EIGHTH SUPPLEMENTAL AGREEMENT
DATED December 29, 1995
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
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 and December 30, 1994)
providing for a revolving credit facility
of up to U.S.$300,000,000
1
THIS EIGHTH SUPPLEMENTAL AGREEMENT is made on December 29, 1995 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) NATIONAL WESTMINSTER BANK PLC as facility agent, tender panel agent and
swingline agent (the "Facility Agent"); and
(6) 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 and a
seventh supplemental agreement dated December 30, 1994 (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; and
(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.
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, 1995.
(d) "Extending Banks" means those parties to this Supplemental
Agreement listed under the heading "Extending 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.
(b) The following new definitions shall be added to Clause 1.1:
"Long Term Debt Rating"
means, on any date, the Company's senior unsecured non
credit-enhanced long term debt rating as determined by a
Rating Agency.
"Rating Agency"
means each of Standard & Poor's Ratings Group and ▇▇▇▇▇'▇
Investors Service, Inc..
(c) In Clause 1.1:
the definitions of "Final Maturity Date", "Underwritten CD
Margin" and "Underwritten LIBOR Margin" shall be deleted and
replaced with the following:
""Final Maturity Date"
in relation to an Underwriter means, subject to Clause 2.4,
December 31, 1998."
""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 BBB+ or Baa1 or higher, 0.40
per cent. per annum;
(b) 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
(c) where on the applicable Rate Fixing Day the Company's
Long Term Debt Rating is BBB- or Baa3 or lower or is
unrated, 0.4875 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
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 BBB+ or Baa1 or higher,
0.275 per cent. per annum;
(b) where on the applicable Rate Fixing Day the Company's
Long Term Debt Rating is BBB or Baa2, 0.30 per cent.
per annum; and
(c) where on the applicable Rate Fixing Day the Company's
Long Term Debt Rating is BBB- or Baa3 or lower or is
unrated, 0.3625 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."
(c) 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, 1995 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 BBB+ or
Baa1 or higher, 0.125 per cent. per annum;
(ii) where the Company's Long Term Debt Rating is BBB or
Baa2, 0.15 per cent. per annum; and
(iii) where the Company's Long Term Debt Rating is BBB- or
Baa3 or lower or is unrated, 0.1875 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. The amount of such fee payable to an individual
Underwriter shall be reduced by the amount of the facility fee
payable to such Underwriter during that period in respect of
such Underwriter's commitment under the Existing Facility
Agreement or under the Global Agreement (Original)."
(d) Part I (The Underwriters and Commitments) of Exhibit A shall be deleted
and replaced with the form set out in 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, 1995.
(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, 1996 (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. 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.
7. 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.
SCHEDULE 1
PART I - The Underwriters and Commitments
THE UNDERWRITERS AND COMMITMENTS
Banks Commitments
U.S.$
NATIONAL WESTMINSTER BANK PLC 38,666,666.68
CREDIT LYONNAIS 36,000,000.00
DEUTSCHE BANK AG 36,000,000.00
UNION BANK OF SWITZERLAND 36,000,000.00
BARCLAYS BANK PLC 26,666,666.66
BHF-BANK 26,666,666.66
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK AG, NEW YORK 20,000,000.00
BRANCH
BAYERISCHE VEREINSBANK 20,000,000.00
DRESDNER BANK AG 20,000,000.00
NORDDEUTSCHE LANDESBANK GIROZENTRALE 20,000,000.00
WESTDEUTSCHE LANDESBANK GIROZENTRALE 20,000,000.00
Total Commitments 300,000,000.00
SIGNATORIES
Company
COMDISCO, INC. (on behalf of itself and on behalf of those Additional
Borrowers party to the Facility Agreement)
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Arranger
NATIONAL WESTMINSTER BANK PLC
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Co-Agents
CREDIT LYONNAIS CHICAGO BRANCH
By: ▇▇▇▇▇▇ ▇▇▇
CREDIT LYONNAIS CAYMAN ISLANDS BRANCH
By: ▇▇▇▇▇▇ ▇▇▇
DEUTSCHE BANK AG CHICAGO BRANCH AND/OR CAYMAN ISLANDS BRANCH
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇ ▇▇▇▇▇▇▇▇
UNION BANK OF SWITZERLAND
By: ▇▇▇▇▇ ▇.▇▇▇▇▇▇▇▇ ▇▇ By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Extending Banks
NATIONAL WESTMINSTER BANK PLC
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
CREDIT LYONNAIS CHICAGO BRANCH
By: ▇▇▇▇▇▇ ▇▇▇
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By: ▇▇▇▇▇▇ ▇▇▇
DEUTSCHE BANK AG CHICAGO BRANCH AND/OR CAYMAN ISLANDS BRANCH
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇ ▇▇▇▇▇▇▇▇
UNION BANK OF SWITZERLAND
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇ By: ▇▇▇▇▇▇ ▇▇▇▇▇▇
BARCLAYS BANK PLC
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
BHF-BANK
By: ▇▇▇▇▇ ▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
BAYERISCHE HYPOTHEKEN-UND WECHSEL-BANK AG, NEW YORK BRANCH
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
BAYERISCHE VEREINSBANK AG
By: ▇▇ ▇. ▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
DRESDNER BANK AG, CHICAGO AND GRAND CAYMAN BRANCHES
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
NORDDEUTSCHE LANDESBANK GIROZENTRALE
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
AND CAYMAN ISLANDS BRANCHES
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facility Agent, Tender Panel Agent and Swingline Agent
NATIONAL WESTMINSTER BANK PLC
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Letter of Credit Agent
BARCLAYS BANK PLC
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
