Principal Amount
may be decreased by notice from the Company and you. Any decrease shall be
effective on the later of (i) the Business Day following our receipt of a
certificate in the form attached hereto as Appendix V (which you shall copy to
Barclays Bank PLC, 75 Wall Street, New York, NY l0265, Attention: Central
Loans Administration Department, Agency Desk appropriately completed and
signed by the Company on its own and on behalf of Finance) and acknowledged by
the Depositary (a "Request for Change in Principal Amount and Reduction
Certificate") and (ii) the date defined in the Request for Change in Principal
Amount and Reduction Certificate as the "Effective Date". Within ten (10)
Business Days of the receipt by us of a Request for Change in Principal Amount
and Reduction Certificate, we shall deliver to you an amendment to this Letter
of Credit substantially in the form attached hereto as Appendix VI
(appropriately completed) confirming the new Principal Amount (a "Principal
Amount Amendment"). Failure to deliver to you a Principal Amount Amendment in
accordance with the foregoing shall not affect the reduction in Principal
Amount pursuant to the Request for Change in Principal Amount and Reduction
Certificate. In no event may the Principal Amount of this Letter of Credit be
decreased below the Face Amount of all outstanding CP Notes (as certified by
the Beneficiary) other than the Delayed Notes (as defined in the Depositary
Agreement).
Upon any decrease in the Principal Amount we may alternatively deliver to you
a substitute Letter of Credit (having the same terms and provisions as this
Letter of Credit). If we deliver to you such a substitute Letter of Credit
you shall simultaneously surrender to us for cancellation this Letter of
Credit together with all prior amendments thereto then in your possession.
The portion of each Maturity Drawing that equals the Face Amount of CP Notes
in respect of which the Maturity Drawing is made shall automatically reinstate
upon payment of the amount thereof by us to you in an amount equal to the
amount thereof. Following an Acceleration Drawing or an Expiration Drawing
the Principal Amount of this Letter of Credit shall not be reinstated under
any circumstances. The Principal Amount shall be reduced immediately and
automatically to zero and no drawing thereof may be made after 5.00 p.m. New
York time on the date (the "Principal Amount Reduction Date") (provided that
if such date is not a Business Day (hereinafter defined), then on the first
Business Day occurring thereafter) which is the earliest to occur of: (i) the
date on which we honor an Acceleration Drawing (hereinafter defined); (ii) the
date on which we honor an Expiration Drawing (hereinafter defined; and (iii)
the later of (A) fifteen (l5) calendar days following your receipt of a notice
in the form of Appendix II hereto (appropriately completed) (an "Acceleration
Notice") from National Westminster Bank PLC (the "Facility Agent") in which
they notify you that an Event of Default has occurred under the Facility
Agreement (hereinafter defined) and (B) the Business Day following the day we
shall have received an executed original of such notice (which includes an
acknowledgement by you of your receipt and the date thereof and which
acknowledgement you shall use your best endeavours to deliver to us within
five Business Days of your receipt of the original notice). "Additional
Amount(s)" means any additional amounts payable by an Issuer under a CP Note
by way of any set-off, deduction or withholding on account of any tax imposed
by or levied within the United States of America, the United Kingdom or the
Netherlands.
"Available Amount" of this Letter of Credit means (1) on or before the
Expiration Date, an amount equal to the lesser of (i) the Stated Amount then
in effect and (ii) the aggregate of the Face Amount of all outstanding CP
Notes (as certified by the Beneficiary) and Additional Amounts (if any) which
will be payable thereunder and (2) after the Expiration Date, zero.
"Business Day" means any day (other than a Saturday) on which banks are open
for business in London, England and New York, New York and on which both
Morgan Guaranty Trust Company of New York, Brussels office, as operator of the
Euro-clear System, and Centre de Livraison de Valeurs Mobilieres S.A. are
operating.
"Face Amount" means, with respect to each CP Note, the face amount of such CP
Note which is specified in such CP Note as the amount which is due and payable
on the Stated Maturity Date of such CP Note and which for the avoidance of
doubt shall exclude any Additional Amounts.
"Facility Agreement" means that certain facility agreement dated June 4, l99l
as amended by exchange of faxes dated on or about August 9 and by a
supplemental agreement dated , 1991 by and among National
Westminster Bank PLC as Arranger and the other banks party thereto and the
Company together providing for a revolving credit facility of US$375,000,000
and together with all exhibits, schedules, attachments and appendices thereto,
as amended from time to time.
"Stated Maturity Date" means, with respect to each CP Note, the date specified
in such CP Note as the date on which the Face Amount of such CP Note is due
and payable.
Prior to the Expiration Date, we may extend the Stated Termination Date from
time to time at the request of the Company notified to the Letter of Credit
Agent by delivering to the Depositary an amendment to this Letter of Credit in
the form of Appendix VII hereto (appropriately completed) designating the date
to which the Stated Termination Date is being extended. All references in
this Letter of Credit to the Stated Termination Date shall be deemed to be,
and shall be, references to the date designated as such in such notice. Any
date to which the Stated Termination Date has been extended as herein provided
may be extended in a like manner.
At 5:00 p.m., New York time, on the Expiration Date, this Letter of Credit
shall automatically terminate without prejudice to the Bank's obligation
hereunder, if any, to honor and pay all conforming draws presented hereunder
prior to such time. Upon termination of this Letter of Credit you shall
return the Letter of Credit to us for cancellation by us, provided that
failure to so deliver or return the Letter of Credit shall not affect the
termination thereof.
The Letter of Credit is transferable in whole only and solely to your
successor as Depositary approved by the Bank and others pursuant to Clause 13
of the Depositary Agreement. Any such transfer (including any successive
transfer) shall be effective upon receipt by us of a signed copy of the
instrument effecting each such transfer signed by the transferor and by the
transferee in the form of Appendix VIII hereto (appropriately completed)
(which shall be conclusive evidence of such transfer) and, in such case, the
transferee instead of the transferor shall, without the necessity of further
action, be entitled to all the benefits and rights under this Letter of Credit
in the transferor's place; provided that, in such case, any certificates of
the Depositary to be provided hereunder shall be signed by one who states
therein that he or she is a duly authorized officer of the transferee.
This Letter of Credit is intended to provide only for the payment of the Face
Amount of the CP Notes other than Delayed Notes (as defined in the Depositary
Agreement) and Additional Amounts (if any) payable thereunder. Accordingly,
in actions taken by you as beneficiary of this Letter of Credit you shall not
be acting as an agent of the Company but shall be acting as a fiduciary on
behalf of the owners or holders of the CP Notes.
Only the Depositary may make drawings under this Letter of Credit in respect
of the CP Notes. Upon payment to the Depositary of any such drawing
hereunder, we shall be discharged in full with respect to such drawing and the
holders of the CP Notes (other than the Delayed Notes) shall look solely to
you for the application of such payments to the CP Notes related to such
drawing, including, without limitation, the payment at maturity of the CP
Notes for which an Acceleration Drawing or an Expiration Drawing has been
made.
All presentations, demands, notices of transfer and other communications with
respect to this Letter of Credit and other certificates set forth in the
Appendices to this Letter of Credit (which shall be addressed as set forth
therein) shall be made or sent to us, care of our New York Branch, at 175
Water Street, New York, New York l0038, Attention: Alastair Dalzell (or to
such other address in New York City or person as we may notify to you from
time to time) specifically referring to the number of this Letter of Credit.
To the extent not inconsistent with the express terms hereof, this Letter of
Credit shall be governed by, and construed in accordance with, the terms of
the Uniform Commercial Customs and Practice for Documentary Credits, l983
Revision, ICC Publication No. 400 (the "Uniform Customs"), except Article 45
and the first two sentences of Article 54(e) thereof. As to matters not
governed by the Uniform Customs, this Letter of Credit shall be governed by
and construed in accordance with the laws of the State of New York.
This Letter of Credit, as amended from time to time, together with Appendices
I through X hereto, set forth in full the terms of our undertaking, and such
undertaking shall not in any way be modified or amended by reference to any
other document whatsoever.
NATIONAL WESTMINSTER BANK PLC
By _____________________________
Its _____________________________
By _____________________________
Its______________________________
<PAGE>
APPENDIX I
to
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. _________________
NOTICE OF TERMINATION
To: National Westminster Bank PLC _____________, 19__
c/o New York Branch [INSERT DATE]
175 Water Street
New York, New York l0038
Attention: Alastair Dalzell
Re: Irrevocable Transferable Letter of Credit No.
dated ____________, 1991, issued by
National Westminster Bank PLC, (the "Bank") in
favor of Manufacturers Hanover Trust Company, as
Depositary (the "Beneficiary") (as amended through
the date hereof, the "Letter of Credit")
Gentlemen:
Unless otherwise defined herein, all terms and phrases which are defined in
the Letter of Credit shall have the same meaning when used herein as that
which is ascribed to them in the Letter of Credit.
Each of the undersigned hereby certifies and confirms that (i) he or she is a
duly authorized officer of the Company or the Depositary, as the case may be,
(ii) [no CP Notes are outstanding] or [all drawings required to be made under
the Depositary Agreement and available under the Letter of Credit as to
outstanding CP Notes have been made and honored] or [a substitute letter of
credit has been issued to replace the Letter of Credit in accordance with
Clause 9 of the Facility Agreement] and (iii) accordingly, said Letter of
Credit shall be terminated in accordance with its terms.
COMDISCO, INC.
By _________________________
[Title of Authorized Officer acting on its own behalf and on
behalf of Comdisco Finance Nederland) B.V.
MANUFACTURERS HANOVER TRUST COMPANY
as Depositary
By ____________________________
[Title of Authorized Officer]
APPENDIX II
to
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. _________________
ACCELERATION NOTICE
Manufacturers Hanover Trust Company _____________, 19__
2nd Floor, No. 1 Broadgate, [INSERT DATE]
London EC2M 7HA
Attention: ECP Unit
c.c. Barclays Bank PLC National Westminster Bank PLC
75 Wall Street c/o New York Branch
New York, NY 10265 l75 Water Street
Attn: Central Loans New York, N.Y. l0038
Administration Department
Agency Desk
Re: Irrevocable Transferable Letter of Credit No. __________
dated ________, 1991, issued by National Westminster
Bank PLC, (the "Bank") in favor of Manufacturers
Hanover Trust Company, as depositary (the
"Beneficiary") (as amended through the date hereof, the
"Letter of Credit")
Gentlemen:
Unless otherwise defined herein, all terms and phrases which are defined in
the Letter of Credit shall have the same meaning when used herein as that
which is ascribed to them in the Letter of Credit.
We hereby notify you that an Event of Default has occurred under the Facility
Agreement and direct that you make an Acceleration Drawing under the Letter of
Credit.
We hereby direct that you shall not, on receipt of this notice, authenticate
or deliver any new CP Notes under the Depositary Agreement other than in
respect of purchases irrevocably committed to by the Dealers (as defined in
the Depositary Agreement) prior to your receipt of this notice.
Pursuant to the terms of the Letter of Credit, the Principal Amount of the
Letter of Credit shall be reduced to zero and no drawing thereof may be made
after 5:00 p.m. New York time on the date which is the later of fifteen (l5)
calendar days following Beneficiary's receipt of this notice and the Business
Day following the day of the Bank's receipt of this notice which includes an
acknowledgement by the Beneficiary of its receipt and the date thereof.
Please acknowledge receipt and the date thereof on the enclosed copy of this
Notice.
NATIONAL WESTMINSTER BANK PLC
as Facility Agent
By ___________________________
Title of Authorized Officer
Receipt of this Notice on __________ 199 is hereby acknowledged.
MANUFACTURERS HANOVER TRUST COMPANY
as Beneficiary
By_________________________________
Title of Authorised Officer
APPENDIX III
to
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. _________________
MATURITY DRAWING CERTIFICATE
To: National Westminster Bank PLC _____________, 19__
c/o New York Branch [INSERT DATE]
175 Water Street
New York, New York l0038
Attention: Alastair Dalzell
Re: Irrevocable Transferable Letter of Credit No. _______
dated ____________, 1991, issued by National
Westminster Bank PLC, (the "Bank") in favor of
Manufacturers Hanover Trust Company, as
Depositary (the "Beneficiary") (as amended through the
date hereof, the "Letter of Credit")
Gentlemen:
Unless otherwise defined herein, all terms and phrases which are defined in
the Letter of Credit shall have the same meaning when used herein as that
which is ascribed to them in the Letter of Credit.
The undersigned individual hereby CERTIFIES AND CONFIRMS for, in the name of
and on behalf of the Beneficiary acting under the Depositary Agreement as
follows:
1. The undersigned individual is a duly authorized officer of the
Beneficiary.
2. The Beneficiary is the Depositary under the Depositary Agreement.
3. On behalf of the holder or holders of the one or more CP Notes listed on
the attached Schedule I maturing on the Stated Maturity Date set forth on such
Schedule I, we are hereby making demand for the payment of the aggregate of US
$____________ under the Letter of Credit, comprising US$_______ of the
Principal Amount to pay in full the aggregate Face Amount thereof [and
US$_____ to pay Additional Amounts thereunder]+.
4. Each such CP Note was authenticated and delivered by us pursuant to and
in accordance with the Depositary Agreement.
5. The date hereof is not earlier than the Business Day prior to the Stated
Maturity Date of such CP Notes nor later than the fifteenth day following the
Stated Maturity Date of such CP Notes or, if such fifteenth day is not a
Business Day, the next succeeding Business Day.
6. The amount requested hereby shall be deposited by us directly to the
Special Account and not to any other account maintained by or for the account
of the Company or Finance. Such amount shall be applied by us solely to the
payment of maturing CP Notes (except for Delayed Notes).
7. When the CP Notes have been presented for payment and paid by us, we
will cancel the same, mark each such CP Note "paid", and, unless otherwise
instructed by the Company, destroy the cancelled Notes from time to time and
furnish the Company or Finance with a destruction certificate stating
particulars of the cancelled Notes so destroyed.
8. Transfer instructions for the Special Account are as follows:
Manufacturers Hanover Trust Company
New York
ABA: 02l000306
Account Number: (Comdisco, Inc.) - 966002602
(Comdisco Finance) - 9660026l0
9. The amount of the drawing made by this Certificate was computed in
compliance with the terms and conditions of the Letter of Credit and, when
added to the amount of any other drawing under the Letter of Credit made
simultaneously herewith, does not exceed the Available Amount of the Letter of
Credit.
10. Neither the Expiration Date nor the Principal Amount Reduction Date
has occurred.
11. The amount drawn hereunder to pay Additional Amounts does not exceed
the
Additional Amounts payable under the CP Notes listed on the attached Schedule
I.]
IN WITNESS WHEREOF, this Certificate has been executed this __________ day of
__________, 19.
MANUFACTURES HANOVER TRUST COMPANY
as Beneficiary
_______________________________
[Title of Authorized Officer]
SCHEDULE 1
to
MATURITY DRAWING CERTIFICATE
LIST OF MATURING CP NOTES
Stated
SERIAL NUMBER FACE AMOUNT DATE OF ISSUANCE MATURITY DATE
Total ___________________
US $_______________
APPENDIX IV
to
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. ___________
ACCELERATION DRAWING CERTIFICATE
To: National Westminster Bank PLC ____________, 19__
c/o New York Branch [INSERT DATE]
175 Water Street
New York, N.Y. l0038
Attention: Alastair Dalzell
Re: Irrevocable Transferable Letter of Credit No. _______
dated ____________, 1991, issued by National
Westminster Bank PLC, (the "Bank") in favor of
Manufacturers Hanover Trust Company, as
Depositary (the "Beneficiary") (as amended through the
date hereof, the "Letter of Credit")
Gentlemen:
Unless otherwise defined herein, all terms and phrases which are defined in
the Letter of Credit shall have the same meaning when used herein as that
which is ascribed to them in the Letter of Credit.
The undersigned individual hereby CERTIFIES AND CONFIRMS for, in the name of
and on behalf of the Beneficiary acting under the Depositary Agreement as
follows:
1. The undersigned individual is a duly authorized officer of the
Beneficiary.
2. The Beneficiary is the Depositary under the Depositary Agreement.
3. We are in receipt of an Acceleration Notice.
4. Listed on the attached Schedule I (each page of which has been numbered
and signed by a duly authorised officer of the Beneficiary) are all of the
outstanding CP Notes on the date hereof.
5. On behalf of the holder or holders of the one or more CP Notes listed on
Schedule I, we are hereby making demand for the payment of the aggregate sum
of US $____________ under the Letter of Credit comprising US$_____ of the
Principal Amount to pay in full the aggregate Face Amount thereof [and
US$_______ representing the amount required to pay Additional Amounts
thereunder.]+
6. Each such CP Note was authenticated and delivered by us pursuant to and
in accordance with the Depositary Agreement.
7. The date hereof is not later than the fifteenth day following the
Stated Maturity Date of such CP Notes or, if such fifteenth day is not a
Business Day, on the next succeeding Business Day.
8. When the CP Notes have been presented for payment and paid by us, we
will cancel the same, mark each such CP Note "paid", and, unless otherwise
instructed by the Company, destroy the cancelled Notes from time to time and
furnish the Company or Finance with a destruction certificate stating
particulars of the cancelled Notes so destroyed.
9. The amount requested hereby shall be deposited by us directly to the
Special Account and not to any other account maintained by or for the account
of the Company or Finance. Such amount shall be invested only as permitted by
the Depositary Agreement and applied by us solely to the payment of maturing
CP Notes.
10. Transfer instructions for the Special Account are as follows:
Manufacturers Hanover Trust Company
New York
ABA: 02l000306
Account Number (Comdisco, Inc.) - 966002602
(Comdisco Finance) - 966002610
11. he amount of the drawing made by this Certificate was computed in
compliance with the terms and conditions of the Letter of Credit and, when
added to the amount of any other drawing under the Letter of Credit made
simultaneously herewith, does not exceed the Available Amount of the Letter of
Credit.
12. Neither the Expiration Date nor the Principal Amount Reduction Date
has occurred.
13. The amount drawn hereunder to pay Additional Amounts does not exceed
the Additional Amounts which will be payable under the CP Notes listed on the
attached Schedule I.]
IN WITNESS WHEREOF, this Certificate has been executed this __________ day of
____________, 19--.
MANUFACTURERS HANOVER TRUST COMPANY
as Beneficiary
__________________________
[Title of Authorized Officer]
SCHEDULE I
to
ACCELERATION DRAWING CERTIFICATE
LIST OF OUTSTANDING CP NOTES
Stated
SERIAL NUMBER FACE AMOUNT DATE OF ISSUANCE MATURITY DATE
Total ___________________
US $_______________
APPENDIX V
to
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. ____________
REQUEST FOR CHANGE IN PRINCIPAL AMOUNT
AND REDUCTION CERTIFICATE
____________,199-_
To: National Westminster Bank PLC [INSERT DATE]
c/o New York Branch
175 Water Street
New York, N.Y. l0038
cc: Barclays Bank PLC
75 Wall Street
New York, NY l0265
Attention: Central Loans Administration Department, Agency Desk
Re: Irrevocable Transferable Letter of Credit No. _______
dated ____________, 1991, issued by National
Westminster Bank PLC, (the "Bank") in favor of
Manufacturers Hanover Trust Company, as
Depositary (the "Beneficiary") (as amended through the
date hereof, the "Letter of Credit")
Gentlemen:
Unless otherwise defined herein, all terms and phrases which are defined
in the Letter of Credit shall have the same meaning when used herein as that
which is ascribed to them in the Letter of Credit.
In accordance with Clause 9 of the Facility Agreement and the Letter of
Credit, we hereby direct that the Bank decrease the Principal Amount of the
Letter of Credit such that on and after the later of (a) the Business Day
following the date of receipt of this Certificate by the Bank and (b)
__________ 19__ (the "Effective Date"), the Principal Amount of the Letter of
Credit shall be equal to ______________ United States Dollars (U.S.
$_________). In connection herewith, the undersigned individual for, in the
name of and on behalf of the Company and Finance hereby CERTIFIES, REPRESENTS,
WARRANTS AND CONFIRMS as follows:
1. The undersigned individuals are duly authorized officers of the
Company and Beneficiary respectively.
2. On and as of the date hereof and on and as of the Effective
Date:
(a) the new Principal Amount of the Letter of Credit is not greater than
the Bank's L/C Obligation (as defined in the Facility Agreement) and is not
less than the aggregate Face Amount of all outstanding CP Notes (excluding
Delayed Notes); and
(b) this Certificate has been duly executed by the Company and the
Depositary.
3. This change in the Principal Amount which is the subject of this
Certificate is equal to One Million United States Dollars (US $1,000,000) or a
larger amount which is a whole multiple of One Thousand United States Dollars
(US $l,000) in excess thereof.
4. The Beneficiary hereby authorises and directs the Bank to reduce
the Principal Amount of this Letter of Credit to U.S. $[ ] on the
Effective Date.
5. Upon giving effect to this Certificate the Stated Principal Amount
of the Letter of Credit will not be reduced below the aggregate Face Amount of
CP Notes in respect of which a drawing has not been made under the Letter of
Credit. The Beneficiary certifies that listed on the attached Schedule I are
all of the outstanding CP Notes on the date hereof (other than the Delayed
Notes).
6. The Beneficiary is the Depositary under the Depositary Agreement.
IN WITNESS WHEREOF, this Request for Change in Principal Amount has
been executed this ______ day of ____________, 19__.
COMDISCO, INC.
By: ___________________________
(Title of Authorized Officer]
on its own behalf and on behalf of
Comdisco Finance (Nederland) B.V.
ACKNOWLEDGED AND AGREED TO (OTHER THAN AS TO THE COMPANY'S REPRESENTATIONS IN
PARAGRAPHS 1 AND 3 ABOVE) as of this ___ day of __________, l9__.
MANUFACTURERS HANOVER TRUST COMPANY
Beneficiary
By: ____________________________
[Title of Authorized Officer]
SCHEDULE I
to
REQUEST FOR CHANGE IN PRINCIPAL AMOUNT AND REDUCTION CERTIFICATE
LIST OF OUTSTANDING CP NOTES
Stated
SERIAL NUMBER FACE AMOUNT DATE OF ISSUANCE MATURITY DATE
Total ___________________
US $_______________
APPENDIX VI
to
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. ______________
PRINCIPAL AMOUNT AMENDMENT
Manufacturers Hanover Trust Company _____________, 19__
2nd Floor, No. 1 Broadgate [INSERT DATE]
London EC2M 7HA
Attention: ECP Unit
Re: Irrevocable Transferable Letter of Credit No. _______
dated ____________, 1991, issued by National
Westminster Bank PLC, (the "Bank") in favor of
Manufacturers Hanover Trust Company, as
Depositary (the "Beneficiary") (as amended through the
date hereof, the "Letter of Credit")
Gentlemen:
Unless otherwise defined herein, all terms and phrases which are defined
in the Letter of Credit shall have the same meaning when used herein as that
which is ascribed to them in the Letter of Credit.
We hereby notify you that, in accordance with the terms of the Letter of
Credit, the Request for Change in Principal Amount and Reduction Certificate
dated ________, 19__, and the Facility Agreement, effective as of _________,
19__, the Principal Amount of the Letter of Credit is equal to
__________United States Dollars (US $____________).
This Notice of Amendment Regarding Principal Amount should be attached to
the Letter of Credit and made a part thereof.
By__________________________________
Authorized Officer
National Westminster Bank PLC
By___________________________________
Authorized Officer
National Westminster Bank PLC
APPENDIX VII
to
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. ______________
NOTICE OF EXTENSION OF STATED TERMINATION DATE
Manufacturers Hanover Trust Company _____________, 19__
2nd Floor, No. 1 Broadgate [INSERT DATE]
London EC2M 7HA
Attention: ECP Unit
Re: Irrevocable Transferable Letter of Credit No. _______
dated ____________, 1991, issued by National
Westminster Bank PLC, (the "Bank") in favor of
Manufacturers Hanover Trust Company, as
Depositary (the "Beneficiary") (as amended through the
date hereof, the "Letter of Credit")
Gentlemen:
Unless otherwise defined herein, all terms and phrases which are defined
in the Letter of Credit shall have the same meaning when used herein as that
which is ascribed to them in the Letter of Credit.
We hereby notify you that, in accordance with the terms of the Letter of
Credit and the Facility Agreement, the Stated Termination Date of the Letter
of Credit has been extended to _______________, _______.
This Notice of Extension of Stated Termination Date should be attached to
the Letter of Credit and made a part thereof.
______________________________________
By____________________________________
Authorized Officer
National Westminster Bank PLC
By____________________________________
Authorized Officer
National Westminster Bank PLC
APPENDIX VIII
to
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. _________________
NOTICE OF TRANSFER
To: National Westminster Bank PLC _____________, 19__
c/o New York Branch [INSERT DATE]
175 Water Street
New York, N.Y. l0038
Attention: Alastair Dalzell
Re: Irrevocable Transferable Letter of Credit No. _______
dated ____________, 1991, issued by National
Westminster Bank PLC, (the "BANK") in favor of
Manufacturers Hanover Trust Company, as
Depositary (the "BENEFICIARY") (as amended through the
date hereof, the "Letter of Credit")
Gentlemen:
Unless otherwise defined herein, all terms and phrases which are defined
in the Letter of Credit shall have the same meaning when used herein as that
which is ascribed to them in the Letter of Credit.
The undersigned [Name of Transferor] (the "Transferor") has transferred
and assigned (and hereby confirms to you said transfer and assignment) all of
its rights in and under said Letter of Credit to [Name of Transferee] (the
"Transferee") whose address is set out below and confirms that the Transferor
no longer has any rights under or interest in said Letter of Credit.
Transferor and Transferee have indicated on the face of said Letter of
Credit that it has been transferred and assigned to Transferee subject to the
terms and conditions of the Facility Agreement.
Transferee hereby certifies that it is a duly authorized Transferee under the
Letter of Credit and is accordingly entitled, upon presentation of the
documents called for therein, to receive payment thereunder and such
transferee hereby consents and accepts and agrees to abide by the terms and
conditions of the Depositary Agreement.
____________________________________ _______________________________
Name of Transferor Name of Transferee
By__________________________________ By_____________________________
[Name and title of Authorized [Name and Title of Authorized
Officer of Transferor] Officer of Transferee]
____________________________________ _______________________________
[Address of Transferee]
<PAGE>
APPENDIX IX
to
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. ___________
EXPIRATION DRAWING CERTIFICATE
To: National Westminster Bank PLC ____________, 19__
c/o New York Branch [INSERT DATE]
175 Water Street
New York, N.Y. l0038
Attention: Alastair Dalzell
Re: Irrevocable Transferable Letter of Credit No. _______
dated ____________, 1991, issued by National
Westminster Bank PLC, (the "Bank") in favor of
Manufacturers Hanover Trust Company, as
Depositary (the "Beneficiary") (as amended through the
date hereof, the "Letter of Credit")
Gentlemen:
Unless otherwise defined herein, all terms and phrases which are defined
in the Letter of Credit shall have the same meaning when used herein as that
which is ascribed to them in the Letter of Credit.
The undersigned individual hereby CERTIFIES AND CONFIRMS for, in the name
of and on behalf of the Beneficiary acting under the Depositary Agreement as
follows:
1. The undersigned individual is a duly authorized officer of the
Beneficiary.
2. The Beneficiary is the Depositary under the Depositary Agreement.
3. The Stated Termination Date has not been extended beyond the
Stated Maturity Date of all of the outstanding CP Notes and we have not
received a new letter of credit in substitution for the Letter of Credit
covering all the outstanding CP Notes, available for drawing on the Business
Day following the Stated Termination Date of the Letter of Credit and with a
Stated Termination Date later than the Stated Maturity Date of all the
outstanding CP Notes.
4. Listed on the attached Schedule I are all of the outstanding CP
Notes on the date hereof.
5. The date hereof is not later than the fifteenth calendar day
following the Stated Maturity Date of such CP Notes or, if such fifteenth day
is not a Business Day, the next succeeding Business Day.
6. On behalf of the holder or holders of the one or more CP Notes
listed on Schedule I, we are hereby making demand for the payment of US
$____________ under the Letter of Credit to pay in full the aggregate Face
Amount thereof [and US$_______ representing the amount required to pay
Additional Amounts thereunder.]+
7. Each such CP Note was authenticated and delivered by us pursuant
to and in accordance with the Depositary Agreement.
8. The amount requested hereby shall be deposited by us directly to
the Special Account and not to any other account maintained by or for the
account of the Company or Finance. Such amount shall be invested only as
permitted by the Depositary Agreement and applied by us solely to the payment
of maturing CP Notes in accordance with the Depositary Agreement.
9. When the CP Notes have been presented for payment and paid by us,
we will cancel the same, mark each such CP Note "paid" and, unless otherwise
instructed by the Company, destroy the cancelled Notes from time to time and
furnish the Company or Finance with a destruction certificate stating
particulars of the cancelled Notes so destroyed.
10. Transfer instructions for the Special Account are as follows:
Manufacturers Hanover Trust Company
New York
ABA: 02l000306
Account Number: (Comdisco, Inc.) - 966002602
(Comdisco Finance) - 966002610
11. The amount of the drawing made by this Certificate was computed
in compliance with the terms and conditions of the Letter of Credit and, when
added to the amount of any other drawing under the Letter of Credit made
simultaneously herewith, does not exceed the Available Amount of the Letter of
Credit.
12. Neither the Expiration Date nor the Principal Amount Reduction
Date has occurred.
[13. The amount drawn hereunder to pay Additional Amounts does not
exceed the Additional Amounts which will be payable under the CP Notes listed
on the attached Schedule 1.]
IN WITNESS WHEREOF, this Certificate has been executed this __________
day of ____________, 19--.
MANUFACTURERS HANOVER TRUST COMPANY
as Beneficiary
__________________________
[Title of Authorized Officer]
<PAGE>
SCHEDULE I
to
EXPIRATION DRAWING CERTIFICATE
LIST OF OUTSTANDING CP NOTES
SERIAL NUMBER FACE AMOUNT DATE OF ISSUANCE STATED MATURITY DATE
Total ___________________
US$________________
APPENDIX X
to
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. _________________
ADDITIONAL AMOUNTS DRAWING CERTIFICATE
To: National Westminster Bank PLC _____________, 19__
c/o New York Branch [INSERT DATE]
175 Water Street
New York, New York l0038
Attention: Alastair Dalzell
Re: Irrevocable Transferable Letter of Credit No. _______
dated ____________, 1991, issued by National
Westminster Bank PLC, (the "BANK") in favor of
Manufacturers Hanover Trust Company, as
Depositary (the "BENEFICIARy") (as amended through the
date hereof, the "Letter of Credit")
Gentlemen:
Unless otherwise defined herein, all terms and phrases which are defined
in the Letter of Credit shall have the same meaning when used herein as that
which is ascribed to them in the Letter of Credit.
The undersigned individual hereby CERTIFIES AND CONFIRMS for, in the name
of and on behalf of the Beneficiary acting under the Depositary Agreement as
follows:
1. The undersigned individual is a duly authorized officer of the
Beneficiary.
2. The Beneficiary is the Depositary under the Depositary Agreement.
3. On behalf of the holder or holders of the one or more CP Notes
listed on the attached Schedule I maturing on the Stated Maturity Date set
forth on such Schedule I, we are hereby making demand for the payment of US
$____________ under the Letter of Credit to pay Additional Amounts under such
CP Notes.
4. Each such CP Note was authenticated and delivered by us pursuant
to and in accordance with the Depositary Agreement and we have made a
[Maturity] [Acceleration] [Expiration] Drawing in respect of each such CP
Note.
5. The date hereof is not later than the fifteenth day following the
Stated Maturity Date of such CP Notes or, if such fifteenth day is not a
Business Day, the next succeeding Business Day.
6. The amount requested hereby shall be deposited by us directly to
the Special Account and not to any other account maintained by or for the
account of the Company or Finance. Such amount shall be applied by us solely
to the payment of maturing CP Notes (except for Delayed Notes).
7. When the CP Notes have been presented for payment and paid by us,
we will cancel the same, mark each such CP Note "paid", and, unless otherwise
instructed by the Company, destroy the cancelled Notes from time to time and
furnish the Company or Finance with a destruction certificate stating
particulars of the cancelled Notes so destroyed.
8. Transfer instructions for the Special Account are as follows:
Manufacturers Hanover Trust Company
New York
ABA: 02l000306
Account Number: (Comdisco, Inc.) - 966002602
(Comdisco Finance) - 966002610
9. The amount of the drawing made by this Certificate was computed in
compliance with the terms and conditions of the Letter of Credit and, when
added to the amount of any other drawing under the Letter of Credit made
simultaneously herewith, does not exceed the Available Amount of the Letter of
Credit.
10. The Expiration Date has not occurred.
11. The amount drawn hereunder when added to any other amounts drawn
to pay Additional Amounts under the CP Notes listed on the attached Schedule I
does not exceed the Additional Amounts payable thereunder.
IN WITNESS WHEREOF, this Certificate has been executed this __________
day of ____________, 19--.
MANUFACTURERS HANOVER TRUST COMPANY_
as Beneficiary
__________________________
[Title of Authorized Officer]
+ Delete as appropriate
SCHEDULE I
to
ADDITIONAL AMOUNTS DRAWING CERTIFICATE
LIST OF MATURING CP NOTES
SERIAL NUMBER FACE AMOUNT DATE OF ISSUANCE STATED MATURITY DATE
Total ___________________
US$________________
EXHIBIT Q
PART II
U.S. C.P.
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. _______________
_____________, 19__
[INSERT DATE]
Manufacturers Hanover Trust Company
as Depositary (the "DEPOSITARY")
under the Depositary Agreement
dated as of , 1991
between the Depositary, Comdisco, Inc.,
and ______________ (together with
all exhibits, attachments, appendices
and schedules thereto, as amended
from time to time, the "DEPOSITARY
AGREEMENT").
Attention: Commercial Paper Issuance
Gentlemen:
We, ______________ acting through our [New York/Chicago] branch (herein
referred to as "WE", "US", "OUR" or the "BANK") hereby establish in your favor
as fiduciary and Depositary for the benefit of the holders of the CP Notes
(hereinafter defined), our Irrevocable Transferable Letter of Credit No.
_______________ (together with Appendices I through and including IX hereto,
as amended from time to time, this "LETTER OF CREDIT") at the request and for
the account of Comdisco, Inc., a Delaware corporation, (the "COMPANY") whereby
we irrevocably authorize you to draw on us, from time to time, from and after
the date hereof to 5:00 p.m. New York time on the date (the "EXPIRATION DATE")
(provided that if such date is not a Business Day (hereinafter defined), then
on the first Business Day occurring thereafter) which is the earliest to occur
of: (i) [ ] (such date and each date to which such date is
extended in accordance herewith, the "STATED TERMINATION DATE"); (ii) fifteen
(l5) calendar days following our receipt from you and the Company of a
certificate in the form of Appendix I hereto (appropriately completed)
("NOTICE OF TERMINATION"); (iii) the date on which we honor an Acceleration
Drawing (hereinafter defined); (iv) the date on which we honor an Expiration
Drawing (hereinafter defined); and (v) the later of (A) fifteen (l5) calendar
days following your receipt of a notice in the form of Appendix II hereto
(appropriately completed) (an "ACCELERATION NOTICE") from National Westminster
Bank PLC (the "FACILITY AGENT") in which they notify you that an Event of
Default has occurred under the Facility Agreement (hereinafter defined) and
(B) the Business Day following the day we shall have received an executed
original of such notice (which includes an acknowledgment by you of your
receipt and the date thereof and which acknowledgment you shall use your best
endeavours to deliver to us within five Business Days of your receipt of the
original notice), in a maximum aggregate amount (as may be decreased in
accordance herewith, the "STATED AMOUNT") not exceeding
_____________________________United States Dollars (US $_________) to pay the
Face Amount (hereinafter defined) of the COMDISCO [BAB/UBS] Series short-term
commercial paper notes issued by the Company, and duly authenticated and
delivered by you, pursuant to and in accordance with the Depositary Agreement
(collectively, the "CP NOTES").
This Letter of Credit is available to you against presentation of the
following documents (collectively, the "PAYMENT DOCUMENTS" and individually, a
"PAYMENT DOCUMENT") presented to our [New York / Chicago] Branch at [
] Attention: [ ]
Department (or to such other place or person as we may from time to time
specify):
A certificate (i) in the form attached as Appendix III hereto to pay the Face
Amount (hereinafter defined) of CP Notes on the Stated Maturity Date
(hereinafter defined) thereof (each, a "MATURITY DRAWING"), or (ii) in the
form of Appendix IV hereto to pay the Face Amount of all outstanding CP Notes
upon your receipt of an Acceleration Notice (an "ACCELERATION DRAWING"), or
(iii) in the form of Appendix IX hereto to pay the Face Amount of all
outstanding CP Notes (an "EXPIRATION DRAWING"). Each certificate
(appropriately completed) is to state therein that it is given by your duly
authorised officer and is to be dated the date such certificate is presented
hereunder.
A Maturity Drawing shall be presented no earlier than the Business Day
(herinafter defined) prior to the Stated Maturity Date (hereinafter defined)
of the CP Notes and no later than the earlier of (a) the Expiration Date and
(b) the fifteenth day following the Stated Maturity Date of the CP Notes, or
if such fifteenth day is not a Business Day, the next succceeding Business
Day.
An Expiration Drawing shall only take place where, prior to l5 calendar
days before the Stated Termination Date of a Letter of Credit (the "EXPIRING
LETTER OF CREDIT"), either (a) such Stated Termination Date shall not have
been extended to a date being the earlier of (i) twelve months after such
Stated Termination Date and (ii) the date being two Business Days prior to the
Final Maturity Date (as defined in the Facility Agreement) (the "REVISED
STATED TERMINATION DATE") or (b) a new Letter of Credit in substitution for
the Expiring Letter of Credit has not been issued in like amount but with the
Revised Stated Termination Date and to be available for drawing on the
Business Day following the Stated Termination Date of the Expiring Letter of
Credit.
All drawings shall be made by telecopy or other facsimile
telecommunication without further need of documentation, including the
original of this Letter of Credit, it being understood that each Payment
Document submitted via such telecopy or other facsimile telecommunication is
to be the sole operative instrument of drawing.
We agree to honor and pay the amount of any Maturity Drawing, or
Acceleration Drawing or Expiration Drawing if timely presented to us in
compliance with all of the terms of this Letter of Credit. If such drawing
certificate is presented prior to 3:00 p.m., New York time, on a Business Day,
payment shall be made by us to you of the amount specified, in immediately
available funds, before 10:30 a.m., New York time, on the next Business Day.
If any such drawing certificate is presented after 3:00 p.m., New York time,
on a Business Day, payment shall be made by us to you of the amount specified
in immediately available funds, by the close of our business, New York time,
on the next Business Day.
All payments to be made by us hereunder shall be made to the special purpose
trust account (the "SPECIAL ACCOUNT") established by you, entitled "COMDISCO
[BAB/UBS] CP Noteholders Special Account", for the benefit of the holders,
from time to time, of the CP Notes and pursuant to the transfer instructions
provided by you to us in your applicable Payment Document. All payments made
by us under this Letter of Credit shall be made by us with our own general
funds and in no event shall such payments be made with funds obtained from the
Company.
If a demand for payment made hereunder does not, in any instance, conform
in all substantial respects to the terms and conditions of this Letter of
Credit, the Bank shall give you prompt notice that the demand for payment was
not effected in accordance with the terms and conditions of this Letter of
Credit, stating the reasons therefor and that the Bank will, upon your
instructions, hold any documents at your disposal or return the same to you.
Upon your being notified by us that the demand for payment was not effectuated
in conformity with this Letter of Credit, you may attempt to correct any such
non-conforming demand for payment in accordance with the terms and procedures
set forth in this Letter of Credit prior to the expiry hereof.
No increase in the Stated Amount shall be permitted. The Stated Amount
may be decreased by notice from the Company and you. Any decrease shall be
effective on the later of (i) the Business Day following our receipt of a
certificate in the form attached hereto as Appendix V (which you shall copy to
Barclays Bank PLC, 75 Wall Street, New York, NY l0265, Attention: Central
Loans Administration Department, Agency Desk), appropriately completed and
signed by the Company) and acknowledged by the Depositary (a "REQUEST FOR
CHANGE IN STATED AMOUNT AND REDUCTION CERTIFICATE") and (ii) the date defined
in the Request for Change in Stated Amount and Reduction Certificate as the
"Effective Date". Within ten (10) Business Days of the receipt by us of a
Request for Change in Stated Amount and Reduction Certificate, we shall
deliver to you an amendment to this Letter of Credit substantially in the form
attached hereto as Appendix VI (appropriately completed) confirming the new
Stated Amount (a "STATED AMOUNT AMENDMENT"). Failure to deliver to you a
Stated Amount Amendment in accordance with the foregoing shall not affect the
reduction in Stated Amount pursuant to the Request for Change in Stated Amount
and Reduction Certificate. In no event may the Stated Amount of this Letter
of Credit be reduced below the Face Amount of all outstanding CP Notes (as
certified by the Beneficiary) other than the Delayed Notes as defined in the
Depositary Agreement.
Upon any decrease in the Stated Amount we may alternatively deliver to you a
substitute Letter of Credit (having the same terms and provisions as this
Letter of Credit). If we deliver to you such a substitute Letter of Credit
you shall simultaneously surrender to us for cancellation this Letter of
Credit together with all prior amendments thereto then in your possession.
The amount of each Maturity Drawing shall automatically reinstate upon payment
of the amount thereof by us to you in an amount equal to the amount thereof.
The Available Amount (as defined below) of this Letter of Credit shall be
reduced immediately and automatically to zero upon our honoring and payment of
the amount demanded by you pursuant to an Acceleration Drawing or an
Expiration Drawing hereunder and following an Acceleration Drawing or an
Expiration Drawing the Available Amount of this Letter of Credit shall not be
reinstated under any circumstances.
"AVAILABLE AMOUNT" of this Letter of Credit means (1) on or before the
Expiration Date, an amount equal to the lesser of (i) the Stated Amount then
in effect and (ii) the Face Amount of all outstanding CP Notes (as certified
by the Beneficiary) and (2) after the Expiration Date, zero.
"BUSINESS DAY" means any day other than a Saturday or Sunday or legal holiday
or a day on which banks located in Chicago, Illinois, or New York, New York
are required or authorized by law (or any other appropriate authority) to be
closed.
"FACE AMOUNT" means, with respect to each CP Note, the face amount of such CP
Note which is specified in such CP Note as the amount which is due and payable
on the Stated Maturity Date of such CP Note.
"FACILITY AGREEMENT" means that certain facility agreement dated June 4, l99l
as amended by exchange of faxes dated on or about August 9, 1991 by and among
National Westminster Bank PLC as Arranger and the other banks party thereto
and the Company together providing for a revolving credit facility of U.S.
$355,000,000 and together with all exhibits, schedules, attachments and
appendices thereto, as amended from time to time.
"STATED MATURITY DATE" means, with respect to each CP Note, the date specified
in such CP Note as the date on which the Face Amount of such CP Note is due
and payable.
Prior to the Expiration Date, we may extend the Stated Termination Date
from time to time at the request of the Company notified to the Letter of
Credit Agent by delivering to the Depositary an amendment to this Letter of
Credit in the form of Appendix VII hereto (appropriately completed)
designating the date to which the Stated Termination Date is being extended.
All references in this Letter of Credit to the Stated Termination Date shall
be deemed to be, and shall be, references to the date designated as such in
such notice. Any date to which the Stated Termination Date has been extended
as herein provided may be extended in a like manner.
At 5:00 p.m., New York time, on the Expiration Date, this Letter of
Credit shall automatically terminate without prejudice to the Bank's
obligation hereunder, if any, to honor and pay all conforming draws presented
hereunder prior to such time. Upon termination of this Letter of Credit you
shall return the Letter of Credit to us for cancellation by delivery to the
Bank for such purpose, provided that failure to so deliver or return the
Letter of Credit shall not affect the termination thereof.
The Letter of Credit is transferable in whole only and solely to your
successor as Depositary approved by the Bank and others pursuant to the
Depositary Agreement provided, however, that such transfer shall not include
any of the transferor's rights in or under this Letter of Credit with respect
to any CP Notes outstanding on the date of such transfer and you shall remain
entitled to draw hereunder with respect thereto subject to the terms and
conditions of this Letter of Credit, provided further, however, that any
reinstatement of this Letter of Credit as to such drawings shall be for the
sole benefit of your successor. Any such transfer (including any successive
transfer) shall be effective upon receipt by us of a signed copy of the
instrument effecting each such transfer signed by the transferor and by the
transferee in the form of Appendix VIII hereto (appropriately completed)
(which shall be conclusive evidence of such transfer) and, in such case, the
transferee instead of the transferor shall, without the necessity of further
action, but subject to the above proviso, be entitled to all the benefits and
rights under this Letter of Credit in the transferor's place; provided that,
in such case, any certificates of the Depositary to be provided hereunder
shall be signed by one who states therein that he or she is a duly authorized
officer of the transferee.
This Letter of Credit is intended to provide only for the payment of the
Face Amount of the CP Notes other than Delayed Notes (as defined in the
Depositary Agreement). Accordingly, in actions taken by you as beneficiary of
this Letter of Credit you shall not be acting as an agent of the Company but
shall be acting as a fiduciary on behalf of the owners or holders of the CP
Notes.
Only the Depositary may make drawings under this Letter of Credit in
respect of the CP Notes. Upon payment to the Depositary of any such drawing
hereunder, we shall be discharged in full with respect to such drawing and the
holders of the CP Notes (other than the Delayed Notes) shall look solely to
you for the application of such payments to the CP Notes related to such
drawing, including, without limitation, the payment at maturity of the CP
Notes for which an Acceleration Drawing or an Expiration Drawing has been
made.
All communications with respect to this Letter of Credit [(other than the
Payment Documents which shall be sent to our Chicago branch at [
] and other certificates set forth in the Appendices to this Letter
of Credit (which shall be addressed as set forth therein) shall be addressed
to us at __________________________________________________ Attention: [
] Department (or to such other address or person as we may notify to
you from time to time) specifically referring to the number of this Letter of
Credit.
To the extent not inconsistent with the express terms hereof, this Letter
of Credit shall be governed by, and construed in accordance with, the terms of
the Uniform Commercial Customs and Practice for Documentary Credits, l983
Revision, ICC Publication No. 400 (the "UNIFORM CUSTOMS"), except Article 45
and the first two sentences of Article 54(e) thereof. As to matters not
governed by the Uniform Customs, this Letter of Credit shall be governed by
and construed in accordance with the laws of the State of New York.
This Letter of Credit, as amended from time to time, together with
Appendices I through IX hereto, set forth in full the terms of our
undertaking, and such undertaking shall not in any way be modified or amended
by reference to any other document whatsoever.
By ____________________
Its_____________________
By_____________________
Its_____________________
APPENDIX I
to
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. _____________
NOTICE OF TERMINATION
To: [The Issuing Bank] ___________19__
[INSERTDATE]
Attention: [Letter of Credit] Department
Re: Irrevocable Transferable Letter of Credit No. _______
________dated ____________, 1991, issued by
__________________________ Branch (the "BANK") in
favor of Manufacturers Hanover Trust Company, as
Depositary (the "BENEFICIARY") (as amended through the
date hereof, the "LETTER OF CREDIT")
Gentlemen:
Unless otherwise defined herein, all terms and phrases which are
defined in the Letter of Credit shall have the same meaning when used herein
as that which is ascribed to them in the Letter of Credit.
Each of the undersigned hereby certifies and confirms that (i) he or
she is a duly authorized officer of the Company or the Depositary, as the case
may be, (ii) [no CP Notes are outstanding] or [all drawings required to be
made under the Depositary Agreement and available under the Letter of Credit
as to outstanding CP Notes have been made and honored] or [a substitute letter
of credit has been issued to replace the Letter of Credit in accordance with
Clause 9 of the Facility Agreement]* and (iii) accordingly, said Letter of
Credit shall be terminated in accordance with its terms.
COMDISCO, INC.
By_________________________
[Title of Authorized Officer]
MANUFACTURERS HANOVER TRUST COMPANY_
as Beneficiary
By____________________________
[Title of Authorized Officer]
_______________________
* Insert appropriate statement
APPENDIX II
to
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. _________________
ACCELERATION NOTICE
Manufacturers Hanover Trust Company _____________,19__
40 Wall Street, [INSERT DATE]
20th Floor
New York, New York 10015
Attention: Commercial Paper Issuance
c.c. Letter of Credit Agent
and the Bank
Re: Irrevocable Transferable Letter of Credit No. __________
dated ________, 1991, issued by [ ]
(the "BANK") in favor of Manufacturers Hanover Trust
Company, as depositary (the
"BENEFICIARY") (as amended through the date hereof, the
"LETTER OF CREDIT")
Gentlemen:
Unless otherwise defined herein, all terms and phrases which are
defined in the Letter of Credit shall have the same meaning when used herein
as that which is ascribed to them in the Letter of Credit.
We hereby notify you that an Event of Default has occurred under the
Facility Agreement and direct that you make an Acceleration Drawing under the
Letter of Credit.
We hereby direct that you shall not, on receipt of this notice,
authenticate or deliver any new CP Notes under the Depositary Agreement other
than in respect of purchases irrevocably committed to by the Dealers (as
defined in the Depositary Agreement) prior to your receipt of this notice.
Pursuant to the terms of the Letter of Credit, the Letter of Credit
shall expire on the date which is the later of fifteen (l5) calendar days
following Beneficiary's receipt of this notice and the Business Day after the
day of the Bank's receipt of this notice which includes an acknowledgement by
the Beneficiary of its receipt and the date thereof.
Please acknowledge receipt and the date thereof on the enclosed copy of this
Notice.
NATIONAL WESTMINSTER BANK PLC
as Facility Agent
By___________________________
Title of Authorized Officer
Receipt of this Notice on __________ 199 is hereby acknowledged.
MANUFACTURERS HANOVER TRUST COMPANY
as Beneficiary
By_________________________________
Title of Authorised Officer
APPENDIX III
to
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. _________________
MATURITY DRAWING CERTIFICATE
To:[The Issuing Bank] _____________, 19__
Attention: [Letter of Credit] Department
Re: Irrevocable Transferable Letter of Credit No. _______
________dated ____________, 1991, issued by
__________________________, (the "BANK") in
favor of Manufacturers Hanover Trust Company, as
Depositary (the "BENEFICIARY") (as amended through the
date hereof, the "LETTER OF CREDIT")
Gentlemen:
Unless otherwise defined herein, all terms and phrases which are defined
in the Letter of Credit shall have the same meaning when used herein as that
which is ascribed to them in the Letter of Credit.
The undersigned individual hereby CERTIFIES AND CONFIRMS for, in the name
of and on behalf of the Beneficiary acting under the Depositary Agreement as
follows:
1. The undersigned individual is a duly authorized officer of the
Beneficiary.
2. The Beneficiary is the Depositary under the Depositary Agreement.
3. On behalf of the holder or holders of the one or more CP Notes
listed on the attached Schedule I maturing on the Stated Maturity Date set
forth on such Schedule I, we are hereby making demand for the payment of US
$____________ under the Letter of Credit to pay in full the aggregate Face
Amount thereof.
4. Each such CP Note was authenticated and delivered by us pursuant
to and in accordance with the Depositary Agreement.
5. The date hereof is not earlier than the Business Day prior to the
Stated Maturity Date of such CP Notes nor later than the fifteenth day
following the Stated Maturity Date of such CP Notes or, if such fifteenth day
is not a Business Day, the next succeeding Business Day.
6. The amount requested hereby shall be deposited by us directly to
the Special Account and not to any other account maintained by or for the
account of the Company. Such amount shall be applied by us solely to the
payment of maturing CP Notes (except for Delayed Notes).
7. When the CP Notes have been presented for payment and paid by us,
we will cancel the same, mark each such CP Note "paid", and, unless otherwise
instructed by the Company, destroy the cancelled Notes from time to time and
furnish the Company with a destruction certificate stating particulars of the
cancelled Notes so destroyed.
8. Transfer instructions for the Special Account are as follows:
Manufacturers Hanover Trust Company
New York
ABA: 021000306
Account Number:-_
9. The amount of the drawing made by this Certificate was computed in
compliance with the terms and conditions of the Letter of Credit and, when
added to the amount of any other drawing under the Letter of Credit made
simultaneously herewith, does not exceed the Available Amount of the Letter of
Credit.
10. The Expiration Date has not occurred.
IN WITNESS WHEREOF, this Certificate has been executed this __________
day of ____________, 19--.
MANUFACTURERS HANOVER TRUST COMPANY
as Beneficiary
__________________________
[Title of Authorized Officer]
SCHEDULE I
to
MATURITY DRAWING CERTIFICATE
LIST OF MATURING CP NOTES
SERIAL NUMBER FACE AMOUNT DATE OF ISSUANCE STATED MATURITY DATE
Total ___________________
US$________________
APPENDIX IV
to
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. ___________
ACCELERATION DRAWING CERTIFICATE
To: [The Issuing Bank] ____________, 19__
Attention: [Letter of Credit] Department
Re: Irrevocable Transferable Letter of Credit No. _______
________dated ____________, 1991, issued by
__________________________, (the "BANK") in
favor of Manufacturers Hanover Trust Company, as
Depositary (the "BENEFICIARY") (as amended through the
date hereof, the "LETTER OF CREDIT")
Gentlemen:
Unless otherwise defined herein, all terms and phrases which are defined
in the Letter of Credit shall have the same meaning when used herein as that
which is ascribed to them in the Letter of Credit.
The undersigned individual hereby CERTIFIES AND CONFIRMS for, in the name
of and on behalf of the Beneficiary acting under the Depositary Agreement as
follows:
1. The undersigned individual is a duly authorized officer of the
Beneficiary.
2. The Beneficiary is the Depositary under the Depositary Agreement.
3. We are in receipt of an Acceleration Notice.
4. Listed on the attached Schedule I are all of the outstanding CP
Notes on the date hereof.
5. On behalf of the holder or holders of the one or more CP Notes
listed on Schedule I, we are hereby making demand for the payment of the
aggregate sum of US $____________ under the Letter of Credit to pay in full
the aggregate Face Amount thereof.
6. Each such CP Note was authenticated and delivered by us pursuant
to and in accordance with the Depositary Agreement.
7. The date hereof is not later than the fifteenth day following the
Stated Maturity Date of such CP Notes or, if such fifteenth day is not a
Business Day, the next succeeding Business Day.
8. When the CP Notes have been presented for payment and paid by us,
we will cancel the same, mark each such CP Note "paid", and, unless otherwise
instructed by the Company, destroy the cancelled Notes from time to time and
furnish the Company with a destruction certificate stating particulars of the
cancelled Notes so destroyed.
9. The amount requested hereby shall be deposited by us directly to
the Special Account and not to any other account maintained by or for the
account of the Company. Such amount shall be invested only as permitted by
the Depositary Agreement and applied by us solely to the payment of maturing
CP Notes.
10. Transfer instructions for the Special Account are as follows:
Manufacturers Hanover Trust Company
New York
ABA: 021000306
Account Number:-
11. The amount of the drawing made by this Certificate was computed
in compliance with the terms and conditions of the Letter of Credit and, when
added to the amount of any other drawing under the Letter of Credit made
simultaneously herewith, does not exceed the Available Amount of the Letter
of Credit.
12. The Expiration Date has not occurred.
IN WITNESS WHEREOF, this Certificate has been executed this
__________ day of ____________, 19--.
MANUFACTURERS HANOVER TRUST COMPANY
as Beneficiary
__________________________
[Title of Authorized Officer]
SCHEDULE I
to
ACCELERATION DRAWING CERTIFICATE
LIST OF OUTSTANDING CP NOTES
SERIAL NUMBER FACE AMOUNT DATE OF ISSUANCE STATED MATURITY DATE
Total ___________________
US$________________
APPENDIX V
to
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. ____________
REQUEST FOR CHANGE IN STATED AMOUNT
AND REDUCTION CERTIFICATE
____________,199-_
To: [The Issuing Bank]
cc: Barclays Bank PLC
75 Wall Street
New York, N.Y. l0265
Attention: Central Loans Administration Department, Agency Desk
Re: Irrevocable Transferable Letter of Credit No. _______
________dated ____________, 1991, issued by
__________________________, (the "BANK") in
favor of Manufacturers Hanover Trust Company, as
Depositary (the "BENEFICIARY") (as amended through the
date hereof, the "LETTER OF CREDIT")
Gentlemen:
Unless otherwise defined herein, all terms and phrases which are defined
in the Letter of Credit shall have the same meaning when used herein as that
which is ascribed to them in the Letter of Credit.
In accordance with Clause 9 of the Facility Agreement and the Letter of
Credit, we hereby direct that the Bank decrease the Stated Amount of the
Letter of Credit such that on and after the later of (a) the Business Day
following the date of receipt of this Certificate by the Bank and (b)
__________ 19__ (the "EFFECTIVE DATE"), the Stated Amount of the Letter of
Credit shall be equal to ______________ United States Dollars (U.S.
$_________). In connection herewith, the undersigned individual for, in the
name of and on behalf of the Company hereby CERTIFIES, REPRESENTS, WARRANTS
AND CONFIRMS as follows:
1. The undersigned individuals are duly authorized officers of the
Company and Beneficiary respectively.
2. On and as of the date hereof and on and as of the Effective Date:
a) the new Stated Amount of the Letter of Credit is not greater than
the Bank's L/C Obligation (as defined in the Facility Agreement) and is not
less than the Available Amount then in effect; and
(b) this Certificate has been duly executed by the Company and the
Depositary.
3. This change in the Stated Amount which is the subject of this
Certificate is equal to One Million United States Dollars (US $l,000,000)
or a larger amount which is a whole multiple of One Thousand United States
Dollars (US $l,000) in excess thereof.
4. The Beneficiary hereby authorises and directs the Bank to reduce
the Stated Amount of this Letter of Credit to U.S. $[ ] on the Effective
Date.
5. Upon giving effect to this Certificate the Stated Amount of the
Letter of Credit will not be reduced below the aggregate Face Amount of CP
Notes in respect of which a drawing has not been made under the Letter of
Credit. The Beneficiary certifies that listed on the attached Schedule I are
all of the outstanding CP Notes on the date hereof (other than the Delayed
Notes).
6. The Beneficiary is the Depositary under the Depositary Agreement.
IN WITNESS WHEREOF, this Request for Change in Stated Amount has been executed
this ______ day of ____________, 19__.
COMDISCO, INC.
By:________________________________
(Title of Authorized Officer]
ACKNOWLEDGED AND AGREED TO as of this ___ day of __________, l9__.
MANUFACTURERS HANOVER TRUST COMPANY
Beneficiary
By:_________________________________
[Title of Authorized Officer]
SCHEDULE I
to
REQUEST FOR CHANGE IN STATED AMOUNT AND REDUCTION CERTIFICATE
LIST OF OUTSTANDING CP NOTES
SERIAL NUMBER FACE AMOUNT DATE OF ISSUANCE STATED MATURITY DATE
Total ___________________
US$________________
APPENDIX VI
to
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. ______________
STATED AMOUNT AMENDMENT
Manufacturers Hanover Trust Company _____________, 19__
40 Wall Street [INSERT DATE]
20th Floor
New York New York 10015
Attention: Commercial Paper Issuance
Re: Irrevocable Transferable Letter of Credit No. _______
________dated ____________, 1991, issued by
__________________________, (the "Bank") in
favor of Manufacturers Hanover Trust Company, as
Depositary (the "Beneficiary") (as amended through the
DATE HEREOF, THE "LETTER OF CREDIT")
Gentlemen:
Unless otherwise defined herein, all terms and phrases which are defined
in the Letter of Credit shall have the same meaning when used herein as that
which is ascribed to them in the Letter of Credit.
We hereby notify you that, in accordance with the terms of the Letter of
Credit, the Request for Change in Stated Amount and Reduction Certificate
dated ________, 19__, and the Facility Agreement, effective as of _________,
19__, the Stated Amount of the Letter of Credit is equal to __________United
States Dollars (US $____________).
This Notice of Amendment Regarding Stated Amount should be attached to
the Letter of Credit and made a part thereof.
By__________________________________
Authorized Officer
[Issuing Bank]
By___________________________________
Authorized Officer
[Issuing Bank]
APPENDIX VII
to
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. ______________
NOTICE OF EXTENSION OF STATED TERMINATION DATE
Manufacturers Hanover Trust Company _____________,19__
40 Wall Street [INSERT DATE]
20th Floor
New York New York 10015
Attention: Commercial Paper Issuance
Re: Irrevocable Transferable Letter of Credit No. _______
________dated ____________, 1991, issued by
__________________________, (the "Bank") in
favor of Manufacturers Hanover Trust Company, as
Depositary (the "Beneficiary") (as amended through the
DATE HEREOF, THE "LETTER OF CREDIT")
Gentlemen:
Unless otherwise defined herein, all terms and phrases which are defined
in the Letter of Credit shall have the same meaning when used herein as that
which is ascribed to them in the Letter of Credit.
We hereby notify you that, in accordance with the terms of the Letter of
Credit and the Facility Agreement, the Stated Termination Date of the Letter
of Credit has been extended to _______________, _______.
This Notice of Extension of Stated Termination Date should be attached to
the Letter of Credit and made a part thereof.
______________________________________
By____________________________________
Authorized Officer
[Issuing Bank]
By____________________________________
Authorized Officer
[Issuing Bank]
APPENDIX VIII
to
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. _________________
NOTICE OF TRANSFER
To: [The Issuing Bank] _____________, 19__
[INSERT DATE]
Attention: [Letter of Credit] Department
Re: Irrevocable Transferable Letter of Credit No. _______
________dated ____________, 1991, issued by
__________________________, (the "BANK") in
favor of MANUFACTURERS HANOVER TRUST COMPANY_, as
Depositary (the "Beneficiary") (as amended through the
date hereof, the "LETTER OF CREDIT")
Gentlemen:
Unless otherwise defined herein, all terms and phrases which are defined
in the Letter of Credit shall have the same meaning when used herein as that
which is ascribed to them in the Letter of Credit.
The undersigned [Name of Transferor] (the "Transferor") has transferred
and assigned (and hereby confirms to you said transfer and assignment) all of
its rights in and under said Letter of Credit to [Name of Transferee] (the
"Transferee") whose address is set out below and confirms that the Transferor
no longer has any rights under or interest in said Letter of Credit.
Notwithstanding the foregoing, the Transferor has not assigned or
transferred to the Transferee, and does not hereby assign or transfer to
Transferee, any of its rights in or under said Letter of Credit with respect
to any of the CP Notes outstanding on the date hereof; and the Transferor
hereby confirms that it retains all rights under and interest in said Letter
of Credit with respect to all such CP Notes and the Transferee acknowledges
such retention of rights. All of the CP Notes outstanding on the date hereof
are listed on the attached Schedule I. The aggregate Face Amount thereof is
U.S. $_________________. The Transferee acknowledges and agrees that its
drawing rights under the Letter of Credit shall be net of the drawing rights
retained by the Transferor as to CP Notes outstanding on the date hereof.
Accordingly, this transfer shall not be deemed to increase the Stated Amount
of the Letter of Credit.
So long as such CP Notes authenticated by the Transferor shall remain
outstanding (other than Delayed Notes as defined in the Depositary Agreement),
the Transferor shall, in addition to the Transferee, continue to be a
beneficiary and Depositary under the Letter of Credit and the Depositary
Agreement as to such CP Notes and accordingly: (i) any Notice of Termination
and Request for Change in Stated Amount and Reduction Certificate shall
require the execution of both Transferor and Transferee, (ii) separate
Maturity Drawing Certificates, Acceleration Drawing Certificates and
Expiration Drawing Certificates shall be presented by Transferor and
Transferee as to the respective CP Notes authenticated by each as Depositary
and the statements made in such Certificates shall relate to such CP Notes
authenticated by each; (iii) original Notices of Amendment to the Letter of
Credit shall be given by the Bank to the Transferee with a copy thereof to the
Transferor, but the failure of the Bank to give such Notices shall not affect
the validity or effectiveness of any amendments, (iv) the Acceleration Notice
shall be given by the Facility Agent to both Transferor and Transferee, (v)
for purposes of determining the Expiration Date as to rights of Transferor and
Transferee, the date of honor by the Bank of an Acceleration Drawing or
Expiration Drawing made by Transferor or Transferee shall effect an expiration
of their respective rights only, and (vi) reference in the Letter of Credit to
"you" shall refer to both the Transferor and the Transferee as to their
respective interests, provided, however, that any reinstatement of the Letter
of Credit as to the Maturity Drawings shall be for the sole benefit of the
Transferee. Nothing herein contained shall enlarge the duties or
responsibilities of the Bank under the Letter of Credit or the Depositary
Agreement.
Transferor and Transferee have indicated on the face of said Letter of
Credit that it has been transferred and assigned to Transferee subject to the
terms and conditions of the Facility Agreement.
Transferee hereby certifies that it is a duly authorized Transferee under the
Letter of Credit and is accordingly entitled, upon presentation of the
documents called for therein, to receive payment thereunder and such
transferee hereby consents and accepts and agrees to abide by the terms and
conditions of the Depositary Agreement.
____________________________________ _______________________________
Name of Transfero Name of Transferee
By______________________________ By_____________________________
[Name and title of Authorized [Name and Title of Authorized
Officer of Transferor] Officer of Transferee]
____________________________________ ____________________________________
[Address of Transferee]
SCHEDULE I
to
NOTICE OF TRANSFER
LIST OF OUTSTANDING CP NOTES
SERIAL NUMBER FACE AMOUNT DATE OF ISSUANCE STATED MATURITY DATE
Total ___________________
US$________________
APPENDIX IX
to
IRREVOCABLE TRANSFERABLE LETTER OF CREDIT
No. ___________
EXPIRATION DRAWING CERTIFICATE
To: [The Issuing Bank] ____________, 19__
Attention: [Letter of Credit] Department
Re: Irrevocable Transferable Letter of Credit No. _______
________dated ____________, 1991, issued by
__________________________, (the "Bank") in
favor of Manufacturers Hanover Trust Company, as
Depositary (the "Beneficiary") (as amended through the
DATE HEREOF, THE "LETTER OF CREDIT")
Gentlemen:
Unless otherwise defined herein, all terms and phrases which are defined
in the Letter of Credit shall have the same meaning when used herein as that
which is ascribed to them in the Letter of Credit.
The undersigned individual hereby CERTIFIES AND CONFIRMS for, in the name
of and on behalf of the Beneficiary acting under the Depositary Agreement as
follows:
1. The undersigned individual is a duly authorized officer of the
Beneficiary.
2. The Beneficiary is the Depositary under the Depositary Agreement.
3. The Stated Termination Date has not been extended beyond the
Stated Maturity Date of all of the outstanding CP Notes and we have not
received a new letter of credit in substitution for the Letter of Credit
covering all the outstanding CP Notes, available for drawing on the Business
Day following the Stated Termination Date of the Letter of Credit and with a
Stated Termination Date later than the Stated Maturity Date of all the
outstanding CP Notes.
4. Listed on the attached Schedule I are all of the outstanding CP
Notes on the date hereof.
5. The date hereof is not later than the fifteenth calendar day
following the Stated Maturity Date of such CP Notes or, if such fifteenth day
is not a Business Day, the next succeeding Business Day.
6. On behalf of the holder or holders of the one or more CP Notes
listed on Schedule I, we are hereby making demand for the payment of US
$____________ under the Letter of Credit to pay in full the aggregate Face
Amount thereof.
7. Each such CP Note was authenticated and delivered by us pursuant
to and in accordance with the Depositary Agreement.
8. The amount requested hereby shall be deposited by us directly to
the Special Account and not to any other account maintained by or for the
account of the Company. Such amount shall be invested only as permitted by
the Depositary Agreement and applied by us solely to the payment of maturing
CP Notes in accordance with the Depositary Agreement.
9. When the CP Notes have been presented for payment and paid by us,
we will cancel the same, mark each such CP Note "paid" and, unless otherwise
instructed by the Company, destroy the cancelled Notes from time to time and
furnish the Company with a destruction certificate stating particulars of the
cancelled Notes so destroyed.
10. Transfer instructions for the Special Account are as follows:
Manufacturers Hanover Trust Company
New York
ABA: 021000306
Account Number:-
11. The amount of the drawing made by this Certificate was computed
in compliance with the terms and conditions of the Letter of Credit and, when
added to the amount of any other drawing under the Letter of Credit made
simultaneously herewith, does not exceed the Available Amount of the Letter
of Credit.
12. The Expiration Date has not occurred.
IN WITNESS WHEREOF, this Certificate has been executed this __________ day of
____________,
19--.
MANUFACTURERS HANOVER TRUST COMPANY
as Beneficiary
__________________________
[Title of Authorized Officer]
SCHEDULE I
to
EXPIRATION DRAWING CERTIFICATE
LIST OF OUTSTANDING CP NOTES
Stated
SERIAL NUMBER FACE AMOUNT DATE OF ISSUANCE MATURITY DATE
Total ___________________
US $_______________
EXHIBIT R
CLAUSE 15.4(D)(I) LETTER
DATE
To: Comdisco Inc.
6lll North River Road
Rosemont, IL 600l8
and its Specified Subsidiaries
[ ]
For the attention of: Raymond J. Siegel
Vice President and Treasurer
Dear Sirs,
We refer to the facility agreement [to be dated today's date] and to be
made between yourselves (1), National Westminster Bank PLC, as arranger (2),
the Banks (as defined therein) (3), National Westminster Bank PLC as facility
agent and as tender panel agent (4) National Westminster Bank PLC as swingline
agent (5) and Barclays Bank PLC as letter of credit agent (6) in respect of a
revolving credit facility of U.S.$300,000,000 (the "FACILITY AGREEMENT").
Terms defined in the Facility Agreement shall have the same meanings when
used in this letter.
We write to confirm that this is the letter referred to in Clause
15.4(d)(i) of the Facility Agreement and that, as at [the Signing Date,] we
are entitled to receive all payments made by [
] in [currency] under the Facility Agreement without deduction or
withholding for or on account of any Relevant Taxes.
Yours faithfully,
.......................
for and on behalf of
[Financial Institution]
SIGNATORIES
(to Original Agreement)
COMPANY
COMDISCO, INC.
By: R. Siegel
ARRANGER
NATIONAL WESTMINSTER BANK PLC
By: A. K. Obbard
BANKS
NATIONAL WESTMINSTER BANK PLC
By: A. K. Obbard
NATIONAL WESTMINSTER BANK, S.A.
By: A. K. Obbard
G. Boileau
BARCLAYS BANK PLC
By: J. Onischuk
UNION BANK OF SWITZERLAND, CHICAGO BRANCH
By: R. R. Reuter, Denis J. Campbell IV
BHF-BANK
By: Linda Pace .
Peter Mayer, AVP
CREDIT LYONNAIS CHICAGO BRANCH
By: Vladimir Labun
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: L. Jourdan
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK AG, NEW YORK BRANCH
By: S. Atwell, AVP
Gunter Dunkel, EVPS.
DRESDNER BANK AG, CHICAGO AND GRAND CAYMAN BRANCHES
By: J. Beaudouin, VP
By: W. J. Murray, AVP
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK AND CAYMAN ISLAND BRANCHES
By: David H. Pfeiffer, VP
David H. Pfeiffer, VP
NORDDEUTSCHE LANDESBANK GIROZENTRALE
By: Jens A. Westrick
By: Stephen K. Hunter
BANCO HISPANO AMERICANO, S.A., GRAND CAYMAN BRANCH
By: A. K. Obbard
BANCO HISPANO AMERICANO, S.A., PARIS BRANCH
By: A. K. Obbard
BANCO HISPANO AMERICANO (BENELUX), S.A./N.V.
By: A. K. Obbard
Leonardo Cabellero
BANQUE NATIONALE DE PARIS
By: Leonard O. Bone
FACILITY AGENT AND TENDER PANEL AGENT
NATIONAL WESTMINSTER BANK PLC
By: A. K. Obbard
SWINGLINE AGENT
NATIONAL WESTMINSTER BANK PLC
By: A. K. Obbard
LETTER OF CREDIT AGENT
BARCLAYS BANK PLC
By: J. Onischuk
COMPOSITE CONFORMED COPY
FACILITY AGREEMENT
DATED JUNE 4, 1991
(AS AMENDED BY
SUPPLEMENTAL AGREEMENTS
DATED AUGUST 27, 1991,
APRIL 20, 1992,
SEPTEMBER 21, 1992
APRIL 23, 1993
MAY 9, 1994,
AUGUST 12, 1994 AND
DECEMBER 30, 1994)
U.S.$ 300,000,000
REVOLVING CREDIT FACILITY
FOR
COMDISCO, INC.
ARRANGED BY
NATIONAL WESTMINSTER BANK PLC
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
1. Interpretation 1
2. Facilities 23
3. Existing Facility Agreement and Purpose of the Facilities 24
4. Conditions Precedent 25
5. Utilisations of the Underwritten Advance Facility 27
6. Utilisations of the Uncommitted Advance Facility 30
7. Utilisations of the Uncommitted Bankers' Acceptance Facility 33
8. Utilisations of the Swingline Advance Facility 38
9. CP Programmes and Letter of Credit Facility 40
10. Reduction And Cancellation of the Total Commitments 56
11. Availability of Optional Currencies 57
12. Interest 58
13. Repayment and Prepayment of Advances and Payment of Bills 60
14. Market Disruption 61
15. Payments 63
16. Increased Costs 69
17. Illegality 71
18. Guarantee 71
19. Representations And Warranties 74
20. Covenants 77
21. Default 85
22. Accounts as Evidence 90
23. The Agents, the Arranger and the Issuing Banks 90
24. Fees 95
25. Expenses 96
26. Stamp Duties 97
27. Amendments, Waivers, Remedies Cumulative 97
28. Notices 99
29. Alterations to the Contracting Parties 100
30. Set-Off 106
31. Indemnities 106
32. Pro Rata Sharing 107
33. Governing Law 108
34. Jurisdiction 108
35. Severability 109
36. Counterparts 109
37. Language 109
</TABLE>
<TABLE>
<CAPTION>
EXHIBITS
<S> <C>
Exhibit A
Part I - The Underwriters and Commitments 111
Part II - The Swingline Banks 112
Part III - The Issuing Banks 112
Part IV - The Tender Panel Members 113
Exhibit B 114
Part II - Other Subsidiaries 114
Exhibit C
Calculation of Additional Cost 118
Exhibit D
Form of Underwritten Advance Request 120
Exhibit E
Form of Uncommitted Advance Request 122
Exhibit F
Form of Uncommitted Bankers' Acceptance Request 124
Exhibit G
Form of Swingline Advance Request 125
Exhibit H
Part I - Form of Letter of Credit Request 126
Part II - Form of Letter of Creidt (Amendment) Request 128
Exhibit I
Form of Bill 130
Exhibit J
Form of Substitution Certificate 131
Exhibit K
Form of Undertaking of New Tender Panel Member 135
Exhibit L
Part I - Form of Letter of Accession for Additional Borrowers 137
Exhibit L
Part II Form of Letter of Accession for (Replacement) Borrowers' Agent 139
Exhibit M
Form of Legal Opinion of U.S. Counsel to Comdisco, Inc. 141
Exhibit N
Form of Legal Opinion of Allen & Overy 143
Exhibit O
Timetables 146
Exhibit P
Compliance Certificate 150
Exhibit Q
Part I - ECP Notes 160
Part II - U.S. CP Notes 188
Exhibit R
Form of Clause 15.4(d)(i) Letter 213
Signatories 214
<PAGE>
</TABLE>
