EXHIBIT 4.1
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COMDISCO HOLDING COMPANY, INC.
AND
COMDISCO, INC.
VARIABLE RATE SENIOR SECURED NOTES DUE 2004
_______________________
INDENTURE
Dated as of August 12, 2002
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
_______________________
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1).................................................... 7.10
(a)(2).................................................. 7.10
(a)(3).................................................. N.A.
(a)(4).................................................. N.A.
(a)(5).................................................. 7.10
(b)..................................................... 7.10
(c)..................................................... N.A.
311(a)....................................................... 7.11
(b)..................................................... 7.11
(c)..................................................... N.A.
312(a)....................................................... 2.05
(b)..................................................... 11.03
(c)..................................................... 11.03
313(a)....................................................... 7.06
(b)(1).................................................. 9.03
(b)(2).................................................. 7.06, 7.07
(c)..................................................... 7.06, 11.02
(d)..................................................... 7.06
314(a)....................................................... 4.03, 11.05
(b)..................................................... 9.02
(c)(1).................................................. 11.04
(c)(2).................................................. 11.04
(c)(3).................................................. N.A.
(d)..................................................... 9.03, 9.04, 9.05
(e)..................................................... 11.05
(f)..................................................... N.A.
315(a)....................................................... 7.01
(b)..................................................... 7.05, 11.02
(c)..................................................... 7.01
(d)..................................................... 7.01
(e)..................................................... 6.11
316(a) (last sentence)....................................... 2.09
(a)(1)(A)............................................... 6.05
(a)(1)(B)............................................... 6.04
(a)(2).................................................. N.A.
(b)..................................................... 6.07
(c)..................................................... 2.12, 8.04
317(a)(1).................................................... 6.08
(a)(2).................................................. 6.09
(b)..................................................... 2.04
318(a)....................................................... 11.01
(b)..................................................... N.A.
(c)..................................................... 11.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.................................................................................1
Section 1.02. Other Definitions..........................................................................14
Section 1.03. Incorporation by Reference of Trust Indenture Act..........................................14
Section 1.04. Rules of Construction......................................................................15
ARTICLE 2.
THE NOTES
Section 2.01. Form and Dating............................................................................15
Section 2.02. Execution and Authentication...............................................................16
Section 2.03. Registrar and Paying Agent.................................................................16
Section 2.04. Paying Agent to Hold Money in Trust........................................................17
Section 2.05. Holder Lists...............................................................................17
Section 2.06. Transfer and Exchange......................................................................17
Section 2.07. Replacement Notes..........................................................................19
Section 2.08. Outstanding Notes..........................................................................20
Section 2.09. Treasury Notes.............................................................................20
Section 2.10. Temporary Notes............................................................................20
Section 2.11. Cancellation...............................................................................21
Section 2.12. Defaulted Interest.........................................................................21
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.........................................................................21
Section 3.02. Selection of Notes to Be Redeemed or Repurchased...........................................21
Section 3.03. Notice of Redemption.......................................................................22
Section 3.04. Effect of Notice of Redemption.............................................................22
Section 3.05. Deposit of Redemption Price................................................................22
Section 3.06. Notes Redeemed in Part.....................................................................23
Section 3.07. Optional Redemption........................................................................23
Section 3.08. Mandatory Redemption.......................................................................23
Section 3.09. Offers to Repurchase by the Issuers........................................................24
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Notes...........................................................................25
Section 4.02. Maintenance of Office or Agency............................................................25
Section 4.03. Reports....................................................................................26
Section 4.04. Compliance Certificate.....................................................................26
Section 4.05. Taxes......................................................................................27
Section 4.06. Stay, Extension and Usury Laws.............................................................27
Section 4.07. Restricted Payments........................................................................27
Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries.............................28
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.................................29
Section 4.10. Transactions with Affiliates...............................................................30
Section 4.11. Liens......................................................................................31
Section 4.12. Line of Business...........................................................................32
Section 4.13. Corporate Existence; Certificate of Incorporation..........................................32
Section 4.14. Offers to Repurchase by the Company........................................................32
Section 4.15. Insurance..................................................................................33
Section 4.16. Maintenance of Property....................................................................33
Section 4.17. Limitation on Sale and Leaseback Transactions..............................................33
Section 4.18. Limitation on Issuances and Sales of Equity Interests in Subsidiaries......................33
Section 4.19. No Amendment to Certain Provisions of the Subordinated Note Indenture......................34
Section 4.20. Equity Interests of the Company............................................................34
Section 4.21. Assets of the Company......................................................................34
Section 4.22. Management Incentive Plan..................................................................34
Section 4.23. Additional Note Collateral.................................................................34
Section 4.24. Consummation of Plan.......................................................................35
Section 4.25. Distributions from Subsidiaries............................................................35
ARTICLE 5.
SUCCESSORS
Section 5.01. Merger, Consolidation or the Transfer of All or Substantially All of the Assets
of the Company..........................................................................35
Section 5.02. Merger, Consolidation or the Transfer of All or Substantially All of the Assets of NLC.....36
Section 5.03. Successor Corporation Substituted..........................................................37
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default..........................................................................38
Section 6.02. Acceleration...............................................................................39
Section 6.03. Other Remedies.............................................................................39
Section 6.04. Waiver of Past Defaults....................................................................39
Section 6.05. Control by Majority........................................................................40
Section 6.06. Limitation on Suits........................................................................40
Section 6.07. Rights of Holders of Notes to Receive Payment..............................................40
Section 6.08. Collection Suit by Trustee.................................................................41
Section 6.09. Trustee May File Proofs of Claim...........................................................41
Section 6.10. Priorities.................................................................................41
Section 6.11. Undertaking for Costs......................................................................42
ARTICLE 7.
TRUSTEE
Section 7.01. Duties of Trustee..........................................................................42
Section 7.02. Rights of Trustee..........................................................................43
Section 7.03. Individual Rights of Trustee...............................................................44
Section 7.04. Trustee's Disclaimer.......................................................................44
Section 7.05. Notice of Defaults.........................................................................44
Section 7.06. Reports by Trustee to Holders of the Notes.................................................44
Section 7.07. Compensation and Indemnity.................................................................44
Section 7.08. Replacement of Trustee.....................................................................45
Section 7.09. Successor Trustee by Merger, etc...........................................................46
Section 7.10. Eligibility; Disqualification..............................................................46
Section 7.11. Preferential Collection of Claims Against Issuers..........................................46
ARTICLE 8.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 8.01. Without Consent of Holders of Notes........................................................47
Section 8.02. With Consent of Holders of Notes...........................................................47
Section 8.03. Compliance with Trust Indenture Act........................................................48
Section 8.04. Revocation and Effect of Consents..........................................................49
Section 8.05. Notation on or Exchange of Notes...........................................................49
Section 8.06. Trustee to Sign Amendments, etc............................................................49
ARTICLE 9.
COLLATERAL AND SECURITY
Section 9.01. Collateral Documents.......................................................................49
Section 9.02. Recording and Opinions.....................................................................50
Section 9.03. Release of Note Collateral.................................................................50
Section 9.04. Certificates of the Issuers................................................................51
Section 9.05. Certificates of the Trustee................................................................51
Section 9.06. Authorization of Actions to Be Taken by the Trustee Under the Collateral Documents.........51
Section 9.07. Authorization of Receipt of Funds by the Trustee Under the Collateral Documents............52
Section 9.08. Termination of Security Interest...........................................................52
ARTICLE 10.
SATISFACTION AND DISCHARGE
Section 10.01. Satisfaction and Discharge.................................................................52
Section 10.02. Application of Trust Money.................................................................53
ARTICLE 11.
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls...............................................................53
Section 11.02. Notices....................................................................................53
Section 11.03. Communication by Holders of Notes with Other Holders of Notes..............................55
Section 11.04. Certificate and Opinion as to Conditions Precedent.........................................55
Section 11.05. Statements Required in Certificate or Opinion..............................................55
Section 11.06. Rules by Trustee and Agents................................................................55
Section 11.07. No Personal Liability of Directors, Officers, Employees, Stockholders and Agents...........56
Section 11.08. Governing Law..............................................................................56
Section 11.09. No Adverse Interpretation of Other Agreements..............................................56
Section 11.10. Successors.................................................................................56
Section 11.11. Severability...............................................................................56
Section 11.12. Counterpart Originals......................................................................56
Section 11.13. Table of Contents, Headings, etc...........................................................56
SCHEDULES
Schedule A SCHEDULED CASH RESERVE AMOUNT
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B LIST OF COLLATERAL DOCUMENTS
INDENTURE dated as of August 12, 2002 between Comdisco Holding Company,
Inc., a Delaware corporation (the "Company"), Comdisco, Inc., a Delaware
corporation ("NLC" and, together with the Company, the "Issuers"), and ▇▇▇▇▇
Fargo Bank Minnesota, National Association, a national banking association, as
trustee (the "Trustee").
The Company, NLC and the Trustee agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the Variable
Rate Senior Secured Notes due 2004 (the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other
Person is merged with or into or became a Subsidiary of such specified Person,
whether or not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging with or into, or becoming a
Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control,"
as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise; provided, however, that beneficial ownership of 10% or
more of the Voting Stock of a Person will be deemed to be control. For purposes
of this definition, the terms "controlling," "controlled by" and "under common
control with" have correlative meanings.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary that apply to such transfer or exchange.
"Bankruptcy Law" means Title 11, U.S. Code or any applicable federal or
state or other applicable bankruptcy, insolvency, reorganization or other
similar law for the relief of debtors.
"Board of Directors" means:
(a) with respect to a corporation, the board of directors of the
corporation;
(b) with respect to a partnership, the board of directors of the
general partner of the partnership; and
(c) with respect to any other Person, the board or committee of such
Person serving a similar function.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination is to
be made, the amount of the liability in respect of a capital lease that would at
that time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means any and all shares or other equivalents (however
designated) of capital stock, including all common stock and all preferred
stock, in the case of a corporation, or partnership interests or other
equivalents (however designated) in the case of a partnership or common shares
of beneficial interest or other equivalents (however designated) in the case of
a trust.
"Cash Equivalents" means:
(a) United States dollars;
(b) securities issued or directly and fully guaranteed or insured by
the United States government or any agency or instrumentality of the United
States government having maturities of not more than one year from the date of
acquisition;
(c) certificates of deposit and Eurodollar time deposits with
maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year and overnight bank deposits,
in each case, with any domestic commercial bank having capital and surplus in
excess of $500.0 million and a Thomson Bank Watch Rating of "B" or better;
(d) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (b) and (c) above
entered into with any financial institution meeting the qualifications specified
in clause (c) above;
(e) commercial paper having the highest rating obtainable from ▇▇▇▇▇'▇
Investors Service, Inc. or Standard & Poor's Rating Services and in each case
maturing within 271 days after the date of acquisition;
(f) money market funds at least 95% of the assets of which constitute
Cash Equivalents of the kinds described in clauses (a) through (e) of this
definition; and
(g) the following money market funds (including any successor fund or
equivalent thereto): (i) ▇▇▇▇▇▇▇ Sachs Financial Square Money Market Fund; (ii)
▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial Square Prime Obligations Fund; (iii) ▇▇▇▇▇▇▇ Sachs
Financial Square Treasury Obligations Fund; (iv) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial Square
Federal Fund; and (v) money market funds that primarily invest in the types of
investments that are invested in by one or more of the funds identified in
subclauses (i) through (iv) of this clause (g).
"Change in Control" means the occurrence of any of the following:
(a) the sale of all or substantially all of the assets of the Issuers
and their Subsidiaries taken as a whole, to any Person or related group of
Persons;
(b) the consummation of any consolidation or merger of either of the
Issuers:
(i) in which the applicable Issuer is not the continuing or
surviving corporation, other than a consolidation or merger:
(1) with a wholly-owned Subsidiary of the applicable
Issuer in which all of the common stock of the applicable Issuer
outstanding immediately prior to the effectiveness thereof is changed
into or exchanged for the same consideration, or
(2) in which the stockholders of the applicable
Issuer immediately prior to the consummation of such consolidation or
merger own greater than 50% of the total voting power of all classes of
capital shares of the continuing or surviving corporation immediately
following the consummation of such consolidation or merger; or
(ii) pursuant to which the shares of common stock of the
applicable Issuer are converted into cash, securities, or other property, unless
the stockholders of the applicable Issuer immediately prior to the consummation
of such consolidation or merger own greater than 50% of the total voting power
of all classes of capital shares of the continuing or surviving corporation
immediately following the consummation of such consolidation or merger,
(c) the acquisition by any Person individually or any Persons (in each
case other than an Excluded Person or Excluded Persons) acting together that
would constitute a "group" for purposes of Section 13(d) of the Exchange Act,
together with any affiliates thereof, of beneficial ownership (as defined in
Rule 13d-3 under the Exchange Act) of greater than 50% of the total voting power
of all classes of capital shares of either of the Issuers entitled to vote
generally in the election of directors of the applicable Issuer; or
(d) the first day on which a majority of members of the Board of
Directors of the Company are not Continuing Directors.
Notwithstanding clause (a) of the definition of "Change in Control", a
Change in Control will not be deemed to have occurred as a result of a
transaction in which either:
(a) the holders of the shares of common stock of the applicable Issuer
immediately prior to the sale of all or substantially all of the applicable
Issuer's assets have, directly or indirectly, at least a majority of the shares
of common stock of the corporation to which such assets were sold immediately
after such asset sale; or
(b) the holders of the shares of common stock of the Issuers
immediately prior to the consolidation or merger have, directly or indirectly,
at least a majority of the shares of common stock of the continuing or surviving
corporation immediately after such consolidation or merger.
Notwithstanding clause (c) of the definition of "Change in Control", a
Change in Control will not be deemed to have occurred solely by virtue of any of
the following Persons filing or becoming obligated to file a report under or in
response to Schedule 13D or Schedule 14D-1 (or any successor schedule, form, or
report) under the Exchange Act disclosing beneficial ownership by it of shares
or securities of the applicable Issuer, of greater than 50% of the total voting
power referred to in clause (c) of the foregoing definition or otherwise:
(a) the other Issuer;
(b) any Subsidiary;
(c) any employee share purchase plan, share option plan, or other share
incentive plan or program;
(d) retirement plan or automatic dividend reinvestment plan; or
(e) any substantially similar plan of the Issuers or any Subsidiary or
any Person holding securities of the Issuers for or pursuant to the terms of any
such employee benefit plan.
"Collateral Agent" means the party named as such in the Collateral
Documents until a successor replaces it in accordance with the provisions of the
Collateral Documents and thereafter means the successor serving thereunder.
"Collateral Documents" means all agreements, instruments, documents,
pledges or filings listed on Exhibit B hereto that evidence, perfect, set forth
or limit the security interest of the Collateral Agent in the Note Collateral.
"Company" means Comdisco Holding Company, Inc., and any and all
successors thereto.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who:
(a) was a member of such Board of Directors on the date of this
Indenture or elected to or otherwise named to the Board of Directors pursuant to
the Plan; or
(b) was nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were members of
such Board at the time of such nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 11.02 hereof or such other address as to which the
Trustee may give notice to the Issuers and the Holders.
"Custodian" means the Trustee, as custodian with respect to the Notes,
or any successor entity thereto.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit A hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Disclosure Statement" means the Disclosure Statement with respect to
the Plan.
"Disputed Claims Reserve" has the meaning given to that term in the
Plan.
"Disqualified Stock" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder of the Capital Stock), or
upon the happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable at the option of the
holder of the Capital Stock, in whole or in part, on or prior to the date that
is 91 days after the date on which the Notes mature. Notwithstanding the
preceding sentence, any Capital Stock that would constitute Disqualified Stock
solely because the holders of the Capital Stock have the right to require the
Company to repurchase such Capital Stock upon the occurrence of a change in
control or an asset sale will not constitute Disqualified Stock if the terms of
such Capital Stock provide that the Company may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.07.
"Domestic Subsidiary" means any Subsidiary of the Issuers that was
formed under the laws of the United States or any state of the United States or
the District of Columbia.
"Effective Date" means August 12, 2002.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Excess Cash" means Unrestricted Cash minus the sum of (i) an amount of
cash or cash equivalents necessary to fund the Issuers' operating reserve for
the fiscal quarter immediately following the fiscal quarter as to which any
determination is being made, such operating reserves not to exceed the aggregate
Scheduled Cash Reserve Amount and (ii) the amount of Notes optionally redeemed
or to be optionally redeemed by the Issuers (unless the Issuers subsequently
fail to redeem such Notes on the applicable redemption date) in accordance with
Section 3.07 hereof following the last day of the fiscal quarter and prior to
any mandatory redemption date in accordance with Section 3.08 hereof; provided,
that amounts of Excess Cash determined by the foregoing shall be rounded down to
the nearest whole multiple of $1,000.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Person" means any Person who is a holder of more than 5% of
all classes of capital shares of the Issuers as of the Effective Date.
"Existing Indebtedness" means up to $610.0 million in aggregate
principal amount of Indebtedness of the Issuers and their Subsidiaries
(excluding Indebtedness under this Indenture and the Subordinated Note
Indenture) in existence on the date of the Indenture, until such amounts are
repaid.
"Foreign Subsidiary" of a Person means any Subsidiary of the referent
Person that is not a Domestic Subsidiary.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of 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 entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Global Notes" means each of the global Notes issued in accordance with
Section 2.01 and substantially in the form of Exhibit A attached hereto that,
except as otherwise provided in Section 2.01(b) hereof, bear the Global Note
Legend and that have the "Schedule of Exchanges of Interests in the Global Note"
attached thereto, and that are deposited with or on behalf of and registered in
the name of the Depositary.
"Global Note Legend" means the legend set forth in Section 2.06(f),
which is required to be placed on all Global Notes issued under this Indenture.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America, and the payment for which the
United States pledges its full faith and credit.
"Guarantee" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
"Hedging Obligations" means, with respect to any specified Person, the
obligations of such Person under:
(a) swap agreements, cap agreements and collar agreements designed to
protect such Person against fluctuations on interest or currency exchange rates;
and
(b) other agreements or arrangements designed to protect such Person
against fluctuations in interest rates or currency exchange rates.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent:
(a) in respect of borrowed money;
(b) evidenced by bonds, notes, debentures or similar instruments or
letters of credit (or reimbursement agreements in respect thereof);
(c) in respect of banker's acceptances;
(d) representing Capital Lease Obligations;
(e) representing the balance deferred and unpaid of the purchase price
of any property, except any such balance that constitutes an accrued expense or
trade payable; or
(f) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet of the
specified Person prepared in accordance with GAAP. In addition, the term
"Indebtedness" includes all Indebtedness of others secured by a Lien on any
asset of the specified Person (whether or not such Indebtedness is assumed by
the specified Person) and, to the extent not otherwise included, the Guarantee
by the specified Person of any Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date will be:
(a) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount;
(b) the principal amount of the Indebtedness, together with any
interest on the Indebtedness that is more than 30 days past due, in the case of
any other Indebtedness;
(c) in the case of a Guarantee of Indebtedness, the maximum amount of
the outstanding Indebtedness guaranteed under such Guarantee; and
(d) in the case of Indebtedness of others secured by a Lien on any
asset of the specified Person, the fair market value of the asset(s) subject to
such Lien.
"Indenture" means this Indenture, as amended, modified or supplemented
from time to time.
"Initial Notes" means the Notes issued under this Indenture on the date
hereof.
"Investments" means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates) in the forms
of loans (including Guarantees or other obligations), advances or capital
contributions (excluding commission, travel and similar advances to officers and
employees made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If the Issuers
or any Subsidiary of the Issuers sells or otherwise disposes of any Equity
Interests of any direct or indirect Subsidiary of the Issuers such that, after
giving effect to any such sale or disposition, such Person is no longer a
Subsidiary of the Issuers, the Issuers will be deemed to have made an Investment
on the date of any such sale or disposition equal to the fair market value of
the Equity Interests of such Subsidiary not sold or disposed of in an amount
determined as provided in the final paragraph of Section 4.07. The acquisition
by the Company or any Subsidiary of the Company of a Person that holds an
Investment in a third Person will be deemed to be an Investment by the Company
or such Subsidiary in such third Person in an amount equal to the fair market
value of the Investment held by the acquired Person in such third Person.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of
New York, the City of Chicago or at a place of
payment are authorized by law, regulation or executive order to remain closed.
If a payment date is a Legal Holiday at a place of payment, payment may be made
at that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue on such payment for the intervening period.
"Letter of Credit Facility" means the Credit and Security Agreement,
dated as of June 18, 2002, between the Company and Fifth Third Bank (Chicago),
and the other "Loan Documents" (as defined therein), each as amended,
supplemented, refinanced, replaced, extended, defeased, increased, refunded,
renewed, restated, revised or otherwise modified from time to time in the
aggregate amount of outstanding letters of credit not to exceed $12,000,000.00
at any time.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Management Incentive Plan" has the meaning given to that term in the
Plan.
"New Europe" means Comdisco Global Holding Company, Inc., and any and
all successors thereto.
"New Ventures" means Comdisco Ventures, Inc., and any and all
successors thereto.
"NLC" means Comdisco, Inc., and any and all successors thereto.
"Non-Recourse Debt" means Indebtedness incurred in connection with
discounted lease receivables programs substantially similar to the discounted
lease receivables programs utilized in the ordinary course of business of the
Issuers and/or their Subsidiaries prior to the date hereof as to which no
default with respect to such Indebtedness (including any rights that the holders
of the Indebtedness may have to take enforcement action against a Subsidiary)
would permit upon notice, lapse of time or both any holder of any other
Indebtedness (other than the Notes or the Senior Notes) of the Issuers or any of
their Subsidiaries to declare a default on such other Indebtedness or cause the
payment of the Indebtedness to be accelerated or payable prior to its stated
maturity.
"Note Collateral" means all property, now owned or hereafter acquired,
of the Issuers that, pursuant to the Collateral Documents, is subject to a
security interest in favor of the Collateral Agent.
"Notes" has the meaning assigned to it in the preamble to this
Indenture. The Initial Notes shall be treated as a single class for all purposes
under this Indenture.
"Obligations" means any principal, interest, premium, if any,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the
Secretary, any Assistant Secretary, the Chief Operating Officer, the Chief
Financial Officer, the Controller, the Treasurer or any Assistant Treasurer of
such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company or NLC, as the case may be, by two Officers of the Company or NLC, as
the case may be, one of whom must be the principal executive officer, the
principal financial officer, the treasurer or the principal accounting officer
of the Company or NLC, as the case may be, that meets the requirements of
Section 11.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Section
11.05 hereof. The counsel may be an employee of or counsel to the Issuers, any
Subsidiary of the Issuers or the Trustee.
"Participant" means, with respect to the Depositary, a Person who has
an account with the Depositary.
"Permitted Business" means:
(a) the sale, collection or other liquidation of the assets of the
Issuers and their Subsidiaries, the repayment of the Indebtedness of the Issuers
and thereafter the payment of dividends or other distributions to the owners of
the Capital Stock of the Company, as contemplated by the Plan and the Disclosure
Statement; and
(b) any business that is ancillary to the foregoing.
"Permitted Investments" means:
(a) any Investment (i) in the Issuers, (ii) in a Domestic Subsidiary of
the Issuers or (iii) in a Foreign Subsidiary of the Issuers; provided, however,
that the Issuers or a Domestic Subsidiary of the Issuers cannot make Investments
in Foreign Subsidiaries pursuant to this subclause (iii) in an amount exceeding
the aggregate distributions received by the Issuers or their Domestic
Subsidiaries from Foreign Subsidiaries since April 1, 2002; provided, further,
that any intercompany Indebtedness owed to the Issuers or any Domestic
Subsidiary of the Issuers by any Foreign Subsidiary may be converted into equity
of, or contributed to the capital of, a Foreign Subsidiary in order to maintain
the solvency of any Foreign Subsidiary or in connection with a sale or other
disposition of such Foreign Subsidiary;
(b) any Investment in cash or Cash Equivalents;
(c) any Investments made or received (i) in exchange for, or in
compromise of, other Investments of the Issuers or any of their Subsidiaries
existing as of the date hereof, (ii) in exchange for, or in compromise of,
assets or other rights received by the Issuers or any of their Subsidiaries in
exchange for, or in compromise of, Investments of the Issuers or any of their
Subsidiaries, which assets, rights or Investments were in existence as of the
date hereof or (iii) to extend, refinance, renew or replace any other
Investments of the Issuers or any of their Subsidiaries existing as of the date
hereof;
(d) any Investments received in compromise of obligations of Persons
incurred in the ordinary course of business, including pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of any
trade creditor or customer;
(e) Hedging Obligations;
(f) Investments represented by accounts receivable created or acquired
in the ordinary course of business and payable or dischargeable in accordance
with customary trade terms;
(g) Investments, or Investments resulting from commitments to make
Investments, existing as of the date of this Indenture;
(h) Investments, or commitments to make Investments, in the form of (x)
a lease of or rental agreement, (y) a sale contract (including an installment
sale contract or conditional sale agreement), or (z) a secured financing,
including any schedule or amendment thereto or assignment, assumption, renewal
or novation thereof (and delivery, acceptance or installation certificates,
landlord or mortgagee waivers, intercreditor or subordination agreements,
incumbency certificates, purchase orders, purchase order assignments, and sale
and leaseback agreements, each relating thereto), and in each case, which with
respect thereto: (A) the Company, NLC or one of their Subsidiaries is the
lessor, seller, secured party or obligee (whether initially or as an assignee),
or (B) is between an obligor, on the one hand, and a lessor, seller, obligee,
secured party or assignee of any of the foregoing, on the other hand, and (1)
which would be a Permitted Investment if the Company, NLC or one of their
Subsidiaries were the lessor, seller, obligee, secured party or assignee of any
of the foregoing thereunder and (2) with respect to which the Company, NLC or
one of their Subsidiaries is an assignee of the revenues or claims with respect
thereto;
(i) Investments in prepaid expenses, negotiable instruments held for
collection, and lease, utility and worker's compensation, performance and other
similar deposits in the ordinary course of business consistent with past
practices; and
(j) other Investments in any Person having an aggregate fair market
value (measured on the date each such Investment was made and without giving
effect to subsequent changes in value), when taken together with all other
Investments made pursuant to this clause (j) that are at the time outstanding
not to exceed (1) $1.0 million in respect of Investments in any Person by New
Ventures and (2) $1.0 million in respect of Investments in any Person by the
Issuers or their Subsidiaries including New Ventures; provided, however, that
any Investment by New Ventures with respect to this clause (j) shall be
attributed, without duplication, to either subclause (1) hereof or subclause (2)
hereof.
"Permitted Liens" means:
(a) Liens created, or intended to be created, under the Collateral
Documents;
(b) Liens on assets of any of the Issuers or their Subsidiaries
securing Indebtedness that are permitted by clauses (c), (f) or (i) of the
second paragraph of Section 4.09;
(c) Liens in favor of any of the Issuers or their Subsidiaries;
(d) Liens on property of a Person existing at the time such Person
becomes a Subsidiary of the Issuers or New Ventures; provided, however, that
such Liens were in existence prior to the contemplation of such Person becoming
a Subsidiary of the Issuers or New Ventures and do not extend to any assets
other than those of the Person that becomes a Subsidiary of the Issuers or New
Ventures; provided, further, that such Person becomes a Subsidiary of the
Issuers or New Ventures as a result of a Permitted Investment pursuant to clause
(c) of the definition thereof;
(e) Liens on property existing at the time of acquisition of such
property by any of the Issuers or their Subsidiaries, provided, however, that
such Liens were in existence prior to the contemplation of such acquisition and
such property was acquired in exchange for, or in compromise of, Investments
existing as of the date hereof or Investments resulting from commitments to make
Investments existing as of the date hereof;
(f) Liens to secure the performance of statutory obligations, surety or
appeal bonds, performance bonds or other obligations of a like nature incurred
in the ordinary course of business;
(g) Liens on assets or rights which are not Note Collateral and which
secure Indebtedness permitted under any clause of Section 4.09 so long as the
Notes are repaid in full with the proceeds of, and concurrently with the
incurrence of, such Indebtedness;
(h) Liens existing on the date of this Indenture;
(i) Liens for taxes, assessments or governmental charges or claims that
are not yet delinquent or that are being contested in good faith by appropriate
proceedings or negotiations promptly instituted and diligently concluded,
provided, however, that any reserve or other appropriate provision as is
required in conformity with GAAP has been made therefor;
(j) Liens incurred in the ordinary course of business of the Issuers or
any Subsidiary of the Issuers with respect to obligations that are not
Indebtedness that do not exceed $1.0 million at any one time outstanding;
(k) Liens on assets of NLC or any Subsidiaries of the Issuers that
secure Non-Recourse Debt of NLC or such Subsidiaries;
(l) statutory Liens of landlords and carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen or other like Liens arising in the ordinary
course of business and with respect to amounts not yet delinquent for a period
of more than 90 days or which are being contested in good faith; provided,
however, that a reserve or other appropriate provision as shall be required by
GAAP shall have been made therefor;
(m) easements, rights-of-way, restrictions, zoning, minor defects or
irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the business or assets of the Issuers
or their Subsidiaries, taken as a whole, incurred in the ordinary course of
business;
(n) Liens arising by reason of any judgment not constituting an Event
of Default under this Indenture; provided, however, that:
(i) such Liens are being contested in good faith by
appropriate proceedings or negotiations, and
(ii) such Liens are adequately bonded or adequate reserves
have been established on the books of the Issuers in accordance with GAAP;
(o) Uniform Commercial Code financing statements filed for
precautionary purposes in connection with any true lease of property leased by
any of the Issuers or their Subsidiaries; provided, however, that any such
financing statement does not cover any property other than the property subject
to such lease and the proceeds thereof; and
(p) renewals or refundings of Indebtedness expressly permitted by the
Indenture secured by any Liens referred to in clauses (a), (b), (d), (e), (g),
(h) and (k) above; provided, however, that:
(i) such new Liens will be limited to all or part of the same
property that secured the original Liens (plus improvements to or on such
property); and
(ii) the principal amount of the Indebtedness secured by such
Liens at such time is not increased to any amount greater than the sum of (1)
the outstanding principal amount or, if greater, committed amount of the
Indebtedness described under clauses (a), (b), (d), (e), (g), (h) and (k) above
immediately prior to such renewal or refunding, and (2) an amount necessary to
pay any fees and expenses, including premiums, related to such renewals or
refundings.
"Permitted Refinancing Indebtedness" means any Indebtedness of any of
the Issuers or their Subsidiaries issued in exchange for, or the net proceeds of
which are used to extend, refinance, renew, replace, defease or refund other
Indebtedness of any of the Issuers or their Subsidiaries (other than
intercompany Indebtedness); provided, however, that:
(a) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness extended, refinanced,
renewed, replaced, defeased or refunded (plus all accrued interest on the
Indebtedness and the amount of all expenses and premiums incurred in connection
therewith);
(b) such Permitted Refinancing Indebtedness has a final maturity date
later than the final maturity date of, and has a Weighted Average Life to
Maturity equal to or greater than the Weighted Average Life to Maturity of, the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded;
(c) if the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded is subordinated in right of payment to the Notes, such
Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and is subordinated in right of payment to, the Notes on
terms at least as favorable to the Holders of the Notes as those contained in
the documentation governing the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded;
(d) such Permitted Refinancing Indebtedness is incurred either by the
Issuers or by the Subsidiary which is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded;
(e) the covenants contained in the documentation governing such
Permitted Refinancing Indebtedness are no more restrictive than the covenants
contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and
(f) if more than 30 days remain until the maturity date of the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded, the interest rate of such Permitted Refinancing Indebtedness does not
exceed the interest rate of the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government (or any agency, instrumentality or
political subdivision thereof).
"Plan" means the First Amended Joint Plan of Reorganization of
Comdisco, Inc. and its Affiliated Debtors and Debtors In Possession dated as of
June 13, 2002, as amended, modified or otherwise supplemented through the
Effective Date.
"Pledge Agreement" means the Pledge Agreement, dated as of the
Effective Date, among the Issuers and the Trustee, as amended, modified or
supplemented from time to time.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Effective Date, by and among the Issuers and the
other parties named on the signature pages thereof, as such agreement may be
amended, modified or supplemented from time to time.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the corporate trust department of the Trustee located at the
Corporate Trust Office of the Trustee (or any successor group of the Trustee) or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Scheduled Cash Reserve Amount" means the respective amount set forth
on Schedule A hereto allocated among the Subsidiaries of the Company as the
Company's Board of Directors deems appropriate.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Stated Maturity" means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which the payment of
interest or principal was scheduled to be paid in the original documentation
governing such Indebtedness, and will not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Stay Bonus Plan" has the meaning given to that term in the Disclosure
Statement.
"Subordinated Note Indenture" means the indenture, dated as of the date
of this Indenture, to be executed by the Issuers and the Subordinated Note
Trustee, pursuant to which the Subordinated Notes will be issued.
"Subordinated Note Trustee" means ▇▇▇▇▇ Fargo Bank Minnesota, National
Association in its capacity as trustee under the Subordinated Note Indenture and
any successor trustee, if any, under the Subordinated Note Indenture.
"Subordinated Notes" means the 11% Subordinated Secured Notes due 2005
issued pursuant to the Subordinated Note Indenture.
"Subsidiary" means, with respect to any specified Person:
(a) any corporation, association or other business entity of which more
than 50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees of the corporation, association or other
business entity is at the time owned or controlled, directly or indirectly, by
that Person or one or more of the other Subsidiaries of that Person (or a
combination thereof); and
(b) any partnership (i) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (ii)
the only general partners of which are that Person or one or more Subsidiaries
of that Person (or any combination thereof).
"Supplemental Distribution Account" has the meaning given to that term
in the Plan.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ▇▇.▇▇.
77aaa-77bbbb), as amended, as in effect on the date hereof until such time as
this Indenture is qualified under the TIA and thereafter as in effect on the
date on which this Indenture is qualified under the TIA.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Cash" means cash or cash equivalents as set forth on the
balance sheets of the Issuers and their Subsidiaries prepared in accordance with
GAAP as of 5:00 p.m. on the last day of the applicable fiscal quarter minus,
without duplication, the sum of cash or cash equivalents (i) held in
non-domestic accounts in the ordinary operation of the business, (ii) required
to be shown as restricted cash or cash equivalents in accordance with GAAP on
such balance sheet (or the notes thereto) or otherwise unavailable to Issuers
and their Subsidiaries for general use as a result of the Plan, applicable law
or agreement with a third party, (iii) held or maintained in the Disputed Claims
Reserve, (iv) held or maintained in the Supplemental Distribution Account, (v)
held or maintained in the cash account pledged to the issuers of letters of
credit under the Letter of Credit Facility and (vi) held or required to be held
in an escrow account or otherwise legally segregated from the funds of the
Issuers and their Subsidiaries pursuant to the Stay Bonus Plan and/or the
Management Incentive Plan.
"Voting Stock" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(a) the sum of the products obtained by multiplying (i) the amount of
each then remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect of the
Indebtedness, by (ii) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment;
by
(b) the then outstanding principal amount of such Indebtedness.
Section 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Affiliate Transaction"......................................... 4.10
"Authentication Order" ......................................... 2.02
"Change in Control Offer"....................................... 4.14
"Change in Control Repurchase Date"............................. 4.14
"Change in Control Repurchase Price"............................ 4.14
"DTC"........................................................... 2.03
"Event of Default".............................................. 6.01
"incur"......................................................... 4.09
"Offer"......................................................... 3.09
"Offer Period".................................................. 3.09
"Paying Agent".................................................. 2.03
"Permitted Debt"................................................ 4.09
"Registrar"..................................................... 2.03
"Restricted Payments"........................................... 4.07
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"Commission" means the SEC;
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes means the Company and NLC and any successor
obligor upon the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular;
(e) provisions apply to successive events and transactions; and
(f) references to sections of or rules under the Securities Act and
the Exchange Act shall be deemed to include substitute, replacement of
successor sections or rules adopted by the SEC from time to time.
ARTICLE 2.
THE NOTES
Section 2.01. Form and Dating.
(a) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage, as applicable. Each Note shall be dated the date of
its authentication. The Notes shall be in denominations of $1,000 and integral
multiples thereof; provided, however, that the Notes may be in denominations
(rounded to the nearest whole dollar) of less than $1,000 (but in no event
less than $1.00) to make redemptions of Notes pursuant to Section 3.07 and
3.08 hereof.
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Indenture, and the Issuers and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
(b) Global Notes. Except as expressly required by the terms of this
Indenture, Notes shall be issued in global form substantially in the form of
Exhibit A attached hereto (including the Global Note Legend thereon and the
"Schedule of Exchanges of Interests in the Global Note" attached thereto).
Notes otherwise issued in definitive form shall be substantially in the form
of Exhibit A attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions and transfers of interests
therein in accordance with this Indenture. Any endorsement of a Global Note to
reflect the amount of any increase or decrease in the aggregate principal
amount of outstanding Notes represented thereby shall be made by the Trustee
or the Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06 hereof.
Section 2.02. Execution and Authentication.
Two (2) Officers of both the Company and NLC shall sign the Notes for
the Company and NLC, respectively. The signatures of any of those Officers on
the Notes may be either a manual or a facsimile signature. If an Officer whose
signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of an authorized signatory of the Trustee on the certificate of authentication
of the Note. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee shall, upon a written order of the Issuers signed by two
(2) Officers of both the Company and NLC specifying the date on which the Notes
are to be authenticated and whether the Notes are Definitive Notes or Global
Notes (an "Authentication Order"), authenticate Notes for original issue up to
the aggregate principal amount stated in the Notes. The aggregate principal
amount of Notes outstanding at any time may not exceed such amount except as
provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Issuers to authenticate Notes. The Issuers shall pay all reasonable fees payable
to the authenticating agent. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
The Issuers shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Issuers may change any
Paying Agent or Registrar upon prior written notice to the Trustee without
notice to any Holder. The Issuers shall notify the Trustee in writing of the
name and address and any change in the name or address of any Agent not a party
to this Indenture. If the Issuers fail to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Issuers or any of
their Subsidiaries may act as Paying Agent or Registrar.
The Issuers shall enter into an appropriate agency agreement with any
agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such agent and shall, if required,
incorporate the provisions of the TIA.
The Issuers initially appoint The Depository Trust Company ("DTC") to
act as Depositary with respect to the Notes.
The Issuers initially appoint the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Issuers shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal or premium, if any, or interest on the Notes, and will notify the
Trustee of any default by the Issuers in making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Issuers at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Issuers or a Subsidiary of the Issuers) shall
have no further liability for the money delivered to the Trustee. If either the
Company or NLC, or a Subsidiary of the Company or NLC, acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon any bankruptcy or reorganization
proceedings relating to the Issuers, the Trustee shall serve as Paying Agent for
the Notes.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Issuers shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes, including the aggregate principal amount held by each Holder, and the
Issuers shall otherwise comply with TIA ss. 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Notes will be exchanged by the Company for Definitive Notes if (i) the Issuers
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Issuers within 90 days after the date of
such notice from the Depositary or (ii) following the occurrence and during
the continuation of a Default or Event of Default, any Person holding a
beneficial interest in a Global Note requests that the Global Notes should be
exchanged for Definitive Notes and delivers a written notice to such effect to
the Trustee. Upon the occurrence of either of the preceding events in (i) or
(ii) above, Definitive Notes shall be issued in such names as the Depositary
shall instruct the Trustee. Global Notes also may be exchanged or replaced, in
whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or
any portion thereof, pursuant to this Section 2.06 or Sections 2.07 or 2.10
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.06(a); provided, however, that beneficial interests
in a Global Note may be transferred and exchanged as provided in Section
2.06(b) or (c) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. No written orders or
instructions shall be required to be delivered to the Registrar to effect the
transfers of beneficial interests in a Global Note.
(c) Transfer or Exchange of Beneficial Interests in Global Notes for
Definitive Notes. If any holder of a beneficial interest in a Global Note
proposes to exchange such beneficial interest for a Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in
the form of a Definitive Note, then the Trustee shall cause the aggregate
principal amount of the applicable Global Note to be reduced accordingly
pursuant to Section 2.06(g) hereof, and the Company shall execute and the
Trustee shall authenticate and deliver to the Person designated in the
instructions a Definitive Note in the appropriate principal amount. Any
Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the Depositary
and the Participant or Indirect Participant.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests in Global Notes. A Holder of a Definitive Note may exchange such
Note for a beneficial interest in a Global Note or transfer such Definitive
Note to a Person who takes delivery thereof in the form of a beneficial
interest in a Global Note at any time. Upon receipt of a request for such an
exchange or transfer, the Trustee shall cancel the applicable Definitive Note
and increase or cause to be increased the aggregate principal amount of one of
the Global Notes.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of
transfer or exchange, the requesting Holder shall present or surrender to the
Registrar the Definitive Notes duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly executed by
such Holder or by its attorney, duly authorized in writing. A Holder of
Definitive Notes may transfer such Notes to a Person who takes delivery
thereof in the form of a Definitive Note.
(f) Legends. The following legends shall appear on the face of all
Global Notes issued under this Indenture in substantially the following form
unless specifically stated otherwise in the applicable provisions of this
Indenture.
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 8.05 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE OR IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT
TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO
A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF COMDISCO HOLDING
COMPANY, INC. AND COMDISCO, INC."
(g) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to
or retained and canceled by the Trustee in accordance with Section 2.11
hereof. At any time prior to such cancellation, if any beneficial interest in
a Global Note is exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note
or for Definitive Notes, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on
such Global Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Issuers shall execute and the Trustee shall authenticate Global Notes
and Definitive Notes upon the Issuers' order or at the Registrar's
request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Trustee or
the Issuers may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar governmental
charge payable upon exchange or transfer pursuant to Sections 2.10,
3.06, 3.09, 4.14 and 8.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Issuers, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(v) The Issuers shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 hereof and
ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Note so selected for
redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding
interest payment date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Issuers may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes,
and none of the Trustee, any Agent or the Issuers shall be affected
by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(viii) All certifications and certificates required to be
submitted to the Registrar pursuant to this Section 2.06 to effect a
registration of transfer or exchange may be submitted by facsimile.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Issuers and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Issuers shall issue and the Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Issuers, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Issuers to protect the Issuers, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Issuers may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Issuers and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note
does not cease to be outstanding because the Company or NLC, or an Affiliate of
the Company or NLC, holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Issuers, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Issuers or any of its Affiliates or held or maintained in the Disputed Claims
Reserve, shall be considered as though not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes that the Trustee has actual
knowledge are so owned shall be so disregarded.
Section 2.10. Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Issuers may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the Issuers
considers appropriate for temporary Notes and as shall be reasonably acceptable
to the Trustee. Without unreasonable delay, the Issuers shall prepare and the
Trustee shall authenticate Definitive Notes in exchange for temporary Notes.
After the preparation of Definitive Notes, the temporary Notes shall be
exchangeable for Definitive Notes upon surrender of the temporary Notes at the
office or agency maintained by the Issuers for such purpose pursuant to Section
4.02 hereof, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Notes, the Issuers shall execute, and the Trustee
shall authenticate and make available for delivery, in exchange thereof the same
aggregate principal amount of Definitive Notes of authorized denominations.
Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
Section 2.11. Cancellation.
The Issuers at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
canceled Notes in accordance with its normal practice and applicable law.
Certification of the destruction of all canceled Notes shall be delivered to the
Issuers. The Issuers may not issue new Notes to replace Notes that it has
redeemed or repurchased or paid or that have been delivered to the Trustee for
cancellation.
Section 2.12. Defaulted Interest.
If the Issuers default in a payment of interest on the Notes, the
Issuers shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who
are Holders on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01 hereof. The Issuers shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each Note and the date of the proposed payment. The Issuers shall, with the
consent of the Trustee, fix or cause to be fixed each such special record date
and payment date, provided, however, that each such special record date shall be
at the earliest practicable date but in all events shall not be less than five
Business Days prior to the related payment date for such defaulted interest. At
least 15 days before the special record date, the Issuers (or, upon the written
request of the Issuers, the Trustee in the name and at the expense of the
Issuers) shall mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of such interest to
be paid.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Issuers elect to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 or are required to redeem Notes pursuant
to Section 3.08, the Issuers shall furnish to the Trustee, at least 10 days but
not more than 60 days before an optional redemption date pursuant to Section
3.07 or at least 10 days but not more than 30 days before a mandatory redemption
date pursuant to Section 3.08, an Officers' Certificate setting forth (i) that
the redemption is an optional redemption pursuant to Section 3.07 or an
mandatory redemption pursuant to Section 3.08, (ii) the redemption date, (iii)
the principal amount of Notes to be redeemed and (iv) the redemption price.
Section 3.02. Selection of Notes to Be Redeemed or Repurchased.
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee shall select the Notes to be redeemed
or purchased among the Holders of the Notes pro rata in accordance with the
outstanding principal amount of the Notes outstanding immediately prior to such
redemption or purchase.
The Trustee shall promptly notify the Issuers, the Registrar and the
Paying Agent in writing of the Notes selected for redemption and, in the case of
any Note selected for partial redemption, the principal amount thereof to be
redeemed. Notes and portions of Notes selected to be redeemed may be in whole
dollar amounts of less than $1,000. Provisions of this Indenture that apply to
Notes called for redemption also apply to portions of Notes called for
redemption.
Section 3.03. Notice of Redemption.
Subject to the provisions of Sections 3.08 and 3.09 hereof, at least 10
days but not more than 60 days before an optional redemption date pursuant to
Section 3.07 or at least 10 days but not more than 30 days before a mandatory
redemption date pursuant to Section 3.08, the Issuers shall mail or cause to be
mailed, by first class mail, a notice of redemption to each Holder whose Notes
are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note;
(d) the name and address of the Paying Agent to which the
Notes are to be surrendered for redemption;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(f) that, unless the Issuers default in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or
printed on the Notes.
At the Issuers' request, the Trustee shall give the notice of
redemption in the Issuers' name and at the Issuers' expense; provided, however,
that the Issuers shall have delivered to the Trustee, at least 5 Business Days
prior to the date on which any notice of redemption pursuant to this Article 3
is requested to be mailed by the Trustee, Officers' Certificates requesting that
the Trustee give such notice and setting forth the information to be stated in
such notice as provided in the preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional. Failure to give notice or any defect in the notice to any Holder
shall not affect the validity of the notice to any other Holder.
Section 3.05. Deposit of Redemption Price.
Prior to 11:00 a.m., Chicago time, not less than one Business Day prior
to the redemption date, the Issuers shall deposit with the Trustee or with the
Paying Agent money sufficient to pay the redemption price of and accrued
interest (subject to the right of Holders of record on the relevant record date
to receive interest due on the related interest payment date) on all Notes to be
redeemed on that date. The Trustee or the Paying Agent shall promptly return to
the Issuers any money deposited with the Trustee or the Paying Agent by the
Issuers in excess of the amounts necessary to pay the redemption price of, and
accrued interest on, all Notes to be redeemed.
If the Issuers comply with the provisions of the preceding paragraph,
on and after the redemption date, interest shall cease to accrue on the Notes or
the portions of Notes called for redemption. If a Note is redeemed on or after
an interest record date but on or prior to the related interest payment date,
then any accrued and unpaid interest shall be paid to the Person in whose name
such Note was registered at the close of business on such record date. If any
Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Issuers to comply with the preceding paragraph,
interest shall be paid on the unpaid principal, from the redemption date until
such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in
Section 4.01 hereof.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Issuers shall
issue and, upon the Issuers' written request, the Trustee shall authenticate for
the Holder at the expense of the Issuers a new Note equal in principal amount to
the unredeemed portion of the Note surrendered.
Section 3.07. Optional Redemption.
(a) The Issuers may, at its option at any time after the Effective
Date, redeem the Notes, in whole or in part, on at least 10 days' but not more
than 60 days' notice to each Holder of Notes to be redeemed in cash at its
registered address, at a redemption price equal to 100% of the principal
amount thereof plus accrued and unpaid interest thereon to the redemption date.
(b) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption.
(a) The Issuers shall be required to make mandatory redemptions of
the Notes on or before the 45th day after the end of each fiscal quarter
ending on September 30, December 31, March 31 and June 30 of each year
pursuant to which the Issuers will redeem a principal amount of Notes equal to
Excess Cash as of the end of the immediately preceding fiscal quarter;
provided, however, that the Issuers shall not be obligated to make any
redemption pursuant to this Section 3.08 of less than $1.0 million principal
amount of Notes unless the principal amount of Notes then outstanding is less
than or equal to the principal amount of Notes otherwise required to be
redeemed pursuant to this Section 3.08 without giving effect to this proviso.
Any such mandatory redemption shall be made on at least 10 days' but not more
than 30 days' notice to each Holder of the Notes to be redeemed in cash at its
registered address, at a redemption price equal to 100% of the principal
amount thereof plus accrued and unpaid interest thereon to the redemption date.
(b) Any redemption pursuant to this Section 3.08 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
Section 3.09. Offers to Repurchase by the Issuers.
In the event that, pursuant to Section 4.14 hereof, the Issuers shall
be required to commence an offer to all Holders to purchase Notes (an "Offer"),
it shall follow the procedures specified below.
The Offer shall remain open for a period of 20 Business Days following
its commencement and no longer, except to the extent that a longer period is
required by applicable law (the "Offer Period"). No later than the applicable
Change in Control Repurchase Date, the Issuers shall purchase all Notes tendered
in response to the Offer.
If the applicable Change in Control Repurchase Date is on or after an
interest record date and on or before the related interest payment date, any
accrued and unpaid interest shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and no additional
interest shall be payable to Holders who tender Notes pursuant to the Offer;
provided, however, that if the Issuers, the Depositary or the Paying Agent, as
the case may be, fail to mail or deliver to each tendering Holder an amount
equal to the purchase price of the Notes tendered by such Holder and accepted by
the Issuers for purchase pursuant to this Section 3.09, interest shall be paid
by the Issuers on the unpaid principal from such interest record date until such
principal is paid and to the extent lawful on any interest not paid on such
interest, in each case at the rate provided in the Notes.
Upon the commencement of an Offer, the Issuers shall send, by first
class mail, a written notice to the Trustee and each of the Holders, with a copy
to the Trustee. Such notice shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to the Offer. The
Offer shall be made to all Holders. The notice, which shall govern the terms of
the Offer, shall state:
(a) that the Offer is being made pursuant to this Section 3.09 and
Section 4.14 hereof and the length of time the Offer shall remain open;
(b) the Change in Control Repurchase Price and the Change in Control
Repurchase Date;
(c) that any Note not tendered or accepted for payment shall continue
to accrue interest;
(d) that, unless the Issuers default in making such payment, any Note
accepted for payment pursuant to the Offer shall cease to accrue interest
after the Change in Control Repurchase Date;
(e) that Holders electing to have a Note purchased pursuant to an
Offer may elect to have Notes purchased in whole or in part;
(f) that Holders electing to have a Note purchased pursuant to any
Offer shall be required to surrender the Note, with the form entitled "Option
of Holder to Elect Purchase" on the reverse of the Note completed, or transfer
by book-entry transfer, to the Issuers, a depositary, if appointed by the
Issuers, or a Paying Agent at the address specified in the notice at least ten
days before the Change in Control Repurchase Date;
(g) that Holders shall be entitled to withdraw their election if the
Issuers, the depositary or the Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased; and
(h) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry transfer).
On or before the Change in Control Repurchase Date, the Issuers shall,
to the extent lawful, accept for payment, all Notes tendered, and shall deliver
to the Trustee Officers' Certificates stating that such Notes or portions
thereof were accepted for payment by the Issuers in accordance with the terms of
this Section 3.09. The Issuers, the Depositary or the Paying Agent, as the case
may be, shall promptly (but in any case not later than five days after the
Change in Control Repurchase Date) mail or deliver to each tendering Holder an
amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Issuers for purchase, and the Issuers shall promptly issue a new
Note, and the Trustee, upon written request from the Issuers shall authenticate
and mail or deliver such new Note to such Holder, in a principal amount equal to
any unpurchased portion of the Note surrendered. Any Note not so accepted shall
be promptly mailed or delivered by the Issuers to the Holder thereof. The
Issuers shall publicly announce the results of the Offer on or as soon as
reasonably practicable following the Change in Control Repurchase Date.
Other than as specifically provided in this Section 3.09, any purchase
pursuant to this Section 3.09 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Notes.
The Issuers shall pay or cause to be paid the principal of, premium, if
any, and interest on the Notes on the dates and in the manner provided in the
Notes. Principal, premium, if any, and interest shall be considered paid on the
date due if the Paying Agent, if other than the Issuers or a Subsidiary of the
Issuers, holds as of 12:00 noon Eastern Time on the due date, money deposited by
the Issuers in immediately available funds and designated for and sufficient to
pay all principal, premium, if any, and interest then due.
The Issuers shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal at the rate equal to
1% per annum in excess of the then applicable interest rate on the Notes to the
extent lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
Section 4.02. Maintenance of Office or Agency.
The Issuers shall maintain in the Borough of Manhattan, the City of
New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Issuers in respect of the Notes and this Indenture may be served. The
Issuers shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Issuers
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Issuers hereby appoint the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Issuers may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Issuers of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of
New York for such purposes. The Issuers shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Issuers hereby designate the corporate trust office of the
Trustee's Agent located at c/o the Depository Trust Company, 1st Floor, TADS
Department, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as one such office or
agency of the Issuers in accordance with Section 2.03.
Section 4.03. Reports.
Whether or not required by the rules and regulations of the SEC, so
long as any Notes are outstanding, the Company shall furnish to the Trustee
and the Holders of Notes within the time periods specified in the SEC's rules
and regulations (i) all quarterly and annual financial information that would
be required to be contained in a filing with the SEC on Forms 10-Q and 10-K
(or any successor forms) if the Company was required to file such forms,
including a "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and, with respect to the annual information only, a
report on the annual financial statements by the Company's certified
independent accountants and (ii) all current reports that would be required to
be filed with the SEC on Form 8-K (or any successor forms) if the Company were
required to file such reports. In addition, whether or not required by the
rules and regulations of the SEC, the Company shall file a copy of all such
information and reports with the SEC for public availability within the time
periods specified in the SEC's rules and regulations (unless the SEC will not
accept such a filing) and make such information available to securities
analysts and prospective investors upon request. The Company shall at all
times comply with TIA ss. 314(a).
Section 4.04. Compliance Certificate.
(a) The Issuers shall deliver to the Trustee, within 120 days after the end of
each fiscal year, an Officers' Certificate stating that a review of the
activities of the Issuers and their Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether each of the Issuers and their Subsidiaries has kept,
observed, performed and fulfilled their obligations under this Indenture, and
further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge each of the Issuers has kept, observed, performed
and fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions of this Indenture (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he or she
may have knowledge and what action each of the Issuers, as the case may be, is
taking or propose to take with respect thereto) and that to the best of his or
her knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes is
prohibited or if such event has occurred, a description of the event, its nature
and status and what action each of the Issuers, as the case may be, is taking or
propose to take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03 above shall be accompanied by a
written statement of the Company's independent public accountants (who shall
be a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Issuers shall, so long as any of the Notes are outstanding,
deliver to the Trustee, within 10 days after any executive officer of either
of the Issuers becomes aware of any Event of Default, an Officers' Certificate
specifying such Event of Default, the period of existence thereof and what
action each of the Issuers, as the case may be, is taking or proposes to take
with respect thereto.
(d) In the event that the Subordinated Notes are declared due and
payable before the Stated Maturity of such Indebtedness because of the
occurrence of an event of default thereunder, the Issuers shall give prompt
notice in writing of such happening to the Trustee.
Section 4.05. Taxes.
The Issuers shall, and shall cause each of their Subsidiaries to, pay
or discharge, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or negotiations or where the failure to effect such
payment is not adverse in any material respect to the Holders of the Notes.
Section 4.06. Stay, Extension and Usury Laws.
The Issuers covenant (to the extent that it may lawfully do so) that
they shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law or other
law that would prohibit or forgive the Issuers from paying all or any portion of
the principal of, premium, if any, or interest on the Notes in accordance with
this Indenture, wherever enacted, now or at any time hereafter in force, that
may affect the covenants or the performance of this Indenture, and the Issuers
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
Section 4.07. Restricted Payments.
The Issuers shall not, and shall not permit any of their Subsidiaries
to, directly or indirectly: (a) declare or pay any dividend or make any other
payment or distribution on account of the Issuers' or any of their Subsidiaries
Equity Interests (including, without limitation, any payment in connection with
any merger or consolidation involving the Issuers or any of their Subsidiaries)
or to the direct or indirect holders of the Issuers' or any of their
Subsidiaries' Equity Interests in their capacity as such (other than dividends
or distributions payable in Equity Interests (other than Disqualified Stock) of
the Issuers or any Subsidiary of the Issuers or payable to the Issuers or a
Subsidiary of the Issuers); (b) purchase, redeem or otherwise acquire or retire
for value (including, without limitation, in connection with any merger or
consolidation involving the Issuers) any Equity Interests of the Issuers or any
of their Subsidiaries held by any Person (other than the Issuers or any of its
Subsidiaries); (c) make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Indebtedness that is
subordinated to the Notes, except a payment of interest or principal and
premium, if any, at the Stated Maturity thereof; or (d) make any Restricted
Investment (all such payments and other actions set forth in these clauses (a)
through (d) being collectively referred to as "Restricted Payments").
So long as no Default has occurred and is continuing or would be caused
thereby, the preceding provisions shall not prohibit: (a) the redemption,
repurchase, retirement, defeasance or other acquisition of any Subordinated
Notes in exchange for, or out of the net cash proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Issuers) of, Equity Interests
of the Issuers (other than Disqualified Stock); (b) the defeasance, redemption,
repurchase or other acquisition of subordinated Indebtedness of any of the
Issuers or their Subsidiaries with the net cash proceeds from an incurrence of
Permitted Refinancing Indebtedness; (c) the payment of any dividend by NLC or a
Subsidiary of the Issuers to the holders of its Equity Interests on a pro rata
basis; and (d) the making of a Change in Control offer to repurchase the
Subordinated Notes after a Change in Control.
Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries.
The Issuers shall not, and shall not permit any of their Subsidiaries
to, directly or indirectly, create or permit to exist or become effective any
consensual encumbrance or restriction on the ability of any Subsidiary to: (a)
pay dividends or make any other distributions on its Capital Stock to the
Issuers or any Subsidiaries, or with respect to any other interest or
participation in, or measured by, its profits, or pay any Indebtedness owed to
the Issuers or any of their Subsidiaries; (b) make loans or advances to the
Issuers or any of their Subsidiaries; or (c) transfer any of its properties or
assets to the Issuers or any of their Subsidiaries.
However, the preceding restrictions shall not apply to encumbrances or
restrictions existing under or by reason of:
(a) agreements governing Existing Indebtedness as in effect on the
date of this Indenture and any amendments, supplements, refinancings,
replacement, extensions, defeasance, refundings, renewals, restatements,
revisions or other modifications to those agreements; provided, however, that
the amendments, supplements, refinancings, replacement, extensions,
defeasance, refundings, renewals, restatements, revisions or other
modifications are no more restrictive, taken as a whole, with respect to such
dividend and other payment restrictions than those contained in those
agreements on the date of this Indenture and do not increase the amount of the
Indebtedness;
(b) this Indenture and the Notes;
(c) the Subordinated Note Indenture and the Subordinated Notes;
(d) applicable law;
(e) customary non-assignment provisions in any contract or licensing
agreement entered into in the ordinary course of business and consistent with
past practices;
(f) purchase money obligations permitted to be incurred pursuant to
clause (c) of the second paragraph of Section 4.09 that impose restrictions on
that property of the nature described in clause (c) of the preceding paragraph
of this Section 4.08;
(g) any agreement for the sale or other disposition of NLC or a
Subsidiary that restricts distributions by NLC or that Subsidiary pending its
sale or other disposition;
(h) Permitted Refinancing Indebtedness, provided, however, that the
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are no more restrictive, taken as a whole, than those contained
in the agreements governing the Indebtedness being refinanced;
(i) Liens securing Indebtedness otherwise permitted to be incurred
under the provisions of Section 4.11 that limit the right of the debtor to
dispose of the assets subject to such Liens;
(j) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements, assets sale agreements, stock
sale agreements and other similar agreements entered into in the ordinary
course of business; and
(k) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business.
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.
The Issuers shall not, and shall not permit any of their Subsidiaries
to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise
become directly or indirectly liable, contingently or otherwise, with respect to
(collectively, "incur") any Indebtedness (including Acquired Debt), and the
Issuers shall not issue any Disqualified Stock and shall not permit any of their
Subsidiaries to issue any shares of preferred stock.
The first paragraph of this Section 4.09 shall not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(a) the incurrence by the Issuers and their Subsidiaries of the
Existing Indebtedness;
(b) the incurrence by the Issuers of Indebtedness represented by the
Notes and the Subordinated Notes;
(c) with respect to lease or rental commitments to lessees (i)
existing as of the date hereof or (ii) permitted to be incurred by Foreign
Subsidiaries after the date hereof in accordance with Section 4.12, the
incurrence by the Issuers or any of their Subsidiaries of Indebtedness
represented by purchase money obligations incurred for the purpose of
financing all or any part of the purchase price or cost of equipment leased or
sold to, or otherwise financed for, a customer of the business of the Issuers
or such Subsidiary, in an aggregate principal amount, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or replace any
Indebtedness incurred pursuant to this clause (c), not to exceed $10.0 million
at any time outstanding;
(d) the incurrence by (i) the Issuers or any of their Subsidiaries or
(ii) with respect to clause (b) of this Section 4.09, the Issuers, of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to refund, refinance or replace Indebtedness (other than
intercompany Indebtedness) that was permitted by this Indenture to be incurred
under clauses (a), (b), (c), (d), (g), (i) or (k) of this paragraph;
(e) the incurrence by the Issuers or any of their Subsidiaries of
intercompany Indebtedness between or among the Issuers and any of their
Subsidiaries; provided, however, that:
(i) if either the Company or NLC is the obligor on such
Indebtedness, such Indebtedness must be expressly subordinated to the
prior payment in full in cash of all Obligations with respect to the
Notes; and
(ii) (1) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a
Person other than the Issuers or a Subsidiary of the Issuers and (2)
any sale or other transfer of any such Indebtedness to a Person that
is not either the Company, NLC or a Subsidiary of the Issuers shall
be deemed, in each case, to constitute an incurrence of such
Indebtedness by the Issuers or such Subsidiary, as the case may be,
that was not permitted by this clause (e);
(f) the incurrence by the Issuers or any of their Subsidiaries of
Hedging Obligations that are incurred for the purpose of fixing or hedging
interest rate risk with respect to any floating rate Indebtedness that is
permitted by the terms of this Indenture to be outstanding or for the purpose
of fixing or hedging currency risk;
(g) the accrual of interest, the accretion or amortization of
original issue discount, the payment of interest on any Indebtedness in the
form of additional Indebtedness with the same terms, and the payment of
dividends on Disqualified Stock in the form of additional shares of the same
class of Disqualified Stock shall not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this Section
4.09;
(h) Indebtedness of the Issuers or any Subsidiary to the extent that
the net proceeds thereof are promptly:
(i) used to purchase Notes tendered in an offer to purchase
made as a result of a Change in Control; or
(ii) used to redeem Notes pursuant to Section 3.08 hereof.
(i) the incurrence by the Issuers or any of their Subsidiaries of
additional Indebtedness (including Acquired Debt) in an aggregate principal
amount (or accreted value, as applicable) at any time outstanding, including
all Permitted Refinancing Indebtedness incurred to refund, refinance or
replace any Indebtedness incurred pursuant to this clause (i), not to exceed
$5.0 million;
(j) the incurrence of Non-Recourse Debt; provided, however, that if
any such Indebtedness ceases to be Non-Recourse Debt, such event shall be
deemed to constitute an incurrence of Indebtedness by a Subsidiary of the
Issuers that was not permitted by this clause (j); and
(k) obligations in respect of letters of credit, performance and
surety bonds and completion guarantees provided by the Issuers or any
Subsidiary of the Issuers in the ordinary course of business, including
pursuant to the Letter of Credit Facility.
The Issuers shall not incur any Indebtedness (including Permitted Debt)
that is contractually subordinated in right of payment to any other Indebtedness
of the Issuers (other than the Notes or the Subordinated Notes) unless such
Indebtedness is also contractually subordinated in right of payment to the Notes
on substantially identical terms; provided, however, that no Indebtedness of the
Issuers shall be deemed to be contractually subordinated in right of payment to
any other Indebtedness of the Issuers solely by virtue of being unsecured.
For purposes of determining compliance with this Section 4.09, in the
event that an item of proposed Indebtedness meets the criteria of more than one
of the categories of Permitted Debt described in clauses (a) through (k) above,
the Company shall be permitted to classify such item of Indebtedness on the date
of its incurrence, or later reclassify all or a portion of such item of
Indebtedness, in any manner that complies with this Section 4.09.
Section 4.10. Transactions with Affiliates.
The Issuers shall not, and shall not permit any of their Subsidiaries
to, make any payment to, or sell, lease, transfer or otherwise dispose of any of
its properties or assets to, or purchase any property or assets from, or enter
into or make or amend any transaction, contract, agreement, understanding, loan,
advance or Guarantee with, or for the benefit of, any Affiliate (each, an
"Affiliate Transaction"), unless:
(a) the Affiliate Transaction is on terms that are no less favorable
to the Issuers or the relevant Subsidiary than those that would have been
obtained in a comparable transaction by the Issuers or such Subsidiary with an
unrelated Person; and
(b) the Issuers delivers to the Trustee:
(i) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $500,000, resolutions of the Board of Directors of the
Issuers, as the case may be, set forth in an Officers' Certificate
certifying that such Affiliate Transaction complies with this
covenant and that such Affiliate Transaction has been approved by a
majority of the disinterested members of the Board of Directors of
the Company; and
(ii) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in
excess of $2.5 million, an opinion as to the fairness to the Holders
of such Affiliate Transaction from a financial point of view issued
by an accounting, appraisal or investment banking firm of national
standing.
The following items shall not be deemed to be Affiliate Transactions
and, therefore, shall not be subject to the provisions of the prior paragraph:
(a) any employment agreement that is in effect on the date of this
Indenture or that is entered into by the Issuers or any of their Subsidiaries
with approval by a majority of the disinterested members of the Board of
Directors of the Company;
(b) transactions between or among one or more of the Company and/or
NLC and/or their respective Subsidiaries;
(c) payment of reasonable directors fees to Persons who are not
otherwise Affiliates of the Issuers;
(d) Restricted Payments that are permitted by Section 4.07;
(e) advances to Officers of any of the Issuers or their Subsidiaries
in the ordinary course of business to provide for the payment of reasonable
expenses incurred by such Persons in the performance of their responsibilities
to the Issuers or such Subsidiary or in connection with any relocation;
(f) reasonable fees and compensation (including, without limitation,
bonuses, retirement plans and securities, equity options and equity ownership
plans, and payments, bonuses or other incentives offered pursuant to the
Management Incentive Plan) paid or issued to and indemnities provided on
behalf of, Officers, directors, employees or consultants of the Issuers or any
Subsidiary in the ordinary course of business; and
(g) any other transactions expressly authorized by the Court pursuant
to the Plan or any order entered by the Court in respect thereof.
Section 4.11. Liens.
The Issuers shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly (a) create, incur, assume or suffer to exist any Lien of
any kind securing Indebtedness or trade payables on any asset of the Issuers or
any of its Subsidiaries now owned or hereafter acquired or on any income or
profits therefrom, or (b) assign or convey any right to receive income
therefrom, securing Indebtedness, except in each case for Permitted Liens.
Section 4.12. Line of Business.
Subject to, and without limitation to the provisions restricting the
business operations of the Company contained in the articles of incorporation,
certificate of incorporation or similar organizational document of the Company,
the Issuers shall not, and shall not permit any Subsidiary to, engage in any
business other than the Permitted Business except (i) to such extent as would
not be material to the financial condition of the Issuers and their Subsidiaries
taken as a whole and as may arise in connection with, or as a result of, the
enforcement of the Issuers' and/or their Subsidiaries' legal rights against any
third parties in implementing the Permitted Business with respect to New
Ventures or (ii) with respect to Permitted Investments, or commitments to make
Permitted Investments, permitted by clause (h) of the definition thereof, made
by Foreign Subsidiaries within six months of the date hereof; provided, that the
aggregate amount of such Permitted Investments is less than $50.0 million at any
time within such six month period.
Section 4.13. Corporate Existence; Certificate of Incorporation.
Subject to the provisions of Section 5.1 and Section 5.2 hereof, the
Issuers shall do or cause to be done all things necessary to preserve and keep
in full force and effect:
(a) its corporate existence, and the corporate, partnership or other
existence of each of their Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Issuers or any such Subsidiary, and
(b) the rights (charter and statutory), licenses and franchises of
the Issuers and their Subsidiaries; provided, however, that the Issuers shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of their Subsidiaries, if the
Board of Directors of the Issuers, as the case may be, shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Issuers, as the case may be, and their Subsidiaries, taken as a whole,
and that the loss thereof is not adverse in any material respect to the
Holders of the Notes.
Notwithstanding anything to the contrary contained in this Section
4.13, the Company shall not amend, modify or alter its certificate of
incorporation, articles of incorporation or similar organizational document in
any manner that would materially expand or enlarge or fundamentally alter the
business operations to be conducted by the Company pursuant to such certificate
of incorporation, articles of incorporation or similar organizational document.
Section 4.14. Offers to Repurchase by the Company.
Upon the occurrence of a Change in Control of the Company occurring
after the date of issuance of the Notes and on or prior to maturity, the Issuers
shall make an offer to each Holder (a "Change in Control Offer") to repurchase
all or any part of each Holder's Notes on the date, which must be a Business Day
(the "Change in Control Repurchase Date"), that is selected by the Issuers
(subject to compliance with the minimum Offer Period specified in Section 3.09)
that is not more than 75 days after the date the Issuers give notice of the
Change in Control at a price (the "Change in Control Repurchase Price") equal to
101.0% of the principal amount thereof, together with accrued and unpaid
interest to the Change in Control Repurchase Date. Not less than one Business
Day prior to the Change in Control Repurchase Date, the Issuers shall be
required to deposit with the Trustee or a Paying Agent an amount of money
sufficient to pay the Change in Control Repurchase Price of the Notes that are
to be repaid on the Change in Control Repurchase Date. On or before the 15th day
after the occurrence of a Change in Control, the Issuers shall mail to all
Holders the information and documentation required to be provided pursuant to
Section 3.09. The Issuers shall comply with any applicable requirements of Rules
13e-4 and 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable in
connection with the repurchase of Notes in connection with a Change in Control
and shall be deemed not to have breached its obligations under this Section 4.14
as a result of such compliance.
Notwithstanding anything to the contrary in this Section 4.14, the
Issuers shall not be required to make a Change in Control Offer upon a Change in
Control if a third party makes the Change in Control Offer in the manner, at the
times and otherwise in compliance with the requirements set forth in this
Section 4.14 and Section 3.09 hereof and all other provisions of this Indenture
applicable to a Change in Control Offer made by the Issuers and purchases all
Notes validly tendered and not withdrawn under such Change in Control Offer.
Section 4.15. Insurance.
The Issuers shall, and shall cause their Subsidiaries to, maintain
insurance with responsible carriers against such risks and in such amounts as is
customarily carried by similar businesses with such deductibles, retentions,
self insured amounts and coinsurance provisions as are customarily carried by
similar businesses of similar size, and shall furnish to the Trustee, upon
reasonable written request, full information as to the insurance carried.
Section 4.16. Maintenance of Property.
The Issuers shall, and shall cause their Subsidiaries to keep all
property and systems useful and necessary in its business or the business of any
of their Subsidiaries in good working order and condition, ordinary wear and
tear excepted, and supplied with all necessary equipment.
Section 4.17. Limitation on Sale and Leaseback Transactions.
The Issuers shall not, and shall not permit any of their Subsidiaries
to, enter into any sale and leaseback transaction; provided, however, that so
long as no Default has occurred and is continuing or would be caused thereby,
the preceding sentence shall not prohibit: (a) any sale and leaseback
transaction involving or in respect of the Company's corporate headquarters
and/or all tangible property related thereto; and (b) sale and leaseback
transactions to the extent the aggregate present value (discounted at the rate
of interest implicit in such transaction, determined in accordance with GAAP) of
the obligations of the lessee for net rental payments during the remaining term
of the lease included in such sale and leaseback transaction (including any
period for which such lease has been or may, at the option of the lessor, be
extended) of such sale and leaseback transactions do not exceed $5.0 million at
the time of determination.
Section 4.18. Limitation on Issuances and Sales of Equity Interests
in Subsidiaries.
(a) The Issuers shall not, and shall not permit any of their
Subsidiaries to, directly or indirectly, transfer, convey, sell, lease or
otherwise dispose of any Equity Interests in any Subsidiary of the Issuers to
any Person (other than the Issuers or a Subsidiary of the Issuers), unless
such transfer, conveyance, sale, lease or other disposition is of all the
Equity Interests in such Subsidiary.
In addition, the Issuers shall not permit any Subsidiary of the Issuers
to issue any Equity Interests (other than, if necessary, shares of its Capital
Stock constituting directors' qualifying shares) to any Person other than to the
Issuers or a Subsidiary of the Issuers.
Section 4.19. No Amendment to Certain Provisions of the Subordinated
Note Indenture.
The Company shall not amend, modify or alter the Subordinated Note
Indenture in any way to:
(a) increase the rate of, change the time for or change the manner of
payment of interest on any Subordinated Notes;
(b) increase the principal or premium, if any, of, or advance the
final maturity date of, any Subordinated Notes;
(c) alter the redemption provisions or the price or terms at which
the Company is required to offer to purchase any Subordinated Notes; or
(d) amend Article 9 of the Subordinated Note Indenture.
Section 4.20. Equity Interests of the Company.
The Company shall not issue any Equity Interests except pursuant to the
Plan; provided, however, that the Company may issue Equity Interests upon the
exercise of any warrants or rights or pursuant to any rights issued in
accordance with the Plan and may issue options to officers, employees and
directors of the Company and its Subsidiaries to acquire Capital Stock of the
Company and may issue Capital Stock upon exercise of such options.
Section 4.21. Assets of the Company.
The Company shall contribute, transfer or assign all of its material,
tangible assets, other than its right, title and interest in the Note
Collateral, to NLC or any other Subsidiary as soon as reasonably practicable
after the Company has the legal right to contribute, transfer or assign such
material, tangible assets, whether such assets are owned on the date hereof or
subsequently become owned by the Company; provided, however, that nothing
contained in this Section 4.21 shall require the Company to contribute, transfer
or assign its right, title and interest in cash and/or cash equivalents to NLC
or any other Subsidiary.
Section 4.22. Management Incentive Plan.
The Issuers shall not amend, modify or restate the Management Incentive
Plan after the Effective Date in any way that would increase the aggregate
maximum amount of incentive payments payable thereunder at any time to an amount
greater than 105% of the aggregate maximum amount otherwise payable under the
Management Incentive Plan with respect to the achievement of a certain
performance target or incentive level.
Section 4.23. Additional Note Collateral.
In the event that the Company or NLC or any of their Subsidiaries
acquires or creates another Domestic Subsidiary after the Effective Date which
is directly owned by the Company or NLC, or if any of the Issuers' Foreign
Subsidiaries becomes a Domestic Subsidiary after the Effective Date which is
directly owned by the Company or NLC, the Issuers covenant and agree that the
Equity Interests of such newly acquired or created Domestic Subsidiary shall be
pledged and otherwise constitute additional Note Collateral hereunder and
pursuant to the Collateral Documents. The Issuers shall execute and deliver to
the Trustee any additional instruments and do any further acts as may be
reasonably necessary or proper to carry out the purposes of this Section 4.23.
Section 4.24. Consummation of Plan.
Notwithstanding anything to the contrary herein, no provision or
Section of this Indenture shall prevent, restrict or otherwise hinder the
Issuers from consummating the Plan and the transactions contemplated thereby.
Section 4.25. Distributions from Subsidiaries.
Except with respect to any Scheduled Cash Reserve Amount, the Issuers
will take reasonable actions to cause their Domestic Subsidiaries to distribute
all cash to their respective parent companies until such cash is in the accounts
of the Company. In addition, the Issuers will take reasonable actions to cause
their Foreign Subsidiaries, to the extent such distribution would not violate
applicable law or trigger either an additional foreign tax or United States tax,
to distribute all cash not required for their continued normal operations to
their respective parent companies until such cash is in the accounts of the
Company.
ARTICLE 5.
SUCCESSORS
Section 5.01. Merger, Consolidation or the Transfer of All or Substantially
All of the Assets of the Company.
The Company may not, in a single transaction or through a series of
related transactions, consolidate with or merge into, or transfer all or
substantially all of the assets of the Company and its Subsidiaries, taken as a
whole, to, another Person in any transaction in which the Company is not the
continuing or surviving entity, unless:
(a) the resulting, surviving or transferee Person is a corporation
which assumes by supplemental indenture, in form satisfactory to the Trustee,
all the obligations of the Company under the Notes, this Indenture and the
Registration Rights Agreement or is a reorganization within the meaning of
Section 368(a)(1)(B) of the Internal Revenue Code, and this Indenture remains
in full force and effect;
(b) such corporation is organized and existing under the laws of the
United States, a State thereof or the District of Columbia, although it in
turn may be owned by a foreign entity;
(c) immediately after giving effect to such transaction no Default or
Event of Default shall have occurred and be continuing and the Officers'
Certificate referred to in clause (e) of this Section 5.01 reflects that such
Officers are not aware of any such Default or Event of Default that shall have
occurred and be continuing;
(d) each Subsidiary of the Company immediately prior to the
transaction shall be a Subsidiary of the resulting, surviving or transferee
Person immediately following the transaction, and the transaction shall not
indirectly effect any change, transfer, borrowing or Lien that would have been
prohibited by this Indenture if done by the Company or any Subsidiary
independent of such transaction or would have caused a Default under this
Indenture if done independent of such transaction; and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each to the effect that all conditions
precedent provided for in this Indenture relating to such consolidation,
merger or transfer have been complied with.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company in accordance with the preceding
paragraph:
(a) the successor corporation formed by such consolidation or into
which the Company is merged or to which such transfer is made shall succeed to,
and shall be substituted for, and may exercise every right and power of, the
Company under this Indenture and the Registration Rights Agreement with the same
effect as if such successor corporation has been named as the Company in this
Indenture and the Registration Rights Agreement;
(b) the Company shall thereupon be relieved of any further obligation
or liability hereunder or upon the Notes; and
(c) the Company as the predecessor corporation may thereupon or at any
time thereafter be dissolved, wound up or liquidated.
Such successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of Reorganized Comdisco, Inc., any
or all of the Notes issuable under this Indenture which theretofore shall not
have been signed by the Company and delivered to the Trustee. Upon the order of
such successor corporation, instead of the Company, and subject to all the
terms, conditions and limitations in this Indenture, the Trustee shall
authenticate and shall deliver any Notes which previously shall have been signed
and delivered by Officers of the Company to the Trustee for authentication, and
any Notes which such successor corporation thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All the Notes so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Notes theretofore or thereafter issued in accordance with the terms of this
Indenture as though all such Notes had been issued at the date of execution of
this Indenture.
Section 5.02. Merger, Consolidation or the Transfer of All or Substantially
All of the Assets of NLC.
NLC may not, in a single transaction or through a series of related
transactions, consolidate with or merge into, or transfer all or substantially
all of the assets of NLC and its Subsidiaries, taken as a whole, to, another
Person in any transaction in which NLC is not the continuing or surviving
entity, unless:
(a) the resulting, surviving or transferee Person is a corporation
which assumes by supplemental indenture, in form satisfactory to the Trustee,
all the obligations of NLC under the Notes, this Indenture and the
Registration Rights Agreement or is a reorganization within the meaning of
Section 368(a)(1)(B) of the Internal Revenue Code, and this Indenture remains
in full force and effect;
(b) such corporation is organized and existing under the laws of the
United States, a State thereof or the District of Columbia, although it in
turn may be owned by a foreign entity;
(c) immediately after giving effect to such transaction no Default or
Event of Default shall have occurred and be continuing and the Officers'
Certificate referred to in clause (e) of this Section 5.02 reflects that such
Officers are not aware of any such Default or Event of Default that shall have
occurred and be continuing;
(d) each Subsidiary of NLC immediately prior to the transaction shall
be a Subsidiary of the resulting, surviving or transferee Person immediately
following the transaction, and the transaction shall not indirectly effect any
change, transfer, borrowing or Lien that would have been prohibited by this
Indenture if done by NLC or any Subsidiary independent of such transaction or
would have caused a Default under this Indenture if done independent of such
transaction; and
(e) NLC shall have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each to the effect that all conditions precedent
provided for in this Indenture relating to such consolidation, merger or
transfer have been complied with.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of NLC in accordance with the preceding
paragraph:
(a) the successor corporation formed by such consolidation or into
which NLC is merged or to which such transfer is made shall succeed to, and
shall be substituted for, and may exercise every right and power of, NLC under
this Indenture and the Registration Rights Agreement with the same effect as if
such successor corporation has been named as NLC in this Indenture and the
Registration Rights Agreement;
(b) NLC shall thereupon be relieved of any further obligation or
liability hereunder or upon the Notes; and
(c) NLC as the predecessor corporation may thereupon or at any time
thereafter be dissolved, wound up or liquidated.
Such successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of New Leasing Co., Inc., any or all
of the Notes issuable under this Indenture which theretofore shall not have been
signed by NLC and delivered to the Trustee. Upon the order of such successor
corporation, instead of NLC, and subject to all the terms, conditions and
limitations in this Indenture, the Trustee shall authenticate and shall deliver
any Notes which previously shall have been signed and delivered by Officers of
NLC to the Trustee for authentication, and any Notes which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee for
that purpose. All the Notes so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Notes theretofore or thereafter
issued in accordance with the terms of this Indenture as though all such Notes
had been issued at the date of execution of this Indenture.
Notwithstanding the foregoing, NLC may merge with, or transfer all of
its assets to, the Company.
Section 5.03. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company or NLC, as applicable, in accordance with Section 5.01 or Section
5.02, the successor corporation formed by such consolidation or into or with
which the Company or NLC, as applicable, is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" or "NLC" shall refer
instead to the successor corporation and not to the Company or NLC, as
applicable), and may exercise every right and power of the Company or NLC, as
applicable, under this Indenture with the same effect as if such successor
Person had been named as the Company or NLC, as applicable, herein; provided,
however, that the predecessor of the Company or NLC, as applicable, shall not be
relieved from the obligation to pay the principal of and interest on the Notes
except in the case of a sale, assignment, transfer, conveyance or other
disposition of all of the Company's or NLC's, as applicable, assets that meets
the requirements of Section 5.01 or Section 5.02.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(a) the Issuers default in the payment when due of interest on the
Notes and such default continues for a period of 30 days;
(b) the Issuers default in the payment when due of principal of or
premium, if any, on the Notes whether at maturity, upon redemption (including
in connection with an offer to purchase) or otherwise;
(c) the Company or any of its Subsidiaries fail to comply with any of
the provisions of Sections 4.13, 5.01 or 5.02 hereof;
(d) the Issuers fail to observe or perform any other covenant,
representation, warranty or other agreement under the Indenture or the Notes
for 60 days after written notice to (i) the Issuers by the Trustee or (ii) the
Issuers and the Trustee by the holders of at least 25% in aggregate principal
amount of the Notes then outstanding;
(e) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or evidenced
any Indebtedness for money borrowed by the Issuers (but not including any
indebtedness or obligation for which recourse is limited to the property
purchased), whether such Indebtedness or guarantee now exists, or is created
after the date of this Indenture, which default results in the acceleration of
such Indebtedness prior to its express maturity and, in each case, the
principal amount of such Indebtedness, together with the principal amount of
any other such Indebtedness the maturity of which has been so accelerated,
aggregates $25.0 million or more and such Indebtedness is not paid or such
acceleration is not annulled within 10 days after written notice to the
Issuers of such acceleration;
(f) the rendering of a final judgment or final judgments for the
payment of money is/are entered by a court or courts of competent jurisdiction
against either the Company or NLC and such judgment or judgments remain
undischarged for a period (during which execution shall not be effectively
stayed) of 60 days, provided that the aggregate of all such undischarged
judgments (to the extent not covered by insurance) exceeds $10.0 million;
(g) the Company or NLC pursuant to or within the meaning of
Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it
in an involuntary case,
(iii) consents to the appointment of a custodian of it or for
all or substantially all of its property, or
(iv) makes a general assignment for the benefit of its
creditors; or
(v) admits in writing its inability to pay its debts as the
same becomes due; or
(vi) generally is not paying its debts as they become due; or
(h) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or NLC in an
involuntary case;
(ii) appoints a custodian of the Company or NLC or for all or
substantially all of the property of the Company or NLC; or
(iii) orders the liquidation of the Company or NLC other than
as contemplated by the Plan;
and the order or decree remains unstayed and in effect for 60 consecutive days.
Section 6.02. Acceleration.
If any Event of Default (other than an Event of Default specified in
clause (g) or (h) of Section 6.01 hereof with respect to the Company or NLC)
occurs and is continuing, then and in every such case the Trustee or the Holders
of at least 25% in principal amount of the then outstanding Notes may, by notice
in writing to the Issuers, declare all the Notes to be due and payable
immediately. Upon any such declaration, the Notes will become due and payable
immediately. Notwithstanding the foregoing, if an Event of Default specified in
clause (g) or (h) of Section 6.01 hereof occurs with respect to the Company or
NLC, all outstanding Notes shall be due and payable immediately without further
action or notice. At any time after such a declaration of acceleration has been
made, the Holders of a majority in aggregate principal amount of the then
outstanding Notes by written notice to the Issuers and the Trustee may, on
behalf of all of the Holders, rescind and annul such declaration of acceleration
and its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default (except nonpayment of principal,
interest or premium, if any, that has become due solely because of the
acceleration) have been cured or waived.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy (under this Indenture or otherwise) to collect the payment
of principal, premium, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes by notice to the Issuers and the Trustee may, on
behalf of the Holders of all of the Notes, waive an existing Default or Event of
Default and its consequences hereunder, except (i) a continuing Default or Event
of Default in the payment of the principal of, premium, if any, or interest on,
the Notes (including in connection with an offer to purchase) or (ii) with
respect to any covenant or provision of this Indenture which cannot be modified
or amended without the consent of the Holders of each outstanding Note affected;
provided, however, that the Holders of a majority in aggregate principal amount
of the then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; provided, however, that no such waiver shall extend to any subsequent
or other Default or Event of Default or impair any right consequent thereon.
Section 6.05. Control by Majority.
Holders of a majority in principal amount of the then outstanding Notes
may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this Indenture,
the Notes or the Collateral Documents only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity reasonably satisfactory to the
Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of principal, premium, if any, and interest
on the Note, on or after the respective due dates expressed in the Note
(including in connection with an offer to purchase), or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder; provided, however, that
a Holder shall not have the right to institute any such suit for the enforcement
of payment if and to the extent that the institution or prosecution thereof or
the entry of judgment therein would, under applicable law, result in the
surrender, impairment, waiver or loss of the Lien of this Indenture upon any
property subject to such Lien.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Issuers for the whole amount of
principal of, premium, if any, and interest remaining unpaid on the Notes and
interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the compensation to the Trustee
and its agents for all services rendered by them hereunder as shall have been
agreed upon in writing from time to time among the Trustee or such agents, as
the case may be, and the Issuers and the costs and expenses of collection,
including the reasonable expenses, disbursements and advances of the Trustee
(including the reasonable compensation and the reasonable expenses and
disbursements of its agents and counsel).
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable expenses, disbursements and
advances of the Trustee (including reasonable compensation and the reasonable
expenses and disbursements of its agents and counsel) and the Holders of the
Notes allowed in any judicial proceedings relative to the Issuers, their
creditors or their property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on any
such claims and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable expenses,
disbursements and advances of the Trustee (including reasonable compensation and
the reasonable expenses and disbursements of its agents and counsel), and any
other amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in accordance with the requirements of the Pledge Agreement
and to the extent received in accordance therewith for distribution hereunder in
the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including, to the extent permitted
thereunder, payment of all compensation, reasonable expenses and
disbursements incurred, and all advances made, by the Trustee and the
reasonable costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, and interest, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, if any, and interest,
respectively;
Third: without duplication, to Holders of Notes for any other
Obligations (other than contingent reimbursement, indemnification or
contribution Obligations) then owing to the Holders of the Notes under
the Notes or this Indenture; and
Fourth: to the Issuers or to such party as a court of
competent jurisdiction shall direct.
Notwithstanding the preceding paragraph, in the event of a conflict
between the provisions of the Pledge Agreement and the mandatory provisions of
the TIA, upon qualification of this Indenture under the TIA, the TIA shall
control, and distributions shall be made in the order, and to the Persons
specified under, the TIA.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture, the Pledge Agreement and
the Collateral Documents, and the Trustee need perform only those
duties that are specifically set forth in this Indenture, the Pledge
Agreement and the Collateral Documents and no others, and no implied
covenants or obligations shall be read into this Indenture, the
Pledge Agreement and the Collateral Documents against the Trustee;
and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture, the Pledge Agreement and the Collateral Documents.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture, the Pledge Agreement and the Collateral Documents.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section 7.01;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture, the Pledge Agreement or the
Collateral Documents shall require the Trustee to expend or risk its own funds
or incur any liability. The Trustee shall be under no obligation to exercise
any of its rights and powers under this Indenture, the Pledge Agreement or the
Collateral Documents at the request of any Holders, unless such Holder shall
have offered to the Trustee security and indemnity reasonably satisfactory to
it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by
it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights
or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, the
Pledge Agreement or the Collateral Documents, any demand, request, direction
or notice from the Company shall be sufficient if signed by an Officer of the
Company or NLC, as the case may be, on behalf of the Company or NLC,
respectively.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture, the Pledge Agreement or the
Collateral Documents at the request or direction of any of the Holders unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities that might be incurred
by it in compliance with such request or direction.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Issuers or any
Affiliate of the Issuers with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Issuers' use of the proceeds from the Notes or any money
paid to the Issuers or upon the Issuers' direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Notes a notice of the
Default or Event of Default within 90 days after the occurrence of such Default
or Event of Default. Except in the case of a Default or Event of Default in
payment of principal of, premium, if any, or interest on any Note, the Trustee
may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of the Holders of the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each October 15 beginning with the October 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA ss. 313(a) (but if no
event described in TIA ss. 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA ss. 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Issuers and filed with the SEC and each stock
exchange on which the Notes are listed, if any, in accordance with TIA ss.
313(d). The Issuers shall promptly notify the Trustee when the Notes are listed
on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Issuers shall pay to the Trustee from time to time such
compensation as the Issuers and the Trustee shall from time to time agree in
writing for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuers shall reimburse the Trustee promptly
upon request for all reasonable expenses, disbursements and advances of the
Trustee (including the reasonable compensation and the reasonable expenses and
disbursements of its agents and counsel).
The Issuers shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Issuers (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Issuers or any Holder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be attributable to its gross
negligence, bad faith or willful misconduct. The Trustee shall notify the
Issuers promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Issuers shall not relieve the Issuers of its
obligations hereunder. The Issuers shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Issuers
shall pay the reasonable fees and expenses of such counsel. The Issuers need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.
The obligations of the Issuers under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture.
To secure the Issuers' payment obligations in this Section, the Issuers
hereby grant to the Trustee a security interest on all money or property held or
collected by the Trustee, except that held in trust to pay principal, interest
and premium, if any, on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture; provided, however, that such Lien
shall be automatically released upon the payment in full of all amounts payable
to the Trustee pursuant to the first paragraph of this Section 7.07 and of all
other amounts then due and payable pursuant to the second paragraph of this
Section 7.07.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(e) or (f) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to
the extent applicable.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Issuers. The Holders of a majority
in principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Issuers in writing. The Issuers may remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuers shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuers.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers, or
the Holders of at least 10% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10, such Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, provided, however, all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Issuers' obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee, and the Issuers shall pay to
any such replaced or removed Trustee all amounts owed to such replaced or
removed Trustee under Section 7.07 upon such replacement or removal.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another bank or
corporation, the successor bank or corporation without any further act shall be
the successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof or of the District of Columbia that is authorized under
such laws to exercise corporate trustee power, that is subject to supervision or
examination by federal or state or the District of Columbia authorities and that
has a combined capital and surplus of at least $150.0 million as set forth in
its most recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to
TIA ss. 310(b).
Section 7.11. Preferential Collection of Claims Against Issuers.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
The provisions of TIA ss. 311 shall apply to the Company as obligor on the
Notes.
ARTICLE 8.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 8.01. Without Consent of Holders of Notes.
Notwithstanding Section 8.02 of this Indenture, the Issuers and the
Trustee may amend or supplement this Indenture, the Notes or the Collateral
Documents without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes or to alter the provisions of Article 2 hereof (including
the related definitions) in a manner that does not materially adversely affect
any Holder;
(c) to provide for the assumption of the Issuers' obligations to the
Holders of the Notes by a successor to the Issuers pursuant to Article 5
hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the
legal rights hereunder of any Holder of the Notes; or
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Upon the request of the Issuers accompanied by a resolution of their
respective Board of Directors, as the case may be, authorizing the execution of
any such amended or supplemental Indenture, and upon receipt by the Trustee of
the documents described in Section 8.06 hereof, the Trustee shall join with the
Issuers in the execution of any amended or supplemental Indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into such amended or supplemental Indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.
Section 8.02. With Consent of Holders of Notes.
Except as provided below in this Section 8.02, the Issuers and the
Trustee may amend or supplement this Indenture (including Section 3.08 hereof),
the Notes and the Collateral Documents with the consent of the Holders of at
least a majority in aggregate principal amount of the Notes then outstanding
(including consents obtained in connection with a tender offer or exchange offer
for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof,
any existing Default or Event of Default (other than a Default or Event of
Default in the payment of the principal of, premium, if any, or interest on the
Notes, except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture, the Notes or the
Collateral Documents may be waived with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes (including
consents obtained in connection with a tender offer or exchange offer for, or
purchase of, the Notes). Section 2.08 hereof shall determine which Notes are
considered to be "outstanding" for purposes of this Section 8.02.
Upon the request of the Issuers accompanied by a resolution of their
Board of Directors, as the case may be, authorizing the execution of any such
amended or supplemental Indenture, and upon the filing with the Trustee of
evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section
7.02(b) hereof, the Trustee shall join with the Issuers in the execution of such
amended or supplemental Indenture unless such amended or supplemental Indenture,
by its express terms, directly affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such amended or
supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 8.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 8.02
becomes effective, the Issuers shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Issuers to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of not less than a majority in aggregate principal amount of the Notes
then outstanding may waive compliance in a particular instance by the Issuers
with any provision of this Indenture, the Notes or the Collateral Documents.
However, without the consent of each Holder affected, an amendment, waiver or
supplement under this Section 8.02 may not (with respect to any Notes held by a
non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must consent
to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note
or alter or waive any of the provisions with respect to the redemption of the
Notes except as provided above with respect to Sections 3.08 hereof;
(c) reduce the rate of or change the time for payment of interest,
including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest on the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes and a waiver of the payment
Default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive payments
of principal of or premium, if any, or interest on the Notes;
(g) make any change in Section 6.04 or 6.07 hereof or in the
foregoing amendment and waiver provisions; or
(h) waive a redemption payment required to be made, or offered to be
made, by the Company pursuant to Section 3.09 or Section 4.14.
Section 8.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall be
set forth in a amended or supplemental Indenture that complies with the TIA as
then in effect.
Section 8.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
The Company may fix a record date for determining which Holders must
consent to such supplemental indenture, amendment or waiver. If the Company
fixes a record date, the record date shall be fixed at (i) the later of 30 days
prior to the first solicitation of such consent or the date of the most recent
list of Holders furnished to the Trustee prior to such solicitation pursuant to
Section 2.05, or (ii) such other date as the Company shall designate.
Section 8.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Issuers in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
Section 8.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental Indenture authorized
pursuant to this Article 8 if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The Issuers
may not sign an amendment or supplemental Indenture until their Board of
Directors approves it. In executing any amended or supplemental indenture, the
Trustee shall be entitled to receive and (subject to Section 7.01 hereof) shall
be fully protected in relying upon, in addition to the documents required by
Section 11.04 hereof, an Officers' Certificate and an Opinion of Counsel stating
that the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.
ARTICLE 9.
COLLATERAL AND SECURITY
Section 9.01. Collateral Documents.
The due and punctual payment of the principal of and interest and
premium, if any, on the Notes when and as the same shall be due and payable,
whether on an interest payment date, at maturity, by acceleration, repurchase,
redemption or otherwise, and interest on the overdue principal of and interest
and premium (to the extent permitted by law), if any, on the Notes and
performance of all other obligations of the Issuers to the Holders of Notes or
the Trustee under this Indenture and the Notes, according to the terms hereunder
or thereunder, shall be secured as provided in the Collateral Documents which
the Issuers have entered into simultaneously with the execution of this
Indenture and which are listed on Exhibit B hereto. Each Holder of Notes, by its
acceptance thereof, consents and agrees to the terms of the Collateral Documents
(including, without limitation, the provisions providing for foreclosure and
release of Note Collateral) as the same may be in effect or may be amended from
time to time in accordance with the terms of the Collateral Documents and
authorizes and directs the Collateral Agent to enter into the Collateral
Documents and to perform its obligations and exercise its rights thereunder in
accordance therewith. The Issuers shall deliver to the Trustee copies of all
documents delivered to the Collateral Agent pursuant to the Collateral
Documents, and shall do or cause to be done all such acts and things as may be
necessary or proper, or as may be required by the provisions of the Collateral
Documents or as may be reasonably requested in writing by the Trustee, to assure
and confirm to the Trustee and the Collateral Agent the security interest in the
Note Collateral contemplated hereby and by the Collateral Documents or any part
thereof, as from time to time constituted, so as to render the same available
for the security and benefit of this Indenture and the Notes secured by the
Collateral Documents, according to the intent and purposes therein expressed.
The Issuers shall take, or shall cause their Subsidiaries that are party to one
or more Collateral Documents to take, upon request of the Trustee, any and all
actions reasonably required to cause the Collateral Documents to create and
maintain, as security for the Obligations of the Issuers hereunder, a valid and
enforceable perfected Lien in and on all the Note Collateral, in favor of the
Collateral Agent for the benefit of the Holders of Notes with the priority
required under the Collateral Documents, subject to Permitted Liens.
Section 9.02. Recording and Opinions.
(a) The Issuers shall furnish to the Trustee simultaneously with the
execution and delivery of this Indenture an Opinion of Counsel either (i)
stating that in the opinion of such counsel all action has been taken with
respect to the recording, registering and filing of this Indenture, financing
statements or other instruments necessary to make effective the Lien intended
to be created by the Collateral Documents and reciting with respect to the
security interests in the Collateral, the details of such action, or (ii)
stating that, in the opinion of such counsel, no such action is necessary to
make such Lien effective.
(b) The Issuers shall furnish to the Trustee and the Collateral Agent
within 30 days following April 30 of each year beginning with April 30, 2003,
an Opinion of Counsel, dated as of the date such opinion is furnished, either
(i) stating that, in the opinion of such counsel, all action has been taken
with respect to the recording, registering, filing, re-recording,
re-registering and refiling of all supplemental indentures, financing
statements, continuation statements or other instruments of further assurance
as is necessary to maintain the Lien of the Collateral Documents and reciting
with respect to the security interests in the Collateral the details of such
action or referring to prior Opinions of Counsel in which such details are
given, or (ii) stating that, in the opinion of such counsel, no such action is
necessary to maintain such Lien.
(c) The Issuers shall otherwise comply with the provisions of TIA ss.
314(b).
Section 9.03. Release of Note Collateral.
(a) Subject to subsections (b), (c) and (d) of this Section 9.03,
upon a sale of any Note Collateral and application of the net proceeds of such
sale to repay the Notes to the extent required in accordance with the terms of
Section 3.08, the Collateral Agent shall release the security interests in
favor of the Collateral Agent in the Note Collateral sold; provided, however,
that such net proceeds have been or shall be applied in accordance with this
Indenture; provided further that, prior to the application of such net
proceeds, such net proceeds shall be deposited in an interest bearing cash
collateral account held by the Paying Agent and pledged for the benefit of the
Holders of Notes and the holders of Subordinated Notes.
(b) No Note Collateral shall be released from the Lien and security
interest created by the Collateral Documents pursuant to the provisions of the
Collateral Documents unless there shall have been delivered to the Collateral
Agent the certificates required by this Section 9.03 and by Sections 9.04 and
9.05 hereof.
(c) At any time when a Default or Event of Default shall have
occurred and be continuing and the maturity of the Notes shall have been
accelerated (whether by declaration or otherwise) and the Trustee shall have
delivered a notice of acceleration to the Collateral Agent, no release of Note
Collateral pursuant to the provisions of the Collateral Documents shall be
effective as against the Holders of Notes or the Trustee except in connection
with foreclosure sales.
(d) The release of any Note Collateral from the terms of this
Indenture and the Collateral Documents or the release of, in whole or in part,
the liens created by the Collateral Documents, or the termination of the
Collateral Documents, shall not be deemed to impair the security under this
Indenture in contravention of the provisions hereof if and to the extent the
Note Collateral is released pursuant to the terms of the Collateral Documents
and this Indenture. The Trustee and each of the Holders acknowledge that a
release of any Note Collateral or a lien strictly in accordance with the terms
of the Collateral Documents will not be deemed for any purpose to be an
impairment of the lien on the Note Collateral in contravention of the terms of
this Indenture. To the extent applicable, the Issuers shall cause TIA ss.
313(b), relating to reports, and TIA ss. 314(d), relating to the release of
property or securities from the Lien and security interest of the Collateral
Documents and this Indenture and relating to the substitution therefor of any
property or securities to be subjected to the Lien and security interest of
the Collateral Documents and this Indenture, to be complied with. Any
certificate or opinion required by TIA ss. 314(d) may be made by an Officer of
the Issuers except in cases where TIA ss. 314(d) requires that such
certificate or opinion be made by an independent Person, which Person shall be
an independent engineer, appraiser, accountant or other expert selected or
approved by the Trustee and the Collateral Agent in the exercise of reasonable
care.
Section 9.04. Certificates of the Issuers.
The Issuers shall furnish to the Trustee and the Collateral Agent,
prior to each proposed release of Note Collateral pursuant to the Collateral
Documents (i) all documents required by TIA ss.314(d) and the Collateral
Documents and (ii) an Opinion of Counsel, which may be rendered by internal
counsel of the Issuers, to the effect that such accompanying documents
constitute all documents required by TIA ss.314(d). The Trustee may, to the
extent permitted by Sections 7.01 and 7.02 hereof, accept as conclusive evidence
of compliance with the foregoing provisions the appropriate statements contained
in such documents.
Section 9.05. Certificates of the Trustee.
In the event that the Issuers wish to release Note Collateral in
accordance with the Collateral Documents and have delivered the certificates and
documents required by the Collateral Documents and Sections 9.03 and 9.04
hereof, once the Trustee has received all documentation required by TIA ss.
314(d) in connection with such release and the Opinion of Counsel delivered
pursuant to Section 9.04(ii), the Trustee shall deliver a certificate to the
Collateral Agent confirming receipt of such documentation and Opinion of
Counsel; provided, however, that so long as the Trustee is the Collateral Agent
the requirement that the Trustee deliver a certificate to the Collateral Agent
shall not be applicable.
Section 9.06. Authorization of Actions to Be Taken by the Trustee Under the
Collateral Documents.
Subject to the provisions of Section 7.01 and 7.02 hereof and the
provisions of the Collateral Documents, the Trustee may in the case of an
ongoing Event of Default, in its sole discretion and without the consent of the
Holders of Notes subject to Section 6.05, direct, on behalf of the Holders of
Notes, the Collateral Agent to, take all actions it deems necessary or
appropriate in order to (a) enforce any of the terms of the Collateral Documents
and (b) collect and receive any and all amounts payable in respect of the
Obligations of the Issuers hereunder. The Trustee shall have power to institute
and maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Note Collateral by any acts that may be unlawful or in
violation of the Collateral Documents or this Indenture, and such suits and
proceedings as the Trustee may deem expedient to preserve or protect its
interests and the interests of the Holders of Notes in the Note Collateral
(including power to institute and maintain suits or proceedings to restrain the
enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of, or compliance with, such enactment, rule or order would
impair the security interest hereunder or be prejudicial to the interests of the
Holders of Notes or of the Trustee).
Section 9.07. Authorization of Receipt of Funds by the Trustee Under the
Collateral Documents.
The Trustee is authorized and required to receive any funds for the
benefit of the Holders of Notes distributed under the Collateral Documents, and
to make further distributions of such funds to the Holders of Notes according to
the provisions of this Indenture and the Collateral Documents.
Section 9.08. Termination of Security Interest.
Upon the payment in full of all Obligations (other than contingent
reimbursement, indemnification and contribution Obligations) of the Issuers
under this Indenture and the Notes, the Trustee shall, at the request of the
Issuers, deliver a certificate to the Collateral Agent stating that such
Obligations have been paid in full, and instruct the Collateral Agent to release
the Liens pursuant to this Indenture and the Collateral Documents to the extent
such Liens secure the Obligations of the Issuers under this Indenture.
ARTICLE 10.
SATISFACTION AND DISCHARGE
Section 10.01. Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further
effect as to all Notes issued hereunder, when:
(1) either:
(a) all Notes that have been authenticated (except lost, stolen or
destroyed Notes that have been replaced or paid and Notes for
whose payment money has theretofore been deposited in trust
and thereafter repaid to the Issuers) have been delivered to
the Trustee for cancellation; or
(b) all Notes that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the
making of a notice of redemption or otherwise or will become
due and payable within one year and the Issuers have
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust solely for the benefit of the
Holders, cash in U.S. dollars, non-callable Government
Securities, or a combination thereof, in such amounts as will
be sufficient without consideration of any reinvestment of
interest, to pay and discharge the entire indebtedness on the
Notes not delivered to the Trustee for cancellation for
principal, premium, if any, and accrued interest to the date
of maturity or redemption;
(2) no Default or Event of Default shall have occurred and be continuing on
the date of such deposit or shall occur as a result of such deposit and
such deposit will not result in a breach or violation of, or constitute a
default under, any other instrument to which either of the Issuers is a
party or by which either of the Issuers is bound;
(3) the Issuers have paid or caused to be paid all sums payable by it under
this Indenture; and
(4) the Issuers have delivered irrevocable written instructions to the
Trustee under this Indenture to apply the deposited money toward the
payment of the Notes at maturity or the redemption date, as the case may
be.
In addition, the Issuers shall each deliver an Officers' Certificate and an
Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture, if
money shall have been deposited with the Trustee pursuant to subclause (b) of
clause (1) of this Section, the provisions of Section 10.02 shall survive.
Section 10.02. Application of Trust Money.
All money deposited with the Trustee pursuant to Section 10.01 shall be
held in trust and applied by it, in accordance with the provisions of the Notes
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Issuers acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 10.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Issuers' obligations under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 10.01;
provided, however, that if the Issuers have made any payment of principal of,
premium, if any, or interest on any Notes because of the reinstatement of its
obligations, the Issuers shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money or Government Securities held
by the Trustee or Paying Agent.
ARTICLE 11.
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA ss.318(c), the imposed duties shall control.
Section 11.02. Notices.
Any notice or communication by the Issuers or the Trustee to the others
is duly given if in writing and delivered in person or mailed by first class
mail (registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
If to the Issuers:
Comdisco Holding Company, Inc.
Comdisco, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇. ▇▇▇▇▇▇, Jr., Esq.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq.
If to the Trustee:
▇▇▇▇▇ Fargo Bank Minnesota, National Association
Corporate Trust
Sixth and Marquette
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Comdisco Administrator
with a copy (which shall not constitute notice to the Trustee) to:
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
The Issuers or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed (provided, however, the Trustee shall not be deemed to have
received such mail until it is received at its address set forth above); when
answered back, if telexed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA ss. 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it (except as set forth above).
If the Issuers mail a notice or communication to Holders, they shall
mail a copy to the Trustee and each Agent at the same time.
Section 11.03. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Notes. The Issuers,
the Trustee, the Registrar and anyone else shall have the protection of TIA
ss. 312(c).
Section 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to take
any action under this Indenture, the Issuers shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 11.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Section 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA ss.
314(e) and shall include:
(c) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(d) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(e) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been satisfied; and
(f) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
Section 11.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 11.07. No Personal Liability of Directors, Officers, Employees,
Stockholders and Agents.
No past, present or future director, officer, employee, incorporator,
stockholder or agent of the Issuers shall have any liability for any obligations
of the Issuers under the Notes, this Indenture or the Collateral Documents or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes.
Section 11.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Issuers or their Subsidiaries or of any other Person.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 11.10. Successors.
All agreements of the Issuers in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
Section 11.11. Severability.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 11.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture (including
by facsimile). Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 11.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following pages]
SIGNATURES
Dated as of August 12, 2002
COMDISCO HOLDING COMPANY, INC.
By: /s/ ▇▇▇▇▇▇ E.T. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ E.T. ▇▇▇▇▇▇
Title: Executive Vice
President, Secretary
and Chief Legal Officer
Attest:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Notary Republic
COMDISCO, INC.
By: /s/ ▇▇▇▇▇▇ E.T. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ E.T. ▇▇▇▇▇▇
Title: Executive Vice
President, Secretary
and Chief Legal Officer
Attest:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Notary Republic
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
Attest:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------
Authorized Signatory: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Date: August 12, 2002
SCHEDULE A
SCHEDULED CASH RESERVE AMOUNT
Date Aggregate Cash Reserve Amount
---- -----------------------------
September 30, 2002 $57,000,000.00
December 31, 2002 $55,000,000.00
March 31, 2003 $53,000,000.00
June 30, 2003 $51,000,000.00
September 30, 2003 $49,000,000.00
December 31, 2003 $47,000,000.00
March 31, 2004 $45,000,000.00
June 30, 2004 $43,000,000.00
EXHIBIT A
[Face of Note]
--------------------------------------------------------------------------------
CUSIP ____________
Variable Rate Senior Secured Notes due 2004
No. ___ $____________
COMDISCO HOLDING COMPANY, INC. and COMDISCO, INC.
promise to pay to _____________________________________________________________
or registered assigns, the principal sum of $400,000,000.00 on _______ __, 2004.
Interest Payment Dates: September 30, December 31, March 31 and June 30
Record Dates: September 15, December 15, March 15 and June 15
Dated: _____________, ____
COMDISCO HOLDING COMPANY, INC. COMDISCO, INC.
By:________________________ By:________________________
Name: Name:
Title: Title:
By:________________________ By:________________________
Name: Name:
Title: Title:
This is one of the Notes referred to in the within-mentioned Indenture:
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By: ___________________________
Authorized Signatory
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[Back of Note]
Variable Rate Senior Secured Notes due 2004
[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE, PURSUANT TO THE
PROVISIONS OF THE INDENTURE.]
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Comdisco Holding Company, Inc., a Delaware corporation
(the "Company"), and Comdisco, Inc., a Delaware corporation ("NLC" and,
together with the Company, the "Issuers"), jointly and severally, promise to
pay interest on the principal amount of this Note the Applicable Rate (as
defined below) per annum from August 12, 2002 until maturity. The Issuers will
pay interest quarterly in arrears on September 30, December 31, March 31 and
June 30 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest on the
Notes will accrue from the most recent date to which interest has been paid
or, if no interest has been paid, from the date of issuance; provided,
however, that if there is no existing Default in the payment of interest, and
if this Note is authenticated between a record date referred to on the face
hereof and the next succeeding Interest Payment Date, interest shall accrue
from such next succeeding Interest Payment Date; provided, further, that the
first Interest Payment Date shall be ______ ___, 2002. The Issuers shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on
demand at a rate that is 1% per annum in excess of the rate then in effect; it
shall pay interest (including post-petition interest in any proceeding under
any Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed at the Applicable Rate on the basis
of the actual number of days elapsed over a year of 360 days. For purposes of
this Note, the term "Applicable Rate" means the annual interest rate equal to
the sum of (i) three-month U.S. Dollar LIBOR as quoted on Bloomberg Page BBAM
1 (British Bankers Association page) ("LIBOR") plus (ii) an additional 3.00%
per annum. In the event that such rate does not appear on the Bloomberg Page
BBAM 1 (or otherwise on the Bloomberg Page BBAM), the LIBOR component for
purposes of this definition shall be determined by reference to such other
comparable publicly available service for displaying the three-month U.S.
Dollar LIBOR as may be selected by the Issuers. The LIBOR component of the
Applicable Rate for each fiscal quarter or partial fiscal quarter shall be
fixed two (2) business days prior to the commencement of the applicable fiscal
quarter or partial fiscal quarter to which the interest payment relates.
2. METHOD OF PAYMENT. The Issuers will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on September 15, December 15, March 15 and June 15
next preceding the Interest Payment Date, even if such Notes are canceled
after such record date and on or before such Interest Payment Date, except as
provided in Section 2.12 of the Indenture with respect to defaulted interest.
The Notes will be payable as to principal, premium, if any, and interest at
the office or agency of the Issuers maintained for such purpose within the
City and State of
New York, or, at the option of the Issuers, payment of
interest may be made by check mailed to the Holders at their addresses set
forth in the register of Holders, and provided that payment by wire transfer
of immediately available funds will be required with respect to principal of
and interest, premium, if any, on, all Global Notes and all other Notes the
Holders of which shall have provided wire transfer instructions to the Issuers
or the Paying Agent. Such payment shall be in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, ▇▇▇▇▇ Fargo Bank Minnesota,
National Association, the Trustee under the Indenture, will act as Paying
Agent and Registrar. The Issuers may change any Paying Agent or Registrar
without notice to any Holder. The Issuers or any of their Subsidiaries may act
in any such capacity.
4. INDENTURE AND COLLATERAL DOCUMENTS . The Issuers issued the Notes
under an Indenture dated as of August 12, 2002 ("Indenture") among the Issuers
and the Trustee. The terms of the Notes include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act
of 1939, as amended (15 U.S.C. ▇▇.▇▇. 77aaa-77bbbb). The Notes are subject to
all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. To the extent any provision of this Note conflicts
with the express provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling. The Notes are secured obligations of the
Issuers limited to $400,000,000 in aggregate principal amount. The Notes are
secured by a grant of a security interest in the Note Collateral pursuant to
the Collateral Documents referred to in the Indenture.
5. OPTIONAL REDEMPTION.
The Issuers may, at their option at any time after the Effective Date,
redeem the Notes, in whole or in part, on at least 10 days' but not more than 60
days' notice to each Holder of Notes to be redeemed in cash at its registered
address, at a redemption price equal to 100% of the principal amount thereof,
plus accrued and unpaid interest to the redemption date.
6. MANDATORY REDEMPTION.
Pursuant to Section 3.08 of the Indenture, and except as provided
thereon with respect to redemptions of less than $1.0 million principal amount
of Notes, the Issuers shall be required to make mandatory redemptions of the
principal amount of the Notes, plus accrued and unpaid interest thereon to the
redemption date, in an amount equal to 100% of the Excess Cash. Mandatory
redemptions, if any, shall be made for each fiscal quarter within 45 days after
the end of such fiscal quarter.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change in Control, the Issuers shall be required to
make an offer (a "Change in Control Offer") to repurchase all or any part of
each Holder's Notes at a purchase price equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest thereon, if any, to
the date of purchase (the "Change in Control Repurchase Price"). Within 15
days following any Change in Control, the Issuers shall mail a notice to each
Holder setting forth the procedures governing the Change in Control Offer as
required by the Indenture. Holders of Notes that are subject to a Change in
Control Offer will receive a Change in Control Offer from the Issuers prior to
any related purchase date and may elect to have such Notes purchased by
completing the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Notes.
(b) Notwithstanding anything to the contrary in the Indenture or this
Section 7, the Issuers shall not be required to make a Change in Control Offer
upon a Change in Control if a third party makes the Change in Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth in the Indenture applicable to a Change in Control Offer made by the
Issuers and purchases all Notes validly tendered and not withdrawn under the
change in control offer required to be made under the Indenture and under the
Change in Control Offer.
8. NOTICE OF REDEMPTION. Notice of optional redemption will be mailed
at least 10 days but not more than 60 days before the redemption date and
notice of a mandatory redemption will be mailed at least 10 days but no more
than 30 days before the redemption date, in each case, to each Holder whose
Notes are to be redeemed at its registered address. Notes may be redeemed in
whole or in part, unless all of the Notes held by a Holder are to be redeemed.
On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons. The Notes are denominated in amounts of $1,000 and
integral multiples thereof; provided, however, that the Notes may be in
denominations (rounded to the nearest whole dollar) of less than $1,000 (but
in no event less than $1.00) to make redemptions. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Issuers may require a
Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Issuers need not exchange or register the transfer of any Note
or portion of a Note selected for redemption, except for the unredeemed
portion of any Note being redeemed in part. Also, the Issuers need not
exchange or register the transfer of any Notes for a period of 15 days before
a selection of Notes to be redeemed or during the period between a record date
and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture, the Notes and the Collateral Documents may be amended or
supplemented with the consent of the Holders of not less than a majority in
aggregate principal amount of the then outstanding Notes, and any existing
default or compliance with any provision of the Indenture, the Notes or the
Collateral Documents may be waived with the consent of the Holders of not less
than a majority in aggregate principal amount of the then outstanding Notes.
Without the consent of any Holder of a Note, the Indenture, the Notes or the
Collateral Documents may be amended or supplemented to cure any ambiguity,
defect or inconsistency, to provide for uncertificated Notes in addition to or
in place of certificated Notes, to provide for the assumption of the Issuers'
obligations to Holders of the Notes in case of a merger or consolidation, to
make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights under
the Indenture of any such Holder, to comply with the requirements of the SEC
in order to effect or maintain the qualification of the Indenture under the
Trust Indenture Act in accordance with the limitations set forth in the
Indenture.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for
30 days in the payment when due of interest on the Notes; (ii) default in
payment when due of principal of or premium, if any, on the Notes when the
same becomes due and payable at maturity, upon redemption (including in
connection with an offer to purchase) or otherwise, (iii) failure by the
Issuers or any of their Subsidiaries to comply with Section 4.13, 5.01 or 5.02
of the Indenture; (iv) failure by the Issuers or any of their Subsidiaries for
60 days after notice to the Issuers by the Trustee or the Holders of at least
25% in principal amount of the Notes then outstanding to comply with certain
other agreements in the Indenture or the Notes; (v) default under certain
other agreements relating to Indebtedness (other than any Indebtedness for
which recourse is limited to the property purchased) of the Issuers which
default results in the acceleration of such Indebtedness prior to its express
maturity, if the principal amount of any accelerated Indebtedness aggregates
$25.0 million or more and such Indebtedness is not paid or such acceleration
is not annulled within 10 days after written notice to the Issuers of such
acceleration; (vi) certain final judgments for the payment of money that
remain undischarged for a period of 60 days; or (vii) certain events of
bankruptcy or insolvency with respect to the Issuers or any of their
Subsidiaries. If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding Notes
may declare all the Notes to be due and payable. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency, all outstanding Notes will become due and payable
without further action or notice. Holders may not enforce the Indenture, the
Notes or the Collateral Documents, except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in principal amount of
the then outstanding Notes may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest. The Holders of a majority in
aggregate principal amount of the Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default or Event of Default and its consequences under the Indenture except
(i) a continuing Default or Event of Default in the payment of interest on, or
the principal of, or premium, if any, on the Notes; or (ii) an Event of
Default with respect to any covenant or provision of the Indenture which
cannot be waived without the consent of the Holders of each Note affected
thereby. The Issuers are required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Issuers are
required upon becoming aware of any Default or Event of Default, to deliver to
the Trustee a statement specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH ISSUERS. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Issuers or their Affiliates, and may otherwise deal with the
Issuers or their Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator or stockholder, of the Issuers shall have any
liability for any obligations of the Issuers under the Notes, the Indenture or
the Collateral Documents or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform
Gifts to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuers has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Issuers will furnish to any Holder upon written request and without
charge a copy of the Indenture, the Registration Rights Agreement and the
Collateral Documents. Requests may be made to:
Comdisco Holding Company, Inc.
Comdisco, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
18. ADDITIONAL RIGHTS OF HOLDERS OF GLOBAL NOTES AND DEFINITIVE
NOTES. In addition to the rights provided to Holders of Notes under the
Indenture, certain Holders of Global Notes and Definitive Notes shall have all
the rights set forth in the Registration Rights Agreement dated as of the
Effective Date, among the Issuers and the parties named on the signature pages
thereof (the "Registration Rights Agreement").
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:__________________________________
(Insert assignee's legal name)
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Note on the books of the Issuers. The agent may substitute
another to act for him.
Date: _______________
Your Signature: ___________________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all of your Note(s) purchased by the
Issuers pursuant to Section 4.14 of the Indenture, state the amount you elect to
have purchased:
$_______________
If you want to elect to have only part of the Note(s) purchased by the
Issuers pursuant to Section 4.14 of the Indenture, state the amount you elect to
have purchased:
$_______________
Date: _______________
Your Signature: ___________________________
(Sign exactly as your name appears
on the face of this Note)
Tax Identification No.: ___________________
Signature Guarantee*: ___________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Amount
Amount of decrease Amount of increase in of this Global Note Signature of
in Principal Amount Principal Amount following such authorized officer
of of decrease of Trustee or Note
Date of Exchange this Global Note this Global Note (or increase) Custodian
---------------- ---------------- ---------------- ------------- ---------
* This schedule should be included only if the Note is issued in global form.
EXHIBIT B
LIST OF COLLATERAL DOCUMENTS
Pledge Agreement encumbering all Note Collateral including:
UCC-1 Financing Statements