Exhibit 10.9
DISBURSING AGENT AGREEMENT
BY AND AMONG
COMDISCO HOLDING COMPANY, INC., as the Reorganized Debtors,
RANDOLPH I. THORNTON, as the Initial Disbursing Agent,
SCOTT P. PELTZ, as the Successor Disbursing Agent,
AND
AMERICAN EXPRESS TAX AND BUSINESS
SERVICES, INC., as the Transition Services Firm,
DATED AS OF MARCH 31, 2004
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS.............................................................................2
Section 1.1 Defined Terms..........................................................2
ARTICLE II
ACCEPTANCE OF POSITIONS BY THE INITIAL DISBURSING AGENT, SUCCESSOR DISBURSING AGENT AND
THE TRANSITION
SERVICES FIRM...........................................................................3
Section 2.1 Acceptance by the Initial Disbursing Agent..............................3
Section 2.2 Acceptance by the Successor Disbursing Agent............................4
Section 2.3 Acceptance by the Transition Services Firm..............................4
ARTICLE III
OBLIGATIONS AND POWERS OF THE DISBURSING AGENT..........................................4
Section 3.1 President, Director and Secretary of Comdisco Holding...................4
Section 3.2 Obligations and Powers Pursuant to the Wind Down Order..................6
Section 3.3 Obligations and Powers of the Disbursing Agent with Respect
to the Implementing the Plan............................................6
Section 3.4 Transactions with Related Persons.......................................7
Section 3.5 Investment of Cash......................................................7
Section 3.6 Treatment of Accounts...................................................8
Section 3.7 Books, Records, and Tax Returns.........................................8
Section 3.8 Adherence to Ethical Standards..........................................8
Section 3.9 Consultation with Successor Disbursing Agent and Transition Firm........8
Section 3.10 Effectiveness of this Agreement.........................................8
Section 3.11 Powers of the Disbursing Agent..........................................9
Section 3.12 Substitution of Resources and Personnel.................................9
Section 3.13 No Use of Personal Assets...............................................9
ARTICLE IV
INDEMNIFICATION, INSURANCE AND COMPENSATION.............................................9
Section 4.1 Indemnification.........................................................9
Section 4.2 Insurance..............................................................10
Section 4.3 Compensation...........................................................10
ARTICLE V
SUCCESSORSHIP PROVISIONS...............................................................11
Section 5.1 Resignation............................................................11
Section 5.2 Removal................................................................11
Section 5.3 Appointment of Successor Disbursing Agent..............................11
Section 5.4 Effectiveness of Succession............................................12
Section 5.5 Continuity.............................................................12
Section 5.6 Reliance by Persons Dealing with the Disbursing Agent..................12
ARTICLE VI
TERMINATION OF THE AGREEMENT...........................................................12
Section 6.1 Termination............................................................12
Section 6.2 Obligations of the Disbursing Agent Upon Termination...................12
ARTICLE VII
MISCELLANEOUS PROVISIONS...............................................................13
Section 7.1 Descriptive Headings...................................................13
Section 7.2 Amendment and Waiver...................................................13
Section 7.3 Governing Law..........................................................13
Section 7.4 Counterparts; Effectiveness............................................13
Section 7.5 Severability; Validity.................................................13
Section 7.6 Notices................................................................13
Section 7.7 Relationship to Plan...................................................14
Section 7.8 Relationship to the Litigation Trust...................................14
Section 7.9 Retention of Jurisdiction..............................................14
Section 7.10 Use of the Company's Professionals.....................................14
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DISBURSING AGENT AGREEMENT
PREAMBLE
This Disbursing Agent Agreement (the "Agreement") dated as of March 31,
2004, is entered into by and among Comdisco Holding Company, Inc., a Delaware
corporation ("Comdisco Holding" or the "Company," and collectively with its
affiliated reorganized debtors as well as its non-debtor domestic and foreign
entities, the "Reorganized Debtors"), Randolph I. Thornton ("Mr. Thornton" or
the "Initial Disbursing Agent"), Scott P. Peltz ("Mr. Peltz" or the "Successor
Disbursing Agent") and American Express Tax and Business Services, Inc.
("American Express" or the "Transition Services Firm"). Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed to them in The
First Amended Joint Plan of Reorganization of Comdisco, Inc. and its Affiliated
Debtors and Debtors in Possession (the "Plan").
RECITALS
A. On July 16, 2001, Comdisco, Inc. and fifty of its domestic subsidiaries
and affiliates (the "Debtors") filed voluntary petitions for relief under title
11 of chapter 11 of the United States Code, 11 U.S.C. ss.ss. 101-1330, as
amended (the "Bankruptcy Code"), in the United States Bankruptcy Court for the
Northern District of Illinois, Eastern Division (the "Bankruptcy Court").
B. On June 13, 2002 the Debtors filed the Plan with the Bankruptcy Court.
C. On July 30, 2002, the Bankruptcy Court approved the Findings of Fact,
Conclusions of Law and Order Under 11 U.S.C. ss. ss. 1129(a) and (b) and Fed. R.
Bankr. P. 3020 Confirming the First Amended Joint Plan of Reorganization of
Comdisco, Inc. and its Affiliated Debtors and Debtors in Possession (the
"Confirmation Order").
D. The Confirmation Order approved the Certificate of Incorporation for
Comdisco Holding, which specifically states that "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."
E. On August 12, 2002, the Plan became effective (the "Effective Date").
F. As set forth in the Motion for an Order in Furtherance of the First
Amended Joint Plan of Reorganization of Comdisco, Inc. and its Affiliates
Seeking Authority to Complete the Administration of the Reorganized Debtors'
Reorganization Plan and Chapter 11 Cases, dated February 17, 2004, the Company
has substantially completed the monetization of its assets (the "Wind Down
Motion"), and on April 15, 2004 this Court entered an Order in Furtherance of
the First Amended Joint Plan of Reorganization of Comdisco, Inc. and its
Affiliates Seeking Authority to Complete the Administration of the Reorganized
Debtors' Reorganization Plan and Chapter 11 Cases (the "Wind Down Order")
approving, among other things, the retention of the Disbursing Agent, as set
forth herein.
G. The rights, powers, and duties of the Reorganized Debtors under the Plan
shall be exercised by the Disbursing Agent in his capacity as the President,
Director and Secretary of each of the Reorganized Debtors (subject to his rights
and powers to appoint other positions pursuant to Section 3.1(b) of this
Agreement).
H. Mr. Thornton, who acted as co-chair of the Official Committee of
Unsecured Creditors during the Chapter 11 Cases prior to the Effective Date and
as a member of the board of directors of Comdisco Holding since the Effective
Date, has been unanimously selected by the other members of the board of
directors of Comdisco Holding to act as the Initial Disbursing Agent pursuant to
the Wind Down Motion and this Agreement, in conjunction with Mr. Peltz and
American Express as the Successor Disbursing Agent and the Transition Services
Firm, respectively.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms . As used herein, the terms below shall have the
following meaning:
"Agreement" has the meaning set forth in the Preamble.
"Bankruptcy Code" has the meaning set forth in the Recitals.
"Bankruptcy Court" has the meaning set forth in the Recitals.
"Business Day" has the meaning set forth in Section 1.16 of the Plan.
"Disbursing Agent" has the meaning set forth in the Preamble.
"Disbursing Agent Agreement Effective Date" has the meaning set forth in
Section 3.10 herein.
"Effective Date" has the meaning as set forth in the Recitals.
"Litigation Trust" has the meaning set forth in Section 1.67 of the Plan.
"Master Service List" means the parties required to be served pursuant to
the Supplemental Order Under Fed. R. Bankr. P. 2002(m) and 9007 Limiting Service
of All Filings entered by the Bankruptcy Court on July 24, 2003.
"New Common Shares" has the meaning set forth in Section 1.75 of the Plan.
"Plan" has the meaning set forth in the Preamble.
"Successor Disbursing Agent" has the meaning set forth in the Preamble as
well as any individual selected to replace Mr. Peltz pursuant to the terms of
this Agreement.
"Wind Down Motion" has the meaning set forth in the Recitals.
"Wind Down Order" has the meaning set forth in the Recitals.
ARTICLE II
ACCEPTANCE OF POSITIONS BY THE INITIAL DISBURSING AGENT,
THE SUCCESSOR DISBURSING AGENT AND THE TRANSITION
SERVICES FIRM
Section 2.1 Acceptance by the Initial Disbursing Agent . Mr. Thornton (a)
accepts employment as the Disbursing Agent; (b) accepts appointment as the
President, Director and Secretary of each of the Reorganized Debtors; and (c)
agrees to observe and perform all duties and obligations imposed upon the
Disbursing Agent under this Agreement, the Plan, orders of the Bankruptcy Court
and applicable law.
Section 2.2 Acceptance by the Successor Disbursing Agent . Mr. Peltz
accepts employment as the Successor Disbursing Agent. As Successor Disbursing
Agent, if Mr. Peltz becomes the Disbursing Agent pursuant to this Agreement,
then Mr. Peltz (a) accepts employment as the Disbursing Agent; (b) accepts
appointment as the President, Director and Secretary of each of the Reorganized
Debtors; and (c) agrees to observe and perform all duties and obligations
imposed upon the Disbursing Agent under this Agreement, the Plan, orders of the
Bankruptcy Court and applicable law. The Successor Disbursing Agent shall at all
times be a member of the Transition Services Firm and the appointment of any
subsequent Successor Disbursing Agent shall become effective upon the approval
by the Bankruptcy Court after a hearing before the Bankruptcy Court on not less
than twenty days' notice to the Master Service List.
Section 2.3 Acceptance by the Transition Services Firm . American Express
accepts employment as the Transition Services Firm to assist the Disbursing
Agent with the implementation of the Plan and the final wind-down of the Company
pursuant to the Wind Down Order and this Agreement. The appointment of a
subsequent Transition Services Firm by the Disbursing Agent shall become
effective upon the approval by the Bankruptcy Court after a hearing before the
Bankruptcy Court on not less than twenty days' notice to the Master Service
List.
ARTICLE III
OBLIGATIONS AND POWERS OF THE DISBURSING AGENT (1)
Section 3.1 President, Director and Secretary of Comdisco Holding . The
Disbursing Agent shall serve as the President, Director and Secretary of
Comdisco Holding (as well as the other Reorganized Debtors) and fulfill such
duties and obligations required by such corporate offices, including, but not
limited to:
(a) attending to corporate governance issues of the Reorganized Debtors,
including maintenance of insurance, human resource issues
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(1) "Disbursing Agent" shall mean the Initial Disbursing Agent and if
succeeded by the Successor Disbursing Agent, the Successor Disbursing Agent.
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(including maintaining employee benefits substantially similar to those existing
as of the Disbursing Agent Agreement Effective Date) and the administration of
the compensation plans and the termination of the retirement plan;
(b) appointing new officers, managing directors, directors, liquidators and
similar positions of the Reorganized Debtors' entities in foreign jurisdictions
for the purpose of corporate governance and dissolution;
(c) authorizing and paying dividends and making, as appropriate, payments
to holders of contingent distribution rights;
(d) attending to any securities issues and related filings with the
Securities and Exchange Commission, including compliance with Sarbanes-Oxley, as
well as any required filings and financial reports in foreign jurisdictions;
(e) investing the Reorganized Debtors' Cash pursuant to Section 3.5 herein;
(f) employing, supervising and compensating professionals and consultants
retained to represent the interests of, and serve on behalf of, the Reorganized
Debtors;
(g) monetizing or otherwise disposing of all remaining assets of the
Reorganized Debtors, both domestically and internationally;
(h) resolving any outstanding litigation against the Reorganized Debtors,
both domestically and internationally;
(i) seeking determination of tax liability under 11 U.S.C. ss. 505;
(j) making and filing domestic and foreign tax returns for any of the
Reorganized Debtors;
(k) dissolving the Reorganized Debtors as appropriate (with the exception
of Comdisco Holding, which will be dissolved pursuant to the Wind Down Order and
Section 3.2 of this Agreement); and
(l) taking any and all other actions necessary or appropriate to implement
or consummate the Plan and the provisions of this Agreement.
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The Transition Services Firm may undertake one or more of the foregoing as
assigned to it from time to time by the Disbursing Agent, but any such
assignment shall at all times be subject to the supervision and review of the
Disbursing Agent. The Disbursing Agent shall delegate one or more of the
foregoing as and when in the Disbursing Agent's reasonable business judgment it
becomes cost effective or otherwise desirable or necessary to do so.
Section 3.2 Obligations and Powers Pursuant to the Wind Down Order . In
accordance with the provisions of the Wind Down Order, the Disbursing Agent
shall complete the duties and obligations set forth therein, including, but not
limited to:
(a) filing a certificate of dissolution for Comdisco Holding on or before
August 12, 2004; and
(b) taking such other measures as are necessary in order to complete the
final administration of the Reorganized Debtors' reorganization Plan and Chapter
11 Cases.
Section 3.3 Obligations and Powers of the Disbursing Agent with Respect to
the Implementing the Plan . As the President, Director and Secretary of Comdisco
Holding, the entity responsible for the administration of the assets and
liabilities of the Company pursuant to the Plan, the Disbursing Agent shall take
all actions necessary to implement the Plan, including, but not limited to:
(a) calculating and paying all distributions to be made under the Plan,
this Agreement and orders of the Bankruptcy Court;
(b) objecting to on any basis, settling or otherwise resolving Claims or
Interests filed against any of the Debtors;
(c) filing any necessary post-confirmation reports with the Bankruptcy
Court, paying quarterly fees pursuant to 28 U.S.C. ss. 1930(a)(6) for each of
the Debtors until the entry of a final decree for the respective Debtor, and
filing a final report pursuant to Rule-5009-1(c) of the Local Rules prior to the
entry of a final decree for any respective Debtors;
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(d) creating and managing all necessary reserves to implement the Plan;
(e) managing the funds as a result of any undeliverable distributions
including returned checks, stale checks or any other unclaimed distributions,
with such funds reverting to the Reorganized Debtors, free of any restrictions
thereon and notwithstanding any federal or state escheat laws to the contrary,
pursuant to Section 9.4 of the Plan; and
(f) resolving any outstanding litigation against the Debtors.
Section 3.4 Transactions with Related Persons . Notwithstanding any other
provisions of this Agreement, the Disbursing Agent, the Successor Disbursing
Agent and the Transition Services Firm shall not knowingly, directly or
indirectly, sell or otherwise transfer all or any part of the assets of the
Reorganized Debtors to, or contract, other than this Agreement, with (a) any
relative, employee, or agent (acting in their individual capacities) of the
Disbursing Agent, the Successor Disbursing Agent or the Transition Services Firm
or (b) any person of which any employee or agent of the Disbursing Agent, the
Successor Disbursing Agent or the Transition Services Firm is an affiliate by
reason of being a trustee, director, officer, partner, or direct or indirect
beneficial owner of five percent (5%) or more of the outstanding capital stock,
shares, or other equity interest of such persons unless, in each such case,
after full disclosure of such interest or affiliation and providing notice of
such transaction to the Master Service List; provided, if no objection is filed
within fifteen days from the date such notice is mailed, then such transaction
is authorized; provided, further, that if an objection is filed, then such
transaction is authorized only upon approval by the Bankruptcy Court.
Section 3.5 Investment of Cash . The Disbursing Agent shall invest the
Reorganized Debtors' Cash, including, but not limited to, the Cash held in any
reserve or account in (A) direct obligations of the United States of America or
obligations of any agency or instrumentality thereof which are guaranteed by the
full faith and credit of the United States of America; (B) money market deposit
accounts, checking accounts, savings accounts or certificates of deposit, or
other time deposit accounts that are issued by a commercial bank or savings
institution organized under the laws of the United States of America or any
state thereof; or (C) any other investments that would otherwise be permissible
under (I) Section 345 of the Bankruptcy Code or (II) any order of the Bankruptcy
Court entered in the Debtors' Chapter 11 cases, or such statute or orders of the
Bankruptcy Court still controlling the Reorganized Debtors' business affairs.
Such investments shall mature in such amounts and at such times as the
Disbursing Agent, in the Disbursing Agent's sole discretion, shall deem
appropriate to provide funds when needed to transfer funds or make payments in
accordance with the Plan and this Agreement. The interest or other income earned
on the investments of the Cash in any given reserve, account, or escrow
established pursuant to this Agreement, the Plan, or any order of the Bankruptcy
Court shall constitute a part of such reserve, account or escrow unless and
until transferred or distributed pursuant to the terms of the Plan, this
Agreement or order of the Bankruptcy Court.
Section 3.6 Treatment of Accounts For purposes of this Agreement, unless
otherwise ordered by the Bankruptcy Court, the Disbursing Agent may pool for
investment purposes any funds which may or which are required to be segregated
or placed into separate reserves, escrows or accounts under the Plan or this
Agreement, with the exception of the Disputed Claims Reserve and the
rabbi-trusts created pursuant to the terms of any incentive compensation plan;
provided, however, that the Disbursing Agent shall treat any such pooled funds
as segregated accounts in the books and records of the Company.
Section 3.7 Books, Records, and Tax Returns The Disbursing Agent shall
maintain books and records and prepare and file such tax forms and returns as
are required to be filed by the Reorganized Debtors under applicable law.
Section 3.8 Adherence to Ethical Standards The Disbursing Agent agrees to
abide by the Code of Conduct for Comdisco Holding Company, Inc. as well as the
Code of Conduct Applicable to Senior Executives of Comdisco Holding Company,
Inc., copies of which are attached hereto as Exhibit A and Exhibit B,
respectively.
Section 3.9 Consultation with Successor Disbursing Agent and Transition
Services Firm . The Disbursing Agent shall consult from time to time with the
Successor Disbursing Agent and the Transition Services Firm as well as counsel
and other professionals and consultants, with respect to the implementation of
this Agreement, the Plan and the Wind Down Order. The Disbursing Agent shall
have the right at any time to seek and rely upon instructions from the
Bankruptcy Court concerning this Agreement, the Plan, the Wind Down Order or any
other document executed in connection therewith. The Successor Disbursing Agent
shall at all times be reasonably familiar with the operations and affairs of the
Company and shall be consulted with and provide advice to the Disbursing Agent
with respect to such operations and affairs.
Section 3.10 Effectiveness of this Agreement . This Agreement shall take
effect (the "Disbursing Agent Agreement Effective Date"), pursuant to the Wind
Down Order, upon (a) the replacement of the officers of the Company by the
Disbursing Agent, and (b) the reduction of the board of directors of Comdisco
Holding to one director, who is the Disbursing Agent; provided, that the Company
may make reasonable payments to the Initial Disbursing Agent, the Successor
Disbursing Agent or the Transition Services Firm prior to the Disbursing Agent
Agreement Effective Date as the Company deems appropriate.
Section 3.11 Powers of the Disbursing Agent . The Disbursing Agent shall
have the power and authority to take all necessary actions to fulfill the
obligations set forth in this Agreement, the Plan, orders of the Bankruptcy
Court and applicable law. The enumeration of the duties and obligations in
Article III shall not be considered in any way to limit or control the power of
the Disbursing Agent to implement the terms of this Agreement, the Plan, orders
of the Bankruptcy Court and applicable law.
Section 3.12 Substitution of Resources and Personnel . The Disbursing Agent
shall supplement any loss of personnel or resources as a result of the
implementation of the Plan and wind-down by utilizing the personnel and
resources of the Transition Services Firm.
Section 3.13 No Use of Personal Assets . Notwithstanding anything in this
Agreement to the contrary, and provided that the Disbursing Agent has not acted
in violation of Delaware General Corporate Law, it is expressly acknowledged by
the parties hereto that each and every obligation or undertaking imposed on a
Disbursing Agent herein (other than to provide his personal services as
necessary to perform his obligations hereunder) shall mean and refer only to an
obligation to pay such amounts, or to obtain, provide for or otherwise perform
such services, as can be paid, obtained or provided for from the Cash and other
resources made available to him for such purposes by the Company and that no
Disbursing Agent shall be required to use his personal assets in the discharge
of any obligation imposed upon him in his capacity as Disbursing Agent.
ARTICLE IV
INDEMNIFICATION, INSURANCE AND COMPENSATION
Section 4.1 Indemnification . Comdisco Holding shall indemnify and hold
harmless the Initial Disbursing Agent, the Successor Disbursing Agent and the
Transition Services Firm from and against and with respect to any and all
liabilities, losses, damages, claims, costs and expenses, including, but not
limited to, attorneys' fees arising out of or due to their actions or omissions,
or consequences of such actions or omissions, with respect to the Reorganized
Debtors or the implementation or administration of the Plan, other than acts or
omissions resulting from the willful misconduct or gross negligence of the
Initial Disbursing Agent, the Successor Disbursing Agent or the Transition
Services Firm. To the extent Comdisco Holding indemnifies and holds harmless the
Initial Disbursing Agent, the Successor Disbursing Agent and/or the Transition
Services Firm, as provided above, the reasonable legal fees and related costs
incurred by counsel to the Initial Disbursing Agent, the Successor Disbursing
Agent and/or the Transition Services Firm in monitoring and participating in the
defense of such claims giving rise to the right of indemnification shall be paid
by Comdisco Holding.
Section 4.2 Insurance . The Initial Disbursing Agent and the Successor
Disbursing Agent shall be authorized to maintain and/or obtain all reasonably
necessary insurance coverage for themselves, and their employees, if any,
including, but not limited to (a) property and casualty coverage, (b) general
liability coverage and (c) directors and officers liability coverage, which
shall not exceed $20 million.
Section 4.3 Compensation . The Initial Disbursing Agent shall be
compensated at the rate of $400 per hour, subject to a limit of $3,000 per day,
plus reimbursement of reasonable out-of-pocket expenses; the Successor
Disbursing Agent (either in his capacity as the Successor Disbursing Agent or to
the extent that the Successor Disbursing Agent becomes the Disbursing Agent
under this Agreement) shall be compensated at the rate of $375 per hour, plus
reimbursement of reasonable out-of-pocket expenses; and the Transition Services
Firm shall be compensated at varying hourly rates not to exceed $300 per hour,
plus reimbursement of reasonable out-of-pocket expenses. The payment of the fees
and expenses of the Initial Disbursing Agent, the Successor Disbursing Agent and
the Transition Services Firm shall be made in the ordinary course of business
from the Operating Reserve and shall not be subject to the approval by the
Bankruptcy Court; provided, the fees paid to the Disbursing Agent, the Successor
Disbursing Agent and the Transition Services Firm on and after the Disbursing
Agent Agreement Effective Date are subject to quarterly aggregate caps,
respectively (each, a "Compensation Cap"), as set forth in Exhibit C attached
hereto. Any such fees in excess of the respective Compensation Cap shall not be
paid until they are approved by the Bankruptcy Court after a hearing before the
Bankruptcy Court on not less than twenty days' notice to the Master Service
List.
ARTICLE V
SUCCESSORSHIP PROVISIONS
Section 5.1 Resignation . The Disbursing Agent may resign by giving not
less than thirty days' prior written notice thereof to the Bankruptcy Court and
the Master Service List, with or without cause, for any reason, including his
determination that, in his business judgment, the state of the wind-down has
progressed to the point that it is most cost-effective, desirable and/or
necessary to transfer the responsibilities of the Disbursing Agent to the
Successor Disbursing Agent. Such resignation, which shall be applicable to the
Disbursing Agent in his capacity as such and in his capacity as the President,
Director and Secretary for each of the Reorganized Debtors, shall become
effective in accordance with Section 5.4 hereof.
Section 5.2 Removal . At any time upon the request of any party in
interest, the Bankruptcy Court may remove the Disbursing Agent for cause. For
purposes of this Section 5.2, "cause" shall mean (a) an act of fraud,
embezzlement or theft in connection with the Disbursing Agent's duties or in the
course of his employment in such capacity, (b) the intentional wrongful damage
to property of the Company, (c) the intentional wrongful disclosure of
confidential information of the Company or (d) wanton and willful neglect by the
Disbursing Agent of his duties under this Agreement. Unless the Bankruptcy Court
orders immediate removal, the Disbursing Agent shall continue to serve until the
appointment of the Successor Disbursing Agent becomes effective in accordance
with Section 5.4 hereof.
Section 5.3 Appointment of Successor Disbursing Agent . In the event of a
vacancy by reason of the death, incapacitation or immediate removal of the
Disbursing Agent or prospective vacancy by reason of resignation or removal, the
Successor Disbursing Agent shall become the Disbursing Agent and serve as the
President, Director and Secretary of each of the Reorganized Debtors, which
appointment shall be effective in accordance with Section 5.4 hereof. Every
Successor Disbursing Agent appointed hereunder shall execute, acknowledge, and
deliver to the Bankruptcy Court and the retiring Disbursing Agent, if any, an
instrument accepting such appointment subject to the terms and provisions
hereof. The Successor Disbursing Agent, without any further act, shall (a)
become vested with all the rights, powers, and duties of the Disbursing Agent
and (b) become the President, Director and Secretary of each of the Reorganized
Debtors; provided, however, that no Disbursing Agent shall be liable for the
acts or omissions of any prior or later Disbursing Agent.
Section 5.4 Effectiveness of Succession . The Successor Disbursing Agent
shall succeed the Disbursing Agent without further order of the Bankruptcy Court
on not less than ten days' notice to the Master Service List, provided that Mr.
Peltz is the Successor Disbursing Agent. If Mr. Peltz is not the Successor
Disbursing Agent, the appointment of a Successor Disbursing Agent shall become
effective upon the approval by the Bankruptcy Court after a hearing before the
Bankruptcy Court on not less than twenty days' notice to the Master Service
List.
Section 5.5 Continuity . Unless otherwise ordered by the Bankruptcy Court,
the death, incapacitation, resignation or removal of the Disbursing Agent shall
not operate to terminate any agency or employment created by this Agreement or
invalidate any action theretofore taken by the Disbursing Agent. In the event of
the resignation or removal of the Disbursing Agent, such Disbursing Agent shall
(a) execute and deliver by the effective date of resignation or removal such
documents, instruments, and other writings as may be reasonably requested by the
Successor Disbursing Agent to effect the termination of the Disbursing Agent's
capacity under this Agreement, including, but not limited to, the Disbursing
Agent's capacity as the President, Director and Secretary of each of the
Reorganized Debtors, and (b) assist and cooperate in effecting the assumption of
such Disbursing Agent's obligations and functions by the Successor Disbursing
Agent. If for any reason the Disbursing Agent fails to execute the documents
described in section (a) of the preceding sentence, the Successor Disbursing
Agent shall be authorized to obtain an order of the Bankruptcy Court effecting
such termination of such Disbursing Agent's capacity under this Agreement.
Section 5.6 Reliance by Persons Dealing with the Disbursing Agent . In the
absence of actual knowledge to the contrary, any person dealing with the
Disbursing Agent shall be entitled to rely on the authority of the Disbursing
Agent to act on behalf of the Reorganized Debtors, and shall have no obligation
to inquire into the existence of such authority.
ARTICLE VI
TERMINATION OF THE AGREEMENT
Section 6.1 Termination . This Agreement shall terminate upon the Final
Decree and Order being entered closing the cases.
Section 6.2 Obligations of the Disbursing Agent Upon Termination . Prior to
effectiveness of a Final Decree and Order, the Disbursing Agent shall (a)
provide for the retention and storage of the books, records, and files that
shall have been delivered to or created by the Disbursing Agent until such time
as all such books, records, and files are no longer required to be retained
under applicable law and (b) file a certificate informing the Bankruptcy Court
of the location at which such books, records, and files are being stored. Except
as otherwise specifically provided herein, after the termination of this
Agreement pursuant to Section 6.1 above, the Disbursing Agent shall have no
further duties or obligations hereunder.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.1 Descriptive Headings . The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 7.2 Amendment and Waiver . This Agreement may not be amended except
by order of the Bankruptcy Court for good cause shown.
Section 7.3 Governing Law . This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois without regard to
the rules of conflict of laws of the State of Illinois or any other
jurisdiction.
Section 7.4 Counterparts; Effectiveness . This Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an original but
all of which shall constitute one and the same agreement. This Agreement shall
become effective when each party hereto shall have received counterparts thereof
signed by all the other parties hereto.
Section 7.5 Severability; Validity . If any provision of this Agreement or
the application thereof to any person or circumstance is held invalid or
unenforceable, the remainder of this Agreement, and the application of such
provision to other persons or circumstances, shall not be affected thereby, and
to such end, the provisions of this Agreement are agreed to be severable.
Section 7.6 Notices . Any notice or other communication hereunder shall be
in writing and shall be deemed given upon (a) confirmation of receipt of a
facsimile transmission, (b) confirmed delivery by a standard overnight carrier
or when delivered by hand, or (c) the expiration of five Business Days after the
day when mailed by registered or certified mail (postage prepaid, return receipt
requested), addressed to the respective parties on the Master Service List.
Section 7.7 Relationship to Plan . The principal purpose of this Agreement
is to aid in the implementation of the Plan and, therefore, this Agreement
incorporates and is subject to the provisions of the Plan. To that end, the
Disbursing Agent shall have full power and authority to take any action
consistent with the purposes and provisions of the Plan and this Agreement.
Section 7.8 Relationship to the Litigation Trust . Nothing herein shall be
deemed to alter, amend or contradict the terms of the Litigation Trust Agreement
dated August 12, 2002 (the "Litigation Trust Agreement") entered into by and
among Comdisco, Inc. as settlor and John W. Costello as Trustee; provided, once
this Agreement becomes effective pursuant to Section 3.10 of this Agreement, the
Disbursing Agent shall act as the Trust Advisory Board, as that term is used in
Section 12.4 of the Plan and the Litigation Trust Agreement.
Section 7.9 Retention of Jurisdiction . As provided in Article XV of the
Plan, the Bankruptcy Court shall retain jurisdiction to the fullest extent
permitted by law, including, but not limited to, for the purposes of
interpreting and implementing the provisions of this Agreement.
Section 7.10 Use of the Company's Professionals . The Initial Disbursing
Agent, the Successor Disbursing Agent and the Transition Services Firm shall be
entitled to use the Company's counsel and other professionals to represent them
in any matters including, but not limited to, the implementation of the Plan and
the wind-down; provided, that the Initial Disbursing Agent, the Successor
Disbursing Agent and the Transition Services Firm shall be entitled to retain
separate counsel with respect to issues related to the interpretation of, or
conduct pursuant to, this Agreement.
<page>
IN WITNESS WHEREOF, the parties have either executed and acknowledged this
Agreement or caused it to be executed and acknowledged on their behalf by their
duly authorized officers as of the date first above written.
COMDISCO HOLDING COMPANY, INC.
(on behalf of itself and each of its Reorganized Debtors)
By: /s/ Ronald C. Mishler
---------------------
Name: Ronald C. Mishler
Title: Chairman, Chief Executive
Officer and President
INITIAL DISBURSING AGENT
By: /s/ Randolph I. Thornton
------------------------
Name: Randolph I. Thornton
Title: Initial Disbursing Agent
AMERICAN EXPRESS TAX AND SUCCESSOR DISBURSING AGENT
BUSINESS SERVICES, INC.
By: /s/ Scott P. Peltz By: /s/ Scott P. Peltz
------------------ ------------------
Name: Scott P. Peltz Name: Scott P. Peltz
Title: Transition Services Firm Title: Successor Disbursing Agent