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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
July 22, 1998
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Date of Report (Date of earliest event reported)
Comdisco, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 1-7725 36-2687938
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(State of incorporation) (Commission (IRS Employer
File No.) Identification No.)
6111 North River Road, Rosemont, Illinois 60018
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(Address of principal executive offices) (Zip code)
(847) 698-3000
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Registrant's telephone number, including area code
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Item 7. Financial Statements and Exhibits.
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(c) Exhibits
1.1 Underwriting Agreement dated July 22, 1998 by and among the
Company and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, BancAmerica Robertson Stephens, Bear, Stearns
& Co. Inc., Citicorp Securities, Inc. and Warburg Dillon Read LLC,
as Underwriters,
1.2 Terms Agreement dated July 22, 1998 by and among the Company and
the Underwriters.
4.1 Form of Specimen Global MOPPRS relating to the Company's 6.13%
MandatOry Par Put Remarketed Securities(SM) ("MOPPRS(SM)") Due
August 1, 2006.
4.2 Form of Specimen Definitive MOPPRS relating to the Company's 6.13%
MandatOry Par Put Remarketed SecuritiesSM ("MOPPRS(SM)") Due
August 1, 2006.
5. Opinion of Jeremiah M. Fitzgerald, Esq., Vice President and
General Counsel of the Registrant relating to the legality of the
Company's 6.13% MandatOry Par Put Remarketed SecuritiesSM
("MOPPRS(SM)") Due August 1, 2006.
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this Current Report on Form 8-K to be signed on its
behalf by the undersigned hereunto duly authorized.
COMDISCO, INC.
Date: July 24, 1998 By: /s/ Jeremiah M. Fitzgerald
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Jeremiah M. Fitzgerald, Vice President
and General Counsel
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Exhibit 1.1
COMDISCO, INC.
(a Delaware corporation)
Senior Debt Securities
UNDERWRITING AGREEMENT
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July 22, 1998
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
World Financial Center - North Tower
250 Vesey Street - 10th Floor
New York, New York 10281-1310
BANCAMERICA ROBERTSON STEPHENS
231 South LaSalle Street
Chicago, Illinois 60697
BEAR, STEARNS & CO. INC.
245 Park Avenue
New York, NY 10167
CITICORP SECURITIES, INC.
399 Park Avenue
New York, NY 10043
WARBURG DILLON READ LLC
677 Washington Boulevard
Stamford, CT 06901
Ladies and Gentlemen:
Comdisco, Inc. (the "Company") proposes to issue and sell from time to time
its Senior Debt Securities ("Debt Securities") in one or more offerings on the
terms to be determined at the time of sale. The Debt Securities will be issued
under an indenture dated as of December 1, 1995 (the "Indenture"), between the
Company and Yasuda Bank and Trust Company (U.S.A.), as Trustee. Each issue of
Debt Securities may vary, where applicable, as to aggregate principal amount,
maturity, interest rate or rates and timing of payments thereof, redemption
provisions and sinking fund requirements, if any, exercise provisions and any
other variable terms which the Indenture contemplates may be set forth in the
Debt Securities as issued from time to time. As used herein, "Securities" shall
mean the securities covered by the applicable Terms Agreement (as defined
below), and "you" or "your", unless the context otherwise requires, shall mean
such of the parties as are named in the applicable Terms Agreement.
Whenever the Company determines to make an offering of Securities to be
made through you, it will enter into an agreement (a "Terms Agreement")
providing for the sale of such Securities to, and the purchase and offering
thereof by, you and such other underwriters, if any, selected by you as have
authorized you to enter into such Terms Agreement on their behalf (such firms
constituting the "Underwriters" with respect to such Terms Agreement and the
securities specified therein; the term "Underwriters" shall include you and/or
those underwriters named therein, whether acting alone in the sale of Securities
or as members of an underwriting syndicate, and shall also include any
underwriter substituted as hereinafter provided in Section 10). It is understood
that the Company may from time to time authorize the issuance of additional
securities and that such securities may be distributed through the Underwriters
pursuant to the terms of this Agreement as though the issuance of such
securities was authorized as of the date hereof.
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The Terms Agreement, which shall be substantially in the form of Exhibit A
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hereto, may take the form of an exchange of any standard form of written
telecommunication between you and the Company. The Terms Agreement relating to
each offering of Securities shall specify such applicable information as is
indicated in Exhibit A hereto. Each offering of Securities will be governed by
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this Agreement, as supplemented by the applicable Terms Agreement, and this
Agreement and such Terms Agreement shall inure to the benefit of and be binding
upon each Underwriter participating in the offering of such Securities.
The Securities will be represented by either a global security registered
in the name of a nominee of The Depository Trust Company (the "Depositary"), as
Depositary (a "Book-Entry Note"), or a certificate issued in definitive form, as
determined and agreed to by the Company and the Underwriters and specified in
the applicable Terms Agreement. Beneficial interests in Book-Entry Notes will be
shown on, and transfers thereof will be effected only through, records
maintained by the Depositary and its participants. Book-Entry Notes will not be
issuable in definitive form, except under the circumstances described in the
applicable prospectus supplement relating to the Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-29813), such
registration statement relating to the Securities and the offering thereof from
time to time in accordance with Rule 415 under the Securities Act of 1933 (the
"1933 Act"), and has filed such amendments thereto as may have been required to
the date hereof. Such registration statement as amended has been declared
effective by the Commission, and the Indenture has been qualified under the
Trust Indenture Act of 1939 (the "1939 Act"). Such registration statement as
amended and the prospectus relating to the sale of Securities by the Company
constituting a part thereof, including all documents incorporated therein by
reference, as from time to time amended or supplemented pursuant to the
Securities Exchange Act of 1934 (the "1934 Act"), the 1933 Act or otherwise, are
collectively referred to herein as the "Registration Statement" and the
"Prospectus", respectively, except that if any revised prospectus shall be
provided to you by the Company for use in connection with the solicitation of
offers to purchase the Securities which differs from the Prospectus on file at
the Commission at the time the Registration Statement becomes effective (whether
or not such revised prospectus is required to be filed by the Company pursuant
to Rule 424(b) under the rules and regulations under the 1933 Act (the "1933 Act
Regulations"), the term "Prospectus" shall refer to such revised prospectus from
and after the time it is first provided to the Underwriters for such use);
provided, however, that a supplement of the Prospectus contemplated by Section
3(a) (a "Prospectus Supplement") shall be deemed to have supplemented the
Prospectus only with respect to the offering of Securities to which it relates.
For purposes of this Agreement, all references to the Registration Statement,
Prospectus, Prospectus Supplement, or any amendment or supplement to any of the
foregoing shall be deemed to include any copy filed with the Commission pursuant
to the Electronic Data Gathering, Analysis and Retrieval System ("EDGAR").
Section 1. Representations and Warranties. (a) The Company represents and
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warrants to each of you as of the date hereof, and to each Underwriter named in
a Terms Agreement as of the date thereof (in each case the "Representation
Date"), as follows:
(i) Due Incorporation and Qualification. The Company has been duly
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incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware with corporate power and authority
to own, lease and operate its properties and conduct its business as
described in the Prospectus; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which its ownership or lease of substantial properties or
the conduct of its business requires such qualification and in which the
failure to so qualify and be in good standing would materially adversely
affect the business or financial condition of the Company and its
subsidiaries considered as one enterprise.
(ii) Subsidiaries. No subsidiary of the Company is a "significant
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subsidiary" as defined in Rule 405 of Regulation C of the 1933 Act
Regulations.
(iii) Registration Statement and Prospectus. At the time the
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Registration Statement became effective, the Registration Statement
complied, and as of the applicable Representation Date will comply, in all
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material respects, with the requirements of the 1933 Act, the 1933 Act
Regulations and the 1939 Act. The Registration Statement, at the time it
became effective did not, and as of the applicable Representation Date will
not, contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, at the time the
Registration Statement became effective (unless the term "Prospectus"
refers to a prospectus which has been provided to the Underwriters by the
Company for use in connection with the offering of Securities which differs
from the Prospectus on file at the Commission at the time the Registration
Statement became effective, in which case at the time it is first provided
to the Underwriters for such use), did not, and as of the applicable
Representation Date will not, contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by the
Underwriters expressly for use in the Registration Statement or Prospectus
or that part of the Registration Statement which shall constitute the
Statement of Eligibility under the 1939 Act and the rules and regulations
of the Commission promulgated thereunder.
(iv) Incorporated Documents. The documents incorporated by
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reference in the Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the 1934 Act and the rules and regulations thereunder
(the "1934 Act Regulations"), and, when read together and with the other
information in the Prospectus, did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were or are made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to any statements and/or omissions from the
Prospectus made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter expressly for use in
the Prospectus as amended or supplemented.
(v) Accountants. To the best of the Company's knowledge, the
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accountants who certified the financial statements included or incorporated
by reference in the Prospectus are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(vi) Financial Statements. The consolidated financial statements
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of the Company and its subsidiaries included or incorporated by reference
in the Prospectus present fairly the financial position of the Company and
its subsidiaries as at the dates indicated and the results of their
operations for the periods specified; except as stated therein, said
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
period or periods involved.
(vii) Material Changes or Material Transactions. Since the
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respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated therein or
contemplated thereby, (a) there has been no material adverse change, or any
material development known to management which is likely to result in a
material adverse change, in the condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, and (b) there have been no transactions
considered material to the Company and its subsidiaries considered as one
enterprise entered into by the Company or any of its subsidiaries other
than those in the ordinary course of business.
(viii) No Defaults, Breaches, Liens; Regulatory Approvals. The
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Company is not in violation of its charter or in default in the performance
or observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease
or other instrument to which it is a party or by which it or any of its
properties may be bound; and the execution and delivery of this Agreement,
the Indenture and each applicable Terms Agreement, if any, and the
consummation of the transactions contemplated herein and therein have been
duly authorized by all necessary corporate action and
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will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company pursuant to any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which the Company is a party or by which it may be bound or to which any of
the property or assets of the Company is subject, nor will such action
result in any violation of the provisions of the charter or by-laws of the
Company or, to the best of its knowledge, any law, administrative
regulation or administrative or court order or decree; and no consent,
approval, authorization, order or decree of any court or governmental
agency or body is required for the consummation by the Company of the
transactions contemplated by this Agreement, except such as may be required
under the 1933 Act, the 1939 Act, the 1933 Act Regulations or state
securities or Blue Sky laws.
(ix) Legal Proceedings; Contracts. Except as may be set forth in
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the Prospectus, there is no action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, now pending,
with respect to which the Company has been served, or, to the knowledge of
the Company, threatened against or affecting, the Company or any of its
subsidiaries, which might, in the opinion of the Company, result in any
material adverse change in the condition, financial or otherwise, of the
Company and its subsidiaries considered as one enterprise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, or might reasonably be expected
to materially and adversely affect the properties or assets thereof or
might materially and adversely affect the consummation of this Agreement or
any Terms Agreement; and there are no material contracts or documents of
the Company or any of its subsidiaries which are required to be filed as
exhibits to the Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(x) Material Licenses and Other Authorizations. The Company owns
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or possesses or has obtained all governmental licenses, permits, consents,
orders, approvals and other authorizations necessary to lease or own, as
the case may be, and to operate its properties and to carry on its business
as presently conducted except where the failure to possess any such
licenses, permits, consents, orders, approvals or authorizations would not
have a material adverse effect on the financial condition, or the earnings
or business of the Company.
(xi) Trademarks, Service Marks and Trade Names. The Company owns
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or possesses, or can acquire on reasonable terms, adequate trademarks,
service marks and trade names necessary to conduct the business now
operated by it, and the Company has not received any notice of infringement
of or conflict with asserted rights of others with respect to any
trademarks, service marks or trade names which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
materially adversely affect the conduct of the business, operations,
financial condition or income of the Company and its subsidiaries
considered as one enterprise.
(xii) Authorization and Validity of the Securities. The Securities
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have been duly authorized for issuance and sale pursuant to this Agreement
and, when issued, authenticated and delivered pursuant to the provisions of
this Agreement and of the Indenture against payment of the consideration
therefor specified herein or in any Terms Agreement, the Securities will
constitute valid and legally binding obligations of the Company enforceable
in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other laws relating to or affecting
creditors' rights generally or by general equity principles, and will be
entitled to the benefits provided by the Indenture, which will be
substantially in the form heretofore delivered to the Underwriters; and the
Securities and the Indenture conform in all material respects to all
statements relating thereto contained in the Prospectus.
(xiii) Indenture. The Indenture has been duly authorized, executed
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and delivered by the Company and duly qualified under the 1939 Act, and,
assuming it has been duly executed and delivered by the Trustee,
constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers, reorganization,
moratorium or similar laws affecting
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enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xiv) Authorization of Agreement and Terms Agreement. This
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Agreement has been, and at each Representation Date the applicable Terms
Agreement will have been, duly authorized, executed and delivered by the
Company.
(b) Additional Certifications. Any certificate signed by any officer of
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the Company and delivered to you or to counsel for the Underwriters in
connection with an offering of Securities shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered thereby.
Section 2. Purchase and Sale. The several commitments of the Underwriters
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to purchase Securities pursuant to any Terms Agreements shall be deemed to have
been made on the basis of the representations and warranties herein contained
and shall be subject to the terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Securities to be
purchased by the Underwriters shall be made (i) in the case of Securities in
registered form, at the office of Brown & Wood LLP, One World Trade Center, 58th
Floor, New York, New York 10048, or (ii) in the case of Securities in bearer
form, at the office of Brown & Wood, a Multinational Partnership, Princes Court,
7 Princes Street, London EC2R 8AQ or at such other place as shall be agreed upon
by you and the Company, at 10:00 A.M., New York City time, on the third business
day (unless postponed in accordance with the provisions of Section 10) following
the date of the applicable Terms Agreement or such other time as shall be agreed
upon by you and the Company (each such time and date being referred to as a
"Closing Time"). Payment shall be made to the Company by certified or official
bank check or checks in New York Clearing House or similar next day funds
payable to the order of the Company against delivery to you for the respective
accounts of the Underwriters of the Securities to be purchased by them (unless
such Securities are issuable only in the form of a single global Security
registered in the name of a depository or a nominee of a depository, in which
event the Underwriters' interest in such global certificate shall be noted in a
manner satisfactory to the Underwriters and their counsel). Such Securities
shall be in such authorized denominations and registered in such names as you
may request in writing at least two business days prior to the applicable
Closing Time. Such Securities, which may be in temporary form, will be made
available for examination and packaging by you on or before the first business
day prior to Closing Time.
If authorized by the applicable Terms Agreement, the Underwriters named
therein may solicit offers to purchase Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts") substantially in the
form of Exhibit B hereto with such changes therein as the Company may approve.
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As compensation for arranging Delayed Delivery Contracts, the Company will pay
at Closing Time, for the accounts of the Underwriters, a fee relating to the
principal amount of Securities for which Delayed Delivery Contracts are made at
Closing Time as is specified in the applicable Terms Agreement. Any Delayed
Delivery Contracts are to be with institutional investors of the types set forth
in the Prospectus. At Closing Time the Company will enter into Delayed Delivery
Contracts (for not less than the minimum principal amount of Securities per
Delayed Delivery Contract specified in the applicable Terms Agreement) with all
purchasers proposed by the Underwriters and previously approved by the Company
as provided below, but not for an aggregate principal amount of Securities in
excess of that specified in the applicable Terms Agreement. The Underwriters
will not have any responsibility for the validity or performance of Delayed
Delivery Contracts.
You are to submit to the Company, at least three business days prior to
Closing Time, the names of any institutional investors with which it is proposed
that the Company will enter into Delayed Delivery Contracts and the principal
amount of Securities to be purchased by each of them, and the Company will
advise you, at least two business days prior to Closing Time, of the names of
the institutions with which the making of Delayed Delivery Contracts is approved
by the Company and the principal amount of Securities to be covered by each such
Delayed Delivery Contract.
The principal amount of Securities agreed to be purchased by the respective
Underwriters pursuant to the applicable Terms Agreement shall be reduced by the
principal amount of Securities covered by Delayed Delivery Contracts, as to each
Underwriter as set forth in a written notice delivered by you to the Company;
provided, however, that
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the total principal amount of Securities to be purchased by all Underwriters
shall be the total amount of Securities covered by the applicable Terms
Agreement, less the principal amount of Securities covered by Delayed Delivery
Contracts.
Section 3. Covenants of the Company. The Company covenants with each of
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you, and with each Underwriter participating in the applicable offering of
Securities, as follows:
(a) Prospectus Supplements. Immediately following the execution of each
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Terms Agreement, the Company will prepare a Prospectus Supplement setting forth
the principal amount of Securities covered thereby and their terms not otherwise
specified in the Indenture, the names of the Underwriters participating in the
offering and the principal amount of Securities which each severally has agreed
to purchase, the names of the Underwriters acting as co-managers in connection
with the offering, the price at which the Securities are to be purchased by the
Underwriters from the Company, the initial public offering price, the selling
concession and reallowance, if any, any delayed delivery arrangements, and such
other information as you and the Company deem appropriate in connection with the
offering of the Securities. The Company will promptly transmit copies of the
Prospectus Supplement to the Commission for filing pursuant to Rule 424 of the
1933 Act Regulations and will furnish to the Underwriters named therein as many
copies of the Prospectus and such Prospectus Supplement as you shall reasonably
request.
(b) Notice of Certain Events. The Company will notify each of you
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immediately and confirm the notice in writing, (i) of the effectiveness of any
amendment to the Registration Statement (including any post-effective
amendment), (ii) of the mailing or the delivery to the Commission for filing of
any supplement to the Prospectus or any document to be filed pursuant to the
1934 Act which will be incorporated by reference in the Prospectus, (iii) of the
receipt of any comments from the Commission with respect to the Registration
Statement or Prospectus, (iv) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the Prospectus
or for additional information, (v) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) Notice of Certain Proposed Filings. The Company will give you notice
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of its intention to file any additional Registration Statement with respect to
the registration of additional Securities, any amendment to the Registration
Statement (including any post-effective amendment) or any amendment or
supplement to the Prospectus (including any revised Prospectus which the Company
proposes for use by you in connection with the offering of the Securities which
differs from the prospectus on file at the Commission at the time the
Registration Statement becomes effective, whether or not such revised prospectus
is required to be filed pursuant to Rule 424(b) of the 1933 Act Regulations),
whether by the filing of documents pursuant to the 1934 Act, the 1933 Act or
otherwise, and will furnish you with copies of any such amendment or supplement
or other documents proposed to be filed or used a reasonable time in advance of
such filing or use, and will not file any such amendment or supplement or other
documents in a form to which you or your counsel shall reasonably object.
(d) Copies of Registration Statement, Prospectus. The Company will
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deliver to you as many signed and conformed copies of the Registration Statement
(as originally filed) and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated by
reference in the Prospectus) as you may reasonably request. The Company will
furnish to you as many copies of the Prospectus (as amended or supplemented) as
you shall reasonably request so long as any Underwriter is required to deliver a
Prospectus in connection with sales or solicitations of offers to purchase the
Securities. Copies of the Registration Statement, each amendment thereto, the
Prospectus, any Prospectus Supplement and any amendments or supplements thereto
furnished to the Underwriter will be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T of the 1933 Act Regulations.
(e) Revisions of Prospectus - Material Changes. If at any time when the
------------------------------------------
Prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities any event shall occur or condition exist as a result of which
it is necessary, in the reasonable opinion of the Underwriters' counsel or
counsel for the Company, to further amend or
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supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the reasonable opinion of either such counsel, at any
such time to amend or supplement the Registration Statement or the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, immediate notice shall be given, and confirmed in writing, to each
of the Underwriters to cease sales of any Securities, and the Company will
promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the 1934 Act, the 1933 Act or otherwise,
as may be necessary to correct such untrue statement or omission or to make the
Registration Statement comply with such requirements; provided that, the cost of
furnishing such an amendment or supplement (other than an amendment or
supplement filed pursuant to the 1934 Act) after 6 months following the Closing
shall be paid by the Underwriters if all of the Securities have not been
previously offered to the public.
(f) Section 11(a) Earnings Statements. The Company will make generally
---------------------------------
available to its security holders as soon as practicable, but not later than 90
days after the close of the period covered thereby, earnings statements (in form
complying with the provisions of Rule 158 under the 1933 Act) covering twelve-
month periods beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in such
Rule 158) of the Registration Statement with respect to each sale of Securities.
(g) Copies of Financial Reports. So long as this Agreement is in effect,
---------------------------
the Company will furnish to the Underwriters, at the earliest time the Company
makes the same available to others, copies of its annual reports and other
financial reports furnished or made available to the public generally.
(h) Blue Sky Qualifications. The Company will endeavor, in cooperation
-----------------------
with the Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of the United
States as the Underwriters may reasonably designate, and will maintain such
qualifications in effect for as long as may be required for the distribution of
the Securities; the Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the Securities have been
qualified as above provided; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject or expend amounts in excess of $1,000 for
filing fees in any one jurisdiction.
(i) 1934 Act Filings. The Company, during the period when the Prospectus
----------------
is required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the 1934 Act.
(j) Stand-Off Agreement. Between the date of any Terms Agreement and the
-------------------
Closing Time with respect to such Terms Agreement, the Company will not, without
the prior consent of the Underwriter(s), offer or sell, or enter into any
agreement to sell, any debt securities of the Company (other than the Securities
which are to be sold pursuant to such Terms Agreement and commercial paper, tax-
exempt securities or other securities in the ordinary course of its business,
including, but not limited to, securities issued by the Company in connection
with the non-recourse financing of lease receivables), except as may otherwise
be provided in any such Terms Agreement.
Section 4. Conditions of Underwriters' Obligations. The obligations of
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the Underwriters to purchase Securities pursuant to any Terms Agreement are
subject to the accuracy of the representations and warranties on the part of the
Company herein contained, to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance by the Company of all of its covenants and other obligations
hereunder and to the following further conditions:
(a) At the applicable Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act, no order suspending trading or striking or withdrawing any Securities
to be listed on a national securities exchange from listing and registration
under the 1934 Act shall be in effect,
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and no proceedings under the 1933 Act or 1934 Act therefor shall have been
initiated or threatened by the Commission, or, with respect to the filing of any
Form 8-A, by any national securities exchange, (ii) the rating assigned by any
nationally recognized securities rating agency indicated in the applicable Terms
Agreement to any debt securities or other obligations of the Company as of the
date of the applicable Terms Agreement shall not have been lowered since the
execution of such Terms Agreement nor shall any such rating agency have publicly
announced that it has placed any obligations of the Company on what is commonly
termed a "watch list" for possible downgrading, (iii) any Securities for which
application has been made to list on a national securities exchange shall have
been approved for listing, subject to official notice of issuance and (iv) there
shall not have come to your attention any facts that would cause you to believe
that the Prospectus, together with the applicable Prospectus Supplement, at the
time it was required to be delivered to a purchaser of the Securities, contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances existing at such time, not misleading.
(b) At the applicable Closing Time you shall have received:
(1) The favorable opinion, dated as of the applicable Closing Time,
of Philip A. Hewes, Esq., Senior Vice President/Legal, of the Company, or
Jeremiah M. Fitzgerald, Esq., Vice President and General Counsel of the
Company, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and conduct its business as described
in the Prospectus.
(iii) To the best of such counsel's knowledge, the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which its ownership or lease of
substantial properties or the conduct of its business requires such
qualifications and in which failure of the Company to be so qualified
and in good standing would have a material adverse effect upon the
Company and its subsidiaries considered as a single enterprise.
(iv) This Agreement and the applicable Terms Agreement have
been duly authorized, executed and delivered by the Company.
(v) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the Indenture has been duly
authorized, executed and delivered by the Trustee) constitutes a valid
and binding agreement of the Company, enforceable in accordance with
its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, or other laws relating to or affecting creditors' rights
generally or by general equity principles.
(vi) The Securities are in the form contemplated by the
Indenture, have been duly authorized by all necessary corporate action
and, when executed and authenticated as specified in the Indenture and
delivered against payment of the consideration therefor in accordance
with this Agreement, as supplemented by the applicable Terms
Agreement, if any, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, or other
laws relating to or affecting creditors' rights generally, or by
general equity principles, and each holder of Securities will be
entitled to the benefits of the Indenture.
(vii) The statements in the Prospectus under the caption
"Description of Debt Securities" and the Prospectus Supplement under
the caption "Description of the Notes" (or other comparable caption
which identifies a particular series of Debt Securities), insofar as
they purport to summarize
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certain provisions of documents specifically referred to therein, are
accurate summaries of such provisions.
(viii) The Indenture is qualified under the 1939 Act.
(ix) The Registration Statement is effective under the 1933
Act, and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(x) At the time the Registration Statement became effective,
the Registration Statement (other than the financial statements and
other financial or statistical data included or incorporated by
reference therein, as to which no opinion need be rendered) complied
as to form in all material respects with the requirements of the 1933
Act, the 1939 Act and the regulations under each of those Acts.
(xi) To the best of such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened which are
required to be disclosed in the Registration Statement, other than
those disclosed therein, and all pending legal or governmental
proceedings which the Company or any subsidiary is a party or of which
any of their property is the subject which are not described in the
Prospectus, including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material.
(xii) To the best of such counsel's knowledge and information,
there are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in
the Registration Statement or to be filed as exhibits thereto other
than those described or referred to therein or filed or incorporated
by reference as exhibits thereto, the descriptions thereof or
references thereto are correct, and, except for certain minor matters
which, either individually or in the aggregate, will not or do not
have a material adverse effect on the Company or its business, no
default exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any
contract, indenture, loan agreement, note, lease or other instrument
so described, referred to, filed or incorporated by reference.
(xiii) No consent, approval, authorization, or order of any court
or governmental authority or agency is required in connection with the
sale of the Securities, except such as may be required under the 1933
Act, the 1939 Act, the 1933 Act Regulations or state securities laws;
and, to the best of such counsel's knowledge and information, the
execution and delivery of this Agreement, the applicable Terms
Agreement and the Indenture and the consummation of the transactions
contemplated herein and therein will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to any contract, indenture, mortgage, loan agreement,
note, lease or other instrument known to such counsel and to which the
Company is a party or by which it may be bound or to which any of the
property or assets of the Company is subject, or any law,
administrative regulation or administrative or court decree known to
such counsel to be applicable to the Company of any court or
governmental agency, authority or body or any arbitrator having
jurisdiction over the Company, except that counsel need not express an
opinion as to any state securities laws or regulations; nor will such
action result in any violation of the provisions of the charter or by-
laws of the Company.
(xiv) Each document filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus (except for the financial
statements and other financial or statistical data included therein or
omitted therefrom, as to which counsel need not comment), appeared on
its face to comply, when filed, as to form in all material respects
with the 1934 Act and the 1934 Act Regulations.
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In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of the State of New York, to the extent deemed
proper and specified in such opinion, upon the opinion of Brown & Wood LLP,
counsel for the Underwriters, delivered pursuant to subsection (b)(2) hereof and
(B) as to matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials.
(2) Opinion of Counsel to the Underwriters. The opinion of Brown & Wood
--------------------------------------
LLP, counsel to the Underwriters, dated as of such Closing Time, covering the
matters referred to in subparagraph (1) under the subheadings (i) and (iv) to
(x), inclusive.
(3) In giving their opinions required by subsection (b)(1) and (b)(2) of
this Section, Mr. Hewes or Mr. Fitzgerald and Brown & Wood LLP shall each
additionally state that nothing has come to their attention that would lead them
to believe that the Registration Statement (except for the financial statements
and other financial or statistical data included therein or omitted therefrom,
as to which counsel need not comment), at the time it became effective, or if an
amendment to the Registration Statement or an Annual Report on Form 10-K has
been filed by the Company with the Commission subsequent to the effectiveness of
the Registration Statement, at the time of the most recent such amendment or
filing, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as amended or supplemented at the
Closing Date or the date of such opinion, as the case may be, contains an untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) Officer's Certificate. At the Closing Time there shall not have been,
---------------------
since the respective dates as of which information is given in the Registration
Statement and the Prospectus or since the date of the Terms Agreement, any
material adverse change in the condition, financial or otherwise, of the Company
and its subsidiaries considered as one enterprise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business; and
the Underwriters shall have received a certificate of the President and the
Chief Financial Officer of the Company at the Closing Time, dated as of the
Closing Time to the effect that (i) there has been no such material adverse
change, (ii) the other representations and warranties of the Company contained
in Section 1 are true and correct with the same force and effect as though
expressly made at and as of the date of such certificate, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the date of such certificate, and (iv) no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated or threatened by
the Commission.
(d) Comfort Letter. The Underwriters shall have received a letter from
--------------
KPMG Peat Marwick LLP, dated as of the date hereof or the date of the most
recent report filed with the Commission containing financial statements or
unaudited consolidated information and incorporated by reference in the
Registration Statement, if the date of such report is later than the date
hereof, and delivered at such time, in form and substance satisfactory to the
Underwriters to the effect that:
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the
1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements and
supporting schedule(s) audited by them and incorporated by reference in the
Registration Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations with respect to registration statements on Form S-3 and the
1934 Act and the 1934 Act Regulations.
(iii) Based upon limited procedures set forth in detail in such
letter (which shall include, without limitation, the procedures specified
by the American Institute of Certified Public Accountants for a review of
interim financial information as described in SAS No. 71, Interim Financial
Information, with respect to the
10
<PAGE>
unaudited consolidated financial statements of the Company and its
subsidiaries included in the Registration Statement), nothing has come to
their attention which causes them to believe that:
(A) any material modifications should be made to the unaudited
consolidated financial statements included in the Registration
Statement for them to be in conformity with generally accepted
accounting principles; or
(B) the unaudited consolidated financial statements included
in the Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the related published rules and regulations; or
(C) at a specified date not more than five days prior to the
date of such letter, there was any change in the capital stock or any
increase in the long term debt of the Company and its subsidiaries
consolidated or any decrease in consolidated net assets, in each case
as compared with amounts shown in the most recent consolidated balance
sheet incorporated by reference in the Registration Statement, except
in each case for changes, increases or decreases which the
Registration Statement and the Prospectus disclose have occurred or
may occur; or
(D) for the period from the date of the most recent interim
period financial statements incorporated by reference in the
Registration Statement to a specified date not more than five days
prior to the date of such letter, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated revenues or net earnings, except in each case for
decreases which the Registration Statement and the Prospectus disclose
have occurred or may occur.
(iv) In addition to the examination referred to in their report
incorporated by reference in the Registration Statement and the Prospectus,
they have carried out certain other specified procedures, not constituting
an audit, with respect to certain amounts, percentages and financial
information which are included in the Registration Statement and the
Prospectus and which are specified by the Underwriters and have found such
amounts, percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company and its
subsidiaries identified in such letter.
(e) Bring-down Comfort Letter. You shall have received from KPMG Peat
-------------------------
Marwick LLP, or other independent certified public accountants acceptable to you
a letter, dated as of the applicable Closing Time, reconfirming or updating the
letter required by subsection (d) of this Section to the extent that may be
reasonably requested.
(f) Other Documents. At the date hereof and at the Closing Time, counsel
---------------
to the Underwriters shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Securities as herein contemplated and
related proceedings, or in order to evidence the accuracy and completeness of
any of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of Securities as herein contemplated shall
be satisfactory in form and substance to the Underwriters and to the
Underwriters' counsel.
(g) Further Condition. The obligations of each of the Underwriters to
-----------------
purchase Securities pursuant to any Terms Agreement will be subject to the
further condition that there shall not have come to the Underwriters' attention
any facts that would cause them to believe that the Prospectus, at the time it
was required to be delivered to a purchaser of Securities, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances existing
at such time, not misleading.
If any condition specified in this Section shall not have been fulfilled,
this Agreement and any Terms Agreement may be terminated by the Underwriters by
notice to the Company at any time at or prior to the Closing Time, and such
termination shall be without liability of any party to any other party, except
as provided in Section 5.
11
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Section 5. Payment of Expenses. The Company will pay all expenses incident
-------------------
to the performance of its obligations under this Agreement, including (i) the
preparation and filing of the Registration Statement and all amendments thereto
and the Prospectus and any amendments or supplements thereto, (ii) the
preparation, issuance and delivery of the Securities to the Underwriters, (iii)
the fees and disbursements of the Company's accountants and of the Trustee and
its counsel, (iv) the qualification of the Securities under the securities laws
in accordance with the provisions of Section 3(h), including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky Surveys and any
Legal Investment Survey, (v) the printing and delivery to the Underwriters in
quantities as hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or supplements
thereto, and the delivery by the Underwriters of the Prospectus and any
amendments or supplements thereto in connection with solicitations or
confirmations of sales of the Securities, (vi) the printing and delivery to the
Underwriters of copies of the Indenture and any Blue Sky Survey and Legal
Investment Survey, (vii) any fees charged by rating agencies for the rating of
the Securities, (viii) the fees and expenses, if any, incurred in connection
with the listing of the Securities on the New York Stock Exchange or any other
national exchange, (ix) the fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc., and (x)
any advertising and other out-of-pocket expenses incurred with the approval of
the Company.
If a Terms Agreement is terminated by you in accordance with the provisions
of Section 4 or Section 9(i), the Company shall reimburse the Underwriters named
in such Terms Agreement for all of their out-of-pocket expenses, including the
reasonable fees and disbursements of counsel for the Underwriters.
Section 6. Indemnification. (a) The Company agrees to indemnify and hold
---------------
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the registration
statement as originally filed (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (if used within the period set
forth in Section 3(e) hereof and as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or the omission
or alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage,
liability or expense arises out of or is based upon any untrue statement or
omission or such alleged untrue statement or omission (A) which has been
made therein or omitted therefrom in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through you
expressly for use in the registration statement as originally filed (or any
amendment thereto) or the Prospectus as originally filed (or any amendment
or supplement thereto) or (B) which has been made or omitted from the
Statement of Eligibility of the Trustee on Form T-1, other than any such
untrue statement or omission or alleged untrue statement or omission made
therein or omitted therefrom in reliance upon information furnished in
writing to the Trustee by the Company for use therein; the foregoing
indemnification with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Securities, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if such delivery is required by law, at or
prior to the written confirmation of the sale of such Securities to such
person and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage or liability;
12
<PAGE>
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by you), reasonably incurred
in investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above.
Insofar as this indemnity may permit indemnification for liabilities under
the 1933 Act of any person who is a partner of an Underwriter or who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and who, at the date of this Agreement, is a director, officer or
controlling person of the Company, such indemnity agreement is subject to the
undertaking of the Company in the Registration Statement.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the registration
statement as originally filed (or any amendment thereto), and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense to the same extent described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in or
omitted from the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through you expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto).
(c) The Company agrees to indemnify and hold harmless each Underwriter
against any documentary stamp or similar issue tax and any related interest or
penalties on the issue or sale of the Securities to the Underwriters which are
due in the United States of America, the United Kingdom or any other
jurisdiction.
(d) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of written notice of the commencement of any action such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof, and in the event that such indemnified
party shall not so notify the indemnifying party within 30 days following
receipt of any such notice by such indemnified party, the indemnifying party
shall have no further liability under such subdivision to such indemnified party
unless such indemnifying party shall have received other notice addressed and
delivered in the manner provided in Section 11 hereof of the commencement of
such action; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. Any indemnified party or any such
controlling person shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
employment of such counsel has been specifically authorized in writing by the
indemnifying party, (ii) the indemnifying party has failed to assume the defense
and employ counsel or (iii) the named parties to any such action (including any
impleaded parties) include both such indemnified party and the indemnifying
party and such indemnified party has been advised by such counsel that there may
be one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party, it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related action in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition to
local counsel) for all such indemnified parties, which firm shall be designated
in writing by you).
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Section 7. Contribution. If the indemnification provided for in Section 6
------------
is unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then the Company and the contributing Underwriter
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the contributing Underwriter on the
other from the offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the
indemnification provided for in Section 6 is unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, if the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under Section 6(d) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the contributing Underwriter on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the contributing Underwriter on the other
shall be deemed to be in the same proportion as the total net proceeds from the
sale of Securities (before deducting expenses) received by the Company bear to
the total commissions or discounts received by the contributing Underwriter in
respect thereof. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading relates to information supplied by the Company on the one hand or by
the contributing Underwriter on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the contributing Underwriter agree that
it would not be just and equitable if contribution pursuant to this Section 7
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 7. The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this Section 7 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Securities
purchased by or through such Underwriter were sold exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who is
not guilty of such fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company. Any amounts to be paid a party pursuant to this Section 7 for losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this Section 7 shall be paid as incurred; provided, however, that amounts so
paid shall be returned to the paying party in the event that it is ultimately
determined that the party that received payment was not entitled to such
payment.
Section 8. Indemnities, Contributions, Representations, Warranties and
-----------------------------------------------------------
Agreements to Survive Delivery. The indemnity and contribution agreements
- ------------- ----------------
contained in Sections 6 and 7 and all representations, warranties and agreements
contained in this Agreement, or contained in certificates of officers of the
Company submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any termination of this Agreement, or any investigation
made by or on behalf of any Underwriter or controlling person, or by or on
behalf of the Company, and shall survive the delivery of any Securities to the
Underwriters.
Section 9. Termination. Prior to the execution of any Terms Agreement
-----------
hereunder, this Agreement may be terminated for any reason at any time by either
the Company or a majority of the Underwriters upon the giving of three days'
written notice of such termination to the other parties hereto. Each
Underwriter who may be named in any Terms Agreement may also terminate such
Terms Agreement, immediately upon notice to the Company, at any time at or prior
14
<PAGE>
to the applicable Closing Time (i) if there has been, since the date of such
Terms Agreement or since the respective dates as of which information is given
in the Registration Statement, any material adverse change in the condition,
financial or otherwise, of the Company and its subsidiaries considered as one
enterprise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
outbreak or material escalation of hostilities or other calamity or crisis the
effect of which on the financial markets of the United States is such as to make
it, in the judgment of such of you as are named in such Terms Agreement,
impracticable to market the Securities or enforce contracts for the sale of the
Securities, or (iii) if trading in the Common Stock of the Company has been
suspended by the Commission or a national securities exchange, or if trading
generally on either the American Stock Exchange or the New York Stock Exchange
has been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
exchanges or by order of the Commission or any other governmental authority, if
a banking moratorium in the United States generally or in the City or the State
of New York has been declared by either Federal or New York authorities or if a
banking moratorium has been declared by the relevant authorities in the country
or countries of origin of any foreign currency or currencies underlying the
Securities, or (iv) if the rating assigned by any nationally recognized
securities rating agency indicated in the applicable Terms Agreement to any debt
securities or other obligations of the Company as of the date of any applicable
Terms Agreement shall have been lowered since that date or if any such rating
agency shall have publicly announced that it has placed any debt securities or
other obligations of the Company on what is commonly termed a "watch list" for
possible downgrading. In the event of any such termination, the covenant set
forth in Section 3(f), the provisions of Section 5, the indemnity agreement set
forth in Section 6, the contribution provisions set forth in Section 7, and the
provisions of Sections 8 and 13 shall remain in effect.
Section 10. Default. If one or more of the Underwriters participating in
-------
an offering of Securities shall fail at the applicable Closing Time to purchase
the Securities which it or they are obligated to purchase hereunder and under
the applicable Terms Agreement (the "Defaulted Securities"), then such of you as
are named therein shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, during such 24 hours you shall not have completed such
arrangements for the purchase of all of the Defaulted Securities, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Securities to be purchased
pursuant to such Terms Agreement, the non-defaulting Underwriters named in such
Terms Agreement shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all such non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds 10%
of the aggregate principal amount of the Securities to be purchased pursuant to
such Terms Agreement, the applicable Terms Agreement shall terminate, without
any liability on the part of any non-defaulting Underwriter or the Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement and the applicable Terms Agreement.
In the event of a default by any Underwriter or Underwriters as set forth
in this Section which does not result in a termination of this Agreement, either
you or the Company shall have the right to postpone the applicable Closing Time
for a period not exceeding seven days in order that any required changes in the
Registration Statement or Prospectus or in any other documents or arrangements
may be effected.
Section 11. Covenants of the Underwriters. Each Underwriter severally
-----------------------------
agrees with the Company that:
(a) It will not offer, sell, resell or deliver, directly or indirectly in
connection with the original issuance of the Securities, in the United States
(as hereinafter defined) or to any United States person (as hereinafter
defined), other than a financial institution (as hereinafter defined), any
Securities in bearer form (whether temporary or definitive). As
15
<PAGE>
used herein, "financial institution" means a branch located outside the United
States of a qualified financial institution as defined in Section 1.165-
12(c)(1)(v) of the Treasury Department Regulations that agrees to comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code of 1986 and the regulations thereunder.
(b) It will deliver to each purchaser from it of Securities in bearer form
(whether temporary or definitive) acquired by it during the original issuance of
the Securities a written confirmation stating substantially the following:
"You represent that you are not a United States person, or, if you are
a United States person, that you are a financial institution that will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986 and the regulations thereunder. Furthermore,
if you are a dealer, you agree that you will deliver a confirmation
containing this entire paragraph to purchasers of such Securities from you.
As used herein, "United States person" means a citizen or resident of the
United States of America, its territories, its possessions or any area
subject to its jurisdiction ("United States"), or a corporation,
partnership or other entity created or organized in or under the laws of
the United States or any political subdivision thereof, or an estate or
trust the income of which is subject to United States Federal income
taxation regardless of its source."
Section 12. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you as follows: Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, World Financial Center - North
Tower, 250 Vesey Street, 10th Floor, New York, New York 10281-1310; attention of
Penny Skelos; BancAmerica Robertson Stephens, 231 South LaSalle Street, Chicago,
Illinois 60697, attention of Andrew McCarthy; Bear, Stearns & Co. Inc., 245 Park
Avenue, New York, New York 10167, attention of Peter Milkaupt; Citicorp
Securities, Inc., 399 Park Avenue, New York, New York 10043, attention of Donald
Donahue; and Warburg Dillon Read LLC, 677 Washington Boulevard, Stamford, CT
06901, attention of Bruce Widas; or in respect of any Terms Agreement, to such
other person and place as may be specified therein; notices to the Company shall
be directed to it at Comdisco, Inc., 6111 North River Road, Rosemont, Illinois
60018, attention of Edward A. Pacewicz, Vice president and Treasurer, with a
copy to the General Counsel at the same address.
Section 13. Parties. This Agreement shall inure to the benefit of and be
-------
binding upon you and the Company, and any Terms Agreement shall inure to the
benefit of and be binding upon the Company and any Underwriter who becomes a
party to a Terms Agreement, and their respective successors. Nothing expressed
or mentioned in this Agreement or a Terms Agreement is intended or shall be
construed to give any person, firm or corporation, other than the parties hereto
or thereto and their respective successors and the controlling persons and
officers and directors referred to in Section 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or a Terms Agreement or any provision herein or
therein contained. This Agreement and any Terms Agreement and all conditions
and provisions hereof and thereof are intended to be for the sole and exclusive
benefit of the parties and their respective successors and said controlling
persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
Section 14. Governing Law. This Agreement and each Terms Agreement shall
-------------
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State.
Section 15. Counterparts. This Agreement may be executed in one or more
------------
counterparts, and when a counterpart has been executed by each party hereto all
such counterparts taken together shall constitute one and the same Agreement.
16
<PAGE>
[SIGNATURE PAGE FOR JULY 22, 1998 UNDERWRITING AGREEMENT]
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement between you and us
in accordance with its terms.
Very truly yours,
COMDISCO, INC.
By: /s/ Edward A. Pacewicz
---------------------------------
Edward A. Pacewicz
Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the dated first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Parker A. Weil
------------------------------------
Its: Authorized Signatory
BANCAMERICA ROBERTSON STEPHENS CITICORP SECURITIES, INC.
By: /s/ Dana R. Levenson By: /s/ Chris Difotis
------------------------------------ ---------------------------
Its: Authorized Signatory Its: Authorized Signatory
BEAR, STEARNS & CO. INC. WARBURG DILLON READ LLC
By: /s/ Jacques de St. Phalle By: /s/ Bruce J. Widas
------------------------------------ ---------------------------
Its: Authorized Signatory Its: Authorized Signatory
17
<PAGE>
EXHIBIT A
COMDISCO, INC.
(a Delaware corporation)
Senior Debt Securities
TERMS AGREEMENT
---------------
To: COMDISCO, INC.
6111 North River Road
Rosemont, Illinois 60018
Re: Underwriting Agreement dated July 22, 1998
Senior Debt Securities
----------------------
Title of Senior Debt Securities:
Principal amount to be issued: $
Current ratings:
Interest rate: Payable:
Date of Maturity:
[Currency of Denomination:
Currency of Payment:
Form and Denomination:
Overseas Paying Agent:]
Redemption provisions:
Sinking Fund requirements:
Delayed Delivery Contracts [authorized] [not authorized]
Delivery Date:
Minimum Contract:
Maximum aggregate principal amount:
Fee: %
[Public offering price: %, plus accrued interest, or amortized original issue
discount if any, from , 19 ].
A-1
<PAGE>
Purchase price: %, plus accrued interest, or amortized original issue discount,
if any, from , 19 (payable in next day funds).
----------------
Closing date and location with respect to registered Securities:
Closing date and location with respect to bearer Securities:
Rating Agencies applicable to Sections 4 and 9 of the Underwriting Agreement:
[Moody's Investors Service] [Standard & Poor's] [Duff & Phelps]
Additional co-managers, if any:
[Additional Termination Events: To the list of termination events included
in Section 9 of the Underwriting Agreement is added the following:
[(v) a general moratorium in foreign exchange trading, or a moratorium
in or U.S. dollar trading, by major international banks or persons has been
declared, or exchange controls have been imposed or proposed, affecting the
or the U.S. dollar by any competent governmental authority in the United
States or ; or]
(vi) there shall be pending any legal proceedings against the Company
or the Underwriters relating to the Securities]
[Additional Agreement of the Underwriters: To the agreements of the
Underwriters included in Section 11 of the Underwriting Agreement is added
to the following:
The Underwriters agree that they will not offer, sell, resell or deliver,
directly or indirectly, any Securities in or to residents of
, or to others for the reoffering, resale or delivery of any Securities
directly or indirectly in or to any resident of .]
[Exceptions, if any, to Section 3(j) of the Underwriting Agreement: The
provisions of such Section are hereby waived.]
[Consents pursuant to Section 3(j) of the Underwriting Agreement may be
executed by [name(s) of underwriter(s)].]
-------------------------
All notices to the Underwriters in respect of this Agreement shall be
directed to the undersigned as follows:
Each Underwriter severally agrees, subject to the terms and provisions of the
above referenced Underwriting Agreement, which is incorporated herein in its
entirety and made a part hereof, to purchase the principal amount of Securities
set forth opposite its name.
Principal
Amount of
Name Securities
- ---- --------------
$
-------------
[$ ]
A-2
<PAGE>
[SIGNATURE PAGE FOR __________ TERMS AGREEMENT]
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
------------------------------------
Its: Authorized Signatory
BANCAMERICA ROBERTSON STEPHENS CITICORP SECURITIES, INC.
By: By:
------------------------------------ ----------------------------
Its: Authorized Signatory Its: Authorized Signatory
BEAR, STEARNS & CO. INC. WARBURG DILLON READ LLC
By: By:
------------------------------------ ----------------------------
Its: Authorized Signatory Its: Authorized Signatory
Accepted:
COMDISCO, INC.
By:
------------------------------------
A-3
<PAGE>
EXHIBIT B
COMDISCO, INC.
(a Delaware corporation)
Senior Debt Securities
DELAYED DELIVERY CONTRACT
-------------------------
____________, 19__
COMDISCO, INC.
6111 North River Road
Rosemont, Illinois 60018
Attention:
---------------------------
Dear Sirs:
The undersigned hereby agrees to purchase from Comdisco, Inc. (the
"Company"), and the Company agrees to sell to the undersigned on 19
(the "Delivery Date"),
principal amount of the Company's [insert title of security] (the "Securities")
offered by the Company's Prospectus dated , 19 , as supplemented by its
Prospectus Supplement dated , 19 , receipt of which is hereby acknowledged,
at a purchase price of % of the principal amount of Securities, plus accrued
interest from , 19 , to the Delivery Date and on the further terms
and conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds, at the office of Comdisco,
Inc., 6111 North River Road, Rosemont, Illinois 60018 on the Delivery Date, upon
delivery to the undersigned of the Securities to be purchased by the undersigned
in definitive form and in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payments for
Securities on the Delivery Date shall be subject to only the conditions that (1)
the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before , 19
shall have sold to the Underwriters of the Securities (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Terms Agreement dated , 19 between the Company and the Underwriters.
The obligation of the undersigned to take delivery of and make payment for
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payment for Securities pursuant to other contracts similar
to this contract. The undersigned represents and warrants to you that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which govern
such investment.
Promptly after completion of the sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
B-1
<PAGE>
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery
Contracts for an aggregate amount of Securities in excess of $ and
that the acceptance of any Delayed Delivery Contracts is in the Company's sole
discretion and, without limiting the foregoing, need not be on a first-come,
first-served basis. If this contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance on a copy hereof and mail
or deliver a signed copy hereof to the undersigned at its address set forth
below. This will become a binding contract between the Company and the
undersigned when such copy is so mailed or delivered.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be performed
in such State.
Very truly yours,
----------------------------------
(Name of Purchaser)
By:
-------------------------------
(Title)
----------------------------------
----------------------------------
(Address)
Accepted as of the date first above written.
COMDISCO, INC.
By:
---------------------------------------
B-2
<PAGE>
PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with whom
details of delivery on the Delivery Date may be discussed are as follows:
(Please print).
Name Telephone No. (including area code)
- ---- -----------------------------------
B-3
<PAGE>
Exhibit 1.2
-----------
COMDISCO, INC.
(A Delaware Corporation)
SENIOR DEBT SECURITIES
July 22, 1998
TERMS AGREEMENT
To: COMDISCO, INC.
6111 North River Road
Rosemont, Illinois 60018
Re: Underwriting Agreement dated July 22, 1998
Senior Debt Securities
----------------------
Title of Senior Debt
Securities: 6.13% MandatOry Par Put Remarketed Securities(SM)
("MOPPRS(SM)") due August 1, 2006.
Principal amount to be
issued: $275,000,000
Current ratings: Moody's Investors Service, Inc.: Baa1
Standard & Poor's: BBB+
Duff & Phelp Credit Rating Co.: A-
Interest Rate to the
Remarketing Date: 6.13% commencing July 27, 1998, payable
semiannually in arrears on the dates set forth
below to holder of record on the preceding
January 15 and July 15, as the case may be.
Interest Payment Dates: February 1 and August 1 of each year, commencing
February 1, 1999
Remarketing Date: August 1, 2001
Base Rate: 5.458%
Stated Maturity Date: August 1, 2006
Purchase Price (include
accrued interest or
amortization, if any): 101.05%
- -------------------
"MandatOry Par Put Remarketed Securities(SM) and "MOPPRS(SM)" are service owned
by Merill Lynch & Co., Inc.
<PAGE>
Initial Price to Public: At varying prices related to the prevailing
market prices at the time of the sale.
Form and Denomination: Fully registered in denominations of $1,000
and integral multiples thereof.
Redemption provisions: Subject to repurchase or redemption only upon
the terms set forth in the MOPPRS.
Sinking Fund requirements: None
Defeasance Provisions: The MOPPRS may not be defeased, purchased or
otherwise acquired by the Company or its
subsidiaries or affiliates other than in
accordance with the provisions of the
Remarketing Agreement to be dated as of July
27, 1998 between the Company and Merrill
Lynch, Pierce, Fenner & Smith Incorporated
(the "Remarketing Agreement").
Other Provisions: The MOPPRS are Book-Entry Securities. The
MOPPRS are subject to the Remarketing
Agreement.
Delayed Delivery Contracts: Not authorized
Stand-Off Term: Between the date hereof and the Closing Date.
Closing Date and location: July 27, 1998, at 9 a.m. New York City time in
the offices of McBride
Baker & Coles, 500 West Madison Street,
40th Floor, Chicago, Illinois 60661
Rating Agencies applicable Moody's Investors Service, Inc.,
to Sections 4 and 9 of Standard & Poor's
the Underwriting Agreement: and Duff & Phelps Credit Rating Co.
Payment for the MOPPRS shall be made to the Company in same day funds payable to
the order of the Company against acknowledgment of satisfactory notation of the
Underwriter's interest in the Global Notes representing the MOPPRS by the
Underwriters.
2
<PAGE>
Each Underwriter severally agrees, subject to the terms and provisions of the
above referenced Underwriting Agreement, which is incorporated herein in its
entirety and made a part hereof, to purchase the principal amount of Securities
set forth opposite its name:
Principal Amount
Underwriter of MOPPRS
----------- ---------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.................... $ 55,000,000
BancAmerica Robertson Stephens...................... $ 55,000,000
Bear, Stearns & Co. Inc............................. $ 55,000,000
Citicorp Securities, Inc............................ $ 55,000,000
Warburg Dillon Read LLC............................. $ 55,000,000
------------
Total:........................... $275,000,000
============
The following documents will be required on the Closing Date (as defined above):
Officers' Certificate pursuant to Section 4(c) of the Underwriting Agreement;
Legal Opinion pursuant to Sections 4(b)(1) and (3) of the Underwriting
Agreement; a Comfort Letter pursuant to Section 4(d) of the Underwriting
Agreement and a Bring-down Comfort Letter pursuant to Section 4(e) of the
Underwriting Agreement; and other documents pursuant to Section 4(f) of the
Underwriting Agreement; provided, however, that the legal opinion provided
pursuant to Section 4(b)(1) shall be modified to relate to the MOPPRS and shall
contain the following additional opinion: The Remarketing Agreement has been
duly authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by Merrill Lynch, Pierce, Fenner & Smith
Incorporated, constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by applicable bankruptcy, insolvency, or
other laws relating to or affecting creditors' rights generally, or by general
principals of equity.
3
<PAGE>
[SIGNATURE PAGE FOR JULY 22, 1998 TERMS AGREEMENT]
MERRILL LYNCH, PIERCE FENNER & SMITH
INCORPORATED
By: /s/ Parker A. Weil
- --------------------------------
Its: Authorized Signatory
BANCAMERICA ROBERTSON STEPHENS
By: /s/ Dana R. Levenson
- --------------------------------
Its: Authorized Signatory
BEAR, STEARNS & CO. INC.
By: /s/ Jacques de St. Phalle
- --------------------------------
Its: Authorized Signatory
CITICORP SECURITIES, INC.
By: /s/ Chris Difotis
- --------------------------------
Its: Authorized Signatory
WARBURG DILLON READ LLC
By: /s/ Bruce J. Widas
- --------------------------------
Its: Authorized Signatory
Accepted:
COMDISCO, INC.
By: /s/ Edward A. Pacewicz
- --------------------------------
Its: Authorized Signatory
4
<PAGE>
Exhibit 4.1
[FORM OF GLOBAL MOPPRS]
UNLESS THIS MOPPRS IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW
YORK) TO THE ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY MOPPRS ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR MOPPRS IN CERTIFICATED
FORM, THIS MOPPRS MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
REGISTERED REGISTERED
No. R- $
COMDISCO, INC.
CUSIP 200 336 AS4
6.13% Mandatory Par Put Remarketed Securities(SM) ("MOPPRS(SM)")
due August 1, 2006
ORIGINAL ISSUE DATE: INTEREST RATE STATED MATURITY DATE:
July 27, 1998 TO REMARKETING August 1, 2006
DATE: 6.13%
REMARKETING DATE: INTEREST RATE INTEREST PAYMENT
August 1, 2001 TO MATURITY: DATE(S):
To be determined as February and August 1 of
provided herein and each year, commencing
set forth in the February 1, 1999
records of the Trustee
COMDISCO, INC., a Delaware corporation (the "Company"), which term includes
any successor corporation under the Indenture hereinafter referred to, for value
received, hereby promises the pay to Cede & Co., a nominee of the Depository
Trust Company ("DTC"), or its registered assigns, the principal sum of
$ __________ (__________ Dollars), on the Stated Maturity Date specified above
(or any earlier
<PAGE>
redemption date or repurchase date) (each such Stated Maturity Date, redemption
date or repurchase date being hereinafter referred to as the "Maturity Date"
with respect to the principal repayable on such date) and to pay interest
thereon, at the Interest Rate per annum specified above to August 1, 2001 (the
"Remarketing Date"), and thereafter, subject to the terms and conditions set
forth herein, at the Interest Rate determined by the Remarketing Dealer (as
defined below) in accordance with the procedures set forth below (the "Interest
Rate to Maturity"), until the principal hereof is paid or duly made available
for payment. The Company will pay interest in arrears on each Interest Payment
Date, if any, specified above (each, an "Interest Payment Date"), commencing
with the first Interest Payment Date next succeeding the Original Issue Date
specified above, and on the Maturity Date; provided, however, that if the
Original Issue Date occurs between a Record Date (as defined below) and the next
succeeding Interest Payment Date, interest payments will commence on the second
Interest Payment Date next succeeding the Original Issue Date to the Holder of
this MOPPRS on the Record Date with respect to such second Interest Payment
Date. Interest on this MOPPRS will be computed on the basis of a 360-day year of
twelve 30- day months.
If, pursuant to the Remarketing Agreement, dated as of the date hereof (the
"Remarketing Agreement"), between Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as Remarketing Dealer (the "Remarketing Dealer"), and the Company,
the Remarketing Dealer elects to remarket the MOPPRS, then, except as otherwise
set forth herein, (i) this MOPPRS shall be subject to mandatory tender to the
Remarketing Dealer for remarketing on the Remarketing Date, on the terms and
subject to the conditions set forth herein, and (ii) on and after the
Remarketing Date, this MOPPRS shall bear interest at the Interest Rate to
Maturity determined by the Remarketing Dealer in accordance with the procedures
set forth in Section 3 herein. The Remarketing Dealer's duties set forth herein
shall be performed pursuant to the Remarketing Agreement.
Interest on this MOPPRS will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date, if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, subject
to certain exceptions described herein, be paid to the person in whose name this
MOPPRS (or one or more predecessor MOPPRS) is registered at the close of
business on the fifteenth calendar day (whether or not a Business Day, as
defined below) immediately preceding such Interest Payment Date (the "Record
Date"). Any such interest not so punctually paid on or duly provided for
("Defaulted Interest") on any Interest Payment Date other than the Maturity Date
shall forthwith cease to be payable to the Holder on any Record Date and shall
be paid to the person in whose name this MOPPRS is registered at the close on a
special record date (the "Special Record Date") for the payment of such
Defaulted Interest to be fixed by the Company, written notice whereof shall be
given to the Holder of this MOPPRS by the Company not less than 30 calendar days
prior to such Special Record Date or may be paid at any time in any other lawful
manner.
Payment of principal and premium, if any, in respect of this MOPPRS due on the
Maturity Date will be made in immediately available funds upon presentation and
surrender of this MOPPRS at the corporate trust office of the Trustee maintained
for that purpose in the Borough of Manhattan, The City of New York, currently
located at 666 Fifth Street, 8th Floor, New York, New York 10101 or at such
other paying agency in the Borough of Manhattan, The City of New York, as the
Company may determine. Payment of interest due on any Interest Payment Date
will be made by check mailed to the address of the person entitled thereto as
such address shall appear in the Security Register maintained at the
aforementioned office of the Trustee; provided however, that a Holder of U.S.
$10,000,000 or more in aggregate principal amount of MOPPRS will be entitled to
receive interest payments on such Interest Payment Date by wire transfer of
immediately available funds if appropriate wire transfer instructions have
2
<PAGE>
been received in writing by the Trustee not less than 15 calendar days prior to
such Interest Payment Date. Any such wire transfer instructions received by the
Trustee shall remain in effect until revoked by such Holder. Notwithstanding the
foregoing or any provision hereof, if this MOPPRS is a global Security (as
evidenced by the legend first set forth above and provided in the Indenture),
and is held in book-entry form through the facilities of DTC, payments on this
MOPPRS will be made to DTC or its nominee in accordance with the arrangements
then in effect between the Trustee and DTC.
If any Interest Payment Date or the Maturity Date falls on a day that is not a
Business Day, the required payment of principal, premium, if any, and/or
interest, shall be made on the next succeeding Business Day with the same force
and effect as if it were made on the date such payment was due, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be, to the date of
such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day other than a Saturday, Sunday, or
other day on which banking institutions are authorized or required by law,
regulation or executive order to close in The City of New York.
The Company is obligated to make payment of principal, premium, if any, and
interest in respect of this MOPPRS in United States dollars.
Reference is hereby made to the further provisions of this MOPPRS set forth
following the Trustee's Certificate of Authentication (the "Certificate of
Authentication") set forth below.
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this MOPPRS shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
---------------------------------------
3
<PAGE>
IN WITNESS WHEREOF, COMDISCO, INC. has caused this MOPPRS to be duly executed.
Dated:
------------
COMDISCO, INC.
By:
----------------------------------
President
Attest:
- ------------------------------
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: YASUDA BANK AND TRUST COMPANY (U.S.A.)
----------- AS TRUSTEE
By:
----------------------------------------------
Authorized Signatory
4
<PAGE>
COMDISCO, INC.
6.13% Mandatory Par Put Remarketed Securities(SM) ("MOPPRS(SM)")
due August 1, 2006
1. Indenture.
---------
(a) This MOPPRS is one of the duly authorized series of Securities of
the Company issued or to be issued under an indenture dated as of December 1,
1995 (as amended, modified or supplemented from time to time, the "Indenture")
between the Company and Yasuda Bank and Trust Company (U.S.A.), as Trustee (the
"Trustee", which term includes any successor Trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the MOPPRS,
and of the terms upon which the MOPPRS are authenticated and delivered. This
MOPPRS is a global MOPPRS representing Securities of a series of the Company
designated as the 6.13% Mandatory Par Put Remarketed SecuritiesSM ("MOPPRSSM")
due August 1, 2006. All terms used but not defined in this MOPPRS shall have
the meanings assigned to such terms in the Indenture. Except where the context
otherwise requires, all references in this MOPPRS to "this MOPPRS", "this
Security," "herein" or "hereof" or similar terms shall include the Indenture.
(b) This MOPPRS is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof.
(c) This MOPPRS will not be subject to any sinking fund.
2. Mandatory Tender. Provided that on a Business Day not later than five
----------------
Business Days prior to the Remarketing Date the Remarketing Dealer notifies the
Company and the Trustee of its election to purchase the MOPPRS on the
Remarketing Date for remarketing (the "Notification Date"), the MOPPRS shall be
subject to mandatory tender to the Remarketing Dealer, and the Remarketing
Dealer shall be obligated to purchase the MOPPRS, for remarketing on the
Remarketing Date, subject in each case to the conditions described herein and
set forth in the Remarketing Agreement. The purchase price for the tendered
MOPPRS shall equal 100% of the principal amount thereof. From and after the
Remarketing Date, the MOPPRS shall bear interest at the Interest Rate to
Maturity determined pursuant to Section 3 hereof. If the Remarketing Dealer
elects to remarket the MOPPRS, the obligation of the Remarketing Dealer to
purchase the MOPPRS on the Remarketing Date is subject to the conditions
specified in Section 8 of the Remarketing Agreement. If the Remarketing Dealer
purchases any MOPPRS on the Remarketing Date, it must purchase all of the
MOPPRS. If for any reason the Remarketing Dealer does not purchase all of the
MOPPRS on the Remarketing Date, the Company shall be required to repurchase from
the Beneficial Owners thereof, and the Beneficial Owners will be required to
sell to the Company, all of the MOPPRS at a price equal to the principal amount
thereof plus all accrued and unpaid interest, if any, on the MOPPRS to the
Remarketing Date as provided in Section 4 hereof.
"Beneficial Owner" shall mean each person who acquires an interest in the
MOPPRS which is reflected on the records of DTC through its participants.
5
<PAGE>
3. Determination of Interest Rate to Maturity.
------------------------------------------
(a) Subject to the Remarketing Dealer's election to remarket the
MOPPRS as provided in Section 2 hereof and subject further to Section 3(c) and 5
hereof and the Remarketing Agreement, the Interest Rate to Maturity shall be
determined by the Remarketing Dealer no later than 3:30 p.m., New York City
time, on and as of the third business Day immediately preceding the Remarketing
Date (the "Determination Date") to the nearest one hundred-thousandth (0.00001)
of one percent per annum, and will be equal to the sum of 5.458% (the "Base
Rate") plus the Applicable Spread (as defined below), which will be based on the
Dollar Price (as defined below) of the MOPPRS. The Interest Rate to Maturity
announced by the Remarketing Dealer, absent manifest error, shall be binding and
conclusive upon the Beneficial Owners and holders of the MOPPRS, the Company and
the Trustee.
The "Applicable Spread" shall be the lowest bid indication, expressed as a
spread (in the form of a percentage or in basis points) above the Base Rate,
obtained by the Remarketing Dealer on the Determination Date from the bids
quoted by five Reference Corporate Dealers (as defined below) for the full
aggregate principal amount of the MOPPRS at the Dollar Price, but assuming (i)
an issue date equal to the Remarketing Date, with settlement on such date
without accrued interest, (ii) a maturity date equal to the Stated Maturity Date
of the MOPPRS and (iii) a stated annual interest rate, payable semi-annually on
each Interest Payment Date, equal to the Base Rate plus the spread bid by the
applicable Reference Corporate Dealer. If fewer than five Reference Corporate
Dealers bid as described above, then the Applicable Spread shall be the lowest
of such bid indications obtained as described above.
"Dollar Price" means, with respect to the MOPPRS, the present value
determined by the Remarketing Dealer, as of the Remarketing Date, of the
Remaining Scheduled Payments (as defined below) discounted to the Remarketing
Date, on a semi-annual basis (assuming a 360-day year consisting of twelve 30-
day months), at the Treasury Rate (as defined below).
"Reference Corporate Dealers" means leading dealers of publicly traded debt
securities of the Company in The City of New York (which may include the
Remarketing Dealer or one of its affiliates) selected by the Remarketing Dealer.
"Treasury Rate" means, with respect to the Remarketing Date, the rate per
annum equal to the semi-annual equivalent yield to maturity or interpolated (on
a day count basis) yield to maturity of the Comparable Treasury Issues (as
defined below), assuming a price for the Comparable Treasury Issues (expressed
as a percentage of its principal amount) equal to the Comparable Treasury Price
(as defined below) for such Remarketing Date.
"Comparable Treasury Issues" means the United States Treasury security or
securities selected by the Remarketing Dealer as having an actual or
interpolated maturity or maturities comparable to the remaining term of the
MOPPRS being purchased.
"Comparable Treasury Price" means, with respect to the Remarketing Date,
(a) the offer prices for the Comparable Treasury Issues (expressed in each case
as a percentage of its principal amount) on the Determination Date, as set forth
on "Telerate Page 500" (or such other page as may replace Telerate Page 500) or
(b) if such page (or any successor page) is not displayed or does not contain
such offer prices on such Determination Date, (i) the average of the Reference
Treasury Dealer Quotations for such Remarketing Date, after excluding the
highest and lowest of such Reference Treasury Dealer Quotations, or (ii) if the
Remarketing Dealer obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Reference Treasury Dealer Quotations.
"Telerate Page 500" means the display
6
<PAGE>
designated as "Telerate Page 500" on Dow Jones Markets Limited (or such other
page as may replace Telerate Page 500 on such service) or such other service
displaying the offer prices specified in (a) above as may replace Dow Jones
Markets Limited.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and the Remarketing Date, the offer prices for the
Comparable Treasury Issues (expressed in each case as a percentage of its
principal amount) quoted in writing to the Remarketing Dealer by such Reference
Treasury Dealer by 3:30 p.m. New York City time, on the Determination Date.
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated and Salomon Brothers Inc and
their respective successors; provided, however, that if any of the foregoing or
their affiliates shall cease to be a primary U.S. Government securities dealer
in The City of New York (a "Primary Treasury Dealer"), the Remarketing Dealer
shall substitute therefor another Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to the MOPPRS, the
remaining scheduled payments of the principal thereof and interest thereon,
calculated at the Base Rate only, that would be due after the Remarketing Date
to and including the Stated Maturity Date as determined by the Remarketing
Dealer.
(b) Provided the Remarketing Dealer has previously notified the
Company and the Trustee on the Notification Date of its intention to purchase
all of the MOPPRS on the Remarketing Date, the Remarketing Dealer will notify
the Company, the Trustee and DTC by telephone, confirmed in writing, by 4:00
p.m., New York City time, on the Determination Date, of the Interest Rate to
Maturity.
All of the tendered MOPPRS shall be automatically delivered to the account
of the Trustee, by book-entry through DTC pending payment of the purchase price
therefor, on the Remarketing Date.
In the event that the Remarketing Dealer purchases the tendered MOPPRS on
the Remarketing Date, the Remarketing Dealer shall make or cause the Trustee to
make payment to the DTC Participant of each tendering Beneficial Owner of
MOPPRS, by book-entry through DTC no later than the close of business on the
Remarketing Date against delivery through DTC of such Beneficial Owner's
tendered MOPPRS, of 100% of the principal amount of the tendered MOPPRS that
have been purchased for remarketing by the Remarketing Dealer. If the
Remarketing Dealer does not purchase all of the MOPPRS on the Remarketing Date,
it shall be the obligation of the Company to make or cause to be made such
payment for the MOPPRS, as provided in Section 4 hereof. In any case, the
Company shall make or cause the Trustee to make payment of interest to each
Beneficial Owner of MOPPRS due on the Remarketing Date by book-entry through DTC
no later than the close of business on the Remarketing Date.
"DTC Participant" shall mean any person that has an account with DTC
through which Beneficial Owners acquire, directly or indirectly, an interest in
the MOPPRS.
The transactions set forth in this Section shall be executed on the
Remarketing Date through DTC in accordance with the procedures of DTC, and the
accounts of the respective DTC Participants will be debited and credited and the
MOPPRS delivered by book-entry as necessary to effect the purchases and sales
thereof.
7
<PAGE>
The tender and settlement procedures set forth above, including provisions
for payment by purchasers of MOPPRS in the remarketing or for payment to selling
Beneficial Owners of MOPPRS, may be modified to the extent required by DTC or,
if the book-entry system is no longer available for the MOPPRS at the time of
the remarketing, to the extent required to facilitate the tender and remarketing
of MOPPRS in certificated form. In addition, the Remarketing Dealer may, in
accordance with the terms and conditions of the Indenture and without the
consent of Holders or Beneficial Owners of the MOPPRS, modify the tender and
settlement procedures set forth above in order to facilitate the tender and
settlement process.
As long as DTC's nominee holds the certificates representing any MOPPRS in
the book-entry system of DTC, no certificates for such MOPPRS will be delivered
by any selling Beneficial Owner to reflect any transfer of such MOPPRS effected
in the remarketing.
(c) Notwithstanding any provision herein to the contrary, upon the
occurrence, at any time after determination of the Interest Rate to Maturity on
the Determination Date and prior to 3:30 p.m., New York City time, on the
Business Day immediately preceding the Remarketing Date, of any event as
specified in Section 11(b) of the Remarketing Agreement, the Remarketing Dealer,
in its sole discretion at any time between the Determination Date and 3:30 p.m,
New York City time, on the Business Day immediately preceding the Remarketing
Date, may elect to purchase the MOPPRS for remarketing and determine a new
Interest Rate to Maturity in the manner provided in Section 3(a) hereof, except
that for purposes of determining the new Interest Rate to Maturity pursuant to
this paragraph, the Determination Date referred to therein shall be the date of
such election and redetermination. The Remarketing Dealer shall notify the
Company, the Trustee and DTC by telephone, confirmed in writing (which may
include facsimile or other electronic transmission), by 4:00 p.m., New York City
time, on the date of such election, of the new Interest Rate to Maturity
applicable to the MOPPRS. Thereupon, such new Interest Rate to Maturity shall
supersede and replace any Interest Rate to Maturity previously determined by the
Remarketing Dealer and, absent manifest error, shall be binding and conclusive
upon the Beneficial Owners and Holders of the MOPPRS on or after the Remarketing
Date, the Company and the Trustee.
4. Repurchase. If (i) the Remarketing Dealer for any reason does not
----------
notify the Company of the Interest Rate to Maturity by 4:00 p.m., New York City
time, on the Determination Date, or (ii) prior to the Remarketing Date, the
Remarketing Dealer has resigned and no successor has been appointed on or before
the Determination Date, or (iii) at any time after the Remarketing Dealer elects
on the Notification Date to remarket the MOPPRS , the Remarketing Dealer
terminates the Remarketing Agreement due to the occurrence of any event as set
forth in Section 8 or Section 11 of the Remarketing Agreement, or (iv) the
Remarketing Dealer elects not to purchase the MOPPRS for remarketing on the
Remarketing Date, or (v) the Remarketing Dealer for any reason does not purchase
all tendered MOPPRS on the Remarketing Date, then, in any such case, the Company
shall repurchase the MOPPRS as a whole on the Remarketing Date at a price equal
to 100% of the principal amount thereof plus all accrued and unpaid interest, if
any, on the MOPPRS to the Remarketing Date. In any such case, payment shall be
made by the Company through the Trustee to the DTC Participant of each tendering
Beneficial Owner of MOPPRS, by book-entry through DTC, no later than the close
of business on the Remarketing Date against delivery through DTC of such
Beneficial Owner's tendered MOPPRS.
5. Redemption. If the Remarketing Dealer elects to remarket the MOPPRS
----------
on the Remarketing Date, then not later than the close of business on the
Business Day immediately preceding the Determination Date, the MOPPRS shall be
subject to redemption at the option of the Company from the Remarketing Dealer,
as a whole but not in part, as set forth in this Section. The Company shall
notify the Remarketing Dealer and the Trustee, not later than the close of
business on the Business Day immediately
8
<PAGE>
preceding the Determination Date, as to whether the Company irrevocably elects
to exercise its right to redeem the MOPPRS, in whole but not in part, from the
Remarketing Dealer on the Remarketing Date at the Optional Redemption Price. If
the Company so elects, it shall redeem the MOPPRS by payment to the Remarketing
Dealer as provided in the Remarketing Agreement. If the Company fails to elect,
or elects not, to redeem the MOPPRS pursuant to this Section 5, the Remarketing
Dealer will determine the Interest Rate to Maturity on the Determination Date as
provided in Section 3(a) hereof.
The "Optional Redemption Price" shall be the greater of (i) 100% of the
principal amount of the MOPPRS and (ii) the Dollar Price, plus, in either case,
accrued and unpaid interest from the Remarketing Date on the principal amount
being redeemed to the date of redemption.
6. Effect of Events of Default. If an Event of Default (as defined in
---------------------------
the Indenture) with respect to MOPPRS should occur and be continuing, the
principal amount of the MOPPRS and interest accrued thereon may, by written
notice to the Company, be declared due and payable by the Trustee or the Holders
of not less than 25% in principal amount of all outstanding MOPPRS. Such
declaration of acceleration may, if all payments due have been made and all
Events of Default have been remedied or waived, be rescinded by the Holders of a
majority in principal amount of all outstanding MOPPRS. Any Event of Default
may be waived by the Holders of a majority in principal amount of all
outstanding MOPPRS, except that default in payment of the principal, premium, or
interest on any MOPPRS, or in respect of a covenant under the Indenture which
cannot be modified absent the consent of the Holders of each outstanding MOPPRS,
cannot be waived.
As provided in and subject to the provisions of the Indenture, the Holder
of this MOPPRS shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless: (i) such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
MOPPRS; (ii) the Holders of not less than 25% in principal amount of the MOPPRS
at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered
the Trustee reasonable indemnity; (iii) the Trustee shall not have received from
the Holders of a majority in principal amount of the MOPPRS at the time
Outstanding a direction inconsistent with such request; and (iv) the Trustee
shall have failed to institute any such proceeding, for 60 days after receipt of
such notice, request and offer of indemnity. The foregoing shall not apply to
any suit instituted by the Holder of this MOPPRS for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
7. Defeasance. Notwithstanding any provision to the contrary in the
----------
Indenture or otherwise, prior to the Remarketing Date, neither the Company nor
any of its subsidiaries or affiliates shall defease, purchase or otherwise
acquire, or enter into any agreement to defease, purchase or otherwise acquire,
any of the MOPPRS prior to the remarketing thereof by the Remarketing Dealer.
8. Maintenance in Book-Entry Form. Notwithstanding any provision to the
------------------------------
contrary set forth in the Indenture, the Company (i) shall use its best efforts
to maintain the MOPPRS in book-entry form with DTC or any successor thereto and
appoint a successor depositary to the extent necessary to maintain the MOPPRS in
book-entry form, and (ii) waives any discretionary right it otherwise has under
the Indenture to cause the MOPPRS to be issued in certificated form.
9. Amendment and Modification. The tender and settlement procedures may
--------------------------
be modified as provided in Section 3(b) above. The Indenture contains
provisions permitting the Company and the Trustee, with the written consent of
Holders of a majority in principal amount of the MOPPRS, to enter
9
<PAGE>
into a supplemental indenture to add any provisions to or to change or eliminate
any provisions of the Indenture or of any supplemental indenture or to modify,
in each case in any manner not covered by provisions in the Indenture relating
to amendments and modifications without the consent of Holders, the rights of
such Holders. However, without the consent of each Holder affected thereby, an
amendment or modification may not: (a) change the Stated Maturity Date or any
Interest Payment Date or the redemption price; (b) reduce the principal amount
of, or the interest on, any MOPPRS or reduce the amount of principal which could
be declared due and payable prior to the Stated Maturity Date; (c) change the
place or currency of any payment of principal or interest on any MOPPRS (except
as otherwise provided in the Indenture); (d) impair the right to institute suit
for the enforcement of any payment on or with respect to any MOPPRS; (e) reduce
the percentage in principal amount of MOPPRS, the consent of whose Holders is
required to modify or amend the Indenture; or (f) modify the foregoing
requirements or reduce the percentage in principal amount of MOPPRS necessary to
waive any past default to less than a majority. Except with respect to certain
fundamental provisions, the Holders of at least a majority in principal amount
of MOPPRS may, with respect to the MOPPRS, waive past defaults under the
Indenture and waive compliance by the Company with certain provisions of the
Indenture. The Indenture also contains provisions permitting the Company and the
Trustee to effect certain modifications and amendments without the consent of
the Holders to cure ambiguities, correct inconsistencies and make other changes,
provided such modifications and amendments do not adversely affect the interest
of the Holders in any material respect.
10. Obligation of Company. No reference herein to the Indenture and no
---------------------
provision of this MOPPRS or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this MOPPRS in the manner at the
place, at the respective times, at the rate and in the coin or currency herein
prescribed.
11. Tax Treatment. Each Holder and Beneficial Owner of this MOPPRS or any
interest therein prior to remarketing on the Remarketing Date, by its purchase
of this MOPPRS or any interest therein, agrees to treat this MOPPRS as maturing
on the Remarketing Date for United States federal income tax purposes.
12. Transfer and Exchange. As provided in the Indenture and subject to
---------------------
certain limitations therein and herein set forth (including without limitation
the restrictions on transfer under the Indenture in the event this MOPPRS is a
global Security as evidenced by the legend first set forth above and provided in
the Indenture), the transfer of this MOPPRS is registrable in the Security
Register of the Company upon surrender of this MOPPRS for registration of
transfer at the office or agency of the Security Registrar in The City of New
York, New York designated for such purpose, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new MOPPRS, of authorized
denominations and for the same aggregate principal amount and otherwise bearing
identical terms and provisions, will be issued to the designated transferee or
transferees.
As provided in the Indenture and subject to certain limitations therein and
herein set forth (including without limitation the restrictions on transfer
under the Indenture in the event this MOPPRS is a global Security as evidenced
by the legend first set forth above and provided in the Indenture), this MOPPRS
is exchangeable for a like aggregate principal amount of MOPPRS of different
authorized denominations but otherwise having the same terms and conditions, as
requested by the Holder hereof surrendering the same at the office or agency of
the Security Registrar in the City of New York, New York designated for such
purpose.
10
<PAGE>
No service charge shall be made for any such registration or transfer or
exchange of MOPPRS, but the Company or the Security Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto. Initially, the Trustee will act as
Security Registrar and the office at which this MOPPRS must be surrendered for
registration of transfer or exchange is currently the corporate trust department
of the Trustee at 666 Fifth Street, 8th Floor, New York, New York 10101.
Prior to due presentment of this MOPPRS for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
person in whose name this MOPPRS is registered as the owner thereof for all
purposes, whether or not this MOPPRS be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
13. No Liability of Certain Persons. No recourse under or upon any
-------------------------------
obligation, covenant or agreement of the Company in the Indenture or any
indenture supplemental thereto or in any Security, or because of the creation of
any indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present, or future, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance hereof and as part of the consideration for the issue hereof.
This MOPPRS is unsecured and ranks pari passu with all other unsecured and
---- -----
unsubordinated indebtedness of the Company.
THIS MOPPRS AND THE INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES.
11
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this MOPPRS, shall be construed as through they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-- Custodian
-------------------- -------------------
(Cust) (Minor)
under Uniform Gifts to Minors Act
---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
---------------------------------
12
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ------------------------------------
- -----------------------------------------------------------------
(Please print or typewrite name and address
including postal zip code of assignee)
This MOPPRS and all rights thereunder, hereby irrevocably constituting and
appointing__________________________attorney-in-fact to transfer this MOPPRS
on the books of the Company, with full power of substitution in the premises.
Dated:
---------------------- --------------------------------
Signature
NOTICE: The signature on this Assignment
must correspond with the name as written
upon the face of this MOPPRS in every
particular, without alteration or
enlargement or any change whatever.
13
<PAGE>
Exhibit 4.2
[FORM OF FACE OF DEFINITIVE MOPPRS]
REGISTERED REGISTERED
No. R- $
COMDISCO, INC.
CUSIP 200 336 AS4
6.13% Mandatory Par Put Remarketed Securities(SM) ("MOPPRS(SM")
due August 1, 2006
ORIGINAL ISSUE DATE: INTEREST RATE STATED MATURITY DATE:
July 27, 1998 TO REMARKETING August 1, 2006
DATE: 6.13%
REMARKETING DATE: INTEREST RATE INTEREST PAYMENT DATE(S):
August 1, 2001 TO MATURITY: February and August 1 of
To be determined as each year, commencing
provided herein and set February 1, 1999
forth in the records of
the Trustee
COMDISCO, INC., a Delaware corporation (the "Company"), which term includes
any successor corporation under the Indenture hereinafter referred to, for value
received, hereby promises the pay to ___________________________________________
___________, or its registered assigns, the principal sum of ___________________
DOLLARS, on the Stated Maturity Date specified above (or any earlier redemption
date or repurchase date) (each such Stated Maturity Date, redemption date or
repurchase date being hereinafter referred to as the "Maturity Date" with
respect to the principal repayable on such date) and to pay interest thereon, at
the Interest Rate per annum specified above to August 1, 2001 (the "Remarketing
Date"), and thereafter, subject to the terms and conditions set forth herein, at
the Interest Rate determined by the Remarketing Dealer (as defined below) in
accordance with the procedures set forth below (the "Interest Rate to
Maturity"), until the principal hereof is paid or duly made available for
payment. The Company will pay interest in arrears on each Interest Payment Date,
if any, specified above (each, an "Interest Payment Date"), commencing with the
first Interest Payment Date next succeeding the Original Issue Date specified
above, and on the Maturity Date; provided, however, that if the Original Issue
Date occurs between a Record Date (as defined below) and the next succeeding
Interest Payment Date, interest payments will commence on the second Interest
Payment Date next succeeding the Original Issue Date to the Holder of this
MOPPRS on the Record Date with respect to such second Interest Payment Date.
Interest on this MOPPRS will be computed on the basis of a 360-day year of
twelve 30- day months.
If, pursuant to the Remarketing Agreement, dated as of the date hereof (the
"Remarketing Agreement"), between Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as Remarketing Dealer (the "Remarketing Dealer"), and the Company,
the Remarketing Dealer elects to remarket the MOPPRS, then, except as otherwise
set forth herein, (i) this MOPPRS shall be subject to mandatory tender to the
<PAGE>
Remarketing Dealer for remarketing on the Remarketing Date, on the terms and
subject to the conditions set forth herein, and (ii) on and after the
Remarketing Date, this MOPPRS shall bear interest at the Interest Rate to
Maturity determined by the Remarketing Dealer in accordance with the procedures
set forth in Section 3 herein. The Remarketing Dealer's duties set forth herein
shall be performed pursuant to the Remarketing Agreement.
Interest on this MOPPRS will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date, if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, subject
to certain exceptions described herein, be paid to the person in whose name this
MOPPRS (or one or more predecessor MOPPRS) is registered at the close of
business on the fifteenth calendar day (whether or not a Business Day, as
defined below) immediately preceding such Interest Payment Date (the "Record
Date"). Any such interest not so punctually paid on or duly provided for
("Defaulted Interest") on any Interest Payment Date other than the Maturity Date
shall forthwith cease to be payable to the Holder on any Record Date and shall
be paid to the person in whose name this MOPPRS is registered at the close on a
special record date (the "Special Record Date") for the payment of such
Defaulted Interest to be fixed by the Company, written notice whereof shall be
given to the Holder of this MOPPRS by the Company not less than 30 calendar days
prior to such Special Record Date or may be paid at any time in any other lawful
manner.
Payment of principal and premium, if any, in respect of this MOPPRS due on
the Maturity Date will be made in immediately available funds upon presentation
and surrender of this MOPPRS at the corporate trust office of the Trustee
maintained for that purpose in the Borough of Manhattan, The City of New York,
currently located at 666 Fifth Street, 8th Floor, New York, New York 10101 or at
such other paying agency in the Borough of Manhattan, The City of New York, as
the Company may determine. Payment of interest due on any Interest Payment Date
will be made by check mailed to the address of the person entitled thereto as
such address shall appear in the Security Register maintained at the
aforementioned office of the Trustee; provided however, that a Holder of U.S.
$10,000,000 or more in aggregate principal amount of MOPPRS will be entitled to
receive interest payments on such Interest Payment Date by wire transfer of
immediately available funds if appropriate wire transfer instructions have been
received in writing by the Trustee not less than 15 calendar days prior to such
Interest Payment Date. Any such wire transfer instructions received by the
Trustee shall remain in effect until revoked by such Holder. Notwithstanding the
foregoing or any provision hereof, if this MOPPRS is a global Security (as
evidenced by the legend first set forth above and provided in the Indenture),
and is held in book-entry form through the facilities of DTC, payments on this
MOPPRS will be made to DTC or its nominee in accordance with the arrangements
then in effect between the Trustee and DTC.
If any Interest Payment Date or the Maturity Date falls on a day that is
not a Business Day, the required payment of principal, premium, if any, and/or
interest, shall be made on the next succeeding Business Day with the same force
and effect as if it were made on the date such payment was due, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be, to the date of
such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day other than a Saturday, Sunday,
or other day on which banking institutions are authorized or required by law,
regulation or executive order to close in The City of New York.
2
<PAGE>
The Company is obligated to make payment of principal, premium, if any, and
interest in respect of this MOPPRS in United States dollars.
Reference is hereby made to the further provisions of this MOPPRS set forth
following the Trustee's Certificate of Authentication (the "Certificate of
Authentication") set forth below.
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this MOPPRS shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
----------------------------------------
3
<PAGE>
IN WITNESS WHEREOF, COMDISCO, INC. has caused this MOPPRS to be duly
executed.
Dated:
COMDISCO, INC.
By:
--------------------------------------
President
Attest:
- ------------------------------
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: YASUDA BANK AND TRUST COMPANY (U.S.A.)
AS TRUSTEE
By:
----------------------------------------------
Authorized Signatory
4
<PAGE>
[FORM OF REVERSE OF MOPPRS]
COMDISCO, INC.
6.13% Mandatory Par Put Remarketed Securities(SM) ("MOPPRS(SM)")
due August 1, 2006
1. Indenture.
---------
(a) This MOPPRS is one of the duly authorized series of Securities of
the Company issued or to be issued under an indenture dated as of December 1,
1995 (as amended, modified or supplemented from time to time, the "Indenture")
between the Company and Yasuda Bank and Trust Company (U.S.A.), as Trustee (the
"Trustee", which term includes any successor Trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the MOPPRS,
and of the terms upon which the MOPPRS are authenticated and delivered. This
MOPPRS is a global MOPPRS representing Securities of a series of the Company
designated as the 6.13% Mandatory Par Put Remarketed Securities(SM)
("MOPPRS(SM)") due August 1, 2006. All terms used but not defined in this MOPPRS
shall have the meanings assigned to such terms in the Indenture. Except where
the context otherwise requires, all references in this MOPPRS to "this MOPPRS",
"this Security," "herein" or "hereof" or similar terms shall include the
Indenture.
(b) This MOPPRS is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof.
(c) This MOPPRS will not be subject to any sinking fund.
2. Mandatory Tender. Provided that on a Business Day not later than five
----------------
Business Days prior to the Remarketing Date the Remarketing Dealer notifies the
Company and the Trustee of its election to purchase the MOPPRS on the
Remarketing Date for remarketing (the "Notification Date"), the MOPPRS shall be
subject to mandatory tender to the Remarketing Dealer, and the Remarketing
Dealer shall be obligated to purchase the MOPPRS, for remarketing on the
Remarketing Date, subject in each case to the conditions described herein and
set forth in the Remarketing Agreement. The purchase price for the tendered
MOPPRS shall equal 100% of the principal amount thereof. From and after the
Remarketing Date, the MOPPRS shall bear interest at the Interest Rate to
Maturity determined pursuant to Section 3 hereof. If the Remarketing Dealer
elects to remarket the MOPPRS, the obligation of the Remarketing Dealer to
purchase the MOPPRS on the Remarketing Date is subject to the conditions
specified in Section 8 of the Remarketing Agreement. If the Remarketing Dealer
purchases any MOPPRS on the Remarketing Date, it must purchase all of the
MOPPRS. If for any reason the Remarketing Dealer does not purchase all of the
MOPPRS on the Remarketing Date, the Company shall be required to repurchase from
the Beneficial Owners thereof, and the Beneficial Owners will be required to
sell to the Company, all of the MOPPRS at a price equal to the principal amount
thereof plus all accrued and unpaid interest, if any, on the MOPPRS to the
Remarketing Date as provided in Section 4 hereof.
"Beneficial Owner" shall mean each person who acquires an interest in the
MOPPRS which is reflected on the records of DTC through its participants.
5
<PAGE>
3. Determination of Interest Rate to Maturity.
------------------------------------------
(a) Subject to the Remarketing Dealer's election to remarket the
MOPPRS as provided in Section 2 hereof and subject further to Section 3(c) and 5
hereof and the Remarketing Agreement, the Interest Rate to Maturity shall be
determined by the Remarketing Dealer no later than 3:30 p.m., New York City
time, on and as of the third business Day immediately preceding the Remarketing
Date (the "Determination Date") to the nearest one hundred-thousandth (0.00001)
of one percent per annum, and will be equal to the sum of 5.458% (the "Base
Rate") plus the Applicable Spread (as defined below), which will be based on the
Dollar Price (as defined below) of the MOPPRS. The Interest Rate to Maturity
announced by the Remarketing Dealer, absent manifest error, shall be binding and
conclusive upon the Beneficial Owners and holders of the MOPPRS, the Company and
the Trustee.
The "Applicable Spread" shall be the lowest bid indication, expressed as a
spread (in the form of a percentage or in basis points) above the Base Rate,
obtained by the Remarketing Dealer on the Determination Date from the bids
quoted by five Reference Corporate Dealers (as defined below) for the full
aggregate principal amount of the MOPPRS at the Dollar Price, but assuming (i)
an issue date equal to the Remarketing Date, with settlement on such date
without accrued interest, (ii) a maturity date equal to the Stated Maturity Date
of the MOPPRS and (iii) a stated annual interest rate, payable semi-annually on
each Interest Payment Date, equal to the Base Rate plus the spread bid by the
applicable Reference Corporate Dealer. If fewer than five Reference Corporate
Dealers bid as described above, then the Applicable Spread shall be the lowest
of such bid indications obtained as described above.
"Dollar Price" means, with respect to the MOPPRS, the present value
determined by the Remarketing Dealer, as of the Remarketing Date, of the
Remaining Scheduled Payments (as defined below) discounted to the Remarketing
Date, on a semi-annual basis (assuming a 360-day year consisting of twelve 30-
day months), at the Treasury Rate (as defined below).
"Reference Corporate Dealers" means leading dealers of publicly traded debt
securities of the Company in The City of New York (which may include the
Remarketing Dealer or one of its affiliates) selected by the Remarketing Dealer.
"Treasury Rate" means, with respect to the Remarketing Date, the rate per
annum equal to the semi-annual equivalent yield to maturity or interpolated (on
a day count basis) yield to maturity of the Comparable Treasury Issues (as
defined below), assuming a price for the Comparable Treasury Issues (expressed
as a percentage of its principal amount) equal to the Comparable Treasury Price
(as defined below) for such Remarketing Date.
"Comparable Treasury Issues" means the United States Treasury security or
securities selected by the Remarketing Dealer as having an actual or
interpolated maturity or maturities comparable to the remaining term of the
MOPPRS being purchased.
"Comparable Treasury Price" means, with respect to the Remarketing Date,
(a) the offer prices for the Comparable Treasury Issues (expressed in each case
as a percentage of its principal amount) on the Determination Date, as set forth
on "Telerate Page 500" (or such other page as may replace Telerate Page 500) or
(b) if such page (or any successor page) is not displayed or does not contain
such offer prices on such Determination Date, (i) the average of the Reference
Treasury Dealer Quotations for such Remarketing Date, after excluding the
highest and lowest of such Reference Treasury Dealer Quotations, or (ii) if the
Remarketing Dealer obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Reference Treasury Dealer Quotations.
"Telerate Page 500" means the display
6
<PAGE>
designated as "Telerate Page 500" on Dow Jones Markets Limited (or such other
page as may replace Telerate Page 500 on such service) or such other service
displaying the offer prices specified in (a) above as may replace Dow Jones
Markets Limited.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and the Remarketing Date, the offer prices for the
Comparable Treasury Issues (expressed in each case as a percentage of its
principal amount) quoted in writing to the Remarketing Dealer by such Reference
Treasury Dealer by 3:30 p.m. New York City time, on the Determination Date.
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, Lehman Brothers Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Morgan Stanley & Co. Incorporated and Salomon Brothers Inc and
their respective successors; provided, however, that if any of the foregoing or
their affiliates shall cease to be a primary U.S. Government securities dealer
in The City of New York (a "Primary Treasury Dealer"), the Remarketing Dealer
shall substitute therefor another Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to the MOPPRS, the
remaining scheduled payments of the principal thereof and interest thereon,
calculated at the Base Rate only, that would be due after the Remarketing Date
to and including the Stated Maturity Date as determined by the Remarketing
Dealer.
(b) Provided the Remarketing Dealer has previously notified the
Company and the Trustee on the Notification Date of its intention to purchase
all of the MOPPRS on the Remarketing Date, the Remarketing Dealer will notify
the Company, the Trustee and DTC by telephone, confirmed in writing, by 4:00
p.m., New York City time, on the Determination Date, of the Interest Rate to
Maturity.
All of the tendered MOPPRS shall be automatically delivered to the account
of the Trustee, by book-entry through DTC pending payment of the purchase price
therefor, on the Remarketing Date.
In the event that the Remarketing Dealer purchases the tendered MOPPRS on
the Remarketing Date, the Remarketing Dealer shall make or cause the Trustee to
make payment to the DTC Participant of each tendering Beneficial Owner of
MOPPRS, by book-entry through DTC no later than the close of business on the
Remarketing Date against delivery through DTC of such Beneficial Owner's
tendered MOPPRS, of 100% of the principal amount of the tendered MOPPRS that
have been purchased for remarketing by the Remarketing Dealer. If the
Remarketing Dealer does not purchase all of the MOPPRS on the Remarketing Date,
it shall be the obligation of the Company to make or cause to be made such
payment for the MOPPRS, as provided in Section 4 hereof. In any case, the
Company shall make or cause the Trustee to make payment of interest to each
Beneficial Owner of MOPPRS due on the Remarketing Date by book-entry through DTC
no later than the close of business on the Remarketing Date.
"DTC Participant" shall mean any person that has an account with DTC
through which Beneficial Owners acquire, directly or indirectly, an interest in
the MOPPRS.
The transactions set forth in this Section shall be executed on the
Remarketing Date through DTC in accordance with the procedures of DTC, and the
accounts of the respective DTC Participants will be debited and credited and the
MOPPRS delivered by book-entry as necessary to effect the purchases and sales
thereof.
7
<PAGE>
The tender and settlement procedures set forth above, including provisions
for payment by purchasers of MOPPRS in the remarketing or for payment to selling
Beneficial Owners of MOPPRS, may be modified to the extent required by DTC or,
if the book-entry system is no longer available for the MOPPRS at the time of
the remarketing, to the extent required to facilitate the tender and remarketing
of MOPPRS in certificated form. In addition, the Remarketing Dealer may, in
accordance with the terms and conditions of the Indenture and without the
consent of Holders or Beneficial Owners of the MOPPRS, modify the tender and
settlement procedures set forth above in order to facilitate the tender and
settlement process.
As long as DTC's nominee holds the certificates representing any MOPPRS in
the book-entry system of DTC, no certificates for such MOPPRS will be delivered
by any selling Beneficial Owner to reflect any transfer of such MOPPRS effected
in the remarketing.
(c) Notwithstanding any provision herein to the contrary, upon the
occurrence, at any time after determination of the Interest Rate to Maturity on
the Determination Date and prior to 3:30 p.m., New York City time, on the
Business Day immediately preceding the Remarketing Date, of any event as
specified in Section 11(b) of the Remarketing Agreement, the Remarketing Dealer,
in its sole discretion at any time between the Determination Date and 3:30 p.m,
New York City time, on the Business Day immediately preceding the Remarketing
Date, may elect to purchase the MOPPRS for remarketing and determine a new
Interest Rate to Maturity in the manner provided in Section 3(a) hereof, except
that for purposes of determining the new Interest Rate to Maturity pursuant to
this paragraph, the Determination Date referred to therein shall be the date of
such election and redetermination. The Remarketing Dealer shall notify the
Company, the Trustee and DTC by telephone, confirmed in writing (which may
include facsimile or other electronic transmission), by 4:00 p.m., New York City
time, on the date of such election, of the new Interest Rate to Maturity
applicable to the MOPPRS. Thereupon, such new Interest Rate to Maturity shall
supersede and replace any Interest Rate to Maturity previously determined by the
Remarketing Dealer and, absent manifest error, shall be binding and conclusive
upon the Beneficial Owners and Holders of the MOPPRS on or after the Remarketing
Date, the Company and the Trustee.
4. Repurchase. If (i) the Remarketing Dealer for any reason does not
----------
notify the Company of the Interest Rate to Maturity by 4:00 p.m., New York City
time, on the Determination Date, or (ii) prior to the Remarketing Date, the
Remarketing Dealer has resigned and no successor has been appointed on or before
the Determination Date, or (iii) at any time after the Remarketing Dealer elects
on the Notification Date to remarket the MOPPRS , the Remarketing Dealer
terminates the Remarketing Agreement due to the occurrence of any event as set
forth in Section 8 or Section 11 of the Remarketing Agreement, or (iv) the
Remarketing Dealer elects not to purchase the MOPPRS for remarketing on the
Remarketing Date, or (v) the Remarketing Dealer for any reason does not purchase
all tendered MOPPRS on the Remarketing Date, then, in any such case, the Company
shall repurchase the MOPPRS as a whole on the Remarketing Date at a price equal
to 100% of the principal amount thereof plus all accrued and unpaid interest, if
any, on the MOPPRS to the Remarketing Date. In any such case, payment shall be
made by the Company through the Trustee to the DTC Participant of each tendering
Beneficial Owner of MOPPRS, by book-entry through DTC, no later than the close
of business on the Remarketing Date against delivery through DTC of such
Beneficial Owner's tendered MOPPRS.
5. Redemption. If the Remarketing Dealer elects to remarket the MOPPRS
----------
on the Remarketing Date, then not later than the close of business on the
Business Day immediately preceding the Determination Date, the MOPPRS shall be
subject to redemption at the option of the Company from the Remarketing Dealer,
as a whole but not in part, as set forth in this Section. The Company shall
notify the Remarketing Dealer and the Trustee, not later than the close of
business on the Business Day immediately
8
<PAGE>
preceding the Determination Date, as to whether the Company irrevocably elects
to exercise its right to redeem the MOPPRS, in whole but not in part, from the
Remarketing Dealer on the Remarketing Date at the Optional Redemption Price. If
the Company so elects, it shall redeem the MOPPRS by payment to the Remarketing
Dealer as provided in the Remarketing Agreement. If the Company fails to elect,
or elects not, to redeem the MOPPRS pursuant to this Section 5, the Remarketing
Dealer will determine the Interest Rate to Maturity on the Determination Date as
provided in Section 3(a) hereof.
The "Optional Redemption Price" shall be the greater of (i) 100% of the
principal amount of the MOPPRS and (ii) the Dollar Price, plus, in either case,
accrued and unpaid interest from the Remarketing Date on the principal amount
being redeemed to the date of redemption.
6. Effect of Events of Default. If an Event of Default (as defined in
---------------------------
the Indenture) with respect to MOPPRS should occur and be continuing, the
principal amount of the MOPPRS and interest accrued thereon may, by written
notice to the Company, be declared due and payable by the Trustee or the Holders
of not less than 25% in principal amount of all outstanding MOPPRS. Such
declaration of acceleration may, if all payments due have been made and all
Events of Default have been remedied or waived, be rescinded by the Holders of a
majority in principal amount of all outstanding MOPPRS. Any Event of Default
may be waived by the Holders of a majority in principal amount of all
outstanding MOPPRS, except that default in payment of the principal, premium, or
interest on any MOPPRS, or in respect of a covenant under the Indenture which
cannot be modified absent the consent of the Holders of each outstanding MOPPRS,
cannot be waived.
As provided in and subject to the provisions of the Indenture, the Holder
of this MOPPRS shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless: (i) such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
MOPPRS; (ii) the Holders of not less than 25% in principal amount of the MOPPRS
at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered
the Trustee reasonable indemnity; (iii) the Trustee shall not have received from
the Holders of a majority in principal amount of the MOPPRS at the time
Outstanding a direction inconsistent with such request; and (iv) the Trustee
shall have failed to institute any such proceeding, for 60 days after receipt of
such notice, request and offer of indemnity. The foregoing shall not apply to
any suit instituted by the Holder of this MOPPRS for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
7. Defeasance. Notwithstanding any provision to the contrary in the
----------
Indenture or otherwise, prior to the Remarketing Date, neither the Company nor
any of its subsidiaries or affiliates shall defease, purchase or otherwise
acquire, or enter into any agreement to defease, purchase or otherwise acquire,
any of the MOPPRS prior to the remarketing thereof by the Remarketing Dealer.
8. Maintenance in Book-Entry Form. Notwithstanding any provision to the
------------------------------
contrary set forth in the Indenture, the Company (i) shall use its best efforts
to maintain the MOPPRS in book-entry form with DTC or any successor thereto and
appoint a successor depositary to the extent necessary to maintain the MOPPRS in
book-entry form, and (ii) waives any discretionary right it otherwise has under
the Indenture to cause the MOPPRS to be issued in certificated form.
9. Amendment and Modification. The tender and settlement procedures may
--------------------------
be modified as provided in Section 3(b) above. The Indenture contains
provisions permitting the Company and the Trustee, with the written consent of
Holders of a majority in principal amount of the MOPPRS, to enter
9
<PAGE>
into a supplemental indenture to add any provisions to or to change or eliminate
any provisions of the Indenture or of any supplemental indenture or to modify,
in each case in any manner not covered by provisions in the Indenture relating
to amendments and modifications without the consent of Holders, the rights of
such Holders. However, without the consent of each Holder affected thereby, an
amendment or modification may not: (a) change the Stated Maturity Date or any
Interest Payment Date or the redemption price; (b) reduce the principal amount
of, or the interest on, any MOPPRS or reduce the amount of principal which could
be declared due and payable prior to the Stated Maturity Date; (c) change the
place or currency of any payment of principal or interest on any MOPPRS (except
as otherwise provided in the Indenture); (d) impair the right to institute suit
for the enforcement of any payment on or with respect to any MOPPRS; (e) reduce
the percentage in principal amount of MOPPRS, the consent of whose Holders is
required to modify or amend the Indenture; or (f) modify the foregoing
requirements or reduce the percentage in principal amount of MOPPRS necessary to
waive any past default to less than a majority. Except with respect to certain
fundamental provisions, the Holders of at least a majority in principal amount
of MOPPRS may, with respect to the MOPPRS, waive past defaults under the
Indenture and waive compliance by the Company with certain provisions of the
Indenture. The Indenture also contains provisions permitting the Company and the
Trustee to effect certain modifications and amendments without the consent of
the Holders to cure ambiguities, correct inconsistencies and make other changes,
provided such modifications and amendments do not adversely affect the interest
of the Holders in any material respect.
10. Obligation of Company. No reference herein to the Indenture and no
---------------------
provision of this MOPPRS or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this MOPPRS in the manner at the
place, at the respective times, at the rate and in the coin or currency herein
prescribed.
11. Tax Treatment. Each Holder and Beneficial Owner of this MOPPRS or any
interest therein prior to remarketing on the Remarketing Date, by its purchase
of this MOPPRS or any interest therein, agrees to treat this MOPPRS as maturing
on the Remarketing Date for United States federal income tax purposes.
12. Transfer and Exchange. As provided in the Indenture and subject to
---------------------
certain limitations therein and herein set forth (including without limitation
the restrictions on transfer under the Indenture in the event this MOPPRS is a
global Security as evidenced by the legend first set forth above and provided in
the Indenture), the transfer of this MOPPRS is registrable in the Security
Register of the Company upon surrender of this MOPPRS for registration of
transfer at the office or agency of the Security Registrar in The City of New
York, New York designated for such purpose, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new MOPPRS, of authorized
denominations and for the same aggregate principal amount and otherwise bearing
identical terms and provisions, will be issued to the designated transferee or
transferees.
As provided in the Indenture and subject to certain limitations therein and
herein set forth (including without limitation the restrictions on transfer
under the Indenture in the event this MOPPRS is a global Security as evidenced
by the legend first set forth above and provided in the Indenture), this MOPPRS
is exchangeable for a like aggregate principal amount of MOPPRS of different
authorized denominations but otherwise having the same terms and conditions, as
requested by the Holder hereof surrendering the same at the office or agency of
the Security Registrar in the City of New York, New York designated for such
purpose.
10
<PAGE>
No service charge shall be made for any such registration or transfer or
exchange of MOPPRS, but the Company or the Security Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto. Initially, the Trustee will act as Security
Registrar and the office at which this MOPPRS must be surrendered for
registration of transfer or exchange is currently the corporate trust department
of the Trustee at 666 Fifth Street, 8th Floor, New York, New York 10101.
Prior to due presentment of this MOPPRS for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
person in whose name this MOPPRS is registered as the owner thereof for all
purposes, whether or not this MOPPRS be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
13. No Liability of Certain Persons. No recourse under or upon any
-------------------------------
obligation, covenant or agreement of the Company in the Indenture or any
indenture supplemental thereto or in any Security, or because of the creation of
any indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present, or future, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance hereof and as part of the consideration for the issue hereof.
This MOPPRS is unsecured and ranks pari passu with all other unsecured and
---- -----
unsubordinated indebtedness of the Company.
THIS MOPPRS AND THE INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES.
11
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this MOPPRS, shall be construed as through they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-- Custodian
------------------- -----------------------
(Cust) (Minor)
under Uniform Gifts to Minors Act
----------------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
----------------------------------------
12
<PAGE>
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------
- --------------------------------------------------------------------
(Please print or typewrite name and address
including postal zip code of assignee)
This MOPPRS and all rights thereunder, hereby irrevocably constituting and
appointing_________________attorney-in-fact to transfer this MOPPRS on the books
of the Company, with full power of substitution in the premises.
Dated:
---------------------- -----------------------------------------------
Signature
NOTICE: The signature on this Assignment must
correspond with the name as written upon the
face of this MOPPRS in every particular,
without alteration or enlargement or any
change whatever.
13
<PAGE>
Exhibit 5
---------
[COMDISCO LETTERHEAD]
July 22, 1998
The Board of Directors of
Comdisco, Inc.
6111 North River Road
Rosemont, Illinois 60018
Re: Issuance of $275,000,000 in 6.13% MandatOry Par Put Remarketed
--------------------------------------------------------------
Securities(SM) Due August 1, 2006 of Comdisco, Inc.
-------------------------------------------------
Ladies and Gentlemen:
Reference is made to the form of the Registration Statement on Form S-3 (File
No. 333-29813) filed with the Securities and Exchange Commission (the
"Commission") on June 23, 1997 (the "Registration Statement") by Comdisco, Inc.,
a Delaware corporation (the "Company"), under the Securities Act of 1933, as
amended (the "Act"), and declared effective July 8, 1997, relating to
$1,200,000,000 in aggregate principal amount of Debt Securities of the Company
(the "Debt Securities") and Common Stock as may be issuable from time to time
upon conversion or exchange or Debt Securities to the extent such Debt
Securities are, by their terms, convertible or exchangeable for Debt Securities
pursuant to Rule 415 under the Act for issuance from time to time. This opinion
is being furnished to you for filing on a Current Report on Form 8-K which will
be incorporated by reference as a supplemental exhibit to the Registration
Statement.
I am familiar with the proceedings taken and proposed to be taken by the
Company in connection with the proposed authorization, issue and sale of
$275,000,000 in aggregate principal amount of 6.13% MandatOry Par Put Remarketed
Securities(SM) ("MOPPRS(SM)") Due August 1, 2006 to be offered by the Company as
Debt Securities under the Registration Statement and I have examined the
originals, or copies, certified or otherwise identified, of corporate records of
the Company, certificates of public officials and the representatives of the
Company, statutes and other documents and instruments, as the basis for the
opinion hereinafter expressed. I have also examined the form of Indenture
between the Company and Yasuda Bank and Trust Company (U.S.A.), as Trustee,
under which the MOPPRS are to be issued (the "Indenture") and the form of
Underwriting Agreement and related Terms Agreement by and among the Company, and
certain Underwriters pursuant to which the MOPPRS will be distributed
(collectively, the "Underwriting Agreement") the forms of each of which have
been filed as exhibits to the Registration Statement, and a related Remarketing
Agreement. I am also familiar with the form of Prospectus Supplement and
Prospectus relating to the MOPPRS and their offering by the Company, each dated
July 22, 1998 and to be filed with the Commission on or about July 24,
<PAGE>
Comdisco, Inc.
July 22, 1998
Page 2
1998. I am also familiar with the proposed opinion of legal counsel qualified to
practice in New York concerning the validity, legality and binding effect of the
MOPPRS under New York law, upon which I will rely in delivering my opinion
pursuant to the Underwriting Agreement and upon which opinion I am relying in
connection with this opinion.
Based upon the foregoing examination, and in reliance thereon, I am of the
opinion that, subject to the terms of the MOPPRS being otherwise in compliance
with applicable law, the MOPPRS, when duly authorized, executed, authenticated
and delivered in the form contemplated by the Indenture and in accordance with
the terms of the applicable resolutions of the Board of Directors of the
Company, and any legally required consents, approvals, authorizations and other
orders of the Commission or any other judicial or regulatory authorities
required to be obtained, against payment therefor as described in the
Registration Statement, will be legally issued and will be binding obligations
of the Company, entitled to the benefits of Indenture.
The foregoing opinion is subject to (i) any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and (ii) with respect to the enforceability of any agreement to general
principles of equity (regardless of whether such enforceability is considered in
an action at law or in equity).
I am qualified to practice law in the State of Illinois and do not purport to
be an expert on, or to express any opinion herein concerning any law other than
the laws of the State of Illinois, the corporation laws of the State of
Delaware, and the federal laws of the United States. Without limiting the
generality of the foregoing, I express no opinion as to the effect of the law of
any jurisdiction other than the State of Illinois or the corporate law of
Delaware.
I hereby consent to the filing of this opinion as an exhibit to the Company's
Current Report on Form 8-K to be incorporated by reference into the Registration
Statement.
Very truly yours,
/s/ Jeremiah M. Fitzgerald
--------------------------
Jeremiah M. Fitzgerald
Vice President and
General Counsel
