UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------------
FORM 10-Q
-------------------------------
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the quarterly period ended December 31, 1996
OR
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the transition period from __________ to ___________
-------------------------------
Commission file number 1-7725
I.R.S. Employer Identification Number 36-2687938
COMDISCO, INC.
(a Delaware Corporation)
6111 North River Road
Rosemont, Illinois 60018
Telephone: (847) 698-3000
Name of each Number of shares
Title of exchange on outstanding as of
each class which registered December 31, 1996
---------- ---------------- -----------------
Common stock, New York Stock Exchange 48,705,025
$.10 par value Chicago Stock Exchange
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes XX No .
1
<PAGE>
Comdisco, Inc. and Subsidiaries
INDEX
Page
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements (Unaudited)
Consolidated Statements of Earnings and Retained Earnings --
Three Months Ended December 31, 1996 and 1995......................3
Consolidated Balance Sheets --
December 31, 1996 and September 30, 1996...........................4
Consolidated Statements of Cash Flows --
Three Months Ended December 31, 1996 and 1995......................5
Notes to Consolidated Financial Statements.........................7
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations................................9
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K...................................12
SIGNATURES...................................................................14
2
<PAGE>
PART I. FINANCIAL INFORMATION
Comdisco, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF EARNINGS AND RETAINED EARNINGS (UNAUDITED)
(in millions except per share data)
For the Three Months Ended December 31, 1996 and 1995
<TABLE>
<CAPTION>
Three Months Ended
December 31
-----------
1996 1995
----- -----
<S> <C> <C>
Revenue
Leasing
Operating ....................................................................................... $ 390 $ 316
Direct financing ................................................................................ 36 40
Sales-type ...................................................................................... 64 40
----- -----
Total leasing ................................................................................ 490 396
Sales ............................................................................................. 46 51
Business continuity and network services .......................................................... 84 70
Other ............................................................................................. 13 13
----- -----
Total revenue ................................................................................... 633 530
----- -----
Costs and expenses
Leasing
Operating ....................................................................................... 305 235
Sales-type ...................................................................................... 46 24
----- -----
Total leasing ................................................................................ 351 259
Sales ............................................................................................. 30 41
Business continuity and network services .......................................................... 71 61
Selling, general and administrative ............................................................... 59 60
Interest .......................................................................................... 73 65
----- -----
Total costs and expenses ........................................................................ 584 486
----- -----
Earnings before income taxes ......................................................................... 49 44
Income taxes ......................................................................................... 19 17
----- -----
Net earnings before preferred dividends .............................................................. 30 27
Preferred dividends .................................................................................. (2) (2)
----- -----
Net earnings available to common
stockholders ..................................................................................... $ 28 $ 25
===== =====
Retained earnings at beginning of period ............................................................. $ 856 $ 764
Net earnings available to common stockholders ........................................................ 28 25
Cash dividends paid on common stock .................................................................. (3) (4)
----- -----
Retained earnings at end of period ................................................................... $ 881 $ 785
===== =====
Net earnings per common and common equivalent share:
Net earnings available to common stockholders ................................................... $ .55 $ .47
===== =====
Cash dividends paid per common share ................................................................. $ .07 $ .07
===== =====
</TABLE>
See accompanying notes to consolidated financial statements.
3
<PAGE>
Comdisco, Inc. and Subsidiaries
CONSOLIDATED BALANCE SHEETS
(in millions except number of shares)
<TABLE>
<CAPTION>
December 31 September 30
1996 1996
----------- ------------
(unaudited) (audited)
<S> <C> <C>
Assets
Cash and cash equivalents ......................................................... $ 62 $ 29
Cash - legally restricted ......................................................... 24 27
Receivables, net .................................................................. 217 218
Inventory of equipment ............................................................ 184 155
Leased assets:
Direct financing and sales-type ................................................. 1,593 1,768
Operating (net of accumulated depreciation) ..................................... 3,179 2,842
------- -------
Net leased assets ............................................................. 4,772 4,610
Buildings, furniture and other, net ............................................... 146 149
Other assets ...................................................................... 393 403
------- -------
$ 5,798 $ 5,591
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Notes payable ..................................................................... $ 1,013 $ 1,127
Term notes payable ................................................................ 373 374
Senior debt ....................................................................... 2,115 1,771
Accounts payable .................................................................. 125 135
Income taxes ...................................................................... 289 279
Other liabilities ................................................................. 285 325
Discounted lease rentals .......................................................... 796 781
------- -------
4,996 4,792
------- -------
Stockholders' equity:
Preferred stock $.10 par value.
Authorized 100,000,000 shares:
8.75% Cumulative Preferred Stock, Series A and B
$25 stated value and liquidation preference,
3,562,600 shares issued (3,562,600 at September 30, 1996) ....................... 89 89
Common stock $.10 par value
Authorized 200,000,000 shares issued 72,712,273 shares
(72,519,209 at September 30, 1996) .............................................. 7 7
Additional paid-in capital ........................................................ 165 165
Deferred compensation (ESOP) ...................................................... (4) (5)
Deferred translation adjustment ................................................... 7 5
Retained earnings ................................................................. 881 856
------- -------
1,145 1,117
Common stock held in treasury, at cost .......................................... (343) (318)
------- -------
Total stockholders' equity ................................................ 802 799
------- -------
$ 5,798 $ 5,591
======= =======
</TABLE>
See accompanying notes to consolidated financial statements.
4
<PAGE>
Comdisco, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
(in millions)
Three Months Ended December 31, 1996 and 1995
<TABLE>
<CAPTION>
1996 1995
----- -----
<S> <C> <C>
Increase (decrease) in cash and cash equivalents:
Cash flows from operating activities:
Operating lease and other leasing receipts ..................... $ 380 $ 333
Direct financing and sales-type leasing receipts ............... 202 236
Leasing costs, primarily rentals paid .......................... (7) (7)
Sales .......................................................... 57 52
Sales costs .................................................... (21) (31)
Business continuity and network services receipts .............. 81 73
Business continuity and network services costs ................. (49) (41)
Other revenue .................................................. 14 13
Selling, general and administrative expenses ................... (65) (64)
Interest ....................................................... (64) (63)
Income taxes ................................................... (5) (3)
----- -----
Net cash provided by operating activities .................... 523 498
----- -----
Cash flows from investing activities:
Equipment purchased for leasing ................................. (680) (488)
Investment in business continuity and network services facilities (15) (16)
Other ........................................................... (13) 5
----- -----
Net cash used in investing activities ........................ (708) (499)
----- -----
Cash flows from financing activities:
Discounted lease proceeds ....................................... 139 91
Net increase (decrease) in notes payable ....................... (114) 190
Issuance of term notes and senior notes ......................... 344 50
Maturities and repurchases of term notes and senior notes ....... (1) (192)
Principal payments on secured debt .............................. (124) (153)
Decrease (increase) in legally restricted cash .................. 3 (4)
Common stock repurchased and placed in treasury ................. (25) (30)
Dividends paid on common stock .................................. (3) (4)
Dividends paid on preferred stock ............................... (2) (2)
Other ........................................................... 1 1
----- -----
Net cash provided (used) by financing activities ......... 218 (53)
----- -----
Net increase (decrease) in cash and cash equivalents .............. 33 (54)
Cash and cash equivalents at beginning of period .................. 29 85
----- -----
Cash and cash equivalents at end of period ........................ $ 62 $ 31
===== =====
</TABLE>
See accompanying notes to consolidated financial statements.
5
<PAGE>
Comdisco, Inc. and Subsidiaries
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)-- CONTINUED
(in millions)
Three Months Ended December 31, 1996 and 1995
<TABLE>
<CAPTION>
1996 1995
---- ----
<S> <C> <C>
Reconciliation of net earnings to net cash provided by operating activities:
Net earnings ................................................................... $ 30 $ 27
Adjustments to reconcile net earnings to net cash provided by operating
activities:
Leasing costs, primarily
depreciation and amortization ............................................ 344 252
Leasing revenue, primarily principal portion of
direct financing and sales-type lease rentals ............................ 92 173
Cost of sales ............................................................. 9 10
Business continuity and network services costs,
primarily depreciation and amortization ................................ 22 16
Income taxes .............................................................. 14 14
Interest .................................................................. 9 2
Other - net ............................................................... 3 4
---- ----
Net cash provided by operating activities ................................. $523 $498
==== ====
Supplemental schedule of noncash financing activities:
Common stock issued in acquisition of NetforceMTI .............................. $ -- $ 9
==== ====
</TABLE>
See accompanying notes to consolidated financial statements.
6
<PAGE>
Comdisco, Inc. and Subsidiaries
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
December 31, 1996 and 1995
1. Basis of Presentation
The accompanying unaudited consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for
interim financial statements and with the instructions to Form 10-Q and
Rule 10-01 of Regulation S-X. Accordingly, they do not include all of the
information and disclosures required by generally accepted accounting
principles for annual financial statements. In the opinion of management,
all adjustments (consisting of normal recurring accruals) considered
necessary for a fair presentation have been included. For further
information, refer to the consolidated financial statements and notes
thereto included in the Company's Annual Report on Form 10-K for the year
ended September 30, 1996.
The balance sheet at September 30, 1996 has been derived from the audited
financial statements included in the Company's Annual Report on Form 10-K
for the year ended September 30, 1996.
Legally restricted cash represents cash and cash equivalents that are
restricted solely for use as collateral in secured borrowings and are not
available to other creditors.
Certain reclassifcations have been made in the 1996 financial statements
to conform to the 1996 presentation.
2. Interest-Bearing Liabilities
At December 31, 1996, the Company had $1.2 billion of available domestic
and international borrowing capacity under various lines of credit from
commercial banks and commercial paper facilities, of which approximately
$400 million was unused.
The average daily borrowings outstanding during the three months ended
December 31, 1996 were approximately $4.3 billion, with a related weighted
average interest rate of 6.85%. This compares to average daily borrowings
during the first three months of fiscal 1996 of approximately $3.5 billion,
with a related weighted average interest rate of 7.36%.
3. Senior Notes
On November 1, 1996, the company filed a registration statement on Form S-3
with the Securities and Exchange Commission for a shelf offering of up to
$950 million of senior debt securities (which amount includes $100 million
of undesignated securities from a previous shelf registration statement) on
terms to be set at the time of each sale (the "1996 Shelf"). Pursuant to
the 1996 Shelf, the Company, on November 21, 1996, issued $250 million of
6.375% Notes Due November 30, 2001, and, on December 6, 1996, filed a
Prospectus Supplement designating $500 million of the senior debt
securities as "Medium-Term Notes, Series F," all of which medium-term notes
remained available for issuance at December 31, 1996. The Company sold $75
million of medium-term notes between January 1, 1997 and February 5, 1997.
The Company plans to continue to be active in issuing senior debt during
fiscal 1997, primarily to support the anticipated growth of the leased
assets and, where appropriate, to refinance maturities of interest-bearing
liabilities.
7
<PAGE>
4. Common Stock
On January 21, 1997, the Board of Directors declared a quarterly cash
dividend of $.07 per share to be paid on March 10, 1997 to stockholders of
record as of February 7, 1997.
During the quarter ended December 31, 1996, the Company purchased 1.1
million shares of its common stock at an aggregate cost of approximately
$25 million.
8
<PAGE>
Comdisco, Inc. and Subsidiaries
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
Net Earnings
- ------------
Net earnings available to common stockholders (hereinafter referred to as "net
earnings") for the three months ended December 31, 1996 were $28 million, or
$.55 per share, as compared to $25 million, or $.47 per share, for the three
months ended December 31, 1995. The increase in net earnings in the current
quarter compared to the year earlier period is due to an increase in earnings
contributions from sales and business continuity and network services
activities. Earnings per share in the current quarter benefited from the
Company's stock repurchase program, which has reduced the average common and
common equivalent shares outstanding.
The Company's operating results are subject to quarterly fluctuations resulting
from a variety of factors, including the volume of new leases written, product
announcements by manufacturers, economic conditions, interest rate fluctuations
and variations in the financial mix of leases written. The financial mix of
leases written in a quarter is a result of a combination of factors, including,
but not limited to, changes in customer demands and/or requirements, new product
announcements, price changes, changes in delivery dates, changes in maintenance
policies and the pricing policies of equipment manufacturers, and price
competition from other lessors and finance companies. Additionally, the growth
in leasing volume during the last two fiscal quarters has the effect of
increasing the proportion of leases for new equipment ("New Leases") to total
leases. New Leases traditionally have lower earnings contributions than leases
for remarketed equipment. As a result, increasing lease volume activities
initially has the impact of putting pressure on leasing margins.
Equipment Volume
- ----------------
Leasing volume, as measured by the cost of equipment placed on lease, increased
in the first quarter of fiscal 1997 as compared to the year earlier quarter.
Lease volume in the current quarter was the second highest quarterly volume
level in the Company's history, second only to the fourth quarter of fiscal
1996. The growth in leasing volume is expected to have a positive impact on
leasing revenue in future periods and will provide equipment for remarketing.
Cost of equipment placed on lease was $686 million during the quarter ended
December 31, 1996. This compares to cost of equipment placed on lease of $540
million and $768 million during the quarters ended December 31, 1995 and
September 30, 1996, respectively. In the current quarter, Information Technology
Services had cost of equipment placed on lease of $598 million, compared to $438
million in the year earlier quarter. The increase was due to an increase in
leasing of distributed systems equipment, both domestically and internationally.
Large systems equipment volume declined in the current period compared to the
prior year period. The growth in distributed systems reflects industry trends in
information technology. Diversified Technology Services had equipment cost of
equipment placed on lease of $88 million, compared to $102 million in the year
earlier period.
Remarketing activity, an important contributor to quarterly earnings, declined
compared to the record level of activity in the fourth quarter of fiscal 1996,
and increased compared to the first quarter of fiscal 1996. To meet its
quarterly earnings goals, remarketing contributions have to be at approximately
the level achieved in the current fiscal quarter. While the Company is devoting
resources to its remarketing activities, there can be no assurance that the
Company will achieve the appropriate level of activity necessary to meet the
Company's desired operating results.
9
<PAGE>
Three Months Ended December 31, 1996
- ------------------------------------
Total revenue for the three months ended December 31, 1996 was $633 million
compared to $530 million in the prior year quarter and $728 million in the
quarter ended September 30, 1996, respectively. The increase in the current
quarter compared to the prior year quarter was due to higher total leasing
revenue, principally from operating leases. Total leasing revenue of $490
million for the quarter ended December 31, 1996 represented an increase of 24%
compared to the year earlier period. The decrease in total revenue in the
current quarter compared to the fourth quarter of fiscal 1996 was due to reduced
revenue from remarketing activities, including sales. Remarketing activities
were at record levels in the fourth quarter of fiscal 1996. Total leasing
revenue was $543 million in the fourth quarter of fiscal 1996.
The increase in lease volume, particularly during the last nine months, coupled
with lower margins on large systems transactions, has resulted in lower margins
on leasing, particularly for operating leases. Operating lease revenue minus
operating lease cost was $85 million, or 21.8% of operating lease revenue
(collectively, the "Operating Lease Margin"), and $81 million, or 25.6% of
operating lease revenue, in the three months ended December 31, 1996 and 1995,
respectively. The Operating Lease Margin was $83 million, or 22.4% in the
quarter ended September 30, 1996. Because of the expected high levels of leasing
volume and the expectation that large systems margins will continue at or below
current levels, the Company expects continued pressure on leasing margins
throughout the remainder of fiscal 1997, and possibly beyond.
Revenue from sales, which includes remarketing and buy/sell activities, totaled
$46 million in the first quarter of fiscal 1997 compared to $51 million in the
year earlier quarter. The decrease in sales revenue in the current quarter is
primarily due to reduced sales and sales revenue per unit on large systems.
Sales from distributed systems equipment as well as sales from the Company's
Electronics Group, both of which generally have higher margins as compared to
large system sales, increased in the current year period compared to the year
earlier period. Margins on sales were 35% and 20% in the quarters ended December
31, 1996 and 1995, respectively.
Revenue from business continuity and network services activities for the three
months ended December 31, 1996 and 1995 was $84 million and $70 million,
respectively, a 20% increase. Cost of business continuity and network services
activities for the three months ended December 31, 1996 and 1995 was $71 million
and $61 million, respectively, a 16% increase.
Other revenue for each of the quarters ended December 31, 1996 and 1995 was $13
million. Revenue from the sale of equity positions held as a result of the
Company's lease financing transactions with early-stage high technology
companies (referred to as Comdisco Ventures, part of the Company's Diversified
Technologies Group) was $7 million and $3 million in the quarter ended December
31, 1996 and 1995, respectively.
Total costs and expenses for the quarter ended December 31, 1996 was $584
million compared to $486 million in the prior year period. The increase in total
costs and expenses is primarily due to increased leasing costs related to
increasing operating lease revenue.
Selling, general and administrative expenses totaled $59 million in the quarter
ended December 31, 1996 compared to $60 million in the quarter ended December
31, 1995 and $64 million in the quarter ended September 30, 1996.
Interest expense for the three months ended December 31, 1996 totaled $73
million in comparison to $65 million and $68 million in the quarters ended
December 31, 1995 and September 30, 1996, respectively. The increase in the
current quarter is due to higher average daily borrowings resulting from
increased leased assets at September 30, 1996 and an increase in equipment
purchased for lease during the current quarter compared to the year earlier
period.
10
<PAGE>
Financial Condition
- -------------------
The Company's current financial resources and estimated cash flows from
operations are considered adequate to fund anticipated future growth and
operating requirements. The Company utilizes a variety of financial instruments
to fund its short and long-term needs.
Capital expenditures for equipment are financed by cash flows from operations,
recourse debt, or by assigning the noncancellable lease rentals to various
financial institutions at fixed interest rates on a nonrecourse basis. Cash
provided by operating activities for the three months ended December 31, 1996
was $523 million, compared to $498 million for the year earlier period. Cash
provided by operations has been used to finance equipment purchases and,
accordingly, had a positive impact on the level of borrowing required to support
the Company's investment in its lease portfolio.
Note on Forward-Looking Information
- -----------------------------------
Certain statements in this Form 10-Q and in the future filings by the Company
with the Securities and Exchange Commission and in the Company's written and
oral statements made by or with the approval of an authorized executive officer
constitute "forward-looking statements" within the meaning of Section 27A of the
Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934,
and the Company intends that such forward-looking statements be subject to the
safe harbors created thereby. The words "believe", "expect" and "anticipate" and
similar expressions identify forward-looking statements. These forward-looking
statements reflect the Company's current views with respect to future events and
financial performance, but are subject to many uncertainties and factors
relating to the Company's operations and business environment which may cause
the actual results of the Company to be materially different from any future
results expressed or implied by such forward-looking statements. Examples of
such uncertainties include, but are not limited to, the volume of new leases
written, changes in customer demand and requirements, financial mix of leases
written, new product announcements, interest rate fluctuations, changes in
federal income tax laws and regulations, competition, unanticipated expenses and
delays in the integration of newly-acquired businesses, industry specific
factors and world wide economic and business conditions. The financial mix of
leases written in a quarter is a result of a combination of factors, including,
but not limited to, changes in customer demands and/or requirements, new product
announcements, price changes, changes in delivery dates, changes in maintenance
policies and the pricing policies of equipment manufacturers, and price
competition from other lessors. The Company undertakes no obligation to publicly
update or revise any forward-looking statements whether as a result of new
information, future events or otherwise.
11
<PAGE>
Item 6. Exhibits and Reports on Form 8-K.
a) Exhibits:
Exhibit No. Description of Exhibit
- ----------- ---------------------------------------------------------------
3.01 Restated Certificate of Incorporation of Registrant dated
February 12, 1988
Incorporated by reference to Exhibit 4.1 filed with the
Company's Registration Statement on Forms S-8 and S-3, File No.
33-20715, filed March 8, 1988.
3.02 By-Laws of Registrant dated July 23, 1996
Incorporated by reference to Exhibit 4(b) filed with the
Company's Registration Statement on Form S-8 dated September
25, 1996, as filed with the Commission September 26, 1996,
File No. 1-7725.
3.03 Certificate of Designations with respect to the Company's 8
3/4% Cumulative Preferred Stock, Series A, as filed with the
Secretary of State of Delaware on September 18, 1992
Incorporated by reference to Exhibit 4.1 filed with the
Company's Current Report on Form 8-K dated September 17, 1992,
as filed with the Commission October 9, 1992, File No. 1-7725.
3.04 Certificate of Designations with respect to the Company's 8
3/4% Cumulative Preferred Stock, Series B, as filed with the
Secretary of the State of Delaware on July 2, 1994.
Incorporated by reference to Exhibit 4.1 filed with the
Company's Current Report on Form 8-K dated June 30, 1994, as
filed with the Commission July 21, 1994, File No. 1-7725.
4.01 Shareholder Rights Agreement dated November 18, 1987, as
amended and restated as of November 7, 1994, between Comdisco,
Inc. and Chemical Bank, as Rights Agent, which includes as
Exhibit A thereto the Form of Rights Certificate
Incorporated by reference to Exhibit 4.1 filed with the
Company's Current Report on Form 8-K, filed on December 6,
1994, File No. 1-7725.
4.02 Indenture Agreement between Registrant and Yasuda Bank and
Trust Company (USA), as Trustee dated as of December 1, 1995
Incorporated by reference to Exhibit 4.1 filed with the
Company's Current Report on Form 8-K dated January 12, 1996, as
filed with the Commission on January 17, 1996, File No. 1-7725,
the copy of the Indenture dated as of December 1, 1995 between
the Registrant and Yasuda Bank and Trust Company (USA), as
Trustee.
12
<PAGE>
Exhibit No. Description of Exhibit
- ----------- ---------------------------------------------------------------
10.01 Third Supplemental Agreement dated December 30, 1996 to the
revolving Credit Facility dated December 30, 1994.
10.02 Ninth Supplemental Agreement Dated December 30, 1996 to
Revolving Credit Facilty dated December 30, 1994 between the
Company and National Westminister Bank PLC as arranger and
administrative agent, the Co-agents (as defined therein) and
the Banks (as defined therein)
10.03 Fifth Amended and Restated Global Credit Agreement by and among
Comdisco, Inc., Citibank, N.A. and nationsbank of North
Carolina, N.A., as Co-agents and Co-arrangers and the Financial
Institutions Party thereto dated as of December 16, 1996.
11 Computation of Earnings Per Common Share
12 Ratio of Earnings to Fixed Charges
27 Financial Data Schedule
b) Reports on Form 8-K:
On January 27, 1997, the Company filed a current report on Form
8-K, dated January 24, 1997, reporting Item 5. Other Events.
The filing announced changes in the Board of Directors.
13
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
COMDISCO, INC.
--------------
REGISTRANT
Date: February 14, 1997 /s/ John J. Vosicky
John J. Vosicky
Chief Financial Officer and
Excutive Vice President
14
THIRD SUPPLEMENTAL AGREEMENT
DATED December 30, 1996
BETWEEN
COMDISCO, INC.
and
NATIONAL WESTMINSTER BANK PLC
as Arranger and Administrative Agent
CREDIT LYONNAIS
DEUTSCHE BANK AG
UNION BANK OF SWITZERLAND
as Co-Agents
and
THE NEW BANKS
and
NATIONAL WESTMINSTER BANK PLC
as Facility Agent
and Swingline Agent
--------------------------------
relating to an Agreement dated
December 30, 1994 (as amended by supplemental
agreements dated December 29, 1995 and October 24, 1996)
providing for a revolving credit facility
of up to U.S.$150,000,000
-------------------------------
Allen & Overy
New York
<PAGE>
THIS THIRD SUPPLEMENTAL AGREEMENT is made on December 30, 1996 between:
(1) COMDISCO, INC. (the "Company");
(2) NATIONAL WESTMINSTER BANK PLC as Arranger and Administrative Agent;
(3) CREDIT LYONNAIS, DEUTSCHE BANK AG and UNION BANK OF SWITZERLAND as
Co-Agents;
(4) THE BANKS listed on the signatory pages to this Supplemental Agreement
under the heading "Banks"; and
(5) THE BANKS listed on the signatory pages to this Supplement Agreement
under the heading "New Banks".
WHEREAS:
(A) This Supplemental Agreement is supplemental to a facility agreement
dated December 30, 1994 in respect of a revolving credit facility of up
to U.S. $150,000,000 as amended by a supplemental agreement dated
December 29, 1995 and a second supplemental agreement dated October 24,
1996 (together the "Facility Agreement"); and
(B) the parties to this Supplemental Agreement have agreed that certain
other changes shall be made to the terms of the Facility Agreement, as
set out in Clause 2.1 below; and
(C) the Banks, together with the New Banks, have agreed to increase the
level of Total Commitments under the Facility Agreement from
U.S.$150,000,000 to U.S.$200,000,000
IT IS AGREED as follows:
1. INTERPRETATION
(a) A term defined in the Facility Agreement has, unless this Supplemental
Agreement or the context otherwise requires, the same meaning when used
in this Supplemental Agreement.
(b) Clause 1.2 of the Facility Agreement is deemed to be set out in this
Supplemental Agreement as if references therein to the Facility
Agreement are references to this Supplemental Agreement.
(c) "Effective Date" means, subject to satisfaction of the conditions
precedent set out in Clause 4, December 30, 1996.
2. AMENDMENTS TO THE FACILITY AGREEMENT
2.1 Subject to the satisfaction of the condition in Clause 4 below, the
Facility Agreement is amended as follows:
(a) The definition of "Banks" in Clause 1.1 shall include the
Banks and the New Banks.
(b) In Clause 1.1:
the definitions of "CD Margin" "Commitment Period", "Final
Maturity Date", and "LIBOR Margin" shall be deleted and
replaced with the following:
""CD Margin"
means, in the case of an CD Advance:
(a) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is A- or A3 or
higher, 0.305 per cent per annum;
(b) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB+ or Baa1,
0.345 per cent. per annum;
(c) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB or Baa2,
0.425 per cent. per annum; and
(d) where on the applicable Rate Fixing Day the Company's
Long Term Debt Rating is BBB- or Baa3, 0.50 per cent.
per annum; and
(e) where on the applicable Rate Fixing Day the Company's
Long Term Debt Rating is BB+/Ba1 or lower or unrated,
0.70 per cent per annum.
and, where the Company's Long Term Debt Rating as determined
by a Rating Agency is of a different grade to that determined
by the other Rating Agency, the higher of the two ratings
shall apply for the purposes of calculating the applicable CD
Margin."
""Commitment Period" means, subject to Clause 2.4, the period
commencing on the date of the Third Supplemental Agreement and
expiring on the date 364 days thereafter."
"Final Maturity Date" means December 29, 1998.
""LIBOR Margin"
means, in the case of an LIBOR Advance:
(a) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is A- or A3
or higher, 0.18 per cent per annum;
(b) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB+ or Baa1, 0.22
per cent. per annum;
(c) where on the applicable Rate Fixing Day the Company's
Long Term Debt Rating is BBB or Baa2, 0.30 per cent.
per annum;
(d) where on the applicable Rate Fixing Day the Company's
Long Term Debt Rating is BBB- or Baa3, 0.375 per
cent. per annum; and
(e) where on the applicable Rate Fixing Day the Company's
Long Term Debt Rating is BB+/Ba1 or lower or unrated,
0.575 per cent per annum.
and, where the Company's Long Term Debt Rating as determined
by one Rating Agency is of a different grade to that
determined by the other Rating Agency, the higher of the two
ratings shall apply for the purposes of calculating the
applicable LIBOR Margin."
(c) Clause 5.2(d)(i)(C) shall be deleted and shall be replaced by
the following:
"(C) if the Advances are to be denominated in an Optional
Currency other than Sterling, be a minimum amount of
the equivalent of U.S.$5,000,000 in the relevant
Optional Currency;".
(d) Clause 16.11(d) shall be deleted and shall be replaced by the
following:
"(d) the Recourse Liabilities Ratio as of the end of any
Fiscal Year to exceed 5.50 to 1;".
(e) Clauses 16.11(f) and 16.11(g) shall be deleted.
(f) Clause 16(h) shall be re-designated as Clause 16(f) and the
numbers "1.25:1" at the end thereof shall be deleted and shall
be replaced by "1.10:1".
(g) Clause 20.1(a) (Facility Fee) shall be deleted and replaced
with the following:
"20.1 Facility Fee
(a) The Company shall pay to the Facility Agent for the
account of each Bank a facility fee in Dollars
computed on the amount of that Bank's Commitment
during the period from December 30, 1996 up to and
including the Final Maturity Date for that Bank,
computed at the following rates:
(i) where the Company's Long Term Debt Rating is
A- or A3 or higher, 0.07 per cent. per
annum;
(ii) where the Company's Long Term Debt Rating is
BBB+ or Baa1 or higher, 0.08 per cent. per
annum;
(iii) where the Company's Long Term Debt Rating is
BBB or Baa2, 0.10 per cent. per annum;
(iv) where the Company's Long Term Debt Rating is
BBB- or Baa3, 0.125 per cent. per annum; and
(v) where the Company's Long Term Debt Rating is
BB+ or Ba1 or lower or unrated, 0.175 per
cent. per annum.
Any change to the rate used in the computation of
facility fee shall become effective on the day on
which the Company's revised Long Term Debt Rating is
published by the relevant Rating Agency. Where the
Company's Long Term Debt Rating as determined by one
Rating Agency is of a different grade to that
determined by the other Rating Agency, the higher of
the two ratings shall apply for the purposes of
calculating the facility fee.".
(h) The word "; and" shall be removed from the end of paragraph
(i) in Clause 16.10, the word "; and" shall be inserted after
paragraph (j) thereof and the following shall be added after
paragraph (j) in clause 16.10:
(k) Security Interests securing indebtedness of
an insolvent Subsidiary of the Company
incurred in connection with leasing
transactions or business continuity services
provided in the ordinary course of business
of such Subsidiary and attaching only to the
Equipment and any related Contract with
respect to such leasing transactions or
business continuity services, where such
indebtedness had constituted a Non-Recourse
Obligation prior to the insolvency of such
Subsidiary.
(i) Schedule 1 (Banks and Commitments) to the Facility Agreement
shall be deleted and shall be replaced by Schedule 1 to this
Supplemental Agreement.
3. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Facility Agent and the Banks
on its own behalf and on behalf of all the Additional Borrowers that:
(a) Powers and authority: It has the power to enter into and
perform, and has taken all necessary action to authorise the
entry into, performance and delivery of, this Supplemental
Agreement and the transactions contemplated by this
Supplemental Agreement.
(b) Legal Validity: This Supplemental Agreement constitutes its
legal, valid and binding obligation.
(c) Non-conflict: The entry into and performance by it of, and the
transactions contemplated by, this Supplemental Agreement do
not and will not:
(i) conflict with any law or regulation or any official
or judicial order applicable to it; or
(ii) conflict with its constitutive documents; or
(iii) conflict with any document which is binding on it or
any of its assets.
(d) Authorisations: All authorisations, approvals, consents,
licences, exemptions, filings, registrations, notarisations
and other matters, official or otherwise, required or
desirable in connection with the entry into, performance,
validity and enforceability of, and the transactions
contemplated by this Supplemental Agreement have been obtained
or effected (as appropriate) and are in full force and effect.
(e) Material Adverse Change: There has been no material adverse
change in the consolidated financial condition of the Group
since September 30, 1996.
(f) Representations and Warranties in the Facility Agreement: The
representations and warranties set out in Clause 15.1 of the
Facility Agreement are true as if made on the date of this
Supplemental Agreement and as if references in that Clause to
the Facility Agreement were references to the Facility
Agreement as amended by this Supplemental Agreement.
(g) Other Borrowers: The other Borrowers are bound by the terms of
this Supplemental Agreement.
4. CONDITIONS PRECEDENT
(a) Clause 2 above and Clause 6 below shall come into effect when the
Facility Agent has confirmed to the Company and the Banks (which
confirmation the Facility Agent undertakes to give promptly) that it
has received a legal opinion from any of the Senior Vice President -
Legal, Vice President and General Counsel or Vice President and
Associate General Counsel of the Company, reaffirming the matters set
forth in his opinion delivered pursuant to Clause 4.1(a)(vi) of the
Facility Agreement with reference to this Supplemental Agreement and
the Facility Agreement as amended hereby.
(b) If the above condition is not satisfied on or prior to January 6, 1997
(or such later date as may be agreed between the Company and the
Facility Agent) this Supplemental Agreement will lapse and (with the
exception of Clauses 1, 5, 7 and 8) shall cease to have any effect.
5. INCORPORATION
(a) This Supplemental Agreement is a Finance Document.
(b) This Supplemental Agreement is deemed to be incorporated as part of the
Facility Agreement.
(c) Except as otherwise provided in this Supplemental Agreement, the
Finance Documents remain in full force and effect.
6. NEW BANK
6.1 Subject to Clause 4 above, on the Effective Date:
(a) Each of the New Banks shall become a Bank under the Facility
Agreement and will be bound by the provisions of the Facility
Agreement as if it were an original party thereto in the
capacity as a Bank.
(b) The Commitment of each New Bank in its capacity as a Bank
shall be the amount in Dollars set opposite its name in
Schedule 1.
(c) Each of the New Banks:
(i) represents and warrants that it is a bank whose
ordinary business is or includes the making of, or
the participating in, Sterling and Eurocurrency
loans;
(ii) confirms that it has received a copy of the Facility
Agreement together with such other documents and
information as it has requested in connection with
this transaction;
(iii) agrees that it has not relied and will not rely on
any other Contracting Party to assess or keep under
review on its behalf the financial condition,
creditworthiness, condition, affairs, status or
nature of any Borrower or any other party to the
Facility Agreement or any other Finance Documents;
and
(iv) makes the representations and warranties set forth in
Clause 11.4(d) of the Facility Agreement and
undertakes the obligations set forth in Clause
11.4(e) of the Facility Agreement.
7. MISCELLANEOUS
The provision of Clauses 11 (Payments), 22 (Stamp Duties), 23
(Amendments, Waivers, Remedies Cumulative), 30 (Jurisdiction) and 32
(Counterparts) of the Facility Agreement shall apply to this
Supplemental Agreement as though they were set out in this Supplemental
Agreement, but as if references in those Clauses to the Facility
Agreement are references to this Supplemental Agreement.
8. GOVERNING LAW
This Supplemental Agreement is governed by English law.
AS WITNESS the hands of the parties (or their duly authorised representatives)
on the date which appears first on page 1.
<PAGE>
SCHEDULE 1
PART I
THE UNDERWRITERS AND COMMITMENTS
<TABLE>
<CAPTION>
Banks Commitments
U.S.$
<S> <C>
NATIONAL WESTMINSTER BANK PLC..................................................... 21,600,000
CREDIT LYONNAIS .................................................................. 20,800,000
DEUTSCHE BANK AG ................................................................. 20,800,000
UNION BANK OF SWITZERLAND ........................................................ 20,800,000
BARCLAYS BANK PLC ................................................................ 16,000,000
NORDDEUTSCHE LANDESBANK GIROZENTRALE ............................................. 16,000,000
BHF-BANK AKTIENGESELLSCHAFT ...................................................... 12,000,000
BAYERISCHE VEREINSBANK ........................................................... 12,000,000
DRESDNER BANK AG ................................................................. 12,000,000
WESTDEUTSCHE LANDESBANK GIROZENTRALE ............................................. 12,000,000
BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN ISLANDS BRANCH ........................ 12,000,000
DEN DANSKE BANK AKTIESELKAB, CAYMAN ISLANDS BRANCH ............................... 12,000,000
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK AG, NEW YORK .............................. 12,000,000
BRANCH
Total Commitments ................................................................ 200,000,000
</TABLE>
<PAGE>
SIGNATORIES
Company
COMDISCO, INC.
By: EDWARD A. PACEWICZ
Arranger
NATIONAL WESTMINSTER BANK PLC
By: BOB DITTON
Co-Agents
CREDIT LYONNAIS CHICAGO BRANCH
By: MARY ANN KLEMM
DEUTSCHE BANK AG CHICAGO BRANCH AND/OR CAYMAN ISLANDS BRANCH
By: VIRGINIA N. BROWN KRYS SZREMSKI
UNION BANK OF SWITZERLAND
By: ROBERT J. VERNA ANNA LEE HOM
<PAGE>
EXISTING BANKS
NATIONAL WESTMINSTER BANK PLC
By: BOB DITTON
BARCLAYS BANK PLC
By: PAUL KAVANAGH
UNION BANK OF SWITZERLAND
By: ROBERT J. VERNA ANNA LEE HOM
CREDIT LYONNAIS CHICAGO BRANCH
By: MARY ANN KLEMM
BHF-BANK AKTIENGESELLSCHAFT
By: LINDA PACE PERRY FORMAN
DEUTSCHE BANK AG CHICAGO BRANCH AND/OR CAYMAN ISLANDS BRANCH
By: VIRGINIA N. BROWN KRYS SZREMSKI
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: RAYMOND K. MILLER LAURA SPICHIGER
BAYERISCHE VEREINSBANK
By: ED C. BENNETT SYLVIA CHENG
DRESDNER BANK AG NEW YORK AND GRAND CAYMAN BRANCH
By: THOMAS J. NADRAMIA JOHN S. RUNNION
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK AG,
NEW YORK BRANCH
By: THOMAS A. LOWE
NORDDEUTSCHE LANDESBANK GIROZENTRALE
By: JOSEF HAAS STEPHEN K. HUNTER
New Banks
BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN ISLANDS BRANCH
By: WILFRIED FREUDENBERGER PETER OBERMANN
DEN DANSKE BANK AKTIESELSKAB, CAYMAN ISLANDS BRANCH
By: JOHN A. O'NEILL PETER L. HARGRAVES
Facility Agent and Swingline Agent
NATIONAL WESTMINSTER BANK PLC
By: Bob Ditton
NINTH SUPPLEMENTAL AGREEMENT
DATED December 30, 1996
BETWEEN
COMDISCO, INC.
and
NATIONAL WESTMINSTER BANK PLC
as Arranger and Administrative Agent
CREDIT LYONNAIS
DEUTSCHE BANK AG
UNION BANK OF SWITZERLAND
as Co-Agents
and
THE EXTENDING BANKS
and
THE NEW BANKS
and
NATIONAL WESTMINSTER BANK PLC
as Facility Agent, Tender Panel Agent
and Swingline Agent
and
BARCLAYS BANK PLC
as Letter of Credit Agent
--------------------------------
relating to an Agreement dated
June 4, 1991 (as amended by supplemental
agreements dated August 27, 1991, April 20, 1992
September 21, 1992, April 23, l993, May
9, 1994, August 12, 1994, December 30, 1994 and December
29, 1995)
providing for a revolving credit facility
of up to U.S.$300,000,000
-------------------------------
Allen & Overy
New York
<PAGE>
THIS NINTH SUPPLEMENTAL AGREEMENT is made on December 30, 1996 between:
(1) COMDISCO, INC. (the "Company") for itself and on behalf of those
Additional Borrowers party to the Facility Agreement defined below;
(2) NATIONAL WESTMINSTER BANK PLC as Arranger and Administrative Agent;
(3) CREDIT LYONNAIS, DEUTSCHE BANK AG and UNION BANK OF SWITZERLAND as
Co-Agents;
(4) THE BANKS listed on the signatory pages to this Supplemental Agreement
under the heading "Extending Banks";
(5) THE BANKS listed on the signatory pages to this Supplemental Agreement
under the heading "New Banks";
(6) NATIONAL WESTMINSTER BANK PLC as facility agent, tender panel agent and
swingline agent (the "Facility Agent"); and
(7) BARCLAYS BANK PLC as Letter of Credit Agent.
WHEREAS:
(A) This Supplemental Agreement is supplemental to a facility agreement
dated June 4, 1991 in respect of a revolving credit facility of up to
U.S. $300,000,000 as amended by a supplemental agreement dated August
27, 1991, a second supplemental agreement dated April 20, 1992, a third
supplemental agreement dated September 21, 1992, a fourth supplemental
agreement dated April 23, 1993, a fifth supplemental agreement dated
May 9, 1994, a sixth supplemental agreement dated August 12, 1994, a
seventh supplemental agreement dated December 30, 1994 and an eighth
Supplemental Agreement dated December 29, 1995 (together the "Facility
Agreement");
(B) at the request of the Company, the Extending Banks have agreed to
extend the Final Maturity Date of the Facility;
(C) the parties to this Supplemental Agreement have agreed that certain
other changes shall be made to the terms of the Facility Agreement, as
set out in Clause 2.1 below; and
(D) the New Banks have agreed to become party to the Facility Agreement
with effect from the Effective Date (as defined below) of this
Supplemental Agreement.
1
<PAGE>
IT IS AGREED as follows:
1. INTERPRETATION
(a) A term defined in the Facility Agreement has, unless this Supplemental
Agreement or the context otherwise requires, the same meaning when used
in this Supplemental Agreement.
(b) Clause 1.2 of the Facility Agreement is deemed to be set out in this
Supplemental Agreement as if references therein to the Facility
Agreement are references to this Supplemental Agreement.
2
<PAGE>
(c) "Effective Date" means, subject to satisfaction of the conditions
precedent set out in Clause 4, January 3, 1997.
(d) "Extending Banks" means those parties to this Supplemental Agreement
listed under the heading "Extending Banks" on the signatory pages.
(e) "New Banks" means the parties to this Supplemental Agreement listed
under the heading "New Banks" on the signatory pages.
2. AMENDMENTS TO THE FACILITY AGREEMENT
2.1 Subject to the satisfaction of the condition in Clause 4 below, the
Facility Agreement is amended as follows:
(a) The definition of "Banks" in Clause 1.1 shall include the
Extending Banks and the New Banks.
(b) In Clause 1.1:
the definitions of "Agent", "Final Maturity Date", "Maturity
Date", "Tenor", "Underwritten CD Margin", "Underwritten LIBOR
Margin" and "Utilisation" shall be deleted and replaced with
the following:
""Agent" means the Facility Agent, the Tender Panel Agent and
the Swingline Agent.""Final Maturity Date"
in relation to an Underwriter means, subject to Clause 2.4,
December 31, 1999."
""Maturity Date"
means:
(a) in relation to an Advance, the last day of its Term;
(b) in relation to a Bill, the last day of its Tenor."
""Tenor"
means in relation to a Bill or Utilisation comprising Bills,
the period for which the Bill is to be outstanding, or
available for drawing, as the case may be, as selected by the
Company or relevant Borrower in the relevant Request."
""Underwritten CD Margin"
means, in the case of an Underwritten CD Advance:
(a) where on the applicable Rate Fixing Day the Company's
Long Term Debt Rating is A- or A3 or higher, 0.285
per cent per annum;
(b) where on the applicable Rate Fixing Day the Company's
Long Term Debt Rating is BBB+ or Baa1, 0.325 per
cent. per annum;
(c) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB or Baa2,
0.375 per cent. per annum; and
(d) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB- or Baa3,
0.425 per cent. per annum; and
(e) where on the applicable Rate Fixing Day the Company's
Long Term Debt Rating is BB+/Ba1 or lower or unrated,
0.625 per cent per annum.
3
<PAGE>
and, where the Company's Long Term Debt Rating as determined
by a Rating Agency is of a different grade to that determined
by the other Rating Agency, the higher of the two ratings
shall apply for the purposes of calculating the applicable
Underwritten CD Margin."
""Underwritten LIBOR Margin"
means, in the case of an Underwritten LIBOR Advance:
(a) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is A- or A3 or
higher, 0.16 per cent per annum;
(b) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB+ or Baa1,
0.20 per cent. per annum;
(c) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB or Baa2, 0.25
per cent. per annum;
(d) where on the applicable Rate Fixing Day the
Company's Long Term Debt Rating is BBB- or Baa3,
0.30 per cent. per annum; and
(e) where on the applicable Rate Fixing Day the Company's
Long Term Debt Rating is BB+/Ba1 or lower or unrated,
0.50 per cent per annum.
and, where the Company's Long Term Debt Rating as determined
by one Rating Agency is of a different grade to that
determined by the other Rating Agency, the higher of the two
ratings shall apply for the purposes of calculating the
applicable Underwritten LIBOR Margin."
""Utilisation"
means all the Advances or Bills comprised in a utilisation of
a Facility."
(c) In Clause 1.1., the following definitions and all references
to such terms in the Facility Agreement shall be deleted:
"Beneficiary", "Cash Collateral Account", "Commercial Paper",
CP Dealer", "CP Notes", "CP Programme", "Dealer Agreement",
"Delayed Note", "Depository Agreement", "Issuer", "Issuing
Bank", "Letter of Credit", "L/C Amount", "L/C Obligation",
"Letter of Credit Outstanding".
(d) In Clause 1.1:
(i) in the definition of "Business Day" paragraph (i)
shall be deleted and be replaced by the following:
"(a) London, Chicago and New York City except in
the case of any Utilisation of the Swingline
Advance Facility for which purpose banks in
London and New York City only need be open
for business,";
(ii) in the definition of "Facility", paragraph (e)
shall be deleted and the subsequent paragraphs
re-ordered alphabetically;
(iii) in the definition of "Finance Document", the words
", the Letter(s) of Credit" shall be deleted;
(iv) in the definition of "Original Dollar Amount", the
word "or" at the end of paragraph (b) shall be
deleted and shall be replaced by a full stop and
paragraph (c) shall be deleted;
(v) in the definition of "Request", paragraph (e) shall
be deleted, the word "and" shall be added to the end
of paragraph (d) and paragraph (f) will be
redesignated "(e)".
(vi) in the definition of "Utilisation Date", paragraph
(c) shall be deleted, the word "and" shall be added
to the end of paragraph (a) and the word "; and"
shall be removed from the end of paragraph (b) shall
be replaced by a comma.
(e) In Clause 1.2 paragraph (f) shall be deleted and shall be
replaced by the following:
"(f) a reference to a "principal amount" in relation to
Bill(s) is a reference to the face amount of the Bill(s);".
(f) The following Clauses shall be deleted from the Facility
Agreement 2.1(e), 2.2(c), 5.4(b)(vi), 8.4(b)(vi), 9, 20.10
(j), 20.20, 20.21, 20.22, 21.3, 24.2, 24.6, 24.7, 28.1(a)(v),
4
<PAGE>
(d), 29.3(ii), 29.4(b)(ii) and Exhibits H and Q, and in each
case the clause reference or Exhibit heading shall remain and
the words "deliberately left blank" inserted into the Facility
Agreement.
(g) Clause 2.3(a) shall be deleted and shall be replaced by the
following:
"(a) Committed Banks: No Committed Bank is obliged to make
a Committed Advance if it would cause the aggregate
of the Original Dollar Amount of any outstanding
Advances made and Bills accepted by it (including in
its capacity as a Tender Panel Member) and its
Affiliated Bank(s) to exceed its Commitment.".
(h) Clause 2.4(b) shall be deleted and shall be replaced by the
following:
"(b) Each Underwriter will notify the Facility Agent in
writing if it wishes its Final Maturity Date to be
extended. Such notification must be given prior to 5
Business Days before the relevant Anniversary (or
then latest Final Maturity Date). If an Underwriter
does so notify, its Final Maturity Date shall be
extended by one year with the effect from close of
business on the relevant Anniversary (or then latest
Final Maturity Date), regardless of whether or not
any other Underwriters also agree.".
(i) In Clause 2.5 the final sentence thereof shall be deleted.
(j) Clause 3.1(a) shall be deleted and shall be replaced by the
following:
"(a) the proceeds of each Utilisation shall be as follows:
(i) in the case of Advances and Bills, applied
by each Borrower in repayment or payment (as
appropriate) of all amounts outstanding
under the Existing Facility as and when they
fall due in accordance with the terms of the
existing Facility Agreement; and
(ii) applied by each Borrower towards its general
corporate purposes.".
(k) Clause 5.2(d)(i)(C) shall be deleted and shall be replaced by
the following:
"(C) if the Advances are to be denominated in an Optional
Currency other than Sterling, be a minimum amount of
the equivalent of U.S.$5,000,000 in the relevant
Optional Currency;".
(l) The word "; and" shall be removed from the end of the
paragraph (i) in Clause 20.10, the word "and;" shall be added
to the end of paragraph (j) thereof and the following shall be
added after paragraph (j):
(k) Security Interests securing indebtedness of an
insolvent Subsidiary of the Company incurred in
connection with leasing transactions or business
continuity services provided in the ordinary course
of business of such Subsidiary and attaching only to
the Equipment and any related Contract with respect
to such leasing
5
<PAGE>
transactions or business continuity services, where
such indebtedness had constituted a Non-Recourse
Obligation prior to the insolvency of such
Subsidiary.
(m) Paragraph (ii) of clause 20.11(d) shall be deleted and shall
be replaced by the following:
"(ii) 5.50 to 1 at any time thereafter;".
(n) Clause 20.11(f) shall be deleted.
(o) Clause 20.11(g) shall be deleted.
(p) Clause 20.11(h) shall be re-designated as Clause 20.11(f) and
the numbers "1.25:1" at the end thereof shall be deleted and
shall be replaced by "1.10:1".
(q) Clause 23 shall be deleted and shall be replaced by the
version thereof set out at Schedule 2 to this Supplement
Agreement.
(r) Clause 24.1(a)(Facility Fee)shall be deleted and replaced with
the following:
"24.1 Facility Fee
(a) The Company shall pay to the Facility Agent for the
account of each Underwriter a facility fee in Dollars
computed on the amount of that Underwriter's
Commitment during the period from December 30, 1996
up to and including the Final Maturity Date for that
Underwriter, computed at the following rates:
(i) where the Company's Long Term Debt Rating is
A- or A3 or higher, 0.09 per cent. per
annum;
(ii) where the Company's Long Term Debt Rating is
BBB+ or Baa1 or higher, 0.10 per cent. per
annum;
(iii) where the Company's Long Term Debt Rating is
BBB or Baa2, 0.15 per cent. per annum;
(iv) where the Company's Long Term Debt Rating is
BBB- or Baa3, 0.20 per cent. per annum; and
(v) where the Company's Long Term Debt Rating is
BB+ or Ba1 or lower or unrated, 0.25 per
cent. per annum.
Any change to the rate used in the computation of
Facility Fee shall become effective on the day on
which the Company's revised Long Term Debt Rating is
published by the relevant Rating Agency. Where the
Company's Long Term Debt Rating as determined by one
Rating Agency is of a different grade to that
determined by the other Rating Agency, the higher of
the two ratings shall apply for the purposes of
calculating the Facility Fee.
6
<PAGE>
(s) Clause 24.3 shall be deleted and shall be replaced by the
following:
"Clause 24.3 Accrual
The facility fee referred to in Clause 24.1 shall accrue from
day to day and be calculated on the basis of a year of 360
days and for the actual number of days elapsed.".
(t) Clause 27.1(a) the second sentence shall be deleted therefrom.
(u) In Clause 29.3(a) the words "and the Issuing Banks" shall be
deleted therefrom and in Clause 29.3(b)(i) the following words
shall be deleted at the end thereof: "and the Letter of Credit
Agent".
(v) In Clause 29.4(a) the words "and the Issuing Banks" in the
fifth line thereof and the words "(which shall promptly notify
the Letter of Credit Agent)" shall be deleted therefrom.
(w) In Clause 29.4(b)(i) the words "the Letter of Credit Agent" at
the end thereof shall be deleted.
(x) In Exhibit A,
(i) Part I (The Underwriters and Commitments) shall be
deleted and shall be replaced with the form set out
in Schedule 1 to this Supplemental Agreement;
(ii) Part II (The Swingline Banks) shall be deemed to
include the New Banks;
(iii) Part III (The Issuing Banks) shall be deleted;
(iv) Part IV (The Tender Panel Members) shall be
re-numbered "Part III" and shall be deemed to include
the New Banks.
3. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Facility Agent and the Banks
on its own behalf and on behalf of all the Additional Borrowers that:
(a) Powers and authority: It has the power to enter into and
perform, and has taken all necessary action to authorise the
entry into, performance and delivery of, this Supplemental
Agreement and the transactions contemplated by this
Supplemental Agreement.
(b) Legal Validity: This Supplemental Agreement constitutes its
legal, valid and binding obligation.
(c) Non-conflict: The entry into and performance by it of, and the
transactions contemplated by, this Supplemental Agreement do
not and will not:
(i) conflict with any law or regulation or any official
or judicial order applicable to it; or
7
<PAGE>
(ii) conflict with its constitutive documents; or
(iii) conflict with any document which is binding on it or
any of its assets.
(d) Authorisations: All authorisations, approvals, consents,
licences, exemptions, filings, registrations, notarisations
and other matters, official or otherwise, required or
desirable in connection with the entry into, performance,
validity and enforceability of, and the transactions
contemplated by this Supplemental Agreement have been obtained
or effected (as appropriate) and are in full force and effect.
(e) Material Adverse Change: There has been no material adverse
change in the consolidated financial condition of the Group
since September 30, 1996.
(f) Representations and Warranties in the Facility Agreement: The
representations and warranties set out in Clause 19.1 of the
Facility Agreement are true as if made on the date of this
Supplemental Agreement and as if references in that Clause to
the Facility Agreement were references to the Facility
Agreement as amended by this Supplemental Agreement.
(g) Other Borrowers: The other Borrowers are bound by the terms
of this Supplemental Agreement.
4. CONDITIONS PRECEDENT
(a) Clause 2 above and Clause 6 below shall come into effect when the
Facility Agent has confirmed to the Company and the Banks (which
confirmation the Facility Agent undertakes to give promptly) that it
has received a legal opinion from any of the Senior Vice President -
Legal, Vice President and General Counsel or Vice President and
Associate General Counsel of the Company, reaffirming the matters set
forth in his opinion delivered pursuant to Clause 4.1(a)(vi) of the
Facility Agreement with reference to this Supplemental Agreement and
the Facility Agreement as amended hereby.
(b) If the above condition is not satisfied on or prior to January 6, 1997
(or such later date as may be agreed between the Company and the
Facility Agent) this Supplemental Agreement will lapse and (with the
exception of Clauses 1, 5, 7 and 8) shall cease to have any effect.
5. INCORPORATION
(a) This Supplemental Agreement is a Finance Document.
(b) This Supplemental Agreement is deemed to be incorporated as part of the
Facility Agreement.
(c) Except as otherwise provided in this Supplemental Agreement, the
Finance Documents remain in full force and effect.
6. NEW BANK
6.1 Subject to Clause 4 above, on the Effective Date:
8
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(a) Each of the New Banks shall become a Bank under the Facility
Agreement and will be bound by the provisions of the Facility
Agreement as if it were an original party thereto in the
capacity as Underwriter, Swingline Bank and Tender Panel
Member.
(b) The Commitment of each New Bank in its capacity as Underwriter
shall be the amount in Dollars set opposite its name in
Schedule 1.
(c) Each of the New Banks:
(i) represents and warrants that it is a bank whose
ordinary business is or includes the making of, or
the participating in, Sterling and Eurocurrency
loans;
(ii) confirms that it has received a copy of the Facility
Agreement together with such other documents and
information as it has requested in connection with
this transaction;
(iii) agrees that it has not relied and will not rely on
any other Contracting Party to assess or keep under
review on its behalf the financial condition,
creditworthiness, condition, affairs, status or
nature of any Borrower or any other party to the
Facility Agreement or any other Finance Documents;
and
(iv) makes the representations and warranties set forth in
Clause 15.4(d) of the Facility Agreement and
undertakes the obligations set forth in Clause
15.4(e) of the Facility Agreement.
7. MISCELLANEOUS
The provision of Clauses 15 (Payments), 26 (Stamp Duties), 27
(Amendments, Waivers, Remedies Cumulative), 34 (Jurisdiction) and 36
(Counterparts) of the Facility Agreement shall apply to this
Supplemental Agreement as though they were set out in this Supplemental
Agreement, but as if references in those Clauses to the Facility
Agreement are references to this Supplemental Agreement.
8. GOVERNING LAW
This Supplemental Agreement is governed by English law.
AS WITNESS the hands of the parties (or their duly authorised representatives)
on the date which appears first on page 1.
9
<PAGE>
SCHEDULE 1
PART I
THE UNDERWRITERS AND COMMITMENTS
<TABLE>
<CAPTION>
Banks Commitments
U.S.$
<S> <C>
NATIONAL WESTMINSTER BANK PLC .................................................. 32,400,000
CREDIT LYONNAIS ................................................................ 31,200,000
DEUTSCHE BANK AG ............................................................... 31,200,000
UNION BANK OF SWITZERLAND ...................................................... 31,200,000
BARCLAYS BANK PLC .............................................................. 24,000,000
NORDDEUTSCHE LANDESBANK GIROZENTRALE ........................................... 24,000,000
BHF-BANK ATKIENGESELLSCHAFT .................................................... 18,000,000
BAYERISCHE VEREINSBANK ......................................................... 18,000,000
DRESDNER BANK AG ............................................................... 18,000,000
WESTDEUTSCHE LANDESBANK GIROZENTRALE ........................................... 18,000,000
BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN ISLANDS BRANCH ...................... 18,000,000
DEN DANSKE BANK AKTIESELKAB, CAYMAN ISLANDS BRANCH ............................. 18,000,000
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK AG, NEW YORK ............................ 18,000,000
BRANCH
Total Commitments .............................................................. 300,000,000
</TABLE>
10
<PAGE>
SCHEDULE 2
(Form of Clause 23 to the Facility Agreement)
23. THE AGENTS AND THE ARRANGER
23.1 Appointment
(a) Each Bank and the Arranger irrevocably appoints each of the
Facility Agent and the Swingline Agent to act as its agent
under this Agreement and irrevocably authorises each of them
on the Bank's or the Arranger's behalf, as the case may be, to
perform those duties and to exercise those rights and powers
that are specifically delegated to it under the terms of this
Agreement, together with such rights, powers and discretions
as are reasonably incidental thereto.
(b) Each Borrower irrevocably appoints the Tender Panel Agent to
act as its agent under this Agreement in connection with the
obtaining and receipt of offers in relation to Utilisations of
the Uncommitted Facilities and irrevocably authorises the
Tender Panel Agent to exercise those rights, powers and
discretions that are specifically delegated to it by each
Borrower under the terms of this Agreement, together with all
such rights, powers as it shall see fit.
(c) Notwithstanding any provision of this Agreement, the Co-Agents
shall have no powers, duties, responsibilities or liabilities
under this Agreement and shall not constitute an agent,
trustee or fiduciary. The Co-Agents shall, however in their
individual capacities as Banks, have the same rights and
powers under this Agreement as any other Bank and may exercise
those rights and powers as though they were not Co-Agents.
23.2 Majority Underwriters' directions
In the exercise of any right or power and as to any matter not
expressly provided for by this Agreement each of the Facility Agent and
the Swingline Agent shall act in accordance with the instructions of
the Majority Underwriters and shall be fully protected in so doing. In
the absence of any such instructions, each of the Facility Agent and
the Swingline Agent may act or refrain from acting and discretions as
are reasonably incidental thereto. Any such instructions shall be
binding on all the Banks.
23.3 Relationship
(a) The relationship between each of the Arranger and the Banks
and each of the Facility Agent and the Swingline Agent is that
of principal and agent only.
(b) The relationship between each of the Borrowers and the Tender
Panel Agent is that of principal and agent only.
(c) Nothing in this Agreement shall constitute any Agent or the
Arranger as trustee or fiduciary for any Contracting Party or
any other person and none of the Agents shall be liable to any
Contracting Party for any breach by any other Contracting
Party of any Finance Document.
11
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23.4 Delegation
Each of the Agents may act under the Finance Documents through its
officers and employees.
23.5 Documentation
None of the Agents, the Arranger nor any of their respective officers,
employees and agents shall be responsible to any Contracting Party for:
(a) the legality, validity, effectiveness, adequacy, accuracy or
completeness of any Finance Document or any other document; or
(b) the collectability of amounts payable under the Finance
Documents; or
(c) the accuracy of any statements (whether written or oral) made
in or in connection with the Finance Documents or any other
document.
23.6 Default
The Facility Agent shall not be required to ascertain or enquire as to
the performance or observance by the Company or any Borrower of the
terms of any Finance Document or any other document. The Facility Agent
shall not be deemed to have knowledge of the occurrence of any Default
unless it has received notice from a Contracting Party describing the
Default and indicating that the notice is a "Notice of Default". If the
Facility Agent receives a Notice of Default, or any of their respective
officers engaged in its agency functions under this Agreement has
actual knowledge of a Default, the Facility Agent shall promptly give
notice thereof to the Banks. The Facility Agent shall take or refrain
from taking such action with respect to the Default as shall be
reasonably directed by the Majority Underwriters. Until the Facility
Agent has received directions, it may (but shall not be obliged to)
take or refrain from taking such action in connection with the Default
as it shall see fit.
23.7 Exoneration
Neither the Agents nor any of their officers, employees or agents shall
be liable to any other Contracting Party for any action taken or
omitted under or in connection with any Finance Document unless caused
by its or their negligence or wilful misconduct.
23.8 Reliance
The Agents may:
(a) rely on any communication or document reasonably believed by
it to be genuine and correct; and
(b) engage, pay for and rely on legal or other professional
advisers selected by it in good faith.
23.9 Credit approval
Each of the Banks severally represents and warrants to each of the
Agents and the Arranger that it has made its own independent
investigation and assessment of the financial condition and affairs of
each Borrower and its related entities in connection with its
participation in this Agreement and has not relied and will not rely on
any Agent or the Arranger to keep under review on its behalf the
financial condition, creditworthiness, condition, affairs, status or
nature of each Borrower or any of
12
<PAGE>
its related entities. Each Bank represents, warrants and undertakes to
each of the Agents, and the Arranger that it shall continue to make its
own independent appraisal of the creditworthiness of each Borrower and
its related entities while any amount is or may be outstanding or any
Commitment is in force.
23.10 Information
(a) The Facility Agent shall supply each Bank with a copy of any
documents received by it under Clause 20 (but the Facility
Agent is not obliged to review or check their accuracy or
completeness) and, if requested by a Bank, supply that Bank
with a copy of all documents received by the Facility Agent
under Clause 4 or Clause 29.10.
(b) None of the Agents and the Arranger shall have any duty:
(i) either initially or on a continuing basis to provide
any Bank with any credit or other information
concerning the financial condition or affairs of any
Borrower or any of its related entities whether
coming into its possession or that of any of its
related entities before the Signing Date or at any
time thereafter; or
(ii) in the case of the Facility Agent and unless
specifically requested to do so by a Bank, to request
any certificates or other documents from any
Borrower.
(c) No Agent need disclose any information relating to the Company
or any of its related entities if the disclosure would or
might, in the opinion of the Agent, constitute a breach of any
law or any duty of secrecy or confidence.
23.11 The Agents and the Arranger individually
(a) If it is also a Bank, each of the Agents and the Arranger
shall have the same rights and powers under this Agreement as
any other Bank and may exercise those rights and powers as
though it were not an Agent or the Arranger.
(b) Each of the Agents and the Arranger may accept deposits from,
lend money to and generally engage in any kind of banking,
trust, advisory or other business with any Borrower and any of
its related entities and accept and retain any fees payable by
any Borrower or any of its related entities for its own
account (including, without limitation, any fees payable by
any Borrower in connection with any Facility) without
liability to account to any other Financial Institution.
23.12 Indemnities
(a) Subject to paragraph (C) below, the Borrowers shall indemnify
the Tender Panel Agent on demand for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses and disbursements of any kind which are
imposed on, incurred by, or asserted against, the Tender Panel
Agent in any way relating to or arising out of its acting as
the Tender Panel Agent under the Finance Documents except for
disbursements arising in the ordinary course of its acting as
the Tender Panel Agent which are intended to be covered by the
fee referred to in Clause 24.5.
(b) Subject to paragraph (C) below, each Underwriter shall
indemnify the Facility Agent and the Swingline Agent on
demand (to the extent not reimbursed by a Borrower and without
prejudice to any liability of the Borrowers under this
Agreement) for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses
13
<PAGE>
and disbursements of any kind which may be imposed on,
incurred by or asserted against the Facility Agent or the
Swingline Agent in anyway relating to or arising out of its
acting as the Facility Agent or the Swingline Agent, as the
case may be, under any of the Finance Documents (including,
without limitation, the charges, expenses and stamp Taxes
referred to in Clauses 25 and 26). The indemnification by
each Underwriter shall be pro rata to its Commitment at the
time of the relevant demand or, if the Total Commitments have
been reduced to zero at the time of the demand, at the time
when the Total Commitments last exceeded zero.
(c) No Contracting Party shall be liable for any portion of the
foregoing arising from the relevant Agent's negligence or
wilful misconduct.
23.13 Legal restrictions
Each of the Agents may refrain from doing anything which would or
might, in its opinion, be contrary to the law of any jurisdiction or
any official directive or render it liable to any person, and may do
anything which in its opinion is necessary to comply with any such law
or directive.
23.14 Resignation
Any Agent may resign by giving notice to the Banks and the Borrowers in
which case the Majority Underwriters in consultation with the Company
or the Company in consultation with the Underwriters (in the case of
the Tender Panel Agent) may appoint a successor Agent. If the Majority
Underwriters or the Company (as the case may be) have not within 30
days after notice of resignation, appointed a successor Agent which
accepts the appointment, the retiring Agent will have the right to
appoint a successor Agent. The resignation of the retiring Agent and
the appointment of any successor Agent will both become effective upon
the successor Agent notifying all the Contracting Parties in writing
that it accepts the appointment, whereupon the successor Agent will
succeed to the position of the retiring Agent and the term "Facility
Agent", "Tender Panel Agent" or "Swingline Agent", as appropriate,
shall mean the successor Agent. This Clause 23 shall continue to
benefit a retiring Agent in respect of any action taken or omitted by
it under this Agreement while it was an Agent.
23.15 Banks/Facility Offices/Addresses for Notices
(a) Each Agent and the Company and Company's Agent may treat each
Bank named as a Contracting Party as such a party, as entitled
to payments under this Agreement and as acting through its
Facility Office until it has received five Business Days'
notice from the Bank to the contrary.
(b) The Facility Agent shall maintain a list of the Banks and
their Facility Offices and addresses for notices, and shall,
promptly upon request from any Contracting Party from time to
time, supply a copy of the list to that Contracting Party.
23.16 Removal of Agents
The Majority Banks may remove an Agent and appoint a successor Agent
upon 90 days prior written notice to such Agent, the Facility Agent (if
such Agent is not the Facility Agent) and the Company. The removal of
an Agent and the appointment of any successor Agent will both become
effective upon the successor Agent notifying all the Contractual
Parties in writing that it accepts the appointment, whereupon the
successor Agent will succeed to the position of the retiring Agent and
the term "Facility Agent", "Tender Panel Agent" or "Swingline Agent",
as appropriate, shall mean
14
<PAGE>
the successor Agent. This Clause 23 shall continue to benefit an Agent
who is removed in respect of any action or omitted by it under this
Agreement while it was an Agent.
15
<PAGE>
SIGNATORIES
Company
COMDISCO, INC. (on behalf of itself and on behalf of those Additional Borrowers
party to the Facility Agreement)
By: EDWARD A. PACEWICZ
Arranger
NATIONAL WESTMINSTER BANK PLC
By: BOB DITTON
Co-Agents
CREDIT LYONNAIS CHICAGO BRANCH
By: MARY ANN KLEMM
DEUTSCHE BANK AG CHICAGO BRANCH AND/OR CAYMAN ISLANDS BRANCH
By: VIRGINIA N. BROWN KRYS SZREMSKI
UNION BANK OF SWITZERLAND
By: ROBERT J. VERNA ANNA LEE HOM
16
<PAGE>
Extending Banks
NATIONAL WESTMINSTER BANK PLC
By: BOB DITTON
CREDIT LYONNAIS CHICAGO BRANCH
By: MARK ANN KLEMM
DEUTSCHE BANK AG CHICAGO BRANCH AND/OR CAYMAN ISLANDS BRANCH
By: VIRGINIA A. BROWN KRYS SZREMSKI
UNION BANK OF SWITZERLAND
By: ROBERT J. VERNA ANNA LEE HOM
BARCLAYS BANK PLC
By: PAUL KAVANAGH
BHF-BANK ATKIENGESELLSCHAFT
By: LINDA PACE PERRY FORMAN
BAYERISCHE HYPOTHEKIEN-UND WECHSEL-BANK AG,
NEW YORK BRANCH
By: THOMAS A. LOWE
BAYERISCHE VEREINSBANK
By:ED C. BENNETT SYLVIA CHENG
17
<PAGE>
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCH
By: THOMAS J. NADRAMIA JOHN W. SWEENEY
NORDDEUTSCHE LANDESBANK GIROZENTRALE
By: JOSEF HAAS STEPHEN K. HUNTER
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH
By: RAYMAND K. MILLER LAURA SPICHIGER
New Banks
BAYERISCHE LANDESBANK GIROZENTRALE, CAYMAN ISLANDS BRANCH
By: WILFRIED FREUDENBERGER PETER OBERMANN
DEN DANSKE BANK AKTIESELSKAB, CAYMAN ISLANDS BRANCH
By: JOHN A. O'NEILL PETER L. HARGRAVES
Facility Agent, Tender Panel Agent and Swingline Agent
NATIONAL WESTMINSTER BANK PLC
By: BOB DITTON
Letter of Credit Agent
BARCLAYS BANK PLC
By: PAUL KAVANAGH
18
<PAGE>
U.S. $300,000,000
FIFTH AMENDED AND RESTATED
GLOBAL CREDIT AGREEMENT
Dated as of December 16, 1996
Among
COMDISCO, INC.
as the Company
THE SUBSIDIARIES OF THE COMPANY PARTY HERETO
as Multicurrency Borrowers
THE BANKS PARTY HERETO
as Banks
THE FINANCIAL INSTITUTIONS PARTY HERETO
as Tranche Agents
NATIONSBANK, N.A.
as Syndication Agent
and
CITIBANK, N.A.
as Administrative Agent
EXHIBITS
Exhibit A - Form of Notice of Tranche A Borrowing
Exhibit B - Form of Notice of Tranche B Borrowing
Exhibit C - Form of Multicurrency Borrower Assumption Agreement
Exhibit D - Form of Notice of Conversion
Exhibit E - Form of Notice of Reallocation
Exhibit F - Form of Compliance Certificate
Exhibit G - Form of Assignment and Acceptance
Exhibit H - Form of Notice of Extension of Scheduled Maturity Date
Exhibit I - MLA Cost
SCHEDULES
Schedule 1.01 - Applicable Lending Offices
Schedule 1.01A - Eligible Multicurrency Borrowers
Schedule 3.01 - Bank Bill Procedures
Schedule 8.01(i) - Subsidiaries
Schedule 8.01(n) - Environmental Compliance
FIFTH AMENDED AND RESTATED
GLOBAL CREDIT AGREEMENT
This FIFTH AMENDED AND RESTATED GLOBAL CREDIT AGREEMENT, dated
as of December 16, 1996 among COMDISCO, INC., a Delaware corporation, the
subsidiaries of the Company from time to time party hereto as Multicurrency
Borrowers, the financial institutions from time to time party hereto as Banks,
the financial institutions from time to time party hereto as Tranche Agents,
NATIONSBANK, N.A., in its capacity as Syndication Agent for the Banks hereunder,
and CITIBANK, N.A., in its capacity as Administrative Agent for the Banks
hereunder.
W I T N E S S E T H:
WHEREAS, the Company is party to the Fourth Amended Agreement;
WHEREAS, the parties hereto have agreed to amend and restate in
its entirety the Fourth Amended Agreement as hereinafter set forth; and
WHEREAS, it is the intent of the parties hereto that this
Agreement replace in its entirety the Fourth Amended Agreement, and that from
and after the Closing Date, the Fourth Amended Agreement be of no further force
or effect;
NOW, THEREFORE, in consideration of the terms and conditions
contained herein, and of any loans or extensions of credit heretofore, now or
hereafter made to or for the benefit of the Company and the Multicurrency
Borrowers by the Banks and the Agents, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
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.
"Adjusted Tranche A Pro Rata Share" means, with respect
to any Bank at any time, a fraction (expressed as a
percentage), the numerator of which shall be the then current
amount of such Bank's Commitment (less, if such Bank is a
Tranche B Bank, such Bank's Tranche B Pro Rata Share of the
Tranche B Commitment at such time), and the denominator of
which shall be the then current Tranche A Commitment, as
adjusted from time to time in accordance with the provisions
of Article V and Section 12.06.
"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 11.07.
"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, the Tranche A
Agent, the Tranche A European Sub-Agent or the Tranche B
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.
"Aggregate Pro Rata Share" shall mean, with respect to
any Bank, 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, as adjusted from time to time
in accordance with the provisions of Section 12.06.
"Agreement" means this Fifth Amended and Restated
Global Credit Agreement, as the same may be amended, restated,
supplemented or otherwise modified from time to time in
accordance with the terms hereof.
"Alternative Currency" means any lawful currency other
than Dollars which is freely transferable and convertible into
Dollars.
"Applicable Asian Country" means each of the following
countries: Australia, Japan, and Singapore.
"Applicable European Country" means each of the
following countries: Great Britain, France, Germany or
Switzerland.
"Applicable European Lending Office" shall have the
meaning given such term in Section 2.01(b).
"Applicable Lending Office" means, with respect to each
Bank, (i) such Bank's U.S. Lending Office in the case of a
Base Rate Loan, (ii) such Bank's Eurodollar Lending Office in
the case of a U.S. Loan which consititutes a Eurocurrency Rate
Loan, (iii) such Bank's Applicable European Lending Office in
the case of a European Loan which constitutes a Eurocurrency
Rate Loan and (iv) such Bank's Applicable Tranche B Lending
Office in the case of a Tranche B Loan.
"Applicable Pro Rata Share" means, with respect to any
Bank at any time, such Bank's Tranche A Pro Rata Share,
Tranche B Pro Rata Share, Applicable Tranche B Pro Rata Share
or Aggregate Pro Rata Share at such time, as the case may be.
"Applicable Tranche A Margin" means, as of any date of
determination, a per annum rate equal to the rate set forth
below opposite the then applicable Performance Level set forth
below:
Performance Level Applicable Tranche A Margin
Level 1 0.16%
Level 2 0.20%
Level 3 0.25%
Level 4 0.30%
Level 5 0.50%
"Applicable Tranche B Lending Office" shall have the
meaning given such term in Section 3.01.
"Applicable Tranche B Margin" means, with respect to
any Tranche B Loan, (i) if such Loan is denominated in
Australian dollars, a margin equal to 0.30% per annum, (ii) if
such Loan is denominated in Japanese yen, a margin equal to
0.20% per annum, and (iii) if such Loan is denominated in
Singapore dollars or Dollars, a margin equal to 0.40% per
annum.
"Applicable Tranche B Pro Rata Share" means, with
respect to each Tranche B Bank at any time, (i), in the case
of Singapore Loans, the ratio (expressed as a percentage) of
such Tranche B Bank's Singapore Sub-Commitment over the
aggregate amount of all Tranche B Banks' Singapore
Sub-Commitments or (ii), in the case of all other Tranche B
Loans, such Tranche B Bank's Tranche B Pro Rata Share.
"Asian Borrower" means each wholly-owned Subsidiary of
the Company (a) which is organized under the laws of or
licensed to do business in an Applicable Asian Country, (b)
which is either listed on Schedule 1.01A hereto as an Eligible
Multicurrency Borrower in such Applicable Asian Country or
approved in writing as an Asian Borrower in such Applicable
Asian Country by the Applicable Tranche B Lending Office of
each Tranche B Bank in such Applicable Asian Country and (c)
as to which a Multicurrency Borrower Assumption Agreement
shall have been delivered to the Administrative Agent (copies
of which shall be promptly delivered to each Applicable
Tranche B Lending Office in such Applicable Asian Country and
the Tranche B Agent), duly executed on behalf of such
Subsidiary and the Company (together with such documentation
with respect to such Subsidiary as may be required under such
Multicurrency Borrower Assumption Agreement).
"Assignment and Acceptance" means an assignment and
acceptance in substantially the form of Exhibit G 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 12.06.
"Available Asian Currency" means, for each Tranche B
Loan made in an Applicable Asian Country, the currency set
forth below opposite such Applicable Asian Country:
Applicable Asian Country Available Asian Currency
Australia Australian dollars
Japan Japanese yen
Singapore Dollars and Singapore dollars.
"Available European Currency" means any of the lawful
currencies of Great Britain (British pounds sterling), France
(French francs), Germany (Deutschmarks), Switzerland (Swiss
francs), or the United States (Dollars).
"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 12.06.
"Bank Bill Rate" means, for a particular Interest
Period, the average bid rate stated as a per cent per annum
quoted on the Reuters Screen BBSY at or about 10:10 a.m.
(Sydney time) on the first day of such Interest Period for
bills of exchange with a maturity equal to the relevant
Interest Period of such Borrowing.
"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
higher 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 U.S. Loan which bears interest
as provided in Section 2.04(a).
"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.
"Borrower" means any of the Company, the European
Borrowers or the Asian Borrowers.
"Borrowing" means a Tranche A Borrowing or a Tranche B
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, (i) if the
applicable Business Day relates to any Tranche A Loans which
constitute Eurocurrency Rate Loans, on which dealings are
carried on in the London interbank market and in the related
Applicable European Country and (ii) if the applicable
Business Day relates to any Tranche B Loan, on which dealings
are carried on in the interbank markets in Hong Kong and in
the related Applicable Asian Country.
"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.
"Citibank London" means Citibank International plc, a
Company organized and existing under the laws of the United
Kingdom.
"Citicorp International, Ltd." means Citicorp
International, Ltd., a company organized and existing under
the laws of Hong Kong.
"Closing Date" means the date on which all of the
conditions precedent set forth in Section 7.01 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.
"Collateral Account" has the meaning specified in
Section 6.11.
"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.
"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.
"Compliance Certificate" means a certificate,
substantially in the form of Exhibit F hereto, executed by the
Chief Executive Officer or Chief Financial Officer or
Controller of the Company, together with all schedules annexed
thereto.
"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 Sections
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 U.S. Loans of one Type into U.S. Loans of
another Type pursuant to Section 2.06.
"Credit Documents" means this Agreement, the
Multicurrency Borrower Assumption Agreements, guaranties and
other agreements, instruments and written indicia of
Contractual Obligations between the Company or any of its
Subsidiaries and the Agents, the Banks or their respective
Applicable Lending Offices by or on behalf of the Company or
any of its Subsidiaries 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.
"Dollar Equivalent" means, for an amount of any
Alternative Currency, the amount of Dollars which could be
realized by converting such amount of Alternative Currency
into Dollars at the rate of exchange quoted (i) with respect
to Tranche B, by the Tranche B Agent pursuant to the
provisions of Article III hereof, and (ii) with respect to
Tranche A, by Citibank in New York City, at 9:00 A.M. (New
York time) on the date of determination, to prime banks in New
York City for the spot purchase in the New York foreign
exchange market of such amount of Dollars with such
Alternative Currency.
"Dollars" and the sign "$" each means the lawful money
of the United States.
"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.
"Eligible Multicurrency Borrower" means each
wholly-owned Subsidiary of the Company listed on Schedule
1.01A hereto with respect to an Applicable European Country or
an Applicable Asian Country.
"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 corporations
(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 partnership, 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.
"Eurocurrency Rate" means:
(a) with respect to any Interest Period for
each Tranche A Loan which constitutes a Eurocurrency 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 or the relevant
Permitted Currency 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
Eurocurrency Rate Loan comprising part of such Borrowing and
for a period equal to such Interest Period;
(b) with respect to any Interest Period for
each Tranche B Loan comprising part of the same Borrowing
denominated in Australian dollars, the rate per annum (rounded
upward to the nearest 1/16 of 1%) equal to the Bank Bill Rate
as determined by the Tranche B Agent on the first day of such
Interest Period in an amount substantially equal to Citibank's
Tranche B Loan comprising part of such Borrowing and for a
period equal to such Interest Period;
(c) with respect to any Interest Period for
each Tranche B Loan comprising part of the same Borrowing
denominated in Japanese yen, the rate per annum (rounded
upward to the nearest 1/16 of 1%) equal to TIBOR as determined
by the Tranche B Agent two Business Days before the first day
of such Interest Period in an amount substantially equal to
Citibank's Tranche B Loan comprising part of such Borrowing
and for a period equal to such Interest Period; and
(d) with respect to any Interest Period for
each Tranche B Loan comprising part of the same Borrowing to
be made in Singapore and denominated in Dollars or Singapore
dollars, the rate per annum (rounded upward to the nearest
1/16 of 1%) equal to SIBOR as determined by the Tranche B
Agent (or, for Singapore Loans, each Tranche B Bank) two
Business Days before the first day of such Interest Period, in
the case of a Borrowing denominated in Dollars, and one
Business Day before the first day of such Interest Period, in
the case of a Borrowing denominated in Singapore dollars, in
an amount substantially equal to Citibank's Tranche B Loan
comprising part of such Borrowing and for a period equal to
such Interest Period.
"Eurocurrency Rate Loan" means (i) a European Loan,
(ii) a U.S. Loan which bears interest as provided in Section
2.04(b) or (iii) a Tranche B Loan.
"Eurocurrency Rate Reserve Percentage" of any Bank for
any Interest Period for any Eurocurrency 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.
"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 such other office of such Bank as such Bank may from
time to time specify to the Company, the Tranche A Agent and
the Administrative Agent.
"European Borrower" means each wholly-owned Subsidiary
of the Company (a) which is organized under the laws of or
licensed to do business in an Applicable European Country, (b)
which is either listed on Schedule 1.01A hereto as an Eligible
Multicurrency Borrower in such Applicable European Country or
approved in writing as a European Borrower in such Applicable
European Country by the Applicable European Lending Office of
each Bank in such Applicable European Country and (c) as to
which a Multicurrency Borrower Assumption Agreement shall have
been delivered to the Administrative Agent (copies of which
shall be promptly delivered to each Applicable European
Lending Office in such Applicable European Country and the
Tranche A European Sub-Agent), duly executed on behalf of such
Subsidiary and the Company (together with such documentation
with respect to such Subsidiary as may be required under such
Multicurrency Borrower Assumption Agreement).
"European Borrowing" means a borrowing consisting of
simultaneous European Loans made to a European Borrower by the
Banks pursuant to Section 2.01(b).
"European Lending Office" means, with respect to any
Bank, the office of such Bank executing this Agreement or
specified as a "European Lending Office" in one or more
Applicable European Countries opposite its name on the
signature pages hereof or on Schedule 1.01 hereto or executing
the Assignment and Acceptance pursuant to which such Bank
became a Bank and specified as a "European Lending Office" on
the signature pages thereof (or, if no such office for such
Bank executes this Agreement and is not so specified, its U.S.
Lending Office). A Bank may designate different offices as its
"European Lending Office" with respect to its Tranche A Loans
and each Available European Currency thereunder, and the term
"European Lending Office" shall refer to any or all such
offices, collectively, as the context may require when used in
respect of such Bank.
"European Loans" means a loan denominated in an
Available European Currency and made by a Bank to a European
Borrower pursuant to Section 2.01(b) for availability through
the Tranche A European Sub-Agent in London, England.
"Events of Default" has the meaning specified in
Section 10.01.
"Facility Margin Rate" means, as of any date of
determination, a per annum rate equal to the rate set forth
below opposite the then applicable Performance Level set forth
below:
Performance Level Facility Margin Rate
Level 1 0.09%
Level 2 0.10%
Level 3 0.15%
Level 4 0.20%
Level 5 0.25%
"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 Tranche A Agent from
three Federal funds brokers of recognized standing selected by
it.
"Fiscal Year" means a fiscal year of the Company.
"Fourth Amended Agreement" means that certain Fourth
Amended and Restated Global Credit Agreement dated as of
December 18, 1995 among the Company, the financial
institutions from time to time party thereto, and Citibank and
NationsBank, as co-agents and co-arrangers thereunder, as the
same has been amended, supplemented or otherwise modified from
time to time prior to the Closing Date.
"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.
"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.
"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 Eurocurrency Rate
Loan comprising part of the same Borrowing, the period
commencing on the date of the making or the Conversion of a
Loan into such Loan and ending on the last day of the period
selected by the Company (on behalf of itself or another
Multicurrency Borrower, as the case may be) pursuant to the
provisions below. Each such Interest Period shall be a period
of fourteen (14) days, one month, two, three, six or (with
respect to U.S. Loans) nine months, as the Company may select
(on behalf of itself or another Multicurrency Borrower, as the
case may be) 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;
(c) the Company may not select an Interest
Period of nine months for Multicurrency Loans; and
(d) the last day of each Interest Period shall
be on or before the Scheduled Maturity Date then in
effect.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, collateral deposit arrangement,
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 Subsidiaries 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 Tranche A Loan or Tranche B Loan, as
the case may be.
"MLA Cost" means, with respect to any Tranche A Loan
denominated in British pounds sterling and made by a Bank
(whether or not through a European Lending Office) and
maintained on the books and records of an office or Affiliate
thereof in London, England, the costs, if any, incurred by
such Bank or European Lending Office pursuant to a reserve
requirement on such Tranche A Loan imposed by the Bank of
England and calculated in accordance with the formula
described on Exhibit I hereto.
"Majority Banks" means Banks whose Voting 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.
"Moody's" means Moody's Investors Services, Inc., or
its successor.
"Multicurrency Borrower" means any one or more of the
European Borrowers or the Asian Borrowers.
"Multicurrency Borrower Assumption Agreement" means a
Multicurrency Borrower Assumption Agreement in substantially
the form of Exhibit C hereto.
"Multicurrency Loans" means any and all (i) European
Loans and (ii) Tranche B Loans.
"Multicurrency Obligations" means the Obligations of
any and all Multicurrency Borrowers.
"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, 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.
"Notice of Conversion" has the meaning specified in
Section 2.06(b).
"Notice of Reallocation" has the meaning specified in
Section 5.01(a).
"Notice of Borrowing" means either a Notice of Tranche
A Borrowing or Notice of Tranche B Borrowing.
"Notice of Tranche A Borrowing" has the meaning
specified in Section 2.02(a).
"Notice of Tranche B Borrowing" has the meaning
specified in Section 3.02(a).
"Obligations" means all present and future Debt and
other liabilities of the Company and any Subsidiary of the
Company (including, without limitation, any Multicurrency
Borrower) under any of the Credit Documents owing to any
Agent, any Bank, or any Person entitled to indemnification
pursuant to Section 12.04, or any of their respective
successors, transferees or assigns, of every type and
description, arising under or in connection with this
Agreement or any other Credit Document or the transactions
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 (including those acquired
by assignment), absolute or contingent, 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 and the other Borrowers
under this Agreement or any other Credit Document.
"Obligor" means the lessee, purchaser or borrower under
a Contract.
"Performance Levels" means, collectively, Performance
Level 1, Performance Level 2, Performance Level 3, Performance
Level 4 and Performance Level 5; and "Performance Level"
means, any of Performance Level 1, Performance Level 2,
Performance Level 3, Performance Level 4 or Performance Level
5. For purposes of determination of a given Performance Level,
(i) if neither S&P nor Moody's, at any given date, has in
effect a rating designated in the definition of Performance
Level 1, Performance Level 2, Performance Level 3 or
Performance Level 4, then Performance Level 5 shall be deemed
to be the applicable Performance Level; (ii) if the ratings of
the respective rating agencies fall within different
Performance Levels, the applicable Performance Level shall be
determined based upon the higher of the two ratings; and (iii)
if the rating by either rating agency shall be changed (other
than as a result of a change in the rating system of such
rating agency), such change shall be effective as of the date
on which it is first announced by such rating agency and
continue effective until the date immediately preceding the
effective date of the next subsequent change. If the rating
system of either rating agency shall change, or if either
rating agency shall cease to be in the business of rating
corporate debt obligations or shall not have in effect a
rating for reasons outside the control of the Company, the
parties hereto shall negotiate in good faith to amend this
definition to reflect such changed rating system or the
absence of such rating and, pending the effectiveness of any
such amendment, the applicable Performance Level shall be
determined by reference to the rating from the other rating
agency specified.
"Performance Level 1" means that level of financial
performance of the Company, on a consolidated basis, in effect
on any given date at which the long term, senior unsecured,
non-credit enhanced Indebtedness of the Company is rated at
least A- by S&P or A3 by Moody's.
"Performance Level 2" means that level of financial
performance of the Company, on a consolidated basis, in effect
on any given date at which the long term, senior unsecured,
non-credit enhanced Indebtedness of the Company is rated BBB+
by S&P or Baa1 by Moody's.
"Performance Level 3" means that level of financial
performance of the Company, on a consolidated basis, in effect
on any given date at which the long term, senior unsecured,
non-credit enhanced Indebtedness of the Company is rated BBB
by S&P or Baa2 by Moody's.
"Performance Level 4" means that level of financial
performance of the Company, on a consolidated basis, in effect
on any given date at which the long term, senior unsecured,
non-credit enhanced Indebtedness of the Company is rated BBB-
by S&P or Baa3 by Moody's.
"Performance Level 5" means that level of financial
performance of the Company, on a consolidated basis, in effect
on any given date at which the long term, senior unsecured,
non-credit enhanced Indebtedness of the Company is rated lower
than that required for Performance Level 4.
"Permitted Currency" means any Available European
Currency or Available Asian Currency.
"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.
"Reallocation" has the meaning specified in Section
5.01(a).
"Reallocation Effective Date" has the meaning specified
in Section 5.01(a).
"Reference Banks" means Caisse Nationale De Credit
Agricole, Citibank and NationsBank (or, if applicable, an
Affiliate in either case thereof), and shall include their
respective successors.
"Register" has the meaning specified in Section
12.06(c).
"Requirements of Law" shall mean, as to any Person, the
charter and by-laws or other organizational or governing
documents 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 regulation.
"S&P" means Standard & Poor's Ratings Group, a division
of the McGraw-Hill Companies, Inc., or its successor.
"Sale and Leaseback" has the meaning specified in
Section 9.03(d).
"Scheduled Maturity Date" means December 16, 1999, as
such date may be extended pursuant to Section 12.07.
"Senior Unsecured Indebtedness" means all unsecured
Debt of the Company other than Subordinated Debt.
"SIBOR" means, on the day the same is to be determined:
(a) with respect to any Singapore Loan
made by a Tranche B Bank, the rate (as determined by
such Tranche B Bank on the day the same is to be
determined) which is equal to the sum of (i) the rate
at which such Tranche B Bank is able to acquire
Singapore dollars in the Singapore interbank market (or
such other sources as such Tranche B Bank may select)
for a period equal to the relevant Interest Period of
such Borrowing and in an amount comparable with such
Tranche B Bank's Singapore Loan and (ii) the rate
determined by such Tranche B Bank to represent its cost
of compliance with liquidity, reserves, deposits or
similar requirements imposed by any relevant
governmental authority in connection with such Tranche
B Bank's Singapore Loan; and
(b) with respect to any Loan denominated
in Dollars and made by a Tranche B Bank in Singapore,
the arithmetic mean of the offered rates (unless there
is also a single rate provided, in which case such
single rate shall be used) for deposits of Dollars in
the Singapore interbank market, having a maturity equal
(or as close as practicable) to the maturity of the
relevant Tranche B Borrowing that appears on page
"SIBO" on the Reuters Monitor Money Rates Service (or
such other page on the Reuters Monitor Money Rates
Service as is used at such time to display offered
rates for deposit of Dollars, as applicable, in the
Singapore interbank markets) (the "Designated Reuters
Page") as of 11:00 a.m. (Singapore time) on such day.
If no rate appears on the Designated Reuters Page, then
the Tranche B Agent will request the principal
Singapore offices of each of Bank of America N.T. &
S.A., Singapore Branch, National Westminster Bank PLC,
Singapore Branch, The Development Bank of Singapore and
the Bank of Tokyo-Mitsubishi Ltd., Singapore Branch to
provide the Tranche B Agent with their offered
quotation for deposits in Dollars for the relevant
maturity commencing on such day to prime banks in the
Singapore interbank market at 11:00 a.m. (Singapore
time). If at least two such quotations are provided,
SIBOR shall be the arithmetic mean (rounded to four
decimal places, with .00005 being rounded to .0001) of
such quotations.
"Singapore Loans" means a Tranche B Loan made to an
Asian Borrower by a Tranche B Bank in Singapore and
denominated in Singapore dollars.
"Singapore Sub-Commitment" means, with respect to each
Tranche B Bank at such time the same is to be determined, the
Dollar Equivalent of the amount set forth in Singapore dollars
opposite such Bank's name under the heading "Singapore
Sub-Commitment" on the signature pages hereof or in an
Assignment and Acceptance. The Singapore Sub-Commitment limits
each Tranche B Bank's obligation to make Singapore Loans
hereunder and is not meant to and shall not in any way or
under any circumstances increase or otherwise affect any
Tranche B Bank's Commitment or Tranche B Pro Rata Share.
"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.
"Syndication Agent" means NationsBank in its separate
capacity as syndication agent for the Banks. The capacity of
NationsBank as "Syndication Agent" is titular in nature and
NationsBank shall have no additional rights or obligations
under this Agreement by virtue of such capacity.
"Termination Date" means the earlier of the Scheduled
Maturity Date or the date of the termination in whole of the
Tranche A Commitment and the Tranche B Commitment pursuant to
Section 10.02.
"TIBOR" means, on the day the same is to be determined,
the rate at which deposits in Japanese yen are offered in the
Tokyo interbank market, having a maturity equal (or as close
as practicable) to the maturity of the relevant Tranche B
Loans, that appears on page "DTIBOR 01" on the Reuters Monitor
Money Rates Service (or such other page on the Reuters Monitor
Money Rates Service as is used at such time to display offered
rates for deposits Japanese yen in the Tokyo interbank
markets) as quoted by the Tranche B Agent at 11:00 a.m. (Tokyo
time) on such day.
"Total Commitments" means the aggregate principal
amount of the Commitments of all of the Banks, the maximum
amount of which shall be Three Hundred Million Dollars
($300,000,000) (as such amount may from time to time be
increased in accordance with the terms of Section 12.24
hereof).
"Tranche" means either Tranche A or Tranche B.
"Tranche A" means the tranche subfacility provided to
the Company pursuant to Article II.
"Tranche A Agent" means NationsBank in its capacity as
agent under Tranche A, and includes any successor Tranche A
Agent appointed pursuant to Section 11.07.
"Tranche A Borrower" means the Company or any European
Borrower.
"Tranche A Borrowing" means a U.S. Borrowing or a
European Borrowing made under Tranche A.
"Tranche A Commitment" means the aggregate obligation
of the Banks to make Tranche A Loans pursuant to the terms of
this Agreement, and shall on the Closing Date be in an amount
equal to One Hundred Seventy-Four Million Dollars
($174,000,000), as such amount may from time to time be
adjusted in accordance with the terms of this Agreement;
provided, that at no time may the sum of the Tranche A
Commitment and Tranche B Commitment exceed the Total
Commitments at such time.
"Tranche A European Sub-Agent" means Citibank London in
its capacity as agent under Tranche A, and includes any
successor Tranche A European Sub-Agent appointed pursuant to
Section 11.07.
"Tranche A Loan" means a U.S. Loan or a European Loan
by a Bank to a Tranche A Borrower pursuant to Section 2.01.
"Tranche A Obligations" means all of the unpaid
principal of, or interest on, and fees, expenses and other
amounts owing under or in connection with, the Tranche A
Loans.
"Tranche A Pro Rata Share" means, with respect to any
Bank at any time, a fraction (expressed as a percentage), (a)
the numerator of which shall be the then current amount of
such Bank's Commitment less (i) such Bank's Tranche B Pro Rata
Share of the Tranche B Commitment at such time (if such Bank
is a Tranche B Bank) and (ii) the aggregate principal amount
of all Tranche A Loans outstanding at such time owing to such
Bank, and (b) the denominator of which shall be the excess of
the then current Tranche A Commitment over the aggregate
principal amount of all Tranche A Loans outstanding at such
time, in each case, as adjusted from time to time in
accordance with the provisions of Article V and Section 12.06.
"Tranche Agents" means the Tranche A Agent, the Tranche
A European Sub-Agent and the Tranche B Agent.
"Tranche B" means the tranche subfacility provided to
the Company pursuant to Article III.
"Tranche B Agent" means Citicorp International, Ltd.,
Hong Kong, in its capacity as agent under Tranche B, and
includes any successor Tranche B Agent appointed pursuant to
Section 11.07.
"Tranche B Bank" means each of the financial
institutions party to this Agreement and named as a Tranche B
Bank on the signature pages hereof or which becomes a party to
this Agreement pursuant to an Assignment and Acceptance from a
Tranche B Bank in accordance with Section 12.06 or becomes a
Tranche B Bank by virtue of Section 3.06(b).
"Tranche B Borrowing" means a borrowing consisting of
simultaneous Tranche B Loans made to an Asian Borrower by the
Tranche B Banks pursuant to Section 3.01.
"Tranche B Commitment" means the aggregate obligation
of the Tranche B Banks to make Tranche B Loans pursuant to the
terms of this Agreement, and shall on the Closing Date be in
an amount equal to One Hundred Twenty-Six Million Dollars
($126,000,000), as such amount may from time to time be
adjusted in accordance with the terms of this Agreement;
provided, that at no time may the sum of the Tranche B
Commitment and the Tranche A Commitment exceed the Total
Commitments at such time.
"Tranche B Lending Office" means with respect to any
Tranche B Bank, each office of such Bank executing this
Agreement and specified as a "Tranche B Lending Office" of
such Bank in an Applicable Asian Country on the signature
pages hereof or executing the Assignment and Acceptance
pursuant to which such Bank became a Bank and specified as a
"Tranche B Lending Office" on the signature pages thereof. A
Bank shall designate different offices as its "Tranche B
Lending Office" with respect to its Tranche B Loans and each
Available Asian Currency thereunder, and the term "Tranche B
Lending Office" shall refer to any or all such offices,
collectively, as the context may require when used in respect
of such Bank.
"Tranche B Loan" means a loan made by a Tranche B Bank
through its applicable Tranche B Lending Office to an Asian
Borrower pursuant to Section 3.01.
"Tranche B Obligations" means all of the unpaid
principal of, interest on, and fees and expenses and other
amounts owing under or in connection with the Tranche B Loans.
"Tranche B Pro Rata Share" means, with respect to any
Tranche B Bank at any time, a fraction (expressed as a
percentage), the numerator of which shall be the then current
amount of such Tranche B Bank's Commitment and the denominator
of which shall be the aggregate Commitments of the Tranche B
Banks, as adjusted from time to time in accordance with the
provisions of Article V and Section 12.06.
"Tranche Commitment" means the Tranche A Commitment and
the Tranche B Commitment.
"Type" has the meaning specified in the definition of
"U.S. Loans" herein.
"U.S. Borrowing" means a borrowing consisting of
simultaneous U.S. Loans of the same Type (and, if Eurocurrency
Rate Loans, having the same Interest Period) made to the
Company by the Banks pursuant to Section 2.01(a), or Converted
pursuant to Section 2.06.
"U.S. Lending Office" means, with respect to any Bank,
the office of such Bank specified as its "U.S. 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 Tranche A Agent and the
Administrative Agent.
"U.S. Loans" means a loan denominated in Dollars and
made by a Bank to the Company pursuant to Section 2.01(a) for
availability through the Tranche A Agent in the United States,
and refers to either a Base Rate Loan or a Eurocurrency Rate
Loan (each of which shall be a "Type" of 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.
"Voting Pro Rata Share" shall mean, with respect to any
Bank, a fraction (expressed as a percentage):
(i) at any time prior to the termination of the Tranche
A Commitment and the Tranche B Commitment, the numerator of
which shall be the Commitment of such Bank and the denominator
of which shall be the Total Commitments at such time; and
(ii) at any time following the termination of the
Tranche A Commitment and the Tranche B Commitment and so long
as any Tranche A Loans or Tranche B Loans remain outstanding,
the numerator of which shall be the sum of the aggregate
outstanding Tranche A Loans and Tranche B Loans of such Bank,
and the denominator of which shall be the aggregate
outstanding Tranche A Loans and the Tranche B Loans of all of
the Banks at such time.
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"
"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.
"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 12.02(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
AMOUNT AND TERMS OF THE TRANCHE A SUBFACILITY
SECTION 2.01. The Tranche A Loans.
(a) U.S. Loans. Each Bank severally and not jointly agrees, on
the terms and conditions hereinafter set forth, to make Tranche A Loans in the
form of U.S. Loans to the Company from time to time on any Business Day during
the period from the date hereof until the Termination Date. U.S. Loans which
constitute Eurocurrency Rate Loans may be made by each Bank through the
Eurodollar Lending Office of such Bank which is designated on Schedule 1.01. If
no Eurodollar Lending Office is designated by a Bank, then any U.S. Loans which
consititute Eurocurrency Rate Loans made by such Bank shall be made by the U.S.
Lending Office thereof. The designation and use of any Eurodollar Lending Office
hereunder shall not affect the rights and obligations under this Agreement of
any Bank. Each U.S. 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 U.S. Loans comprised of either a Base Rate Loan or a Eurocurrency
Rate Loan.
(b) European Loans. Each Bank severally and not jointly agrees,
on the terms and conditions hereinafter set forth, to make Tranche A Loans in
the form of European Loans to the European Borrowers, from time to time on any
Business Day during the period from the date hereof until the Termination Date.
European Loans may be made by each Bank through the European Lending Office of
such Bank which is designated on Schedule 1.01 as the applicable European
Lending Office thereof for European Loans denominated in the related Available
European Currency (each, an "Applicable European Lending Office"). If no
European Lending Office is designated by a Bank as its Applicable European
Lending Office for an Available European Currency, then any European Loans made
by such Bank denominated in such Available European Currency shall be made by
the U.S. Lending Office thereof. The designation and use of any Applicable
European Lending Office hereunder shall not affect the rights and obligations of
any Bank under this Agreement. Each European Borrowing shall consist of European
Loans comprised of Eurocurrency Rate Loans denominated in a single currency, in
an aggregate amount equal to (i) in the case of a European Borrowing denominated
in Dollars, an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof or (ii) in the case of a non-Dollar denominated
European Borrowing, an integral multiple of 100,000 units in such Permitted
Currency and (converted to the Dollar Equivalent thereof) equal to or greater
than $5,000,000, provided, that in the case of any such non-Dollar denominated
European Borrowing, the proceeds of which shall be used to repay a then maturing
European Borrowing denominated in the same Permitted Currency, such new
Borrowing may, subject to the terms and conditions otherwise set forth herein,
be in an aggregate principal amount equal to the aggregate principal amount of
such maturing Borrowing.
(c) In no event shall a Tranche A Loan be made if after giving
effect to such Tranche A Loan the aggregate principal amount (converted, if any
such Loan is not denominated in Dollars, to the Dollar Equivalent thereof) of
Tranche A Loans made by any Bank outstanding at such time exceeds the Dollar
amount of such Bank's Adjusted Tranche A Pro Rata Share of the Tranche A
Commitment at such time.
(d) Borrowing/Reborrowing. Each Tranche A Borrowing shall be
made on the same day to the same Tranche A Borrower by the Banks (through a
European Lending Office if applicable) ratably in accordance with their
respective Tranche A Pro Rata Shares. Within the limits of the Tranche A
Commitment and subject to the terms of this Agreement, the Company and the other
European Borrowers may borrow, prepay pursuant to Section 2.05 and reborrow
under this Section 2.01. For the purposes of determining compliance with this
Section 2.01, the Dollar Equivalent of all non-Dollar denominated Tranche A
Loans outstanding at any time shall be determined, in accordance with Section
2.02, by the Tranche A European Sub-Agent immediately prior to the issuance by
the Company (on behalf of itself or a European Borrower) of a Notice of Tranche
A Borrowing.
SECTION 2.02. Making the Tranche A Loans.
(a) Each Tranche A Borrowing shall be made on written notice
(each, a "Notice of Tranche A Borrowing") from the Company (on behalf of itself
or a European Borrower) (i) to the Tranche A Agent, the Tranche A European
Sub-Agent and the Administrative Agent, given not later than 10:00 A.M. (New
York time) on the date of a proposed U.S. Borrowing of Base Rate Loans, (ii) to
the Tranche A Agent, Tranche A European Sub-Agent and the Administrative Agent,
given not later than 11:00 a.m. (New York time) on the third Business Day prior
to the date of a proposed U.S. Borrowing of Eurocurrency Rate Loans and (iii) to
the Tranche A European Sub-Agent, the Tranche A Agent and the Administrative
Agent, given not later than 11:00 A.M. (London time) on the fourth Business Day
prior to the date of such proposed European Borrowing.
(b) Each Notice of Tranche A Borrowing shall be by telecopier or
other form of teletransmission, in substantially the form of Exhibit A hereto,
specifying therein the requested (i) Tranche A Borrower, (ii) date of such
Tranche A Borrowing (which shall be a Business Day), (iii) currency in which
such Tranche A Borrowing is to be denominated, (iv) Type of any U.S. Loans
comprising such Tranche A Borrowing, (v) Interest Period for such Tranche A
Borrowing in the case of a Tranche A Borrowing comprised of Eurocurrency Rate
Loans, and (vi) aggregate amount of such Tranche A Borrowing. The Company shall
request, within one Business Day prior to the issuance of the applicable Notice
of Tranche A Borrowing, the advice of the Tranche A European Sub-Agent as to the
Dollar Equivalent of the amount of all outstanding non-Dollar denominated
Tranche A Loans (including the Tranche A Loans to be made under such Borrowing),
and the Company shall specify such amount in such Notice of Tranche A Borrowing.
In lieu of delivering the above-described Notice of Tranche A Borrowing, the
Company (on behalf of itself or the applicable European Borrower) may give the
applicable Agent, as provided in Section 2.02(a), telephonic notice of any
proposed Tranche A Borrowing by the time required under Section 2.02(a);
provided, that the Company agrees to confirm such notice in writing by facsimile
transmission of an executed Notice of Tranche A Borrowing to such Agent no later
than 5:00 p.m. (either New York or London time, as applicable) 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.
(c) Promptly after receipt of a Notice of Tranche A Borrowing
under Section 2.02(a) (or telephonic notice in lieu thereof), and in any case
not later than three Business Days prior to any proposed Tranche A Borrowing
consisting of Eurocurrency Rate Loans, the Administrative Agent shall notify
each Bank and Applicable Lending Office by telecopy or other form of
teletransmission of the proposed Tranche A Borrowing. Each Bank (through a
European Lending Office where applicable) shall, before 11:00 a.m. (New York
time) (in the case of a U.S. Borrowing of Eurocurrency Rate Loans), 2:00 p.m.
(New York time) (in the case of a U.S. Borrowing of Base Rate Loans) or 11:00
a.m. (London time) (in the case of a European Borrowing) on the date of such
Tranche A Borrowing, make the amount of its Tranche A Loan available to either
the Tranche A Agent (in the case of a U.S. Borrowing) or the Tranche A European
Sub-Agent (in the case of a European Borrowing), at its address referred to in
Section 12.02, in the requested Available European Currency and in same day
funds. After the applicable Agent's receipt of such funds and upon fulfillment
of the applicable conditions set forth in Section 7.02, such Agent will make
such funds available to the applicable Borrower at such Agent's aforesaid
address.
(d) Anything hereinabove to the contrary notwithstanding, if any
Bank shall, not later than 10:00 a.m. (London time) two Business Days before the
date of any requested European Borrowing, notify the Tranche A Agent and the
Tranche A European Sub-Agent that such Bank is not satisfied that deposits in
the relevant Available European Currency will be freely available to it in the
relevant amount and for the relevant Interest Period, the right of the Tranche A
Borrowers to request Tranche A Loans in such Available European Currency from
such Bank as part of such Borrowing or any subsequent Borrowing shall be
suspended until such Bank shall notify the Tranche A Agent and the Tranche A
European Sub-Agent that the circumstances causing such suspension no longer
exist, and, at the option of the applicable Tranche A Borrower, either (i) the
applicable Notice of Tranche A Borrowing may be withdrawn, and such Tranche A
Borrowing shall not be made, or (ii) if such Tranche A Borrowing was not to have
been denominated in Dollars, the Tranche A Loan to be made by such Bank as part
of such Tranche A Borrowing (and the Tranche A Loan to be made by such Bank as
part of any subsequent Borrowing in respect of which such Available European
Currency shall have been requested during such period of suspension) shall be a
Eurocurrency Rate Loan denominated in Dollars and having an Interest Period
coextensive with the Interest Period in effect in respect of all other Tranche A
Loans comprising a part of such Borrowing. If the applicable Tranche A Borrower
elects to withdraw its Notice of Tranche A Borrowing, such Tranche A Borrower
shall be liable to the Banks for any damages suffered on account thereof of a
nature, other than loss of anticipated profits, described in the second sentence
of subsection (e) below. Any Bank which delivers a notice pursuant to the first
sentence of this Section 2.02(d) shall be liable to such Tranche A Borrower for
the costs such Tranche A Borrower incurs pursuant to the sentence preceding
hereto. The Tranche A Agent and the Tranche A European Sub-Agent shall, upon
becoming aware that the circumstances causing any such suspension no longer
apply, promptly so notify the Company, provided that the failure of the Tranche
A Agent or Tranche A European Sub-Agent to so notify the Company shall not
impair the rights of the Banks under this Section 2.02(d) or expose such Agent
to any liability. In the event that a Bank delivers a notice pursuant to the
first sentence of this Section 2.02(d) then, unless such Bank has theretofore
taken steps to remove or cure, and has removed or cured, the circumstances
described in such notice, the Company may pay to such Bank an amount equal to
the outstanding principal amount of such Bank's Loans plus any accrued but
unpaid interest thereon, and, if applicable, accrued but unpaid fees and
expenses owed hereunder or in connection herewith (including, without
limitation, under Section 6.04(a)(ii)), and upon such payment such Bank shall
cease to be a Bank hereunder.
(e) Each Notice of Tranche A Borrowing (or telephonic notice in
lieu thereof) shall be irrevocable and binding on the applicable Tranche A
Borrower on whose behalf it shall have been submitted. In the case of either a
European Borrowing or a U.S. Borrowing which the Notice of Tranche A Borrowing
(or telephonic notice in lieu thereof) specifies is to be comprised of
Eurocurrency Rate Loans, the applicable Tranche A Borrower 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 the applicable Notice of
Tranche A Borrowing (or telephonic notice in lieu thereof) for such Tranche A
Borrowing the applicable conditions set forth in Section 7.02, 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 Tranche A Loan to be made by such
Bank as part of such Tranche A Borrowing when such Tranche A Loan, as a result
of such failure, is not made on such date.
(f) Unless the Tranche A Agent (in the case of a U.S. Borrowing)
or the Tranche A European Sub-Agent (in the case of a European Borrowing) shall
have received notice from a Bank prior to the date of any Tranche A Borrowing
that such Bank will not make available to the applicable Agent such Bank's
ratable portion of such Tranche A Borrowing, such Agent may assume that such
Bank (through a European Lending Office where applicable) has made such portion
available to the appropriate Agent on the date of such Tranche A Borrowing in
accordance with subsection (c) of this Section 2.02 and such Agent in its sole
discretion may, in reliance upon such assumption, make available to the
applicable Tranche A Borrower 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 applicable Agent, such Bank and such Tranche A Borrower severally agree to
repay to such Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to
such Tranche A Borrower until the date such amount is repaid to such Agent, at
(i) in the case of such Tranche A Borrower, the interest rate applicable at the
time to Loans comprising such Borrowing and (ii) in the case of such Bank, the
applicable Agent's cost of funds for such time. If such Bank shall repay to the
such Agent such corresponding amount, such amount so repaid shall constitute
such Bank's Tranche A Loan as part of such Tranche A Borrowing for purposes of
this Agreement. In addition to the foregoing, such Bank agrees to repay to such
Agent forthwith on demand the amount of any costs or expenses incurred by such
Agent on account of such non-delivery of funds of a nature, other than loss of
anticipated profits, described in the second sentence of subsection (e) above.
(g) The failure of any Bank to make the Tranche A Loan to be
made by it as part of any Tranche A Borrowing shall not relieve any other Bank
of its obligation, if any, hereunder to make its Tranche A Loan on the date of
such Tranche A Borrowing, but no Bank shall be responsible for the failure of
any other Bank to make the Tranche A Loan to be made by such other Bank on the
date of any Tranche A Borrowing.
(h) Anything in subsection (a) above to the contrary
notwithstanding, the Company may not select Eurocurrency Rate Loans for any U.S.
Borrowing if any Event of Default or Unmatured Event of Default has occurred and
is then continuing.
SECTION 2.03. Repayment. Each of the Company and the other
Tranche A Borrowers shall repay the principal amount of each Tranche A Loan made
to it on the earlier of (i) the last day of the Interest Period for such Tranche
A Loan or (ii) the Termination Date.
SECTION 2.04. Interest. Subject to Section 6.07, each of the
Company and the other Tranche A Borrowers shall pay interest on the unpaid
principal amount of each Tranche A Loan made to it owing to each Bank from the
date of such Tranche A Loan until such principal amount shall be paid in full,
at the following rates per annum and at the following times:
(a) Base Rate Loans. If such Tranche A 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, on any date such Base Rate Loan is
Converted or paid in full and on the Termination Date.
(b) Eurocurrency Rate Loans. If such Tranche A Loan is
a Eurocurrency Rate Loan, a rate per annum equal at all times
during the Interest Period for such Loan to the sum of the
Eurocurrency Rate for such Loan and such Interest Period plus
the then effective Applicable Tranche A Margin, 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 U.S. Loan is outstanding with respect to which effective notice
has not been delivered to the Tranche A Agent in accordance with the terms
hereof specifying the basis for determining the rate of interest applicable
thereto (including, without limitation, Eurocurrency Rate Loans which, following
the end of the Interest Period with respect thereto, are not reborrowed
hereunder as Eurocurrency Rate Loans), then for such day such U.S. Loan shall be
a Base Rate Loan. If on any day a European Loan is outstanding with respect to
which effective notice has not been delivered to the Tranche A European
Sub-Agent in accordance with the terms hereof specifying the basis for
determining the rate of interest applicable thereto (including, without
limitation, Eurocurrency Rate Loans which, following the end of the Interest
Period with respect thereto, are not reborrowed hereunder as Eurocurrency Rate
Loans), then the Tranche A European Sub-Agent shall calculate the interest
thereon by (i) assigning an Interest Period to such European Loan of one month
and determining the Eurocurrency Rate with respect thereto, or (ii) if the
Eurocurrency Rate cannot be determined, after consultation with the Company,
designating a rate or rates of interest, in lieu of the Eurocurrency Rate, which
reasonably approximates the Banks' costs of funding the European Loans (and
interest shall accrue on each such European Loan at the then effective
Applicable Tranche A Margin plus either such Eurocurrency Rate or such other
rate, as determined pursuant to clause (i) or (ii) above, respectively). Nothing
in this Section 2.04, however, shall be deemed to constitute a consent to, or a
waiver with respect to, any failure by a Tranche A Borrower to repay the
principal amount of a Tranche A Loan as required under Section 2.03 above.
SECTION 2.05. Prepayments. The Company and the European
Borrowers may, upon at least one Business Day's prior written notice to the
Tranche A Agent (with respect to Base Rate Loans), three Business Day's prior
written notice to the Tranche A Agent (with respect to U.S. Loans which comprise
Eurocurrency Rate Loans) or four Business Day's prior written notice to the
Tranche A European Sub-Agent (with respect to European Loans), prepay the
outstanding principal amounts of any Tranche A Loans comprising part of the same
Tranche A 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 an integral multiple of 100,000 units in the applicable
Available European Currency and (converted to the Dollar Equivalent thereof
calculated on the date of prepayment) equal to or greater than $3,000,000 (or,
if less, the aggregate principal amount of such Tranche A Borrowing) and (y) any
prepayment of any Eurocurrency 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 6.04(a)(ii). Any notice of prepayment given to an
applicable Agent under this Section 2.05 shall be received by such Agent no
later than 10:00 a.m. (New York time with regard to the Tranche A Agent; London
time with regard to the Tranche A European Sub-Agent) 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 Tranche A Loans specified in
such notice shall become due and payable on the prepayment date specified in
such notice.
SECTION 2.06. Voluntary Conversion of U.S. Loans.
(a) Subject to the provisions of Sections 6.07 and 6.08, the
Company may, by notice delivered in accordance with subsection (b) below, (i) at
any time Convert U.S. Loans comprising Base Rate Loans in an aggregate principal
amount of at least $5,000,000 into Eurocurrency Rate Loans and (ii) Convert U.S.
Loans comprising Eurocurrency Rate Loans into Base Rate Loans on the expiration
date of the Interest Period with respect thereto; provided, that no Loans may be
Converted into Eurocurrency 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 U.S. Loans
under subsection (a), the Company shall deliver written notice (each, a "Notice
of Conversion") to the Tranche A Agent and the Tranche A European Sub-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 Eurocurrency Rate Loans. Each Notice of Conversion
shall be by telecopier or other form of teletransmission, confirmed promptly in
writing, in substantially the form of Exhibit D hereto, specifying the requested
(i) date of such Conversion (which shall be a Business Day), (ii) Loans to be
Converted, and (iii) if such Conversion is into Eurocurrency Rate Loans,
duration of the Interest Period to be applied thereto. Promptly after receipt of
a Notice of Conversion under this Section 2.06(b), the Tranche A Agent shall
notify each Bank by telecopy or other similar form of teletransmission of the
proposed Conversion. Each Notice of Conversion shall be irrevocable and, once
delivered, the Company shall be bound to Convert Tranche A Loans in accordance
therewith.
ARTICLE III
AMOUNT AND TERMS OF THE TRANCHE B SUBFACILITY
SECTION 3.01. The Tranche B Loans. Each Tranche B Bank severally
and not jointly agrees, on the terms and conditions hereinafter set forth, to
make Tranche B Loans from time to time on any Business Day during the period
from the date hereof until the Termination Date, in an aggregate amount
(converted, if such Loan is made in a currency other than Dollars, to the Dollar
Equivalent thereof) not to exceed at any time outstanding the Dollar amount of
(i) such Bank's Tranche B Pro Rata Share of the Tranche B Commitment and (ii) in
the case of Singapore Loans, such Tranche B Bank's Singapore Sub-Commitment.
Tranche B Loans shall be made by each Tranche B Bank through the Tranche B
Lending Office of such Tranche B Bank which is located in the Applicable Asian
Country where the proceeds of such Tranche B Borrowing are to be made available
(each an "Applicable Tranche B Lending Office"). The designation and use of any
Applicable Tranche B Lending Office hereunder shall not affect the rights and
obligations of any Bank under this Agreement. Each Tranche B Borrowing shall
consist of Tranche B Loans comprised of Eurocurrency Rate Loans denominated in a
single Available Asian Currency, in an aggregate amount equal to an integral
multiple of 100,000 units in such Available Asian Currency and (converted to the
Dollar Equivalent thereof) equal to or greater than $5,000,000, and shall be
made on the same day to the same Asian Borrower by each Tranche B Bank (through
its Applicable Tranche B Lending Office), ratably in accordance with their
respective Applicable Tranche B Pro Rata Shares; provided, that in the case of
any such Tranche B Borrowing, the proceeds of which shall be used to repay a
then maturing Tranche B Borrowing denominated in the same Available Asian
Currency, such new Tranche B Borrowing may, subject to the terms and conditions
otherwise set forth herein, be in an aggregate principal amount equal to the
aggregate principal amount of such maturing Tranche B Borrowing. Within the
limits of the Tranche B Commitment (and the Singapore Sub-Commitment) and
subject to the terms of this Agreement, the Asian Borrowers may borrow, prepay
pursuant to Section 3.06 and reborrow under this Section 3.01. For the purposes
of determining compliance with this Section 3.01, the Dollar Equivalent of all
non-Dollar denominated Tranche B Loans outstanding at any time shall be
determined, in accordance with Section 3.02, by the Tranche B Agent immediately
prior to the issuance by the Company (on behalf of itself or an Asian Borrower)
of a Notice of Tranche B Borrowing. The making of any Singapore Loans is subject
to any required Singapore governmental approvals. In respect of Tranche B Loans
denominated in Australian dollars, the procedures set forth on Schedule 3.01 for
establishing bills of exchange relating to the Bank Bill Rate shall be adhered
to by any Asian Borrower borrowing Australian dollars hereunder and the Tranche
B Banks.
SECTION 3.02. Making the Tranche B Loans.
(a) Each Tranche B Borrowing shall be made on written notice
(each, a "Notice of Tranche B Borrowing") from the Company (on behalf of an
Asian Borrower) to the Tranche B Agent not later than 11:00 a.m. (Hong Kong
time) on the sixth Business Day prior to the date of such proposed Tranche B
Borrowing. Each Notice of Tranche B Borrowing shall be by telecopier or other
form of teletransmission, in substantially the form of Exhibit B hereto,
specifying therein the requested (i) Asian Borrower, (ii) date of such Tranche B
Borrowing (which shall be a Business Day), (iii) Applicable Asian Country of
such Tranche B Borrowing, (iv) Available Asian Currency in which such Tranche B
Borrowing is to be denominated, (v) Interest Period for such Tranche B Borrowing
and (vi) aggregate amount of such Tranche B Borrowing. The Company shall
request, within one Business Day prior to the issuance of the applicable Notice
of Tranche B Borrowing, the advice of the Tranche B Agent as to the Dollar
Equivalent of the amount of all outstanding non-Dollar denominated Tranche B
Loans (including the Tranche B Loans to be made under such Borrowing), and the
Company shall specify such amount in such Notice of Tranche B Borrowing. In lieu
of delivering the above-described Notice of Tranche B Borrowing, the Company (on
behalf of an Asian Borrower) may give the Tranche B Agent telephonic notice of
any proposed Tranche B Borrowing by the time required under this Section 3.02;
provided, that the Company agrees to confirm such notice in writing by facsimile
transmission of an executed Notice of Tranche B Borrowing to the Tranche B Agent
no later than 5:00 P.M. (Hong Kong 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 Tranche B Borrowing
under Section 3.02(a) (or telephonic notice in lieu thereof), and in any case
not later than five Business Days prior to any proposed Tranche B Borrowing, the
Administrative Agent shall notify each Tranche B Bank and Applicable Lending
Office by telecopy or other form of teletransmission of the proposed Tranche B
Borrowing. Each Tranche B Bank shall, through its Applicable Tranche B Lending
Office, before 11:00 a.m. (in the time zone of the Applicable Asian Country of
such Tranche B Borrowing) on the date of such Tranche B Borrowing, make the
amount of its Tranche B Loan available to the Tranche B Agent at the address
designated in Section 12.02 hereof as the address of the Tranche B Agent in such
Applicable Asian Country in the requested Available Asian Currency and in same
day funds. After the Tranche B Agent's receipt of such funds at such designated
office in the Applicable Asian Country, and upon fulfillment of the applicable
conditions set forth in Section 7.02, the Tranche B Agent will make such funds
available to the applicable Asian Borrower at the Tranche B Agent's aforesaid
designated office.
(c) Anything hereinabove to the contrary notwithstanding, if any
Tranche B Bank shall, not later than 10:00 a.m. (Hong Kong time) two Business
Days before the date of any requested Tranche B Borrowing, notify the Tranche B
Agent that such Tranche B Bank is not satisfied that deposits in the relevant
Available Asian Currency will be freely available to it in the relevant amount
and for the relevant Interest Period, the right of the Asian Borrowers to
request Tranche B Loans in such Available Asian Currency from such Tranche B
Bank as part of such Tranche B Borrowing or any subsequent Tranche B Borrowing
shall be suspended until such Tranche B Bank shall notify the Tranche B Agent
that the circumstances causing such suspension no longer exist, and, at the
option of the applicable Asian Borrower, either (i) the applicable Notice of
Tranche B Borrowing may be withdrawn, and such Tranche B Borrowing shall not be
made, or (ii) if such Tranche B Borrowing was not to have been denominated in
Dollars, the Tranche B Loan to be made by such Tranche B Bank as part of such
Tranche B Borrowing (and the Tranche B Loan to be made by such Tranche B Bank as
part of any subsequent Tranche B Borrowing in respect of which such Available
Asian Currency shall have been requested during such period of suspension) shall
be a Eurocurrency Rate Loan denominated in Dollars and having an Interest Period
coextensive with the Interest Period in effect in respect of all other Tranche B
Loans comprising a part of such Tranche B Borrowing. If the applicable Asian
Borrower elects to withdraw its Notice of Tranche B Borrowing, such Asian
Borrower shall be liable to the Banks for any damages suffered on account
thereof of a nature, other than loss of anticipated profits, described in the
second sentence of subsection (d) below. Any Bank which delivers a notice
pursuant to the first sentence of this Section 3.02(c) shall be liable to such
Asian Borrower for the costs such Asian Borrower incurs pursuant to the sentence
preceding hereto. The Tranche B Agent shall, upon becoming aware that the
circumstances causing any such suspension no longer apply, promptly so notify
the Company, provided that the failure of the Tranche B Agent to so notify the
Company shall not impair the rights of the Tranche B Banks under this Section
3.02(c) or expose the Tranche B Agent to any liability.
(d) Each Notice of Tranche B Borrowing (or telephonic notice in
lieu thereof) shall be irrevocable and binding on the Asian Borrower on whose
behalf it shall have been submitted. The applicable Asian Borrower shall
indemnify each Tranche B Bank against any loss, cost or expense incurred by such
Tranche B Bank as a result of any failure to fulfill on or before the date
specified in such Notice of Tranche B Borrowing for such Tranche B Borrowing (or
telephonic notice in lieu thereof) the applicable conditions set forth in
Article VII, 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 Tranche B Bank to fund
the Tranche B Loan to be made by such Tranche B Bank as part of such Tranche B
Borrowing when such Tranche B Loan, as a result of such failure, is not made on
such date.
(e) Unless the Tranche B Agent shall have received notice from a
Tranche B Bank prior to the date of any Tranche B Borrowing that such Tranche B
Bank will not make available to the Tranche B Agent such Tranche B Bank's
ratable portion of such Tranche B Borrowing, the Tranche B Agent may assume that
such Tranche B Bank, through its Applicable Tranche B Lending Office, has made
such portion available to the Tranche B Agent on the date of such Tranche B
Borrowing in accordance with subsection (b) of this Section 3.02 and the Tranche
B Agent in its sole discretion may, in reliance upon such assumption, make
available to the applicable Asian Borrower on such date a corresponding amount.
If and to the extent that such Tranche B Bank shall not have so made such
ratable portion available to the Tranche B Agent, such Tranche B Bank and such
Asian Borrower severally agree to repay to the Tranche B Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to such Asian Borrower until the
date such amount is repaid to the Tranche B Agent, at (i) in the case of such
Asian Borrower, the interest rate applicable at the time to Loans comprising
such Borrowing and (ii) in the case of such Bank, the Tranche B Agent's cost of
funds for such time. If such Tranche B Bank shall repay to the such Agent such
corresponding amount, such amount so repaid shall constitute such Bank's Tranche
B Loan as part of such Tranche B Borrowing for purposes of this Agreement. In
addition to the foregoing, such Tranche B Bank agrees to repay to the Tranche B
Agent forthwith on demand the amount of any costs or expenses incurred by the
Tranche B Agent on account of such non-delivery of funds of a nature, other than
loss of anticipated profits, described in the second sentence of subsection (d)
above.
(f) The failure of any Tranche B Bank to make the Tranche B Loan
to be made by it as part of any Tranche B Borrowing shall not relieve any other
Tranche B Bank of its obligation, if any, hereunder to make its Tranche B Loan
on the date of such Tranche B Borrowing, but no Tranche B Bank shall be
responsible for the failure of any other Tranche B Bank to make the Tranche B
Loan to be made by such other Tranche B Bank on the date of any Tranche B
Borrowing.
SECTION 3.03. Repayment. Each Asian Borrower shall repay the
principal amount of each Tranche B Loan made to it on the earlier of (i) the
last day of the Interest Period for such Tranche B Loan or (ii) the Termination
Date.
SECTION 3.04. Interest. Subject to Section 6.07, each Asian
Borrower shall pay interest on the unpaid principal amount of each Tranche B
Loan made to it and owing to each Tranche B Lending Office from the date of such
Tranche B Loan until such principal amount shall be paid in full, at a rate per
annum at all times during each Interest Period for such Tranche B Loan equal to
the sum of the Eurocurrency Rate for such Loan and such Interest Period plus the
then effective Applicable Tranche B Margin, 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 Tranche B Loan is
outstanding with respect to which effective notice has not been delivered to the
Tranche B Agent in accordance with the terms hereof specifying the basis for
determining the rate of interest applicable thereto (including, without
limitation, Tranche B Loans which, following the end of the Interest Period with
respect thereto, are not reborrowed hereunder as Tranche B Loans), then the
Tranche B Agent shall calculate the interest thereon by (i) assigning an
Interest Period to such Tranche B Loan of one month and determining the
Eurocurrency Rate with respect thereto, or (ii) if the Eurocurrency Rate cannot
be determined, after consultation with the Company, designating a rate or rates
of interest, in lieu of the Eurocurrency Rate, which reasonably approximates the
Banks' costs of funding the Tranche B Loans (and interest shall accrue on each
such Tranche B Loan at the then effective Tranche B Margin plus either such
Eurocurrency Rate or such other rate, as determined pursuant to clause (i) or
(ii) above, respectively). Nothing in this Section 3.04, however, shall be
deemed to constitute a consent to, or a waiver with respect to, any failure by
an Asian Borrower to repay the principal amount of a Tranche B Loan as required
under Section 3.03 above.
SECTION 3.05. Prepayments. Each Asian Borrower may, upon at
least six Business Days' prior written notice to the Tranche B Agent, prepay the
outstanding principal amounts of its Tranche B Loans comprising part of the same
Tranche B 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 an integral multiple of 100,000 units in the applicable
Available Currency and (converted to the Dollar Equivalent thereof calculated on
the date of prepayment) equal to or greater than $3,000,000(or, if less, the
aggregate principal amount of such Tranche B Borrowing) and (y) any such
prepayment shall be made on the last day of an Interest Period for such Tranche
B Loans, or otherwise only upon payment of the amounts described in Section
6.04(a)(ii). Any notice of prepayment given to the Tranche B Agent under this
Section 3.06 shall be received by the Tranche B Agent no later than 10:00 a.m.
(Hong Kong 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 Tranche B Loans specified in such notice shall become due and payable on
the prepayment date specified in such notice.
SECTION 3.06. Removal of a Tranche B Bank; Additional Tranche B
Banks.
(a) Without limiting the effect of Section 12.08 hereof, in the
event that a Tranche B Bank delivers a notice to the Tranche B Agent pursuant to
Section 3.02(c) then, unless such Tranche B Bank has theretofore taken steps to
remove or cure, and has removed or cured, the circumstances described in such
notice, the Company may pay to such Tranche B Bank an amount equal to the
outstanding principal amount of such Tranche B Bank's Tranche B Loans plus any
accrued but unpaid interest thereon, and, if applicable, accrued but unpaid fees
and expenses owed under or in connection with this Tranche B (including, without
limitation, under Section 6.04(a)(ii)), and upon such payment (i) such Tranche B
Bank shall cease to be a Tranche B Bank hereunder, (ii) the portion of such
Tranche B Bank's Commitment which had been allocated to Tranche B shall be
deemed reallocated to Tranche A, and (iii) the Tranche B Commitment and the
Applicable Pro Rata Shares of the remaining Tranche B Banks shall be revised
accordingly.
(b) With the prior written consent of the Administrative Agent
and the Tranche B Agent, any Bank may agree, upon the request of the Company, to
become a Tranche B Bank hereunder. Each such Bank shall execute a written
agreement, in form and substance satisfactory to the Administrative Agent and
the Tranche B Agent, setting forth its agreement to become a Tranche B Bank
hereunder and to be bound by the terms and provisions hereof applicable thereto,
and acknowledging that its full Commitment shall be available for allocation to
Tranche B. Upon the execution and delivery of such agreement, such Bank shall be
deemed automatically to have become a Tranche B Bank. With respect to
outstanding Tranche B Loans, the additional Tranche B Bank shall fund its
Applicable Tranche B Pro Rata Share thereof on the last day of the then current
interest period of each such Tranche B Loan to the Tranche B Agent in accordance
with the Applicable Tranche B Pro Rata Shares determined by the Administrative
Agent pursuant to the following sentence, and the Tranche B Bank's Applicable
Pro Rata Shares of such loan shall not be adjusted by virtue of the addition of
such new Tranche B Bank until the last day of such Interest Period; provided,
that if such Bank's unused Commitment under Tranche A is insufficient to effect
the reallocation described in the following sentence, such agreement shall be
null and void and such Bank shall not become a Tranche B Bank hereunder. The
Administrative Agent shall allocate a pro rata portion of such Bank's Commitment
under Tranche A to Tranche B, calculate the new Applicable Pro Rata Shares of
the Banks, and notify each other Bank in writing of such Bank's becoming a
Tranche B Bank and of the modified Applicable Pro Rata Shares as a result
thereof. Notwithstanding the foregoing, the Applicable Tranche B Pro Rata Shares
of outstanding Tranche B Loans shall not be adjusted until, and such Bank shall
only fund Tranche B Loans made on or after the date, such Bank becomes a Tranche
B Bank hereunder.
ARTICLE IV
COMPANY GUARANTY
SECTION 4.01. Guaranty.
(a) For value received and in consideration of any loan, advance
or financial accommodation of any kind whatsoever heretofore, now or hereafter
made, given or granted to the Multicurrency Borrowers by the Banks, the Company
unconditionally and irrevocably guarantees for the benefit of the Agents and
each of the Banks the full and prompt payment and performance when due, whether
at maturity or earlier, by reason of acceleration or otherwise, and at all times
thereafter, of all of the Multicurrency Obligations (including, without
limitation, interest accruing following the filing of a bankruptcy petition by
or against any such Multicurrency Borrower, at the applicable rate specified
herein, whether or not such interest is allowed as a claim in bankruptcy).
(b) At any time after the occurrence of an Event of Default, the
Company shall pay to the Administrative Agent, for the benefit of the Agents and
the Banks, on demand and in immediately available funds, the full amount of the
Multicurrency Obligations (including any portion thereof which is not yet due
and payable). The Company further agrees to pay to the Administrative Agent and
reimburse the Administrative Agent for, on demand and in immediately available
funds, (1) all losses (including, without limitation, lost profits), reasonable
fees, costs and expenses (including, without limitation, all court costs and
attorneys' and paralegals' fees, costs and expenses) paid or incurred by the
Agents or any of the Banks in: (x) endeavoring to collect all or any part of the
Multicurrency Obligations from, or in prosecuting any action against, any
Multicurrency Borrower relating to any such Multicurrency Obligation; (y) taking
any action with respect to any security or collateral securing such Obligations
or the Company's obligations under this Article IV; and (z) preserving,
protecting or defending the enforceability of, or enforcing, the terms of this
Article IV or their respective rights hereunder (all such costs and expenses are
hereinafter referred to as the "Expenses") and (2) interest on (x) the
Multicurrency Obligations which do not constitute interest, (y) to the extent
permitted by applicable law, such Obligations which constitute interest, and (z)
the Expenses, from the date of demand under this Article IV until paid in full
at the per annum rate of interest described in Section 6.07(a) hereof. The
Company hereby agrees that this Article IV constitutes an absolute guaranty of
payment and is not a guaranty of collection.
SECTION 4.02. Obligations Unconditional. The Company hereby
agrees that its obligations under this Article IV shall be unconditional,
irrespective of:
(a) the validity, enforceability, avoidance or
subordination of any of the Multicurrency Obligations or any
portion of the Credit Documents;
(b) any change to the corporate existence, structure or
ownership of any Multicurrency Borrower, or any insolvency,
bankruptcy, reorganization or other similar proceeding
affecting any Multicurrency Borrower or its respective assets;
(c) any law, regulation or order of any jurisdiction
affecting any term of the Obligations of any Multicurrency
Borrower or any of the rights of any Agent or any Bank
hereunder with respect to the Multicurrency Borrowers;
(d) the existence of any claim, set-off or other rights
which the Company may have at any time against any
Multicurrency Borrower, any Agent, any Bank or any other
Person, whether in connection herewith or any unrelated
transactions, provided, that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(e) the absence of any attempt by, or on behalf of, any
Bank or any Agent to collect, or to take any other action to
enforce, all or any part of the Multicurrency Obligations
whether from or against the Multicurrency Borrowers, any other
guarantor of such Obligations or any other Person;
(f) the election of any remedy by, or on behalf of, any
Bank or any Agent with respect to all or any part of the
Multicurrency Obligations;
(g) any change in the time, manner or place of payment
of, or in any other term of, or any increase in the amount of,
all or any of the Multicurrency Obligations, or the waiver,
consent, extension, forbearance or granting of any indulgence
by, or on behalf of, any Bank or any Agent with respect to any
provision of any of the Credit Documents;
(h) the failure of any Agent to take any steps to
perfect and maintain its security interest in, or to preserve
its rights to, any security or collateral for the
Multicurrency Obligations; or
(i) any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of the
Multicurrency Borrowers, or any other guarantor of the
Multicurrency Obligations.
SECTION 4.03. Enforcement; Application of Payments. Upon the
occurrence and during the continuance of an Event of Default, the Administrative
Agent may proceed directly and at once, without notice, against the Company to
obtain performance of and to collect and recover the full amount, or any
portion, of the Multicurrency Obligations, without first proceeding against the
Multicurrency Borrowers, any other guarantor of such Multicurrency Obligations
or any other Person, or against any security or collateral for such
Multicurrency Obligations. Subject only to the terms and provisions of this
Agreement, the Administrative Agent shall have the exclusive right to determine
the application of payments and credits, if any, from the Company, any
Multicurrency Borrower, any guarantor or from any other Person on account of
such Obligations or any other liability of the Company to any Bank.
SECTION 4.04. Waivers.
(a) To the extent permitted by applicable law, the Company
hereby waives diligence, presentment, demand of payment, filing of claims with a
court in the event of receivership or bankruptcy of any Multicurrency Borrower,
protest or notice with respect to the Multicurrency Obligations, all setoffs and
counterclaims and all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor and notices of
acceptance of this Article IV or any other guaranty of such Obligations, the
benefits of all statutes of limitation, the benefits of any statute the effect
of which would require any Agent or any Bank to first proceed against any
Multicurrency Borrower, any other guarantor of such Obligations or any other
Person to enforce or collect all or any portion of such Obligations before
proceeding against the Company for the enforcement of the Company's obligations
and indebtedness under this Article IV, and all other demands whatsoever (and
shall not require that the same be made on the Multicurrency Borrowers as a
condition precedent to the Company's obligations hereunder), and covenants that
this Article IV will not be discharged, except by complete and indefeasible
payment in full (in cash) and the termination of this Agreement pursuant to the
terms hereof. The Company further waives all notices of the existence, creation
or incurring of new or additional indebtedness, arising either from additional
loans extended to the Multicurrency Borrowers, or otherwise, and also waives all
notices that the principal amount, or any portion thereof, and/or any interest
on any instrument or document evidencing all or any part of the Multicurrency
Obligations is due, notices of any and all proceedings to collect from the
maker, any endorser or any other guarantor of all or any part of such
Obligations, or from any other Person, and, to the extent permitted by law,
notices of exchange, sale, surrender or other handling of any security or
collateral given to any Agent to secure payment of all or any part of such
Obligations. The Company further waives any requirement that any Agent or any
Bank protect, secure, perfect or insure any security interest or exhaust any
right to take action against any Multicurrency Borrower, or any other Person or
any collateral.
(b) The Banks, either themselves or acting through the Agents,
are hereby authorized, without notice or demand and without affecting the
liability of the Company hereunder, from time to time, (1) to renew, extend,
accelerate or otherwise change the time for payment of, or other terms relating
to, all or any part of the Multicurrency Obligations, or to otherwise modify,
amend or change the terms of any of the Credit Documents; (2) to accept partial
payments on all or any part of such Obligations; (3) to take and hold security
or collateral for the payment of all or any part of such Obligations, this
Article IV, or any other guaranties of all or any part of such Obligations or
other liabilities of the Multicurrency Borrowers, or any other guarantor; (4) to
exchange, enforce, waive and release any such security or collateral; (5) to
apply such security or collateral and direct the order or manner of sale thereof
as in their discretion they may determine; or (6) to settle, release, exchange,
enforce, waive, compromise or collect or otherwise liquidate all or any part of
such Obligations, the obligations under this Article IV, any other guaranty of
all or any part of such Obligations, and any security or collateral for such
Obligations or for any such guaranty. Any of the foregoing may be done in any
manner, without affecting or impairing the obligations of the Company hereunder.
SECTION 4.05. Subrogation. Until the Multicurrency Obligations
have been paid in full and the Commitments have terminated, the Company (i)
shall have no right of subrogation with respect to such Obligations and (ii)
waives any right to enforce any remedy which the Banks or the Agents (or any of
them) now have or may hereafter have against the Multicurrency Borrowers (as
applicable), any endorser or any guarantor of all or any part of such
Obligations or any other Person, and the Company waives any benefit of, and any
right to participate in, any security or collateral given to the Banks and the
Agents (or any of them) to secure the payment or performance of all or any part
of the Multicurrency Obligations (as applicable) or any other liability of the
other Multicurrency Borrowers (as applicable) to the Banks.
SECTION 4.06. Subordination. The Company agrees that any and all
claims of the Company against any Multicurrency Borrowers, any endorser or any
other guarantor of all or any part of the Multicurrency Obligations, or against
any of their respective properties, shall be subordinate and subject in right of
payment to the prior payment, in full and in cash, of all of the Multicurrency
Obligations, as applicable.
SECTION 4.07. Effectiveness; Termination. The provisions of this
Article IV shall become effective upon the execution hereof and shall continue
in full force and effect and may not be terminated or otherwise revoked until
the Multicurrency Obligations shall have been indefeasibly paid in full (in
cash) and discharged and this Agreement has been terminated in accordance with
its terms.
ARTICLE V
TRANCHE REALLOCATION AND COMMITMENT REDUCTION
SECTION 5.01. Reallocation of the Tranche Commitments.
(a) Notice of Reallocation. The Company may from time to time
request the reallocation of the Commitments of the Tranche B Banks to or from
Tranche B pro rata in accordance with their respective Tranche B Pro Rata Shares
and/or the reduction of one or both Tranche Commitments without a reallocation
thereof to the other Tranche (including, without limitation, any termination of
a Tranche Commitment under Section 5.02 below) (each such reallocation and/or
reduction being a "Reallocation") by written notice to the Administrative Agent
substantially in the form of Exhibit E hereto (each, a "Notice of
Reallocation"). Each Reallocation shall result in a change in each Tranche
Commitment in an amount equal to an integral multiple of $1,000,000. Each Notice
of Reallocation shall be irrevocable, shall specify the date (which shall be a
Business Day) that such Reallocation is to become effective (the "Reallocation
Effective Date"), and shall be delivered at least six (6) Business Days prior to
such Reallocation Effective Date. Promptly after receipt of a Notice of
Reallocation, the Administrative Agent shall notify each Bank by telecopy or
other teletransmission of the proposed Reallocation and Reallocation Effective
Date.
(b) Conditions Precedent to Reallocations. Each Reallocation
shall be subject to the condition precedent that each of the following
conditions shall be satisfied as of the Reallocation Effective Date of and after
giving effect to such Reallocation:
(i) No Event of Default or Unmatured Event of
Default shall have occurred and be continuing or would result
from such Reallocation;
(ii) The Tranche A Commitment shall equal or
exceed the aggregate outstanding principal amount of the
Tranche A Loans (converted, if necessary, to the Dollar
Equivalent thereof) outstanding hereunder;
(iii) The Tranche B Commitment shall equal or
exceed the aggregate outstanding principal amount of the
Tranche B Loans (converted to the Dollar Equivalent thereof)
outstanding hereunder; and
(iv) The conditions precedent contained in
Section 7.02 shall be satisfied.
SECTION 5.02. Reduction of the Commitments. Pursuant to the
terms and subject to the conditions of Section 5.01, the Company may terminate
in whole or reduce ratably in part the Commitments of the Banks by requesting a
Reallocation pursuant to which one or both Tranche Commitments are reduced
without the reallocation thereof in full to the other Tranche; provided, that
(i) all requirements set forth in Section 5.01 (except, solely with respect to a
Reallocation under which no Tranche Commitments are increased, the conditions
precedent set forth in Sections 5.01(b)(i) and (iv)) must be satisfied, and (ii)
each partial reduction shall be in the aggregate amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof. The aggregate reduction of
the Commitments shall be permanent and may not be reinstated.
ARTICLE VI
GENERAL TRANCHE PROVISIONS
SECTION 6.01. Payments and Computations.
(a) Manner and Timing of Payments. The Company shall make each
payment owing to the Banks under this Agreement (other than in respect of
Multicurrency Loans) not later than 11:00 a.m. (New York time) on the day when
due in Dollars to the Administrative Agent or the Tranche A Agent, as
applicable, at such Person's address referred to in Section 12.02 in same day
funds. The European Borrowers shall make each payment owing to the Banks under
this Agreement in respect of European Loans not later than 11:00 a.m. (London
time) on the day when due in the applicable Available European Currency to the
Tranche A European Sub-Agent at its address referred to in Section 12.02 in same
day funds. The Asian Borrowers shall make each payment owing to the Tranche B
Banks under this Agreement in respect of Tranche B Loans not later than 11:00
(local time) on the day when due in the applicable Available Asian Currency to
the Tranche B Agent at the Tranche B Agent's address referred to in Section
12.02 in such Applicable Asian Country in same day funds. The Administrative
Agent, the Tranche A Agent, the Tranche A European Sub-Agent or the Tranche B
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 Applicable Pro Rata Shares (other than amounts
payable pursuant to Sections 6.04, 6.05, 6.06(b)or 6.07(b)) 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 (as set forth on Schedule 1.01), 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
12.06(d), from and after the effective date specified in such Assignment and
Acceptance, the Administrative Agent, the Tranche A European Sub-Agent and the
Tranche B 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 and the Multicurrency
Borrowers each 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 and the other Multicurrency Borrowers' 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, the Tranche A
Agent, the Tranche A European Sub-Agent, the Tranche B Agent or, with respect to
interest under Section 6.07(b), by the applicable Bank, on the basis of a year
of 360 days (or in the case of Loans denominated in British pounds sterling,
Singapore dollars or Japanese yen, 365 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, the Tranche A Agent, the Tranche A European Sub-Agent, the
Tranche B Agent or, in the case of Section 6.07(b), 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 Eurocurrency 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, the
Tranche A Agent, the Tranche A European Sub-Agent or the Tranche B Agent, as
applicable, shall have received notice from the Company or a Multicurrency
Borrower prior to the date on which any payment is due to the Banks hereunder
that the Company or such Multicurrency Borrower will not make such payment in
full, such Agent may assume that the Company or such Multicurrency Borrower 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 or such Multicurrency Borrower 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 such Agent's
cost of funds for such time and in such amount.
(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 as follows (unless otherwise expressly
provided elsewhere herein): (1) if made with respect to the Tranche A Loans, to
the Banks in accordance with each Bank's Tranche A Pro Rata Share for such
Tranche A Loan, (2) if made with respect to Tranche B Loans, to the Tranche B
Banks in accordance with each Tranche B Bank's Applicable Tranche B Pro Rata
Share for such Tranche B Loan, and (3) if made other than with respect to Loans,
to the Banks in accordance with each Bank's Applicable Pro Rata Share at such
time. Subject to the terms and conditions of this Agreement, the Company and
each other Multicurrency Borrower 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 any of
the other Agents pro rata hereunder; (3) third, to pay Obligations in respect of
any fees, expense reimbursements 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); (6) sixth, to pay amounts required
to be paid into the Collateral Account pursuant to Section 10.02; and (7)
seventh, to the ratable payment of all other Obligations.
(ii) The Administrative Agent, the Tranche A Agent, the Tranche
A European Sub-Agent, or the Tranche B Agent, as applicable, shall, in
accordance with this Section 6.01, distribute to each Bank at its Applicable
Lending Office, 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 12.01, without necessity of notice to or
consent of or approval by the Company, any Multicurrency Borrower or any other
Person.
SECTION 6.02. 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 10.02 to authorize
the Administrative Agent to declare the Obligations due and payable pursuant to
the provisions of Section 10.02, 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 or any of
its affiliates to or for the credit or the account of the Company or any
Multicurrency Borrower 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 6.02
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) which such Bank may have.
SECTION 6.03. 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 Sections 2.02(d), 3.06, 6.04, 6.05, 6.06(b), 6.07(b), 12.04, 12.07
or 12.08 or solely in its capacity as an Agent) in excess of its Applicable 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 Applicable 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 and each Multicurrency
Borrower agree that any Bank so purchasing a participation from another Bank
pursuant to this Section 6.03 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 and the Multicurrency Borrowers in the amount of such participation.
SECTION 6.04. Increased Costs, Reserves and Capital.
(a) Increased Costs, Reserves and Capital Arising from the
Loans.
(i) If, due to either (1) the introduction of or any change
(other than any change by way of imposition or increase of reserve requirements,
in the case of Eurocurrency Rate Loans, included in the Eurocurrency Rate
Reserve Percentage) in or in the interpretation of any law or regulation or (2)
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 Eurocurrency 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 Tranche A Agent, the Tranche A European Sub-Agent or the Tranche B
Agent, as applicable), pay to the Tranche A Agent, the Tranche A European
Sub-Agent or the Tranche B Agent, as applicable, 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 Tranche A Agent, the Tranche A European
Sub-Agent or the Tranche B Agent, as applicable, by such Bank, shall be
conclusive and binding for all purposes, absent manifest error.
(ii) If any payment of principal of, or Conversion of, any
Eurocurrency Rate Loan is made by the Company or another Multicurrency Borrower
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
Sections 2.05, 2.06, 6.07(c)(v), 6.08 or 12.07 acceleration of the maturity of
the Loans pursuant to Section 10.02 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 12.06 as a result of a demand by the Company pursuant to
Section 12.08, the Company or such Multicurrency Borrower shall, upon demand by
such Bank (with a copy of such demand to the Administrative Agent and the
Tranche A Agent, the Tranche A European Sub-Agent or the Tranche B Agent, as
applicable), pay to the Tranche A Agent, Tranche A European Sub-Agent or the
Tranche B Agent, as applicable, 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.
(iii) 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.
(iv) If, with respect to any Tranche A Borrowing denominated in
British pounds sterling, any Bank or European Lending Office thereof delivers to
the Tranche A European Sub-Agent a certificate describing its MLA Cost with
respect to such Bank's or such European Lending Office's portion of such Tranche
A Borrowing prior to the day of such Borrowing, the related Tranche A Borrower
shall pay at maturity of such Borrowing the amount of such MLA Cost to the
Tranche A European Sub-Agent, for the account of such Bank.
(b) Limitations; Designation of Alternate Lending Offices.
Notwithstanding the foregoing, the Company shall not be required to make any
payments or indemnify any Bank under this Section 6.04 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 6.05. Taxes.
(a) Any and all payments by the Company and the other
Multicurrency Borrowers 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 or any other Multicurrency
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder to any Bank or any 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
6.05) 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 or such Multicurrency Borrower, as applicable, shall make such
deductions and (iii) the Company or such Multicurrency Borrower, as applicable,
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Company and each other Multicurrency
Borrower jointly and severally agree 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
(hereinafter referred to as "Other Taxes"). The Administrative Agent may demand
payment of, and seek recourse on, any Other Taxes from the Company and/or any
Multicurrency Borrower, without any requirement that the Administrative Agent
allocate the reimbursement obligation for such Other Taxes among the Company and
the Multicurrency Borrowers.
(c) The Company and each other Multicurrency Borrower jointly
and severally indemnify 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 6.05) 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 12.02, the original or a certified copy of a receipt evidencing payment
thereof.
(e) If the Company or any other Multicurrency Borrower makes any
payment or indemnifies any Bank pursuant to this Section 6.05 (each, a "Tax
Payment"), any Bank effectively obtains a refund of Tax or a credit against a
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 or such Multicurrency Borrower such amount
as the Bank shall, in its absolute discretion, determine to be the proportion of
the Tax Credit as will leave the Bank (after that reimbursement) in no better or
worse position than it would have been in if the Tax Payment had not been
required. The Bank shall have an absolute discretion as to whether to claim any
Tax Credit and, if it does 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 or the Multicurrency
Borrowers.
(f) Each Bank represents and warrants to the Agents, the Company
and the Multicurrency Borrowers 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 or the Multicurrency Borrowers
with respect to any payments to be made to such Bank, or any of its Applicable
Lending Offices, in respect of any of the Loans; provided, however, that the
Banks shall not make the representations and warranties under this Section
6.05(f) with respect to, and such representations and warranties shall not
include, Loans (other than Loans made to Comdisco Japan, a branch of Comdisco
GmbH & Co. Leasing and Finance KG) denominated in a currency other than the
official currency of the jurisdiction under the laws of which the applicable
Multicurrency Borrower is organized and Loans, for which the outstanding
principal thereof and interest thereon is being paid by the Company pursuant to
Article IV; and provided, further, that the Banks shall not make the
representations and warranties under this Section 6.05(f) with respect to any
taxes imposed by any governmental authority of Switzerland in the event that the
number of non-bank lenders (including the Company and any of its Affiliates)
making loans to any Multicurrency Borrower in Switzerland shall exceed the
number twenty (20) for the period commencing three years prior to the date
hereof. 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 on loans made in the United States or certifying that the income
receivable from U.S. Loans made 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 6.05(a).
(g) For any period with respect to which a Bank has failed to
provide the Company with the appropriate form described in Section 6.05(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 6.05(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 and the other Multicurrency Borrowers shall take such
steps as the Bank shall reasonably request to assist the Bank to recover such
Taxes.
(h) Notwithstanding the foregoing, neither the Company nor any
other Multicurrency Borrower shall be required to make any payments or indemnify
any Bank under this Section 6.05 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 or any other
Multicurrency Borrower. 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 or any Multicurrency Borrower hereunder, the agreements and
obligations of the Company and the Multicurrency Borrowers contained in this
Section 6.05 shall survive the payment in full of principal and interest
hereunder and the termination of the Commitments and this Agreement.
SECTION 6.06. Facility Fee.
(a) The Company shall pay to the Administrative Agent, for the
account of each Bank, a facility fee in an amount equal to the Facility Margin
Rate from time to time applied to each Bank's Commitment (irrespective of usage)
from the Closing Date (or, if applicable, from the effective date specified in
an Assignment and Acceptance pursuant to which it becomes a Bank hereunder)
until the Termination Date, payable in arrears on the last Business Day of each
fiscal quarter and on the date any such Bank's Commitment terminates.
(b) The Company shall also pay such fees and expenses to the
Agents as the Company and the Agents may separately agree.
SECTION 6.07. Interest Rate Provisions.
(a) Default Interest. Notwithstanding the rates of interest and
payment dates specified in Sections 2.04 and 3.04, effective five (5) Business
Days after the Company receives written notice from the Administrative Agent of
the occurrence of any Event of Default and the applicability of this Section
6.07(a) and for as long thereafter as any such Event of Default shall be
continuing, the principal balance of all Loans then outstanding and, to the
extent permitted by applicable law, any interest payments on the 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.
(b) Additional Interest on Eurocurrency Rate Loans. The Company
and the Multicurrency Borrowers shall pay to the Tranche A Agent, the Tranche A
European Sub-Agent or the Tranche B Agent, as applicable, 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 Eurocurrency Rate
Loan of such Bank, from the date of such Eurocurrency 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 Eurocurrency Rate for the
Interest Period for such Eurocurrency Rate Loan from (ii) the rate obtained by
dividing such Eurocurrency Rate by a percentage equal to 100% minus the
Eurocurrency Rate Reserve Percentage of such Bank for such Interest Period,
payable on each date on which interest is payable on such Eurocurrency Rate
Loan. Such additional interest shall be determined by such Bank and notified to
the Company through the Tranche A Agent, the Tranche A European Sub-Agent or the
Tranche B Agent, as applicable.
(c) Interest Rate Determination.
(i) Each Reference Bank agrees to furnish to the Tranche A Agent
and the Tranche A European Sub-Agent, timely information for the purpose of
determining each Eurocurrency Rate. If any one or more of the Reference Banks
shall not furnish such timely information to such Agent for the purpose of
determining any such interest rate, such Agent shall determine such interest
rate on the basis of timely information furnished by the remaining Reference
Banks.
(ii) The Tranche A Agent, the Tranche A European Sub-Agent or
the Tranche B Agent, as applicable, shall give prompt notice to the Company and
the Banks of the applicable interest rate determined by such Agent for purposes
of Sections 2.04(a) or (b) or Section 3.04, and the applicable rate, if any,
furnished by each Reference Bank for the purpose of determining the applicable
interest rate under Sections 2.04.
(iii) Notwithstanding any other provision of this Agreement to
the contrary,
(A) If the Reference Banks fail to furnish timely
information to the Tranche A Agent or Tranche A European
Sub-Agent, for determining the Eurocurrency Rate for any
Eurocurrency Rate Loans denominated in a particular Permitted
Currency,
(1) such Agent shall forthwith notify the
Company and the Banks that the interest rate cannot be
determined for such Eurocurrency Rate Loans,
(2) the right of the Company to request and
the obligation of the Banks to make, or to Convert U.S.
Loans into, Eurocurrency Rate Loans shall be suspended
until such Agent shall notify the Company and the Banks
that the circumstances causing such suspension no
longer exist, and
(3) any Notice of Borrowing with respect to
such Borrowing shall be deemed cancelled and such
Borrowing shall not be made.
(B) If, with respect to any Eurocurrency Rate Loans
denominated in a particular Permitted Currency and comprising
a requested Borrowing, (x) in the case of Tranche A Loans,
Banks whose Adjusted Tranche A Pro Rata Shares aggregate to
more than 50%, or, (y) in the case of Tranche B Loans, Tranche
B Banks whose Tranche B Pro Rata Shares aggregate to more than
50%, notify the Tranche A Agent, the Tranche A European
Sub-Agent or the Tranche B Agent, as applicable, that the
Eurocurrency Rate for such Eurocurrency Rate Loans will not
adequately reflect the cost to such Banks of making, funding
or maintaining their respective Eurocurrency Rate Loans for
such Borrowing, such Agent shall forthwith so notify the
Company and the Banks, whereupon
(1) the right of the Company and the other
Multicurrency Borrowers to request and the obligation
of the Banks to make, or to Convert Loans into,
Eurocurrency Rate Loans in such Permitted Currency
shall be suspended until such Agent shall notify the
Company and the Banks that the circumstances causing
such suspension no longer exist, and
(2) any Notice of Borrowing with respect to
such Borrowing shall be deemed cancelled and such
Borrowing shall not be made.
The Tranche A Agent, the Tranche A European Sub-Agent or the Tranche B Agent, as
applicable, shall, upon becoming aware that the circumstances causing any such
suspension under this subsection (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 6.07(c)(iii) or
expose such Agent to any liability.
(iv) If the Company (whether on behalf of itself or a
Multicurrency Borrower) shall fail to select the duration of any Interest Period
for any Eurocurrency 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 Eurocurrency Rate Loans comprising any U.S. 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 6.08. Illegality. Notwithstanding any other provision of
this Agreement, if any Bank shall notify the Tranche A Agent, the Tranche A
European Sub-Agent or the Tranche B Agent, as applicable, 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 Applicable Lending Office to perform its
obligations hereunder to make Eurocurrency Rate Loans in a particular Permitted
Currency or generally or to fund or maintain any Eurocurrency Rate Loans
hereunder, (i) the right of the Company and the other Multicurrency Borrowers to
request and the obligation of the Banks to make or to Convert Loans into
Eurocurrency Rate Loans in the affected Permitted Currencies shall be suspended
until such Agent shall notify the Company and the Banks that the circumstances
causing such suspension no longer exist, (ii) any Notice of Borrowing with
respect to any requested Borrowing of Eurocurrency Rate Loans in the affected
Permitted Currencies shall be deemed cancelled and such Borrowing shall not be
made, and (iii) the Company and the other Multicurrency Borrowers shall
forthwith prepay in full all Eurocurrency Rate Loans of all Banks in the
affected Permitted Currencies then outstanding, together with interest accrued
thereon, unless, solely with respect to U.S. Loans, the Company, within five
Business Days of the applicable notice from the Tranche A Agent, Converts all
such Eurocurrency Rate Loans of all Banks then outstanding into Base Rate Loans
in accordance with Section 2.06.
SECTION 6.09. Right of Set-Off Against Defaulting Banks. In the
event that any Bank fails to fund its Applicable Pro Rata Share of any Loan
requested by the Company or any Multicurrency Borrower 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
Tranche A Commitment or the Tranche B Commitment, as applicable, the proceeds of
all amounts thereafter paid or repaid to the Agents by the Company or any
Multicurrency Borrower 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 or the applicable Multicurrency Borrower (converted to
the applicable Permitted Currency) 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
6.09 shall apply only with respect to the proceeds of
payments of Obligations and shall not affect the
Conversion of any Loans hereunder;
(2) a Bank shall be deemed to have cured its
failure to fund its Applicable Pro Rata Share of any
Loan at such time as an amount equal to such Bank's
Applicable Pro Rata Share (determined as of the time of
the receipt, with respect to such Loan, by the Tranche
A Agent or Tranche A European Sub-Agent of the related
Notice of Tranche A Borrowing or by the Tranche B Agent
of the related Notice of Tranche B 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 6.09; and
(3) any amounts advanced to the Company or any
Multicurrency Borrower under this Section 6.09 to cure,
in full or in part, any such Bank's failure to fund its
Applicable Pro Rata Share of any Loan, shall be deemed
a part of the same Borrowing as the applicable Non-Pro
Rata Loan.
SECTION 6.10. Recordation of Loans and Payments. Each Bank is
hereby authorized, at its option, to 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 or the applicable
Multicurrency Borrower under this Agreement.
SECTION 6.11. Mandatory Prepayments.
(a) Any provision herein to the contrary notwithstanding, the
Company and each Multicurrency Borrower agree that if the Administrative Agent
at any time in its discretion, using current adjusted Dollar Equivalents,
determines that the unpaid aggregate principal balance of (i) the Tranche A
Loans exceeds an amount equal to 105% of the Tranche A Commitment at that time
or (ii) the Tranche B Loans exceeds an amount equal to 105% of the Tranche B
Commitment at that time, then the Company shall upon notice and demand by the
Administrative Agent pay over the entire excess of the current outstandings in
such Tranche over the applicable Tranche Commitment (the "overage"), in either
Dollars or any other Alternative Currency, as the Administrative Agent may
direct, to the Administrative Agent for the account of the Banks. At the option
of the Company, all amounts paid to the Administrative Agent pursuant to this
Section 6.11 shall be either (i) applied immediately to the repayment of the
unpaid principal balance of such Loans as the Company may direct or (ii) held by
the Administrative Agent in a separate collateral account (the funds in which to
be invested by the Administrative Agent in its discretion following consultation
with the Company, in cash, cash equivalents or short-term debt investments rated
P-1 by Moody's and A-1 or better by S&P) (such account, and the credit balances,
properties and any investments from time to time held therein, and any
substitutions for such account, any certificate of deposit or other instrument
evidencing any of the foregoing and all proceeds of and earnings on any of the
foregoing, being collectively called the "Collateral Account") as security for,
and for application by the Administrative Agent to the payment of the unpaid
balance of, first, any outstanding Base Rate Loans, and second, any outstanding
Eurocurrency Rate Loans (for application and payment on the last day of each
Interest Period thereafter) until such overage has been paid in full; any
remaining balance in the Collateral Account after such overage has been paid to
be promptly returned to the Company. For the purposes of determining the overage
pursuant to this Section 6.11 only, the outstanding principal balance of the
Loans shall be reduced by the portion of the funds on deposit in the Collateral
Account, if any, previously allocated by the Company to the payment of such
Loans. The Collateral Account shall be held in the name of and subject to the
exclusive dominion and control of the Administrative Agent for the benefit of
the Agents and the Banks.
(b) As security for the payment when due of all of the
Obligations of the Company and the Multicurrency Borrowers hereunder, the
Company and each Multicurrency Borrower hereby pledges and assigns to the
Administrative Agent for the benefit of the Agents and the Banks and grants to
the Administrative Agent for the benefit of the Agents and the Banks a general
lien on and continuing security interest in and right of set-off against, all of
their respective right, title and interest in and to the Collateral Account.
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.01. 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) Certified copies of the resolutions of the Board
of Directors of the Company approving this Agreement, the
Multicurrency Borrower Assumption Agreements to be delivered
on the Closing Date, and the other Credit Documents to be
delivered by the Company in connection herewith, and the
incurrence of the Loans.
(iii) 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.
(iv) A certificate of good standing of the Company
issued by the Secretaries of State of Illinois and Delaware.
(v) A favorable opinion of the General Counsel of the
Company, dated the Closing Date, relating to such matters as
the Administrative Agent and the Tranche A Agent deem
appropriate and in form and substance satisfactory to each
such Agent.
(vi) A favorable opinion of Sidley & Austin, counsel to
the Administrative Agent and the Tranche A Agent.
(vii) Such other documentation as the Administrative
Agent or the Tranche A Agent may reasonably request.
(b) All accrued and unpaid interest, fees and expenses due and
payable by the Company under the Fourth 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 Fourth 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) Each "Issuing Bank" (as that term is defined in the Fourth
Amended Agreement) and the Company shall have received a payoff letter, in form
and substance satisfactory to such Issuing Bank and the Company, from the
beneficiaries of all "Letters of Credit" (also as defined in the Fourth Amended
Agreement) issued by such Issuing Bank and outstanding on the Closing Date.
(d) 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).
(e) Each condition precedent set forth in Section 7.02 shall be
satisfied on and as of the Closing Date.
SECTION 7.02. Conditions Precedent to Each Borrowing,
Reallocation and Extension of Scheduled Maturity Date. The obligation of each
Bank to make a Loan on the occasion of each Borrowing hereunder (including the
initial Borrowing), to Convert a Loan, to honor any request for a Reallocation
(as provided in Article V) and to extend the Scheduled Maturity Date hereunder
pursuant to Section 12.07, shall in each such case be subject to the further
conditions precedent that on the date of the making or Conversion of such Loan,
the applicable Reallocation Effective Date or each Scheduled Maturity 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 and each Multicurrency Borrower 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 8.01(b) shall be deemed to be made only (1) on and as
of the Closing Date and (2) on each Scheduled Maturity Date on
which the Commitments of the Banks are extended by reference
to the date of the most recently furnished audited annual
financial statements of the Company;
(ii) The Administrative Agent shall have received, with
respect to Loans to a Multicurrency Borrower, a Multicurrency
Borrower Assumption Agreement for such Multicurrency Borrower
executed by such Multicurrency Borrower and the Company,
together with the documentation required therein; and
(iii) 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 Borrowing, and the acceptance
by the Company of the proceeds of such Borrowing, each delivery of a Notice of
Reallocation and each Reallocation, each Notice of Conversion and each
Conversion of Loans and each request to extend the Scheduled Maturity Date and
each extension thereof shall constitute a representation and warranty by the
Company that on such date each of the above statements are true.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
SECTION 8.01. 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, 1995 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, 1996, 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, 1995, 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.
(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 to borrow hereunder and has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement 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 has 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 in each case 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, 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 8.01(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
8.01, 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 8.01(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 8.01(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.
SECTION 8.02. Representations and Warranties of the
Multicurrency Borrowers. Each Subsidiary of the Company which becomes a
Multicurrency Borrower hereunder shall be deemed by the execution and delivery
of its Multicurrency Borrower Assumption Agreement to have represented and
warranted as of the date thereof as follows (and the Company, by its execution
of such Multicurrency Borrower Assumption Agreement, shall be deemed to have
confirmed each such representation and warranty):
(a) Such Multicurrency Borrower is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization.
(b) The execution and delivery by such Multicurrency
Borrower of its Multicurrency Borrower Assumption Agreement
and the performance by it of this Agreement are within its
powers, have been duly authorized by all necessary action, and
do not contravene (i) its constituent documents or (ii) any
law or any contractual restriction binding on or affecting
such Multicurrency Borrower.
(c) This Agreement constitutes a legal, valid and
binding agreement of such Multicurrency Borrower, and Loans
made pursuant hereto will constitute legal, valid and binding
obligations of such Multicurrency Borrower, enforceable
against such Multicurrency Borrower 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.
ARTICLE IX
COVENANTS OF THE COMPANY
SECTION 9.01. 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 12.09, 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 Change in Ratings. Shall promptly notify the
Agents in writing if it receives notice of any increase or decrease in the
ratings of any long term, senior unsecured, non-credit enhanced Indebtedness of
the Company or of any of the Company's publicly-traded debt.
SECTION 9.02. 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 and to be distributed to the Banks by the
Administrative Agent, 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 9.04 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 9.02(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;
(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 8.01(i); and
(vii) as and when available, for each Multicurency
Borrower, a balance sheet at the close of the fiscal year for
such Multicurrency Borrower, and the related statements of
earnings, stockholders' equity and cash flows for such fiscal
year, prepared in accordance with local accounting principles
and certified by the Vice President and Controller or
Executive Vice President and Chief Financial Officer of the
Company.
(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, 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.
SECTION 9.03. 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 9.01(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 securing Debt of an insolvent Subsidiary of
the Company incurred in connection with leasing transactions
or business continuity services provided in the ordinary
course of business of such Subsidiary and attaching only to
the Equipment and any related Contract with respect to such
leasing transactions or business continuity services, where
such Debt had constituted a Non-Recourse Obligation prior to
the insolvency of such Subsidiary;
(x) Liens (other than the Liens permitted by clauses
(i) through (ix) 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 Tranche A 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 Tranche A 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
(xi) Liens in favor of the Banks in the Collateral
Account 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
(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 9.03(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 9.04. 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)
$635,000,000 plus (ii) 50% of the Consolidated Net Income of
the Company and its Subsidiaries for the period from October
1, 1995 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 5.5 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; and
(f) 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
8.01(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 8.01(a) hereof), as of the end of each fiscal year,
of not less than 1.1 to 1.00.
ARTICLE X
EVENTS OF DEFAULT
SECTION 10.01. Events of Default. Each of the following
occurrences shall constitute Events of Default under this Agreement:
(a) Failure to Make Payments. The Company or any Multicurrency
Borrower shall fail to pay when due any interest on or principal of any Loan,
fee or other amount payable under this Agreement and such failure shall continue
unremedied for three (3) Business Days following written notice thereof from the
Administrative Agent, the Tranche A Agent, the Tranche A European Sub-Agent or
the Tranche B Agent; or
(b) Breach of Representation or Warranty. Any representation or
warranty made or deemed made by the Company or any Multicurrency Borrower (or
any of its respective officers) herein or in any of the other Credit Documents
or in any statement or certificate at any time given by the Company or such
Multicurrency Borrower 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 obligations of the Company
under Article IV shall cease to be in full force and effect or the Company shall
fail to perform or observe (i) any term, covenant or agreement contained in
Article IV, Sections 9.03(a), 9.03(c), 9.03(h), 9.03(i) or 9.04, or (ii) the
covenant contained in Section 9.03(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 10.01) 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 10.01(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 Tranche A 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 10.02. Remedies. If any event described in Section
10.01(f) shall occur, the Commitments of each Bank (if not theretofore
terminated) shall immediately terminate, and the Loans and all other amounts
payable hereunder shall become immediately due and payable and the Company and
the Multicurrency Borrowers shall immediately pay to the Administrative Agent
the amount of all Loans outstanding and all other amounts 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 10.01(f) occurs, the Administrative Agent may with the consent of the
Tranche A Agent, and shall upon direction of the Majority Banks (or Banks whose
Voting Pro Rata Shares, calculated as if the Commitments had already terminated,
aggregate to more than 50%), declare the Commitments of each Bank (if not
theretofore terminated) to be terminated, and the Loans and all other amounts
payable hereunder to be due and payable, whereupon each Bank's Commitment (if
not theretofore terminated) shall immediately terminate and the Loans and all
other amounts payable hereunder shall become immediately due and payable and the
Company and the Multicurrency Borrowers shall immediately pay to the
Administrative Agent the amount of all Loans outstanding and all other amounts
payable hereunder in full, all without presentment, demand, protest or notice of
any kind (all of which are hereby expressly waived).
ARTICLE XI
THE AGENTS
SECTION 11.01. 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 (or, as applicable, Banks with the
necessary aggregate Applicable Pro Rata Shares or Voting Pro Rata Shares, as the
case may be, with discretion over such matters), and such instructions shall be
binding upon all Banks; 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 XI are solely for the benefit
of the Agents and the Banks, and neither the Company nor any Subsidiary of the
Company (including, without limitation, the Multicurrency Borrowers) shall have
any rights to rely on or enforce any of the provisions hereof (other than as
expressly set forth in Section 11.07). In performing its functions and duties
under this Agreement, each Agent shall act solely as agent of the Banks and does
not assume and shall not be deemed to have assumed any obligation toward or
relationship 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.
SECTION 11.02. 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 relationship 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 any 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.
SECTION 11.03. 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 accountable for the acts or omissions of any other Agent. None of
the Administrative Agent, the Tranche A Agent, the Tranche A European Sub-Agent
or the Tranche B Agent shall be liable for any apportionment 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. The
Agents may rely and act upon notice given by facsimile transmission by the
individuals reasonably believed by the Agents to be those individuals designated
to the Agents, or any of them, in writing from time to time to possess authority
to give such notice, without any requirement of written confirmation thereof,
and the Company hereby indemnifies and holds harmless each Agent from and
against any and all losses, costs, expenses, damages, claims, actions and other
proceedings relating to such reliance, except for losses, costs, expenses,
damages, claims, actions and proceedings resulting from acts or omissions
constituting gross negligence or willful misconduct on the part of such Agent.
If a written confirmation is delivered to an Agent after reliance on a given
notice which differs in any respect from the action taken by such Agent, the
records of such Agent shall govern absent manifest error.
(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 any Multicurrency Borrower or to inspect
the property (including the books and records) of the Company or any
Multicurrency Borrower; (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 instructions 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, Banks whose Adjusted Tranche A Pro Rata Shares aggregate to more
than 50%, Banks whose Tranche B Pro Rata Shares aggregate to more than 50% 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, Banks whose Adjusted Tranche A Pro Rata Shares aggregate to more than
50%, Banks whose Tranche B Pro Rata Shares aggregate to more than 50% or all of
the Banks, as applicable.
SECTION 11.04. 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 (including, without limitation, the Multicurrency Borrowers) 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 11.05. Bank Credit Decision. Each Bank acknowledges that
it has, independently and without reliance upon any Agent or any other Bank and
based on the financial statements referred to in Section 8.01(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 any 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 and the
Multicurrency Borrowers of this Agreement or any other document referred to or
provided for herein or to inspect the properties or books of the Company or the
Multicurrency Borrower. 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 or the Multicurrency Borrowers, which may
come into the possession of the Agents or any of their affiliates.
SECTION 11.06. Indemnification. The Banks agree to indemnify
each of the Agents (to the extent not reimbursed by the Company), ratably
according to their respective Aggregate 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 11.07. Resignation or Removal of Agents. Subject to the
appointment and acceptance of a successor Agent as provided below, (a) any 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 Voting
Pro Rata Shares aggregate to at least seventy percent (70%) may, by written
agreement, remove any 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). The Majority Banks (in the case of a
resignation or removal of the Administrative Agent, Tranche A Agent or the
Tranche A European Sub-Agent) or Banks whose Tranche B Pro Rata Shares aggregate
to more than 50% (in the case of a resignation or removal of the Tranche B
Agent) 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 Banks
or the Tranche B Banks, as applicable, 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) if such Agent, other than the Administrative Agent, was
removed by the Banks, the Administrative Agent may, on behalf of the Banks,
after consultation with the Company, appoint one of the Banks to be successor
Agent, and (iii) in the event of the removal by the Banks of the Administrative
Agent, the Tranche A Agent, the Tranche A European Sub-Agent and the Tranche B
Agent may, on behalf of the Banks, after consultation with the Company, appoint
one of the Banks 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 XI 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 XII
MISCELLANEOUS
SECTION 12.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, no consent to any departure by the Company or any
Multicurrency Borrower 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:
(a) waive any Event of Default or Unmatured Event of
Default, amend or waive any provision of this Agreement the
breach of which has given rise to an Event of Default or
Unmatured Event of Default, or amend Section 10.01, in each
case unless in writing and signed by the Majority Banks, Banks
whose Adjusted Tranche A Pro Rata Shares aggregate to more
than 50% and Tranche B Banks whose Tranche B Pro Rata Shares
aggregate to more than 50%,
(b) unless in writing and signed by all affected Banks,
do any of the following: (i) waive any of the conditions
specified in Article VII, (ii) increase the Commitments of the
Banks or subject the Banks to any additional obligations,
(iii) reduce the principal of, or interest on, the Loans or
any fees or other amounts payable hereunder, (iv) postpone any
date fixed for any payment of principal of, or interest on,
the Loans or any fees or other amounts payable hereunder, (v)
change the definitions of Majority Banks or Voting Pro Rata
Shares, or otherwise 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 (vi) amend
Sections 6.01(f) or 6.03, the second sentence of Section
10.02(a), Section 12.07, or this Section 12.01,
(c) unless in writing and signed by (i) Banks whose
Tranche B Pro Rata Shares aggregate to more than 50%, amend
any provision of Article III, or (ii) all of the Banks,
release the Company's guaranty of the obligations of the
Multicurrency Borrowers under Article IV, or
(d) 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 any Agents under this
Agreement.
SECTION 12.02. 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 Multicurrency Borrowers, the Banks and the Agents, or
to such address as may be hereafter notified in writing by the respective
parties hereto and any future Banks, provided that all Notices of Borrowing
under Section 2.02 and Section 3.02 hereof, all Notices of Conversion under
Section 2.06 hereof and all notices and communications to the Agents pursuant to
Article XI 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 and Treasurer
Telephone: (847) 698-3000
Telecopy: (847) 518-5854
with a copy to:
Comdisco, Inc.
6111 North River Road
Rosemont, Illinois 60018
Attention: General Counsel
Telephone: (847) 698-3000
Telecopy: (847) 518-5088
(b) If to any Multicurrency Borrower:
To its address specified in its Multicurrency Borrower
Assumption Agreement (with a copy to the addresses set forth in
(a) above);
(c) If to any Bank:
To its address set forth on Schedule 1.01 as such
Banks' "Notice Address" and at the address of any Applicable
Lending Office, with a copy to the Administrative Agent;
(d) If to the Administrative Agent:
Citibank, N.A.
c/o Citicorp Securities, Inc.
200 South Wacker Drive
31st Floor
Chicago, Illinois 60606
Attention: John Coons
Telephone: (312) 993-3184
Telecopy: (312) 993-6706
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 Tranche A Agent:
NationsBank, N.A.
233 South Wacker Drive
Suite 2800
Chicago, Illinois 60606
Attention: Wallace Harris
Telephone: (312) 234-5626
Telecopy: (312) 234-5601
with a copy to:
NationsBank, N.A.
Agency Services
101 North Tryon Street
15th Floor
Charlotte, North Carolina 28255
Attention: Mollie Kanup
Telephone: (704) 386-1316
Telecopy: (704) 386-9923
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
(f) If to the Tranche A European Sub-Agent:
Citibank International plc
Riverdale House
68 Molesworth Street
Lewisham SE13 7EU England
Attention: Karen Duran/Donald Oxford
Loans Agency
Telephone:44-171-500-4274
Telecopy: 44-171-500-4482
(g) If to the Tranche B Agent:
Citicorp International, Ltd.
20/F., Two Harbourfront
22 Tak Fung Street
Hunghom, Kowloon
Hong Kong
Attention: Molly Moch/Charles Liu
Telephone: (852) 2868-6442
Telecopy: (852) 2621-3183
with respect to Singapore:
Citibank, N.A.
Robinson Road
P.O. Box 2388
Singapore 9043
Attention: Wan Thaonh Chou
Telephone: (65) 320-5120
Telecopy: (65) 227-2373
with respect to Japan:
Citibank, N.A.
C.P.O. Box 108
Tokyo 100-91
Japan
Attention: Ms. Keiko Takamura
Telephone: (81-3) 5462-5344
Telecopy: (81-3) 5462-5346
with respect to Australia:
Citibank Ltd.
G.P.O. Box 5343
Sydney NSW 2001
Australia
Attention: Jon Nelson/Tony O'Neill
Telephone: (61-2) 239-9711
Telecopy: (61-2) 263-3520
SECTION 12.03. No Waiver; Remedies. No failure on the part of
any Bank or any Agent to exercise, and no delay in exercising any right
hereunder 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 12.04. 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
Tranche A 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 12.06 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 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 (including, without limitation, the
Multicurrency Borrowers) 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 any Multicurrency Borrower or their
respective 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 12.05. Successors and Assigns. 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 or any Multicurrency Borrower shall
be deemed to include its respective successors and assigns, including, without
limitation, a receiver, trustee or debtor-in-possession of or for the Company or
such Multicurrency Borrower. The terms and provisions of this Agreement shall
inure to the benefit of any assignee or transferee of any assignment made by a
Bank hereof pursuant to Section 12.06 hereof, 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 and the
Multicurrency Borrowers' respective rights and any interests therein hereunder,
and the Company's and the Multicurrency Borrowers' respective duties and
Obligations hereunder, may not be assigned without the written consent of all of
the Banks.
SECTION 12.06. Assignments and Participations.
(a) Each Bank may and, if demanded by the Company pursuant to
Section 12.08, 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 and the Loans owing to it);
provided, however, that (i) each such assignment shall be of the same percentage
of each 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 $20,000,000, (iii) each such assignment shall be subject
to the prior written approval of the Company and the Agents, which such approval
shall not be unreasonably withheld, (iv) each such assignment made as a result
of a demand by the Company pursuant to Section 12.08 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 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 Multicurrency Borrowers or the performance or observance
by the Company or the Multicurrency Borrowers of any of their respective
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 8.01(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 any 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 12.02 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 Multicurrency Borrowers, 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, 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 G 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.
(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 and the Loans) provided, however, that (i) such Bank's obligations
under this Agreement (including, without limitation, its Commitment to the
Company and the Multicurrency Borrowers hereunder) shall remain unchanged, (ii)
such Bank shall remain solely responsible to the other parties hereto for the
performance of such obligations, and (iii) the Company, the Multicurrency
Borrowers, 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
12.06, 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
12.09.
(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 any Agent.
(h) Each Bank or any of its Applicable Lending Offices (a
"Designating Bank") may enter into arrangements, from time to time, with another
Bank or an office or Affiliate of such Designating Bank (a "Fronting Bank")
whereby such Fronting Bank may act as such Designating Bank's lending office for
purposes of making applicable Loans and receiving payments with respect thereto
so long as such arrangements between a Designating Bank and a Fronting Bank
("Fronting Arrangements") shall not affect the rights and obligations under this
Agreement of such Designating Bank or such Fronting Bank, including, without
limitation, any obligations to make Loans and any rights to consent to any
amendment, modification or waiver of this Agreement. Each Bank agrees that it
shall indemnify the Company and any Multicurrency Borrower for any additional
costs or expenses incurred by the Company or any Multicurrency Borrower due to a
Fronting Arrangement to which such Bank is a party.
SECTION 12.07. Extension of Scheduled Maturity Date.
(a) The Company may, by delivery to the Administrative Agent of
written notice substantially in the form of Exhibit H hereto, request that the
Scheduled Maturity Date 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, within thirty (30) days after delivery of such notice by
the Administrative Agent, 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. 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
5.01(b) (both before and after the requested extension), then:
(i) the Scheduled Maturity 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 Scheduled Maturity Date (without giving effect to
the applicable extension thereof) and upon payment by the
Company and the Multicurrency Borrowers of all Obligations
owing to such Bank, (1) cease to be a Bank hereunder,
whereupon its Commitment shall terminate and each Tranche
Commitment shall be correspondingly reduced and (2) if such
Bank is an Agent, cease to be an Agent hereunder (and, if
applicable, a successor Agent shall be appointed pursuant to
Section 11.07).
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
5.01(b) are not satisfied both before and after giving effect to the requested
extension, then in either case the Scheduled Maturity Date shall take place as
scheduled.
(b) By delivery of the written notice referred to in subsection
(a) above no later than December 16, 1997, the Company may request an extension
of the Scheduled Maturity Date to December 31, 2000. If the Scheduled Maturity
Date is so extended, the Company may request a further extension of the
Scheduled Maturity Date to December 31, 2001 by an additional delivery of such
written notice no later than December 19, 1998.
SECTION 12.08. 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 Applicable 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 12.08(iv), (d) made
demand for additional amounts pursuant to Sections 6.04 or 6.05 as a result of
any condition described in any such Section, or (e) declined to consent to an
extension of the Scheduled Maturity Date pursuant to Section 12.07, 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:
(x) designate another financial
institution acceptable to the Agents (such institution
being herein called a "Replacement Bank") to purchase
the Obligations owed to 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 Loans
payable to such Affected Bank plus any accrued but
unpaid interest on such Loans and, if applicable,
accrued but unpaid fees and expenses owed hereunder or
in connection herewith, in each case owing to the
Affected Bank in its capacity as a Bank, and upon such
purchase and the payment of the additional amounts
described above and all other Obligations owing to such
Affected Bank as a 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 12.04), 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 outstanding principal amount of the Loans
payable to such Affected Bank plus any accrued but
unpaid interest on such Loans and, if applicable,
accrued but unpaid fees and expenses owed hereunder or
in connection herewith, in each case owing to the
Affected Bank in its capacity as a Bank, and upon such
payment of the additional amounts described above and
all other Obligations owing to such Affected Bank as a
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 12.04); and
(ii) Simultaneously with the removal of an Affected
Bank pursuant to Section 12.08(i)(y) above, the Company shall
effect a Reallocation in accordance with the provisions of
Article V, pursuant to which the Company shall reduce the
Commitments by the amount of such Affected Bank's Commitment.
(iii) 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 11.07.
(iv) 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 Sections 6.04 or 6.05; provided, that the
failure by any Bank to give such notice shall not affect the
obligations of the Company under such Sections.
SECTION 12.09. 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 12.09; and (ii) to
require any other Person to whom such Person discloses such
non-public information to be similarly bound by this Section
12.09.
SECTION 12.10. 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 9.04 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 12.11. 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 12.12. 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.
SECTION 12.13. Payments Set Aside. To the extent that the
Company or any Multicurrency Borrower 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 12.14. Severability. In case any provision in or
obligation under this Agreement 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 12.15. 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 12.16. 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 12.17. Limitation of Liability. To the extent permitted
by applicable law, no claim may be made by the Company, any Multicurrency
Borrower, 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, each
Multicurrency Borrower 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 12.18. Consent to Jurisdiction and Service of Process.
All judicial proceedings brought against the Company or any other Multicurrency
Borrower 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 or the applicable
Multicurrency Borrower Assumption Agreement, the Company and each Multicurrency
Borrower 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 and each Multicurrency
Borrower 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 and each
Multicurrency Borrower to be effective and binding service in every respect. The
Company and each Multicurrency Borrower 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 12.02, such service to become
effective ten (10) days after such mailing. EACH OF THE COMPANY, THE
MULTICURRENCY BORROWERS, 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 or any other Multicurrency Borrower in the
courts of any other jurisdiction.
SECTION 12.19. Waiver of Jury Trial. EACH OF THE COMPANY, THE
MULTICURRENCY BORROWERS, 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 12.20. Counterparts; Effectiveness;
Inconsistencies. This Agreement and any amendments, waivers, consents, 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, and against each Multicurrency Borrower on the effective date of its
Multicurrency Borrower Assumption Agreement. 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 inconsistent with the terms and conditions of any
other Credit Document, this Agreement shall govern.
SECTION 12.21. 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 12.22. Entire Agreement. This Agreement, taken together
with all of the other Credit Documents and all certificates and other documents
delivered by the Company and the Multicurrency Borrowers 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 12.23. Replacement of the Fourth Amended Agreement. (a)
On the Closing Date, (i) the Fourth Amended Agreement shall cease to be of any
force or effect, (ii) the "Agents" thereunder shall be replaced by the Agents
hereunder, and (iii) each of the financial institutions listed on the signature
pages hereof shall be Banks hereunder. Notwithstanding anything in the Fourth
Amended Agreement or elsewhere to the contrary, the replacement of the "Agents"
accomplished hereby are each deemed to have occurred in accordance with and in
satisfaction of all requirements with respect thereto set forth in the Fourth
Amended Agreement and elsewhere, and consent is hereby expressly given to each
such replacement.
(b) The Company has requested, and the Banks hereby acknowledge
and agree, that the requirement of Section 12.04(d) of the Fourth Amended
Agreement be waived only with respect to the fiscal quarter ending December 31,
1996, and that non-compliance therewith, if any, not be deemed an Event of
Default or Unmatured Event of Default under the Fourth Amended Agreement or
hereunder. Nothing herein shall be construed to waive, or affect in any way, any
provision other than Section 12.04(d) of the Fourth Amended Agreement for the
fiscal quarter specified above.
(c) In addition to the foregoing, each of the "Notes" issued
under the Fourth Amended Agreement (the "Original Notes") shall become of no
further force or effect on the Closing Date. Each Bank shall use its reasonable
efforts to return the Original Note issued to it to the Company for cancellation
on or before the Closing Date; provided, that in the event any one or more Banks
fail to return their respective Original Notes on or before the Closing Date,
the Closing Date shall nevertheless occur, and each such Bank agrees to
indemnify and hold the Company harmless from and against any and all liability,
loss, damage and expense, including legal fees and expenses, in connection with,
or arising out of, the failure to return such Original Note.
SECTION 12.24. 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
Applicable Pro Rata Shares 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 Applicable Pro Rata Shares 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. With respect to outstanding Loans, the additional Bank
shall promptly fund its Tranche A Pro Rata Share of Base Rate Loans, by making
payment thereof to the Tranche A Agent for distribution to the other Banks. In
the case of Eurocurrency Rate Loans, the additional Bank shall fund its
Applicable Pro Rata Share thereof on the last day of the then current Interest
Period of each such Eurocurrency Rate Loan to the Tranche A Agent (if a U.S.
Loan) or the Tranche A European Sub-Agent (if a European Loan) and the Banks'
Applicable Pro Rata Shares in each such outstanding Eurocurrency Rate Loan shall
not be adjusted by virtue of the addition of such new Bank until the last day of
such Interest Period. The increase in the Commitments created by the addition of
such new Bank shall be allocated to Tranche A as of the effective date of such
new Bank's addition to the Agreement (subject to such Bank's right to elect to
become a Tranche B Bank pursuant to ss. 3.07(b) hereof).
SECTION 12.25. Company as Agent for Multicurrency Borrowers.
Each Multicurrency Borrower hereby appoints the Company as its agent for
purposes of giving notice to or otherwise advising the Agents or the Banks in
such instances where this Agreement calls for notice or advice from a
Multicurrency Borrower or the Multicurrency Borrowers generally. Without
limiting the foregoing, any supplement, restatement or amendment to this
Agreement shall not require notice to, or the consent of, the Multicurrency
Borrowers.
SECTION 12.26. Judgment Currencies. If for the purposes of
obtaining judgment in any court it is necessary to convert a sum due under this
Agreement or under any Loans in any currency (the "Original Currency") into
another currency (the "Other Currency"), the parties hereto agree, to the
fullest extent permitted by law, that the rate of exchange used shall be that at
which, in accordance with normal banking procedures, the Administrative Agent
could purchase the Original Currency with the Other Currency on the Business Day
preceding that on which final judgment is given. To the fullest extent permitted
by applicable law, the obligation of any Multicurrency Borrower in respect of
any sum due in the Original Currency to any Agent or any Bank shall,
notwithstanding any judgment in an Other Currency, be discharged only to the
extent that on the Business Day following receipt by such Agent or such Bank, as
applicable, of any sum adjudged to be so due in the Other Currency, such Agent
or such Bank, as applicable, may in accordance with normal banking procedures
purchase the Original Currency with the Other Currency; if the amount of the
Original Currency so purchased is less than the sum originally due to such Agent
or such Bank, as applicable, in the Original Currency, the applicable
Multicurrency Borrower or Multicurrency Borrowers agree, as a separate
obligation and notwithstanding any such judgment, to indemnify such Agent or
such Bank, as applicable, against such loss, and if the amount of the Original
Currency so purchased exceeds the sum originally due such Agent or such Bank in
the Original Currency, such Agent or such Bank, as applicable, agrees to remit
to the applicable Multicurrency Borrower or Multicurrency Borrowers such excess.
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 and Treasurer
Commitment
$24,000,000 NATIONSBANK, N.A., as Syndication
and as a Bank
By
Name:
Title:
Commitment CITIBANK, N.A.,as Administrative Agent, as a
Bank, and as Tranche B Lending Offices and as
$24,000,000 a Tranche B Ban
By
Singapore Name:
Sub-Commitment Title:
5,000,000
Singapore dollars
CITIBANK INTERNATIONAL PLC, as Tranche
A European Sub-Agent
By
Name:
Title:
CITICORP INTERNATIONAL, LTD., as Tranche B
Agent
By
Name:
Title:
Commitment
$10,800,000 BANK HAPOALIM B.M., as a Bank
By
Name:
Title:
By
Name:
Title:
Commitment
$21,000,000 BANK OF TOKYO-MITSUBISHI,LTD.,
as a Bank and a Tranche B Bank
By
Singapore Name:
Sub-Commitment Title:
12,000,000
Singapore dollars
BANK OF TOKYO-MITSUBISHI (UK)
LIMITED, as a European
Lending Office of Bank of
Tokyo-Mitsubishi, Ltd.
By
Name:
Title:
BANK OF TOKYO-MITSUBISHI
(AUSTRALIA) LTD., as the
Tranche B Lending Office in
Australia of Bank of
Tokyo-Mitsubishi, Ltd.
By
Name:
Title:
BANK OF TOKYO-MITSUBISHI,
SHIN-AKASAKA BRANCH, as the
Tranche B Lending Office in
Japan of Bank of
Tokyo-Mitsubishi, Ltd.
By
Name:
Title:
BANK OF TOKYO-MITSUBISHI,
LTD, SINGAPORE BRANCH, as the
Tranche B Lending Office in
Singapore of Bank of
Tokyo-Mitsubishi, Ltd.
By
Name:
Title:
Commitment
$21,000,000 Canadian Imperial Bank of Commerce, as a Bank
and a Tranche B Bank
By
Singapore Name:
Sub-Commitment Title:
5,000,000 CIBC WOOD GUNDY PLC, as the European
Singapore dollars Lending Office of Canadian Imperial Bank
of Commerce
By
Name:
Title:
Canadian Imperial Bank of Commerce,
Tokyo Branch, as the Tranche B Lending Office
in Japan of Canadian Imperial Bank of Commerce
By
Name:
Title:
Canadian Imperial Bank of Commerce,
Singapore Branch, as the Tranche B Lending
Office in Singapore of Canadian Imperial Bank
of Commerce
By
Name:
Title:
Canadian Imperial Bank of Commerce, c/o
Westpac Banking Corp., as the Tranche B
Lending Office in Australia of Canadian
Imperial Bank of Commerce
By
Name:
Title:
Commitment
$15,000,000 COMERICA BANK, as a Bank
By
Name:
Title:
Commitment
$13,200,000 CAISSE NATIONALE DE CREDIT AGRICOLE,
as a Bank
By
Name:
Title:
Commitment
$21,000,000 THE FIRST NATIONAL BANK OF CHICAGO, as a Bank and a
Tranche B Bank
Singapore
Sub-Commitment
2,000,000
Singapore dollars
By
Name:
Title:
Commitment
$21,000,000 FUJI BANK (LUXEMBOURG) S.A.,
as a Bank
By
Name:
Title:
THE FUJI BANK, LIMITED, as the U.S. Lending
Office for The Fuji Bank (Luxembourg) S.A.
By
Name:
Title:
Commitment
$18,000,000 THE INDUSTRIAL BANK OF JAPAN, LIMITED,
CHICAGO BRANCH, as a Bank
By
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LONDON BRANCH, as
the European Lending Office
for the Industrial Bank of
Japan
By
Name:
Title:
Commitment
$13,200,000 THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
CHICAGO BRANCH, as a Bank and as the U.S.
Lending Office of the Long-Term Credit Bank of
Japan, Ltd.
By
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.,
LONDON BRANCH, as the European Lending Office
for the Long-Term Credit Bank of Japan, Ltd.
By
Name:
Title:
Commitment
$21,000,000 MELLON BANK,N.A., as a Bank
By
Name:
Title:
Commitment
$21,000,000 THE SAKURA BANK, LIMITED, CHICAGO BRANCH, as a Bank and
the U.S. Lending Office of the Sakura Bank, Ltd.
By
Singapore Name:
Sub-Commitment Title:
5,000,000
Singapore dollars
THE SAKURA BANK, LIMITED,
LONDON BRANCH, as a Bank and
as the European Lending
Office of The Sakura Bank,
Limited
By
Name:
Title:
THE SAKURA BANK, LIMITED,
OSAKA BRANCH, as a Bank and a
Tranche B Bank and the
Tranche B Lending Office in
Japan of The Sakura Bank,
Limited
By
Name:
Title:
THE SAKURA BANK, LIMITED,
SINGAPORE BRANCH, as a Bank
and a Tranche B Bank and the
Tranche B Lending Office in
Singapore of The Sakura Bank,
Limited
By
Name:
Title:
SAKURA FINANCE AUSTRALIA
LIMITED, as a Bank and a
Tranche B Bank and the
Tranche B Lending Office in
Australia of The Sakura Bank,
Limited
By
Name:
Title:
Commitment
$9,000,000 THE SANWA BANK, LIMITED, CHICAGO
BRANCH, as a Bank
By
Name:
Title:
THE SANWA BANK, LIMITED, LONDON
BRANCH, as a Bank
By
Name:
Title:
Commitment
$10,800,000 UNITED STATES NATIONAL BANK OF OREGON,as
a Bank
By
Name:
Title:
Commitment
$18,000,000 WESTPAC BANKING CORPORATION,
as a Bank and as a Tranche B Bank
By
Singapore Name:
Sub-Commitment Title:
5,000,000
Singapore dollars
WESTPAC BANKING CORPORATION, TOKYO BRANCH, as a
Tranche B Lending Office in Japan for Westpac
Banking Corporation
By
Name:
Title:
WESTPAC BANKING CORPORATION,SINGAPORE BRANCH AND
REGIONAL OFFICE, as a Tranche B Lending Office
in Singapore for Westpac Banking Corporation
By
Name:
Title:
WESTPAC BANKING CORPORATION, as a
Tranche B Lending Office in
Australia for Westpac Banking
Corporation
By
Name:
Title:
WESTPAC BANKING CORPORATION, LONDON
BRANCH, as European Lending Office
for Westpac Banking Corporation
By
Name:
Title:
Commitment
$18,000,000 THE YASUDA TRUST & BANKING CO., LTD.,
as a Bank
By
Name:
Title:
TABLE OF CONTENTS
ARTICLE IDEFINITIONS AND ACCOUNTING TERMS1
1.01. Certain Defined Terms1
1.02. Other Definitions27
1.03. Computation of Time Periods27
1.04. Accounting Terms28
1.05. Other Definitional Provisions28
ARTICLE IIAMOUNT AND TERMS OF THE TRANCHE A SUBFACILITY28
2.01. The Tranche A Loans28
2.02. Making the Tranche A Loans30
2.03. Repayment33
2.04. Interest33
2.05. Prepayments35
2.06. Voluntary Conversion of U.S. Loans35
ARTICLE IIIAMOUNT AND TERMS OF THE TRANCHE B SUBFACILITY36
3.01. The Tranche B Loans36
3.02. Making the Tranche B Loans37
3.03. Repayment40
3.04. Interest40
3.05. Prepayments41
3.06. Removal of a Tranche B Bank;
Additional Tranche B Banks41
ARTICLE IVCOMPANY GUARANTY43
4.01. Guaranty43
4.02. Obligations Unconditional44
4.03. Enforcement; Application of Payments45
4.04. Waivers45
4.05. Subrogation46
4.06. Subordination47
4.07. Effectiveness; Termination47
ARTICLE VTRANCHE REALLOCATION AND COMMITMENT REDUCTION47
5.01. Reallocation of the Tranche Commitments47
5.02. Reduction of the Commitments48
ARTICLE VIGENERAL TRANCHE PROVISIONS48
6.01. Payments and Computations48
6.02. Right of Set-off51
6.03. Sharing of Payments, Etc.52
6.04. Increased Costs, Reserves and Capital53
6.05. Taxes55
6.06. Facility Fee58
6.07. Interest Rate Provisions58
6.08. Illegality61
6.09. Right of Set-Off Against Defaulting Banks61
6.10. Recordation of Loans and Payments62
6.11. Mandatory Prepayments63
ARTICLE VIICONDITIONS PRECEDENT64
7.01. Conditions Precedent to Closing64
7.02. Conditions Precedent to Each Borrowing,
Reallocation and Extension of
Scheduled Maturity Date65
ARTICLE VIIIREPRESENTATIONS AND WARRANTIES66
8.01. Representations and Warranties of the Company66
8.02. Representations and Warranties of the
Multicurrency Borrowers70
ARTICLE IXCOVENANTS OF THE COMPANY71
9.01. Affirmative Covenants71
9.02. Reporting Covenants73
9.03. Negative Covenants76
9.04. Financial Covenants80
ARTICLE XEVENTS OF DEFAULT81
10.01. Events of Default81
10.02. Remedies84
ARTICLE XITHE AGENTS85
11.01. Authorization and Action85
11.02. Nature of Agents' Duties85
11.03. Rights, Exculpation, Etc.86
11.04. Rights as a Bank87
11.05. Bank Credit Decision88
11.06. Indemnification88
11.07. Resignation or Removal of Agents89
ARTICLE XIIMISCELLANEOUS90
12.01. Amendments, Etc90
12.02. Notices91
12.03. No Waiver; Remedies94
12.04. Fees and Expenses; Indemnity94
12.05. Successors and Assigns96
12.06. Assignments and Participations96
12.07. Extension of Scheduled Maturity Date99
12.08. Replacement or Removal of a Bank in
the Event of an Adverse Condition100
12.09. Confidentiality101
12.10. Change in Accounting Principles102
12.11. Independence of Covenants103
12.12. Survival of Warranties and Agreements103
12.13. Payments Set Aside103
12.14. Severability103
12.15. Headings103
12.16. Governing Law103
12.17. Limitation of Liability103
12.18. Consent to Jurisdiction and Service of Process104
12.19. Waiver of Jury Trial105
12.20. Counterparts; Effectiveness; Inconsistencies105
12.21. Construction105
12.22. Entire Agreement105
12.23. Replacement of the Fourth Amended Agreement105
12.24. Additional Banks106
12.25. Company as Agent for Multicurrency Borrowers107
12.26. Judgment Currencies107
Comdisco, Inc. and Subsidiaries Exhibit 11
COMPUTATION OF EARNINGS PER COMMON SHARE
(in millions except per share data)
Average shares used in computing net earnings per common and common equivalent
share were as follows:
<TABLE>
<CAPTION>
Three months
ended
December 31
1996 1995
---- ----
<S> <C> <C>
Average shares outstanding ............................................... 49 52
Effect of dilutive options ............................................... 3 2
---- ----
Total ................................................................. 52 54
==== ====
Net earnings available
to common stockholders ............................................... $ 28 $ 25
==== ====
Net earnings per common and
common equivalent share .............................................. $.55 $.47
==== ====
</TABLE>
Comdisco, Inc. and Subsidiaries Exhibit 12
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(dollars in millions)
<TABLE>
<CAPTION>
Three months ended
December 31, For the years ended September 30,
------------ ---------------------------------
1996 1995 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Fixed charges
Interest expense <F1> .................................................... $ 73 $ 66 $267 $278 $266 $295 $355
Approximate portion of
rental expense representative of an interest factor .................... 1 2 7 11 13 22 29
---- ---- ---- ---- ---- ---- ----
Fixed charges ............................................................ 74 68 274 289 279 317 384
Earnings from continuing operations before income taxes and
extraordinary item, and cumulative effect of change in accounting
principle, net of preferred stock dividends .............................. 47 42 176 160 80 137 34
---- ---- ---- ---- ---- ---- ----
Earnings from continuing operations before income taxes, extraordinary item,
cumulative effect of change in accounting principle, net of
preferred stock dividend ................................................. $121 $110 $450 $449 $359 $454 $418
==== ==== ==== ==== ==== ==== ====
Ratio of earnings to fixed charges ......................................... 1.64 1.62 1.64 1.55 1.29 1.43 1.09
==== ==== ==== ==== ==== ==== ====
Rental expense:
Equipment subleases ...................................................... $ 2 $ 5 $ 14 $ 22 $ 30 $ 57 $ 77
Office space, furniture, etc ............................................. 2 2 8 10 8 8 10
---- ---- ---- ---- ---- ---- ----
Total ................................................................. $ 4 $ 7 $ 22 $ 32 $ 38 $ 65 $ 87
==== ==== ==== ==== ==== ==== ====
1/3 of rental expense ................................................. $ 1 $ 2 $ 7 $ 11 $ 13 $ 22 $ 29
==== ==== ==== ==== ==== ==== ====
<FN>
<F1> Includes interest expense incurred by business continuity and network services
and included in business continuity and network services expenses on the statements of earnings
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This Schedule contains summary financial information
extracted from the Quarterly Report on Form 10-Q
for the quarter ended December 31, 1996 and is qualified
in its entirety by reference to such financial statments.
</LEGEND>
<CIK> 0000722487
<NAME> Comdisco, Inc.
<MULTIPLIER> 1,000,000
<CURRENCY> U.S. Dollars
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> SEP-30-1997
<PERIOD-START> Oct-01-1996
<PERIOD-END> DEC-31-1996
<EXCHANGE-RATE> 1
<CASH> 86
<SECURITIES> 0
<RECEIVABLES> 237
<ALLOWANCES> 20
<INVENTORY> 184
<CURRENT-ASSETS> 487
<PP&E> 5,917
<DEPRECIATION> 1,745
<TOTAL-ASSETS> 5,798
<CURRENT-LIABILITIES> 1,138
<BONDS> 2,115
0
89
<COMMON> 7
<OTHER-SE> 706
<TOTAL-LIABILITY-AND-EQUITY> 5,917
<SALES> 490
<TOTAL-REVENUES> 633
<CGS> 351
<TOTAL-COSTS> 511
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 73
<INCOME-PRETAX> 49
<INCOME-TAX> 19
<INCOME-CONTINUING> 30
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 28
<EPS-PRIMARY> 0.550
<EPS-DILUTED> 0.550
</TABLE>
