EXHIBIT 4.2
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COMDISCO HOLDING COMPANY, INC.
AND
COMDISCO, INC.
VARIABLE RATE SENIOR SECURED NOTES DUE 2004
______________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of October 7, 2002
to INDENTURE
Dated as of August 12, 2002
______________________
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
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FIRST SUPPLEMENTAL INDENTURE, dated as of October 7, 2002 (the "First
Supplemental Indenture"), between Comdisco Holding Company, Inc., a Delaware
corporation (the "Company"), Comdisco, Inc., a Delaware corporation ("NLC"
and, together with the Company, the "Issuers"), and Xxxxx Fargo Bank
Minnesota, National Association, a national banking association, as trustee
(the "Trustee").
The Company, NLC and the Trustee mutually covenant and agree as
follows for the benefit of each other and for the equal and ratable benefit of
the holders (the "Holders") of the Variable Rate Senior Secured Notes due 2004
(the "Notes"):
WITNESSETH
WHEREAS, the parties to this First Supplemental Indenture entered
into that certain Indenture, dated as of August 12, 2002 (the "Senior Note
Indenture"), among such parties, providing, among other things, for the
authentication, delivery and administration of the Notes;
WHEREAS, the Issuers desire to amend the Senior Note Indenture in
certain respects;
WHEREAS, Section 8.01 of the Senior Note Indenture provides, among
other things, that the Issuers and the Trustee may amend or supplement the
Senior Note Indenture and the Notes without the consent of any Holder of a
Note, subject to certain exceptions and conditions specified in Section 8.01
of the Senior Note Indenture;
WHEREAS, in order to amend or supplement the Senior Note Indenture in
certain respects, it is necessary for the Issuers and the Trustee to enter
into this First Supplemental Indenture;
WHEREAS, the Issuers have directed the Trustee to execute and deliver
this First Supplemental Indenture in accordance with the terms of the Senior
Note Indenture; and
WHEREAS, all requirements and conditions prescribed by the Senior
Note Indenture for the validity of this First Supplemental Indenture as a
binding and legal instrument have been satisfied and fulfilled, and the
execution and delivery of this First Supplemental Indenture has been duly
authorized by all necessary corporate action on the part of the Issuers.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration the receipt of which is hereby acknowledged, the
Issuers and the Trustee have entered into, executed and delivered this First
Supplemental Indenture for the uses and purposes hereinafter expressed as
follows:
Section 1. Amendments to the Senior Note Indenture. The Senior Note
Indenture is hereby amended as follows:
(a) Section 2.01(a) of the Senior Note Indenture is amended in its
entirety to read as follows:
"(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 $1.00 and integral multiples thereof. The
Notes shall be in denominations (rounded to the nearest whole dollar)
of $1.00 (but in no event less than $1.00) and integral multiples
thereof to make redemptions 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) Exhibit A of the Senior Note Indenture is amended and restated
in its entirety as set forth on Exhibit A hereto.
Section 2. Definitions. Capitalized terms used herein and not defined
herein shall have the meaning ascribed to such terms in the Senior Note
Indenture.
Section 3. Ratification of Senior Note Indenture. Except as expressly
amended hereby, the Senior Note Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in
full force and effect. Upon the execution and delivery of this First
Supplemental Indenture by the Issuers and the Trustee, this First Supplemental
Indenture shall form a part of the Senior Note Indenture for all purposes, and
every holder of Notes heretofore or hereafter authenticated and delivered
shall be bound hereby. Any and all references to the Senior Note Indenture,
whether within the Senior Note Indenture or in any notice, certificate or
other instrument or document, shall be deemed to include a reference to this
First Supplemental Indenture (whether or not made), unless the context shall
otherwise require.
Section 4. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS FIRST SUPPLEMENTAL INDENTURE 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 5. No Adverse Interpretation of Other Agreement. This First
Supplemental 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
First Supplement Indenture.
Section 6. Successors. All agreements of the Issuers in this First
Supplemental Indenture shall bind its successors. All agreements of the
Trustee in this First Supplemental Indenture shall bind its successors.
Section 7. Severability. In case any provision in this First
Supplemental Indenture 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 8. Counterpart Originals. The parties hereto may sign any
number of copies of this First Supplemental Indenture (including by
facsimile). Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 9. Headings. The headings of Sections of this First
Supplemental Indenture have been inserted for convenience of reference only,
are not to be considered a part of this First Supplemental Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following pages]
SIGNATURES
Dated as of October 7, 2002
COMDISCO HOLDING COMPANY, INC.
By: /s/ Xxxxxx E.T. Xxxxxx
---------------------------------
Name: Xxxxxx E.T. Xxxxxx
Title: Executive Vice President,
Chief Legal Officer
and Secretary
Attest:
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Notary Republic
COMDISCO, INC.
By: /s/ Xxxxxx E.T. Xxxxxx
---------------------------------
Name: Xxxxxx E.T. Xxxxxx
Title: Executive Vice President,
Attest:
/s/ Xxxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Notary Republic
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President
Attest:
/s/ Xxxx Xxxxxxxxx
------------------
Authorized Signatory: Xxxx Xxxxxxxxx
Date: October 7, 2002
EXHIBIT A
[Face of Note]
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CUSIP 200335 AA 5
Variable Rate Senior Secured Notes due 2004
No. ___ $____________
COMDISCO HOLDING COMPANY, INC. and COMDISCO, INC.
, jointly and severally, promise to pay to __________________________________ or
registered assigns, the principal sum of $400,000,000.00 on February 12, 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:
XXXXX 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 at 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 December 31, 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, Xxxxx 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. xx.xx. 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 shall be in denominations of $1.00 and
integral multiples thereof. The Notes shall be in denominations (rounded to
the nearest whole dollar) of $1.00 (but in no event less than $1.00) and
integral multiples thereof 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 have
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.
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
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:
Amount of decrease Amount of increase Principal Amount
in Principal Amount in Principal Amount of this Global Note Signature of authorized
of of following such decrease officer of Trustee or
Date of Exchange this Global Note this Global Note (or increase) Note Custodian
---------------- ---------------- ---------------- ---------------------- ----------------------
* This schedule should be included only if the Note is issued in global form.
