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Exhibit 1.1
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COMDISCO, INC.
(a Delaware corporation)
Senior Debt Securities
UNDERWRITING AGREEMENT
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August 3, 2000
SALOMON SMITH BARNEY INC.
8700 Sears Tower
Chicago, Illinois 60606
BANC OF AMERICA SECURITIES LLC
2800 Sears Tower
Chicago, Illinois 60606
BEAR, STEARNS & CO. INC.
245 Park Avenue
New York, NY 10167
DEUTSCHE BANK SECURITIES INC.
31 West 52nd Street
New York, NY 10019
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
4 World Financial Center
5th Floor
New York, New York 10080
BANC ONE CAPITAL MARKETS, INC.
1 Banc One Plaza
16th Floor
Chicago, IL 60670-0084
MELLON FINANCIAL MARKETS, LLC
1 Mellon Bank Center, Room 475
500 Grant Street
Pittsburgh, PA 15258
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 September 15, 1999 (the "Indenture"), between the
Company and SunTrust Bank, 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.
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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 through, records
maintained by the Depositary and its participants. Book-Entry Notes will not be
issuable in definitive form, except under the circumstances described in the
applicable prospectus supplement relating to the Securities.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-87725), 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
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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 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
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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, 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
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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.
Payment of the purchase price for, and delivery of, any Securities to be
purchased by the Underwriters shall be made (i) in the case of Securities in
registered form, at the office of Brown & Wood LLP, One World Trade Center, 58th
Floor, New York, New York 10048, or (ii) in the case of Securities in bearer
form, at the office of Brown & Wood, a Multinational Partnership, Princes Court,
7 Princes Street, London EC2R 8AQ or at such other place as shall be agreed upon
by you and the Company, at 10:00 A.M., New York City time, on the third business
day (unless postponed in accordance with the provisions of Section 10) following
the date of the applicable Terms Agreement or such other time as shall be agreed
upon by you and the Company (each such time and date being referred to as a
"Closing Time"). Payment shall be made to the Company by certified or official
bank check or checks in New York Clearing House or similar next day funds
payable to the order of the Company against delivery to you for the respective
accounts of the Underwriters of the Securities to be purchased by them (unless
such Securities are issuable only in the form of a single global Security
registered in the name of a depository or a nominee of a depository, in which
event the Underwriters' interest in such global certificate shall be noted in a
manner satisfactory to the Underwriters and their counsel). Such Securities
shall be in such authorized denominations and registered in such names as you
may request in writing at least two business days prior to the applicable
Closing Time. Such Securities, which may be in temporary form, will be made
available for examination and packaging by you on or before the first business
day prior to Closing Time.
If authorized by the applicable Terms Agreement, the Underwriters named
therein may solicit offers to purchase Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts") substantially in the
form of Exhibit B hereto with such changes therein as the Company may approve.
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
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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 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
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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 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.
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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 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 Jeremiah M. Fitzgerald, Esq., Vice President and Chief Legal
Officer of the Company, or H. Scott Harvey, Assistant 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.
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(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 Our Debt Securities" and 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) 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, 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
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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.
(3) In giving their opinions required by subsection (b)(1) and (b)(2) of
this Section, Mr. Fitzgerald or Mr. Harvey 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 Peat Marwick LLP, dated as of the date hereof or the date of the most
recent report filed with the Commission containing financial statements or
unaudited consolidated information and incorporated by reference in the
Registration Statement, if the date of such report is later than the date
hereof, and delivered at such time, in form and substance satisfactory to the
Underwriters to the effect that:
(i) They are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the
1933 Act Regulations.
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(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
(C) at a specified date not more than five days prior to the date
of such letter, there was any change in the capital stock or any
increase in the long term debt of the Company and its subsidiaries
consolidated or any decrease in consolidated net assets, in each case
as compared with amounts shown in the most recent consolidated balance
sheet incorporated by reference in the Registration Statement, except
in each case for changes, increases or decreases which the
Registration Statement and the Prospectus disclose have occurred or
may occur; or
(D) for the period from the date of the most recent interim
period financial statements incorporated by reference in the
Registration Statement to a specified date not more than five days
prior to the date of such letter, there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated revenues or net earnings, except in each case for
decreases which the Registration Statement and the Prospectus disclose
have occurred or may occur.
(iv) In addition to the examination referred to in their report
incorporated by reference in the Registration Statement and the Prospectus,
they have carried out certain other specified procedures, not constituting
an audit, with respect to certain amounts, percentages and financial
information which are included in the Registration Statement and the
Prospectus and which are specified by the Underwriters and have found such
amounts, percentages and financial information to be in agreement with the
relevant accounting, financial and other records of the Company and its
subsidiaries identified in such letter.
(e) Bring-down Comfort Letter. You shall have received from KPMG Peat
Marwick LLP, or other independent certified public accountants acceptable to you
a letter, dated as of the applicable Closing Time, reconfirming or updating the
letter required by subsection (d) of this Section to the extent that may be
reasonably requested.
(f) Other Documents. At the date hereof and at the Closing Time, counsel
to the Underwriters shall have been furnished with such documents and opinions
as such counsel may reasonably require for the purpose of enabling such counsel
to pass upon the issuance and sale of Securities as herein contemplated and
related proceedings, or in order to evidence the accuracy and completeness of
any of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of Securities as herein contemplated shall
be satisfactory in form and substance to the Underwriters and to the
Underwriters' counsel.
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(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
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
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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.
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
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(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
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
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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
maximum ranges for prices for securities have been required, by either of said
exchanges or by order of the Commission or any other governmental authority, if
a banking moratorium in the United States generally or in the City or the State
of New York has been declared by either Federal or New York authorities or if a
banking moratorium has been declared by the relevant authorities in the country
or countries of origin of any foreign currency or currencies underlying the
Securities, or (iv) if the rating assigned by any nationally recognized
securities rating agency indicated in the applicable Terms Agreement to any debt
securities or other obligations of the Company as of the date of any applicable
Terms Agreement shall have been lowered since that date or if any such rating
agency shall have publicly announced that it has placed any debt securities or
other obligations of the Company on what is commonly termed a "watch list" for
possible downgrading. In the event of any such termination, the covenant set
forth in Section 3(f), the provisions of Section 5, the indemnity agreement set
forth in Section 6, the contribution provisions set forth in Section 7, and the
provisions of Sections 8 and 13 shall remain in effect.
Section 10. Default. If one or more of the Underwriters participating in
an offering of Securities shall fail at the applicable Closing Time to purchase
the Securities which it or they are obligated to purchase hereunder and under
the applicable Terms Agreement (the "Defaulted Securities"), then such of you as
are named therein shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, during such 24 hours you shall not have completed such
arrangements for the purchase of all of the Defaulted Securities, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Securities to be
purchased pursuant to such Terms Agreement, the non-defaulting Underwriters
named in such Terms Agreement shall be obligated to purchase the full
amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all such non-
defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Securities to be purchased
pursuant to such Terms Agreement, the applicable Terms Agreement shall
terminate, without any liability on the part of any non-defaulting
Underwriter or the Company.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement and the applicable Terms Agreement.
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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:
"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: Salomon Smith Barney Inc, 8700
Sears Tower, Chicago, Illinois 60606, attention of Michael S. Canmann; Banc of
America Securities LLC, 2800 Sears Tower, Chicago, Illinois 60606, attention of
Keith Harmon; Bear, Stearns & Co. Inc., 245 Park Avenue, New York, New York
10167, attention of Bruce Mygatt; Deutsche Bank Securities Inc., 31 West 52nd
Street, New York, NY 10019, attention of Christopher T. Whitman; Merrill Lynch,
Pierce, Fenner & Smith Incorporated, 4 World Financial Center, North Tower, 5th
Floor, New York, New York 10080, attention of Palma Mazzolla; Banc One Capital
Markets Inc., 1 Banc One Plaza, 16th Floor, Chicago, IL 60670-0084, attention of
Todd E. Ritz; and Mellon Financial Markets, LLC, 1 Mellon Bank Center, Room 475,
500 Grant Street, Pittsburgh, PA 15258, attention of David Diez; 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,
Senior Vice President/Finance and Treasurer, with a copy to the Chief Legal
Officer 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
16
<PAGE>
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.
17
<PAGE>
[SIGNATURE PAGE FOR AUGUST 3, 2000 UNDERWRITING AGREEMENT]
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
along with all counterparts will become a binding agreement between you and us
in accordance with its terms.
Very truly yours,
COMDISCO, INC.
By /s/ Edward A. Pacewicz
Edward A. Pacewicz
Senior Vice President/Finance and Treasurer
CONFIRMED AND ACCEPTED,
as of the dated first above written:
SALOMON SMITH BARNEY INC. MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Michael S. Canmann By: /s/ Michael O'Grady
Its: Director Its: Director
BANC OF AMERICA SECURITIES LLC BANC ONE CAPITAL MARKETS, INC.
By: /s/ Lily Chang By: /s/ Katherine Cokic
Its: Principal Its: Vice President
BEAR, STEARNS & CO. INC. MELLON FINANCIAL MARKETS, LLC
By: /s/ Jacques de Saint Phalle By: /s/ Leo Y. Au
Its: Senior Managing Director Its: President & CEO
DEUTSCHE BANK SECURITIES INC.
By: /s/ R. Scott Flieger/Daniel Benton
Its: Managing Director/Managing Director
18
<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 August 3, 2000
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 , ].
A-1
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Purchase price: %, plus accrued interest, or amortized original issue discount,
if any, from , (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]
SALOMON SMITH BARNEY INC. MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:__________________________ By:___________________________________
Its:_________________________ Its:__________________________________
BANC OF AMERICA SECURITIES LLC BANC ONE CAPITAL MARKETS, INC.
By:__________________________ By:___________________________________
Its:_________________________ Its:__________________________________
BEAR, STEARNS & CO. INC. MELLON FINANCIAL MARKETS, LLC
By:__________________________ By:___________________________________
Its:_________________________ Its:__________________________________
DEUTSCHE BANK SECURITIES INC.
By:__________________________
Its:_________________________
Accepted:
COMDISCO, INC.
By:__________________________
A-3
<PAGE>
EXHIBIT B
COMDISCO, INC.
(a Delaware corporation)
Senior Debt Securities
DELAYED DELIVERY CONTRACT
-------------------------
____________, ____
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 , (the
"Delivery Date"), principal amount of the Company's [insert title of security]
(the "Securities") offered by the Company's Prospectus dated ,
, as supplemented by its Prospectus Supplement dated , ,
receipt of which is hereby acknowledged, at a purchase price of % of the
principal amount of Securities, plus accrued interest from , ,
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 , ,
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 , , 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
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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
