EXHIBIT 4.6
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (as amended, amended and restated, supplemented
or otherwise modified from time to time in accordance with the terms hereof,
this "Pledge Agreement") is made and entered into as of August 12, 2002 by
COMDISCO HOLDING COMPANY, INC., a Delaware corporation ("Holding") and
COMDISCO, INC. a Delaware corporation ("Comdisco"; Holding and Comdisco are
each referred to herein as a "Pledgor" and, collectively, as the "Pledgors"),
in favor of XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION ("Xxxxx Fargo"),
not individually but in its capacity as collateral agent hereunder (in such
capacity, together with its successors, the "Collateral Agent") for the
benefit of (i) Xxxxx Fargo, not individually but in its capacity as trustee
(in such capacity, together with its successors, the "Senior Indenture
Trustee") for the holders (the "Senior Holders") of the Senior Notes (as
defined herein), and (ii) Xxxxx Fargo, not individually but in its capacity as
trustee (in such capacity, together with its successors, the "Subordinated
Indenture Trustee") for the holders (the "Subordinated Holders", and together
with the Senior Holders, the "Holders") of the Subordinated Notes (as defined
herein).
W I T N E S S E T H :
WHEREAS, (i) each Pledgor and the Senior Indenture Trustee have
entered into that certain Indenture, dated as of August 12, 2002 (as amended,
amended and restated, supplemented or otherwise modified from time to time,
the "Senior Indenture"), pursuant to which the Pledgors are jointly and
severally issuing on the date hereof $400,000,000 in aggregate principal
amount of their Variable Rate Senior Secured Notes due 2003 (the "Senior
Notes") and (ii) each Pledgor and the Subordinated Indenture Trustee have
entered into that certain Indenture, dated as of August 12, 2002 (as amended,
amended and restated, supplemented or otherwise modified from time to time,
the "Subordinated Indenture", and together with the Senior Indenture, the
"Indentures"), pursuant to which the Pledgors are jointly and severally
issuing on the date hereof $650,000,000 in aggregate principal amount of their
11% Subordinated Secured Notes due 2005 (the "Subordinated Notes", and
together with the Senior Notes, the "Notes");
WHEREAS, each Pledgor is the legal and beneficial owner of the
outstanding shares of Capital Stock and other Equity Interests set forth
opposite its name on Schedule I hereto (the "Pledged Equity") of their
Domestic Subsidiaries listed thereon (each such Domestic Subsidiary, in its
capacity as an issuer of a portion of the Pledged Equity being an "Issuer");
and
WHEREAS, to secure the indebtedness and other obligations of the
Pledgors to the Collateral Agent hereunder and to the Senior Indenture
Trustee, the Subordinated Indenture Trustee and to Holders under the
Indentures and the Notes (all of such indebtedness and other obligations are
collectively referred to herein as the "Obligations"), each Pledgor has agreed
to pledge to the Collateral Agent, for the benefit of the Secured Parties (as
defined below), and grant to the Collateral Agent, for the benefit of the
Secured Parties, a security interest in the Collateral (as defined herein).
A G R E E M E N T :
NOW, THEREFORE, in consideration of the premises contained herein and
in order to induce the Holders to purchase the Notes, each Pledgor hereby
agrees with the Collateral Agent as follows:
SECTION 1. DEFINITIONS.
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(a) Capitalized terms used and not otherwise defined herein shall
have the meanings given to such terms in the Senior Indenture, and terms
defined in the Uniform Commercial Code as in effect from time to time in
the State of New York (the "UCC") and not otherwise defined herein shall
have the meanings ascribed thereto in the UCC.
(b) The following terms shall have the following meanings:
"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,
joint venture or limited liability company or common shares of beneficial
interest or other equivalents (however designated) in the case of a
trust.
"Collateral" means, collectively,
(i) the Pledged Equity and the certificates, if any,
representing the Pledged Equity;
(ii) all additional Capital Stock or other Equity Interests of
any Domestic Subsidiaries of either Pledgors owned or from time to time
acquired by either Pledgor in any manner (other than the Capital Stock
or other Equity Interests of the Excluded Subsidiaries until such time,
if any, as the Capital Stock and Equity Interests of the Excluded
Subsidiaries are required to be pledged to the Collateral Agent
hereunder pursuant to Section 6(i) hereof), and the certificates
representing any such additional Capital Stock or other Equity
Interests (any such additional Capital Stock or other Equity Interests
shall constitute part of the Pledged Equity under and as defined in
this Pledge Agreement); and
(iii) all Proceeds of any of the foregoing, wherever located,
whether now owned or existing or hereafter acquired or arising.
"Domestic Subsidiaries" means any direct Subsidiary of either
Pledgor that is organized under the laws of the United States or any
State thereof.
"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).
"Event of Default" means (i) if the Senior Notes are still
outstanding, an "Event of Default" as defined in the Senior Indenture
and (ii) if the Senior Notes are no longer outstanding, an "Event of
Default" as defined in the Subordinated Indenture.
"Excluded Subsidiaries" means the collective reference to (i)
CDO RM, Inc., a Delaware corporation, (ii) CDO Capital, L.L.C., a
Delaware limited liability company and (iii) Technology Receivables L.L.C.,
a Delaware limited liability company.
"Pledge Documents" means, collectively, this Pledge Agreement
and each of the stock powers and other instruments and documents
pertaining to the Collateral required to be delivered by either Pledgor
pursuant to the terms hereof, as the same may be amended, restated or
otherwise modified from time to time in accordance with the terms
hereof and of the Indentures.
"Proceeds" shall have the meaning ascribed thereto in the UCC and
shall include, without limitation and in any event, whatever is now or
hereafter received by either Pledgor upon the sale, exchange, collection
or other disposition of any other Collateral or any proceeds thereof,
including, without limitation, all dividends, cash, options, warrants,
rights, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any
or all of such Collateral.
"Secured Parties" means the collective reference to the Collateral
Agent, the Senior Indenture Trustee, for the benefit of the Senior
Holders, and the Subordinated Indenture Trustee, for the benefit of the
Subordinated Holders
"UCC" has the meaning provided in Section 8(a) hereof.
SECTION 2. PLEDGE.
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To secure the full and prompt payment and performance when due of the
Obligations, each Pledgor hereby pledges to the Collateral Agent for the
benefit of the Secured Parties, and grants to the Collateral Agent for the
benefit of the Secured Parties, a continuing security interest in and Lien
upon all of such Pledgor's right, title and interest in the Collateral.
SECTION 3. DELIVERY OF COLLATERAL.
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All certificates or instruments representing or evidencing any of the
Collateral shall be delivered to and held by or on behalf of the Collateral
Agent pursuant hereto and shall be in suitable form for transfer by delivery,
or shall be accompanied by duly executed, undated stock powers or other
instruments of transfer or assignment in blank, all in form and substance
satisfactory to the Collateral Agent. The Collateral Agent is hereby
authorized to file UCC financing statements describing the Collateral in those
jurisdictions necessary to perfect its security interest therein.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
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Each Pledgor hereby represents and warrants that:
(a) Due Authorization. The execution, delivery and performance
by such Pledgor of the Pledge Documents have been duly authorized by all
necessary corporate action of each Pledgor, and each of the Pledge
Documents to which it is a party has been duly executed and delivered
such Pledgor.
(b) Enforceability. Each of the Pledge Documents to which it is
a party constitutes a legal, valid and binding obligation of such
Pledgor, enforceable against such Pledgor in accordance with its terms,
except as enforceability may be limited by the effect of applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally or the application of equitable
principles.
(c) No Violation; No Consents. The execution, delivery and
performance of the Pledge Documents by each Pledgor party thereto will
not violate, conflict with or constitute a breach of any of the terms or
provisions of, or a default under (or an event that, with notice or the
lapse of time, or both, would constitute a default), or require consent
under, or result in the imposition of a Lien on any properties of either
Pledgor (except for the security interest created by this Pledge
Agreement) or an acceleration of indebtedness pursuant to: (i) either
Pledgor's charter or by-laws, (ii) any bond, debenture, note, indenture,
mortgage, deed of trust or other agreement or instrument to which either
Pledgor is a party or by which either of them or their property is or may
be bound, (iii) any statute, rule or regulation applicable to either
Pledgor or any of their assets or properties, or (iv) any judgment, order
or decree of any court or governmental agency or authority having
jurisdiction over either Pledgor or any of their respective assets or
properties. No consent, approval, authorization or other action by, or
order of, or filing, registration, qualification, license or permit of or
with, any court or governmental agency, body or administrative agency is
required either (i) for the pledge by the Pledgors of the Collateral
pursuant to this Pledge Agreement or for the execution, delivery and
performance of the Pledge Documents by the Pledgors or (ii) for the
exercise by the Collateral Agent of the voting and other rights provided
for in this Pledge Agreement or the remedies in respect of the Collateral
pursuant to this Pledge Agreement (except for the Plan and except as may
be required in connection with such disposition by laws affecting the
offering and sale of securities generally). No consents or waivers from
any other person or entity are required for the execution, delivery and
performance by either Pledgor of the Pledge Documents other than such
consents and waivers as have been obtained.
(d) Pledged Equity. The Pledged Equity has been duly authorized
and validly issued and are fully paid and non-assessable.
(e) Security Interest. Each Pledgor is (or, to the extent
Collateral is acquired after the date hereof, will be) the sole legal,
record and beneficial owner of the Pledge Shares identified as owned by
it on Schedule I hereto. Upon delivery to the Collateral Agent of the
certificates, if any, evidencing the Pledged Equity, together with duly
executed, undated stock powers or other instruments of transfer or
assignment in blank and the filing of the UCC financing statements
contemplated in Section 2 hereof, the pledge of the Collateral pursuant
to this Pledge Agreement will create a valid and perfected first priority
security interest in the Collateral in favor of the Collateral Agent, for
the benefit of the Trustee, the Senior Holders and the Subordinated
Holders, securing the payment of the Obligations. As of the date hereof,
the Trustee's security interest in the Collateral is free and clear of
any Lien or claims of any person or entity except for Liens permitted
under the Senior Indenture and the Subordinated Indenture (collectively,
"Permitted Liens") and the security interest created by this Pledge
Agreement.
(f) Litigation. No litigation, investigation or proceeding of or
before any arbitrator or governmental authority is pending or, to the
knowledge of either Pledgor, threatened by or against either Pledgor or
against any of its properties or revenues with respect to any of the
Pledge Documents or any of the transactions contemplated thereby.
(g) Capital Stock. The Capital Stock component of the Pledged
Equity constitute all of the authorized, issued and outstanding Capital
Stock of the respective Issuers beneficially owned by the Pledgors.
(h) No Prohibition. The pledge of the Collateral pursuant to the
Pledge Documents is not prohibited by any applicable law or governmental
regulation, release, interpretation or opinion of the Board of Governors
of the Federal Reserve System or other regulatory agency (including,
without limitation, Regulations T, U and X of the Board of Governors of
the Federal Reserve System).
SECTION 5. VOTING RIGHTS; DIVIDENDS; ETC.
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(a) So long as no Event of Default shall have occurred and be
continuing, the Pledgors shall be entitled to exercise any and all voting
and other consensual rights pertaining to the Pledged Equity or any part
thereof for any purpose not inconsistent with the terms of this Pledge
Agreement or the Indentures.
(b) So long as no Event of Default shall have occurred and be
continuing, and subject to the other terms and conditions hereof, the
Pledgors shall be entitled to receive, and to utilize free and clear of
the Lien of this Pledge Agreement, all dividends and distributions paid
from time to time in respect of the Pledged Equity as permitted by the
Indenture other than dividends and distributions in the form of
additional shares of capital stock of the respective Issuers which shall
be Collateral pursuant to Section 6(h) hereof.
(c) The Trustee shall execute and deliver (or cause to be
executed and delivered) to the Pledgors all such proxies and other
instruments as the Pledgors may reasonably request for the purpose of
enabling either Pledgor to exercise the voting and other rights that it
is entitled to exercise pursuant to Sections 5(a) and (b) above.
(d) Upon the occurrence and during the continuance of an Event
of Default, upon written notice to the Pledgors from the Collateral Agent
to such effect, all rights of the Pledgors to exercise the voting and
other consensual rights that they would otherwise be entitled to exercise
pursuant to Section 5(a) shall cease, and all such rights shall thereupon
become vested in the Collateral Agent, which shall thereupon have the
sole right to exercise such voting and other consensual rights so long as
an Event of Default is continuing.
(e) Upon the occurrence and during the continuance of an Event
of Default and the giving by the Collateral Agent of the notice
contemplated under Section 5(d) hereof, the Pledgors shall execute and
deliver (or cause to be executed and delivered) to the Collateral Agent
all such proxies and other instruments as the Collateral Agent may
reasonably request for the purpose of enabling the Collateral Agent to
exercise the voting and other rights that it is entitled to exercise
pursuant to Section 5(d) hereof.
(f) All dividends or other distributions that are received by
the Pledgors with respect to the Pledge Shares during the continuance of
an Event of Default or otherwise contrary to the provisions of this
Section 5 shall be received in trust for the benefit of the Collateral
Agent and shall be segregated from the other property or funds of the
Pledgors and be forthwith delivered to the Collateral Agent as Collateral
in the same form as so received (with any necessary endorsements).
SECTION 6. COVENANTS.
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Each Pledgor covenants and agrees with the Collateral Agent from
and after the date of this Pledge Agreement until all principal and interest
on the Notes and all other Obligations that are then due and payable have been
paid in full:
(a) Claims against Collateral. The Pledgors will defend the
Collateral against all Liens, claims and demands of all persons and
entities at any time claiming any interest therein.
(b) Further Assurances. Promptly upon request by the Collateral
Agent, each Pledgor will execute and deliver or cause to be executed and
delivered, or use its best efforts to procure, all stock powers, proxies,
assignments, instruments and other documents, all in form and substance
reasonably satisfactory to the Collateral Agent, deliver any instruments
to the Collateral Agent and take any other actions (including filing any
financing statement covering the Collateral or any portion thereof) that
are necessary or desirable to perfect, continue the perfection and
priority of the Collateral Agent's security interest in the Collateral,
protect the Collateral against the rights, claims, or interests of third
persons or entities (other than holders of Permitted Liens) or to effect
the purposes of the Pledge Documents. Each Pledgor also hereby authorizes
the Collateral Agent to file any financing or continuation statements
with respect to the Collateral describing the Collateral. Such financing
statements may describe the Collateral in the same manner as described
herein or may contain an indication or description of the collateral that
describes such property in any other manner that the Collateral Agent may
determine is necessary, advisable or prudent to ensure the perfection of
the security interest in the Collateral. The Pledgors jointly and
severally agree to pay all reasonable costs incurred in connection with
any of the foregoing.
(c) No Liens. Without the prior written consent of the
Collateral Agent, no Pledgor will create or permit to exist any Lien upon
any of the Collateral or any portion thereof, except for Permitted Liens.
(d) Disposition of Collateral. The Pledgors will not sell,
transfer, assign or otherwise dispose of, or grant any option or warrant
with respect to, any of the Collateral, except as permitted by the
Indentures. If the Collateral, or any part thereof, is sold, transferred,
assigned, exchanged or otherwise disposed of in violation of these
provisions, the security interest of the Collateral Agent shall continue
in such Collateral or part thereof notwithstanding such sale, transfer,
assignment, exchange or other disposition. In addition to its rights
under Section 6(f) below, following such a sale, transfer, assignment,
exchange or other disposition, the Collateral Agent may elect to have
either Pledgor transfer such proceeds to the Collateral Agent in kind.
(e) No Restriction on Sales. Except as permitted by the
Indentures, neither Pledgor will enter into any agreement or
understanding that would restrict the Collateral Agent's rights or
remedies hereunder, including, without limitation, the Collateral Agent's
right or ability to sell or otherwise dispose of the Collateral or any
part thereof after the occurrence and during the continuance of an Event
of Default.
(f) Rights of Collateral Agent. Upon the occurrence and during
the continuance of an Event of Default, the Collateral Agent shall have
the right at any time to make any payments and do any other acts the
Collateral Agent may deem necessary to protect its security interests in
the Collateral, including, without limitation, the rights to pay,
purchase, contest or compromise any Lien which, in the judgment of the
Collateral Agent, may be prior to or superior to the security interests
granted hereunder, and challenge any action or proceeding purporting to
affect its security interests in, and/or the value of, the Collateral.
Each Pledgor hereby jointly and severally agrees to reimburse the
Collateral Agent for all reasonable and documented payments made and
expenses incurred under the Pledge Documents including the reasonable
fees, expenses and disbursements of attorneys and paralegals (including,
the allocated costs of inside counsel) acting for the Collateral Agent,
including any of the foregoing payments under or acts taken to perfect or
protect its security interests in the Collateral, which amounts shall be
secured under the Pledge Documents, and agrees that it shall be bound by
any payment made or act taken by the Collateral Agent hereunder. The
Collateral Agent shall have no obligation to make any of the foregoing
payments or perform any of the foregoing acts.
(g) No Merger. Except as permitted by the Indenture, each
Pledgor agrees that it will not permit any Issuer to merge or
consolidate, unless all outstanding capital stock of the surviving
corporation is, upon such merger or consolidation, pledged hereunder to
the Collateral Agent.
(h) Additional Collateral. Each Pledgor agrees that immediately
upon becoming the beneficial owner of any additional Capital Stock or
other Equity Interests of any Domestic Subsidiaries of such Pledgor
(other than the Capital Stock or other Equity Interests of the Excluded
Subsidiaries until such time, if any, as the Capital Stock and Equity
Interests of the Excluded Subsidiaries are required to be pledged to the
Collateral Agent hereunder pursuant to Section 6(i) hereof), it will
pledge and deliver to the Collateral Agent for its benefit and the
benefit of the Senior Holders and the Subordinated Holders any
certificates or instruments representing such additional Capital Stock or
other Equity Interests (together with duly executed stock powers or other
instruments of transfer or assignment in blank, all in form and substance
satisfactory to the Collateral Agent), and will take such other actions
as the Collateral Agent may reasonably request to grant or confirm, for
the Collateral Agent's benefit and the benefit of the Senior Holders and
the Subordinated Holders, a continuing first priority security interest
in such Capital Stock or other Equity Interests.
(i) Excluded Subsidiaries. (A) If at any time and from time to
time after the date hereof:
(1) all of the existing indebtedness of
CDO Capital, L.L.C. is paid in full, Pledgors shall
promptly either (i) cause the Capital Stock or
other Equity Interests in the CDO Capital, L.L.C.
and CDO RM, Inc. owned by either Pledgor to be
pledged to the Collateral Agent as Collateral
hereunder and/or (ii) cause substantially all of
the assets of CDO Capital, L.L.C. and CDO RM, Inc.
to be owned by one or both Pledgors, and
(2) all of the existing indebtedness of
Technology Receivables, L.L.C. is paid in full,
Pledgors shall promptly either (i) cause the
Capital Stock or other Equity Interests in the
Technology Receivables, L.L.C. owned by either
Pledgor to be pledged to the Collateral Agent as
Collateral hereunder and/or (ii) cause
substantially all of the assets of Technology
Receivables, L.L.C. to be owned by one or both
Pledgors.
(B) The Pledgors may cause the assets of the
Excluded Subsidiaries to be owned by the Pledgors (as
required by clauses (1) and (2), above) by means of the
dissolution or liquidation of such Excluded Subsidiaries,
merger into a Pledgor, asset transfers to a Pledgor or
recapitalization or other transaction(s).
(C) Each Pledgor represents and warrants to the
Collateral Agent that as of the date hereof (x) the
principal amount of indebtedness owed by the Excluded
Subsidiaries in the aggregate is not greater than
$125,000,000 and (y) CDO RM, Inc. owns no assets and engages
in no operations other than the ownership of approximately
1.7% of the limited liability interests in CDO Capital,
L.L.C. and engaging in management functions relating to CDO
Capital, L.L.C.
(D) Each Pledgor agrees that it will not transfer
any assets to any Excluded Subsidiary until such time, if
any, as it has caused the Capital Stock or Equity Interests
of such Excluded Subsidiary to be pledged hereunder as
contemplated under Section 6(i)(A) hereof.
(j) Notice of Liens. Each Pledgor will advise the Collateral
Agent promptly of any Lien on, or claim asserted against, any of the
Collateral.
(k) Taxes. Each Pledgor shall pay all taxes, assessments and
levies as and to the extent required by Section 4.05 of the Indentures;
provided that the Pledgors shall in any event pay such taxes, assessments
or levies not later than five days prior to the date of any proposed sale
under any judgment, writ or warrant of attachment with regard to any
Collateral entered or filed against any Pledgor as a result of the
failure to make such payment.
SECTION 7. SUBSEQUENT CHANGES AFFECTING COLLATERAL.
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Each Pledgor represents to the Collateral Agent that such Pledgor has
made its own arrangements for keeping informed of changes or potential changes
affecting the Collateral (including, but not limited to, rights to convert,
rights to subscribe, payment of dividends, reorganization or other exchanges,
tender offers and voting rights), and each Pledgor agrees that neither the
Collateral Agent, the Senior Holders nor the Subordinated Holders shall have
any responsibility or liability for informing the Pledgors of any such changes
or potential changes or for taking any action or omitting to take any action
with respect thereto. Except as permitted by the Indentures, each Pledgor
covenants that it will not, without the prior written consent of the
Collateral Agent, vote to enable, or take any other action to permit, any
Issuer to issue any capital stock to any Person other than the Pledgors.
SECTION 8. REMEDIES UPON DEFAULT.
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(a) If any Event of Default shall have occurred and be
continuing, the Collateral Agent shall have, subject to Section 8(d)
hereof and in addition to all other rights given by law or by the Pledge
Documents and the Indentures, all of the rights and remedies with respect
to the Collateral of a secured party under the applicable Uniform
Commercial Code (the "UCC") in effect at that time. Subject to Section
8(d) hereof, the Collateral Agent may, without notice and at its option,
transfer or register, and the Pledgors shall register or cause to be
registered upon request therefor by the Collateral Agent, the Collateral
or any part thereof on the books of the Issuers into the name of the
Collateral Agent or the Collateral Agent's nominee(s). In addition,
subject to Section 8(d) hereof, with respect to any Collateral that shall
then be in or shall thereafter come into the possession or custody of the
Collateral Agent, the Collateral Agent may sell or cause the same to be
sold at any broker's board or at public or private sale, in one or more
sales or lots, at such price or prices as the Collateral Agent may deem
best, for cash or on credit or for future delivery, without assumption of
any credit risk. The purchaser of any or all Collateral so sold shall
thereafter hold the same absolutely, free from any claim, encumbrance or
right of any kind whatsoever. Unless any of the Collateral threatens to
decline speedily in value or is or becomes of a type sold on a recognized
market, the Collateral Agent will give the Pledgors reasonable notice of
the time and place of any public sale thereof, or of the time after which
any private sale or other intended disposition is to be made. Any
requirements of reasonable notice shall be met if such notice is mailed
to the Pledgors as provided in Section 12(a) herein, at least thirty (30)
days before the time of the sale or disposition. The Collateral Agent or
any Holder may, in its own name or in the name of a designee or nominee,
buy any of the Collateral at any public sale and, if permitted by
applicable law, at any private sale. All expenses (including court costs
and reasonable attorneys' fees, expenses and disbursements) of, or
incident to, the enforcement of any of the provisions hereof shall be
recoverable from the proceeds of the sale or other disposition of the
Collateral.
(b) In view of the fact that federal and state securities laws
may impose certain restrictions on the method by which a sale of certain
of the Collateral may be effected after an Event of Default, each Pledgor
agrees that upon the occurrence and during the continuance of an Event of
Default, subject to Section 8(d) hereof, the Collateral Agent may, from
time to time, attempt to sell all or any part of the Collateral by means
of a private placement, restricting the prospective purchasers to those
who will represent and agree that they are purchasing for investment only
and not for distribution. In so doing, the Collateral Agent may solicit
offers to buy the Collateral, or any part of it, for cash, from a limited
number of investors who might be interested in purchasing the Collateral.
Each Pledgor acknowledges and agrees that any such private sale may
result in prices and terms less favorable than if such sale were a public
sale and, notwithstanding such circumstances, agrees that any such
private sale shall be deemed to have been made in a commercially
reasonable manner. The Collateral Agent shall be under no obligation to
delay a sale of any of the Collateral for the period of time necessary to
permit the Pledgors to cause the Issuer to register such securities for
public sale under the Securities Act, or under applicable state
securities laws, even if the Pledgors could cause the Issuer to do so.
(c) Each Pledgor further agrees to use its best efforts to do or
cause to be done all such other acts as may be necessary to make such
sale or sales of all or any portion of the Collateral pursuant to this
Section 8 valid and binding and in compliance with any and all other
applicable requirements of law. Each Pledgor further agrees that a breach
of any of the covenants contained in this Section 8 will cause
irreparable injury to the Collateral Agent and the Holders, that the
Collateral Agent and the Holders have no adequate remedy at law in
respect of such breach and, as a consequence, that each and every
covenant contained in this Section 8 shall be specifically enforceable
against the Pledgors by the Collateral Agent, and each Pledgor hereby
waives and agrees not to assert any defenses against an action for
specific performance of such covenants except for a defense that no Event
of Default has occurred and is continuing.
(d) Notwithstanding anything to the contrary contained in this
Pledge Agreement, the Collateral Agent shall not:
(i) if the Senior Notes are still outstanding, be required to
take any action with respect to the foreclosure upon or disposition of
the Collateral until and unless (A) any Event of Default has occurred and
is continuing, and (B) the Collateral Agent has received, and is acting
pursuant to the authority granted to it under, written instructions from
Senior Holders holding of record at least a majority of the outstanding
principal amount of the Senior Notes; and
(ii) if the Senior Notes are no longer outstanding, be required
to take any action with respect to the foreclosure upon or disposition of
the Collateral until and unless (A) any Event of Default (as defined in
the Subordinated Indenture) has occurred and is continuing, and (B) the
Collateral Agent has received, and is acting pursuant to the authority
granted to it under, written instructions from Subordinated Holders
holding of record at least a majority of the outstanding principal amount
of the Subordinated Notes.
SECTION 9. IRREVOCABLE AUTHORIZATION AND INSTRUCTION TO THE ISSUER.
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Each Pledgor hereby authorizes and instructs each Issuer to comply
with any instruction received by such Issuer from the Collateral Agent that
(i) states that an Event of Default has occurred and is continuing and (ii) is
otherwise in accordance with the terms of this Pledge Agreement, without any
other or further instructions from either Pledgor, and each Pledgor agrees
that each Issuer shall be fully protected in so complying.
SECTION 10. COLLATERAL ACCOUNT; DISTRIBUTIONS.
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(a) On the Effective Date there shall be established and, at all
times thereafter until this Pledge Agreement shall have terminated, there
shall be maintained with the Collateral Agent at the office of the
Collateral Agent's corporate trust division an account which shall be
entitled the "Comdisco Collateral Account" (the "Collateral Account").
All moneys which are required by this Pledge Agreement to be delivered to
the Collateral Agent while an Event of Default has occurred and is
continuing and all proceeds of Sales of Collateral shall be deposited in
the Collateral Account and held by the Collateral Agent as Collateral and
applied in accordance with the terms of this Pledge Agreement. Upon the
waiver or cure of any such Event(s) of Default, the Collateral Agent
shall cause all funds on deposit in the Collateral Account (other than
amounts representing Proceeds of Collateral sold or otherwise disposed of
by the Collateral Agent pursuant to the terms hereof) to be forthwith
paid over to the Pledgors.
(b) The Collateral Agent shall invest and reinvest moneys on
deposit in the Collateral Account at any time in any of the following
(provided, in each case, that the Collateral Agent shall have a
perfected, first priority security interest therein):
(i) marketable obligations of the United States having a
maturity of not more than three months from the date of acquisition;
(ii) marketable obligations directly and fully guaranteed by
the United States having a maturity of not more than three months from
the date of acquisition;
(iii) bankers' acceptances and certificates of deposit and
other interest-bearing obligations issued by Citibank, N.A., Xxxxx Fargo
Bank Minnesota, National Association or any other bank organized under
the laws of the United States or any state thereof with capital, surplus
and undivided profits aggregating at least $100,000,000, in each case
having a maturity of not more than three months from the date of
acquisition;
(iv) repurchase obligations with a term of not more than one
day for underlying securities of the types described in clauses (i), (ii)
and (iii) above entered into with Citibank, N.A., Xxxxx Fargo Bank
Minnesota, National Association or any other bank meeting the
qualifications specified in clause (iii) above; and
(v) commercial paper rated at least A-1 or the equivalent
thereof by Standard & Poor's, a division of the XxXxxx-Xxxx Companies, or
P-1 or the equivalent thereof by Xxxxx'x Investors Service, Inc. and
maturing within six months after the date of acquisition;
provided that unless an Event of Default has occurred and is continuing, the
Collateral Agent shall not make any such investment except at the written
direction of the Pledgors. All such investments and the interest and income
received thereon and the net proceeds realized on the sale or redemption
thereof shall be held in the Collateral Account.
(c) All moneys held by the Collateral Account or received by the
Collateral Agent shall, to the extent available for distribution (it
being understood that the Collateral Agent may liquidate investments
prior to maturity in order to make a distribution pursuant to this
Section 10(b), be distributed as soon as reasonably practicable by the
Collateral Agent in the following order of priority:
First: to the Collateral Agent for any unpaid fees and other
amounts due to the Collateral Agent hereunder or to the trustees under
the Indentures;
Second: to the Senior Holders in an amount equal to the
unpaid principal amount of, and unpaid interest on, the Senior Notes then
due and payable (including, without limitation, by virtue of the
mandatory redemption provisions contained in the Senior Indenture), and,
if such moneys shall be insufficient to pay such amounts in full, then
ratably (without priority of any one over any other) to the Senior
Holders in proportion to the unpaid amounts thereof on such date.
Third: to the Senior Holders, amounts equal to all other
sums which constitute Obligations owed to them that are then due and
payable, including without limitation the costs and expenses of the
Senior Holders and their representatives which are reimbursable under the
terms of the Senior Indenture and which constitute Obligations as of such
date, and, if such moneys shall be insufficient to pay such sums in full,
then ratably to the Senior Holders in proportion to such sums;
Fourth: to the Subordinated Holders in an amount equal to
the unpaid principal amount of, and unpaid interest on, the Subordinated
Notes then due and payable, (including, without limitation, by virtue of
the mandatory redemption provisions contained in the Subordinated
Indenture), and, if such moneys shall be insufficient to pay such amounts
in full, then ratably (without priority of any one over any other) to the
Subordinated Holders in proportion to the unpaid amounts thereof on such
date.
Fifth: to the Subordinated Holders, amounts equal to all
other sums which constitute Obligations owed to them that are then due
and payable, including without limitation the costs and expenses of the
Subordinated Holders and their representatives which are reimbursable
under the terms of the Subordinated Indenture and which constitute
Obligations as of such date, and, if such moneys shall be insufficient to
pay such sums in full, then ratably to the Subordinated Holders in
proportion to such sums; and
Sixth: any surplus then remaining shall be paid to the Pledgors
or their successors or assigns or to whomsoever may be lawfully entitled
to receive the same or as a court of competent jurisdiction may direct.
(d) In making the determinations and allocations required by
this Section 10, the Collateral Agent may conclusively rely (i) upon the
Senior Indenture Trustee as to the amounts payable with respect to
Obligations constituting unpaid principal or interest under the Senior
Notes and the Senior Indenture, (ii) upon the Subordinated Indenture
Trustee as to the amounts payable with respect to Obligations
constituting unpaid principal or interest under the Subordinated Notes
and the Subordinated Indenture and (iii) upon information supplied by any
Holder or either Pledgor as to any other amounts payable with respect to
other Obligations, and the Collateral Agent shall have no liability to
any Holder for actions taken in reliance on any such information,
provided, that nothing in this sentence shall prevent any Pledgor from
contesting any amounts claimed by any Holder in any information so
supplied.
SECTION 11. CONCERNING THE COLLATERAL AGENT
-------------------------------
(a) Appointment of Collateral Agent. The Senior Indenture
Trustee, on behalf of the Senior Holders, and the Subordinated Indenture
Trustee, on behalf of the Senior Holders, hereby appoint Xxxxx Fargo Bank
Minnesota, National Association to act as Collateral Agent pursuant to
the terms of this Pledge Agreement and the other Pledge Documents, and
the Collateral Agent hereby accepts such appointment. The relationship
between the Collateral Agent, the Senior Indenture Trustee, the
Subordinated Indenture Trustee and the holders of the Notes is and shall
be that of agent and principal only, and nothing contained in this Pledge
Agreement, the Indentures, the Notes or the Pledge Documents shall be
construed to constitute the Collateral Agent as a trustee for any such
holder.
(b) Limitations on Responsibility of Collateral Agent. The
Collateral Agent shall not be responsible in any manner whatsoever for
the correctness of any recitals, statements, representations or
warranties contained herein or in any Pledge Document, except for those
made by it herein. The Collateral Agent makes no representation as to the
value or condition of the Collateral or any part thereof, as to the title
of either Pledgor to the Collateral, as to the security afforded by this
Pledge Agreement or any other Pledge Document or as to the validity,
execution, enforceability, legality or sufficiency of this Pledge
Agreement or any Pledge Document, and the Collateral Agent shall incur no
liability or responsibility in respect of any such matters. Except as may
be expressly provided in any Pledge Document, the Collateral Agent shall
not be responsible for insuring the Collateral, for the payment of taxes,
charges, assessments or liens upon the Collateral or otherwise as to the
maintenance of the Collateral, except as provided in the immediately
following sentence when the Collateral Agent has possession of the
Collateral. The Collateral Agent shall have no duty to the Pledgors or to
the holders of the Notes as to any Collateral in its possession or
control or in the possession or control of any agent or nominee of the
Collateral Agent or any income thereon or as to the preservation of
rights against prior parties or any other rights pertaining thereto,
except the duty to accord such of the Collateral as may be in its
possession substantially the same care as it accords its own assets and
the duty to account for monies received by it. The Collateral Agent shall
have no obligations to file any UCC financing statements or UCC
continuation statements except at the written direction of the Pledgors
and upon receipt of such statements completed and in a proper form for
filing provided to the Collateral Agent at least fifteen Business Days in
advance of any requested filing date. The Collateral Agent shall not be
responsible for the consequences of any oversight or error of judgment
whatsoever, except that the Collateral Agent shall be liable for losses
due to its willful misconduct or gross negligence. The Collateral Agent
shall not be required to ascertain or inquire as to the performance by
either Pledgor of any of the covenants or agreements contained herein or
in the Indentures, the Notes or the Pledge Documents. Neither the
Collateral Agent nor any officer, agent or representative thereof shall
be personally liable for any action taken or omitted to be taken by any
such person in connection with this Pledge Agreement or any other Pledge
Document except for such person's own negligence or willful misconduct.
Neither the Collateral Agent nor any officer, agent or representative
thereof shall be personally liable for any action taken by any such
person in accordance with any written notice given by the Senior
Indenture Trustee and/or the Subordinated Indenture Trustee pursuant to
the terms of this Pledge Agreement even if, at the time such action is
taken by any such person, the Senior Indenture Trustee or the
Subordinated Indenture Trustee, as the case may be, is not entitled to
give such notice, except where the account officer of the Collateral
Agent responsible for the Pledgors' accounts has actual knowledge that
the Senior Indenture Trustee or the Subordinated Indenture Trustee is not
entitled to give such notice. The Collateral Agent may execute any of the
powers granted under this Pledge Agreement or any of the other Pledge
Documents and perform any duty hereunder or thereunder either directly or
by or through agents or attorneys-in-fact, and shall not be responsible
for the misconduct of any agents or attorneys-in-fact selected by it with
due care.
(c) Rights and Duties of Collateral Agent.
(i) Whenever in the performance of its duties under this
Pledge Agreement the Collateral Agent shall deem it necessary or
desirable that a matter be proved or established with respect to any
Person in connection with the taking, suffering or omitting of any action
hereunder by the Collateral Agent, such matter may be conclusively deemed
to be proved or established by a certificate executed by an officer of
such Person, and absent gross negligence or willful misconduct, the
Collateral Agent shall have no liability with respect to any action
taken, suffered or omitted in reliance thereon.
(ii) The Collateral Agent may consult with counsel and, in
the absence of bad faith, shall be fully protected in taking any action
hereunder in accordance with any advice of such counsel. The Collateral
Agent shall have the right but not the obligation at any time to seek
instructions concerning the administration of this Pledge Agreement, the
duties created hereunder or any of the Collateral from any court of
competent jurisdiction.
(iii) The Collateral Agent shall be fully protected in
relying upon any resolution, statement, certificate, instrument, opinion,
report, notice, request, consent, order or other paper or document which
it believes to be genuine and to have been signed or presented by the
proper party or parties. In the absence of its negligence or willful
misconduct the Collateral Agent may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein,
upon any certificate or opinions furnished to the Collateral Agent in
connection with this Pledge Agreement and the other Pledge Documents.
(iv) The Collateral Agent shall not be deemed to have
actual, constructive, direct or indirect notice or knowledge of the
occurrence of any Event of Default unless and until the Collateral Agent
shall have received a written notice of Event of Default. The Collateral
Agent shall have no obligation whatsoever either prior to or after
receiving such a notice of Event of Default to inquire whether an Event
of Default has, in fact, occurred and shall be entitled to rely
conclusively, and shall be fully protected in so relying, on any
certificate so furnished to it and shall have no obligation, absent
written instructions from the Senior Indenture Trustee or the
Subordinated Indenture Trustee, to take or omit to take any action with
respect to such notice of Event of Default.
(v) If the Collateral Agent has been requested by the Senior
Indenture Trustee or the Subordinated Indenture Trustee to take any
specific action pursuant to any provision of this Pledge Agreement or the
other Pledge Documents, the Collateral Agent shall not be under any
obligation to exercise any of the rights or powers vested in it by this
Pledge Agreement and the other Pledge Documents in the manner so
requested unless, if so requested by the Collateral Agent, it shall have
been provided indemnity reasonably satisfactory to it against the costs,
expenses and liabilities which may be incurred by it in compliance with
such request or direction.
(vi) If any dispute or disagreement shall arise as to the
allocation of any sum of money received by the Collateral Agent
hereunder, under the Indentures or under any Pledge Document, the
Collateral Agent shall have the right to deliver such sum to a court of
competent jurisdiction and therein commence an action for interpleader.
(d) Resignation or Replacement of the Collateral Agent. A
resignation or removal of the Collateral Agent and appointment of a
successor Collateral Agent shall become effective only upon the successor
Collateral Agent's acceptance of appointment as provided in this Section
11(d).
(i) The Collateral Agent may resign in writing at any time
and be discharged from the trust hereby created by so notifying the
Pledgors, the Senior Indenture Trustee and the Subordinated Indenture
Trustee. The holders of a majority in principal amount of the then
outstanding Senior Notes, and after payment in full of the Obligations
with respect to the Senior Notes the holders of a majority in principal
amount of the then outstanding Subordinated Notes, may remove the
Collateral Agent by so notifying the Collateral Agent and the Pledgors in
writing. The Pledgors may remove the Collateral Agent if:
(A) the Collateral Agent is adjudged a bankrupt or
an insolvent or an order for relief is entered with respect
to the Collateral Agent under Title 11, U.S. Code or any
similar federal or state law for the relief of debtors;
(B) a custodian or public officer takes charge of
the Collateral Agent or its property; or
(C) the Collateral Agent becomes incapable of acting.
(ii) If the Collateral Agent resigns or is removed or if a
vacancy exists in the office of Collateral Agent for any reason, the
Pledgors shall promptly appoint a successor Collateral Agent. Within one
year after the successor Collateral Agent takes office, the holders of a
majority in principal amount of the then outstanding Senior Notes, and
after payment in full of all Obligations in respect of the Senior Notes
the holders of a majority in principal amount of the then outstanding
Subordinated Notes, may appoint a successor Collateral Agent to replace
the successor Collateral Agent appointed by the Pledgors.
(iii) If a successor Collateral Agent does not take office
within 60 days after the retiring Collateral Agent resigns or is removed,
the retiring Collateral Agent, the Pledgors 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
Collateral Agent.
(iv) A successor Collateral Agent shall deliver a written
acceptance of its appointment to the retiring Collateral Agent, the
Senior Indenture Trustee, the Subordinated Indenture Trustee and the
Pledgors. Thereupon, the resignation or removal of the retiring
Collateral Agent shall become effective, and the successor Collateral
Agent shall have all the rights, powers and duties of the Collateral
Agent under this Pledge Agreement. The successor Collateral Agent shall
mail a notice of its succession to the Senior Indenture Trustee and the
Subordinated Indenture Trustee. The retiring Collateral Agent shall
promptly transfer all property held by it as Collateral Agent to the
successor Collateral Agent, provided all sums owing to the Collateral
Agent hereunder have been paid. Notwithstanding replacement of the
Collateral Agent pursuant to this Section 11(d), the Pledgor's
obligations under Section 11(e) hereof shall continue for the benefit of
the retiring Collateral Agent, and the Pledgors shall pay to any such
replaced or removed Collateral Agent all amounts owed to such replaced or
removed Collateral Agent under Section 11(e) hereof upon such replacement
or removal.
(e) Compensation and Indemnity.
(i) The Pledgors jointly and severally agree to pay to the
Collateral Agent from time to time such compensation as the Pledgors and
the Collateral Agent shall from time to time agree in writing for its
acceptance of this Pledge Agreement and services hereunder and under the
other Pledge Documents. The Collateral Agent's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The
Pledgors jointly and severally agree to reimburse the Collateral Agent
promptly upon request for all reasonable expenses, disbursements and
advances of the Collateral Agent (including the reasonable compensation
and the reasonable expenses and disbursements of its agents and counsel).
(ii) The Pledgors jointly and severally agree to indemnify
the Collateral Agent 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 Pledge Agreement and the other
Pledge Documents, including the costs and expenses of enforcing this
Pledge Agreement and the other Pledge Documents against the Pledgors
(including this Section 11(e)) and defending itself against any claim
(whether asserted by the Pledgors or any holder of Notes 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 Collateral Agent shall notify the
Pledgors promptly of any claim for which it may seek indemnity. Failure
by the Trustee to so notify the Pledgors shall not relieve the Pledgors
of its obligations hereunder. The Pledgors shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Pledgors shall pay the reasonable fees and expenses of
such counsel. The Pledgors need not pay for any settlement made without
its consent, which consent shall not be unreasonably withheld.
(iii) The obligations of the Pledgors under this Section
shall survive the termination of this Pledge Agreement and the
satisfaction and discharge of the Indentures.
(f) Release of Collateral.
(i) The Trustee is hereby authorized to release any
Collateral pursuant to the provisions of the Indentures and the Pledge
Documents.
(ii) Whether or not so instructed by the Senior Indenture
Trustee and the Subordinated Indenture Trustee, the Collateral Agent may
release any Collateral and may provide any release, termination statement
or instrument of subordination required by order of a court of competent
jurisdiction or otherwise required by applicable law; provided that the
Collateral Agent notifies the Pledgors, the Senior Indenture Trustee and
the Subordinated Indenture Trustee prior to the release and gives the
Pledgor, the Senior Indenture Trustee or the Subordinated Indenture
Trustee the opportunity to contest such release within two (2) Business
Days.
(g) Priority of Rights Against Collateral and Proceeds Thereof.
(i) If the Collateral Agent receives any cash amounts in
respect of the Collateral (which amounts, under the terms of the
Indentures or any of the Pledge Documents, are to be applied to any of
the Obligations under the Senior Indenture or the Subordinated
Indenture), including, without limitation, any net proceeds received by
the Collateral Agent during an insolvency proceeding or in connection
with any sale, exchange, destruction, condemnation, or other disposition
of any of the Collateral (such net proceeds to be deemed to include any
amounts received by the Collateral Agent underss.507(b) of the United
States Bankruptcy Code as compensation for a failure of adequate
protection in the context of an insolvency proceeding), such cash amounts
shall be paid forthwith to the Senior Indenture Trustee and the
Subordinated Indenture Trustee to be applied in accordance with the terms
and conditions of the Indentures, the Pledge Documents and this Pledge
Agreement.
(ii) If the Collateral Agent receives any non-cash
distributions or proceeds in respect of the Collateral, then, unless the
Pledge Documents expressly provide to the contrary, the Collateral Agent
shall hold such non-cash distributions and proceeds as Collateral upon
the terms of this Pledge Agreement, the Pledge Documents and the
Indentures until converted to cash and thereupon distributed in
accordance with the provisions of the Indenture, the Pledge Documents and
this Pledge Agreement.
(h) Recourse of Senior Indenture Trustee and of Subordinated
Indenture Trustee to Collateral. The Senior Indenture Trustee and the
Subordinated Indenture Trustee (i) shall only have recourse to the
Collateral through the Collateral Agent and they shall have no
independent recourse to the Collateral and (ii) the Collateral Agent
shall have no obligation to take any action, or refrain from taking any
action, except upon written instructions from the Senior Indenture
Trustee and the Subordinated Indenture Trustee in accordance with the
terms of this Pledge Agreement.
(i) Acts of Senior Indenture Trustee and of Subordinated
Indenture Trustee. Any request, demand, authorization, direction, notice,
consent, waiver or other action permitted or required by this Pledge
Agreement to be given or taken by the Senior Indenture Trustee or the
Subordinated Indenture Trustee, may be and, at the request of the
Collateral Agent, shall be embodied in and evidenced by one or more
instruments reasonably satisfactory in form to the Collateral Agent and
signed by or on behalf of the Senior Indenture Trustee or the
Subordinated Indenture Trustee, as the case may be, and, except as
otherwise expressly provided in any such instrument, any such action
shall become effective when such instrument or instruments shall have
been delivered to the Collateral Agent. The instrument or instruments
evidencing any action (and the action embodied therein and evidenced
thereby) are sometimes referred to herein as an "Act" of the Persons
signing such instrument or instruments. The Collateral Agent shall be
entitled to rely absolutely upon an Act of the Senior Indenture Trustee
or the Subordinated Indenture Trustee, as the case may be, if such Act
purports to be taken by or on behalf of the Senior Indenture Trustee or
the Subordinated Indenture Trustee, and nothing in this Section 11(i) or
elsewhere in this Pledge Agreement shall be construed to require the
Senior Indenture Trustee or the Subordinated Indenture Trustee to
demonstrate that it has been authorized by the holders of Senior Notes or
Subordinated Notes, as the case may be, to take any action which it
purports to be taking, the Collateral Agent being entitled to rely
conclusively, and being fully protected in so relying, on any Act of the
Senior Indenture Trustee or the Subordinated Indenture Trustee.
(j) Notices by the Collateral Agent. The Collateral Agent
shall within three (3) Business Days following receipt thereof furnish to
each of the Senior Indenture Trustee, the Subordinated Indenture Trustee,
the holders of the Notes and the Pledgors: (a) written notice of any
release or subordination by the Collateral Agent of any Collateral; and
(b) subject to the provisions of this Pledge Agreement such other notices
required by the terms of this Pledge Agreement to be furnished by the
Collateral Agent.
(k) Actions Under Pledge Documents. The Collateral Agent
shall not be obligated to take any action under this Pledge Agreement or
any of the other Pledge Documents except for the performance of such
duties as are specifically set forth herein or therein or as may be
requested in writing by the holders of the Notes required hereunder.
Subject to the provisions of this Pledge Agreement, the Collateral Agent
shall take any action under or with respect to the Pledge Documents which
is requested by the holders of the Notes required hereunder and which
request shall not be contrary to this Pledge Agreement and the
Indentures; provided that the Collateral Agent shall not amend or waive
any provision of the Pledge Documents except in accordance with the terms
hereof. The Collateral Agent shall, subject in all cases to the
provisions of this Pledge Agreement, exercise or refrain from exercising
all such rights, powers and remedies as shall be available to it under
the Pledge Documents or any of them in accordance with any written
instructions received from the holders of the Notes. The Collateral Agent
shall have the right to decline to follow any such direction if the
Collateral Agent, being advised in writing by counsel, determines that
the directed action is not permitted by the terms of this Pledge
Agreement, the Pledge Documents, the Indentures or the Notes, may not
lawfully be taken or could reasonably be expected to jeopardize its
rights with respect to the Collateral. Subject to the provisions of this
Pledge Agreement, the Collateral Agent may rely on any such written
direction given to it by the holders of the Notes and shall be fully
protected, and shall under no circumstances (absent the negligence or
willful misconduct of the Collateral Agent) be liable to the Pledgors,
any holder of Notes or any other Person for taking or refraining from
taking action in accordance therewith. In the absence of written
instructions (which may relate to the exercise of specific remedies or to
the exercise of remedies in general) from the holders of the Notes as
provided herein, the Collateral Agent shall not exercise remedies
available to it under any Pledge Documents with respect to the Collateral
or any part thereof.
(l) Rights of Collateral Agent. Notwithstanding the
provisions of this Pledge Agreement or any other provision of the
Indentures, the Subordinated Indenture Trustee shall not be charged with
knowledge of the existence of any facts that would prohibit the making of
any payment or distribution by the Subordinated Indenture Trustee, and
the Subordinated Indenture Trustee may continue to make payments on the
Subordinated Notes, unless the Subordinated Indenture Trustee shall have
received at least five (5) Business Days prior to the date of such
payment written notice of facts that would cause the payment of any
Obligations with respect to the Subordinated Notes to violate this Pledge
Agreement or the Subordinated Indenture. Only the Pledgors or the Senior
Indenture Trustee may give the notice. Nothing in this Pledge Agreement
or the Subordinated Indenture shall impair the claims of, or payments to,
the Collateral Agent under or pursuant to the Indentures.
SECTION 12. MISCELLANEOUS PROVISIONS.
------------------------
(a) Notices. All notices, approvals, consents or other
communications required or desired to be given hereunder shall be in the
form and manner, and delivered to each of the parties hereto at their
respective addresses, as set forth in Section 12.02 of the Senior
Indenture and Section 13.02 of the Subordinated Indenture.
(b) Severability. The provisions of the Pledge Documents are
severable, and, if any clause or provision shall be held invalid, illegal
or unenforceable in whole or in part in any jurisdiction, then such
invalidity or unenforceability shall affect in that jurisdiction only
such clause or provision, or part thereof, and shall not in any manner
affect such clause or provision in any other jurisdiction or any other
clause or provision of any Pledge Document in any jurisdiction.
(c) Headings. The headings in this Pledge Agreement have been
inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms or
provisions hereof.
(d) Counterpart Originals. This Pledge Agreement may be signed
in two or more counterparts, each of which shall be deemed an original,
but all of which shall together constitute one and the same agreement.
(e) Benefits of Pledge Agreement. Nothing in this Pledge
Agreement, express or implied, shall give to any person or entity, other
than the parties hereto and the beneficiaries whom they represent or act
for, and their respective successors and permitted assigns, any benefit
or any legal or equitable right, remedy or claim under the Pledge
Documents.
(f) Amendments, Waivers and Consents. Any amendment or waiver of
any provision of this Pledge Agreement and any consent to any departure
by any Pledgor from any provision of any Pledge Document shall be
effective only if made or given in compliance with all of the terms and
provisions of the Indentures, and the Collateral Agent shall not be
deemed, by any act, delay, indulgence, omission or otherwise (other than
as expressly set forth in a writing signed by the Collateral Agent), to
have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default or in any breach of any of the terms and
conditions hereof. Failure of the Collateral Agent to exercise, or delay
in exercising, any right, power or privilege hereunder shall not operate
as a waiver thereof. No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. A waiver by the
Collateral Agent of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy that the
Collateral Agent would otherwise have on any future occasion. The rights
and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any rights or remedies provided by
law.
(g) Interpretation of Pledge Documents. Time is of the essence
in each provision of the Pledge Documents of which time is an element. To
the extent a term or provision of this Pledge Agreement conflicts with
the Indentures, the Indentures shall control with respect to the subject
matter of such term or provision. Acceptance of or acquiescence in a
course of performance rendered under the Pledge Documents shall not be
relevant to determine the meaning of any Pledge Document even though the
accepting or acquiescing party had knowledge of the nature of the
performance and opportunity for objection.
(h) Continuing Security Interest. The Pledge Documents shall
create a continuing security interest in the Collateral and shall (i)
unless otherwise provided in the Indentures or in the Pledge Documents,
remain in full force and effect until all principal and interest on the
Notes, and all other Obligations then due and payable, have been paid in
full, (ii) be binding upon each Pledgor and its successors and assigns
and (iii) inure to the benefit of the Collateral Agent and the Holders
and their respective successors and permitted transferees and assigns.
(i) Security Interest Absolute. All rights of the Collateral
Agent, and all obligations of the Pledgors, hereunder, shall be absolute
and unconditional irrespective of:
(i) any lack of validity or enforceability of either
Indenture or any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to any departure from any
Indenture;
(iii) any exchange, surrender, release or non-perfection of
any Liens on any other collateral, or any release or amendment or waiver
of or consent to departure from any guarantee, for all or any of the
Obligations; or
(iv) any other circumstance which might otherwise constitute
a defense available to, or a discharge of, any Pledgor in respect of the
Obligations or of the Pledge Documents.
(j) Reinstatement. The Pledge Documents shall continue to be
effective or be reinstated, as the case may be, if at any time any amount
received by the Collateral Agent or any Holder in respect of the
Obligations is rescinded or must otherwise be restored or returned by the
Collateral Agent or any Holder upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of either Pledgor or upon the
appointment of any receiver, intervenor, conservator, trustee or similar
official for either Pledgor or any substantial part of its assets, or
otherwise, all as though such payments had not been made.
(k) Survival of Representations. All representations and
warranties of the Pledgors contained herein shall survive the execution
and delivery of the Pledge Documents.
(l) Power of Attorney. In addition to all of the powers granted
to the Collateral Agent pursuant to Article 7 of the Indentures, each
Pledgor hereby appoints and constitutes the Collateral Agent as such
Pledgor's attorney-in-fact to exercise all of the following powers upon
and at any time after the occurrence and during the continuance of an
Event of Default: (i) collection of Proceeds; (ii) conveyance of any item
of Collateral to any purchaser thereof; (iii) exercising voting and other
consensual rights under Section 5(d) hereof; (iv) collecting dividends or
other distributions under Section 5(f); (v) giving of any notices or
recording of any Liens under Section 6(b) hereof; (vi) making of any
payments or taking any acts under Section 6(f) hereof; and (vii) paying
or discharging taxes or Liens levied or placed upon or threatened against
the Collateral, the legality or validity thereof and the amounts
necessary to discharge the same to be determined by the Collateral Agent
in its sole discretion, and such payments made by the Collateral Agent to
become the Obligations of the Pledgors to the Collateral Agent, due and
payable immediately upon demand. The Collateral Agent's authority
hereunder shall include, without limitation, the authority to endorse and
negotiate any checks or instruments constituting Collateral in the name
of the appropriate Pledgor, execute and give receipt for any document,
transfer title to any item of Collateral, prepare and file all financing
statements describing the Collateral or any other documents deemed
necessary or appropriate by the Collateral Agent to preserve, protect or
perfect the security interest in the Collateral and to file the same, and
to take any other actions arising from or incident to the powers granted
to the Collateral Agent in this Pledge Agreement. This power of attorney
is coupled with an interest and is irrevocable by the Pledgors.
(m) Waivers. Each Pledgor waives presentment and demand for
payment of any of the Obligations, protest and notice of dishonor or
default with respect to any of the Obligations, and all other notices to
which such Pledgor might otherwise be entitled, except as otherwise
expressly provided herein or in the Indentures.
(n) Authority of the Collateral Agent.
(i) The Collateral Agent shall have and be entitled to
exercise all powers hereunder that are specifically granted to the
Collateral Agent by the terms hereof, together with such powers as are
reasonably incident thereto. The Collateral Agent may perform any of its
duties hereunder or in connection with the Collateral by or through
agents or employees and shall be entitled to retain counsel and to act in
reliance upon the advice of counsel concerning all such matters. Neither
the Collateral Agent, any director, officer, employee, attorney or agent
of the Collateral Agent nor any Holder shall be liable to the Pledgors
for any action taken or omitted to be taken by it or them hereunder,
except for its or their own negligence or bad faith, nor shall the
Collateral Agent be responsible for the validity, effectiveness or
sufficiency hereof or of any document or security furnished pursuant
hereto. The Collateral Agent and its directors, officers, employees,
attorneys and agents shall be entitled to rely on any communication,
instrument or document believed by it or them to be genuine and correct
and to have been signed or sent by the proper person or persons.
(ii) Each Pledgor acknowledges that the rights and
responsibilities of the Collateral Agent under this Pledge Agreement with
respect to any action taken by the Collateral Agent or the exercise or
non-exercise by the Collateral Agent of any option, right, request,
judgment or other right or remedy provided for herein or resulting or
arising out of this Pledge Agreement shall, as between the Collateral
Agent and the Holders, be governed by the Indentures and by such other
agreements with respect thereto as may exist from time to time among
them, but, as between the Collateral Agent and the Pledgors, the
Collateral Agent shall be conclusively presumed to be acting as agent for
the Holders with full and valid authority so to act or refrain from
acting, and neither Pledgor shall be obligated or entitled to make any
inquiry respecting such authority.
(o) Release; Termination of Pledge Agreement.
(i) This Pledge Agreement shall terminate upon (A) payment
in full of all principal and interest on the Notes and all other
Obligations that are then due and payable (including, payment in full of
all fees and expenses owing by the Pledgors to the Collateral Agent), and
(B) receipt by the Collateral Agent of an Officers' Certificate to the
effect that all such Obligations have been paid in full.
(ii) Upon any termination of the Pledge Documents or release
of Collateral as permitted by the Indentures, the Collateral Agent will,
at the expense of the Pledgors, execute and deliver to the Pledgors such
documents and take such other actions as the Pledgors shall reasonably
request to evidence the termination of the Pledge Documents and the Lien
created thereby or the release of such Collateral, as the case may be.
Any such action taken by the Collateral Agent shall be without warranty
by or recourse to the Collateral Agent, except as to the absence of any
prior assignments by the Collateral Agent of its interests in the
Collateral, and shall be at the expense of the Pledgors. The Collateral
Agent may conclusively rely on any Officers' Certificate delivered to it
by either Pledgor stating that the execution of such documents and
release of the Collateral is in accordance with and permitted by the
terms of the Pledge Documents and the Indentures.
(p) No Duty. The powers conferred on the Collateral Agent
hereunder are solely to protect the interest of the Collateral Agent and
the Holders in the Collateral and shall not impose any duties on the
Collateral Agent or any Holder to exercise such powers. Except for the
exercise of reasonable care in the custody of any Collateral in its
possession and the accounting for any monies actually received by it
hereunder or under the Indentures, the Collateral Agent shall have no
duty as to any Collateral or as to the taking of any necessary steps to
preserve rights against prior parties or any other rights pertaining to
the Collateral. The Collateral Agent shall be deemed to exercise
reasonable care in the custody and preservation of the Collateral if the
Collateral is accorded treatment substantially equal to that which the
Collateral Agent accords its own property, it being understood that the
Collateral Agent shall have no responsibility for (i) ascertaining or
taking action with respect to calls, conversions, exchanges, maturities,
tenders or other matters relative to any Collateral, whether or not the
Collateral Agent has or is deemed to have knowledge of such matters, or
(ii) collection of any proceeds of any Collateral or by reason of any
invalidity, lack of value or uncollectibility of any of the payments
received by it from obligors or otherwise.
(q) Payment of Fees and Expenses. Each Pledgor jointly and
severally agrees to pay upon demand by the Collateral Agent, without
duplication, the amount of all reasonable expenses, including without
limitation, the reasonable fees, expenses and disbursements of its
counsel and agents retained by the Collateral Agent that the Collateral
Agent may incur in connection with (i) administration of the Pledge
Documents, (ii) the custody, preservation, use or operation of, or the
sale of, collection from, or other realization upon, any of the
Collateral, (iii) the exercise or enforcement of any of the rights of the
Collateral Agent hereunder or (iv) the failure by either Pledgor to
perform or observe any of the provisions hereof.
(r) Final Expression. The Pledge Documents are intended by the
parties as a final expression of the Pledge Documents and are intended as
a complete and exclusive statement of the terms and conditions thereof.
(s) Limitation by Law. All rights, remedies and powers provided
herein may be exercised only to the extent that the exercise thereof does
not violate any applicable provision of law, and all the provisions
hereof are intended to be subject to all applicable mandatory provisions
of law which may be controlling and to be limited by the extent necessary
so that they will not render any of the Pledge Documents invalid,
unenforceable in whole or in part or not entitled to be recorded,
registered or filed under provisions of any applicable law.
(t) Governing Law. This Pledge Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, each Pledgor and the Collateral Agent have each
caused this Pledge Agreement to be duly executed and delivered as of the date
first above written.
PLEDGORS:
COMDISCO HOLDING COMPANY, INC.
By: /s/ Xxxxxx E.T. Xxxxxx
---------------------------------
Name: Xxxxxx E.T. Xxxxxx
Title: Vice President and Secretary
COMDISCO, INC.
By: /s/ Xxxxxx E.T. Xxxxxx
---------------------------------
Name: Xxxxxx E.T. Xxxxxx
Title: Executive Vice President,
Secretary and Chief
Legal Officer
SENIOR INDENTURE TRUSTEE:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Assistant Vice President
SUBORDINATED INDENTURE TRUSTEE:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Assistant Vice President
COLLATERAL AGENT:
XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as Collateral Agent
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Assistant Vice President
SCHEDULE I
PLEDGED SHARES
--------------
-----------------------------------------------------------------------------------------------------------------------------
| Pledgor | Issuer | Class | No. of | Certif. No. | Percentage |
| | | | Shares | | of Class |
|---------------------------------|-----------------------------------------|-----------|----------|-------------|------------|
| COMDISCO HOLDING COMPANY, INC. | COMDISCO, INC. | COMMON | 1,000 | 1 | 100% |
|---------------------------------|-----------------------------------------|-----------|----------|-------------|------------|
| COMDISCO HOLDING COMPANY, INC. | COMDISCO GLOBAL HOLDING COMPANY, INC. | COMMON | 1,000 | 1 | 100% |
|---------------------------------|-----------------------------------------|-----------|----------|-------------|------------|
| COMDISCO, INC. | COMDISCO DOMESTIC HOLDING COMPANY, INC. | COMMON | 1,000 | 1 | 100% |
|---------------------------------|-----------------------------------------|-----------|----------|-------------|------------|
| COMDISCO, INC. | COMDISCO VENTURES, INC. | COMMON | 1,000 | 1 | 100% |
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