<PAGE>
As filed with the Securities and Exchange Commission on September 24, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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Comdisco, Inc.
(Exact name of registrant as specified in its charter)
Delaware 36-2687938
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
6111 North River Road PHILIP A. HEWES, Esq.
Rosemont, Illinois 60018 Senior Vice President/Legal and
(847) 698-3000 Secretary
(Address, including zip code, and Comdisco, Inc.
telephone number, including area 6111 North River Road
code, of registrant's principal Rosemont, Illinois 60018
executive offices) (847) 698-3000
(Name, address, including zip code,
and telephone number, including area
code, of agent for service)
Copies to:
LOLA M. HALE, Esq. ROBERT J. DONATUCCI, Esq.
MICHAEL J. BOLAND, Esq. Brown & Wood LLP
McBride Baker & Coles One World Trade Center
500 West Madison Street, 40th Floor New York, New York 10048-0557
Chicago, Illinois 60661
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of the Registration Statement, as determined
by the Registrant.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
maximum Proposed
Title of each class of Amount aggregate maximum Amount of
securities to be price aggregate registration
to be registered registered per unit(1) offering price(2) fee
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<S> <C> <C> <C> <C>
Debt Securities (3).... $1,500,000,000(4) 100% $1,500,000,000(4) $417,000.00
Common Stock, par value
$0.10 per share (5)...
</TABLE>
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(1) To be determined from time to time by the Registrant in connection with
the issuance by the Registrant of the securities registered hereunder.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act of 1933.
(3) Subject to note (4) below, there is being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold, from
time to time, or as may be issuable upon exercise or conversion of Debt
Securities registered hereunder. For Debt Securities issued with an
original issue discount, the amount to be registered is calculated as the
original accreted value of such Debt Securities.
(4) In no event will the aggregate offering price of all securities issued
from time to time pursuant to this Registration Statement exceed
$1,500,000,000 (exclusive of accrued interest, if any) or the equivalent
thereof in one or more foreign currencies, foreign currency units or
composite currencies. No separate consideration will be received for Debt
Securities or Common Stock issued upon conversion or exchange of Debt
Securities registered hereunder.
(5) Subject to note (4) above, there is being registered an indeterminate
number of shares of Common Stock as may from time to time be issuable upon
the conversion or exchange of Debt Securities registered hereunder.
Includes the preferred stock purchase rights associated with the Common
Stock which will be issued for no additional consideration.
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The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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<PAGE>
SUBJECT TO COMPLETION, DATED SEPTEMBER 24, 1999
PROSPECTUS
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[LOGO OF COMDISCO INC.]
COMDISCO, INC.
6111 N. River Road
Rosemont, Illinois 60018
(847) 698-3000
We will provide the specific terms
of each series or issue of debt
securities we issue in supplements
$1,500,000,000 to this prospectus. You should read
this prospectus and the supplements
carefully before you invest.
Debt Securities
We may offer the securities directly or through underwriters, agents or
dealers. The prospectus supplement will designate the terms of that plan of
distribution. "Plan of Distribution" below also provides more information on
this topic.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these debt securities or determined
if this prospectus or any accompanying prospectus supplement or pricing
supplement is truthful or complete. Any representation to the contrary is a
criminal offense.
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
September , 1999
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
About This Prospectus..................................................... 1
Where You Can Find More Information....................................... 1
The Company............................................................... 2
Recent Developments....................................................... 2
Ratio of Earnings to Fixed Charges........................................ 3
Use of Proceeds........................................................... 3
Forward-Looking Statements................................................ 3
Description of the Debt Securities........................................ 4
Description of Our Common Stock........................................... 11
Delaware General Corporation Law and Our Certificate of Incorporation and
Bylaws................................................................... 14
Plan of Distribution...................................................... 16
Legal Opinions............................................................ 17
Experts................................................................... 17
</TABLE>
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission utilizing a "shelf" registration
process. Under this shelf process, we may, from time to time sell the
combination of the debt securities described in this prospectus in one or more
offerings up to a total dollar amount of $1,500,000,000.
This prospectus provides you with a general description of the securities
we may offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add, update or change information
contained in this prospectus.
You should read this prospectus and any prospectus supplement together
with additional information described under the next heading WHERE YOU CAN FIND
MORE INFORMATION.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to you at our web site
at http://www.comdisco.com and the SEC's web site at http://www.sec.gov. You
may also read and copy any document we file at the SEC's public reference rooms
in Washington, D.C., New York, New York and Chicago, Illinois. Please call the
SEC at 1-800-SEC-0330 for further information on the public reference rooms.
You can also inspect reports and other information we file at the offices of
the New York Stock Exchange at 20 Broad Street, New York, New York 10005.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until this offering has been completed.
. Annual Report on Form 10-K for the year ended September 30, 1998
and an amendment to that form filed on Form 10-K/A on April 29,
1999;
. Quarterly Reports on Form 10-Q for the quarters ended December 31,
1998, March 31, 1999 and June 30, 1999;
. Current Reports on Form 8-K filed with the SEC on January 15, 1999,
January 20, 1999, January 27, 1999, April 16, 1999, April 23, 1999,
September 1, 1999 and September 23, 1999; and
. The descriptions of the Common Stock and related Common Stock
Purchase Rights included in the registration statements filed under
the Exchange Act under File No. 1-7725, including all amendments or
reports filed for the purpose of updating such description.
You may request a copy of these filings at no cost, by writing or calling
us at the following address:
Comdisco, Inc.
6111 N. River Road
Rosemont, IL 60018
(847) 698-3000
Attention: Corporate Secretary
You should rely only on the information incorporated by reference or
provided in this prospectus, any prospectus supplement or any pricing
supplement. We have not authorized anyone else to provide you with different
information. We are not making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted. You should not assume
that the information in this
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prospectus, any prospectus supplement or any pricing supplement is accurate as
of any date other than the date on the front of those documents.
THE COMPANY
We are a technology services company. Our purpose as a technology
services company is to discover options that enable our customers to maximize
the business benefits of technology, while reducing technology cost and risk.
These services include:
. asset management;
. continuity;
. network; and
. equipment leasing and remarketing.
We design our services to provide integrated, long-term, cost effective
asset and technological planning, as well as data and voice availability and
recovery, to users of high technology equipment. We operate in one industry
segment, business services.
We provide our customers with available technical, financial and recovery
alternatives, regardless of hardware platform or manufacturer. We work with our
customers to develop strategies governing:
. when to acquire equipment;
. how to track equipment;
. when to upgrade existing equipment; and
. when to order new equipment to take advantage of current
technology.
We also provide continuity services for customers' data, voice and
network systems. We can also act as an outlet for equipment being displaced.
Our business is diversified by customer, customer type, equipment
segments, geographic location of our customers and maturity of our lease
receivables. Our customers include "Fortune 1000" corporations or companies of
a similar size as well as smaller organizations. We do not depend on any single
customer or on any single source for the purchasing, selling or leasing of
equipment, or in connection with our services.
Our executive offices are located in the Chicago area, at 6111 North
River Road, Rosemont, Illinois 60018, telephone number (847) 698-3000. Our
website is located at http://www.comdisco.com. At September 30, 1998 we had
approximately 2,800 full-time employees.
RECENT DEVELOPMENTS
The industry in which we operate is evolving, and our business is
becoming more service oriented, with the business driven by our service
capabilities. Accordingly, on March 24, 1999, we announced a major shift in
corporate strategy to realign our focus on technology services, which include
continuity, network, lifecycle management services and the communication
services of our newly-acquired subsidiary Prism Communication Services, Inc.,
and on global leasing businesses in historically high-margin areas such as
electronics, communications, medical, laboratory and scientific and venture
leasing. As part of our realignment, we also committed to shed low-margin
businesses, including our mainframe leasing portfolio and medical refurbishing
business.
In conjunction with our repositioning, we recorded a one-time pre-tax
charge of $150 million, $96 million after tax, or approximately $0.63 per
share, in the quarter ended March 31, 1999. The components of this pretax
charge include $100 million associated with our exit from the mainframe
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residual leasing business, $20 million to exit the medical refurbishing
business and $30 million associated with a realignment of our service
businesses. We concluded the sales of our mainframe computer leasing portfolio
and medical refurbishing business in the fiscal quarter ended June 30, 1999.
We finalized the acquisition of Prism during the quarter ended March 31,
1999. Prism is building out a high-speed, always-on digital network, which will
provide customers with leading-edge connectivity. Prism markets its services to
enterprise customers that want to provide their employees with high-speed
remote access to their Local Area Network to improve employee productivity and
reduce operating costs, and to consumer end users. Prism's services are
provided over standard copper telephone lines at speeds significantly faster
than the speed available through a 56.6 Kilobits per second modem. Prism
introduced its services in the New York City area in January 1999.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Nine months
ended
June 30, 1999 Fiscal year ended September 30,
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1998 1997 1996 1995 1994
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<S> <C> <C> <C> <C> <C>
1.11 1.71 1.67 1.64 1.55 1.29
</TABLE>
These computations include us and our subsidiaries, and companies in
which we own 50% or less equity. For these ratios, "earnings" is determined by
adding "total fixed charges" (excluding interest capitalized), income taxes,
minority common stockholders equity in net income and amortization of interest
capitalized to income from continuing operations after eliminating equity in
undistributed earnings and adding back losses of companies in which we own at
least 20% but less than 50% equity. For this purpose, "total fixed charges"
consists of (1) interest on all indebtedness and amortization of debt discount
and expense, and (2) an interest factor attributable to rentals.
USE OF PROCEEDS
Unless we tell you otherwise in a prospectus supplement, we, or our
affiliates, will use the net proceeds from the sale of the debt securities for
general corporate purposes. General corporate purposes may include repayment of
debt, equipment acquisitions, additions to working capital and capital
expenditures. If we do not use the net proceeds immediately, we temporarily
invest them in short-term interest-bearing obligations. For current information
on our commercial paper balances and average interest rates, see our most
recent Form 10-K and 10-Q or the prospectus supplement. See WHERE YOU CAN FIND
MORE INFORMATION in this prospectus.
FORWARD-LOOKING STATEMENTS
Some of the statements contained in this prospectus, any prospectus
supplements and any pricing supplements, including information incorporated by
reference, discuss future expectations, contain projections of results of
operation or financial condition or state other forward-looking information.
These statements are "forward-looking statements" within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended, and we intend that such forward-
looking statements have the benefits of the safe harbors created by those Acts.
The words and phrases "looking ahead," "we are confident," "should be," "will
be," "predicted," "believe," "expect," "anticipate" and similar expressions
identify forward-looking statements.
These forward-looking statements reflect our current views with respect
to future events and financial performance, but are subject to many
uncertainties and assumptions relating to our operations and business
environment which may cause our actual results to be materially different from
any future results expressed or implied by such forward-looking statements.
Some of these uncertainties and assumptions are discussed in our most recent
Form 10-Q.
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DESCRIPTION OF THE DEBT SECURITIES
The Securities We May Offer
We may offer unsecured senior or subordinated debt securities in an
aggregate principal amount of up to $1,500,000,000. A prospectus supplement
will describe the specific amounts, prices and terms of any securities we
offer.
We also may issue convertible subordinated debt securities that pay no
interest or below-market interest at a substantial discount from their stated
principal amount. We will refer to these securities as zero-coupon convertibles
here and in any prospectus supplement or pricing supplement.
Issuance of Debt Securities under the Indentures
We will issue debt securities in one or more series under one or more
separate indentures between us and a U.S. banking institution, as trustee. We
will issue senior debt securities, subordinated debt securities and zero-coupon
convertibles under separate indentures, which we will refer to as senior
indentures, subordinated indentures, and zero-coupon indentures.
We have summarized selected provisions of the Indentures below. You
should read the indentures for the full texts of provisions that may be
important to you.
We will initially issue senior debt securities under a senior indenture
dated as of September 15, 1999, between us and SunTrust Bank, Atlanta, as
senior trustee (the "SunTrust Senior Indenture"). The SunTrust Senior Indenture
is included as an exhibit to the registration statement that we filed with the
SEC. We will file the forms of any other indentures with the SEC at the time we
use them. Capitalized terms used in the summary have the meanings specified in
the indentures.
Terms
We will describe specific terms relating to any new series of debt
securities in a prospectus supplement or pricing supplement. These terms will
include the following:
. title of the series and whether they are senior debt securities,
subordinated debt securities or zero-coupon convertibles;
. any limit on the total principal amount of the series;
. the price or prices at which we will sell the debt securities;
. maturity date or dates;
. the per annum interest rate or rates, if any, on the series and the
date or dates from which any such interest will accrue;
. whether the amount of payments of principal of (and premium, if
any) or interest on the debt securities may be determined with
reference to any index, formula or other method, such as one or
more currencies, commodities, equity indices or other indices, and
the manner of determining the amount of such payments;
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. the dates on which we will pay interest on the debt securities and
the regular record date for determining who is entitled to the
interest payable on any interest payment date;
. the place or places where the principal of (and premium, if any)
and interest on the debt securities will be payable;
. any redemption dates, prices, obligations and restrictions;
. any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the series;
. the denominations in which the debt securities will be issued, if
other than $1,000 and integral multiples of $1,000;
. the currency, currencies or currency unit in which we will pay the
principal of (and premium, if any) or interest, if any, on the debt
securities, if not United States dollars;
. provisions, if any, granting special rights to holders of the debt
securities upon the occurrence of specified events;
. any deletions from, modifications of or additions to the events of
default or our covenants with respect to the applicable series of
debt securities, and whether or not such events of default or
covenants are consistent with those contained in the indenture;
. any trustees, authenticating or paying agents, transfer agents or
registrars or other agents with respect to the debt securities;
. any conversion or exchange features;
. any special tax implications of the series; and
. any other terms of the series.
None of the indentures will limit the amount of debt securities that we
may issue. We may issue debt securities under each indenture up to the
principal amount that we are authorized to issue by our Board of Directors from
time to time.
Senior debt securities will rank equally with all of our other senior and
unsubordinated debt. Subordinated debt securities will have a junior position
to all of our senior debt as described below under the heading "Subordination"
on page 13.
We may sell debt securities at a discount below their stated principal
amount, bearing no interest or interest at a rate which at the time of issuance
is below market rates. We may also sell debt securities that are convertible
into or exchangeable for our common stock. If we issue these kinds of debt
securities, we will provide you with additional information in a prospectus
supplement or pricing supplement.
When we refer here and in any prospectus supplement or pricing supplement
to the principal of and premium, if any, and interest, if any, on debt
securities, we also mean to include mention of the payment of additional
amounts, if any, which we are required to pay under the indenture or the debt
securities in respect of certain taxes, assessments or other governmental
charges imposed on the holders of those debt securities.
Form, Transfer and Exchange
We will normally denominate debt securities, and pay principal, interest
and any premium, in U.S. dollars. If we denominate debt securities, or pay the
principal of, premium or any interest on any
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series of debt securities, in foreign currencies or foreign currency units, we
will provide you with further information about those debt securities in a
prospectus supplement or pricing supplement.
We will normally issue the debt securities in book-entry only form. This
means that one or more permanent global certificates registered in the name of
The Depository Trust Company, New York, New York, or its nominee, will
represent the debt securities.
Alternatively, we may issue the debt securities in (1) certificated form
registered in the name of the holder of the debt securities, or (2) in bearer
form, with or without coupons attached. If we issue debt securities in
registered or bearer form, holders will receive certificates representing the
debt securities. We will normally issue debt securities in registered form only
in increments of $1,000 and debt securities in bearer form only in increments
of $5,000. Debt securities in bearer form are subject to other limitations that
we will describe in any prospectus supplement.
You can transfer or exchange debt securities in registered form without
charge except for reimbursement of taxes, if any. If we issue a series of debt
securities in both bearer and registered form, you may exchange bearer form for
registered form in a similar manner. You can transfer or exchange debt
securities at the corporate trust office of the appropriate trustee or at any
other office or agency maintained by us for such purposes that we identify in
any prospectus supplement.
Payment
We will pay principal, interest and any premium on debt securities in
book-entry only form as provided under the heading "Book-Entry Procedures" in
this prospectus.
We will pay principal, interest and any premium on debt securities issued
solely in registered form at the New York, New York corporate trust office of
the appropriate trustee, or at any other office or agency maintained by us for
such purposes that we identify in any prospectus supplement. We also may, at
our option, pay interest on debt securities issued in registered form (1) by
check mailed to the person in whose name the debt securities are registered on
days specified in the indentures or any prospectus supplement or (2) by wire
transfer to that person's U.S. account.
We will make payments on debt securities in other forms at a place
designated by us and specified in any prospectus supplement.
If we authorize any other person to make payments on debt securities for
us, we will identify them in a prospectus supplement.
Events of Default
Unless we tell you otherwise in a prospectus supplement, an event of
default under the indenture will occur if:
. we fail to pay the principal or any premium on any debt security
when due;
. we fail to deposit any sinking fund payment when due;
. we fail to pay interest or any additional amounts on any debt
security for 30 days;
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. we fail to perform any other covenant in the indenture that
continues for 60 days after we have been given written notice of
such failure;
. any of our debt (other than any debt securities issued under the
indenture or non-recourse indebtedness) in principal amount more
than 5% of our consolidated worth is accelerated and such event is
not rescinded before a judgment is obtained; or
. certain events in bankruptcy, insolvency or reorganization occur.
An event of default for a particular series of debt securities does not
necessarily constitute an event of default for any other series of debt
securities issued under an indenture. The trustee may withhold notice to the
holders of debt securities of any default (except in the payment of principal
or interest) if it considers such action to be in the best interests of the
holders.
If an event of default for any series of debt securities occurs and
continues, the trustee, or the holders of at least 25% in aggregate principal
amount of the debt securities of the series, may declare the entire principal
of all the debt securities of that series to be due and payable immediately.
If this happens, subject to certain conditions, the holders of a majority of
the aggregate principal amount of the debt securities of that series can void
the declaration of acceleration.
Other than its duties in case of a default, a trustee has no obligation
to exercise any of its rights or powers under an indenture at the request,
order or direction of any holders, unless the holders offer the trustee
reasonable indemnity. If they provide this reasonable indemnification, the
holders of a majority in principal amount of any series of debt securities may
direct the time, method and place of conducting any proceeding or any remedy
available to the trustee, or exercising any power conferred upon the trustee,
for any series of debt securities.
Covenants
Under each indenture, we will:
. pay the principal, interest and any premium on the debt securities
when due;
. maintain a place of payment;
. deliver a report to the trustee at the end of each fiscal year
reviewing our obligations under the indenture; and
. deposit sufficient funds with any paying agent on or before the due
date for any principal, interest or any premium.
No indenture will limit our ability to incur additional debt, unless we
tell you this in a prospectus supplement.
Book-Entry Procedures
The following discussion pertains to debt securities that we issue in
book-entry only form.
We will issue one or more global securities, currently limited in
individual amount to $200 million, representing the debt securities issued to
The Depositary Trust Company ("DTC") or its nominee, Cede & Co. DTC will keep
a computerized record of its participants (for example, your broker) whose
clients have purchased the debt securities. The participant, in turn, keeps a
record of its clients who purchased the debt securities. A global security may
not be transferred, except that DTC, its nominees and their successors may
transfer an entire global security to one another.
If we use book-entry procedures, we will not deliver securities in
certificated form to individual purchasers of the debt securities, and no
person holding a beneficial interest in a global security will be treated as a
holder for any purpose under the indenture. Accordingly, holders of beneficial
interests must
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rely on the procedures of DTC and the participant through which that person
owns its interest in order to exercise any rights of a holder under that global
security or the indenture. Beneficial interests in global securities will be
shown on, and transfers of global securities will be made only through, records
maintained by DTC and its participants. In some cases, the laws of some
jurisdictions require that purchasers of securities take physical delivery of
those securities in certificated form. These limits and laws may impair the
ability to transfer beneficial interests in a global security.
DTC has provided us with the following information: DTC is a limited-
purpose trust company organized under the New York Banking Law, a "banking
organization" within the meaning of the New York Banking Law, a member of the
United States Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered under Section 17A of the Securities Exchange Act of 1934. DTC holds
securities that its participants deposit with DTC. DTC also facilitates the
settlement among its participants of securities transactions, such as transfers
and pledges, in deposited securities through computerized records for its
participants' accounts. This eliminates the need to exchange certificates.
DTC's participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations.
Other organizations such as securities brokers and dealers, banks and
trust companies that work through DTC's participants, also use DTC's book-entry
system. The rules that apply to DTC and its participants are on file with the
SEC.
A number of DTC's participants, together with the New York Stock
Exchange, Inc., The American Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc., own DTC.
We will wire principal and interest payments to DTC's nominee. We and the
trustee will treat DTC's nominee as the owner of the global securities for all
purposes. Accordingly, we and the trustee will have no direct responsibility or
liability to pay amounts due on the securities to owners of beneficial
interests in the global securities.
It is DTC's current practice, when it receives any payment of principal
or interest, to credit its participants' accounts on the payment date according
to their respective holdings of beneficial interests in the global securities
as shown on DTC's records. In addition, it is DTC's current practice to use an
omnibus proxy assign any rights to consent or vote to the participant whose
account is credited with securities on a record date. Customary practices
between the participants and owners of beneficial interests, as is the case
with securities held for the account of customers registered in "street name,"
will govern payments by participants to owners of beneficial interests in the
global securities, and voting by participants. However, these payments will be
the responsibility of the participants and not of DTC, the trustee, or us.
Debt securities represented by a global security will be exchangeable for
debt securities in registered form with the same terms in authorized
denominations only if:
. DTC notifies us that it is unwilling or unable to continue as
depository or if DTC ceases to be a clearing agency registered
under applicable law and we do not appoint a successor depository
within 90 days; or
. we instruct the trustee that the global security is now
exchangeable.
If applicable, redemption notices shall be sent to Cede & Co. If less
than all of the book-entry securities of like tenor and terms are being
redeemed, DTC's practice is to determine by lot the amount of the interest of
each of its participant in such issue to be redeemed.
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In order to elect to have us repay book-entry securities, a beneficial
owner must notify the trustee, through its participant, and cause the
participant to transfer the participant's interest in the global security or
securities representing those book-entry securities, on DTC's records, to the
trustee. The requirement for physical delivery of book-entry securities in
connection with a demand for repayment will be deemed satisfied when the
ownership rights in the global security or securities representing such book-
entry securities transferred by Direct Participants on the DTC's records.
Management of DTC is aware that some computer applications, systems and
the like for processing data ("Systems") that are dependent upon calendar
dates, including dates before, on, and after January 1, 2000, may encounter
"Year 2000 problems." DTC has informed participants and other members of the
financial community (the "Industry") that it has developed and is implementing
a program so that its Systems, as the same relate to the timely payment of
distributions (including principal and interest payments) to securityholders,
book-entry deliveries, and settlement of trades within DTC, continue to
function appropriately. This program includes a technical assessment and a
remediation plan, each of which is complete. Additionally, DTC's plan includes
a testing phase, which is expected to be completed within appropriate time
frames.
However, DTC's ability to perform properly its services is also dependent
upon other parties, including, but not limited to, issuers and their agents, as
well as DTC's participants, third party vendors from whom DTC licenses software
and hardware, and third party vendors on whom DTC relies for information or the
provision of services, including telecommunication and electrical utility
service providers, among others. DTC has informed the Industry that it is
contacting (and will continue to contact) third party vendors from whom DTC
acquires services to: (1) impress upon them the importance of such services
being Year 2000 compliant; and (2) determine the extent of their efforts for
Year 2000 remediation (and, as appropriate, testing) of their services. In
addition, DTC is in the process of developing such contingency plans as it
deems appropriate.
According to DTC, the information in the preceding two paragraphs with
respect to DTC has been provided to the Industry for informational purposes
only and is not intended to serve as a representation, warranty, or contract
modification of any kind.
DTC may discontinue providing its services as securities depository with
respect to book-entry securities at any time by giving reasonable notice to us
or the trustee. Under such circumstances, in the event that a successor
securities depository is not obtained, securities in certificated form are
required to be printed and delivered.
We may decide to discontinue use of the system of book-entry transfers
through DTC (or a successor securities depository). In that event, securities
in certificated form will be printed and delivered.
The information in this section concerning DTC and its systems has been
obtained from sources that we believe to be reliable, but we take no
responsibility for the accuracy thereof.
Subordination
Payment of the principal, interest and any premium on subordinated debt
securities will, when stated in a subordinated indenture and applicable
prospectus supplement, be subordinated and junior in right of payment to the
prior payment in full of all Senior Indebtedness. Under the indenture, "Senior
Indebtedness" means all notes or other unsecured evidences of our indebtedness,
whether outstanding on the date of the indenture or created, assumed or
incurred at a later date, for money we borrow (including all indebtedness of
any other person for money borrowed which we guarantee) not expressed to be
subordinate or junior in right of payment to any other or our indebtedness.
9
<PAGE>
Each subordinated indenture will provide that we may not pay principal,
interest and any premium on the subordinated debt securities in the event:
. of any insolvency, bankruptcy or similar proceeding involving us or
our property; or
. we fail to pay the principal, interest, any premium or any other
amounts on any Senior Indebtedness when due.
In such event, any payment or distribution under the subordinated debt
securities, whether in cash, securities or other property, which would
otherwise (but for the subordination provisions) be payable or deliverable in
respect of the subordinated debt securities, will be paid or delivered directly
to the holders of Senior Indebtedness in accordance with the priorities then
existing among such holders until all Senior Indebtedness has been paid in
full. If any payment or distribution under the subordinated debt securities is
received by any holder of any subordinated debt securities in contravention of
any of the terms of the indenture and before all the Senior Indebtedness has
been paid in full, such payment or distribution or security will be received in
trust for the benefit of, and paid over or delivered and transferred to, the
holders of the Senior Indebtedness at the time outstanding in accordance with
the priorities then existing among such holders for application to the payment
of all Senior Indebtedness remaining unpaid to the extent necessary to pay all
such Senior Indebtedness in full.
As of June 30, 1999, we had approximately $4.3 billion of Senior
Indebtedness outstanding. Subordinated indentures will not limit the amount of
Senior Indebtedness that we may incur.
Redemption Provisions, Sinking Fund and Defeasance
We may redeem some or all of the debt securities at our option subject to
the conditions stated in the prospectus supplement relating to that series of
debt securities. If a series of debt securities is subject to a sinking fund,
the prospectus supplement will describe those terms.
The indenture permits us to discharge or "defease" certain of our
obligations on any series of debt securities at any time. We may defease a
certain series of debt securities by depositing with the Trustee sufficient
cash or government securities to pay all sums due on that series of debt
securities.
Consolidation, Merger or Sale
We may not merge with another company or sell or transfer all or
substantially all of our property to another company unless:
. we are the continuing corporation; or
. the successor corporation or purchaser is a corporation organized
under the laws of the United States, any state within the United
States, or the District of Columbia which expressly assumes:
--payment of principal, interest and any premium on the debt
securities; and
--performance and observance of all covenants and conditions in the
indenture;
and in either case, immediately after the transaction, no event of
default and no event which, if notice was given and/or a certain period of time
passed, would become an event of default, shall exist.
If we are not the continuing corporation, we will have no further
liabilities or obligations under any indenture or the debt securities.
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<PAGE>
Changes to the Indenture
Holders who own more than 50% in principal amount of the outstanding debt
securities of each series affected can agree to change the indenture. However,
no change can affect your principal or interest payment terms, or the
percentage required to change other terms of the indenture, without your
consent, as well as the consent of others similarly affected. In addition, no
supplemental indenture may directly or indirectly modify the indenture in any
manner which might alter the subordination of the outstanding debt securities.
We may enter into supplemental indentures for other specified purposes
which would not materially adversely affect your interests, including the
creation of any new series of debt securities, without the consent of any
holder of debt securities.
Concerning the Initial Senior Trustee
SunTrust Bank, Atlanta serves as trustee under the SunTrust Senior
Indenture. Its principal office is located at 25 Park Place, Atlanta, Georgia.
We lease equipment to SunTrust Bank, Atlanta and provide it with business
continuity services. We also have commercial banking relationships with
SunTrust Bank, Atlanta and certain of its affiliates.
DESCRIPTION OF OUR COMMON STOCK
The following is a summary description of our common stock and related
preferred stock purchase rights. You should read our restated certificate of
incorporation, bylaws and rights agreement which created the preferred stock
purchase rights for the full text of provisions which may be important to you.
Each of these documents is included as an exhibit to the registration
statement.
General
On June 30, 1999, we had 850,000,000 shares of authorized capital stock,
consisting of:
. 100,000,000 shares of preferred stock, none of which were outstanding;
and
. 750,000,000 shares of common stock, $0.10 par value, 153,139,853 of
which were issued and outstanding.
Listing
We list our common stock on the New York Stock Exchange and the Chicago
Stock Exchange under the symbol "CDO". We will also list any additional common
stock we issue on these exchanges.
Dividends
Common stockholders may receive dividends when declared by the Board of
Directors. We may pay dividends in cash, stock or other form.
Fully Paid
All outstanding shares of common stock are fully paid and non-assessable.
Any additional common stock we issue will also be fully paid and non-
assessable.
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<PAGE>
Voting Rights
Each share of common stock has one vote in the election of directors and
other matters. Common stockholders have no preemptive or cumulative voting
rights.
Other Rights
We will notify common stockholders of any stockholders' meetings
according to applicable law. If we liquidate, dissolve or wind-up our business,
either voluntarily or not, common stockholders will share equally in the assets
remaining after we pay our creditors and preferred stockholders, if any.
Transfer Agents and Registrars
We, along with ChaseMellon Stockholder Services, are transfer agent and
registrar for the common stock. You may contact us at the address listed on
page 3. ChaseMellon Stockholder Services is located in Ridgefield, New Jersey.
Preferred Stock Purchase Rights
On November 4, 1997, our Board of Directors declared a dividend of one
preferred stock purchase right for each outstanding share of our common stock
payable to holders of record as of the close of business on November 17, 1997.
Shares of common stock issued after November 17, 1997 and before the
Distribution Date defined below have, or will have, a right attached. A Rights
Agreement dated as of November 4, 1997 with ChaseMellon Stockholder Services,
L.L.C., of New York, as rights agent, contains the terms and conditions of the
rights. We filed a copy of the Rights Agreement with the SEC. We have listed
the rights on the New York Stock Exchange.
A Distribution Date will occur upon the earliest of:
. 10 days after a public announcement that a person or group has
become an Acquiring Person; or
. 10 business days (or a later date if determined by the Board of
Directors) after the date a person or group makes a tender or
exchange offer that, if completed, would result in that person or
group being the beneficial owner of 15% or more of our outstanding
common stock; or
. 10 business days after the Board of Directors declares a person to
be an Adverse Person.
An Acquiring Person generally is a person or group which beneficially
owns 15% or more of our outstanding common stock. An Acquiring Person does not
include any person or group that beneficially owned 20% or more of our
outstanding common stock on November 17, 1997, until that holder acquires
beneficial ownership of 30% or more of the outstanding common stock. An Adverse
Person is a person or group (1) which beneficially owns 10% or more of our
outstanding common stock and (2) which the Board of Directors has determined
has interests adverse to ours based on requirements set out in the Rights
Agreement.
Before the Distribution Date:
. common stock certificates will evidence the rights;
. rights will transfer with the common stock;
. registered holders of the common stock will be deemed to hold the
associated rights; and
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<PAGE>
. rights are not exercisable.
After the Distribution Date:
. the rights agent will mail separate certificates evidencing the
rights to each record holder of our common stock as of the close of
business on the Distribution Date;
. each right will be exercisable to purchase one one-thousandth of a
share of Series C Junior Participating Preferred Stock for the
stated purchase price of $75;
. rights will be transferable separately from the common stock; and
. unless directed by our Board of Directors, we will only issue
rights with shares of common stock issued:
--on exercise of stock options or as awards under employee benefit
plans granted as of the Distribution Date; or
--on conversion of securities issued after November 17, 1997.
If any person becomes an Acquiring Person or an Adverse Person, each
right (other than rights beneficially owned by the Acquiring Person or Adverse
Person and certain affiliated persons) will entitle the holder to purchase, for
the stated purchase price, a number of shares of common stock having a market
value of twice the stated purchase price.
If, after any person has become an Acquiring Person or an Adverse Person,
(1) we enter into a merger or other business combination in which we are not
the surviving company or our common stock is exchanged for other securities or
assets, or (2) we sell or otherwise transfers assets or earning power
aggregating more than 50% of our consolidated assets or earning power, then
each right (other than rights beneficially owned by the Acquiring Person or
Adverse Person and certain affiliated persons) will entitle the holder to
purchase, for the stated purchase price, a number of shares of common stock of
the other party to such business combination or sale (or in certain
circumstances, an affiliate) having a market value of twice the stated purchase
price.
At any time after any person has become an Acquiring Person or an Adverse
Person, our Board of Directors may exchange all or part of the rights (other
than rights beneficially owned by an Acquiring Person or Adverse Person and
certain affiliated persons) for shares of common stock at an exchange ratio of
one share of common stock per right.
Our Board of Directors may redeem all of the rights at a price of $.005
per right at any time prior to the close of business on the 15th day after the
public announcement of the existence of an Acquiring Person.
The rights have certain antitakeover effects. The rights will cause
substantial dilution to a person or group that attempts to acquire us without
conditioning the offer on a substantial number of rights being acquired.
Accordingly, the existence of the rights may deter certain acquirors from
making takeover proposals or tender offers. However, the rights are not
intended to prevent a takeover. Rather, they are designed to enhance the
ability of our Board of Directors to negotiate with an acquiror on behalf of
all stockholders. In addition, the rights should not interfere with a proxy
contest.
The rights will expire on November 17, 2007, unless earlier exchanged or
redeemed.
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<PAGE>
DELAWARE GENERAL CORPORATION LAW AND OUR
CERTIFICATE OF INCORPORATION AND BYLAWS
General
We are a Delaware corporation subject to the Delaware General Corporation
Law (the "Delaware Law"). Provisions of Delaware Law, in addition to provisions
of our restated certificate of incorporation and bylaws, address corporate
governance issues, including the rights of our stockholders. Some of these
provisions could hinder management changes while others could have an anti-
takeover effect.
We have summarized the key provisions below. You should read the full
text of the provisions of our certificate of incorporation and bylaws and
Delaware Law which may be important to you.
Business Combinations
Delaware Law and our certificate of incorporation generally require that
at least 50% of our outstanding common stock vote to approve any merger, share
exchange or sale of substantially all of our assets.
Under Delaware Law, we generally may not engage in a business combination
with any stockholder that beneficially owns, together with affiliates and
associates, 15% or more of our outstanding common stock (for these purposes an
"interested stockholder") for three years after the interested stockholder
becomes an interested stockholder. This prohibition does not apply if :
. our Board of Directors approves the business combination or the
transaction that results in the stockholder becoming an interested
stockholder before the stockholder becomes an interested
stockholder;
. the interested stockholder owns at least 85% of our outstanding
common stock, other than common stock held by our employee
directors or employee stock plans, upon completion of the
transaction by which the stockholder becomes an interested
stockholder; or
. our Board of Directors and 66 2/3% of our outstanding common stock
not owned by the interested stockholder vote to approve the
business combination.
Our certificate of incorporation requires that at least 66 2/3% of our
outstanding common stock not owned by a "substantial stockholder" vote to
approve certain business combinations and certain other transactions with a
substantial stockholder unless certain minimum price and procedural
requirements are met. A substantial stockholder is defined as any person or
entity that acquires at least 10% of our outstanding common stock, excluding
any member of the Board of Directors as of September 30, 1985, or any of our
employee benefit plans. Such super-majority approval is not required if:
. the business combination is solely between us and another
corporation in which we own 50% or more stock and a substantial
stockholder owns none, or
. all following conditions are satisfied:
(1)holders of common stock receive consideration with a cash or fair market
value not less than the higher of
--the highest per share price paid by such substantial stockholder in
acquiring any common stock, or
--the highest per share market price of our common stock during the
three-month period before the date of the proxy statement described
in clause (3) below or, if none, the six-month period before the
business combination is consummated;
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<PAGE>
(2)after becoming a substantial stockholder and before the business
combination is consummated
--such substantial stockholder has not acquired any newly issued
shares of capital stock from us except proportionately as a
stockholder or upon compliance with our certificate of
incorporation; and
--such substantial stockholder has not received the benefit (except
proportionately as a stockholder) of any loans or other financial
assistance provided by us, or made any major change in our equity
capital structure; and
(3)if such proposal otherwise requires stockholder approval, a proxy
statement meeting the requirements of the Exchange Act shall be mailed to
our stockholders for the purpose of soliciting stockholder approval of such
business combination.
Board Of Directors
Members of our Board of Directors serve staggered three year terms. This
means we elect only one-third of our directors in each year.
Stockholder Proposals And Director Nominations
Our stockholders can submit stockholder proposals and nominate candidates
for the Board of Directors if the stockholders follow advance notice procedures
described in our bylaws.
To nominate directors, stockholders must submit a written notice to our
corporate secretary not less than 120 days nor more than 150 days before the
first anniversary of the date of the mailing of the proxy statement for our
last annual meeting. The notice must include the name and address of the
stockholder and of the nominee, a description of any arrangements between the
stockholder and the nominee, information about the nominee required by the SEC,
the written consent of the nominee to serve as a director and other
information.
Stockholders must submit proposals to our corporate secretary not less
than 120 days and more than 150 days before the first anniversary of the date
of the mailing of the proxy statement for our last annual meeting. The notice
must include:
. a description of the proposal;
. the reasons for presenting the proposal at the annual meeting;
. the text of any resolutions to be presented;
. the stockholder's name and address and number of shares held; and
. any material interest of the stockholder in the proposal.
We may reject director nominations and stockholder proposals that are
late or do not include all required information. This could prevent
stockholders from bringing certain matters before an annual or special meeting,
including making nominations for directors.
Meetings of Stockholders
Our certificate of incorporation and bylaws do not permit our
stockholders to call a special meeting, regardless of the percentage of voting
stock they hold. This provision could have the effect of delaying until the
next annual stockholders' meeting stockholder actions that holders of a
majority of our common stock favor.
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<PAGE>
Indemnification of Directors
We indemnify our officers and directors to the fullest extent permitted
under Delaware Law against all liabilities incurred in connection with their
service to us.
Limitation of Liability of Directors
Our certificate of incorporation provides that our directors will not be
personally liable for monetary damages to us for breaches of their fiduciary
duty as directors, unless they:
. violated their duty of loyalty to us or our stockholders;
. acted in bad faith;
. knowingly or intentionally violated the law;
. authorized illegal dividends or redemptions; or
. derived an improper personal benefit from their action as
directors.
This provision applies only to claims against directors arising out of
their role as directors and not in any other capacity (such as an officer or
employee). Directors remain liable for violations of the federal securities
laws and we retain the right to pursue legal remedies other than monetary
damages, such as an injunction or rescission for breach of the director's duty
of care.
PLAN OF DISTRIBUTION
We may sell any series of debt securities:
. through underwriters or dealers;
. through agents; or
. directly to one or more purchasers.
The prospectus supplement will include:
. the initial public offering price;
. the names of any underwriters, dealers or agents;
. the purchase price of the debt securities;
. our proceeds from the sale of the debt securities;
. any underwriting discounts or agency fees and other underwriters'
or agents' compensation; and
. any discounts or concessions allowed or reallowed or paid to
dealers.
If we use underwriters in the sale, they will buy the debt securities for
their own account. The underwriters may then resell the debt securities in one
or more transactions at a fixed public offering price or at varying prices
determined at the time of sale.
The obligations of the underwriters to purchase the debt securities will
be subject to certain conditions. The underwriters will be obligated to
purchase all the debt securities offered if they purchase any debt securities.
Any initial public offering price and any discounts or concessions allowed or
re-allowed or paid to dealers may be changed from time to time.
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<PAGE>
If we use agents in the sale, they will use their reasonable best
efforts to solicit purchases for the period of their appointment.
If we sell directly to you no underwriters or agents would be involved.
Underwriters, dealers and agents that participate in the distribution of
the debt securities may be underwriters as defined in the Securities Act. Any
discounts or commissions that we pay them and any profit they receive when
they resell the debt securities may be treated as underwriting discounts and
commissions under the Securities Act. We may enter into agreements with
underwriters, dealers and agents to indemnify them against certain civil
liabilities, including liabilities under the Securities Act, or to contribute
with respect to payments that they may be required to make, and to reimburse
those persons for expenses.
To facilitate a debt securities offering, any underwriter may engage in
over-allotment, stabilizing transactions, short covering transactions and
penalty bids in accordance with Regulation M under the Exchange Act.
. over-allotment involves sales in excess of the offering size, which
creates a short position
. stabilizing transactions permit bids to purchase the underlying
security so long as the stabilizing bids do not exceed a specified
maximum
. short covering transactions involve purchases of the securities in
the open market after the distribution is completed to cover short
positions
. penalty bids permit the underwriters to reclaim a selling
concession from a dealer when the securities originally sold by the
dealer are purchased in a covering transaction to cover short
positions
Those activities may cause the price of the securities to be higher than
it would otherwise be. If commenced, the underwriters may discontinue those
activities at any time.
We are not making an offer of debt securities in any state that does not
permit such an offer.
Underwriters, dealers and agents may be our customers or may engage in
transactions with us or perform services for us in the ordinary course of
business.
LEGAL OPINIONS
Jeremiah M. Fitzgerald, Esq., our Vice President and General Counsel, or
another of our lawyers, will issue an opinion about the legality of the
securities for us. Mr. Fitzgerald owns 74,082 shares of our common stock and
holds options granted under our stock option plans to purchase an additional
134,108 shares of common stock. We expect Brown & Wood llp, New York, New York
to advise any underwriters, agents and dealers.
EXPERTS
KPMG LLP, independent certified public accountants, audited and reported
on our financial statements and schedules incorporated by reference in this
prospectus and elsewhere in the registration statement. We have incorporated
these documents by reference in reliance upon the authority of KPMG LLP as
experts in accounting and auditing in giving the report.
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- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$1,500,000,000
[LOGO OF COMDISCO]
Debt Securities
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the expenses we will pay in connection with
the distribution of the securities being registered (all dollar amounts are
estimated other than the amount of the SEC registration fee).
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee........... $417,000.00
Printing...................................................... 100,000.00
Auditors' fees................................................ 50,000.00
Legal fees and expenses....................................... 120,000.00
Blue sky fees................................................. 15,000.00
Trustee fees and expenses..................................... 35,000.00
Rating Agency fee............................................. 150,000.00
Miscellaneous expenses........................................ 3,000.00
-----------
Total..................................................... $890,000.00
===========
</TABLE>
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware (the
"Delaware Law") empowers a Delaware corporation to indemnify any persons who
are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
such corporation), by reason of the fact that such person was an officer or
director of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation or
enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding,
provided that such officer or director acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the corporation's best
interests, and, for criminal proceedings, had no reasonable cause to believe
his or her conduct was illegal. A Delaware corporation may indemnify officers
and directors against expenses (including attorneys' fees) in connection with
the defense or settlement of an action by or in the right of the corporation
under the same conditions, except that no indemnification is permitted without
judicial approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him or her against the expenses which such officer or director
actually and reasonably incurred.
In accordance with the Delaware Law, our restated certificate of
incorporation contains a provision to limit the personal liability of the
directors of Comdisco for violations of their fiduciary duty. This provision
eliminates each director's liability to Comdisco or its stockholders for
monetary damages except (i) for any breach of the director's duty of loyalty to
Comdisco or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware Law providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions, or
(iv) for any transaction from which a director derived an improper personal
benefit. The effect of this provision is to eliminate the personal liability of
directors for monetary damages for actions involving a breach of their
fiduciary duty of care, including any such actions involving gross negligence.
Pursuant to most of Comdisco's employee benefit plans, including, without
limitation, its long-term incentive plans and stock option plans, directors,
officers and employees of Comdisco are indemnified
II-1
<PAGE>
against all loss, cost, liability or expense resulting from any claim, action,
suit or proceeding in which such persons are involved by reason of any action
taken or failure to act under such plans.
Pursuant to underwriting agreements filed as exhibits to registration
statements relating to underwritten offerings of securities issued or
guaranteed by Comdisco, the underwriters have agreed to indemnify Comdisco,
each officer and director of Comdisco and each person, if any, who controls
Comdisco within the meaning of the Securities Act of 1933, against certain
liabilities, including liabilities under said Act.
Comdisco is insured for liabilities it may incur pursuant to its restated
certificate of incorporation relating to the indemnification of its directors,
officers and employees. In addition, directors, officers and certain key
employees are insured against certain losses which may arise out of their
employment and which are not recoverable under the indemnification provisions
of Comdisco's restated certificate of incorporation.
Item 16. List of Exhibits.
<TABLE>
<CAPTION>
Page
Numbers
of Exhibits
Exhibit Filed
Number Exhibit Herewith
------- ------- -----------
<C> <S> <C>
1.1 --Form of underwriting agreement for senior debt
securities
1.2 --Form of distribution agreement for senior debt
securities
4.1 --Form of Senior Debt Indenture dated as of September
15, 1999 between the Registrant and SunTrust Bank,
Atlanta. The form or forms of senior debt securities
with respect to each particular offering will be filed
as an exhibit to a Current Report on Form 8-K and
incorporated herein by reference.
5 --Opinion of Jeremiah M. Fitzgerald, Esq., Vice
President and General Counsel of the Registrant, as to
the legality of the securities registered hereunder.
12 --Statement Regarding Computation of Ratios
(incorporated by reference to Exhibit 12 to the
Registrant's Quarterly Report on Form 10-Q for the
quarter ended
June 30, 1999)
23.1 --Consent of KPMG LLP
23.2 --Consent of Jeremiah M. Fitzgerald is contained in the
opinion filed as Exhibit 5 to this Registration
Statement
24 --Powers of Attorney of Directors and Officers of the
Registrant are included on signature page
25 --Statement of Eligibility on Form T-1 of SunTrust Bank,
Atlanta.
</TABLE>
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(a) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(b) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which,
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<PAGE>
individually or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission pursuant
to Rule 424(b) promulgated under the Securities Act if, in the
aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration
Statement.
(c) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement, or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (1)(a) and (1)(b) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), that are incorporated by reference
in the Registration Statement;
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering; and
(4) that, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described above in Item 15, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, Comdisco, Inc., certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Village of Rosemont, State of
Illinois, on September 21, 1999.
COMDISCO, INC.
/s/ Nicholas K. Pontikes
By_________________________________
Nicholas K. Pontikes, President
POWER OF ATTORNEY AND SIGNATURES
Each person whose signature appears below constitutes and appoints
Nicholas K. Pontikes, John J. Vosicky and William N. Pontikes, and each of
them, each with full power to act without the others, such person's true and
lawful attorney-in-fact and agent, each with full power of substitution and
resubstitution, in such person's name and on such person's behalf, in any and
all capacities, to sign any and all amendments to this Registration Statement,
including any post-effective amendments, and to sign any related registration
statement, and any and all amendments to such registration statement, filed
pursuant to Rule 462(b) of the Securities Act of 1933, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission. Each of the undersigned ratifies and
confirms all that any of the attorneys or agents shall do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Nicholas K. Pontikes
- ------------------------------------
(Nicholas K. Pontikes) President, Chief
Executive Officer and
Director (Principal
Executive Officer)
/s/ John J. Vosicky
- ------------------------------------
(John J. Vosicky) Executive Vice September 21, 1999
President, Chief
Financial Officer and
Director (Principal
Financial Officer)
/s/ David J. Keenan
- ------------------------------------
(David J. Keenan) Senior Vice President
and Controller
(Principal Accounting
Officer)
/ s/ Robert A. Bardagy
- ------------------------------------
(Robert A. Bardagy) Director
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ C. Keith Hartley
- ------------------------------------
(C. Keith Hartley) Director
/s/ Harry M. Jansen Kraemer, Jr.
- ------------------------------------
(Harry M. Jansen Kraemer, Jr.) Director
/s/ Carolyn L. Murphy
- ------------------------------------
(Carolyn L. Murphy) Director
/s/ Thomas H. Patrick September 21, 1999
- ------------------------------------
(Thomas H. Patrick) Director
/s/ William N. Pontikes
- ------------------------------------
(William N. Pontikes) Director
/s/ Rick Kash
- ------------------------------------
(Rick Kash) Director
/s/ Philip A. Hewes
- ------------------------------------
(Philip A. Hewes) Director
</TABLE>
II-5
<PAGE>
COMDISCO, INC. Exhibit 1.1
(a Delaware corporation) Form of Underwriting Agreement
------------------------------
Senior Debt Securities
UNDERWRITING AGREEMENT
----------------------
____________, 1999
[NAMES AND ADDRESSES OF NAMED UNDERWRITERS]
[NAMES AND ADDRESSES OF NAMED UNDERWRITERS]
[NAMES AND ADDRESSES OF NAMED UNDERWRITERS]
[NAMES AND ADDRESSES OF NAMED UNDERWRITERS]
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 _______________, 1999 (the "Indenture"), between
---------
the Company and ___________________, 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 one or more of 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, one or more of 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.
The Terms Agreement, which shall be substantially in the form of Exhibit A
---------
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
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
<PAGE>
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. _________), 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
------------------------------
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
-----------------------------------
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
------------
subsidiary" as defined in Rule 405 of Regulation C of the 1933 Act
Regulations.
(iii) Registration Statement and Prospectus. At the time the
-------------------------------------
Registration Statement became effective, the Registration Statement
complied, and as of the applicable Representation Date will comply, in all
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
2
<PAGE>
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 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
-----------
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 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 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 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 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.
3
<PAGE>
(ix) Legal Proceedings; Contracts. Except as may be set forth in 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 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 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 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
--------------------------------------------
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 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.
(b) Additional Certifications. Any certificate signed by any officer of
-------------------------
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
-----------------
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.
4
<PAGE>
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 of ficial
-------------
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.
---------
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 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
------------------------
you, and with each Underwriter participating in the applicable offering of
Securities, as follows:
(a) Prospectus Supplements. Immediately following the execution of each
----------------------
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
5
<PAGE>
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
------------------------
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 and (vi) if the rating assigned
by any nationally recognized securities rating agency to any debt securities or
other obligations of the Company has been lowered since the date of the
applicable Terms Agreement 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. 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
----------------------------------
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 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 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
6
<PAGE>
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 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, 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
7
<PAGE>
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", insofar as they purport to
summarize 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.
8
<PAGE>
(x) At the time the Registration Statement became effective,
the Registration Statement (other than the financial statements
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 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.
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.
9
<PAGE>
(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
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 or the Chief
Executive Officer 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 l 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 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 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
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<PAGE>
(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 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.
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
11
<PAGE>
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;
(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.
12
<PAGE>
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).
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
13
<PAGE>
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
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
14
<PAGE>
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
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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 Sates person
(as hereinafter defined), other than a financial institution (as
hereinafter defined), any Securities in bearer form (whether temporary or
definitive). As 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:
15
<PAGE>
"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: [NAMES AND ADDRESSES OF
CONTACTS]; 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 ______________, 1999 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:_________________________________
Edward A. Pacewicz
Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the dated first above written:
[SIGNATURES OF NAMED UNDERWRITERS] [SIGNATURES OF NAMED UNDERWRITERS]
By:________________________________ By:_________________________________
Its: Authorized Signatory Its: Authorized Signatory
[SIGNATURES OF NAMED UNDERWRITERS] [SIGNATURES OF NAMED UNDERWRITERS]
By:________________________________ By:_________________________________
Its: Authorized Signatory Its: Authorized Signatory
[SIGNATURES OF NAMED UNDERWRITERS] [SIGNATURES OF NAMED UNDERWRITERS]
By:________________________________ By:_________________________________
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 ________, 1999
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]
[SIGNATURES OF NAMED UNDERWRITERS] [SIGNATURES OF NAMED UNDERWRITERS]
By:______________________________ By:_______________________________
Its: Authorized Signatory Its: Authorized Signatory
[SIGNATURES OF NAMED UNDERWRITERS] [SIGNATURES OF NAMED UNDERWRITERS]
By:______________________________ By:_______________________________
Its: Authorized Signatory Its: Authorized Signatory
[SIGNATURES OF NAMED UNDERWRITERS] [SIGNATURES OF NAMED UNDERWRITERS]
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
Form of Distribution Agreement
COMDISCO, INC.
Medium-Term Notes, Series ___
DISTRIBUTION AGREEMENT
______________, 1999
[NAMES AND ADDRESSES OF NAMED AGENTS]
[NAMES AND ADDRESSES OF NAMED AGENTS]
[NAMES AND ADDRESSES OF NAMED AGENTS]
Ladies and Gentlemen:
Comdisco, Inc., a Delaware corporation (the "Company") confirms its agreement
-------
with each of you (each an "Agent"; collectively, the "Agents") with respect to
----- ------
the issue and sale by the Company of its Medium-Term Notes, Series H (the
"Notes"). The Notes are to be issued pursuant to an indenture (the "Indenture")
---------
dated as of December 15, 1998, between the Company and The Fuji Bank and Trust
Company, as trustee (the "Trustee"). As of the date hereof, the Company has
-------
authorized the issuance of up to $600,000,000 aggregate principal amount of
Notes, which may be distributed through the Agents pursuant to the terms of this
Agreement. It is understood, however, that the Company may from time to time
authorize the issuance of additional notes and that such notes may be
distributed through the Agents pursuant to the terms of this Agreement, or
through one or more other agents pursuant to the terms of a separate agreement,
all as though the issuance of such notes was authorized as of the date hereof.
The Notes 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 (a
---------------
"Certificated Note"), as selected by the purchaser and agreed to by the Company
-----------------
and specified in the applicable pricing supplement. 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. The Notes shall be issued in
the currency or currency unit (the "Specified Currency") and shall have the
------------------
maturity ranges, annual interest rate (whether fixed or floating), redemption
provisions, repayment provisions and other terms set forth in the Prospectus
referred to below as it may be supplemented from time to time, including any
pricing supplement (the "Pricing Supplement").
------------------
Subject to the terms and conditions stated herein and subject to the
reservation by the Company of the right to sell Notes directly to investors on
its own behalf or through other agents, dealers or underwriters substantially on
the same terms and conditions provided herein (including, but not limited to the
commission schedule set forth as Exhibit B hereto), the Company hereby (i)
agrees that whenever the Company determines to sell Notes directly to any of the
Agents as principal for resale to others, it will enter into a Terms Agreement
(as hereinafter defined) relating to such sale in accordance with the provisions
of Section 2(a) hereof, and (ii) appoints the Agents as its agents to solicit
orders for, and to sell, all or part of the Notes during a period beginning on
the date hereof and ending when the Notes have been sold, or such other time as
the Company may specify to you in writing. Each Agent will use all reasonable
efforts to assist the Company in obtaining performance by each purchaser whose
offer to purchase Notes from the Company has been solicited by such Agent as
agent and accepted by the Company, but such Agent shall not have any liability
to the Company in the event any such purchase is not consummated for any reason.
<PAGE>
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. _________) relating
-----------
to the Notes and the offering thereof from time to time in accordance with Rule
415 under the Securities Act of 1933 (the "1933 Act"). Such registration
--------
statement 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 (and any further registration statements which may be
filed by the Company for the purpose of registering additional notes and in
connection with which this Agreement is included or incorporated by reference as
an exhibit) and the prospectus filed pursuant to Rule 424 under the 1933 Act,
including all documents incorporated therein by reference, as from time to time
amended or supplemented by the filing of documents pursuant to the Securities
Exchange Act of 1934 (the "1934 Act"), the 1933 Act or otherwise, are referred
--------
to herein as the "Registration Statement" and the "Prospectus", respectively,
except that if any revised prospectus shall be provided to the Agents by the
Company for use in connection with the offering of the Notes which differs from
the Prospectus on file at the Commission at the time the Registration Statement
became effective (whether or not such revised prospectus is required to be filed
by the Company pursuant to Rule 424(b) of 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
Agents for such use. For purposes of this Agreement, all references to the
Registration Statement, Prospectus 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 warrants to each of the Agents as of the
date hereof (the "Closing Date"), as of the date of each acceptance by the
------------
Company of an offer for the purchase of Notes whether through an Agent as agent
or to an Agent as principal, as of the date of each sale of Notes whether
through an Agent as agent or to an Agent as principal (each such sale to an
Agent as principal being referred to herein as a "Settlement Date"), and as of
---------------
the times referred to in Sections 6(a) and 6(b) hereof (each of the times
referenced above being referred to herein as a "Representation Date"), as
-------------------
follows:
(i) Due Incorporation and Qualification. The Company has been duly
-----------------------------------
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
------------
subsidiary" as defined in Rule 405 of Regulation C of the 1933 Act
Regulations.
(iii) Registration Statement and Prospectus. At the time the
-------------------------------------
Registration Statement became effective, it complied, and as of the
applicable Representation Date will comply, in all 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 Agents by the Company for use in connection with the
offering of the Notes 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 Agents 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
2
<PAGE>
the Company in writing by the Agents 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 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 statements and/or omissions from the
Prospectus made in reliance upon and in conformity with the information
furnished to the Company in writing by you expressly for use in the
Prospectus, as amended or supplemented.
(v) Accountants. To the best of the Company's knowledge, the
-----------
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 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
----------------------------------------
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 in, 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 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 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 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,
3
<PAGE>
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 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 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
license, 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 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 Notes. The Notes 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 Notes 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 Agents; and the Notes
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 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.
(b) Additional Certifications. Any certificate signed by any officer of
-------------------------
the Company and delivered to the Agents or to counsel for the Agents in
connection with an offering of Notes shall be deemed a representation and
warranty by the Company to the Agents as to the matters covered thereby.
SECTION 2. Purchases as Principal; Solicitations as Agent.
----------------------------------------------
(a) Purchases as Principal. Unless otherwise agreed by the Company and the
----------------------
applicable Agent, Notes shall be purchased by such Agent as principal. Such
purchase shall be made in accordance with the terms of this Agreement and a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by such Agent. Each such separate agreement
(which may be an oral agreement and confirmed in writing as described below
between the Agent and the Company) is herein referred to as a "Terms Agreement".
Each such Terms Agreement, whether oral (and confirmed in writing, which may be
by facsimile transmission) or in writing, shall be with respect to such
information (as applicable) as is specified in Exhibit A hereto. Unless
otherwise agreed to between the Company and the Agent in a Terms Agreement, any
Note sold to an Agent (i) shall be purchased by such Agent at a
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price equal to 100% of the principal amount thereof less a percentage equal to
the commission applicable to an agency sale of a Note of identical maturity and
(ii) may be resold by such Agent at varying prices from time to time. In
connection with any resale of Notes purchased, an Agent may use a selling or
dealer group and may reallow any portion of the discount or commission payable
pursuant hereto to dealers or other purchasers.
(b) Solicitations as Agent. On the basis of the representations and
----------------------
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed to by the Company and the applicable Agent, such Agent as an
agent of the Company, will use its reasonable efforts to solicit offers to
purchase the Notes upon the terms and conditions set forth in the Prospectus.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend solicitation of purchases of the Notes commencing at any time
for any period of time or permanently. As soon as practicable, but in any event
not later than one business day after receipt of instructions from the Company,
the Agents will suspend solicitation of offers to purchase Notes from the
Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay each Agent, as consideration for soliciting the
sale of any Notes, a commission in the form of a discount equal to the
applicable percentage of the principal amount of each Note sold by the Company
as a result of a solicitation made by each respective Agent as set forth in
Exhibit B hereto. Except as provided in Section 2(a), without the prior approval
- ---------
of the Company, the Agent may not re-allow any portion of the commission payable
pursuant hereto to dealers or purchasers in connection with the offer and sale
of any Notes.
As agent, each Agent is authorized to solicit orders for the Notes at a
purchase price which shall be agreed upon by the Company and the Agents and set
forth in a supplement to the Prospectus and (except as may be otherwise provided
in an applicable supplement to the Prospectus) only in denominations of $1,000
or any integral multiple thereof. Each Agent shall communicate to the Company,
orally or in writing, each reasonable offer to purchase Notes received by it.
The Company shall have the sole right to accept offers to purchase the Notes and
may reject any such offer in whole or in part. Each Agent shall have the right
to reject, in its discretion reasonably exercised, any offer to purchase the
Notes in whole or in part, and any such rejection shall not be deemed a breach
of the Agent's agreements contained herein.
(c) Administrative Procedures. Administrative procedures respecting the
-------------------------
sale of Notes shall be agreed upon from time to time in writing by the Agents
and the Company (the "Procedures"). The Agents and the Company agree to perform
the respective duties and obligations specifically provided to be performed by
the Agents herein and in the Procedures.
(d) Delivery of Documents. The documents required to be delivered by
---------------------
Section 5 hereof shall be delivered at the office of Brown & Wood LLP, One World
Trade Center, New York, New York 10048 on the date hereof or such other time as
the Agents and the Company may agree in writing.
Any Notes which are purchased by an Agent as principal shall be purchased,
and any Notes the placement of which an Agent arranges, shall be placed by such
Agent, in reliance on the representations and warranties of the Company herein
contained and on to the terms and conditions and in the manner provided herein.
SECTION 3. Covenants of the Company.
------------------------
The Company covenants with each of the Agents as follows:
(a) Notice of Certain Events. The Company will notify each of the Agents
------------------------
immediately (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 the Prospectus, (iv) of
any request by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or
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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 and (vi) if the rating assigned
by any nationally recognized securities rating agency to any debt securities or
other obligations of the Company has been lowered since the date of the
applicable Terms Agreement 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. 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; provided, however, that the Company shall have no such
obligation during any period from the time (i) the Agents shall have suspended
solicitation of offers to purchase Notes in their capacity as agents pursuant to
a request from the Company and (ii) the Agents shall not then hold any Notes as
principal purchased pursuant to a Terms Agreement (or, if the Agents hold Notes
as principal purchased pursuant to a Terms Agreement, the Agents have held such
Notes for more than 90 days), to the time the Company shall determine that
solicitation of purchases of the Notes should be resumed or shall subsequently
enter into a new Terms Agreement with the Agents.
(b) Notice of Certain Proposed Filings. The Company will give the Agents
----------------------------------
notice of its intention to file any additional registration statement with
respect to the registration of additional notes, 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 the Agents in connection with the offering of the
Notes which differs from the prospectus on file at the Commission at the time
the Registration Statement became 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 the Agents 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.
(c) Copies of Registration Statement, Prospectus. The Company will deliver
--------------------------------------------
to the Agents 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 the Agents may reasonably request. The Company
will furnish to the Agents as many copies of the Prospectus (as amended or
supplemented) as the Agents shall reasonably request so long as the Agents are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes. Copies of the Registration Statement, each
amendment hereto, the Prospectus and any amendments or supplements thereto
furnished to the Agents 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.
(d) 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 Notes or an Agent holds any Notes as principal purchased pursuant to a
Terms Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of the Agents' counsel or counsel for
the Company, to further amend or 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 the Agents to cease the solicitation of offers to purchase the
Notes in the Agents' capacity as agents and to cease sales of any Notes an Agent
may then own as principal, 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.
(e) Prospectus Revisions -- Periodic Financial Information. On or prior to
------------------------------------------------------
the date on which there shall be released to the general public interim
financial statement information related to the Company with respect to each of
the first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and shall cause the Prospectus
to be
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amended or supplemented to include or incorporate by reference capsule financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding thereof
or as shall be required by the 1933 Act or the 1933 Act Regulations; provided,
however, that if on the date of such release the Agents shall have suspended
solicitation of offers to purchase Notes in each Agent's capacity as agent
pursuant to a request from the Company, and shall not then hold any Notes as
principal purchased pursuant to a Terms Agreement, the Company shall not be
obligated so to amend or supplement the Prospectus until such time as the
Company shall determine that solicitation of offers to purchase Notes should be
resumed or shall subsequently enter into a Terms Agreement with an Agent.
(f) Prospectus Revisions -- Audited Financial Information. On or prior to
-----------------------------------------------------
the date on which there shall be released to the general public financial
information included in or derived from the audited financial statements of the
Company for the preceding fiscal year, the Company shall cause the Registration
Statement and the Prospectus to be amended, whether by the filing of documents
pursuant to the 1934 Act, the 1933 Act or otherwise, to include or incorporate
by reference such audited financial statements and the report or reports, and
consent or consents to such inclusion or incorporation by reference, of the
independent accountants with respect thereto, as well as such other information
and explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations;
provided, however, that if on the date of such release the Agents shall have
suspended solicitation of offers to purchase Notes in each Agent's capacity as
agent pursuant to a request from the Company, and shall not then hold any Notes
as principal purchased pursuant to a Terms Agreement, the Company shall not be
obligated so to amend or supplement the Prospectus until such time as the
Company shall determine that solicitation of offers to purchase Notes should be
resumed or shall subsequently enter into a Terms Agreement with an Agent.
(g) 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 Notes.
(h) Copies of Financial Reports. The Company will furnish to the Agents,
---------------------------
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.
(i) Blue Sky Qualifications. The Company will endeavor, in cooperation
-----------------------
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may reasonably designate, and will maintain such qualifications in
effect for as long as may be required for the distribution of the Notes; the
Company will file such statements and reports as may be required by the laws of
each jurisdiction in which the Notes 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.
(j) 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.
(k) Stand-Off Agreement. Between the date of any Terms Agreement and the
-------------------
Settlement Date with respect to such Terms Agreement, the Company will not,
without the prior consent of each Agent that is a party to said Terms Agreement,
offer or sell or enter into any agreement to sell, any debt securities of the
Company (other than the Notes which are to be sold pursuant to such Terms
Agreement and commercial paper, tax-exempt securities or other securities (which
contain terms which are not substantially similar to the Notes which are to be
sold pursuant to such Terms Agreement) offered and sold by the Company in the
ordinary course of its business, including, but not limited to,
7
<PAGE>
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. 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 Notes;
(iii) The fees and disbursements of the Company's accountants and of the
Trustee and its counsel;
(iv) The reasonable fee and disbursements of the Agents' counsel;
(v) The qualification of the Notes under securities laws in accordance
with the provisions of Section 3(i), including filing fees and the
reasonable fees and disbursements of the Agents' counsel in connection
therewith and in connection with the preparation of any Blue Sky Survey and
any Legal Investment Survey;
(vi) The printing and delivery to the Agents 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 Agents of the Prospectus and any
amendments or supplements thereto in connection with solicitations or
confirmations of sales of the Notes;
(vii) The printing and delivery to the Agents of copies of the Indenture
and any Blue Sky Survey and any Legal Investment Survey;
(viii) Any fees charged by rating agencies for the rating of the Notes;
(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.
SECTION 5. Conditions of Obligations.
-------------------------
Each Agent's obligations to purchase the Notes as principal and to solicit
offers to purchase the Notes as agent of the Company and the obligation of any
purchaser of Notes sold through an Agent as agent, will be subject at all times
to the accuracy of the representations and warranties on the part of the Company
herein and to the accuracy of the statements of the Company's officers made in
any certificate furnished pursuant to the provisions hereof, to the performance
and observance by the Company of all covenants and agreements herein contained
on its part to be performed and observed and to the following additional
conditions precedent:
(a) Legal Opinions. At the Closing Date and at each Settlement Date with
--------------
respect to any applicable Terms Agreement, if called for by such Terms
Agreement, each Agent shall have received the following documents:
(1) Opinion of Company Counsel. The opinion 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 dated as of such
Closing Date or Settlement Date, in form and substance satisfactory to the
Agents and the Agents' counsel, to the effect that:
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(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
qualification 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, if the opinion is being given pursuant to
Section 6(c) hereof as a result of the Company having entered into a
Terms Agreement requiring such opinion, the applicable Terms Agreement)
has 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 Notes 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 Notes will
be entitled to the benefits of the Indenture.
(vii) The statements in the Prospectus under the caption "Description
of Debt Securities" and in the Prospectus Supplement under the caption
"Description of Notes", insofar as they purport to summarize 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 included or
incorporated by reference therein, as to which no opinion need be
rendered) appeared on its face to comply 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 to 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.
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<PAGE>
(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 Notes, 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, the execution and delivery of this Agreement
(and, if the opinion is being given pursuant to Section 6(c) hereof on
account of the Company having entered into a Terms 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 such counsel need express no
opinion as to any state securities or Blue Sky laws, or any rules or
regulations thereunder; nor will such action result in any violation of
the provisions of the charter or bylaws of the Company.
(xiv) Each document filed pursuant to the 1934 Act and incorporated
by reference in the Prospectus (except for the financial statements
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 rules and regulations
promulgated thereunder.
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 Agents, delivered pursuant to subsection (a)(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 Agents. The opinion of Brown & Wood LLP,
--------------------------------
counsel to the Agents, dated as of such Closing Date or Settlement Date,
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 (a)(1) and (a)(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, then 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, the
Settlement 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.
10
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(b) Officer's Certificate. At the Closing Date and at each Settlement Date
---------------------
with respect to any Terms Agreement, 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 such Terms Agreement, any material
adverse change in, 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
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 Agents shall have received a certificate of
the Chief Executive Officer or the President and the Chief Financial Officer of
the Company at the Closing Date and, if called for by the applicable Terms
Agreement, at each Settlement Date, dated as of the Closing Date or such
Settlement Date, to the effect that (i) there has been no such material adverse
change or material development known to management which is likely to result in
a 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.
(c) Comfort Letter. The Agents shall have received on the date hereof, a
--------------
letter from KPMG LLP, dated as of the date hereof, in form and substance
satisfactory to the Agents, 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 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, the 1933 Act Regulations, the 1934 Act and the 1934 Act
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 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
11
<PAGE>
year, in consolidated revenues or net earnings, except in each case
for increases or 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 Agents, 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.
(d) Other Documents. At the date hereof, at the Closing Date and at each
---------------
Settlement Date with respect to any applicable Terms Agreement, counsel to the
Agents 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 Notes 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 Notes as herein contemplated shall be satisfactory in
form and substance to the Agents and to the Agents' counsel.
(e) Further Conditions. The obligations of each of the Agents to purchase
------------------
Notes pursuant to any Terms Agreement will be subject to the following further
conditions: (i) the rating assigned by any nationally recognized securities
rating agency 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
that date 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, and (ii) there shall not have come to such Agent's
attention any facts that would cause such Agent to believe that the Prospectus,
at the time it was required to be delivered to a purchaser of Notes, 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 Agents by notice
to the Company at any time at or prior to the Closing Date or the applicable
Settlement Date, and such termination shall be without liability of any party to
any other party, except that the covenants set forth in Section 3(g) hereof, the
provisions of Section 4 hereof, the indemnity and contribution agreements set
forth in Sections 7 and 8 hereof, and the provisions of Sections 9 and 13 hereof
shall remain in effect.
SECTION 6. Additional Covenants of the Company.
-----------------------------------
The Company covenants and agrees that:
(a) Reaffirmation of Representations and Warranties. Each acceptance by it
-----------------------------------------------
of an offer for the purchase of Notes, and each sale of Notes to the Agents
pursuant to a Terms Agreement, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this Agreement and in
any certificate theretofore delivered to the Agents pursuant hereto are true and
correct at the time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true and correct at
the time of delivery to the purchaser or his agent, or to the Agents, of the
Notes or Notes relating to such acceptance or sale, as the case may be, as
though made at and as of each such time (and it is understood that such
representations and warranties shall relate to the Registration Statement and
the Prospectus as amended and supplemented to each such time);
(b) Subsequent Delivery of Certificates. Each time that the Registration
-----------------------------------
Statement or the Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change in the interest rates of
Notes or a change in the principal amount of Notes remaining to be sold or
similar changes) or there is filed with the Commission any document incorporated
by reference into the Prospectus or, if so indicated in the applicable Terms
Agreement, the Company sells Notes to the Agents pursuant to a Terms Agreement,
the Company shall furnish or cause to be furnished to the Agents forthwith a
certificate in form satisfactory to the Agents to the effect that the statements
contained in the certificates referred to in Section 5(b) hereof which were last
furnished to the
12
<PAGE>
Agents are true and correct at the time of such amendment or supplement or
filing or sale, as the case may be, as though made at and as of such time
(except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, certificates of the same tenor as the certificates
referred to in said Section 5(b), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificates;
(c) Subsequent Delivery of Legal Opinions. Each time that the Registration
-------------------------------------
an amendment or supplement providing solely for a change in the interest rates
of the Notes or a change in the principal amount of Notes remaining to be sold
or similar changes) or there is filed with the Commission any document
incorporated by reference into the Prospectus (other than any Current Report on
Form 8-K) or, if so indicated in the applicable Terms Agreement, the Company
sells Notes to the Agents pursuant to a Terms Agreement, the Company shall
furnish or cause to be furnished forthwith to the Agents and to the Agents'
counsel a written opinion 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, or other counsel satisfactory to the Agents, dated the
date of delivery of such opinion, in form satisfactory to the Agents, of the
same tenor as the opinion referred to in Section 5(a) hereof but modified, as
necessary, to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion or, in lieu of such
opinion, counsel last furnishing such opinion to the Agents shall furnish the
Agents with a letter to the effect that the Agents may rely on such last opinion
to the same extent as though it was dated the date of such letter authorizing
reliance (except that statements in such last opinion shall be deemed to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such letter authorizing reliance); and
(d) Subsequent Delivery of Comfort Letters. Prior to the initial sale of
--------------------------------------
any of the Notes within any fiscal quarter, the Company shall cause KPMG LLP to
furnish the Agents a letter, dated the date of such initial sale, or the date of
the filing of an amendment, supplement or document including or incorporating by
reference additional financial information in the Registration Statement or the
Prospectus; such letter shall be in form satisfactory to the Agents, of the same
tenor as the portions of the letter referred to in clauses (i) and (ii) of
Section 5(c) hereof but modified to relate to the Registration Statement and
Prospectus, as amended and supplemented to the date of such letter, and of the
same general tenor as the portions of the letter referred to in clauses (iii)
and (iv) of said Section 5(c) with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company; provided, however, that if the Registration
Statement or the Prospectus is amended or supplemented solely to include
financial information as of and for a fiscal quarter, KPMG LLP may limit the
scope of such letter to the unaudited financial statements included in such
amendment or supplement unless any other information included therein of an
accounting, financial, or statistical nature is of such a nature that, in the
Agents' reasonable judgment, such letter should cover such other information.
SECTION 7. Indemnification.
---------------
(a) Indemnification of the Agents. The Company agrees to indemnify and
-----------------------------
hold harmless each of the Agents and each person, if any, who controls any Agent
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 Agent expressly
13
<PAGE>
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 Agent from whom the person asserting any such losses,
claims, damages or liabilities purchased Notes, or any person controlling
such Agent, 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 Agent to such person, if such
delivery is required by law, at or prior to the written confirmation of the
sale of such Notes 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;
(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 the Agents), 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
(except as made in reliance upon and in conformity with information
furnished by the Agents as aforesaid), 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 Agent or who controls an Agent
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) Indemnification of Company. Each Agent severally agrees to indemnify
--------------------------
and hold 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, harmless from and 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 the
Agents expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto).
(c) Tax Indemnity. The Company agrees to indemnify and hold harmless each
-------------
Agent against any documentary stamp or similar issue tax and any related
interest or penalties on the issue or sale of the Notes to the Agents which are
due in the United States of America, the United Kingdom or any other
jurisdiction.
(d) General. 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
14
<PAGE>
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).
SECTION 8. Contribution.
------------
If the indemnification provided for in Section 7 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 each indemnifying party 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 Agent on the other from the offering of the Notes to which such
loss, claim, damage or liability (or action in respect thereof) relates. If,
however, the indemnification provided for in Section 7 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 7(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 Agent 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 Agent on the other shall be
deemed to be in the same proportion as the total net proceeds from the sale of
Notes (before deducting expenses) received by the Company bear to the total
commissions or discounts received by the contributing Agent in respect thereof
(or, in the case of Notes sold pursuant to a Terms Agreement, the aggregate
commissions that would have been received by such Agent if such commissions had
been payable). 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 Agent 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 Agent agree that it would not be just
and equitable if contribution pursuant to this Section 8 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 8. 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 8 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 8, no
Agent shall be required to contribute any amount in excess of the amount by
which the total price at which the Notes purchased by or through such Agent were
sold exceeds the amount of any damages which such Agent 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 Agent 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 Agent, 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 8 for losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this Section 8 shall be paid as
15
<PAGE>
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 9. Indemnifications, Contributions, Representations, Warranties and
----------------------------------------------------------------
Agreements to Survive Delivery.
------------------------------
The indemnification and contribution agreements contained in Sections 7 and
8 and the representations, warranties and agreements contained in this Agreement
or any Terms 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 investigation made by or on behalf of the Agents or any
controlling person, or by or on behalf of the Company, and shall survive each
delivery of and payment of any of the Notes.
SECTION 10. Termination.
-----------
(a) Termination of this Agreement. This Agreement (excluding any Terms
-----------------------------
Agreement) may be terminated for any reason, at any time by either the Company
as to any Agent or one of the Agents (with respect to such Agent), upon the
giving of 3 days written notice of such termination to the other parties hereto.
(b) Termination of a Terms Agreement. Each Agent named in a Terms
--------------------------------
Agreement may terminate such Terms Agreement, immediately upon notice to the
Company, any time at or prior to the Settlement Date relating thereto (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, 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, 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 such Agent's reasonable judgment, impracticable to market the Notes or
enforce contracts for the sale of the Notes, 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, or 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 Notes, or (iv) if
the rating assigned by any nationally recognized securities rating agency to any
debt securities or other obligations of the Company has been lowered since the
date of the applicable Terms Agreement 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, or (v) if there shall have come to such Agent's attention any facts
that would cause the Agent to believe that the Prospectus, at the time it was
required to be delivered to a purchaser of Notes, contained an untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances existing at the time
of such delivery, not misleading.
(c) General. In the event of any such termination, no party will have any
-------
liability to any other party hereto, except that (i) each Agent shall be
entitled to any commissions earned in accordance with the third paragraph of
Section 2(a) hereof, (ii) if at the time of termination (a) either an Agent
shall own any Notes purchased pursuant to a Terms Agreement with the intention
of reselling them or (b) an offer to purchase any of the Notes has been accepted
by the Company but the time of delivery to the purchaser or his agent of the
Note or Notes relating thereto has not occurred, the covenants set forth in
Sections 3 and 6 hereof shall remain in effect until such Notes are so resold or
delivered, as the case may be, and (iii) the covenant set forth in Section 3(g)
hereof, the provisions of Section 4 hereof, the indemnity and contribution
agreements set forth in Sections 7 and 8 hereof, and the provisions of Sections
9 and 13 hereof shall remain in effect.
16
<PAGE>
In the event of termination with respect to any Agent this Agreement shall
remain in full force and effect with respect to any Agent as to which such
termination has not occurred.
SECTION 11. 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 Agents shall be directed to [NAMES AND
ADDRESSES OF CONTACTS]; 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 12. Parties.
-------
This Agreement and any Terms Agreement shall inure to the benefit of and be
binding upon each of the Agents and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement or any Terms Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and officers and directors referred to in Section 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any 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 hereto 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 Notes shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. Governing Law.
-------------
This Agreement and any Terms Agreement and the rights and obligations of
the parties created hereby shall be governed by the laws of the State of New
York applicable to agreements made and to be performed in such state. Any suit,
action or proceeding brought by the Company against the Agents in connection
with, or arising under, this Agreement shall be brought in the state or federal
court of appropriate jurisdiction located in either the Borough of Manhattan,
the City of New York, New York or the City of Chicago, Illinois.
SECTION 14. 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.
17
<PAGE>
[SIGNATURE PAGE FOR __________, 1999 DISTRIBUTION AGREEMENT]
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument along with all counterparts will become a binding agreement between
the Agents and the Company in accordance with its terms.
Very truly yours,
COMDISCO, INC.
By:_____________________________
Its: Authorized Signatory
CONFIRMED AND ACCEPTED, as of the date
first above written:
[SIGNATURE OF NAMED AGENTS] [SIGNATURE OF NAMED AGENTS]
By:______________________________ By:_____________________________
Its: Authorized Signatory Its: Authorized Signatory
[SIGNATURE OF NAMED AGENTS] [SIGNATURE OF NAMED AGENTS]
By:______________________________ By:_____________________________
Its: Authorized Signatory Its: Authorized Signatory
18
<PAGE>
EXHIBIT A
$___,000,000
COMDISCO, INC.
Medium-Term Notes
TERMS AGREEMENT
[DATE]
[NAMES AND ADDRESSES OF NAMED AGENTS]
[NAMES AND ADDRESSES OF NAMED AGENTS]
[NAMES AND ADDRESSES OF NAMED AGENTS]
Attention:_________________
Re: Distribution Agreement dated [DATE]
The undersigned agrees to purchase the following principal amount of
Medium-Term Notes, Series ___:
$______
Specified Currency:
Principal:
Interest:
Aggregate principal amount U. S. $ other
Price to Public:
Provisions relating to redemption, if any:
Provisions relating to repayment, if any:
IF FIXED RATE NOTES:
Interest Rate:
Maturity:
Amortization Schedule:
IF FLOATING RATE NOTES:
Base Rate:
Initial Interest Date:
Interest Determination Date:
Interest Reset Date:
Interest Reset Period:
Record Date:
Interest Payment Dates:
19
<PAGE>
Index Maturity:
Maturity:
Maximum Interest Rate:
Minimum Interest Rate:
Spread:
Spread Multiplier:
Indexed Currency or Currencies (if any):
Settlement Date and Time:
Place of Delivery:
Calculation Agent:
Form of Note (Book Entry or Certificated)
Method of and Specified Funds for Payment of
Purchase Price: By certified or official
bank check or checks, payable to the order of
the Company, in immediately available funds
By wire transfer to a bank account specified
by the Company in next day immediately
available funds
Provisions relating to underwriter default,
if any:
Other termination provisions, if any:
Exceptions, if any, to Section 3(k) of the Distribution Agreement:
20
<PAGE>
[The certificate referred to in Section 6(b) of the Distribution Agreement,
the opinions referred to in Section 6(c) of the Distribution Agreement and the
accountants' letter referred to in Section 6(d) of the Distribution Agreement
will be required.]
[NAMED AGENTS]
[NAMED AGENTS]
[NAMED AGENTS]
[NAMED AGENTS]
By:___________________________________
Title:
Accepted:
COMDISCO, INC.
By:_____________________________
Title:
21
<PAGE>
EXHIBIT B
Commission Schedule for Agency Transactions
-------------------------------------------
Term Commission Rate*
---- ---------------
From 9 months but less than 1 year
From 1 year but less than 18 months
From 18 months but less than 2 years
From 2 years but less than 3 years
From 3 years but less than 4 years
From 4 years but less than 5 years
From 5 years but less than 6 years
From 6 years but less than 7 years
From 7 years but less than 8 years
From 8 years but less than 9 years
From 9 years but less than 10 years
From 10 years to 15 years
*Commission rates for Notes denominated in a foreign currency vary from the
commission rate schedule set forth above, with respect to Notes with the
following maturities:
From 8 years but less than 9 years
From 9 years but less than 10 years
From 10 years to 15 years
Notes sold to an Agent as principal will be sold at a discount negotiated
at the time of sale.
22
<PAGE>
Exhibit 4.1
-----------
=================================================
-------------------------------------------------
COMDISCO, INC.
To
SUNTRUST BANK, ATLANTA
_______________
INDENTURE
_______________
Dated as of September 15, 1999
Senior Debt Securities
-------------------------------------------------
=================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
Parties.................................................. 1
Recitals................................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions................................ 1
Act...................................................... 1
Additional Amounts....................................... 2
Affiliate................................................ 2
Authenticating Agent..................................... 2
Authorized Newspaper..................................... 2
Bearer Security.......................................... 2
Board of Directors....................................... 2
Board Resolution......................................... 2
Business Day............................................. 2
Commission............................................... 2
Company.................................................. 2
Company Request and Company Order........................ 2
Consolidated Assets...................................... 3
Corporate Trust Office................................... 3
Corporation.............................................. 3
Coupon................................................... 3
Defaulted Interest....................................... 3
Depositary............................................... 3
Dollars or $............................................. 3
Event of Default......................................... 3
Holder................................................... 3
Indenture................................................ 3
Interest................................................. 4
Interest Payment Date.................................... 4
Lien..................................................... 4
Maturity................................................. 4
</TABLE>
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<TABLE>
<CAPTION>
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<S> <C>
Officers' Certificate.................................... 4
Opinion of Counsel....................................... 4
Original Issue Discount Security......................... 4
Outstanding.............................................. 4
Paying Agent............................................. 5
Person................................................... 5
Place of Payment......................................... 5
Predecessor Security..................................... 5
Property................................................. 5
Redemption Date.......................................... 5
Redemption Price......................................... 6
Registered Security...................................... 6
Regular Record Date...................................... 6
Responsible Officer...................................... 6
Security or Securities................................... 6
Security Register and Security Registrar................. 6
Special Record Date...................................... 6
Stated Maturity.......................................... 6
Subsidiary............................................... 6
Trustee.................................................. 6
Trust Indenture Act...................................... 7
United States............................................ 7
United States Alien...................................... 7
Vice President........................................... 7
Voting Stock............................................. 7
SECTION 102. Compliance Certificates and Opinions....... 7
SECTION 103. Form of Documents Delivered to Trustee..... 7
SECTION 104. Acts of Holders............................ 8
SECTION 105. Notices, etc., to Trustee and Company...... 10
SECTION 106. Notice to Holders of Securities; Waiver.... 10
SECTION 107. Language of Notices, etc................... 11
SECTION 108. Conflict with Trust Indenture Act.......... 11
SECTION 109. Effect of Headings and Table of Contents... 11
SECTION 110. Successors and Assigns..................... 11
</TABLE>
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<TABLE>
<CAPTION>
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<S> <C>
SECTION 111. Separability Clause......................................................... 11
SECTION 112. Benefits of Indenture....................................................... 11
SECTION 113. Governing Law............................................................... 12
SECTION 114. Legal Holidays.............................................................. 12
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally............................................................. 12
SECTION 202. Form of Trustee's Certificate of Authentication............................. 13
SECTION 203. Securities in Global Form................................................... 13
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series........................................ 13
SECTION 302. Denominations............................................................... 16
SECTION 303. Execution, Authentication, Delivery and Dating.............................. 16
SECTION 304. Temporary Securities........................................................ 18
SECTION 305. Registration, Transfer and Exchange......................................... 19
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities............................ 22
SECTION 307. Payment of Interest; Interest Rights Preserved.............................. 23
SECTION 308. Persons Deemed Owners....................................................... 24
SECTION 309. Cancellation................................................................ 25
SECTION 310. Computation of Interest..................................................... 25
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture..................................... 25
SECTION 402. Application of Trust Money.................................................. 26
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default........................................................... 27
SECTION 502. Acceleration of Maturity; Rescission and Annulment.......................... 28
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee............. 29
SECTION 504. Trustee May File Proofs of Claim............................................ 30
SECTION 505. Trustee May Enforce Claims without Possession of Securities or Coupons...... 30
SECTION 506. Application of Money Collected.............................................. 30
SECTION 507. Limitation on Suits......................................................... 31
</TABLE>
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<TABLE>
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SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest... 31
SECTION 509. Restoration of Rights and Remedies.......................................... 32
SECTION 510. Rights and Remedies Cumulative.............................................. 32
SECTION 511. Delay or Omission Not Waiver................................................ 32
SECTION 512. Control by Holders of Securities............................................ 32
SECTION 513. Waiver of Past Defaults..................................................... 33
SECTION 514. Undertaking for Costs....................................................... 33
SECTION 515. Waiver of Stay or Extension Laws............................................ 33
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities......................................... 34
SECTION 602. Notice of Defaults.......................................................... 35
SECTION 603. Certain Rights of Trustee................................................... 35
SECTION 604. Not Responsible for Recitals or Issuance of Securities...................... 36
SECTION 605. May Hold Securities......................................................... 36
SECTION 606. Money Held in Trust......................................................... 36
SECTION 607. Compensation and Reimbursement.............................................. 36
SECTION 608. Corporate Trustee Required; Eligibility..................................... 37
SECTION 609. Resignation and Removal; Appointment of Successor........................... 38
SECTION 610. Acceptance of Appointment by Successor...................................... 39
SECTION 611. Merger, Conversion, Consolidation or Succession to Business................. 40
SECTION 612. Preferential Collection of Claims Against Company........................... 40
SECTION 613. Appointment of Authenticating Agent......................................... 40
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders................... 42
SECTION 702. Preservation of Information; Communications to Holders...................... 43
SECTION 703. Reports by Trustee.......................................................... 44
SECTION 704. Reports by the Company...................................................... 44
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases and Conveyances
Permitted Subject to Certain Conditions................................................... 45
SECTION 802. Rights and Duties of Successor Corporation.................................. 45
</TABLE>
-iv-
<PAGE>
<TABLE>
<CAPTION>
Page
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<S> <C>
SECTION 803. Officers' Certificate and Opinion of Counsel.................................... 46
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.............................. 46
SECTION 902. Supplemental Indentures with Consent of Holders................................. 47
SECTION 903. Execution of Supplemental Indentures............................................ 48
SECTION 904. Effect of Supplemental Indentures............................................... 48
SECTION 905. Conformity with Trust Indenture Act............................................. 48
SECTION 906. Reference in Securities to Supplemental Indenture............................... 48
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest............................. 49
SECTION 1002. Maintenance of Office or Agency................................................. 49
SECTION 1003. Money for Securities Payments To Be Held in Trust............................... 50
SECTION 1004. Additional Amounts.............................................................. 51
SECTION 1005. Statement as to Compliance; Notice of Certain Defaults.......................... 52
SECTION 1006. Waiver of Certain Covenants..................................................... 52
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article........................................................ 52
SECTION 1102. Election to Redeem; Notice to Trustee........................................... 52
SECTION 1103. Selection by Trustee of Securities to be Redeemed............................... 52
SECTION 1104. Notice of Redemption............................................................ 53
SECTION 1105. Deposit of Redemption Price..................................................... 54
SECTION 1106. Securities Payable on Redemption Date........................................... 54
SECTION 1107. Securities Redeemed in Part..................................................... 55
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article........................................................ 55
SECTION 1202. Satisfaction of Sinking Fund Payments With Securities........................... 55
SECTION 1203. Redemption of Securities for Sinking Fund....................................... 56
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article........................................................ 56
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
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<S> <C>
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called............................. 57
SECTION 1402. Call, Notice and Place of Meetings.................................... 57
SECTION 1403. Persons Entitled to Vote at Meetings.................................. 57
SECTION 1404. Quorum; Action........................................................ 57
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings... 58
SECTION 1406. Counting Votes and Recording Action of Meetings....................... 59
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 1501. Securities in Foreign Currencies...................................... 59
SECTION 1502. Payments in Substitute Currencies..................................... 60
</TABLE>
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<PAGE>
COMDISCO, INC.
Reconciliation and tie between Trust Indenture Act of 1939, as amended
and Indenture dated as of September 15, 1999
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<S> <C>
(S)310(a)(1).............................................................................. 608
(a)(2)............................................................................ 608
(a)(3)............................................................................ Not Applicable
(a)(4)............................................................................ Not Applicable
(b)............................................................................... 608, 609
(c)............................................................................... Not Applicable
(S)311(a) ................................................................................ 612
(b)............................................................................... 612
(c)............................................................................... Not Applicable
(S)312(a) ................................................................................ 701, 702(a)
(b)............................................................................... 702(b)
(c)............................................................................... 702(c)
(S)313(a)................................................................................. 703(a)
(b)(1)............................................................................ Not Applicable
(b)(2)............................................................................ 703(a)
(c)............................................................................... 703(b)
(d)............................................................................... 703(c)
(S)314(a)................................................................................. 704
(b)............................................................................... Not Applicable
(c)(1)............................................................................ 102
(c)(2)............................................................................ 102
(c)(3)............................................................................ Not Applicable
(d)............................................................................... Not Applicable
(e)............................................................................... 102
(f)............................................................................... Not Applicable
(S)315(a)................................................................................. 601
(b)............................................................................... 602, 106
(c)............................................................................... 601(a), 602
(d)............................................................................... 601(b), 603
(e)............................................................................... 514
(S)316(a)(last sentence).................................................................. 101
(a)(1)(A)......................................................................... 502, 512
(a)(1)(B)......................................................................... 513
(a)(2)............................................................................ Not Applicable
(b)............................................................................... 508
(S)317(a)(1).............................................................................. 503
(a)(2)............................................................................ 504
(b)............................................................................... 1003
(S)318(a)................................................................................. 108
- ---------------
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
<PAGE>
INDENTURE, dated as of September 15, 1999, between Comdisco, Inc., a
Delaware corporation (hereinafter called the "Company"), having its principal
-------
office at 6111 North River Road, Rosemont, Illinois 60018, and SunTrust Bank,
Atlanta, a Georgia banking corporation (hereinafter called the "Trustee"),
-------
having its principal office in Atlanta, Georgia.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured and
unsubordinated debentures, notes or other evidences of indebtedness (hereinafter
called the "Securities"), unlimited as to principal amount, to bear such rates
----------
of interest, to mature at such time or times, to be issued in one or more series
and to have such other provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the premises and the purchase of the
Securities by the Holders thereof, and the sum of one dollar duly paid by the
Company to the Trustee, the receipt of which is hereby acknowledged, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of series thereof, as follows:
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act" when used with respect to any Holders has the meaning specified in
---
Section 104.
<PAGE>
"Additional Amounts" means any additional amounts which are required by a
------------------
Security or by or pursuant to a Board Resolution, under circumstances specified
therein, to be paid by the Company in respect of certain taxes imposed on
certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
---------
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have the meanings correlative to
the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
--------------------
to Section 613 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Authorized Newspaper" means a newspaper, in an official language of the
--------------------
country of publication or in the English language, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established pursuant to
---------------
Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
------------------
duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
----------------
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", with respect to any Place of Payment means each Monday,
------------
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions or trust companies in the Place of Payment are authorized or
obligated by law to close, except as may otherwise be provided in the form of
Securities of any particular series pursuant to the provisions of this
Indenture.
"Commission" means the Securities and Exchange Commission, as constituted
----------
from time to time, created under the Securities Exchange Act of 1934, or if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
-------
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written request
--------------- -------------
or order signed in the name of the Company by the Chairman, the Vice Chairman,
the President, a Vice President or the
-2-
<PAGE>
Treasurer, and by a Vice President, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Consolidated Assets" means the amount of all assets which under general
-------------------
accepted accounting principles as in effect on the date of such balance sheet,
would appear on a consolidated balance sheet of the Company and its Subsidiaries
(after deducting related depreciation, amortization, unearned finance charges,
allowance for credit losses, and other valuation reserves), but shall not
include goodwill, unamortized debt discount and expenses, corporate organization
expense, patents and trademarks.
"Corporate Trust Office" means the principal office of the Trustee, at
----------------------
which at any particular time its corporate trust business shall be administered,
which office at the date of original execution of this Indenture is located at
25 Park Place, 24th Floor, Atlanta, Georgia 30305.
"Corporation" includes corporations, associations, companies and business
-----------
trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
------
"Defaulted Interest" has the meaning specified in Section 307.
------------------
"Depositary" means, with respect to the Securities of any series issuable
----------
or issued in whole or in part in the form of one or more global Securities, the
Person designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have been appointed pursuant to Section 305, and
thereafter 'Depositary' shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
'Depositary' as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Securities of that series.
"Dollars" or "$" or any similar reference shall mean the currency of the
------- -
United States, except as may otherwise be provided in the form of Securities of
any particular series pursuant to the provisions of this Indenture.
"Event of Default" has the meaning specified in Section 501.
----------------
"Holder", when used with respect to any Security, means in the case of a
------
Registered Security, the Person in whose name the Security is registered in the
Security Register and in the case of a Bearer Security, the bearer thereof and,
when used with respect to any coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
---------
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as contemplated
by Section 301; provided, however, that, if at any time more than one Person is
acting as Trustee under this instrument due to the appointment of one or more
separate Trustees for any one or more separate series of Securities pursuant to
Section 609(e), "Indenture" shall mean, with respect to such series of
Securities for which any such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of the particular series of
Securities for which such Person is Trustee established or contemplated by
Section 301, exclusive, however, of any provisions or terms which relate solely
to other series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any provisions
or terms
-3-
<PAGE>
adopted by means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee but to which such Person, as
such Trustee, was not a party.
"Interest", when used with respect to an Original Issue Discount Security
--------
which by its terms bears interest only after Maturity, means interest payable
after Maturity, and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 1004, includes such Additional
Amounts.
"Interest Payment Date" means the Stated Maturity of an installment of
---------------------
interest on the applicable Securities.
"Lien" means any interest in Property securing an obligation owed to, or a
----
claim by, a Person other than the owner of the Property, whether such interest
is based on the common law, statute or contract (but excluding a landlord's
statutory lien for rent not yet due), and including, but not limited to, the
security interest lien arising from a mortgage, encumbrance, pledge, conditional
sale or trust receipt or a lease, consignment or bailment for security purposes.
The term "Lien" shall include reservations, exceptions, encroachments,
easements, rights-of-way, covenants, conditions, restrictions, leases and other
title exceptions and encumbrances affecting Property. For the purpose of this
Indenture, the Company or a Subsidiary shall be deemed to be the owner of any
Property which it has acquired or holds subject to a conditional sale agreement,
capital lease or other arrangement pursuant to which title to the Property has
been retained by or vested in some other Person for security purposes.
"Maturity" when used with respect to any Security means the date on which
--------
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, request for repayment or
otherwise.
"Officers' Certificate" means a certificate signed by the Chairman, the
---------------------
Vice Chairman, the President, a Vice President or the Treasurer, and by a Vice
President, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, in form and
------------------
substance satisfactory to the Trustee, from counsel who may (except as otherwise
expressly provided in this Indenture) be an employee of or counsel for the
Company and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means a Security issued pursuant to this
--------------------------------
Indenture which provides for declaration of an amount less than the principal
thereof to be due and payable upon acceleration pursuant to Section 502.
"Outstanding" when used with respect to Securities means, as of the date of
-----------
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities and any
coupons thereto appertaining, provided that, if such Securities
are to be redeemed, notice of such
-4-
<PAGE>
redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, the principal amount of
an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that could be declared to be due
and payable pursuant to the terms of such Original Issue Discount Security at
the time the taking of such action by the Holders of such requisite principal
amount is evidenced to the Trustee as provided in Section 104(a), and, provided,
further, that Securities owned beneficially by the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor, shall
be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee has received an officer's certificate stating that such Securities are
so owned. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
------------
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint venture,
------
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
----------------
means the place or places where the principal of (and premium, if any) and
interest on the Securities of that series are payable as specified as provided
pursuant to Section 301.
"Predecessor Security" of any particular Security means every previous
--------------------
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
lost, destroyed, mutilated or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the lost, destroyed, mutilated or stolen Security or
the Security to which a mutilated, destroyed, lost or stolen coupon appertains.
"Property" means any interest in any kinds of property or asset, whether
--------
real, personal or mixed, or tangible or intangible.
"Redemption Date" when used with respect to any Security to be redeemed
---------------
means the date fixed for such redemption by or pursuant to this Indenture.
-5-
<PAGE>
"Redemption Price" when used with respect to any Security to be redeemed
----------------
means the price at which it is to be redeemed as determined pursuant to the
provisions of this Indenture.
"Registered Security" means any Security established pursuant to Section
-------------------
201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on a Registered Security on
-------------------
any Interest Payment Date means the date, if any, specified in such Security as
the "Regular Record Date".
"Responsible Officer" when used with respect to the Trustee means any vice
--------------------
president (whether or not designated by a number or a word or words added before
or after the title vice president), the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer, senior trust officer or assistant trust officer, or any other
officer within the Corporate Trust Department of the Trustee (or any successor
group of the Trustee) customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Security" or "Securities" means any Security or Securities, as the case
-------- ----------
may be, authenticated and delivered under this Indenture; provided, however,
that if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the Indenture as to which such Person is
Trustee shall have the meaning stated in the first recital of this Indenture and
shall more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective meanings
----------------- ------------------
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
-------------------
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity" when used with respect to any Security or any installment
---------------
of principal thereof or interest thereon means the date specified in such
Security or a coupon representing such installment of interest as the fixed date
on which the principal of such Security or such installment of principal or
interest is due and payable.
"Subsidiary" means any corporation of which at the time of determination
----------
the Company and/or one or more Subsidiaries owns or controls directly or
indirectly more than 50% of the shares of Voting Stock. "Wholly-owned", when
used with reference to a Subsidiary, means a Subsidiary of which all of the
outstanding capital stock (except for qualifying shares) is owned by the Company
or by one or more wholly-owned Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
-------
this instrument until a successor Trustee shall have become such with respect to
one or more series of Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, "Trustee"
shall mean each such Person and as used with respect to the Securities of any
series shall mean the Trustee with respect to the Securities of that Series.
-6-
<PAGE>
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, in
-------------------
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"United States" means the United States of America (including the States
-------------
and the District of Columbia), its territories and possessions and other areas
subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
-------------------
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"Vice President" when used with respect to the Company shall mean any Vice
--------------
President of the Company whether or not designated by a number or a word or
words added before or after the title "Vice President".
"Voting Stock" means stock of the class or classes having general voting
------------
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such corporation provided that, for the
purposes hereof, stock which carries only the right to vote conditionally on the
happening of an event shall not be considered voting stock whether or not such
event shall have happened.
SECTION 102. Compliance Certificates and Opinions
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in
this Indenture shall include:
(1) a statement that each individual signing such certificate or opinion
has read such condition or covenant and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such condition or covenant has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only
-7-
<PAGE>
one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing.
If, but only if, Securities of a series are issuable as Bearer Securities, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders of Securities
of such series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of Article
Fourteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee,
and where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company, if made in
the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1406.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution by any Person of any such
instrument or writing may also be proved in any reasonable manner which the
Trustee deems sufficient and in accordance with such reasonable rules as the
Trustee may determine; and the Trustee may in any instance require further proof
with respect to any of the matters referred to in this Section.
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(c) The ownership of Registered Securities and the principal amount and
serial numbers of Registered Securities held by any Person, and the date of
holding the same, shall be proved by the Security Register.
(d) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary reasonably acceptable to the Company,
wherever situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by certificate or affidavit of the Person
holding such Bearer Securities if such certificate or affidavit is deemed by the
Trustee to be satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another certificate or
affidavit bearing a later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by some other
Person, or (3) such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding. The principal
amount and serial numbers of Bearer Securities held by the Person so executing
such instrument or writing and the date of holding the same may also be proved
in any other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, or for purpose of determining the identity of Holders
entitled to vote or consent to any action authorized or permitted by Sections
512 or 513 of this Indenture, the Company may, at its option, by or pursuant to
a Board Resolution, fix in advance a record date for the determination of
Holders of Registered Securities entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of
Registered Securities of record at the close of business on such record date
shall be deemed to be Holders for the purposes of determining whether Holders of
the requisite proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
(f) Without limiting the foregoing, a Holder entitled hereunder to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any different part of such principal amount.
(g) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the registration
of the transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee, any Security Registrar, any
Paying Agent or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
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SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to the attention of its Treasurer at the address of its principal
office specified in the first paragraph of this instrument or at any other
address previously furnished in writing to the Trustee by the Company, or
(3) the Trustee by the Company or the Company by the Trustee, shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing by facsimile transmission to or with the Trustee at (404) 588-
7335 (Attn: Corporate Trust Department) or Company at (847) 518-5088 (Attn:
General Counsel), or at any other facsimile number previously furnished in
writing by the receiving party to the transmitting party, as applicable
(receipt confirmed by telephone and original sent by guaranteed overnight
courier).
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein or in the form of Securities
of any particular series pursuant to the provisions of this Indenture, where
this Indenture provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such
notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The City of
New York and, if the Securities of such series are then listed on any stock
exchange outside the United States, in an Authorized Newspaper in such city
as the Company shall advise the Trustee in writing that such stock exchange
so requires, on a Business Day at least twice, the first such publication
to be not earlier than the earliest date and not later than the latest date
prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
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In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders of Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. Language of Notices, etc.
Any request, demand, authorization, direction, notice, consent, election or
waiver required or permitted under this Indenture shall be in the English
language, except that, if the Company so elects, any published notice may be in
an official language of the country of publication.
SECTION 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provisions shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, such provision of the Act as so modified or
excluded, as the case may be, shall be deemed to apply to this Indenture.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or coupons, if any, shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons, if any, express
or implied, shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent and their successors
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hereunder and the Holders of Securities or coupons, if any, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 114. Legal Holidays.
Except as may otherwise be provided in the form of Securities of any
particular series pursuant to the provisions of this Indenture, in any case
where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or the Securities or
coupons, if any, other than a provision in the Securities which specifically
states that such provision shall apply in lieu of this Section) payment of
interest or any Additional Amounts or principal (and premium, if any) need not
be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, and no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons, if any, and temporary
global Securities, if any, shall be in the form established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, shall have
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto and
may have such letters, numbers or other marks of identification and such legends
or endorsements placed thereon as may, consistently herewith, be determined by
the officers of the Company executing such Securities, as evidenced by their
execution of such Securities.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section 301,
the Securities of a series also shall be issuable in bearer form, with or
without interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities, as evidenced by their execution of such Securities or coupons, if
any.
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SECTION 202. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
SUNTRUST BANK, ATLANTA, as
Trustee
By__________________________
Authorized Officer
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in whole or in part in global form,
as specified as contemplated by Section 301, then, notwithstanding clause (12)
of Section 301 and the provisions of Section 302, such global Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges or increased to reflect the issuance of
additional uncertificated securities of such series. Any endorsement of a
global Security to reflect any change in the rights of the Holders of
Outstanding Securities represented thereby, or to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made in such manner and upon written instructions given by such
Person or Persons as shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 303 or Section 304.
Global Securities may be issued in either registered or bearer form and in
either temporary or permanent form.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto:
(1) the title of the Securities and the series in which such
Securities shall be included;
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(2) any limit upon the aggregate principal amount of the Securities
of such title or the Securities of such series which may be authenticated
and delivered under this Indenture (except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu
of, other Securities of the series pursuant to Sections 304, 305, 306, 906
or 1107);
(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities
and the terms upon which Bearer Securities of the series may be exchanged
for Registered Securities of the series and vice versa;
(4) the Person to whom any interest on any Security of the series
shall be payable, if other than the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest;
(5) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(6) if Securities of the series are to be issuable as Bearer
Securities, whether interest in respect to any portion of a temporary
Bearer Security in global form (representing all of the Outstanding Bearer
Securities of the series) payable in respect of an Interest Payment Date
prior to the exchange of such temporary Bearer Security for definitive
Securities of the series shall be paid to any clearing organization with
respect to the portion of such temporary Bearer Security held for its
account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment received
by a clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date;
(7) the date or dates on which the principal of such Securities of a
particular series is payable;
(8) the rate or rates at which such Securities of a particular series
shall bear interest, if any, or method in which such rate or rates are
determined, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on Registered Securities on
any Interest Payment Date, whether and under what circumstances Additional
Amounts of such Securities shall be payable in respect of specified taxes,
assessments or other governmental charges withheld or deducted and, if so,
whether the Company has the option to redeem the affected Securities rather
than pay such Additional Amounts, and the basis upon which interest shall
be calculated if other than that of a 360-day year of twelve 30-day months;
(9) the place or places, if any, in addition to or other than the
Borough of Manhattan, The City of New York, where the principal of (and
premium, if any) and interest on or Additional Amounts, if any, payable in
respect of such Securities of a particular series shall be payable;
(10) the period or periods within which, the price or prices at which
and the terms and conditions upon which such Securities of a particular
series may be redeemed, in whole or in part, at the option of the Company;
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(11) the obligation, if any, of the Company to redeem or purchase such
Securities of a particular series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the terms and conditions
upon which such Securities of a particular series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation, and any
provisions for the remarketing of such Securities;
(12) the denominations in which Registered Securities of the series,
if any, shall be issuable if other than denominations of $1,000 and any
integral multiple thereof, and the denominations in which Bearer Securities
of the series, if any, shall be issuable if other than the denomination of
$5,000;
(13) if other than the principal amount thereof, the portion of the
principal amount of such Securities of a particular series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant
to Section 502;
(14) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency, including composite currencies, in
which payment of the principal of (and premium, if any) or interest, if
any, on and Additional Amounts in respect of such Securities of a
particular series shall be payable;
(15) if the principal of (and premium, if any) or interest, if any,
on, and Additional Amounts in respect of such Securities of a particular
series are to be payable, at the election of the Company or a Holder
thereof, in a coin or currency, including composite currencies, other than
that in which such Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made;
(16) if the amount of payments of principal of (and premium, if any)
or interest, if any, on, and Additional Amounts in respect of such
Securities of a particular series may be determined with reference to an
index, formula or other method based on a coin or currency other than that
in which the Securities are stated to be payable, the manner in which such
amounts shall be determined.
(17) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and terms of
such certificates, documents or conditions; and
(18) the extent to which any of the Securities of a particular series
will be issuable in whole or in part in the form of one or more temporary
or permanent global Security or Securities and, in such case, the
Depositary for such global Security or Securities, the terms and
conditions, if any, upon which such global Securities may be exchanged in
whole or in part for definitive securities, and the manner in which any
interest payable on a temporary or permanent global Security will be paid.
(19) any other terms of such Securities of a particular series (which
terms shall not be inconsistent with the provisions of this Indenture).
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All Securities of any one series and coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except as to
denomination and the rate or rates of interest, if any, and Stated Maturity, the
date from which interest, if any, shall accrue and except as may otherwise be
provided in or pursuant to such Board Resolution and set forth in such Officers'
Certificate or in any indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and, unless otherwise provided, a
series may be reopened for issuances of additional Securities of such series or
to establish additional terms of such series of Securities, provided, however,
that such additional terms shall not adversely affect the interest of the
Holders of Securities of any such series or any related coupons in any material
respect.
If any of the terms of the Securities of any series were established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
SECTION 302. Denominations.
Unless other denominations and amounts may from time to time be fixed by or
pursuant to a Board Resolution, the Registered Securities of each series, if
any, shall be issuable in registered form without coupons in denominations of
$1,000 and any integral multiple thereof, and the Bearer Securities of each
series, if any, shall be issuable in the denomination of $5,000, or in such
other denominations and amounts as may from time to time be fixed by or pursuant
to a Board Resolution.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, President, Vice President serving as Chief Financial Officer or
its Treasurer under its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile. Coupons, if any, shall
bear the facsimile signature of the Treasurer or any Assistant Treasurer of the
Company.
Securities and coupons, if any, bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupons appertaining thereto, if any, executed by the Company to the Trustee for
authentication, together with the Board Resolution and Officers' Certificate or
supplemental indenture with respect to such Securities referred to in Section
301 and a Company Order for the authentication and delivery of such Securities,
and the Trustee in accordance with the Company Order and subject to the
provisions hereof shall authenticate and deliver such Securities; provided,
however, that, in connection with its original issuance, no Bearer Security
(including any temporary Bearer Security issued pursuant to Section 304 which is
not a Global Security) shall be mailed or otherwise delivered to any location in
the United States; and provided further that a Bearer Security may be delivered
outside the United States in connection with its original issuance only if the
Person entitled to receive such Bearer Security (including any temporary Bearer
Security issued pursuant to Section 304 which is not a Global Security) shall
have furnished a certificate in the form and manner specified in a Board
Resolution and Officers' Certificate or supplemental indenture with respect to
such Bearer Securities referred to in Section
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301. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(a) that the form and terms of such Securities and coupons, if any, have
been established in conformity with the provisions of this Indenture;
(b) that all conditions precedent to the authentication and delivery of
such Securities together with the coupons, if any, appertaining thereto, have
been complied with and that such Securities, and coupons, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, moratorium, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles;
(c) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities and coupons, if any, have been
complied with; and
(d) as to such other matters as the Trustee may reasonably request.
If the Company shall establish pursuant to Section 301 that the Securities
of a series are to be issued in whole or in part in the form of one or more
global Securities in registered or permanent bearer form, then the Company shall
execute and the Trustee shall, in accordance with this Section and a Company
Order for the authentication and delivery of such global Securities with respect
to such series, authenticate and deliver one or more global Securities in
temporary or permanent form that (i) shall represent and shall be denominated in
an aggregate amount equal to the aggregate principal amount of the Outstanding
Securities of such series to be represented by one or more global Securities,
(ii) shall be registered, if in registered form, in the name of the Depositary
for such global Security or Securities or the nominee of such Depositary and
(iii) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions and (iv) shall, if in registered form, bear a legend
substantially to the following effect:
"Unless and until it is exchanged in whole or in part for
Debt Securities in definitive form, this Debt Security 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."
Each Depositary designated pursuant to Section 301 for a global Security in
registered form must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and any other applicable statute or
regulation."
The Trustee shall not be required to authenticate Securities of any series
if the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee or if the Trustee, being advised by counsel, determines that such action
may not lawfully be taken.
If a Board Resolution relating to any series of Securities shall so permit,
the Company may, pursuant to a Company Order, set up procedures acceptable to
the Trustee for the issuance of such
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Securities, including procedures to determine the interest rate, stated
maturity, date of issuance and other terms of such Securities, and such Company
Order or procedures may authorize authentication and delivery of Securities
pursuant to oral instructions from the Company or its authorized agent, which
instructions shall be promptly confirmed in writing.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents are
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued and contemplate issuance of all Securities
of such series.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any temporary Bearer Security in global form shall be
dated as of the date specified as contemplated by Section 301.
No Security or coupon appertaining thereto shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certification of authentication substantially in the
form provided for in Section 202 or 614 executed by or on behalf of the Trustee
by the manual signature of one of its authorized officers, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
309, for all purposes of this Indenture such Security shall be deemed never to
have been authenticated and delivered hereunder and shall never be entitled to
the benefits of this Indenture. Except as permitted by Section 306 or 307, the
Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute and deliver to the Trustee, and upon Company Order the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities of such series which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupons or without coupons and with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Company executing such
Securities may determine, as evidenced by their execution of such Securities.
In the case of Bearer Securities of any series, such temporary Securities may be
in global form, representing all of the Outstanding Bearer Securities of such
series.
Except in the case of temporary Global Securities in bearer form (which
shall be exchanged in accordance with provisions specified as contemplated by
Section 301) and temporary Securities in global form (which shall be exchanged
in accordance with the provisions of Sections 305 and 301), if temporary
Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities of such series
shall be exchangeable upon request for definitive Securities of such series
containing identical terms and provisions upon surrender of the temporary
Securities of such series at an
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office or agency of the Company maintained for such purpose pursuant to Section
1002, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto) the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations of the same series containing
identical terms and provisions; provided, however, that no definitive Bearer
Security, except as provided pursuant to Section 301, shall be delivered in
exchange for a temporary Registered Security; and provided, further, that a
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth therein.
Unless otherwise specified as contemplated by Section 301, temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
SECTION 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept, at an office or agency of the Company maintained
pursuant to Section 1002, a register (herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of each series and of transfers of the Registered Securities of each
series. In the event that the Trustee shall not be the Security Registrar, it
shall have the right to examine the Security Register at all reasonable times.
Upon surrender for registration of transfer of any Registered Security of
any series at any office or agency of the Company maintained for that series
pursuant to Section 1002, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series of any
authorized denominations, of a like aggregate principal amount bearing a number
not contemporaneously outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any such office or agency. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series containing identical
terms and provisions, of any authorized denominations and aggregate principal
amount, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
such exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company and the Trustee in an amount equal to
the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to any Paying Agent any such missing coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that, except as
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otherwise provided in Section 1002, interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency located outside the United States. Notwithstanding the foregoing, in case
a Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series and like tenor after the
close of business at such office or agency on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such office or agency on the related date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be (or, if
such coupon is so surrendered with such Bearer Security, such coupon shall be
returned to the person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
If expressly provided with respect to the Securities of any series, at the
option of the Holder, Registered Securities of such series may be exchanged for
Bearer Securities upon such terms and conditions as may be provided with respect
to such series.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities of
such series shall no longer be eligible under Section 303, the Company shall
appoint a successor Depositary with respect to the Securities of such series.
If a successor Depositary for the Securities of such series is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company's election pursuant to clause (18) of
Section 301 shall no longer be effective with respect to the Securities of such
series and the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver Securities of such series of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of the global Security or Securities representing such series
in exchange for such global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver Securities of such series of like tenor and terms
in definitive form in an aggregate principal amount equal to the principal
amount of the global Security or Securities representing such series in exchange
for such global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Securities, the Depositary for such series of Securities may surrender
a global Security for such series of Securities in exchange in whole or in part
for Securities of such series of like tenor and terms and in definitive form on
such terms as are acceptable to the Company, the Trustee and such Depositary.
Thereupon, the Company shall execute, and the Trustee upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, shall authenticate and deliver, without service charge:
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(a) to the Depositary or to each Person specified by such Depositary a new
Security or Securities of the same series, of like tenor and terms and of any
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
global Security; and
(b) to such Depositary a new global Security of like tenor and terms and
in an authorized denomination equal to the difference, if any, between the
principal amount of the surrendered global Security and the aggregate principal
amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the
Company will execute and the Trustee, pursuant to a Company Order, will
authenticate and deliver Securities (a) in definitive registered form in
authorized denominations, if the Securities of such series are issuable as
Registered Securities, (b) in definitive bearer form in authorized
denominations, with coupons attached, if any, if the Securities of such series
are issuable as Bearer Securities or (c) as either Registered or Bearer
Securities, if the Securities of such series are issuable in either form;
provided, however, that no definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security other than in accordance with the
provisions applicable to such transfer and exchange set forth in such Bearer
Security.
Upon the exchange of global Securities for Securities in definitive form,
such global Securities shall be cancelled by the Trustee. Registered Securities
issued in exchange for a global Security pursuant to this Section shall be
registered in such names and in such authorized denominations, as the Depositary
for such global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing. The Trustee
shall deliver such Registered Securities to the Persons in whose names such
Securities are so registered. The Trustee shall deliver Bearer Securities
issued in exchange for a global Security pursuant to this Section to the
Depositary or to the Persons at such addresses, and in such authorized
denominations, as the Depositary for such global Security, pursuant to
instructions from its direct or indirect participants or otherwise shall
instruct the Trustee in writing; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary global Security other
than in accordance with the provisions applicable to such transfer and exchange
set forth in such Bearer Security.
Notwithstanding any other provision of this Section, unless and until it is
exchanged in whole or in part for individual Securities represented thereby, a
global Security representing all or a portion of the Securities of a series may
not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such series of Security presented) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and such Security Registrar duly executed by the Holder thereof or
his attorney duly authorized in writing.
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No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Securities of any series during a period beginning at the opening
of business 15 days before the day of the selection for redemption of Securities
of that series under Section 1103 and ending at the close of business on the day
of such selection, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except in
the case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except that such Bearer Security may be exchanged for a Registered Security of
that series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series containing identical terms and of like principal amount and
bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to the surrendered Security.
If there is delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or coupon,
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security or coupon has been acquired by a
bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Security or in exchange for the Security to
which a destroyed, lost or stolen coupon appertains with all appurtenant coupons
not destroyed, lost, or stolen, a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon; provided,
however, that payments of principal of (and premium, if any) and any interest on
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security and its
coupons, if any, shall constitute an original additional
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contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security or its coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall, if so provided in
such Security, be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered as of the close of business on the Regular
Record Date for such interest. In case a Bearer Security of any series is
surrendered in exchange for a Registered Security of such series after the close
of business (at an office or agency in a Place of Payment for such series) on
any Regular Record Date and before the opening of business (at such office or
agency) on the next succeeding Interest Payment Date, such Bearer Security shall
be surrendered without the coupon relating to such Interest Payment Date and
interest will not be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange of such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date for
such Registered Security (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the relevant Regular Record Date by virtue
of having been such Holder; and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities affected (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each such Registered Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of such Registered
Securities at his address as it appears in the Security Register not less
than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in a newspaper, customarily published
in the English language on each Business Day and of general circulation in
the Borough of Manhattan, The City of New York, but such publication shall
not be a condition
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precedent to the establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names such Registered Securities (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following Clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series
in exchange for a Registered Security of such series after the close of
business at such office or agency on any Special Record Date and before the
opening of business at such office or agency on the related proposed date
for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment
and Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause,
such payment shall be deemed practicable by the Trustee.
At the option of the Company, interest on Registered Securities of any
series that bear interest may be paid by mailing a check to the address of the
person entitled thereto as such address shall appear in the Security Register.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any), and (subject to Sections 305 and 307)
interest on and Additional Amounts with respect to, such Registered Security and
for all other purposes whatsoever, whether or not such Registered Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon be overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Trustee, any Authenticating Agent, any Paying
Agent or the Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of a global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests of a
global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests, and they
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shall be fully protected in acting or refraining from acting on any such
information provided by the Depository.
Notwithstanding the foregoing, with respect to any Global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depository or impair, as between the Depository
and Holders of beneficial interests in any Global Security, the operation of
customary practices governing the exercise of the rights of the Depository as
Holder of such Global Security.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee, and any such Securities and coupons and Securities and coupons
surrendered directly to the Trustee for any such purpose shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities and coupons held by the Trustee shall be destroyed and the Trustee
shall deliver a certificate of their destruction to the Company.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
Upon the direction of the Company by a Company Order this Indenture shall
cease to be of further effect (except as to any surviving rights of registration
of transfer or exchange of Securities herein expressly provided for and any
right to receive Additional Amounts, as provided in Section 1004 and the
obligations of the Company set forth in Section 607 hereof), and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered and
all coupons appertaining thereto (other than (i) coupons appertaining
to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is not
required or has been waived as provided in Section 305, (ii)
Securities and coupons which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306, (iii)
coupons appertaining to Securities called for redemption and
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maturing after the relevant Redemption Date, whose surrender has been
waived as provided in Section 1106, and (iv) Securities and coupons
for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section
1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities and, in the case of (i) or (ii) below,
any such coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities and coupons not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest, and any Additional Amounts with respect thereto,
to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date,
as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then
the effectiveness of any such instrument shall be conditioned upon receipt of
such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions
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of the Securities, the coupons and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if any) and any interest and Additional Amounts for
whose payment such money has been deposited with the Trustee; but such money
need not be segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) unless
such event (other than those events described in subsections (1) and (2) below)
is either inapplicable to a particular series or it is specifically deleted or
modified in the supplemental indenture creating such series of Securities or in
the form of Security for such series:
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of that series when such
interest or Additional Amounts becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (and premium, if any,
on) any Security of that series when it becomes due and payable at
Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has been expressly included
in this Indenture solely for the benefit of series of Securities other than
that series), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 10% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) default in the payment when due (subject to any applicable grace
period), whether at Stated Maturity or otherwise, of any principal of or
interest on (however designated) any indebtedness for borrowed money of, or
guaranteed by, the Company (other than the Securities of any series and
other than non-recourse indebtedness) in an aggregate principal amount
exceeding 5% of the consolidated net worth of the Company and its
subsidiaries (determined as of the most recent fiscal quarter for which a
balance sheet is available), whether such indebtedness now exists or shall
hereafter be created, which default shall result in such indebtedness
becoming or being declared due and payable prior to the date on which it
would otherwise become due and payable
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and the Trustee shall have received written notice from any Holder of
Securities or the Company of such declaration; provided, however, that if
any such acceleration shall subsequently be rescinded or annulled
(including through the discharge of the accelerated indebtedness) prior to
the obtaining of any judgment or decree for the payment of any money due on
such indebtedness or the actual payment of money due on such indebtedness,
any acceleration with respect to Securities of any series consequent solely
on such other acceleration shall likewise be deemed rescinded or annulled
without further action on the part of any Holders; or
(6) a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Company in an involuntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any
substantial part of its property, or ordering the winding-up or liquidation
of its affairs, and such decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(7) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
shall consent to the entry of an order for relief in an involuntary case
under any such law, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) of the Company or for any substantial
part of its property, or shall make any general assignment for the benefit
of creditors, or shall fail generally to pay its debts as they become due
or shall take any corporate action in furtherance of any of the foregoing;
or
(8) any other Event of Default provided with respect to Securities
of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default, with respect to Securities of any series at the
time Outstanding, occurs and is continuing, then, and in every such case, the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal of all the
Securities of that series, or such lesser amount as may be provided for in the
Securities of that series, to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders), and upon
any such declaration such principal or such lesser amount shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on and any Additional
Amounts payable in respect of all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates borne by or
provided for in such Securities,
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(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and Additional Amounts
at the rate or rates borne by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which has become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on
or any Additional Amounts payable in respect of any Security when such
interest or Additional Amounts shall have become due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at its Maturity,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable on
such Securities and coupons for principal (and premium, if any) and interest and
Additional Amounts, if any, with interest upon the overdue principal (and
premium, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon overdue installments of interest or any Additional
Amounts, at the rate or rates borne by or provided for in such Securities, and,
in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights of the Holders of Securities of such series and any related coupons
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise, to take any and
all actions authorized under the Trust Indenture Act in order to have claims of
the Holders and the Trustee (including, to the extent provided in Section 607,
any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 607) allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same in accordance with
Section 506; and any receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities and coupons to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities and coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding, provided, however, that the Trustee
may, on behalf of the Holders, vote for the election of a trustee in bankruptcy
or similar official and be a member of a creditors or other similar committee.
SECTION 505. Trustee May Enforce Claims without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money or other property, held or collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on account of
principal (and premium, if any), interest or any Additional Amounts, upon
presentation of the Securities or coupons, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
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SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium, if any) and interest and
any Additional Amounts payable in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the aggregate amounts due and payable on
such Securities and coupons for principal (and premium, if any), interest
and Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities, to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders or Holders of any other series, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Sections 305 and 307) interest on and any Additional Amounts in respect of such
Security or payment of such coupon on the respective Stated Maturity or
Maturities expressed in such Security or coupon (or, in the case of redemption,
on the Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder.
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SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and the Holders of Securities and coupons shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or coupons is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders of Securities or coupons may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee shall not determine that the action so directed is
unduly prejudicial to the rights of other Holders of Securities of such
series, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and any related coupons waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (and premium, if any) or
interest on or Additional Amounts payable in respect of any Security of
such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any part litigant in such suit in the manner and to the extent provided
in the Trust Indenture Act; provided, however, that neither the provisions of
this Section nor the Trust Indenture Act shall be deemed to authorize any court
to require such an undertaking or to make such an assessment in any suit
instituted by the Company, the Trustee or by any Holder, or group of Holders,
holding in the aggregate more than 10% in principal amount of the Outstanding
Securities of any series, or to any suit instituted by any Holder of any
Security or coupon for the enforcement of the payment of the principal of (and
premium, if any) or interest on or any Additional Amounts in respect of any
Security or the payment of any coupon on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date) or interest on any overdue principal of any Security.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise,
as a prudent trustee would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in
this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 512 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have
offered to the Trustee security and indemnity satisfactory to it
against any loss, liability or expense.
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(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in a separate writing with the
Company. Money held in trust by the Trustee need nor be segregated
from other funds except to the extent required by law.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, and
the Trustee has actual knowledge of such default, the Trustee shall give the
Holders of Securities of such series notice of such default within 90 days after
it occurs as, and to the extent provided by, the Trust Indenture Act and in the
manner provided in Section 106; provided, however, that in the case of any
default of the character specified in Section 501(4) with respect to Securities
of such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default, with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, or
other paper or document reasonably believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Securities to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution and the Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Company
Request, Company Order or Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officer's Certificate and/or an Opinion of Counsel;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
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(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders of the Securities of any series or any related coupons pursuant to
this Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons, shall be taken as the
statements of the Company, and the Trustee or any Authenticating Agent assumes
no responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities or
coupons. The Trustee or any Authenticating Agent shall not be accountable for
the use or application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons, if any,
and, subject to Sections 609 and 612, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time compensation agreed to
between the Company and the Trustee for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
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(2) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence or willful misconduct; and
(3) to indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, liability, damage or expense of whatsoever kind
incurred without negligence or willful misconduct on their part, arising
out of or in connection with the acceptance or administration of the trust
or trusts hereunder, including the costs and expenses of defending
themselves against any claim or liability in connection with the exercise
or performance of any of their powers or duties hereunder. The Trustee may
have separate counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The indemnity obligations under this paragraph
(3) shall survive the satisfaction and discharge of this Indenture.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such
except funds held in trust for the payment of principal of (or premium, if any)
or interest on Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in clause (6) or (7) of Section 501 occurs, the expenses
(including the reasonable fees and expenses of its agents and counsel) and the
compensation for the services shall be preferred over the status of the holders
in a proceeding under any Bankruptcy Law and are intended to constitute expenses
of administration under any Bankruptcy Law. The Company's obligations under this
Section 607 and any claim arising hereunder shall survive the resignation or
removal of any Trustee, the discharge of the Company's obligations pursuant to
Article Eight and any rejection or termination under any Bankruptcy Law.
SECTION 608. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be either (i) a
corporation organized and doing business under the laws of the United States of
America, any State or the District of Columbia, authorized under such laws to
exercise corporate trust powers and subject to supervision or examination by
Federal or State authority; or (ii) a corporation or other Person organized and
doing business under the laws of a foreign government that is permitted to act
as Trustee pursuant to a rule, regulation or order of the Commission authorized
under such laws to exercise corporate trust powers, and subject to supervision
or examination by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision or examination
applicable to United States institutional trustees, in either case having a
combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. The Trustee shall comply with Section 310(b)
of the Trust Indenture Act, provided that there shall be excluded from the
operation of Section 310(b)(i) of the Trust Indenture Act any indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding if the
requirements for such exclusion set forth in Section 310(b)(i) of the Trust
Indenture Act are met. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
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SECTION 609. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 610.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 610 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, unless the Trustee's duty to resign is stayed in
accordance with the provisions of Section 310(b) of the Trust Indenture
Act, or
(2) the Trustee fails to comply with Section 608, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder of a Security who has been a bona fide Holder of a Security or any series
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities of such series and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that as at any time there shall be only one Trustee with respect
to the Securities of any particular series) and shall comply with the applicable
requirements of Section 610. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall not have been appointed by
Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 610,
become the successor Trustee with respect to the Securities of such series and
to that extent
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supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders of Securities and accepted appointment
in the manner required by Section 610, any Holder of a Security who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such series are
issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 610. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities or one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust, that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee and that no Trustee shall be responsible for any notice
given to, or received by, or any act or failure to act on the part of any other
Trustee hereunder, and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates have no further responsibility for the exercise
of rights and powers or for the performance of the duties and obligations vested
in the Trustee under this Indenture other than as hereinafter expressly set
forth, and each such
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successor Trustee without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly assign, transfer and deliver
to such successor Trustee, to the extent contemplated by such supplemental
indenture, the property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 611. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
In the event any Securities shall not have been authenticated by such
predecessor Trustee, any such successor Trustee may authenticate and deliver
such Securities as provided in a Company Order addressed to the successor
Trustee, in either its own name or that of its predecessor Trustee with the full
force and effect which the Indenture provides for the certificate of
authentication of the Trustee.
SECTION 612. Preferential Collection of Claims Against Company.
The Trustee shall be subject to the provisions of Section 311 of the Trust
Indenture Act.
SECTION 613. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
or exchange, registration of transfer or partial redemption thereof pursuant to
Section 306, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to
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supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
The provisions of Sections 308, 604 and 605 shall be applicable to each
Authenticating Agent.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
SUNTRUST BANK, ATLANTA, As
Trustee
By____________________________________________
As Authenticating Agent
By____________________________________________
Authorized Signatory
If all of the Securities of any series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not comply
with Section 102) by the Company, shall appoint in accordance with this Section
613 an Authenticating Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than fifteen days after the Regular Record
Date for interest for each series of Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of Securities, semi-
annually, upon such dates as are set forth in the Board Resolution or indenture
supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished,
provided, however, that, so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
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SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities (i) contained in
the most recent list furnished to the Trustee for each series as provided in
Section 701, (ii) received by the Trustee for each series in the capacity of
Security Registrar if the Trustee is then acting in such capacity and (iii)
filed with it within the two preceding years pursuant to Section 703(b)(2). The
Trustee may destroy any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished, and destroy it not earlier than two years
after filing, any information filed with it pursuant to Section 703(b)(2).
(b) If three or more Holders of Securities of any series (hereinafter
referred to as "applicants") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security of such
series for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series with respect to
their rights under this Indenture or under the Securities and is accompanied by
a copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five business days after the receipt
of such application, at its election, either
(1) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a), or
(2) inform such applicants as to the approximate number of Holders of
Securities whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 702(a), and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Securities whose name and address appears in the
information preserved at the time by the Trustee in accordance with Section
702(a), a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision of the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of Securities or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such Holders of
Securities with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Paying Agent nor any Security Registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders of Securities in accordance with Section 702(b),
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under Section 702(b).
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SECTION 703. Reports by Trustee.
(a) Within 60 days after February 15 of each year commencing with the year
2000 and for so long as securities remain outstanding, the Trustee shall
transmit by mail to all Holders of Securities, as provided in subsection (b) of
this Section, a brief report dated as of such February 15 as required by the
Trust Indenture Act (but if no event described in the Trust Indenture Act
Section 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted).
(b) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders appear in the Security Register;
(2) to such Holders of Bearer Securities as have, within the two
years preceding such transmission, filed their names and addresses with the
Trustee for that purpose; and
(3) except in the case of reports pursuant to Subsection (b) of this
Section, to each Holder of a Security whose name and address is preserved
at the time by the Trustee, as provided in Section 702(a).
(c) A copy of each such report shall, at the time of such transmission to
Holders of Securities, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by the Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register within 30 days after the filing thereof
with the Trustee, such summaries of any
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information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions.
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into any other corporation,
provided that in any such case, (i) either the Company shall be the continuing
corporation, or the successor corporation shall be a corporation organized and
existing under the laws of the United States of America or a State thereof and
such successor corporation shall expressly assume the due and punctual payment
of the principal of (and premium, if any), any interest on, and any Additional
Amounts payable pursuant to Section 1004 with respect to, all the Securities,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed by the
Company by supplemental indenture satisfactory to the Trustee, executed and
delivered to the Trustee by such successor corporation and (ii) the Company or
such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale, lease or conveyance, be in default
in the performance of any such covenant or condition.
SECTION 802. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, lease or conveyance and
upon any such assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein as the party of the first part, and the
predecessor corporations, except in the event of a lease, shall be relieved of
any further obligation under this Indenture and the Securities and coupons.
Such successor corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Securities and coupons issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee; and, upon the order of such
successor corporation, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities or coupons which previously shall
have been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities or coupons which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Securities and coupons so issued shall in all respects have
the same legal rank and benefit under this Indenture as the Securities and
coupons theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities and coupons had been issued at the
date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance, such
changes in phraseology and form (but not in substance) may be made in the
Securities and coupons thereafter to be issued as may be appropriate.
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SECTION 803. Officers' Certificate and Opinion of Counsel
The Trustee, subject to the provisions of Sections 601 and 603, may receive
an Officers' Certificate and an Opinion of Counsel as conclusive evidence that
any such consolidation, merger, sale, lease or conveyance, and any such
assumption, complies with the provisions of this Article.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registerable as to principal, to
change or eliminate any restrictions on the payment of principal (or
premium, if any) on Registered Securities or of principal (or premium, if
any) or any interest on Bearer Securities, to permit Registered Securities
to be exchanged for Bearer Securities or to permit the issuance of
Securities in uncertificated form, provided any such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(4) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of the Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(6) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
the provisions of this Indenture which shall not adversely affect the
interest of the Holders of Securities of any series or any related coupons
in any material respect; or
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(7) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(8) to add to or change any of the provisions of this Indenture as
shall be necessary or desirable to establish that Bearer Securities are
issued under arrangements reasonably designed to ensure that they are sold
or resold in connection with their original issuance only to a person who
is not a United States Person or who is a United States Person that is a
financial institution purchasing for its own account or for the account of
a customer and that agrees to comply with the requirements of section
165(j)(3)(A), (B), or (C) of the Code and the regulations thereunder or any
successor provisions thereto (including without limitation the procedures
and other requirements necessary to satisfy the conditions set forth in
section 163(f)(2)(B) of the Code), and any other requirements that must be
complied with in order to avoid the disallowance of an interest deduction
by the Company with respect to interest paid on Bearer Securities or
Coupons, the imposition of an excise tax on the Company with respect to the
Bearer Securities or Coupons or the disallowance from exemption from
withholding tax on interest paid on the Bearer Securities or Coupons.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any Additional Amounts payable
in respect thereof, or any premium payable upon the redemption thereof, or
change the obligation of the Company to pay Additional Amounts pursuant to
Section 1004 (except as contemplated by Section 801(i) and permitted by
Section 901, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change any
Place of Payment where, or the coin or currency in which, or the method of
calculation of interest on, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1404 for quorum or voting;
or
(3) modify any of the provisions of this Section, or Section 513, or
Section 107, except to increase any such percentage or to provide that
certain other provisions of this Indenture
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cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one of more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trust created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that the supplemental indenture
constitutes the legal, valid and binding obligation of the Company subject to
the customary exceptions. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indenture.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the benefit of the Holders of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any), interest on and any Additional Amounts payable in respect of
the Securities of that series in accordance with the terms of such series of
Securities, any coupons appertaining thereto and this Indenture. Any interest
due on and any Additional Amounts payable in respect of Bearer Securities on or
before Maturity, other than Additional Amounts, if any, payable as provided in
Section 1004 in respect of principal of (or premium, if any, on) such a
Security, shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of that series may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served. If Securities
of a series are issuable as Bearer Securities, the Company will maintain,
subject to any laws or regulations applicable thereto, an office or agency in a
Place of Payment for such series which is located outside the United States
where Securities of such series and the related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Securities of such series pursuant to Section 1004); provided, however, that if
the Securities of such series are listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent in London, Luxembourg
or any other required city located outside the United States, as the case may
be, so long as the Securities of such series are listed on such exchange. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series pursuant to
Section 1004) at the place specified for the purpose pursuant to Section 301,
and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal, premium or interest on Bearer Securities shall be made at any office
or agency of the Company in the United States or by check mailed to any address
in the United States or by transfer to an account maintained with a bank located
in the United States; provided, however, payment of principal of and any premium
and interest in U.S. dollars (including Additional Amounts payable in respect
thereof) on any Bearer Security may be made at SunTrust Bank, Atlanta, c/o First
National Bank of Chicago, Corporation Trust - 8th Floor, 14 Wall Street, Suite
4607, New York, NY 10005, if (but only if) payment of the full amount of such
principal, premium, interest or Additional
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Amounts at all offices outside the United States maintained for the purpose by
the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency. Unless otherwise set forth in a Board Resolution or indenture
supplemental hereto with respect to a series of Securities, the Company hereby
designates as the Place of Payment for each series of Securities as SunTrust
Bank, Atlanta, c/o First National Bank of Chicago, Corporation Trust - 8th
Floor, 14 Wall Street, Suite 4607, New York, NY 10005, and initially appoints
the Trustee as the Company's office or agency for each of such purposes in such
city.
SECTION 1003. Money for Securities Payments To Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any), or interest on, any of the Securities of
that series, segregate and hold in trust for the benefit of the Person entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, on or prior to each due date of the principal of (and
premium, if any), or interest on, any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will
(1) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent; and
(2) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent in respect of the Securities of that
series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same terms as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
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Except as otherwise provided in the form of Securities of any particular
series pursuant to the provisions of this Indenture, any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of (and premium, if any) or interest on any Security of
any series and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security or any coupon appertaining
thereto shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper in
each Place of Payment or to be mailed to Holders of Registered Securities, or
both, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing, any unclaimed balance of such money then remaining will be repaid to
the Company.
SECTION 1004. Additional Amounts.
If the Securities of a series provide for the payment of Additional
Amounts, the Company will pay to the Holder of any Security of any series or any
coupon appertaining thereto Additional Amounts as provided therein. Whenever in
this Indenture there is mentioned, in any context, the payment of the principal
of (or premium, if any) or interest on, or in respect of, any Security of any
series or any related coupon or the net proceeds received on the sale or
exchange of any Security of any series, such mention shall be deemed to include
mention of the payment of Additional Amounts provided for in this Section to the
extent that, in such context, Additional Amounts are, were or would be payable
in respect thereof pursuant to the provisions of this Section and express
mention of the payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal (and
premium, if any,) is made, and at least 10 days prior to each date of payment or
principal (and premium, if any) or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal (and premium, if any) or interest on the Securities of that
series shall be made to Holders of Securities of that series or the related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series and it shall set forth the Additional Amount owed with respect to
$1,000 in aggregate principal amount of such Securities. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities or coupons and the Company will pay to the Trustee or such
Paying Agent the Additional Amounts required by this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
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SECTION 1005. Statement as to Compliance; Notice of Certain Defaults.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year commencing in 2000 (which on the date hereof ends on September
30), a certificate from the Company's principal executive officer, principal
financial officer or principal accounting officer as to his or her knowledge of
the Company's compliance with all conditions and covenants under this Indenture,
without regard to any period of grace or requirement of notice otherwise
provided under this Indenture.
SECTION 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 1004 with respect to the Securities
of any series if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
the Securities of any series with the same issue date, interest rate and Stated
Maturity, the Company shall, at least 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series with the same issue date,
interest rate and Stated Maturity are to be redeemed, the particular Securities
to be redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Trustee from the Outstanding Securities of such series not
previously called for redemption, by lot or in accordance with such other method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of Registered
Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a Security of
that series established pursuant to Section 302.
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The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106,
not less than 30 nor more than 60 days prior to the Redemption Date, unless a
shorter period is specified in the Securities to be redeemed, to the Holders of
Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in part, or any defect in the notice to any such Holder
shall not affect the validity of the proceedings for the redemption of any other
Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Securities to be redeemed,
(4) in case any Registered Security is to be redeemed in part only,
the notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder of such
Security will receive, without charge, a new Registered Security or
Registered Securities of authorized denominations for the principal amount
thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed, and, if applicable,
that interest thereon shall cease to accrue on and after said date,
(6) the place or places where such Securities, together, in the case
of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is the case.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
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Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on and any Additional
Amounts with respect thereto, all the Securities or portions thereof which are
to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest (and
any Additional Amounts) to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only upon presentation and
surrender of coupons for such interest (at an office or agency located outside
the United States except as otherwise provided in Section 1002), and provided,
further that installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the Regular Record Dates according to their terms and
the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption Price, such Holder
shall be entitled to receive the amount so deducted; provided, however, that
interest (and any Additional Amounts) represented by coupons shall be payable
only upon presentation and surrender of those coupons at an office or agency
located outside of the United States except as otherwise provided in Section
1002.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
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SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any office or agency of the Company maintained for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Registered Security or Securities of the same series, containing identical
terms and provisions, of any authorized denomination as requested by such Holder
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series, except as otherwise permitted or
required by any form of Security of such series issued pursuant to this
Indenture.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of such series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of the Securities of
such series.
SECTION 1202. Satisfaction of Sinking Fund Payments With Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series to be made pursuant to the
terms of such Securities as provided for by the terms of such series (1) deliver
Outstanding Securities of such series (other than any of such Securities
previously called for redemption or any of such Securities in respect of which
cash shall have been released to the Company), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) apply as a credit Securities of such series which have been
redeemed either at the election of the Company pursuant to the terms of such
series of Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, provided that such
series of Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the Redemption
Price specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Securities of any
series in lieu of cash payments pursuant to this Section 1202, the principal
amount of Securities of such series to be redeemed in order to exhaust the
aforesaid cash payment shall be less than $100,000, the Trustee need not call
Securities of such series for redemption, except upon Company Request, and such
cash payment shall be held by the Trustee or a Paying Agent and applied to the
next succeeding sinking fund payment, provided, however, that the Trustee or
such Paying Agent shall at the request of the Company from time to time pay over
and deliver to
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the Company any cash payment so being held by the Trustee or such Paying Agent
upon delivery by the Company to the Trustee of Securities of that series
purchased by the Company having an unpaid principal amount equal to the cash
payment requested to be released to the Company.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with the
terms of the Securities of such series. The repayment of any principal amount
of Securities pursuant to such option of the Holder to require repayment of
Securities before their Stated Maturity, for purposes of Section 309, shall not
operate as a payment, redemption or satisfaction of the indebtedness represented
by such Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Securities be
cancelled. Notwithstanding anything to the contrary contained in this Article
Thirteen, in connection with any repayment of Securities, the Company may
arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the
repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
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ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1401, to be held at such time
and at such place in the City of Atlanta, Georgia, the Borough of Manhattan, The
City of New York, or in London, as the Trustee shall determine. Notice of every
meeting of Holders of Securities of any series, setting forth the time and place
of such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not less than 21
nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1401, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the City
of Atlanta, Georgia, the Borough of Manhattan, The City of New York, or in
London, for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
SECTION 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel, and any representatives of the Company and its counsel.
SECTION 1404. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than 66-
2/3% in principal amount of the Outstanding Securities of a series, the Persons
entitled to vote 66-2/3% in principal amount of the Outstanding Securities of
such series shall constitute a quorum. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities
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of such series, be dissolved. In any other case the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1402(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than 66-2/3% in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of 66-2/3% in principal amount of
the Outstanding Securities of that series; and provided, further, that, except
as limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters, concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1402(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman
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and a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of Securities of such
series held or represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1402 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 1501. Securities in Foreign Currencies.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series, any amount in
respect of any Security denominated in a currency other than United States
dollars shall be treated for any such action or distribution as that amount of
United States dollars that could be obtained for such amount on the basis of the
Market Exchange Rate (as defined in Section 1502) as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as
-59-
<PAGE>
the Company may specify in a written notice to the Trustee or, in the absence of
such written notice, as the Trustee may determine.
SECTION 1502. Payments in Substitute Currencies.
If the principal of (and premium, if any) and interest on any Securities is
payable in a currency other than United States dollars and such currency is not
available for payment due to the imposition of exchange controls or other
circumstances beyond the control of the Company, then the Company shall be
entitled to satisfy its obligations to Holders under this Indenture by making
such payment in United States dollars on the basis of the Market Exchange Rate
for such foreign currency on the latest date for which such rate was established
on or before the date on which payment is due. Any payment made pursuant to
this Section 1502 in United States dollars where the required payment is in a
foreign currency shall not constitute a default under this Indenture. As used
in this Section 1502, unless otherwise specified in the applicable Security, on
a given date for a given foreign currency "Market Exchange Rate" shall mean the
noon buying rate in The City of New York for cable transfers in such currency as
certified for customs purposes by the Federal Reserve Bank of New York on such
date.
* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
-60-
<PAGE>
[SIGNATURE PAGE FOR SEPTEMBER 15, 1999 INDENTURE]
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
COMDISCO, INC.
[SEAL] By:___________________________________________
Its:_________________________________________
ATTEST:
_____________________
SUNTRUST BANK, ATLANTA, AS TRUSTEE
[SEAL] By:___________________________________________
Its:_________________________________________
ATTEST:
_____________________
-61-
<PAGE>
Exhibit 5
---------
[COMDISCO, INC. LETTERHEAD]
September 23, 1999
The Board of Directors of
Comdisco, Inc.
6111 North River Road
Rosemont, Illinois 60018
Re: Registration of $1.5 Billion in Debt Securities of Comdisco, Inc.
-----------------------------------------------------------------
Ladies and Gentlemen:
Reference is made to the form of the Registration Statement on Form S-3 to
be filed with the Securities and Exchange Commission (the "Commission") on or
about September 24, 1999 (the "Registration Statement") by Comdisco, Inc., a
Delaware corporation (the "Company"), under the Securities Act of 1933, as
amended (the "Act"), relating to $1,500,000,000 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 of 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. At your request, this opinion is being furnished to you for filing as
Exhibit 5 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 the
Debt Securities and related Common Stock, 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.
Based upon the foregoing examination, and in reliance thereon, I am of the
opinion that when the Registration Statement has become effective, and subject
to the terms of the Debt Securities and related Common Stock being otherwise in
compliance with applicable law:
1. The Debt Securities, when duly authorized, executed, authenticated and
delivered in accordance with the terms of the applicable resolutions of the
Board of Directors of the Company, any applicable indenture 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
<PAGE>
Comdisco, Inc.
September 23, 1999
Page 2
issued and will be binding obligations of the Company, entitled to the benefits
of any applicable indenture.
2. All shares of Common Stock issuable on conversion or exchange of Debt
Securities, which by their terms are convertible or exchangeable for Common
Stock, will be legally issued, fully paid and non-assessable shares of the
Company.
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
Registration Statement, and I further consent to the use of my name under the
caption "LEGAL MATTERS" in the Prospectus forming a part of the Registration
Statement.
Very truly yours,
/s/ Jeremiah M. Fitzgerald
--------------------------
Jeremiah M. Fitzgerald
Vice President and
General Counsel
<PAGE>
Exhibit 23.1
------------
Consent of KPMG LLP
-------------------
The Board of Directors
Comdisco, Inc.
We consent to the incorporation by reference in the Registration Statement on
Form S-3 of Comdisco, Inc. of our reports dated November 3, 1998, relating to
the consolidated balance sheets of Comdisco, Inc. and subsidiaries as of
September 30, 1998 and 1997, and the related consolidated statements of
earnings, stockholders' equity, and cash flows for each of the years in the
three-year period ended September 30, 1998 and the related financial statement
schedule which reports appear in or are incorporated by reference in the
September 30, 1998 annual report on Form 10-K of Comdisco, Inc. and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG LLP
Chicago, Illinois
September 24, 1999
<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
___________________
FORM T-1
___________________
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
_____________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)
___________________
SUNTRUST BANK, ATLANTA
(Exact name of trustee as specified in its charter)
25 Park Place, N.E.
Suite 1100
Atlanta, Georgia 30303 58-0466330
(Address of principal (Zip Code) (I.R.S. employer identification
executive offices) number)
___________________
GEORGE HOGAN
SunTrust Bank, Atlanta
25 Park Place, N.E.
24th Floor
Atlanta, Georgia 30303-2900
404-588-7591
(Name, address and telephone number of agent for service)
___________________
COMDISCO, INC.
(Exact name of obligor as specified in its charter)
Delaware 36-2687938
(State or other (IRS employer
jurisdiction of incorporation identification no.)
or organization)
6111 North River Road
Rosemont, Illinois 60018
(Address of principal executive offices) (Zip Code)
___________________
Senior Debt Securities
(Title of the indenture securities)
- --------------------------------------------------------------------------------
333-
- --------------------------------------------------------------------------------
Registration No.
<PAGE>
1. General information.
-------------------
Furnish the following information as to the trustee--
Name and address of each examining or supervising authority to which
it is subject.
Department of Banking and Finance,
State of Georgia
Atlanta, Georgia
Federal Reserve Bank of Atlanta
104 Marietta Street, N.W.
Atlanta, Georgia
Federal Deposit Insurance Corporation
Washington, D.C.
Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with obligor.
-------------------------
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
----------------
List below all exhibits filed as a part of this statement of eligibility;
exhibits identified in parentheses are filed with the Commission and are
incorporated herein by reference as exhibits hereto pursuant to Rule 7a-29
under the Trust Indenture Act of 1939, as amended, and Rule 24 of the
Commission's Rules of Practice.
(1) A copy of the Articles of Amendment and Restated Articles of
Association of the trustee as now in effect. (Exhibit 1 to Form T-1,
Registration No. 333-25463).
(2) A copy of the Certificate of Authority of the Trustee to Commence
Business (included in Exhibit 1).
(3) A copy of the Authorization of the Trustee to Exercise Corporate Trust
Powers (included in Exhibit 1).
(4) A copy of the existing By-laws of the Trustee (included in Exhibit 4
to Form T-1, Registration No. 333-25463).
<PAGE>
(6) The Consent of the Trustee required by Section 321(b) of the Trust
Indenture Act of 1939.
(7) A copy of the latest Report of Condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority as of the close of business on June 30, 1999.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, SunTrust Bank, Atlanta, a banking corporation organized and existing
under the laws of the State of Georgia, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Atlanta and the State of Georgia,
on the 23rd day of September, 1999.
SUNTRUST BANK, ATLANTA
By: /s/ George Hogan
------------------
George Hogan
Vice President
<PAGE>
EXHIBIT 1 TO FORM T-1
ARTICLES OF ASSOCIATION
OF
SUNTRUST BANK, ATLANTA
<PAGE>
EXHIBIT 2 TO FORM T-1
CERTIFICATE OF AUTHORITY
OF
SUNTRUST BANK, ATLANTA
TO COMMENCE BUSINESS
<PAGE>
EXHIBIT 3 TO FORM T-1
AUTHORIZATION
OF
SUNTRUST BANK, ATLANTA
TO EXERCISE CORPORATE TRUST POWERS
<PAGE>
EXHIBIT 4 TO FORM T-1
BY-LAWS
OF
SUNTRUST BANK, ATLANTA
<PAGE>
EXHIBIT 6 TO FORM T-1
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act
of 1939 in connection with the proposed issuance of Senior Debt Securities of
Comdisco, Inc., SunTrust Bank, Atlanta hereby consents that reports of
examinations by Federal, State, Territorial or District Authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
SUNTRUST BANK, ATLANTA
By: /s/ George Hogan
--------------------------------------
George Hogan
Vice President
<PAGE>
EXHIBIT 7 TO FORM T-1
REPORT OF CONDITION
<PAGE>
SUNTRUST BANK ATLANTA Call Date: 6/30/99 State #: 130330 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert. #: 00867 RC-1
ATLANTA, GA 30302 Transit #: 61000104
Consolidated Report of Condition for Insured Commercial
And State-Chartered Savings Banks for June 30, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
<TABLE>
<CAPTION>
C400
Schedule RC - Balance Sheet
Dollar Amounts in Thousands
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
ASSETS RCFD
1. Cash and balances due from depository institutions (from Schedule RC-A): ----
a. Noninterest-bearing balances and currency and coin (1)........................................ 0081 976,301
b. Interest-bearing balances (2)................................................................. 0071 11,291
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A).................................... 1754 0
b. Available-for-sale securities (from Schedule RC-B, column D).................................. 1773 3,195,671
3. Federal funds sold and securities purchased under agreements to resell............................ 1350 1,971,155
4. Loans and lease financing receivables: RCFD
----
a. Loans and leases, net of unearned income (from Schedule RC-C)............ 2122 13,394,948
b. LESS: Allowance for loan and lease losses................................ 3123 133,428
c. LESS: Allocated transfer risk reserve.................................... 3128 0
RCFD
d. Loans and leases, net of unearned income, ----
allowance, and reserve (item 4.a minus 4.b and 4.c)........................................... 2125 13,261,520
5. Trading assets (from Schedule RC-D)............................................................... 3545 42,643
6. Premises and fixed assets (including capitalized leases).......................................... 2145 99,503
7. Other real estate owned (from Schedule RC-M)...................................................... 2150 862
8. Investments in unconsolidated subsidiaries and associated companies............................... 2130 12,664
(from Schedule RC-M)
9. Customers' liability to this bank on acceptances outstanding...................................... 2155 335,127
10. Intangible assets (from Schedule RC-M)............................................................ 2143 13,992
11. Other assets (from Schedule RC-F)................................................................. 2160 212,301
12. Total assets (sum of items 1 through 11).......................................................... 2170 20,133,030
- -------
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C> <C> <C> <C> <C>
SUNTRUST BANK ATLANTA Call Date: 6/30/99 State #: 130330 FFIEC 031
P.O. BOX 4418 CENTER 632 Vendor ID: D Cert #: 00867 RC-2
ATLANTA, GA 30302 Transit #: 61000104
Schedule RC - Continued
Dollar Amounts in Thousands
- ------------------------------------------------------------------------------------------------------------------------------------
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, RCON
part I)______________________________________________________________________________ ----
RCON 2200 7,091,113
----
(1) Noninterest-bearing (1)__________________________________________________________ 6631 2,903,890
(2) Interest-bearing_________________________________________________________________ 6636 4,187,223
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, RCFN
----
part II)_____________________________________________________________________________ RCF 2200 4,988,807
---
(1) Noninterest-bearing______________________________________________________________ 6631 0
(2) Interest-bearing_________________________________________________________________ 6636 4,988,807 RCFD
----
14. Federal funds purchased and securities sold under agreements to repurchase______________ 2800 3,770,733
RCON
----
15. a. Demand notes issued to the U.S. Treasury_____________________________________________ 2840 0
RCFD
----
b. Trading liabilities (from Schedule RC-D)_____________________________________________ 3548 0
16. Other borrowed money (includes mortgage indebtedness and
obligations under capitalized leases):
a. With a remaining maturity of one year or less________________________________________ 2332 174,403
b. With a remaining maturity of more than one year through three years__________________ A547 2,577
c. With a remaining maturity of more than three years___________________________________ A548 107
17. Not applicable
18. Bank's liability on acceptances executed and outstanding________________________________ 2920 335,127
19. Subordinated notes and debentures(2)____________________________________________________ 3200 250,000
20. Other liabilities (from Schedule RC-G)__________________________________________________ 2930 1,163,188
21. Total liabilities (sum of items 13 through 20)__________________________________________ 2948 17,776,055
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus___________________________________________ 3838 0
24. Common stock____________________________________________________________________________ 3230 21,601
25. Surplus (exclude all surplus related to preferred stock)________________________________ 3839 703,406
26. a. Undivided profits and capital reserves_______________________________________________ 3632 680,588
b. Net unrealized holding gains (losses) on available-for-sale securities_______________ 8434 951,380
c. Accumulated net gains (losses) on cash flow hedges___________________________________ 4336 0
27. Cumulative foreign currency translation adjustments_____________________________________ 3284 0
28. Total equity capital (sum of items 23 through 27)_______________________________________ 3210 2,356,975
29. Total liabilities and equity capital (sum of items 21 and 28)___________________________ 3300 20,133,030
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external RCFD Number
----
auditors as of any date during 1998______________________________________________________ 6724 N/A
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company (but external auditors
not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in accordance 8 = No external audit work
with generally accepted auditing standards by a certified
public accounting firm (may be required by state chartering
authority)
________
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
(2) Includes limited-life preferred stock and related surplus.
</TABLE>
