-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Fshrnw9wy6fhCqKgLzMmvU7IC+tUwLDhDHhRkWLzapSsHxsy/GJK+Mg1etRFFkiY vseCUiElLSm4ch9ZuAPOwg== 0000950172-02-001574.txt : 20020719 0000950172-02-001574.hdr.sgml : 20020719 20020719153815 ACCESSION NUMBER: 0000950172-02-001574 CONFORMED SUBMISSION TYPE: T-3/A PUBLIC DOCUMENT COUNT: 8 FILED AS OF DATE: 20020719 FILER: COMPANY DATA: COMPANY CONFORMED NAME: COMDISCO INC CENTRAL INDEX KEY: 0000722487 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-COMPUTER RENTAL & LEASING [7377] IRS NUMBER: 362687938 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: T-3/A SEC ACT: 1939 Act SEC FILE NUMBER: 022-28608 FILM NUMBER: 02706637 BUSINESS ADDRESS: STREET 1: 6111 N RIVER RD CITY: ROSEMONT STATE: IL ZIP: 60018 BUSINESS PHONE: 8476983000 MAIL ADDRESS: STREET 1: 6111 NOTH RIVER ROAD CITY: ROSEMONT STATE: IL ZIP: 60018 T-3/A 1 ch333140.txt T-3/A #1 ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------------- AMENDMENT NO. 1 TO FORM T-3 FOR APPLICATIONS FOR QUALIFICATION OF INDENTURES UNDER THE TRUST INDENTURE ACT OF 1939 REORGANIZED COMDISCO, INC.* NEW LEASING CO., INC.* (Name of Applicants) 6111 North River Road, Rosemont, Illinois 60018 (Address of principal executive offices) ================================================================================ Securities to be Issued Under the Indenture to be Qualified: Title of Class Amount Variable Rate Senior Secured Notes due 2004 Aggregate principal amount of $400,000,000 ---------------------------------- Approximate date of proposed public offering: Upon the Effective Date under the Plan, presently anticipated to be on or about August 13, 2002. ---------------------------------- Ronald C. Mishler President, Chief Operating Officer and Chief Financial Officer Comdisco, Inc. 6111 North River Road Rosemont, Illinois 60018 (847) 518-5200 With copies to: L. Byron Vance III, Esq. Skadden, Arps, Slate, Meagher & Flom (Illinois) 333 West Wacker Drive, Suite 2100 Chicago, Illinois 60606 (312) 407-0700 * See Explanatory Note on following page. ================================================================================ The Applicants hereby amend this Application for Qualification on such date or dates as may be necessary to delay its effectiveness until (i) the 20th day after the filing of an amendment that specifically states that it shall supersede this Application for Qualification or (ii) such date as the Securities and Exchange Commission, acting pursuant to Section 307(c) of the Trust Indenture Act of 1939, may determine upon the written request of the Applicants. ================================================================================ EXPLANATORY NOTE As set forth in greater detail in Item 2 herein, the Notes are to be issued under the terms and subject to the conditions set forth in the Plan, which contemplates certain reorganization transactions, including the formation of, or other reorganization transaction involving, the Company and NLC. As a result, the legal entities that will ultimately be the co-issuers of the Notes are not yet formed or are not yet known. Therefore, Existing Comdisco is filing this application on Form T-3 on behalf of the Applicants. The Plan and the implementation thereof is subject to amendment and modification by the Debtors and approval by the Court and the various holders of claims against and interests in the Debtors. Accordingly, all of the information contained in this application on Form T-3 is subject to completion, amendment or modification. The Applicants, or Existing Comdisco on behalf of the Applicants, will provide such completed, amended or modified information by amendment to this application. Existing Comdisco is filing this Amendment No. 1 on behalf of the Applicants to update the description of certain provisions of the Indenture contained in Section 8 of this application and to file as exhibits to this application the forms of certificate of incorporation and by-laws of each of the Company and NLC, the form of Indenture, a cross-reference sheet showing the location in the Indenture of the provisions inserted therein pursuant to Section 310 through 318(a), inclusive, of the TIA, and a Form T-1 qualifying Wells Fargo Bank Minnesota, National Association, as trustee under the Indenture to be qualified. Capitalized terms used in this Explanatory Note without definition have the meanings ascribed to them in Items 1, 2 and 4 below. GENERAL 1. General Information. (a) Form of Organization. Each of Reorganized Comdisco, Inc. (the "Company") and New Leasing Co., Inc. ("NLC") is anticipated to be a corporation. The Company and NLC are collectively referred to herein as the "Applicants." (b) State or Other Sovereign Power Under the Laws of Which Organized. Each of the Company and NLC is anticipated to be incorporated under the laws of the State of Delaware. The mailing address for each Applicant is c/o Comdisco, Inc., 6111 North River Road, Rosemont, Illinois 60018. 2. Securities Act Exemption Applicable. On July 16, 2001, Comdisco, Inc., a Delaware corporation ("Existing Comdisco"), and fifty of its domestic subsidiaries filed voluntary petitions for relief under Chapter 11 of the United States Code, as amended (the "Bankruptcy Code"), in the United States Bankruptcy Court for the Northern District of Illinois (Existing Comdisco and its domestic subsidiaries, in such capacity, the "Debtors," and the Bankruptcy Court, the "Court"). Since such time, the Debtors have continued to operate their businesses and manage their properties as debtors in possession. The Company intends that the Applicants will offer, under the terms and subject to the conditions set forth in the Disclosure Statement (the "Disclosure Statement") and an accompanying Joint Plan of Reorganization of the Debtors under Chapter 11 of the Bankruptcy Code (as amended or supplemented from time to time, the "Plan"), copies of which are included as exhibits T3E-1 and T3E-2 respectively to this application, the Variable Rate Senior Secured Notes due 2004 (the "Notes") in an aggregate principal amount equal to $400,000,000. The Notes will be issued pursuant to the indenture to be qualified under this Form T-3 (the "Indenture"), a copy of which is filed as Exhibit T3C to this application, to be dated as of the effective date of the Plan (the "Effective Date"). The Notes will be secured by a security interest in all of the issued and outstanding capital stock of NLC and New Ventures Company, a direct wholly-owned subsidiary of NLC ("New Ventures"), and in all other U.S. entities directly owned by either of the Applicants. Pursuant to the Plan, on the Effective Date, or as soon as practicable thereafter, the Notes will be issued to holders of allowed Class C-4 Claims (consisting of general unsecured claims against the Debtors) in partial satisfaction of their claims against the Debtors. For a more complete description of the Notes, reference is made to the Indenture. The Company intends that the Notes will be offered by the Applicants in reliance on an exemption from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), afforded by Section 1145 of Title 11 of the Bankruptcy Code. Generally, Section 1145(a)(1) of the Bankruptcy Code exempts the offer and sale of securities under a bankruptcy plan of reorganization from registration under the Securities Act and under equivalent state securities and "blue sky" laws if the following requirements are satisfied: (1) the securities are issued by the debtor (or its successor) under a plan of reorganization; (2) the recipients of the securities hold a claim against the debtor, an interest in the debtor or a claim for an administrative expense against the debtor; and (3) the securities are issued entirely in exchange for the recipient's claim against or interest in the debtor or are issued "principally" in such exchange and "partly" for cash or property. The Company believes that the offer and exchange of the Notes under the Plan will satisfy the requirements of Section 1145(a)(1) of the Bankruptcy Code and, therefore, such offer and exchange is exempt from the registration requirements referred to above. AFFILIATIONS 3. Affiliates. (a) Set forth below is a list of all direct and indirect subsidiaries of Existing Comdisco, all of which are wholly owned by Existing Comdisco or its subsidiaries unless otherwise indicated. The names of indirectly owned entities are indented and listed under their direct parent entities: (i) Prior to the Effective Date:
Percent Percent Affiliate Name Owned Owned (Jurisdiction of Organization) of Direct Parent by the Company CDC Realty, Inc. (Illinois) 100% 100% CDO Capital, L.L.C. (Delaware) * 98.28% 100% CDO RM, Inc. (Delaware) 100% 100% CDO Capital, L.L.C. (Delaware) * 1.72% 100% CDS Foreign Holdings, Inc. (Delaware) 100% 100% Comdisco Holdings (U.K.) Limited (United Kingdom) * 55.15% 100% Comdisco United Kingdom Limited (United Kingdom) 100% 100% Comdisco Technology Services (Ireland) Limited (Ireland) 100% 100% Promodata SNC (France) * 1% 100% Comdisco (Switzerland), S.A. (Switzerland) 100% 100% Comdisco Factoring (Nederland) B.V. (Netherlands) 100% 100% Comdisco Deutschland GmbH (Germany) 100% 100% CCS Deutschland GmbH (Germany) 100% 100% Comdisco Australia Pty. Ltd. (New South Wales) # 99.99% 99.99% Comdisco New Zealand (New Zealand) 100% 99.99% Comdisco Austria GmbH (Austria) 100% 100% Comdisco Ceska Republika s.r.o. (Czech Republic) 100% 100% Comdisco Canada Ltd. (Ontario) 100% 100% Comdisco Canada Equipment Finance Limited Partnership (Ontario) 99% 99% Comdisco Canada Finance L.L.C. (Delaware) * 99% 100% Comdisco Equipment Solutions, Inc. (Delaware) 100% 100% Comdisco Equipment Solutions, Inc. (Japan) 100% 100% Comdisco Equipment Solutions, Ltd. (Cayman Islands) 100% 100% CES Holdings Europe C.V. (Netherlands) * 1% 100% Comdisco Equipment Solutions (Europe) B.V. (Netherlands) 100% 100% Comdisco Canada Finance, L.L.C. (Delaware) 1% 100% Comdisco Asia Pte Ltd (Singapore) 100% 100% Comdisco Equipment Solutions Holdings N.V. (Netherland-Antilles) 100% 100% CES Holdings Europe C.V. (Netherlands) * 99% 100% Comdisco Finance (Nederland) B.V. (Netherlands) 100% 100% Comdisco Financial Services, Inc. (Delaware) 100% 100% Comdisco France S.A. (France) # 99.98% 99.98% Promodata SNC (France) * 99% 100% Comdisco GmbH & Co. Leasing and Finance KG (Germany) * 99.25% 100% Comdisco Lease Finance Partnership, L.P. (Cayman Islands)* 99.33% 100% Comdisco Healthcare Group, Inc. (Delaware) 100% 100% Comdisco Holdings (U.K.) Limited (United Kingdom)* 44.85% 100% Comdisco United Kingdom Limited (United Kingdom) 100% 100% Comdisco Belgium S.P.R.L. (Belgium) 100% 100% Comdisco Direct (UK) Limited (United Kingdom) 100% 100% Comdisco Espana, S.L. (Spain) 100% 100% Comdisco Ireland Limited (Ireland) 100% 100% Comdisco Sweden A.B. (Sweden) 100% 100% Comdisco Hungaria Kft. (Hungary) 100% 100% Comdisco International Holdings, Inc. (Illinois) 100% 100% Comdisco International Holdings, Ltd. (Cayman Islands) 100% 100% Comdisco Investment Group, Inc. (Delaware) 100% 100% Comdisco GmbH & Co. Leasing and Finance KG (Germany) * 0.74% 100% Comdisco Lease Finance Partnership, L.P. (Cayman Islands) * 99.33% 100% Comdisco Italia S.p.A. (Italy) # 95% 95% Comdisco Labs, Inc. (Delaware) 100% 100% Comdisco Lease Finance Partnership, L.P. (Cayman Islands) * 0.67% 100% Comdisco Management GmbH (Germany) 100% 100% Comdisco GmbH & Co. Leasing and Finance KG (Germany) * 0.01% 100% Comdisco Medical Exchange, Inc. (Delaware) 100% 100% Comdisco Polska Sp.z.o.o. (Poland) 100% 100% Comdisco Software Development Company Limited (Ireland) 100% 100% Comdisco Technology Services (Holland) B.V. (Netherlands) 100% 100% Comdisco Trade, Inc. (Delaware) 100% 100% Comdisco de Mexico, S.A. de C.V. (Mexico) * 10% 100% Comdisco de Mexico, S.A. de C.V. (Mexico) * 90% 100% Comdisco do Brasil Comercial Ltda. (Brazil) # 99.99% 99.99% Computer Discount Corporation (Illinois) 100% 100% Hybrid Venture Partners, L.P. (Delaware) 30% 30% Prism Communication Services, Inc. (Delaware) 95.52% 95.52% Prism Arizona Operations, LLC (Delaware) 100% 95.52% Prism California Operations, LLC (Delaware) 100% 95.52% Prism Canada Operations, Inc. (Delaware) 100% 95.52% Prism Canadian Operations, LLC (Delaware) 100% 95.52% Prism Colorado Operations, LLC (Delaware) 100% 95.52% Prism Connecticut Operations, LLC (Delaware) 100% 95.52% Prism Delaware Operations, LLC (Delaware) 100% 95.52% Prism District of Columbia Operations, LLC (Delaware) 100% 95.52% Prism Florida Operations, LLC (Delaware) 100% 95.52% Prism Georgia Operations, LLC (Delaware) 100% 95.52% Prism Illinois Operations, LLC (Delaware) 100% 95.52% Prism Indiana Operations, LLC (Delaware) 100% 95.52% Prism Investments, Inc. (Delaware) 100% 95.52% Prism Kansas Operations, LLC (Delaware) 100% 95.52% Prism Kentucky Operations, LLC (Delaware) 100% 95.52% Prism Leasing, LLC (Delaware) 100% 95.52% Prism Management Services, LLC (Delaware) 100% 95.52% Prism Maryland Operations, LLC (Delaware) 100% 95.52% Prism Massachusetts Operations, LLC (Delaware) 100% 95.52% Prism Michigan Operations, LLC (Delaware) 100% 95.52% Prism Minnesota Operations, LLC (Delaware) 100% 95.52% Prism Missouri Operations, LLC (Delaware) 100% 95.52% Prism New Jersey Operations, LLC (New Jersey) 100% 95.52% Prism New York Operations, LLC (Delaware) 100% 95.52% Prism North Carolina Operations (Delaware) 100% 95.52% Prism Ohio Operations, LLC (Delaware) 100% 95.52% Prism Operations, LLC (Delaware) 100% 95.52% Prism Oregon Operations, LLC (Delaware) 100% 95.52% Prism Pennsylvania Operations, LLC (Delaware) 100% 95.52% Prism Resp Org, LLC (Delaware) 100% 95.52% Prism Rhode Island Operations, LLC(Delaware) 100% 95.52% Prism Texas Operations, LLC (Delaware) 100% 95.52% Prism Virginia Operations, LLC (Delaware) 100% 95.52% Prism Washington Operations, LLC (Delaware) 100% 95.52% Prism Wisconsin Operations, LLC (Delaware) 100% 95.52% Rosemont Equities, LLC (Delaware) 100% 100% Rosemont Venture Management I, L.L.C. (Delaware) 100% 100% Technology Receivables, L.L.C. (Delaware) 100% 100% _______________________________ * Multiple parents. # Remaining shares held by directors of the entity as required by applicable law.
(ii) After the Effective Date, the following is a list of all of the anticipated direct and indirect subsidiaries of the Company, all of which are anticipated to be wholly owned by the Company or its subsidiaries unless otherwise indicated:
Percent Percent Affiliate Name Owned Owned (Jurisdiction of Organization) of Direct Parent by the Company New Europe Holding Company (Delaware) + 100% 100% Comdisco Australia Pty Ltd (New South Wales) 100% 100% Comdisco New Zealand (New Zealand) 100% 100% Comdisco Canada Limited (Ontario) 100% 100% Comdisco Canada Equipment Finance Limited Partnership (Ontario) 99% 99% Comdisco Canada Finance L.L.C. (Delaware) * 99% 100% Comdisco do Brazil Commercial Ltda. (Brazil) # 99.99% 99.99% Comdisco Equipment Solutions, Inc. (Japan) 100% 100% Comdisco Equipment Solutions, Inc. (Delaware) 100% 100% Comdisco Foreign Holdings, Inc. (Delaware) 100% 100% Comdisco Austria GmbH (Austria) 100% 100% Comdisco Ceska Republika s.r.o. (Czech Republic) 100% 100% Comdisco Equipment Solutions Ltd. (Cayman Islands) 100% 100% Comdisco Asia Pte Ltd. (Singapore) 100% 100% Comdisco Equipment Solutions Holdings N.V. 100% 100% (Netherland-Antilles) CES Holdings Europe C.V. (Netherlands) * 99% 100% CES Holdings Europe C.V. (Netherlands) * 1% 100% Comdisco Equipment Solutions (Europe) B.V. 100% 100% (Netherlands) Comdisco Canada Finance, L.L.C. (Delaware) 1% 100% Comdisco France S.A. (France) # 99.98% 99.98% Promodata SNC (France) * 99% 100% Comdisco Finance (Nederland) B.V. (Netherlands) 100% 100% Comdisco GmbH & Co. Leasing and Finance KG (Germany) * 99.25% 100% Comdisco Lease Finance Partnership (Cayman Islands) * 99% 100% Comdisco Holdings (U.K.) Limited (United Kingdom) 100% 100% Comdisco United Kingdom Limited (United Kingdom) 100% 100% Comdisco Belgium S.P.R.L. (Belgium) 100% 100% Comdisco Espana S.L. (Spain) 100% 100% Comdisco Ireland Limited (Ireland) 100% 100% Comdisco Sweden A.B. (Sweden) 100% 100% Comdisco Hungaria Kft. (Hungary) 100% 100% Comdisco Italia S.p.A. (Italy) # 95% 95% Comdisco Lease Finance Partnership (Cayman Islands) * 1% 100% Comdisco Management GmbH (Germany) * 100% 100% Comdisco GmbH & Co. Leasing and Finance KG (Germany) * 0.01% 100% Comdisco Polska S.p.z.o.o. (Poland) 100% 100% Promodata SNC (France) * 1% 100% Comdisco Software Development Company, Ltd. (Ireland) 100% 100% Comdisco (Switzerland) S.A. (Switzerland) 100% 100% Comdisco Factoring (Nederland) B.V. (Netherlands) 100% 100% Comdisco Deutschland GmbH (Germany) 100% 100% CCS Deutschland GmbH (Germany) 100% 100% Comdisco Technology Service (Holland) B.V. (Netherlands) 100% 100% Comdisco Technology Service (Ireland) B.V. (Ireland) 100% 100% Comdisco International Holdings Ltd. (Cayman Islands) 100% 100% Comdisco Investment Group, Inc. (Delaware) 100% 100% Comdisco GmbH & Co. Leasing and Finance KG (Germany) * 0.74% 100% New Leasing Co., Inc. (Delaware) + 100% 100% New Ventures Company (Delaware) + 100% 100% _________________________ * Multiple parents. + Entity has not yet been formed or organized. Information will supplied by amendment. # Remaining shares held by directors of the entity as required by applicable law.
(b) See Item 4 for "Directors and Executive Officers" of the Applicants, some of whom may be deemed to be "affiliates" of the Applicants by virtue of their positions. (c) See Item 5 for "Principal Owners of Voting Securities" of the Applicants, some of whom may be deemed to be "affiliates" of the Applicants by virtue of their holdings. (d) Except as set forth in Items 3, 4 and 5 of this application, the Applicants' affiliates, including the basis of control with respect thereto, will be unchanged upon the Effective Date. MANAGEMENT AND CONTROL 4. Directors and Executive Officers. (a) Current Directors and Executive Officers. (1) The following table sets forth the names of, and all offices held by, all current directors and executive officers (as defined in Sections 303(5) and 303(6) of the Trust Indenture Act of 1939 (the "TIA"), respectively) of Existing Comdisco. The mailing address for each director and executive officer listed below is c/o Comdisco, Inc., 6111 North River Road, Rosemont, Illinois 60018. Norman P. Blake, Jr. Chairman of the Board, Director and Chief Executive Officer C. Keith Hartley Director Rick Kash Director Harry M. Jansen Kraemer, Jr. Director Carolyn L. Murphy Director Thomas H. Patrick Director Nicholas K. Pontikes Director William N. Pontikes Director and Executive Vice President James F. Voelker Director Robert E.T. Lackey Executive Vice President, Chief Legal Officer and Secretary Ronald C. Mishler President, Chief Operating Officer and Chief Financial Officer Nazneen Razi Executive Vice President and Chief Administrative Officer Gregory D. Sabatello Executive Vice President and Chief Information Officer Robert E. Koe President and Chief Executive Officer (Comdisco Europe, a division of Comdisco, Inc.) Francis J. Cirone Senior Vice President Jeffrey L. McCoy Senior Vice President and Treasurer John R. McNally, Jr. Senior Vice President and President (Corporate Asset Management, a division of Comdisco, Inc.) Lloyd Cochran Vice President (Financial Planning and Analysis) Michael D. Felish Vice President (Tax) David S. Reynolds Controller (2) As of the date of the filing of this amendment, the Applicants have not been formed or organized and therefore do not have any directors or executive officers. The names of, and all offices held by, all directors and executive officers (as defined in Sections 303(5) and 303(6) of the TIA, respectively) of the Company and NLC prior to the Effective Date will be provided by amendment to this application when such information becomes available. The mailing address for each such director and executive officer is anticipated to be c/o Comdisco, Inc., 6111 North River Road, Rosemont, Illinois 60018. (b) Directors and Executive Officers as of the Effective Date. As of the Effective Date, the board of directors of the Company initially will consist of five members: the Official Committee of Unsecured Creditors shall be entitled to appoint four directors and the Chief Executive Officer, who shall be Chairman of the board of directors, shall be the fifth director. The board of directors of NLC shall consist of directors as determined by the Company on the Effective Date or thereafter. The mailing address for the directors of the Applicants is c/o Comdisco, Inc., 6111 North River Road, Rosemont, Illinois 60018. The executive officers referred to in Item 4(a) above for the Company will continue to serve as executive officers as of the Effective Date, with the exception of the Chief Executive Officer of the Company. As of the Effective Date, Ronald C. Mishler will become the new Chief Executive Officer of the Company. The address for each such executive officer is c/o Comdisco, Inc., 6111 North River Road, Rosemont, Illinois 60018. The executive officers referred to in Item 4(a) above for NLC will continue to serve as executive officers, as of the Effective Date. The address for each such executive officer is c/o Comdisco, Inc., 6111 North River Road, Rosemont, Illinois 60018. 5. Principal Owners of Voting Securities. (a) Voting Securities as of the Date of this Application. Presented below is certain information regarding each person owning 10% or more of the voting securities of Existing Comdisco as of the date of this application. The information with respect to the holders of Existing Comdisco's voting securities is drawn from information that has been publicly filed with the SEC. The mailing address for Existing Comdisco is 6111 North River Road, Rosemont, Illinois 60018. Information regarding each person owning 10% or more of the voting securities of the Applicants will be provided by amendment to this application when such information becomes available. NLC is anticipated to be a wholly-owned direct subsidiary of the Company. (i) Existing Comdisco Name and Complete Mailing Address Voting Security --------------------------------- --------------- Nicholas K. Pontikes 22,850,447 shares of Common 1212 West Lill Avenue Stock * Chicago, Illinois 60614 15.18% of Common Stock * Based on information contained in an Amendment No. 5 to Schedule 13D filed by Mr. Pontikes with the SEC on January 11, 2002. (ii) Company Information regarding each person owning 10% or more of the voting securities of the Company will be provided by amendment to this application when such information becomes available. (iii) NLC Information regarding each person owning 10% or more of the voting securities of NLC will be provided by amendment to this application when such information becomes available. (b) Voting Securities as of the Effective Date. Information regarding each person expected, on the basis of present holdings, commitments and information, to own 10% or more of the Company's voting securities outstanding as of the Effective Date will be provided by amendment to this application when it becomes available. NLC is anticipated to continue to remain a wholly-owned subsidiary of the Company as of the Effective Date. Under the Plan, holders of allowed Class C-4 Claims will receive a pro rata share, based on the respective amounts of their claims, of New Common Shares to be issued and outstanding following the Effective Date. For purposes of the following calculations, the Applicants have assumed that the total amount of the allowed Class C-4 Claims will be $4,057,081,334. The Debtors estimate, however, that the equity value of the New Common Shares will be approximately $528.1 million, approximately 13.0% of the total amount of allowed Class C-4 Claims. As described in Item 7(b) below, the total amount of the allowed Class C-4 Claims may not be fully known until after the Effective Date. UNDERWRITERS 6. Underwriters. (a) As of the date of the filing of this application, no person has acted as an underwriter for any securities of the Applicants within the three years prior to the date of the filing. Except for the persons listed below, within the three years prior to the date of the filing of this application no other person acted as an underwriter of any securities of Existing Comdisco which were outstanding on the date of this application:
Name and Address of Underwriter Security Underwritten ------------------------------- --------------------- Banc of America Securities LLC(1) 9.500 % Senior Notes due August 15, 2003 2800 Sears Tower 7.250 % Senior Notes due September 1, 2002 Chicago, IL 60606 Banc One Capital Markets, Inc. 9.500 % Senior Notes due August 15, 2003 1 Banc One Plaza 16th Floor Chicago, IL 60670-0084 Barclays Capital Inc. 7.250 % Senior Notes due September 1, 2002 222 Broadway New York, NY 10038 Bear, Stearns & Co., Inc. 9.500 % Senior Notes due August 15, 2003 245 Park Avenue 7.250 % Senior Notes due September 1, 2002 New York, NY 10167 Credit Lyonnais Securities (USA) Inc. 7.250 % Senior Notes due September 1, 2002 1301 Avenue of the Americas New York, NY 10019 Deutsche Bank Securities Inc. 9.500 % Senior Notes due August 15, 2003 31 West 52nd Street New York, NY 10019 Merrill Lynch, Pierce, Fenner 9.500 % Senior Notes due August 15, 2003 & Smith Incorporated 7.250 % Senior Notes due September 1, 2002 4 World Financial Center 5th Floor New York, NY 10080 Salomon Smith Barney Inc. 9.500 % Senior Notes due August 15, 2003 8700 Sears Tower 7.250 % Senior Notes due September 1, 2002 Chicago, IL 60606 Mellon Financial Markets, LLC 9.500 % Senior Notes due August 15, 2003 1 Mellon Bank Center, Room 475 Grant Street Pittsburgh, PA 15258 UBS Warburg LLC(2) 7.250 % Senior Notes due September 1, 2002 677 Washington Boulevard Stamford, CT 06901 __________ 1 Successor to Nationsbanc Montgomery Securities LLC. 2 Successor to Warburg Dillon Read LLC.
(b) No person is acting, or proposed to be acting, as principal underwriter of the securities proposed to be offered pursuant to the Indenture. CAPITAL SECURITIES 7. Capitalization. (a) Capital Securities on June 30, 2002. The following tables set forth certain information with respect to each authorized class of securities of Existing Comdisco as of June 30, 2002. Information regarding each authorized class of securities of each of the Applicants will be provided by amendment to this application when such information becomes available. (i) Existing Comdisco
Title of Class Amount Authorized Amount Outstanding - ------------------------------------------------------------------ -------------------------- ----------------------------- Comdisco Stock (Common Stock), 750,000,000 150,558,942 shares issued $0.10 par value per share shares authorized and outstanding - ------------------------------------------------------------------ -------------------------- ----------------------------- Comdisco Ventures Stock (Common Stock), 750,000,000 No shares issued and $0.10 par value per share shares authorized outstanding - ------------------------------------------------------------------ -------------------------- ----------------------------- Undesignated Common Stock, 300,000,000 No shares issued and $0.10 par value per share shares authorized outstanding - ------------------------------------------------------------------ -------------------------- ----------------------------- Series C Junior Participating Preferred Stock, 200,000 No shares issued and $0.10 par value per share shares authorized outstanding - ------------------------------------------------------------------ -------------------------- ----------------------------- Series D Junior Participating Preferred Stock, 200,000 No shares issued and $0.10 par value per share shares authorized outstanding - ------------------------------------------------------------------ -------------------------- ----------------------------- Undesignated Preferred Stock, 99,600,000 No shares issued and $0.10 par value per share shares authorized outstanding - ------------------------------------------------------------------ -------------------------- ----------------------------- 6.375 % Senior Notes due November 30, 2001 $250,000,000 $249,900,000 - ------------------------------------------------------------------ -------------------------- ----------------------------- 6.000 % Senior Notes due January 30, 2002 $350,000,000 $345,030,000 - ------------------------------------------------------------------ -------------------------- ----------------------------- 5.950 % Senior Notes due April 30, 2002 $350,000,000 $345,000,000 - ------------------------------------------------------------------ -------------------------- ----------------------------- 7.250 % Senior Notes due September 1, 2002 $350,000,000 $257,505,000 - ------------------------------------------------------------------ -------------------------- ----------------------------- 6.125 % Senior Notes due January 15, 2003 $250,000,000 $193,970,000 - ------------------------------------------------------------------ -------------------------- ----------------------------- 6.130 % Senior Notes due August 1, 2006 $275,000,000 $267,115,000 - ------------------------------------------------------------------ -------------------------- ----------------------------- 9.500 % Senior Notes due August 15, 2003 $500,000,000 $477,000,000 - ------------------------------------------------------------------ -------------------------- ----------------------------- 6.850 % Series H Medium Term Notes due August 9, 2001 $25,000,000 $25,000,000 - ------------------------------------------------------------------ -------------------------- ----------------------------- 7.230 % Series H Medium Term Notes due August 16, 2001 $62,500,000 $62,500,000 - ------------------------------------------------------------------ -------------------------- ----------------------------- 7.250 % Series H Medium Term Notes due September 20, 2001 $100,000,000 $100,000,000 - ------------------------------------------------------------------ -------------------------- ----------------------------- 7.020 % Series H Medium Term Notes due September 24, 2001 $30,000,000 $30,000,000 - ------------------------------------------------------------------ -------------------------- ----------------------------- 7.620 % Series H Medium Term Notes due March 29, 2002 $25,000,000 $25,000,000 - ------------------------------------------------------------------ -------------------------- ----------------------------- 7.750 % Series H Medium Term Notes due April 11, 2003 $100,000,000 $47,500,000 - ------------------------------------------------------------------ -------------------------- ----------------------------- 6.620 % Series E Medium-Term Notes due November 1, 2001 $25,000,000 $25,000,000 - ------------------------------------------------------------------ -------------------------- ----------------------------- 6.650 % Series G Medium-Term Notes due November 13, 2001 $106,000,000 $106,000,000 - ------------------------------------------------------------------ -------------------------- ----------------------------- 6.340 % Series G Medium-Term Notes due January 11, 2002 $19,000,000 $19,000,000 - ------------------------------------------------------------------ -------------------------- ----------------------------- 6.200 % Series G Medium-Term Notes due March 29, 2002 $20,000,000 $20,000,000 - ------------------------------------------------------------------ -------------------------- ----------------------------- 6.290 % Series G Medium-Term Notes due June 30, 2003 $19,000,000 $4,750,000 - ------------------------------------------------------------------ -------------------------- ----------------------------- 9.500 % Series B Medium-Term Notes due January 28, 2002 $15,000,000 $15,000,000 - ------------------------------------------------------------------ -------------------------- -----------------------------
(ii) Company Information regarding each authorized class of securities of the Company will be provided by amendment to this application when such information becomes available. (iii) NLC Information regarding each authorized class of securities of NLC will be provided by amendment to this application when such information becomes available. (b) Capital Securities as of the Effective Date. The anticipated authorized classes of securities, and the numbers of authorized and outstanding securities of the Applicants, as of the Effective Date, are set forth below. (i) Company
- -------------------------------------------------------------- ----------------------------- ------------------------------ Title of Class Amount Authorized Amount Outstanding - -------------------------------------------------------------- ----------------------------- ------------------------------ New Common Stock, $0.01 par value per share Unknown; to be provided by Unknown; to be provided by amendment amendment - -------------------------------------------------------------- ----------------------------- ------------------------------ Variable Rate Senior Secured Notes due 2004 * $400,000,000 $400,000,000 - -------------------------------------------------------------- ----------------------------- ------------------------------ 11% Subordinated Secured Notes due 2005 * up to $500,000,000 up to $500,000,000 - -------------------------------------------------------------- ----------------------------- ------------------------------ * NLC is anticipated to be a co-issuer of these securities.
(ii) NLC
- -------------------------------------------------------------- ----------------------------- ------------------------------ Title of Class Amount Authorized Amount Outstanding - -------------------------------------------------------------- ----------------------------- ------------------------------ Common Stock, $0.01 par value per share Unknown; to be provided by Unknown; to be provided by amendment amendment - -------------------------------------------------------------- ----------------------------- ------------------------------ Variable Rate Senior Secured Notes due 2004 * $400,000,000 $400,000,000 - -------------------------------------------------------------- ----------------------------- ------------------------------ 11% Subordinated Secured Notes due 2005 * up to $500,000,000 up to $500,000,000 - -------------------------------------------------------------- ----------------------------- ------------------------------ * The Company is anticipated to be a co-issuer of these securities.
The Company will hold back from the initial issuance of New Common Shares and Notes on the Effective Date a percentage of, among other things, New Common Shares and the Notes (the "Reserve") to be issued to holders of allowed Class C-4 Claims. The reason for this is that the total amount of, and the identities of the holders of, the allowed Class C-4 Claims will not be known until after the Effective Date, either because certain allowed Class C-4 Claims will be Disputed Claims (as defined in the Plan) or because those Claims will not have been made by their holders prior to the Effective Date. The initial distribution with respect to allowed Class C-4 Claims will be made only to the holders of allowed Class C-4 Claims that have been allowed prior to the Effective Date (the "Cutoff Date"). Once the total amount of the allowed Class C-4 Claims has been determined, the shares of New Common Shares and the Notes held in the Reserve will be distributed pro rata on a quarterly basis among the holders of the allowed Class C-4 Claims (the date of this distribution, the "Quarterly Distribution Date"). Distributions are not required to be made on a Quarterly Distribution Date if the value of the property held in the Reserve is insufficient. (c) Voting Rights. (1) Company. The current holders of Existing Comdisco's Common Stock are entitled to one vote for each share held of record on all matters voted upon by stockholders, and a majority vote is required for all action to be taken by stockholders. Cumulative voting of shares is prohibited. No holder of any other securities of Existing Comdisco is entitled to vote on matters submitted to a vote of stockholders. The voting rights of the New Common Stock of the Company issued on the Effective Date will be identical to the voting rights of Existing Comdisco's Common Stock described in this Item 7(c)(1). Under the Plan, Existing Comdisco's existing Common Stock will be cancelled as of the Effective Date. (2) NLC. The anticipated holder of NLC's Common Stock, the Company, is anticipated to be entitled to one vote for each share held of record on all matters voted upon by stockholders, and a majority vote is anticipated to be required for all action to be taken by stockholders. Cumulative voting of shares is anticipated to be prohibited. No holder of any other securities of NLC is anticipated to be entitled to vote on matters submitted to a vote of stockholders. The voting rights of NLC's Common Stock on and after the Effective Date will be identical to the voting rights of NLC's Common Stock described in this Item 7(c)(2). INDENTURE SECURITIES 8. Analysis of Indenture Provisions. The following is a general description of certain provisions of the Indenture. The description is qualified in its entirety by reference to the form of Indenture filed as Exhibit T3C hereto. The following general description is subject to amendment, modification and completion upon finalization of the Indenture. Capitalized terms used below and not defined herein have the meanings given to such terms in the Indenture. (a) Events of Default; Withholding of Notice An "Event of Default" occurs under the Indenture if: (1) the Applicants default in the payment when due of interest on the Notes and such default continues for a period of 30 days; (2) the Applicants default in the payment when due of principal of or premium, if any, on the Notes whether at maturity, upon redemption (including in connection with an offer to purchase) or otherwise; (3) the Applicants or certain of their subsidiaries fail to comply with the restrictions concerning modifications to corporate existence or mergers, consolidations or sales of all or substantially all assets; (4) the Applicants fail to observe or perform any other covenant, representation, warranty or other agreement under the Indenture or the Notes for 60 days after written notice to (i) the Applicants by the Trustee or (ii) the Applicants and the Trustee by the holders of at least 25% in aggregate principal amount of the Notes then outstanding; (5) a default occurs under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Applicants (but not including any indebtedness or obligation for which recourse is limited to the property purchased), whether such Indebtedness or guarantee now exists, or is created after the date of the Indenture, which default results in the acceleration of such Indebtedness prior to its express maturity and, in each case, the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness the maturity of which has been so accelerated, aggregates $25.0 million or more and such Indebtedness is not paid or such acceleration is not annulled within 10 days after written notice to the Applicants of such acceleration; (6) the rendering of a final judgment or final judgments for the payment of money is/are entered by a court or courts of competent jurisdiction against either the Company or NLC and such judgment or judgments remain undischarged for a period (during which execution shall not be effectively stayed) of 60 days, provided that the aggregate of all such undischarged judgments (to the extent not covered by insurance) exceeds $10.0 million; (7) the Company or NLC pursuant to or within the meaning of any applicable U.S. Federal or State or other applicable bankruptcy, insolvency, reorganization or other similar law: (i) commences a voluntary case; (ii) consents to the entry of an order for relief against it in an involuntary case; (iii) consents to the appointment of a custodian of it or for all or substantially all of its property; (iv) makes a general assignment for the benefit of its creditors; (v) admits in writing its inability to pay its debts as the same becomes due; or (vi) generally is not paying its debts as they become due; or (8) a court of competent jurisdiction enters an order or decree under any applicable U.S. Federal or State or other applicable bankruptcy, insolvency, reorganization or other similar law that: (i) is for relief against the Company or NLC in an involuntary case; (ii) appoints a custodian of the Company or NLC or for all or substantially all of the property of the Company or NLC; or (iii) orders the liquidation of the Company or NLC other than pursuant to the Plan; and the order or decree remains unstayed and in effect for 60 consecutive days. If any Event of Default (other than an Event of Default specified in clause (7) or (8) above with respect to the Company or NLC) occurs and is continuing, then and in every such case the Trustee or the holders of at least 25% in principal amount of the then outstanding Notes may, by a notice in writing to the Applicants, declare all the Notes to be due and payable immediately. Upon any such declaration, the Notes will become due and payable immediately. Notwithstanding the foregoing, if an Event of Default specified in clause (7) or (8) above occurs with respect to the Company or NLC, all outstanding Notes shall be due and payable immediately without further action or notice. At any time after such a declaration of acceleration has been made, the holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Applicants and the Trustee may, on behalf of all of the holders, rescind and annul such declaration of acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default (except nonpayment of principal, interest or premium, if any, that has become due solely because of the acceleration) have been cured or waived. Holders of not less than a majority in aggregate principal amount of the then outstanding Notes by written notice to the Applicants and the Trustee may, on behalf of the holders of all of the Notes, waive an existing default or Event of Default and its consequences hereunder, except (i) a continuing default or Event of Default in the payment of the principal of, premium, if any, or interest on, the Notes (including in connection with an offer to purchase) or (ii) with respect to any covenant or provision of the Indenture which cannot be modified or amended without the consent of the holders of each outstanding Note affected; provided, however, that the holders of a majority in aggregate principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such default will cease to exist, and any Event of Default arising therefrom will be deemed to have been cured for every purpose of the Indenture; provided, however, that no such waiver will extend to any subsequent or other default or Event of Default or impair any right consequent thereon. If an Event of Default specified in clause (1) or (2) of the first paragraph above occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Applicants for the whole amount of principal of, premium, if any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as will be sufficient to cover the compensation to the Trustee and its agents for all services rendered by them as will have been agreed upon in writing from time to time among the Trustee or such agents, as the case may be, and the Applicants and the costs and expenses of collection, including the reasonable expenses, disbursements and advances of the Trustee (including the reasonable compensation and the reasonable expenses and disbursements of its agents and counsel). If a default or Event of Default occurs and is continuing and if it is known to the Trustee, the Trustee will mail to holders of Notes a notice of the default or Event of Default within 90 days after the occurrence of such default or Event of Default. Except in the case of a default or Event of Default in payment of principal of, premium, if any, or interest on any Note, the Trustee may withhold the notice if and so long as a committee of its responsible officers in good faith determines that withholding the notice is in the interests of the holders of the Notes. (b) Authentication and Delivery of the Notes under the Indenture and Application of Proceeds thereof. The Notes shall be executed on behalf of the Applicants by any two (2) of the Chairman of the Board, Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Chief Operating Officer, the Chief Financial Officer, the Controller, the Treasurer or any Assistant Treasurer (collectively, the "Officers") of both the Company and NLC. The signature of any of these Officers on the Notes may be manual or facsimile. If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note will nevertheless be valid. A Note will not be valid until authenticated by the manual signature of an authorized signatory of the Trustee on the certificate of authentication of the Note. The signature will be conclusive evidence that the Note has been authenticated under the Indenture. The Trustee will, upon a written order of the Applicants signed by two (2) Officers of both the Company and NLC specifying the date on which the Notes are to be authenticated, authenticate Notes for original issue up to the aggregate principal amount of the Notes. The aggregate principal amount of Notes outstanding at any time may not exceed such amount except as otherwise provided by the express terms of the Indenture. The Trustee may appoint an authenticating agent acceptable to the Applicants to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. The Notes will be issued pursuant to the Plan to holders of allowed Class C-4 claims (consisting of general unsecured claims against the Company) in partial satisfaction of their claims against the Company; accordingly, no proceeds will be derived from the issuance of the Notes. (c) Release of any Note Collateral Subject to the Lien of the Indenture. The Notes will be secured by a security interest in all of the issued and outstanding capital stock of NLC, New Ventures and in all other U.S. entities directly owned by either of the Applicants (the "Collateral"). Collateral may be released from the security interest created by the pledge agreement and other security documents (the "Collateral Documents") at any time or from time to time, and the Collateral Documents may be terminated, in accordance with the provisions of the Indenture and the Collateral Documents. The release of any Collateral from the terms of the Indenture and of the Collateral Documents or the release of, in whole or in part, the liens created by the Collateral Documents, or the termination of the Collateral Documents, will not be deemed to impair the lien on the Collateral in contravention of any Indenture provision if and to the extent the Collateral or liens are released, or the Collateral Documents are terminated, pursuant to the Indenture and the applicable Collateral Documents. The Trustee and each of the holders acknowledge that a release of Collateral or a lien strictly in accordance with the terms of the Collateral Documents will not be deemed for any purpose to be an impairment of the lien on the Collateral in contravention of the terms of the Indenture. Notwithstanding the foregoing, at any time when an Event of Default has occurred and is continuing and the maturity of the Notes has been accelerated (whether by declaration or otherwise) and the Trustee has delivered a notice of acceleration to the collateral agent, no release of Collateral pursuant to the provisions of the Collateral Documents will be effective as against the holders of Notes or the Trustee, except in connection with foreclosure sales. To the extent applicable, the Applicants will cause TIA ss. 313(b), relating to reports, and TIA ss. 314(d), relating to the release of property or securities from the lien and security interest of the Collateral Documents and the Indenture and relating to the substitution therefor of any property or securities to be subjected to the lien and security interest of the Collateral Documents and the Indenture, to be complied with. Any certificate or opinion required by TIA ss. 314(d) may be made by an Officer of the applicable Applicant except in cases where TIA ss. 314(d) requires that such certificate or opinion be made by an independent Person, which Person will be an independent engineer, appraiser, accountant or other expert selected or approved by the Trustee and the collateral agent in the exercise of reasonable care. (d) Satisfaction and Discharge of the Indenture. The Indenture will be discharged and will cease to be of further effect as to all Notes issued, when: (1) either: A. all Notes that have been authenticated (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Applicants) have been delivered to the Trustee for cancellation; or B. all Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the making of a notice of redemption or otherwise or will become due and payable within one year and the Issuers have irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the holders, cash in U.S. dollars, non-callable government securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption; (2) no default or Event or Default shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit will not result in a breach or violation or of, or constitute a default under, any other instrument to which either of the Applicants is a party or by which either of the Applicants is bound; (3) the Applicants have paid or caused to be paid all sums payable by them under the Indenture; and (4) the Applicants have delivered irrevocable written instructions to the Trustee under the Indenture to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be. In addition, the Applicants must deliver officers' certificates to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied. Notwithstanding the satisfaction and discharge of the Indenture, if money has been deposited with the Trustee pursuant to subclause (B) above, the provisions of the Indentures regarding the application of trust money will survive. (e) The Evidence Required to be Furnished by the Obligor to the Trustee as to Compliance with the Conditions and the Covenants Provided for in the Indenture. The Indenture requires: (1) Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Company is required to furnish to the Trustee and the holders of Notes within the time periods specified in the SEC's rules and regulations (i) all quarterly and annual financial information that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K (or any successor forms) if the Company was required to file such forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" and, with respect to the annual information only, a report on the annual financial statements by the Company's certified independent accountants and (ii) all current reports that would be required to be filed with the SEC on Form 8-K (or any successor forms) if the Company was required to file such reports. In addition, whether or not required by the rules and regulations of the SEC, the Company shall file a copy of all such information and reports with the SEC for public availability within the time periods specified in the SEC's rules and regulations (unless the SEC will not accept such a filing) and make such information available to securities analysts and prospective investors upon request. The Company will at all times comply with TIA ss. 314(a). (2) The Applicants will deliver to the Trustee, within 120 days after the end of each fiscal year, an officers' certificate stating that a review of the activities of the Applicants and their subsidiaries during the preceding fiscal year has been made under the supervision of the signing officers with a view to determining whether each of the Applicants and their subsidiaries has kept, observed, performed and fulfilled their obligations under the Indenture, and further stating, as to each such officer signing such certificate, that to the best of his or her knowledge each of the Applicants has kept, observed, performed and fulfilled each and every covenant contained in the Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of the Indenture (or, if a default or Event of Default has occurred, describing all such defaults or Events of Default of which he or she may have knowledge and what action each of the Applicants, as the case may be, is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of or interest, if any, on the Notes is prohibited or if such event has occurred, a description of the event, its nature and status and what action each of the Applicants, as the case may be, is taking or proposes to take with respect thereto. (3) So long as not contrary to the then current recommendations of the American Institute of Certified Public Accountants, the year-end financial statements delivered pursuant to clause (1) above shall be accompanied by a written statement of the Company's independent public accountants (who shall be a firm of established national reputation) that in making the examination necessary for certification of such financial statements, nothing has come to their attention that would lead them to believe that the Company has violated any certain provisions of the Indenture or, if any such violation has occurred, specifying the nature and period of existence thereof, it being understood that such accountants shall not be liable directly or indirectly to any person for any failure to obtain knowledge of any such violation. (4) The Applicants will, so long as any of the Notes are outstanding, deliver to the Trustee, within 10 days after any Officer of the either of the Applicants becomes aware of any Event of Default, an officers' certificate specifying such Event of Default, the period of existence thereof and what action each of the Applicants, as the case may be, is taking or proposes to take with respect thereto. (5) In the event that any other indebtedness of the Applicants that is contractually subordinated to the Notes is declared due and payable before the stated maturity of such indebtedness because of the occurrence of an event of default thereunder, the Issuers shall give prompt notice in writing of such happening to the Trustee. 9. Other Obligors. Aside from the Company and NLC, there is no other person who is anticipated to be an Obligor under the Indenture. Contents of application for qualification. This application for qualification comprises: (a) Pages number 1 to 23, consecutively. (b) The statement of eligibility and qualification on Form T-1 of Wells Fargo Bank Minnesota, National Association, as Trustee under the indenture to be qualified (filed herewith as Exhibit 25.1). (c) The following exhibits in addition to those filed as part of the statement of eligibility and qualification of the Trustee: EXHIBIT DESCRIPTION Exhibit T3A-1 Form of Certificate of Incorporation of the Company to become effective as of the Effective Date (filed herewith). Exhibit T3A-2 Form of Certificate of Incorporation of NLC to become effective as of the Effective Date (filed herewith). Exhibit T3B-1 Form of Bylaws of the Company to become effective as of the Effective Date (filed herewith). Exhibit T3B-2 Form of Bylaws of NLC to become effective as of the Effective Date (filed herewith). Exhibit T3C Form of Indenture, to be dated as of the Effective Date, among the Company, NLC and Wells Fargo Bank Minnesota, National Association, as Trustee, in the form to be qualified, including an itemized table of contents showing the articles, sections and subsections of the Indenture, together with the subject matter thereof and the pages on which they appear (filed herewith). Exhibit T3D Not applicable. Exhibit T3E-1 Disclosure Statement of the Debtors dated June 13, 2002 (previously filed). Exhibit T3E-2 First Amended Joint Plan of Reorganization of the Debtors dated June 13, 2002 (previously filed). Exhibit T3F A cross reference sheet showing the location in the Indenture of the provisions therein pursuant to Section 310 through 318(a), inclusive, of the TIA (filed herewith). Exhibit 25.1 Form T-1 qualifying Wells Fargo Bank Minnesota, National Association, as Trustee under the Indenture to be qualified (filed herewith). SIGNATURES Pursuant to the requirements of the Trust Indenture Act of 1939, Comdisco, Inc., a corporation organized and existing under the laws of the State of Delaware, on behalf of each of the Applicants has duly caused this Amendment No.1 to Application on Form T-3 to be signed on its behalf by the undersigned, thereunto duly authorized, and its seal to be hereunto affixed and attested, all in the City of Rosemont and State of Illinois, on July 19, 2002. (SEAL) Comdisco, Inc. Attest: /s/ Robert E.T. Lackey By: /s/ Ronald C. Mishler --------------------------- --------------------------- Name: Robert E.T. Lackey Name: Ronald C. Mishler Title: Executive Vice President, Title: President, Chief Operating Chief Legal Officer and Secretary Officer and Chief Financial Officer EXHIBIT DESCRIPTION - ------- ----------- Exhibit T3A-1 Form of Certificate of Incorporation of the Company to become effective as of the Effective Date (filed herewith). Exhibit T3A-2 Form of Certificate of Incorporation of NLC to become effective as of the Effective Date (filed herewith). Exhibit T3B-1 Form of Bylaws of the Company to become effective as of the Effective Date (filed herewith). Exhibit T3B-2 Form of Bylaws of NLC to become effective as of the Effective Date (filed herewith). Exhibit T3C Form of Indenture, to be dated as of the Effective Date, among the Company, NLC and Wells Fargo Bank Minnesota, National Association, as Trustee, in the form to be qualified, including an itemized table of contents showing the articles, sections and subsections of the Indenture, together with the subject matter thereof and the pages on which they appear (filed herewith). Exhibit T3D Not applicable. Exhibit T3E-1 Disclosure Statement of the Debtors dated June 13, 2002 (previously filed). Exhibit T3E-2 First Amended Joint Plan of Reorganization of the Debtors dated June 13, 2002 (previously filed). Exhibit T3F A cross reference sheet showing the location in the Indenture of the provisions therein pursuant to Section 310 through 318(a), inclusive, of the TIA (filed herewith). Exhibit 25.1 Form T-1 qualifying Wells Fargo Bank Minnesota, National Association, as Trustee under the Indenture to be qualified (filed herewith). EX-99 3 ch331936.txt EX T3A-1 CERTIFICATE OF INCORPORATION OF [REORGANIZED COMDISCO, INC.] FIRST: The name of the Corporation is [Reorganized Comdisco, Inc.] (the "Corporation"). SECOND: The address of the registered office of the Corporation in the State of Delaware is [Registered Agent Street Address], in the City of [City], County of [County]. The name of its registered agent at that address is [Name of Registered Agent]. THIRD: The business purpose of the Corporation is to sell, collect or otherwise reduce to money the assets of the Corporation in the ordinary course in an orderly manner, pay and discharge the Corporation's liabilities and distribute any excess to the Corporation's shareholders in the form of dividends or other distributions. The Corporation shall not be permitted to engage in any activities inconsistent with the foregoing purpose. The Corporation may engage in any lawful transaction of any or all lawful purposes for which corporations may be incorporated under the General Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the "GCL") to accomplish that business purpose. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is [o] shares of Common Stock, each having a par value of one cent ($0.01). Notwithstanding any other provisions contained herein to the contrary, the Corporation shall not issue nonvoting equity securities. This prohibition on the issuance of nonvoting equity securities is included in this Certificate of Incorporation in compliance with Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C. ss. 1123(a)(6)). The holders of Common Stock shall not have cumulative voting rights. The holders of Common Stock shall not be entitled to preemptive or subscription rights. FIFTH: The following provisions are inserted for the management of the business and the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders: (1) The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors and, in so managing the business and affairs of the Corporation with the business purpose to sell, collect or otherwise reduce to money the assets of the Corporation in the ordinary course and in an orderly manner, pay and discharge the Corporation's liabilities and distribute any excess to the Corporation's shareholders in the form of dividends or other distributions, the Board of Directors shall have no duty or obligation whatsoever to consider re-commencing ordinary operations. (2) The Board of Directors shall consist of five (5) members. Members of the Board of Directors shall be elected for a two (2) year term. (3) A director shall hold office until the annual meeting for the year in which his or her term expires and until his or her successor shall be elected and shall qualify, subject, however to prior death, resignation, retirement, disqualification or removal from office. (4) Until the first annual meeting of shareholders of the Corporation at which directors are to be elected, any vacancy occurring on the Board of Directors (i) with respect to a member originally selected to serve on the Board of Directors by the Creditors' Committee pursuant to the First Amended Joint Plan of Reorganization of Comdisco, Inc. and its Affiliated Debtors and Debtors in Possession, dated as of June 13, 2002 (the "Plan"), shall be filled by a person designated by the remaining directors selected by the Creditors' Committee, even if less than a quorum, as a replacement to serve out the remainder of the applicable term and (ii) with respect to the member initially serving as the Chief Executive Officer pursuant to the Plan shall be filled by a person designated by a majority of the Board of Directors then in office, even if less than a quorum, to serve out the remainder of the applicable term. (5) Any vacancy occurring on the Board of Directors after the first annual meeting of shareholders at which directors are to be elected may be filled by a majority of the Board of Directors then in office, even if less than a quorum, or by a sole remaining director. Any director elected to fill a vacancy shall have the same remaining term as that of his predecessor. (6) The directors shall have concurrent power with the stockholders to make, alter, amend, change, add to or repeal the By-Laws of the Corporation. (7) No director shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the GCL as the same exists or may hereafter be amended. If the GCL is amended hereafter to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent authorized by the GCL, as so amended. Any repeal or modification of this Article Fifth shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification. SIXTH: The Corporation shall indemnify its directors and officers to the fullest extent authorized or permitted by applicable law, as now or hereafter in effect, and such right to indemnification shall continue as to a person who has ceased to be a director or officer of the Corporation and shall inure to the benefit of his or her heirs, executors and personal and legal representatives; provided, however, that, except for proceedings to enforce rights to indemnification, the Corporation shall not be obligated to indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors. The right to indemnification conferred by this Article Sixth shall include the right to be paid by the Corporation the expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition upon receipt by the Corporation of an undertaking by or on behalf of the director or officer receiving advancement to repay the amount advanced if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation under this Article Sixth. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article Sixth to directors and officers of the Corporation. The rights to indemnification and to the advance of expenses conferred in this Article Sixth shall not be exclusive of any other right which any person may have or hereafter acquire under this Certificate of Incorporation, the By-Laws of the Corporation, any statute, agreement, vote of stockholders or disinterested directors or otherwise. Any repeal or modification of this Article Sixth by the stockholders of the Corporation shall not adversely affect any rights to indemnification and to the advancement of expenses of a director or officer of the Corporation existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification. SEVENTH: Meetings of stockholders may be held within or without the State of Delaware, as the By-Laws may provide. The books of the Corporation may be kept (subject to any provision contained in the GCL) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the By-Laws of the Corporation. EIGHTH: In furtherance and not in limitation of the powers conferred upon it by the laws of the State of Delaware, the Board of Directors shall have the power to adopt, amend, alter or repeal the Corporation's By-Laws. The affirmative vote of at least a majority of the entire Board of Directors shall be required to adopt, amend, alter or repeal the Corporation's By-Laws. The Corporation's By-Laws also may be adopted, amended, altered or repealed by the affirmative vote of the holders of at least eighty percent (80%) of the voting power of the shares entitled to vote at an election of directors. NINTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation, provided that, notwithstanding Section 242(b)(1) of the GCL, any amendment shall be approved by the affirmative vote of the holders of at least eighty percent (80%) of the voting power of the shares entitled to vote thereon. TENTH: The name and mailing address of the Sole Incorporator is as follows: [o]. [The remainder of this page intentionally blank.] I, THE UNDERSIGNED, being the Sole Incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the GCL, do make this Certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this [DAY] day of August, 2002. -------------------------------- [Name of Incorporator] Sole Incorporator EX-99 4 s332504.txt EX T3A-2 CERTIFICATE OF INCORPORATION OF [NEW LEASING COMPANY, INC.] FIRST: The name of the Corporation is [New Leasing Company, Inc.] (the "Corporation"). SECOND: The address of the registered office of the Corporation in the State of Delaware is [Registered Agent Street Address], in the City of [City], County of [County]. The name of its registered agent at that address is [Name of Registered Agent]. THIRD: The business purpose of the Corporation is to sell, collect or otherwise reduce to money the assets of the Corporation in the ordinary course in an orderly manner, pay and discharge the Corporation's liabilities and distribute any excess to the Corporation's shareholders in the form of dividends or other distributions. The Corporation shall not be permitted to engage in any activities inconsistent with the foregoing purpose. The Corporation may engage in any lawful transaction of any or all lawful purposes for which corporations may be incorporated under the General Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the "GCL") to accomplish that business purpose. FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is [ ] shares of Common Stock, each having a par value of one cent ($0.01). Notwithstanding any other provisions contained herein to the contrary, the Corporation shall not issue nonvoting equity securities. This prohibition on the issuance of nonvoting equity securities is included in this Certificate of Incorporation in compliance with Section 1123(a)(6) of the Bankruptcy Code (11 U.S.C.ss.1123(a)(6)). The holders of Common Stock shall not have cumulative voting rights. The holders of Common Stock shall not be entitled to preemptive or subscription rights. FIFTH: The following provisions are inserted for the management of the business and the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders: (1) The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors and, in so managing the business and affairs of the Corporation with the business purpose to sell, collect or otherwise reduce to money the assets of the Corporation in the ordinary course and in an orderly manner, pay and discharge the Corporation's liabilities and distribute any excess to the Corporation's shareholders in the form of dividends or other distributions, the Board of Directors shall have no duty or obligation whatsoever to consider re-commencing ordinary operations. (2) The number of directors of the Corporation shall be as from time to time fixed by, or in the manner provided in, the By-Laws of the Corporation. Election of directors need not be by written ballot unless the By-Laws so provide. (3) A director shall hold office until the annual meeting for the year in which his or her term expires and until his or her successor shall be elected and shall qualify, subject, however to prior death, resignation, retirement, disqualification or removal from office. (4) Any vacancy occurring on the Board of Directors may be filled by a majority of the Board of Directors then in office, even if less than a quorum, or by a sole remaining director. Any director elected to fill a vacancy shall have the same remaining term as that of his predecessor. (5) The directors shall have concurrent power with the stockholders to make, alter, amend, change, add to or repeal the By-Laws of the Corporation. (6) No director shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the GCL as the same exists or may hereafter be amended. If the GCL is amended hereafter to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent authorized by the GCL, as so amended. Any repeal or modification of this Article Fifth shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification. SIXTH: The Corporation shall indemnify its directors and officers to the fullest extent authorized or permitted by applicable law, as now or hereafter in effect, and such right to indemnification shall continue as to a person who has ceased to be a director or officer of the Corporation and shall inure to the benefit of his or her heirs, executors and personal and legal representatives; provided, however, that, except for proceedings to enforce rights to indemnification, the Corporation shall not be obligated to indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors. The right to indemnification conferred by this Article Sixth shall include the right to be paid by the Corporation the expenses incurred in defending or otherwise participating in any proceeding in advance of its final disposition upon receipt by the Corporation of an undertaking by or on behalf of the director or officer receiving advancement to repay the amount advanced if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation under this Article Sixth. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article Sixth to directors and officers of the Corporation. The rights to indemnification and to the advance of expenses conferred in this Article Sixth shall not be exclusive of any other right which any person may have or hereafter acquire under this Certificate of Incorporation, the By-Laws of the Corporation, any statute, agreement, vote of stockholders or disinterested directors or otherwise. Any repeal or modification of this Article Sixth by the stockholders of the Corporation shall not adversely affect any rights to indemnification and to the advancement of expenses of a director or officer of the Corporation existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification. SEVENTH: Meetings of stockholders may be held within or without the State of Delaware, as the By-Laws may provide. The books of the Corporation may be kept (subject to any provision contained in the GCL) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the By-Laws of the Corporation. EIGHTH: In furtherance and not in limitation of the powers conferred upon it by the laws of the State of Delaware, the Board of Directors shall have the power to adopt, amend, alter or repeal the Corporation's By-Laws. The affirmative vote of at least a majority of the entire Board of Directors shall be required to adopt, amend, alter or repeal the Corporation's By-Laws. The Corporation's By-Laws also may be adopted, amended, altered or repealed by the affirmative vote of the holders of at least eighty percent (80%) of the voting power of the shares entitled to vote at an election of directors. NINTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation, provided that, notwithstanding Section 242(b)(1) of the GCL, any amendment shall be approved by the affirmative vote of the holders of at least eighty percent (80%) of the voting power of the shares entitled to vote thereon. TENTH: The name and mailing address of the Sole Incorporator is as follows: [ ]. [The remainder of this page intentionally blank.] I, THE UNDERSIGNED, being the Sole Incorporator hereinbefore named, for the purpose of forming a corporation pursuant to the GCL, do make this Certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this [DAY] day of August, 2002. -------------------------------- [Name of Incorporator] Sole Incorporator EX-99 5 ch318382.txt EX T3B-1 BY-LAWS OF [REORGANIZED COMDISCO, INC.] A Delaware Corporation [Effective August [o], 2002]
TABLE OF CONTENTS Page ARTICLE I OFFICES............................................................1 Section 1. Registered Office..........................................1 Section 2. Other Offices..............................................1 ARTICLE II MEETINGS OF STOCKHOLDERS..........................................1 Section 1. Place of Meetings..........................................1 Section 2. Annual Meetings............................................2 Section 3. Special Meetings...........................................2 Section 4. Notice.....................................................2 Section 5. Adjournments...............................................3 Section 6. Quorum.....................................................3 Section 7. Voting.....................................................4 Section 8. Proxies....................................................4 Section 9. Consent of Stockholders in Lieu of Meeting.................5 Section 10. List of Stockholders Entitled to Vote......................8 Section 11. Record Date................................................8 Section 12. Stock Ledger..............................................10 Section 13. Conduct of Meetings.......................................10 Section 14. Inspectors of Election....................................11 ARTICLE III DIRECTORS.......................................................12 Section 1. Number and Election of Directors..........................12 Section 2. Vacancies.................................................12 Section 3. Duties and Powers.........................................12 Section 4. Meetings..................................................13 Section 5. Organization..............................................13 Section 6. Resignations of Directors.................................13 Section 7. Quorum....................................................14 Section 8. Actions of the Board by Written Consent...................14 Section 9. Meetings by Means of Conference Telephone.................14 Section 10. Committees................................................15 Section 11. Compensation..............................................15 Section 12. Interested Directors......................................16 ARTICLE IV OFFICERS.........................................................17 Section 1. Officers..................................................17 Section 2. Powers and Duties of the Chairman of the Board............18 Section 3. Powers and Duties of the Chief Executive Officer..........18 Section 4. Powers and Duties of the Chief Operating Officer..........19 Section 5. Powers and Duties of the President........................20 Section 6. Powers and Duties of the Executive Vice Presidents, Senior Vice Presidents and Vice Presidents.............20 Section 7. Powers and Duties of the Controller.......................20 Section 8. Powers and Duties of the Treasurer........................21 Section 9. Powers and Duties of the Secretary........................21 Section 10. Powers and Duties of Additional Officers..................22 ARTICLE V STOCK.............................................................22 Section 1. Form of Certificates......................................22 Section 2. Signatures................................................22 Section 3. Lost Certificates.........................................23 Section 4. Transfers.................................................23 Section 5. Dividend Record Date......................................24 Section 6. Record Owners.............................................24 Section 7. Transfer and Registry Agents..............................24 ARTICLE VI NOTICES..........................................................25 Section 1. Notices...................................................25 Section 2. Waivers of Notice.........................................26 ARTICLE VII GENERAL PROVISIONS..............................................26 Section 1. Dividends.................................................26 Section 2. Disbursements.............................................27 Section 3. Fiscal Year...............................................27 Section 4. Corporate Seal............................................27 ARTICLE VIII AMENDMENTS.....................................................28 Section 1. Amendments................................................28 Section 2. Entire Board of Directors.................................28
BY-LAWS OF [REORGANIZED COMDISCO, INC.] (hereinafter called the "Corporation") ARTICLE I OFFICES ------- Section 1. Registered Office. The address of the registered office of the Corporation in the State of Delaware is [Registered Agent Street Address], in the City of [City], County of [County]. The name of its registered agent at that address is [Name of Registered Agent]. Section 2. Other Offices. The Corporation also may have offices at such other places, both within and without the State of Delaware, as the Board of Directors may from time to time determine. ARTICLE II MEETINGS OF STOCKHOLDERS ------------------------ Section 1. Place of Meetings. Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware, as shall be designated from time to time by the Board of Directors. The Board of Directors may, in its sole discretion, determine that a meeting of the stockholders shall not be held at any place, but may instead be held solely by means of remote communication in the manner authorized by the General Corporation Law of the State of Delaware (the "DGCL"). Section 2. Annual Meetings. The Annual Meeting of Stockholders shall be held on such date and at such time as shall be designated from time to time by the Board of Directors. Any proper business may be transacted at the Annual Meeting of Stockholders. Section 3. Special Meetings. Unless otherwise required by law or by the certificate of incorporation of the Corporation, as amended and restated from time to time (the "Certificate of Incorporation"), Special Meetings of Stockholders, for any purpose or purposes, may be called by either: (i) the Chairman, the Chief Executive Officer, the President or the Secretary; (ii) any such officer at the request in writing of the Board of Directors or a committee of the Board of Directors that has been duly designated by the Board of Directors and whose powers and authority include the power to call such meetings; or (iii) stockholders owning a majority of the capital stock of the Corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. At a Special Meeting of Stockholders, only such business shall be conducted as shall be specified in the notice of meeting (or any supplement thereto). Section 4. Notice. Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, and, in the case of a Special Meeting, the purpose or purposes for which the meeting is called. Unless otherwise required by law, written notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to notice of and to vote at such meeting. Section 5. Adjournments. Any meeting of the stockholders may be adjourned from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place, if any, thereof and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting in accordance with the requirements of Section 4 hereof shall be given to each stockholder of record entitled to notice of and to vote at the meeting. Section 6. Quorum. Unless otherwise required by applicable law or the Certificate of Incorporation, the holders of a majority of the Corporation's capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. A quorum, once established, shall not be broken by the withdrawal of enough votes to leave less than a quorum. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, in the manner provided in Section 5 hereof, until a quorum shall be present or represented. Section 7. Voting. Unless otherwise required by law, the Certificate of Incorporation or these By-Laws, any question brought before any meeting of the stockholders, other than the election of directors, shall be decided by the vote of the holders of a majority of the total number of votes of the Corporation's capital stock represented and entitled to vote thereat, voting as a single class. Unless otherwise provided in the Certificate of Incorporation, and subject to Section 5 of Article V hereof, each stockholder represented at a meeting of the stockholders shall be entitled to cast one (1) vote for each share of the capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person or by proxy as provided in Section 8 hereof. The Board of Directors, in its discretion, or the officer of the Corporation presiding at a meeting of the stockholders, in such officer's discretion, may require that any votes cast at such meeting shall be cast by written ballot. Section 8. Proxies. Each stockholder entitled to vote at a meeting of the stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder as proxy, but no such proxy shall be voted upon after three (3) years from its date, unless such proxy provides for a longer period. Without limiting the manner in which a stockholder may authorize another person or persons to act for such stockholder as proxy, the following shall constitute a valid means by which a stockholder may grant such authority: (i) A stockholder may execute a writing authorizing another person or persons to act for such stockholder as proxy. Execution may be accomplished by the stockholder or such stockholder's authorized officer, director, employee or agent signing such writing or causing such person's signature to be affixed to such writing by any reasonable means, including, but not limited to, by facsimile signature. (ii) A stockholder may authorize another person or persons to act for such stockholder as proxy by transmitting or authorizing the transmission of a telegram, cablegram or other means of electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such telegram, cablegram or other means of electronic transmission must either set forth or be submitted with information from which it can be determined that the telegram, cablegram or other electronic transmission was authorized by the stockholder. If it is determined that such telegrams, cablegrams or other electronic transmissions are valid, the inspectors or, if there are no inspectors, such other persons making that determination shall specify the information on which they relied. Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission authorizing another person or persons to act as proxy for a stockholder may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used; provided, however, that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission. Section 9. Consent of Stockholders in Lieu of Meeting. Unless otherwise provided in the Certificate of Incorporation, any action required or permitted to be taken at any Annual or Special Meeting of Stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. Every written consent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the earliest dated consent delivered in the manner required by this Section 9 to the Corporation, written consents signed by a sufficient number of holders to take action are delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the stockholders are recorded. A telegram, cablegram or other electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder, or by a person or persons authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes of this Section 9, provided that any such telegram, cablegram or other electronic transmission sets forth or is delivered with information from which the Corporation can determine (i) that the telegram, cablegram or other electronic transmission was transmitted by the stockholder or proxyholder or by a person or persons authorized to act for the stockholder or proxyholder and (ii) the date on which such stockholder or proxyholder or authorized person or persons transmitted such telegram, cablegram or electronic transmission. The date on which such telegram, cablegram or electronic transmission is transmitted shall be deemed to be the date on which such consent was signed. No consent given by telegram, cablegram or other electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the stockholders are recorded. Delivery made to the Corporation's registered office shall be made by hand or by certified or registered mail, return receipt requested. Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation as provided above in this Section 9. Section 10. List of Stockholders Entitled to Vote. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Section 11. Record Date. (a) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of the stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of the stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. (b) In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by applicable law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by applicable law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action. Section 12. Stock Ledger. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by Section 10 of this Article II or the books of the Corporation, or to vote in person or by proxy at any meeting of the stockholders. Section 13. Conduct of Meetings. The Board of Directors of the Corporation may adopt by resolution such rules and regulations for the conduct of any meeting of the stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the chairman of any meeting of the stockholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) the determination of when the polls shall open and close for any given matter to be voted on at the meeting; (iii) rules and procedures for maintaining order at the meeting and the safety of those present; (iv) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (v) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (vi) limitations on the time allotted to questions or comments by participants. Section 14. Inspectors of Election. In advance of any meeting of the stockholders, the Board of Directors, by resolution, the Chairman, the Chief Executive Officer or the President shall appoint one or more inspectors to act at the meeting and make a written report thereof. One or more other persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of the stockholders, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Unless otherwise required by applicable law, inspectors may be officers, employees or agents of the Corporation. Each inspector, before entering upon the discharge of the duties of inspector, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector's ability. The inspector shall have the duties prescribed by law and shall take charge of the polls and, when the vote is completed, shall make a certificate of the result of the vote taken and of such other facts as may be required by applicable law. ARTICLE III DIRECTORS --------- Section 1. Number and Election of Directors. The number of the members of the Board of Directors shall be as set forth in the Certificate of Incorporation. Members of the Board of Directors shall be elected for a two (2) year term. Except as provided in Section 2 of this Article III, each director shall be elected by a plurality of the votes cast at the Annual Meeting of Stockholders for the year in which his or her two-year term expires and each such director so elected shall hold office until such director's successor is duly elected and qualified in accordance with the Certificate of Incorporation or until such director's earlier death, resignation or removal. Directors need not be stockholders. Section 2. Vacancies. Vacancies on the Board of Directors shall be filled as set forth in the Certificate of Incorporation. Section 3. Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such power and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or these By-Laws required to be exercised or done by the stockholders. In so managing the business and affairs of the Corporation with the business purpose to sell, collect or otherwise reduce to money the assets of the Corporation in the ordinary course and in an orderly manner, pay and discharge the Corporation's liabilities and distribute any excess to the Corporation's shareholders in the form of dividends or other distributions, the Board of Directors shall have no duty or obligation whatsoever to consider re-commencing ordinary operations. Section 4. Meetings. The Board of Directors may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the Board of Directors may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors. Special meetings of the Board of Directors may be called by the Chairman, the Chief Executive Officer, the President, or by any director. Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone, telegram or electronic means on twenty-four (24) hours' notice, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances. Section 5. Organization. At each meeting of the Board of Directors, the Chairman of the Board of Directors, or, in his or her absence, a director chosen by a majority of the directors present, shall act as chairman. The Secretary of the Corporation shall act as secretary at each meeting of the Board of Directors. In case the Secretary shall be absent from any meeting of the Board of Directors, an Assistant Secretary shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the Secretary and all the Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting. Section 6. Resignations of Directors. Any director of the Corporation may resign at any time, by giving notice in writing or by electronic transmission to the Chairman of the Board of Directors, the President or the Secretary of the Corporation. Such resignation shall take effect at the time therein specified or, if no time is specified, immediately; and, unless otherwise specified in such notice, the acceptance of such resignation shall not be necessary to make it effective. Section 7. Quorum. Except as otherwise required by law or the Certificate of Incorporation, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting of the time and place of the adjourned meeting, until a quorum shall be present. Section 8. Actions of the Board by Written Consent. Unless otherwise provided in the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all the members of the Board of Directors or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form. Section 9. Meetings by Means of Conference Telephone. Unless otherwise provided in the Certificate of Incorporation or these By-Laws, members of the Board of Directors of the Corporation, or any committee thereof, may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 9 shall constitute presence in person at such meeting. Section 10. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent permitted by law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it. Each committee shall keep regular minutes and report to the Board of Directors when required. Section 11. Compensation. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary for service as director, payable in cash or securities. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for service as committee members. Section 12. Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because any such director's or officer's vote is counted for such purpose if: (i) the material facts as to the director's or officer's relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; (ii) the material facts as to the director's or officer's relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE IV OFFICERS -------- Section 1. Officers. The officers of the Corporation shall be a Chairman of the Board of Directors, a Chief Executive Officer, a Chief Operating Officer, a President, one or more Executive Vice Presidents, one or more Senior Vice Presidents, one or more Vice Presidents, a Controller, a Treasurer, one or more Assistant Treasurers, a Secretary, and one or more Assistant Secretaries. Any number of offices may be held by the same person. All such officers shall be elected by the Board of Directors at the meeting of the Board of Directors held on the date of each Annual Meeting of the stockholders (or action by written consent of stockholders in lieu of the Annual Meeting of Stockholders). The Board of Directors may elect such additional officers as they deem necessary, who shall have such authority and shall perform such duties as the Board of Directors from time to time prescribe. In its discretion, the Board of Directors may leave any office unfilled. Officers of the Corporation shall hold their offices for such terms as shall be determined by the Board of Directors; and each officer of the Corporation shall hold office until such officer's successor is elected and qualified, or until such officer's earlier death, resignation or removal. Any officer elected by the Board of Directors may be removed at any time by vote of the Board of Directors. The President or Chief Operating Officer may also appoint officers of the Corporation's divisions or business units, but such individuals will not be deemed to be officers of the Corporation. Section 2. Powers and Duties of the Chairman of the Board. The Chairman of the Board of Directors shall preside at all meetings of the stockholders and of the Board of Directors. The Chairman of the Board of Directors shall be the Chief Executive Officer of the Corporation. Except where by law the signature of the President is required, the Chairman of the Board of Directors shall possess the same power as the President to sign all contracts, certificates and other instruments of the Corporation which may be authorized by the Board of Directors. He shall from time to time secure information concerning the business and affairs of the Corporation and shall promptly lay such information before the Board of Directors. He shall communicate to the Board of Directors all matters presented by any officer of the Corporation for its consideration, and shall from time to time communicate to the officers such action of the Board of Directors as may in his judgment affect the performance of their official duties. During the absence or disability of the President, the Chairman of the Board of Directors shall exercise all the powers and discharge all the duties of the President. The Chairman of the Board of Directors also shall perform such other duties and may exercise such other powers as may from time to time be assigned by these By-Laws or by the Board of Directors. Section 3. Powers and Duties of the Chief Executive Officer. The Chief Executive Officer shall be the chief executive officer of the Corporation and, subject to the supervision, direction and control of the Board of Directors and Chairman of the Board of Directors, shall have the general supervision, direction and control of the business and officers of the Corporation with all such powers as may be reasonably incident to such responsibilities. The Chief Executive Officer shall implement the general directives, plans and policies formulated by the Board of Directors and shall further have such duties, responsibilities and authorities as may be assigned to him by the Board of Directors. The Chief Executive Officer shall have the general powers and duties of management usually vested in the chief executive officer of a corporation. During the time of any vacancy in the office of the Chairman of the Board of Directors or in the event of the absence of the Chairman of the Board of Directors, the Chief Executive Officer shall have the duties and powers of the Chairman of the Board of Directors unless otherwise determined by the Board of Directors. In the absence of the Chairman of the Board of Directors, the Chief Executive Officer shall preside at meetings of the Stockholders and Board of Directors. During any time of any vacancy in the office of Chief Operating Officer or in the event of the absence or disability of the Chief Operating Officer, the Chief Executive Officer shall have the duties and powers of the Chief Operating Officer unless otherwise determined by the Board of Directors. Section 4. Powers and Duties of the Chief Operating Officer. The Chief Operating Officer shall be the chief operating officer of the Corporation and, subject to the supervision, direction and control of the Chief Executive Officer and the Board of Directors, shall manage day-to-day operations of the Corporation. He shall have the general powers and duties of management usually vested in the chief operating officer of a corporation and such other powers and duties as may be assigned to him by the Board of Directors, the Chief Executive Officer or these By-Laws. In the absence of the Chief Operating Officer, his duties shall be performed and his authority may be exercised by the Chief Executive Officer or an Executive Vice President of the Corporation as may have been designated by the Chief Operating Officer with the right reserved to the Board of Directors to designate or supersede any designation so made. During the time of any vacancy in the offices of the Chairman of the Board of Directors and Chief Executive Officer or in the event of the absence or disability of the Chairman of the Board of Directors and the Chief Executive Officer, the Chief Operating Officer shall have the duties and powers of the Chief Executive Officer unless otherwise determined by the Board of Directors. Section 5. Powers and Duties of the President. The President shall have such powers and perform such duties as may from time to time be assigned to him by these By-Laws, the Board of Directors, the Chairman of the Board of Directors or the Chief Executive Officer. Section 6. Powers and Duties of the Executive Vice Presidents, Senior Vice Presidents and Vice Presidents. Each Executive Vice President, each Senior Vice President and each Vice President shall have such powers and perform such duties as may from time to time be assigned to him by these By-Laws, the Board of Directors, the Chairman of the Board of Directors, the Chief Executive Officer or the President. Section 7. Powers and Duties of the Controller. The Controller shall be the principal officer in charge of the accounts of the Corporation, and shall perform such duties as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, the Chief Executive Officer or the President. Section 8. Powers and Duties of the Treasurer. The Treasurer shall have custody of all the funds and securities of the Corporation which may have come into his hands; when necessary or proper, he may endorse or cause to be endorsed on behalf of the Corporation for collection, checks, notes and other obligations and shall deposit the same to the credit of the Corporation in such bank or banks or depository or depositories as may have been designated by the Board of Directors or by any officer authorized by the Board of Directors to make such designation; whenever required by the Board of Directors he shall render a statement of the funds and securities of the Corporation in his custody; and he shall perform all acts incident to the position of Treasurer, subject to the control of the Board of Directors. Section 9. Powers and Duties of the Secretary. The Secretary shall keep the minutes of all meetings of the Board of Directors and the minutes of all meetings of the stockholders in books provided for that purpose; he shall attend to the giving or serving of all notices of the Corporation; he may sign with the Chairman of the Board of Directors, the President, any Executive Vice President, any Senior Vice President or any Vice President, in the name of the Corporation, all contracts authorized by the Board of Directors or by any committee of the Corporation having the requisite authority and, when so ordered by the Board of Directors or such committee, he shall affix the seal of the Corporation thereto; he shall have charge of the stock certificate books, transfer books and stock ledgers and such other books and papers as the Board of Directors shall direct, all of which shall at all reasonable times be open to the examination of any Director, upon application at the office of the Corporation during business hours; and he shall in general perform all the duties incident to the office of Secretary, subject to the control of the Board of Directors. Section 10. Powers and Duties of Additional Officers. The Board of Directors may from time to time by resolution delegate to any Assistant Vice President or Vice Presidents, Assistant Controller or Controllers, any Assistant Treasurer or Treasurers and/or any Assistant Secretary or Secretaries, elected by the Board of Directors, any of the powers or duties herein assigned to the Vice President, Controller, the Treasurer or the Secretary, respectively. ARTICLE V STOCK ----- Section 1. Form of Certificates. Every holder of stock in the Corporation shall be entitled to have a certificate signed by, or in the name of the Corporation (i) by the Chairman of the Board of Directors, Chief Executive Officer, the President or a Vice President and (ii) by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by such stockholder in the Corporation. Section 2. Signatures. Any or all of the signatures on a certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue. Section 3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or such owner's legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate or the issuance of such new certificate. Section 4. Transfers. Stock of the Corporation shall be transferable in the manner prescribed by applicable law and in these By-Laws. Transfers of stock shall be made on the books of the Corporation only by the person named in the certificate or by such person's attorney lawfully constituted in writing and upon the surrender of the certificate therefor, properly endorsed for transfer and payment of all necessary transfer taxes; provided, however, that such surrender and endorsement or payment of taxes shall not be required in any case in which the officers of the Corporation shall determine to waive such requirement. Every certificate exchanged, returned or surrendered to the Corporation shall be marked "Cancelled", with the date of cancellation, by the Secretary or Assistant Secretary of the Corporation or the transfer agent thereof. No transfer of stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing from and to whom transferred. Section 5. Dividend Record Date. In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. Section 6. Record Owners. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise required by law. Section 7. Transfer and Registry Agents. The Corporation may from time to time maintain one or more transfer offices or agencies and registry offices or agencies at such place or places as may be determined from time to time by the Board of Directors. ARTICLE VI NOTICES ------- Section 1. Notices. Whenever written notice is required by law, the Certificate of Incorporation or these By-Laws, to be given to any director, member of a committee or stockholder, such notice may be given by mail, addressed to such director, member of a committee or stockholder, at such person's address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under applicable law, the Certificate of Incorporation or these By-Laws shall be effective if given by a form of electronic transmission if consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice to the Corporation. Any such consent shall be deemed to be revoked if (i) the Corporation is unable to deliver by electronic transmission two (2) consecutive notices by the Corporation in accordance with such consent and (ii) such inability becomes known to the Secretary or Assistant Secretary of the Corporation or to the transfer agent, or other person responsible for the giving of notice; provided, however, that the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action. Notice given by electronic transmission, as described above, shall be deemed given: (i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (ii) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (iii) if by a posting on an electronic network, together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (iv) if by any other form of electronic transmission, when directed to the stockholder. Notice to directors or committee members may be given personally or by telegram, telex, cable or by means of electronic transmission. Section 2. Waivers of Notice. Whenever any notice is required by applicable law, the Certificate of Incorporation or these By-Laws, to be given to any director, member of a committee or stockholder, a waiver thereof in writing, signed by the person or persons entitled to notice, or a waiver by electronic transmission by the person or persons entitled to notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of a person at a meeting, present in person or represented by proxy, shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any Annual or Special Meeting of Stockholders or any regular or special meeting of the directors or members of a committee of directors need be specified in any written waiver of notice unless so required by law, the Certificate of Incorporation or these By-Laws. ARTICLE VII GENERAL PROVISIONS ------------------ Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to the requirements of the DGCL and the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting of the Board of Directors (or any action by written consent in lieu thereof in accordance with Section 8 of Article III hereof), and may be paid in cash, in property, or in shares of the Corporation's capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for purchasing any of the shares of capital stock, warrants, rights, options, bonds, debentures, notes, scrip or other securities or evidences of indebtedness of the Corporation, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve. Section 2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors. Section 4. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE VIII AMENDMENTS ---------- Section 1. Amendments. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted by the stockholders or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or adoption of new By-Laws be contained in the notice of such meeting of the stockholders or Board of Directors, as the case may be. All such amendments must be approved by the affirmative vote of the holders of at least eighty percent (80%) of the voting power of the shares entitled to vote at an election of directors or by affirmative vote of at least a majority of the entire Board of Directors. Section 2. Entire Board of Directors. As used in this Article VIII and in these By-Laws generally, the term "entire Board of Directors" means the total number of directors which the Corporation would have if there were no vacacancies. * * * Adopted as of August [o], 2002 EX-99 6 s332508.txt EX T3B-2 BY-LAWS OF [NEW LEASING COMPANY, INC.] A Delaware Corporation [Effective August [o], 2002] TABLE OF CONTENTS Page ARTICLE I OFFICES.............................................................1 Section 1. Registered Office...........................................1 Section 2. Other Offices...............................................1 ARTICLE II MEETINGS OF STOCKHOLDERS...........................................1 Section 1. Place of Meetings...........................................1 Section 2. Annual Meetings.............................................2 Section 3. Special Meetings............................................2 Section 4. Notice......................................................2 Section 5. Adjournments................................................3 Section 6. Quorum......................................................3 Section 7. Voting......................................................4 Section 8. Proxies.....................................................4 Section 9. Consent of Stockholders in Lieu of Meeting..................5 Section 10. List of Stockholders Entitled to Vote.......................8 Section 11. Record Date.................................................8 Section 12. Stock Ledger...............................................10 Section 13. Conduct of Meetings........................................10 Section 14. Inspectors of Election.....................................11 ARTICLE III DIRECTORS........................................................12 Section 1. Number and Election of Directors...........................12 Section 2. Vacancies..................................................12 Section 3. Duties and Powers..........................................12 Section 4. Meetings...................................................13 Section 5. Organization...............................................13 Section 6. Resignations of Directors..................................13 Section 7. Quorum.....................................................14 Section 8. Actions of the Board by Written Consent....................14 Section 9. Meetings by Means of Conference Telephone..................15 Section 10. Committees.................................................15 Section 11. Compensation...............................................16 Section 12. Interested Directors.......................................16 ARTICLE IV OFFICERS..........................................................17 Section 1. Officers...................................................17 Section 2. Powers and Duties of the Chairman of the Board.............18 Section 3. Powers and Duties of the Chief Executive Officer...........19 Section 4. Powers and Duties of the Chief Operating Officer...........19 Section 5. Powers and Duties of the President.........................20 Section 6. Powers and Duties of the Executive Vice Presidents, Senior Vice Presidents and Vice Presidents..............20 Section 7. Powers and Duties of the Controller........................21 Section 8. Powers and Duties of the Treasurer.........................21 Section 9. Powers and Duties of the Secretary.........................21 Section 10. Powers and Duties of Additional Officers...................22 ARTICLE V STOCK..............................................................22 Section 1. Form of Certificates.......................................22 Section 2. Signatures.................................................22 Section 3. Lost Certificates..........................................23 Section 4. Transfers..................................................23 Section 5. Dividend Record Date.......................................24 Section 6. Record Owners..............................................24 Section 7. Transfer and Registry Agents...............................25 ARTICLE VI NOTICES...........................................................25 Section 1. Notices....................................................25 Section 2. Waivers of Notice..........................................26 ARTICLE VII GENERAL PROVISIONS...............................................27 Section 1. Dividends..................................................27 Section 2. Disbursements..............................................27 Section 3. Fiscal Year................................................27 Section 4. Corporate Seal.............................................27 ARTICLE VIII AMENDMENTS......................................................29 Section 1. Amendments.................................................29 Section 2. Entire Board of Directors..................................29 BY-LAWS OF [NEW LEASING COMPANY, INC.] (hereinafter called the "Corporation") ARTICLE I OFFICES Section 1. Registered Office. The address of the registered office of the Corporation in the State of Delaware is [Registered Agent Street Address], in the City of [City], County of [County]. The name of its registered agent at that address is [Name of Registered Agent]. Section 2. Other Offices. The Corporation also may have offices at such other places, both within and without the State of Delaware, as the Board of Directors may from time to time determine. ARTICLE II MEETINGS OF STOCKHOLDERS Section 1. Place of Meetings. Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware, as shall be designated from time to time by the Board of Directors. The Board of Directors may, in its sole discretion, determine that a meeting of the stockholders shall not be held at any place, but may instead be held solely by means of remote communication in the manner authorized by the General Corporation Law of the State of Delaware (the "DGCL"). Section 2. Annual Meetings. The Annual Meeting of Stockholders shall be held on such date and at such time as shall be designated from time to time by the Board of Directors. Any proper business may be transacted at the Annual Meeting of Stockholders. Section 3. Special Meetings. Unless otherwise required by law or by the certificate of incorporation of the Corporation, as amended and restated from time to time (the "Certificate of Incorporation"), Special Meetings of Stockholders, for any purpose or purposes, may be called by either: (i) the Chairman, the Chief Executive Officer, the President or the Secretary; (ii) any such officer at the request in writing of the Board of Directors or a committee of the Board of Directors that has been duly designated by the Board of Directors and whose powers and authority include the power to call such meetings; or (iii) stockholders owning a majority of the capital stock of the Corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. At a Special Meeting of Stockholders, only such business shall be conducted as shall be specified in the notice of meeting (or any supplement thereto). Section 4. Notice. Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, and, in the case of a Special Meeting, the purpose or purposes for which the meeting is called. Unless otherwise required by law, written notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to notice of and to vote at such meeting. Section 5. Adjournments. Any meeting of the stockholders may be adjourned from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place, if any, thereof and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting in accordance with the requirements of Section 4 hereof shall be given to each stockholder of record entitled to notice of and to vote at the meeting. Section 6. Quorum. Unless otherwise required by applicable law or the Certificate of Incorporation, the holders of a majority of the Corporation's capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. A quorum, once established, shall not be broken by the withdrawal of enough votes to leave less than a quorum. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, in the manner provided in Section 5 hereof, until a quorum shall be present or represented. Section 7. Voting. Unless otherwise required by law, the Certificate of Incorporation or these By-Laws, any question brought before any meeting of the stockholders, other than the election of directors, shall be decided by the vote of the holders of a majority of the total number of votes of the Corporation's capital stock represented and entitled to vote thereat, voting as a single class. Unless otherwise provided in the Certificate of Incorporation, and subject to Section 5 of Article V hereof, each stockholder represented at a meeting of the stockholders shall be entitled to cast one (1) vote for each share of the capital stock entitled to vote thereat held by such stockholder. Such votes may be cast in person or by proxy as provided in Section 8 hereof. The Board of Directors, in its discretion, or the officer of the Corporation presiding at a meeting of the stockholders, in such officer's discretion, may require that any votes cast at such meeting shall be cast by written ballot. Section 8. Proxies. Each stockholder entitled to vote at a meeting of the stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder as proxy, but no such proxy shall be voted upon after three (3) years from its date, unless such proxy provides for a longer period. Without limiting the manner in which a stockholder may authorize another person or persons to act for such stockholder as proxy, the following shall constitute a valid means by which a stockholder may grant such authority: (i) A stockholder may execute a writing authorizing another person or persons to act for such stockholder as proxy. Execution may be accomplished by the stockholder or such stockholder's authorized officer, director, employee or agent signing such writing or causing such person's signature to be affixed to such writing by any reasonable means, including, but not limited to, by facsimile signature. (ii) A stockholder may authorize another person or persons to act for such stockholder as proxy by transmitting or authorizing the transmission of a telegram, cablegram or other means of electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such telegram, cablegram or other means of electronic transmission must either set forth or be submitted with information from which it can be determined that the telegram, cablegram or other electronic transmission was authorized by the stockholder. If it is determined that such telegrams, cablegrams or other electronic transmissions are valid, the inspectors or, if there are no inspectors, such other persons making that determination shall specify the information on which they relied. Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission authorizing another person or persons to act as proxy for a stockholder may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used; provided, however, that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission. Section 9. Consent of Stockholders in Lieu of Meeting. Unless otherwise provided in the Certificate of Incorporation, any action required or permitted to be taken at any Annual or Special Meeting of Stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. Every written consent shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the earliest dated consent delivered in the manner required by this Section 9 to the Corporation, written consents signed by a sufficient number of holders to take action are delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the stockholders are recorded. A telegram, cablegram or other electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder, or by a person or persons authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes of this Section 9, provided that any such telegram, cablegram or other electronic transmission sets forth or is delivered with information from which the Corporation can determine (i) that the telegram, cablegram or other electronic transmission was transmitted by the stockholder or proxyholder or by a person or persons authorized to act for the stockholder or proxyholder and (ii) the date on which such stockholder or proxyholder or authorized person or persons transmitted such telegram, cablegram or electronic transmission. The date on which such telegram, cablegram or electronic transmission is transmitted shall be deemed to be the date on which such consent was signed. No consent given by telegram, cablegram or other electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the stockholders are recorded. Delivery made to the Corporation's registered office shall be made by hand or by certified or registered mail, return receipt requested. Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation as provided above in this Section 9. Section 10. List of Stockholders Entitled to Vote. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Section 11. Record Date. (a) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of the stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of the stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. (b) In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by applicable law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by applicable law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action. Section 12. Stock Ledger. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by Section 10 of this Article II or the books of the Corporation, or to vote in person or by proxy at any meeting of the stockholders. Section 13. Conduct of Meetings. The Board of Directors of the Corporation may adopt by resolution such rules and regulations for the conduct of any meeting of the stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the chairman of any meeting of the stockholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or order of business for the meeting; (ii) the determination of when the polls shall open and close for any given matter to be voted on at the meeting; (iii) rules and procedures for maintaining order at the meeting and the safety of those present; (iv) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (v) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (vi) limitations on the time allotted to questions or comments by participants. Section 14. Inspectors of Election. In advance of any meeting of the stockholders, the Board of Directors, by resolution, the Chairman, the Chief Executive Officer or the President shall appoint one or more inspectors to act at the meeting and make a written report thereof. One or more other persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of the stockholders, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Unless otherwise required by applicable law, inspectors may be officers, employees or agents of the Corporation. Each inspector, before entering upon the discharge of the duties of inspector, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector's ability. The inspector shall have the duties prescribed by law and shall take charge of the polls and, when the vote is completed, shall make a certificate of the result of the vote taken and of such other facts as may be required by applicable law. ARTICLE III DIRECTORS Section 1. Number and Election of Directors. The Board of Directors shall consist of not less than one nor more than five members, the exact number of which shall initially be fixed by the Incorporator and thereafter from time to time by the Board of Directors. Except as provided in Section 2 of this Article III, each director shall be elected by a plurality of the votes cast at the Annual Meeting of Stockholders for the year in which his or her two-year term expires and each such director so elected shall hold office until such director's successor is duly elected and qualified in accordance with the Certificate of Incorporation or until such director's earlier death, resignation or removal. Directors need not be stockholders. Section 2. Vacancies. Vacancies on the Board of Directors shall be filled as set forth in the Certificate of Incorporation. Section 3. Duties and Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors which may exercise all such power and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or these By-Laws required to be exercised or done by the stockholders. In so managing the business and affairs of the Corporation with the business purpose to sell, collect or otherwise reduce to money the assets of the Corporation in the ordinary course and in an orderly manner, pay and discharge the Corporation's liabilities and distribute any excess to the Corporation's shareholders in the form of dividends or other distributions, the Board of Directors shall have no duty or obligation whatsoever to consider re-commencing ordinary operations. Section 4. Meetings. The Board of Directors may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the Board of Directors may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors. Special meetings of the Board of Directors may be called by the Chairman, the Chief Executive Officer, the President, or by any director. Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone, telegram or electronic means on twenty-four (24) hours' notice, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances. Section 5. Organization. At each meeting of the Board of Directors, the Chairman of the Board of Directors, or, in his or her absence, a director chosen by a majority of the directors present, shall act as chairman. The Secretary of the Corporation shall act as secretary at each meeting of the Board of Directors. In case the Secretary shall be absent from any meeting of the Board of Directors, an Assistant Secretary shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the Secretary and all the Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting. Section 6. Resignations of Directors. Any director of the Corporation may resign at any time, by giving notice in writing or by electronic transmission to the Chairman of the Board of Directors, the President or the Secretary of the Corporation. Such resignation shall take effect at the time therein specified or, if no time is specified, immediately; and, unless otherwise specified in such notice, the acceptance of such resignation shall not be necessary to make it effective. Section 7. Quorum. Except as otherwise required by law or the Certificate of Incorporation, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting of the time and place of the adjourned meeting, until a quorum shall be present. Section 8. Actions of the Board by Written Consent. Unless otherwise provided in the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all the members of the Board of Directors or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form. Section 9. Meetings by Means of Conference Telephone. Unless otherwise provided in the Certificate of Incorporation or these By-Laws, members of the Board of Directors of the Corporation, or any committee thereof, may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 9 shall constitute presence in person at such meeting. Section 10. Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent permitted by law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it. Each committee shall keep regular minutes and report to the Board of Directors when required. Section 11. Compensation. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary for service as director, payable in cash or securities. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for service as committee members. Section 12. Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because any such director's or officer's vote is counted for such purpose if: (i) the material facts as to the director's or officer's relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; (ii) the material facts as to the director's or officer's relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction. ARTICLE IV OFFICERS Section 1. Officers. The officers of the Corporation shall be a Chairman of the Board of Directors, a Chief Executive Officer, a Chief Operating Officer, a President, one or more Executive Vice Presidents, one or more Senior Vice Presidents, one or more Vice Presidents, a Controller, a Treasurer, one or more Assistant Treasurers, a Secretary, and one or more Assistant Secretaries. Any number of offices may be held by the same person. All such officers shall be elected by the Board of Directors at the meeting of the Board of Directors held on the date of each Annual Meeting of the stockholders (or action by written consent of stockholders in lieu of the Annual Meeting of Stockholders). The Board of Directors may elect such additional officers as they deem necessary, who shall have such authority and shall perform such duties as the Board of Directors from time to time prescribe. In its discretion, the Board of Directors may leave any office unfilled. Officers of the Corporation shall hold their offices for such terms as shall be determined by the Board of Directors; and each officer of the Corporation shall hold office until such officer's successor is elected and qualified, or until such officer's earlier death, resignation or removal. Any officer elected by the Board of Directors may be removed at any time by vote of the Board of Directors. The President or Chief Operating Officer may also appoint officers of the Corporation's divisions or business units, but such individuals will not be deemed to be officers of the Corporation. Section 2. Powers and Duties of the Chairman of the Board. The Chairman of the Board of Directors shall preside at all meetings of the stockholders and of the Board of Directors. The Chairman of the Board of Directors shall be the Chief Executive Officer of the Corporation. Except where by law the signature of the President is required, the Chairman of the Board of Directors shall possess the same power as the President to sign all contracts, certificates and other instruments of the Corporation which may be authorized by the Board of Directors. He shall from time to time secure information concerning the business and affairs of the Corporation and shall promptly lay such information before the Board of Directors. He shall communicate to the Board of Directors all matters presented by any officer of the Corporation for its consideration, and shall from time to time communicate to the officers such action of the Board of Directors as may in his judgment affect the performance of their official duties. During the absence or disability of the President, the Chairman of the Board of Directors shall exercise all the powers and discharge all the duties of the President. The Chairman of the Board of Directors also shall perform such other duties and may exercise such other powers as may from time to time be assigned by these By-Laws or by the Board of Directors. Section 3. Powers and Duties of the Chief Executive Officer. The Chief Executive Officer shall be the chief executive officer of the Corporation and, subject to the supervision, direction and control of the Board of Directors and Chairman of the Board of Directors, shall have the general supervision, direction and control of the business and officers of the Corporation with all such powers as may be reasonably incident to such responsibilities. The Chief Executive Officer shall implement the general directives, plans and policies formulated by the Board of Directors and shall further have such duties, responsibilities and authorities as may be assigned to him by the Board of Directors. The Chief Executive Officer shall have the general powers and duties of management usually vested in the chief executive officer of a corporation. During the time of any vacancy in the office of the Chairman of the Board of Directors or in the event of the absence of the Chairman of the Board of Directors, the Chief Executive Officer shall have the duties and powers of the Chairman of the Board of Directors unless otherwise determined by the Board of Directors. In the absence of the Chairman of the Board of Directors, the Chief Executive Officer shall preside at meetings of the Stockholders and Board of Directors. During any time of any vacancy in the office of Chief Operating Officer or in the event of the absence or disability of the Chief Operating Officer, the Chief Executive Officer shall have the duties and powers of the Chief Operating Officer unless otherwise determined by the Board of Directors. Section 4. Powers and Duties of the Chief Operating Officer. The Chief Operating Officer shall be the chief operating officer of the Corporation and, subject to the supervision, direction and control of the Chief Executive Officer and the Board of Directors, shall manage day-to-day operations of the Corporation. He shall have the general powers and duties of management usually vested in the chief operating officer of a corporation and such other powers and duties as may be assigned to him by the Board of Directors, the Chief Executive Officer or these By-Laws. In the absence of the Chief Operating Officer, his duties shall be performed and his authority may be exercised by the Chief Executive Officer or an Executive Vice President of the Corporation as may have been designated by the Chief Operating Officer with the right reserved to the Board of Directors to designate or supersede any designation so made. During the time of any vacancy in the offices of the Chairman of the Board of Directors and Chief Executive Officer or in the event of the absence or disability of the Chairman of the Board of Directors and the Chief Executive Officer, the Chief Operating Officer shall have the duties and powers of the Chief Executive Officer unless otherwise determined by the Board of Directors. Section 5. Powers and Duties of the President. The President shall have such powers and perform such duties as may from time to time be assigned to him by these By-Laws, the Board of Directors, the Chairman of the Board of Directors or the Chief Executive Officer. Section 6. Powers and Duties of the Executive Vice Presidents, Senior Vice Presidents and Vice Presidents. Each Executive Vice President, each Senior Vice President and each Vice President shall have such powers and perform such duties as may from time to time be assigned to him by these By-Laws, the Board of Directors, the Chairman of the Board of Directors, the Chief Executive Officer or the President. Section 7. Powers and Duties of the Controller. The Controller shall be the principal officer in charge of the accounts of the Corporation, and shall perform such duties as from time to time may be assigned to him by the Board of Directors, the Chairman of the Board of Directors, the Chief Executive Officer or the President. Section 8. Powers and Duties of the Treasurer. The Treasurer shall have custody of all the funds and securities of the Corporation which may have come into his hands; when necessary or proper, he may endorse or cause to be endorsed on behalf of the Corporation for collection, checks, notes and other obligations and shall deposit the same to the credit of the Corporation in such bank or banks or depository or depositories as may have been designated by the Board of Directors or by any officer authorized by the Board of Directors to make such designation; whenever required by the Board of Directors he shall render a statement of the funds and securities of the Corporation in his custody; and he shall perform all acts incident to the position of Treasurer, subject to the control of the Board of Directors. Section 9. Powers and Duties of the Secretary. The Secretary shall keep the minutes of all meetings of the Board of Directors and the minutes of all meetings of the stockholders in books provided for that purpose; he shall attend to the giving or serving of all notices of the Corporation; he may sign with the Chairman of the Board of Directors, the President, any Executive Vice President, any Senior Vice President or any Vice President, in the name of the Corporation, all contracts authorized by the Board of Directors or by any committee of the Corporation having the requisite authority and, when so ordered by the Board of Directors or such committee, he shall affix the seal of the Corporation thereto; he shall have charge of the stock certificate books, transfer books and stock ledgers and such other books and papers as the Board of Directors shall direct, all of which shall at all reasonable times be open to the examination of any Director, upon application at the office of the Corporation during business hours; and he shall in general perform all the duties incident to the office of Secretary, subject to the control of the Board of Directors. Section 10. Powers and Duties of Additional Officers. The Board of Directors may from time to time by resolution delegate to any Assistant Vice President or Vice Presidents, Assistant Controller or Controllers, any Assistant Treasurer or Treasurers and/or any Assistant Secretary or Secretaries, elected by the Board of Directors, any of the powers or duties herein assigned to the Vice President, Controller, the Treasurer or the Secretary, respectively. ARTICLE V STOCK Section 1. Form of Certificates. Every holder of stock in the Corporation shall be entitled to have a certificate signed by, or in the name of the Corporation (i) by the Chairman of the Board of Directors, Chief Executive Officer, the President or a Vice President and (ii) by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by such stockholder in the Corporation. Section 2. Signatures. Any or all of the signatures on a certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue. Section 3. Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or such owner's legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate or the issuance of such new certificate. Section 4. Transfers. Stock of the Corporation shall be transferable in the manner prescribed by applicable law and in these By-Laws. Transfers of stock shall be made on the books of the Corporation only by the person named in the certificate or by such person's attorney lawfully constituted in writing and upon the surrender of the certificate therefor, properly endorsed for transfer and payment of all necessary transfer taxes; provided, however, that such surrender and endorsement or payment of taxes shall not be required in any case in which the officers of the Corporation shall determine to waive such requirement. Every certificate exchanged, returned or surrendered to the Corporation shall be marked "Cancelled", with the date of cancellation, by the Secretary or Assistant Secretary of the Corporation or the transfer agent thereof. No transfer of stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing from and to whom transferred. Section 5. Dividend Record Date. In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. Section 6. Record Owners. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise required by law. Section 7. Transfer and Registry Agents. The Corporation may from time to time maintain one or more transfer offices or agencies and registry offices or agencies at such place or places as may be determined from time to time by the Board of Directors. ARTICLE VI NOTICES Section 1. Notices. Whenever written notice is required by law, the Certificate of Incorporation or these By-Laws, to be given to any director, member of a committee or stockholder, such notice may be given by mail, addressed to such director, member of a committee or stockholder, at such person's address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under applicable law, the Certificate of Incorporation or these By-Laws shall be effective if given by a form of electronic transmission if consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice to the Corporation. Any such consent shall be deemed to be revoked if (i) the Corporation is unable to deliver by electronic transmission two (2) consecutive notices by the Corporation in accordance with such consent and (ii) such inability becomes known to the Secretary or Assistant Secretary of the Corporation or to the transfer agent, or other person responsible for the giving of notice; provided, however, that the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action. Notice given by electronic transmission, as described above, shall be deemed given: (i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (ii) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (iii) if by a posting on an electronic network, together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (iv) if by any other form of electronic transmission, when directed to the stockholder. Notice to directors or committee members may be given personally or by telegram, telex, cable or by means of electronic transmission. Section 2. Waivers of Notice. Whenever any notice is required by applicable law, the Certificate of Incorporation or these By-Laws, to be given to any director, member of a committee or stockholder, a waiver thereof in writing, signed by the person or persons entitled to notice, or a waiver by electronic transmission by the person or persons entitled to notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of a person at a meeting, present in person or represented by proxy, shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any Annual or Special Meeting of Stockholders or any regular or special meeting of the directors or members of a committee of directors need be specified in any written waiver of notice unless so required by law, the Certificate of Incorporation or these By-Laws. ARTICLE VII GENERAL PROVISIONS Section 1. Dividends. Dividends upon the capital stock of the Corporation, subject to the requirements of the DGCL and the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting of the Board of Directors (or any action by written consent in lieu thereof in accordance with Section 8 of Article III hereof), and may be paid in cash, in property, or in shares of the Corporation's capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for purchasing any of the shares of capital stock, warrants, rights, options, bonds, debentures, notes, scrip or other securities or evidences of indebtedness of the Corporation, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve. Section 2. Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. Section 3. Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors. Section 4. Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE VIII AMENDMENTS Section 1. Amendments. These By-Laws may be altered, amended or repealed, in whole or in part, or new By-Laws may be adopted by the stockholders or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or adoption of new By-Laws be contained in the notice of such meeting of the stockholders or Board of Directors, as the case may be. All such amendments must be approved by the affirmative vote of the holders of at least eighty percent (80%) of the voting power of the shares entitled to vote at an election of directors or by affirmative vote of at least a majority of the entire Board of Directors. Section 2. Entire Board of Directors. As used in this Article VIII and in these By-Laws generally, the term "entire Board of Directors" means the total number of directors which the Corporation would have if there were no vacancies. * * * Adopted as of August [o], 2002 EX-99 7 ch314889.txt EX T3C =============================================================================== [REORGANIZED COMDISCO, INC.] AND [NEW LEASING CO., INC.] VARIABLE RATE SENIOR SECURED NOTES DUE 2004 --------------------- INDENTURE Dated as of August ___, 2002 --------------------- WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION Trustee --------------------- =============================================================================== CROSS-REFERENCE TABLE* Trust Indenture Act Section Indenture Section 310(a)(1).................................................... 7.10 (a)(2).................................................. 7.10 (a)(3).................................................. N.A. (a)(4).................................................. N.A. (a)(5).................................................. 7.10 (b)..................................................... 7.10 (c)..................................................... N.A. 311(a)....................................................... 7.11 (b)..................................................... 7.11 (c)..................................................... N.A. 312(a)....................................................... 2.05 (b)..................................................... 11.03 (c)..................................................... 11.03 313(a)....................................................... 7.06 (b)(1).................................................. 9.03 (b)(2).................................................. 7.06;7.07 (c)..................................................... 7.06;11.02 (d)..................................................... 7.06 314(a)....................................................... 4.03;11.05 (b)..................................................... 9.02 (c)(1).................................................. 11.04 (c)(2).................................................. 11.04 (c)(3).................................................. N.A. (d)..................................................... 9.03, 9.04, 9.05 (e)..................................................... 11.05 (f)..................................................... N.A. 315(a)....................................................... 7.01 (b)..................................................... 7.05,11.02 (c)..................................................... 7.01 (d)..................................................... 7.01 (e)..................................................... 6.11 316(a) (last sentence)....................................... 2.09 (a)(1)(A)............................................... 6.05 (a)(1)(B)............................................... 6.04 (a)(2).................................................. N.A. (b)..................................................... 6.07 (c)..................................................... 2.12; 8.04 317(a)(1).................................................... 6.08 (a)(2).................................................. 6.09 (b)..................................................... 2.04 318(a)....................................................... 11.01 (b)..................................................... N.A. (c)..................................................... 11.01 N.A. means not applicable. * This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS Page ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE Section 1.01. Definitions.................................................................................1 Section 1.02. Other Definitions..........................................................................14 Section 1.03. Incorporation by Reference of Trust Indenture Act..........................................14 Section 1.04. Rules of Construction......................................................................15 ARTICLE 2. THE NOTES Section 2.01. Form and Dating............................................................................15 Section 2.02. Execution and Authentication...............................................................16 Section 2.03. Registrar and Paying Agent.................................................................16 Section 2.04. Paying Agent to Hold Money in Trust........................................................17 Section 2.05. Holder Lists...............................................................................17 Section 2.06. Transfer and Exchange......................................................................17 Section 2.07. Replacement Notes..........................................................................19 Section 2.08. Outstanding Notes..........................................................................20 Section 2.09. Treasury Notes.............................................................................20 Section 2.10. Temporary Notes............................................................................20 Section 2.11. Cancellation...............................................................................21 Section 2.12. Defaulted Interest.........................................................................21 ARTICLE 3. REDEMPTION AND PREPAYMENT Section 3.01. Notices to Trustee.........................................................................21 Section 3.02. Selection of Notes to Be Redeemed or Repurchased...........................................21 Section 3.03. Notice of Redemption.......................................................................22 Section 3.04. Effect of Notice of Redemption.............................................................22 Section 3.05. Deposit of Redemption Price................................................................22 Section 3.06. Notes Redeemed in Part.....................................................................23 Section 3.07. Optional Redemption........................................................................23 Section 3.08. Mandatory Redemption.......................................................................23 Section 3.09. Offers to Repurchase by the Issuers........................................................24 ARTICLE 4. COVENANTS Section 4.01. Payment of Notes...........................................................................25 Section 4.02. Maintenance of Office or Agency............................................................25 Section 4.03. Reports....................................................................................26 Section 4.04. Compliance Certificate.....................................................................26 Section 4.05. Taxes......................................................................................27 Section 4.06. Stay, Extension and Usury Laws.............................................................27 Section 4.07. Restricted Payments........................................................................27 Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries.............................28 Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.................................29 Section 4.10. Transactions with Affiliates...............................................................30 Section 4.11. Liens......................................................................................31 Section 4.12. Line of Business...........................................................................32 Section 4.13. Corporate Existence; Certificate of Incorporation..........................................32 Section 4.14. Offers to Repurchase by the Company........................................................32 Section 4.15. Insurance..................................................................................33 Section 4.16. Maintenance of Property....................................................................33 Section 4.17. Limitation on Sale and Leaseback Transactions..............................................33 Section 4.18. Limitation on Issuances and Sales of Equity Interests in Subsidiaries......................33 Section 4.19. No Amendment to Certain Provisions of the Subordinated Note Indenture......................34 Section 4.20. Equity Interests of the Company............................................................34 Section 4.21. Assets of the Company......................................................................34 Section 4.22. Management Incentive Plan..................................................................34 Section 4.23. Additional Note Collateral.................................................................34 Section 4.24. Consummation of Plan.......................................................................35 Section 4.25. Distributions from Subsidiaries............................................................35 ARTICLE 5. SUCCESSORS Section 5.01. Merger, Consolidation or the Transfer of All or Substantially All of the Assets of the Company................................................................................35 Section 5.02. Merger, Consolidation or the Transfer of All or Substantially All of the Assets of NLC........................................................................................36 Section 5.03. Successor Corporation Substituted..........................................................37 ARTICLE 6. DEFAULTS AND REMEDIES Section 6.01. Events of Default..........................................................................38 Section 6.02. Acceleration...............................................................................39 Section 6.03. Other Remedies.............................................................................39 Section 6.04. Waiver of Past Defaults....................................................................39 Section 6.05. Control by Majority........................................................................40 Section 6.06. Limitation on Suits........................................................................40 Section 6.07. Rights of Holders of Notes to Receive Payment..............................................40 Section 6.08. Collection Suit by Trustee.................................................................41 Section 6.09. Trustee May File Proofs of Claim...........................................................41 Section 6.10. Priorities.................................................................................41 Section 6.11. Undertaking for Costs......................................................................42 ARTICLE 7. TRUSTEE Section 7.01. Duties of Trustee..........................................................................42 Section 7.02. Rights of Trustee..........................................................................43 Section 7.03. Individual Rights of Trustee...............................................................44 Section 7.04. Trustee's Disclaimer.......................................................................44 Section 7.05. Notice of Defaults.........................................................................44 Section 7.06. Reports by Trustee to Holders of the Notes.................................................44 Section 7.07. Compensation and Indemnity.................................................................44 Section 7.08. Replacement of Trustee.....................................................................45 Section 7.09. Successor Trustee by Merger, etc...........................................................46 Section 7.10. Eligibility; Disqualification..............................................................46 Section 7.11. Preferential Collection of Claims Against Issuers..........................................46 ARTICLE 8. AMENDMENT, SUPPLEMENT AND WAIVER Section 8.01. Without Consent of Holders of Notes........................................................47 Section 8.02. With Consent of Holders of Notes...........................................................47 Section 8.03. Compliance with Trust Indenture Act........................................................48 Section 8.04. Revocation and Effect of Consents..........................................................49 Section 8.05. Notation on or Exchange of Notes...........................................................49 Section 8.06. Trustee to Sign Amendments, etc............................................................49 ARTICLE 9. COLLATERAL AND SECURITY Section 9.01. Collateral Documents.......................................................................49 Section 9.02. Recording and Opinions.....................................................................50 Section 9.03. Release of Note Collateral.................................................................50 Section 9.04. Certificates of the Issuers................................................................51 Section 9.05. Certificates of the Trustee................................................................51 Section 9.06. Authorization of Actions to Be Taken by the Trustee Under the Collateral Documents.........51 Section 9.07. Authorization of Receipt of Funds by the Trustee Under the Collateral Documents............52 Section 9.08. Termination of Security Interest...........................................................52 ARTICLE 10. SATISFACTION AND DISCHARGE Section 10.01. Satisfaction and Discharge.................................................................52 Section 10.02. Application of Trust Money.................................................................53 ARTICLE 11. MISCELLANEOUS Section 11.01. Trust Indenture Act Controls...............................................................53 Section 11.02. Notices....................................................................................53 Section 11.03. Communication by Holders of Notes with Other Holders of Notes..............................55 Section 11.04. Certificate and Opinion as to Conditions Precedent.........................................55 Section 11.05. Statements Required in Certificate or Opinion..............................................55 Section 11.06. Rules by Trustee and Agents................................................................55 Section 11.07. No Personal Liability of Directors, Officers, Employees, Stockholders and Agents...........56 Section 11.08. Governing Law..............................................................................56 Section 11.09. No Adverse Interpretation of Other Agreements..............................................56 Section 11.10. Successors.................................................................................56 Section 11.11. Severability...............................................................................56 Section 11.12. Counterpart Originals......................................................................56 Section 11.13. Table of Contents, Headings, etc...........................................................56
SCHEDULES Schedule A SCHEDULED CASH RESERVE AMOUNT EXHIBITS Exhibit A FORM OF NOTE Exhibit B LIST OF COLLATERAL DOCUMENTS INDENTURE dated as of August ___, 2002 between [Reorganized Comdisco, Inc.], a Delaware corporation (the "Company"), [New Leasing Co., Inc.] a Delaware corporation ("NLC" and, together with the Company, the "Issuers") and Wells Fargo Bank Minnesota, National Association, a national banking association, as trustee (the "Trustee"). The Company, NLC and the Trustee agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Variable Rate Senior Secured Notes due 2004 (the "Notes"): ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE Section 1.01. Definitions. "Acquired Debt" means, with respect to any specified Person: (1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Subsidiary of, such specified Person; and (2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, "control," as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided, however, that beneficial ownership of 10% or more of the Voting Stock of a Person will be deemed to be control. For purposes of this definition, the terms "controlling," "controlled by" and "under common control with" have correlative meanings. "Agent" means any Registrar, Paying Agent or co-registrar. "Applicable Procedures" means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary that apply to such transfer or exchange. "Bankruptcy Law" means Title 11, U.S. Code or any applicable federal or state or other applicable bankruptcy, insolvency, reorganization or other similar law for the relief of debtors. "Board of Directors" means: (a) with respect to a corporation, the board of directors of the corporation; (b) with respect to a partnership, the board of directors of the general partner of the partnership; and (c) with respect to any other Person, the board or committee of such Person serving a similar function. "Business Day" means any day other than a Legal Holiday. "Capital Lease Obligation" means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP. "Capital Stock" means any and all shares or other equivalents (however designated) of capital stock, including all common stock and all preferred stock, in the case of a corporation, or partnership interests or other equivalents (however designated) in the case of a partnership or common shares of beneficial interest or other equivalents (however designated) in the case of a trust. "Cash Equivalents" means: (a) United States dollars; (b) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government having maturities of not more than one year from the date of acquisition; (c) certificates of deposit and Eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers' acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any domestic commercial bank having capital and surplus in excess of $500.0 million and a Thomson Bank Watch Rating of "B" or better; (d) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (b) and (c) above entered into with any financial institution meeting the qualifications specified in clause (c) above; (e) commercial paper having the highest rating obtainable from Moody's Investors Service, Inc. or Standard & Poor's Rating Services and in each case maturing within 271 days after the date of acquisition; (f) money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (a) through (e) of this definition; and (g) the following money market funds (including any successor fund or equivalent thereto): (i) Goldman Sachs Financial Square Money Market Fund; (ii) Goldman Sachs Financial Square Prime Obligations Fund; (iii) Goldman Sachs Financial Square Treasury Obligations Fund; (iv) Goldman Sachs Financial Square Federal Fund; and (v) money market funds that primarily invest in the types of investments that are invested in by one or more of the funds identified in subclauses (i) through (iv) of this clause (g). "Change in Control" means the occurrence of any of the following: (a) the sale of all or substantially all of the assets of the Issuers and their Subsidiaries taken as a whole, to any Person or related group of Persons; (b) the consummation of any consolidation or merger of either of the Issuers: (i) in which the applicable Issuer is not the continuing or surviving corporation, other than a consolidation or merger: (1) with a wholly-owned Subsidiary of the applicable Issuer in which all of the common stock of the applicable Issuer outstanding immediately prior to the effectiveness thereof is changed into or exchanged for the same consideration, or (2) in which the stockholders of the applicable Issuer immediately prior to the consummation of such consolidation or merger own greater than 50% of the total voting power of all classes of capital shares of the continuing or surviving corporation immediately following the consummation of such consolidation or merger; or (ii) pursuant to which the shares of common stock of the applicable Issuer are converted into cash, securities, or other property, unless the stockholders of the applicable Issuer immediately prior to the consummation of such consolidation or merger own greater than 50% of the total voting power of all classes of capital shares of the continuing or surviving corporation immediately following the consummation of such consolidation or merger, (c) the acquisition by any Person individually or any Persons (in each case other than an Excluded Person or Excluded Persons) acting together that would constitute a "group" for purposes of Section 13(d) of the Exchange Act, together with any affiliates thereof, of beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of greater than 50% of the total voting power of all classes of capital shares of either of the Issuers entitled to vote generally in the election of directors of the applicable Issuer; or (d) the first day on which a majority of members of the Board of Directors of the Company are not Continuing Directors. Notwithstanding clause (a) of the definition of "Change in Control", a Change in Control will not be deemed to have occurred as a result of a transaction in which either: (a) the holders of the shares of common stock of the applicable Issuer immediately prior to the sale of all or substantially all of the applicable Issuer's assets have, directly or indirectly, at least a majority of the shares of common stock of the corporation to which such assets were sold immediately after such asset sale; or (b) the holders of the shares of common stock of the Issuers immediately prior to the consolidation or merger have, directly or indirectly, at least a majority of the shares of common stock of the continuing or surviving corporation immediately after such consolidation or merger. Notwithstanding clause (c) of the definition of "Change in Control", a Change in Control will not be deemed to have occurred solely by virtue of any of the following Persons filing or becoming obligated to file a report under or in response to Schedule 13D or Schedule 14D-1 (or any successor schedule, form, or report) under the Exchange Act disclosing beneficial ownership by it of shares or securities of the applicable Issuer, of greater than 50% of the total voting power referred to in clause (c) of the foregoing definition or otherwise: (a) the other Issuer; (b) any Subsidiary; (c) any employee share purchase plan, share option plan, or other share incentive plan or program; (d) retirement plan or automatic dividend reinvestment plan; or (e) any substantially similar plan of the Issuers or any Subsidiary or any Person holding securities of the Issuers for or pursuant to the terms of any such employee benefit plan. "Collateral Agent" means the party named as such in the Collateral Documents until a successor replaces it in accordance with the provisions of the Collateral Documents and thereafter means the successor serving thereunder. "Collateral Documents" means all agreements, instruments, documents, pledges or filings listed on Exhibit B hereto that evidence, perfect, set forth or limit the security interest of the Collateral Agent in the Note Collateral. "Company" means [Reorganized Comdisco, Inc.], and any and all successors thereto. "Continuing Directors" means, as of any date of determination, any member of the Board of Directors of the Company who: (a) was a member of such Board of Directors on the date of this Indenture or elected to or otherwise named to the Board of Directors pursuant to the Plan; or (b) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board at the time of such nomination or election. "Corporate Trust Office of the Trustee" shall be at the address of the Trustee specified in Section 11.02 hereof or such other address as to which the Trustee may give notice to the Issuers and the Holders. "Custodian" means the Trustee, as custodian with respect to the Notes, or any successor entity thereto. "Default" means any event that is or with the passage of time or the giving of notice or both would be an Event of Default. "Definitive Note" means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the "Schedule of Exchanges of Interests in the Global Note" attached thereto. "Depositary" means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as depositary hereunder and having become such pursuant to the applicable provision of this Indenture. "Disclosure Statement" means the Disclosure Statement with respect to the Plan. "Disputed Claims Reserve" has the meaning given to that term in the Plan. "Disqualified Stock" means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the date on which the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Company to repurchase such Capital Stock upon the occurrence of a change in control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 4.07. "Domestic Subsidiary" means any Subsidiary of the Issuers that was formed under the laws of the United States or any state of the United States or the District of Columbia. "Effective Date" means August ___, 2002. "Equity Interests" means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock). "Excess Cash" means Unrestricted Cash minus the sum of (i) an amount of cash or cash equivalents necessary to fund the Issuers' operating reserve for the fiscal quarter immediately following the fiscal quarter as to which any determination is being made, such operating reserves not to exceed the aggregate Scheduled Cash Reserve Amount and (ii) the amount of Notes optionally redeemed or to be optionally redeemed by the Issuers (unless the Issuers subsequently fail to redeem such Notes on the applicable redemption date) in accordance with Section 3.07 hereof following the last day of the fiscal quarter and prior to any mandatory redemption date in accordance with Section 3.08 hereof; provided, that amounts of Excess Cash determined by the foregoing shall be rounded down to the nearest whole multiple of $1,000. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "Excluded Person" means any Person who is a holder of more than 5% of all classes of capital shares of the Issuers as of the Effective Date. "Existing Indebtedness" means up to $610.0 million in aggregate principal amount of Indebtedness of the Issuers and their Subsidiaries (excluding Indebtedness under this Indenture and the Subordinated Note Indenture) in existence on the date of the Indenture, until such amounts are repaid. "Foreign Subsidiary" of a Person means any Subsidiary of the referent Person that is not a Domestic Subsidiary. "GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time. "Global Notes" means each of the global Notes issued in accordance with Section 2.01 and substantially in the form of Exhibit A attached hereto that, except as otherwise provided in Section 2.01(b) hereof, bear the Global Note Legend and that have the "Schedule of Exchanges of Interests in the Global Note" attached thereto, and that are deposited with or on behalf of and registered in the name of the Depositary. "Global Note Legend" means the legend set forth in Section 2.06(f), which is required to be placed on all Global Notes issued under this Indenture. "Government Securities" means direct obligations of, or obligations guaranteed by, the United States of America, and the payment for which the United States pledges its full faith and credit. "Guarantee" means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness. "Hedging Obligations" means, with respect to any specified Person, the obligations of such Person under: (a) swap agreements, cap agreements and collar agreements designed to protect such Person against fluctuations on interest or currency exchange rates; and (b) other agreements or arrangements designed to protect such Person against fluctuations in interest rates or currency exchange rates. "Holder" means a Person in whose name a Note is registered. "Indebtedness" means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent: (a) in respect of borrowed money; (b) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof); (c) in respect of banker's acceptances; (d) representing Capital Lease Obligations; (e) representing the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued expense or trade payable; or (f) representing any Hedging Obligations, if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term "Indebtedness" includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person. The amount of any Indebtedness outstanding as of any date will be: (a) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount; (b) the principal amount of the Indebtedness, together with any interest on the Indebtedness that is more than 30 days past due, in the case of any other Indebtedness; (c) in the case of a Guarantee of Indebtedness, the maximum amount of the outstanding Indebtedness guaranteed under such Guarantee; and (d) in the case of Indebtedness of others secured by a Lien on any asset of the specified Person, the fair market value of the asset(s) subject to such Lien. "Indenture" means this Indenture, as amended, modified or supplemented from time to time. "Initial Notes" means the Notes issued under this Indenture on the date hereof. "Investments" means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding commission, travel and similar advances to officers and employees made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If the Issuers or any Subsidiary of the Issuers sells or otherwise disposes of any Equity Interests of any direct or indirect Subsidiary of the Issuers such that, after giving effect to any such sale or disposition, such Person is no longer a Subsidiary of the Issuers, the Issuers will be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value of the Equity Interests of such Subsidiary not sold or disposed of in an amount determined as provided in the final paragraph of Section 4.07. The acquisition by the Company or any Subsidiary of the Company of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Company or such Subsidiary in such third Person in an amount equal to the fair market value of the Investment held by the acquired Person in such third Person. "Legal Holiday" means a Saturday, a Sunday or a day on which banking institutions in the City of New York, the City of Chicago or at a place of payment are authorized by law, regulation or executive order to remain closed. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue on such payment for the intervening period. "Letter of Credit Facility" means the Credit and Security Agreement, dated as of June 18, 2002, between the Company and Fifth Third Bank (Chicago), and the other "Loan Documents" (as defined therein), each as amended, supplemented, refinanced, replaced, extended, defeased, increased, refunded, renewed, restated, revised or otherwise modified from time to time in the aggregate amount of outstanding letters of credit not to exceed $12,000,000.00 at any time. "Lien" means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction. "Management Incentive Plan" has the meaning given to that term in the Plan. "New Europe" means [New Europe Holding Company], and any and all successors thereto. "New Ventures" means [New Ventures Holding Company], and any and all successors thereto. "NLC" means [New Leasing Co., Inc.], and any and all successors thereto. "Non-Recourse Debt" means Indebtedness incurred in connection with discounted lease receivables programs substantially similar to the discounted lease receivables programs utilized in the ordinary course of business of the Issuers and/or their Subsidiaries prior to the date hereof as to which no default with respect to such Indebtedness (including any rights that the holders of the Indebtedness may have to take enforcement action against a Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness (other than the Notes or the Senior Notes) of the Issuers or any of their Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to its stated maturity. "Note Collateral" means all property, now owned or hereafter acquired, of the Issuers that, pursuant to the Collateral Documents, is subject to a security interest in favor of the Collateral Agent. "Notes" has the meaning assigned to it in the preamble to this Indenture. The Initial Notes shall be treated as a single class for all purposes under this Indenture. "Obligations" means any principal, interest, premium, if any, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness. "Officer" means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Secretary, any Assistant Secretary, the Chief Operating Officer, the Chief Financial Officer, the Controller, the Treasurer or any Assistant Treasurer of such Person. "Officers' Certificate" means a certificate signed on behalf of the Company or NLC, as the case may be, by two Officers of the Company or NLC, as the case may be, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Company or NLC, as the case may be, that meets the requirements of Section 11.05 hereof. "Opinion of Counsel" means an opinion from legal counsel who is reasonably acceptable to the Trustee, that meets the requirements of Section 11.05 hereof. The counsel may be an employee of or counsel to the Issuers, any Subsidiary of the Issuers or the Trustee. "Participant" means, with respect to the Depositary, a Person who has an account with the Depositary. "Permitted Business" means: (a) the sale, collection or other liquidation of the assets of the Issuers and their Subsidiaries, the repayment of the Indebtedness of the Issuers and thereafter the payment of dividends or other distributions to the owners of the Capital Stock of the Company, as contemplated by the Plan and the Disclosure Statement; and (b) any business that is ancillary to the foregoing. "Permitted Investments" means: (a) any Investment (i) in the Issuers, (ii) in a Domestic Subsidiary of the Issuers or (iii) in a Foreign Subsidiary of the Issuers; provided, however, that the Issuers or a Domestic Subsidiary of the Issuers cannot make Investments in Foreign Subsidiaries pursuant to this subclause (iii) in an amount exceeding the aggregate distributions received by the Issuers or their Domestic Subsidiaries from Foreign Subsidiaries since April 1, 2002; provided, further, that any intercompany Indebtedness owed to the Issuers or any Domestic Subsidiary of the Issuers by any Foreign Subsidiary may be converted into equity of, or contributed to the capital of, a Foreign Subsidiary in order to maintain the solvency of any Foreign Subsidiary or in connection with a sale or other disposition of such Foreign Subsidiary; (b) any Investment in cash or Cash Equivalents; (c) any Investments made or received (i) in exchange for, or in compromise of, other Investments of the Issuers or any of their Subsidiaries existing as of the date hereof, (ii) in exchange for, or in compromise of, assets or other rights received by the Issuers or any of their Subsidiaries in exchange for, or in compromise of, Investments of the Issuers or any of their Subsidiaries, which assets, rights or Investments were in existence as of the date hereof or (iii) to extend, refinance, renew or replace any other Investments of the Issuers or any of their Subsidiaries existing as of the date hereof; (d) any Investments received in compromise of obligations of Persons incurred in the ordinary course of business, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer; (e) Hedging Obligations; (f) Investments represented by accounts receivable created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; (g) Investments, or Investments resulting from commitments to make Investments, existing as of the date of this Indenture; (h) Investments, or commitments to make Investments, in the form of (x) a lease of or rental agreement, (y) a sale contract (including an installment sale contract or conditional sale agreement), or (z) a secured financing, including any schedule or amendment thereto or assignment, assumption, renewal or novation thereof (and delivery, acceptance or installation certificates, landlord or mortgagee waivers, intercreditor or subordination agreements, incumbency certificates, purchase orders, purchase order assignments, and sale and leaseback agreements, each relating thereto), and in each case, which with respect thereto: (A) the Company, NLC or one of their Subsidiaries is the lessor, seller, secured party or obligee (whether initially or as an assignee), or (B) is between an obligor, on the one hand, and a lessor, seller, obligee, secured party or assignee of any of the foregoing, on the other hand, and (1) which would be a Permitted Investment if the Company, NLC or one of their Subsidiaries were the lessor, seller, obligee, secured party or assignee of any of the foregoing thereunder and (2) with respect to which the Company, NLC or one of their Subsidiaries is an assignee of the revenues or claims with respect thereto; (i) Investments in prepaid expenses, negotiable instruments held for collection, and lease, utility and worker's compensation, performance and other similar deposits in the ordinary course of business consistent with past practices; and (j) other Investments in any Person having an aggregate fair market value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (j) that are at the time outstanding not to exceed (1) $1.0 million in respect of Investments in any Person by New Ventures and (2) $1.0 million in respect of Investments in any Person by the Issuers or their Subsidiaries including New Ventures; provided, however, that any Investment by New Ventures with respect to this clause (j) shall be attributed, without duplication, to either subclause (1) hereof or subclause (2) hereof. "Permitted Liens" means: (a) Liens created, or intended to be created, under the Collateral Documents; (b) Liens on assets of any of the Issuers or their Subsidiaries securing Indebtedness that are permitted by clauses (c), (f) or (i) of the second paragraph of Section 4.09; (c) Liens in favor of any of the Issuers or their Subsidiaries; (d) Liens on property of a Person existing at the time such Person becomes a Subsidiary of the Issuers or New Ventures; provided, however, that such Liens were in existence prior to the contemplation of such Person becoming a Subsidiary of the Issuers or New Ventures and do not extend to any assets other than those of the Person that becomes a Subsidiary of the Issuers or New Ventures; provided, further, that such Person becomes a Subsidiary of the Issuers or New Ventures as a result of a Permitted Investment pursuant to clause (c) of the definition thereof; (e) Liens on property existing at the time of acquisition of such property by any of the Issuers or their Subsidiaries, provided, however, that such Liens were in existence prior to the contemplation of such acquisition and such property was acquired in exchange for, or in compromise of, Investments existing as of the date hereof or Investments resulting from commitments to make Investments existing as of the date hereof; (f) Liens to secure the performance of statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature incurred in the ordinary course of business; (g) Liens on assets or rights which are not Note Collateral and which secure Indebtedness permitted under any clause of Section 4.09 so long as the Notes are repaid in full with the proceeds of, and concurrently with the incurrence of, such Indebtedness; (h) Liens existing on the date of this Indenture; (i) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings or negotiations promptly instituted and diligently concluded, provided, however, that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor; (j) Liens incurred in the ordinary course of business of the Issuers or any Subsidiary of the Issuers with respect to obligations that are not Indebtedness that do not exceed $1.0 million at any one time outstanding; (k) Liens on assets of NLC or any Subsidiaries of the Issuers that secure Non-Recourse Debt of NLC or such Subsidiaries; (l) statutory Liens of landlords and carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or other like Liens arising in the ordinary course of business and with respect to amounts not yet delinquent for a period of more than 90 days or which are being contested in good faith; provided, however, that a reserve or other appropriate provision as shall be required by GAAP shall have been made therefor; (m) easements, rights-of-way, restrictions, zoning, minor defects or irregularities in title and other similar charges or encumbrances not interfering in any material respect with the business or assets of the Issuers or their Subsidiaries, taken as a whole, incurred in the ordinary course of business; (n) Liens arising by reason of any judgment not constituting an Event of Default under this Indenture; provided, however, that: (i) such Liens are being contested in good faith by appropriate proceedings or negotiations, and (ii) such Liens are adequately bonded or adequate reserves have been established on the books of the Issuers in accordance with GAAP; (o) Uniform Commercial Code financing statements filed for precautionary purposes in connection with any true lease of property leased by any of the Issuers or their Subsidiaries; provided, however, that any such financing statement does not cover any property other than the property subject to such lease and the proceeds thereof; and (p) renewals or refundings of Indebtedness expressly permitted by the Indenture secured by any Liens referred to in clauses (a), (b), (d), (e), (g), (h) and (k) above; provided, however, that: (i) such new Liens will be limited to all or part of the same property that secured the original Liens (plus improvements to or on such property); and (ii) the principal amount of the Indebtedness secured by such Liens at such time is not increased to any amount greater than the sum of (1) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (a), (b), (d), (e), (g), (h) and (k) above immediately prior to such renewal or refunding, and (2) an amount necessary to pay any fees and expenses, including premiums, related to such renewals or refundings. "Permitted Refinancing Indebtedness" means any Indebtedness of any of the Issuers or their Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund other Indebtedness of any of the Issuers or their Subsidiaries (other than intercompany Indebtedness); provided, however, that: (a) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued interest on the Indebtedness and the amount of all expenses and premiums incurred in connection therewith); (b) such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; (c) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the Notes, such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and is subordinated in right of payment to, the Notes on terms at least as favorable to the Holders of the Notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; (d) such Permitted Refinancing Indebtedness is incurred either by the Issuers or by the Subsidiary which is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; (e) the covenants contained in the documentation governing such Permitted Refinancing Indebtedness are no more restrictive than the covenants contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; and (f) if more than 30 days remain until the maturity date of the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded, the interest rate of such Permitted Refinancing Indebtedness does not exceed the interest rate of the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded. "Person" means any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government (or any agency, instrumentality or political subdivision thereof). "Plan" means the First Amended Joint Plan of Reorganization of Comdisco, Inc. and its Affiliated Debtors and Debtors In Possession dated as of June 13, 2002, as amended, modified or otherwise supplemented through the Effective Date. "Pledge Agreement" means the Pledge Agreement, dated as of the Effective Date, among the Issuers and the Trustee, as amended, modified or supplemented from time to time. "Registration Rights Agreement" means the Registration Rights Agreement, dated as of the Effective Date, by and among the Issuers and the other parties named on the signature pages thereof, as such agreement may be amended, modified or supplemented from time to time. "Responsible Officer," when used with respect to the Trustee, means any officer within the corporate trust department of the Trustee located at the Corporate Trust Office of the Trustee (or any successor group of the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject. "Restricted Investment" means an Investment other than a Permitted Investment. "Scheduled Cash Reserve Amount" means the respective amount set forth on Schedule A hereto allocated among the Subsidiaries of the Company as the Company's Board of Directors deems appropriate. "SEC" means the Securities and Exchange Commission. "Securities Act" means the Securities Act of 1933, as amended. "Stated Maturity" means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the original documentation governing such Indebtedness, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof. "Stay Bonus Plan" has the meaning given to that term in the Disclosure Statement. "Subordinated Note Indenture" means the indenture, dated as of the date of this Indenture, to be executed by the Issuers and the Subordinated Note Trustee, pursuant to which the Subordinated Notes will be issued. "Subordinated Note Trustee" means Wells Fargo Bank Minnesota, National Association in its capacity as trustee under the Subordinated Note Indenture and any successor trustee, if any, under the Subordinated Note Indenture. "Subordinated Notes" means the 11% Subordinated Secured Notes due 2005 issued pursuant to the Subordinated Note Indenture. "Subsidiary" means, with respect to any specified Person: (a) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and (b) any partnership (i) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (ii) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof). "Supplemental Distribution Account" has the meaning given to that term in the Plan. "TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss. 77aaa-77bbbb), as amended, as in effect on the date hereof until such time as this Indenture is qualified under the TIA and thereafter as in effect on the date on which this Indenture is qualified under the TIA. "Trustee" means the party named as such above until a successor replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder. "Unrestricted Cash" means cash or cash equivalents as set forth on the balance sheets of the Issuers and their Subsidiaries prepared in accordance with GAAP as of 5:00 p.m. on the last day of the applicable fiscal quarter minus, without duplication, the sum of cash or cash equivalents (i) held in non-domestic accounts in the ordinary operation of the business, (ii) required to be shown as restricted cash or cash equivalents in accordance with GAAP on such balance sheet (or the notes thereto) or otherwise unavailable to Issuers and their Subsidiaries for general use as a result of the Plan, applicable law or agreement with a third party, (iii) held or maintained in the Disputed Claims Reserve, (iv) held or maintained in the Supplemental Distribution Account, (v) held or maintained in the cash account pledged to the issuers of letters of credit under the Letter of Credit Facility and (vi) held or required to be held in an escrow account or otherwise legally segregated from the funds of the Issuers and their Subsidiaries pursuant to the Stay Bonus Plan and/or the Management Incentive Plan. "Voting Stock" of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person. "Weighted Average Life to Maturity" means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness. Section 1.02. Other Definitions. Defined in Term Section ---- ------- "Affiliate Transaction"...................................... 4.10 "Authentication Order" ...................................... 2.02 "Change in Control Offer".................................... 4.14 "Change in Control Repurchase Date".......................... 4.14 "Change in Control Repurchase Price"......................... 4.14 "DTC"........................................................ 2.03 "Event of Default"........................................... 6.01 "incur"...................................................... 4.09 "Offer"...................................................... 3.09 "Offer Period"............................................... 3.09 "Paying Agent"............................................... 2.03 "Permitted Debt"............................................. 4.09 "Registrar".................................................. 2.03 "Restricted Payments"........................................ 4.07 Section 1.03 Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings: "Commission" means the SEC; "indenture securities" means the Notes; "indenture security holder" means a Holder of a Note; "indenture to be qualified" means this Indenture; "indenture trustee" or "institutional trustee" means the Trustee; and "obligor" on the Notes means the Company and NLC and any successor obligor upon the Notes. All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA have the meanings so assigned to them. Section 1.04. Rules of Construction. Unless the context otherwise requires: (a) a term has the meaning assigned to it; (b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; (c) "or" is not exclusive; (d) words in the singular include the plural, and in the plural include the singular; (e) provisions apply to successive events and transactions; and (f) references to sections of or rules under the Securities Act and the Exchange Act shall be deemed to include substitute, replacement of successor sections or rules adopted by the SEC from time to time. ARTICLE 2. THE NOTES Section 2.01. Form and Dating. (a) General. The Notes and the Trustee's certificate of authentication shall be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage, as applicable. Each Note shall be dated the date of its authentication. The Notes shall be in denominations of $1,000 and integral multiples thereof; provided, however, that the Notes may be in denominations (rounded to the nearest whole dollar) of less than $1,000 (but in no event less than $1.00) to make redemptions of Notes pursuant to Section 3.07 and 3.08 hereof. The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and the Issuers and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling. (b) Global Notes. Except as expressly required by the terms of this Indenture, Notes shall be issued in global form substantially in the form of Exhibit A attached hereto (including the Global Note Legend thereon and the "Schedule of Exchanges of Interests in the Global Note" attached thereto). Notes otherwise issued in definitive form shall be substantially in the form of Exhibit A attached hereto (but without the Global Note Legend thereon and without the "Schedule of Exchanges of Interests in the Global Note" attached thereto). Each Global Note shall represent such of the outstanding Notes as shall be specified therein and each shall provide that it shall represent the aggregate principal amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges, redemptions and transfers of interests therein in accordance with this Indenture. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof. Section 2.02. Execution and Authentication. Two (2) Officers of both the Company and NLC shall sign the Notes for the Company and NLC, respectively. The signatures of any of those Officers on the Notes may be either a manual or a facsimile signature. If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid. A Note shall not be valid until authenticated by the manual signature of an authorized signatory of the Trustee on the certificate of authentication of the Note. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture. The Trustee shall, upon a written order of the Issuers signed by two (2) Officers of both the Company and NLC specifying the date on which the Notes are to be authenticated and whether the Notes are Definitive Notes or Global Notes (an "Authentication Order"), authenticate Notes for original issue up to the aggregate principal amount stated in the Notes. The aggregate principal amount of Notes outstanding at any time may not exceed such amount except as provided in Section 2.07 hereof. The Trustee may appoint an authenticating agent acceptable to the Issuers to authenticate Notes. The Issuers shall pay all reasonable fees payable to the authenticating agent. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of the Company. Section 2.03. Registrar and Paying Agent. The Issuers shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange ("Registrar") and an office or agency where Notes may be presented for payment ("Paying Agent"). The Registrar shall keep a register of the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term "Registrar" includes any co-registrar and the term "Paying Agent" includes any additional paying agent. The Issuers may change any Paying Agent or Registrar upon prior written notice to the Trustee without notice to any Holder. The Issuers shall notify the Trustee in writing of the name and address and any change in the name or address of any Agent not a party to this Indenture. If the Issuers fail to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Issuers or any of their Subsidiaries may act as Paying Agent or Registrar. The Issuers shall enter into an appropriate agency agreement with any agent not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent and shall, if required, incorporate the provisions of the TIA. The Issuers initially appoint The Depository Trust Company ("DTC") to act as Depositary with respect to the Notes. The Issuers initially appoint the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Notes. Section 2.04. Paying Agent to Hold Money in Trust. The Issuers shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal or premium, if any, or interest on the Notes, and will notify the Trustee of any default by the Issuers in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuers at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Issuers or a Subsidiary of the Issuers) shall have no further liability for the money delivered to the Trustee. If either the Company or NLC, or a Subsidiary of the Company or NLC, acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuers, the Trustee shall serve as Paying Agent for the Notes. Section 2.05. Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is not the Registrar, the Issuers shall furnish to the Trustee at least seven Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes, including the aggregate principal amount held by each Holder, and the Issuers shall otherwise comply with TIA ss. 312(a). Section 2.06. Transfer and Exchange. (a) Transfer and Exchange of Global Notes. A Global Note may not be transferred as a whole except by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Company for Definitive Notes if (i) the Issuers delivers to the Trustee notice from the Depositary that it is unwilling or unable to continue to act as Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Issuers within 90 days after the date of such notice from the Depositary or (ii) following the occurrence and during the continuation of a Default or Event of Default, any Person holding a beneficial interest in a Global Note requests that the Global Notes should be exchanged for Definitive Notes and delivers a written notice to such effect to the Trustee. Upon the occurrence of either of the preceding events in (i) or (ii) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Sections 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a); provided, however, that beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b) or (c) hereof. (b) Transfer and Exchange of Beneficial Interests in the Global Notes. The transfer and exchange of beneficial interests in the Global Notes shall be effected through the Depositary, in accordance with the provisions of this Indenture and the Applicable Procedures. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers of beneficial interests in a Global Note. (c) Transfer or Exchange of Beneficial Interests in Global Notes for Definitive Notes. If any holder of a beneficial interest in a Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(g) hereof, and the Company shall execute and the Trustee shall authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. (d) Transfer and Exchange of Definitive Notes for Beneficial Interests in Global Notes. A Holder of a Definitive Note may exchange such Note for a beneficial interest in a Global Note or transfer such Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in a Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Global Notes. (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance with the provisions of this Section 2.06(e), the Registrar shall register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder shall present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. A Holder of Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of a Definitive Note. (f) Legends. The following legends shall appear on the face of all Global Notes issued under this Indenture in substantially the following form unless specifically stated otherwise in the applicable provisions of this Indenture. "THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 8.05 OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE OR IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF [REORGANIZED COMDISCO, INC.] AND [NEW LEASING CO., INC.]" (g) Cancellation and/or Adjustment of Global Notes. At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase. (h) General Provisions Relating to Transfers and Exchanges. (i) To permit registrations of transfers and exchanges, the Issuers shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon the Issuers' order or at the Registrar's request. (ii) No service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Trustee or the Issuers may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.14 and 8.05 hereof). (iii) The Registrar shall not be required to register the transfer of or exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part. (iv) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuers, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange. (v) The Issuers shall not be required (A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part or (C) to register the transfer of or to exchange a Note between a record date and the next succeeding interest payment date. (vi) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuers may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Issuers shall be affected by notice to the contrary. (vii) The Trustee shall authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.02 hereof. (viii) All certifications and certificates required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile. Section 2.07. Replacement Notes. If any mutilated Note is surrendered to the Trustee or the Issuers and the Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, the Issuers shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee's requirements are met. If required by the Trustee or the Issuers, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuers to protect the Issuers, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuers may charge for its expenses in replacing a Note. Every replacement Note is an additional obligation of the Issuers and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder. Section 2.08. Outstanding Notes. The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Company or NLC, or an Affiliate of the Company or NLC, holds the Note. If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser. If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue. If the Paying Agent (other than the Issuers, a Subsidiary or an Affiliate of any thereof) holds, on a redemption date or maturity date, money sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest. Section 2.09. Treasury Notes. In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuers or any of its Affiliates or held or maintained in the Disputed Claims Reserve, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that the Trustee has actual knowledge are so owned shall be so disregarded. Section 2.10. Temporary Notes. Until certificates representing Notes are ready for delivery, the Issuers may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Issuers considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuers shall prepare and the Trustee shall authenticate Definitive Notes in exchange for temporary Notes. After the preparation of Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the temporary Notes at the office or agency maintained by the Issuers for such purpose pursuant to Section 4.02 hereof, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Issuers shall execute, and the Trustee shall authenticate and make available for delivery, in exchange thereof the same aggregate principal amount of Definitive Notes of authorized denominations. Holders of temporary Notes shall be entitled to all of the benefits of this Indenture. Section 2.11. Cancellation. The Issuers at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall destroy canceled Notes in accordance with its normal practice and applicable law. Certification of the destruction of all canceled Notes shall be delivered to the Issuers. The Issuers may not issue new Notes to replace Notes that it has redeemed or repurchased or paid or that have been delivered to the Trustee for cancellation. Section 2.12. Defaulted Interest. If the Issuers default in a payment of interest on the Notes, the Issuers shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Issuers shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment. The Issuers shall, with the consent of the Trustee, fix or cause to be fixed each such special record date and payment date, provided, however, that each such special record date shall be at the earliest practicable date but in all events shall not be less than five Business Days prior to the related payment date for such defaulted interest. At least 15 days before the special record date, the Issuers (or, upon the written request of the Issuers, the Trustee in the name and at the expense of the Issuers) shall mail or cause to be mailed to Holders a notice that states the special record date, the related payment date and the amount of such interest to be paid. ARTICLE 3. REDEMPTION AND PREPAYMENT Section 3.01. Notices to Trustee. If the Issuers elect to redeem Notes pursuant to the optional redemption provisions of Section 3.07 or are required to redeem Notes pursuant to Section 3.08, the Issuers shall furnish to the Trustee, at least 5 days but not more than 60 days before an optional redemption date pursuant to Section 3.07 or at least 5 days but not more than 30 days before a mandatory redemption date pursuant to Section 3.08, an Officers' Certificate setting forth (i) that the redemption is an optional redemption pursuant to Section 3.07 or an mandatory redemption pursuant to Section 3.08, (ii) the redemption date, (iii) the principal amount of Notes to be redeemed and (iv) the redemption price. Section 3.02. Selection of Notes to Be Redeemed or Repurchased. If less than all of the Notes are to be redeemed or purchased in an offer to purchase at any time, the Trustee shall select the Notes to be redeemed or purchased among the Holders of the Notes pro rata in accordance with the outstanding principal amount of the Notes outstanding immediately prior to such redemption or purchase. The Trustee shall promptly notify the Issuers, the Registrar and the Paying Agent in writing of the Notes selected for redemption and, in the case of any Note selected for partial redemption, the principal amount thereof to be redeemed. Notes and portions of Notes selected to be redeemed may be in whole dollar amounts of less than $1,000. Provisions of this Indenture that apply to Notes called for redemption also apply to portions of Notes called for redemption. Section 3.03. Notice of Redemption. Subject to the provisions of Sections 3.08 and 3.09 hereof, at least 5 days but not more than 60 days before an optional redemption date pursuant to Section 3.07 or at least 5 days but not more than 30 days before a mandatory redemption date pursuant to Section 3.08, the Issuers shall mail or cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to be redeemed at its registered address. The notice shall identify the Notes to be redeemed and shall state: (a) the redemption date; (b) the redemption price; (c) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion shall be issued upon cancellation of the original Note; (d) the name and address of the Paying Agent to which the Notes are to be surrendered for redemption; (e) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price; (f) that, unless the Issuers default in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date; (g) the paragraph of the Notes and/or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed; and (h) that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Notes. At the Issuers' request, the Trustee shall give the notice of redemption in the Issuers' name and at the Issuers' expense; provided, however, that the Issuers shall have delivered to the Trustee, at least 5 Business Days prior to the date on which any notice of redemption pursuant to this Article 3 is requested to be mailed by the Trustee, Officers' Certificates requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph. Section 3.04. Effect of Notice of Redemption. Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price. A notice of redemption may not be conditional. Failure to give notice or any defect in the notice to any Holder shall not affect the validity of the notice to any other Holder. Section 3.05. Deposit of Redemption Price. Prior to 11:00 a.m., Chicago time, not less than one Business Day prior to the redemption date, the Issuers shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption price of and accrued interest (subject to the right of Holders of record on the relevant record date to receive interest due on the related interest payment date) on all Notes to be redeemed on that date. The Trustee or the Paying Agent shall promptly return to the Issuers any money deposited with the Trustee or the Paying Agent by the Issuers in excess of the amounts necessary to pay the redemption price of, and accrued interest on, all Notes to be redeemed. If the Issuers comply with the provisions of the preceding paragraph, on and after the redemption date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption. If a Note is redeemed on or after an interest record date but on or prior to the related interest payment date, then any accrued and unpaid interest shall be paid to the Person in whose name such Note was registered at the close of business on such record date. If any Note called for redemption shall not be so paid upon surrender for redemption because of the failure of the Issuers to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption date until such principal is paid, and to the extent lawful on any interest not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof. Section 3.06. Notes Redeemed in Part. Upon surrender of a Note that is redeemed in part, the Issuers shall issue and, upon the Issuers' written request, the Trustee shall authenticate for the Holder at the expense of the Issuers a new Note equal in principal amount to the unredeemed portion of the Note surrendered. Section 3.07. Optional Redemption. (a) The Issuers may, at its option at any time after the Effective Date, redeem the Notes, in whole or in part, on at least 5 days' but not more than 60 days' notice to each Holder of Notes to be redeemed in cash at its registered address, at a redemption price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the redemption date. (b) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Section 3.01 through 3.06 hereof. Section 3.08. Mandatory Redemption. (a) The Issuers shall be required to make mandatory redemptions of the Notes on or before the 45th day after the end of each fiscal quarter ending on September 30, December 31, March 31 and June 30 of each year pursuant to which the Issuers will redeem a principal amount of Notes equal to Excess Cash as of the end of the immediately preceding fiscal quarter; provided, however, that the Issuers shall not be obligated to make any redemption pursuant to this Section 3.08 of less than $1.0 million principal amount of Notes unless the principal amount of Notes then outstanding is less than or equal to the principal amount of Notes otherwise required to be redeemed pursuant to this Section 3.08 without giving effect to this proviso. Any such mandatory redemption shall be made on at least 5 days' but not more than 30 days' notice to each Holder of the Notes to be redeemed in cash at its registered address, at a redemption price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the redemption date. (b) Any redemption pursuant to this Section 3.08 shall be made pursuant to the provisions of Section 3.01 through 3.06 hereof. Section 3.09. Offers to Repurchase by the Issuers. In the event that, pursuant to Section 4.14 hereof, the Issuers shall be required to commence an offer to all Holders to purchase Notes (an "Offer"), it shall follow the procedures specified below. The Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than the applicable Change in Control Repurchase Date, the Issuers shall purchase all Notes tendered in response to the Offer. If the applicable Change in Control Repurchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest shall be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Offer; provided, however, that if the Issuers, the Depositary or the Paying Agent, as the case may be, fail to mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Issuers for purchase pursuant to this Section 3.09, interest shall be paid by the Issuers on the unpaid principal from such interest record date until such principal is paid and to the extent lawful on any interest not paid on such interest, in each case at the rate provided in the Notes. Upon the commencement of an Offer, the Issuers shall send, by first class mail, a written notice to the Trustee and each of the Holders, with a copy to the Trustee. Such notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Offer. The Offer shall be made to all Holders. The notice, which shall govern the terms of the Offer, shall state: (a) that the Offer is being made pursuant to this Section 3.09 and Section 4.14 hereof and the length of time the Offer shall remain open; (b) the Change in Control Repurchase Price and the Change in Control Repurchase Date; (c) that any Note not tendered or accepted for payment shall continue to accrue interest; (d) that, unless the Issuers default in making such payment, any Note accepted for payment pursuant to the Offer shall cease to accrue interest after the Change in Control Repurchase Date; (e) that Holders electing to have a Note purchased pursuant to an Offer may elect to have Notes purchased in whole or in part; (f) that Holders electing to have a Note purchased pursuant to any Offer shall be required to surrender the Note, with the form entitled "Option of Holder to Elect Purchase" on the reverse of the Note completed, or transfer by book-entry transfer, to the Issuers, a depositary, if appointed by the Issuers, or a Paying Agent at the address specified in the notice at least ten days before the Change in Control Repurchase Date; (g) that Holders shall be entitled to withdraw their election if the Issuers, the depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased; and (h) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer). On or before the Change in Control Repurchase Date, the Issuers shall, to the extent lawful, accept for payment, all Notes tendered, and shall deliver to the Trustee Officers' Certificates stating that such Notes or portions thereof were accepted for payment by the Issuers in accordance with the terms of this Section 3.09. The Issuers, the Depositary or the Paying Agent, as the case may be, shall promptly (but in any case not later than five days after the Change in Control Repurchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Issuers for purchase, and the Issuers shall promptly issue a new Note, and the Trustee, upon written request from the Issuers shall authenticate and mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Issuers to the Holder thereof. The Issuers shall publicly announce the results of the Offer on or as soon as reasonably practicable following the Change in Control Repurchase Date. Other than as specifically provided in this Section 3.09, any purchase pursuant to this Section 3.09 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof. ARTICLE 4. COVENANTS Section 4.01. Payment of Notes. The Issuers shall pay or cause to be paid the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Issuers or a Subsidiary of the Issuers, holds as of 12:00 noon Eastern Time on the due date, money deposited by the Issuers in immediately available funds and designated for and sufficient to pay all principal, premium, if any, and interest then due. The Issuers shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to 1% per annum in excess of the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful. Section 4.02. Maintenance of Office or Agency. The Issuers shall maintain in the Borough of Manhattan, the City of New York, an office or agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuers in respect of the Notes and this Indenture may be served. The Issuers shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuers shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Issuers hereby appoint the Trustee as its agent to receive all such presentations, surrenders, notices and demands. The Issuers may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Issuers of its obligation to maintain an office or agency in the Borough of Manhattan, the City of New York for such purposes. The Issuers shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. The Issuers hereby designate the corporate trust office of the Trustee's Agent located at c/o the Depository Trust Company, 1st Floor, TADS Department, 55 Water Street, New York, New York 10041, as one such office or agency of the Issuers in accordance with Section 2.03. Section 4.03. Reports. Whether or not required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Company shall furnish to the Trustee and the Holders of Notes within the time periods specified in the SEC's rules and regulations (i) all quarterly and annual financial information that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-K (or any successor forms) if the Company was required to file such forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" and, with respect to the annual information only, a report on the annual financial statements by the Company's certified independent accountants and (ii) all current reports that would be required to be filed with the SEC on Form 8-K (or any successor forms) if the Company were required to file such reports. In addition, whether or not required by the rules and regulations of the SEC, the Company shall file a copy of all such information and reports with the SEC for public availability within the time periods specified in the SEC's rules and regulations (unless the SEC will not accept such a filing) and make such information available to securities analysts and prospective investors upon request. The Company shall at all times comply with TIA ss. 314(a). Section 4.04. Compliance Certificate. (a) The Issuers shall deliver to the Trustee, within 120 days after the end of each fiscal year, an Officers' Certificate stating that a review of the activities of the Issuers and their Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether each of the Issuers and their Subsidiaries has kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge each of the Issuers has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action each of the Issuers, as the case may be, is taking or propose to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of or interest, if any, on the Notes is prohibited or if such event has occurred, a description of the event, its nature and status and what action each of the Issuers, as the case may be, is taking or propose to take with respect thereto. (b) So long as not contrary to the then current recommendations of the American Institute of Certified Public Accountants, the year-end financial statements delivered pursuant to Section 4.03 above shall be accompanied by a written statement of the Company's independent public accountants (who shall be a firm of established national reputation) that in making the examination necessary for certification of such financial statements, nothing has come to their attention that would lead them to believe that the Company has violated any provisions of Article 4 or Article 5 hereof or, if any such violation has occurred, specifying the nature and period of existence thereof, it being understood that such accountants shall not be liable directly or indirectly to any Person for any failure to obtain knowledge of any such violation. (c) The Issuers shall, so long as any of the Notes are outstanding, deliver to the Trustee, within 10 days after any executive officer of either of the Issuers becomes aware of any Event of Default, an Officers' Certificate specifying such Event of Default, the period of existence thereof and what action each of the Issuers, as the case may be, is taking or proposes to take with respect thereto. (d) In the event that the Subordinated Notes are declared due and payable before the Stated Maturity of such Indebtedness because of the occurrence of an event of default thereunder, the Issuers shall give prompt notice in writing of such happening to the Trustee. Section 4.05. Taxes. The Issuers shall, and shall cause each of their Subsidiaries to, pay or discharge, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate proceedings or negotiations or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes. Section 4.06. Stay, Extension and Usury Laws. The Issuers covenant (to the extent that it may lawfully do so) that they shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other law that would prohibit or forgive the Issuers from paying all or any portion of the principal of, premium, if any, or interest on the Notes in accordance with this Indenture, wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture, and the Issuers (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted. Section 4.07. Restricted Payments. The Issuers shall not, and shall not permit any of their Subsidiaries to, directly or indirectly: (a) declare or pay any dividend or make any other payment or distribution on account of the Issuers' or any of their Subsidiaries Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Issuers or any of their Subsidiaries) or to the direct or indirect holders of the Issuers' or any of their Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Issuers or any Subsidiary of the Issuers or payable to the Issuers or a Subsidiary of the Issuers); (b) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving the Issuers) any Equity Interests of the Issuers or any of their Subsidiaries held by any Person (other than the Issuers or any of its Subsidiaries); (c) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the Notes, except a payment of interest or principal and premium, if any, at the Stated Maturity thereof; or (d) make any Restricted Investment (all such payments and other actions set forth in these clauses (a) through (d) being collectively referred to as "Restricted Payments"). So long as no Default has occurred and is continuing or would be caused thereby, the preceding provisions shall not prohibit: (a) the redemption, repurchase, retirement, defeasance or other acquisition of any Subordinated Notes in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Issuers) of, Equity Interests of the Issuers (other than Disqualified Stock); (b) the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness of any of the Issuers or their Subsidiaries with the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness; (c) the payment of any dividend by NLC or a Subsidiary of the Issuers to the holders of its Equity Interests on a pro rata basis; and (d) the making of a Change in Control offer to repurchase the Subordinated Notes after a Change in Control. Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries. The Issuers shall not, and shall not permit any of their Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Subsidiary to: (a) pay dividends or make any other distributions on its Capital Stock to the Issuers or any Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness owed to the Issuers or any of their Subsidiaries; (b) make loans or advances to the Issuers or any of their Subsidiaries; or (c) transfer any of its properties or assets to the Issuers or any of their Subsidiaries. However, the preceding restrictions shall not apply to encumbrances or restrictions existing under or by reason of: (a) agreements governing Existing Indebtedness as in effect on the date of this Indenture and any amendments, supplements, refinancings, replacement, extensions, defeasance, refundings, renewals, restatements, revisions or other modifications to those agreements; provided, however, that the amendments, supplements, refinancings, replacement, extensions, defeasance, refundings, renewals, restatements, revisions or other modifications are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of this Indenture and do not increase the amount of the Indebtedness; (b) this Indenture and the Notes; (c) the Subordinated Note Indenture and the Subordinated Notes; (d) applicable law; (e) customary non-assignment provisions in any contract or licensing agreement entered into in the ordinary course of business and consistent with past practices; (f) purchase money obligations permitted to be incurred pursuant to clause (c) of the second paragraph of Section 4.09 that impose restrictions on that property of the nature described in clause (c) of the preceding paragraph of this Section 4.08; (g) any agreement for the sale or other disposition of NLC or a Subsidiary that restricts distributions by NLC or that Subsidiary pending its sale or other disposition; (h) Permitted Refinancing Indebtedness, provided, however, that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced; (i) Liens securing Indebtedness otherwise permitted to be incurred under the provisions of Section 4.11 that limit the right of the debtor to dispose of the assets subject to such Liens; (j) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, assets sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and (k) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business. Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock. The Issuers shall not, and shall not permit any of their Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "incur") any Indebtedness (including Acquired Debt), and the Issuers shall not issue any Disqualified Stock and shall not permit any of their Subsidiaries to issue any shares of preferred stock. The first paragraph of this Section 4.09 shall not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"): (a) the incurrence by the Issuers and their Subsidiaries of the Existing Indebtedness; (b) the incurrence by the Issuers of Indebtedness represented by the Notes and the Subordinated Notes; (c) with respect to lease or rental commitments to lessees (i) existing as of the date hereof or (ii) permitted to be incurred by Foreign Subsidiaries after the date hereof in accordance with Section 4.12, the incurrence by the Issuers or any of their Subsidiaries of Indebtedness represented by purchase money obligations incurred for the purpose of financing all or any part of the purchase price or cost of equipment leased or sold to, or otherwise financed for, a customer of the business of the Issuers or such Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (c), not to exceed $10.0 million at any time outstanding; (d) the incurrence by (i) the Issuers or any of their Subsidiaries or (ii) with respect to clause (b) of this Section 4.09, the Issuers, of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under clauses (a), (b), (c), (d), (g), (i) or (k) of this paragraph; (e) the incurrence by the Issuers or any of their Subsidiaries of intercompany Indebtedness between or among the Issuers and any of their Subsidiaries; provided, however, that: (i) if either the Company or NLC is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes; and (ii) (1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Issuers or a Subsidiary of the Issuers and (2) any sale or other transfer of any such Indebtedness to a Person that is not either the Company, NLC or a Subsidiary of the Issuers shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Issuers or such Subsidiary, as the case may be, that was not permitted by this clause (e); (f) the incurrence by the Issuers or any of their Subsidiaries of Hedging Obligations that are incurred for the purpose of fixing or hedging interest rate risk with respect to any floating rate Indebtedness that is permitted by the terms of this Indenture to be outstanding or for the purpose of fixing or hedging currency risk; (g) the accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock shall not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 4.09; (h) Indebtedness of the Issuers or any Subsidiary to the extent that the net proceeds thereof are promptly: (i) used to purchase Notes tendered in an offer to purchase made as a result of a Change in Control; or (ii) used to redeem Notes pursuant to Section 3.08 hereof. (i) the incurrence by the Issuers or any of their Subsidiaries of additional Indebtedness (including Acquired Debt) in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (i), not to exceed $5.0 million; (j) the incurrence of Non-Recourse Debt; provided, however, that if any such Indebtedness ceases to be Non-Recourse Debt, such event shall be deemed to constitute an incurrence of Indebtedness by a Subsidiary of the Issuers that was not permitted by this clause (j); and (k) obligations in respect of letters of credit, performance and surety bonds and completion guarantees provided by the Issuers or any Subsidiary of the Issuers in the ordinary course of business, including pursuant to the Letter of Credit Facility. The Issuers shall not incur any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Issuers (other than the Notes or the Subordinated Notes) unless such Indebtedness is also contractually subordinated in right of payment to the Notes on substantially identical terms; provided, however, that no Indebtedness of the Issuers shall be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Issuers solely by virtue of being unsecured. For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (a) through (k) above, the Company shall be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.09. Section 4.10. Transactions with Affiliates. The Issuers shall not, and shall not permit any of their Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or Guarantee with, or for the benefit of, any Affiliate (each, an "Affiliate Transaction"), unless: (a) the Affiliate Transaction is on terms that are no less favorable to the Issuers or the relevant Subsidiary than those that would have been obtained in a comparable transaction by the Issuers or such Subsidiary with an unrelated Person; and (b) the Issuers delivers to the Trustee: (i) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $500,000, resolutions of the Board of Directors of the Issuers, as the case may be, set forth in an Officers' Certificate certifying that such Affiliate Transaction complies with this covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Company; and (ii) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $2.5 million, an opinion as to the fairness to the Holders of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing. The following items shall not be deemed to be Affiliate Transactions and, therefore, shall not be subject to the provisions of the prior paragraph: (a) any employment agreement that is in effect on the date of this Indenture or that is entered into by the Issuers or any of their Subsidiaries with approval by a majority of the disinterested members of the Board of Directors of the Company; (b) transactions between or among one or more of the Company and/or NLC and/or their respective Subsidiaries; (c) payment of reasonable directors fees to Persons who are not otherwise Affiliates of the Issuers; (d) Restricted Payments that are permitted by Section 4.07; (e) advances to Officers of any of the Issuers or their Subsidiaries in the ordinary course of business to provide for the payment of reasonable expenses incurred by such Persons in the performance of their responsibilities to the Issuers or such Subsidiary or in connection with any relocation; (f) reasonable fees and compensation (including, without limitation, bonuses, retirement plans and securities, equity options and equity ownership plans, and payments, bonuses or other incentives offered pursuant to the Management Incentive Plan) paid or issued to and indemnities provided on behalf of, Officers, directors, employees or consultants of the Issuers or any Subsidiary in the ordinary course of business; and (g) any other transactions expressly authorized by the Court pursuant to the Plan or any order entered by the Court in respect thereof. Section 4.11. Liens. The Issuers shall not, and shall not permit any of its Subsidiaries to, directly or indirectly (a) create, incur, assume or suffer to exist any Lien of any kind securing Indebtedness or trade payables on any asset of the Issuers or any of its Subsidiaries now owned or hereafter acquired or on any income or profits therefrom, or (b) assign or convey any right to receive income therefrom, securing Indebtedness, except in each case for Permitted Liens. Section 4.12. Line of Business. Subject to, and without limitation to the provisions restricting the business operations of the Company contained in the articles of incorporation, certificate of incorporation or similar organizational document of the Company, the Issuers shall not, and shall not permit any Subsidiary to, engage in any business other than the Permitted Business except (i) to such extent as would not be material to the financial condition of the Issuers and their Subsidiaries taken as a whole and as may arise in connection with, or as a result of, the enforcement of the Issuers' and/or their Subsidiaries' legal rights against any third parties in implementing the Permitted Business with respect to New Ventures or (ii) with respect to Permitted Investments, or commitments to make Permitted Investments, permitted by clause (h) of the definition thereof, made by Foreign Subsidiaries within six months of the date hereof; provided, that the aggregate amount of such Permitted Investments is less than $50.0 million at any time within such six month period. Section 4.13. Corporate Existence; Certificate of Incorporation. Subject to the provisions of Section 5.1 and Section 5.2 hereof, the Issuers shall do or cause to be done all things necessary to preserve and keep in full force and effect: (a) its corporate existence, and the corporate, partnership or other existence of each of their Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Issuers or any such Subsidiary, and (b) the rights (charter and statutory), licenses and franchises of the Issuers and their Subsidiaries; provided, however, that the Issuers shall not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of their Subsidiaries, if the Board of Directors of the Issuers, as the case may be, shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Issuers, as the case may be, and their Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders of the Notes. Notwithstanding anything to the contrary contained in this Section 4.13, the Company shall not amend, modify or alter its certificate of incorporation, articles of incorporation or similar organizational document in any manner that would materially expand or enlarge or fundamentally alter the business operations to be conducted by the Company pursuant to such certificate of incorporation, articles of incorporation or similar organizational document. Section 4.14. Offers to Repurchase by the Company. Upon the occurrence of a Change in Control of the Company occurring after the date of issuance of the Notes and on or prior to maturity, the Issuers shall make an offer to each Holder (a "Change in Control Offer") to repurchase all or any part of each Holder's Notes on the date, which must be a Business Day (the "Change in Control Repurchase Date"), that is selected by the Issuers (subject to compliance with the minimum Offer Period specified in Section 3.09) that is not more than 75 days after the date the Issuers give notice of the Change in Control at a price (the "Change in Control Repurchase Price") equal to 101.0% of the principal amount thereof, together with accrued and unpaid interest to the Change in Control Repurchase Date. Not less than one Business Day prior to the Change in Control Repurchase Date, the Issuers shall be required to deposit with the Trustee or a Paying Agent an amount of money sufficient to pay the Change in Control Repurchase Price of the Notes that are to be repaid on the Change in Control Repurchase Date. On or before the 15th day after the occurrence of a Change in Control, the Issuers shall mail to all Holders the information and documentation required to be provided pursuant to Section 3.09. The Issuers shall comply with any applicable requirements of Rules 13e-4 and 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of Notes in connection with a Change in Control and shall be deemed not to have breached its obligations under this Section 4.14 as a result of such compliance. Notwithstanding anything to the contrary in this Section 4.14, the Issuers shall not be required to make a Change in Control Offer upon a Change in Control if a third party makes the Change in Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.14 and Section 3.09 hereof and all other provisions of this Indenture applicable to a Change in Control Offer made by the Issuers and purchases all Notes validly tendered and not withdrawn under such Change in Control Offer. Section 4.15. Insurance. The Issuers shall, and shall cause their Subsidiaries to, maintain insurance with responsible carriers against such risks and in such amounts as is customarily carried by similar businesses with such deductibles, retentions, self insured amounts and coinsurance provisions as are customarily carried by similar businesses of similar size, and shall furnish to the Trustee, upon reasonable written request, full information as to the insurance carried. Section 4.16. Maintenance of Property. The Issuers shall, and shall cause their Subsidiaries to keep all property and systems useful and necessary in its business or the business of any of their Subsidiaries in good working order and condition, ordinary wear and tear excepted, and supplied with all necessary equipment. Section 4.17. Limitation on Sale and Leaseback Transactions. The Issuers shall not, and shall not permit any of their Subsidiaries to, enter into any sale and leaseback transaction; provided, however, that so long as no Default has occurred and is continuing or would be caused thereby, the preceding sentence shall not prohibit: (a) any sale and leaseback transaction involving or in respect of the Company's corporate headquarters and/or all tangible property related thereto; and (b) sale and leaseback transactions to the extent the aggregate present value (discounted at the rate of interest implicit in such transaction, determined in accordance with GAAP) of the obligations of the lessee for net rental payments during the remaining term of the lease included in such sale and leaseback transaction (including any period for which such lease has been or may, at the option of the lessor, be extended) of such sale and leaseback transactions do not exceed $5.0 million at the time of determination. Section 4.18. Limitation on Issuances and Sales of Equity Interests in Subsidiaries. (a) The Issuers shall not, and shall not permit any of their Subsidiaries to, directly or indirectly, transfer, convey, sell, lease or otherwise dispose of any Equity Interests in any Subsidiary of the Issuers to any Person (other than the Issuers or a Subsidiary of the Issuers), unless such transfer, conveyance, sale, lease or other disposition is of all the Equity Interests in such Subsidiary. In addition, the Issuers shall not permit any Subsidiary of the Issuers to issue any Equity Interests (other than, if necessary, shares of its Capital Stock constituting directors' qualifying shares) to any Person other than to the Issuers or a Subsidiary of the Issuers. Section 4.19. No Amendment to Certain Provisions of the Subordinated Note Indenture. The Company shall not amend, modify or alter the Subordinated Note Indenture in any way to: (a) increase the rate of, change the time for or change the manner of payment of interest on any Subordinated Notes; (b) increase the principal or premium, if any, of, or advance the final maturity date of, any Subordinated Notes; (c) alter the redemption provisions or the price or terms at which the Company is required to offer to purchase any Subordinated Notes; or (d) amend Article 9 of the Subordinated Note Indenture. Section 4.20. Equity Interests of the Company. The Company shall not issue any additional Equity Interests after the date hereof; provided, however, that the Company may issue Equity Interests upon the exercise of any warrants or rights or pursuant to any rights issued in accordance with the Plan and may issue options to officers, employees and directors of the Company and its Subsidiaries to acquire Capital Stock of the Company and may issue Capital Stock upon exercise of such options. Section 4.21. Assets of the Company. The Company shall contribute, transfer or assign all of its material, tangible assets, other than its right, title and interest in the Note Collateral, to NLC or any other Subsidiary as soon as reasonably practicable after the Company has the legal right to contribute, transfer or assign such material, tangible assets, whether such assets are owned on the date hereof or subsequently become owned by the Company; provided, however, that nothing contained in this Section 4.21 shall require the Company to contribute, transfer or assign its right, title and interest in cash and/or cash equivalents to NLC or any other Subsidiary. Section 4.22. Management Incentive Plan. The Issuers shall not amend, modify or restate the Management Incentive Plan after the Effective Date in any way that would increase the aggregate maximum amount of incentive payments payable thereunder at any time to an amount greater than 105% of the aggregate maximum amount otherwise payable under the Management Incentive Plan with respect to the achievement of a certain performance target or incentive level. Section 4.23. Additional Note Collateral. In the event that the Company or NLC or any of their Subsidiaries acquires or creates another Domestic Subsidiary after the Effective Date which is directly owned by the Company or NLC, or if any of the Issuers' Foreign Subsidiaries becomes a Domestic Subsidiary after the Effective Date which is directly owned by the Company or NLC, the Issuers covenant and agree that the Equity Interests of such newly acquired or created Domestic Subsidiary shall be pledged and otherwise constitute additional Note Collateral hereunder and pursuant to the Collateral Documents. The Issuers shall execute and deliver to the Trustee any additional instruments and do any further acts as may be reasonably necessary or proper to carry out the purposes of this Section 4.23. Section 4.24. Consummation of Plan Notwithstanding anything to the contrary herein, no provision or Section of this Indenture shall prevent, restrict or otherwise hinder the Issuers from consummating the Plan and the transactions contemplated thereby. Section 4.25. Distributions from Subsidiaries. Except with respect to any Scheduled Cash Reserve Amount, the Issuers will take reasonable actions to cause their Domestic Subsidiaries to distribute all cash to their respective parent companies until such cash is in the accounts of the Company. In addition, the Issuers will take reasonable actions to cause their Foreign Subsidiaries, to the extent such distribution would not violate applicable law or trigger either an additional foreign tax or United States tax, to distribute all cash not required for their continued normal operations to their respective parent companies until such cash is in the accounts of the Company. ARTICLE 5. SUCCESSORS Section 5.01. Merger, Consolidation or the Transfer of All or Substantially All of the Assets of the Company. The Company may not, in a single transaction or through a series of related transactions, consolidate with or merge into, or transfer all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to, another Person in any transaction in which the Company is not the continuing or surviving entity, unless: (a) the resulting, surviving or transferee Person is a corporation which assumes by supplemental indenture, in form satisfactory to the Trustee, all the obligations of the Company under the Notes, this Indenture and the Registration Rights Agreement or is a reorganization within the meaning of Section 368(a)(1)(B) of the Internal Revenue Code, and this Indenture remains in full force and effect; (b) such corporation is organized and existing under the laws of the United States, a State thereof or the District of Columbia, although it in turn may be owned by a foreign entity; (c) immediately after giving effect to such transaction no Default or Event of Default shall have occurred and be continuing and the Officers' Certificate referred to in clause (e) of this Section 5.01 reflects that such Officers are not aware of any such Default or Event of Default that shall have occurred and be continuing; (d) each Subsidiary of the Company immediately prior to the transaction shall be a Subsidiary of the resulting, surviving or transferee Person immediately following the transaction, and the transaction shall not indirectly effect any change, transfer, borrowing or Lien that would have been prohibited by this Indenture if done by the Company or any Subsidiary independent of such transaction or would have caused a Default under this Indenture if done independent of such transaction; and (e) the Company shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each to the effect that all conditions precedent provided for in this Indenture relating to such consolidation, merger or transfer have been complied with. Upon any consolidation or merger, or any transfer of all or substantially all of the assets of the Company in accordance with the preceding paragraph: (a) the successor corporation formed by such consolidation or into which the Company is merged or to which such transfer is made shall succeed to, and shall be substituted for, and may exercise every right and power of, the Company under this Indenture and the Registration Rights Agreement with the same effect as if such successor corporation has been named as the Company in this Indenture and the Registration Rights Agreement; (b) the Company shall thereupon be relieved of any further obligation or liability hereunder or upon the Notes; and (c) the Company as the predecessor corporation may thereupon or at any time thereafter be dissolved, wound up or liquidated. Such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of Reorganized Comdisco, Inc., any or all of the Notes issuable under this Indenture which theretofore shall not have been signed by the Company and delivered to the Trustee. Upon the order of such successor corporation, instead of the Company, and subject to all the terms, conditions and limitations in this Indenture, the Trustee shall authenticate and shall deliver any Notes which previously shall have been signed and delivered by Officers of the Company to the Trustee for authentication, and any Notes which such successor corporation thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Notes so issued shall in all respects have the same legal rank and benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though all such Notes had been issued at the date of execution of this Indenture. Section 5.02. Merger, Consolidation or the Transfer of All or Substantially All of the Assets of NLC. NLC may not, in a single transaction or through a series of related transactions, consolidate with or merge into, or transfer all or substantially all of the assets of NLC and its Subsidiaries, taken as a whole, to, another Person in any transaction in which NLC is not the continuing or surviving entity, unless: (a) the resulting, surviving or transferee Person is a corporation which assumes by supplemental indenture, in form satisfactory to the Trustee, all the obligations of NLC under the Notes, this Indenture and the Registration Rights Agreement or is a reorganization within the meaning of Section 368(a)(1)(B) of the Internal Revenue Code, and this Indenture remains in full force and effect; (b) such corporation is organized and existing under the laws of the United States, a State thereof or the District of Columbia, although it in turn may be owned by a foreign entity; (c) immediately after giving effect to such transaction no Default or Event of Default shall have occurred and be continuing and the Officers' Certificate referred to in clause (e) of this Section 5.02 reflects that such Officers are not aware of any such Default or Event of Default that shall have occurred and be continuing; (d) each Subsidiary of NLC immediately prior to the transaction shall be a Subsidiary of the resulting, surviving or transferee Person immediately following the transaction, and the transaction shall not indirectly effect any change, transfer, borrowing or Lien that would have been prohibited by this Indenture if done by NLC or any Subsidiary independent of such transaction or would have caused a Default under this Indenture if done independent of such transaction; and (e) NLC shall have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each to the effect that all conditions precedent provided for in this Indenture relating to such consolidation, merger or transfer have been complied with. Upon any consolidation or merger, or any transfer of all or substantially all of the assets of NLC in accordance with the preceding paragraph: (a) the successor corporation formed by such consolidation or into which NLC is merged or to which such transfer is made shall succeed to, and shall be substituted for, and may exercise every right and power of, NLC under this Indenture and the Registration Rights Agreement with the same effect as if such successor corporation has been named as NLC in this Indenture and the Registration Rights Agreement; (b) NLC shall thereupon be relieved of any further obligation or liability hereunder or upon the Notes; and (c) NLC as the predecessor corporation may thereupon or at any time thereafter be dissolved, wound up or liquidated. Such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of New Leasing Co., Inc., any or all of the Notes issuable under this Indenture which theretofore shall not have been signed by NLC and delivered to the Trustee. Upon the order of such successor corporation, instead of NLC, and subject to all the terms, conditions and limitations in this Indenture, the Trustee shall authenticate and shall deliver any Notes which previously shall have been signed and delivered by Officers of NLC to the Trustee for authentication, and any Notes which such successor corporation thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Notes so issued shall in all respects have the same legal rank and benefit under this Indenture as the Notes theretofore or thereafter issued in accordance with the terms of this Indenture as though all such Notes had been issued at the date of execution of this Indenture. Notwithstanding the foregoing, NLC may merge with, or transfer all of its assets to, the Company. Section 5.03. Successor Corporation Substituted. Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Company or NLC, as applicable, in accordance with Section 5.01 or Section 5.02, the successor corporation formed by such consolidation or into or with which the Company or NLC, as applicable, is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of this Indenture referring to the "Company" or "NLC" shall refer instead to the successor corporation and not to the Company or NLC, as applicable), and may exercise every right and power of the Company or NLC, as applicable, under this Indenture with the same effect as if such successor Person had been named as the Company or NLC, as applicable, herein; provided, however, that the predecessor of the Company or NLC, as applicable, shall not be relieved from the obligation to pay the principal of and interest on the Notes except in the case of a sale, assignment, transfer, conveyance or other disposition of all of the Company's or NLC's, as applicable, assets that meets the requirements of Section 5.01 or Section 5.02. ARTICLE 6. DEFAULTS AND REMEDIES Section 6.01. Events of Default. An "Event of Default" occurs if: (a) the Issuers default in the payment when due of interest on the Notes and such default continues for a period of 30 days; (b) the Issuers default in the payment when due of principal of or premium, if any, on the Notes whether at maturity, upon redemption (including in connection with an offer to purchase) or otherwise; (c) the Company or any of its Subsidiaries fail to comply with any of the provisions of Sections 4.13, 5.01 or 5.02 hereof; (d) the Issuers fail to observe or perform any other covenant, representation, warranty or other agreement under the Indenture or the Notes for 60 days after written notice to (i) the Issuers by the Trustee or (ii) the Issuers and the Trustee by the holders of at least 25% in aggregate principal amount of the Notes then outstanding; (e) a default occurs under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Issuers (but not including any indebtedness or obligation for which recourse is limited to the property purchased), whether such Indebtedness or guarantee now exists, or is created after the date of this Indenture, which default results in the acceleration of such Indebtedness prior to its express maturity and, in each case, the principal amount of such Indebtedness, together with the principal amount of any other such Indebtedness the maturity of which has been so accelerated, aggregates $25.0 million or more and such Indebtedness is not paid or such acceleration is not annulled within 10 days after written notice to the Issuers of such acceleration; (f) the rendering of a final judgment or final judgments for the payment of money is/are entered by a court or courts of competent jurisdiction against either the Company or NLC and such judgment or judgments remain undischarged for a period (during which execution shall not be effectively stayed) of 60 days, provided that the aggregate of all such undischarged judgments (to the extent not covered by insurance) exceeds $10.0 million; (g) the Company or NLC pursuant to or within the meaning of Bankruptcy Law: (i) commences a voluntary case, (ii) consents to the entry of an order for relief against it in an involuntary case, (iii) consents to the appointment of a custodian of it or for all or substantially all of its property, or (iv) makes a general assignment for the benefit of its creditors; or (v) admits in writing its inability to pay its debts as the same becomes due; or (vi) generally is not paying its debts as they become due; or (h) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (i) is for relief against the Company or NLC in an involuntary case; (ii) appoints a custodian of the Company or NLC or for all or substantially all of the property of the Company or NLC; or (iii) orders the liquidation of the Company or NLC other than as contemplated by the Plan; and the order or decree remains unstayed and in effect for 60 consecutive days. Section 6.02. Acceleration. If any Event of Default (other than an Event of Default specified in clause (g) or (h) of Section 6.01 hereof with respect to the Company or NLC) occurs and is continuing, then and in every such case the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may, by notice in writing to the Issuers, declare all the Notes to be due and payable immediately. Upon any such declaration, the Notes will become due and payable immediately. Notwithstanding the foregoing, if an Event of Default specified in clause (g) or (h) of Section 6.01 hereof occurs with respect to the Company or NLC, all outstanding Notes shall be due and payable immediately without further action or notice. At any time after such a declaration of acceleration has been made, the Holders of a majority in aggregate principal amount of the then outstanding Notes by written notice to the Issuers and the Trustee may, on behalf of all of the Holders, rescind and annul such declaration of acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default (except nonpayment of principal, interest or premium, if any, that has become due solely because of the acceleration) have been cured or waived. Section 6.03. Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy (under this Indenture or otherwise) to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law. Section 6.04. Waiver of Past Defaults. Holders of not less than a majority in aggregate principal amount of the then outstanding Notes by notice to the Issuers and the Trustee may, on behalf of the Holders of all of the Notes, waive an existing Default or Event of Default and its consequences hereunder, except (i) a continuing Default or Event of Default in the payment of the principal of, premium, if any, or interest on, the Notes (including in connection with an offer to purchase) or (ii) with respect to any covenant or provision of this Indenture which cannot be modified or amended without the consent of the Holders of each outstanding Note affected; provided, however, that the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; provided, however, that no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. Section 6.05. Control by Majority. Holders of a majority in principal amount of the then outstanding Notes may direct the time, method and place of conducting any proceeding for exercising any remedy available to the Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture that the Trustee determines may be unduly prejudicial to the rights of other Holders of Notes or that may involve the Trustee in personal liability. Section 6.06. Limitation on Suits. A Holder of a Note may pursue a remedy with respect to this Indenture, the Notes or the Collateral Documents only if: (a) the Holder of a Note gives to the Trustee written notice of a continuing Event of Default; (b) the Holders of at least 25% in principal amount of the then outstanding Notes make a written request to the Trustee to pursue the remedy; (c) such Holder of a Note or Holders of Notes offer and, if requested, provide to the Trustee indemnity reasonably satisfactory to the Trustee against any loss, liability or expense; (d) the Trustee does not comply with the request within 60 days after receipt of the request and the offer and, if requested, the provision of indemnity; and (e) during such 60-day period the Holders of a majority in principal amount of the then outstanding Notes do not give the Trustee a direction inconsistent with the request. A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another Holder of a Note. Section 6.07. Rights of Holders of Notes to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal, premium, if any, and interest on the Note, on or after the respective due dates expressed in the Note (including in connection with an offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder; provided, however, that a Holder shall not have the right to institute any such suit for the enforcement of payment if and to the extent that the institution or prosecution thereof or the entry of judgment therein would, under applicable law, result in the surrender, impairment, waiver or loss of the Lien of this Indenture upon any property subject to such Lien. Section 6.08. Collection Suit by Trustee. If an Event of Default specified in Section 6.01(a) or (b) occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuers for the whole amount of principal of, premium, if any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the compensation to the Trustee and its agents for all services rendered by them hereunder as shall have been agreed upon in writing from time to time among the Trustee or such agents, as the case may be, and the Issuers and the costs and expenses of collection, including the reasonable expenses, disbursements and advances of the Trustee (including the reasonable compensation and the reasonable expenses and disbursements of its agents and counsel). Section 6.09. Trustee May File Proofs of Claim. The Trustee is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable expenses, disbursements and advances of the Trustee (including reasonable compensation and the reasonable expenses and disbursements of its agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Issuers, their creditors or their property and shall be entitled and empowered to collect, receive and distribute any money or other property payable or deliverable on any such claims and any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable expenses, disbursements and advances of the Trustee (including reasonable compensation and the reasonable expenses and disbursements of its agents and counsel), and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. Section 6.10. Priorities. If the Trustee collects any money pursuant to this Article, it shall pay out the money in accordance with the requirements of the Pledge Agreement and to the extent received in accordance therewith for distribution hereunder in the following order: First: to the Trustee, its agents and attorneys for amounts due under Section 7.07 hereof, including, to the extent permitted thereunder, payment of all compensation, reasonable expenses and disbursements incurred, and all advances made, by the Trustee and the reasonable costs and expenses of collection; Second: to Holders of Notes for amounts due and unpaid on the Notes for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; Third: without duplication, to Holders of Notes for any other Obligations (other than contingent reimbursement, indemnification or contribution Obligations) then owing to the Holders of the Notes under the Notes or this Indenture; and Fourth: to the Issuers or to such party as a court of competent jurisdiction shall direct. Notwithstanding the preceding paragraph, in the event of a conflict between the provisions of the Pledge Agreement and the mandatory provisions of the TIA, upon qualification of this Indenture under the TIA, the TIA shall control, and distributions shall be made in the order, and to the Persons specified under, the TIA. The Trustee may fix a record date and payment date for any payment to Holders of Notes pursuant to this Section 6.10. Section 6.11. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes. ARTICLE 7. TRUSTEE Section 7.01. Duties of Trustee. (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person's own affairs. (b) Except during the continuance of an Event of Default: (i) the duties of the Trustee shall be determined solely by the express provisions of this Indenture, the Pledge Agreement and the Collateral Documents, and the Trustee need perform only those duties that are specifically set forth in this Indenture, the Pledge Agreement and the Collateral Documents and no others, and no implied covenants or obligations shall be read into this Indenture, the Pledge Agreement and the Collateral Documents against the Trustee; and (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture, the Pledge Agreement and the Collateral Documents. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture, the Pledge Agreement and the Collateral Documents. (c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that: (i) this paragraph does not limit the effect of paragraph (b) of this Section 7.01; (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and (iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof. (d) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b), and (c) of this Section 7.01. (e) No provision of this Indenture, the Pledge Agreement or the Collateral Documents shall require the Trustee to expend or risk its own funds or incur any liability. The Trustee shall be under no obligation to exercise any of its rights and powers under this Indenture, the Pledge Agreement or the Collateral Documents at the request of any Holders, unless such Holder shall have offered to the Trustee security and indemnity reasonably satisfactory to it against any loss, liability or expense. (f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law. Section 7.02. Rights of Trustee. (a) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document. (b) Before the Trustee acts or refrains from acting, it may require an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. (c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. (d) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture. (e) Unless otherwise specifically provided in this Indenture, the Pledge Agreement or the Collateral Documents, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company or NLC, as the case may be, on behalf of the Company or NLC, respectively. (f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture, the Pledge Agreement or the Collateral Documents at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction. Section 7.03. Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuers or any Affiliate of the Issuers with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof. Section 7.04. Trustee's Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Issuers' use of the proceeds from the Notes or any money paid to the Issuers or upon the Issuers' direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication. Section 7.05. Notice of Defaults. If a Default or Event of Default occurs and is continuing and if it is known to the Trustee, the Trustee shall mail to Holders of Notes a notice of the Default or Event of Default within 90 days after the occurrence of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or interest on any Note, the Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Notes. Section 7.06. Reports by Trustee to Holders of the Notes. Within 60 days after each October 15 beginning with the October 15 following the date of this Indenture, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of the Notes a brief report dated as of such reporting date that complies with TIA ss. 313(a) (but if no event described in TIA ss. 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also shall comply with TIA ss. 313(b)(2). The Trustee shall also transmit by mail all reports as required by TIA ss. 313(c). A copy of each report at the time of its mailing to the Holders of Notes shall be mailed to the Issuers and filed with the SEC and each stock exchange on which the Notes are listed, if any, in accordance with TIA ss. 313(d). The Issuers shall promptly notify the Trustee when the Notes are listed on any stock exchange. Section 7.07. Compensation and Indemnity. The Issuers shall pay to the Trustee from time to time such compensation as the Issuers and the Trustee shall from time to time agree in writing for its acceptance of this Indenture and services hereunder. The Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuers shall reimburse the Trustee promptly upon request for all reasonable expenses, disbursements and advances of the Trustee (including the reasonable compensation and the reasonable expenses and disbursements of its agents and counsel). The Issuers shall indemnify the Trustee against any and all losses, liabilities or expenses incurred by it arising out of or in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing this Indenture against the Issuers (including this Section 7.07) and defending itself against any claim (whether asserted by the Issuers or any Holder or any other person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense may be attributable to its gross negligence, bad faith or willful misconduct. The Trustee shall notify the Issuers promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuers shall not relieve the Issuers of its obligations hereunder. The Issuers shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Issuers shall pay the reasonable fees and expenses of such counsel. The Issuers need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The obligations of the Issuers under this Section 7.07 shall survive the satisfaction and discharge of this Indenture. To secure the Issuers' payment obligations in this Section, the Issuers hereby grant to the Trustee a security interest on all money or property held or collected by the Trustee, except that held in trust to pay principal, interest and premium, if any, on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture; provided, however, that such Lien shall be automatically released upon the payment in full of all amounts payable to the Trustee pursuant to the first paragraph of this Section 7.07 and of all other amounts then due and payable pursuant to the second paragraph of this Section 7.07. When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(e) or (f) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law. The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to the extent applicable. Section 7.08. Replacement of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment as provided in this Section 7.08. The Trustee may resign in writing at any time and be discharged from the trust hereby created by so notifying the Issuers. The Holders of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuers in writing. The Issuers may remove the Trustee if: (a) the Trustee fails to comply with Section 7.10 hereof; (b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law; (c) a custodian or public officer takes charge of the Trustee or its property; or (d) the Trustee becomes incapable of acting. If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuers shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuers. If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Issuers, or the Holders of at least 10% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee. If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuers. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, provided, however, all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuers' obligations under Section 7.07 hereof shall continue for the benefit of the retiring Trustee, and the Issuers shall pay to any such replaced or removed Trustee all amounts owed to such replaced or removed Trustee under Section 7.07 upon such replacement or removal. Section 7.09. Successor Trustee by Merger, etc. If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another bank or corporation, the successor bank or corporation without any further act shall be the successor Trustee. Section 7.10. Eligibility; Disqualification. There shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States of America or of any state thereof or of the District of Columbia that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state or the District of Columbia authorities and that has a combined capital and surplus of at least $150.0 million as set forth in its most recent published annual report of condition. This Indenture shall always have a Trustee who satisfies the requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA ss. 310(b). Section 7.11. Preferential Collection of Claims Against Issuers. The Trustee is subject to TIA ss. 311(a), excluding any creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be subject to TIA ss. 311(a) to the extent indicated therein. The provisions of TIA ss. 311 shall apply to the Company as obligor on the Notes. ARTICLE 8. AMENDMENT, SUPPLEMENT AND WAIVER Section 8.01. Without Consent of Holders of Notes. Notwithstanding Section 8.02 of this Indenture, the Issuers and the Trustee may amend or supplement this Indenture, the Notes or the Collateral Documents without the consent of any Holder of a Note: (a) to cure any ambiguity, defect or inconsistency; (b) to provide for uncertificated Notes in addition to or in place of certificated Notes or to alter the provisions of Article 2 hereof (including the related definitions) in a manner that does not materially adversely affect any Holder; (c) to provide for the assumption of the Issuers' obligations to the Holders of the Notes by a successor to the Issuers pursuant to Article 5 hereof; (d) to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights hereunder of any Holder of the Notes; or (e) to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA. Upon the request of the Issuers accompanied by a resolution of their respective Board of Directors, as the case may be, authorizing the execution of any such amended or supplemental Indenture, and upon receipt by the Trustee of the documents described in Section 8.06 hereof, the Trustee shall join with the Issuers in the execution of any amended or supplemental Indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental Indenture that affects its own rights, duties or immunities under this Indenture or otherwise. Section 8.02. With Consent of Holders of Notes. Except as provided below in this Section 8.02, the Issuers and the Trustee may amend or supplement this Indenture (including Section 3.08 hereof), the Notes and the Collateral Documents with the consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium, if any, or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture, the Notes or the Collateral Documents may be waived with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes). Section 2.08 hereof shall determine which Notes are considered to be "outstanding" for purposes of this Section 8.02. Upon the request of the Issuers accompanied by a resolution of their Board of Directors, as the case may be, authorizing the execution of any such amended or supplemental Indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02(b) hereof, the Trustee shall join with the Issuers in the execution of such amended or supplemental Indenture unless such amended or supplemental Indenture, by its express terms, directly affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental Indenture. It shall not be necessary for the consent of the Holders of Notes under this Section 8.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof. After an amendment, supplement or waiver under this Section 8.02 becomes effective, the Issuers shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuers to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of not less than a majority in aggregate principal amount of the Notes then outstanding may waive compliance in a particular instance by the Issuers with any provision of this Indenture, the Notes or the Collateral Documents. However, without the consent of each Holder affected, an amendment, waiver or supplement under this Section 8.02 may not (with respect to any Notes held by a non-consenting Holder): (a) reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver; (b) reduce the principal of or change the fixed maturity of any Note or alter or waive any of the provisions with respect to the redemption of the Notes except as provided above with respect to Sections 3.08 hereof; (c) reduce the rate of or change the time for payment of interest, including default interest, on any Note; (d) waive a Default or Event of Default in the payment of principal of or premium, if any, or interest on the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes and a waiver of the payment Default that resulted from such acceleration); (e) make any Note payable in money other than that stated in the Notes; (f) make any change in the provisions of this Indenture relating to waivers of past Defaults or the rights of Holders of Notes to receive payments of principal of or premium, if any, or interest on the Notes; (g) make any change in Section 6.04 or 6.07 hereof or in the foregoing amendment and waiver provisions; or (h) waive a redemption payment required to be made, or offered to be made, by the Company pursuant to Section 3.09 or Section 4.14. Section 8.03. Compliance with Trust Indenture Act. Every amendment or supplement to this Indenture or the Notes shall be set forth in a amended or supplemental Indenture that complies with the TIA as then in effect. Section 8.04. Revocation and Effect of Consents. Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder's Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder. The Company may fix a record date for determining which Holders must consent to such supplemental indenture, amendment or waiver. If the Company fixes a record date, the record date shall be fixed at (i) the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation pursuant to Section 2.05, or (ii) such other date as the Company shall designate. Section 8.05. Notation on or Exchange of Notes. The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuers in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver. Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver. Section 8.06. Trustee to Sign Amendments, etc. The Trustee shall sign any amended or supplemental Indenture authorized pursuant to this Article 8 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Issuers may not sign an amendment or supplemental Indenture until their Board of Directors approves it. In executing any amended or supplemental indenture, the Trustee shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully protected in relying upon, in addition to the documents required by Section 11.04 hereof, an Officers' Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Indenture. ARTICLE 9. COLLATERAL AND SECURITY Section 9.01. Collateral Documents. The due and punctual payment of the principal of and interest and premium, if any, on the Notes when and as the same shall be due and payable, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest and premium (to the extent permitted by law), if any, on the Notes and performance of all other obligations of the Issuers to the Holders of Notes or the Trustee under this Indenture and the Notes, according to the terms hereunder or thereunder, shall be secured as provided in the Collateral Documents which the Issuers have entered into simultaneously with the execution of this Indenture and which are listed on Exhibit B hereto. Each Holder of Notes, by its acceptance thereof, consents and agrees to the terms of the Collateral Documents (including, without limitation, the provisions providing for foreclosure and release of Note Collateral) as the same may be in effect or may be amended from time to time in accordance with the terms of the Collateral Documents and authorizes and directs the Collateral Agent to enter into the Collateral Documents and to perform its obligations and exercise its rights thereunder in accordance therewith. The Issuers shall deliver to the Trustee copies of all documents delivered to the Collateral Agent pursuant to the Collateral Documents, and shall do or cause to be done all such acts and things as may be necessary or proper, or as may be required by the provisions of the Collateral Documents or as may be reasonably requested in writing by the Trustee, to assure and confirm to the Trustee and the Collateral Agent the security interest in the Note Collateral contemplated hereby and by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and the Notes secured by the Collateral Documents, according to the intent and purposes therein expressed. The Issuers shall take, or shall cause their Subsidiaries that are party to one or more Collateral Documents to take, upon request of the Trustee, any and all actions reasonably required to cause the Collateral Documents to create and maintain, as security for the Obligations of the Issuers hereunder, a valid and enforceable perfected Lien in and on all the Note Collateral, in favor of the Collateral Agent for the benefit of the Holders of Notes with the priority required under the Collateral Documents, subject to Permitted Liens. Section 9.02. Recording and Opinions. (a) The Issuers shall furnish to the Trustee simultaneously with the execution and delivery of this Indenture an Opinion of Counsel either (i) stating that in the opinion of such counsel all action has been taken with respect to the recording, registering and filing of this Indenture, financing statements or other instruments necessary to make effective the Lien intended to be created by the Collateral Documents and reciting with respect to the security interests in the Collateral, the details of such action, or (ii) stating that, in the opinion of such counsel, no such action is necessary to make such Lien effective. (b) The Issuers shall furnish to the Trustee and the Collateral Agent within 30 days following April 30 of each year beginning with April 30, 2003, an Opinion of Counsel, dated as of the date such opinion is furnished, either (i) stating that, in the opinion of such counsel, all action has been taken with respect to the recording, registering, filing, re-recording, re-registering and refiling of all supplemental indentures, financing statements, continuation statements or other instruments of further assurance as is necessary to maintain the Lien of the Collateral Documents and reciting with respect to the security interests in the Collateral the details of such action or referring to prior Opinions of Counsel in which such details are given, or (ii) stating that, in the opinion of such counsel, no such action is necessary to maintain such Lien. (c) The Issuers shall otherwise comply with the provisions of TIA ss.314(b). Section 9.03. Release of Note Collateral. (a) Subject to subsections (b), (c) and (d) of this Section 9.03, upon a sale of any Note Collateral and application of the net proceeds of such sale to repay the Notes to the extent required in accordance with the terms of Section 3.08, the Collateral Agent shall release the security interests in favor of the Collateral Agent in the Note Collateral sold; provided, however, that such net proceeds have been or shall be applied in accordance with this Indenture; provided further that, prior to the application of such net proceeds, such net proceeds shall be deposited in an interest bearing cash collateral account held by the Paying Agent and pledged for the benefit of the Holders of Notes and the holders of Subordinated Notes. (b) No Note Collateral shall be released from the Lien and security interest created by the Collateral Documents pursuant to the provisions of the Collateral Documents unless there shall have been delivered to the Collateral Agent the certificates required by this Section 9.03 and by Sections 9.04 and 9.05 hereof. (c) At any time when a Default or Event of Default shall have occurred and be continuing and the maturity of the Notes shall have been accelerated (whether by declaration or otherwise) and the Trustee shall have delivered a notice of acceleration to the Collateral Agent, no release of Note Collateral pursuant to the provisions of the Collateral Documents shall be effective as against the Holders of Notes or the Trustee except in connection with foreclosure sales. (d) The release of any Note Collateral from the terms of this Indenture and the Collateral Documents or the release of, in whole or in part, the liens created by the Collateral Documents, or the termination of the Collateral Documents, shall not be deemed to impair the security under this Indenture in contravention of the provisions hereof if and to the extent the Note Collateral is released pursuant to the terms of the Collateral Documents and this Indenture. The Trustee and each of the Holders acknowledge that a release of any Note Collateral or a lien strictly in accordance with the terms of the Collateral Documents will not be deemed for any purpose to be an impairment of the lien on the Note Collateral in contravention of the terms of this Indenture. To the extent applicable, the Issuers shall cause TIA ss. 313(b), relating to reports, and TIA ss. 314(d), relating to the release of property or securities from the Lien and security interest of the Collateral Documents and this Indenture and relating to the substitution therefor of any property or securities to be subjected to the Lien and security interest of the Collateral Documents and this Indenture, to be complied with. Any certificate or opinion required by TIA ss. 314(d) may be made by an Officer of the Issuers except in cases where TIA ss. 314(d) requires that such certificate or opinion be made by an independent Person, which Person shall be an independent engineer, appraiser, accountant or other expert selected or approved by the Trustee and the Collateral Agent in the exercise of reasonable care. Section 9.04. Certificates of the Issuers. The Issuers shall furnish to the Trustee and the Collateral Agent, prior to each proposed release of Note Collateral pursuant to the Collateral Documents (i) all documents required by TIA ss.314(d) and the Collateral Documents and (ii) an Opinion of Counsel, which may be rendered by internal counsel of the Issuers, to the effect that such accompanying documents constitute all documents required by TIA ss.314(d). The Trustee may, to the extent permitted by Sections 7.01 and 7.02 hereof, accept as conclusive evidence of compliance with the foregoing provisions the appropriate statements contained in such documents. Section 9.05. Certificates of the Trustee. In the event that the Issuers wish to release Note Collateral in accordance with the Collateral Documents and have delivered the certificates and documents required by the Collateral Documents and Sections 9.03 and 9.04 hereof, once the Trustee has received all documentation required by TIA ss. 314(d) in connection with such release and the Opinion of Counsel delivered pursuant to Section 9.04(ii), the Trustee shall deliver a certificate to the Collateral Agent confirming receipt of such documentation and Opinion of Counsel; provided, however, that so long as the Trustee is the Collateral Agent the requirement that the Trustee deliver a certificate to the Collateral Agent shall not be applicable. Section 9.06. Authorization of Actions to Be Taken by the Trustee Under the Collateral Documents. Subject to the provisions of Section 7.01 and 7.02 hereof and the provisions of the Collateral Documents, the Trustee may in the case of an ongoing Event of Default, in its sole discretion and without the consent of the Holders of Notes subject to Section 6.05, direct, on behalf of the Holders of Notes, the Collateral Agent to, take all actions it deems necessary or appropriate in order to (a) enforce any of the terms of the Collateral Documents and (b) collect and receive any and all amounts payable in respect of the Obligations of the Issuers hereunder. The Trustee shall have power to institute and maintain such suits and proceedings as it may deem expedient to prevent any impairment of the Note Collateral by any acts that may be unlawful or in violation of the Collateral Documents or this Indenture, and such suits and proceedings as the Trustee may deem expedient to preserve or protect its interests and the interests of the Holders of Notes in the Note Collateral (including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of the Holders of Notes or of the Trustee). Section 9.07. Authorization of Receipt of Funds by the Trustee Under the Collateral Documents. The Trustee is authorized and required to receive any funds for the benefit of the Holders of Notes distributed under the Collateral Documents, and to make further distributions of such funds to the Holders of Notes according to the provisions of this Indenture and the Collateral Documents. Section 9.08. Termination of Security Interest. Upon the payment in full of all Obligations (other than contingent reimbursement, indemnification and contribution Obligations) of the Issuers under this Indenture and the Notes, the Trustee shall, at the request of the Issuers, deliver a certificate to the Collateral Agent stating that such Obligations have been paid in full, and instruct the Collateral Agent to release the Liens pursuant to this Indenture and the Collateral Documents to the extent such Liens secure the Obligations of the Issuers under this Indenture. ARTICLE 10. SATISFACTION AND DISCHARGE Section 10.01. Satisfaction and Discharge. This Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder, when: (1) either: (a) all Notes that have been authenticated (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust and thereafter repaid to the Issuers) have been delivered to the Trustee for cancellation; or (b) all Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the making of a notice of redemption or otherwise or will become due and payable within one year and the Issuers have irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the Notes not delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption; (2) no Default or Event of Default shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which either of the Issuers is a party or by which either of the Issuers is bound; (3) the Issuers have paid or caused to be paid all sums payable by it under this Indenture; and (4) the Issuers have delivered irrevocable written instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be. In addition, the Issuers shall each deliver an Officers' Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied. Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been deposited with the Trustee pursuant to subclause (b) of clause (1) of this Section, the provisions of Section 10.02 shall survive. Section 10.02. Application of Trust Money. All money deposited with the Trustee pursuant to Section 10.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuers acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law. If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 10.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuers' obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 10.01; provided, however, that if the Issuers have made any payment of principal of, premium, if any, or interest on any Notes because of the reinstatement of its obligations, the Issuers shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent. ARTICLE 11. MISCELLANEOUS Section 11.01. Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by TIA ss.318(c), the imposed duties shall control. Section 11.02. Notices. Any notice or communication by the Issuers or the Trustee to the others is duly given if in writing and delivered in person or mailed by first class mail (registered or certified, return receipt requested), telex, telecopier or overnight air courier guaranteeing next day delivery, to the others' address: If to the Issuers: [Reorganized Comdisco, Inc.] [New Leasing Co., Inc.] 6111 North River Road Rosemont, Illinois 60018 Attention: General Counsel Facsimile: (847) 518-5440 With a copy to: Skadden, Arps, Slate, Meagher & Flom (Illinois) 333 West Wacker, Suite 2100 Chicago, Illinois 60606 Facsimile: (312) 407-0411 Attention: John Wm. Butler, Jr., Esq. Attention: Charles W. Mulaney, Jr., Esq. If to the Trustee: Wells Fargo Bank Minnesota, National Association Corporate Trust Sixth and Marquette MAC N9303-120 Minneapolis, Minnesota 55479 Facsimile: (612) 667-9825 Attention: Comdisco Administrator with a copy (which shall not constitute notice to the Trustee) to: Jones, Day, Reavis & Pogue 222 East 41st Street New York, NY 10017-6702 Facsimile: (212) 755-7306 Attention: Donald F. Devine The Issuers or the Trustee, by notice to the others may designate additional or different addresses for subsequent notices or communications. All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed (provided, however, the Trustee shall not be deemed to have received such mail until it is received at its address set forth above); when answered back, if telexed; when receipt acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery. Any notice or communication to a Holder shall be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. Any notice or communication shall also be so mailed to any Person described in TIA ss. 313(c), to the extent required by the TIA. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it (except as set forth above). If the Issuers mail a notice or communication to Holders, they shall mail a copy to the Trustee and each Agent at the same time. Section 11.03. Communication by Holders of Notes with Other Holders of Notes. Holders may communicate pursuant to TIA ss. 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Issuers, the Trustee, the Registrar and anyone else shall have the protection of TIA ss. 312(c). Section 11.04. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuers to the Trustee to take any action under this Indenture, the Issuers shall furnish to the Trustee: (a) an Officers' Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 11.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been satisfied; and (b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 11.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied. Section 11.05. Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA ss. 314(e) and shall include: (a) a statement that the Person making such certificate or opinion has read such covenant or condition; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (c) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been satisfied; and (d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been satisfied. Section 11.06. Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions. Section 11.07. No Personal Liability of Directors, Officers, Employees, Stockholders and Agents. No past, present or future director, officer, employee, incorporator, stockholder or agent of the Issuers shall have any liability for any obligations of the Issuers under the Notes, this Indenture or the Collateral Documents or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Section 11.08. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. Section 11.09. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuers or their Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture. Section 11.10. Successors. All agreements of the Issuers in this Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors. Section 11.11. Severability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 11.12. Counterpart Originals. The parties may sign any number of copies of this Indenture (including by facsimile). Each signed copy shall be an original, but all of them together represent the same agreement. Section 11.13. Table of Contents, Headings, etc. The Table of Contents, Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof. [Signatures on following pages] SIGNATURES Dated as of August ___, 2002 [REORGANIZED COMDISCO, INC.] By: ------------------------------- Name: Title: Attest: ____________________________ Name: Title: [NEW LEASING CO., INC.] By: ------------------------------- Name: Title: Attest: ____________________________ Name: Title: WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION By: ------------------------------- Name: Title: Attest: ____________________________ Authorized Signatory: Title: SCHEDULE A SCHEDULED CASH RESERVE AMOUNT Date Aggregate Cash Reserve Amount ---- ----------------------------- September 30, 2002 $57,000,000.00 December 31, 2002 $55,000,000.00 March 31, 2003 $53,000,000.00 June 30, 2003 $51,000,000.00 September 30, 2003 $49,000,000.00 December 31, 2003 $47,000,000.00 March 31, 2004 $45,000,000.00 June 30, 2004 $43,000,000.00 EXHIBIT A [Face of Note] - ------------------------------------------------------------------------------- CUSIP ____________ Variable Rate Senior Secured Notes due 2004 No. ___ $____________ [REORGANIZED COMDISCO, INC.] and [NEW LEASING CO., INC.] promise to pay to _____________________________________________________________ or registered assigns, the principal sum of $[400,000,000.00] on _________ ___, 2004. Interest Payment Dates: September 30, December 31, March 31 and June 30 Record Dates: September 15, December 15, March 15 and June 15 Dated: _______________, ____ [REORGANIZED COMDISCO, INC.] [NEW LEASING CO., INC.] By:____________________________ By:_________________________ Name: Name: Title: Title: By:____________________________ By:__________________________ Name: Name: Title: Title: This is one of the Notes referred to in the within-mentioned Indenture: WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION as Trustee By: ___________________________ Authorized Signatory - ------------------------------------------------------------------------------- [Back of Note] Variable Rate Senior Secured Notes due 2004 [INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE, PURSUANT TO THE PROVISIONS OF THE INDENTURE.] Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. 1. INTEREST. [Reorganized Comdisco, Inc.], a Delaware corporation (the "Company") and [New Leasing Co., Inc.] a Delaware corporation ("NLC" and, together with the Company, the "Issuers"), promise to pay interest on the principal amount of this Note the Applicable Rate (as defined below) per annum from ______ ___, 2002 until maturity. The Issuers will pay interest quarterly in arrears on September 30, December 31, March 31 and June 30 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each an "Interest Payment Date"). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided, however, that if there is no existing Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided, further, that the first Interest Payment Date shall be ______ ___, 2002. The Issuers shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate that is 1% per annum in excess of the rate then in effect; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest will be computed at the Applicable Rate on the basis of the actual number of days elapsed over a year of 360 days. For purposes of this Note, the term "Applicable Rate" means the annual interest rate equal to the sum of (i) three-month U.S. Dollar LIBOR as quoted on Bloomberg Page BBAM 1 (British Bankers Association page) ("LIBOR") plus (ii) an additional 3.00% per annum. In the event that such rate does not appear on the Bloomberg Page BBAM 1 (or otherwise on the Bloomberg Page BBAM), the LIBOR component for purposes of this definition shall be determined by reference to such other comparable publicly available service for displaying the three-month U.S. Dollar LIBOR as may be selected by the Issuers. The LIBOR component of the Applicable Rate for each quarter shall be fixed two (2) business days prior to the commencement of the applicable fiscal quarter to which the interest payment relates. 2. METHOD OF PAYMENT. The Issuers will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on September 15, December 15, March 15 and June 15 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. The Notes will be payable as to principal, premium, if any, and interest at the office or agency of the Issuers maintained for such purpose within the City and State of New York, or, at the option of the Issuers, payment of interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders, and provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest, premium, if any, on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Issuers or the Paying Agent. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. 3. PAYING AGENT AND REGISTRAR. Initially, Wells Fargo Bank Minnesota, National Association, the Trustee under the Indenture, will act as Paying Agent and Registrar. The Issuers may change any Paying Agent or Registrar without notice to any Holder. The Issuers or any of their Subsidiaries may act in any such capacity. 4. INDENTURE AND COLLATERAL DOCUMENTS . The Issuers issued the Notes under an Indenture dated as of August ___, 2002 ("Indenture") among the Issuers and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.C. ss.ss. 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are secured obligations of the Issuers limited to $400,000,000 in aggregate principal amount. The Notes are secured by a grant of a security interest in the Note Collateral pursuant to the Collateral Documents referred to in the Indenture. 5. OPTIONAL REDEMPTION. The Issuers may, at their option at any time after the Effective Date, redeem the Notes, in whole or in part, on at least 5 days' but not more than 60 days' notice to each Holder of Notes to be redeemed in cash at its registered address, at a redemption price equal to 100% of the principal amount thereof, plus accrued and unpaid interest to the redemption date. 6. MANDATORY REDEMPTION. Pursuant to Section 3.08 of the Indenture, and except as provided thereon with respect to redemptions of less than $1.0 million principal amount of Notes, the Issuers shall be required to make mandatory redemptions of the principal amount of the Notes, plus accrued and unpaid interest thereon to the redemption date, in an amount equal to 100% of the Excess Cash. Mandatory redemptions, if any, shall be made for each fiscal quarter within 45 days after the end of such fiscal quarter. 7. REPURCHASE AT OPTION OF HOLDER. (a) If there is a Change in Control, the Issuers shall be required to make an offer (a "Change in Control Offer") to repurchase all or any part of each Holder's Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest thereon, if any, to the date of purchase (the "Change in Control Repurchase Price"). Within 15 days following any Change in Control, the Issuers shall mail a notice to each Holder setting forth the procedures governing the Change in Control Offer as required by the Indenture. Holders of Notes that are subject to a Change in Control Offer will receive a Change in Control Offer from the Issuers prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled "Option of Holder to Elect Purchase" on the reverse of the Notes. (b) Notwithstanding anything to the contrary in the Indenture or this Section 7, the Issuers shall not be required to make a Change in Control Offer upon a Change in Control if a third party makes the Change in Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to a Change in Control Offer made by the Issuers and purchases all Notes validly tendered and not withdrawn under the change in control offer required to be made under the Indenture and under the Change in Control Offer. 8. NOTICE OF REDEMPTION. Notice of optional redemption will be mailed at least 5 days but not more than 60 days before the redemption date and notice of a mandatory redemption will be mailed at least 5 days but no more than 30 days before the redemption date, in each case, to each Holder whose Notes are to be redeemed at its registered address. Notes may be redeemed in whole or in part, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date interest ceases to accrue on Notes or portions thereof called for redemption. 9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons. The Notes are denominated in amounts of $1,000 and integral multiples thereof; provided, however, that the Notes may be in denominations (rounded to the nearest whole dollar) of less than $1,000 (but in no event less than $1.00) to make redemptions. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuers may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuers need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Issuers need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date. 10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes. 11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the Indenture, the Notes and the Collateral Documents may be amended or supplemented with the consent of the Holders of not less than a majority in aggregate principal amount of the then outstanding Notes, and any existing default or compliance with any provision of the Indenture, the Notes or the Collateral Documents may be waived with the consent of the Holders of not less than a majority in aggregate principal amount of the then outstanding Notes. Without the consent of any Holder of a Note, the Indenture, the Notes or the Collateral Documents may be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes in addition to or in place of certificated Notes, to provide for the assumption of the Issuers' obligations to Holders of the Notes in case of a merger or consolidation, to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights under the Indenture of any such Holder, to comply with the requirements of the SEC in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act in accordance with the limitations set forth in the Indenture. 12. DEFAULTS AND REMEDIES. Events of Default include: (i) default for 30 days in the payment when due of interest on the Notes; (ii) default in payment when due of principal of or premium, if any, on the Notes when the same becomes due and payable at maturity, upon redemption (including in connection with an offer to purchase) or otherwise, (iii) failure by the Issuers or any of their Subsidiaries to comply with Section 4.13, 5.01 or 5.02 of the Indenture; (iv) failure by the Issuers or any of their Subsidiaries for 60 days after notice to the Issuers by the Trustee or the Holders of at least 25% in principal amount of the Notes then outstanding to comply with certain other agreements in the Indenture or the Notes; (v) default under certain other agreements relating to Indebtedness (other than any Indebtedness for which recourse is limited to the property purchased) of the Issuers which default results in the acceleration of such Indebtedness prior to its express maturity, if the principal amount of any accelerated Indebtedness aggregates $25.0 million or more and such Indebtedness is not paid or such acceleration is not annulled within 10 days after written notice to the Issuers of such acceleration; (vi) certain final judgments for the payment of money that remain undischarged for a period of 60 days; or (vii) certain events of bankruptcy or insolvency with respect to the Issuers or any of their Subsidiaries. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare all the Notes to be due and payable. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will become due and payable without further action or notice. Holders may not enforce the Indenture, the Notes or the Collateral Documents, except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default or Event of Default (except a Default or Event of Default relating to the payment of principal or interest) if it determines that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or Event of Default and its consequences under the Indenture except (i) a continuing Default or Event of Default in the payment of interest on, or the principal of, or premium, if any, on the Notes; or (ii) an Event of Default with respect to any covenant or provision of the Indenture which cannot be waived without the consent of the Holders of each Note affected thereby. The Issuers are required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Issuers are required upon becoming aware of any Default or Event of Default, to deliver to the Trustee a statement specifying such Default or Event of Default. 13. TRUSTEE DEALINGS WITH ISSUERS. The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Issuers or their Affiliates, and may otherwise deal with the Issuers or their Affiliates, as if it were not the Trustee. 14. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee, incorporator or stockholder, of the Issuers shall have any liability for any obligations of the Issuers under the Notes, the Indenture or the Collateral Documents or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes. 15. AUTHENTICATION. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. 16. ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act). 17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuers has caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon. The Issuers will furnish to any Holder upon written request and without charge a copy of the Indenture, the Registration Rights Agreement and the Collateral Documents. Requests may be made to: [Reorganized Comdisco, Inc.] [New Leasing Co., Inc.] 6111 North River Road Rosemont, Illinois 60018 Attention: General Counsel 18. ADDITIONAL RIGHTS OF HOLDERS OF GLOBAL NOTES AND DEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under the Indenture, certain Holders of Global Notes and Definitive Notes shall have all the rights set forth in the Registration Rights Agreement dated as of the Effective Date, among the Issuers and the parties named on the signature pages thereof (the "Registration Rights Agreement"). ASSIGNMENT FORM To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to: _________________________________ (Insert assignee's legal name) _______________________________________________________________________________ (Insert assignee's soc. sec. or tax I.D. no.) _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ (Print or type assignee's name, address and zip code) and irrevocably appoint _______________________________________________________ to transfer this Note on the books of the Issuers. The agent may substitute another to act for him. Date: _______________ Your Signature: ________________ (Sign exactly as your name appears on the face of this Note) Signature Guarantee*: __________________ * Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). OPTION OF HOLDER TO ELECT PURCHASE If you want to elect to have all of your Note(s) purchased by the Issuers pursuant to Section 4.14 of the Indenture, state the amount you elect to have purchased: $_______________ If you want to elect to have only part of the Note(s) purchased by the Issuers pursuant to Section 4.14 of the Indenture, state the amount you elect to have purchased: $_______________ Date: _______________ Your Signature: ________________ (Sign exactly as your name appears on the face of this Note) Tax Identification No.:__________ Signature Guarantee*: __________________ * Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee). SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE* The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:
Principal Amount Amount of decrease Amount of increase in of this Global Note Signature of in Principal Amount Principal Amount following such authorized officer of of decrease of Trustee or Date of Exchange this Global Note this Global Note (or increase) Note Custodian - --------------- ------------------- --------------------- ------------------- ------------------
* This schedule should be included only if the Note is issued in global form. EXHIBIT B LIST OF COLLATERAL DOCUMENTS Pledge Agreement encumbering all Note Collateral including: UCC-1 Financing Statements EX-99 8 ch333565.txt EX T3F
CROSS-REFERENCE TABLE Trust Indenture Act Section Indenture Section 310(a)(1)................................................................... 7.10 (a)(2)................................................................. 7.10 (a)(3)................................................................. N.A. (a)(4)................................................................. N.A. (a)(5)................................................................. 7.10 (b).................................................................... 7.10 (c).................................................................... N.A. 311(a)...................................................................... 7.11 (b).................................................................... 7.11 (c).................................................................... N.A. 312(a)...................................................................... 2.05 (b).................................................................... 11.03 (c).................................................................... 11.03 313(a)...................................................................... 7.06 (b)(1)................................................................. 9.03 (b)(2)................................................................. 7.06;7.07 (c).................................................................... 7.06;11.02 (d).................................................................... 7.06 314(a)...................................................................... 4.03;11.05 (b).................................................................... 9.02 (c)(1)................................................................. 11.04 (c)(2)................................................................. 11.04 (c)(3)................................................................. N.A. (d).................................................................... 9.03, 9.04, 9.05 (e).................................................................... 11.05 (f).................................................................... N.A. 315(a)...................................................................... 7.01 (b).................................................................... 7.05,11.02 (c).................................................................... 7.01 (d).................................................................... 7.01 (e).................................................................... 6.11 316(a) (last sentence)...................................................... 2.09 (a)(1)(A).............................................................. 6.05 (a)(1)(B).............................................................. 6.04 (a)(2)................................................................. N.A. (b).................................................................... 6.07 (c).................................................................... 2.12; 8.04 317(a)(1)................................................................... 6.08 (a)(2)................................................................. 6.09 (b).................................................................... 2.04 318(a)...................................................................... 11.01 (b).................................................................... N.A. (c).................................................................... 11.01 N.A. means not applicable.
EX-25 9 chsenior.txt EX 25.1 FORM T-1 ================================================================================ 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) WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION (Exact name of trustee as specified in its charter) A U.S. National Banking Association 41-1592157 (Jurisdiction of incorporation or (I.R.S. Employer organization if not a U.S. national Identification No.) bank) Sixth Street and Marquette Avenue Minneapolis, Minnesota 55479 (Address of principal executive offices) (Zip code) Stanley S. Stroup, General Counsel WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION Sixth Street and Marquette Avenue Minneapolis, Minnesota 55479 (612) 667-1234 (Agent for Service) ----------------------------- REORGANIZED COMDISCO, INC. (1) AND NEW LEASING, INC. (1) (Exact name of obligor as specified in its charter) Delaware(1) Not Available(1) Delaware(1) Not Available(1) (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 6111 North River Road Rosemont, Illinois 60018 (Address of principal executive offices) (Zip code) ---------------- Variable Rate Senior Secured Notes Due 2004 (Title of the indenture securities) ================================================================================ (1)EXPLANATORY NOTE On July 16, 2001, Comdisco, Inc., a Delaware corporation ("Existing Comdisco"), and fifty of its domestic subsidiaries filed voluntary petitions for relief under Chapter 11 of the United States Code, as amended (the "Bankruptcy Code"), in the United States Bankruptcy Court for the Northern District of Illinois (Existing Comdisco and its domestic subsidiaries, in such capacity, the "Debtors," and the Bankruptcy Court, the "Court"). Since such time, the Debtors have continued to operate their businesses and manage their properties as debtors in possession. Under the terms and subject to the conditions set forth in the Disclosure Statement (the "Disclosure Statement") and an accompanying Joint Plan of Reorganization of the Debtors under Chapter 11 of the Bankruptcy Code (as amended or supplemented from time to time, the "Plan"), Existing Comdisco intends for certain newly formed entities - currently identified as Reorganized Comdisco, Inc. ("Reorganized Comdisco") and New Leasing Co., Inc. ("NLC" and, together with Reorganized Comdisco, the "Obligors") - to offer the Variable Rate Senior Secured Notes due 2004 (the "Notes") in an aggregate principal amount equal to $400,000,000. The Notes are to be issued under the terms and subject to the conditions set forth in the Plan, which contemplates certain reorganization transactions, including the formation of, or other reorganization transaction involving, Reorganized Comdisco and NLC. As a result, the legal entities that ultimately will be the co-issuers of the Notes are not yet formed or are not yet known. The Plan and the implementation thereof is subject to amendment and modification by the Debtors and approval by the Court and the various holders of claims against and interests in the Debtors. Accordingly, certain information regarding the Obligors contained in this statement on Form T-1 is subject to completion, amendment or modification. The Obligors, or Existing Comdisco on behalf of the Obligors, will provide such completed, amended or modified information by amendment to this statement. The information contained in this Explanatory Note was provided to Wells Fargo Bank Minnesota, National Association by Existing Comdisco. Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Comptroller of the Currency Treasury Department Washington, D.C. Federal Deposit Insurance Corporation Washington, D.C. The Board of Governors of the Federal Reserve System Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None with respect to the trustee. No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as provided under Item 13. Item 15. Foreign Trustee. Not applicable. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. Wells Fargo Bank incorporates by reference into this Form T-1 the exhibits attached hereto. Exhibit 1. a. A copy of the Articles of Association of the trustee now in effect.** Exhibit 2. a. A copy of the certificate of authority of the trustee to commence business issued June 28, 1872, by the Comptroller of the Currency to The Northwestern National Bank of Minneapolis.* b. A copy of the certificate of the Comptroller of the Currency dated January 2, 1934, approving the consolidation of The Northwestern National Bank of Minneapolis and The Minnesota Loan and Trust Company of Minneapolis, with the surviving entity being titled Northwestern National Bank and Trust Company of Minneapolis.* c. A copy of the certificate of the Acting Comptroller of the Currency dated January 12, 1943, as to change of corporate title of Northwestern National Bank and Trust Company of Minneapolis to Northwestern National Bank of Minneapolis.* d. A copy of the letter dated May 12, 1983 from the Regional Counsel, Comptroller of the Currency, acknowledging receipt of notice of name change effective May 1, 1983 from Northwestern National Bank of Minneapolis to Norwest Bank Minneapolis, National Association.* e. A copy of the letter dated January 4, 1988 from the Administrator of National Banks for the Comptroller of the Currency certifying approval of consolidation and merger effective January 1, 1988 of Norwest Bank Minneapolis, National Association with various other banks under the title of "Norwest Bank Minnesota, National Association."* f. A copy of the letter dated July 10, 2000 from the Administrator of National Banks for the Comptroller of the Currency certifying approval of consolidation effective July 8, 2000 of Norwest Bank Minnesota, National Association with various other banks under the title of "Wells Fargo Bank Minnesota, National Association."*** Exhibit 3. A copy of the authorization of the trustee to exercise corporate trust powers issued January 2, 1934, by the Federal Reserve Board.* Exhibit 4. Copy of By-laws of the trustee as now in effect.** Exhibit 5. Not applicable. Exhibit 6. The consent of the trustee required by Section 321(b) of the Act. Exhibit 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. Exhibit 8. Not applicable. Exhibit 9. Not applicable. * Incorporated by reference to exhibit number 25 filed with registration statement number 33-66026. ** Incorporated by reference to the exhibit of the same number to the trustee's Form T-1 filed as exhibit 99.T3G to the Form T-3 dated July 13, 2000 of GB Property Funding Corp. file number 022-22473. *** Incorporated by reference to exhibit number 2f to the trustee's Form T-1 filed as exhibit 25.1 to the Current Report Form 8-K dated September 8, 2000 of NRG Energy Inc. file number 001-15891. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wells Fargo Bank Minnesota, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Minneapolis and State of Minnesota on the 16th day of July, 2002. WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION /s/ Jane Schweiger ------------------------------------ Jane Y. Schweiger Assistant Vice President EXHIBIT 6 July 16, 2002 Securities and Exchange Commission Washington, D.C. 20549 Gentlemen: In accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination of the undersigned made by Federal, State, Territorial, or District authorities authorized to make such examination may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor. Very truly yours, WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION /s/ Jane Schweiger ----------------------------------- Jane Y. Schweiger Assistant Vice President Wells Fargo Bank Minnesota, N.A. FFIEC 031 - ---------------------------------------- RC-1 Legal Title of Bank Minneapolis --------- - --------------------------------------- 11 City --------- MN 55479 - -------------------------------------- State Zip Code FDIC Certificate Number - 05208 Consolidated Report of Condition for Insured Commercial and State-Chartered Savings Banks for March 31, 2002 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. Schedule RC--Balance Sheet
Dollar Amounts in Thousands CFD Bil Mil Thou ASSETS 1. Cash and balances due from depository institutions (from Schedule RC-A): a. Noninterest-bearing balances and currency and coin (1) 0081 1,467,743 1.a b. Interest-bearing balances (2) 0071 60,337 1.b 2. Securities: a. Held-to-maturity securities (from Schedule RC-B, column A) 1754 0 2.a b. Available-for-sale securities (from Schedule RC-B, column D) 1773 1,733,290 2.b 3. Federal funds sold and securities purchased under agreements to resell: RCON a. Federal funds sold in domestic offices B987 13,784,954 3.a RCFD b. Securities purchased under agreements to resell (3) B989 365,710 3.b 4. Loans and leases financing receivables (from Schedule RC-C): a. Loans and leases held for sale 5369 13,923,626 4.a b. Loans and leases, net of unearned income B528 20,607,914 4.b --------------------- c. LESS: Allowance for loan and lease losses 3123 267,930 4.c --------------------- d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c) B529 20,339,984 4.d 5. Trading assets (from Schedule RC-D) 3545 35,760 5 6. Premises and fixed assets (including capitalized leases) 2145 152,586 6 7. Other real estate owned (from Schedule RC-M) 2150 7,027 7 8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) 2130 0 8 9. Customers' liability to this bank on acceptances outstanding 2155 10,081 9 10. Intangible assets: a. Goodwill 3163 136,381 10.a b. Other intangible assets (from Schedule RC-M) 0426 2,725 10.b 11. Other assets (from Schedule RC-F) 2160 1,147,601 11 12. Total assets (sum of items 1 through 11) 2170 53,167,805 12 - ----------------- (1) Includes cash items in process of collection and unposted debits. (2) Includes time certificates of deposit not held for trading. (3) Includes all securities resale agreements in domestic and foreign offices, regardless of maturity.
Wells Fargo Bank Minnesota, N.A. FFIEC 031 - ---------------------------------------- RC-1 Legal Title of Bank --------- 12 --------- FDIC Certificate Number - 05208
Schedule RC--Continued Dollar Amounts in Thousands Bil Mil Thou LIABILITIES 13. Deposits: a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, RCON part I) 2200 23,310,487 13.a (1) Noninterest-bearing (1) 6631 12,702,289 13.a.1 (2) Interest-bearing 6636 10,608,198 13.a.2 b. In foreign offices, Edge and Agreement subsidiaries, and IBFs RCFN from Schedule RC-E, part II) 2200 11,779,866 13.b (1) Noninterest-bearing 6631 5,884 13.b.1 (2) Interest-bearing 6636 11,773,982 13.b.2 14. Federal funds purchased and securities sold under agreements to repurchase: RCON a. Federal funds purchased in domestic offices (2) B993 2,016,420 14.a RCFD b. Securities sold under agreemetns to repurchase (3) B995 5,510,749 14.b 15. Trading liabilities (from Schedule RC-D) 3548 30,497 15 16. Other borrowed money (includes mortgage indebtedness and obligations 4.c under capitalized leases) (from Schedule RC-M) 3190 6,402,347 16 17. Not applicable 5 18. Bank's liability on acceptances executed and outstanding 2920 10,081 18 19. Subordinated notes and debentures (4) 3200 0 19 20. Other liabilities (from Schedule RC-G) 2930 830,929 20 21. Total liabilities (sum of items 13 through 20) 2948 49,891,376 21 22. Minority interest in consolidated subsidiaries 3000 0 22 EQUITY CAPITAL 23. Perpetual preferred stock and related surplus 3838 0 23 24. Common stock 3230 100,000 24 25. Surplus (exclude all surplus related to preferred stock) 3839 1,712,625 25 26. a. Retained earnings 3632 1,438,225 26.a b. Accumulated other comprehensive income (5) B530 25,579 26.b 27. Other equity capital components (6) A130 0 27 28. Total equity capital (sum of items 23 through 27) 3210 3,276,429 28 29. Total liabilities, minority interest, and equity capital (sum of items 21, 22, and 28) 3300 53,167,805 29 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 CFD Number for the bank by independent external auditors as of any date during 2001 6724 2 M.1 1 = Independent audit of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the bank 2 = Independent audit of the bank's parent holding company conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the consolidated holding company (but not on the bank separately) 3 = Attestation on bank management's assertion on the effectiveness of the bank's internal control over financial reporting by a certified public accounting firm 4 = Director's examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority) 5 = Director's examination of the bank performed by other external auditors (may be required by state chartering authority) 6 = Review of the bank's financial statements by external auditors 7 = Compilation of the bank's financial statements by external auditors 8 = Other audit procedures (excluding tax preparation work) 9 = No external audit work - -------------------- (1) Includes total demand deposits and noninterest-bearing time and savings deposits. (2) Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, "other borrowed money." (3) Includes all securities repurchase agreements in domestic and foreign offices, regardless of maturity. (4) Includes limited-life preferred stock and related surplus. (5) Includes net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, cumulative foreign currency translation adjustments, and minimum pension liability adjustments. (6) Includes treasury stock and unearned Employee Stock Ownership Plan shares.
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