As filed with the Securities and Exchange Commission on January 8, 1997
Registration No. 333-____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
------------------------------
ARROW ELECTRONICS, INC.
(Exact name of registrant as specified in its charter)
New York 11-1806155
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
25 Hub Drive
Melville, New York 11747
(516) 391-1300
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
------------------------------
Robert E. Klatell
Executive Vice President
Arrow Electronics, Inc.
25 Hub Drive
Melville, New York 11747
(516) 391-1300
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copies To:
Howard S. Kelberg, Esq. Francis J. Morison, Esq.
Winthrop, Stimson, Putnam & Roberts Davis Polk & Wardwell
One Battery Park Plaza 450 Lexington Avenue
New York, New York 10004 New York, New York 10017
(212) 858-1000 (212) 450-4000
------------------------------
Approximate date of commencement of proposed sale to the public: From
time to time after this registration statement becomes effective:
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
|-|
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box. |_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Title of Class of Proposed Maximum Proposed Maximum
Securities to be Amount to be Offering Price Aggregate Offering Amount of
Registered Registered<F1> Per Unit<F2> Price <F1><F2> Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities............ $500,000,000 100% $500,000,000 $151,516
====================================================================================================================================
<FN>
<F1>Or the equivalent amount of any securities denominated in a foreign currency
or composite currency.
<F2>Exclusive of accrued interest, if any, and estimated solely for the purpose
of calculating the registration fee.
The Registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date
until the Registrant shall file a further amendment that specifically states
that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act or until the
registration statement shall become effective on such date as the Securities and
Exchange Commission, acting pursuant to Section 8(a), may determine.
================================================================================
</FN>
</TABLE>
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any State.
PROSPECTUS (Subject to Completion Dated January 8, 1997)
$500,000,000
ARROW ELECTRONICS, INC.
Debt Securities
--------------
Arrow Electronics, Inc. (the "Company") intends to issue from
time to time up to $500,000,000 (or the equivalent in foreign currency or
composite currency) aggregate principal amount of its debt securities (the "Debt
Securities"), or if any Debt Securities are issued at an original issue
discount, such greater amount as shall result in net proceeds to the Company of
$500,000,000, which will be offered to the public on terms determined by market
conditions at the time of sale. The Debt Securities may be issued in one or more
series with the same or various maturities at par, at a premium or with an
original issue discount. When particular Debt Securities are offered, a
prospectus supplement (a "Prospectus Supplement"), together with this
Prospectus, will be delivered setting forth the terms of such Debt Securities,
including, where applicable, the specific designation, aggregate principal
amount, denominations, maturity, rate of interest (or manner of calculation
thereof) and time of payment thereof, any redemption provisions, the initial
public offering price and any other specific terms in connection with the
offering and sale of such Debt Securities. The Debt Securities will be unsecured
and unsubordinated obligations of the Company ranking pari passu with all
existing and future unsecured and unsubordinated obligations of the Company. The
Debt Securities will be represented by global certificates (each, a "Registered
Global Security") registered in the name of a nominee of The Depository Trust
Company, New York, New York (the "Depositary"). Beneficial interests in the Debt
Securities will be shown on, and transfers thereof will be effected only
through, records maintained by the Depositary (with respect to participants'
interests) and its participants. Except as described in this Prospectus, Debt
Securities in certificated form will not be issued in exchange for Registered
Global Securities.
--------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------
This Prospectus may not be used to consummate sales of Debt
Securities unless accompanied by a Prospectus Supplement. The Company may sell
Debt Securities through underwriters, dealers or agents, or directly to one or
more purchasers. The applicable Prospectus Supplement will set forth the names
of underwriters, dealers or agents, if any, any applicable commissions or
discounts and the net proceeds to the Company from any such sale. See "Plan of
Distribution" for possible indemnification arrangements for underwriters,
dealers, agents and purchasers.
--------------
The date of this Prospectus is January __,1997.
<PAGE>
No person is authorized in connection with the offering made hereby to give any
information or to make any representation not contained in this Prospectus, and
if given or made, such information or representation must not be relied upon as
having been authorized by the Company. This Prospectus does not constitute an
offer to sell or a solicitation of an offer to buy any security other than the
Debt Securities offered hereby to any person in any jurisdiction in which it is
unlawful to make any such offer or solicitation to such person. Neither the
delivery of this Prospectus nor any sale made hereby shall under any
circumstances imply that the information contained herein is correct as of any
date subsequent to the date hereof.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE DEBT
SECURITIES OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN
THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED IN THE OVER-THE-COUNTER
MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY
TIME.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (together with all amendments thereto,
the "Registration Statement") on Form S-3 under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Debt Securities offered
hereby. This Prospectus, filed as a part of the Registration Statement, does not
contain all the information set forth in the Registration Statement, certain
portions of which have been omitted as permitted by the rules and regulations of
the Commission. In addition, certain documents filed by the Company with the
Commission have been incorporated herein by reference. See "Incorporation of
Certain Information by Reference." For further information regarding the Company
and the Debt Securities offered hereby, reference is made to the Registration
Statement, including the exhibits and schedules thereto and the documents
incorporated herein by reference. The Company is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith, files reports, proxy statements and other
information with the Commission. Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities
maintained by the Commission, at 450 Fifth Street, N.W., Judiciary Plaza,
Washington, D.C. 20549; and at the regional offices of the Commission at
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661- 2511 and at 7 World Trade Center, 13th Floor, New York, New York
10048. Copies of such materials can also be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. The Commission maintains a Web site that contains reports,
proxy and information statements and other information regarding reporting
companies under the Exchange Act, including the Company, at http://www.sec.gov.
The Common Stock of the Company is listed on the New York Stock Exchange.
Reports, proxy statements and other information concerning the Company can also
be inspected and copied at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, the Company's Quarterly Report on Form 10-Q for the period
ended March 31, 1996, the Company's Quarterly Report on Form 10-Q for the period
ended June 30, 1996, the Company's Quarterly Report on Form 10-Q for the period
ended September 30, 1996 and the Company's Current Report on Form 8-K dated
December 20, 1996 are hereby incorporated by reference.
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of this Prospectus
and prior to the termination of the offering of the Debt Securities shall be
deemed to be incorporated by reference in this Prospectus and be a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference in this Prospectus shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained in this Prospectus, or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference, modifies or replaces such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified, to constitute a part
of this Prospectus.
-2-
<PAGE>
The Company undertakes to provide without charge to each person to whom
a copy of this Prospectus has been delivered, upon written or oral request of
any such person, a copy of any or all of the documents incorporated by reference
herein, other than exhibits to such documents, unless such exhibits are
specifically incorporated by reference into the information that this Prospectus
incorporates. Written or oral requests for such copies should be directed to:
Arrow Electronics, Inc., 25 Hub Drive, Melville, New York 11747, or by telephone
at (516) 391-1300.
THE COMPANY
The Company is the world's largest distributor of electronic components
and computer products to industrial and commercial customers. As the global
electronics distribution industry's leader in state-of-the-art operating
systems, employee productivity, value-added programs and total quality
assurance, the Company is the distributor of choice for over 500 suppliers.
The Company's global distribution network spans the world's three
dominant electronics markets - North America, Europe and the Asia/Pacific
region. The Company is the largest electronics distributor in each of these
vital industrialized regions, serving a diversified base of original equipment
manufacturers, including manufacturers of computer and office products,
industrial equipment (including machine tools, factory automation, and robotic
equipment), telecommunications products, aircraft and aerospace equipment, and
scientific and medical devices. Commercial customers are mainly value-added
resellers of computer systems. The Company maintains 162 sales facilities and 17
distribution centers in 31 countries.
The Company's principal executive offices are located at 25 Hub Drive,
Melville, New York 11747, telephone (516) 391-1300.
<TABLE>
<CAPTION>
RATIO OF EARNINGS TO FIXED CHARGES
====================================================================================================================================
Nine
Months
Ended
Year Ended December 31, Sept.30,
- ------------------------------------------------------------------------------------------------------------------------------------
1991 1992 1993 1994 1995 1996
---------- ---------- --------- ---------- ----------- --------
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges 2.5 4.8 7.0 6.0(a) 7.7 8.3
====================================================================================================================================
(a) Excluding the special charges of $45.3 million associated with the
acquisition and integration of Gates/FA Distributing, Inc. and Anthem
Electronics, Inc., the ratio of earnings to fixed charges was 7.1.
</TABLE>
USE OF PROCEEDS
Except as may be set forth in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Debt Securities for
general corporate purposes.
-3-
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture (the "Indenture")
between the Company and Bank of Montreal Trust Company, as trustee (the
"Trustee"). The following description of certain provisions of the Indenture and
the Debt Securities summarizes the material terms thereof but does not purport
to be complete, and such summaries are subject to the detailed provisions of the
Indenture to which reference is hereby made, including the definition of certain
terms used herein and those terms made a part of the Indenture by reference to
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and for
other information regarding the Debt Securities. The Indenture has been
incorporated by reference as an exhibit to the Registration Statement of which
this Prospectus is a part. Numerical references in parentheses below are to
sections in the Indenture. Wherever particular sections or defined terms of the
Indenture are referred to, such sections or defined terms are incorporated
herein by reference as part of the statement made, and the statement is
qualified in its entirety by such reference. Capitalized terms that are used and
not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
General
The Indenture provides for the issuance from time to time of
debentures, notes (including the Debt Securities) or other evidences of
indebtedness by the Company (the "Securities") in an unlimited amount pursuant
to an indenture supplemental to the Indenture or a Board Resolution, or in an
Officer's Certificate pursuant to such supplemental indenture or Board
Resolution. (Section 2.3) Additional Securities may be issued under the
Indenture from time to time.
The Debt Securities may be issued in one or more series with the same
or various maturities, at par, at a premium or with an original issue discount.
Reference is made to the applicable Prospectus Supplement relating to the
particular series of Debt Securities offered thereby for the following terms of
the Debt Securities: (i) the designation of the Securities of the series, which
shall distinguish the Securities of the series from the Securities of all other
series; (ii) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under the Indenture and any
limitation on the ability of the Company to increase such aggregate principal
amount after the initial issuance of the Securities of that series; (iii) the
date or dates on which the Principal of the Securities of the series is payable
(which date or dates may be fixed or extendible); (iv) the rate or rates (which
may be fixed or variable) per annum at which the Securities of the series shall
bear interest, if any, the date or dates from which such interest shall accrue,
on which such interest shall be payable and (in the case of Registered
Securities (which is defined as any Security registered on the Security
Register)) on which a record shall be taken for the determination of Holders to
whom interest is payable and/or the method by which such rate or rates or date
or dates shall be determined; (v) if other than as provided in the Indenture,
the place or places where the Principal of and any interest on Securities of the
series shall be payable, any Registered Securities of the series may be
surrendered for exchange, notices, demands to or upon the Company in respect of
the Securities of the series and the Indenture may be served and notice to
Holders may be published; (vi) the right, if any, of the Company to redeem
Securities of the series, in whole or in part, at its option and the period or
periods within which, the price or prices at which and any terms and conditions
upon which Securities of the series may be so redeemed pursuant to any sinking
fund or otherwise; (vii) the obligation, if any, of the Company to redeem,
purchase or repay Securities of the series pursuant to any mandatory redemption,
sinking fund or analogous provisions or at the option of a Holder thereof and
the price or prices at which and the period or periods within which and any of
the terms and conditions upon which Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation; (viii) if
other than denominations of $1,000 and any integral multiple thereof, the
denominations in which Securities of the series shall be issuable; (ix) if other
than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon acceleration of the
maturity thereof; (x) if other than the coin or currency in which the Securities
of the series are denominated, the coin or currency in which payment of the
Principal of or interest on the Securities of the series shall be payable or if
the amount of payments of Principal of and/or interest on the Securities of the
series may be determined with reference to an index based on a coin or currency
other than that in which the Securities of the series are denominated, the
manner in which such amounts shall be determined; (xi) if other than the
currency of the United States of America, the currency or currencies, including
composite currencies, in which payment of the Principal of and interest on the
Securities of the series shall be payable, and the manner in which any such
-4-
<PAGE>
currencies shall be valued against other currencies in which any other
Securities shall be payable; (xii) whether the Securities of the series or any
portion thereof will be issuable as Registered Securities (and if so, whether
such Securities will be issuable as Registered Global Securities) or
Unregistered Securities (which is defined as any Security other than a
Registered Security) (with or without coupons), or any combination of the
foregoing, any restrictions applicable to the offer, sale or delivery of
Unregistered Securities or the payment of interest thereon and, if other than as
provided in the Indenture, the terms upon which Unregistered Securities of any
series may be exchanged for Registered Securities of such series and vice versa;
(xiii) whether and under what circumstances the Company will pay additional
amounts on the Securities of the series held by a person who is not a U.S.
person in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether the Company will have the option to redeem such
Securities rather than pay such additional amounts; (xiv) if the Securities of
the series are to be issuable in definitive form (whether upon original issue or
upon exchange of a temporary Security of such series) only upon receipt of
certain certificates or other documents or satisfaction of other conditions, the
form and terms of such certificates, documents or conditions; (xv) any trustees,
depositaries, authenticating or paying agents, transfer agents or the registrar
or any other agents with respect to the Securities of the series; (xvi)
provisions, if any, for the defeasance of the Securities of the series
(including provisions permitting defeasance of less than all Securities of the
series), which provisions may be in addition to, in substitution for, or in
modification of (or any combination of the foregoing) the provisions of the
Indenture; (xvii) if the Securities of the series are issuable in whole or in
part as one or more Registered Global Securities, the identity of the depositary
for such Registered Global Security or Securities (which depositary shall, at
the time of its designation as depositary and at all times while it serves as
depositary, be a clearing agency registered under the Exchange Act and any other
applicable statute or regulation) if other than the Depositary; (xviii) any
other events of default or covenants with respect to the Securities of the
series in addition to the events of default or covenants set forth in the
Indenture; and (xix) any other terms of the Securities of the series (which
terms shall not be inconsistent with the provisions of the Indenture).
The Indenture does not contain any restriction on the payment of
dividends or, except as set forth under "--Certain Covenants," any financial
covenants. The Indenture does not contain provisions which would afford the
Holders of the Debt Securities protection in the event of a transfer of assets
to a subsidiary and incurrence of unsecured debt by such subsidiary, or in the
event of a decline in the Company's credit quality resulting from highly
leveraged or other similar transactions involving the Company.
The Debt Securities will be unsubordinated and unsecured obligations of
the Company ranking pari passu with all existing and future unsubordinated and
unsecured obligations of the Company. Claims of Holders of Debt Securities will
be effectively subordinated to the claims of holders of debt of the Company's
subsidiaries with respect to the assets of such subsidiaries. In addition,
claims of Holders of Debt Securities will be effectively subordinated to the
claims of holders of secured debt of the Company and its subsidiaries with
respect to the collateral securing such claims. Claims of the Company as the
holder of general unsecured intercompany debt will be similarly effectively
subordinated to claims of holders of secured debt of its subsidiaries.
Registered Global Securities
Unless otherwise specified in the applicable Prospectus Supplement, the
Depositary will act as securities depository for the Securities, including the
Debt Securities. The Securities will be issued only as Registered Global
Securities registered in the name of Cede & Co. (the Depositary's partnership
nominee). One or more Registered Global Securities will be issued for the
Securities representing the aggregate principal amount of such series of
Securities and will be deposited with the Depositary.
The Depositary is a limited-purpose trust company organized under the
New York Banking Law, a "banking organization" within the meaning of the New
York Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code, and a
"clearing agency" registered pursuant to the provisions of Section 17A of the
Exchange Act. The Depositary holds securities that its participants (the "Direct
Participants") deposit with the Depositary. The Depositary also facilitates the
settlement among Direct Participants of securities transactions, such as
transfers and pledges, in deposited securities through electronic computerized
book-entry changes in Direct Participants' accounts, thereby eliminating the
need for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. The Depositary is owned by a
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<PAGE>
number of its Direct Participants and by The New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the Depositary's system is also available to others such
as securities brokers and dealers, banks and trust companies that clear through
or maintain a custodial relationship with a Direct Participant, either directly
or indirectly (the "Indirect Participants," and together with the Direct
Participants, the "Participants"). The rules applicable to the Depositary and
its Participants are on file with the Commission.
Purchases of Securities within the Depositary's system must be made by
or through Direct Participants, which will receive a credit for the Securities
on the Depositary's records. The ownership interest of each actual purchaser of
each Security (a "Beneficial Owner") is in turn to be recorded on the Direct and
Indirect Participants' respective records. Beneficial Owners will not receive
written confirmation from the Depositary of their purchase, but Beneficial
Owners are expected to receive written confirmations providing details of the
transaction, as well as periodic statements of their holdings, from the Direct
or Indirect Participant through which the Beneficial Owner entered into the
transaction. Transfers of ownership interest in the Securities are to be
accomplished by entries made on the books of Participants acting on behalf of
Beneficial Owners. Beneficial Owners will not receive certificates representing
their ownership interest in Securities except in the event that use of the
book-entry system for the Securities is discontinued.
To facilitate subsequent transfers, all Securities deposited by Direct
Participants with the Depositary are registered in the name of the Depositary's
partnership nominee, Cede & Co. The deposit of the Securities with the
Depositary and their registration in the name of Cede & Co. effect no change in
beneficial ownership. The Depositary has no knowledge of the actual Beneficial
Owners of the Securities; the Depositary's records reflect only the identity of
the Direct Participants to whose accounts such Securities are credited, which
may or may not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by the Depositary to
Direct Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners will be
governed by arrangements among them, subject to any statutory or regulatory
requirements as may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Securities of an issue are being redeemed, the Depositary's practice is to
determine by lot the amount of the interest of each Direct Participant in such
series to be redeemed.
Neither the Depositary nor Cede & Co. will consent or vote with respect
to the Securities. Under its usual procedures, the Depositary mails an omnibus
proxy (an "Omnibus Proxy") to the Participants as soon as possible after the
record date. The Omnibus Proxy assigns Cede & Co.'s consenting or voting rights
to those Direct Participants to whose accounts the Securities are credited on
the record date (identified in a listing attached to the Omnibus Proxy).
Principal, premium, if any, and interest payments on the Securities
will be made to the Depositary. The Depositary's practice is to credit Direct
Participants' accounts on the relevant payment date in accordance with their
respective holdings shown on the Depositary's records unless the Depositary has
reason to believe that it will not receive payment on such payment date.
Payments by participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with securities for the
accounts of customers in bearer form or registered in "street-name," and will be
the responsibility of such participant and not of the Depositary, the
underwriters, or the Company, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of Principal,
redemption premium, if any, and interest to the Depositary is the responsibility
of the Company or the respective trustees. Disbursement of such payments to
Direct Participants is the responsibility of the Depositary, and disbursement of
such payments to the Beneficial Owners is the responsibility of Direct and
Indirect Participants. Registered Global Securities will settle in immediately
available funds in the secondary trading market. No assurance can be given as to
the effect, if any, of settlement in immediately available funds on trading
activity in the Securities.
-6-
<PAGE>
The Depositary may discontinue providing its services as securities
depository with respect to the Securities at any time by giving reasonable
notice to the Company. Under such circumstances and in the event that a
successor securities depository is not obtained, Securities certificates are
required to be printed and delivered. In addition, the Company may decide to
discontinue use of the system of book-entry transfers through the Depositary (or
a successor securities depository). In that event, Securities certificates will
be printed and delivered.
The Company will not have any responsibility or obligation to
Participants or the persons for whom they act as nominees with respect to the
accuracy of the records of the Depositary, its nominee or any Direct or Indirect
Participant with respect to any ownership interest in the Securities, or with
respect to payments to or providing of notice for the Direct Participants, the
Indirect Participants or the Beneficial Owners.
So long as Cede & Co. is the registered owner of the Securities, as
nominee of the Depositary, references herein to Holders of the Securities shall
mean Cede & Co. or the Depositary and shall not mean the Beneficial Owners of
the Securities.
The information in this section concerning the Depositary and the
Depositary's book-entry system has been obtained from the Depositary. Neither
the Company, the Trustee nor the underwriters, dealers or agents takes
responsibility for the accuracy or completeness thereof.
Certain Covenants
The following covenants apply to all series of Securities, including
the Debt Securities:
Restrictions on Liens. The Indenture provides that the Company will
not, and will not permit any Restricted Subsidiary (as defined herein) to,
create or incur any Lien (as defined herein) on any shares of stock,
indebtedness or other obligations of a Restricted Subsidiary (as defined herein)
or any Principal Property (as defined herein) of the Company or a Restricted
Subsidiary, whether such shares of stock, indebtedness or other obligations of a
Restricted Subsidiary or Principal Property are owned at the date of the
Indenture or thereafter acquired, unless the Company secures or causes such
Restricted Subsidiary to secure the outstanding Securities equally and ratably
with (or, at the Company's option, prior to) all indebtedness secured by such
Lien, so long as such indebtedness shall be so secured. This covenant shall not
apply in the case of: (i) the creation of any Lien on any shares of stock,
indebtedness or other obligations of a Subsidiary or any Principal Property
acquired after the date of the Indenture (including acquisitions by way of
merger or consolidation) by the Company or a Restricted Subsidiary
contemporaneously with such acquisition, or within 180 days thereafter, to
secure or provide for the payment or financing of any part of the purchase price
thereof, or the assumption of any Lien upon any shares of stock, indebtedness or
other obligations of a Subsidiary or any Principal Property acquired after the
date of the Indenture existing at the time of such acquisition, or the
acquisition of any shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property subject to any Lien without the assumption
thereof, provided that every such Lien referred to in this clause (i) shall
attach only to the shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property so acquired and fixed improvements thereon;
(ii) any Lien on any shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property existing at the date of the Indenture;
(iii) any Lien on any shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property in favor of the Company or any Restricted
Subsidiary; (iv) any Lien on any Principal Property being constructed or
improved securing loans to finance such construction or improvements; (v) any
Lien on shares of stock, indebtedness or other obligations of a Subsidiary or
any Principal Property incurred in connection with the issuance of tax-exempt
governmental obligations (including, without limitation, industrial revenue
bonds and similar financings); (vi) any mechanics', materialmen's, carriers' or
other similar Liens arising in the ordinary course of business with respect to
obligations that are not yet due or that are being contested in good faith;
(vii) any Lien on any shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property for taxes, assessments or governmental
charges or levies not yet delinquent, or already delinquent but the validity of
which is being contested in good faith; (viii) any Lien on any shares of stock,
indebtedness or other obligations of a Subsidiary or any Principal Property
arising in connection with legal proceedings being contested in good faith,
including any judgment Lien so long as execution thereon is stayed; (ix) any
landlord's Lien on fixtures located on premises leased by the Company or a
Restricted Subsidiary in the ordinary course of business, and tenants' rights
under leases, easements and similar Liens not materially impairing the use or
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value of the property involved; (x) any Lien arising by reason of deposits
necessary to qualify the Company or any Restricted Subsidiary to conduct
business, maintain self-insurance, or obtain the benefit of, or comply with, any
law; (xi) Liens on current assets of the Company to secure loans to the Company
that mature within twelve months from the creation thereof and that are made in
the ordinary course of business; and (xii) any renewal of or substitution for
any Lien permitted by any of the preceding clauses (i) through (xi), provided,
in the case of a Lien permitted under clause (i), (ii) or (iv), the indebtedness
secured is not increased nor the Lien extended to any additional assets.
(Section 4.3(a)) Notwithstanding the foregoing, the Company or any Restricted
Subsidiary may create or assume Liens in addition to those permitted by the
preceding sentence of this paragraph, and renew, extend or replace such Liens,
provided that at the time of such creation, assumption, renewal, extension or
replacement, and after giving effect thereto, Exempted Debt (as defined herein)
does not exceed 15% of Consolidated Net Tangible Assets (as defined herein).
(Section 4.3(b))
Restrictions on Sale and Lease-Back Transactions. The Indenture
provides that the Company will not, and will not permit any Restricted
Subsidiary to, sell or transfer, directly or indirectly, except to the Company
or a Restricted Subsidiary, any Principal Property as an entirety, or any
substantial portion thereof, with the intention of taking back a lease of such
property, except a lease for a period of three years or less at the end of which
it is intended that the use of such property by the lessee will be discontinued;
provided that, notwithstanding the foregoing, the Company or any Restricted
Subsidiary may sell any such Principal Property and lease it back for a longer
period (i) if the Company or such Restricted Subsidiary would be entitled,
pursuant to the provisions of Section 4.3(a) described above under
"--Restrictions on Liens," to create a Lien on the property to be leased
securing Funded Debt (as defined herein) in an amount equal to the Attributable
Debt (as defined herein) with respect to such sale and lease-back transaction
without equally and ratably securing the outstanding Securities or (ii) if (A)
the Company promptly informs the Trustee of such transaction, and (B) the
Company causes an amount equal to the fair value (as determined by Board
Resolution of the Company) of such property to be applied (1) to the purchase of
other property that will constitute Principal Property having a fair value at
least equal to the fair value of the property sold, or (2) to the retirement
within 120 days after receipt of such proceeds, of Funded Debt incurred or
assumed by the Company or a Restricted Subsidiary (including the Securities);
provided further that, in lieu of applying all of or any part of such net
proceeds to such retirement, the Company may, within 75 days after such sale,
deliver or cause to be delivered to the applicable trustee for cancellation
either debentures or notes evidencing Funded Debt of the Company (which may
include the Securities) or of a Restricted Subsidiary previously authenticated
and delivered by the applicable trustee, and not theretofore tendered for
sinking fund purposes or called for a sinking fund or otherwise applied as a
credit against an obligation to redeem or retire such notes or debentures, and
an Officer's Certificate (which shall be delivered to the Trustee) stating that
the Company elects to deliver or cause to be delivered such debentures or notes
in lieu of retiring Funded Debt as hereinabove provided. If the Company shall so
deliver debentures or notes to the applicable trustee and the Company shall duly
deliver such Officer's Certificate, the amount of cash that the Company shall be
required to apply to the retirement of Funded Debt under this provision of the
Indenture shall be reduced by an amount equal to the aggregate of the then
applicable optional redemption prices (not including any optional sinking fund
redemption prices) of such debentures or notes, or, if there are no such
redemption prices, the principal amount of such debentures or notes; provided,
that in the case of debentures or notes that provide for an amount less than the
principal amount thereof to be due and payable upon a declaration of the
maturity thereof, such amount of cash shall be reduced by the amount of
principal of such debentures or notes that would be due and payable as of the
date of such application upon a declaration of acceleration of the maturity
thereof pursuant to the terms of the indenture pursuant to which such debentures
or notes were issued. (Section 4.4(a)) Notwithstanding the foregoing, the
Company or any Restricted Subsidiary may enter into sale and lease-back
transactions in addition to those permitted by this paragraph without any
obligation to retire any outstanding Securities or other Funded Debt, provided
that at the time of entering into such sale and lease-back transactions and
after giving effect thereto, Exempted Debt does not exceed 15% of Consolidated
Net Tangible Assets. (Section 4.4(b))
Certain Definitions
The term "Attributable Debt" as defined in the Indenture means when
used in connection with a sale and lease-back transaction referred to above
under "--Certain Covenants--Restrictions on Sale and Lease-Back Transactions,"
on any date as of which the amount thereof is to be determined, the product of
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(i) the net proceeds from such sale and lease-back transaction multiplied by
(ii) a fraction, the numerator of which is the number of full years of the term
of the lease relating to the property involved in such sale and lease-back
transaction (without regard to any options to renew or extend such term)
remaining on the date of the making of such computation and the denominator of
which is the number of full years of the term of such lease measured from the
first day of such term.
The term "Consolidated Net Tangible Assets" as defined in the Indenture
means total assets after deducting therefrom all current liabilities and
intangible assets as set forth in the most recent balance sheet of the Company
and its consolidated Subsidiaries and computed in accordance with GAAP.
The term "Exempted Debt" as defined in the Indenture means the sum,
without duplication, of the following items outstanding as of the date Exempted
Debt is being determined: (i) indebtedness of the Company and its Restricted
Subsidiaries incurred after the date of the Indenture and secured by liens
created or assumed or permitted to exist pursuant to Section 4.3(b) of the
Indenture described above under "--Certain Covenants--Restrictions on Liens" and
(ii) Attributable Debt of the Company and its Restricted Subsidiaries in respect
of all sale and lease-back transactions with regard to any Principal Property
entered into pursuant to Section 4.4(b) of the Indenture described above under
"--Certain Covenants--Restrictions on Sale and Lease-Back Transactions."
The term "Funded Debt" as defined in the Indenture means all
indebtedness for money borrowed, including purchase money indebtedness, having a
maturity of more than one year from the date of its creation or having a
maturity of less than one year but by its terms being renewable or extendible,
at the option of the obligor in respect thereof, beyond one year from the date
of its creation.
The terms "Holder" or "Securityholder" as defined in the Indenture mean
the registered holder of any Security with respect to Registered Securities and
the bearer of any Unregistered Security or any coupon appertaining thereto, as
the case may be.
The term "Lien" as defined in the Indenture means, with respect to any
asset, any mortgage, lien, pledge, charge, security interest or encumbrance of
any kind, or any other type of preferential arrangement that has the practical
effect of creating a security interest, in respect of such asset. For the
purposes of the Indenture, the Company or any Subsidiary shall be deemed to own
subject to a Lien any asset that it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
The term "Original Issue Discount Security" as defined in the Indenture
means any Security that provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the maturity
thereof pursuant to Section 6.2 of the Indenture.
The term "Principal Property" as defined in the Indenture means any
manufacturing or processing plant or warehouse owned at the date hereof or
hereafter acquired by the Company or any Restricted Subsidiary of the Company
which is located within the United States and the gross book value of which
(including related land and improvements thereon and all machinery and equipment
included therein without deduction of any depreciation reserves) on the date as
of which the determination is being made exceeds 2% of Consolidated Net Tangible
Assets, other than (i) any such manufacturing or processing plant or warehouse
or any portion thereof (together with the land on which it is erected and
fixtures comprising a part thereof) which is financed by industrial development
bonds which are tax exempt pursuant to Section 103 of the Internal Revenue Code
(or which receive similar tax treatment under any subsequent amendments thereto
or any successor laws thereof or under any other similar statute of the United
States), (ii) any property which in the opinion of the Company's Board of
Directors is not of material importance to the total business conducted by the
Company as an entirety, or (iii) any portion of a particular property which is
similarly found not to be of material importance to the use or operation of such
property.
The term "Restricted Subsidiary" as defined in the Indenture means a
Subsidiary of the Company (i) substantially all the property of which is
located, or substantially all the business of which is carried on, within the
United States, and (ii) which owns Principal Property; provided, however, that
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any Subsidiary may be declared a Restricted Subsidiary by Board Resolution,
effective as of the date such Board Resolution is adopted; provided further,
that any such declaration may be rescinded by further Board Resolution,
effective as of the date such further Board Resolution is adopted.
The term "Subsidiary" as defined in the Indenture means with respect to
any Person, any corporation, association or other business entity of which more
than 50% of the outstanding Voting Stock is owned, directly or indirectly, by
such Person and one or more other Subsidiaries of such Person.
Restrictions on Mergers and Sales of Assets
Under the Indenture, the Company shall not consolidate with, merge with
or into, or sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets (in one transaction or a series of
related transactions) to, any Person (other than a consolidation with or merger
with or into a Subsidiary or a sale, conveyance, transfer, lease or other
disposition to a Subsidiary) or permit any Person to merge with or into the
Company unless: (i) either (A) the Company shall be the continuing Person or (B)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or that acquired or leased such property and assets
of the Company shall be a corporation organized and validly existing under the
laws of the United States of America or any jurisdiction thereof and shall
expressly assume, by a supplemental indenture, executed and delivered to the
Trustee, all of the obligations of the Company on all of the Securities and
under the Indenture and the Company shall have delivered to the Trustee an
Opinion of Counsel stating that such consolidation, merger or transfer and such
supplemental indenture complies with the Indenture and that all conditions
precedent provided for in the Indenture relating to such transaction have been
complied with and that such supplemental indenture constitutes the legal, valid
and binding obligation of the Company or such successor enforceable against such
entity in accordance with its terms, subject to customary exceptions; and (ii)
an Officers' Certificate to the effect that immediately after giving effect to
such transaction, no Default shall have occurred and be continuing and an
Opinion of Counsel as to the matters set forth in clause (i) shall have been
delivered to the Trustee. (Section 5.1)
Events of Default
Events of Default defined in the Indenture with respect to the
Securities of any series are: (i) the Company defaults in the payment of the
Principal of any Security of such series when the same becomes due and payable
at maturity, upon acceleration, redemption or mandatory repurchase, including as
a sinking fund installment, or otherwise; (ii) the Company defaults in the
payment of interest on any Security of such series when the same becomes due and
payable, and such default continues for a period of 30 days; (iii) the Company
defaults in the performance of or breaches any other covenant or agreement of
the Company in the Indenture with respect to any Security of such series or in
the Securities of such series and such default or breach continues for a period
of 30 consecutive days after written notice to the Company by the Trustee or to
the Company and the Trustee by the Holders of 25% or more in aggregate principal
amount of the Securities of all series affected thereby; (iv) an involuntary
case or other proceeding shall be commenced against the Company or any
Restricted Subsidiary with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, and such involuntary
case or other proceeding shall remain undismissed and unstayed for a period of
60 days; or an order for relief shall be entered against the Company or any
Restricted Subsidiary under the federal bankruptcy laws as now or hereafter in
effect; (v) the Company or any Restricted Subsidiary (A) commences a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (B) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Restricted Subsidiary or
for all or substantially all of the property and assets of the Company or any
Restricted Subsidiary or (C) effects any general assignment for the benefit of
creditors; or (vi) any other Event of Default established with respect to any
series of Securities issued pursuant to the Indenture occurs.
(Section 6.1)
The Indenture provides that if an Event of Default described in clauses
(i) or (ii) of the immediately preceding paragraph with respect to the
Securities of any series then outstanding occurs and is continuing, then, and
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in each and every such case, except for any series of Securities the Principal
of which shall have already become due and payable, either the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities of
any such affected series then outstanding under the Indenture (each such series
treated as a separate class) by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the entire Principal (or, if
the Securities of any such series are Original Issue Discount Securities, such
portion of the Principal amount as may be specified in the terms of such series
established pursuant to the Indenture) of all Securities of such affected
series, and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable. If an Event of Default described in clauses (iii) or (vi) of the
immediately preceding paragraph with respect to the Securities of one or more
but not all series then outstanding, or with respect to the Securities of all
series then outstanding, occurs and is continuing, then, and in each and every
such case, except for any series of Securities the Principal of which shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount (or, if the Securities of any such series
are Original Issue Discount Securities, the amount thereof accelerable as
described in this paragraph) of the Securities of all such affected series then
outstanding under the Indenture (treated as a single class) by notice in writing
to the Company (and to the Trustee if given by Securityholders), may declare the
entire Principal (or, if the Securities of any such series are Original Issue
Discount Securities, such portion of the Principal amount as may be specified in
the terms of such series established pursuant to the Indenture) of all
Securities of all such affected series, and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable. If an Event of Default described in
clause (iv) or (v) of the immediately preceding paragraph occurs and is
continuing, then the principal amount (or, if any Securities are Original Issue
Discount Securities, such portion of the Principal as may be specified in the
terms of such series established pursuant to the Indenture) of all the
Securities then outstanding and interest accrued thereon, if any, shall be and
become immediately due and payable, without any notice or other action by any
Holder or the Trustee to the full extent permitted by applicable law. Upon
certain conditions such declarations may be rescinded and annulled and past
defaults may be waived by the Holders of a majority in Principal of the then
outstanding Securities of all such series that have been accelerated (voting as
a single class). (Section 6.2)
The Indenture contains a provision under which, subject to the duty of
the Trustee during a default to act with the required standard of care, (i) the
Trustee may rely and shall be protected in acting or refraining from acting upon
any resolution, certificate, Officers' Certificate, Opinion of Counsel (or
both), statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence or indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper person or persons and the Trustee need not investigate
any fact or matter stated in the document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it
may see fit; (ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and/or an Opinion of Counsel, which shall
conform to the requirements of the Indenture and the Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
certificate or opinion; subject to the terms of the Indenture, whenever in the
administration of the trusts of the Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action under the Indenture, such matter (unless other
evidence in respect thereof be specifically prescribed in the Indenture) may, in
the absence of negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers' Certificate delivered to
the Trustee, and such certificate, in the absence of negligence or bad faith on
the part of the Trustee, shall be full warrant to the Trustee for any action
taken, suffered or omitted by it under the provisions of the Indenture upon the
faith thereof; (iii) the Trustee may act through its attorneys and agents not
regularly in its employ and shall not be responsible for the misconduct or
negligence of any agent or attorney appointed with due care by it under the
Indenture; (iv) any request, direction, order or demand of the Company mentioned
in the Indenture shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be specifically prescribed in the
Indenture); and any Board Resolution may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company; (v)
the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by the Indenture at the request, order 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; (vi) 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 its rights or powers or for any action it
takes or omits to take in accordance with the direction of the Holders in
accordance with the Indenture relating to the time, method and place of
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conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under the Indenture; (vii) the
Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it under the Indenture in
good faith and in reliance thereon; and (viii) prior to the occurrence of an
Event of Default under the Indenture and after the curing or waiving of all
Events of Default, the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, Officers'
Certificate, Opinion of Counsel, Board Resolution, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine, during
normal business hours and upon prior written notice, books, records and premises
of the Company, personally or by agent or attorney. (Section 7.2)
Subject to various provisions in the Indenture, the Holders of at least
a majority in principal amount (or, if the Securities are Original Issue
Discount Securities, such portion of the Principal as is then accelerable under
the Indenture) of the outstanding Securities of all series affected (voting as a
single class) by notice to the Trustee, may waive, on behalf of the Holders of
all the Securities of such series, an existing Default or Event of Default with
respect to the Securities of such series and its consequences, except a Default
in the payment of Principal of or interest on any Security as specified in
clauses (i) or (ii) of the first paragraph of this section or in respect of a
covenant or provision of the Indenture which cannot be modified or amended
without the consent of the Holder of each outstanding Security affected. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
with respect to the Securities of such series arising therefrom shall be deemed
to have been cured, for every purpose of the Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto. (Section 6.4)
Subject to such provisions in the Indenture for the indemnification of
the Trustee and certain other limitations, the Holders of at least a majority in
aggregate principal amount (or, if any Securities are Original Issue Discount
Securities, such portion of the Principal as is then accelerable under the
Indenture) of the outstanding Securities of all series affected (voting as a
single class), may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series by
the Indenture; provided that the Trustee may refuse to follow any direction that
conflicts with law or the Indenture, that may involve the Trustee in personal
liability, or that the Trustee determines in good faith may be unduly
prejudicial to the rights of Holders not joining in the giving of such
direction; and provided further that the Trustee may take any other action it
deems proper that is not inconsistent with any directions received from Holders
of Securities pursuant to the Indenture. (Section 6.5)
The Indenture provides that no Holder of any Securities of any series
may institute any proceeding, judicial or otherwise, with respect to the
Indenture or the Securities of such series, or for the appointment of a receiver
or trustee, or for any other remedy under the Indenture, unless: (i) such Holder
has previously given to the Trustee written notice of a continuing Event of
Default with respect to the Securities of such series; (ii) the Holders of at
least 25% in aggregate principal amount of outstanding Securities of all such
series affected shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee under
the Indenture; (iii) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against any costs, liabilities
or expenses to be incurred in compliance with such request; (iv) the Trustee for
60 days after its receipt of such notice, request and offer of indemnity has
failed to institute any such proceeding; and (v) during such 60-day period, the
Holders of a majority in aggregate principal amount of the outstanding
Securities of all such affected series have not given the Trustee a direction
that is inconsistent with such written request. A Holder may not use the
Indenture to prejudice the rights of another Holder or to obtain a preference or
priority over such other Holder. (Section 6.6)
The Indenture contains a covenant that the Company will file with the
Trustee, within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports that the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act. (Section 4.6)
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Discharge, Legal Defeasance and Covenant Defeasance
The Indenture provides with respect to each series of Securities that,
except as otherwise provided in this paragraph, the Company may terminate its
obligations under the Securities of a series and the Indenture with respect to
Securities of such series if: (i) all Securities of such series previously
authenticated and delivered, with certain exceptions, have been delivered to the
Trustee for cancellation and the Company has paid all sums payable by it under
the Indenture; or (ii)(A) the Securities of such series mature within one year
or all of them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice of redemption,
(B) the Company irrevocably deposits in trust with the Trustee, as trust funds
solely for the benefit of the Holders of such Securities, for that purpose,
money or U.S. Government Obligations or a combination thereof sufficient (unless
such funds consist solely of money, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee), without consideration of any reinvestment, to
pay Principal of and interest on the Securities of such series to maturity or
redemption, as the case may be, and to pay all other sums payable by it under
the Indenture, and (C) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all conditions
precedent provided for in the Indenture relating to the satisfaction and
discharge of the Indenture with respect to the Securities of such series have
been complied with. With respect to the foregoing clause (i), only the Company's
obligations to compensate and indemnify the Trustee shall survive. With respect
to the foregoing clause (ii), only the Company's obligations to execute and
deliver Securities of such series for authentication, to set the terms of the
Securities of such series, to maintain an office or agency in respect of the
Securities of such series, to have moneys held for payment in trust, to register
the transfer or exchange of Securities of such series, to deliver Securities of
such series for replacement or to be canceled, to compensate and indemnify the
Trustee and to appoint a successor trustee, and its right to recover excess
money held by the Trustee shall survive until such Securities are no longer
outstanding. Thereafter, only the Company's obligations to compensate and
indemnify the Trustee and its right to recover excess money held by the Trustee
shall survive. (Section 8.1)
The Indenture provides that, except as otherwise provided in this
paragraph, the Company (i) will be deemed to have paid and will be discharged
from any and all obligations in respect of the Securities of any series, and the
provisions of the Indenture will no longer be in effect with respect to the
Securities of such series (a "legal defeasance") and (ii) may omit to comply
with any term, provision or condition of the Indenture described above under
"--Certain Covenants" (or any other specific covenant relating to such series
provided for in a Board Resolution or supplemental indenture, or Officer's
Certificate pursuant to such Board Resolution or such supplemental indenture,
that may by its terms be defeased pursuant to the Indenture), and such omission
shall be deemed not to be an Event of Default under clauses (iii) or (vi) of the
first paragraph of "--Events of Default" with respect to the outstanding
Securities of a series (a "covenant defeasance"); provided that the following
conditions shall have been satisfied: (i) the Company has irrevocably deposited
in trust with the Trustee as trust funds solely for the benefit of the Holders
of the Securities of such series, for payment of the Principal of and interest
on the Securities of such series, money or U.S. Government Obligations or a
combination thereof sufficient (unless such funds consist solely of money, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee) without
consideration of any reinvestment and after payment of all federal, state and
local taxes or other charges and assessments in respect thereof payable by the
Trustee, to pay and discharge the Principal of and accrued interest on the
outstanding Securities of such series to maturity or earlier redemption
(irrevocably provided for under arrangements satisfactory to the Trustee), as
the case may be; (ii) such deposit will not result in a breach or violation of,
or constitute a default under, the Indenture or any other material agreement or
instrument to which the Company is a party or by which it is bound; (iii) no
Default with respect to such Securities of such series shall have occurred and
be continuing on the date of such deposit; (iv) the Company shall have delivered
to the Trustee an Opinion of Counsel that the Holders of the Securities of such
series have a valid security interest in the trust funds subject to no prior
liens under the Uniform Commercial Code; and (v) the Company has delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent provided for in the Indenture relating to
the defeasance contemplated have been complied with. In the case of a legal
defeasance, the Company shall have delivered to the Trustee an Opinion of
Counsel (based on a change in law) or a ruling directed to the Trustee from the
United States Internal Revenue Service that the Holders of the Securities of
such series will not recognize income, gain or loss for federal income tax
purposes as a result of the Company's exercise of its option under this
provision of the Indenture and will be subject to federal income tax on the same
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amount and in the same manner and at the same times as would have been the case
if such deposit and defeasance had not occurred, or an instrument, in form
reasonably satisfactory to the Trustee, wherein the Company, notwithstanding a
legal defeasance of its indebtedness in respect of Securities of any series, or
any portion of the principal amount thereof, shall assume the obligation (which
shall be absolute and unconditional) to irrevocably deposit with the Trustee
such additional sums of money, if any, or additional U.S. Government
Obligations, if any, or any combination thereof, at such time or times, as shall
be necessary, together with the money and/or U.S. Government Obligations
theretofore so deposited, to pay when due the Principal of and premium, if any,
and interest due and to become due on such Securities or portions thereof;
provided, however, that such instrument may state that the obligation of the
Company to make additional deposits as aforesaid shall be subject to the
delivery to the Company by the Trustee of a notice asserting the deficiency
accompanied by an opinion of an independent public accountant of nationally
recognized standing, selected by the Trustee, showing the calculation thereof.
Subsequent to a legal defeasance, the Company's obligations to execute and
deliver Securities of such series for authentication, to set the terms of the
Securities of such series, to maintain an office or agency in respect of the
Securities of such series, to have moneys held for payment in trust, to register
the transfer or exchange of Securities of such series, to deliver Securities of
such series for replacement or to be canceled, to compensate and indemnify the
Trustee and to appoint a successor trustee, and its right to recover excess
money held by the Trustee shall survive until such Securities are no longer
outstanding. After such Securities are no longer outstanding, in the case of a
legal defeasance, only the Company's obligations to compensate and indemnify the
Trustee and its right to recover excess money held by the Trustee shall survive.
(Sections 8.2 and 8.3)
Modification of the Indenture
The Indenture provides that the Company and the Trustee may amend or
supplement the Indenture or the Securities of any series without notice to or
the consent of any Holder: (i) to cure any ambiguity, defect or inconsistency in
the Indenture; provided that such amendments or supplements shall not materially
and adversely affect the interests of the Holders; (ii) to comply with Article 5
(which relates to the covenant discussed under "--Restrictions on Mergers and
Sales of Assets") of the Indenture: (iii) to comply with any requirements of the
Commission in connection with the qualification of the Indenture under the Trust
Indenture Act; (iv) to evidence and provide for the acceptance of appointment
under the Indenture with respect to the Securities of any or all series by a
successor Trustee; (v) to establish the form or forms or terms of Securities of
any series or of the coupons appertaining to such Securities as permitted under
the Indenture; (vi) to provide for uncertificated or unregistered Securities and
to make all appropriate changes for such purpose; (vii) to change or eliminate
any provisions of the Indenture with respect to all or any series of the
Securities not then outstanding (and, if such change is applicable to fewer than
all such series of the Securities, specifying the series to which such change is
applicable), and to specify the rights and remedies of the Trustee and the
Holders of such Securities in connection therewith; and (viii) to make any
change that does not materially and adversely affect the rights of any Holder.
(Section 9.1)
The Indenture also contains provisions whereby the Company and the
Trustee, subject to certain conditions, without prior notice to any Holders, may
amend the Indenture and the outstanding Securities of any series with the
written consent of the Holders of a majority in aggregate principal amount of
the Securities then outstanding of all series affected by such supplemental
indenture (all such series voting as one class), and the Holders of a majority
in aggregate principal amount of the outstanding Securities of all series
affected thereby (all such series voting as one class) by written notice to the
Trustee may waive future compliance by the Company with any provision of the
Indenture or the Securities of such series. Notwithstanding the foregoing
provisions, without the consent of each Holder affected thereby, an amendment or
waiver, including a waiver pursuant to Section 6.4 of the Indenture, may not:
(i) extend the stated maturity of the Principal of, or any sinking fund
obligation or any installment of interest on, such Holder's Security, or reduce
the principal amount thereof or the rate of interest thereon (including any
amount in respect of original issue discount), or any premium payable with
respect thereto, or adversely affect the rights of such Holder under any
mandatory redemption or repurchase provision or any right of redemption or
repurchase at the option of such Holder, or reduce the amount of the Principal
of an Original Issue Discount Security that would be due and payable upon the
acceleration of the maturity thereof or the amount thereof provable in
bankruptcy, or change any place of payment where, or the currency in which, any
Security or any premium or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the due
date therefor; (ii) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is required for
any such supplemental indenture or for any waiver of compliance with certain
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<PAGE>
provisions of the Indenture or certain Defaults and their consequences provided
for in the Indenture; (iii) waive a Default in the payment of Principal of or
interest on any Security of such Holder; or (iv) modify any of the provisions of
the Indenture governing supplemental indentures with the consent of
Securityholders, except to increase any such percentage or to provide that
certain other provisions of the Indenture cannot be modified or waived without
the consent of the Holder of each outstanding Security affected thereby. A
supplemental indenture which changes or eliminates any covenant or other
provision of the Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of Holders of Securities of such series with respect to such covenant or
provision, shall be deemed not to affect the rights under the Indenture of the
Holders of Securities of any other series or of the coupons appertaining to such
Securities. It shall not be necessary for the consent of any Holder under this
section of the Indenture to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof. After an amendment, supplement or waiver under
this section of the Indenture becomes effective, the Company or, at the request
of the Company, the Trustee shall give to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. The Company or, at the
request of the Company, the Trustee will mail supplemental indentures to Holders
upon request. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture or waiver. (Section 9.2)
Information Concerning the Trustee
An affiliate of the Bank of Montreal Trust Company participates as a
lender under certain credit agreements of the Company.
PLAN OF DISTRIBUTION
General
The Company may sell the Debt Securities being offered hereby: (i)
directly to purchasers; (ii) through agents; (iii) through dealers; (iv) through
underwriters; or (v) through a combination of any such methods of sale.
The distribution of the Debt Securities may be effected from time to
time in one or more transactions either: (i) at a fixed price or prices which
may be changed; (ii) at market prices prevailing at the time of sale; (iii) at
prices related to such prevailing market prices; or (iv) at negotiated prices.
Offers to purchase the Debt Securities may be solicited directly by the
Company. Offers to purchase Debt Securities may also be solicited by agents
designated by the Company from time to time. Any such agent, who may be deemed
to be an "underwriter" as that term is defined in the Securities Act, involved
in the offer or sale of the Debt Securities in respect of which this Prospectus
is delivered will be named, and any commissions payable by the Company to such
agent will be set forth, in the applicable Prospectus Supplement.
If a dealer is utilized in the sale of the Debt Securities in respect
of which this Prospectus is delivered, the Company will sell such Debt
Securities to the dealer, as principal. The dealer, who may be deemed to be an
"underwriter" as that term is defined in the Securities Act, may then resell
such Debt Securities to the public at varying prices to be determined by such
dealer at the time of resale.
If an underwriter or underwriters are utilized in the sales of the Debt
Securities, the Company will execute an underwriting agreement with such
underwriters at the time of such sale and the name of the underwriters will be
set forth in the applicable Prospectus Supplement, which will be used by the
underwriters to make resales of the Debt Securities in respect of which this
Prospectus is delivered to the public. In connection with the sale of Debt
Securities, such underwriters may be deemed to have received compensation from
the Company in the form of underwriting discounts or commissions and may also
receive commissions from purchasers of Debt Securities for whom they may act as
agents. Underwriters may also sell Debt Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Any underwriting compensation paid by the
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<PAGE>
Company to underwriters in connection with the offering and sale of Debt
Securities, and any discounts, concessions or commissions allowed by
underwriters to participating dealers, will be set forth in the applicable
Prospectus Supplement.
Underwriters, dealers, agents and other persons may be entitled, under
agreements that may be entered into with the Company, to indemnification by the
Company against certain civil liabilities, including liabilities under the
Securities Act. Underwriters and agents may engage in transactions with, or
perform services for, the Company in the ordinary course of business.
Delayed Delivery Arrangements
If so indicated in the applicable Prospectus Supplement, the Company
will authorize underwriters, dealers or other persons to solicit offers by
certain institutions to purchase Debt Securities pursuant to contracts providing
for payment and delivery on a future date or dates. Institutions with which such
contracts may be made include commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable institutions and
others. The obligations of any purchaser under any such contract will not be
subject to any conditions except that (i) the purchase of the Debt Securities
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject and (ii) if the Debt Securities
are also being sold to underwriters, the Company shall have sold to such
underwriters the Debt Securities not sold for delayed delivery. The
underwriters, dealers and such other persons will not have any responsibility in
respect to the validity or performance of such contracts. The applicable
Prospectus Supplement relating to such contracts will set forth the price to be
paid for Debt Securities pursuant to such contracts, the commissions payable for
solicitation of such contracts and the date or dates in the future for delivery
of Debt Securities pursuant to such contracts.
LEGAL OPINIONS
Certain legal matters with respect to the Debt Securities offered
hereby will be passed upon for the Company by Winthrop, Stimson, Putnam &
Roberts, counsel for the Company, and for any underwriters or agents by Davis
Polk & Wardwell.
EXPERTS
The consolidated financial statements of the Company at December 31,
1995 and 1994, and for each of the three years in the period ended December 31,
1995, appearing in its Annual Report on Form 10-K for the fiscal year ended
December 31, 1995, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is a list of the expenses the Registrant expects to pay
in connection with the issuance and distribution of the Debt Securities
registered hereby:
Estimated
Amount
Category of Expense of Expense
Filing and Registration Fees................ $ 151,516
Legal Fees and Expenses*.................... 10,000
Cost of Printing*........................... 15,000
Accounting Fees and Expenses*............... 20,000
Rating Agency Fees.......................... 155,000
Blue Sky Fees and Expenses*................. 3,000
Miscellaneous Expenses*..................... 20.484
------------------
*Total............................. $ 375,000
==================
- ------------------------
* Estimated.
Item 15. Indemnification of Directors and Officers.
Article 9 of the Registrant's Amended and Restated Certificate of
Incorporation permits the indemnification of officers and directors under
certain circumstances to the full extent that such indemnification may be
permitted by law.
Such rights of indemnification are in addition to, and not in
limitation of, any rights to indemnification to which any officer or director of
the Registrant is entitled under the Business Corporation Law of the State of
New York (Sections 721 through 726), which provides for indemnification by a
corporation of its officers and directors under certain circumstances as stated
in the Business Corporation Law and subject to specified limitations set forth
in the Business Corporation Law.
The Registrant also maintains directors' and officers' liability
insurance coverage that insures directors and officers of the Registrant against
certain losses arising from claims made, and for which the Registrant has not
provided reimbursement, by reason of their being directors and officers of the
Registrant, its subsidiaries or its affiliates.
Item 16. Exhibits.
See Exhibit Index.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
II-1
<PAGE>
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement provided, however, that any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to section 13 or section
15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described under Item 15, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Melville, State of New York, on this 8th day of
January, 1997.
ARROW ELECTRONICS, INC.
By: /s/ Robert E. Klatell
_________________________________
Robert E. Klatell
Executive Vice President
POWER OF ATTORNEY
Know all men by these presents, that each officer or director of Arrow
Electronics, Inc. whose signature appears below constitutes and appoints John C.
Waddell, Stephen P. Kaufman and Robert E. Klatell, and each of them singly, his
true and lawful attorney-in-fact and agent, with full and several power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments, including post-effective amendments,
and supplements to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as they or he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent or his or their
substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
Principal Executive Officer:
/s/ Stephen P. Kaufman Chairman and Chief January 8, 1997
- ------------------------------ Executive Officer
Stephen P. Kaufman
Principal Financial Officer:
/s/ Gerald Luterman Senior Vice President January 8, 1997
- ------------------------------ Chief Financial Officer
Gerald Luterman
Principal Accounting Officer:
/s/ Paul J. Reilly Vice President January 8, 1997
- ------------------------------ Controller
Paul J. Reilly
II-3
<PAGE>
Signature Title Date
Directors:
/s/ Daniel W. Duval Director January 8, 1997
- ------------------------------
Daniel W. Duval
/s/ Carlo Giersch Director January 8, 1997
- ------------------------------
Carlo Giersch
/s/ Stephen P. Kaufman Director January 8, 1997
- ------------------------------
Stephen P. Kaufman
/s/ Gaynor Kelley Director January 8, 1997
- ------------------------------
Gaynor Kelley
/s/ Roger King Director January 8, 1997
- ------------------------------
Roger King
/s/ Robert E. Klatell Director January 8, 1997
- ------------------------------
Robert E. Klatell
/s/ Karen Gordon Mills Director January 8, 1997
- ------------------------------
Karen Gordon Mills
/s/ Richard S. Rosenbloom Director January 8, 1997
- ------------------------------
Richard S. Rosenbloom
/s/ Robert S. Throop Director January 8, 1997
- ------------------------------
Robert S. Throop
/s/ John C. Waddell Director January 8, 1997
- ------------------------------
John C. Waddell
II-4
<PAGE>
FORM S-3
ARROW ELECTRONICS, INC.
EXHIBIT INDEX
Exhibit Description
Number
1 -- Form of Underwriting Agreement Standard Provisions (Debt
Securities).
3(1) -- Restated Certificate of Incorporation of the Company, as
amended (incorporated by reference to Exhibit 3(a) to the
Company's Annual Report on Form 10-K for the year ended
December 31, 1994, File No. 1-4482).
3(2) -- Certificate of Amendment to the Restated Certificate of
Incorporation of the Company, as amended, dated as of
August 30, 1996 (incorporated by reference to Exhibit 3
to the Company's Quarterly Report on Form 10-Q for the
period ended September 30, 1996, File No. 1-4482).
3(3) -- By-Laws of the Company (incorporated by reference to
Exhibit 3(b) to the Company's Annual Report on Form 10-K
for the year ended December 31, 1986, File No. 1-4482).
4(1) -- Form of Indenture between the Company and Bank of
Montreal Company, as Trustee.
4(2) -- Form of Debt Security.
4(3) -- Form of Officer's Certificate establishing a series of
Debt Securities under the Indenture.
5 -- Opinion of Winthrop, Stimson, Putnam & Roberts.
12 -- Statements re Computation of Ratio of Earnings to Fixed
Charges.
23(1) -- Consent of Ernst & Young LLP.
23(2) -- Consent of Winthrop, Stimson, Putnam & Roberts (included
in Exhibit 5 above).
24 -- Power of Attorney (see page II-3).
25 -- Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of Bank of Montreal Trust Company, as
Trustee under the Indenture between the Company and Bank
of Montreal Trust Company on Form T-1.
II-5
<PAGE>
Exhibit 1
ARROW ELECTRONICS, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
________________, 199_
From time to time, Arrow Electronics, Inc., a New York corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated debt securities to the several underwriters named
therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein sometimes referred to as this Agreement. Terms defined in
the Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Debt Securities and has filed with, or transmitted for filing to, or shall
promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to the
Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"). The term "Registration Statement" means the
registration statement, including the exhibits thereto, as amended to the date
of this Agreement. The term "Basic Prospectus" means the prospectus included in
the Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus" means
a preliminary prospectus supplement specifically relating to the Offered
Securities, together with the Basic Prospectus. As used herein, the terms "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The term "Contract Securities" means the Offered Securities to be
purchased pursuant to the delayed delivery contracts substantially in the form
of Schedule I hereto, with such
<PAGE>
changes therein as the Company may approve (the "Delayed Delivery Contracts").
The term "Underwriters' Securities" means the Offered Securities other than
Contract Securities.
1. Representations and Warranties. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or, to the Company's knowledge,
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Registration Statement and
Prospectus complied or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such part became
effective, did not contain, and each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and the
Prospectus comply, and, as amended or supplemented, if applicable, will comply
in all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that the representations and
warranties set forth in this Section 1(b) do not apply (A) to statements or
omissions in the Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Manager expressly for use therein or (B) to that part of
the Registration Statement that constitutes the Statement of Eligibility (Form
T-1) under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(d) Each subsidiary of the Company which constitutes a "significant
subsidiary" within the meaning of Rule 1-02 of Regulation S-X and each
subsidiary of the Company which constitutes a "restricted subsidiary" within the
meaning of the Indenture (together, the "Material Subsidiaries") has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the
Prospectus
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<PAGE>
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The Indenture has been duly qualified under the Trust Indenture Act
and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability.
(g) The Offered Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with the terms of
the Underwriting Agreement, in the case of the Underwriters' Securities, or by
institutional investors in accordance with the terms of the Delayed Delivery
Contracts in the case of Contract Securities, will be entitled to the benefits
of the Indenture and will be valid and binding obligations of the Company, in
each case enforceable in accordance with their terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration, if any,
and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(h) The Delayed Delivery Contracts have been duly authorized, executed
and delivered by the Company and are valid and binding agreements of the
Company, enforceable in accordance with their respective terms except as (i)
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) the availability of equitable
remedies may be limited by equitable principles of general applicability.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture, the
Offered Securities and the Delayed Delivery Contracts will not contravene any
provision of applicable law or the certificate of incorporation or by-laws of
the Company or any agreement or other instrument binding upon the Company or any
of its Material Subsidiaries or to which any of its or their properties are
subject that is material to the Company and its subsidiaries, taken as a whole,
or any material judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any Material Subsidiary or any of
their properties, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the
Indenture, the Offered Securities or the Delayed Delivery Contracts, except
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<PAGE>
such as may be required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Offered Securities.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement).
(k) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its Material
Subsidiaries is a party or to which any of the properties of the Company or any
of its Material Subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed or
incorporated by reference as exhibits to the Registration Statement that are not
described, filed or incorporated as required.
(l) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when so filed in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder.
(m) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(n) The Company and its Material Subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
2. Delayed Delivery Contracts. If the Prospectus provides for sales of
Offered Securities pursuant to Delayed Delivery Contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities on
the terms and subject to the conditions set forth in the Prospectus pursuant to
Delayed Delivery Contracts. Delayed Delivery Contracts may be entered into only
with institutional investors approved by the Company of the types set forth in
the Prospectus. On the Closing Date, the Company will
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pay to the Manager as compensation for the accounts of the Underwriters the
commission set forth in the Underwriting Agreement in respect of the Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of any Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the aggregate amount of Offered Securities to be
purchased by the several Underwriters shall be reduced by the aggregate amount
of Contract Securities; such reduction shall be applied to the commitment of
each Underwriter pro rata in proportion to the amount of Offered Securities set
forth opposite such Underwriter's name in the Underwriting Agreement, except to
the extent that the Manager determines that such reduction shall be applied in
other proportions and so advises the Company; provided, however, that the total
amount of Offered Securities to be purchased by all Underwriters shall be the
aggregate amount set forth above, less the aggregate amount of Contract
Securities.
3. Terms of Public Offering. The Company is advised by the Manager
that the Underwriters propose to make a public offering of their respective
portions of the Underwriters' Securities as soon after this Agreement has been
entered into as in the Manager's judgment is advisable. The terms of the public
offering of the Underwriters' Securities are set forth in the Prospectus.
4. Payment and Delivery. Except as otherwise provided in this Section
4, payment for the Underwriters' Securities shall be made by wire transfer to an
account designated by the Company in same day funds at the time and place set
forth in the Underwriting Agreement, upon delivery to the Manager for the
respective accounts of the several Underwriters of the Underwriters' Securities
registered in such names and in such denominations as the Manager shall request
in writing not less than two full business days prior to the date of delivery,
with any transfer taxes payable in connection with the transfer of the
Underwriters' Securities to the Underwriters duly paid against payment of the
purchase price therefor.
5. Conditions to the Underwriters' Obligations. The several
obligations of the Underwriters to purchase any Offered Securities are subject
to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any negative review in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings,
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<PAGE>
business or operations of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement) that, in the judgment of the Manager, is material and
adverse and that makes it, in the judgment of the Manager,
impracticable to market the Offered Securities on the terms and in the
manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company, not in his individual capacity but solely in his capacity as an
executive officer of the Company, to the effect set forth in clause (a)(i) above
and to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date and that
the Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before the
Closing Date. The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an opinion
of Winthrop, Stimson, Putnam & Roberts, counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(ii) each Material Subsidiary of the Company organized in the United
States has been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(iii) this Agreement has been duly authorized, executed and delivered
by the Company;
(iv) the Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company
and is a valid and
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binding agreement of the Company, enforceable in accordance with its
terms except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (b) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(v) the Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company and are valid and binding
agreements of the Company, enforceable in accordance with their
respective terms except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (b) the availability of equitable remedies may be
limited by equitable principles of general applicability;
(vi) the Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, in the case of
Underwriters' Securities or by institutional investors in accordance
with the terms of the Delayed Delivery Contracts, in the case of
Contract Securities, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company, in each case
enforceable in accordance with their terms except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (b) rights of
acceleration, if any, and the availability of equitable remedies may be
limited by equitable principles of general applicability;
(vii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Offered Securities and the Delayed Delivery
Contracts will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or, to the best
of such counsel's knowledge, any agreement or other instrument binding
upon the Company or any of its Material Subsidiaries that is material
to the Company and its subsidiaries, taken as a whole, or, to the best
of such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company
or any Material Subsidiary, which is material to the Company and its
subsidiaries, taken as a whole, and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under
this Agreement, the Indenture, the Offered Securities or the Delayed
Delivery Contracts, except for the order of the Commission declaring
the Registration Statement effective which has been obtained, and
except such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of the Offered
Securities;
(viii) the statements (A) in the Prospectus under the captions
"Description of Debt Securities" and "Description of Senior Notes" and
(B) in Part II of the Registration Statement under Item 15, in each
case insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to
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therein, fairly present the information called for with respect to such
legal matters, documents and proceedings and fairly summarize the
matters referred to therein;
(ix) to the best of such counsel's knowledge, there are no (A) legal
or governmental proceedings pending to which the Company or any of its
Material Subsidiaries is a party or to which any of the properties of
the Company or any of its Material Subsidiaries is subject other than
as described in the Registration Statement or the Prospectus and other
than litigation which individually or in the aggregate is not material
to the Company and its subsidiaries, taken as a whole; or (B) statutes,
regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be
filed or incorporated by reference as exhibits to the Registration
Statement that are not described, filed or incorporated as required;
and (C) legal or governmental proceedings threatened or contemplated by
any governmental agency or threatened by others which are required to
be described in the Prospectus;
[(x) such counsel is of the opinion ascribed to it in the Prospectus
under the caption "[Taxation]";]
(xi) such counsel (A) is of the opinion that each document, if any,
filed pursuant to the Exchange Act and incorporated by reference in the
Prospectus (except for financial statements, including the notes and
schedules thereto, and financial data included therein as to which such
counsel need not express any opinion) complied when so filed as to form
in all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (B) has no reason to
believe that (except for financial statements, including the notes and
schedules thereto, and financial data included therein and that part of
the Registration Statement that constitutes the Form T-1 heretofore
referred to as to which such counsel need not express any belief) the
Registration Statement, at the time it became effective, contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (C) is of the opinion that the Registration
Statement, at the time it became effective and the Prospectus, at the
time it was filed with, or transmitted for filing to, the Commission
pursuant to Rule 424 under the Securities Act (except for financial
statements, including the notes and schedules thereto, and financial
data included therein as to which such counsel need not express any
opinion) complied as to form in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder and (D) has no reason to believe that (except for
financial statements, including the notes and schedules thereto, and
financial data included therein as to which such counsel need not
express any belief) the Prospectus, at the time it was filed with, or
transmitted for filing to, the Commission pursuant to Rule 424 under
the Securities Act and as of the date such opinion is delivered
contained or contains any untrue statement of a material fact or
ommitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not misleading.
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<PAGE>
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States, the
General Corporation Law of the State of Delaware and the laws of the State of
New York, to the extent such counsel deems proper and to the extent specified in
such opinion, upon an opinion or opinions (in the form and substance reasonably
satisfactory to counsel for the Underwriters) of other counsel reasonably
acceptable to counsel for the Underwriters, familiar with the applicable laws;
(B) as to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company or of any of its subsidiaries (including
certificates as to the materiality of any contracts or judgments) and (C) to the
extent they deem proper, upon written statements or certificates of officers of
departments of various jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company or of its subsidiaries;
provided that copies of any such statements or certificates shall be delivered
to counsel for the Underwriters.
(d) The Underwriters shall have received on the Closing Date an opinion
of Davis Polk & Wardwell, special counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in subparagraphs (iii), (iv),
(v), (vi), (viii) (but only as to the statements in the Prospectus under
"Description of Debt Securities" and "Plan of Distribution") and clauses (B),
(C) and (D) of subparagraph (xi) of paragraph (c) above.
With respect to subparagraph (xi) of paragraph (c) above, Winthrop,
Stimson, Putnam & Roberts may state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and documents incorporated
therein by reference and review and discussion of the contents thereof, but are
without independent check or verification, except as specified. With respect to
clauses (B), (C) and (D) of subparagraph (xi) of paragraph (c) above, Davis Polk
& Wardwell may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto (but not including documents
incorporated therein by reference) and review and discussion of the contents
thereof (including documents incorporated therein by reference), but are without
independent check or verification, except as specified.
The opinion of Winthrop, Stimson, Putnam & Roberts described in
paragraph (c) above shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(e) The Underwriters shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the Underwriters,
from the Company's independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
Statement and Prospectus.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
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(a) To furnish the Manager, without charge, one signed copy of the
Registration Statement (including exhibits thereto and documents incorporated
therein by reference) and for delivery to each other Underwriter a conformed
copy of the Registration Statement (without exhibits thereto and documents
incorporated therein by reference) and, during the period mentioned in paragraph
(c) below, as many copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto or to the
Registration Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Securities, to furnish to the Manager a
copy of each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Manager reasonably objects.
(c) If, during such period after the first date of the public offering
of the Offered Securities as in the opinion of counsel for the Underwriters,
after consultation with the Company, the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, after
consultation with the Company, it is necessary to amend or supplement the
Prospectus to comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to the
dealers (whose names and addresses the Manager will furnish to the Company) to
which Offered Securities may have been sold by the Manager on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus,
as amended or supplemented, will comply with applicable law.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager shall
reasonably request and to maintain such qualification for as long as the Manager
shall reasonably request.
(e) To make generally available to the Company's security holders and
to the Manager as soon as practicable an earning statement covering a twelve
month period, which earning statement shall satisfy the provisions of Section
11(a) of the Securities Act and the rules and regulations of the Commission
thereunder.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
substantially similar to the Offered Securities (other than (i) the Offered
Securities and (ii) commercial paper issued in the ordinary course of business),
without the prior written consent of the Manager.
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<PAGE>
(g) To pay all expenses incident to the performance of its obligations
under this Agreement, including: (i) the preparation and filing of the
Registration Statement and the Prospectus and all amendments and supplements
thereto; (ii) the preparation, issuance and delivery of the Offered Securities;
(iii) the fees and disbursements of the Company's counsel and accountants and of
the Trustee and its counsel; (iv) the qualification of the Offered Securities
under state securities or Blue Sky laws in accordance with the provisions of
Section 6(d), including filing fees and the fees and disbursements of counsel
for the Underwriters in connection therewith and in connection with the
preparation of any Blue Sky or Legal Investment Memoranda; (v) the printing and
delivery to the Underwriters in quantities as hereinabove stated of copies of
the Registration Statement and all amendments thereto and of any preliminary
prospectus and the Prospectus and any amendments or supplements thereto; (vi)
the printing and delivery to the Underwriters of copies of any Blue Sky or Legal
Investment Memoranda; (vii) any fees charged by rating agencies for the rating
of the Offered Securities; (viii) the filing fees and expenses, if any, incurred
with respect to any filing with the National Association of Securities Dealers,
Inc. made in connection with the Offered Securities; (ix) any expenses incurred
by the Company in connection with a "road show" presentation to potential
investors and (x) all document production charges and expenses of counsel to the
Underwriters (but not including their fees for professional services) incurred
in connection with the preparation of this Agreement.
7. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Manager expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company to
such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through the
Manager expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
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(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) of this Section 7, such person
(the "indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Manager, in the case of parties indemnified
pursuant to paragraph (a) above, and by the Company, in the case of parties
indemnified pursuant to paragraph (b) above. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or
(b) of this Section 7 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Offered Securities shall
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be deemed to be in the same respective proportions as the net proceeds from the
offering of such Offered Securities (before deducting expenses) received by the
Company and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus Supplement, bear to the aggregate public offering price of the
Offered Securities. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the respective principal
amounts of Offered Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) of this Section 7. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 7 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
7 and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
the Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
8. Termination. This Agreement shall be subject to termination by
notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago
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Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been declared
by either Federal or New York State authorities or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the judgment of the Manager, is
material and adverse and (b) in the case of any of the events specified in
clauses (a)(i) through (iv), such event, singly or together with any other such
event, makes it, in the judgment of the Manager, impracticable to market the
Offered Securities on the terms and in the manner contemplated in the
Prospectus.
9. Defaulting Underwriters. If, on the Closing Date, any one or more
of the Underwriters shall fail or refuse to purchase Underwriters' Securities
that it has or they have agreed to purchase hereunder on such date, and the
aggregate amount of Underwriters' Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate amount of the Underwriters' Securities to be
purchased on such date, the other Underwriters shall be obligated severally in
the proportions that the amount of Underwriters' Securities set forth opposite
their respective names in the Underwriting Agreement bears to the aggregate
amount of Underwriters Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Underwriters' Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Underwriters' Securities
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9 by an amount in excess of one-ninth of such
amount of Underwriters' Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Underwriters' Securities and the aggregate amount of
Underwriters' Securities with respect to which such default occurs is more than
one-tenth of the aggregate amount of Underwriters' Securities to be purchased on
such date, and arrangements satisfactory to the Manager and the Company for the
purchase of such Underwriters' Securities are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company. In any such case either the
Manager or the Company shall have the right to postpone the Closing Date, but in
no event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their
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counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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<PAGE>
UNDERWRITING AGREEMENT
___________, 199_
Arrow Electronics, Inc.
25 Hub Drive
Melville, NY 11747
Dear Sirs and Mesdames:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that Arrow
Electronics, Inc., a New York corporation (the "Company"), proposes to issue and
sell [Currency and Principal Amount] aggregate initial offering price of [Full
title of Debt Securities] (the "Debt Securities") (The Debt Securities are also
referred to herein as the "Offered Securities.") The Debt Securities will be
issued pursuant to the provisions of an Indenture dated as of _______________,
199_,as amended or supplemented from time to time (the "Indenture"), between the
Company and Bank of Montreal Trust Company, as Trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell to the several Underwriters,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company the respective principal amounts of Debt Securities set forth below
opposite their names at a purchase price of ____% of the principal amount of
Debt Securities [, plus accrued interest, if any, from [Date of Offered
Securities] to the date of payment and delivery]:
Principal Amount of
Name Debt Securities
---- -------------------
Morgan Stanley & Co.
Incorporated
[Insert syndicate list]
Total . . . . . .
<PAGE>
The principal amount of Debt Securities to be purchased by the several
Underwriters shall be reduced by the aggregate principal amount of Debt
Securities sold pursuant to delayed delivery contracts.
The Underwriters will pay for the Offered Securities (less any Offered
Securities sold pursuant to delayed delivery contracts) upon delivery thereof at
[office] at ______ a.m. (New York time) on ___________, 199_, or at such other
time, not later than 5:00 p.m. (New York time) on __________, 199_, as shall be
designated by the Manager. The time and date of such payment and delivery are
hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the Prospectus
dated ___________, 199_, and the Prospectus Supplement dated ____________, 199_,
including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: ____________ __ and
____________ __ commencing
____________ __, ____
[(Interest accrues from
____________ __, ____)]
Form and Denomination:
[Other Terms:]
The Commission to be paid to the Underwriters in respect of the Offered
Securities purchased pursuant to delayed delivery contracts arranged by the
Underwriters shall be ____% of the principal amount of the Debt Securities so
purchased.
All provisions contained in the document entitled Arrow Electronics,
Inc. Underwriting Agreement Standard Provisions (Debt Securities) dated _______,
199_, (the "Standard Provisions") a copy of which is attached hereto, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein, except that (i) if any term defined in such document is otherwise
defined herein, the definition set forth herein shall control, (ii) all
references in such document to a type of security that is not an Offered
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<PAGE>
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be deemed
to be a part of this Agreement.
All references to the Manager in the Standard Provisions shall be taken
to mean [Morgan Stanley & Co. Incorporated] and [names of other co-lead
Managers] whose authority hereunder and thereunder may be exercised by them
jointly or by [Morgan Stanley & Co. Incorporated] alone.
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<PAGE>
[SIGNATURE PAGE WHERE MORGAN STANLEY & CO. INCORPORATED
-------------------------------------------------------
IS A CO-LEAD MANAGER]
---------------------
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[MORGAN STANLEY & CO. INCORPORATED]
[Name of Other Lead Managers]
Acting severally on behalf of themselves
[and the several Underwriters named herein]
By: [MORGAN STANLEY & CO. INCORPORATED]
By: _______________________________
Name:
Title:
Accepted:
ARROW ELECTRONICS, INC.
By: _________________________
Name:
Title:
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<PAGE>
SIGNATURE PAGE WHERE MORGAN STANLEY & CO. INCORPORATED
------------------------------------------------------
IS SOLE MANAGER]
----------------
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[MORGAN STANLEY & CO. INCORPORATED]
[Acting severally on behalf of itself
and the several Underwriters named herein]
By: _____________________________
Name:
Title:
Accepted:
ARROW ELECTRONICS, INC.
By: ___________________________
Name:
Title:
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<PAGE>
Schedule I
DELAYED DELIVERY CONTRACT
________, 199_
Dear Sirs and Mesdames:
The undersigned hereby agrees to purchase from Arrow Electronics, Inc.,
a New York corporation (the "Company"), and the Company agrees to sell to the
undersigned the Company's securities described in Schedule A annexed hereto (the
"Securities"), offered by the Company's Prospectus dated __________________,
19__ and Prospectus Supplement dated ________________, 19__, receipt of copies
of which are hereby acknowledged, at a purchase price stated in Schedule A and
on the further terms and conditions set forth in this Agreement. The undersigned
does not contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amount and numbers on the delivery dates set forth in Schedule A. Each
such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to purchase
on each Delivery Date shall be made to the Company or its order by certified or
official bank check in same day funds at the office of
______________________________, New York, N.Y., at 10:00 A.M. (New York time) on
the Delivery Date, upon delivery to the undersigned of the Securities to be
purchased by the undersigned on the Delivery Date, in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned as its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
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<PAGE>
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this agreement.
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
If this Agreement is acceptable to the Company, it is requested that
the Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This will
become a binding agreement, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
Yours very truly,
___________________________
(Purchaser)
By ________________________
________________________
(Title)
________________________
________________________
(Address)
Accepted:
ARROW ELECTRONICS, INC.
By ________________________
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<PAGE>
PURCHASER --- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
- ---------------- --------------- -----------------
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<PAGE>
SCHEDULE A
Securities:
- ----------
Principal Amounts or Numbers to be Purchased:
- --------------------------------------------
Purchase Price:
- --------------
Delivery
- --------
<PAGE>
Exhibit 4(1)
================================================================================
ARROW ELECTRONICS, INC.
and
BANK OF MONTREAL TRUST COMPANY,
Trustee
--------------------------------------------------
Indenture
Dated as of __________ __, 1997
--------------------------------------------------
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions........................................ 1
Section 1.2 Other Definitions.................................. 6
Section 1.3 Incorporation By Reference Of Trust Indenture Act.. 7
Section 1.4 Rules Of Construction.............................. 7
ARTICLE 2
THE SECURITIES
Section 2.1 Form............................................... 8
Section 2.2 Execution And Authentication....................... 8
Section 2.3 Amount Unlimited; Issuable In Series............... 9
Section 2.4 Denomination And Date Of Securities; Payments Of
Interest......................................... 12
Section 2.5 Registrar And Paying Agent; Agents Generally....... 13
Section 2.6 Paying Agent To Hold Money In Trust................ 13
Section 2.7 Transfer And Exchange.............................. 14
Section 2.8 Replacement Securities............................. 16
Section 2.9 Outstanding Securities............................. 17
Section 2.10 Temporary Securities............................... 17
Section 2.11 Cancellation....................................... 18
Section 2.12 CUSIP Numbers...................................... 18
Section 2.13 Defaulted Interest................................. 18
Section 2.14 Series May Include Tranches........................ 18
ARTICLE 3
REDEMPTION
Section 3.1 Applicability Of Article........................... 19
Section 3.2 Notice Of Redemption; Partial Redemptions.......... 19
Section 3.3 Payment Of Securities Called For Redemption........ 20
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<PAGE>
Section 3.4 Exclusion Of Certain Securities From Eligibility
For Selection For Redemption....................... 21
Section 3.5 Mandatory And Optional Sinking Funds............... 21
ARTICLE 4
COVENANTS
Section 4.1 Payment Of Securities.............................. 24
Section 4.2 Maintenance Of Office Or Agency.................... 24
Section 4.3 Negative Pledge.................................... 25
Section 4.4 Certain Sale And Lease-Back Transactions........... 26
Section 4.5 Certificate To Trustee............................. 27
Section 4.6 Reports By The Company............................. 27
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.1 When Company May Merge, Etc........................ 28
Section 5.2 Successor Substituted.............................. 28
ARTICLE 6
DEFAULT AND REMEDIES
Section 6.1 Events Of Default.................................. 29
Section 6.2 Acceleration....................................... 30
Section 6.3 Other Remedies..................................... 31
Section 6.4 Waiver Of Past Defaults............................ 31
Section 6.5 Control By Majority................................ 32
Section 6.6 Limitation On Suits................................ 32
Section 6.7 Rights Of Holders To Receive Payment............... 33
Section 6.8 Collection Suit By Trustee......................... 33
Section 6.9 Trustee May File Proofs Of Claim................... 33
Section 6.10 Application Of Proceeds............................ 33
Section 6.11 Restoration Of Rights And Remedies................. 34
Section 6.12 Undertaking For Costs.............................. 34
Section 6.13 Rights And Remedies Cumulative..................... 35
Section 6.14 Delay Or Omission Not Waiver....................... 35
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<PAGE>
ARTICLE 7
TRUSTEE
Section 7.1 General............................................ 35
Section 7.2 Certain Rights Of Trustee.......................... 35
Section 7.3 Individual Rights Of Trustee....................... 37
Section 7.4 Trustee's Disclaimer............................... 37
Section 7.5 Notice Of Default.................................. 37
Section 7.6 Reports By Trustee To Holders...................... 38
Section 7.7 Compensation And Indemnity......................... 38
Section 7.8 Replacement Of Trustee............................. 39
Section 7.9 Successor Trustee By Merger, Etc................... 40
Section 7.10 Eligibility........................................ 40
Section 7.11 Money Held In Trust................................ 40
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.1 Defeasance Within One Year Of Payment.............. 40
Section 8.2 Defeasance......................................... 41
Section 8.3 Covenant Defeasance................................ 42
Section 8.4 Application Of Trust Money......................... 43
Section 8.5 Repayment To Company............................... 43
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Without Consent Of Holders......................... 44
Section 9.2 With Consent Of Holders............................ 44
Section 9.3 Revocation And Effect Of Consent................... 45
Section 9.4 Notation On Or Exchange Of Securities.............. 46
Section 9.5 Trustee To Sign Amendments, Etc.................... 46
Section 9.6 Conformity With Trust Indenture Act................ 46
ARTICLE 10
MISCELLANEOUS
Section 10.1 Trust Indenture Act Of 1939........................ 47
Section 10.2 Notices............................................ 47
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<PAGE>
Section 10.3 Certificate And Opinion As To Conditions Precedent. 48
Section 10.4 Statements Required In Certificate Or Opinion...... 48
Section 10.5 Evidence Of Ownership.............................. 49
Section 10.6 Rules By Trustee, Paying Agent Or Registrar........ 50
Section 10.7 Payment Date Other Than A Business Day............. 50
Section 10.8 Governing Law...................................... 50
Section 10.9 No Adverse Interpretation Of Other Agreements...... 50
Section 10.10 Successors......................................... 50
Section 10.11 Duplicate Originals................................ 50
Section 10.12 Separability....................................... 51
Section 10.13 Table Of Contents, Headings, Etc................... 51
Section 10.14 Incorporators, Shareholders, Officers And
Directors Of Company Exempt From Individual
Liability.......................................... 51
Section 10.15 Judgment Currency.................................. 51
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<PAGE>
INDENTURE, dated as of ________ __, 1997, between Arrow
Electronics, Inc., a New York corporation (the "Company"), and Bank of Montreal
Trust Company (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time
to time of its debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Securities") up to such principal amount or amounts
as may from time to time be authorized in accordance with the terms of this
Indenture and to provide, among other things, for the authentication, delivery
and administration thereof, the Company has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Company and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective holders from
time to time of the Securities or of any and all series thereof and of the
coupons, if any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
------------------------------------------
Section 1.1 Definitions.
"Agent" means any Registrar, Paying Agent, transfer agent or
Authenticating Agent.
"Attributable Debt" means, when used in connection with a sale
and lease-back transaction referred to in Section 4.4, on any date as of which
the amount thereof is to be determined, the product of (a) the net proceeds from
such sale and lease-back transaction multiplied by (b) a fraction, the numerator
of which is the number of full years of the term of the lease relating to the
property involved in such sale and lease-back transaction (without regard to any
options to renew or extend such term) remaining on the date of the making of
such computation and the denominator of which is the number of full years of the
term of such lease measured from the first day of such term.
"Authorized Newspaper" means a newspaper (which, in the case
of The City of New York, will, if practicable, be The Wall Street Journal
(Eastern Edition) and in the case of London, will, if practicable, be the
Financial Times (London Edition) and published in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in The City of New
York or 47
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<PAGE>
London, as applicable. If it shall be impractical in the opinion of the Trustee
to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient publication
of such notice.
"Board Resolution" means one or more resolutions of the board
of directors of the Company or any authorized committee thereof, certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
and to be in full force and effect on the date of certification, and delivered
to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions are
authorized or required by law or regulation to close in The City of New York or
in the city in which the Corporate Trust Office is located, with respect to any
Security the interest on which is based on the offered quotations in the
interbank Eurodollar market for dollar deposits in London, or with respect to
Securities denominated in a specified currency other than United States dollars,
in the principal financial center of the country of the specified currency.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's capital stock or equity,
including, without limitation, all Common Stock and Preferred Stock.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's common stock, whether now
outstanding or issued after the date of this Indenture, including, without
limitation, all series and classes of such common stock.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces it pursuant to Article 5 of this
Indenture and thereafter means the successor.
"Consolidated Net Tangible Assets" means total assets after
deducting therefrom all current liabilities and intangible assets as set forth
in the most recent balance sheet of the Company and its consolidated
Subsidiaries and computed in accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date of this Indenture,
located at 77 Water Street, New York, New York 10005, Attention: Therese
Gaballah, Vice President.
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<PAGE>
"Default" means any Event of Default as defined in Section 6.1
and any event that is, or after notice or passage of time or both would be, an
Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in the form of one or more Registered Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 2.3 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depositary" shall mean
or include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of any such series shall mean the Depositary with respect to the
Registered Global Securities of that series. The initial Depositary shall be The
Depository Trust Company, New York, New York.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exempted Debt" means the sum, without duplication, of the
following items outstanding as of the date Exempted Debt is being determined:
(i) indebtedness of the Company and its Restricted Subsidiaries incurred after
the date of this Indenture and secured by liens created or assumed or permitted
to exist pursuant to Section 4.3(b) and (ii) Attributable Debt of the Company
and its Restricted Subsidiaries in respect of all sale and lease-back
transactions with regard to any Principal Property entered into pursuant to
Section 4.4(b).
"Funded Debt" means all indebtedness for money borrowed,
including purchase money indebtedness, having a maturity of more than one year
from the date of its creation or having a maturity of less than one year but by
its terms being renewable or extendible, at the option of the obligor in respect
thereof, beyond one year from the date of its creation.
"GAAP" means generally accepted accounting principles in the
United States of America at the date of any computation required or permitted
hereunder.
"Holder" or "Securityholder" means the registered holder of
any Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed or as
it may be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established as contemplated pursuant to Sections 2.1
and 2.3.
"Investment" means any investment in any Person, whether by
means of share purchase, capital contribution, loan, time deposit or otherwise.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind, or any other type
of preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Indenture, the
Company or any Subsidiary shall be deemed to own subject to a Lien any
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<PAGE>
asset that it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Officer" means, with respect to the Company, the Chairman of
the Board of Directors, the President or Chief Executive Officer, any Vice
President, the Chief Financial Officer, the Treasurer or any Assistant
Treasurer, or the Secretary or any Assistant Secretary.
"Officers' Certificate" means a certificate signed in the name
of the Company (i) by the Chairman of the Board of Directors, the President or
Chief Executive Officer or a Vice President and (ii) by the Chief Financial
Officer, the Treasurer or any Assistant Treasurer, or the Secretary or any
Assistant Secretary, complying with Section 10.4 and delivered to the Trustee.
Each such certificate shall comply with Section 314 of the Trust Indenture Act
and include (except as otherwise expressly provided in this Indenture) the
statements provided in Section 10.4, if and to the extent required thereby.
"Opinion of Counsel" means a written opinion signed by legal
counsel, who may be an employee of or counsel to the Company, satisfactory to
the Trustee and complying with Section 10.4. Each such opinion shall comply with
Section 314 of the Trust Indenture Act and include the statements provided in
Section 10.4, if and to the extent required thereby.
"original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of authentication of such Security or (b) the
date of any Security (or portion thereof) for which such Security was issued
(directly or indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 6.2.
"Periodic Offering" means an offering of Securities of a
series from time to time, the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Company or its agents upon the
issuance of such Securities.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of this Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
"Principal" of a Security means the principal amount of, and,
unless the context indicates otherwise, includes any premium payable on, the
Security.
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<PAGE>
"Principal Property" means any manufacturing or processing
plant or warehouse owned at the date hereof or hereafter acquired by the Company
or any Restricted Subsidiary of the Company which is located within the United
States and the gross book value of which (including related land and
improvements thereon and all machinery and equipment included therein without
deduction of any depreciation reserves) on the date as of which the
determination is being made exceeds 2% of Consolidated Net Tangible Assets,
other than (i) any such manufacturing or processing plant or warehouse or any
portion thereof (together with the land on which it is erected and fixtures
comprising a part thereof) which is financed by industrial development bonds
which are tax exempt pursuant to Section 103 of the Internal Revenue Code (or
which receive similar tax treatment under any subsequent amendments thereto or
any successor laws thereof or under any other similar statute of the United
States), (ii) any property which in the opinion of the Company's Board of
Directors is not of material importance to the total business conducted by the
Company as an entirety, or (iii) any portion of a particular property which is
similarly found not to be of material importance to the use or operation of such
property.
"Registered Global Security" means a Security evidencing all
or a part of a series of Registered Securities, issued to the Depositary for
such series in accordance with Section 2.2, and bearing the legend prescribed in
Section 2.2.
"Registered Security" means any Security registered on the
Security Register (as defined in Section 2.5).
"Responsible Officer" means, when used with respect to the
Trustee, any senior trust officer, any vice president, any trust officer, any
assistant trust officer, or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Restricted Subsidiary" means a Subsidiary of the Company (i)
substantially all the property of which is located, or substantially all the
business of which is carried on, within the United States, and (ii) which owns
Principal Property; provided, however, that any Subsidiary may be declared a
Restricted Subsidiary by Board Resolution, effective as of the date such Board
Resolution is adopted; provided further, that any such declaration may be
rescinded by further Board Resolution, effective as of the date such further
Board Resolution is adopted.
"Securities" means any of the securities, as defined in the
first paragraph of the recitals hereof, that are authenticated and delivered
under this Indenture and, unless the context indicates otherwise, shall include
any coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of the
outstanding Voting Stock is owned, directly or indirectly, by such Person and
one or more other Subsidiaries of such Person.
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<PAGE>
"Trustee" means the party named as such in the first paragraph
of this Indenture until a successor replaces it in accordance with the
provisions of Article 7 and thereafter means such successor.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended (15 U.S. Code Sections 77aaa-77bbbb), as it may be amended from time
to time.
"UCC" means the Uniform Commercial Code, as in effect in each
applicable jurisdiction.
"United States Bankruptcy Code" means the Bankruptcy Reform
Act of 1978, as amended and as codified in Title 11 of the United States Code,
as amended from time to time hereafter, or any successor federal bankruptcy law.
"Unregistered Security" means any Security other than a
Registered Security.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (ii) obligations of an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
depository receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Voting Stock" means with respect to any Person, Capital Stock
of any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Yield to Maturity" means, as the context may require, the
yield to maturity (i) on a series of Securities or (ii) if the Securities of a
series are issuable from time to time, on a Security of such series, calculated
at the time of issuance of such series in the case of clause (i), or at the time
of issuance of such Security of such series in the case of clause (ii), or, if
applicable, at the most recent redetermination of interest on such series or on
such Security, and calculated in accordance with the constant interest method or
such other accepted financial practice as is specified in the terms of such
Security.
Section 1.2 Other Definitions. Each of the following terms is
defined in the section set forth opposite such term:
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Term Section
---- -------
Authenticating Agent 2.2
Cash Transaction 7.3
Dollars 4.2
Event of Default 6.1
Judgment Currency 10.15
mandatory sinking fund payment 3.5
optional sinking fund payment 3.5
Paying Agent 2.5
Record Date 2.4
Registrar 2.5
Required Currency 10.15
Security Register 2.5
Self-Liquidating Paper 7.3
sinking fund payment date 3.5
tranche 2.14
Section 1.3 Incorporation By Reference Of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture. The
following terms used in this Indenture that are defined by the Trust Indenture
Act have the following meanings:
"indenture securities" means the Securities;
"indenture security holder" means a Holder or a
Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All other terms used in this Indenture that are defined by the
Trust Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined herein
have the meanings assigned to them therein.
Section 1.4 Rules Of Construction. Unless the context
otherwise requires:
(i) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(ii) words in the singular include the plural, and words
in the plural include the singular;
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(iii) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(iv) all references to Sections or Articles refer to
Sections or Articles of this Indenture unless otherwise indicated; and
(v) use of masculine, feminine or neuter pronouns should
not be deemed a limitation, and the use of any such pronouns should be
construed to include, where appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
--------------
Section 2.1 Form. The Securities of each series shall be
substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions or in one
or more indentures supplemental hereto, or in one or more Officer's Certificates
pursuant to such Board Resolutions or supplemental indentures, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent with
the provisions of this Indenture, as may be required to comply with any law, or
with any rules of any securities exchange or usage, all as may be determined by
the officers executing such Securities as evidenced by their execution of the
Securities. Unless otherwise so established, Unregistered Securities shall have
coupons attached.
Section 2.2 Execution And Authentication. Two officers shall
execute the Securities (other than coupons) for the Company by facsimile or
manual signature in the name and on behalf of the Company. The seal of the
Company, if any, shall be reproduced on the Securities. If an Officer whose
signature is on a Security no longer holds that office at the time the Security
is authenticated, the Security shall nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent (the "Authenticating Agent") to authenticate Securities
other than coupons. The Authenticating Agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such Authenticating
Agent.
A Security (other than coupons) shall not be valid until the
Trustee or Authenticating Agent manually signs the certificate of authentication
on the Security. The signature shall be conclusive evidence that the Security
has been authenticated under this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
having attached thereto appropriate coupons, if any, executed by the Company to
the Trustee for authentication together with the
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applicable documents referred to below in this Section, and the Trustee shall
thereupon authenticate and deliver such Securities to or upon the written order
of the Company. In authenticating any Securities of a series, the Trustee shall
be entitled to receive prior to the first authentication of any Securities of
such series, and (subject to Article 7) shall be fully protected in relying
upon, unless and until such documents have been superseded or revoked:
(1) any Board Resolution and/or executed supplemental
indenture referred to in Sections 2.1 and 2.3 by or pursuant to which
the forms and terms of the Securities of that series were established;
(2) any Officers' Certificate referred to in Sections 2.1
and 2.3 setting forth the form or forms and terms of the Securities,
stating that the form or forms and terms of the Securities of such
series have been, or will be when established in accordance with such
procedures as shall be referred to therein, established in compliance
with this Indenture; and
(3) at the option of the Company, either an Opinion of
Counsel, or a letter addressed to the Trustee permitting it to rely on
an Opinion of Counsel, substantially to the effect that the Securities
have been duly authorized and, if executed and authenticated in
accordance with the provisions of the Indenture and delivered to and
duly paid for by the purchasers thereof on the date of such opinion,
would be entitled to the benefits of the Indenture and would be valid
and binding obligations of the Company, enforceable against the Company
in accordance with their respective terms, subject to bankruptcy,
insolvency, reorganization, receivership, moratorium and other similar
laws affecting creditors' rights generally, general principles of
equity, and such other matters as shall be specified therein.
If the Company shall establish pursuant to Section 2.3 that
the Securities of a series or a portion thereof are to be issued in the form of
one or more Registered Global Securities, then the Company shall execute and the
Trustee shall authenticate and deliver one or more Registered Global Securities
that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of all of the Securities of such series issued in
such form and not yet canceled, (ii) shall be registered in the name of the
Depositary for such Registered Global Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such Depositary or
its custodian or pursuant to such Depositary's instructions and (iv) shall bear
a legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Securities in definitive registered form, this
Security may not be transferred except as a whole by the Depositary to the
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Section 2.3 Amount Unlimited; Issuable In Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and each
such series shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Company. There shall be established in or pursuant to
Board Resolution or one or more indentures supplemental
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hereto, or in an Officer's Certificate pursuant to such Board Resolution or such
supplemental indenture, prior to the initial issuance of Securities of any
series, subject to the last sentence of this Section 2.3,
(1) the designation of the Securities of the series,
which shall distinguish the Securities of the series from the
Securities of all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture and any limitation on the ability of the Company to
increase such aggregate principal amount after the initial issuance of
the Securities of that series (except for securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, or upon redemption of, other Securities of the series pursuant
hereto);
(3) the date or dates on which the principal of the
Securities of the series is payable (which date or dates may be fixed
or extendible);
(4) the rate or rates (which may be fixed or variable)
per annum at which the Securities of the series shall bear interest, if
any, the date or dates from which such interest shall accrue, on which
such interest shall be payable and (in the case of Registered
Securities) on which a record shall be taken for the determination of
Holders to whom interest is payable and/or the method by which such
rate or rates or date or dates shall be determined;
(5) if other than as provided in Section 4.2, the place
or places where the principal of and any interest on Securities of the
series shall be payable, any Registered Securities of the series may be
surrendered for exchange, notices, demands to or upon the Company in
respect of the Securities of the series and this Indenture may be
served and notice to Holders may be published;
(6) the right, if any, of the Company to redeem
Securities of the series, in whole or in part, at its option and the
period or periods within which, the price or prices at which and any
terms and conditions upon which Securities of the series may be so
redeemed, pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Company to redeem,
purchase or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a
Holder thereof and the price or prices at which and the period or
periods within which and any of the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities of the
series shall be issuable;
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(9) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which shall
be payable upon acceleration of the maturity thereof;
(10) if other than the coin or currency in which the
Securities of the series are denominated, the coin or currency in which
payment of the principal of or interest on the Securities of the series
shall be payable or if the amount of payments of principal of and/or
interest on the Securities of the series may be determined with
reference to an index based on a coin or currency other than that in
which the Securities of the series are denominated, the manner in which
such amounts shall be determined;
(11) if other than the currency of the United States of
America, the currency or currencies, including composite currencies, in
which payment of the Principal of and interest on the Securities of the
series shall be payable, and the manner in which any such currencies
shall be valued against other currencies in which any other Securities
shall be payable;
(12) whether the Securities of the series or any portion
thereof will be issuable as Registered Securities (and if so, whether
such Securities will be issuable as Registered Global Securities) or
Unregistered Securities (with or without coupons), or any combination
of the foregoing, any restrictions applicable to the offer, sale or
delivery of Unregistered Securities or the payment of interest thereon
and, if other than as provided herein, the terms upon which
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(13) whether and under what circumstances the Company will
pay additional amounts on the Securities of the series held by a person
who is not a U.S. person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the
Company will have the option to redeem such Securities rather than pay
such additional amounts;
(14) if the Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(15) unless otherwise provided herein, any trustees,
depositaries, authenticating or paying agents, transfer agents or the
registrar or any other agents with respect to the Securities of the
series;
(16) provisions, if any, for the defeasance of the
Securities of the series (including provisions permitting defeasance of
less than all Securities of the series), which provisions may be in
addition to, in substitution for, or in modification of (or any
combination of the foregoing) the provisions of Article 8;
(17) if the Securities of the series are issuable in whole
or in part as one or more Registered Global Securities, the identity of
the Depositary for such Registered
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Global Security or Securities (which Depositary shall, at the time of
its designation as Depositary and at all times while it serves as
Depositary, be a clearing agency registered under the Exchange Act and
any other applicable statute or regulation) if other than The
Depository Trust Company, New York, New York;
(18) any other events of default or covenants with respect
to the Securities of the series in addition to the Events of Default or
covenants set forth herein; and
(19) any other terms of the Securities of the series
(which terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series and coupons, if any,
appertaining thereto shall be substantially identical, except in the case of
Registered Securities as to date and denomination, except in the case of any
Periodic Offering and except as may otherwise be provided by or pursuant to the
Board Resolution referred to above or as set forth in any such indenture
supplemental hereto, or Officer's Certificate pursuant to such Board Resolution
or such supplemental indenture. All Securities of any one series need not be
issued at the same time and may be issued from time to time, consistent with the
terms of this Indenture, if so provided by or pursuant to such Board Resolution
or in any such indenture supplemental hereto, or Officer's Certificate pursuant
to such Board Resolution or such supplemental indenture, and any forms and terms
of Securities to be issued from time to time may be completed and established
from time to time prior to the issuance thereof by procedures described in such
Board Resolution or supplemental indenture, or Officer's Certificate pursuant to
such Board Resolution or such supplemental indenture.
Section 2.4 Denomination And Date Of Securities; Payments Of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, if not so established with respect to Securities
of any series, in denominations of $1,000 and any integral multiple thereof. The
Securities of each series shall be numbered, lettered or otherwise distinguished
in such manner or in accordance with such plan as the Officers of the Company
executing the same may determine, as evidenced by their execution thereof.
Each Security shall be dated the date of its authentication.
The Securities of each series shall bear interest, if any, from the date, and
such interest and shall be payable on the dates, established as contemplated by
Section 2.3.
The person in whose name any Registered Security of any series
is registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Company shall default in the payment of the
interest due on such interest payment date for such series, in which case the
provisions of Section 2.13 shall apply. The term "Record Date" as used with
respect to an interest payment date (except a date for payment of defaulted
interest) for the Securities of any series shall mean the date specified as such
in the terms of the Registered Securities of such series established as
contemplated by Section 2.3, or, if no such
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date is so established, the fifteenth day next preceding such interest payment
date, whether or not such record date is a Business Day.
Section 2.5 Registrar And Paying Agent; Agents Generally. The
Company shall maintain an office or agency where Securities may be presented for
registration, registration of transfer or for exchange (the "Registrar") and an
office or agency where Securities may be presented for payment (the "Paying
Agent"), which shall be in the Borough of Manhattan, The City of New York. The
Company shall cause the Registrar to keep a register of the Registered
Securities and of their registration, transfer and exchange (the "Security
Register"). The Company may have one or more additional Paying Agents or
transfer agents with respect to any series.
The Company 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 and the Trust Indenture Act that relate to such
Agent. The Company shall give prompt written notice to the Trustee of the name
and address of any Agent and any change in the name or address of an Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act
as such.
The Company may remove any Agent upon written notice to such
Agent and the Trustee; provided that no such removal shall become effective
until (i) the acceptance of an appointment by a successor Agent to such Agent as
evidenced by an appropriate agency agreement entered into by the Company and
such successor Agent and delivered to the Trustee or (ii) notification to the
Trustee that the Trustee shall serve as such Agent until the appointment of a
successor Agent in accordance with clause (i) of this proviso. The Company or
any affiliate of the Company may act as Paying Agent or Registrar; provided that
neither the Company nor an affiliate of the Company shall act as Paying Agent in
connection with the defeasance of the Securities or the discharge of this
Indenture under Article 8.
The Company initially appoints the Trustee as Registrar and
Paying Agent. If, at any time, the Trustee is not the Registrar, the Registrar
shall make available to the Trustee ten days prior to each interest payment date
and at such other times as the Trustee may reasonably request the names and
addresses of the Holders as they appear in the Security Register.
Section 2.6 Paying Agent To Hold Money In Trust. Not later
than 10:00 a.m. New York City time on each due date of any Principal or interest
on any Securities, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such Principal or interest. The
Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders of such Securities or the Trustee all money held by the Paying Agent for
the payment of Principal of and interest on such Securities and shall promptly
notify the Trustee of any default by the Company in making any such payment. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and account for any funds disbursed, and the Trustee may at any time
during the continuance of any payment default, upon written request to a Paying
Agent, require such Paying Agent to pay all money held by it to the Trustee and
to account for any funds disbursed. Upon doing so, the Paying Agent shall have
no further
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liability for the money so paid over to the Trustee. If the Company or any
affiliate of the Company acts as Paying Agent, it will, on or before each due
date of any Principal of or interest on any Securities, segregate and hold in a
separate trust fund for the benefit of the Holders thereof a sum of money
sufficient to pay such Principal or interest so becoming due until such sum of
money shall be paid to such Holders or otherwise disposed of as provided in this
Indenture, and will promptly notify the Trustee in writing of its action or
failure to act as required by this Section.
Section 2.7 Transfer And Exchange. Unregistered Securities
(except for any temporary global Unregistered Securities) and coupons (except
for coupons attached to an temporary global Unregistered Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Securities of
any series (other than a Registered Global Security, except as set forth below)
may be exchanged for a Registered Security or Registered Securities of such
series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered Securities to be exchanged
at the agency of the Company that shall be maintained for such purpose in
accordance with Section 2.5 and upon payment, if the Company shall so require,
of the charges hereinafter provided. If the Securities of any series are issued
in both registered and unregistered form, except as otherwise established
pursuant to Section 2.3, at the option of the Holder thereof, Unregistered
Securities of any series may be exchanged for Registered Securities of such
series and tenor having authorized denominations and an equal aggregate
principal amount, upon surrender of such Unregistered Securities to be exchanged
at the agency of the Company that shall be maintained for such purpose in
accordance with Section 4.2, with, in the case of Unregistered Securities that
have coupons attached, all unmatured coupons and all matured coupons in default
thereto appertaining, and upon payment, if the Company shall so require, of the
charges hereinafter provided. At the option of the Holder thereof, if
Unregistered Securities of any series, maturity date, interest rate and original
issue date are issued in more than one authorized denomination, except as
otherwise established pursuant to Section 2.3, such Unregistered Securities may
be exchanged for Unregistered Securities of such series and tenor having
authorized denominations and an equal aggregate principal amount, upon surrender
of such Unregistered Securities to be exchanged at the agency of the Company
that shall be maintained for such purpose in accordance with Section 4.2, with,
in the case of Unregistered Securities that have coupons attached, all unmatured
coupons and all matured coupons in default thereto appertaining, and upon
payment, if the Company shall so require, of the charges hereinafter provided.
Registered Securities of any series may not be exchanged for Unregistered
Securities of such series. Whenever any securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Registered Securities presented for registration of
transfer, exchange, redemption or payment shall be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder or his
attorney duly authorized in writing.
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The Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall be
made for any such transaction.
Notwithstanding any other provision of this Section 2.7,
unless and until it is exchanged in whole or in part for Securities in
definitive registered form, a Registered Global Security representing all or a
portion of the Securities of a series may not be transferred except as a whole
by the Depositary for such series to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global
Securities of any series notifies the Company that it is unwilling or unable to
continue as Depositary for such Registered Global Securities or if at any time
the Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary eligible
under applicable law with respect to such Registered Global Securities. If a
successor Depositary eligible under applicable law for such Registered Global
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of the Company's order for the
authentication and delivery of definitive Registered Securities of such series
and tenor, will authenticate and deliver Registered Securities of such series
and tenor, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of such Registered Global Securities, in exchange
for such Registered Global Securities.
The Company may at any time and in its sole discretion
determine that any Registered Global Securities of any series shall no longer be
maintained in global form. In such event the Company will execute, and the
Trustee, upon receipt of the Company's order for the authentication and delivery
of definitive Registered Securities of such series and tenor, will authenticate
and deliver, Registered Securities of such series and tenor in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
such Registered Global Securities, in exchange for such Registered Global
Securities.
Any time the Registered Securities of any series are not in
the form of Registered Global Securities pursuant to the preceding two
paragraphs, the Company agrees to supply the Trustee with a reasonable supply of
certificated Registered Securities without the legend required by Section 2.2
and the Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.3 with
respect to any Registered Global Security, the Depositary for such Registered
Global Security may surrender such Registered Global Security in exchange in
whole or in part for Registered Securities of the same series and tenor in
definitive registered form on such terms as are acceptable to the Company and
such Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
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(i) to the Person specified by such Depositary new
Registered Securities of the same series and tenor, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security
in a denomination equal to the difference, if any, between the
principal amount of the surrendered Registered Global Security and the
aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Registered Securities issued in exchange for a Registered
Global Security pursuant to this Section 2.7 shall be registered in such names
and in such authorized denominations as the Depositary for such Registered
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Company
or the Trustee. The Trustee or such agent shall deliver such Securities to or as
directed by the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the forms or terms of
any Securities to the contrary, none of the Company, the Trustee or any agent of
the Company or the Trustee shall be required to exchange any Unregistered
Security for a Registered Security if such exchange would result in adverse
Federal income tax consequences to the Company (such as, for example, the
inability of the Company to deduct from its income, as computed for Federal
income tax purposes, the interest payable on the Unregistered Securities) under
then applicable United States Federal income tax laws. The Trustee and any such
agent shall be entitled to rely on an Officers' Certificate or an Opinion of
Counsel in determining such result.
Neither the Registrar nor the Company shall be required (i) to
issue, authenticate, register the transfer of or exchange Securities of any
series for a period of 15 days before a selection of such Securities to be
redeemed or (ii) to register the transfer of or exchange any Security selected
for redemption in whole or in part.
Section 2.8 Replacement Securities. If a defaced or mutilated
Security of any series is surrendered to the Trustee or if a Holder claims that
its Security of any series has been lost, destroyed or wrongfully taken, the
Company shall, subject to the further provisions of this Section 2.8, issue and
the Trustee shall authenticate a replacement Security of such series and tenor
and principal amount bearing a number not contemporaneously outstanding. The
Company may charge such Holder for any tax or other governmental charge that may
be imposed as a result of or in connection with replacing a Security and for its
expenses and the expenses of the Trustee (including without limitation
attorneys' fees and expenses) in replacing a Security. In case any such
mutilated, defaced, lost, destroyed or wrongfully taken Security has become or
is about to become due and payable, the Company in its discretion may pay such
Security instead of issuing a new Security in replacement thereof. If required
by the Trustee or the Company, (i) an indemnity bond must be furnished that is
sufficient in the judgment of both the
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Trustee and the Company to protect the Company, the Trustee and any Agent from
any loss that any of them may suffer if a Security is replaced or paid as
provided in this Section 2.8 and (ii) in the case of a lost, destroyed or
wrongfully taken Security, evidence must be furnished to the satisfaction of
both the Trustee and the Company of the loss, destruction or wrongful taking of
such Security. Notwithstanding the foregoing, the Company and the Trustee shall
have no obligation to replace or pay a Security pursuant to this Section 2.8 if
either the Company or the Trustee has notice that such Security has been
acquired by a bona fide purchaser.
Every replacement Security is an additional obligation of the
Company and shall be entitled to the benefits of this Indenture.
To the extent permitted by law, the foregoing provisions of
this Section are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or wrongfully taken Securities.
Section 2.9 Outstanding Securities. Securities outstanding at
any time are all Securities that have been authenticated and delivered by the
Trustee except for those canceled by it, those delivered to it for cancellation
and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases
to be outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a holder in due
course.
If the Paying Agent (other than the Company or an affiliate of
the Company) holds on the maturity date or any redemption date or date for
repurchase of the Securities money sufficient to pay Securities payable or to be
redeemed or repurchased on that date, then on and after that date such
Securities cease to be outstanding and interest on them shall cease to accrue.
A Security does not cease to be outstanding because the
Company or one of its affiliates holds such Security, provided, however, that,
in determining whether the Holders of the requisite principal amount of the
outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
affiliate of the Company shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities as to which a Responsible Officer of the Trustee has
received written notice to be so owned shall be so disregarded. Any Securities
so owned that are pledged by the Company, or by any affiliate of the Company, as
security for loans or other obligations, otherwise than to another such
affiliate of the Company, shall be deemed to be outstanding, if the pledgee is
entitled pursuant to the terms of its pledge agreement and is free to exercise
in its or his discretion the right to vote such securities, uncontrolled by the
Company or by any such affiliate.
Section 2.10 Temporary Securities. Until definitive Securities
of any series are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities of such series. Temporary Securities of
any series shall be substantially in the form of definitive Securities of such
series but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers executing the temporary Securities,
as
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evidenced by their execution of such temporary Securities. If temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After the
preparation of definitive Securities of any series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series and
tenor upon surrender of such temporary Securities at the office or agency of the
Company designated for such purpose pursuant to Section 4.2, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of such series and tenor and authorized denominations.
Until so exchanged, the temporary Securities of any series shall be entitled to
the same benefits under this Indenture as definitive Securities of such series.
Section 2.11 Cancellation. The Company at any time may deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold.
The Registrar, any transfer agent and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee shall cancel and destroy all Securities surrendered for transfer,
exchange, payment or cancellation and shall deliver a certificate of destruction
to the Company. The Company may not issue new Securities to replace Securities
it has paid in full or delivered to the Trustee for cancellation.
Section 2.12 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in use), and
the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in
notices of redemption or exchange as a convenience to Holders and no
representation shall be made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption or
exchange.
Section 2.13 Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, it shall pay, or shall deposit with the
Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest plus (to the extent lawful) any interest payable on the
defaulted interest (as may be specified in the terms thereof, established
pursuant to Section 2.3) to the Persons who are Holders on a subsequent special
record date, which shall mean the 15th day next preceding the date fixed by the
Company for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before such special record date, the Company
shall mail to each Holder and to the Trustee a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.
Section 2.14 Series May Include Tranches. A series of
Securities may include one or more tranches (each, a "tranche") of Securities,
including Securities issued in a Periodic Offering. The Securities of different
tranches may have one or more different terms, including authentication dates
and public offering prices, but all the Securities within each such tranche
shall have identical terms, including authentication date and public offering
price. Notwithstanding any other provision of this Indenture, with respect to
Sections 2.2 (other than the fourth paragraph thereof) through 2.4, 2.7, 2.8,
2.10, 3.1 through 3.5, 4.2, 6.1 through 6.14, 8.1 through 8.5 and 9.2, if any
series of Securities includes more than one tranche, all
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provisions of such sections applicable to any series of Securities shall be
deemed equally applicable to each tranche of any series of Securities in the
same manner as though originally designated a series unless otherwise provided
with respect to such series or tranche pursuant to Section 2.3. In particular,
and without limiting the scope of the next preceding sentence, any of the
provisions of such sections which provide for or permit action to be taken with
respect to a series of Securities shall also be deemed to provide for and permit
such action to be taken instead only with respect to Securities of one or more
tranches within that series (and such provisions shall be deemed satisfied
thereby), even if no comparable action is taken with respect to Securities in
the remaining tranches of that series.
ARTICLE 3
REDEMPTION
----------
Section 3.1 Applicability Of Article. The provisions of this
Article shall be applicable to the Securities of any series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities of
a series except as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
Section 3.2 Notice Of Redemption; Partial Redemptions. Notice
of redemption to the Holders of Registered Securities of any series to be
redeemed as a whole or in part at the option of the Company shall be given by
mailing notice of such redemption by first class mail postage prepaid, at least
30 days and not more than 60 days prior to the date fixed for redemption to such
Holders of Registered Securities of such series at their last addresses as they
shall appear upon the Securities Register. Notice of redemption to the Holders
of Unregistered Securities of any series to be redeemed as a whole or in part
who have filed their names and addresses with the Trustee pursuant to Section
313(c)(2) of the Trust Indenture Act, shall be given by mailing notice of such
redemption, by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Company, the Trustee shall make such information available
to the Company for such purpose). Notice of redemption to all other Holders of
Unregistered Securities of any series to be redeemed as a whole or in part shall
be published in an Authorized Newspaper in The City of New York or with respect
to any Security the interest on which is based on the offered quotations in the
interbank Eurodollar market for dollar deposits in an Authorized Newspaper in
London, in each case, once in each of three successive calendar weeks, the first
publication to be not less than 30 days nor more than 60 days prior to the date
fixed for redemption. Any notice which is mailed or published in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Holder receives the notice. Failure to give notice by mail, or any
defect in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify (i)
the principal amount of each Security of such series held by such Holder to be
redeemed, (ii) the CUSIP numbers of the Securities to be redeemed, (iii) the
date fixed for redemption, (iv) the redemption
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price, (v) the place or places of payment, (vi) that payment will be made upon
presentation and surrender of such Securities and, in the case of Securities
with coupons attached thereto, of all coupons appertaining thereto maturing
after the date fixed for redemption, (vii) that such redemption is pursuant to
the mandatory or optional sinking fund, or both, if such be the case, (viii)
that interest accrued to the date fixed for redemption will be paid as specified
in such notice and that on and after said date interest thereon or on the
portions thereof to be redeemed will cease to accrue. In case any Security of a
series is to be redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series and tenor in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the Company.
Not later than 10:00 a.m. New York City time on the redemption
date specified in the notice of redemption given as provided in this Section,
the Company will deposit with the Trustee or with one or more Paying Agents (or,
if the Company is acting as its own Paying Agent, set aside, segregate and hold
in trust as provided in Section 2.6) an amount of money in immediately available
funds sufficient to redeem on the redemption date all the Securities of such
series so called for redemption at the appropriate redemption price, together
with accrued interest to the date fixed for redemption. If less than all the
outstanding Securities of a series are to be redeemed, the Company will deliver
to the Trustee at least 15 days prior to the last date on which notice of
redemption may be given to Holders pursuant to the first paragraph of this
Section 3.2 (or such shorter period as shall be acceptable to the Trustee) an
Officers' Certificate (which need not contain the statements required by Section
10.4) stating the aggregate principal amount of such Securities to be redeemed.
In case of a redemption at the election of the Company prior to the expiration
of any restriction on such redemption, the Company shall deliver to the Trustee,
prior to the giving of any notice of redemption to Holders pursuant to this
Section, an Officers' Certificate stating that such redemption is not prohibited
by such restriction.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, pro rata, by lot or in such manner as it
shall deem appropriate and fair, Securities of such series to be redeemed in
whole or in part. Securities may be redeemed in part in multiples equal to the
minimum authorized denomination for Securities of such series or any multiple
thereof. The Trustee shall promptly notify the Company in writing of the
Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
Section 3.3 Payment Of Securities Called For Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice
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at the applicable redemption price, together with interest accrued to the date
fixed for redemption, and on and after such date (unless the Company shall
default in the payment of such Securities at the redemption price, together with
interest accrued to such date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue, and the unmatured
coupons, if any, appertaining thereto shall be void and, except as provided in
Sections 7.11 and 8.4, such Securities shall cease from and after the date fixed
for redemption to be entitled to any benefit under this Indenture, and the
Holders thereof shall have no right in respect of such Securities except the
right to receive the redemption price thereof and unpaid interest to the date
fixed for redemption. On presentation and surrender of such Securities at a
place of payment specified in said notice, together with all coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said
Securities or the specified portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that payment of interest
becoming due on or prior to the date fixed for redemption shall be payable in
the case of Securities with coupons attached thereto, to the Holders of the
coupons for such interest upon surrender thereof, and in the case of Registered
Securities, to the Holders of such Registered Securities registered as such on
the relevant record date subject to the terms and provisions of Sections 2.4 and
2.13 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant coupons maturing after
the date fixed for redemption, the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee, if there be furnished to each of
them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Security of any series redeemed in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to or on the order of the Holder thereof, at the expense of the Company,
a new Security or Securities of such series and tenor (with any unmatured
coupons attached), of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
Section 3.4 Exclusion Of Certain Securities From Eligibility
For Selection For Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Company and
delivered to the Trustee at least 40 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, not
pledged or hypothecated by either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
Section 3.5 Mandatory And Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of Securities of
any series is herein referred
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to as a "mandatory sinking fund payment," and any payment in excess of such
minimum amount provided for by the terms of the Securities of any series is
herein referred to as an "optional sinking fund payment." The date on which a
sinking fund payment is to be made is herein referred to as the "sinking fund
payment date."
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the Company may
at its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation pursuant
to Section 2.11, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Company
through any optional sinking fund payment. Securities so delivered or credited
shall be received or credited by the Trustee at the sinking fund redemption
price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, or such shorter period as shall be acceptable to
the Trustee, the Company will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be satisfied
by payment of cash and the portion to be satisfied by credit of specified
Securities of such series and the basis for such credit, (b) stating that none
of the specified Securities of such series has theretofore been so credited, (c)
stating that no defaults in the payment of interest or Events of Default with
respect to such series have occurred (which have not been waived or cured) and
are continuing and (d) stating whether or not the Company intends to exercise
its right to make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund payment that the
Company intends to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and required to be delivered
to the Trustee in order for the Company to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.11 to the Trustee with such
Officers' Certificate (or reasonably promptly thereafter if acceptable to the
Trustee). Such Officers' Certificate shall be irrevocable and upon its receipt
by the Trustee the Company shall become unconditionally obligated to make all
the cash payments or delivery of securities therein referred to, if any, on or
before the next succeeding sinking fund payment date. Failure of the Company, on
or before any such sixtieth day, to deliver such Officer's Certificate and
Securities specified in this paragraph, if any, shall not constitute a Default
but shall constitute, on and as of such date, the irrevocable election of the
Company (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect thereof and
(ii) that the Company will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or a lesser sum if the Company shall so request with
respect to the Securities of any series), such cash shall be applied
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on the next succeeding sinking fund payment date to the redemption of Securities
of such series at the sinking fund redemption price thereof together with
accrued interest thereon to the date fixed for redemption. If such amount shall
be $50,000 (or such lesser sum) or less and the Company makes no such request
then it shall be carried over until a sum in excess of $50,000 (or such lesser
sum) is available. The Trustee shall select, in the manner provided in Section
3.2, for redemption on such sinking fund payment date a sufficient principal
amount of Securities of such series to absorb said cash, as nearly as may be,
and shall inform the Company of the serial numbers of the Securities of such
series (or portions thereof) so selected. Securities shall be excluded from
eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers' Certificate delivered to the
Trustee at least 60 days prior to the sinking fund payment date as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Company or (b) an entity specifically identified in such Officers' Certificate
as directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company. The Trustee, in the name and at the
expense of the Company (or the Company, if it shall so request the Trustee in
writing) shall cause notice of redemption of the Securities of such series to be
given in substantially the manner provided in Section 3.2 (and with the effect
provided in Section 3.3) for the redemption of Securities of such series in part
at the option of the Company. The amount of any sinking fund payments not so
applied or allocated to the redemption of Securities of such series shall be
added to the next cash sinking fund payment for such series and, together with
such payment, shall be applied in accordance with the provisions of this
Section. Any and all sinking fund moneys held on the stated maturity date of the
Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the purpose, to the payment of the Principal of, and
interest on, the Securities of such series at maturity.
Not later than 10:00 a.m. New York City time on each sinking
fund payment date, the Company shall pay to the Trustee in cash or shall
otherwise provide for the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following sinking fund
payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any notice of redemption
of Securities of such series by operation of the sinking fund during the
continuance of a Default in payment of interest on such Securities or of any
Event of Default except that, where the mailing of notice of redemption of any
Securities shall theretofore have been made, the Trustee shall redeem or cause
to be redeemed such Securities, provided that it shall have received from the
Company a sum sufficient for such redemption. Except as aforesaid, any moneys in
the sinking fund for such series at the time when any such Default or Event of
Default shall occur, and any moneys thereafter paid into the sinking fund,
shall, during the continuance of such Default or Event of Default, be deemed to
have been collected under Article 6 and held for the payment of all such
Securities. In case such Event of Default shall have been waived as provided in
Section 6.4 or the Default cured on or before the sixtieth day preceding the
sinking fund payment date in any year, such moneys shall thereafter be applied
on the next succeeding sinking fund payment date in accordance with this Section
to the redemption of such Securities.
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ARTICLE 4
COVENANTS
---------
Section 4.1 Payment Of Securities. The Company shall pay the
Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities with
coupons attached (together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only upon presentation and surrender
of the several coupons for such interest installments as are evidenced thereby
as they severally mature. The interest on any temporary Unregistered Securities
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be paid, as to the installments of interest evidenced by
coupons attached thereto, if any, only upon presentation and surrender thereof,
and, as to the other installments of interest, if any, only upon presentation of
such Unregistered Securities for notation thereon of the payment of such
interest. The interest on Registered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only
to the Holders thereof and at the option of the Company may be paid by mailing
checks for such interest payable to or upon the written order of such Holders at
their last addresses as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the
Securities of any series to the contrary, if the Company and a Holder of any
Registered Security so agree, payments of interest on, and any portion of the
Principal of, such Holder's Registered Security (other than interest payable at
maturity or on any redemption or repayment date or the final payment of
Principal on such Security) shall be made by the Paying Agent, upon receipt from
the Company of immediately available funds by 11:00 A.M., New York City time (or
such other time as may be agreed to between the Company and the Paying Agent),
directly to the Holder of such Security (by Federal funds wire transfer or
otherwise) if the Holder has delivered written instructions to the Trustee 15
days prior to such payment date requesting that such payment will be so made and
designating the bank account to which such payments shall be so made and in the
case of payments of Principal surrenders the same to the Trustee in exchange for
a Security or Securities aggregating the same principal amount as the unredeemed
principal amount of the Securities surrendered. The Trustee shall be entitled to
rely on the last instruction delivered by the Holder pursuant to this Section
4.1 unless a new instruction is delivered 15 days prior to a payment date. The
Company will indemnify and hold each of the Trustee and any Paying Agent
harmless against any loss, liability or expense (including attorneys' fees)
resulting from any act or omission to act on the part of the Company or any such
Holder in connection with any such agreement or from making any payment in
accordance with any such agreement.
The Company shall pay interest on overdue Principal, and
interest on overdue installments of interest, to the extent lawful, at the rate
per annum specified in the Securities.
Section 4.2 Maintenance Of Office Or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company hereby initially designates the Corporate Trust Office
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of the Trustee, located in the Borough of Manhattan, The City of New York, as
such office or agency of the Company. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the address of the Trustee set forth in Section 10.2.
The Company will maintain one or more agencies in a city or
cities located outside the United States (including any city in which such an
agency is required to be maintained under the rules of any stock exchange on
which the Securities of any series are listed) where the Unregistered
Securities, if any, of each series and coupons, if any, appertaining thereto may
be presented for payment. No payment on any Unregistered Security or coupon will
be made upon presentation of such Unregistered Security or coupon at an agency
of the Company within the United States nor will any payment be made by transfer
to an account in, or by mail to an address in, the United States unless,
pursuant to applicable United States laws and regulations then in effect, such
payment can be made without adverse tax consequences to the Company.
Notwithstanding the foregoing, if full payment in United States Dollars
("Dollars") at each agency maintained by the Company outside the United States
for payment on such Unregistered Securities or coupons appertaining thereto is
illegal or effectively precluded by exchange controls or other similar
restrictions, payments in Dollars of Unregistered Securities of any series and
coupons appertaining thereto which are payable in Dollars may be made at an
agency of the Company maintained in the Borough of Manhattan, The City of New
York.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in
the Borough of Manhattan, The City of New York for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
Section 4.3 Negative Pledge. (a) The Company will not, and
will not permit any Restricted Subsidiary to, create or incur any Lien on any
shares of stock, indebtedness or other obligations of a Restricted Subsidiary or
any Principal Property of the Company or a Restricted Subsidiary, whether such
shares of stock, indebtedness or other obligations of a Restricted Subsidiary or
Principal Property are owned at the date of this Indenture or hereafter
acquired, unless the Company secures or causes such Restricted Subsidiary to
secure the outstanding Securities equally and ratably with (or, at the Company's
option, prior to) all indebtedness secured by such Lien, so long as such
indebtedness shall be so secured; provided, however, that this covenant shall
not apply in the case of: (i) the creation of any Lien on any shares of stock,
indebtedness or other obligations of a Subsidiary or any Principal Property
hereafter acquired (including acquisitions by way of merger or consolidation) by
the Company or a Restricted Subsidiary contemporaneously with such acquisition,
or within 180 days thereafter, to secure or provide for the payment or financing
of any part of the purchase price thereof, or the assumption of any Lien upon
any shares of stock, indebtedness or other obligations of a Subsidiary or any
Principal Property hereafter acquired existing at the time of such acquisition,
or the acquisition of any shares of stock, indebtedness or other obligations of
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a Subsidiary or any Principal Property subject to any Lien without the
assumption thereof, provided that every such Lien referred to in this clause (i)
shall attach only to the shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property so acquired and fixed improvements thereon;
(ii) any Lien on any shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property existing at the date of this Indenture;
(iii) any Lien on any shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property in favor of the Company or any Restricted
Subsidiary; (iv) any Lien on any Principal Property being constructed or
improved securing loans to finance such construction or improvements; (v) any
Lien on shares of stock, indebtedness or other obligations of a Subsidiary or
any Principal Property incurred in connection with the issuance of tax-exempt
governmental obligations (including, without limitation, industrial revenue
bonds and similar financings); (vi) any mechanics', materialmen's, carriers' or
other similar Liens arising in the ordinary course of business with respect to
obligations that are not yet due or that are being contested in good faith,
(vii) any Lien on any shares of stock, indebtedness or other obligations of a
Subsidiary or any Principal Property for taxes, assessments or governmental
charges or levies not yet delinquent, or already delinquent but the validity of
which is being contested in good faith, (viii) any Lien on any shares of stock,
indebtedness or other obligations of a Subsidiary or any Principal Property
arising in connection with legal proceedings being contested in good faith,
including any judgment Lien so long as execution thereon is stayed, (ix) any
landlord's Lien on fixtures located on premises leased by the Company or a
Restricted Subsidiary in the ordinary course of business, and tenants' rights
under leases, easements and similar Liens not materially impairing the use or
value of the property involved, (x) any Lien arising by reason of deposits
necessary to qualify the Company or any Restricted Subsidiary to conduct
business, maintain self insurance, or obtain the benefit of, or comply with, any
law, (xi) Liens on current assets of the Company to secure loans to the Company
that mature within twelve months from the creation thereof and that are made in
the ordinary course of business, and (xii) any renewal of or substitution for
any Lien permitted by any of the preceding clauses (i) through (xi), provided,
in the case of a Lien permitted under clause (i), (ii) or (iv), the indebtedness
secured is not increased nor the Lien extended to any additional assets.
(b) Notwithstanding the provisions of paragraph (a) of this
Section, the Company or any Restricted Subsidiary may create or assume Liens in
addition to those permitted by paragraph (a) of this Section, and renew, extend
or replace such liens, provided that at the time of such creation, assumption,
renewal, extension or replacement, and after giving effect thereto, Exempted
Debt does not exceed 15% of Consolidated Net Tangible Assets.
Section 4.4 Certain Sale And Lease-Back Transactions. (a) The
Company will not, and will not permit any Restricted Subsidiary to, sell or
transfer, directly or indirectly, except to the Company or a Restricted
Subsidiary, any Principal Property as an entirety, or any substantial portion
thereof, with the intention of taking back a lease of such property, except a
lease for a period of three years or less at the end of which it is intended
that the use of such property by the lessee will be discontinued; provided that,
notwithstanding the foregoing, the Company or any Restricted Subsidiary may sell
any such Principal Property and lease it back for a longer period (i) if the
Company or such Restricted Subsidiary would be entitled, pursuant to the
provisions of Section 4.3(a), to create a Lien on the property to be leased
securing Funded Debt in an amount equal to the Attributable Debt with respect to
such sale and lease-back transaction without equally and ratably securing the
outstanding Securities or (ii) if (A) the
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Company promptly informs the Trustee of such transaction and (B) the Company
causes an amount equal to the fair value (as determined by Board Resolution of
the Company) of such property to be applied (1) to the purchase of other
property that will constitute Principal Property having a fair value at least
equal to the fair value of the property sold, or (2) to the retirement, within
120 days after receipt of such proceeds, of Funded Debt incurred or assumed by
the Company or a Restricted Subsidiary (including the Securities); provided
further that, in lieu of applying all of or any part of such net proceeds to
such retirement, the Company may, within 75 days after such sale, deliver or
cause to be delivered to the applicable trustee for cancellation either
debentures or notes evidencing Funded Debt of the Company (which may include the
Securities) or of a Restricted Subsidiary previously authenticated and delivered
by the applicable trustee, and not theretofore tendered for sinking fund
purposes or called for a sinking fund or otherwise applied as a credit against
an obligation to redeem or retire such notes or debentures, and an Officers'
Certificate (which shall be delivered to the Trustee and which need not contain
the statements prescribed by Section 10.4) stating that the Company elects to
deliver or cause to be delivered such debentures or notes in lieu of retiring
Funded Debt as hereinabove provided. If the Company shall so deliver debentures
or notes to the applicable trustee and the Company shall duly deliver such
Officers' Certificate, the amount of cash that the Company shall be required to
apply to the retirement of Funded Debt under this Section 4.4(a) shall be
reduced by an amount equal to the aggregate of the then applicable optional
redemption prices (not including any optional sinking fund redemption prices) of
such debentures or notes, or, if there are no such redemption prices, the
principal amount of such debentures or notes; provided, that in the case of
debentures or notes that provide for an amount less than the principal amount
thereof to be due and payable upon a declaration of the maturity thereof, such
amount of cash shall be reduced by the amount of principal of such debentures or
notes that would be due and payable as of the date of such application upon a
declaration of acceleration of the maturity thereof pursuant to the terms of the
indenture pursuant to which such debentures or notes were issued.
(b) Notwithstanding the provisions of paragraph (a) of this
Section 4.4, the Company or any Restricted Subsidiary may enter into sale and
lease-back transactions in addition to those permitted by paragraph (a) of this
Section 4.4 without any obligation to retire any outstanding Securities or other
Funded Debt, provided that at the time of entering into such sale and lease-back
transactions and after giving effect thereto, Exempted Debt does not exceed 15%
of Consolidated Net Tangible Assets.
Section 4.5 Certificate To Trustee. The Company will furnish
to the Trustee annually, on or before a date not more than four months after the
end of its fiscal year (which, on the date hereof, is a calendar year), a brief
certificate (which need not contain the statements required by Section 10.4)
from its principal executive, financial or accounting officer as to his or her
knowledge of the compliance of the Company with all conditions and covenants
under this Indenture (such compliance to be determined without regard to any
period of grace or requirement of notice provided under this Indenture) which
certificate shall comply with the requirements of the Trust Indenture Act.
Section 4.6 Reports By The Company. The Company covenants to
file with the Trustee, within 15 days after the Company is required to file the
same with the Commission, copies of the annual reports and of the information,
documents, and other reports which the
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Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act.
ARTICLE 5
SUCCESSOR CORPORATION
---------------------
Section 5.1 When Company May Merge, Etc. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (in one
transaction or a series of related transactions) to, any Person (other than a
consolidation with or merger with or into a Subsidiary or a sale, conveyance,
transfer, lease or other disposition to a Subsidiary) or permit any Person to
merge with or into the Company unless:
(a) either (i) the Company shall be the continuing Person or
(ii) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or that acquired or
leased such property and assets of the Company shall be a corporation
organized and validly existing under the laws of the United States of
America or any jurisdiction thereof and shall expressly assume, by a
supplemental indenture, executed and delivered to the Trustee, all of
the obligations of the Company on all of the Securities and under this
Indenture and the Company shall have delivered to the Trustee an
Opinion of Counsel stating that such consolidation, merger or transfer
and such supplemental indenture complies with this provision and that
all conditions precedent provided for herein relating to such
transaction have been complied with and that such supplemental
indenture constitutes the legal, valid and binding obligation of the
Company or such successor enforceable against such entity in accordance
with its terms, subject to customary exceptions; and
(b) an Officers' Certificate to the effect that immediately
after giving effect to such transaction, no Default shall have occurred
and be continuing and an Opinion of Counsel as to the matters set forth
in Section 5.1(a) shall have been delivered to the Trustee.
Section 5.2 Successor Substituted. Upon any consolidation or
merger, or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.1, the successor Person formed by such consolidation or into which the
Company is merged or to which such sale, conveyance, transfer, lease or other
disposition is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein. In the event
of any such sale, conveyance, transfer or other disposition (other than by way
of lease) the Company or any successor Person that shall heretofore have become
such in the manner described in this Article shall be discharged from all
obligations and covenants under this Indenture and the Securities and may be
liquidated and dissolved.
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ARTICLE 6
DEFAULT AND REMEDIES
--------------------
Section 6.1 Events Of Default. An "Event of Default" shall
occur with respect to the Securities of any series if:
(a) the Company defaults in the payment of the Principal of
any Security of such series when the same becomes due and payable at
maturity, upon acceleration, redemption or mandatory repurchase,
including as a sinking fund installment, or otherwise;
(b) the Company defaults in the payment of interest on any
Security of such series when the same becomes due and payable, and such
default continues for a period of 30 days;
(c) the Company defaults in the performance of or breaches any
other covenant or agreement of the Company in this Indenture with
respect to any Security of such series or in the Securities of such
series and such default or breach continues for a period of 30
consecutive days after written notice to the Company by the Trustee or
to the Company and the Trustee by the Holders of 25% or more in
aggregate principal amount of the Securities of all series affected
thereby;
(d) an involuntary case or other proceeding shall be commenced
against the Company or any Restricted Subsidiary with respect to it or
its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the Company or
any Restricted Subsidiary under the federal bankruptcy laws as now or
hereafter in effect;
(e) the Company or any Restricted Subsidiary (A) commences a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an
order for relief in an involuntary case under any such law, (B)
consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any Restricted Subsidiary or for all or
substantially all of the property and assets of the Company or any
Restricted Subsidiary or (C) effects any general assignment for the
benefit of creditors; or
(f) any other Event of Default established pursuant to Section
2.3 with respect to the Securities of such series occurs.
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Section 6.2 Acceleration. (a) If an Event of Default described
in clauses (a) or (b) of Section 6.1 with respect to the Securities of any
series then outstanding occurs and is continuing, then, and in each and every
such case, except for any series of Securities the principal of which shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Securities of any such affected
series then outstanding hereunder (each such series treated as a separate class)
by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of any
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series established
pursuant to Section 2.3) of all Securities of such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
(b) If an Event of Default described in clauses (c) or (f) of
Section 6.1 with respect to the Securities of one or more but not all series
then outstanding, or with respect to the Securities of all series then
outstanding, occurs and is continuing, then, and in each and every such case,
except for any series of Securities the principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount (or, if the Securities of any such series are
Original Issue Discount Securities, the amount thereof accelerable under this
Section) of the Securities of all such affected series then outstanding
hereunder (treated as a single class) by notice in writing to the Company (and
to the Trustee if given by Securityholders), may declare the entire principal
(or, if the Securities of any such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series established pursuant to Section 2.3) of all Securities of
all such affected series, and the interest accrued thereon, if any, to be due
and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
(c) If an Event of Default described in clause (d) or (e) of
Section 6.1 occurs and is continuing, then the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the principal
as may be specified in the terms thereof established pursuant to Section 2.3) of
all the Securities then outstanding and interest accrued thereon, if any, shall
be and become immediately due and payable, without any notice or other action by
any Holder or the Trustee, to the full extent permitted by applicable law.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof established pursuant to Section 2.3) of the
Securities of any series (or of all the Securities, as the case may be) shall
have been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon all the Securities
of each such series (or of all the Securities, as the case may be) and the
principal of any and all Securities of each such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment
of such interest is enforceable under applicable law, on overdue
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installments of interest, at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of each such series to the date of such payment or deposit) and such
amount as shall be sufficient to cover all amounts owing the Trustee under
Section 7.7, and if any and all Events of Default under the Indenture, other
than the non-payment of the principal of Securities that shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as provided
herein, then, and in each and every such case, the Holders of a majority in
aggregate principal amount of all the then outstanding Securities of all such
series that have been accelerated (voting as a single class), by written notice
to the Company and to the Trustee, may waive all defaults with respect to all
such series (or with respect to all the Securities, as the case may be) and
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and annulled,
the principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal thereof as shall
be due and payable as a result of such acceleration, and payment of such portion
of the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
Section 6.3 Other Remedies. If a payment default or an Event
of Default with respect to the Securities of any series occurs and is
continuing, the Trustee may pursue, in its own name or as trustee of an express
trust, any available remedy by proceeding at law or in equity to collect the
payment of principal of and interest on the Securities of such series or to
enforce the performance of any provision of the Securities of such series or
this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
Section 6.4 Waiver Of Past Defaults. Subject to Sections 6.2,
6.7 and 9.2, the Holders of at least a majority in principal amount (or, if the
Securities are Original Issue Discount Securities, such portion of the principal
as is then accelerable under Section 6.2) of the outstanding Securities of all
series affected (voting as a single class), by notice to the Trustee, may waive,
on behalf of the Holders of all the Securities of such series, an existing
Default or Event of Default with respect to the Securities of such series and
its consequences, except a Default in the payment of Principal of or interest on
any Security as specified in clause (a) or (b) of Section 6.1 or in respect of a
covenant or provision of this Indenture which cannot be modified or amended
without the consent of the Holder of each outstanding Security affected. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
with respect to the Securities of such series arising therefrom shall be deemed
to have been cured, for every purpose of this Indenture; but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any right consequent thereto.
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Section 6.5 Control By Majority. Subject to Sections 7.1 and
7.2(v), the Holders of at least a majority in aggregate principal amount (or, if
any Securities are Original Issue Discount Securities, such portion of the
principal as is then accelerable under Section 6.2) of the outstanding
Securities of all series affected (voting as a single class) may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further that
the Trustee may take any other action it deems proper that is not inconsistent
with any directions received from Holders of Securities pursuant to this Section
6.5.
Section 6.6 Limitation On Suits. No Holder of any Security of
any series may institute any proceeding, judicial or otherwise, with respect to
this Indenture or the Securities of such series, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given to the Trustee
written notice of a continuing Event of Default with respect to the
Securities of such series;
(b) the Holders of at least 25% in aggregate principal
amount of outstanding Securities of all such series affected shall have
made written request to the Trustee to institute proceedings in respect
of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against any costs,
liabilities or expenses to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(e) during such 60 day period, the Holders of a majority
in aggregate principal amount of the outstanding Securities of all such
affected series have not given the Trustee a direction that is
inconsistent with such written request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
Section 6.7 Rights Of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Security to receive payment of Principal of or interest, if any, on such
Holder's Security on or after the respective due dates expressed on such
Security, 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.
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Section 6.8 Collection Suit By Trustee. If an Event of Default
with respect to the Securities of any series in payment of Principal or interest
specified in clause (a) or (b) of Section 6.1 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount (or such portion thereof as specified
in the terms established pursuant to Section 2.3 of Original Issue Discount
Securities) of Principal of, and accrued interest remaining unpaid on, together
with interest on overdue Principal of, and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest on, the
Securities of such series, in each case at the rate or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in such Securities, and
such further amount as shall be sufficient to cover all amounts owing the
Trustee under Section 7.7.
Section 6.9 Trustee May File Proofs Of Claim. In the case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee may 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 amounts due the Trustee under Section 7.7) and the Holders allowed in
any judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any moneys, securities or other property payable or
deliverable upon conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official 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
under Section 7.7. Nothing herein contained shall be deemed to empower 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
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Application Of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of Principal
or interest, upon presentation of the several Securities and coupons
appertaining to such Securities in respect of which moneys have been collected
and noting thereon the payment, or issuing Securities of such series and tenor
in reduced principal amounts in exchange for the presented Securities of such
series and tenor if only partially paid, or upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.7 applicable to the Securities of such series in respect of
which moneys have been collected;
SECOND: In case the principal of the Securities of such series
in respect of which moneys have been collected shall not have become
and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the
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maturity of the installments of such interest, with interest (to the
extent that such interest has been collected by the Trustee) upon the
overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, such payments to be made
ratably to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and
shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for Principal
and interest, with interest upon the overdue Principal, and (to the
extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole amount so
due and unpaid upon the Securities of such series, then to the payment
of such Principal and interest or Yield to Maturity, without preference
or priority of Principal over interest or Yield to Maturity, or of
interest or Yield to Maturity over Principal, or of any installment of
interest over any other installment of interest, or of any Security of
such series over any other Security of such series, ratably to the
aggregate of such Principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other person lawfully entitled thereto.
Section 6.11 Restoration Of Rights And Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then, and in each and every such case, subject to any determination
in such proceeding, the Company, the Trustee and the Holders shall be restored
to their former positions hereunder and thereafter all rights and remedies of
the Company, Trustee and the Holders shall continue as though no such proceeding
had been instituted.
Section 6.12 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 Trustee, in either case in
respect to the Securities of any series, a court may require any party litigant
in such suit (other than the Trustee) to file an undertaking to pay the costs of
the suit, and the court may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant (other than the Trustee) in the suit
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section 6.12 does not apply to a suit by a Holder
pursuant to Section 6.7 or a suit by Holders of more than 10% in aggregate
principal amount of the outstanding Securities of such series.
Section 6.13 Rights And Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities in Section 2.8, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right
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and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 6.14 Delay Or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article 6 or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE 7
TRUSTEE
-------
Section 7.1 General. The duties and responsibilities of the
Trustee shall be as provided by the Trust Indenture Act and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, unless it receives indemnity satisfactory to it
against any loss, liability or expense. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Article 7.
Section 7.2 Certain Rights Of Trustee. Subject to Trust
Indenture Act Sections 315(a) through (d):
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
Officers' Certificate, Opinion of Counsel (or both), statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper person or persons. The Trustee need not
investigate any fact or matter stated in the document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit;
(b) before the Trustee acts or refrains from acting, it
may require an Officers' Certificate and/or an Opinion of Counsel,
which shall conform to Section 10.4. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on
such certificate or opinion. Subject to Sections 7.1 and 7.2, whenever
in the administration of the trusts of this Indenture the Trustee shall
deem it necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part
of the Trustee, be deemed to be conclusively proved and established by
an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith
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on the part of the Trustee, shall be full warrant to the Trustee for
any action taken, suffered or omitted by it under the provisions of
this Indenture upon the faith thereof;
(c) the Trustee may act through its attorneys and agents
not regularly in its employ and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due
care by it hereunder;
(d) any request, direction, order or demand of the
Company mentioned herein shall be sufficiently evidenced by an
Officers' Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any Board Resolution may be
evidenced to the Trustee by a copy thereof certified by the Secretary
or an Assistant Secretary of the Company;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request, order 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;
(f) 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 its rights or powers or for any action it takes or omits to
take in accordance with the direction of the Holders in accordance with
Section 6.5 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture;
(g) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon; and
(h) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of Default, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, Officers' Certificate,
Opinion of Counsel, Board Resolution, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation,
it shall be entitled to examine, during normal business hours and upon
prior written notice, books, records and premises of the Company,
personally or by agent or attorney.
Section 7.3 Individual Rights Of Trustee. The Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Company or its affiliates with the same rights
it would have if it were not the Trustee. Any Agent may do the same with like
rights. However, the Trustee is subject to Trust Indenture Act
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Sections 310(b) and 311. For purposes of Trust Indenture Act Section 311(b)(4)
and (6), the following terms shall mean:
(a) "Cash Transaction" means any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand; and
(b) "Self-Liquidating Paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and that is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
Section 7.4 Trustee's Disclaimer. The recitals contained
herein and in the Securities (except the Trustee's certificate of
authentication) shall be taken as statements of the Company and not of the
Trustee and the Trustee assumes no responsibility for the correctness of the
same. Neither the Trustee nor any of its agents (i) makes any representation as
to the validity or adequacy of this Indenture or the Securities and (ii) shall
be accountable for the Company's use or application of the proceeds from the
Securities.
Section 7.5 Notice Of Default. If any Default with respect to
the Securities of any series occurs and is continuing and if such Default is
known to the actual knowledge of a Responsible Officer with the Corporate Trust
Department of the Trustee, the Trustee shall give to each Holder of Securities
of such series notice of such Default within 90 days after it occurs (i) if any
Unregistered Securities of such series are then outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London and (ii) to all Holders of Securities of such series in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, unless such
Default shall have been cured or waived before the mailing or publication of
such notice; provided, however, that, except in the case of a Default in the
payment of the Principal of or interest on any Security, the Trustee shall be
protected in withholding such notice if the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders.
Section 7.6 Reports By Trustee To Holders. Within 60 days
after each May 15, beginning with May 15, 1997, the Trustee shall mail to each
Holder as and to the extent provided in Trust Indenture Act Section 313(c) a
brief report dated as of such May 15, if required by Trust Indenture Act Section
313(a).
Section 7.7 Compensation And Indemnity. The Company shall pay
to the Trustee such compensation as shall be agreed upon in writing from time to
time for its services. The compensation of the Trustee shall not be limited by
any law on compensation of a Trustee of an express trust. The Company agrees to
pay or reimburse the Trustee and each predecessor
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Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by or on behalf of it in accordance with any of the provisions
of this Indenture and the Securities or the issuance of the Securities or any
series thereof (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except to the extent any such expense, disbursement or advance
may arise from its negligence or bad faith. The Company shall indemnify the
Trustee and each predecessor Trustee for, and to hold it harmless against, any
loss, liability or expense arising out of or in connection with the acceptance
or administration of this Indenture and the Securities or the issuance of the
Securities or any series thereof or the trusts hereunder and the performance of
its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability in the premises, except to the
extent such loss, liability or expense is due to the negligence or bad faith of
the Trustee or such predecessor Trustee. The Trustee shall notify the Company
promptly of any claim asserted against the Trustee for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel; provided that the Company will not
be required to pay such fees and expenses if it assumes the Trustee's defense
and there is no conflict of interest between the Company and the Trustee in
connection with such defense. The Company need not pay for any settlement made
without its written consent. The Company need not reimburse any expense or
indemnify against any loss or liability to the extent incurred by the Trustee
through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section
7.7, the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee, in its capacity as Trustee, except
money or property held in trust to pay Principal of, and interest on particular
Securities.
The obligations of the Company under this Section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture or the rejection or
termination of this Indenture under bankruptcy law. Such additional indebtedness
shall be a senior claim to that of the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
benefit of the Holders of particular Securities or coupons, and the Securities
are hereby subordinated to such senior claim. If the Trustee renders services
and incurs expenses following an Event of Default under Section 6.1(d) or
Section 6.1(e), the parties hereto and the Holders by their acceptance of the
Securities hereby agree that such expenses are intended to constitute expenses
of administration under any bankruptcy law.
Section 7.8 Replacement Of Trustee. A resignation or removal
of the Trustee as Trustee with respect to the Securities of any series and
appointment of a successor Trustee as Trustee with respect to the Securities of
any series shall become effective only upon the successor Trustee's acceptance
of appointment as provided in this Section 7.8.
The Trustee may resign as Trustee with respect to the
Securities of any series at any time by so notifying the Company in writing. The
Holders of a majority in aggregate
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principal amount of the outstanding Securities of any series may remove the
Trustee as Trustee with respect to the Securities of such series by so notifying
the Trustee and the Company in writing and may appoint a successor Trustee with
respect thereto with the consent of the Company. The Company may remove the
Trustee as Trustee with respect to the Securities of any series if: (a) the
Trustee is no longer eligible under Section 7.10 of this Indenture; (b) the
Trustee is adjudged a bankrupt or insolvent; (c) a receiver or other 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 as Trustee with respect
to the Securities of any series, or if a vacancy exists in the office of Trustee
with respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year after
the successor Trustee takes office, the Holders of a majority in aggregate
principal amount of the outstanding Securities of such series may appoint a
successor Trustee in respect of such Securities to replace the successor Trustee
appointed by the Company. If the successor Trustee with respect to the
Securities of any series does not deliver its written acceptance required by the
next succeeding paragraph of this Section 7.8 within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders
of a majority in aggregate principal amount of the outstanding Securities of
such series may petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect thereto.
A successor Trustee with respect to the Securities of any
series shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Immediately after the delivery of such written
acceptance, subject to the lien provided for in Section 7.7, (a) the retiring
Trustee shall transfer all property held by it as Trustee in respect of the
Securities of such series to the successor Trustee, (b) the resignation or
removal of the retiring Trustee in respect of the Securities of such series
shall become effective and (c) the successor Trustee shall have all the rights,
powers and duties of the Trustee in respect of the Securities of such series
under this Indenture. A successor Trustee shall mail notice of its succession to
each Holder of Securities of such series.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in the preceding paragraph.
The Company shall give notice of any resignation and any
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee in respect of the Securities of such series
to all Holders of Securities of such series. Each notice shall include the name
of the successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.8, the Company's obligations
under Section 7.7 shall continue for the benefit of the retiring Trustee.
Section 7.9 Successor Trustee By Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee
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corporation or national banking association without any further act shall be the
successor Trustee with the same effect as if the successor Trustee had been
named as the Trustee herein.
Section 7.10 Eligibility. This Indenture shall always have a
Trustee who satisfies the requirements of Trust Indenture Act Section 310(a).
The Trustee shall have a combined capital and surplus of at least $10,000,000 as
set forth in its most recent published annual report of condition, if any. The
Trustee shall comply with Trust Indenture Act Section 310(b). If at any time the
Trustee with respect to the Securities of any series shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
within the manner and with the effect hereinafter specified in this Article.
Section 7.11 Money Held In Trust. 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 and except for
money held in trust under Article 8 of this Indenture.
ARTICLE 8
DISCHARGE OF INDENTURE
----------------------
Section 8.1 Defeasance Within One Year Of Payment. Except as
otherwise provided in this Section 8.1, the Company may terminate its
obligations under the Securities of any series and this Indenture with respect
to Securities of such series if:
(a) all Securities of such series previously
authenticated and delivered (other than destroyed, lost or wrongfully
taken Securities of such series that have been replaced or Securities
of such series that are paid pursuant to Section 4.1 or Securities of
such series for whose payment money or securities have theretofore been
held in trust and thereafter repaid to the Company, as provided in
Section 8.5) have been delivered to the Trustee for cancellation and
the Company has paid all sums payable by it hereunder; or
(b) (i) the Securities of such series mature within one
year or all of them are to be called for redemption within one year
under arrangements satisfactory to the Trustee for giving the notice of
redemption, (ii) the Company irrevocably deposits in trust with the
Trustee, as trust funds solely for the benefit of the Holders of such
Securities for that purpose, money or U.S. Government Obligations or a
combination thereof sufficient (unless such funds consist solely of
money, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any reinvestment,
to pay Principal of and interest on the Securities of such series to
maturity or redemption, as the case may be, and to pay all other sums
payable by it hereunder, and (iii) the Company delivers to the Trustee
an Officers' Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent provided for herein relating to
the satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with.
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With respect to the foregoing clause (a), only the Company's
obligations under Sections 7.7 and 8.5 in respect of the Securities of such
series shall survive. With respect to the foregoing clause (b), only the
Company's obligations in Sections 2.2 through 2.12, 4.2, 7.7, 7.8 and 8.5 in
respect of the Securities of such series shall survive until such Securities of
such series are no longer outstanding. Thereafter, only the Company's
obligations in Sections 7.7 and 8.5 in respect of the Securities of such series
shall survive. After any such irrevocable deposit, the Trustee shall acknowledge
in writing the discharge of the Company's obligations under the Securities of
such series and this Indenture with respect to the Securities of such series
except for those surviving obligations specified above.
Section 8.2 Defeasance. Except as provided below, the Company
will be deemed to have paid and will be discharged from any and all obligations
in respect of the Securities of any series and the provisions of this Indenture
will no longer be in effect with respect to the Securities of such series (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same); provided that the following conditions shall have been
satisfied:
(a) the Company has irrevocably deposited in trust with
the Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the Principal of and interest
on the Securities of such series, money or U.S. Government Obligations
or a combination thereof sufficient (unless such funds consist solely
of money, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee) without consideration of any reinvestment and
after payment of all federal, state and local taxes or other charges
and assessments in respect thereof payable by the Trustee, to pay and
discharge the Principal of and accrued interest on the outstanding
Securities of such series to maturity or earlier redemption
(irrevocable provided for under arrangements satisfactory to the
Trustee), as the case may be;
(b) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party
or by which it is bound;
(c) no Default with respect to the Securities of such
series shall have occurred and be continuing on the date of such
deposit;
(d) the Company shall have delivered to the Trustee (1)
either (x) a ruling directed to the Trustee received from the United
States Internal Revenue Service to the effect that the Holders of the
Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of the Company's exercise of
its option under this Section 8.2 and will be subject to federal income
tax on the same amount and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not
occurred, (y) an Opinion of Counsel to the same effect as the ruling
described in clause (x) above and based upon a change in law, or (z) an
instrument, in form reasonably satisfactory to the Trustee, wherein the
Company, notwithstanding the payment and discharge, pursuant to this
Section 8.2, of its indebtedness in respect of Securities of any
series, or any portion of the principal amount
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thereof, shall assume the obligation (which shall be absolute and
unconditional) to irrevocably deposit with the Trustee such additional
sums of money, if any, or additional U.S. Government Obligations
(meeting the requirements of this Article 8), if any, or any
combination thereof, at such time or times, as shall be necessary,
together with the money and/or U.S. Government Obligations theretofore
so deposited, to pay when due the Principal of and premium, if any, and
interest due and to become due on such Securities or portions thereof;
provided, however, that such instrument may state that the obligation
of the Company to make additional deposits as aforesaid shall be
subject to the delivery to the Company by the Trustee of a notice
asserting the deficiency accompanied by an opinion of an independent
public accountant of nationally recognized standing, selected by the
Trustee, showing the calculation thereof, and (2) an Opinion of Counsel
to the effect that the Holders of the Securities of such series have a
valid security interest in the trust funds subject to no prior liens
under the UCC; and
(e) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to the
defeasance contemplated by this Section 8.2 of the Securities of such
series have been complied with.
The Company's obligations in Sections 2.2 through 2.12, 4.2,
7.7, 7.8 and 8.5 with respect to the Securities of such series shall survive
until such Securities are no longer outstanding. Thereafter, only the Company's
obligations in Sections 7.7 and 8.5 shall survive.
Section 8.3 Covenant Defeasance. The Company may omit to
comply with any term, provision or condition set forth in Sections 4.3 or 4.4
(or any other specific covenant relating to such series provided for in a Board
Resolution or supplemental indenture, or Officer's Certificate pursuant to such
Board Resolution or such supplemental indenture, pursuant to Section 2.3 that
may by its terms be defeased pursuant to this Section 8.3), and such omission
shall be deemed not to be an Event of Default under clauses (c) or (f) of
Section 6.1, with respect to the outstanding Securities of a series if:
(a) the Company has irrevocably deposited in trust with
the Trustee as trust funds solely for the benefit of the Holders of the
Securities of such series, for payment of the Principal of and
interest, if any, on the Securities of such series, money or U.S.
Government Obligations or a combination thereof in an amount sufficient
(unless such funds consist solely of money, in the opinion of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee) without
consideration of any reinvestment and after payment of all federal,
state and local taxes or other charges and assessments in respect
thereof payable by the Trustee, to pay and discharge the Principal of
and accrued interest on the outstanding Securities of such series to
maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party
or by which it is bound;
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(c) no Default with respect to the Securities of such
series shall have occurred and be continuing on the date of such
deposit;
(d) the Company has delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of the Securities of such
series have a valid security interest in the trust funds subject to no
prior liens under the UCC; and
(e) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating
that all conditions precedent provided for herein relating to the
covenant defeasance contemplated by this Section 8.3 of the Securities
of such series have been complied with.
Section 8.4 Application Of Trust Money. Subject to Section
8.5, the Trustee or Paying Agent shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.1, 8.2 or 8.3, as the case
may be, in respect of the Securities of any series and shall apply the deposited
money and the proceeds from deposited U.S. Government Obligations in accordance
with the Securities of such series and this Indenture to the payment of
Principal of and interest on the Securities of such series; but such money need
not be segregated from other funds except to the extent required by law. The
Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 8.1, 8.2 or 8.3, as the case may be, or the Principal and
interest received in respect thereof, other than any such tax, fee or other
charge that by law is for the account of the Holders.
Section 8.5 Repayment To Company. Subject to Sections 7.7,
8.1, 8.2 and 8.3, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any money held by
them at any time and not required to make payments hereunder and thereupon shall
be relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Company upon written request any money held by
them and required to make payments hereunder under this Indenture that remains
unclaimed for two years; provided that the Trustee or such Paying Agent before
being required to make any payment may cause to be published at the expense of
the Company once in an Authorized Newspaper in The City of New York or with
respect to any Security the interest on which is based on the offered quotations
in the interbank Eurodollar market for dollar deposits in an Authorized
Newspaper in London or mail to each Holder entitled to such money at such
Holder's address (as set forth in the Security Register) notice that such money
remains unclaimed and that after a date specified therein (which shall be at
least 30 days from the date of such publication or mailing) any unclaimed
balance of such money then remaining will be repaid to the Company. After
payment to the Company, Holders entitled to such money must look to the Company
for payment as general creditors unless an applicable law designates another
Person, and all liability of the Trustee and such Paying Agent with respect to
such money shall cease.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
-----------------------------------
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Section 9.1 Without Consent Of Holders. The Company and the
Trustee may amend or supplement this Indenture or the Securities of any series
without notice to or the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency in
this Indenture; provided that such amendments or supplements shall not
materially and adversely affect the interests of the Holders;
(b) to comply with Article 5;
(c) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the Trust
Indenture Act;
(d) to evidence and provide for the acceptance of
appointment hereunder with respect to the Securities of any or all
series by a successor Trustee;
(e) to establish the form or forms or terms of
Securities of any series or of the coupons appertaining to such
Securities as permitted by Section 2.3;
(f) to provide for uncertificated or Unregistered
Securities and to make all appropriate changes for such purpose;
(g) to change or eliminate any provisions of this
Indenture with respect to all or any series of the Securities not then
outstanding (and, if such change is applicable to fewer than all such
series of the Securities, specifying the series to which such change is
applicable), and to specify the rights and remedies of the Trustee and
the holders of such Securities in connection therewith; and
(h) to make any change that does not materially and
adversely affect the rights of any Holder.
Section 9.2 With Consent Of Holders. Subject to Sections 6.4
and 6.7, without prior notice to any Holders, the Company and the Trustee may
amend this Indenture and the Securities of any series with the written consent
of the Holders of a majority in aggregate principal amount of the outstanding
Securities of all series affected by such supplemental indenture (all such
series voting as one class), and the Holders of a majority in aggregate
principal amount of the outstanding Securities of all series affected thereby
(all such series voting as one class) by written notice to the Trustee may waive
future compliance by the Company with any provision of this Indenture or the
Securities of such series.
Notwithstanding the provisions of this Section 9.2, without
the consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 6.4, may not:
(a) extend the stated maturity of the Principal of, or
any sinking fund obligation or any installment of interest on, such
Holder's Security, or reduce the Principal amount thereof or the rate
of interest thereon (including any amount in respect
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of original issue discount), or any premium payable with respect
thereto, or adversely affect the rights of such Holder under any
mandatory redemption or repurchase provision or any right of redemption
or repurchase at the option of such Holder, or reduce the amount of the
Principal of an Original Issue Discount Security that would be due and
payable upon an acceleration of the maturity thereof pursuant to
Section 6.2 or the amount thereof provable in bankruptcy, or change any
place of payment where, or the currency in which, any Security or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
due date therefor;
(b) reduce the percentage in principal amount of
outstanding Securities of the relevant series the consent of whose
Holders is required for any such supplemental indenture, for any waiver
of compliance with certain provisions of this Indenture or certain
Defaults and their consequences provided for in this Indenture;
(c) waive a Default in the payment of Principal of or
interest on any Security of such Holder; or
(d) modify any of the provisions of this Section 9.2,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series with respect to such
covenant or provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or of the coupons
appertaining to such Securities.
It shall not be necessary for the consent of any Holder under
this Section 9.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.2 becomes effective, the Company or, at the Company's request, the Trustee
shall give to the Holders affected thereby a notice briefly describing the
amendment, supplement or waiver. The Company or, at the Company's request, the
Trustee will mail supplemental indentures to Holders upon request. Any failure
of the Company to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture or
waiver.
Section 9.3 Revocation And Effect Of Consent. Until an
amendment or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the Security of the
consenting Holder, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to its
Security or
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portion of its Security. Such revocation shall be effective only if the Trustee
receives the notice of revocation before the date the amendment, supplement or
waiver becomes effective.
The Company may, but shall not be obligated to, fix a record
date (which may be not less than 10 nor more than 60 days prior to the
solicitation of consents) for the purpose of determining the Holders of the
Securities of any series affected entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the
immediately preceding paragraph, those Persons who were such Holders at such
record date (or their duly designated proxies) and only those Persons shall be
entitled to consent to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not such Persons continue to be such
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective
with respect to the Securities of any series affected thereby, it shall bind
every Holder of such Securities theretofore or thereafter authenticated and
delivered hereunder unless it is of the type described in any of clauses (a)
through (d) of Section 9.2. In case of an amendment or waiver of the type
described in clauses (a) through (d) of Section 9.2, the amendment or waiver
shall bind each such Holder who has consented to it and every subsequent Holder
of a Security that evidences the same indebtedness as the Security of the
consenting Holder.
Section 9.4 Notation On Or Exchange Of Securities. If an
amendment, supplement or waiver changes the terms of any Security, the Trustee
may require the Holder thereof to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Security about the changed terms and return
it to the Holder and the Trustee may place an appropriate notation on any
Security of such series thereafter authenticated. Alternatively, if the Company
or the Trustee so determines, the Company in exchange for the Security shall
issue and the Trustee shall authenticate a new Security of the same series and
tenor that reflects the changed terms.
Section 9.5 Trustee To Sign Amendments, Etc. The Trustee shall
be entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of an amendment, supplement or waiver
authorized pursuant to this Article 9 is authorized or permitted by this
Indenture, stating that all requisite consents have been obtained or that no
consents are required and stating that such supplemental indenture constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to customary exceptions. Subject
to the preceding sentence, the Trustee shall sign such amendment, supplement or
waiver if the same does not adversely affect the rights of the Trustee. The
Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver that affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
Section 9.6 Conformity With Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article 9 shall conform to the
requirements of the Trust Indenture Act as then in effect.
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ARTICLE 10
MISCELLANEOUS
-------------
Section 10.1 Trust Indenture Act Of 1939. This Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act. If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by operation of Section 318(c) of the Trust Indenture
Act, the imposed duties shall control.
Section 10.2 Notices. Any notice or communication shall be
sufficiently given if written and (a) if delivered in person when received or
(b) if mailed by first class mail 5 days after mailing, or (c) as between the
Company and the Trustee if sent by facsimile transmission, when transmission is
confirmed, in each case addressed as follows:
If to the Company:
Arrow Electronics, Inc.
25 Hub Drive
Melville, New York 11747
Telecopy: (516) 391-1683
Attention: Robert E. Klatell
If to the Trustee:
Bank of Montreal Trust Company
77 Water Street
New York, New York
Telecopy: (212) __________
Attention: Therese Gaballah
The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to
Holders of any Unregistered Securities, by publication at least once in an
Authorized Newspaper in The City of New York, or with respect to any Security
the interest on which is based on the offered quotations in the interbank
Eurodollar market for dollar deposits at least once in an Authorized Newspaper
in London, and by mailing to the Holders thereof who have filed their names and
addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture
Act at such addresses as were so furnished to the Trustee (and in the case of an
notice given by the Company, the Trustee shall make such information available
to the Company for such purpose) and to Holders of Registered Securities by
mailing to such Holders at their addresses as they shall appear on the Security
Register. Notice mailed shall be sufficiently given if so mailed within the time
prescribed. Copies of any such communication or notice to a Holder shall also be
mailed to the Trustee and each Agent at the same time.
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<PAGE>
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.
Except as otherwise provided in this Indenture, if a notice or communication is
mailed in the manner provided in this Section 10.2, it is duly given, whether or
not the addressee receives it.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 10.3 Certificate And Opinion As To Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been complied
with; and
(b) an Opinion of Counsel stating that, in the opinion
of such counsel, all such conditions precedent, if any, have been
complied with.
Section 10.4 Statements Required In Certificate Or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each person signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion
contained in such certificate or opinion is based;
(c) a statement that, in the opinion of each such
person, he 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 complied with; and
(d) a statement as to whether or not, in the opinion of
each such person, such condition or covenant has been complied with;
provided, however, that, with respect to matters of fact, an Opinion of
Counsel may rely on an Officers' Certificate or certificates of public
officials.
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<PAGE>
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate, statement or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise o reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters or information that is in the possession of the
Company, upon the certificate, statement or opinion of or representations by an
officer or officers of the Company, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be base as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants unless such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 10.5 Evidence Of Ownership. The Company, the Trustee
and any agent of the Company or the Trustee may deem and treat the Holder of any
Unregistered Security and the Holder of any coupon as the absolute owner of such
Unregistered Security or coupon (whether or not such Unregistered Security or
coupon shall be overdue) for the purpose of receiving payment thereof or on
account thereof and for all other purposes, and neither the Company, the
Trustee, nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. The fact of the holding by any Holder of an Unregistered
Security, and the identifying number of such Security and the date of his
holding the same, may be proved by the production of such Security or by a
certificate executed by any trust company, bank, banker or recognized securities
dealer wherever situated satisfactory to the Trustee, if such certificate shall
be deemed by the Trustee to be satisfactory. Each such certificate shall be
dated and shall state that on the date thereof a Security bearing a specified
identifying number was deposited with or exhibited to such trust company, bank,
banker or recognized securities dealer by the person named in such certificate.
Any such certificate may be issued in respect of one or more Unregistered
Securities specified therein. The holding by the person named in any such
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<PAGE>
certificate of any Unregistered Securities specified therein shall be presumed
to continue for a period of one year from the date of such certificate unless at
the time of any determination of such holding (1) another certificate bearing a
later date issued in respect of the same Securities shall be produced or (2) the
Security specified in such certificate shall be produced by some other Person,
or (3) the Security specified in such certificate shall have ceased to be
outstanding. Subject to Article 7, the fact and date of the execution of any
such instrument and the amount and numbers of Securities held by the Person so
executing such instrument may also be proven in accordance with such reasonable
rules and regulations as may be prescribed by the Trustee or in any other manner
which the Trustee may deem sufficient.
The Company, the Trustee and any agent of the Company or the
Trustee may deem and treat the person in whose name any Registered Security
shall be registered upon the Security Register for such series as the absolute
owner of such Registered Security (whether or not such Registered Security shall
be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the Principal
of and, subject to the provisions of this Indenture, interest on such Registered
Security and for all other purposes; and neither the Company nor the Trustee nor
any agent of the Company or the Trustee shall be affected by any notice to the
contrary.
Section 10.6 Rules By Trustee, Paying Agent Or Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
Section 10.7 Payment Date Other Than A Business Day. If any
date for payment of Principal or interest on any Security shall not be a
Business Day at any place of payment, then payment of Principal of or interest
on such Security, as the case may be, need not be made on such date, but may be
made on the next succeeding Business Day at any place of payment with the same
force and effect as if made on such date and no interest shall accrue in respect
of such payment for the period from and after such date.
Section 10.8 Governing Law. The rights and duties of the
parties under this Indenture shall, pursuant to New York General Obligations Law
Section 5-1401, be governed by the law of the State of New York.
Section 10.9 No Adverse Interpretation Of Other Agreements.
This Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture or
agreement may not be used to interpret this Indenture.
Section 10.10 Successors. All agreements of the Company in
this Indenture and the Securities shall bind its successors. All agreements of
the Trustee in this Indenture shall bind its successors.
Section 10.11 Duplicate Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
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<PAGE>
Section 10.12 Separability. In case any provision in this
Indenture or in the Securities 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 10.13 Table Of Contents, Headings, Etc. The Table of
Contents 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
hereof and shall in no way modify or restrict any of the terms and provisions
hereof.
Section 10.14 Incorporators, Shareholders, Officers And
Directors Of Company Exempt From Individual Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture or any
indenture supplemental hereto, or in any Security or any coupons appertaining
thereto, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such, or against any past, present or future shareholder,
officer, director or employee, as such, of the Company or of any successor,
either directly or through the Company or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
coupons appertaining thereto by the Holders thereof and as part of the
consideration for the issue of the Securities and the coupons appertaining
thereto.
Section 10.15 Judgment Currency. The Company agrees, to the
fullest extent that it may effectively do so under applicable law, that (a) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the Principal of or interest on the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
day on which final unappealable judgment is entered, unless such day is not a
Business Day, then, to the extent permitted by applicable law, the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the Business Day preceding the day on
which final unappealable judgment is entered and (b) its obligations under this
Indenture to make payments in the Required Currency (i) shall not be discharged
or satisfied by any tender, or any recovery pursuant to any Judgment (whether or
not entered in accordance with subsection (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
(SEAL) ARROW ELECTRONICS, INC.,
ATTEST: as the Company
________________________ By:___________________________
Name: Name:
Title: Title:
(SEAL) BANK OF MONTREAL TRUST COMPANY,
ATTEST: as the Trustee
________________________ By:___________________________
Name: Name:
Title: Title:
-52-
<PAGE>
STATE OF__________________ )
)
COUNTY OF_________________ )
BEFORE ME, the undersigned authority, on this _____ day of
___________, 1997, personally appeared _____________________, of Arrow
Electronics, Inc., a New York corporation, known to me (or proved to me by
introduction upon the oath of a person known to me) to be the person and officer
whose name is subscribed to the foregoing instrument, and acknowledged to me
that he/she executed the same as the act of such corporation for the purposes
and consideration herein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _______ DAY OF
________________, 1997.
(SEAL)
___________________________________
NOTARY PUBLIC, STATE OF ___________
Print Name:
Commission Expires:
STATE OF__________________ )
)
COUNTY OF_________________ )
BEFORE ME, the undersigned authority, on this ______ day of
____________, 1997, personally appeared _______________, of Bank of Montreal
Trust Company, known to me (or proved to me by introduction upon the oath of a
person known to me) to be the person and officer whose name is subscribed to the
foregoing instrument, and acknowledged to me that he/she executed the same as
the act of such trust for the purposes and consideration herein expressed and in
the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS _____ DAY OF
_______________, 1997.
(SEAL)
___________________________________
NOTARY PUBLIC, STATE OF ___________
Print Name:
Commission Expires:
<PAGE>
WSP&R
DRAFT
1/8/97
Exhibit 4(2)
CUSIP:
No. R-1 $_____________
Unless and until it is exchanged in whole or in part for Notes in definitive
registered form, this Note may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.
ARROW ELECTRONICS, INC.
_____% Senior Note due ____
ARROW ELECTRONICS, INC., a New York corporation (the
"Company", which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received, hereby promises to pay
to Cede & Co., or registered assigns, at the office or agency of the Company in
New York, New York, the principal sum of _____________ Dollars on ________ __,
____, in the coin or currency of the United States, and to pay interest,
semi-annually on ________ __ and ________ __ of each year, commencing __________
__, 1997 on said principal sum at said office or agency, in like coin or
currency, at the rate per annum specified in the title of this Note, from the
__________ __ or the ________ __, as the case may be, next preceding the date of
this Note to which interest has been paid or duly provided for, unless the date
hereof is a date to which interest has been paid or duly provided for, in which
case from the date of this Note, or unless no interest has been paid or duly
provided for on these Notes, in which case from ________ __, 1997, until payment
of said principal sum has been made or duly provided for; provided, that payment
of interest may be made at the option of the Company by check mailed to the
address of the person entitled thereto as such address shall appear on the
Security Register or by wire transfer as provided in the Indenture.
Notwithstanding the foregoing, if the date hereof is after ______ __ or ______
__, as the case may be, and before the following _________ __ or ________ __,
this Note shall bear interest from such ___________ __ or ________ __; provided,
that if the Company shall default in the payment of interest due on such _______
__ or _______ __, then this Note shall bear interest from the next preceding
_________ __ or _________ __, to which interest has been paid or duly provided
for or, if no interest has been paid or duly provided for on these Notes, from
_______ __, 1997. The interest so payable on any _________ __ or __________ __
<PAGE>
will, subject to certain exceptions provided in the Indenture referred to on the
reverse hereof, be paid to the person in whose name this Note is registered at
the close of business on the ___________ __ or ________ __, as the case may be,
next preceding such _________ __ or _________ __, whether or not such day is a
Business Day.
Reference is made to the further provisions of this Note set
forth on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been manually
signed by the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS WHEREOF, ARROW ELECTRONICS, INC., has caused this
instrument to be signed manually or by facsimile by its duly authorized officers
and has caused a facsimile of its corporate seal to be affixed hereunto or
imprinted hereon.
Dated:
(SEAL) ARROW ELECTRONICS, INC.
By_________________________________
Attest:
By_________________________________
_______________________
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: ________ __, 1997 BANK OF MONTREAL TRUST
COMPANY, as Trustee
By_________________________________
Authorized Signatory
<PAGE>
REVERSE OF NOTE
ARROW ELECTRONICS, INC.
____% Senior Note due _____
This Note is one of a duly authorized issue of debentures, notes, bonds
or other evidences of indebtedness of the Company (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of ___________ __, 1997 (herein
called the "Indenture"), duly executed and delivered by the Company to Bank of
Montreal Trust Company (herein called the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Securities. The Securities
may be issued in one or more series, which different series may be issued in
various aggregate principal amounts, may mature at different times, may bear
interest (if any) at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase or analogous
funds (if any) and may otherwise vary as in the Indenture provided. This Note is
one of a series designated as the ____% Senior Notes due ____ of the Company,
limited in aggregate principal amount to $_____________.
Interest will be computed on the basis of a 360-day year of twelve
30-day months. The Company shall pay interest on overdue principal and, to the
extent lawful, on overdue installments of interest at the rate per annum borne
by this Note. If a payment date is not a Business Day as defined in the
Indenture at a place of payment, payment may be made at that place on the next
succeeding day that is a Business Day, and no interest shall accrue for the
intervening period.
In case an Event of Default with respect to the ____% Senior Notes due
____ shall have occurred and be continuing, the Principal hereof and the
interest accrued hereon, if any, may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions that provide that, without prior
notice to any Holders, the Company and the Trustee may amend the Indenture and
the Securities of any series with the written consent of the Holders of a
majority in aggregate principal amount of the outstanding Securities of all
series affected by such supplemental indenture (all such series voting as one
class), and the Holders of a majority in aggregate principal amount of the
outstanding Securities of all series affected thereby (all such series voting as
one class) by written notice to the Trustee may waive future compliance by the
Company with any provision of the Indenture or the Securities of such series;
provided that, without the consent of each Holder of the Securities of each
series affected thereby, an amendment or waiver, including a waiver of past
defaults, may not: (i) extend the stated maturity of the Principal of, or any
sinking fund obligation or any installment of interest on, such Holder's
Security, or reduce the principal amount thereof or the rate of interest thereon
(including any amount in respect of original issue discount), or any premium
payable with respect thereto, or adversely affect the rights of such Holder
<PAGE>
under any mandatory redemption or repurchase provision or any right of
redemption or repurchase at the option of such Holder, or reduce the amount of
the principal of an Original Issue Discount Security that would be due and
payable upon an acceleration of the maturity or the amount thereof provable in
bankruptcy, or change any place of payment where, or the currency in which, any
Security or any premium or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the due
date therefor; (ii) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is required for
any such supplemental indenture or for any waiver of compliance with certain
provisions of the Indenture or certain Defaults and their consequences provided
for in the Indenture; (iii) waive a Default in the payment of Principal of or
interest on any Security of such Holder; or (iv) modify any of the provisions of
the Indenture governing supplemental indentures with the consent of
Securityholders, except to increase any such percentage or to provide that
certain other provisions of the Indenture cannot be modified or waived without
the consent of the Holder of each outstanding Security affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the Holders of at least a majority in aggregate principal amount of
the outstanding Securities of all series affected (voting as a single class), by
notice to the Trustee, may waive an existing Default or Event of Default with
respect to the Securities of such series and its consequences, except a Default
in the payment of Principal of or interest on any Security or in respect of a
covenant or provision of the Indenture that cannot be modified or amended
without the consent of the Holder of each outstanding Security affected. Upon
any such waiver, such Default shall cease to exist, and any Event of Default
with respect to the Securities of such series arising therefrom shall be deemed
to have been cured, for every purpose of the Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
The Indenture provides that a series of Securities may include one or
more tranches (each, a "tranche") of Securities, including Securities issued in
a Periodic Offering. The Securities of different tranches may have one or more
different terms, including authentication dates and public offering prices, but
all the Securities within each such tranche shall have identical terms,
including authentication date and public offering price. Notwithstanding any
other provision of the Indenture, subject to certain exceptions, with respect to
sections of the Indenture concerning the execution, authentication and terms of
the Securities, redemption of the Securities, Events of Default of the
Securities, defeasance of the Securities and amendment of the Indenture, if any
series of Securities includes more than one tranche, all provisions of such
sections applicable to any series of Securities shall be deemed equally
applicable to each tranche of any series of Securities in the same manner as
though originally designated a series unless otherwise provided with respect to
such series or tranche pursuant to Section 2.3 of the Indenture establishing
such series or tranche.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the Principal of and interest on this Note in
the manner, at the place, at the respective times, at the rate and in the coin
or currency herein prescribed.
The Notes are issuable initially only in registered form without
coupons in denominations of $1,000 and any multiple of $1,000 at the office or
agency of the Company in the Borough of Manhattan, The City of New York, and in
-2-
<PAGE>
the manner and subject to the limitations provided in the Indenture, but,
without the payment of any service charge, Notes may be exchanged for a like
aggregate principal amount of Notes of other authorized denominations.
[Insert applicable redemption provisions, if any]
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture, without charge except for any tax
or other governmental charge imposed in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the registered Holder hereof as the absolute owner of this
Note (whether or not this Note shall be overdue and notwithstanding any notation
of ownership or other writing hereon), for the purpose of receiving payment of,
or on account of, the Principal hereof and, subject to the provisions hereof,
interest hereon, and for all other purposes, and neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or any indenture supplemental thereto or in any Note,
or because of any indebtedness evidenced thereby, shall be had against any
incorporator, stockholder, officer, director or employee, as such, past,
present, or future, of the Company or of any successor, either directly or
through the Company or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance hereof and as part of the consideration for the
issue hereof.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
-3-
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE)
__________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
ASSIGNEE)
________________________________________________________________________________
the within Note and all rights thereunder, hereby
________________________________________________________________________________
irrevocably constituting and appointing, such person attorney
________________________________________________________________________________
to transfer such Note on the books of the Issuer, with full
________________________________________________________________________________
power of substitution in the premises.
Dated:____________________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within Note in every
particular without alteration or enlargement or any change
whatsoever.
-4-
<PAGE>
WSP&R
DRAFT
1/6/97
Exhibit 4(3)
ARROW ELECTRONICS, INC.
OFFICER'S CERTIFICATE
Reference is made to the Indenture dated as of _________ __,
1997 (the "Indenture") from Arrow Electronics, Inc. (the "Company") to Bank of
Montreal Trust Company (the "Trustee"). Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Indenture.
Pursuant to (i) authority granted under those certain
resolutions of the Board of Directors of the Company adopted on December __,
1996, and (ii) Section 2.3 of the Indenture, ______________, ______________ of
the Company, does hereby certify as follows:
1. The Securities of the first series to be
issued under the Indenture shall be designated
"_____% Senior Notes due _____" (the "Senior Notes");
2. The Senior Notes shall be limited in
aggregate principal amount to $____________ at any
time Outstanding;
3. The Senior Notes shall mature and the
principal shall be due and payable together with all
accrued and unpaid interest thereon on ___________
__, ____;
4. The Senior Notes shall bear interest from
_______ __, ____, at the rate of ____% per annum
payable semiannually on ________ __ and ___________
__ of each year (each, an "Interest Payment Date")
commencing _______ __, _____. Interest on the Senior
Notes will accrue from ______ __, ____ to the first
Interest Payment Date, and thereafter will accrue
from the last Interest Payment Date to which interest
has been paid or duly provided for. No interest will
accrue on the Senior Notes with respect to the day on
which the Senior Notes mature. In the event that any
Interest Payment Date is not a Business Day, then
payment of interest payable on such date will be made
on the next succeeding day which is a Business Day
(and without any interest or other payment in
<PAGE>
respect of such delay) with the same force and effect
as if made on the Interest Payment Date. Interest on
any overdue principal will accrue at the same rate as
the interest rate on the Senior Notes set forth
above, but interest will not accrue on overdue
installments of interest on the Senior Notes;
5. Each installment of interest on a Senior Note
shall be payable to the Person in whose name such
Senior Note is registered at the close of business on
the ________ __ or ___________ __ next preceding the
corresponding Interest Payment Date for the Senior
Notes;
6. [Redemption provisions with respect to the
Senior Notes];
7. The Senior Notes will be originally issued in
global registered form payable to Cede & Co, as the
nominee of the Depositary, and will, unless and until
Senior Notes are exchanged in whole or in part for
certificated Senior Notes registered in the names of
the various beneficial holders thereof (in accordance
with the conditions set forth in the legend appearing
in the form of the Senior Notes attached hereto as
Exhibit A), contain restrictions on transfer,
substantially described in such form. For so long as
the Senior Notes are registered in the name of Cede &
Co., the principal and each installment of interest
due on the Senior Notes will be payable by the Paying
Agent to the Depositary for payment to its
participants for subsequent disbursement to the
beneficial holders thereof;
8. The Senior Notes shall have such other terms
and provisions as are provided in the form set forth
in Exhibit A attached hereto and shall be issued in
substantially such form;
9. The form and terms of the Senior Notes have
been established in compliance with the Indenture;
10. The undersigned has read all of the covenants
or conditions contained in the Indenture relating to
the authentication and delivery of the Senior Notes
and the definitions in the Indenture relating
thereto;
11. The statements contained in this certificate
are based upon the familiarity of the undersigned
with the Indenture, the documents accompanying this
certificate and upon discussions by the undersigned
with officers and employees of the Company familiar
with the matters set forth herein;
12. In the opinion of the undersigned, he has
made such examination or investigation as is
necessary to express an informed opinion as to
whether or not such covenants or conditions have been
complied with; and
-2-
<PAGE>
13. In the opinion of the undersigned, such
covenants or conditions have been complied with.
IN WITNESS WHEREOF, I have executed this Officer's Certificate
this _____ day of __________, ____.
_______________________________
Name:
Title:
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Name:
Title:
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EXHIBIT 5
[Letterhead of Winthrop, Stimson, Putnam & Roberts]
January 8, 1997
Arrow Electronics, Inc.
25 Hub Drive
Melville, New York 11747
Ladies and Gentlemen:
We have acted as counsel for Arrow Electronics, Inc., a New
York corporation (the "Company"), in connection with the filing by the Company
with the Securities and Exchange Commission of a Registration Statement on Form
S-3 (the "Registration Statement") with respect to $500,000,000 aggregate
principal amount of the Company's Debt Securities (the "Securities") for
issuance from time to time pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"). The Securities will be issued pursuant
to an indenture to be entered into between the Company and Bank of Montreal
Trust Company, as trustee (the "Indenture").
In so acting, we have examined originals (or copies certified
or otherwise identified to our satisfaction) of the Registration Statement, the
form of Securities certificates, the form of the Indenture, the Amended and
Restated Certificate of Incorporation and By-Laws of the Company as in effect on
the date hereof, corporate and other documents, records and papers, certificates
of public officials and certificates of officers of the Company. In rendering
the opinion hereinafter set forth, we have assumed the validity of and relied
upon the representations of officers of the Company as to certain factual
matters relevant thereto.
On the basis of such examination, it is our opinion, assuming
(i) the applicable provisions of the Securities Act, the Trust Indenture Act of
1939, as amended, and the securities or "blue sky" laws of various states shall
have been complied with, (ii) the Indenture shall have been duly authorized,
executed and delivered, and (iii) the Securities shall have been duly
authorized, executed, authenticated and delivered against the consideration
<PAGE>
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therefor to be set forth in the supplement or supplements to the prospectus
constituting a part of the Registration Statement:
The Securities will be legally issued, fully paid and
non-assessable and will constitute the valid and legally binding
obligations of the Company enforceable against the Company in
accordance with their terms, except as limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance or other similar laws
affecting creditors' rights and general equitable principles
(regardless of whether enforceability is considered in a proceeding in
equity or at law), and the Securities will be entitled to the benefits
of the Indenture.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to this firm under the
heading "Legal Opinions" in the related prospectus. In giving this consent, we
do not thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and regulations of
the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Winthrop, Stimson, Putnam & Roberts
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<TABLE>
<CAPTION>
Exhibit 12
ARROW ELECTRONICS, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in Thousands)
(Unaudited)
Nine
Months
For the Year Ended December 31, Ended
Sept. 30,
1991 1992 1993 1994 1995 1996
-------- -------- -------- -------- -------- -------
<S> <C> <C> <C> <C> <C> <C>
Earnings Before Income
Taxes, Extraordinary Items
and Minority Interest $53,611 $138,642 $201,189 $219,806(a) $379,341 $278,556
Less Undistributed
Earnings of Less Than
50% Owned Affiliates 5,657 6,550 1,673 - 2,493 -
Add Distributions From
Affiliated Companies 5,671 9,101 - - - 1,734
Add Fixed Charges 36,322 37,190 33,396 43,776 56,019 38,340
------- -------- -------- -------- -------- --------
Total Earnings $89,947 $178,383 $232,912 $263,582 $432,867 $318,630
======= ======== ======== ======== ======== ========
Fixed Charges
Total Interest Expense
Including Capitalized
Interest 31,247 31,607 26,573 36,168 46,361 29,963
Interest Portion of
Rental Expenses 5,075 5,583 6,823 7,608 9,658 8,377
------- ------- -------- -------- -------- --------
Total Fixed
Charges $36,322 $ 37,190 $ 33,396 $ 43,776 $ 56,019 $ 38,340
======= ======== ======== ======== ======== ========
Ratio of Earnings to
Fixed Charges 2.5 4.8 7.0 6.0(a) 7.7 8.3
======= ======== ======== ======== ========= ========
(a) Includes special charges of $45.3 million associated with the
acquisition and integration of Gates FA/Distributing, Inc. and Anthem
Electronics, Inc.; excluding the special charges, the ratio of earnings
to fixed charges was 7.1.
</TABLE>
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Exhibit 23(1)
[LETTERHEAD OF ERNST & YOUNG LLP]
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption
"Experts" in the Registration Statement (Form S-3) and related Prospectus of
Arrow Electronics, Inc. for the registration of $500,000,000 of Debt Securities
as defined in the Registration Statement and to the incorporation by reference
therein of our report dated February 22, 1996, with respect to the consolidated
financial statements and schedule of Arrow Electronics, Inc. included in its
Annual Report (Form 10-K) for the year ended December 31, 1995, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
_________________________________
New York, New York
January 8, 1997
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Exhibit 25
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 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) ____
BANK OF MONTREAL TRUST COMPANY
(Exact name of trustee as specified in its charter)
New York 13-4941093
(Jurisdiction of incorporation or organization (I.R.S. employer
if not a US national bank) identification no.)
77 Water Street
New York, New York 10005
(Address of principal executive offices) (Zip code)
Mark F. McLaughlin
Bank of Montreal Trust Company
77 Water Street, New York, NY 10005
(212) 701-7602
(Name, address and telephone number of agent for service)
------------------------------------
Arrow Electronics, Inc.
(Exact name of obligor as specified in its charter)
New York 11-1806155
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
25 Hub Drive
Melville, New York 11747
(Address of principal executive offices)
--------------------------------------
Debt Securities
(Title of the indenture securities)
================================================================================
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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.
Federal Reserve Bank of New York
33 Liberty Street, New York NY 10045
State of New York Banking Department
2 Rector Street, New York, NY 10006
(b) Whether it is authorized to exercise corporate trust
powers.
The Trustee is authorized to exercise corporate trust
powers.
Item 2. Affiliations with the Obligor.
------------------------------
If the obligor is an affiliate of the trustee, describe each
such affiliation.
The obligor is not an affiliate of the trustee.
Item 16. List of Exhibits.
-----------------
List below all exhibits filed as part of this statement of
eligibility.
1. Copy of Organization Certificate of Bank of Montreal Trust
Company to transact business and exercise corporate trust powers; incorporated
herein by reference as Exhibit "A" filed with Form T-1 Statement, Registration
No. 33-46118.
2. Copy of the existing By-Laws of Bank of Montreal Trust
Company; incorporated herein by reference as Exhibit "B" filed with Form T-1
Statement, Registration No. 33-80928.
3. The consent of the Trustee required by Section 321(b) of
the Act; incorporated herein by reference as Exhibit "C" with Form T-1
Statement, Registration No. 33-46118.
4. A copy of the latest report of condition of Bank of
Montreal Trust Company published pursuant to law or the requirements of its
supervising or examining authority, attached hereto as Exhibit "D".
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939 the Trustee, Bank of Montreal Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of New York, and State of New York, on the 8th day
of January, 1997.
BANK OF MONTREAL TRUST COMPANY
By /s/ T. Gaballah
-------------------------------------
T. Gaballah
Vice President
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EXHIBIT "D"
STATEMENT OF CONDITION
BANK OF MONTREAL TRUST COMPANY
NEW YORK
---------------------------------
ASSETS
Due From Banks $ 790,144
-----------
Investment Securities:
State & Municipal 16,811,825
Other 100
------
Total Securities 16,811,925
----------
Loans and Advances
Federal Funds Sold 10,112,520
Overdrafts 24,744
----------
Total Loans and Advances 10,137,264
----------
Investment in Harris Trust, NY 7,124,762
Premises and Equipment 433,539
Other Assets 2,572,729
----------
TOTAL ASSETS $37,870,363
==========
LIABILITIES
Trust Deposits $13,926,947
Other Liabilities 2,244,718
----------
TOTAL LIABILITIES 16,171,665
----------
CAPITAL ACCOUNTS
Capital Stock, Authorized, Issued and
Fully Paid - 10,000 Shares of $100 Each 1,000,000
Surplus 4,222,188
Retained Earnings 16,422,757
Equity - Municipal Gain/Loss 53,753
----------
TOTAL CAPITAL ACCOUNTS 21,698,699
TOTAL LIABILITIES
AND CAPITAL ACCOUNTS $37,870,363
==========
I, Mark F. McLaughlin, Vice President, of the above-named bank
do hereby declare that this Report of Condition is true and correct to the best
of my knowledge and belief.
Mark F. McLaughlin
June 30, 1996
We, the undersigned directors, attest to the correctness of
this statement of resources and liabilities. We declared that it has been
examined by us, and to the best of our knowledge and belief has been prepared in
conformance with the instructions and is true and correct.
Sanjiv Tandon
Kevin O. Healey
Steven R. Rothbloom
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