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[REORGANIZED COMDISCO, INC.]
AND
[NEW LEASING CO., INC.]
11% SUBORDINATED SECURED NOTES DUE 2005
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INDENTURE
Dated as of August ___, 2002
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XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)................................................................... 7.10
(a)(2)................................................................. 7.10
(a)(3)................................................................. N.A.
(a)(4)................................................................. N.A.
(a)(5)................................................................. 7.10
(b).................................................................... 7.10
(c).................................................................... N.A.
311(a)...................................................................... 7.11
(b).................................................................... 7.11
(c).................................................................... N.A.
312(a)...................................................................... 2.05
(b).................................................................... 12.03
(c).................................................................... 12.03
313(a)...................................................................... 7.06
(b)(1)................................................................. 10.03
(b)(2)................................................................. 7.06;7.07
(c).................................................................... 7.06;12.02
(d).................................................................... 7.06
314(a)...................................................................... 4.03;12.05
(b).................................................................... 10.02
(c)(1)................................................................. 12.04
(c)(2)................................................................. 12.04
(c)(3)................................................................. N.A.
(d).................................................................... 10.03, 10.04, 10.05
(e).................................................................... 12.05
(f).................................................................... N.A.
315(a)...................................................................... 7.01
(b).................................................................... 7.05,12.02
(c).................................................................... 7.01
(d).................................................................... 7.01
(e).................................................................... 6.11
316(a) (last sentence)...................................................... 2.09
(a)(1)(A).............................................................. 6.05
(a)(1)(B).............................................................. 6.04
(a)(2)................................................................. N.A.
(b).................................................................... 6.07
(c).................................................................... 2.12; 8.04
317(a)(1)................................................................... 6.08
(a)(2)................................................................. 6.09
(b).................................................................... 2.04
318(a)...................................................................... 12.01
(b).................................................................... N.A.
(c).................................................................... 12.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.................................................................................1
Section 1.02. Other Definitions..........................................................................15
Section 1.03. Incorporation by Reference of Trust Indenture Act..........................................15
Section 1.04. Rules of Construction......................................................................15
ARTICLE 2.
THE NOTES
Section 2.01. Form and Dating............................................................................16
Section 2.02. Execution and Authentication...............................................................16
Section 2.03. Registrar and Paying Agent.................................................................17
Section 2.04. Paying Agent to Hold Money in Trust........................................................17
Section 2.05. Holder Lists...............................................................................18
Section 2.06. Transfer and Exchange......................................................................18
Section 2.07. Replacement Notes..........................................................................20
Section 2.08. Outstanding Notes..........................................................................21
Section 2.09. Treasury Notes.............................................................................21
Section 2.10. Temporary Notes............................................................................21
Section 2.11. Cancellation...............................................................................22
Section 2.12. Defaulted Interest.........................................................................22
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.........................................................................22
Section 3.02. Selection of Notes to Be Redeemed or Repurchased...........................................22
Section 3.03. Notice of Redemption.......................................................................23
Section 3.04. Effect of Notice of Redemption.............................................................23
Section 3.05. Deposit of Redemption Price................................................................23
Section 3.06. Notes Redeemed in Part.....................................................................24
Section 3.07. Optional Redemption........................................................................24
Section 3.08. Mandatory Redemption.......................................................................24
Section 3.09. Offers to Repurchase by the Issuers........................................................25
ARTICLE 4.
COVENANTS
Section 4.01. Payment of Notes...........................................................................26
Section 4.02. Maintenance of Office or Agency............................................................26
Section 4.03. Reports....................................................................................27
Section 4.04. Compliance Certificate.....................................................................27
Section 4.05. Taxes......................................................................................28
Section 4.06. Stay, Extension and Usury Laws.............................................................28
Section 4.07. Restricted Payments........................................................................28
Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries.............................29
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.................................30
Section 4.10. Transactions with Affiliates...............................................................31
Section 4.11. Liens......................................................................................32
Section 4.12. Line of Business...........................................................................33
Section 4.13. Corporate Existence; Certificate of Incorporation..........................................33
Section 4.14. Offers to Repurchase by the Company........................................................33
Section 4.15. Insurance..................................................................................34
Section 4.16. Maintenance of Property....................................................................34
Section 4.17. Limitation on Sale and Leaseback Transactions..............................................34
Section 4.18. Limitation on Issuances and Sales of Equity Interests in Subsidiaries......................35
Section 4.19. No Senior Subordinated Debt................................................................35
Section 4.20. No Amendment to Certain Provisions of the Indenture........................................35
Section 4.21. Equity Interests of the Company............................................................35
Section 4.22. Assets of the Company......................................................................35
Section 4.23. Management Incentive Plan..................................................................35
Section 4.24. Additional Note Collateral.................................................................36
Section 4.25. Consummation of Plan.......................................................................36
Section 4.26. Distributions from Subsidiaries............................................................36
ARTICLE 5.
SUCCESSORS
Section 5.01. Merger, Consolidation or the Transfer of All or Substantially All of the Assets of
the Company................................................................................36
Section 5.02. Merger, Consolidation or the Transfer of All or Substantially All of the Assets of
NLC........................................................................................37
Section 5.03. Successor Corporation Substituted..........................................................39
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default..........................................................................39
Section 6.02. Acceleration...............................................................................40
Section 6.03. Other Remedies.............................................................................40
Section 6.04. Waiver of Past Defaults....................................................................41
Section 6.05. Control by Majority........................................................................41
Section 6.06. Limitation on Suits........................................................................41
Section 6.07. Rights of Holders of Notes to Receive Payment..............................................42
Section 6.08. Collection Suit by Trustee.................................................................42
Section 6.09. Trustee May File Proofs of Claim...........................................................42
Section 6.10. Priorities.................................................................................43
Section 6.11. Undertaking for Costs......................................................................43
ARTICLE 7.
TRUSTEE
Section 7.01. Duties of Trustee..........................................................................43
Section 7.02. Rights of Trustee..........................................................................44
Section 7.03. Individual Rights of Trustee...............................................................45
Section 7.04. Trustee's Disclaimer.......................................................................45
Section 7.05. Notice of Defaults.........................................................................45
Section 7.06. Reports by Trustee to Holders of the Notes.................................................45
Section 7.07. Compensation and Indemnity.................................................................46
Section 7.08. Replacement of Trustee.....................................................................46
Section 7.09. Successor Trustee by Merger, etc...........................................................47
Section 7.10. Eligibility; Disqualification..............................................................47
Section 7.11. Preferential Collection of Claims Against Issuers..........................................48
ARTICLE 8.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 8.01. Without Consent of Holders of Notes........................................................48
Section 8.02. With Consent of Holders of Notes...........................................................48
Section 8.03. Compliance with Trust Indenture Act........................................................50
Section 8.04. Revocation and Effect of Consents..........................................................50
Section 8.05. Notation on or Exchange of Notes...........................................................50
Section 8.06. Trustee to Sign Amendments, etc............................................................50
ARTICLE 9.
SUBORDINATION
Section 9.01. Agreement to Subordinate...................................................................51
Section 9.02. Liquidation; Dissolution; Bankruptcy.......................................................51
Section 9.03. Default on Senior Indebtedness.............................................................51
Section 9.04. Acceleration of Securities.................................................................52
Section 9.05. When Distribution Must Be Paid Over........................................................52
Section 9.06. Notice by Issuers..........................................................................52
Section 9.07. Subrogation................................................................................53
Section 9.08. Relative Rights............................................................................53
Section 9.09. Subordination May Not Be Impaired by the Issuers...........................................53
Section 9.10. Distribution or Notice to Representative...................................................53
Section 9.11. Rights of Trustee and Paying Agent.........................................................54
Section 9.12. Authorization to Effect Subordination......................................................54
Section 9.13. Amendments.................................................................................54
ARTICLE 10.
COLLATERAL AND SECURITY
Section 10.01. Collateral Documents.......................................................................54
Section 10.02. Recording and Opinions.....................................................................55
Section 10.03. Release of Note Collateral.................................................................55
Section 10.04. Certificates of the Issuers................................................................56
Section 10.05. Certificates of the Trustee................................................................56
Section 10.06. Authorization of Actions to Be Taken by the Trustee Under the Collateral Documents.........56
Section 10.07. Authorization of Receipt of Funds by the Trustee Under the Collateral Documents............57
Section 10.08. Termination of Security Interest...........................................................57
ARTICLE 11.
SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction and Discharge.................................................................57
Section 11.02. Application of Trust Money.................................................................58
ARTICLE 12.
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls...............................................................58
Section 12.02. Notices....................................................................................58
Section 12.03. Communication by Holders of Notes with Other Holders of Notes..............................60
Section 12.04. Certificate and Opinion as to Conditions Precedent.........................................60
Section 12.05. Statements Required in Certificate or Opinion..............................................60
Section 12.06. Rules by Trustee and Agents................................................................60
Section 12.07. No Personal Liability of Directors, Officers, Employees, Stockholders and Agents...........60
Section 12.08. Governing Law..............................................................................61
Section 12.09. No Adverse Interpretation of Other Agreements..............................................61
Section 12.10. Successors.................................................................................61
Section 12.11. Severability...............................................................................61
Section 12.12. Counterpart Originals......................................................................61
Section 12.13. Table of Contents, Headings, etc...........................................................61
SCHEDULES
Schedule A Scheduled Cash Reserve Amount
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B LIST OF COLLATERAL DOCUMENTS
INDENTURE dated as of August ___, 2002 between [Reorganized
Comdisco, Inc.], a Delaware corporation (the "Company"), [New Leasing Co.,
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 agree as follows for the benefit
of each other and for the equal and ratable benefit of the Holders of the
11% Subordinated Secured Notes due 2005 (the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"Acquired Debt" means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such
other Person is merged with or into or became a Subsidiary of such
specified Person, whether or not such Indebtedness is incurred in
connection with, or in contemplation of, such other Person merging with or
into, or becoming a Subsidiary of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired
by such specified Person.
"Additional Notes" means additional Notes issued prior to the
payment in full of all Senior Indebtedness in respect of regularly
scheduled interest on the Notes equal in amount to the interest payment due
on such interest payment date.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this
definition, "control," as used with respect to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided,
however, that beneficial ownership of 10% or more of the Voting Stock of a
Person will be deemed to be control. For purposes of this definition, the
terms "controlling," "controlled by" and "under common control with" have
correlative meanings.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary that apply to such transfer or exchange.
"Bankruptcy Law" means Title 11, U.S. Code or any applicable
federal or state or other applicable bankruptcy, insolvency, reorganization
or other similar law for the relief of debtors.
"Board of Directors" means:
(a) with respect to a corporation, the board of directors of the
corporation;
(b) with respect to a partnership, the board of directors of the
general partner of the partnership; and
(c) with respect to any other Person, the board or committee of
such Person serving a similar function.
"Business Day" means any day other than a Legal Holiday.
"Capital Lease Obligation" means, at the time any determination is
to be made, the amount of the liability in respect of a capital lease that
would at that time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means any and all shares or other equivalents
(however designated) of capital stock, including all common stock and all
preferred stock, in the case of a corporation, or partnership interests or
other equivalents (however designated) in the case of a partnership or
common shares of beneficial interest or other equivalents (however
designated) in the case of a trust.
"Cash Equivalents" means:
(a) United States dollars;
(b) securities issued or directly and fully guaranteed or insured
by the United States government or any agency or instrumentality of the
United States government having maturities of not more than one year from
the date of acquisition;
(c) certificates of deposit and Eurodollar time deposits with
maturities of one year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year and overnight bank
deposits, in each case, with any domestic commercial bank having capital
and surplus in excess of $500.0 million and a Thomson Bank Watch Rating of
"B" or better;
(d) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses (b) and (c)
above entered into with any financial institution meeting the
qualifications specified in clause (c) above;
(e) commercial paper having the highest rating obtainable from
Xxxxx'x Investors Service, Inc. or Standard & Poor's Rating Services and in
each case maturing within 271 days after the date of acquisition;
(f) money market funds at least 95% of the assets of which
constitute Cash Equivalents of the kinds described in clauses (a) through
(e) of this definition; and
(g) the following money market funds (including any successor fund
or equivalent thereto): (i) Xxxxxxx Sachs Financial Square Money Market
Fund; (ii) Xxxxxxx Xxxxx Financial Square Prime Obligations Fund; (iii)
Xxxxxxx Sachs Financial Square Treasury Obligations Fund; (iv) Xxxxxxx
Xxxxx Financial Square Federal Fund; and (v) money market funds that
primarily invest in the types of investments that are invested in by one or
more of the funds identified in subclauses (i) through (iv) of this clause
(g).
"Change in Control" means the occurrence of any of the following:
(a) the sale of all or substantially all of the assets of the
Issuers and their Subsidiaries taken as a whole, to any Person or related
group of Persons;
(b) the consummation of any consolidation or merger of either of
the Issuers:
(i) in which the applicable Issuer is not the continuing or
surviving corporation, other than a consolidation or merger:
(1) with a wholly-owned Subsidiary of the applicable
Issuer in which all of the common stock of the applicable Issuer
outstanding immediately prior to the effectiveness thereof is changed into
or exchanged for the same consideration, or
(2) in which the stockholders of the applicable
Issuer immediately prior to the consummation of such consolidation or
merger own greater than 50% of the total voting power of all classes of
capital shares of the continuing or surviving corporation immediately
following the consummation of such consolidation or merger; or
(ii) pursuant to which the shares of common stock of the
applicable Issuer are converted into cash, securities, or other property,
unless the stockholders of the applicable Issuer immediately prior to the
consummation of such consolidation or merger own greater than 50% of the
total voting power of all classes of capital shares of the continuing or
surviving corporation immediately following the consummation of such
consolidation or merger,
(c) the acquisition by any Person individually or any Persons (in
each case other than an Excluded Person or Excluded Persons) acting
together that would constitute a "group" for purposes of Section 13(d) of
the Exchange Act, together with any affiliates thereof, of beneficial
ownership (as defined in Rule 13d-3 under the Exchange Act) of greater than
50% of the total voting power of all classes of capital shares of either of
the Issuers entitled to vote generally in the election of directors of the
applicable Issuer; or
(d) the first day on which a majority of members of the Board of
Directors of the Company are not Continuing Directors.
Notwithstanding clause (a) of the definition of "Change in
Control", a Change in Control will not be deemed to have occurred as a
result of a transaction in which either:
(a) the holders of the shares of common stock of the applicable
Issuer immediately prior to the sale of all or substantially all of the
applicable Issuer's assets have, directly or indirectly, at least a
majority of the shares of common stock of the corporation to which such
assets were sold immediately after such asset sale; or
(b) the holders of the shares of common stock of the Issuers
immediately prior to the consolidation or merger have, directly or
indirectly, at least a majority of the shares of common stock of the
continuing or surviving corporation immediately after such consolidation or
merger.
Notwithstanding clause (c) of the definition of "Change in
Control", a Change in Control will not be deemed to have occurred solely by
virtue of any of the following Persons filing or becoming obligated to file
a report under or in response to Schedule 13D or Schedule 14D-1 (or any
successor schedule, form, or report) under the Exchange Act disclosing
beneficial ownership by it of shares or securities of the applicable
Issuer, of greater than 50% of the total voting power referred to in clause
(c) of the foregoing definition or otherwise:
(a) the other Issuer;
(b) any Subsidiary;
(c) any employee share purchase plan, share option plan, or other
share incentive plan or program;
(d) retirement plan or automatic dividend reinvestment plan; or
(e) any substantially similar plan of the Issuers or any
Subsidiary or any Person holding securities of the Issuers for or pursuant
to the terms of any such employee benefit plan.
"Collateral Agent" means the party named as such in the Collateral
Documents until a successor replaces it in accordance with the provisions
of the Collateral Documents and thereafter means the successor serving
thereunder.
"Collateral Documents" means all agreements, instruments,
documents, pledges or filings listed on Exhibit B hereto that evidence,
perfect, set forth or limit the security interest of the Collateral Agent
in the Note Collateral.
"Company" means [Reorganized Comdisco, Inc.], and any and all
successors thereto.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who:
(a) was a member of such Board of Directors on the date of this
Indenture or elected to or otherwise nominated to the Board of Directors
pursuant to the Plan; or
(b) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing Directors who
were members of such Board at the time of such nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 12.02 hereof or such other address as to
which the Trustee may give notice to the Issuers and the Holders.
"Custodian" means the Trustee, as custodian with respect to the
Notes, or any successor entity thereto.
"Default" means any event that is or with the passage of time or
the giving of notice or both would be an Event of Default.
"Definitive Note" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit A hereto except that such Note shall
not bear the Global Note Legend and shall not have the "Schedule of
Exchanges of Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued
in whole or in part in global form, the Person specified in Section 2.03
hereof as the Depositary with respect to the Notes, and any and all
successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.
"Disclosure Statement" means the Disclosure Statement with respect
to the Plan.
"Disputed Claims Reserve" has the meaning given to that term in
the Plan.
"Disqualified Stock" means any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible, or for which
it is exchangeable, in each case at the option of the holder of the Capital
Stock), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or
redeemable at the option of the holder of the Capital Stock, in whole or in
part, on or prior to the date that is 91 days after the date on which the
Notes mature. Notwithstanding the preceding sentence, any Capital Stock
that would constitute Disqualified Stock solely because the holders of the
Capital Stock have the right to require the Company to repurchase such
Capital Stock upon the occurrence of a change in control or an asset sale
will not constitute Disqualified Stock if the terms of such Capital Stock
provide that the Company may not repurchase or redeem any such Capital
Stock pursuant to such provisions unless such repurchase or redemption
complies with Section 4.07.
"Domestic Subsidiary" means any Subsidiary of the Issuers that was
formed under the laws of the United States or any state of the United
States or the District of Columbia.
"Effective Date" means August ___, 2002.
"Equity Interests" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt security
that is convertible into, or exchangeable for, Capital Stock).
"Excess Cash" means Unrestricted Cash minus the sum of (i) an
amount of cash or cash equivalents necessary to fund the Issuers' operating
reserve for the fiscal quarter immediately following the fiscal quarter as
to which any determination is being made, such operating reserves not to
exceed the aggregate Scheduled Cash Reserve Amount and (ii) the amount of
Notes optionally redeemed or to be optionally redeemed by the Issuers
(unless the Issuers subsequently fail to redeem such Notes on the
applicable redemption date) in accordance with Section 3.07 hereof
following the last day of the fiscal quarter and prior to any mandatory
redemption date in accordance with Section 3.08 hereof; provided, that
amounts of Excess Cash determined by the foregoing shall be rounded down to
the nearest whole multiple of $1,000.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Excluded Person" means any Person who is a holder of more than 5%
of all classes of capital shares of the Issuers as of the Effective Date.
"Existing Indebtedness" means up to $610.0 million in aggregate
principal amount of Indebtedness of the Issuers and their Subsidiaries
(excluding Indebtedness under this Indenture and the Senior Note Indenture)
in existence on the date of the Indenture, until such amounts are repaid.
"Foreign Subsidiary" of a Person means any Subsidiary of the
referent Person that is not a Domestic Subsidiary.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant
segment of the accounting profession, which are in effect from time to
time.
"Global Notes" means each of the global Notes issued in accordance
with Section 2.01 and substantially in the form of Exhibit A attached
hereto that, except as otherwise provided in Section 2.01(b) hereof, bear
the Global Note Legend and that have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto, and that are deposited with
or on behalf of and registered in the name of the Depositary.
"Global Note Legend" means the legend set forth in Section
2.06(f), which is required to be placed on all Global Notes issued under
this Indenture.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America, and the payment
for which the United States pledges its full faith and credit.
"Guarantee" means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business,
direct or indirect, in any manner including, without limitation, by way of
a pledge of assets or through letters of credit or reimbursement agreements
in respect thereof, of all or any part of any Indebtedness.
"Hedging Obligations" means, with respect to any specified Person,
the obligations of such Person under:
(a) swap agreements, cap agreements and collar agreements designed
to protect such Person against fluctuations on interest or currency
exchange rates; and
(b) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates or currency exchange rates.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent:
(a) in respect of borrowed money;
(b) evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect thereof);
(c) in respect of banker's acceptances;
(d) representing Capital Lease Obligations;
(e) representing the balance deferred and unpaid of the purchase
price of any property, except any such balance that constitutes an accrued
expense or trade payable; or
(f) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than letters of
credit and Hedging Obligations) would appear as a liability upon a balance
sheet of the specified Person prepared in accordance with GAAP. In
addition, the term "Indebtedness" includes all Indebtedness of others
secured by a Lien on any asset of the specified Person (whether or not such
Indebtedness is assumed by the specified Person) and, to the extent not
otherwise included, the Guarantee by the specified Person of any
Indebtedness of any other Person.
The amount of any Indebtedness outstanding as of any date will be:
(a) the accreted value of the Indebtedness, in the case of any
Indebtedness issued with original issue discount;
(b) the principal amount of the Indebtedness, together with any
interest on the Indebtedness that is more than 30 days past due, in the
case of any other Indebtedness;
(c) in the case of a Guarantee of Indebtedness, the maximum amount
of the outstanding Indebtedness guaranteed under such Guarantee; and
(d) in the case of Indebtedness of others secured by a Lien on any
asset of the specified Person, the fair market value of the asset(s)
subject to such Lien.
"Indenture" means this Indenture, as amended, modified or
supplemented from time to time.
"Initial Notes" means the Notes issued under this Indenture on the
date hereof.
"Investments" means, with respect to any Person, all direct or
indirect investments by such Person in other Persons (including Affiliates)
in the forms of loans (including Guarantees or other obligations), advances
or capital contributions (excluding commission, travel and similar advances
to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or would be
classified as investments on a balance sheet prepared in accordance with
GAAP. If the Issuers or any Subsidiary of the Issuers sells or otherwise
disposes of any Equity Interests of any direct or indirect Subsidiary of
the Issuers such that, after giving effect to any such sale or disposition,
such Person is no longer a Subsidiary of the Issuers, the Issuers will be
deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Equity Interests of such
Subsidiary not sold or disposed of in an amount determined as provided in
the final paragraph of Section 4.07. The acquisition by the Company or any
Subsidiary of the Company of a Person that holds an Investment in a third
Person will be deemed to be an Investment by the Company or such Subsidiary
in such third Person in an amount equal to the fair market value of the
Investment held by the acquired Person in such third Person.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York, the City of Chicago or at a
place of payment are authorized by law, regulation or executive order to
remain closed. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue on such payment for the
intervening period.
"Letter of Credit Facility" means the Credit and Security
Agreement, dated as of June 18, 2002, between the Company and Fifth Third
Bank (Chicago), and the other "Loan Documents" (as defined therein), each
as amended, supplemented, refinanced, replaced, extended, defeased,
increased, refunded, renewed, restated, revised or otherwise modified from
time to time in the aggregate amount of outstanding letters of credit not
to exceed $12,000,000.00 at any time.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset, whether or not filed, recorded or otherwise perfected under
applicable law, including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement
to sell or give a security interest in and any filing of or agreement to
give any financing statement under the Uniform Commercial Code (or
equivalent statutes) of any jurisdiction.
"Management Incentive Plan" has the meaning given to that term in
the Plan.
"New Europe" means [New Europe Holding Company], and any and all
successors thereto.
"New Ventures" means [New Ventures Holding Company], and any and
all successors thereto.
"NLC" means [New Leasing Co., Inc.], and any and all successors
thereto.
"Non-Recourse Debt" means Indebtedness incurred in connection with
discounted lease receivables programs substantially similar to the
discounted lease receivables programs utilized in the ordinary course of
business of the Issuers and/or their Subsidiaries prior to the date hereof
as to which no default with respect to such Indebtedness (including any
rights that the holders of the Indebtedness may have to take enforcement
action against a Subsidiary) would permit upon notice, lapse of time or
both any holder of any other Indebtedness (other than the Notes or the
Senior Notes) of the Issuers or any of their Subsidiaries to declare a
default on such other Indebtedness or cause the payment of the Indebtedness
to be accelerated or payable prior to its stated maturity.
"Note Collateral" means all property, now owned or hereafter
acquired, of the Issuers that, pursuant to the Collateral Documents, is
subject to a security interest in favor of the Collateral Agent.
"Notes" has the meaning assigned to it in the preamble to this
Indenture and includes the Additional Notes. The Initial Notes and the
Additional Notes shall be treated as a single class for all purposes under
this Indenture.
"Obligations" means any principal, interest, premium, if any,
penalties, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President, the
Secretary, any Assistant Secretary, the Chief Operating Officer, the Chief
Financial Officer, the Controller, the Treasurer or any Assistant Treasurer
of such Person.
"Officers' Certificate" means a certificate signed on behalf of
the Company or NLC, as the case may be, by two Officers of the Company or
NLC, as the case may be, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company or NLC, as the case may be, that meets
the requirements of Section 12.05 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of
Section 12.05 hereof. The counsel may be an employee of or counsel to the
Issuers, any Subsidiary of the Issuers or the Trustee.
"Participant" means, with respect to the Depositary, a Person who
has an account with the Depositary.
"Payment Blockage Notice" means a notice of a default that has
occurred and is continuing on Senior Indebtedness that permits holders to
accelerate the maturity of the Senior Indebtedness.
"Permitted Business" means:
(a) the sale, collection or other liquidation of the assets of the
Issuers and their Subsidiaries, the repayment of the Indebtedness of the
Issuers and thereafter the payment of dividends or other distributions to
the owners of the Capital Stock of the Company, as contemplated by the Plan
and the Disclosure Statement; and
(b) any business that is ancillary to the foregoing.
"Permitted Investments" means:
(a) any Investment (i) in the Issuers, (ii) in a Domestic
Subsidiary of the Issuers or (iii) in a Foreign Subsidiary of the Issuers;
provided, however, that the Issuers or a Domestic Subsidiary of the Issuers
cannot make Investments in Foreign Subsidiaries pursuant to this subclause
(iii) in an amount exceeding the aggregate distributions received by the
Issuers or their Domestic Subsidiaries from Foreign Subsidiaries since
April 1, 2002; provided, further, that any intercompany Indebtedness owed
to the Issuers or any Domestic Subsidiary of the Issuers by any Foreign
Subsidiary may be converted into equity of, or contributed to the capital
of, a Foreign Subsidiary in order to maintain the solvency of any Foreign
Subsidiary or in connection with a sale or other disposition of such
Foreign Subsidiary;
(b) any Investment in cash or Cash Equivalents;
(c) any Investments made or received (i) in exchange for, or in
compromise of, other Investments of the Issuers or any of their
Subsidiaries existing as of the date hereof, (ii) in exchange for, or in
compromise of, assets or other rights received by the Issuers or any of
their Subsidiaries in exchange for, or in compromise of, Investments of the
Issuers or any of their Subsidiaries, which assets, rights or Investments
were in existence as of the date hereof or (iii) to extend, refinance,
renew or replace any other Investments of the Issuers or any of their
Subsidiaries existing as of the date hereof;
(d) any Investments received in compromise of obligations of
Persons incurred in the ordinary course of business, including pursuant to
any plan of reorganization or similar arrangement upon the bankruptcy or
insolvency of any trade creditor or customer;
(e) Hedging Obligations;
(f) Investments represented by accounts receivable created or
acquired in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms;
(g) Investments, or Investments resulting from commitments to make
Investments, existing as of the date of this Indenture;
(h) Investments, or commitments to make Investments, in the form
of (x) a lease of or rental agreement, (y) a sale contract (including an
installment sale contract or conditional sale agreement), or (z) a secured
financing, including any schedule or amendment thereto or assignment,
assumption, renewal or novation thereof (and delivery, acceptance or
installation certificates, landlord or mortgagee waivers, intercreditor or
subordination agreements, incumbency certificates, purchase orders,
purchase order assignments, and sale and leaseback agreements, each
relating thereto), and in each case, which with respect thereto: (A) the
Company, NLC or one of their Subsidiaries is the lessor, seller, secured
party or obligee (whether initially or as an assignee), or (B) is between
an obligor, on the one hand, and a lessor, seller, obligee, secured party
or assignee of any of the foregoing, on the other hand, and (1) which would
be a Permitted Investment if the Company, NLC or one of their Subsidiaries
were the lessor, seller, obligee, secured party or assignee of any of the
foregoing thereunder and (2) with respect to which the Company, NLC or one
of their Subsidiaries is an assignee of the revenues or claims with respect
thereto;
(i) Investments in prepaid expenses, negotiable instruments held
for collection, and lease, utility and worker's compensation, performance
and other similar deposits in the ordinary course of business consistent
with past practices; and
(j) other Investments in any Person having an aggregate fair
market value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when taken together
with all other Investments made pursuant to this clause (j) that are at the
time outstanding not to exceed (1) $1.0 million in respect of Investments
in any Person by New Ventures and (2) $1.0 million in respect of
Investments in any Person by the Issuers or their Subsidiaries including
New Ventures; provided, however, that any Investment by New Ventures with
respect to this clause (j) shall be attributed, without duplication, to
either subclause (1) hereof or subclause (2) hereof.
"Permitted Liens" means:
(a) Liens created, or intended to be created, under the Collateral
Documents;
(b) Liens on assets of any of the Issuers or their Subsidiaries
securing Indebtedness that are permitted by clauses (c), (f) or (i) of the
second paragraph of Section 4.09;
(c) Liens in favor of any of the Issuers or their Subsidiaries;
(d) Liens on property of a Person existing at the time such Person
becomes a Subsidiary of the Issuers or New Ventures; provided, however,
that such Liens were in existence prior to the contemplation of such Person
becoming a Subsidiary of the Issuers or New Ventures and do not extend to
any assets other than those of the Person that becomes a Subsidiary of the
Issuers or New Ventures; provided, further, that such Person becomes a
Subsidiary of the Issuers or New Ventures as a result of a Permitted
Investment pursuant to clause (c) of the definition thereof;
(e) Liens on property existing at the time of acquisition of such
property by any of the Issuers or their Subsidiaries, provided, however,
that such Liens were in existence prior to the contemplation of such
acquisition and such property was acquired in exchange for, or in
compromise of, Investments existing as of the date hereof or Investments
resulting from commitments to make Investments existing as of the date
hereof;
(f) Liens to secure the performance of statutory obligations,
surety or appeal bonds, performance bonds or other obligations of a like
nature incurred in the ordinary course of business;
(g) Liens on assets or rights which are not Note Collateral and
which secure Indebtedness permitted under any clause of Section 4.09 so
long as the Notes are repaid in full with the proceeds of, and concurrently
with the incurrence of, such Indebtedness;
(h) Liens existing on the date of this Indenture;
(i) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in good faith by
appropriate proceedings or negotiations promptly instituted and diligently
concluded, provided, however, that any reserve or other appropriate
provision as is required in conformity with GAAP has been made therefor;
(j) Liens incurred in the ordinary course of business of the
Issuers or any Subsidiary of the Issuers with respect to obligations that
are not Indebtedness that do not exceed $1.0 million at any one time
outstanding;
(k) Liens on assets of NLC or any Subsidiaries of the Issuers that
secure Non-Recourse Debt of NLC or such Subsidiaries;
(l) statutory Liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other like Liens arising in
the ordinary course of business and with respect to amounts not yet
delinquent for a period of more than 90 days or which are being contested
in good faith; provided, however, that a reserve or other appropriate
provision as shall be required by GAAP shall have been made therefor;
(m) easements, rights-of-way, restrictions, zoning, minor defects
or irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the business or assets of the
Issuers or their Subsidiaries, taken as a whole, incurred in the ordinary
course of business;
(n) Liens arising by reason of any judgment not constituting an
Event of Default under this Indenture; provided, however, that:
(i) such Liens are being contested in good faith by
appropriate proceedings or negotiations, and
(ii) such Liens are adequately bonded or adequate reserves
have been established on the books of the Issuers in accordance with GAAP;
(o) Uniform Commercial Code financing statements filed for
precautionary purposes in connection with any true lease of property leased
by any of the Issuers or their Subsidiaries; provided, however, that any
such financing statement does not cover any property other than the
property subject to such lease and the proceeds thereof; and
(p) renewals or refundings of Indebtedness expressly permitted by
the Indenture secured by any Liens referred to in clauses (a), (b), (d),
(e), (g), (h) and (k) above; provided, however, that:
(i) such new Liens will be limited to all or part of the same
property that secured the original Liens (plus improvements to or on such
property); and
(ii) the principal amount of the Indebtedness secured by such
Liens at such time is not increased to any amount greater than the sum of
(1) the outstanding principal amount or, if greater, committed amount of
the Indebtedness described under clauses (a), (b), (d), (e), (g), (h) and
(k) above immediately prior to such renewal or refunding, and (2) an amount
necessary to pay any fees and expenses, including premiums, related to such
renewals or refundings.
"Permitted Refinancing Indebtedness" means any Indebtedness of any
of the Issuers or their Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of any of the Issuers or their Subsidiaries
(other than intercompany Indebtedness); provided, however, that:
(a) the principal amount (or accreted value, if applicable) of
such Permitted Refinancing Indebtedness does not exceed the principal
amount (or accreted value, if applicable) of the Indebtedness extended,
refinanced, renewed, replaced, defeased or refunded (plus all accrued
interest on the Indebtedness and the amount of all expenses and premiums
incurred in connection therewith);
(b) such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and has a Weighted Average Life
to Maturity equal to or greater than the Weighted Average Life to Maturity
of, the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded;
(c) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the
Notes, such Permitted Refinancing Indebtedness has a final maturity date
later than the final maturity date of, and is subordinated in right of
payment to, the Notes on terms at least as favorable to the Holders of the
Notes as those contained in the documentation governing the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded;
(d) such Permitted Refinancing Indebtedness is incurred either by
the Issuers or by the Subsidiary which is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded;
(e) the covenants contained in the documentation governing such
Permitted Refinancing Indebtedness are no more restrictive than the
covenants contained in the documentation governing the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; and
(f) if more than 30 days remain until the maturity date of the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded, the interest rate of such Permitted Refinancing Indebtedness does
not exceed the interest rate of the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded.
"Permitted Subordinated Securities" means:
(a) Equity Interests in the Issuers; or
(b) debt securities that are subordinated to all Senior
Indebtedness to substantially the same extent as, or to a greater extent
than, the Notes are subordinated to Senior Indebtedness under this
Indenture.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government (or any agency,
instrumentality or political subdivision thereof).
"Plan" means the First Amended Joint Plan of Reorganization of
Comdisco, Inc. and its Affiliated Debtors and Debtors In Possession dated
as of June 13, 2002, as amended, modified or otherwise supplemented through
the Effective Date.
"Pledge Agreement" means the Pledge Agreement, dated as of the
Effective Date, among the Issuers and the Trustee, as amended, modified or
supplemented from time to time.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Effective Date, by and among the Issuers and the
other parties named on the signature pages thereof, as such agreement may
be amended, modified or supplemented from time to time.
"Representative" means the Senior Note Trustee or other trustee,
agent or representative for any Senior Indebtedness.
"Responsible Officer," when used with respect to the Trustee,
means any officer within the corporate trust department of the Trustee
located at the Corporate Trust Office of the Trustee (or any successor
group of the Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of
his knowledge of and familiarity with the particular subject.
"Restricted Investment" means an Investment other than a Permitted
Investment.
"Scheduled Cash Reserve Amount" means the respective amount set
forth on Schedule A hereto allocated among the Subsidiaries of the Company
as the Company's Board of Directors deems appropriate.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means:
(a) the Senior Notes issued pursuant to the Senior Note Indenture;
(b) Indebtedness issued in exchange for the items listed in the
preceding clause (a) to the extent the consolidated Indebtedness of the
Issuers is not increased thereby; and
(d) all Obligations with respect to the items listed in the
preceding clauses (a) and (b).
Notwithstanding anything to the contrary in the preceding, Senior
Indebtedness shall not include:
(a) any liability for federal, state, local or other taxes owed or
owing by the Issuers;
(b) any intercompany Indebtedness of the Issuers or any of their
Subsidiaries to the Issuers or any of their Affiliates;
(c) any trade payables; or
(d) the portion of any Indebtedness that is incurred in violation
of this Indenture.
"Senior Note Indenture" means the indenture, dated as of the date
of this Indenture, to be executed by the Issuers and the Senior Note
Trustee.
"Senior Note Trustee" means Xxxxx Fargo Bank Minnesota, National
Association in its capacity as trustee under the Senior Note Indenture, and
any successor trustee, if any, under the Senior Note Indenture.
"Senior Notes" means the Variable Rate Senior Secured Notes due
2004 issued pursuant to the Senior Note Indenture.
"Stated Maturity" means, with respect to any installment of
interest or principal on any series of Indebtedness, the date on which the
payment of interest or principal was scheduled to be paid in the original
documentation governing such Indebtedness, and will not include any
contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment thereof.
"Stay Bonus Plan" has the meaning given to that term in the
Disclosure Statement.
"Subsidiary" means, with respect to any specified Person:
(a) any corporation, association or other business entity of which
more than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees of the corporation, association
or other business entity is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person (or a combination thereof); and
(b) any partnership (i) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or
(ii) the only general partners of which are that Person or one or more
Subsidiaries of that Person (or any combination thereof).
"Supplemental Distribution Account" has the meaning given to that
term in the Plan.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. xx.xx.
77aaa-77bbbb), as amended, as in effect on the date hereof until such time
as this Indenture is qualified under the TIA and thereafter as in effect on
the date on which this Indenture is qualified under the TIA.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture
and thereafter means the successor serving hereunder.
"Unrestricted Cash" means cash or cash equivalents as set forth on
the balance sheets of the Issuers and their Subsidiaries prepared in
accordance with GAAP as of 5:00 p.m. on the last day of the applicable
fiscal quarter minus, without duplication, the sum of cash or cash
equivalents (i) held in non-domestic accounts in the ordinary operation of
the business, (ii) required to be shown as restricted cash or cash
equivalents in accordance with GAAP on such balance sheet (or the notes
thereto) or otherwise unavailable to Issuers and their Subsidiaries for
general use as a result of the Plan, applicable law or agreement with a
third party, (iii) held or maintained in the Disputed Claims Reserve, (iv)
held or maintained in the Supplemental Distribution Account, (v) held or
maintained in the cash account pledged to the issuers of letters of credit
under the Letter of Credit Facility and (vi) held or required to be held in
an escrow account or otherwise legally segregated from the funds of the
Issuers and their Subsidiaries pursuant to the Stay Bonus Plan and/or the
Management Incentive Plan.
"Voting Stock" of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election
of the Board of Directors of such Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing:
(a) the sum of the products obtained by multiplying (i) the amount
of each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in
respect of the Indebtedness, by (ii) the number of years (calculated to the
nearest one-twelfth) that will elapse between such date and the making of
such payment; by
(b) the then outstanding principal amount of such Indebtedness.
Section 1.02. Other Definitions.
Defined in
Term Section
---- -------
"Affiliate Transaction"............................................................. 4.10
"Authentication Order" ............................................................. 2.02
"Change in Control Offer"........................................................... 4.14
"Change in Control Repurchase Date"................................................. 4.14
"Change in Control Repurchase Price"................................................ 4.14
"DTC"............................................................................... 2.03
"Event of Default".................................................................. 6.01
"incur"............................................................................. 4.09
"Offer"............................................................................. 3.09
"Offer Period"...................................................................... 3.09
"Paying Agent"...................................................................... 2.03
"Permitted Debt".................................................................... 4.09
"Registrar"......................................................................... 2.03
"Restricted Payments"............................................................... 4.07
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"Commission" means the SEC;
"indenture securities" means the Notes;
"indenture security holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes means the Company and NLC and any
successor obligor upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule
under the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular;
(e) provisions apply to successive events and transactions; and
(f) references to sections of or rules under the Securities Act
and the Exchange Act shall be deemed to include substitute, replacement of
successor sections or rules adopted by the SEC from time to time.
ARTICLE 2.
THE NOTES
Section 2.01. Form and Dating.
(a) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage, as applicable. Each Note shall be dated the date of
its authentication. The Notes shall be in denominations of $1,000 and
integral multiples thereof; provided, however, that the Notes may be in
denominations (rounded to the nearest whole dollar) of less than $1,000
(but in no event less than $1.00) to make redemptions of Notes pursuant to
Section 3.07 and 3.08 hereof; provided, further, that the Additional Notes
may be denominated in amounts (rounded to the nearest whole dollar) less
than $1,000 (but in no event less than $1.00) or greater than $1,000 as
necessary to make regularly scheduled interest payments on the Notes prior
to the payment in full of all Senior Indebtedness.
The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture, and the Issuers
and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of any Note conflicts with the express
provisions of this Indenture, the provisions of this Indenture shall govern
and be controlling.
(b) Global Notes. Except as expressly required by the terms of
this Indenture, Notes shall be issued in global form substantially in the
form of Exhibit A attached hereto (including the Global Note Legend thereon
and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes otherwise issued in definitive form shall be substantially
in the form of Exhibit A attached hereto (but without the Global Note
Legend thereon and without the "Schedule of Exchanges of Interests in the
Global Note" attached thereto). Each Global Note shall represent such of
the outstanding Notes as shall be specified therein and each shall provide
that it shall represent the aggregate principal amount of outstanding Notes
from time to time endorsed thereon and that the aggregate principal amount
of outstanding Notes represented thereby may from time to time be reduced
or increased, as appropriate, to reflect exchanges, redemptions and
transfers of interests therein in accordance with this Indenture. Any
endorsement of a Global Note to reflect the amount of any increase or
decrease in the aggregate principal amount of outstanding Notes represented
thereby shall be made by the Trustee or the Custodian, at the direction of
the Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.
Section 2.02. Execution and Authentication.
Two (2) Officers of both the Company and NLC shall sign the Notes
for the Company and NLC, respectively. The signatures of any of those
Officers on the Notes may be either a manual or a facsimile signature. If
an Officer whose signature is on a Note no longer holds that office at the
time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual
signature of an authorized signatory of the Trustee on the certificate of
authentication of the Note. The signature shall be conclusive evidence that
the Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Issuers signed by
two (2) Officers of both the Company and NLC specifying the date on which
the Notes are to be authenticated and whether the Notes are Definitive
Notes or Global Notes (an "Authentication Order"), authenticate Notes for
original issue up to the aggregate principal amount stated in the Notes.
The aggregate principal amount of Notes outstanding at any time may not
exceed such amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Issuers to authenticate Notes. The Issuers shall pay all reasonable fees
payable to the authenticating agent. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
The Issuers shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar
and the term "Paying Agent" includes any additional paying agent. The
Issuers may change any Paying Agent or Registrar upon prior written notice
to the Trustee without notice to any Holder. The Issuers shall notify the
Trustee in writing of the name and address and any change in the name or
address of any Agent not a party to this Indenture. If the Issuers fail to
appoint or maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Issuers or any of their Subsidiaries may act
as Paying Agent or Registrar.
The Issuers shall enter into an appropriate agency agreement with
any agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such agent and shall, if
required, incorporate the provisions of the TIA.
The Issuers initially appoint The Depository Trust Company ("DTC")
to act as Depositary with respect to the Notes.
The Issuers initially appoint the Trustee to act as the Registrar
and Paying Agent and to act as Custodian with respect to the Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Issuers shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for
the payment of principal or premium, if any, or interest on the Notes, and
will notify the Trustee of any default by the Issuers in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Issuers at any time
may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Issuers or
a Subsidiary of the Issuers) shall have no further liability for the money
delivered to the Trustee. If either the Company or NLC, or a Subsidiary of
the Company or NLC, acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to
the Issuers, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of all Holders and shall otherwise comply with TIA ss. 312(a). If the
Trustee is not the Registrar, the Issuers shall furnish to the Trustee at
least seven Business Days before each interest payment date and at such
other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and
addresses of the Holders of Notes, including the aggregate principal amount
held by each Holder, and the Issuers shall otherwise comply with TIA ss.
312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Notes will be exchanged by the Company for Definitive Notes if (i) the
Issuers delivers to the Trustee notice from the Depositary that it is
unwilling or unable to continue to act as Depositary or that it is no
longer a clearing agency registered under the Exchange Act and, in either
case, a successor Depositary is not appointed by the Issuers within 90 days
after the date of such notice from the Depositary or (ii) following the
occurrence and during the continuation of a Default or Event of Default,
any Person holding a beneficial interest in a Global Note requests that the
Global Notes should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee. Upon the occurrence of either
of the preceding events in (i) or (ii) above, Definitive Notes shall be
issued in such names as the Depositary shall instruct the Trustee. Global
Notes also may be exchanged or replaced, in whole or in part, as provided
in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in
exchange for, or in lieu of, a Global Note or any portion thereof, pursuant
to this Section 2.06 or Sections 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note. A
Global Note may not be exchanged for another Note other than as provided in
this Section 2.06(a); provided, however, that beneficial interests in a
Global Note may be transferred and exchanged as provided in Section 2.06(b)
or (c) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. No written
orders or instructions shall be required to be delivered to the Registrar
to effect the transfers of beneficial interests in a Global Note.
(c) Transfer or Exchange of Beneficial Interests in Global Notes
for Definitive Notes. If any holder of a beneficial interest in a Global
Note proposes to exchange such beneficial interest for a Definitive Note or
to transfer such beneficial interest to a Person who takes delivery thereof
in the form of a Definitive Note, then the Trustee shall cause the
aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(g) hereof, and the Company shall
execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 2.06(c) shall be registered in such name
or names and in such authorized denomination or denominations as the holder
of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests in Global Notes. A Holder of a Definitive Note may exchange such
Note for a beneficial interest in a Global Note or transfer such Definitive
Note to a Person who takes delivery thereof in the form of a beneficial
interest in a Global Note at any time. Upon receipt of a request for such
an exchange or transfer, the Trustee shall cancel the applicable Definitive
Note and increase or cause to be increased the aggregate principal amount
of one of the Global Notes.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.06(e), the Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present
or surrender to the Registrar the Definitive Notes duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to
the Registrar duly executed by such Holder or by its attorney, duly
authorized in writing. A Holder of Definitive Notes may transfer such Notes
to a Person who takes delivery thereof in the form of a Definitive Note.
(f) Legends. The following legends shall appear on the face of all
Global Notes issued under this Indenture in substantially the following
form unless specifically stated otherwise in the applicable provisions of
this Indenture.
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 8.05 OF THE INDENTURE, (II) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE OR IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF [REORGANIZED COMDISCO, INC.] AND [NEW LEASING CO., INC.]"
(g) Cancellation and/or Adjustment of Global Notes. At such time
as all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or a particular Global Note has been redeemed,
repurchased or canceled in whole and not in part, each such Global Note
shall be returned to or retained and canceled by the Trustee in accordance
with Section 2.11 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest
in another Global Note or for Definitive Notes, the principal amount of
Notes represented by such Global Note shall be reduced accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and
if the beneficial interest is being exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased
accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect
such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Issuers shall execute and the Trustee shall authenticate Global
Notes and Definitive Notes upon the Issuers' order or at the
Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a
Definitive Note for any registration of transfer or exchange, but
the Trustee or the Issuers may require payment of a sum
sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.14
and 8.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole
or in part, except the unredeemed portion of any Note being
redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or
Definitive Notes shall be the valid obligations of the Issuers,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Global Notes or Definitive Notes
surrendered upon such registration of transfer or exchange.
(v) The Issuers shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of
any selection of Notes for redemption under Section 3.02 hereof
and ending at the close of business on the day of selection, (B)
to register the transfer of or to exchange any Note so selected
for redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part or (C) to register the
transfer of or to exchange a Note between a record date and the
next succeeding interest payment date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Issuers may
deem and treat the Person in whose name any Note is registered as
the absolute owner of such Note for the purpose of receiving
payment of principal of and interest on such Notes and for all
other purposes, and none of the Trustee, any Agent or the Issuers
shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section
2.02 hereof.
(viii) All certifications and certificates required to be
submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by
facsimile.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Issuers
and the Trustee receives evidence to its satisfaction of the destruction,
loss or theft of any Note, the Issuers shall issue and the Trustee, upon
receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee's requirements are met. If required by the Trustee or the
Issuers, an indemnity bond must be supplied by the Holder that is
sufficient in the judgment of the Trustee and the Issuers to protect the
Issuers, the Trustee, any Agent and any authenticating agent from any loss
that any of them may suffer if a Note is replaced. The Issuers may charge
for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Issuers
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated
by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by
the Trustee in accordance with the provisions hereof, and those described
in this Section as not outstanding. Except as set forth in Section 2.09
hereof, a Note does not cease to be outstanding because the Company or NLC,
or an Affiliate of the Company or NLC, holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that
the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases
to accrue.
If the Paying Agent (other than the Issuers, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date,
money sufficient to pay Notes payable on that date, then on and after that
date such Notes shall be deemed to be no longer outstanding and shall cease
to accrue interest.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes
owned by the Issuers or any of its Affiliates or held or maintained in the
Disputed Claims Reserve, shall be considered as though not outstanding,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only Notes
that the Trustee has actual knowledge are so owned shall be so disregarded.
Section 2.10. Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Issuers may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of certificated Notes but may have variations
that the Issuers considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the
Issuers shall prepare and the Trustee shall authenticate Definitive Notes
in exchange for temporary Notes. After the preparation of Definitive Notes,
the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency maintained by the
Issuers for such purpose pursuant to Section 4.02 hereof, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Notes, the Issuers shall execute, and the Trustee shall authenticate and
make available for delivery, in exchange thereof the same aggregate
principal amount of Definitive Notes of authorized denominations.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.11. Cancellation.
The Issuers at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation
and shall destroy canceled Notes in accordance with its normal practice and
applicable law. Certification of the destruction of all canceled Notes
shall be delivered to the Issuers. The Issuers may not issue new Notes to
replace Notes that it has redeemed or repurchased or paid or that have been
delivered to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Issuers default in a payment of interest on the Notes, the
Issuers shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons
who are Holders on a subsequent special record date, in each case at the
rate provided in the Notes and in Section 4.01 hereof. The Issuers shall
notify the Trustee in writing of the amount of defaulted interest proposed
to be paid on each Note and the date of the proposed payment. The Issuers
shall, with the consent of the Trustee, fix or cause to be fixed each such
special record date and payment date, provided, however, that each such
special record date shall be at the earliest practicable date but in all
events shall not be less than five Business Days prior to the related
payment date for such defaulted interest. At least 15 days before the
special record date, the Issuers (or, upon the written request of the
Issuers, the Trustee in the name and at the expense of the Issuers) shall
mail or cause to be mailed to Holders a notice that states the special
record date, the related payment date and the amount of such interest to be
paid.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Issuers elect to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 or are required to redeem Notes
pursuant to Section 3.08, the Issuers shall furnish to the Trustee, at
least 5 days but not more than 60 days before an optional redemption date
pursuant to Section 3.07 or at least 5 days but not more than 30 days
before a mandatory redemption date pursuant to Section 3.08, an Officers'
Certificate setting forth (i) that the redemption is an optional redemption
pursuant to Section 3.07 or an mandatory redemption pursuant to Section
3.08, (ii) the redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.
Section 3.02. Selection of Notes to Be Redeemed or Repurchased.
If less than all of the Notes are to be redeemed or purchased in
an offer to purchase at any time, the Trustee shall select the Notes to be
redeemed or purchased among the Holders of the Notes pro rata in accordance
with the outstanding principal amount of the Notes outstanding immediately
prior to such redemption or purchase.
The Trustee shall promptly notify the Issuers, the Registrar and
the Paying Agent in writing of the Notes selected for redemption and, in
the case of any Note selected for partial redemption, the principal amount
thereof to be redeemed. Notes and portions of Notes selected to be redeemed
may be in whole dollar amounts of less than $1,000. Provisions of this
Indenture that apply to Notes called for redemption also apply to portions
of Notes called for redemption.
Section 3.03. Notice of Redemption.
Subject to the provisions of Sections 3.08 and 3.09 hereof, at
least 5 days but not more than 60 days before an optional redemption date
pursuant to Section 3.07 or at least 5 days but not more than 30 days
before a mandatory redemption date pursuant to Section 3.08, the Issuers
shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal amount
equal to the unredeemed portion shall be issued upon cancellation of the
original Note;
(d) the name and address of the Paying Agent to which the Notes
are to be surrendered for redemption;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Issuers default in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on
the Notes.
At the Issuers' request, the Trustee shall give the notice of
redemption in the Issuers' name and at the Issuers' expense; provided,
however, that the Issuers shall have delivered to the Trustee, at least 5
Business Days prior to the date on which any notice of redemption pursuant
to this Article 3 is requested to be mailed by the Trustee, Officers'
Certificates requesting that the Trustee give such notice and setting forth
the information to be stated in such notice as provided in the preceding
paragraph.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable
on the redemption date at the redemption price. A notice of redemption may
not be conditional. Failure to give notice or any defect in the notice to
any Holder shall not affect the validity of the notice to any other Holder.
Section 3.05. Deposit of Redemption Price.
Prior to 11:00 a.m., Chicago time, not less than one Business Day
prior to the redemption date, the Issuers shall deposit with the Trustee or
with the Paying Agent money sufficient to pay the redemption price of and
accrued interest (subject to the right of Holders of record on the relevant
record date to receive interest due on the related interest payment date)
on all Notes to be redeemed on that date. The Trustee or the Paying Agent
shall promptly return to the Issuers any money deposited with the Trustee
or the Paying Agent by the Issuers in excess of the amounts necessary to
pay the redemption price of, and accrued interest on, all Notes to be
redeemed.
If the Issuers comply with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue
on the Notes or the portions of Notes called for redemption. If a Note is
redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid
to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption shall not
be so paid upon surrender for redemption because of the failure of the
Issuers to comply with the preceding paragraph, interest shall be paid on
the unpaid principal, from the redemption date until such principal is
paid, and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section
4.01 hereof.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Issuers
shall issue and, upon the Issuers' written request, the Trustee shall
authenticate for the Holder at the expense of the Issuers a new Note equal
in principal amount to the unredeemed portion of the Note surrendered.
Section 3.07. Optional Redemption.
(a) The Issuers may, at its option at any time after the Effective
Date, redeem the Notes, in whole or in part, on at least 5 days' but not
more than 60 days' notice to each Holder of Notes to be redeemed in cash at
its registered address, at a redemption price equal to 100% of the
principal amount thereof plus accrued and unpaid interest thereon to the
redemption date; provided, however, that any such optional redemption
pursuant to this Section 3.07 shall be permitted only if no Senior Notes
remain outstanding or if, concurrently with the redemption of the Notes,
the Issuers redeem all Senior Notes then outstanding.
(b) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption.
(a) The Issuers shall be required to make mandatory redemptions of
the Notes on or before the 45th day after the end of each fiscal quarter
ending on September 30, December 31, March 31 and June 30 of each year
pursuant to which the Issuers will redeem a principal amount of Notes equal
to Excess Cash as of the end of the immediately preceding fiscal quarter;
provided, however, that the Issuers shall not be obligated to make any
redemption pursuant to this Section 3.08 of less than $1.0 million
principal amount of Notes unless the principal amount of Notes then
outstanding is less than or equal to the principal amount of Notes
otherwise required to be redeemed pursuant to this Section 3.08 without
giving effect to this proviso. Any such mandatory redemption shall be made,
on at least 5 days' but not more than 30 days' notice to each Holder of the
Notes to be redeemed in cash at its registered address, at a redemption
price equal to 100% of the principal amount thereof plus accrued and unpaid
interest thereon to the redemption date; provided, however, that any such
mandatory redemption pursuant to this Section 3.08 shall be permitted only
if no Senior Notes remain outstanding or if, concurrently with the
redemption of the Notes, the Issuers redeem all Senior Notes then
outstanding.
(b) Any redemption pursuant to this Section 3.08 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
Section 3.09. Offers to Repurchase by the Issuers.
In the event that, pursuant to Section 4.14 hereof, the Issuers
shall be required to commence an offer to all Holders to purchase Notes (an
"Offer"), it shall follow the procedures specified below.
The Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later
than the applicable Change in Control Repurchase Date, the Issuers shall
purchase all Notes tendered in response to the Offer.
If the applicable Change in Control Repurchase Date is on or after
an interest record date and on or before the related interest payment date,
any accrued and unpaid interest shall be paid to the Person in whose name a
Note is registered at the close of business on such record date, and no
additional interest shall be payable to Holders who tender Notes pursuant
to the Offer; provided, however, that if the Issuers, the Depositary or the
Paying Agent, as the case may be, fail to mail or deliver to each tendering
Holder an amount equal to the purchase price of the Notes tendered by such
Holder and accepted by the Issuers for purchase pursuant to this Section
3.09, interest shall be paid by the Issuers on the unpaid principal from
such interest record date until such principal is paid and to the extent
lawful on any interest not paid on such interest, in each case at the rate
provided in the Notes.
Upon the commencement of an Offer, the Issuers shall send, by
first class mail, a written notice to the Trustee and each of the Holders,
with a copy to the Trustee. Such notice shall contain all instructions and
materials necessary to enable such Holders to tender Notes pursuant to the
Offer. The Offer shall be made to all Holders. The notice, which shall
govern the terms of the Offer, shall state:
(a) that the Offer is being made pursuant to this Section 3.09 and
Section 4.14 hereof and the length of time the Offer shall remain open;
(b) the Change in Control Repurchase Price and the Change in
Control Repurchase Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Issuers default in making such payment, any
Note accepted for payment pursuant to the Offer shall cease to accrue
interest after the Change in Control Repurchase Date;
(e) that Holders electing to have a Note purchased pursuant to an
Offer may elect to have Notes purchased in whole or in part;
(f) that Holders electing to have a Note purchased pursuant to any
Offer shall be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Note completed,
or transfer by book-entry transfer, to the Issuers, a depositary, if
appointed by the Issuers, or a Paying Agent at the address specified in the
notice at least ten days before the Change in Control Repurchase Date;
(g) that Holders shall be entitled to withdraw their election if
the Issuers, the depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder delivered for purchase
and a statement that such Holder is withdrawing his election to have such
Note purchased; and
(h) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer).
On or before the Change in Control Repurchase Date, the Issuers
shall, to the extent lawful, accept for payment, all Notes tendered, and
shall deliver to the Trustee Officers' Certificates stating that such Notes
or portions thereof were accepted for payment by the Issuers in accordance
with the terms of this Section 3.09. The Issuers, the Depositary or the
Paying Agent, as the case may be, shall promptly (but in any case not later
than five days after the Change in Control Repurchase Date) mail or deliver
to each tendering Holder an amount equal to the purchase price of the Notes
tendered by such Holder and accepted by the Issuers for purchase, and the
Issuers shall promptly issue a new Note, and the Trustee, upon written
request from the Issuers shall authenticate and mail or deliver such new
Note to such Holder, in a principal amount equal to any unpurchased portion
of the Note surrendered. Any Note not so accepted shall be promptly mailed
or delivered by the Issuers to the Holder thereof. The Issuers shall
publicly announce the results of the Offer on or as soon as reasonably
practicable following the Change in Control Repurchase Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
ARTICLE 4. COVENANTS
Section 4.01. Payment of Notes.
The Issuers shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the
Issuers or a Subsidiary of the Issuers, holds as of 12:00 noon Eastern Time
on the due date, money deposited by the Issuers in immediately available
funds and designated for and sufficient to pay all principal, premium, if
any, and interest then due.
The Issuers shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate
on the Notes to the extent lawful; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue installments of interest (without regard to any applicable grace
period) at the same rate to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
The Issuers shall maintain in the Borough of Manhattan, the City
of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices
and demands to or upon the Issuers in respect of the Notes and this
Indenture may be served. The Issuers shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Issuers shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the
Issuers hereby appoint the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Issuers may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any
manner relieve the Issuers of its obligation to maintain an office or
agency in the Borough of Manhattan, the City of New York for such purposes.
The Issuers shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such
other office or agency.
The Issuers hereby designate the corporate trust office of the
Trustee's Agent located at c/o the Depository Trust Company, 1st Floor,
TADS Department, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as one such
office or agency of the Issuers in accordance with Section 2.03.
Section 4.03. Reports.
Whether or not required by the rules and regulations of the SEC,
so long as any Notes are outstanding, the Company shall furnish to the
Trustee and the Holders of Notes within the time periods specified in the
SEC's rules and regulations (i) all quarterly and annual financial
information that would be required to be contained in a filing with the SEC
on Forms 10-Q and 10-K (or any successor forms) if the Company was required
to file such forms, including a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and, with respect to the
annual information only, a report on the annual financial statements by the
Company's certified independent accountants and (ii) all current reports
that would be required to be filed with the SEC on Form 8-K (or any
successor forms) if the Company were required to file such reports. In
addition, whether or not required by the rules and regulations of the SEC,
the Company shall file a copy of all such information and reports with the
SEC for public availability within the time periods specified in the SEC's
rules and regulations (unless the SEC will not accept such a filing) and
make such information available to securities analysts and prospective
investors upon request. The Company shall at all times comply with TIA ss.
314(a).
Section 4.04. Compliance Certificate.
(a) The Issuers shall deliver to the Trustee, within 120 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Issuers and their Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether each of the Issuers and their
Subsidiaries has kept, observed, performed and fulfilled their obligations
under this Indenture, and further stating, as to each such Officer signing
such certificate, that to the best of his or her knowledge each of the
Issuers has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture
(or, if a Default or Event of Default shall have occurred, describing all
such Defaults or Events of Default of which he or she may have knowledge
and what action each of the Issuers, as the case may be, is taking or
propose to take with respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest, if any, on the Notes
is prohibited or if such event has occurred, a description of the event,
its nature and status and what action each of the Issuers, as the case may
be, is taking or propose to take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end
financial statements delivered pursuant to Section 4.03 above shall be
accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that
in making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead them to
believe that the Company has violated any provisions of Article 4 or
Article 5 hereof or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
(c) The Issuers shall, so long as any of the Notes are
outstanding, deliver to the Trustee, within 10 days after any executive
officer of either of the Issuers becomes aware of any Event of Default, an
Officers' Certificate specifying such Event of Default, the period of
existence thereof and what action each of the Issuers, as the case may be,
is taking or proposes to take with respect thereto.
Section 4.05. Taxes.
The Issuers shall, and shall cause each of their Subsidiaries to,
pay or discharge, prior to delinquency, all material taxes, assessments,
and governmental levies except such as are contested in good faith and by
appropriate proceedings or negotiations or where the failure to effect such
payment is not adverse in any material respect to the Holders of the Notes.
Section 4.06. Stay, Extension and Usury Laws.
The Issuers covenant (to the extent that it may lawfully do so)
that they shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law or other law that would prohibit or forgive the Issuers from
paying all or any portion of the principal of, premium, if any, or interest
on the Notes in accordance with this Indenture, wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the
performance of this Indenture, and the Issuers (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
Section 4.07. Restricted Payments.
The Issuers shall not, and shall not permit any of their
Subsidiaries to, directly or indirectly: (a) declare or pay any dividend or
make any other payment or distribution on account of the Issuers' or any of
their Subsidiaries Equity Interests (including, without limitation, any
payment in connection with any merger or consolidation involving the
Issuers or any of their Subsidiaries) or to the direct or indirect holders
of the Issuers' or any of their Subsidiaries' Equity Interests in their
capacity as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Issuers or any Subsidiary
of the Issuers or payable to the Issuers or a Subsidiary of the Issuers);
(b) purchase, redeem or otherwise acquire or retire for value (including,
without limitation, in connection with any merger or consolidation
involving the Issuers) any Equity Interests of the Issuers or any of their
Subsidiaries held by any Person (other than the Issuers or any of its
Subsidiaries); (c) make any payment on or with respect to, or purchase,
redeem, defease or otherwise acquire or retire for value any Indebtedness
that is subordinated to the Notes, except a payment of interest or
principal and premium, if any, at the Stated Maturity thereof; or (d) make
any Restricted Investment (all such payments and other actions set forth in
these clauses (a) through (d) being collectively referred to as "Restricted
Payments").
So long as no Default has occurred and is continuing or would be
caused thereby, the preceding provisions shall not prohibit: (a) the
redemption, repurchase, retirement, defeasance or other acquisition of any
Subordinated Notes in exchange for, or out of the net cash proceeds of the
substantially concurrent sale (other than to a Subsidiary of the Issuers)
of, Equity Interests of the Issuers (other than Disqualified Stock); (b)
the defeasance, redemption, repurchase or other acquisition of subordinated
Indebtedness of any of the Issuers or their Subsidiaries with the net cash
proceeds from an incurrence of Permitted Refinancing Indebtedness; (c) the
payment of any dividend by NLC or a Subsidiary of the Issuers to the
holders of its Equity Interests on a pro rata basis; and (d) the making of
a Change in Control offer to repurchase the Senior Notes after a Change in
Control.
Section 4.08. Dividend and Other Payment Restrictions Affecting
Subsidiaries.
The Issuers shall not, and shall not permit any of their
Subsidiaries to, directly or indirectly, create or permit to exist or
become effective any consensual encumbrance or restriction on the ability
of any Subsidiary to: (a) pay dividends or make any other distributions on
its Capital Stock to the Issuers or any Subsidiaries, or with respect to
any other interest or participation in, or measured by, its profits, or pay
any Indebtedness owed to the Issuers or any of their Subsidiaries; (b) make
loans or advances to the Issuers or any of their Subsidiaries; or (c)
transfer any of its properties or assets to the Issuers or any of their
Subsidiaries.
However, the preceding restrictions shall not apply to
encumbrances or restrictions existing under or by reason of:
(a) agreements governing Existing Indebtedness as in effect on the
date of this Indenture and any amendments, supplements, refinancings,
replacement, extensions, defeasance, refundings, renewals, restatements,
revisions or other modifications to those agreements; provided, however,
that the amendments, supplements, refinancings, replacement, extensions,
defeasance, refundings, renewals, restatements, revisions or other
modifications are no more restrictive, taken as a whole, with respect to
such dividend and other payment restrictions than those contained in those
agreements on the date of this Indenture and do not increase the amount of
the Indebtedness;
(b) this Indenture and the Notes;
(c) the Subordinated Note Indenture and the Subordinated Notes;
(d) applicable law;
(e) customary non-assignment provisions in any contract or
licensing agreement entered into in the ordinary course of business and
consistent with past practices;
(f) purchase money obligations permitted to be incurred pursuant
to clause (c) of the second paragraph of Section 4.09 that impose
restrictions on that property of the nature described in clause (c) of the
preceding paragraph of this Section 4.08;
(g) any agreement for the sale or other disposition of NLC or a
Subsidiary that restricts distributions by NLC or that Subsidiary pending
its sale or other disposition;
(h) Permitted Refinancing Indebtedness, provided, however, that
the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are no more restrictive, taken as a whole, than
those contained in the agreements governing the Indebtedness being
refinanced;
(i) Liens securing Indebtedness otherwise permitted to be incurred
under the provisions of Section 4.11 that limit the right of the debtor to
dispose of the assets subject to such Liens;
(j) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements, assets sale agreements,
stock sale agreements and other similar agreements entered into in the
ordinary course of business; and
(k) restrictions on cash or other deposits or net worth imposed by
customers under contracts entered into in the ordinary course of business.
Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.
The Issuers shall not, and shall not permit any of their
Subsidiaries to, directly or indirectly, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently
or otherwise, with respect to (collectively, "incur") any Indebtedness
(including Acquired Debt), and the Issuers shall not issue any Disqualified
Stock and shall not permit any of their Subsidiaries to issue any shares of
preferred stock.
The first paragraph of this Section 4.09 shall not prohibit the
incurrence of any of the following items of Indebtedness (collectively,
"Permitted Debt"):
(a) the incurrence by the Issuers and their Subsidiaries of the
Existing Indebtedness;
(b) the incurrence by the Issuers of Indebtedness represented by
the Notes and the Senior Notes;
(c) with respect to lease or rental commitments to lessees (i)
existing as of the date hereof or (ii) permitted to be incurred by Foreign
Subsidiaries after the date hereof in accordance with Section 4.12, the
incurrence by the Issuers or any of their Subsidiaries of Indebtedness
represented by purchase money obligations incurred for the purpose of
financing all or any part of the purchase price or cost of equipment leased
or sold to, or otherwise financed for, a customer of the business of the
Issuers or such Subsidiary, in an aggregate principal amount, including all
Permitted Refinancing Indebtedness incurred to refund, refinance or replace
any Indebtedness incurred pursuant to this clause (c), not to exceed $10.0
million at any time outstanding;
(d) the incurrence by (i) the Issuers or any of their Subsidiaries
or (ii) with respect to clause (b) of this Section 4.09, the Issuers, of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to refund, refinance or replace Indebtedness (other than
intercompany Indebtedness) that was permitted by this Indenture to be
incurred under clauses (a), (b), (c), (d), (g), (i) or (k) of this
paragraph;
(e) the incurrence by the Issuers or any of their Subsidiaries of
intercompany Indebtedness between or among the Issuers and any of their
Subsidiaries; provided, however, that:
(i) if either the Company or NLC is the obligor on such
Indebtedness, such Indebtedness must be expressly subordinated to the prior
payment in full in cash of all Obligations with respect to the Notes; and
(ii) (1) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held by a Person
other than the Issuers or a Subsidiary of the Issuers and (2) any sale or
other transfer of any such Indebtedness to a Person that is not either the
Company, NLC or a Subsidiary of the Issuers shall be deemed, in each case,
to constitute an incurrence of such Indebtedness by the Issuers or such
Subsidiary, as the case may be, that was not permitted by this clause (e);
(f) the incurrence by the Issuers or any of their Subsidiaries of
Hedging Obligations that are incurred for the purpose of fixing or hedging
interest rate risk with respect to any floating rate Indebtedness that is
permitted by the terms of this Indenture to be outstanding or for the
purpose of fixing or hedging currency risk;
(g) the accrual of interest, the accretion or amortization of
original issue discount, the payment of interest on any Indebtedness in the
form of additional Indebtedness with the same terms, and the payment of
dividends on Disqualified Stock in the form of additional shares of the
same class of Disqualified Stock shall not be deemed to be an incurrence of
Indebtedness or an issuance of Disqualified Stock for purposes of this
Section 4.09;
(h) Indebtedness of the Issuers or any Subsidiary to the extent
that the net proceeds thereof are promptly:
(i) used to purchase Notes tendered in an offer to purchase
made as a result of a Change in Control; or
(ii) used to redeem Notes pursuant to Section 3.08 hereof.
(i) the incurrence by the Issuers or any of their Subsidiaries of
additional Indebtedness (including Acquired Debt) in an aggregate principal
amount (or accreted value, as applicable) at any time outstanding,
including all Permitted Refinancing Indebtedness incurred to refund,
refinance or replace any Indebtedness incurred pursuant to this clause (i),
not to exceed $5.0 million;
(j) the incurrence of Non-Recourse Debt; provided, however, that
if any such Indebtedness ceases to be Non-Recourse Debt, such event shall
be deemed to constitute an incurrence of Indebtedness by a Subsidiary of
the Issuers that was not permitted by this clause (j); and
(k) obligations in respect of letters of credit, performance and
surety bonds and completion guarantees provided by the Issuers or any
Subsidiary of the Issuers in the ordinary course of business; including
pursuant to the Letter of Credit Facility.
For purposes of determining compliance with this Section 4.09, in
the event that an item of proposed Indebtedness meets the criteria of more
than one of the categories of Permitted Debt described in clauses (a)
through (k) above, the Company shall be permitted to classify such item of
Indebtedness on the date of its incurrence, or later reclassify all or a
portion of such item of Indebtedness, in any manner that complies with this
Section 4.09.
Section 4.10. Transactions with Affiliates.
The Issuers shall not, and shall not permit any of their
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or Guarantee with, or for the
benefit of, any Affiliate (each, an "Affiliate Transaction"), unless:
(a) the Affiliate Transaction is on terms that are no less
favorable to the Issuers or the relevant Subsidiary than those that would
have been obtained in a comparable transaction by the Issuers or such
Subsidiary with an unrelated Person; and (b) the Issuers delivers to the
Trustee:
(i) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess
of $500,000, resolutions of the Board of Directors of the Issuers, as the
case may be, set forth in an Officers' Certificate certifying that such
Affiliate Transaction complies with this covenant and that such Affiliate
Transaction has been approved by a majority of the disinterested members of
the Board of Directors of the Company; and
(ii) with respect to any Affiliate Transaction or series of
related Affiliate Transactions involving aggregate consideration in excess
of $2.5 million, an opinion as to the fairness to the Holders of such
Affiliate Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of national standing.
The following items shall not be deemed to be Affiliate
Transactions and, therefore, shall not be subject to the provisions of the
prior paragraph:
(a) any employment agreement that is in effect on the date of this
Indenture or that is entered into by the Issuers or any of their
Subsidiaries with approval by a majority of the disinterested members of
the Board of Directors of the Company;
(b) transactions between or among one or more of the Company
and/or NLC and/or their respective Subsidiaries;
(c) payment of reasonable directors fees to Persons who are not
otherwise Affiliates of the Issuers;
(d) Restricted Payments that are permitted by Section 4.07;
(e) advances to Officers of any of the Issuers or their
Subsidiaries in the ordinary course of business to provide for the payment
of reasonable expenses incurred by such Persons in the performance of their
responsibilities to the Issuers or such Subsidiary or in connection with
any relocation;
(f) reasonable fees and compensation (including, without
limitation, bonuses, retirement plans and securities, equity options and
equity ownership plans, and payments, bonuses or other incentives offered
pursuant to the Management Incentive Plan) paid or issued to and
indemnities provided on behalf of, Officers, directors, employees or
consultants of the Issuers or any Subsidiary in the ordinary course of
business; and
(g) any other transactions expressly authorized by the Court
pursuant to the Plan or any order entered by the Court in respect thereof.
Section 4.11. Liens.
The Issuers shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly (a) create, incur, assume or suffer
to exist any Lien of any kind securing Indebtedness or trade payables on
any asset of the Issuers or any of its Subsidiaries now owned or hereafter
acquired or on any income or profits therefrom, or (b) assign or convey any
right to receive income therefrom, securing Indebtedness, except in each
case for Permitted Liens.
Section 4.12. Line of Business.
Subject to, and without limitation to the provisions restricting
the business operations of the Company contained in the articles of
incorporation, certificate of incorporation or similar organizational
document of the Company, the Issuers shall not, and shall not permit any
Subsidiary to, engage in any business other than the Permitted Business
except (i) to such extent as would not be material to the financial
condition of the Issuers and their Subsidiaries taken as a whole and as may
arise in connection with, or as a result of, the enforcement of the
Issuers' and/or their Subsidiaries' legal rights against any third parties
in implementing the Permitted Business with respect to New Ventures or (ii)
with respect to Permitted Investments, or commitments to make Permitted
Investments, permitted by clause (h) of the definition thereof, made by
Foreign Subsidiaries within six months of the date hereof; provided, that
the aggregate amount of such Permitted Investments is less than $50.0
million at any time within such six month period.
Section 4.13. Corporate Existence; Certificate of Incorporation.
Subject to the provisions of Section 5.1 and Section 5.2 hereof,
the Issuers shall do or cause to be done all things necessary to preserve
and keep in full force and effect:
(a) its corporate existence, and the corporate, partnership or
other existence of each of their Subsidiaries, in accordance with the
respective organizational documents (as the same may be amended from time
to time) of the Issuers or any such Subsidiary, and
(b) the rights (charter and statutory), licenses and franchises of
the Issuers and their Subsidiaries; provided, however, that the Issuers
shall not be required to preserve any such right, license or franchise, or
the corporate, partnership or other existence of any of their Subsidiaries,
if the Board of Directors of the Issuers, as the case may be, shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Issuers, as the case may be, and their
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in
any material respect to the Holders of the Notes.
Notwithstanding anything to the contrary contained in this Section
4.13, the Company shall not amend, modify or alter its certificate of
incorporation, articles of incorporation or similar organizational document
in any manner that would materially expand or enlarge or fundamentally
alter the business operations to be conducted by the Company pursuant to
such certificate of incorporation, articles of incorporation or similar
organizational document.
Section 4.14. Offers to Repurchase by the Company.
Upon the occurrence of a Change in Control of the Company
occurring after the date of issuance of the Notes and on or prior to
maturity, subject to the provisions of Article 9 hereof, the Issuers shall
make an offer to each Holder (a "Change in Control Offer") to repurchase
all or any part of each Holder's Notes on the date, which must be a
Business Day (the "Change in Control Repurchase Date"), that is selected by
the Issuers (subject to compliance with the minimum Offer Period specified
in Section 3.09) that is not more than 75 days after the date the Issuers
gives notice of the Change in Control at a price (the "Change in Control
Repurchase Price") equal to 101.0% of the principal amount thereof,
together with accrued and unpaid interest to the Change in Control
Repurchase Date. Not less than one Business Day prior to the Change in
Control Repurchase Date, the Issuers shall be required to deposit with the
Trustee or a Paying Agent an amount of money sufficient to pay the Change
in Control Repurchase Price of the Notes that are to be repaid on the
Change in Control Repurchase Date. On or before the 15th day after the last
date on which, in accordance with the Senior Note Indenture, holders of
Senior Notes are permitted to deliver written notice of exercise of their
right to require the Issuers to repurchase the Senior Notes pursuant to
Section 4.14 of the Senior Note Indenture upon a Change in Control, the
Issuers shall mail to all Holders the information and documentation
required to be provided pursuant to Section 3.09. The Issuers shall comply
with any applicable requirements of Rules 13e-4 and 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to
the extent such laws and regulations are applicable in connection with the
repurchase of Notes in connection with a Change in Control and shall be
deemed not to have breached its obligations under this Section 4.14 as a
result of such compliance.
Prior to complying or simultaneously with this Section 4.14, but
in any event within 90 days following a Change in Control, the Issuers
shall either (1) repay all outstanding Senior Indebtedness (other than the
Senior Notes) and offer to repurchase all outstanding Senior Notes in
accordance with the terms of the Senior Note Indenture or (2) obtain the
requisite consents, if any, under all agreements governing outstanding
Senior Indebtedness to permit the repurchase of the Notes required by this
Section 4.14.
Notwithstanding anything to the contrary in this Section 4.14, the
Issuers shall not be required to make a Change in Control Offer upon a
Change in Control if a third party makes the Change in Control Offer in the
manner, at the times and otherwise in compliance with the requirements set
forth in this Section 4.14 and Section 3.09 hereof and all other provisions
of this Indenture applicable to a Change in Control Offer made by the
Issuers and purchases all Senior Notes and all Notes validly tendered and
not withdrawn under the change in control offer required to be made under
the Senior Note Indenture and under such Change in Control Offer.
Section 4.15. Insurance.
The Issuers shall, and shall cause their Subsidiaries to, maintain
insurance with responsible carriers against such risks and in such amounts
as is customarily carried by similar businesses with such deductibles,
retentions, self insured amounts and coinsurance provisions as are
customarily carried by similar businesses of similar size, and shall
furnish to the Trustee, upon reasonable written request, full information
as to the insurance carried.
Section 4.16. Maintenance of Property.
The Issuers shall, and shall cause their Subsidiaries to keep all
property and systems useful and necessary in its business or the business
of any of their Subsidiaries in good working order and condition, ordinary
wear and tear excepted, and supplied with all necessary equipment.
Section 4.17. Limitation on Sale and Leaseback Transactions.
The Issuers shall not, and shall not permit any of their
Subsidiaries to, enter into any sale and leaseback transaction; provided,
however, that so long as no Default has occurred and is continuing or would
be caused thereby, the preceding sentence shall not prohibit: (a) any sale
and leaseback transaction involving or in respect of the Company's
corporate headquarters and/or all tangible property related thereto; and
(b) sale and leaseback transactions to the extent the aggregate present
value (discounted at the rate of interest implicit in such transaction,
determined in accordance with GAAP) of the obligations of the lessee for
net rental payments during the remaining term of the lease included in such
sale and leaseback transaction (including any period for which such lease
has been or may, at the option of the lessor, be extended) of such sale and
leaseback transactions do not exceed $5.0 million at the time of
determination.
Section 4.18. Limitation on Issuances and Sales of Equity Interests in
Subsidiaries.
(a) The Issuers shall not, and shall not permit any of their
Subsidiaries to, directly or indirectly, transfer, convey, sell, lease or
otherwise dispose of any Equity Interests in any Subsidiary of the Issuers
to any Person (other than the Issuers or a Subsidiary of the Issuers),
unless such transfer, conveyance, sale, lease or other disposition is of
all the Equity Interests in such Subsidiary.
In addition, the Issuers shall not permit any Subsidiary of the
Issuers to issue any Equity Interests (other than, if necessary, shares of
its Capital Stock constituting directors' qualifying shares) to any Person
other than to the Issuers or a Subsidiary of the Issuers.
Section 4.19. No Senior Subordinated Debt.
The Issuers shall not incur, create, issue, assume, guarantee or
otherwise become liable for any Indebtedness that is subordinate or junior
in right of payment to any Senior Indebtedness of the Issuers and senior in
any respect in right of payment to the Notes.
Section 4.20. No Amendment to Certain Provisions of the Indenture.
The Company shall not amend, modify or alter the Indenture in any
way to:
(a) increase the rate of , change the time for or change the
manner of payment of interest on any Notes;
(b) increase the principal or premium, if any, of, or advance the
final maturity date of, any Notes;
(c) alter the redemption provisions or the price or terms at which
the Company is required to offer to purchase any Notes; or
(d) amend Article 9 of this Indenture.
Section 4.21. Equity Interests of the Company.
The Company shall not issue any additional Equity Interests after
the date hereof; provided, however, that the Company may issue Equity
Interests upon the exercise of any warrants or rights or pursuant to any
rights issued in accordance with the Plan and may issue options to
officers, employees and directors of the Company and its Subsidiaries to
acquire Capital Stock of the Company and may issue Capital Stock upon
exercise of such options.
Section 4.22. Assets of the Company.
The Company shall contribute, transfer or assign all of its
material, tangible assets, other than its right, title and interest in the
Note Collateral, to NLC or any other Subsidiary as soon as reasonably
practicable after the Company has the legal right to contribute, transfer
or assign such material, tangible assets, whether such assets are owned on
the date hereof or subsequently become owned by the Company; provided,
however, that nothing contained in this Section 4.22 shall require the
Company to contribute, transfer or assign its right, title and interest in
cash and/or cash equivalents to NLC or any other Subsidiary.
Section 4.23. Management Incentive Plan.
The Issuers shall not amend, modify or restate the Management
Incentive Plan after the Effective Date in any way that would increase the
aggregate maximum amount of incentive payments payable thereunder at any
time to an amount greater than 105% of the aggregate maximum amount
otherwise payable under the Management Incentive Plan with respect to the
achievement of a certain performance target or incentive level.
Section 4.24. Additional Note Collateral.
In the event that the Company or NLC or any of their Subsidiaries
acquires or creates another Domestic Subsidiary after the Effective Date
which is directly owned by the Company or NLC, or if any of the Issuers'
Foreign Subsidiaries becomes a Domestic Subsidiary after the Effective Date
which is directly owned by the Company or NLC, the Issuers covenant and
agree that the Equity Interests of such newly acquired or created Domestic
Subsidiary shall be pledged and otherwise constitute additional Note
Collateral hereunder and pursuant to the Collateral Documents. The Issuers
shall execute and deliver to the Trustee any additional instruments and do
any further acts as may be reasonably necessary or proper to carry out the
purposes of this Section 4.24.
Section 4.25. Consummation of Plan.
Notwithstanding anything to the contrary herein, no provision or
Section of this Indenture shall prevent, restrict or otherwise hinder the
Issuers from consummating the Plan and the transactions contemplated
thereby.
Section 4.26. Distributions from Subsidiaries.
Except with respect to any Scheduled Cash Reserve Amount, the
Issuers will take reasonable actions to cause their Domestic Subsidiaries
to distribute all cash to their respective parent companies until such cash
is in the accounts of the Company. In addition, the Issuers will take
reasonable actions to cause their Foreign Subsidiaries, to the extent such
distribution would not violate applicable law or trigger either an
additional foreign tax or United States tax, to distribute all cash not
required for their continued normal operations to their respective parent
companies until such cash is in the accounts of the Company.
ARTICLE 5.
SUCCESSORS
Section 5.01. Merger, Consolidation or the Transfer of All or
Substantially All of the Assets of the Company.
The Company may not, in a single transaction or through a series
of related transactions, consolidate with or merge into, or transfer all or
substantially all of the assets of the Company and its Subsidiaries, taken
as a whole, to, another Person in any transaction in which the Company is
not the continuing or surviving entity, unless:
(a) the resulting, surviving or transferee Person is a corporation
which assumes by supplemental indenture, in form satisfactory to the
Trustee, all the obligations of the Company under the Notes, this Indenture
and the Registration Rights Agreement or is a reorganization within the
meaning of Section 368(a)(1)(B) of the Internal Revenue Code, and this
Indenture remains in full force and effect;
(b) such corporation is organized and existing under the laws of
the United States, a State thereof or the District of Columbia, although it
in turn may be owned by a foreign entity;
(c) immediately after giving effect to such transaction no Default
or Event of Default shall have occurred and be continuing and the Officers'
Certificate referred to in clause (e) of this Section 5.01 reflects that
such Officers are not aware of any such Default or Event of Default that
shall have occurred and be continuing;
(d) each Subsidiary of the Company immediately prior to the
transaction shall be a Subsidiary of the resulting, surviving or transferee
Person immediately following the transaction, and the transaction shall not
indirectly effect any change, transfer, borrowing or Lien that would have
been prohibited by this Indenture if done by the Company or any Subsidiary
independent of such transaction or would have caused a Default under this
Indenture if done independent of such transaction; and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each to the effect that all
conditions precedent provided for in this Indenture relating to such
consolidation, merger or transfer have been complied with.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company in accordance with the
preceding paragraph:
(a) the successor corporation formed by such consolidation or into
which the Company is merged or to which such transfer is made shall succeed
to, and shall be substituted for, and may exercise every right and power
of, the Company under this Indenture and the Registration Rights Agreement
with the same effect as if such successor corporation has been named as the
Company in this Indenture and the Registration Rights Agreement;
(b) the Company shall thereupon be relieved of any further
obligation or liability hereunder or upon the Notes; and
(c) the Company as the predecessor corporation may thereupon or at
any time thereafter be dissolved, wound up or liquidated.
Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of Reorganized Comdisco,
Inc., any or all of the Notes issuable under this Indenture which
theretofore shall not have been signed by the Company and delivered to the
Trustee. Upon the order of such successor corporation, instead of the
Company, and subject to all the terms, conditions and limitations in this
Indenture, the Trustee shall authenticate and shall deliver any Notes which
previously shall have been signed and delivered by Officers of the Company
to the Trustee for authentication, and any Notes which such successor
corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Notes so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Notes
theretofore or thereafter issued in accordance with the terms of this
Indenture as though all such Notes had been issued at the date of execution
of this Indenture.
Section 5.02. Merger, Consolidation or the Transfer of All or Substantially
All of the Assets of NLC.
NLC may not, in a single transaction or through a series of
related transactions, consolidate with or merge into, or transfer all or
substantially all of the assets of NLC and its Subsidiaries, taken as a
whole, to, another Person in any transaction in which NLC is not the
continuing or surviving entity, unless:
(a) the resulting, surviving or transferee Person is a corporation
which assumes by supplemental indenture, in form satisfactory to the
Trustee, all the obligations of NLC under the Notes, this Indenture and the
Registration Rights Agreement or is a reorganization within the meaning of
Section 368(a)(1)(B) of the Internal Revenue Code, and this Indenture
remains in full force and effect;
(b) such corporation is organized and existing under the laws of
the United States, a State thereof or the District of Columbia, although it
in turn may be owned by a foreign entity;
(c) immediately after giving effect to such transaction no Default
or Event of Default shall have occurred and be continuing and the Officers'
Certificate referred to in clause (e) of this Section 5.02 reflects that
such Officers are not aware of any such Default or Event of Default that
shall have occurred and be continuing;
(d) each Subsidiary of NLC immediately prior to the transaction
shall be a Subsidiary of the resulting, surviving or transferee Person
immediately following the transaction, and the transaction shall not
indirectly effect any change, transfer, borrowing or Lien that would have
been prohibited by this Indenture if done by NLC or any Subsidiary
independent of such transaction or would have caused a Default under this
Indenture if done independent of such transaction; and
(e) NLC shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each to the effect that all
conditions precedent provided for in this Indenture relating to such
consolidation, merger or transfer have been complied with.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of NLC in accordance with the preceding
paragraph:
(a) the successor corporation formed by such consolidation or into
which NLC is merged or to which such transfer is made shall succeed to, and
shall be substituted for, and may exercise every right and power of, NLC
under this Indenture and the Registration Rights Agreement with the same
effect as if such successor corporation has been named as NLC in this
Indenture and the Registration Rights Agreement;
(b) NLC shall thereupon be relieved of any further obligation or
liability hereunder or upon the Notes; and
(c) NLC as the predecessor corporation may thereupon or at any
time thereafter be dissolved, wound up or liquidated.
Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of New Leasing Co., Inc.,
any or all of the Notes issuable under this Indenture which theretofore
shall not have been signed by NLC and delivered to the Trustee. Upon the
order of such successor corporation, instead of NLC, and subject to all the
terms, conditions and limitations in this Indenture, the Trustee shall
authenticate and shall deliver any Notes which previously shall have been
signed and delivered by Officers of NLC to the Trustee for authentication,
and any Notes which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the Notes so
issued shall in all respects have the same legal rank and benefit under
this Indenture as the Notes theretofore or thereafter issued in accordance
with the terms of this Indenture as though all such Notes had been issued
at the date of execution of this Indenture.
Notwithstanding the foregoing, NLC may merge with, or transfer all
of its assets to, the Company.
Section 5.03. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially
all of the assets of the Company or NLC, as applicable, in accordance with
Section 5.01 or Section 5.02, the successor corporation formed by such
consolidation or into or with which the Company or NLC, as applicable, is
merged or to which such sale, assignment, transfer, lease, conveyance or
other disposition is made shall succeed to, and be substituted for (so that
from and after the date of such consolidation, merger, sale, lease,
conveyance or other disposition, the provisions of this Indenture referring
to the "Company" or "NLC" shall refer instead to the successor corporation
and not to the Company or NLC, as applicable), and may exercise every right
and power of the Company or NLC, as applicable, under this Indenture with
the same effect as if such successor Person had been named as the Company
or NLC, as applicable, herein; provided, however, that the predecessor of
the Company or NLC, as applicable, shall not be relieved from the
obligation to pay the principal of and interest on the Notes except in the
case of a sale, assignment, transfer, conveyance or other disposition of
all of the Company's or NLC's, as applicable, assets that meets the
requirements of Section 5.01 or Section 5.02.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs if:
(a) the Issuers default in the payment when due of interest on the
Notes and such default continues for a period of 30 days whether or not
prohibited by Article 9 hereof;
(b) the Issuers default in the payment when due of principal of or
premium, if any, on the Notes whether at maturity, upon redemption
(including in connection with an offer to purchase) or otherwise whether or
not prohibited by Article 9 hereof;
(c) the Company or any of its Subsidiaries fail to comply with any
of the provisions of Sections 4.13, 5.01 or 5.02 hereof;
(d) the Issuers fail to observe or perform any other covenant,
representation, warranty or other agreement under the Indenture or the
Notes for 60 days after written notice to (i) the Issuers by the Trustee or
(ii) the Issuers and the Trustee by the holders of at least 25% in
aggregate principal amount of the Notes then outstanding;
(e) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Issuers (but not
including any indebtedness or obligation for which recourse is limited to
the property purchased), whether such Indebtedness or guarantee now exists,
or is created after the date of this Indenture, which default results in
the acceleration of such Indebtedness prior to its express maturity and, in
each case, the principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness the maturity of which has
been so accelerated, aggregates $25.0 million or more and such Indebtedness
is not paid or such acceleration is not annulled within 10 days after
written notice to the Issuers of such acceleration;
(f) the rendering of a final judgment or final judgments for the
payment of money is/are entered by a court or courts of competent
jurisdiction against either the Company or NLC and such judgment or
judgments remain undischarged for a period (during which execution shall
not be effectively stayed) of 60 days, provided that the aggregate of all
such undischarged judgments (to the extent not covered by insurance)
exceeds $10.0 million;
(g) the Company or NLC pursuant to or within the meaning of
Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it
in an involuntary case,
(iii) consents to the appointment of a custodian of it or for
all or substantially all of its property, or
(iv) makes a general assignment for the benefit of its
creditors; or
(v) admits in writing its inability to pay its debts as the
same becomes due; or
(vi) generally is not paying its debts as they become due; or
(h) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company or NLC in an
involuntary case;
(ii) appoints a custodian of the Company or NLC or for all or
substantially all of the property of the Company or NLC; or
(iii) orders the liquidation of the Company or NLC other than
as contemplated by the Plan;
and the order or decree remains unstayed and in effect for 60 consecutive days.
Section 6.02. Acceleration.
If any Event of Default (other than an Event of Default specified
in clause (g) or (h) of Section 6.01 hereof with respect to the Company or
NLC) occurs and is continuing, then and in every such case the Trustee or
the Holders of at least 25% in principal amount of the then outstanding
Notes may, by notice in writing to the Issuers, declare all the Notes to be
due and payable immediately. Upon any such declaration, the Notes will
become due and payable immediately. Notwithstanding the foregoing, if an
Event of Default specified in clause (g) or (h) of Section 6.01 hereof
occurs with respect to the Company or NLC, all outstanding Notes shall be
due and payable immediately without further action or notice. At any time
after such a declaration of acceleration has been made, the Holders of a
majority in aggregate principal amount of the then outstanding Notes by
written notice to the Issuers and the Trustee may, on behalf of all of the
Holders, rescind and annul such declaration of acceleration and its
consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default (except nonpayment of
principal, interest or premium, if any, that has become due solely because
of the acceleration) have been cured or waived.
Section 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy (under this Indenture or otherwise) to collect
the payment of principal, premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder of a Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default.
All remedies are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
Holders of not less than a majority in aggregate principal amount
of the then outstanding Notes by notice to the Issuers and the Trustee may,
on behalf of the Holders of all of the Notes, waive an existing Default or
Event of Default and its consequences hereunder, except (i) a continuing
Default or Event of Default in the payment of the principal of, premium, if
any, or interest on, the Notes (including in connection with an offer to
purchase) or (ii) with respect to any covenant or provision of this
Indenture which cannot be modified or amended without the consent of the
Holders of each outstanding Note affected; provided, however, that the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any
related payment default that resulted from such acceleration. Upon any such
waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured for every purpose of this
Indenture; provided, however, that no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right
consequent thereon.
Section 6.05. Control by Majority.
Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee or exercising any trust
or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee
determines may be unduly prejudicial to the rights of other Holders of
Notes or that may involve the Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this
Indenture, the Notes or the Collateral Documents only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity reasonably satisfactory to the
Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision
of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee a
direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority
over another Holder of a Note.
Section 6.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right
of any Holder of a Note to receive payment of principal, premium, if any,
and interest on the Note, on or after the respective due dates expressed in
the Note (including in connection with an offer to purchase), or to bring
suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such
Holder; provided, however, that a Holder shall not have the right to
institute any such suit for the enforcement of payment if and to the extent
that the institution or prosecution thereof or the entry of judgment
therein would, under applicable law, result in the surrender, impairment,
waiver or loss of the Lien of this Indenture upon any property subject to
such Lien.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs
and is continuing, the Trustee is authorized to recover judgment in its own
name and as trustee of an express trust against the Issuers for the whole
amount of principal of, premium, if any, and interest remaining unpaid on
the Notes and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the
compensation to the Trustee and its agents for all services rendered by
them hereunder as shall have been agreed upon in writing from time to time
among the Trustee or such agents, as the case may be, and the Issuers and
the costs and expenses of collection, including the reasonable expenses,
disbursements and advances of the Trustee (including the reasonable
compensation and the reasonable expenses and disbursements of its agents
and counsel).
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable expenses,
disbursements and advances of the Trustee (including reasonable
compensation and the reasonable expenses and disbursements of its agents
and counsel) and the Holders of the Notes allowed in any judicial
proceedings relative to the Issuers, their creditors or their property and
shall be entitled and empowered to collect, receive and distribute any
money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
expenses, disbursements and advances of the Trustee (including reasonable
compensation and the reasonable expenses and disbursements of its agents
and counsel), and any other amounts due the Trustee under Section 7.07
hereof. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof out of the estate
in any such proceeding, shall be denied for any reason, payment of the same
shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in accordance with the requirements of the Pledge
Agreement and to the extent received in accordance therewith for
distribution hereunder in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including, to the extent permitted
thereunder, payment of all compensation, reasonable expenses and
disbursements incurred, and all advances made, by the Trustee and
the reasonable costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on
the Notes for principal, premium, if any, and interest, ratably,
without preference or priority of any kind, according to the
amounts due and payable on the Notes for principal, premium, if
any, and interest, respectively;
Third: without duplication, to Holders of Notes for any
other Obligations (other than contingent reimbursement,
indemnification or contribution Obligations) then owing to the
Holders of the Notes under the Notes or this Indenture; and
Fourth: to the Issuers or to such party as a court of
competent jurisdiction shall direct.
Notwithstanding the preceding paragraph, in the event of a
conflict between the provisions of the Pledge Agreement and the mandatory
provisions of the TIA, upon qualification of this Indenture under the TIA,
the TIA shall control, and distributions shall be made in the order, and to
the Persons specified under, the TIA.
The Trustee may fix a record date and payment date for any payment
to Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply
to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section
6.07 hereof, or a suit by Holders of more than 10% in principal amount of
the then outstanding Notes.
ARTICLE 7.
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct
of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture, the Pledge Agreement and the
Collateral Documents, and the Trustee need perform only those duties that
are specifically set forth in this Indenture, the Pledge Agreement and the
Collateral Documents and no others, and no implied covenants or obligations
shall be read into this Indenture, the Pledge Agreement and the Collateral
Documents against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture, the
Pledge Agreement and the Collateral Documents. However, the Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture, the Pledge Agreement and the
Collateral Documents.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b)
of this Section 7.01;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision
of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture, the Pledge Agreement or the
Collateral Documents shall require the Trustee to expend or risk its own
funds or incur any liability. The Trustee shall be under no obligation to
exercise any of its rights and powers under this Indenture, the Pledge
Agreement or the Collateral Documents at the request of any Holders, unless
such Holder shall have offered to the Trustee security and indemnity
reasonably satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed
by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in
good faith in reliance on such Officers' Certificate or Opinion of Counsel.
The Trustee may consult with counsel and the written advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, the
Pledge Agreement or the Collateral Documents, any demand, request,
direction or notice from the Company shall be sufficient if signed by an
Officer of the Company or NLC, as the case may be, on behalf of the Company
or NLC, respectively.
(f) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture, the Pledge Agreement
or the Collateral Documents at the request or direction of any of the
Holders unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that
might be incurred by it in compliance with such request or direction.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Issuers or any
Affiliate of the Issuers with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC
for permission to continue as trustee or resign. Any Agent may do the same
with like rights and duties. The Trustee is also subject to Sections 7.10
and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the
Notes, it shall not be accountable for the Issuers' use of the proceeds
from the Notes or any money paid to the Issuers or upon the Issuers'
direction under any provision of this Indenture, it shall not be
responsible for the use or application of any money received by any Paying
Agent other than the Trustee, and it shall not be responsible for any
statement or recital herein or any statement in the Notes or any other
document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to Holders of Notes a
notice of the Default or Event of Default within 90 days after the
occurrence of such Default or Event of Default. Except in the case of a
Default or Event of Default in payment of principal of, premium, if any, or
interest on any Note, the Trustee may withhold the notice if and so long as
a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each October 15 beginning with the October 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief
report dated as of such reporting date that complies with TIA ss. 313(a)
(but if no event described in TIA ss. 313(a) has occurred within the twelve
months preceding the reporting date, no report need be transmitted). The
Trustee also shall comply with TIA ss. 313(b)(2). The Trustee shall also
transmit by mail all reports as required by TIA ss. 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Issuers and filed with the SEC and each stock
exchange on which the Notes are listed, if any, in accordance with TIA ss.
313(d). The Issuers shall promptly notify the Trustee when the Notes are
listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
The Issuers shall pay to the Trustee from time to time such
compensation as the Issuers and the Trustee shall from time to time agree
in writing for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Issuers shall reimburse the Trustee
promptly upon request for all reasonable expenses, disbursements and
advances of the Trustee (including the reasonable compensation and the
reasonable expenses and disbursements of its agents and counsel).
The Issuers shall indemnify the Trustee against any and all
losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture
against the Issuers (including this Section 7.07) and defending itself
against any claim (whether asserted by the Issuers or any Holder or any
other person) or liability in connection with the exercise or performance
of any of its powers or duties hereunder, except to the extent any such
loss, liability or expense may be attributable to its gross negligence, bad
faith or willful misconduct. The Trustee shall notify the Issuers promptly
of any claim for which it may seek indemnity. Failure by the Trustee to so
notify the Issuers shall not relieve the Issuers of its obligations
hereunder. The Issuers shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the
Issuers shall pay the reasonable fees and expenses of such counsel. The
Issuers need not pay for any settlement made without its consent, which
consent shall not be unreasonably withheld.
The obligations of the Issuers under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
To secure the Issuers' payment obligations in this Section, the
Issuers hereby grant to the Trustee a security interest on all money or
property held or collected by the Trustee, except that held in trust to pay
principal, interest and premium, if any, on particular Notes. Such Lien
shall survive the satisfaction and discharge of this Indenture; provided,
however, that such Lien shall be automatically released upon the payment in
full of all amounts payable to the Trustee pursuant to the first paragraph
of this Section 7.07 and of all other amounts then due and payable pursuant
to the second paragraph of this Section 7.07.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(e) or (f) hereof occurs, the
expenses and the compensation for the services (including the fees and
expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2)
to the extent applicable.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign in writing at any time and be discharged
from the trust hereby created by so notifying the Issuers. The Holders of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Issuers in writing. The Issuers
may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists
in the office of Trustee for any reason, the Issuers shall promptly appoint
a successor Trustee. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Issuers.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Issuers, or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10, such
Holder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided, however,
all sums owing to the Trustee hereunder have been paid and subject to the
Lien provided for in Section 7.07 hereof. Notwithstanding replacement of
the Trustee pursuant to this Section 7.08, the Issuers' obligations under
Section 7.07 hereof shall continue for the benefit of the retiring Trustee,
and the Issuers shall pay to any such replaced or removed Trustee all
amounts owed to such replaced or removed Trustee under Section 7.07 upon
such replacement or removal.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another bank
or corporation, the successor bank or corporation without any further act
shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United
States of America or of any state thereof or of the District of Columbia
that is authorized under such laws to exercise corporate trustee power,
that is subject to supervision or examination by federal or state or the
District of Columbia authorities and that has a combined capital and
surplus of at least $150.0 million as set forth in its most recent
published annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to
TIA ss. 310(b).
Section 7.11. Preferential Collection of Claims Against Issuers.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
The provisions of TIA ss. 311 shall apply to the Company as obligor on the
Notes.
ARTICLE 8.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 8.01. Without Consent of Holders of Notes.
Notwithstanding Section 8.02 of this Indenture, the Issuers and
the Trustee may amend or supplement this Indenture, the Notes or the
Collateral Documents without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of certificated Notes or to alter the provisions of Article 2 hereof
(including the related definitions) in a manner that does not materially
adversely affect any Holder;
(c) to provide for the assumption of the Issuers' obligations
to the Holders of the Notes by a successor to the Issuers pursuant to
Article 5 hereof;
(d) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not adversely
affect the legal rights hereunder of any Holder of the Notes;
(e) to comply with requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA; or
(f) to provide for the issuance of Additional Notes in
accordance with the provisions set forth in this Indenture as of the date
hereof.
Upon the request of the Issuers accompanied by a resolution of
their respective Board of Directors, as the case may be, authorizing the
execution of any such amended or supplemental Indenture, and upon receipt
by the Trustee of the documents described in Section 8.06 hereof, the
Trustee shall join with the Issuers in the execution of any amended or
supplemental Indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to
enter into such amended or supplemental Indenture that affects its own
rights, duties or immunities under this Indenture or otherwise.
Section 8.02. With Consent of Holders of Notes.
Except as provided below in this Section 8.02, the Issuers and the
Trustee may amend or supplement this Indenture (including Section 3.08
hereof), the Notes and the Collateral Documents with the consent of the
Holders of at least a majority in aggregate principal amount of the Notes
then outstanding (including consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes), and, subject to
Sections 6.04 and 6.07 hereof, any existing Default or Event of Default
(other than a Default or Event of Default in the payment of the principal
of, premium, if any, or interest on the Notes, except a payment default
resulting from an acceleration that has been rescinded) or compliance with
any provision of this Indenture, the Notes or the Collateral Documents may
be waived with the consent of the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes (including
consents obtained in connection with a tender offer or exchange offer for,
or purchase of, the Notes). Section 2.08 hereof shall determine which Notes
are considered to be "outstanding" for purposes of this Section 8.02.
Upon the request of the Issuers accompanied by a resolution of
their Board of Directors, as the case may be, authorizing the execution of
any such amended or supplemental Indenture, and upon the filing with the
Trustee of evidence satisfactory to the Trustee of the consent of the
Holders of Notes as aforesaid, and upon receipt by the Trustee of the
documents described in Section 7.02(b) hereof, the Trustee shall join with
the Issuers in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture, by its express terms,
directly affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such amended or supplemental
Indenture.
It shall not be necessary for the consent of the Holders of Notes
under this Section 8.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves
the substance thereof.
After an amendment, supplement or waiver under this Section 8.02
becomes effective, the Issuers shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver.
Any failure of the Issuers to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amended or supplemental Indenture or waiver. Subject to Sections 6.04 and
6.07 hereof, the Holders of not less than a majority in aggregate principal
amount of the Notes then outstanding may waive compliance in a particular
instance by the Issuers with any provision of this Indenture, the Notes or
the Collateral Documents. However, without the consent of each Holder
affected, an amendment, waiver or supplement under this Section 8.02 may
not (with respect to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any
Note or alter or waive any of the provisions with respect to the redemption
of the Notes except as provided above with respect to Sections 3.08 hereof;
(c) reduce the rate of or change the time for payment of interest,
including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Notes (except a
rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the then outstanding Notes and a
waiver of the payment Default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating
to waivers of past Defaults or the rights of Holders of Notes to receive
payments of principal of or premium, if any, or interest on the Notes;
(g) make any change in Section 6.04 or 6.07 hereof or in the
foregoing amendment and waiver provisions; or
(h) waive a redemption payment required to be made, or offered to
be made, by the Company pursuant to Section 3.09 or Section 4.14.
In addition, any amendment to, or waiver of, Article 9 of this
Indenture that materially adversely affects the rights of the Holders of
the Notes shall require the consent of the Holders of 100% in aggregate
principal amount of Notes then outstanding.
Section 8.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall
be set forth in a amended or supplemental Indenture that complies with the
TIA as then in effect.
Section 8.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder
of a Note and every subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note, even if notation
of the consent is not made on any Note. However, any such Holder of a Note
or subsequent Holder of a Note may revoke the consent as to its Note if the
Trustee receives written notice of revocation before the date the waiver,
supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds
every Holder.
The Company may fix a record date for determining which Holders
must consent to such supplemental indenture, amendment or waiver. If the
Company fixes a record date, the record date shall be fixed at (i) the
later of 30 days prior to the first solicitation of such consent or the
date of the most recent list of Holders furnished to the Trustee prior to
such solicitation pursuant to Section 2.05, or (ii) such other date as the
Company shall designate.
Section 8.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Issuers in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
Section 8.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article 8 if the amendment or supplement does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. The Issuers may not sign an amendment or supplemental Indenture
until their Board of Directors approves it. In executing any amended or
supplemental indenture, the Trustee shall be entitled to receive and
(subject to Section 7.01 hereof) shall be fully protected in relying upon,
in addition to the documents required by Section 12.04 hereof, an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
amended or supplemental indenture is authorized or permitted by this
Indenture.
ARTICLE 9.
SUBORDINATION
Section 9.01. Agreement to Subordinate.
The Issuers agree, and each Holder by accepting a Note agrees,
that the Indebtedness evidenced by the Notes is subordinated in right of
payment, to the extent and in the manner provided in this Article 9, to the
prior payment in full of all Senior Indebtedness of the Issuers (whether
outstanding on the date hereof or hereafter created, incurred, assumed or
guaranteed), and that the subordination is for the benefit of the holders
of Senior Indebtedness.
Section 9.02. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Issuers in a liquidation
or dissolution of the Issuers or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Issuers or
its property, in an assignment for the benefit of creditors or any
marshaling of the Issuers' assets and liabilities:
(i) holders of Senior Indebtedness shall be entitled to
receive payment in full of all Obligations due in respect of such Senior
Indebtedness (including interest after the commencement of any such
proceeding at the rate specified in the applicable Senior Indebtedness)
before Holders of the Notes shall be entitled to receive any payment with
respect to the Notes (except that Holders may receive and retain Permitted
Subordinated Securities); and
(ii) until all Obligations with respect to Senior
Indebtedness (as provided in clause (i) above) are paid in full, any
distribution to which Holders would be entitled but for this Article 9
shall be made to holders of Senior Indebtedness (except that Holders of
Notes may receive Permitted Subordinated Securities), as their interests
may appear.
Section 9.03. Default on Senior Indebtedness.
(a) The Issuers may not make any payment or distribution to the
Trustee or any Holder in respect of Obligations with respect to the Notes
and may not acquire from the Trustee or any Holder any Notes for cash or
property (other than Permitted Subordinated Securities) until all principal
and other Obligations with respect to the Senior Indebtedness have been
paid in full if:
(i) a default in the payment of any principal, interest or
other Obligations with respect to Senior Indebtedness occurs and is
continuing beyond any applicable grace period in the agreement, indenture
or other document governing such Senior Indebtedness; or
(ii) a default, other than a default under clause (i), on
Senior Indebtedness occurs and is continuing that then permits holders of
the Senior Indebtedness to accelerate its maturity and the Trustee receives
a Payment Blockage Notice from a Person who may give it pursuant to Section
9.11 hereof. If the Trustee receives any such Payment Blockage Notice, no
subsequent Payment Blockage Notice shall be effective for purposes of this
Section unless and until (A) at least 360 days shall have elapsed since the
effectiveness of the immediately prior Payment Blockage Notice and (B) all
scheduled payments of principal, premium, if any, and interest on the Notes
that have come due have been paid in full in cash. No nonpayment default
that existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice unless such default shall have been
cured or waived for a period of not less than 90 days.
(b) The Issuers may and shall resume payments on and distributions
in respect of the Notes and the Company may acquire the Notes upon the
earlier of:
(i) in the case of a default referred to in clause (i) of
Section 9.03(a) hereof, the date upon which the default is cured or waived,
or
(ii) in the case of a default referred to in clause (ii) of
Section 9.03(a) hereof, upon the earlier of the date which such default is
cured or waived or 181 days after the Payment Blockage Notice was received
if the maturity of such Senior Indebtedness has not been accelerated,
if this Article 9 otherwise permits the payment, distribution or
acquisition at the time of such payment, distribution or acquisition.
Section 9.04. Acceleration of Securities.
If payment of the Notes is accelerated because of an Event of
Default, the Issuers shall promptly notify holders of Senior Indebtedness
of the acceleration.
Section 9.05. When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder receives any payment
of any Obligations with respect to the Notes at a time when the Trustee or
such Holder, as applicable, has actual knowledge that such payment is
prohibited by Section 9.03 hereof, such payment shall be held by the
Trustee or such Holder, in trust for the benefit of, and shall be paid
forthwith over and delivered, upon written request, to, the holders of
Senior Indebtedness as their interests may appear or their Representative
under the indenture or other agreement (if any) pursuant to which Senior
Indebtedness may have been issued or incurred, as their respective
interests may appear, for application to the payment of all Obligations
with respect to Senior Indebtedness remaining unpaid to the extent
necessary to pay such Obligations in full in accordance with their terms,
after giving effect to any concurrent payment or distribution to or for the
holders of Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform only such obligations on the part of the Trustee as
are specifically set forth in this Article 9, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be
read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness, and
shall not be liable to any such holders if the Trustee shall pay over or
distribute to or on behalf of Holders or the Issuers or any other Person
money or assets to which any holders of Senior Indebtedness shall be
entitled by virtue of this Article 9, except if such payment is made as a
result of the willful misconduct or negligence of the Trustee.
Section 9.06. Notice by Issuers.
The Issuers shall promptly notify the Trustee and the Paying Agent
in writing of any facts known to the Issuers that would cause a payment of
any Obligations with respect to the Notes to violate this Article 9, but
failure to give such notice shall not affect the subordination of the Notes
to the Senior Indebtedness as provided in this Article 9.
Section 9.07. Subrogation.
After all Senior Indebtedness is paid in full and until the Notes
are paid in full, Holders of Notes shall be subrogated (equally and ratably
with all other Indebtedness pari passu with the Notes) to the rights of
holders of Senior Indebtedness to receive distributions applicable to
Senior Indebtedness to the extent that distributions otherwise payable to
the Holders of Notes have been applied to the payment of Senior
Indebtedness. A distribution made under this Article 9 to holders of Senior
Indebtedness that otherwise would have been made to Holders of Notes is
not, as between the Issuers and Holders, a payment by the Issuers on the
Notes.
Section 9.08. Relative Rights.
This Article 9 defines the relative rights of Holders of Notes and
holders of Senior Indebtedness. Nothing in this Indenture shall:
(i) impair, as between the Issuers and Holders of Notes, the
obligation of the Issuers, which is absolute and unconditional, to pay
principal of and interest or premium, if any, on the Notes in accordance
with their terms;
(ii) affect the relative rights of Holders of Notes and
creditors of the Issuers other than their rights in relation to holders of
Senior Indebtedness; or
(iii) prevent the Trustee or any Holder of Notes from
exercising its available remedies upon a Default or Event of Default,
subject to the rights of holders and owners of Senior Indebtedness to
receive distributions and payments otherwise payable to Holders of Notes.
If the Issuers fails because of this Article 9 to pay principal of
or interest or premium, if any, on a Note on the due date, the failure is
still a Default or Event of Default.
Section 9.09. Subordination May Not Be Impaired by the Issuers.
No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired
by any act or failure to act by the Issuers or any Holder or by the failure
of the Issuers or any Holder to comply with this Indenture.
Section 9.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders
of Senior Indebtedness, the distribution may be made and the notice given
to their Representative.
Upon any payment or distribution of assets of the Issuers referred
to in this Article 9, the Trustee and the Holders of Notes shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other Person making any distribution to the
Trustee or to the Holders of Notes for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of the
Senior Indebtedness and other Indebtedness of the Issuers, the amount
thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto, to this Article 9.
Section 9.11. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 9 or any other
provision of this Indenture, the 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 Trustee, and the Trustee and the Paying
Agent may continue to make payments on the Notes, unless the Trustee shall
have received at its Corporate Trust Office at least five 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 Notes to violate this
Article 9. Only the Issuers or the Representative may give the notice.
Nothing in this Article 9 shall impair the claims of, or payments to, the
Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights.
Section 9.12. Authorization to Effect Subordination.
Each Holder of Notes, by the Holder's acceptance thereof,
authorizes and directs the Trustee on such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination
as provided in this Article 9, and appoints the Trustee to act as such
Holder's attorney-in-fact for any and all such purposes. If the Trustee
does not file a proper proof of claim or proof of debt in the form required
in any proceeding referred to in Section 6.09 hereof at least 30 days
before the expiration of the time to file such claim, the Representative is
hereby authorized to file an appropriate claim for and on behalf of the
Holders of the Notes.
Section 9.13. Amendments.
The provisions of this Article 9 shall not be amended or modified
without the written consent of the holders of all Senior Indebtedness.
ARTICLE 10.
COLLATERAL AND SECURITY
Section 10.01. Collateral Documents.
The due and punctual payment of the principal of and interest and
premium, if any, on the Notes when and as the same shall be due and
payable, whether on an interest payment date, at maturity, by acceleration,
repurchase, redemption or otherwise, and interest on the overdue principal
of and interest and premium (to the extent permitted by law), if any, on
the Notes and performance of all other obligations of the Issuers to the
Holders of Notes or the Trustee under this Indenture and the Notes,
according to the terms hereunder or thereunder, shall be secured as
provided in the Collateral Documents which the Issuers have entered into
simultaneously with the execution of this Indenture and which are listed on
Exhibit B hereto. Each Holder of Notes, by its acceptance thereof, consents
and agrees to the terms of the Collateral Documents (including, without
limitation, the provisions providing for foreclosure and release of Note
Collateral) as the same may be in effect or may be amended from time to
time in accordance with the terms of the Collateral Documents and
authorizes and directs the Collateral Agent to enter into the Collateral
Documents and to perform its obligations and exercise its rights thereunder
in accordance therewith. The Issuers shall deliver to the Trustee copies of
all documents delivered to the Collateral Agent pursuant to the Collateral
Documents, and shall do or cause to be done all such acts and things as may
be necessary or proper, or as may be required by the provisions of the
Collateral Documents or as may be reasonably requested in writing by the
Trustee, to assure and confirm to the Trustee and the Collateral Agent the
security interest in the Note Collateral contemplated hereby and by the
Collateral Documents or any part thereof, as from time to time constituted,
so as to render the same available for the security and benefit of this
Indenture and the Notes secured by the Collateral Documents, according to
the intent and purposes therein expressed. The Issuers shall take, or shall
cause their Subsidiaries that are party to one or more Collateral Documents
to take, upon request of the Trustee, any and all actions reasonably
required to cause the Collateral Documents to create and maintain, as
security for the Obligations of the Issuers hereunder, a valid and
enforceable perfected Lien in and on all the Note Collateral, in favor of
the Collateral Agent for the benefit of the Holders of Notes with the
priority required under the Collateral Documents, subject to Permitted
Liens.
Section 10.02. Recording and Opinions.
(a) The Issuers shall furnish to the Trustee simultaneously with
the execution and delivery of this Indenture an Opinion of Counsel either
(i) stating that in the opinion of such counsel all action has been taken
with respect to the recording, registering and filing of this Indenture,
financing statements or other instruments necessary to make effective the
Lien intended to be created by the Collateral Documents and reciting with
respect to the security interests in the Collateral, the details of such
action, or (ii) stating that, in the opinion of such counsel, no such
action is necessary to make such Lien effective.
(b) The Issuers shall furnish to the Trustee and the Collateral
Agent within 30 days following April 30 of each year beginning with April
30, 2003, an Opinion of Counsel, dated as of the date such opinion is
furnished, either (i) stating that, in the opinion of such counsel, all
action has been taken with respect to the recording, registering, filing,
re-recording, re-registering and refiling of all supplemental indentures,
financing statements, continuation statements or other instruments of
further assurance as is necessary to maintain the Lien of the Collateral
Documents and reciting with respect to the security interests in the
Collateral the details of such action or referring to prior Opinions of
Counsel in which such details are given, or (ii) stating that, in the
opinion of such counsel, no such action is necessary to maintain such Lien.
(c) The Issuers shall otherwise comply with the provisions of
TIA ss.314(b).
Section 10.03. Release of Note Collateral.
(a) Subject to subsections (b), (c) and (d) of this Section 10.03,
upon a sale of any Note Collateral and application of the net proceeds of
such sale to repay the Notes to the extent required in accordance with the
terms of Section 3.08, the Collateral Agent shall release the security
interests in favor of the Collateral Agent in the Note Collateral sold;
provided, however, that such net proceeds have been or shall be applied in
accordance with this Indenture and the Senior Note Indenture; provided
further that, prior to the application of such net proceeds, such net
proceeds shall be deposited in an interest bearing cash collateral account
held by the Paying Agent and pledged for the benefit of the Holders of
Notes and the holders of Senior Notes.
(b) No Note Collateral shall be released from the Lien and
security interest created by the Collateral Documents pursuant to the
provisions of the Collateral Documents unless there shall have been
delivered to the Collateral Agent the certificates required by this Section
10.03 and by Sections 10.04 and 10.05 hereof.
(c) At any time when a Default or Event of Default shall have
occurred and be continuing and the maturity of the Notes shall have been
accelerated (whether by declaration or otherwise) and the Trustee shall
have delivered a notice of acceleration to the Collateral Agent, no release
of Note Collateral pursuant to the provisions of the Collateral Documents
shall be effective as against the Holders of Notes or the Trustee except in
connection with foreclosure sales.
(d) The release of any Note Collateral from the terms of this
Indenture and the Collateral Documents or the release of, in whole or in
part, the liens created by the Collateral Documents, or the termination of
the Collateral Documents, shall not be deemed to impair the security under
this Indenture in contravention of the provisions hereof if and to the
extent the Note Collateral is released pursuant to the terms of the
Collateral Documents and this Indenture. The Trustee and each of the
Holders acknowledge that a release of any Note Collateral or a lien
strictly in accordance with the terms of the Collateral Documents will not
be deemed for any purpose to be an impairment of the lien on the Note
Collateral in contravention of the terms of this Indenture. To the extent
applicable, the Issuers shall cause TIA ss. 313(b), relating to reports,
and TIA ss. 314(d), relating to the release of property or securities from
the Lien and security interest of the Collateral Documents and this
Indenture and relating to the substitution therefor of any property or
securities to be subjected to the Lien and security interest of the
Collateral Documents and this Indenture, to be complied with. Any
certificate or opinion required by TIA ss. 314(d) may be made by an Officer
of the Issuers except in cases where TIA ss. 314(d) requires that such
certificate or opinion be made by an independent Person, which Person shall
be an independent engineer, appraiser, accountant or other expert selected
or approved by the Trustee and the Collateral Agent in the exercise of
reasonable care.
Section 10.04. Certificates of the Issuers.
The Issuers shall furnish to the Trustee and the Collateral Agent,
prior to each proposed release of Note Collateral pursuant to the
Collateral Documents (i) all documents required by TIA ss.314(d) and the
Collateral Documents and (ii) an Opinion of Counsel, which may be rendered
by internal counsel of the Issuers, to the effect that such accompanying
documents constitute all documents required by TIA ss.314(d). The Trustee
may, to the extent permitted by Sections 7.01 and 7.02 hereof, accept as
conclusive evidence of compliance with the foregoing provisions the
appropriate statements contained in such documents.
Section 10.05. Certificates of the Trustee.
In the event that the Issuers wish to release Note Collateral in
accordance with the Collateral Documents and have delivered the
certificates and documents required by the Collateral Documents and
Sections 10.03 and 10.04 hereof, once the Trustee has received all
documentation required by TIA ss. 314(d) in connection with such release
and the Opinion of Counsel delivered pursuant to Section 10.04(ii), the
Trustee shall deliver a certificate to the Collateral Agent confirming
receipt of such documentation and Opinion of Counsel; provided, however,
that so long as the Trustee is the Collateral Agent, the requirement that
the Trustee deliver a certificate to the Collateral Agent shall not be
applicable.
Section 10.06. Authorization of Actions to Be Taken by the Trustee Under
the Collateral Documents.
Subject to the provisions of Section 7.01 and 7.02 hereof and the
provisions of the Collateral Documents, the Trustee may in the case of an
ongoing Event of Default, in its sole discretion and without the consent of
the Holders of Notes subject to Section 6.05, direct, on behalf of the
Holders of Notes, the Collateral Agent to, take all actions it deems
necessary or appropriate in order to (a) enforce any of the terms of the
Collateral Documents and (b) collect and receive any and all amounts
payable in respect of the Obligations of the Issuers hereunder. The Trustee
shall have power to institute and maintain such suits and proceedings as it
may deem expedient to prevent any impairment of the Note Collateral by any
acts that may be unlawful or in violation of the Collateral Documents or
this Indenture, and such suits and proceedings as the Trustee may deem
expedient to preserve or protect its interests and the interests of the
Holders of Notes in the Note Collateral (including power to institute and
maintain suits or proceedings to restrain the enforcement of or compliance
with any legislative or other governmental enactment, rule or order that
may be unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders of
Notes or of the Trustee).
Section 10.07. Authorization of Receipt of Funds by the Trustee Under the
Collateral Documents.
The Trustee is authorized and required to receive any funds for
the benefit of the Holders of Notes distributed under the Collateral
Documents, and to make further distributions of such funds to the Holders
of Notes according to the provisions of this Indenture and the Collateral
Documents.
Section 10.08. Termination of Security Interest.
Upon the payment in full of all Obligations (other than contingent
reimbursement, indemnification and contribution Obligations) of the Issuers
under this Indenture and the Notes, the Trustee shall, at the request of
the Issuers, deliver a certificate to the Collateral Agent stating that
such Obligations have been paid in full, and instruct the Collateral Agent
to release the Liens pursuant to this Indenture and the Collateral
Documents to the extent such Liens secure the Obligations of the Issuers
under this Indenture.
ARTICLE 11.
SATISFACTION AND DISCHARGE
Section 11.01. Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further
effect as to all Notes issued hereunder, when:
(1) either:
(a) all Notes that have been authenticated (except lost,
stolen or destroyed Notes that have been replaced or paid
and Notes for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Issuers)
have been delivered to the Trustee for cancellation; or
(b) all Notes that have not been delivered to the Trustee for
cancellation have become due and payable by reason of the
making of a notice of redemption or otherwise or will
become due and payable within one year and the Issuers
have irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust solely for the
benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient without
consideration of any reinvestment of interest, to pay and
discharge the entire indebtedness on the Notes not
delivered to the Trustee for cancellation for principal,
premium, if any, and accrued interest to the date of
maturity or redemption;
(2) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a result of such
deposit and such deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which either of the
Issuers is a party or by which either of the Issuers is bound;
(3) the Issuers have paid or caused to be paid all sums payable by it
under this Indenture; and
(4) the Issuers have delivered irrevocable written instructions to the
Trustee under this Indenture to apply the deposited money toward the
payment of the Notes at maturity or the redemption date, as the case may
be.
In addition, the Issuers shall each deliver an Officers' Certificate and an
Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Indenture,
if money shall have been deposited with the Trustee pursuant to subclause
(b) of clause (1) of this Section, the provisions of Section 11.02 shall
survive.
Section 11.02. Application of Trust Money.
All money deposited with the Trustee pursuant to Section 11.01
shall be held in trust and applied by it, in accordance with the provisions
of the Notes and this Indenture, to the payment, either directly or through
any Paying Agent (including the Issuers acting as its own Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money
has been deposited with the Trustee; but such money need not be segregated
from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
Government Securities in accordance with Section 11.01 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Issuers' obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant
to Section 11.01; provided, however, that if the Issuers have made any
payment of principal of, premium, if any, or interest on any Notes because
of the reinstatement of its obligations, the Issuers shall be subrogated to
the rights of the Holders of such Notes to receive such payment from the
money or Government Securities held by the Trustee or Paying Agent.
ARTICLE 12.
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA ss.318(c), the imposed duties shall control.
Section 12.02. Notices.
Any notice or communication by the Issuers or the Trustee to the
others is duly given if in writing and delivered in person or mailed by
first class mail (registered or certified, return receipt requested),
telex, telecopier or overnight air courier guaranteeing next day delivery,
to the others' address:
If to the Issuers:
[Reorganized Comdisco, Inc.]
[New Leasing Co., Inc.]
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois)
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xx. Xxxxxx, Jr., Esq.
Attention: Xxxxxxx X. Xxxxxxx, Xx., Esq.
If to the Trustee:
Xxxxx Fargo Bank Minnesota, National Association
Corporate Trust
Sixth and Marquette
MAC X0000-000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Comdisco Administrator
with a copy (which shall not constitute notice to the Trustee) to:
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
The Issuers or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed (provided, however, the Trustee shall not be
deemed to have received such mail until it is received at its address set
forth above); when answered back, if telexed; when receipt acknowledged, if
telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown
on the register kept by the Registrar. Any notice or communication shall
also be so mailed to any Person described in TIA ss. 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder
or any defect in it shall not affect its sufficiency with respect to other
Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the
addressee receives it (except as set forth above).
If the Issuers mail a notice or communication to Holders, they
shall mail a copy to the Trustee and each Agent at the same time.
Section 12.03. Communication by Holders of Notes with Other Holders of
Notes.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Issuers, the Trustee, the Registrar and anyone else shall have the
protection of TIA ss. 312(c).
Section 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to
take any action under this Indenture, the Issuers shall furnish to the
Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth
in Section 12.05 hereof) stating that, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
Section 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA ss. 314(a)(4)) shall comply with the
provisions of TIA ss. 314(e) and shall include:
(c) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(d) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(e) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been satisfied; and
(f) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
Section 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules
and set reasonable requirements for its functions.
Section 12.07. No Personal Liability of Directors, Officers, Employees,
Stockholders and Agents.
No past, present or future director, officer, employee,
incorporator, stockholder or agent of the Issuers shall have any liability
for any obligations of the Issuers under the Notes, this Indenture or the
Collateral Documents or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part of
the consideration for issuance of the Notes.
Section 12.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
Section 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Issuers or their Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 12.10. Successors.
All agreements of the Issuers in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
Section 12.11. Severability.
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 12.12. Counterpart Originals.
The parties may sign any number of copies of this Indenture
(including by facsimile). Each signed copy shall be an original, but all of
them together represent the same agreement.
Section 12.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and
shall in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following pages]
SIGNATURES
Dated as of August ___, 2002
[REORGANIZED COMDISCO, INC.]
By:
----------------------------
Name:
Title:
Attest:
----------------------------
Name:
Title:
[NEW LEASING CO., INC.]
By:
----------------------------
Name:
Title:
Attest:
----------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
By:
----------------------------
Name:
Title:
Attest:
----------------------------
Authorized Signatory:
Date:
Schedule A-1
SCHEDULE A
SCHEDULED CASH RESERVE AMOUNT
Date Aggregate Cash Reserve Amount
---- -----------------------------
September 30, 2002 $57,000,000.00
December 31, 2002 $55,000,000.00
March 31, 2003 $53,000,000.00
June 30, 2003 $51,000,000.00
September 30, 2003 $49,000,000.00
December 31, 2003 $47,000,000.00
March 31, 2004 $45,000,000.00
June 30, 2004 and thereafter $43,000,000.00
EXHIBIT A
Exhibit A-1
[Face of Note]
-------------------------------------------------------------------------------
CUSIP ________
11% Subordinated Secured Notes due 2005
No. ___ $________
[REORGANIZED COMDISCO, INC.] and [NEW LEASING CO., INC.]
promise to pay to
----------------------------------------------------- or
registered assigns, the principal sum of [$500,000,000.00] on _________
___, 2005. Interest Payment Dates: September 30, December 31, March 31 and
June 30 Record Dates: September 15, December 15, March 15 and June 15
Dated: _______________, ____
[REORGANIZED COMDISCO, INC.] [NEW LEASING CO., 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
--------------------------------------------------------------------------------
[Back of Note]
11% Subordinated Secured Notes due 2005
[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. [Reorganized Comdisco, Inc.], a [Delaware]
corporation (the "Company") and [New Leasing Co., Inc.] a [Delaware]
corporation ("NLC" and, together with the Company, the "Issuers"), promise
to pay interest on the principal amount of this Note at the rate of 11.0%
per annum from ______ ___, 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"); provided,
however, that prior to the payment in full of all Senior Indebtedness,
amounts in respect of regularly scheduled interest on the Notes shall be
paid in kind by the issuance of Additional Notes equal in amount to the
interest payment due (rounded to the nearest whole dollar) on such Interest
Payment Date. Interest on the Notes will accrue from the most recent date
to which interest has been paid or, if no interest has been paid, from the
date of issuance; provided, however, that if there is no existing Default
in the payment of interest, and if this Note is authenticated between a
record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date shall
be ______ ___, 2002. The Issuers shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal and premium, if any, from time to time on demand at a
rate that is 1% per annum in excess of the rate then in effect; it shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to
the extent lawful. Interest will be computed on the basis of a 360-day year
of twelve 30-day months.
2. METHOD OF PAYMENT. The Issuers will pay interest on the Notes
(except defaulted interest) as set forth in Section 1 of this Note 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 (other than
interest paid in kind as provided above) 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 ___, 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 [$500,000,000]
in aggregate principal amount plus Additional Notes issued in payment of
interest on the Notes and any Additional Notes previously issued in payment
of interest on the Additional Notes. 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 5 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; provided, however, that any such optional redemption shall
be permitted only if no Senior Notes remain outstanding or if, concurrently
with the redemption of the Notes, the Issuers redeem all Senior Notes then
outstanding.
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; provided,
however, that any such mandatory redemption shall be permitted only if no
Senior Notes remain outstanding or if, concurrently with the redemption of
the Notes, the Issuers redeem all Senior Notes then outstanding.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change in Control, subject to the provisions of
Article 9 of the Indenture, 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
after the last date on which, in accordance with the Senior Note Indenture,
holders of Senior Notes are permitted to deliver written notice of exercise
of their right to require the Issuers to repurchase the Senior Notes
pursuant to the Senior Note Indenture upon 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. Prior
to complying with this Section 7, but in any event within 90 days following
a Change in Control, the Issuers shall either (1) repay all outstanding
Senior Indebtedness (other than the Senior Notes) and offer to repurchase
all outstanding Senior Notes in accordance with the terms of the Senior
Note Indenture or (2) obtain the requisite consents, if any, under all
agreements governing outstanding Senior Indebtedness to permit the
repurchase of the Notes required by this Section 7. 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 Senior Notes and 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 5 days but not more than 60 days before the redemption date
and notice of a mandatory redemption will be mailed at least 5 days but no
more than 30 days before the redemption date, in each case, to each Holder
whose Notes are to be redeemed at its registered address. Notes may be
redeemed in whole or in part, unless all of the Notes held by a Holder are
to be redeemed. On and after the redemption date interest ceases to accrue
on Notes or portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons. The Notes are denominated in amounts of $1,000 and
integral multiples thereof; provided, however, that the Notes may be in
denominations (rounded to the nearest whole dollar) of less than $1,000
(but in no event less than $1.00) to make redemptions; provided, further,
that the Additional Notes may be denominated in amounts (rounded to the
nearest whole dollar) less than $1,000 (but in no event less than $1.00) or
greater than $1,000. 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, or to provide for the issuance of Additional Notes in accordance with
the limitations set forth in the Indenture. Any amendment to, or waiver of,
Article 9 of the Indenture that adversely affects the rights of the holders
of the Notes shall require the consent of the holders of 100% in aggregate
principal amount of Notes then outstanding.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) default
for 30 days in the payment when due of interest on the Notes whether or not
prohibited by Article 9 of the Indenture; (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 whether or not prohibited by Article 9 of
the Indenture, (iii) failure by the Issuers or any of their Subsidiaries to
comply with Section 4.13, 5.01 or 5.02 of the Indenture; (iv) failure by
the Issuers or any of their Subsidiaries for 60 days after notice to the
Issuers by the Trustee or the Holders of at least 25% in principal amount
of the Notes then outstanding to comply with certain other agreements in
the Indenture or the Notes; (v) default under certain other agreements
relating to Indebtedness (other than any Indebtedness for which recourse is
limited to the property purchased) of the Issuers which default results in
the acceleration of such Indebtedness prior to its express maturity, if the
principal amount of any accelerated Indebtedness aggregates $25.0 million
or more and such Indebtedness is not paid or such acceleration is not
annulled within 10 days after written notice to the Issuers of such
acceleration; (vi) certain final judgments for the payment of money that
remain undischarged for a period of 60 days; or (vii) certain events of
bankruptcy or insolvency with respect to the Issuers or any of their
Subsidiaries. If any Event of Default occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the then outstanding
Notes may declare all the Notes to be due and payable. Notwithstanding the
foregoing, in the case of an Event of Default arising from certain events
of bankruptcy or insolvency, all outstanding Notes will become due and
payable without further action or notice. Holders may not enforce the
Indenture, the Notes or the Collateral Documents, except as provided in the
Indenture. Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Notes may direct the Trustee in
its exercise of any trust or power. The Trustee may withhold from Holders
of the Notes notice of any continuing Default or Event of Default (except a
Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in their interest.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes waive any existing Default or Event of Default and its
consequences under the Indenture except (i) a continuing Default or Event
of Default in the payment of interest on, or the principal of, or premium,
if any, on the Notes; or (ii) an Event of Default with respect to any
covenant or provision of the Indenture which cannot be waived without the
consent of the Holders of each Note affected thereby. The Issuers are
required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Issuers are required upon becoming
aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH ISSUERS. The Trustee, in its individual
or any other capacity, may make loans to, accept deposits from, and perform
services for the Issuers or their Affiliates, and may otherwise deal with
the Issuers or their Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, incorporator or stockholder, of the Issuers
shall have any liability for any obligations of the Issuers under the
Notes, the Indenture or the Collateral Documents or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each
Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the
Notes.
15. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A
(= Uniform Gifts to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Issuers has
caused CUSIP numbers to be printed on the Notes and the Trustee may use
CUSIP numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed
on the Notes or as contained in any notice of redemption and reliance may
be placed only on the other identification numbers placed thereon.
The Issuers will furnish to any Holder upon written request and
without charge a copy of the Indenture, the Registration Rights Agreement
and the Collateral Documents. Requests may be made to:
[Reorganized Comdisco, Inc.]
[New Leasing Co., 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").
19. SUBORDINATION. The Notes are subordinated to the Senior
Indebtedness, as defined in the Indenture. To the extent provided in the
Indenture, the Senior Indebtedness must be paid before the Notes may be
paid. The Issuers agree, and each Holder by accepting a Note (including any
Additional Note) agrees, that the Indebtedness evidenced by the Notes is
subordinated in right of payment, to the extent and in the manner provided
in the Indenture, to the prior payment in full of all Senior Indebtedness
of the Issuers (whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), and that the subordination is
for the benefit of the holders of Senior Indebtedness.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
_________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________________________
to transfer this Note on the books of the Issuers. The agent may substitute
another to act for him.
Date: _______________
Your Signature:
__________________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all of your Note(s) purchased by the
Issuers pursuant to Section 4.14 of the Indenture, state the amount you
elect to have purchased:
$_______________
If you want to elect to have only part of the Note(s) purchased by
the Issuers pursuant to Section 4.14 of the Indenture, state the amount you
elect to have purchased:
$_______________
Date: _______________
Your Signature:
__________________________
(Sign exactly as your name appears
on the face of this Note)
Tax Identification No.:
__________________
Signature Guarantee*: _________________________
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a
part of another Global Note or Definitive Note for an interest in this
Global Note, have been made:
Principal Amount
Amount of decrease Amount of increase in of this Global Note Signature of
in Principal Amount Principal Amount following such authorized officer
of of decrease of Trustee or Note
Date of Exchange this Global Note this Global Note (or increase) Custodian
---------------- ---------------- ---------------- ------------- ---------
* This schedule should be included only if the Note is issued in global form.
EXHIBIT B
Exhibit B-1
LIST OF COLLATERAL DOCUMENTS
Pledge Agreement encumbering all Note Collateral including:
UCC-1 Financing Statements
