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 Credit Agreement dated as of December 20, 1994 among Comdisco, Inc.
and the banks party thereto.
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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
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EXECUTION COPY
U.S. $150,000,000
CREDIT AGREEMENT
Dated as of December 20, 1994
Among
COMDISCO, INC.
as the Company
THE BANKS PARTY HERETO
as Banks
NATIONSBANK OF NORTH CAROLINA, N.A.
as Lending Agent
and
CITIBANK, N.A.
as Administrative Agent
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T A B L E O F C O N T E N T S
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Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS 1
1.01. Certain Defined Terms 1
1.02. Other Definitions 16
1.03. Computation of Time Periods 17
1.04. Accounting Terms 17
1.05. Other Definitional Provisions 17
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS 18
2.01. The Syndicated Loans 18
2.02. Making the Syndicated Loans 18
2.03. The Term Loans 20
2.04. The Bid Rate Loans 20
2.05. Fees 25
2.06. Repayment 25
2.07. Interest on Syndicated Loans and Term Loans 25
2.08. Voluntary Conversion and Continuation of Syndicated Loans 28
2.09. Prepayments of Syndicated Loans 29
2.10. Payments and Computations 29
2.11. Right of Set-off 32
2.12. Sharing of Payments, Etc. 32
2.13. Increased Costs, Reserves and Capital 33
2.14. Taxes 34
2.15. Illegality 37
2.16. Right of Set-Off Against Defaulting Banks 38
2.17. Promissory Notes 38
ARTICLE III
CONDITIONS PRECEDENT 39
3.01. Conditions Precedent to Closing 39
3.02. Conditions Precedent to Each Borrowing and
Extension of Commitment Termination Date 40
3.03. Additional Conditions Precedent to Each Bid Rate
Borrowing 41
ARTICLE IV
REPRESENTATIONS AND WARRANTIES 42
4.01. Representations and Warranties of the Company 42
ARTICLE V
COVENANTS OF THE COMPANY 46
5.01. Affirmative Covenants 46
5.02. Reporting Covenants 47
5.03. Negative Covenants 50
5.04. Financial Covenants 54
ARTICLE VI
EVENTS OF DEFAULT 55
6.01. Events of Default 55
6.02. Remedies 58
ARTICLE VII
THE AGENTS 59
7.01. Authorization and Action 59
7.02. Nature of Agents' Duties 59
7.03. Rights, Exculpation, Etc. 60
7.04. Rights as a Bank 61
7.05. Bank Credit Decision 61
7.06. Indemnification 62
7.07. Resignation or Removal of Agents 62
ARTICLE VIII
MISCELLANEOUS 63
8.01. Amendments, Etc 63
8.02. Notices 63
8.03. No Waiver; Remedies 65
8.04. Fees and Expenses; Indemnity 65
8.05. Successors and Assigns; Subsequent Holders of Notes 67
8.06. Assignments and Participations 67
8.07. Extension of Commitment Termination Date 70
8.08. Replacement or Removal of a Bank in the Event of
an Adverse Condition 71
8.09. Confidentiality 72
8.10. Change in Accounting Principles 73
8.11. Independence of Covenants 73
8.12. Survival of Warranties and Agreements 74
8.13. Payments Set Aside 74
8.14. Severability 74
8.15. Headings 74
8.16. Governing Law 74
8.17. Limitation of Liability 74
8.18. Consent to Jurisdiction and Service of Process 75
8.19. Waiver of Jury Trial 75
8.20. Counterparts; Effectiveness; Inconsistencies 75
8.21. Construction 76
8.22. Entire Agreement 76
8.23. Additional Banks 76
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EXHIBITS
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Exhibit A - Form of Notice of Syndicated Borrowing
Exhibit B - Form of Notice of Bid Rate Borrowing
Exhibit C - Form of Notice of Conversion/Continuation
Exhibit D - Form of Compliance Certificate
Exhibit E - Form of Assignment and Acceptance
Exhibit F-1 - Form of Company Note
Exhibit F-2 - Form of Bid Rate Note
Exhibit G - Form of Request for Extension of Commitment Termination Date
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SCHEDULES
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Schedule 1.01 - Domestic Lending Offices and
Eurodollar Lending Offices
Schedule 4.01(i) - Subsidiaries
Schedule 4.01(n) - Environmental Compliance
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EXECUTION COPY
CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of December 20, 1994 among COMDISCO,
INC., a Delaware corporation, the financial institutions from time to time
party hereto as Banks, NATIONSBANK OF NORTH CAROLINA, N.A., in its capacity as
Lending Agent for the Banks hereunder, and CITIBANK, N.A., in its capacity as
Administrative Agent for the Banks hereunder.
The Company, the Banks, the Lending Agent and the Administrative
Agent hereby agree as follows:
ARTICLE I
Section 1.01. Certain Defined Terms. The following terms used above and
elsewhere in this Agreement shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Accommodation Obligation", as applied to any Person, shall mean any
Contractual Obligation, contingent or otherwise, of that Person with respect
to any Debt or other obligation or liability of another, including, without
limitation, any such Debt, obligation or liability directly or indirectly
guaranteed, endorsed (otherwise than for collection or deposit in the
ordinary course of business), co-made or discounted or sold with recourse by
that Person, or in respect of which that Person is otherwise directly or
indirectly liable, including Contractual Obligations (contingent or
otherwise) arising through any agreement to purchase, repurchase, or
otherwise acquire such Debt, obligation or liability or any security
therefor, or to provide funds for the payment or discharge thereof (whether
in the form of loans, advances, stock purchases, capital contributions or
otherwise), or to maintain solvency, assets, level of income, liquidity or
other financial condition, or to make payment other than for value received.
"Administrative Agent" means Citibank in its separate capacity as
administrative agent for the Banks hereunder and shall include any successor
Administrative Agent appointed pursuant to Section 7.07.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person.
"Agent" means the Administrative Agent or the Lending Agent.
"Aggregate Material Amount" means, at any time, an amount equal to
the higher of (i) five percent (5%) of the Consolidated Tangible Net Worth of
the Company at such time and (ii) $25,000,000.
"Agreement" means this Credit Agreement, as the same may be amended,
restated, supplemented or otherwise modified from time to time in accordance
with the terms hereof.
"Applicable Lending Office" means, with respect to each Bank, (i)
such Bank's Domestic Lending Office in the case of a Base Rate Loan, (ii)
such Bank's Eurodollar Lending Office in the case of a Eurodollar Rate Loan,
and (iii) the office of such Bank notified by such Bank to the Lending Agent
as its applicable lending office in the case of a Bid Rate Loan.
"Assignment and Acceptance" means an assignment and acceptance in
substantially the form of Exhibit D hereto pursuant to which a Bank assigns
all or a portion of such Bank's rights and obligations under this Agreement
in accordance with the terms of Section 8.06.
"Banks" means each of the financial institutions party to this
Agreement and named on the signature pages hereof as a Bank or which becomes
a party to this Agreement pursuant to an Assignment and Acceptance from a
Bank in accordance with Section 8.06.
"Base Rate" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time which rate per annum shall at
all times be equal to the highest of:
(a) the rate of interest announced publicly by NationsBank in
Charlotte, North Carolina, from time to time, as NationsBank's prime rate; or
(b) one-half of one percent (1/2 of 1%) per annum above the
Federal Funds Rate.
"Base Rate Loan" means a Syndicated Loan or a Term Loan which bears
interest as provided in Section 2.07(a)(i).
"Benefit Plan" means any employee benefit plan which is covered by
Title IV of ERISA or is subject to the minimum funding standards under
Section 412 of the Code (other than any Multiemployer Plan) and is maintained
or contributed to by the Company or any member of the Controlled Group.
"Bid Rate Borrowing" means a borrowing consisting of simultaneous
Bid Rate Loans made to the Company from each of the Banks whose offer to make
a Bid Rate Loan as part of such borrowing has been accepted by the Company
under the applicable auction bidding procedure described in Section 2.04.
"Bid Rate Loan" means a loan by a Bank to the Company as part of a
Bid Rate Borrowing resulting from the application of the auction bidding
procedure described in Section 2.04.
"Bid Rate Note" means a promissory note of the Company payable to
the order of any Bank, in substantially the form of Exhibit E-2 hereto,
evidencing the Obligations of the Company to such Bank in respect of a Bid
Rate Loan.
"Bid Rate Reduction" has the meaning specified in the definition of
"Commitment" herein.
"Borrowing" means a Syndicated Borrowing, a Term Loan Borrowing or a
Bid Rate Borrowing, as the case may be.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City, Chicago, Illinois or
Charlotte, North Carolina and, if the applicable Business Day relates to any
Eurodollar Rate Loans, on which dealings are carried on in the London
interbank market.
"Buy-Lease" means (a) any lease of any Equipment by the Company as
lessee, or (b) any conditional sale or similar arrangement providing for the
purchase of any Equipment by the Company and the retention by the seller
thereof of a Lien in such Equipment to secure the payment of amounts payable
thereunder by the Company.
"Citibank" means Citibank, N.A., a national banking association.
"Closing Date" means the date on which all of the conditions
precedent set forth in Section 3.01 are satisfied in full.
"Code" means the Internal Revenue Code 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.
"Commitment" means, for each Bank, the amount set forth opposite
such Bank's name under the heading "Commitment" on the signature pages hereof
or, if such Bank has entered into one or more Assignments and Acceptances,
set forth for such Bank in the Register, as such amount may be reduced or
otherwise adjusted from time to time pursuant to the terms of this Agreement;
and "Commitments" means the aggregate obligation of the Banks to make Loans
pursuant to the terms of this Agreement, and shall on the Closing Date be in
an amount equal to One Hundred Fifty Million Dollars ($150,000,000), as such
amount may from time to time be adjusted in accordance with the terms of this
Agreement; provided, that the Commitments shall be deemed used from time to
time to the extent of the aggregate amount of the Bid Rate Loans then
outstanding and such deemed use of the Commitments shall be applied to the
Banks ratably according to their Pro Rata Shares (such deemed use of the
Commitment being a "Bid Rate Reduction").
"Commitment Termination Date" means December 18, 1995, as such date
may be extended pursuant to Section 8.07.
"Company" means Comdisco, Inc., a Delaware corporation, and includes
its successors (including, without limitation, a receiver, trustee or
debtor-in-possession of or for the Company) and permitted assigns.
"Company Note" means a promissory note of the Company payable to the
order of any Bank, in substantially the form of Exhibit F-1 hereto,
evidencing the aggregate Obligations of the Company (other than Obligations
in respect of Bid Rate Loans) to such Bank.
"Compliance Certificate" means a certificate, substantially in the
form of Exhibit D hereto, executed by the Chief Executive Officer or Chief
Financial Officer or Controller of the Company, together with all schedules
annexed thereto.
"Continue", "Continuation" and "Continued" each refers to a
continuation of Term Loans of one Type into Term Loans of another Type
pursuant to Section 2.08.
"Contract" shall mean:
(a) any lease of any Equipment by the Company or any of its
Subsidiaries (in each case as lessor);
(b) any conditional sale or similar arrangement providing
for the sale by the Company or any of its Subsidiaries of any Equipment and
for the retention by the Company or such Subsidiary of a Lien in such
Equipment to secure the payment of amounts payable thereunder by the
purchaser thereof; or
(c) any note (and any related loan or other agreement)
evidencing a loan by the Company or any of its Subsidiaries to finance the
acquisition (including an acquisition theretofore made) of any Equipment and
secured by a Lien on such Equipment;
and "related Contract" means, when used with reference to any Equipment,
the Contract covering or secured by such Equipment.
"Contract Receivable" shall mean all amounts due and to become due
from time to time under each Contract from the Obligor thereunder to the
Company or one of its Subsidiaries, whether or not subject to any termination
or similar option, including, without limitation, (a) 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 Obligor, (b) 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 Obligor, and (c) 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 Obligor; and "related Contract Receivable" means
the Contract Receivable with respect to a specified Contract.
"Contractual Obligation", as applied to any Person, shall mean any
provision of any securities issued by that Person or any indenture, mortgage,
deed of trust, contract, undertaking, document, instrument or other agreement
or instrument to which that Person is a party or by which it or any of its
properties is bound, or to which it or any of its properties is subject
(including, without limitation, any restrictive covenant affecting such
Person or any of its properties).
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Company, are treated as a single
employer under Section 414(b), 414(c) or 414(m) of the Code and Section
4001(a)(14) of ERISA.
"Convert", "Conversion" and "Converted" each refers to a conversion
of Syndicated Loans of one Type into Syndicated Loans of another Type, or a
conversion of Term Loans of one Type into Term Loans of another Type, in each
case pursuant to Section 2.08.
"Credit Documents" means this Agreement, the Notes, guaranties and
other agreements, instruments and written indicia of Contractual Obligations
between the Company and the Agents or the Banks by or on behalf of the
Company pursuant to or in connection with the transactions contemplated
hereby.
"Debt" means, with respect to any Person, without duplication, (i)
all indebtedness, obligations or other liabilities of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, acceptances, notes or other similar instruments, (iii) all
reimbursement obligations and other liabilities of such Person with respect
to letters of credit issued for such Person's account, (iv) all obligations
of such Person to pay the deferred purchase price of property or services,
(v) all obligations of such Person as lessee under leases which shall have
been or should be, in accordance with GAAP, recorded on such Person's balance
sheet as capital leases, (vi) all indebtedness, obligations or other
liabilities of such Person or others secured by a Lien on any asset of such
Person, whether or not such indebtedness, obligations or liabilities are
assumed by or are a personal liability of such Person, and (vii) obligations
of such Person under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses (i) through (vi)
above.
"Dollars" and the sign "$" each means the lawful money of the United
States.
"Domestic Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Domestic Lending Office" opposite its
name on Schedule 1.01 hereto or in the Assignment and Acceptance pursuant to
which it became a Bank, or such other office of such Bank as such Bank may
from time to time specify to the Company, the Lending Agent and the
Administrative Agent.
"Eligible Contract" means any Contract which satisfies all of the
following requirements:
(a) the Obligor thereunder is not an Affiliate of the Company;
(b) the Company or a Subsidiary of the Company is (i) the
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 or potential offset,
counterclaim or other defense with respect to any amount due or to become due
under such Contract whether related to the Contract or otherwise,
(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 mature 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, reorganization, debt arrangement
or other proceeding under any bankruptcy or insolvency law, or any
dissolution or liquidation proceeding, instituted by or against such Obligor;
or taken any corporate action to authorize any of the foregoing; provided,
however, that any Contract which is not an Eligible Contract solely due to
the provisions of this clause (iii) shall become an Eligible Contract 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", when used with reference to any Contract, means the Equipment
subject to or securing such Contract.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" shall mean any (i) corporation which is a member
of the same controlled group of corpora-tions (within the meaning of Section
414(b) of the Code) as the Company; (ii) partnership, trade or business
(whether or not incorporated) which is under common control (within the
meaning of Section 414(c) of the Code) with the Company; and (iii) member of
the same affiliated service group (within the meaning of Section 414(m) of
the Code) as the Company, any corporation described in clause (i) or any
partner-ship, trade or business described in clause (ii).
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Bank, the
office of such Bank specified as its "Eurodollar Lending Office" opposite its
name on Schedule 1.01 hereto or in the Assignment and Acceptance pursuant to
which it became a Bank (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Bank as such Bank may from time
to time specify to the Company, the Lending Agent and the Administrative
Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Loan comprising part of the same Borrowing, an interest rate per annum
equal to the average (rounded upward to the nearest whole multiple of
one-sixteenth of one percent (1/16 of 1%) per annum, if such average is not
such a multiple) of the rates per annum at which deposits in Dollars are
offered by the principal office of each of the Reference Banks in London,
England to prime banks in the London interbank market at 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period in an
amount substantially equal to such Reference Bank's Eurodollar Rate Loan
comprising part of such Borrowing and for a period equal to such Interest
Period. The Eurodollar Rate for any Interest Period for each Eurodollar Rate
Loan comprising part of the same Borrowing shall be determined by the Lending
Agent on the basis of applicable rates furnished to and received by the
Lending Agent from the Reference Banks two Business Days before the first day
of such Interest Period, subject, however, to the provisions of Section 2.07.
"Eurodollar Rate Loan" means a Syndicated Loan or a Term Loan which
bears interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" of any Bank for any Interest
Period for any Eurodollar Rate Loan means the reserve percentage applicable
during such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable)
under regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental or
other marginal reserve requirement) for such Bank with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities having a term
equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Lending Agent
from three Federal funds brokers of recognized standing selected by it.
"Final Maturity Date" means the earlier of (i) the date one year
after the Commitment Termination Date and (ii) the acceleration of the Loans
and other Obligations pursuant to Section 6.02 hereof; provided, that if the
Syndicated Loans are not converted into Term Loans pursuant to Section 2.03,
then the Final Maturity Date shall be the Commitment Termination Date.
"Fiscal Year" means a fiscal year of the Company.
"Fixed Rate Auction" has the meaning specified in Section
2.04(b)(i).
"GAAP" means generally accepted accounting principles as in effect
from time to time in the United States, as set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute
of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board, or in such other statements by such
other entities as may be in general use by significant segments of the
accounting profession, which are applicable to the circumstances as of the
date of determination.
"Global Credit Agreement" means that certain Third Amended and
Restated Global Credit Agreement of even date herewith among the Company,
certain of its Subsidiaries, the financial institutions from time to time
party thereto, NationsBank, as bid agent thereunder, and Citibank, as
administrative agent thereunder, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"Governmental Authority" shall mean any nation or government, any
federal, state, local or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Indexed Rate Auction" has the meaning specified in Section
2.04(b)(i).
"Individual Material Amount" means, at any time, an amount equal to
the higher of (i) two percent (2%) of the Consolidated Tangible Net Worth of
the Company at such time and (ii) $10,000,000.
"Interest Period" means, for each Eurodollar Rate Loan comprising
part of the same Borrowing, the period commencing on the date of the making
of such Loan or the Conversion or Continuation of a Loan into such Loan and
ending on the last day of the period selected by the Company pursuant to the
provisions below. Each such Interest Period shall be a period of one, two,
three, six or nine months, as the Company may select pursuant to the terms of
this Agreement; provided, however, that:
(a) Interest Periods commencing on the same date for Loans
comprising part of the same Borrowing shall be of the same duration;
(b) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding Business
Day, provided, that if such extension would cause the last day of such
Interest Period to occur in the next following calendar month, the last day
of such Interest Period shall occur on the next preceding Business Day; and
(c) the last day of each Interest Period shall be on or before
the Final Maturity Date.
"Lending Agent" means NationsBank in its separate capacity as
lending agent for the Banks hereunder and shall include any successor Lending
Agent appointed pursuant to Section 7.07.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, collateral deposit arrange-ment, security
interest, encumbrance (including, but not limited to, easements, rights of
way, zoning restrictions, restrictive covenants and the like), lien
(statutory or other), 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, the
interest of a lessor under a lease which has been or should be (in accordance
with GAAP) recorded on the lessor's balance sheet as a capital lease, and the
filing of any financing statement (other than a financing statement filed by
a "true" lessor pursuant to 9-408 of the Uniform Commercial Code or an
equivalent statute) naming the Company or any of its Subsid-iaries as owner
of the collateral to which such Lien relates as debtor, under the Uniform
Commercial Code or other comparable law of any jurisdiction.
"Limited Recourse Obligation" means any obligation of the Company or
any of its Subsidiaries with respect to which a portion, but not all, of the
Company's or such Subsidiary's liability thereunder constitutes a
Non-Recourse Obligation.
"Loan" means any Syndicated Loan, Term Loan or Bid Rate Loan, as the
case may be.
"Majority Banks" means Banks whose Pro Rata Shares aggregate to more
than 50%.
"Material Subsidiary" means any Subsidiary of the Company which
either (i) has total assets, determined in accordance with GAAP, of at least
$20,000,000 at the time of such calculation or (ii) has net cash provided by
continuing operations (determined, for any fiscal quarter, in accordance with
GAAP) which constitutes five percent (5%) or more of the consolidated net
cash provided by continuing operations of the Company and its Subsidiaries;
it being understood that once a Subsidiary of the Company is a Material
Subsidiary it shall remain as such for the purposes of this Agreement
notwithstanding any subsequent decrease in its total assets or net cash
provided by continuing operations; provided, that if a Material Subsidiary no
longer satisfies either condition set forth above and the Board of Directors
of the Company determines that such Subsidiary is not material to the
consolidated financial condition or operations of the Company and its
Subsidiaries, then for so long as such Subsidiary satisfies neither such
condition, such Subsidiary shall not be a Material Subsidiary.
"MOF" means collectively, (i) that certain Facility Agreement dated
as of June 4, 1991 among the Company, National Westminster Bank PLC, Barclays
Bank PLC and the banks from time to time party thereto, as the same has been
and may from time to time hereafter be amended, restated, supplemented or
otherwise modified, and (ii) that certain Facility Agreement dated as of
December 30, 1994 among the Company, National Westminster Bank PLC, Barclays
Bank PLC and the banks from time to time party thereto, as the same has been
and may from time to time hereafter be amended, restated, supplemented or
otherwise modified.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA which is contributed to by the Company or any
member of the Controlled Group.
"NationsBank" means NationsBank of North Carolina, N.A., a national
banking association.
"Non-Recourse Obligation" means any obligation of the Company or any
of its Subsidiaries incurred to finance any Equipment or the purchase or
lease thereof which is secured by a Lien on (and only on) such Equipment, any
related Contract, the related Contract Receivable, proceeds of insurance
covering such Equipment, any insurance policy from insureds 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) neither the Company nor any Subsidiary of the Company
in any respect guarantees or otherwise becomes responsible for the
performance of any warranty or agreement of the Obligor under any related
Contract; and
(c) neither the Company nor any Subsidiary of the Company
has any liability in connection with such Non_Recourse Obligation, except for
warranties as to genuineness of signatures, the Company's or such
Subsidiary's title to or interest in the related Equipment and similar
warranties as not being inconsistent with a non_recourse obligation with
respect to such Equipment and the related Contract.
"Non-Recourse Subsidiary" means any Subsidiary of the Company where
(i) all of the assets of such Subsidiary were acquired and all of the Debts
of such Subsidiary were incurred in a single transaction, (ii) all Debts of
such Subsidiary constitute claims only against such Subsidiary, and (iii)
neither the Company nor any other Subsidiary of the Company shall have
incurred any Accommodation Obligations with respect to any Debts of such
Subsidiary.
"Note" means a Bid Rate Note or a Company Note.
"Notice of Bid Rate Borrowing" has the meaning specified in Section
2.04(b)(i).
"Notice of Conversion/Continuation" has the meaning specified in
Section 2.08(b).
"Notice of Syndicated Borrowing" has the meaning specified in
Section 2.02(a).
"Obligations" means all present and future Debt and other
liabilities of the Company under any of the Credit Documents owing to either
Agent, any Bank, or any Person entitled to indemnification pursuant to
Sec-tion 8.04, or any of their respective successors, transferees or assigns,
of every type and description, arising under or in connection with this
Agreement, the Notes or any other Credit Document or the trans-actions
contemplated hereby or thereby, whether or not for the payment of money,
whether arising by reason of any extension of credit, any loan, guaranty,
indemnification, or in any other manner, whether direct or indirect
(includ-ing those acquired by assignment), absolute or contin-gent, due or to
become due, now existing or hereafter arising and however acquired. The term
includes, without limitation, all interest, charges, expenses, fees,
attorneys' fees and disbursements and any other sum chargeable to the Company
under this Agreement, the Notes or any other Credit Document.
"Obligor" means the lessee, purchaser or borrower under a Contract.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture or other entity, or a government or any political subdivision
or agency thereof.
"Plan" means any employee benefit plan defined in Section 3(3) of
ERISA in respect of which the Company or any member of the Controlled Group
is, or within the immediately preceding five years was, an "employer" as
defined in Section 3(5) of ERISA.
"Pro Rata Share" shall mean, with respect to any Bank, (i) at any
time prior to the Termination Date, a fraction (expressed as a percentage),
the numerator of which shall be the then current amount of such Bank's
Commitment and the denominator of which shall be the then current Total
Commitments, or (ii) at any time on or after the Termination Data, a fraction
(expressed as a percentage), the numerator of which shall be the then
outstanding principal amount of such Bank's Syndicated Loans or Term Loans
(as the case may be), and the denominator of which shall be the then
aggregate outstanding principal amount of all of the Banks' Syndicated Loans
or Term Loans (as the case may be), in each case as adjusted from time to
time in accordance with the provisions of Section 8.06.
"Reference Banks" means Citibank and NationsBank, and shall include
their respective successors.
"Register" has the meaning specified in Section 8.06(c).
"Requirements of Law" shall mean, as to any Person, the charter and
by-laws or other organizational or governing docu-ments of such Person, and
any law, 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, including, without limitation, the Securities Act of 1933, the
Securities Exchange Act of 1934, Regulations G, U and X of the Board of
Governors of the Federal Reserve System, and any certificate of occupancy,
zoning ordinance, building, environmental or land use requirement, approval,
permit or license or occupational safety or health law, rule or regula-tion.
"Sale and Leaseback" has the meaning specified in Section 12.03(d).
"Senior Unsecured Indebtedness" means all unsecured Debt of the
Company other than Subordinated Debt.
"Subordinated Debt" means any Debt of the Company or any Subsidiary
of the Company for money borrowed which is expressed to be subordinate to any
other Debt of the Company or such Subsidiary.
"Subsidiary" of a Person means any corporation, partnership (limited
or general), trust or other entity of which a majority of the stock (or
equivalent ownership or controlling interest) having voting power to elect a
majority of the Board of Directors (if a corporation) or to select the
trustee or equivalent controlling interest, shall, at the time such reference
becomes operative, be directly or indirectly owned or controlled by such
Person or one or more of the other Subsidiaries of such Person or any
combination thereof.
"Syndicated Borrowing" means a borrowing consisting of simultaneous
Syndicated Loans of the same Type (and, if Eurodollar Rate Loans, having the
same Interest Period) made to the Company by the Banks pursuant to Section
2.01, or Converted pursuant to Section 2.08.
"Syndicated Loan" means a loan by a Bank to the Company pursuant to
Section 2.01, and refers to either a Base Rate Loan or a Eurodollar Rate
Loan.
"Term Loan" means a loan by a Bank to the Company pursuant to
Section 2.03, and refers to either a Base Rate Loan or a Eurodollar Rate
Loan.
"Term Loan Borrowing" means a portion of the aggregate outstanding
principal amount of the Term Loans, allocated among the Banks in accordance
with their Pro Rata Shares, of the same Type (and, if Eurodollar Rate Loans,
have the same Interest Period).
"Termination Date" means the earlier of the Commitment Termination
Date or the date of the termination in whole of the Commitments pursuant to
Section 6.02.
"Type" means, with respect to a Syndicated Loan or a Term Loan, the
nature thereof as either a Base Rate Loan or a Eurodollar Rate Loan.
"Unmatured Event of Default" means any event or condition which,
with the passage of time or the giving of notice or both, would constitute an
Event of Default.
Section 1.02. Other Definitions. (a) The following terms, used in this
Agreement in connection with the calculation of the financial covenants
hereunder, have the meanings specified in the Compliance Certificate:
"Fixed Charge Coverage Ratio"
"Net Book (or Residual) Value"
"Net Cash Provided by Operating Activities Ratio"
"Ratio of Unencumbered Cash Flow to
Contractual Payments"
"Recourse Liabilities Ratio"
"Remarketing Revenues"
"Total Liabilities to Adjusted Net Worth Ratio"
(b) The following terms, used in this Agreement in connection with
the calculation of the financial covenants hereunder, shall have the following
meanings:
"Consolidated Net Income" has the meaning given to such term in
accordance with GAAP.
"Consolidated Tangible Net Worth" means, at any time, the
consolidated capital (including in excess of par value) and retained earnings
of the Company and its Subsidiaries (excluding, however, the deferred
translation adjustment, if any, to the Company's shareholders' equity) less
all franchises, patents, patent applications, trademarks, goodwill, research
and development expense, the after_tax effect of unamortized debt discount
and any other unamortized debt expense, and other intangibles, calculated in
accordance with Schedule 1 to the Compliance Certificate.
"Cumulative Net Losses" means net losses exclusive of losses arising
from the scheduled amortization or write-off of intangible assets (determined
in connection with the computation of Consolidated Net Income) as calculated
in accordance with Section 5.04 and Schedule 7 to the Compliance Certificate.
"Earnings from Continuing Operations Before Taxes" means the
earnings from continuing operations of the Company and its Subsidiaries
before any adjustments for or on account of any income taxes, exclusive of
any earnings or losses arising from the scheduled amortization or write-off
of intangible assets.
Section 1.03. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each means "to but excluding".
Section 1.04. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP in a manner
consistent with the preparation of the financial statements referred to in
Section 5.02(a).
Section 1.05. Other Definitional Provisions. References to "Articles,"
"Sections," "subsections," "Schedules" and "Exhibits" shall be to Articles,
Sections, subsections, Schedules and Exhibits, respectively, of this
Agreement unless otherwise specifically provided. As used in this Agreement,
singular terms shall include the plural and plural terms shall include the
singular unless the context otherwise requires, and terms importing any
gender shall include the other gender.
ARTICLE II
Section 2.01. The Syndicated Loans. Each Bank severally and not jointly
agrees, on the terms and conditions hereinafter set forth, to make Syndicated
Loans in Dollars to the Company from time to time on any Business Day during
the period from the date hereof until the Termination Date in an aggregate
amount not to exceed at any time outstanding such Bank's Pro Rata Share of
the Commitments as in effect from time to time. Each Syndicated Borrowing
shall be in an aggregate amount equal to $5,000,000 or an integral multiple
of $1,000,000 in excess thereof and shall consist of Syndicated Loans of the
same Type made on the same day by the Banks ratably according to their
respective Pro Rata Shares. Within the limits of the Commitments and subject
to the terms of this Agreement, the Company may borrow, prepay pursuant to
Section 2.09 and reborrow under this Section 2.01.
Section 2.02. Making the Syndicated Loans.
(a) Each Syndicated Borrowing shall be made on written notice
(each, a "Notice of Syndicated Borrowing") from the Company to the Lending
Agent, given not later than (i) 10:00 A.M. (New York time) on the date of a
proposed Syndicated Borrowing of Base Rate Loans, and (ii) 11:00 A.M. (New
York time) on the third Business Day prior to the date of a proposed
Syndicated Borrowing of Eurodollar Rate Loans. Each Notice of Syndicated
Borrowing shall be by telecopier or other form of teletransmission, in
substantially the form of Exhibit A hereto, specifying therein the requested
(i) date of such Syndicated Borrowing (which shall be a Business Day), (ii)
Type of Syndicated Loans comprising such Syndicated Borrowing, (iii) aggregate
amount of such Syndicated Borrowing, and (iv) in the case of a Syndicated
Borrowing comprised of Eurodollar Rate Loans, Interest Period for each such
Syndicated Loan. In lieu of delivering the above-described Notice of
Syndicated Borrowing, the Company may give the Lending Agent telephonic notice
of any proposed Syndicated Borrowing by the time required under this Section
2.02(a); provided, that the Company agrees to confirm such notice in writing
by facsimile transmission of an executed Notice of Syndicated Borrowing to the
Lending Agent no later than 5:00 P.M. (New York time) on the same day;
provided further, however, that any failure by the Company to so confirm any
telephonic notice shall in no event impair the validity of such telephonic
notice.
(b) Promptly after receipt of a Notice of Syndicated Borrowing
under Section 2.02(a) (or telephonic notice in lieu thereof), the Lending
Agent shall notify each Bank by telecopy or other form of teletransmission of
the proposed Syndicated Borrowing. Each Bank shall, before 11:00 A.M. (New
York time) (in the case of a Syndicated Borrowing of Eurodollar Rate Loans) or
2:00 P.M. (New York time) (in the case of a Syndicated Borrowing of Base Rate
Loans) on the date of such Syndicated Borrowing, make the amount of its
Syndicated Loan available to the Lending Agent, at its address referred to in
Section 8.02, in Dollars and in same day funds. After the Lending Agent's
receipt of such funds and upon fulfillment of the applicable conditions set
forth in Section 3.02, the Lending Agent will make such funds available to the
Company at the Lending Agent's aforesaid address.
(c) Anything in subsection (a) above to the contrary
notwithstanding, the Company may not select Eurodollar Rate Loans for any
Syndicated Borrowing if any Event of Default or Unmatured Event of Default has
occurred and is then continuing.
(d) Each Notice of Syndicated Borrowing (or telephonic notice in
lieu thereof) shall be irrevocable and binding on the Company. In the case of
any Syndicated Borrowing which the related Notice of Syndicated Borrowing (or
telephonic notice in lieu thereof) specifies is to be comprised of Eurodollar
Rate Loans, the Company shall indemnify each Bank against any loss, cost or
expense incurred by such Bank as a result of any failure to fulfill on or
before the date specified in such Notice of Syndicated Borrowing (or
telephonic notice in lieu thereof) for such Syndicated Borrowing the
applicable conditions set forth in Section 3.02, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Bank to fund the Syndicated Loan to be made by such
Bank as part of such Syndicated Borrowing when such Syndicated Loan, as a
result of such failure, is not made on such date.
(e) Unless the Lending Agent shall have received notice from a Bank
prior to the date of any Syndicated Borrowing that such Bank will not make
available to the Lending Agent such Bank's ratable portion of such Syndicated
Borrowing, the Lending Agent may assume that such Bank has made such portion
available to the Lending Agent on the date of such Syndicated Borrowing in
accordance with subsection (b) of this Section 2.02 and the Lending Agent in
its sole discretion may, in reliance upon such assumption, make available to
the Company on such date a corresponding amount. If and to the extent that
such Bank shall not have so made such ratable portion available to the Lending
Agent, such Bank and the Company severally agree to repay to the Lending Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Company until
the date such amount is repaid to the Lending Agent, at (i) in the case of the
Company, the interest rate applicable at the time to Syndicated Loans
comprising such Syndicated Borrowing and (ii) in the case of such Bank, the
Federal Funds Rate. If such Bank shall repay to the Lending Agent such
corresponding amount, such amount so repaid shall constitute such Bank's
Syndicated Loan as part of such Syndicated Borrowing for purposes of this
Agreement.
(f) The failure of any Bank to make the Syndicated Loan to be made
by it as part of any Syndicated Borrowing shall not relieve any other Bank of
its obligation, if any, hereunder to make its Syndicated Loan on the date of
such Syndicated Borrowing, but no Bank shall be responsible for the failure of
any other Bank to make the Syndicated Loan to be made by such other Bank on
the date of any Syndicated Borrowing.
Section 2.03. The Term Loans. On the Commitment Termination Date, all
Syndicated Loans outstanding shall, on and as of such date, be converted into
term loans by the Banks to the Company (individually, a "Term Loan" and,
collectively, the "Term Loans"), each with an unpaid principal amount equal
to the amount of the applicable Syndicated Loan; provided, that such
conversion shall not occur if an Event of Default or an Unmatured Event of
Default shall have occurred and be continuing on the Commitment Termination
Date, or if the Termination Date shall have already occurred. Upon the terms
and subject to the conditions of this Agreement, the Company may elect to
designate Borrowings of the Term Loans as Base Rate Loans or Eurodollar Rate
Loans. The Term Loans shall be repayable in accordance with the terms hereof
and, once repaid, may not be reborrowed (it being understood that Conversions
and Continuations of all or any part of the Term Loans pursuant to
Section 2.08 shall not constitute repayment of such Term Loans).
Section 2.04. The Bid Rate Loans. (a) Each Bank severally agrees that the
Company may make Bid Rate Borrowings in Dollars under this Section 2.04 from
time to time on any Business Day during the period from the Closing Date
until the date occurring thirty (30) days prior to the Termination Date in
the manner set forth below; provided, that following the making of each Bid
Rate Borrowing, the aggregate amount of the Syndicated Loans and Bid Rate
Loans then outstanding shall not exceed the Commitments in effect at such
time (computed without regard to any Bid Rate Reduction).
(b) The procedures for the solicitation and acceptance of Bid Rate
Loans are as follows:
(i) The Company may request a Bid Rate Borrowing under this Section
2.04(b) by delivery to the Lending Agent of written notice (each, a "Notice
of Bid Rate Borrowing"), given not later than 10:00 A.M. (New York time) (A)
one Business Day prior to the date of the proposed Bid Rate Borrowing, if the
Company shall specify in the Notice of Bid Rate Borrowing that the rates of
interest to be offered by the Banks shall be fixed rates per annum (such type
of solicitation being a "Fixed Rate Auction") and (B) four Business Days
prior to the date of the proposed Bid Rate Borrowing, if the Company shall
instead specify in the Notice of Bid Rate Borrowing an index or other basis
to be used by the Banks in determining the rates of interest to be offered by
them (such type of solicitation being an "Indexed Rate Auction"). Each
Notice of Bid Rate Borrowing shall be by telecopier or other form of
teletransmission, in substantially the form of Exhibit B hereto, specifying
therein (i) the requested date of such Bid Rate Borrowing (which shall be a
Business Day), (ii) the requested aggregate amount of such Bid Rate
Borrowing, (iii) the requested maturity date for repayment of each Bid Rate
Loan to be made as part of such Bid Rate Borrowing (which maturity date may
not be earlier than the date occurring thirty (30) days after the date of
such Bid Rate Borrowing or later than the earlier of (1) the date occurring
ninety (90) days after the date of such Bid Rate Borrowing and (2) the
Termination Date), (iv) the requested interest payment schedule with respect
to the Bid Rate Loans comprising such Bid Rate Borrowing, (v) the basis to be
used by the Banks in determining the rates of interest to be offered by them,
and (vi) such other terms applicable to such Bid Rate Borrowing. The Lending
Agent shall, promptly following its receipt of a Notice of Bid Rate Borrowing
under this Section 2.04(b), notify each Bank of such request by sending such
Bank a copy of such Notice of Bid Rate Borrowing.
(ii) Each Bank may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more Bid Rate Loans to the Company as part
of such proposed Bid Rate Borrowing at a rate or rates of interest specified
by such Bank in its sole discretion, by notifying the Lending Agent (which
shall give prompt notice thereof to the Company), before 10:00 A.M. (New York
time) (A) on the date of such proposed Bid Rate Borrow-ing, in the case of a
Fixed Rate Auction, and (B) two Business Days before the date of such
proposed Bid Rate Borrowing, in the case of an Indexed Rate Auction, of the
minimum amount and maximum amount of each Bid Rate Loan which such Bank would
be willing to make as part of such proposed Bid Rate Borrowing (which amounts
may, subject to the proviso to Section 2.04(a), exceed such Bank's Pro Rata
Share of the Commitments), the rate or rates of interest therefor and such
Bank's Applicable Lending Office with respect to such Bid Rate Loan.
(iii) The Company shall, in turn, before 12:00 noon (New York time)
(A) on the date of such proposed Bid Rate Borrowing, in the case of a Fixed
Rate Auction, and (B) two Business Days before the date of such proposed Bid
Rate Borrowing, in the case of an Indexed Rate Auction, either:
(x) cancel such Bid Rate Borrowing by giving the Lending Agent
notice (which may be by telephone, confirmed promptly in writing by
facsimile) to that effect, or
(y) accept, subject to Sections 2.04(c) and (d), one or more
of the offers made by any Bank or Banks pursuant to paragraph (ii) above, in
its sole discretion, by giving notice (which may be by telephone, confirmed
promptly in writing by facsimile) to the Lending Agent of the amount of each
Bid Rate Loan (which amount shall be equal to or greater than the minimum
amount, and equal to or less than the maximum amount, notified to the Company
by the Lending Agent on behalf of such Bank for such Bid Rate Loan pursuant
to paragraph (ii) above) to be made by each Bank as part of such Bid Rate
Borrowing, and reject any remaining offers made by Banks pursuant to
paragraph (ii) above by giving the Lending Agent notice to that effect.
(iv) If the Company notifies the Lending Agent that such Bid Rate
Borrowing is cancelled pursuant to paragraph (iii)(x) above, the Lending
Agent shall give prompt notice thereof to the Banks and such Bid Rate
Borrowing shall not be made.
(v) If the Company accepts one or more of the offers made by any
Bank or Banks pursuant to paragraph (iii)(y) above, the Lending Agent shall
in turn promptly notify (A) each Bank that has made an offer as described in
paragraph (ii) above of the date and aggregate amount of such Bid Rate
Borrowing and whether or not any offer or offers made by such Bank pursuant
to paragraph (ii) above have been accepted by the Company, (B) each Bank that
is to make a Bid Rate Loan as part of such Bid Rate Borrowing, of the amount
of each Bid Rate Loan to be made by such Bank as part of such Bid Rate
Borrowing, and (C) each Bank that is to make a Bid Rate Loan as part of such
Bid Rate Borrowing, upon receipt, that the Lending Agent has received forms
of documents appearing to fulfill the applicable conditions set forth in
Article III. Each Bank that is to make a Bid Rate Loan as part of such Bid
Rate Borrowing shall, before 1:00 P.M. (New York time) on the date of such
Bid Rate Borrowing specified in the notice received from the Lending Agent
pursuant to clause (A) of the preceding sentence or any later time when such
Bank shall have received notice from the Lending Agent pursuant to clause (C)
of the preceding sentence, make available for the account of its Applicable
Lending Office to the Lending Agent at its address referred to in Section
8.02 such Bank's portion of such Bid Rate Borrowing, in Dollars and in same
day funds. Upon fulfillment of the applicable conditions set forth in
Article III and after receipt by the Lending Agent of such funds, the Lending
Agent will make such funds available to the Company at the Lending Agent's
aforesaid address. Promptly after each Bid Rate Borrowing the Lending Agent
will notify each Bank of the amount of the Bid Rate Borrowing, the consequent
Bid Rate Reduction and the dates upon which such Bid Rate Reduction commenced
and will terminate.
(c) Each Bid Rate Borrowing shall be in an aggregate amount of
$25,000,000 or an integral multiple of $1,000,000 in excess thereof (but in no
case may it exceed the aggregate amount of Bid Rate Loans requested in the
applicable Notice of Bid Rate Borrowing). Following the making of each Bid
Rate Borrowing, the Company shall be in compliance with the limitation set
forth in the proviso to the first sentence of subsection (a) above.
(d) Each acceptance by the Company pursuant to Section
2.04(b)(iii)(y) of the offers made in response to a Notice of Bid Rate
Borrowing shall be treated as an acceptance of such offers in ascending order
of the rates or margins, as applicable, at which the same were made but if, as
a result thereof, two or more offers at the same such rate or margin would be
partially accepted, then the amounts of the Bid Rate Loans in respect of which
such offers are accepted shall be treated as being the amounts which bear the
same proportion to one another as the respective amounts of the Bid Rate Loans
so offered bear to one another but, in each case, rounded as the Lending Agent
may consider necessary to ensure that the amount of each such Bid Rate Loan is
$500,000 or an integral multiple thereof.
(e) Within the limits and on the conditions set forth in this
Section 2.04, the Company may from time to time borrow under this Section
2.04, repay pursuant to subsection (f) below, and reborrow under this Section
2.04.
(f) The Company shall repay to the Lending Agent for the account of
each Bank which has made a Bid Rate Loan or (if different) for the account of
the holder of the applicable Bid Rate Note, on the maturity date of each Bid
Rate Loan (such maturity date being that specified by the Company for
repayment of such Bid Rate Loan in the related Notice of Bid Rate Borrowing
and provided in the Bid Rate Note evidencing such Bid Rate Loan), the then
unpaid principal amount of such Bid Rate Loan. The Company shall not have the
right to prepay any principal amount of any Bid Rate Loan except (i) if, and
then only on the terms, specified by the Company for such Bid Rate Loan in the
related Notice of Bid Rate Borrowing and set forth in the Bid Rate Note
evidencing such Bid Rate Loan, and (ii) in the case of the replacement or
removal of a Bank pursuant to Section 8.08, provided, that in the case of this
clause (ii), the Company shall pay, on demand of such Bank, to the Lending
Agent for the account of such Bank, any amounts required to compensate such
Bank for any additional losses, costs or expenses which it may reasonably
incur as a result of such prepayment, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Bank to fund or maintain such Bid Rate Loan.
(g) The Company shall pay interest on the unpaid principal amount
of each Bid Rate Loan, from the date of such Bid Rate Loan to the date the
principal amount of such Bid Rate Loan is repaid in full, at the rate of
interest for such Bid Rate Loan specified by the Bank making such Bid Rate
Loan in the related notice submitted by such Bank pursuant to Section
2.04(b)(ii), payable on the interest payment date or dates specified by the
Company for such Bid Rate Loan in such Notice of Bid Rate Borrowing, in each
case as provided in the Bid Rate Note evidencing such Bid Rate Loan.
(h) The indebtedness of the Company resulting from each Bid Rate
Loan shall be evidenced by a separate Bid Rate Note payable to the order of
the Bank making such Bid Rate Loan.
Section 2.05. Fees. (a) The Company agrees to pay to the Administrative
Agent, for the account of each Bank, a facility fee in an amount equal to
fifteen-hundredths of one percent (0.15%) per annum applied to each Bank's Pro
Rata Share of (i) the average daily Commitments (irrespective of usage and
without giving effect to any Bid Rate Reduction) from the Closing Date (or, if
applicable, from the effective date specified in an Assignment and Acceptance
pursuant to which it became a Bank hereunder) until the Termination Date and
(ii) the outstanding Syndicated Loans from the Termination Date until the
payment of the Syndicated Loans in full, in each case payable in arrears on
(x) the last Business Day of each calendar quarter, commencing December 31,
1994, (y) the Termination Date and (z) the date the Syndicated Loans are paid
in full.
(b) The Company shall also pay such fees and expenses to the Agents
as the Company and the Agents may separately agree.
Section 2.06. Repayment. The Company shall repay the principal amount of
(a) each Base Rate Loan on the Final Maturity Date, (b) each Eurodollar Rate
Loan constituting a Syndicated Loan on the earlier of (i) the last day of the
Interest Period for such Loan or (ii) the Final Maturity Date, and (c) each
Eurodollar Rate Loan constituting a Term Loan on the Final Maturity Date.
Section 2.07. Interest on Syndicated Loans and Term Loans. (a) Subject to
Section 2.07(b) below, the Company shall pay interest on the unpaid principal
amount of each Syndicated Loan or Term Loan owing to each Bank from the date
of such Loan until such principal amount shall be paid in full, at the
following rates per annum and at the following times:
(i) Base Rate Loans. If such Loan is a Base Rate Loan, a rate per
annum equal at all times to the Base Rate in effect from time to time,
payable on the last day of each calendar quarter and on any date such Base
Rate Loan is Converted or paid in full.
(ii) Eurodollar Rate Loans. If such Loan is a Eurodollar Rate
Loan, a rate per annum equal at all times during the Interest Period for such
Loan to the sum of the Eurodollar Rate for such Interest Period plus 0.40%
per annum, payable on the last day of such Interest Period and, if such
Interest Period has a duration of more than three months, on each day which
occurs during such Interest Period every three months from the first day of
such Interest Period.
If on any day a Syndicated Loan is outstanding with respect to which effective
notice has not been delivered to the Lending Agent in accordance with the
terms hereof specifying the basis for determining the rate of interest
applicable thereto (including, without limitation, Eurodollar Rate Loans
which, following the end of the Interest Period with respect thereto, are not
reborrowed or Continued hereunder as Eurodollar Rate Loans), then for such day
such Syndicated Loan shall be a Base Rate Loan.
(b) Default Interest. Notwithstanding the rates of interest and
payment dates specified in Section 2.07(a) above, effective five (5) Business
Days after the Company receives written notice from the Administrative Agent
or the Lending Agent of the occurrence of any Event of Default and the
applicability of this Section 2.07(b) and for as long thereafter as any such
Event of Default shall be continuing, the principal balance of all Syndicated
Loans or Term Loans then outstanding and, to the extent permitted by
applicable law, any interest payments on the Syndicated Loans or Term Loans
not paid when due, shall bear interest payable upon demand at a rate which is
two percent (2%) per annum in excess of the rate of interest otherwise payable
under this Agreement.
(c) Additional Interest on Eurodollar Rate Loans. The Company
shall pay to the Lending Agent, for the account of each Bank, so long as such
Bank shall be required under regulations of the Board of Governors of the
Federal Reserve System to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities, additional
interest on the unpaid principal amount of each Eurodollar Rate Loan of such
Bank, from the date of such Eurodollar Rate Loan until such principal amount
is paid in full, at an interest rate per annum equal at all times to the
remainder obtained by subtracting (i) the Eurodollar Rate for the Interest
Period for such Eurodollar Rate Loan from (ii) the rate obtained by dividing
such Eurodollar Rate by a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage of such Bank for such Interest Period, payable on each date
on which interest is payable on such Eurodollar Rate Loan. Such additional
interest shall be determined by such Bank and notified to the Company through
the Lending Agent.
(d) Interest Rate Determination.
(i) Each Reference Bank agrees to furnish to the Lending Agent
timely information for the purpose of determining each Eurodollar Rate. If
any one or more of the Reference Banks shall not furnish such timely
information to the Lending Agent for the purpose of determining any such
interest rate, the Lending Agent shall determine such interest rate on the
basis of timely information furnished by the remaining Reference Banks.
(ii) The Lending Agent shall give prompt notice to the Company and
the Banks of the applicable interest rate determined by the Lending Agent for
purposes of Section 2.07(a), and the applicable rate, if any, furnished by
each Reference Bank for the purpose of determining the applicable interest
rate under Section 2.07(a)(ii).
(iii) Notwithstanding any other provision of this Agreement to the
contrary,
(A) If the Reference Banks fail to furnish timely information to
the Lending Agent for determining the Eurodollar Rate for any Eurodollar Rate
Loans comprising a requested Borrowing,
(1) such Agent shall forthwith notify the Company and the
Banks that the interest rate cannot be determined for such Eurodollar Rate
Loans,
(2) the right of the Company to request and the obligation of
the Banks to make, or to Convert Loans into or Continue Loans as, Eurodollar
Rate Loans shall be suspended until the Lending Agent shall notify the
Company and the Banks that the circumstances causing such suspension no
longer exist, and
(3) any Notice of Syndicated Borrowing or Notice of
Conversion/Continuation with respect to such Borrowing shall be deemed
cancelled and such Borrowing, Conversion or Continuation shall not be made.
(B) If, with respect to any Eurodollar Rate Loans comprising a
requested Borrowing, the Majority Banks notify the Lending Agent that the
Eurodollar Rate for such Eurodollar Rate Loans will not adequately reflect
the cost to such Majority Banks of making, funding or maintaining their
respective Eurodollar Rate Loans for such Borrowing, such Agent shall
forthwith so notify the Company and the Banks, whereupon
(1) the right of the Company to request and the obligation of
the Banks to make, or to Convert Loans into or Continue Loans as, Eurodollar
Rate Loans shall be suspended until the Lending Agent shall notify the
Company and the Banks that the circumstances causing such suspension no
longer exist, and
(2) any Notice of Syndicated Borrowing or Notice of
Conversion/Continuation with respect to such Borrowing shall be deemed
cancelled and such Borrowing, Conversion or Continuation shall not be made.
The Lending Agent shall, upon becoming aware that the circumstances causing
any such suspension under this clause (iii) no longer apply, promptly so
notify the Company, provided that the failure of either such Agent to so
notify the Company shall not impair the rights of the Banks under this Section
2.07(d)(iii) or expose such Agent to any liability.
(iv) If the Company shall fail to select the duration of any
Interest Period for any Eurodollar Rate Loans in accordance with the terms of
this Agreement, the Company shall be deemed to have chosen an Interest Period
of one month.
(v) On the date on which the aggregate unpaid principal amount of
Eurodollar Rate Loans comprising any Syndicated Borrowing or Term Loan
Borrowing shall be reduced, by payment or prepayment or otherwise, to less
than $5,000,000, such Loans shall automatically Convert into Base Rate Loans.
SECTION 2.08. Voluntary Conversion and Continuation of Syndicated
.08. Voluntary Conversion and Continuation of Syndicated Loans. (a) Subject
to the provisions of Sections 2.07 and 2.15, the Company may, by notice
delivered in accordance with subsection (b) below, (i) at any time Convert
Base Rate Loans in an aggregate principal amount of at least $5,000,000 into
Eurodollar Rate Loans, (ii) Convert Eurodollar Rate Loans into Base Rate Loans
on the expiration date of the Interest Period with respect thereto, and (iii)
Continue Eurodollar Rate Loans consisting of Term Loans in an aggregate
principal amount of at least $5,000,000 as Eurodollar Rate Loans on the
expiration date of the Interest Period with respect thereto; provided, that no
Loans may be Converted into or Continued as Eurodollar Rate Loans if an Event
of Default or an Unmatured Event of Default has occurred and is continuing.
(b) In the event that the Company elects to Convert or Continue
Loans under subsection (a), the Company shall deliver written notice (each, a
"Notice of Conversion/ Continuation") to the Lending Agent not later than
11:00 A.M. (New York time) at least (i) one Business Day in advance of a
proposed Conversion into Base Rate Loans and (ii) three Business Days in
advance of a Conversion into or Continuation as Eurodollar Rate Loans. Each
Notice of Conversion/ Continuation shall be by telecopier or other form of
teletransmission, confirmed promptly in writing, in substantially the form of
Exhibit C hereto, specifying the requested (i) date of such Conversion or
Continuation (which shall be a Business Day), (ii) the Loans to be Converted
or Continued, and (iii) except with respect to Conversions to Base Rate Loans,
the duration of the Interest Period to be applied thereto. Promptly after
receipt of a Notice of Conversion/ Continuation under this Section 2.08(b),
the Lending Agent shall notify each Bank by telecopy or other similar form of
teletransmission of the proposed Conversion. Each Notice of
Conversion/Continuation shall be irrevocable and, once delivered, the Company
shall be bound to Convert or Continue Loans in accordance therewith.
Section 2.09. Prepayments of Syndicated Loans and Term Loans. The Company
may, upon at least one Business Day's (with respect to Base Rate Loans) or
three Business Days' (with respect to Eurodollar Rate Loans) prior written
notice to the Lending Agent, prepay the outstanding principal amounts of the
Syndicated Loans or Term Loans comprising part of the same Borrowing in whole
or ratably in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided, however, that (x) each
partial prepayment shall be in an aggregate principal amount equal to
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and (y)
any prepayment of any Eurodollar Rate Loans shall be made on the last day of
an Interest Period for such Loans, or otherwise only upon payment of the
amounts described in Section 2.13(b). Any notice of prepayment given to the
Lending Agent under this Section 2.09 shall be received by the Lending Agent
no later than 10:00 A.M. (New York time) on the date such notice must be
given, and shall specify the date of prepayment and the aggregate principal
amount of the prepayment. If a notice of prepayment has been delivered as
provided herein, the principal amount of the Loans specified in such notice
shall become due and payable on the prepayment date specified in such notice.
Section 2.10. Payments and Computations.
(a) Manner and Timing of Payments. The Company shall make each
payment owing to the Banks under this Agreement not later than 11:00 A.M. (New
York time) on the day when due in Dollars to the Administrative Agent or the
Lending Agent, as applicable, at such Person's address referred to in Section
8.02 in same day funds. The Administrative Agent or the Lending Agent, as
applicable, will promptly thereafter cause to be distributed like funds
relating to the payment of principal, interest or fees ratably to the Banks in
accordance with their Pro Rata Shares (other than amounts payable pursuant to
Section 2.04, 2.05(b), 2.07(c), 2.14 or 2.15) for the account of their
respective Applicable Lending Offices, and like funds relating to the payment
of any other amount payable to any Bank to such Bank for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon the Administrative Agent's acceptance of an
Assignment and Acceptance and recording of the information contained therein
in the Register pursuant to Section 8.06(d), from and after the effective date
specified in such Assignment and Acceptance, the Administrative Agent and the
Lending Agent, as applicable, shall make all payments under this Agreement in
respect of the interest assigned thereby to the Bank assignee thereunder, and
the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) Rights of Set-Off. The Company hereby authorizes each Bank, if
and to the extent payment owed to such Bank is not made when due hereunder, to
charge from time to time against any or all of the Company's accounts with
such Bank any amount so due. Each Bank agrees to notify the Company at least
five (5) Business Days prior to any such charge made by such Bank, provided
that the failure to give such notice shall not affect the validity of such
charge.
(c) Computation of Interest and Fees. All computations of interest
and fees shall be made by the Administrative Agent or the Lending Agent or,
with respect to interest under Section 2.07(c), by the applicable Bank, on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period
for which such interest or fees are payable. Each determination by the
Administrative Agent or the Lending Agent or, in the case of Section 2.07(c),
by a Bank, of an interest rate hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(d) Payment on Business Days. Whenever any payment hereunder shall
be stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or fee, as the
case may be; provided, however, if such extension would cause payment of
interest on or principal of Eurodollar Rate Loans to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day (and such reduction of time shall in such case be excluded from
the computation of payment of interest or fee, as the case may be).
(e) Distributions to Banks. Unless the Administrative Agent or the
Lending Agent, as applicable, shall have received notice from the Company
prior to the date on which any payment is due to the Banks hereunder that the
Company will not make such payment in full, such Agent may assume that the
Company has made such payment in full to such Agent on such date and such
Agent in its sole discretion may, in reliance upon such assumption, cause to
be distributed to each Bank on such due date an amount equal to the amount
then due such Bank. If and to the extent the Company shall not have so made
such payment in full to the applicable Agent, each Bank shall repay to such
Agent forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed to
such Bank until the date such Bank repays such amount to such Agent, at the
Federal Funds Rate.
(f) Apportionment of Payments. (i) So long as no Event of Default
exists, all payments of principal and interest in respect of a Borrowing of
outstanding Loans, all payments of the fees described herein, and all payments
in respect of any other Obligations shall be allocated among such of the Banks
as are entitled thereto in accordance with their respective Pro Rata Shares
(unless otherwise expressly provided elsewhere herein). Subject to the terms
and conditions of this Agreement, the Company may choose the Borrowing or
Borrowings to which any such payment will be applied. After the occurrence
and during the continuance of an Event of Default and upon the concurrence of
the Administrative Agent and after notice by the Administrative Agent to the
Company that payments and proceeds shall be so applied, all payments remitted
to the Agents shall be applied, subject to the provisions of this Agreement,
(1) first, to pay Obligations in respect of any fees, expense reimbursements
or indemnities then due to the Administrative Agent hereunder; (2) second, to
pay Obligations in respect of any fees, expense reimbursements or indemnities
then due to the Lending Agent hereunder; (3) third, to pay Obligations in
respect of any fees, expense reimburse-ments or indemnities then due to the
Banks hereunder; (4) fourth, to pay interest due in respect of Loans (pro
rata); (5) fifth, to pay or prepay principal of Loans (pro rata); and (6)
sixth, to the ratable payment of all other Obligations.
(ii) The Administrative Agent or the Lending Agent, as applicable,
shall, in accordance with this Section 2.10, distribute to each Bank at its
primary address set forth on the appropriate signature page of this Agreement
(or, as applicable, an Assignment and Acceptance), or at such other address as
a Bank may request in writing, such funds as it may be entitled to receive,
provided that no Agent shall in any event be bound to inquire into or
determine the validity, scope or priority of any interest or entitlement of
any Bank and may suspend all payments or seek appropriate relief (including,
without limitation, instructions from the Majority Banks or an action in the
nature of interpleader) in the event of any doubt or dispute as to any
apportionment or distribution contemplated hereby. The post-Event of Default
order of priority herein is set forth solely to determine the rights and
priorities of the Banks as among themselves and may at any time or from time
to time be changed by the Banks as they may elect, in writing in accordance
with Section 8.01, without necessity of notice to or consent of or approval by
the Company or any other Person.
Section 2.11. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.02 to authorize the
Administrative Agent to declare the Obligations due and payable pursuant to
the provisions of Section 6.02, each Bank is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such
Bank to or for the credit or the account of the Company against any and all
of the Obligations owing to such Bank, whether or not such Bank shall have
made any demand under this Agreement and although such Obligations may be
unmatured. The deposits or other indebtedness against which such Obligations
are set-off may be denominated in any currency, and each Bank is hereby
authorized to effect any appropriate currency exchanges in order to implement
such set-off. Each Bank agrees promptly to notify the Company after any such
set-off and application made by such Bank, provided that the failure to give
such notice shall not affect the validity of such set-off and application.
The rights of each Bank under this Section 2.11 are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
which such Bank may have.
Section 2.12. Sharing of Payments, Etc. If any Bank shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Obligations owing to it (other than
pursuant to Section 2.04, 2.05(b), 2.07(c), 2.14, 2.15 or 8.04 or solely in
its capacity as an Agent) in excess of its Pro Rata Share of payments on
account of the Obligations obtained by all the Banks, such Bank shall
forthwith purchase from the other Banks such participations in the
Obligations owing to them as shall be necessary to cause such purchasing
Bank to share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Bank, such purchase from each Bank shall be
rescinded and such Bank shall repay to the purchasing Bank the purchase price
to the extent of such recovery together with an amount equal to such Bank's
Pro Rata Share of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Company
agrees that any Bank so purchasing a participation from another Bank pursuant
to this Section 2.12 may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of set-off) with respect to
such participation as fully as if such Bank were the direct creditor of the
Company in the amount of such participation.
Section 2.13. Increased Costs, Reserves and Capital.
(a) If, due to either (i) the introduction of or any change (other
than any change by way of imposition or increase of reserve requirements, in
the case of Eurodollar Rate Loans, included in the Eurodollar Rate Reserve
Percentage) in or in the interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there shall
be any increase in the cost to any Bank of agreeing to make or making, funding
or maintaining Eurodollar Rate Loans, then the Company shall from time to
time, upon demand by such Bank (with a copy of such demand to the
Administrative Agent and the Lending Agent), pay to the Lending Agent, for the
account of such Bank, additional amounts sufficient to compensate such Bank
for such increased cost. A certificate as to the amount of such increased
cost, submitted to the Company, the Administrative Agent and the Lending Agent
by such Bank, shall be conclusive and binding for all purposes, absent
manifest error.
(b) If any payment of principal of, or Conversion of, any
Eurodollar Rate Loan is made by the Company to or for the account of a Bank
other than on the last day of the Interest Period for such Loan, as a result
of a payment or Conversion pursuant to Section 2.08(d), 2.09 or 2.16,
acceleration of the maturity of the Loans pursuant to Section 6.02 or for any
other reason, or by an assignee of a Bank to such Bank other than on the last
day of the Interest Period for such Loan upon an assignment of rights and
obligations under this Agreement pursuant to Section 8.06 as a result of a
demand by the Company pursuant to Section 8.08, the Company shall, upon demand
by such Bank (with a copy of such demand to the Administrative Agent and the
Lending Agent), pay to the Lending Agent, for the account of such Bank, any
amounts required to compensate such Bank for any additional losses, costs or
expenses which it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Bank to fund or
maintain such Loan.
(c) If any Bank shall have determined that the adoption of any
applicable law, rule or regulation regarding capital adequacy, or any change
therein, or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or its
Applicable Lending Office or any corporation controlling such Bank) with any
request or directive regarding capital adequacy (whether or not having the
force of law) of any such Governmental Authority, central bank or comparable
agency, has or would have the effect after the date hereof of reducing the
rate of return on such Bank's capital or the capital of any corporation
controlling such Bank as a consequence of such Bank's obligations to make
Loans hereunder to a level below that which such Bank could have achieved but
for such adoption, change or compliance by an amount deemed by such Bank to be
material, then the Company shall from time to time, upon demand by such Bank
(with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Bank additional amounts
sufficient to compensate such Bank or such controlling corporation for such
reduction. A certificate as to the amount of such increased cost, submitted
to the Company and the Administrative Agent by such Bank, shall be conclusive
and binding for all purposes, absent manifest error.
(d) Notwithstanding the foregoing, the Company shall not be
required to make any payments or indemnify any Bank under this Section 2.13
with respect to any increased costs, losses or expenses or increased capital
requirements incurred by such Bank more than one-hundred eighty (180) days
before the date a request for payment or indemnification is delivered to the
Company. Each Bank agrees (to the extent consistent with internal policies
and legal and regulatory restrictions) to designate a different Applicable
Lending Office if such designation would avoid or reduce the amount of
increased costs, losses or expenses or compensation for increased capital
requirements; provided, however, that such designation need not be made if it
would result in any additional costs, expenses or risks to such Bank that are
not reimbursed by the Company pursuant hereto or would, in the judgment of
such Bank, be otherwise disadvantageous to such Bank.
Section 2.14. Taxes.
(a) Any and all payments by the Company hereunder shall be made
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of each Bank and each
Agent, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Bank or such Agent (as the case may
be) is organized or any political subdivision thereof and, in the case of each
Bank, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Bank's Applicable Lending Office or any political
subdivision thereof (all such non_excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as
"Taxes"). If the Company shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder to any Bank or either Agent, (i) the
sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section 2.14) such Bank or such Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Company shall make such deductions and (iii)
the Company shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Company agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Company indemnifies each Bank and each Agent for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.14) paid by such Bank or such Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, whether or not such Taxes or Other Taxes were correctly or legally
asserted. This indemnification shall be made within 30 days from the date
such Bank or such Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Company will furnish to the Administrative Agent, at its address referred to
in Section 8.02, the original or a certified copy of a receipt evidencing
payment thereof.
(e) If the Company makes any payment or indemnifies any Bank
pursuant to this Section 2.14 (each, a "Tax Payment"), any Bank effectively
obtains a refund of Tax or a credit against Tax by reason of that Tax Payment
(each, 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
Company 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 so 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 computation
to the Company.
(f) Each Bank represents and warrants to the Agents and the Company
that under applicable law and treaties in effect as of the date hereof no
taxes imposed by the United States or any country in which any Bank is
organized or controlled or in which any Bank's Applicable Lending Office is
located or any political subdivision of any of the foregoing will be required
to be withheld by the Company with respect to any payments to be made to such
Bank in respect of any of the Loans. Each Bank organized under the laws of a
jurisdiction outside the United States, on or prior to the date of its
execution and delivery of this Agreement in the case of each initial Bank and
on the date of the Assignment and Acceptance pursuant to which it becomes a
Bank in the case of each other Bank, and from time to time thereafter if
requested in writing by the Company (but only so long as such Bank remains
lawfully able to do so), shall provide the Company with Internal Revenue
Service form 1001 or 4224, as appropriate, or any successor form prescribed by
the Internal Revenue Service, certifying that such Bank is entitled to
benefits under an income tax treaty to which the United States is a party
which reduces the rate of withholding tax on payments of interest or
certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Bank at the time such Bank first becomes a
party to this Agreement indicates a United States interest withholding tax
rate in excess of zero, withholding tax at such rate shall be considered
excluded from "Taxes" as defined in Section 2.14(a).
(g) For any period with respect to which a Bank has failed to
provide the Company with the appropriate form described in Section 2.14(f)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such
form otherwise is not required under the second sentence of subsection (f)
above), such Bank shall not be entitled to indemnification under Section
2.14(a) with respect to Taxes imposed by the United States; provided, however,
that should a Bank become subject to Taxes because of its failure to deliver a
form required hereunder, the Company shall take such steps as the Bank shall
reasonably request to assist the Bank to recover such Taxes.
(h) Notwithstanding the foregoing, the Company shall not be
required to make any payments or indemnify any Bank under this Section 2.14
with respect to any Taxes or Other Taxes paid by such Bank more than
one-hundred eighty (180) days before the date a request for payment or
indemnification is delivered to the Company. Each Bank agrees (to the extent
consistent with internal policies and legal and regulatory restrictions) to
designate a different Applicable Lending Office if such designation would
avoid or reduce the amount of Taxes or Other Taxes; provided, however, that
such designation need not be made if it would result in any additional costs,
expenses or risks to such Bank that are not reimbursed by the Company pursuant
hereto or would, in the judgment of such Bank, be otherwise disadvantageous to
such Bank.
(i) Without prejudice to the survival of any other agreement of the
Company hereunder, the agreements and obligations of the Company contained in
this Section 2.14 shall survive the payment in full of principal and interest
hereunder and the termination of the Commitments.
Section 2.15. Illegality. Notwithstanding any other provision of this
Agreement, if any Bank shall notify the Lending Agent that the introduction
of or any change in or in the interpretation of any law or regulation makes
it unlawful, or any central bank or other Governmental Authority asserts that
it is unlawful, for such Bank or its Eurodollar Lending Office to perform its
obligations hereunder to make Eurodollar Rate Loans or to fund or maintain
any Eurodollar Rate Loans hereunder, (i) the right of the Company to request
and the obligation of the Banks to make or to Convert Loans into or Continue
Loans as Eurodollar Rate Loans shall be suspended until the Lending Agent
shall notify the Company and the Banks that the circumstances causing such
suspension no longer exist, (ii) any Notice of Syndicated Borrowing or Notice
of Conversion/Continuation with respect to any requested Borrowing of,
Conversion into or Continuation as Eurodollar Rate Loans shall be deemed
cancelled and such Borrowing, Conversion or Continuation shall not be made,
and (iii) the Company shall forthwith prepay in full all Eurodollar Rate
Loans of all Banks then outstanding, together with interest accrued thereon,
unless the Company, within five Business Days of the applicable notice from
the Lending Agent, Converts all such Eurodollar Rate Loans of all Banks then
outstanding into Base Rate Loans in accordance with Section 2.08.
Section 2.16. Right of Set-Off Against Defaulting Banks. In the event that
any Bank fails to fund its Pro Rata Share of any Loan requested by the
Company which such Bank is obligated to fund under the terms of this
Agreement (the funded portion of such Loan being hereinafter referred to as a
"Non-Pro Rata Loan"), then until the earlier of (i) such Bank's cure of such
failure and (ii) the termination of the Commitments, the proceeds of all
amounts thereafter paid or repaid to the Agents by the Company and otherwise
required to be applied to such Bank's share of any other Obligations pursuant
to the terms of this Agreement shall be advanced to the Company by the
applicable Agent on behalf of such Bank to cure, in full or in part, such
failure by such Bank, but shall nevertheless be deemed to have been paid to
such Bank in satisfaction of such other Obligations. Notwithstanding
anything in this Agreement to the contrary:
(1) the foregoing provisions of this Section 2.16 shall apply
only with respect to the proceeds of payments of Obligations and shall not
affect the Conversion or Continuation of any Loans hereunder;
(2) a Bank shall be deemed to have cured its failure to fund
its Pro Rata Share of any Loan at such time as an amount equal to such Bank's
Pro Rata Share (determined as of the time of the receipt, with respect to
such Loan, by the Lending Agent of the related Notice of Syndicated
Borrowing) of the requested principal portion of such Loan is fully funded to
the Company, whether made by such Bank itself or by operation of the terms of
this Section 2.16; and
(3) any amounts advanced to the Company under this Section
2.16 to cure, in full or in part, any such Bank's failure to fund its Pro
Rata Share of any Loan, shall be deemed a part of the same Borrowing as the
applicable Non-Pro Rata Loan.
Section 2.17. Promissory Notes. (i) The Company shall execute and deliver
a Company Note, dated the date hereof, to each Bank (or to the Administrative
Agent on behalf of such Bank, with prompt delivery thereof to each Bank
thereafter) on the Closing Date. The Company shall also execute and deliver
a Bid Rate Note, dated the date of the related Bid Rate Loan, to each Bank
making a Bid Rate Loan (or to the Administrative Agent on behalf of such Bank
, with prompt delivery thereof to each Bank thereafter) prior to the making
of such Bid Rate Loan.
(ii) Each Bank is hereby authorized, at its option, to either (a)
endorse the date and amount, as applicable, of each Loan made by such Bank and
each repayment or prepayment of principal of Loans made with respect to such
Note on a schedule which shall be annexed to and constitute a part of such
Note or (b) record, as applicable, such Loans, repayments and prepayments in
its books and records, such schedule or such books and records, as the case
may be, constituting prima facie evidence, absent manifest error, of the
accuracy of the information contained therein; provided, that the failure by
any Bank to endorse or record such Loans, repayments and prepayments shall not
affect the obligations of the Company under such Note.
ARTICLE III
Section 3.01. Conditions Precedent to Closing. This Agreement shall be of
no force or effect until all of the following conditions precedent have been
satisfied:
(a) The Administrative Agent shall have received all of the
following, each in form and substance satisfactory to the Banks (as indicated
by each Bank's signature hereto) and, in the case of item (i) below, in
sufficient copies for each of the Banks:
(i) This Agreement, executed by the Company, together with all
Exhibits and Schedules hereto.
(ii) The Company Notes, with appropriate insertions, executed by
the Company and payable to the order of each Bank.
(iii) Certified copies of the resolutions of the Board of Directors
of the Company approving this Agreement, the Notes and the other Credit
Documents to be delivered by the Company in connection herewith and the
incurrence of the Loans.
(iv) A certificate of the Secretary or an Assistant Secretary of
the Company certifying (1) the Certificate of Incorporation of the Company,
(2) the By-laws of the Company, and (3) the names and true signatures of the
officers of the Company authorized to sign this Agreement and the other
Credit Documents to be delivered by the Company in connection herewith.
(v) A certificate of good standing of the Company issued by the
Secretaries of State of Illinois and Delaware.
(vi) A favorable opinion of the General Counsel of the Company,
dated the Closing Date, relating to such matters as the Administrative Agent
and the Lending Agent deem appropriate and in form and substance satisfactory
to each such Agent.
(vii) A favorable opinion of Sidley & Austin, counsel to the
Administrative Agent and the Lending Agent.
(viii) The Company's quarterly report as most recently filed with
the Securities and Exchange Commission, together with any letter of the
General Counsel of the Company, as required pursuant to Section 4.01(f).
(ix) Such other documentation as the Administrative Agent or the
Lending Agent may reasonably request.
(b) All accrued and unpaid interest, fees and expenses due and
payable by the Company under the Second Amended Agreement on or prior to the
Closing Date shall have been paid in full in cash, it being understood that
all interest, fees and expenses owing under the Second Amended Agreement but
not yet due and payable on or before the Closing Date shall be paid on the
first payment date for the corresponding amounts set forth in this Agreement.
(c) There shall have been no material adverse change in the
business, operations, assets or financial or other condition of the Company
and its Subsidiaries taken as a whole, in the judgment of the Agents and the
Banks (as evidenced by their execution of this Agreement).
(d) Each condition precedent set forth in Section 3.02 shall be
satisfied on and as of the Closing Date.
SECTION 3.02. Conditions Precedent to Each Borrowing and Extension
The obligation of each Bank to make a Loan on the occasion of each Borrowing
hereunder (including the initial Borrowing), to Convert or Continue a Loan,
and to extend the Commitment Termination Date hereunder pursuant to Section
8.07, shall in each such case be subject to the further conditions precedent
that on the date of the making or Conversion or Continuation of such Loan or
each Commitment Termination Date on which the Commitments of the Banks are
extended, (a) the following statements shall be true:
(i) The representations and warranties made by the Company herein
or which are contained in any certificate, document or financial or other
statement furnished at any time under or in connection herewith, shall be
correct on and as of such date as if made on and as of such date (both before
and after giving effect thereto), provided, that the representation set forth
in Section 4.01(b) shall be deemed to be made only (1) on and as of the
Closing Date and (2) on each Commitment Termination Date on which the
Commitments of the Banks are extended by reference to the date of the most
recently furnished certified quarterly financial statements of the Company;
and
(ii) No Unmatured Event of Default or Event of Default shall have
occurred and be continuing on such date, both before and after giving effect
thereto;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Bank through the Administrative Agent may
reasonably request. Each delivery of a Notice of Syndicated Borrowing or a
Notice of Bid Rate Borrowing and the acceptance by the Company of the proceeds
of such Borrowing, each Notice of Conversion/Continuation and each Conversion
and Continuation of Loans and each request to extend the Commitment
Termination and each extension thereof shall constitute a representation and
warranty by the Company that on such date each of the above statements are
true.
SECTION 3.03. Additional Conditions Precedent to Each Bid Rate and
Borrowing. The obligation of each Bank to make a Bid Rate Loan on the
occasion of a Bid Rate Borrowing (including the initial Bid Rate Borrowing)
is subject to the additional conditions precedent that (i) at least three
Business Days before the date of such Bid Rate Borrowing, the Lending Agent
shall have received the Notice of Bid Rate Borrowing with respect thereto,
(ii) at least one Business Day before the date of such Bid Rate Borrowing,
the Lending Agent shall have received the written confirmatory notice of such
Bid Rate Borrowing to be given by the Company pursuant to Section 2.04(b)
(iii), and (iii) on or before the date of such Bid Rate Borrowing but prior
to such Bid Rate Borrowing, the Lending Agent shall have received a Bid Rate
Note signed by the Company and payable to the order of such Bank for each of
the one or more Bid Rate Loans to be made by such Bank as part of such Bid
Rate Borrowing, in a principal amount equal to the principal amount of the
Bid Rate Loan to be evidenced thereby and otherwise on such terms as were
agreed to for such Bid Rate Loan in accordance with Section 2.04.
ARTICLE IV
Section 4.01. Representations and Warranties of the Company. The Company
represents and warrants as follows:
(a) Financial Condition. The consolidated balance sheet of the
Company and its consolidated Subsidiaries as at September 30, 1993 and the
related consolidated statement of earnings and statement of cash flows for the
fiscal year ended on such date certified by KPMG Peat Marwick, copies of which
certified statements have heretofore been furnished to the Agents and the
Banks, are complete and correct and present fairly the consolidated financial
condition of the Company and its consolidated Subsidiaries as at such dates,
and the consolidated results of their operations and cash flows for the fiscal
years then ended. The unaudited consolidated balance sheet of the Company and
its consolidated Subsidiaries as of June 30, 1994, and the related unaudited
consolidated statement of earnings and statement of cash flows for the
nine_month period ended on such date, copies of which have heretofore been
furnished to the Agents and the Banks, are complete and correct and present
fairly the consolidated financial condition of the Company and its
consolidated Subsidiaries as at such dates, and the consolidated results of
their operations and cash flows for the nine-month period then ended (subject
to normal year-end audit adjustments). Such financial statements, including
the related schedules and notes thereto, have been prepared in accordance with
GAAP. Neither the Company nor any of its consolidated Subsidiaries has any
material contingent obligation, material contingent liability or liability for
taxes, material long-term lease or material forward or long-term commitment,
which is not reflected in the foregoing certified statements or in the notes
thereto.
(b) No Change. Since September 30, 1993, there has been no
material adverse change in the business, operations, assets or financial or
other condition of the Company and its Subsidiaries taken as a whole.
(c) Corporate Existence; Compliance with Law. The Company and each
of its Subsidiaries (i) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, (ii) has the
corporate power and authority and the legal right to own and operate its
property, to lease the property it operates and to conduct the business in
which it is currently engaged, (iii) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualifications, and (iv) 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 Company and its Subsidiaries
taken as a whole, or could not materially adversely affect the ability of the
Company to perform its obligations under this Agreement, the other Credit
Documents or the CP Documents.
(d) Corporate Power; Authorization; Enforceable Obligations. The
Company has the corporate power and authority and the legal right to make,
deliver and perform this Agreement and the Notes and to borrow hereunder and
has taken all necessary corporate action to authorize the borrowings on the
terms and conditions of this Agreement and the Notes and to authorize the
execution, delivery and performance of this Agreement and the other Credit
Documents. No consent or authorization of, filing with, or other act by or in
respect of any other Person (including stockholders and creditors of the
Company) or any Governmental Authority, is required in connection with the
borrowings hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or the other Credit Documents. This
Agreement and the Notes have been duly executed and delivered on behalf of the
Company and this Agreement and the other Credit Documents when executed and
delivered by the Company, shall constitute legal, valid and binding
obligations of the Company enforceable against the Company in accordance with
their respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of creditors' rights generally.
(e) No Legal Bar. The execution, delivery and performance of this
Agreement, the other Credit Documents, the making of the Loans and the use of
the proceeds thereof, will not violate any Requirement of Law or any
Contractual Obligation of the Company or any of its Subsidiaries, and will not
result in, or require the creation or imposition of, any Lien on any of their
respective properties or revenues pursuant to any Requirement of Law or
Contractual Obligation.
(f) No Material Litigation. Except as disclosed in the Company's
annual, quarterly and special reports, as filed by the Company with the
Securities and Exchange Commission most recently prior to the execution and
delivery hereof, and supplemented, as necessary, by a letter dated no later
than five days prior to the execution and delivery hereof by the Company, of
the General Counsel of the Company, addressed to each Bank, no litigation,
arbitration, governmental investigation (except audits by the Internal Revenue
Service not involving a special agent) or proceeding against the Company or
any of its Subsidiaries or to which any of the properties of any thereof is
subject is pending or, to the knowledge of the Company, threatened which (i)
involves individually more than the Individual Material Amount or, in the
aggregate, more than the Aggregate Material Amount, or (ii) if adversely
determined, might materially adversely affect the consolidated financial
condition or operations of the Company and its Subsidiaries or impair the
ability of the Company to perform any of its obligations under this Agreement
or the other Credit Documents, or (iii) purports to affect the legality,
validity or enforceability of any Credit Document.
(g) No Default. Neither the Company nor any Subsidiary is in
default, subject to any applicable grace period, in the payment of any Debt
(except for (i) defaults in the payment of any Debt by Non-Recourse
Subsidiaries and (ii) 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.
(h) Taxes. The Company and its Subsidiaries have filed or caused
to be filed all tax returns which to the knowledge of the Company are required
to be filed, and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property.
(i) Subsidiaries. As of the Closing Date, the Company has no
Subsidiaries other than those listed on Schedule 4.01(i) attached hereto.
(j) ERISA. Neither the Company nor any member of the Controlled
Group is now maintaining or contributing, or has ever maintained or
contributed, to any Benefit Plan. Neither the Company nor any member of the
Controlled Group is now contributing, or has ever contributed, to any
Multiemployer Plan. Each Plan which is intended to be qualified under Section
401(a) of the Code has been determined by the IRS to be so qualified, and each
trust related to any such Plan has been determined to be exempt from federal
income tax under Section 501(a) of the Code. Neither the Company nor any
member of the Controlled Group has breached any of the responsibilities,
obligations or duties imposed on it with respect to any Plan by ERISA and the
Code which has resulted in or reasonably could be expected to result in any
material liability to the Company or any such member of the Controlled Group.
Neither the Company nor any member of the Controlled Group has engaged in a
nonexempt prohibited transaction described in Section 406 of ERISA or Section
4975 of the Code.
(k) Equity Securities. No proceeds of any Loan will be used to
acquire any equity security of a class which is registered pursuant to Section
12 of the Securities Exchange Act of 1934 except for warrants and options (and
any equity securities obtained through the exercise thereof) and preferred
stock of a Person, which warrants, options and preferred stock are acquired by
the Company or any of its Subsidiaries in connection with (i) the lease of
Equipment by the Company or such Subsidiary, as lessor, to such Person, as
lessee, or (ii) the provision of business continuity services by the Company
or such Subsidiary to such Person.
(l) Margin Stock. Neither the Company nor any of its Subsidiaries
is engaged in the business of extending credit for the purpose of purchasing
or carrying margin stock (within the meaning of Regulation U issued by the
Board of Governors of the Federal Reserve System), and no proceeds of any Loan
will be used to purchase or carry any margin stock or to extend credit to
others for the purpose of purchasing or carrying any margin stock.
(m) Governmental Regulation. As of the Closing Date, neither the
Company nor any Subsidiary of the Company is subject to regulation under the
Interstate Commerce Act, the Investment Company Act of 1940 or any other
federal or state statute or regulation such that its ability to incur
indebtedness is limited.
(n) Environmental Compliance. Except as disclosed on Schedule
4.01(n), the operations of the Company comply in all material respects with
all applicable federal, state or local environmental, health and safety
statutes and regulations ("Environmental Laws"). None of the Company's
operations or property is currently subject to any judicial or administrative
proceeding alleging the violation of any Environmental Laws nor are they the
subject of federal or state investigation evaluating whether any remedial
action is needed to respond to a release of any hazardous, toxic or
radioactive waste, substance or constituent, into the environment. Except as
disclosed in Schedule 4.01(n), the Company has not filed any notice under any
federal or state law indicating past or present treatment, storage or disposal
of a hazardous waste or reporting a spill or release of a hazardous or toxic
waste, substance or constituent, into the environment. Except as disclosed on
Schedule 4.01(n), the Company has no material contingent liability of which
the Company has actual knowledge in connection with any violation by it of any
Environmental Laws or the release of any hazardous or toxic waste, substance
or constituent, into the environment from its operations or on or from its
properties.
ARTICLE V
Section 5.01. Affirmative Covenants. So long as any portion of the
Obligations shall remain unpaid or any Bank shall have any Commitment
hereunder, the Company, unless the Majority Banks shall otherwise consent in
writing:
(a) Corporate Existence and Qualification. Shall take all steps
necessary to preserve its corporate existence and cause to be done at all
times all things necessary to be fully qualified to do business in all states
or other jurisdictions in which the failure to so qualify might materially
adversely affect the consolidated financial condition or operations of the
Company and its Subsidiaries.
(b) Insurance. Shall maintain, and shall cause each of its
Subsidiaries 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.
(c) ERISA. Shall, and shall cause each of its ERISA Affiliates to
establish, maintain and operate all Plans to comply with all applicable
provisions of ERISA and the Code and the respective documents for such Plans.
(d) Continuance of Business. Shall do, or shall cause to be done
and shall cause each Material Subsidiary to do or cause to be done all things
reasonably necessary to preserve and keep in full force and effect its
existence and all franchises, rights and privileges necessary for the proper
conduct of its business in substantially the same manner and in substantially
the same fields as such business is carried on or conducted as of the Closing
Date.
(e) Taxes and Obligations. Shall pay and discharge and shall cause
each of its Subsidiaries to pay and discharge all of such Person's obligations
and liabilities, including, without limitation, all taxes, assessments and
governmental charges upon its income and properties, when due, unless and to
the extent only that such obligations, liabilities, taxes, assessments and
governmental charges shall be contested in good faith and by appropriate
proceedings and that, to the extent required by GAAP, proper and adequate book
reserves relating thereto are established by the Company or such Subsidiary.
(f) Further Assurances. Shall execute and deliver to the Agents
all agreements, documents and instruments and do such further acts and things
as the Agents may reasonably request which may be necessary or desirable to
effect the purposes of this Agreement.
(g) Fiscal Year. Shall notify the Agents and the Banks of any
change of its Fiscal Year within 60 days of such change.
(h) Books and Records. Shall, and shall cause each of its
Subsidiaries to, keep books and records reflecting all of such Person's
business affairs and transactions in accordance with GAAP and, subject to the
confidentiality provisions of Section 8.09, permit the Agents, the Banks or
any of their representatives, at reasonable times and intervals, to visit all
of its offices, discuss its financial matters with its officers and
independent accountants (and hereby authorize the independent accountants to
discuss its financial matters with the Agents and the Banks or their
representatives) and examine any of its books and other corporate records.
(i) Additional Information. Shall furnish, or shall cause to be
furnished, to the Agents and the Banks such other information regarding the
business, affairs and condition of the Company and its Subsidiaries as the
Agents or any Bank may from time to time reasonably request.
(j) Compliance with Requirements of Law. Shall, and shall cause
each Subsidiary to, comply in all respects with all Requirements of Law, the
noncompliance with which could have a material adverse effect on the business
operations, financial condition or properties of the Company or any of its
Subsidiaries or on the ability of the Company to perform its obligations under
this Agreement.
(k) Notice of Decrease in Ratings. Shall promptly notify the
Agents in writing if it receives notice of any decrease in the ratings of any
of the Company's publicly-traded debt.
Section 5.02. Reporting Covenants. So long as any portion of the
Obligations shall remain unpaid or any Bank shall have any Commitment
hereunder, the Company will, unless the Majority Banks shall otherwise
consent in writing:
(a) Furnish, or cause to be furnished, to the Administrative Agent,
on behalf of the Banks, copies of the following financial statements, reports,
certificates and information (and, with respect to documents filed with or
provided to the Securities and Exchange Commission, in sufficient copies for
all of the Banks):
(i) as soon as available and in any event within 45 days after
the close of each of the first three quarters of each Fiscal Year,
consolidated and consolidating balance sheets at the close of such quarter,
and the related consolidated and consolidating statements of earnings,
stockholders' equity and cash flows for the period commencing at the end of
the previous Fiscal Year and ending with the close of such quarter, of the
Company and its Subsidiaries, certified by the Vice President and Controller
or Executive Vice President and Chief Financial Officer of the Company;
(ii) as soon as available and in any event within 90 days after
the close of each Fiscal Year:
(1) 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 Company and its
Subsidiaries, certified without qualification by KPMG Peat Marwick, another
of the "Big Six" accounting firms, or any other independent public
accountants of recognized standing selected by the Company and acceptable to
the Majority Banks,
(2) a written statement by such accountants setting forth
in reasonable detail a calculation of the financial covenants set forth in
Section 5.04 at the close of such Fiscal Year and further to the effect that
they have examined the provisions of this Agreement and that at the date of
such statement are not aware of any default in the performance by the Company
or any of its Subsidiaries of any obligation to be performed by such Person
hereunder or under any instrument or document executed pursuant hereto,
except such, if any, as may be disclosed in such statement,
(3) a consolidating balance sheet at the close of such Fiscal
Year, and the related consolidating statements of earnings, stockholders'
equity and cash flows for such Fiscal Year, of the Company and its
Subsidiaries, certified by the Vice President and Controller or Executive
Vice President and Chief Financial Officer of the Company, and
(4) copies of the 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 the
Company or any Subsidiary;
(iii) together with the financial statements delivered pursuant to
Sections 5.02(a)(i) and (ii) hereof, a Compliance Certificate;
(iv) promptly upon the mailing thereof to stockholders of the
Company generally, any annual report, proxy statement or other communication;
(v) 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; and
(vi) promptly from time to time a written report (which may be
contained in the Company's Form 10-Q or 10-K as filed from time to time with
the Securities and Exchange Commission) of any changes in the list of its
Subsidiaries set forth on Schedule 4.01(i).
(b) Immediately give notice to the Banks of:
(i) the occurrence of any Event of Default or Unmatured Event of
Default hereunder;
(ii) any litigation, arbitration, governmental investigation
(except audits by the Internal Revenue Service not involving a special agent)
or proceeding not previously disclosed to the Banks is instituted or, to the
knowledge of the Company, threatened against the Company or any of its
Subsidiaries or to which any of the properties of any thereof is subject
which (a) involves individually more than the Individual Material Amount or,
in the aggregate, more than the Aggregate Material Amount, or (b) if
adversely determined, might materially adversely affect the consolidated
financial condition or operations of the Company and its Subsidiaries or
impair the ability of the Company to perform any of its obligations under
this Agreement or the other Credit Documents, or (c) purports to affect the
legality, validity or enforceability of any Credit Document; and
(iii) any material adverse development which shall occur in any
litigation, arbitration or governmental investigation or proceeding
previously disclosed by the Company to the Banks.
(c) Furnish, or cause to be furnished, to the Agents and the Banks
such other information regarding the business, affairs and condition
(financial or otherwise) of the Company and its Subsidiaries as the Agents or
any Bank may from time to time reasonably request.
.03. Negative Covenants. So long as any portion of the Obligations shall
remain unpaid or any Bank shall have any Commitment hereunder, the Company
will not, without the prior written consent of the Majority Banks:
(a) Liens. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien upon or with respect to
any of its properties, whether now owned or hereafter acquired, other than:
(i) Liens securing Non_Recourse Obligations of the Company or any
of its Subsidiaries incurred in connection with leasing transactions or
business continuity services provided in the ordinary course of business of
the Company or such Subsidiary;
(ii) Liens 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 Debt secured thereby does not exceed the fair market
value of such Equipment and any related Contract at the time of acquisition
thereof;
(iii) Liens securing Debt of a Subsidiary of the Company to the
Company or to another Subsidiary of the Company;
(iv) 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 Section 5.01(e) and (ii) if
required by GAAP, the Company or the applicable Subsidiary shall have set
aside and maintained adequate reserves with respect thereto;
(v) 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;
(vi) Liens with respect to judgments 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;
(vii) rights of lessees, sublessees, conditional sale purchasers
and borrowers under Contracts;
(viii) Liens consisting of mortgages, conditional sale contracts,
security interests or other arrangements for the retention of title
(including capitalized leases) created or incurred for the financing or
purchase of real property of the Company or any of its Subsidiaries and
attaching only to the property being acquired or financed, so long as the
Debt secured thereby (i) was not in existence prior to the creation of such
Lien 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 Lien;
(ix) Liens (other than the Liens permitted by clauses (i) through
(viii) above) securing (1) Debt for borrowed money of, or guaranteed by, the
Company or any of its Subsidiaries or (2) obligations of the Company or any
of its Subsidiaries arising under Buy_Leases; provided, that the sum of (A)
all such Debt for borrowed money (excluding the non_recourse portion of any
Limited Recourse Obligations) and (B) the excess of (I) the present value
(discounted at the Base Rate most recently determined by the Lending Agent)
of all obligations of the Company and its Subsidiaries under Buy_Leases over
(II) the present value (discounted at the Base Rate most recently determined
by the Lending 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
(x) Liens in favor of the banks party to the Global Credit
Agreement in the "Collateral Account" under, and as defined in, the Global
Credit Agreement and in favor of the banks party to the MOF in the "Cash
Collateral Account" under, and as defined in, the MOF.
(b) Accommodation Obligations. Directly or indirectly create or
become or be liable, or permit any of its Subsidiaries to directly or
indirectly create or become or be liable, with respect to any Accommodation
Obligations except:
(i) guaranties by the Company of lease and other obligations
relating to contract performance of its Subsidiaries in the ordinary course
of business, including, without limitation, business continuity agreements;
(ii) guaranties by the Company which are limited in amount to a
stated maximum dollar exposure;
(iii) the guaranty by the Company of obligations of its
Subsidiaries under the MOF and under the Global Credit Agreement; and
(iv) the guaranty by the Company of euro commercial paper issued by
Comdisco Finance Nederland B.V. or any other Subsidiary of the Company
pursuant to the MOF.
(c) Dividends and Stock Purchases. At any time when an Event of
Default or Unmatured Event of Default has occurred and is continuing or would
result therefrom, (i) declare or pay any dividends, either in cash or
property, on any shares of its capital stock of any class (except (1)
dividends or other distributions payable solely in shares of capital stock of
the Company and (2) one, and only one, dividend declared and paid on the
preferred stock of the Company), or (ii) directly or indirectly, or through
any of its Subsidiaries, purchase, redeem or retire any shares of its capital
stock of any class or any warrants, rights or options to purchase or acquire
any shares of its capital stock (other than in exchange for or out of the net
proceeds to the Company from the substantially concurrent issue or sale of
other shares of capital stock of the Company or warrants, rights or options to
purchase or acquire any shares of its capital stock), or (c) make any other
payment or distribution, either directly or indirectly or through any
Subsidiary, in respect of its capital stock.
(d) Sale and Leasebacks. Enter into any arrangement, or permit any
of its Subsidiaries to enter into any arrangement, whereby the Company or any
of its Subsidiaries shall sell or transfer any property owned by it or any of
its Subsidiaries to any Person other than to the Company or any of its
Subsidiaries and thereupon the Company or any Subsidiary shall lease or intend
to lease, as lessee, the same property (any such transaction being referred
to as a "Sale and Leaseback") except (i) Sale and Leasebacks of any disaster
recovery site in the ordinary course of business, (ii) 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 and (iii) the Sale and Leaseback of the Company's corporate
headquarters located at 6111 North River Road, Rosemont, Illinois.
(e) Take or Pay Contracts. Enter into or be a party to, or permit
any of its Subsidiaries 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 Company or such Subsidiary
regardless of whether or not such materials, supplies, other property or
services are delivered or furnished to the Company or such Subsidiary.
(f) Consolidation, Merger, etc. 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,
or permit any of its Material Subsidiaries to do so, except:
(i) the merger, consolidation or liquidation of any Material
Subsidiary of the Company into the Company or into or with any other
Subsidiary of the Company (the surviving entity thereof also being a Material
Subsidiary);
(ii) 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 (other
than the Company), but only if:
(1) such Person is engaged exclusively in a business which is
in substantially the same fields as the existing business of the Company or
such Material Subsidiary, as the case may be; and
(2) any such merger or acquisition would not cause the Company
to violate any other provision of this Agreement; or
(iii) 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 clause
(i) or (ii) of this Section 5.03(f) shall only be permitted if no Event of
Default of Unmatured Event of Default has occurred and is continuing or would
result therefrom.
(g) Plans. Establish, incur or suffer to exist, or permit any
member of the Controlled Group to establish, incur or suffer to exist, any
obligations with respect to any Benefit Plan or Multiemployer Plan.
(h) Subordinated Debt. Pay or prepay, or permit any of its
Subsidiaries 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 an Event of Default or Unmatured Event of Default has occurred and is
continuing.
(i) Inconsistent Agreements. Enter into any agreement, or permit
any of its Subsidiaries to enter into any agreement, which contains any
provision which would be violated or breached by any Borrowing or requests for
credit made hereunder or by the performance by the Company of its obligations
hereunder or under any other Credit Document.
Section 5.04. Financial Covenants. The Company shall have, on a
consolidated basis with its Subsidiaries:
(a) Consolidated Tangible Net Worth as of the end of any quarter
of any Fiscal Year of not less than the sum of (i) $587,000,000 plus (ii) 50%
of the Consolidated Net Income of the Company and its Subsidiaries for the
period from September 30, 1994 to and including the last day of such quarter
(without any adjustment to the requirements set forth in this covenant to
reflect losses in any Fiscal Year or, if applicable, in the portion of the
current Fiscal Year then ended);
(b) a Fixed Charge Coverage Ratio as of the end of any quarter
of any Fiscal Year on a rolling four_quarter basis of not less than 1.15 to
1;
(c) a Total Liabilities to Adjusted Net Worth Ratio as of the
end of any quarter of any Fiscal Year of not more than 6.5 to 1.00.
(d) a Recourse Liabilities Ratio as of the end of any quarter of
any Fiscal Year of not more than 4.5 to 1;
(e) a Ratio of Unencumbered Cash Flow to Contractual Payments,
as of the end of any quarter of any Fiscal Year of not less than 1.00 to
1.00;
(f) Net Cash Provided By Operating Activities Ratio as of the
end of any quarter on a rolling four quarter basis not to be less than 0.25
to 1.00;
(g) Cumulative Net Losses (arising in computing Consolidated Net
Income) in any four (4) consecutive quarters of not more than $10,000,000;
and
(h) A Ratio of Remarketing Revenues (to be computed in a manner
consistent with the computation thereof as set forth in the Company's
financial statements referred to in Section 4.01(a) hereof) to Net Book (or
Residual) Value (to be computed in a manner consistent with the computation
thereof as set forth in the Company's financial statements referred to in
Section 4.01(a) hereof), as of the end of each fiscal year, of not less than
1.25 to 1.00.
ARTICLE VI
Section 6.01. Events of Default. Each of the following occurrences shall
constitute Events of Default under this Agreement:
(a) Failure to Make Payments. The Company shall fail to pay when
due any interest on or principal of any Loan, fee or other amount payable
under this Agreement and with respect to interest, fees and other amounts,
such failure shall continue unremedied for three (3) Business Days following
written notice thereof from the Administrative Agent or the Lending Agent; or
(b) Breach of Representation or Warranty. Any representation or
warranty made or deemed made by the Company (or any of its officers) herein or
in any of the other Credit Documents or in any statement or certificate at any
time given by the Company pursuant to any of the Credit Documents shall prove
to have been incorrect in any material respect when made; or
(c) Breach of Certain Covenants. The Company shall fail to perform
or observe (i) any term, covenant or agreement contained in Section 5.03(a),
5.03(c), 5.03(h), 5.03(i), 5.03(j), 5.03(k) or 5.04, or (ii) the covenant
contained in Section 5.03(f), which failure arises from a merger or
consolidation involving the Company or the sale of all or any substantial part
of the assets of the Company, or (iii) any other term, covenant or agreement
contained in this Agreement on its part to be performed or observed (unless
otherwise constituting an Event of Default under any of the other provisions
of this Section 6.01) if such failure shall remain unremedied for thirty (30)
days after written notice thereof shall have been given to the Company by the
Administrative Agent; or
(d) Default as to Other Debt. The Company or any of its
Subsidiaries shall fail to pay any principal of or premium or interest on any
of its Debt which is outstanding in a principal amount of at least the
Individual Material Amount individually or the Aggregate Material Amount in
the aggregate (but excluding (i) the Obligations, (ii) any Debt of a
Subsidiary of the Company to the Company or another of its Subsidiaries, (iii)
any Non-Recourse Obligations, and (iv) any Debt of a Non-Recourse Subsidiary),
when the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any such
Debt and shall continue after the applicable grace period, if any, specified
in such agreement or instrument, if the effect of such event or condition is
to accelerate, or to permit the acceleration of, the maturity of such Debt; or
any such Debt shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment), redeemed,
purchased or defeased, or an offer to prepay, redeem, purchase or defease such
Debt shall be required to be made, in each case prior to the stated maturity
thereof; or
(e) Other Defaults. The Company or any of its Subsidiaries shall
fail to pay when due, whether by acceleration or otherwise, or shall fail to
perform or observe (subject to any applicable grace period) any material
obligation or agreement of the Company or such Subsidiary involving a claim or
claims in excess of the Individual Material Amount individually or the
Aggregate Material Amount in the aggregate (but excluding (i) any such
material obligation or agreement constituting or related to Debt for borrowed
money, (ii) the Obligations, and (iii) any material obligation or agreement of
any Subsidiary of the Company to the Company or another of its Subsidiaries),
except to the extent that the existence of any such default is being contested
by the Company or such Subsidiary, as the case may be, in good faith and by
appropriate proceedings and the Company or such Subsidiary shall have set
aside on its books such reserves or other appropriate provisions therefor as
may be required by GAAP; or
(f) Insolvency of the Company or a Material Subsidiary. The
Company or any of the Material Subsidiaries (other than a Non-Recourse
Subsidiary) shall generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts generally, or shall make
a general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Company or any Material Subsidiary (other than a
Non-Recourse Subsidiary) seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating
to bankruptcy, insolvency or reorganization or relief of debtors, or seeking
the entry of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it (but
not instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 30 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur; or
the Company or any of the Material Subsidiaries (other than a Non-Recourse
Subsidiary) shall take any corporate action to authorize any of the actions
set forth above in this subsection (f); or
(g) Insolvency of Other Subsidiaries. In any twelve-month period,
Subsidiaries (other than Non-Recourse Subsidiaries) of the Company having
aggregate total assets of $20,000,000 or more shall generally not pay their
debts as such debts become due, or shall admit in writing their inability to
pay their debts generally, or shall make a general assignment for the benefit
of creditors; or any proceeding shall be instituted by or against such
Subsidiaries seeking to adjudicate them bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of such Subsidiaries or their debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for them or for any substantial
part of their property and, in the case of any such proceeding instituted
against such Subsidiaries (but not instituted by them), either such proceeding
shall remain undismissed or unstayed for a period of 30 days, or any of the
actions sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, them or for any substantial part of
their property) shall occur; or such Subsidiaries shall take any corporate
action to authorize any of the actions set forth above in this subsection (g);
provided, that where a 30-day period referred to above would end after any
relevant twelve-month period, such twelve-month period shall be deemed
extended to include all days in such 30-day period; or
(h) Judgments. Judgments or orders for the payment of money in
excess of the Individual Material Amount individually or the Aggregate
Material Amount in the aggregate shall be rendered against the Company or any
of its Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall be
any period of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; provided, that this Section 6.01(h) shall not include any judgments or
orders to the extent that the Company or the applicable Subsidiary is (1)
insured and with respect to which the insurer thereof has assumed
responsibility in writing or (2) otherwise indemnified in a manner
satisfactory to the Administrative Agent and the Lending Agent; or
(i) Change in Control. Any person or group of persons (within the
meaning of Section 13 or Section 14 of the Securities Exchange Act of 1934, as
amended (the "Act")) shall acquire beneficial ownership (within the meaning of
Rule 13d-3 promulgated by the Securities and Exchange Commission under the
Act), either directly or indirectly, of 35% or more of the combined voting
power of the Company's outstanding securities ordinarily having the right to
vote at elections of directors.
Section 6.02. Remedies. If any event described in Section 6.01(f) shall
occur, the Commitments of each Bank (if not theretofore terminated) shall
immediately terminate, and the Loans and all other Obligations payable
hereunder shall become immediately due and payable, and the Company shall
immediately pay to the Administrative Agent the amount of all Loans
outstanding and all other Obligations payable hereunder in full, all without
presentment, demand, protest or notice of any kind (all of which are hereby
expressly waived). If any Event of Default not described in Section 6.01(f)
occurs, the Administrative Agent may with the consent of the Lending Agent,
and shall upon direction of the Majority Banks, declare the Commitments of
each Bank (if not theretofore terminated) to be terminated, and the Loans and
all other Obligations payable hereunder to be due and payable, whereupon each
Bank's Commitments (if not theretofore terminated) shall immediately
terminate and the Loans and all other Obligations payable hereunder shall
become immediately due and payable and the Company shall immediately pay to
the Administrative Agent the amount of all Loans outstanding and all other
Obligations payable hereunder in full, all without presentment, demand,
protest or notice of any kind (all of which are hereby expressly waived).
ARTICLE VII
Section 7.01. Authorization and Action. (a) Each Bank hereby appoints and
authorizes the Agents to take such action as agents on its behalf and to
exercise such powers under this Agreement as are delegated to the Agents by
the terms hereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement or collection of the Obligations)
, the Agents shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions
of the Majority Banks, and such instructions shall be binding upon all Banks
and all holders of Notes; provided, however, that no Agent shall be required
to take any action which exposes such Agent to personal liability or which is
contrary to this Agreement or applicable law.
(b) The provisions of this Article VII are solely for the benefit
of the Agents and the Banks, and neither the Company nor any Subsidiary of the
Company shall have any rights to rely on or enforce any of the provisions
hereof (other than as expressly set forth in Section 7.07). In performing its
functions and duties under this Agreement, each Agent shall act solely as
agent, as the case may be, of the Banks, and does not assume and shall not be
deemed to have assumed any obligation toward or relation-ship of agency or
trust with or for the Company or any Subsidiary of the Company. Each of the
Agents may perform any of its duties hereunder, or under the Credit Documents,
by or through its agents or employees.
.02. Nature of Agents' Duties. The Agents shall not have any duties or
responsibilities except those expressly set forth in this Agreement or in the
other Credit Documents. The duties of the Agents shall be administrative in
nature. No Agent shall have by reason of this Agreement a fiduciary
relation-ship in respect of any Bank. Nothing in this Agreement or any of the
other Credit Documents, expressed or implied, is intended to or shall be
construed to impose upon the Agents any obligation in respect of this
Agreement or any of the other Credit Documents except as expressly set forth
herein or therein. If either Agent seeks the consent or approval of the Banks
to the taking or refraining from taking any action hereunder, such Agent shall
send notice thereof to each Bank. The Administrative Agent shall promptly
notify each Bank at any time that the Banks have instructed the Agents to act
or refrain from acting pursuant hereto.
.03. Rights, Exculpation, Etc. (a) Neither the Agents nor any of their
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement, except for its or their own gross negligence or willful
misconduct. No Agent shall be responsible or account-able for the acts or
omissions of any other Agent. None of the Administrative Agent or the Lending
Agent shall be liable for any apportion-ment or distribution of payments made
by it in good faith pursuant to the terms of this Agreement, and if any such
apportionment or distribution is subsequently determined to have been made in
error the sole recourse of any Person to whom payment was due, but not made,
shall be to recover from the recipients of such payments any payment in excess
of the amount to which they are determined to have been entitled.
(b) Each Agent: (i) may consult with legal counsel (including
counsel for the Company), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (ii) makes no warranty or representation to any Bank
and shall not be responsible to any Bank for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iii) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of the Company or to inspect the property (including the
books and records) of the Company; (iv) shall not be responsible to any Bank
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (v) shall incur no liability under or in
respect of this Agreement by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telephone, telecopier, telegram,
cable or telex) believed by it to be genuine and signed or sent by the proper
party or parties.
(c) The Agents may at any time request instructions from the Banks
with respect to any actions or approvals which by the terms of this Agreement
or of any of the other Credit Documents the Agents are permitted or required
to take or to grant, and if such instruc-tions are promptly requested, the
Agents shall be absolutely entitled to refrain from taking any action or to
withhold any approval and shall not be under any liability whatsoever to any
Person for refraining from any action or withholding any approval under any of
the Credit Documents until they shall have received such instructions from the
Majority Banks or all of the Banks, as applicable. Without limiting the
foregoing, no Bank shall have any right of action whatsoever against any of
the Agents as a result of such Agent acting or refraining from acting under
this Agreement or any of the other Credit Documents in accordance with the
instructions of the Majority Banks or all of the Banks, as applicable.
Section 7.04. Rights as a Bank. With respect to its Commitment and the
Loans made by it, each of the Agents in its capacity as a Bank hereunder
shall have the same rights and powers under this Agreement as any other Bank
and may exercise the same as though it were not an Agent; and the term "Bank"
or "Banks" shall, unless otherwise expressly indicated, include each Agent in
its individual capacity. Each Agent in its individual capacity and its
affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, the Company
, any of its Subsidiaries and any Person who may do business with or own
securities of the Company or any such Subsidiary, all as if it were not an
Agent and without any duty to account therefor to the Banks.
Section 7.05. Bank Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon either Agent or any other Bank and
based on the financial statements referred to in Section 4.01(a) and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Bank also
acknowledges that it will, independently and without reliance upon either
Agent or any other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement. The Agents shall not be
required to keep themselves informed as to the performance or observance by
the Company of this Agreement or any other document referred to or provided
for herein or to inspect the properties or books of the Company. Except for
notices, reports and other documents and information expressly required to be
furnished to the Banks by the Agents hereunder, the Agents shall not have any
duty or responsibility to provide any Bank with any credit or other
information concerning the affairs, financial condition or business of the
Company, which may come into the possession of the Agents or any of their
affiliates.
Section 7.06. Indemnification. The Banks agree to indemnify each of the
Agents (to the extent not reimbursed by the Company), ratably according to
their respective Pro Rata Shares, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against such Agent in any way relating to
or arising out of this Agreement or any action taken or omitted by such Agent
under this Agreement, provided that no Bank shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent's own gross
negligence or willful misconduct. Without limitation of the foregoing, each
Bank agrees to reimburse each Agent promptly upon demand for its ratable share
of any out_of_pocket expenses (including counsel fees) incurred by such Agent
in connection with the administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, to the
extent that such Agent is not reimbursed for such expenses by the Company.
Section 7.07. Resignation or Removal of Agents. Subject to the appointment
and acceptance of a successor Agent as provided below, (a) either Agent may
resign as Agent hereunder at any time by giving not less than 10 days' prior
written notice thereof to the Banks and the Company, and (b) Banks whose Pro
Rata Shares aggregate to at least seventy percent (70%) may, by written
agreement, remove either Agent with the consent of the Company (provided,
that the consent of the Company shall not be required after the occurrence
and during the continuance of an Event of Default). Upon any such
resignation or removal the Majority Banks shall have the right, after
consultation with the Company, to appoint a successor Agent. If no successor
Agent shall have been so appointed by the Majority Banks and shall have
accepted such appointment within 30 days after the retiring Agent's giving of
notice of resignation or of the agreement of the Banks to remove such Agent,
then (i) if such Agent resigned and was not removed by the Banks, such retiring
Agent may, on behalf of the Banks, after consultation with the Company,
appoint one of the Banks to be successor Agent, (ii) in the event of the
removal by the Banks of the Lending Agent, the Administrative Agent may, on
behalf of the Banks, after consultation with the Company, appoint one of the
Banks (which may be the Administrative Agent) to be successor Lending Agent,
and (iii) in the event of the removal by the Banks of the Administrative
Agent, the Lending Agent may, on behalf of the Banks, after consultation with
the Company, appoint one of the Banks (which may be the Lending Agent) to be
successor Administrative Agent. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the departing Agent as Agent hereunder, and the departing Agent
shall be discharged from its duties and obligations as Agent hereunder.
After any departing Agent's resignation or removal, the provisions of this
Article VII shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as Agent.
ARTICLE VIII
Section 8.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes, nor consent to any departure by the Company from
the terms thereof, shall in any event be effective unless the same shall be
in writing and signed by the Majority Banks, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all the Banks, do any of the following:
(a) waive any of the conditions specified in Article III, (b) increase the
Commitments of the Banks or subject the Banks to any additional obligations,
(c) reduce the principal of, or interest on, the Loans or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Loans or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans, or the number of Banks, which shall be
required for the Banks or any of them to take any action hereunder or (f)
amend Section 2.10(f) or 2.12, Section 8.07, or this Section 8.01; and
provided, further, that no amendment, waiver or consent shall, unless in
writing and signed by the affected Agents in addition to the Banks required
above to take such action, affect the rights or duties of either Agents under
this Agreement or any Note.
Section 8.02. Notices. To be effective, all notices and other
communications provided for hereunder shall be in writing or by telecopy
transmission or telephone (to be confirmed in writing) and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made
when delivered by hand, when deposited in the mail, air postage prepaid, or
in the case of notice by telecopy transmission, when sent, addressed as
follows in the case of the Company, the Banks and the Agents, or to such
address as may be hereafter notified in writing by the respective parties
hereto and any future holders of a Note, provided that all Notices of
Syndicated Borrowing under Section 2.02 hereof, all Notices of Bid Rate
Borrowing under Section 2.04 hereof, all Notices of Conversion/Continuation
under Section 2.08 hereof and all notices and communications to the Agents
pursuant to Article VII shall only be effective when received:
(a) If to the Company:
Comdisco, Inc.
6111 North River Road
Rosemont, Illinois 60018
Attention: Edward Pacewicz
Vice President/Finance
Telephone: (708) 698_3000
Telecopy: (708) 518_5854
with a copy to:
Comdisco, Inc.
6111 North River Road
Rosemont, Illinois 60018
Attention: General Counsel
Telephone: (708) 698_3000
Telecopy: (708) 518_5088
(b) If to any Bank:
To its address set forth below
its name on the signature pages
hereof, with a copy to the
Administrative Agent;
(d) If to the Administrative Agent:
Citibank, N.A.
c/o Citicorp North America, Inc.
200 South Wacker Drive
31st Floor
Chicago, Illinois 60606
Attention: John Coons
Telephone: (312) 993-3184
Telecopy: (312) 993-1050
with a copy to:
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Attention: Douglas H. Williams
Telephone: (312) 853-7667
Telecopy: (312) 853-7036
(e) If to the Lending Agent:
NationsBank of North Carolina, N.A.
70 West Madison Street
Suite 5300
Chicago, Illinois 60602
Attention: Michael S. Zehfuss
Telephone: (312) 853-5795
Telecopy: (312) 372-9194
with a copy to:
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
Attention: Douglas H. Williams
Telephone: (312) 853-7667
Telecopy: (312) 853-7036
Section 8.03. No Waiver; Remedies. No failure on the part of any Bank or
either Agent to exercise, and no delay in exercising, any right hereunder or
under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
Section 8.04. Fees and Expenses; Indemnity. (a) The Company will promptly
pay all reasonable fees and expenses and disbursements of counsel to the
Administrative Agent and the Lending Agent in connection with the preparation,
execution and delivery of this Agreement and the other Credit Documents, the
consummation of the transactions contemplated by the Credit Documents, the
negotiation, preparation and execution and delivery of any material amendment,
modification of, supplement of or to any Credit Document (other than any fee,
cost or expense in connection with assignments or sales of participations by
any Bank pursuant to Section 8.06 hereof). In addition, the Company will
promptly pay all reasonable costs and expenses (including, without limitation,
reasonable fees and disbursements of counsel) suffered or incurred by the
Agents or the Banks in connection with (A) their enforcement of the payment of
the Loans, the Notes or any other sum due to the Agents or the Banks under
this Agreement or any of their other rights hereunder or thereunder as a
result of any Event of Default or any Unmatured Event of Default or (B) any
claim or action threatened, made or brought against the Agents or the Banks
arising out of or relating to any extent to this Agreement or the transactions
contemplated hereby. The obligations of the Company under this subsection
shall survive the payment of the Loans and the termination of this Agreement.
(b) In addition to the foregoing, the Company shall indemnify
each of the Agents and the Banks and the officers, directors, employees and
agents of the Agents and the Banks (collectively, the "Indemnitees") against,
and hold each Indemnitee harmless from, any losses, liabilities, damages,
claims, costs and expenses (including reasonable attorneys' fees and
disbursements) suffered or incurred by or asserted against such Indemnitee
(other than as a consequence of actual gross negligence or willful misconduct
on the part of such Indemnitee) arising out of, resulting from or in any
manner connected with, the execution, delivery and performance of any of the
Credit Documents or the incurrence of the Loans, and any and all transactions
related thereto or consummated in connection therewith, including, without
limitation, losses, liabilities, damages, claims, costs and expenses suffered
or incurred by such Indemnitee in investigating, preparing for, defending
against, or providing evidence, producing documents or taking any other action
in respect of any commenced or threatened litigation, administrative
proceeding or investigation under any federal securities law or any other
statute or any jurisdiction, or any regulation, or at common law or otherwise,
which litigation, proceeding or investigation is alleged to arise out of or is
based upon (1) any untrue statement or alleged untrue statement of any
material fact of the Company and its Affiliates and Subsidiaries in this
Agreement or any document, certificate or written matter delivered pursuant
hereto or pursuant to any other Credit Document or in any document or schedule
filed with the Securities and Exchange Commission or any other governmental
body; (2) any omission or alleged omission to state any material fact required
to be stated in this Agreement or any document, certificate or written matter
delivered pursuant hereto or pursuant to any other Credit Document or in such
document or schedule, or necessary to make the statements made herein or
therein, in light of the circumstances under which made, not misleading; (3)
any acts, practices or omissions or alleged acts, practices or omissions of
the Company or its agents related to the making of any acquisition, purchase
of shares or assets pursuant thereto, financing of any such purchase or the
consummation of any other transaction contemplated by any such acquisition
which are alleged to be in violation of any federal securities law or of any
other statute, regulation or other law of any jurisdiction applicable to the
making of any such acquisition, the purchase of shares or assets pursuant
thereto, the financing of any such purchase or the consummation of the other
transaction contemplated by any such acquisition; or (4) any withdrawal,
termination or cancellation of any such proposed acquisition for any reason
whatsoever. The indemnity set forth herein shall be in addition to any other
obligations or liabilities of the Company to the Agents and the Banks
hereunder or at common law or otherwise. The provisions of this subsection
shall survive the payment of the Loans and the termination of this Agreement.
Section 8.05. Successors and Assigns; Subsequent Holders of Notes. This
Agreement and the other Credit Documents shall be binding upon the parties
hereto and thereto and their respective successors and assigns and shall
inure to the benefit of the parties hereto and thereto and the successors and
permitted assigns of the Banks. All references herein to the Company shall
be deemed to include its successors and assigns, including, without
limitation, a receiver, trustee or debtor-in-possession of or for the Company.
The terms and provisions of this Agreement shall inure to the benefit of any
assignee or transferee of the Notes, and in the event of such transfer or
assignment, the obligations, rights and privileges herein conferred upon the
Banks shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions hereof. The Company's
rights and any interests therein hereunder, and the Company's duties and
Obligations hereunder, may not be assigned without the written consent of all
of the Banks.
Section 8.06. Assignments and Participations.
(a) Each Bank may and, if demanded by the Company pursuant to
Section 8.08, will assign to one or more banks or other entities all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment, the Loans owing to it and the
Note or Notes held by it); provided, however, that (i) each such assignment
shall be of a specified percentage of the assigning Bank's Commitments, (ii)
except with respect to an assignment by a Bank of all of its rights and
obligations under this Agreement or an assignment by one Bank to another Bank,
the amount of the Commitment of the assigning Bank being assigned pursuant to
each such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall not be less than $5,000,000,
(iii) except for an assignment to another Bank or an Affiliate thereof, each
such assignment shall be subject to the prior written approval of the Company
and the Agents, (iv) each such assignment made as a result of a demand by the
Company pursuant to Section 8.08 shall be either an assignment of all of the
rights and obligations of the assigning Bank under this Agreement or an
assignment of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments which together cover all of
the rights and obligations of the assigning Bank under this Agreement, and (v)
the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note or Notes subject to such
assignment and a processing and recordation fee of $3,000. Upon such
execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment and Acceptance,
have the rights and obligations of a Bank hereunder and (y) the Bank assignor
thereunder shall, to the extent that rights and obligations hereunder have
been assigned by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the remaining portion of
an assigning Bank's rights and obligations under this Agreement, such Bank
shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Bank assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Company or the performance or observance by the Company of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to
in Section 4.01(a) and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon either Agent, such assigning Bank or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee appoints and authorizes each Agent to take
such action as agent on its behalf and to exercise such powers under this
Agreement as are delegated to such Agent by the terms hereof, together with
such powers as are reasonably incidental thereto; and (vi) such assignee
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed
by it as a Bank.
(c) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Banks and the Commitment of, and principal amount of the
Loans owing to, each Bank from time to time (the "Register"). The entries in
the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Company, the Agents and the Banks may treat each Person whose
name is recorded in the Register as a Bank hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Company or
any Bank at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance executed by
an assigning Bank and an assignee, together with any Note or Notes subject to
such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed in accordance with the terms hereof and is in
substantially the form of Exhibit E hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Company. Within five Business Days
after its receipt of such notice, the Company, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the
surrendered Note or Notes a new Note or Notes to the order of such assignee
and, if the assigning Bank has retained a Commitment hereunder, a new Note or
Notes to the order of the assigning Bank. Such new Note or Notes shall be
dated the effective date of such Assignment and Acceptance and shall otherwise
be in substantially the form of Exhibit F-1 or F-2 hereto, as applicable.
(e) Each Bank may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment, the Loans owing to it and the Note or Notes held by it); provided,
however, that (i) such Bank's obligations under this Agreement (including,
without limitation, its Commitment to the Company hereunder) shall remain
unchanged, (ii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) such Bank shall remain
the holder of any such Note for all purposes of this Agreement, and (iv) the
Company, the Agents and the other Banks shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement.
(f) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.06, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Company and its Subsidiaries
furnished to such Bank by or on behalf of the Company; provided that, prior to
any such disclosure, the assignee or participant or proposed assignee or
participant shall agree to be bound by the provisions set forth in Section
8.09.
(g) Notwithstanding any other provision set forth in this
Agreement, any Bank may at any time assign, as collateral or otherwise, any of
its rights (including, without limitation, rights to payments of principal
and/or interest on the Loans) under this Agreement to any Federal Reserve Bank
without notice to or consent of the Company or either Agent.
Section 8.07. Extension of Commitment Termination Date. (a) The Company
may, by delivery to the Administrative Agent of written notice substantially
in the form of Exhibit G hereto, request that the Commitment Termination Date
then in effect be extended as set forth in subsection (b) below. The
Administrative Agent shall give prompt notice to the Banks of each such
request and each Bank shall, no earlier than the thirtieth (30th) day
preceding such Commitment Termination Date and no later than the twentieth
(20th) day preceding such Commitment Termination Date, notify the
Administrative Agent in writing whether it consents to such extension (which
consent shall be in the sole discretion of each Bank). In the event that any
Bank shall fail to so notify the Administrative Agent, such Bank shall be
deemed to have refused to consent to such extension. The Administrative
Agent shall notify the Company in writing of the decisions of the Banks under
this Section 8.07(a) no later than the fifteenth (15th) day preceding such
Commitment Termination Date. If the Administrative Agent receives timely
consents from Banks constituting Majority Banks (or the Company otherwise
consents in writing), and subject to the satisfaction of the conditions
precedent set forth in Section 3.02 (both before and after the requested
extension), then (i) the Commitment Termination Date shall be extended as set
forth in subsection (b) below, (ii) each Bank consenting to the requested
extension shall remain a Bank hereunder, and (iii) each Bank not consenting
to such extension shall, as of the Commitment Termination Date (without
giving effect to the applicable extension thereof) and upon payment by the
Company of all Obligations owing to such Bank, cease to be a Bank hereunder,
whereupon its Commitment shall terminate. In the event that (x) Majority
Banks do not consent to the extension and the Company has not consented in
writing to an extension with fewer than Majority Banks party thereto, or (y)
the conditions precedent set forth in Section 3.02 are not satisfied both
before and after giving effect to the requested extension, then in either
case the Commitment Termination Date shall take place as scheduled.
(b) By delivery of the written notice referred to in subsection (a)
above no earlier than the sixtieth (60th) day preceding any Commitment
Termination Date, the Company may request an extension of such Commitment
Termination Date for an additional period not to exceed three hundred
sixty-four (364) days. In no event, however, shall the term of this
Agreement, after giving effect to any extension of the Commitment Termination
Date at any time as herein provided, exceed a period of 364 days.
SECTION 8.08. Replacement or Removal of a Bank in the Event of an
Adverse Condition. (i) In the event a Bank (an "Affected Bank") shall have:
(a) failed to fund its Pro Rata Share of any Loan requested by the Company
which such Bank is obligated to fund under the terms of this Agreement and
such failure has not been cured, (b) either repudiated its obligations under
this Agreement or failed to reaffirm such obligations in writing within five
(5) Business Days of a written request therefor from the Administrative Agent
, (c) delivered to the Company a notice described in Section 8.08(vi), (d)
made demand for additional amounts pursuant to Section 9.04 or 9.05 as a
result of any condition described in any such Section, or (e) declined to
consent to an extension of the Commitment Termination Date pursuant to
Section 8.07, then, unless such Affected Bank has theretofore taken steps to
remove or cure, and has removed or cured, such failure or the circumstances
described in such notice or the conditions creating the cause for such
demand for such additional amounts, as the case may be, the Company may either:
(x) designate another financial institution acceptable to the Agents
(such institution being herein called a "Replacement Bank") to purchase the
Notes of the Affected Bank and such Affected Bank's rights and obligations as
a Bank hereunder, without recourse to or warranty by, or expense to, such
Affected Bank for a purchase price equal to the outstanding principal amount
of the Notes payable to such Affected Bank plus any accrued but unpaid
interest on such Notes and, if applicable, accrued but unpaid fees and
expenses owed hereunder or in connection herewith to such Affected Bank, and
upon such purchase and the payment of the additional amounts described above
and all other Obligations owing to such Affected Bank, such Affected Bank
shall no longer be a Bank or have any rights as a Bank hereunder (other than
rights to indemnification pursuant to Section 9.12 or Section 15.04), and the
Replacement Bank shall succeed to such rights and obligations of such
Affected Bank hereunder; or
(y) pay to such Affected Bank an amount equal to the out-standing
principal amount of the Notes payable to such Affected Bank plus any accrued
but unpaid interest on such Notes and, if applicable, accrued but unpaid fees
and expenses owed hereunder or in connection herewith to the Affected Bank,
and upon such payment of the additional amounts described above and all other
Obligations owing to such Affected Bank, such Affected Bank shall no longer
be a Bank or have any rights as a Bank hereunder (other than rights to
indemnification pursuant to Section 9.12 or Section 15.04).
(ii) If the removed or replaced Affected Bank is also an Agent
hereunder, such Affected Bank shall resign in its capacities as Agent in
accordance with Section 7.07.
(iii) Each Bank agrees to use its best efforts to notify the
Company as promptly as practicable upon such Bank's becoming aware that
circumstances exist which would cause the Company to become obligated to pay
additional amounts to such Bank pursuant to Section 9.04 or 9.05; provided,
that the failure by any Bank to give such notice shall not affect the
obligations of the Company under such Sections.
Section 8.09. Confidentiality. Each Bank agrees to hold confidential all
non-public information (which has been identified as such by the Company or
any Subsidiary of the Company) obtained pursuant to the requirements of this
Agreement in accordance with its customary procedures for handling
confidential information of such nature and in accordance with safe and sound
banking practices; it being understood that any Bank may disclose such
information to any of its examiners, Affiliates (other than any Affiliate
engaged in the leasing business), outside auditors, counsel and other
professional advisors in connection with this Agreement or to any actual or
prospective assignee or participant or as required or requested by any
governmental agency or representative thereof or pursuant to legal process;
provided, however, that
(a) unless specifically prohibited by applicable law or court
order, each Bank shall make reasonable efforts to notify the Company of any
request by any governmental agency or representative thereof (other than any
such request in connection with an examination of the financial condition of
such Bank by such governmental agency) for disclosure of any such non-public
information prior to disclosure of such information; and
(b) prior to any disclosure of non-public information to an
actual or prospective assignee or participant, each Bank shall require the
Person receiving such disclosure to agree in writing (i) to be bound by this
Section 8.09; and (ii) to require any other Person to whom such Person
discloses such non-public information to be similarly bound by this Section
8.09.
Section 8.10. Change in Accounting Principles. Except as otherwise provided
herein, if any changes in GAAP from the principles in effect on and as of the
Closing Date are hereafter required or permitted by the rules, regulations,
pronouncements and opinions of the Financial Accounting Standards Board of the
American Institute of Certified Public Accountants (or successors thereto or
agencies with similar functions) and are adopted by the Company with the
agreement of its independent certified public accountants and such changes
result in a change in the method of calculation of any of the financial
covenants, standards or terms found in Section 12.04 hereof, the parties
hereto agree to enter into negotiations in order to amend such provisions so
as to equitably reflect such changes with the desired result that the criteria
for evaluating the Company's financial condition shall be the same after such
changes as if such changes had not been made, provided, however, that no
change in GAAP that would affect the method of calculation of any of the
financial covenants, standards or terms shall be given effect in such
calculations until such provisions are amended, in a manner satisfactory to
the Majority Banks, to so reflect such change in GAAP.
Section 8.11. Independence of Covenants. All covenants hereunder shall be
given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another covenant
shall not avoid the occurrence of an Event of Default or Unmatured Event of
Default if such action is taken or condition exists.
Section 8.12. Survival of Warranties and Agreements. All agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement and the other Credit Documents and the making and
repayment of the Loans hereunder.
Section 8.13. Payments Set Aside. To the extent that the Company makes a
payment or payments to the Agents or the Banks, or the Agents or the Banks
exercise their rights of set-off, and such payment or payments or the
proceeds of such set-off or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law,
state or federal law, common law or equitable cause, then to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied, and all rights and remedies therefor, shall be revived and
continued in full force and effect as if such payment had not been made or
such set-off had not occurred.
Section 8.14. Severability. In case any provision in or obligation under
this Agreement or the Notes or the other Credit Documents shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
Section 8.15. Headings. Article and section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive
effect.
Section 8.16. Governing Law. This Agreement shall be governed by, and shall
be construed and enforced in accordance with, the laws (including, without
limitation, Section 5-1401 of the General Obligations Laws, but otherwise
without regard to conflicts of laws principles) and decisions of the State of
New York.
Section 8.17. Limitation of Liability. To the extent permitted by
applicable law, no claim may be made by the Company, any Bank or any other
Person against the Agents or any other Bank or the Affiliates, directors,
officers, employees, attorneys or agents of any of them for any special,
indirect, consequential or punitive damages in respect of any claim for
breach of contract or any other theory of liability arising out of or related
to the transactions contemplated by the Credit Documents, or any act,
omission or event occurring in connection therewith; and the Company and each
Bank hereby waives, releases and agrees not to sue upon any claim for any
such damages, whether or not accrued and whether or not known or suspected to
exist in its favor.
Section 8.18. Consent to Jurisdiction and Service of Process. All judicial
proceedings brought against the Company with respect to this Agreement or any
other Credit Document may be brought in any state or federal court of
competent jurisdiction in the State of New York, and by execution and delivery
of this Agreement, the Company accepts, for itself and in connection with its
properties, generally and unconditionally, the nonexclusive jurisdiction of
the aforesaid courts, and irrevocably agrees to be bound by any final judgment
rendered thereby in connection with this Agreement or any of the other Credit
Documents from which no appeal has been taken or is available. The Company
waives personal service upon it, and irrevocably designates and appoints CT
Corporation System, 1633 Broadway, New York, New York 10019, as its agent to
receive on its behalf service of all process in any such proceedings in any
such court, such service being hereby acknowledged by the Company to be
effective and binding service in every respect. The Company irrevocably
consents to the service of process of any of the aforementioned courts in any
such action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to its notice address referred to in Section
15.02, such service to become effective ten (10) days after such mailing.
EACH OF THE COMPANY, THE AGENTS AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION
(INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED
ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER CREDIT DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. Nothing
herein shall affect the right to serve process in any other manner permitted
by law or shall limit the right of the Agents or any Bank to bring
proceedings against the Company in the courts of any other jurisdiction.
Section 8.19. Waiver of Jury Trial. EACH OF THE COMPANY, THE AGENTS AND THE
BANKS IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG ANY OF THE PARTIES HERETO
ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
OR ANY OTHER CREDIT DOCUMENT. ANY PARTY HERETO MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
Section 8.20. Counterparts; Effectiveness; Inconsistencies. This Agreement
and any amendments, waivers, con-sents, or supplements may be executed in
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument. This Agreement shall become effective against the Company,
each Bank and the Agents hereto on the Closing Date. This Agreement and each
of the other Credit Documents shall be construed to the extent reasonable to
be consistent one with the other, but to the extent that the terms and
conditions of this Agreement are actually inconsis-tent with the terms and
conditions of any other Credit Docu-ment, this Agreement shall govern.
Section 8.21. Construction. The parties acknowledge that each party and its
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement
or any amendments or exhibits hereto.
Section 8.22. Entire Agreement. This Agreement, taken together with all of
the other Credit Documents and all certificates and other documents delivered
by the Company to the Agents or the Banks, embodies the entire agreement and
supersedes all prior agreements, written and oral, relating to the subject
matter hereof.
Section 8.23. Additional Banks. The Company may, with the prior written
consent of the Administrative Agent, add additional Banks to this Agreement.
Each such additional Bank shall execute a supplemental counterpart to this
Agreement setting forth the Commitment of such additional Bank and its Pro
Rata Share as computed by the Administrative Agent as of the effective date
of such new Bank's addition to the Agreement. The Administrative Agent shall
notify each existing Bank in writing of the increased Commitments and each
Bank's revised Pro Rata Share as of the effective date of such new Bank's
addition to the Agreement. Upon the execution and delivery of such
supplemental counterpart the new Bank shall be deemed automatically to have
become a party hereto. The Company shall, within five Business Days
thereafter, execute and deliver to the Administrative Agent, for delivery to
the new Bank, Notes evidencing such Bank's assigned Loans and Commitment
hereunder. With respect to outstanding Loans, the additional Bank shall
promptly fund its Pro Rata Share of Base Rate Loans, by making payment
thereof to the Lending Agent for distribution to the other Banks. In the
case of Eurodollar Rate Loans, such funding shall be made on the last day of
the then current Interest Period of each such Eurodollar Rate Loan and the
Banks' Pro Rata Shares in each such outstanding Eurodollar
Rate Loan shall not be adjusted by virtue of the addition of such new Bank
until the last day of such Interest Period.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
COMDISCO, INC.
By _
Edward A. Pacewicz
Vice President/Finance
<PAGE>
Commitment
$14,333,333.00 CITIBANK, N.A., as Administrative
Agent and as a Bank
By _
Name:
Title:
Address:
c/o Citicorp North America, Inc.
200 South Wacker Drive
31st Floor
Chicago, Illinois 60606
Attention: John Coons
Telephone: (312) 993-3184
Telecopy: (312) 993-1050
<PAGE>
Commitment
$14,333,334.00 NATIONSBANK OF NORTH CAROLINA, N.A.,
as Lending Agent and as a Bank
By_________________________________
Name:
Title:
Address:
70 West Madison Street
Suite 5300
Chicago, Illinois 60602
Attention: Michael S. Zehfuss
Telephone: (312) 853-5795
Telecopy: (312) 372-9194
<PAGE>
Commitment
$6,000,000.00 WESTPAC BANKING CORPORATION, as
a Bank
By _
Name:
Title:
Address:
335 Madison Avenue
New York, New York 10017-4681
Attention: Craig Jones
Telephone: (212) 850-7862
Telecopy: (212) 850-7619
<PAGE>
Commitment
$10,333,333.00 THE BANK OF TOKYO, LTD., CHICAGO
BRANCH, as a Bank
By _
Name:
Title:
Address:
69 West Washington Street
Chicago, Illinois 60602
Attention: Dino Janis
Telephone: (312) 236-4973
Telecopy: (312) 236-8268
<PAGE>
Commitment
$7,666,667.00 THE FIRST NATIONAL BANK OF BOSTON,
as a Bank
By _
Name:
Title:
Address:
100 Federal Street
Boston, Massachusetts 02110
Attention: Rod Guinn
Telephone: (617) 434-7690
Telecopy: (617) 434-6685
<PAGE>
Commitment
$5,000,000.00 CAISSE NATIONALE DE CREDIT AGRICOLE,
as a Bank
By _
Name:
Title:
Address:
55 East Monroe Street
Chicago, Illinois 60603
Attention: Laurence Grant
Telephone: (312) 917-7456
Telecopy: (312) 372-2830
<PAGE>
Commitment
$5,000,000.00 COMERICA BANK, as a Bank
By _
Name:
Title:
Address:
National Corporate Banking
500 Woodward Avenue
M/C 3279
Detroit, Michigan 48226
Attention: Theresa M. Owen
Telephone: (313) 222-3818
Telecopy: (313) 222-3330
<PAGE>
Commitment
$10,333,333.00 CIBC, INC., as a Bank
By _
Name:
Title:
Address:
275 Battery Street
Suite 1840
San Francisco, California 94111
Attention: Tom R. Wagner
Telephone: (415) 399-5744
Telecopy: (415) 399-5761
<PAGE>
Commitment
$6,000,000.00 BANK HAPOALIM, as a Bank
By _
Name:
Title:
By _
Name:
Title:
Address:
174 North Michigan Avenue
Chicago, Illinois 60601
Attention: Philip Langheim
Phone: (312) 407-9463
Fax: (312) 621-1985
<PAGE>
Commitment
$5,000,000.00 U.S. BANK OF OREGON, as
a Bank
By _
Name:
Title:
Attention:
National Corporate Banking
309 S.W. Sixth Avenue, BB-10
Portland, Oregon 97204
Attention: Jeffrey Swift
Telephone: (503) 275-6381
Telecopy: (503) 275-4346
<PAGE>
Commitment
$10,333,333.00 THE FUJI BANK, LIMITED,
as a Bank
By _
Name:
Title:
Attention:
The Fuji Bank, Limited, Chicago Branch
225 West Wacker Drive
Suite 2000
Chicago, Illinois 60606
Attention: Stephen P. Peca
Telephone: (312) 621-9484
Telecopy: (312) 621-0539 or
(312) 419-3677
<PAGE>
Commitment
$7,666,667.00 THE SANWA BANK, LIMITED, CHICAGO
BRANCH, as a Bank
By _
Name:
Title:
Address:
10 South Wacker Drive
Chicago, Illinois 60606
Attention: Ken Eichwald
Telephone: (312) 368-3006
Telecopy: (312) 346-6677
<PAGE>
Commitment
$10,333,333.00 THE YASUDA TRUST & BANKING CO., LTD.,
as a Bank
By _
Name:
Title:
Address:
181 West Madison Street
Suite 4500
Chicago, Illinois 60602
Attention: Douglas B. Warren
Telephone: (312) 683-3839
Telecopy: (312) 683-3899
<PAGE>
Commitment
$7,666,667.00 THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., CHICAGO BRANCH, as a Bank
By _
Name:
Title:
Address:
190 South LaSalle Street
Suite 800
Chicago, Illinois 60603
Attention: John Carley
Telephone: (312) 853-9516
Telecopy: (312) 704-8505
<PAGE>
Commitment
$10,333,333.00 MELLON BANK, N.A.,
as a Bank
By _
Name:
Title:
Address:
c/o Mellon Financial Services
55 West Monroe Street
Suite 2600
Chicago, Illinois 60603
Attention: Reginald T. Overton
Telephone: (312) 357-3402
Telecopy: (312) 357-3414
<PAGE>
Commitment
$7,666,667.00 THE SAKURA BANK, LTD., as
a Bank
By _
Name:
Title:
Address:
227 West Monroe Street
Suite 4700
Chicago, Illinois 60606
Attention: Laird Schaefer
Telephone: (312) 201-5128
Telecopy: (312) 332-5345
<PAGE>
Commitment
$6,000,000.00 NBD BANK, N.A., as a Bank
By _
Name:
Title:
Address:
Midwest Banking Division
611 Woodward
Detroit, Michigan 48226
Attention: Dan McCarty
Telephone: (313) 225-____
Telecopy: (313) 225-3074
<PAGE>
Commitment
$6,000,000.00 SOCIETE GENERALE, as a Bank
By _
Name:
Title:
By _
Name:
Title:
Address:
181 West Madison Street
Chicago, Illinois 60602
Attention: May Mollouh
Telephone: (312) 578-5166
Telecopy: (312) 578-5099
