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 Facility agreement dated December 30, 1994 and made between
Comdisco, Inc. National Westminster Bank PLC, Barclays Bank PLC and
the banks thereto.
<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 December 30, 1994 and made BETWEEN:
COMDISCO, INC. of 6111 North River Road, Rosemont, Illinois 60018 as
borrower and drawer (the "COMPANY");
NATIONAL WESTMINSTER BANK PLC of 41 Lothbury, London EC2P 2BP as arranger
and administrative agent (in this capacity the "ARRANGER");
(3) BARCLAYS BANK PLC, CREDIT LYONNAIS and UNION BANK OF SWITZERLAND as
co-agents (in this capacity the "CO-AGENTS");
(4) THE BANKS whose names appear in Schedule 1 as underwriters and
swingline banks;
(5) NATIONAL WESTMINSTER BANK PLC of 41 Lothbury, London EC2P 2BP as
facility agent (in this capacity the "FACILITY AGENT"); and
(6) 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").
1. INTERPRETATION
1.1 TERMS DEFINED
In this Agreement:
ADDITIONAL BORROWER"
means a Borrower which has become a Borrower in accordance with Clause 25.10
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 Schedule 3.
"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 "REVOLVING", an advance made or to be made by a
Bank under the Revolving Advance Facility referred to in Clause 2.1(a);
(b) when designated "SWINGLINE", an advance made or to be made by a
Bank under the Swingline Advance Facility referred to in Clause 2.1(b); and
(c) 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 or the Swingline 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.
"APPLICABLE RATE"
means, on any day, the higher of:
the Prime Rate; and
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 Advances which have not fallen due for
repayment 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:
the Original Dollar Amount of any other Advance 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;
the Original Dollar Amount of any Advance which has been made and which
will have fallen due for repayment on or before the relevant Utilisation Date
shall be added;
the amount of any reduction or cancellation of the Total Commitments
which is then scheduled to occur during the proposed Term of the Advance
shall be deducted.
"BANK"
means a bank or financial institution whose name appears in Schedule 1 in its
capacity as a participant in the Facility.
"BORROWER"
means the Company or any Additional Borrower.
"BORROWERS' AGENT"
means the agent of the Borrowers, being a wholly owned subsidiary of the
Company, appointed under Clause 25.10(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:
London, Chicago and New York City;
in the case of a determination of LIBOR for an Advance denominated in
Sterling and maintained in Euro-Sterling, Paris; and
(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 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 centre 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.
"CD MARGIN"
means 0.525 per cent. per annum.
"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.
"COMMITMENT"
in relation to a Bank, means the amount in Dollars set opposite its name in
Schedule 1, to the extent not cancelled or reduced under this Agreement
(including by virtue of any Bank declining to extend its Commitment pursuant
to Clause 2.4 of this Agreement) (together the "TOTAL COMMITMENTS").
<PAGE>
"COMMITMENT PERIOD"
means, subject to Clause 2.4, the period commencing on the Signing Date and
expiring on the date 364 days thereafter.
"COMPLIANCE CERTIFICATE"
means a compliance certificate, including all Attachments annexed thereto,
substantially in the form of Schedule 10 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 16.11 of this Facility Agreement.
"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 unamortised 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 Schedule 10.
"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.
"CUMULATIVE NET LOSSES"
means the aggregate consolidated net losses of the Group as set out in
Attachment 7 to the form of Compliance Certificate set forth in Schedule 10.
"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.
"DOLLARS" or "U.S.$"
means the lawful currency for the time being of the U.S.A.
"EARNINGS FROM CONTINUING OPERATIONS BEFORE TAXES"
menas 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 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 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 17.1.
"EXPIRY DATE"
means the date on which the Commitment Period expires.
"FACILITY"
(a) when designated "REVOLVING ADVANCE", the committed multicurrency
advance facility referred to in Clause 2.1(a);
(b) when designated "SWINGLINE ADVANCE", the committed Dollar swingline
advance facility referred to in Clause 2.1(b); and
(c) 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 25.7,
in each case as the office(s) through which the Bank will perform all or
any of its obligations under the Finance Documents.
"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 are 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"
means December 29, 1996.
"FINANCE DOCUMENT"
means any of this Agreement and the Substitution Certificates.
"FINANCIAL INSTITUTION"
means the Arranger, an Agent or a Bank.
"FISCAL YEAR"
menas 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 Schedule 10.
"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"
means 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.
"LETTER OF ACCESSION"
means a letter of accession executed or to be executed by an Additional
Borrower substantially in the form of Schedule 7 (Part I) and/or by a
Borrowers' Agent substantially in the form of Schedule 7 (Part II).
"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 Advance. 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 10.1 (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.
"LIBOR MARGIN"
means 0.40 per cent. per annum.
"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 BANKS"
means at any time, Banks 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, in relation to an Advance, the last day of its Term.
"MULTIPLE OPTION FACILITY"
means the Facility Agreement dated June 4, 1991 (as supplemented and amended
from time to time) between the Borrower (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 the
facility agent and tender panel agent (5), National Westminster Bank PLC as
swingline agent (6) and Barclays Bank PLC as letter of credit agent (7) in
respect of a revolving credit facility of U.S. $300,000,000.
"NET BOOK (OR RESIDUAL) VALUE"
has the meaning provided in Clause 16.11(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 Schedule 10.
"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
inconsistant with a Non-Recourse Obligation with respect to such
Equipment and the related Contract.
"OPTIONAL CURRENCY"
means, subject to Clause 7.1, 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 Advance denominated in Dollars, its principal
amount; or
(b) in relation to any Advance denominated in an Optional Currency, its
principal amount 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.
"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 Schedule 10.
"REFERENCE BANKS"
means, subject to Clause 25.5, 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
non-bank 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 16.11(h) hereof.
"REQUEST"
means:
(a) when designated "REVOLVING ADVANCE", a request, substantially in
the form of Schedule 4, made by a Borrower in accordance with
Clause 5.1(a), to utilise the Revolving Advance Facility;
(b) when designated "SWINGLINE ADVANCE", a request substantially in
the form of Schedule 5, made by a Borrower in accordance with
Clause 5.1(b), to utilise the Swingline Advance Facility; and
(c) without any designation, any of the above requests, as the
context requires.
"REQUESTED AMOUNT"
in relation to a Request, means the amount of the Advance requested in the
Request.
"REQUIREMENT(S) OF LAW"
shall mean as to any person, the certificate of incorporation and by-laws
or other organisational 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 non-personal 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 place of incorporation is set out in
Part I of Schedule 2 and which may become an Additional Borrower pursuant to
Clause 25.10.
"STERLING"
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 25.4.
"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.
"TERM"
in relation to an Advance, 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 Schedule 10.
"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 Schedule 10.
"U.S.A."
means the United States of America.
"UTILISATION DATE"
in relation to any Advance, the date for the making of the Advance 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 "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(d) of
Attachment 3 of Schedule 10 hereto; (iii) discounted lease rentals
(non-recourse) as listed in item 2 of Attachment 4 of Schedule 10
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;
(c) 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.;
(d) a reference to a "PERSON" means an individual, a company, a corporation,
a partnership, a joint venture, a trust or unincorporated organisation
, joint stock company or other similar organisation, a government or
any political subdivision thereof, a court, or any other legal entity,
whether acting in an individual, fiduciary or other capacity;
(e) 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;
(f) a reference to a Contracting Party or a Reference Bank is, where
relevant and subject to Clauses 19 and 25, a reference to or to include,\
as appropriate, their respective successors or assigns;
(g) references to Clauses, Schedules and Attachments are references to,
respectively, clauses of and schedules and attachments to this
Agreement;
(h) 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;
(i) references to "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" are references
to generally accepted accounting principles in the U.S.A.;
(j) a reference to a time of day is, unless otherwise stated, a reference
to London time;
(k) 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
(l) 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 the following
facilities to the Borrowers:
(a) REVOLVING ADVANCE FACILITY: a committed short-term multicurrency
advance facility whereby the Banks shall, when requested by a
Borrower, make Revolving Advances to that Borrower; and
(b) SWINGLINE ADVANCE FACILITY: a committed Dollar swingline advance
facility whereby the Banks shall, when requested by a Borrower,
make Swingline Advances to that Borrower.
2.2 FACILITY LIMITS
The aggregate Original Dollar Amount of all outstanding Advances at any
one time shall not exceed the Total Commitments at that time.
2.3 NATURE OF THE BANKS' RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT
(a) COMMITMENT: No Bank is obliged to make an Advance if it would cause
the aggregate of the Original Dollar Amount of any outstanding
Advances made by it and its Affiliated Bank(s) to exceed its
Commitment.
(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 COMMITMENT PERIOD
(a) The Company or the Borrowers' Agent may from time to time notify the
Facility Agent (which shall promptly notify the Banks) if it wishes the
Commitment Period to be extended. Any such notification to the
Facility Agent must be given no later than 60 days prior to the Expiry
Date.
(b) Each Bank will notify the Facility Agent in writing if it wishes its
Commitment Period to be extended. Such notification must be given not
earlier than 10 Business Days and not later than five Business Days
prior to the then latest Expiry Date. If a Bank does so notify, its
Expiry Date shall be extended by 364 days with effect from close of
business on the earliest date on which agreement to extend the
Commitment Period is given by any Bank in accordance with this Clause,
regardless of whether or not any other Banks also agree.
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 Advance requested in the Request shall be made via the Borrowers'
Agent.
3. PURPOSE OF THE FACILITY
(a) The proceeds of each Advance shall be applied by each Borrower
towards the refinancing of any commercial paper obligations and 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 Advance.
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) a certificate of the Secretary or an Assistant Secretary of the
Company including:
(A) 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;
(B) 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;
(C) certification of 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);
(ii) 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;
(iii) certified copies of the Restated Certificate of Incorporation
and By-laws of the Company;
(iv) an opinion of any of the Senior Vice President-Legal, Vice
President and General Counsel or Vice President and Associate General
Counsel of the Company, addressed to the Financial Institutions,
substantially in the form of Schedule 8;
(v) evidence of the acceptance by the process agent specified in
Clause 30 of its appointment under that Clause;
(vi) 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 Schedule 9; and
(vii) the conditions precedent to the Seventh Supplemental
Agreement to the Multiple Option Facility having been satisfied, save
for satisfaction of the condition precedent requiring satisfaction of
this paragraph (vii).
(b) Each of the documents specified in paragraphs (a)(i) and (ii)
(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) 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 ADVANCE
The obligations of each Agent and each Bank in respect of each
Advance 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 15.1 (other than paragraphs (d)(ii) and (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 Advance; and
(iii) the Advance would not exceed the Available Facility Amount;
(iv) the Advance would, when added to the most recently
calculated Recalculated Amount (as defined in Clause 7.3),
not exceed the Total Commitments.
(b) no more than five Advances may be made on the same day.
5. UTILISATION OF THE FACILITIES
5.1 DELIVERY OF REQUESTS
Subject to the terms of this Agreement, a Borrower may utilise:
(a) the Revolving 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 4.00 p.m. three Business Days prior to the
relevant Utilisation Date, a duly completed Revolving Advance
Request; or
(b) the Swingline Advance Facility by the Company or the Borrowers'
Agent delivering to the Swingline Agent, not later than
11.00 a.m. (New York time) on the relevant Utilisation Date, a
duly completed Swingline Advance Request.
5.2 FORM OF REVOLVING ADVANCE REQUESTS
Each Revolving 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 Revolving Advance
Request(s), but the Company or the Borrowers' Agent
may, subject to the terms of this Agreement, deliver
more than one Revolving 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 Revolving
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 amount, and
integral multiples, 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
Revolving Advance 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, six or twelve months, in the
case of LIBOR Advances and 30, 60, 90, 180 or 360 days, in the
case of CD Advances, or such other period as may be agreed between
the Company and the Banks, 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 Revolving 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
Advances are to be made available to the relevant Borrower in
accordance with Clause 12.1.
5.3 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 Advances are to be made available to the relevant Borrower in
accordance with Clause 11.1
5.4 NOTIFICATION OF BANKS
(a) The Facility Agent shall, promptly after receipt by it of a
duly completed Revolving Advance Request and in any event not
later than 5:00 p.m. three Business Days prior to the
relevant Utilisation Date, notify each Bank of the details of
the requested Revolving Advances and the amount of that
Bank's Revolving Advance.
(b) The Swingline Agent shall, promptly after receipt by it of a
Swingline Advance Request and in any event not later than
12.00 noon (New York time) on the relevant Utilisation Date,
notify the Facility Agent and each Bank of the details of the
Requested Swingline Advances and shall notify each Bank of
the amount of its Swingline Advance.
5.5 AMOUNT OF EACH BANK'S ADVANCE
(a) Subject to paragraph (b) below and to Clause 11.4(i) the
amount of a Bank'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 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) any Advance that has been, or is to be, made by it and
its Affiliated Bank(s) having a Maturity Date which
falls after the relevant Utilisation Date;
(ii) the Advance proposed to be made by it on the relevant
Utilisation Date in accordance with paragraph (a) above;
and
(iii) any other Advance to be made, by it and its Affiliated
Bank(s) on the relevant Utilisation 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 a Bank
(the "AFFECTED BANK"), then:
(i) the Affected Bank 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 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:
(A) the Affected Bank's Commitment shall be deducted
from the Total Commitments; and
(B) the amount of the Affected Bank's proposed Advance
(if any) shall be deducted from the Requested
Amount.
This calculation shall be applied to each Bank in turn until the
apportionment of the Requested Amount between the Banks is finally determined.
5.6 PAYMENT OF PROCEEDS
Subject to the terms of this Agreement, each Bank shall on the
relevant Utilisation Date, make its Advance available to the
Facility Agent, in the case of Revolving Advances, or to the
Swingline Agent, in the case of Swingline Advances, for the
account of the relevant Borrower in accordance with Clause 11.1
and, in the case of Revolving Advances, subject to Clause
7.1, in the currency requested by the relevant Borrower.
6. REDUCTION AND CANCELLATION OF THE TOTAL COMMITMENTS
6.1 AUTOMATIC REDUCTION OF EACH BANK'S COMMITMENT
The amount of each Bank's Commitment shall (if not already so
reduced) be automatically reduced to zero at close of business on the
Expiry Date for that Bank.
6.2 VOLUNTARY CANCELLATION
(a) (i) Subject to sub-paragraph (ii) below, the Company may,
on giving not less than 30 days' prior written notice to
the Facility Agent (which shall promptly give notice
thereof to the Banks), cancel the Total Commitments in
whole or in part (but, if in part, in a minimum
amount, and integral multiples, of $25,000,000).
(ii) Any cancellation may only take effect in respect of
the unutilised portion of the Facility.
(b) Any cancellation in part under this Clause 6.2 shall be
applied against the Commitment of each Bank pro rata.
6.3 IRREVOCABLE
(a) Any notice by the Company under this Clause 6 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.
7. AVAILABILITY OF OPTIONAL CURRENCIES
7.1 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; or
(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
(ii) 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 7.1.
7.2 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.
7.3 RECALCULATION OF ORIGINAL DOLLAR AMOUNTS
(a) Each Bank may at any time request the Facility Agent to make
a notional recalculation of the Original Dollar Amount of all
Advances outstanding together with the amount of all Advances
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 110 per
cent. of the Total Commitments:
(i) no further Advances shall be made and no further
Requests delivered until the Facility Agent
notifies the Company that such Advance 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 27.2(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 Banks 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 Banks, to the extent permitted by law and
without prejudice to a 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.
8. INTEREST
8.1 RATE
(a) The rate of interest applicable to each Revolving Advance
(other than a Local Advance) for its Term shall be the rate
per annum determined by the Facility Agent to be the
aggregate of:
(i) (A) in the case of a LIBOR Advance, the LIBOR
Margin and LIBOR relative to that Advance; or
(B) in the case of a CD Advance, the CD Margin
and the Adjusted CD Rate relative to that Advance;
and
(ii) 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.
8.2 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 and also, if the Term of the
Advance is longer than six months, on the date six months after the
Utilisation Date of the Advance.
8.3 DEFAULT INTEREST
(a) If a Borrower fails to pay any amount payable by it under
this Agreement 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 judgement, 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 8.1(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 a
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).
8.4 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.
8.5 NOTIFICATION
Each determination of a rate of interest by the Facility Agent under
this Agreement shall promptly be notified to the relevant Contracting
Parties.
9. REPAYMENT AND PREPAYMENT OF ADVANCES
9.1 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.
9.2 PREPAYMENT OF ADVANCES
(a) A Borrower may, on giving not less than three 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 27.2(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.
10. MARKET DISRUPTION
(a) If, in relation to any proposed Revolving Advance:
(i) no, or only one, Reference Bank is able to supply a
rate for the purposes of determining LIBOR (in the
case of a LIBOR Advance) 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 CD Advance) or the Facility Agent
otherwise determines (which determination shall be
conclusive and binding on all the Contracting Parties)
that adequate and fair mean not exist for
ascertaining LIBOR or the Adjusted CD Rate, as
appropriate, relative to the Revolving Advance; or
(ii) the Facility Agent receives notification:
(A) from Banks participating in more than 50 per
cent. by value of the proposed Revolving Advance
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 Revolving
Advance for that Term; or
(B) from Banks participating in more than 50 per
cent. by value of the proposed Revolving
Advance 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
funvances 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 10 is in operation.
(b) After a Suspension Notice has been served:
(i) notwithstanding any other provision of this Agreement, the
Revolving Advance shall not be made;
(ii) no further Requests for Revolving 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 Revolving
Advances; and
(iv) any substitute basis agreed under sub-paragraph (iii)
above shall, with the prior consent of all the Banks, take
effect in accordance with its terms and be binding on all
the Contracting Parties.
11. PAYMENTS
11.1 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 be made to the Facility Agent or the Swingline Agent, as
the case may be, as follows:
(i) if in Dollars (unless 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; or
(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 for the account of the
Facility Agent by CHAPS to National Westminster Bank PLC,
Treasury Settlements London 70-01-19, Account
No. 04607236 or by SWIFT to National Westminster Bank
PLC, Treasury Settlements London, SWIFT Code:
NWBK GB 2LTSY 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 11.3, 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) in 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.
11.2 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 other amount payable under this Agreement shall, unless
otherwise provided in this Agreement, be payable in Dollars.
11.3 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 11.3 are without prejudice to any
rights which the Agent and the payee may have against the party
liable.
11.4 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 11, "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
11.4(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 11.4(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 11.4(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 or New Bank (each as defined in
Clause 25), as of the date of the relevant
assignment or transfer 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 Schedule 11, dated the Signing Date
(or such effective date, as the case may be, which
letter the relevant Assignee or New Bank, 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 11.4(b) and
11.4(f).
(ii) Within 21 days after any Proposed Borrower that is
not a Specified Subsidiary becoming an Additional
Borrower under Clause 25.10 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
withholding 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 organised 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 or New Bank, within 30 days
of the date the relevant assignment or transfer
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 11.4(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; and
(B) cancel that Bank's Commitment;
(ii) any notice by a Borrower shall be irrevocable and may
only be given under sub-paragraph (i) above whilst
the duty to withhold or deduct continues; such
Bank's Commitment shall be cancelled on the giving of
the notice.
(i) Notwithstanding any provision herein to the contrary but
except as provided below, no Bank shall be obliged to make an
Advance in any currency to any Specified Subsidiary other than
in those currencies and to those Specified Subsidiaries set
forth in the letter delivered by such Bank
pursuant to Clause 11.4(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 5.5, that Bank's
Commitment shall be deducted from the Total Commitments.
11.5 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.
11.6 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.
11.7 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.
11.8 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 11.4(b)
(Taxes); or
(b) any amount becoming payable under Clause 12 (Increased Costs); or
(c) any prepayment or cancellation under Clause 13 (Illegality),
then, without limiting the obligations of the Borrowers under
this Agreement and without prejudice to the terms of Clauses 11.4,
12 and 13, 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 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.
12. INCREASED COSTS
12.1 INCREASED COSTS
Subject to Clause 12.2, 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 12.1
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; and
(ii) 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; such Bank's Commitment shall
be cancelled on the giving of the notice.
12.2 EXCEPTIONS
Clause 12.1 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 11.4 (Taxes).
13. 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
(b) such Bank's Commitment shall forthwith be cancelled,
to the extent required to remove the Supervening Illegality.
14. GUARANTEE
14.1 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.
14.2 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.
14.3 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.
14.4 WAIVER OF DEFENCES
The obligations of the Company under this Clause 14 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 14 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 14 shall include each variation (including without
limitation any substitute basis agreed under Clause 10); 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 14 shall remain in full force and its guarantee be
construed accordingly, as if there were no unenforceability,
invalidity or frustration.
14.5 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 14.
14.6 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 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 14.
14.7 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 14:
(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 14;
(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 (as referred to in (iii) above) 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.
14.8 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.
14.9 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.
15. REPRESENTATIONS AND WARRANTIES
15.1 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
(i) 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 or
financial condition of the Borrower, as the case may be,
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, 1994
and consolidated statements of income, shareholders'
equity, and cash flows for the Fiscal
Year then ended, of the Group, certified by KPMG
Peat, Marwick; and
(B) the consolidating balance sheet at September 30, 1994
and consolidating statements of income, shareholders'
equity and cash flows for the Fiscal Year
then ended, of the Group, certified by the Executive
Vice President and Chief Financial Officer of the
Company.
(ii) Since September 30, 1994 there has been no material
adverse change in the consolidated financial condition of
the Group from that reflected in the
consolidated balance sheet referred to in sub-paragraph
(i) above.
(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 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
Company has no Subsidiaries except those listed in Schedule 2.
(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
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.
15.2 REPETITION
The representations and warranties set out in Clause 15.1 shall:
(a) be made on the Signing Date;
(b) survive the execution of this Agreement and the making of
each Advance; and
(c) (with the exception of paragraph (j) and sub-paragraph (d)
(ii)) 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.
16. COVENANTS
The covenants in this Clause 16 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.
16.1 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 16.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 Banks;
(ii) a written statement by such accountants setting forth
in reasonable detail a calculation of the financial
covenants set forth in Clause 16.11 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 Schedule 2; 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.
16.2 MAINTENANCE OF CORPORATE EXISTENCE
Except as permitted by Clause 16.16, the Company will cause to be
done at all times all things necessary to maintain and preserve its
corporate existence.
16.3 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).
16.4 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.
16.5 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.
16.6 NOTICE OF DEFAULT OR LITIGATION
The Company will immediately give notice to the Facility Agent of:
(a) the occurrence of any Default;
(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.
16.7 CONDUCT OF BUSINESS
Each Borrower will, and the Company will cause each Material So
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.
16.8 PERFORMANCE OF OBLIGATIONS
Each Borrower will perform promptly and faithfully all of its
obligations under the Finance Documents.
16.9 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.
16.10 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
16.4; 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) judgement 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 (as defined in the Multiple Option Facility)
, the corresponding account under the Global Agreement and any
cash collateral account established pursuant to Clause 7.3.
16.11 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 September 30, l994 to and
including the last day of such quarter (without any
adjustment to the requirements set forth in this
covenant 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 any quarter
of a Fiscal Year 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 4.50 to 1;
(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 U.S. $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 set out in Schedule 10 (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 15.1(d)(i)) as of the end
of each Fiscal Year, to be less than l.25:1.
16.12 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 Multiple Option Facility) pursuant to
the Multiple Option Facility.
16.13 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 ubsidiary, in respect of its
capital stock,
at any time when a Default has occurred and is continuing or would
result therefrom.
16.14 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.
16.15 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.
16.16 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 16.7 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.
16.17 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.
16.18 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.
16.19 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.
16.20 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 non-compliance 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.
17. DEFAULT
17.1 EVENTS OF DEFAULT
Each of the following events is an Event of Default:
(a) NON-PAYMENT UNDER THE FINANCE DOCUMENTS
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 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 equal to 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 accelerate the maturity of such indebtedness;
provided that the amount of any individual item of
indebtedness shall be at least equal to the Individual
Material Amount or the aggregate amount of all such
indebtedness shall be in excess of the Aggregate Material
Amount.
(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 claims together aggregating in
excess of the Aggregate Material Amount 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 16.10, 16.11, 16.13,
16.18 or 16.19; 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 17.1) 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 judgements 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 judgements or decrees shall not
have been vacated, discharged, stayed or bonded pending appeal
within 60 days from the entry thereof, excluding those
judgements 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 Banks; 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.
17.2 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 Banks, by notice to the Company:
(i) declare that the Facilities 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.
(b) Upon the occurrence of an Event of Default referred to in
Clause 17.1(e):
(i) the Facility shall be automatically cancelled; and
(ii) the Advances shall automatically become due and
payable, together with all interest accrued thereon
and all other amounts payable under the Finance
Documents,
without presentment, demand, protest or other formalities of any
kind, all of which are expressly waived by the Borrowers.
18. ACCOUNTS AS EVIDENCE
Accounts maintained by a Bank in connection with this Agreement shall
constitute prima facie evidence of sums owing to the Bank.
19. THE AGENTS AND THE ARRANGER
19.1 APPOINTMENT
(a) Each Bank and the Arranger irrevocably appoints each of
the Facility Agent and the Swingline Agent to act as its agent
under this Agreement and irrevocably authorises each of them
on the Bank's or the Arranger's behalf, as the case may be, to
perform those duties and to exercise those
rights and powers that are specifically delegated to it under
the terms of this Agreement, together with such rights, powers
and discretions as are reasonably incidental thereto.
(b) 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.
19.2 MAJORITY BANKS' DIRECTIONS
In the exercise of any right or power and as to any matter not
expressly provided for by this Agreement, the Facility Agent and
the Swingline Agent shall act in accordance with the instructions
of the Majority Banks and shall be fully protected in so doing. In
the absence of any such instructions, each
of the Facility Agent and the Swingline Agent, may act or refrain
from acting as it shall see fit. Any such instructions shall be
binding on all the Banks.
19.3 RELATIONSHIP
(a) The relationship between (1) each of the Arranger, the
Facility Agent and the Swingline Agent and (2) the Banks is
that of principal and agent only.
(b) Nothing in this Agreement shall constitute any Agent or the
Arranger as trustee or fiduciary for any Contracting Party
or any other person and none of the Agents shall be liable
to any Contracting Party for any breach by any
other Contracting Party of any Finance Document.
19.4 DELEGATION
Each of the Agents may act under the Finance Documents through
its officers and employees.
19.5 DOCUMENTATION
None of the Agents, the Arranger nor any of their respective
officers, employees and agents shall be responsible to any
Contracting Party for:
(a) the legality, validity, effectiveness, adequacy, accuracy or
completeness of any Finance Document or any other document;
or
(b) the collectability of amounts payable under the Finance
Documents; or
(c) the accuracy of any statements (whether written or oral)
made in or in connection with the Finance Documents or any
other document.
19.6 DEFAULT
The Facility Agent shall not be required to ascertain or enquire
as to the performance or observance by the Company or any Borrower
of the terms of any Finance Document or any other document. The
Facility Agent shall not be deemed to have knowledge of the
occurrence of any Default unless it has
received notice from a Contracting Party describing the Default and
indicating that the notice is a "NOTICE OF DEFAULT". If the
Facility Agent receives a Notice of Default, or any of its
respective officers engaged in its agency functions under this
Agreement has actual knowledge of a Default, the Facility
Agent shall promptly give notice thereof to the Banks. The Facility
Agent shall take or refrain from taking such action with respect
to the Default as shall be reasonably directed by the Majority
Banks. 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.
19.7 EXONERATION
None of the Agents nor any of their officers, employees or
agents shall be liable to any other Contracting Party for any action
taken or omitted under or in connection with any Finance Document
unless caused by its or their negligence or wilful misconduct.
19.8 RELIANCE
Each of the Agents may:
(a) rely on any communication or document reasonably believed by
it to be genuine and correct; and
(b) engage, pay for and rely on legal or other professional
advisers selected by it in good faith.
19.9 CREDIT APPROVAL
Each of the Banks severally represents and warrants to each of the
Agents and the Arranger that it has made its own independent
investigation and assessment of the financial condition and affairs
of each Borrower and its relatedentities in connection with its
participation in this Agreement and has not relied and will not
rely on any Agent or the Arranger to keep under review on
its behalf the financial condition, creditworthiness, condition,
affairs, status or nature of each Borrower or any of its related
entities. Each Bank represents, warrants and undertakes to each of
the Agents and the Arranger that it shall continue to make its own
independent appraisal of the creditworthiness of each Borrower and
its related entities while any amount is or may be outstanding or
any Commitment is in force.
19.10 INFORMATION
(a) The Facility Agent shall supply each Bank with a copy of any
documents received by it under Clause 16 (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 25.10.
(b) None of the Agents nor the Arranger shall have any duty:
(i) either initially or on a continuing basis to provide
any Bank with any credit or other information
concerning the financial condition or affairs of
any Borrower or any of its related entities whether
coming into its possession or that of any of its
related entities before the Signing Date or
at any time thereafter; or
(ii) in the case of the Facility Agent and unless
specifically requested to do so by a Bank, to
request any certificates or other documents from any
Borrower.
(c) No Agent need disclose any information relating to the
Company or any of its related entities if the disclosure
would or might, in the opinion of the
Agent constitute a breach of any law or any duty of secrecy
or confidence.
19.11 THE AGENTS AND THE ARRANGER INDIVIDUALLY
(a) If it is also a Bank, each of the Agents and the Arranger
shall have the same rights and powers under this Agreement
as any other Bank and may exercise those rights and powers
as though it were not an Agent or the Arranger.
(b) Each of the Agents and the Arranger may accept deposits
from, lend money to and generally engage in any kind of
banking, trust, advisory or other business with any
Borrower and any of its related entities and accept and
retain any fees payable by any Borrower or any of its
related entities for its own account (including, without
limitation, any fees payable by any Borrower in connection
with any Facility) without liability to account to any
other Financial Institution.
19.12 INDEMNITIES
(a) Subject to paragraph (b) below, each Bank shall indemnify
the Facility Agent and the Swingline Agent on demand (to
the extent not reimbursed by a Borrower and without
prejudice to any liability of the Borrowers under
this Agreement) for any and all liabilities, obligations,
losses, damages, penalties, actions, judgements, suits,
costs, expenses and disbursements of any kind which may be
imposed on, incurred by or asserted against the
Facility Agent or the Swingline Agent in any way relating
to or arising out of its acting as the Facility Agent or
the Swingline Agent, as the case may be, under any of the
Finance Documents (including, without limitation, the
charges, expenses and stamp Taxes referred to in Clauses
21 and 22). The indemnification by each Bank 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.
(b) No Contracting Party shall be liable for any portion of the
foregoing arising from the relevant Agent's negligence or
wilful misconduct.
19.13 LEGAL RESTRICTIONS
Each of the Agents may refrain from doing anything which would
or might, in its opinion, be contrary to the law of any
jurisdiction or any official directive or render it liable to any
person, and may do anything which in its opinion is necessary to
comply with any such law or directive.
19.14 RESIGNATION
An Agent may resign by giving notice to the Banks and the
Borrowers in which case the Majority Banks in consultation with the
Company may appoint a successor Agent. If the Majority Banks
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"
or "SWINGLINE AGENT", as appropriate, shall mean the
successor Facility Agent or Swingline Agent, as the case may be.
This Clause 19 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.
19.15 BANKS/FACILITY OFFICES/ADDRESSES FOR NOTICES
(a) Each Agent, the Company and the Borrowers' 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.
19.16 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 or "SWINGLINE AGENT", as appropriate, shall mean
the successor Agent. This Clause 19 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.
20. FEES
20.1 FACILITY FEE
(a) The Company shall pay to the Facility Agent for the account
of each Bank a facility fee in Dollars computed at the rate
of 0.15 per cent. per annum on the amount of that Bank's
Commitment during the period from the Signing Date up to and
including the Expiry Date for that Bank.
(b) If, following any cancellation of a Bank's Commitment under
this Agreement, there are outstanding Advances made or
accepted by the Bank in an aggregate principal amount in
excess of the Bank's Commitment at that time,
then, for the purpose of calculating facility fee payable
under this Clause 20.1 only and notwithstanding any other
provision of this Agreement to the contrary, the Bank's
Commitment shall be deemed to be the greater of:
(i) the aggregate principal amount of the Advances made by
or attributed to the Bank and its Affiliated Bank(s);
(ii) the amount which, but for this paragraph (b), would
have been its Commitment.
(c) Accrued facility fee shall be payable quarterly in arrears
on September 4, December 4, March 4 and June 4 in each
calendar year and on the Expiry 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
Bank(s) on the cancelled amount of any
Commitment at the time the cancellation comes into effect.
20.2 ACCRUAL
The facility fee referred to in Clause 20 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.
20.3 UPFRONT FEE
The Company shall pay to the Facility Agent for the account of the
Arranger on the Signing Date an upfront fee in the amount agreed
between the Facility Agent and the Company in a letter dated the
Signing Date for distribution to the Banks in the proportions
agreed between the Arranger and the Banks prior
to the Signing Date.
20.4 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 20.3. 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.
20.5 VAT
Any fee referred to in this Clause 20 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.
21. EXPENSES
21.1 FACILITY EXPENSES
The Company shall reimburse the Facility Agent or the Arranger, as
appropriate 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, 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.
21.2 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.
22. 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.
23. AMENDMENTS, WAIVERS, REMEDIES CUMULATIVE
23.1 AMENDMENTS
(a) Subject to paragraph (b) below, if authorised by the Majority
Banks, 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.
(b) Nothing in paragraph (a) above shall authorise:
(i) except with the prior consent of all the Banks:
(A) subject to Clause 2.4, the extension of any
Commitment Period or Final Maturity Date; or
(B) any variation of the definition of "MAJORITY
BANKS" 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 Bank's Commitment; or
(F) subject to Clause 25.10, the incorporation of
Additional Borrowers; or
(G) any variation of Clause 28 (Pro Rata Sharing) or
this Clause 23.1; or
(H) any variation or amendment to any provision of
the Finance Documents requiring the unanimous
consent of the Banks which would result in
the removal of such requirement; or
(I) any release of the Guarantee contained in
Clause 14.
23.2 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.
23.3 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.
24. NOTICES
24.1 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, 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 each Borrower, at the Company's
address, telex number or facsimile number set out in
paragraph (c) below; or
(vi) 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
(vii) 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 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.: 071 239 8257
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 6024118
For the attention of: Managers' Department.
(d) The Company's address, telex number and facsimile number for
notices as at the Signing Date is:
6111 North River Road,
Illinois 60018
USA
Telex No.: 4330257 COMD UI
Facsimile No.: 708 518 5854
For the attention of: Edward A. Pacewicz, Vice President-Finance
With a copy to: General Counsel
Facsimile No.: 708 518 5088
24.2 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.
25. ALTERATIONS TO THE CONTRACTING PARTIES
25.1 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.
25.2 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 Banks.
25.3 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)
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.
(ii) 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.
(iii) Each Assignee shall be deemed to make the
representations and warranties set forth in Clause
11.4(d) and to undertake the obligations set forth in
Clause 11.4(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.
25.4 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 25.3, then, as an alternative to
Clause 25.3 and subject to paragraph (b) below,
such transfer may (with the prior written consent of the
Company) be effected by way of a novation by the delivery
to, and the execution by, the Facility Agent of a duly
completed certificate, substantially in the
form of Schedule 6 (a "SUBSTITUTION CERTIFICATE").
(b) 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.
(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 25.4 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
11.4(d) and to undertake the obligations set forth in
Clause 11.4(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.
25.5 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Bank, the
Bank of which it is an Affiliate) ceases to be one of the Banks, the
Facility Agent will, in consultation with the Company, appoint
another Bank or an Affiliate of a Bank as a Reference Bank.
25.6 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.
25.7 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.
25.8 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 25.3 or 25.4; or
(b) any change in a Bank's Facility Office,
at that time in amounts becoming due under Clause 11.4(b) (Taxes) or
12.1 (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.
25.9 BANKS
The Company may from time to time 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,
(i) such transfer shall be effected by way of novation pursuant
to Clause 25.4 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 25.4.
(ii) Immediately upon receipt of the Substitution Certificate the
relevant Bank will execute the same as the "EXISTING BANK"
in accordance with Clause 25.4 and deliver the Substitution
Certificate to the Facility Agent as provided in Clause
25.4(a).
25.10 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
Banks 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) (if required by law or the constitution of the
Borrower) 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 Institutions, 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.
26. 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.
27. INDEMNITIES
27.1 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 judgement 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.
27.2 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 17.2 (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 27.2(a)(iii), a Maturity Date
relative to an overdue amount shall be the last day of
any Designated Term (as defined in Clause
8.3(a)(ii)(B)); or
(iv) (other than by reason of gross negligence or default by
any Bank or any Agent) any Advance not being made after
a Request has been served in respect thereof; or
(v) any prepayment not being made following notice thereof
by any Borrower.
(b Each Borrower'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.
28. PRO RATA SHARING
28.1 REDISTRIBUTION
(a) Subject to Clause 28.2, 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 28.1 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 the 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.
28.2 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.
29. GOVERNING LAW
This Agreement is governed by English law.
30. 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 24.1
(g) Nothing herein shall affect the right to serve process in any
other manner permitted by law.
31. 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.
32. 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.
33. 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 conflict and unless the Facility
Agent otherwise specifies, the English language version of any such
document shall prevail.
WITNESS whereof the parties hereto have caused this Agreement to be
duly executed on the date first written above.
<TABLE>
<CAPTION>
SCHEDULE 1
PART I
THE BANKS AND COMMITMENTS
<S> <C>
BANKS COMMITMENTS
U.S.$
NATIONAL WESTMINSTER BANK PLC 21,000,000.00
BARCLAYS BANK PLC 20,000,000.00
UNION BANK OF SWITZERLAND 20,000,000.00
CREDIT LYONNAIS 20,000,000.00
BHF-BANK 13,333,333.34
DEUTSCHE BANK AG 13,333,333.34
WESTDEUTSCHE LANDESBANK GIROZENTRALE 10,000,000.00
BAYERISCHE VEREINSBANK 8,333,333.33
DRESDNER BANK AG 8,333,333.33
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK AG, NEW YORK BRANCH 8,333,333.33
NORDDEUTSCHE LANDESBANK GIROZENTRALE 7,333,333.33
TOTAL COMMITMENTS 150,000,000.00
</TABLE>
<TABLE>
<CAPTION>
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
DORMANT
COMPUTER DISCOUNT CORPORATION
(B) DISSOLVED
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
SCHEDULE 3
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 Schedule 3, 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
Schedule 3, 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 Schedule 3, 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.
Schedule 4
FORM OF UNDERWRITTEN ADVANCE REQUEST
To: NATIONAL WESTMINSTER BANK PLC as Facility Agent
From: [ ]
Date: [ ], 19[ ]
Dear Sirs,
COMDISCO, INC. - U.S.$150,000,000 REVOLVING CREDIT
FACILITY DATED DECEMBER 30, 1994 (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 Revolving
Advance Request.
2. We wish to borrow 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 15.1 (other
than paragraphs (d)(ii) and (j)) of the Facility Agreement
are correct on the date of this Revolving Advance 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 Revolving Advance.
Yours faithfully,
[Authorised Signatory]
for and on behalf of
[ ]
SCHEDULE 5
FORM OF SWINGLINE ADVANCE REQUEST
To: NATIONAL WESTMINSTER BANK PLC as Swingline Agent
cc: NATIONAL WESTMINSTER BANK PLC as Facility Agent
From; [ ]
Dear Sirs,
COMDISCO, INC.-U.S.$150,000,000 REVOLVING CREDIT FACILITY DATED
DECEMBER 30, 1994 (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 Swingline
Advance 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 [ [*
*Subject to Clause 11.1(b) of the Facility Agreement
3. We confirm that:
(a) the representations and warranties set out in Clause 15.1 (other
than paragraphs 5(d)(ii) and (j) of the Facility Agreement are
correct on the date of this Swingline Advance 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 Swingline Advance.
Yours faithfully,
[Authorised Signatory]
for and on behalf of
[ ]
SCHEDULE 5
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
Parties (as defined in the Facility Agreement referred to below).
This substitution certificate ("SUBSTITUTION CERTIFICATE") relates to a
facility agreement dated December 30, 1994 and made between Comdisco, Inc. as
borrower and drawer (1), National Westminster Bank PLC as arranger (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 (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", those
details accurately summarise its Commitment and/or the amount,
Terms and Maturity Dates of one or more existing Advances owed
to it; and
(b) requests [New Bank] (the "NEW BANK") to accept and procure, in
accordance with Clause 25.4 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) 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 24.1 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 25.4 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 25.4(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
11.4(d) of the Facility Agreement and undertakes the
obligations set forth in Clause 11.4(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.
<PAGE>
THE SCHEDULE
EXISTING BANK'S COMMITMENT PORTION TRANSFERRED
ADVANCE(S) TO BE TRANSFERRED PORTION TRANSFERRED
Amount:
Currency:
Term:
Maturity 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:
<PAGE>
SCHEDULE 6
PART I - FORM OF LETTER OF ACCESSION FOR ADDITIONAL BORROWERS
FORM OF LETTER OF ACCESSION FOR ADDITIONAL BORROWERS
LETTER OF ACCESSION
To: NATIONAL WESTMINSTER BANK PLC as agent
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 December 30, 1994 and made between
Comdisco, Inc. as borrower and drawer (1), National Westminster Bank PLC as
arranger (2), the Co-Agents (as defined therein) (3), the Banks (as defined
therein) (4), National Westminster Bank PLC as the 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 (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 25.11 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 15.1 of the Facility Agreement (other than paragraphs (d)(ii) and
(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 14 of the Facility Agreement shall apply to
the obligations of the Proposed Borrower under the Facility Agreement.
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.
<PAGE>
SCHEDULE 7
PART II - FORM OF LETTER OF ACCESSION FOR (REPLACEMENT) BORROWERS' AGENT
FORM OF LETTER OF ACCESSION FOR (REPLACEMENT) BORROWERS' AGENT
LETTER OF ACCESSION
To: NATIONAL WESTMINSTER BANK PLC as agent
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 December 30, 1994 and made between
Comdisco, Inc. as borrower and drawer (1), National Westminster Bank PLC as
arranger (2), the Co-Agents (as defined therein) (3), the Banks (as defined
therein) (4), National Westminster Bank PLC as the 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 (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 25.11 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 15.1 of the Facility Agreement (other than paragraphs
(d)(ii) and (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.
<PAGE>
Schedule 7
FORM OF LEGAL OPINION OF U.S. COUNSEL TO COMDISCO, INC.
To: The Financial Institutions
party to the Facility Agreement
referred to below.
December 30, 1994
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 December 30, 1994 (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,
<PAGE>
Schedule 8
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).
December 30, 1994
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 December
30, 1994 between Comdisco, Inc. as borrower and drawer (1), National
Westminster Bank PLC as arranger (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 multiple option facility of U.S.$150,000,000.
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 Facility Agent 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)(iv) 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 judgements for a monetary
amount in foreign currencies but the judgement 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 8.3 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 28 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 30 (Jurisdiction), an English court may stay
proceedings if concurrent proceedings are being brought elsewhere.
(ix) Clause 31 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>
SCHEDULE 10
COMPLIANCE CERTIFICATE
To: National Westminster Bank PLC
and as Agent, and the
other Banks party to the Facility
Agreement, dated December 30, 1994
(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 16.1 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 l5.l(d) of the Facility Agreement, all as
required by the Facility Agreement.
COMDISCO, INC.
By: ___________________________________
Title: __________________________________
<PAGE>
<TABLE>
<CAPTION>
ATTACHMENT 1
CONSOLIDATED TANGIBLE NET WORTH RATIO
<S> <C>
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) $[ ]
</TABLE>
<TABLE>
<CAPTION>
ATTACHMENT 2
FIXED CHARGE COVERAGE RATIO
<S> <C> <C>
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 $[ ] :
(Item 3 divided by item 2)
5. COMPLIANCE RATIO 1.15 : 1
</TABLE>
<TABLE>
<CAPTION>
ATTACHMENT 3
TOTAL LIABILITIES TO ADJUSTED NET WORTH RATIO
<S> <C>
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
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. $100,000,000
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
(iii) the Company's investment in its oil and
gas joint venture as a September 30, 1990 and
all profits in respect therof 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) [ ]:1
11. COMPLIANCE RATIO 6.5:1
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ATTACHMENT 4
RECOURSE LIABILITIES RATIO
<S> <C>
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
</TABLE>
<TABLE>
<CAPTION>
ATTACHMENT 5
UNENCUMBERED CASH FLOW TO CONTRACTUAL PAYMENTS RATIO
<S> <C> <C>
1. CONTRACTUAL PAYMENTS TO BE RECEIVED $[ ]
(Less six times 75% of total accounts
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 $[ ]
</TABLE>
<TABLE>
<CAPTION>
ATTACHMENT 6
NET CASH PROVIDED
BY
OPERATING ACTIVITIES
<S> <C>
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
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ATTACHMENT 7
CUMULATIVE NET LOSSES*
NET INCOME OR
(LOSS)
<S> <C>
Third Previous Quarter $[ ]
Second Previous Quarter $[ ]
First Previous Quarter $[ ]
This Quarter $[ ]
TOTAL $[ ]
Maximum Net Loss $ (l0,000,000)
<FN>
* Based on rolling four quarters (most recent ending foru quarters)
</FN>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ATTACHMENT 8
REMARKETING REVENUES
TO
NET BOOK (OR RESIDUAL) VALUE
<S> <C>
1. REMARKETING REVENUE $[ ]
2. NET BOOK VALUE AT LEASE TERMINATION $[ ]
3. DIVIDE ITEM 1 BY ITEM 2 $[ ]
4. COMPLIANCE RATIO 1.25 : 1
</TABLE>
<PAGE>
SCHEDULE 11
CLAUSE 11.4(D)(I) LETTER
DATE
To: Comdisco Inc.
6lll North River Road
Rosemont, IL 600l8
and its Specified Subsidiaries
[ ]
For the attention of: Edward C. Pacewicz
Vice President-Finance
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 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 (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
11.4(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]
<PAGE>
SIGNATORIES
COMPANY
COMDISCO, INC.
By: EDWARD A. PACEWICZ
Vice President
ARRANGER
NATIONAL WESTMINSTER BANK PLC
By: ERNEST V. HODGE
Vice President
CO-AGENTS
BARCLAYS BANK PLC
By: KEVIN HERATY
Director
CREDIT LYONNAIS CHICAGO BRANCH
By: ATTILA KOC
Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: ATTILA KOC
Authorised Signature
UNION BANK OF SWITZERLAND
By: WALTER R. WOLFF By: DENIS J. CAMPBELL
First Vice President Vice President Corporate Banking
BANKS
NATIONAL WESTMINSTER BANK PLC
By: ERNEST V. HODGE
Vice President
<PAGE>
BARCLAYS BANK PLC
By: KEVIN HERATY
Director
UNION BANK OF SWITZERLAND
By: WALTER R. WOLFF By: DENIS J. CAMPBELL
First Vice President Vice President Corporate Banking
CREDIT LYONNAIS CHICAGO BRANCH
By: ATTILA KOC
Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: ATTILA KOC
Authorised Signature
BHF-BANK
DAVID C. FRAENKEL By: LINDA M. PACE
Vice President Assistant Vice President
BANK AG CHICAGO BRANCH AND/OR CAYMAN ISLANDS BRANCH
By: DIRK A. QUAYLE By: BETH A. ROSENBERRY
Corporate Finance Director Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK AND CAYMAN ISLANDS BRANCHES
By: ELIE B. KHOURY By: LAURA SPICHIGER
Vice President Senior Credit Analyst
BAYERISCHE VEREINSBANK AG
By: MARTIN J. O'MALLEY By: THEODORE F. CEGLIA
Assistant Vice President Assistant Vice President
BANK AG, CHICAGO AND GRAND CAYMAN BRANCHES
By: E. RONALD HOLDER By: JOHN D. SINSHEIMER
Senior Vice President Vice President
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK AG, NEW YORK BRANCH
By: DAVID ROCKWELL By: STEVEN ATWELL
First Vice President Vice President
NORDDEUTSCHE LANDESBANK GIROZENTRALE
By: RUDOLF S. LIESENFELD By: STEPHEN K.HUNTER
Vice President & Controller Senior Vice President
FACILITY AGENT
NATIONAL WESTMINSTER BANK PLC
By: ERNEST V. HODGE
Vice President
SWINGLINE AGENT
NATIONAL WESTMINSTER BANK PLC
By: ERNEST V. HODGE
Vice President
CONFORMED COPY
FACILITY AGREEMENT
DATED DECEMBER 30, 1994
U.S.$ 150,000,000
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
ALLEN & OVERY
SWISS BANK TOWER
10 EAST 50TH STREET
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
CLAUSE PAGE NO.
1. Interpretation 1
2. Facilities 16
3. Purpose of the Facilities 17
4. Conditions Precedent 17
5. Utilisation of the Facilities 19
6. Reduction and Cancellation of the Total Commitments 22
7. Availability of Optional Currencies 22
8. Interest 24
9. Repayment and Prepayment of Advances 26
10. Market Disruption 26
11. Payments 27
12. Increased Costs 33
13. Illegality 34
14. Guarantee 35
15. Representations and Warranties 37
16. Covenants 40
17. Default 47
18. Accounts as Evidence 51
19. The Agents and the Arranger 51
20. Fees 54
21. Expenses 55
22. Stamp Duties 56
23. Amendments, Waivers, Remedies Cumulative 56
24. Notices 57
25. Alterations to the Contracting Parties 58
26. Set-Off 63
27. Indemnities 63
28. Pro Rata Sharing 64
29. Governing Law 65
30. Jurisdiction 65
31. Severability 66
32. Counterparts 66
33. Language 66
</TABLE>
<TABLE>
<CAPTION>
SCHEDULES
<S> <C>
Schedule 1 67
Part I - The Banks and Commitments 67
Schedule 2 68
Part I - Specified Subsidiaries 68
Part II - Other Subsidiaries 68
Schedule 3 71
Calculation of Additional Cost 71
Schedule 4 73
Form of Revolving Advance Request 73
Schedule 5 75
Form of Swingline Advance Request 75
Schedule 6 76
Form of Substitution Certificate 76
Schedule 7 79
Part I - Form of Letter of Accession for Additional Borrowers 79
Part II - Form of Letter of Accession for (Replacement) Borrowers' Agent 81
Schedule 8 83
Form of Legal Opinion of U.S. Counsel to Comdisco, Inc. 83
Schedule 9 85
Form of Legal Opinion of Allen & Overy 85
Schedule 10 88
Compliance Certificate 88
Schedule 11 99
Form of Clause 11.4(d)(i) Letter 99
Signatories 100
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