Exhibit T3C
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COMDISCO HOLDING COMPANY, INC.
AND
COMDISCO, INC.
11% SUBORDINATED SECURED NOTES DUE 2005
_______________________
INDENTURE
Dated as of August 12, 2002
_______________________
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 12, 2002 between Comdisco Holding Company,
Inc., a Delaware corporation (the "Company"), Comdisco, Inc., a Delaware
corporation ("NLC" and, together with the Company, the "Issuers"), and 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 Comdisco Holding Company, Inc., and any and all
successors thereto.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors of the Company who:
(a) was a member of such Board of Directors on the date of this
Indenture or elected to or otherwise named to the Board of Directors pursuant
to the Plan; or
(b) was nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were members
of such Board at the time of such nomination or election.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 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 12, 2002.
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Excess Cash" means Unrestricted Cash minus the sum of (i) an amount
of cash or cash equivalents necessary to fund the Issuers' operating reserve
for the fiscal quarter immediately following the fiscal quarter as to which
any determination is being made, such operating reserves not to exceed the
aggregate Scheduled Cash Reserve Amount and (ii) the amount of Notes
optionally redeemed or to be optionally redeemed by the Issuers (unless the
Issuers subsequently fail to redeem such Notes on the applicable redemption
date) in accordance with Section 3.07 hereof following the last day of the
fiscal quarter and prior to any mandatory redemption date in accordance with
Section 3.08 hereof; provided, that amounts of Excess Cash determined by the
foregoing shall be rounded down to the nearest whole multiple of $1,000.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Person" means any Person who is a holder of more than 5%
of all classes of capital shares of the Issuers as of the Effective Date.
"Existing Indebtedness" means up to $610.0 million in aggregate
principal amount of Indebtedness of the Issuers and their Subsidiaries
(excluding Indebtedness under this Indenture and the 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 Comdisco Global Holding Company, Inc., and any
and all successors thereto.
"New Ventures" means Comdisco Ventures, Inc., and any and all
successors thereto.
"NLC" means Comdisco, Inc., and any and all successors thereto.
"Non-Recourse Debt" means Indebtedness incurred in connection with
discounted lease receivables programs substantially similar to the discounted
lease receivables programs utilized in the ordinary course of business of the
Issuers and/or their Subsidiaries prior to the date hereof as to which no
default with respect to such Indebtedness (including any rights that the
holders of the Indebtedness may have to take enforcement action against a
Subsidiary) would permit upon notice, lapse of time or both any holder of any
other Indebtedness (other than the Notes or the Senior Notes) of the Issuers
or any of their Subsidiaries to declare a default on such other Indebtedness
or cause the payment of the Indebtedness to be accelerated or payable prior
to its stated maturity.
"Note Collateral" means all property, now owned or hereafter
acquired, of the Issuers that, pursuant to the Collateral Documents, is
subject to a security interest in favor of the Collateral Agent.
"Notes" has the meaning assigned to it in the preamble to this
Indenture 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 COMDISCO HOLDING
COMPANY, INC. AND COMDISCO, INC."
(g) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased
or canceled in whole and not in part, each such Global Note shall be returned
to or retained and canceled by the Trustee in accordance with Section 2.11
hereof. At any time prior to such cancellation, if any beneficial interest in
a Global Note is exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note
or for Definitive Notes, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on
such Global Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note, such other Global
Note shall be increased accordingly and an endorsement shall be made on such
Global Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such increase.
(h) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Issuers shall execute and the Trustee shall authenticate Global
Notes and Definitive Notes upon the Issuers' order or at the
Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Trustee
or the Issuers may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to
Sections 2.10, 3.06, 3.09, 4.14 and 8.05 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Issuers, evidencing the
same debt, and entitled to the same benefits under this Indenture,
as the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(v) The Issuers shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 hereof and
ending at the close of business on the day of selection, (B) to
register the transfer of or to exchange any Note so selected for
redemption in whole or in part, except the unredeemed portion of any
Note being redeemed in part or (C) to register the transfer of or to
exchange a Note between a record date and the next succeeding
interest payment date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Issuers may
deem and treat the Person in whose name any Note is registered as
the absolute owner of such Note for the purpose of receiving payment
of principal of and interest on such Notes and for all other
purposes, and none of the Trustee, any Agent or the Issuers shall be
affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(viii) All certifications and certificates required to be
submitted to the Registrar pursuant to this Section 2.06 to effect a
registration of transfer or exchange may be submitted by facsimile.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Issuers
and the Trustee receives evidence to its satisfaction of the destruction,
loss or theft of any Note, the Issuers shall issue and the Trustee, upon
receipt of an Authentication Order, shall authenticate a replacement Note if
the Trustee's requirements are met. If required by the Trustee or the
Issuers, an indemnity bond must be supplied by the Holder that is sufficient
in the judgment of the Trustee and the Issuers to protect the Issuers, the
Trustee, any Agent and any authenticating agent from any loss that any of
them may suffer if a Note is replaced. The Issuers may charge for its
expenses in replacing a Note.
Every replacement Note is an additional obligation of the Issuers
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by
the Trustee in accordance with the provisions hereof, and those described in
this Section as not outstanding. Except as set forth in Section 2.09 hereof,
a Note does not cease to be outstanding because the Company or NLC, or an
Affiliate of the Company or NLC, holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Issuers, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver or consent, Notes owned by
the Issuers or any of its Affiliates or held or maintained in the Disputed
Claims Reserve, shall be considered as though not outstanding, except that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes that the Trustee
has actual knowledge are so owned shall be so disregarded.
Section 2.10. Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Issuers may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the Issuers
considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Issuers shall
prepare and the Trustee shall authenticate Definitive Notes in exchange for
temporary Notes. After the preparation of Definitive Notes, the temporary
Notes shall be exchangeable for Definitive Notes upon surrender of the
temporary Notes at the office or agency maintained by the Issuers for such
purpose pursuant to Section 4.02 hereof, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Notes, the Issuers
shall execute, and the Trustee shall authenticate and make available for
delivery, in exchange thereof the same aggregate principal amount of
Definitive Notes of authorized denominations.
Holders of temporary Notes shall be entitled to all of the benefits of
this Indenture.
Section 2.11. Cancellation.
The Issuers at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee and no one else shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
shall destroy canceled Notes in accordance with its normal practice and
applicable law. Certification of the destruction of all canceled Notes shall
be delivered to the Issuers. The Issuers may not issue new Notes to replace
Notes that it has redeemed or repurchased or paid or that have been delivered
to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Issuers default in a payment of interest on the Notes, the
Issuers shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who
are Holders on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01 hereof. The Issuers shall notify
the Trustee in writing of the amount of defaulted interest proposed to be
paid on each Note and the date of the proposed payment. The Issuers shall,
with the consent of the Trustee, fix or cause to be fixed each such special
record date and payment date, provided, however, that each such special
record date shall be at the earliest practicable date but in all events shall
not be less than five Business Days prior to the related payment date for
such defaulted interest. At least 15 days before the special record date, the
Issuers (or, upon the written request of the Issuers, the Trustee in the name
and at the expense of the Issuers) shall mail or cause to be mailed to
Holders a notice that states the special record date, the related payment
date and the amount of such interest to be paid.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Issuers elect to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 or are required to redeem Notes
pursuant to Section 3.08, the Issuers shall furnish to the Trustee, at least
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 give notice of the Change in
Control at a price (the "Change in Control Repurchase Price") equal to 101.0%
of the principal amount thereof, together with accrued and unpaid interest to
the Change in Control Repurchase Date. Not less than one Business Day prior
to the Change in Control Repurchase Date, the Issuers shall be required to
deposit with the Trustee or a Paying Agent an amount of money sufficient to
pay the Change in Control Repurchase Price of the Notes that are to be repaid
on the Change in Control Repurchase Date. On or before the 15th day after the
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
TIAss.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:
Comdisco Holding Company, Inc.
Comdisco, 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:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) 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;
(c) 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
(d) 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 12, 2002
COMDISCO HOLDING COMPANY, INC.
By:
------------------------------
Name:
Title:
Attest:
------------------------------
Name:
Title:
COMDISCO, INC.
By:
------------------------------
Name:
Title:
Attest:
------------------------------
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATIOn
By:
------------------------------
Name:
Title:
Attest:
------------------------------
Authorized Signatory:
Date:
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
[Face of Note]
-------------------------------------------------------------------------------
CUSIP ____________
11% Subordinated Secured Notes due 2005
No. ___ $____________
COMDISCO HOLDING COMPANY, INC. and COMDISCO, INC.
promise to pay to
------------------------------------------------------------
or registered assigns, the principal sum of [$650,000,000.00] 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: _______________, ____
COMDISCO HOLDING COMPANY, INC. COMDISCO, INC.
By:__________________________ By:_________________________
Name: Name:
Title: Title:
By:__________________________ By:_________________________
Name: Name:
Title: Title:
This is one of the Notes referred to in the within-mentioned Indenture:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATIOn
as Trustee
By: ___________________________
Authorized Signatory
-------------------------------------------------------------------------------
[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. Comdisco Holding Company, Inc., a Delaware corporation
(the "Company"), and Comdisco, 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 12, 2002 ("Indenture") among the
Issuers and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S.C. xx.xx. 77aaa-77bbbb). The Notes
are subject to all such terms, and Holders are referred to the Indenture and
such Act for a statement of such terms. To the extent any provision of this
Note conflicts with the express provisions of the Indenture, the provisions
of the Indenture shall govern and be controlling. The Notes are secured
obligations of the Issuers limited to $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:
Comdisco Holding Company, Inc.
Comdisco, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
18. ADDITIONAL RIGHTS OF HOLDERS OF GLOBAL NOTES AND DEFINITIVE
NOTES. In addition to the rights provided to Holders of Notes under the
Indenture, certain Holders of Global Notes and Definitive Notes shall have
all the rights set forth in the Registration Rights Agreement dated as of the
Effective Date, among the Issuers and the parties named on the signature
pages thereof (the "Registration Rights Agreement").
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
LIST OF COLLATERAL DOCUMENTS
Pledge Agreement encumbering all Note Collateral including:
UCC-1 Financing Statements
