Form 10-K
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark One)
X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended December 31, 1999
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from............to.................
Commission file number 1-4482
ARROW ELECTRONICS, INC.
(Exact name of Registrant as specified in its charter)
New York 11-1806155
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
25 Hub Drive, Melville, New York 11747
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (516) 391-1300
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Securities registered pursuant to Section 12(b) of the Act:
Name of Each Exchange on
Title of Each Class Which Registered
- ------------------- ----------------
Common Stock, $1 par value New York Stock Exchange
Preferred Share Purchase Rights New York Stock Exchange
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
---
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ X ]
The aggregate market value of voting stock held by nonaffiliates of the
registrant as of February 25, 2000 was $2,777,610,197.
Indicate the number of shares outstanding of each of the registrant's classes
of common stock, as of the latest practicable date.
Common Stock, $1 par value: 96,066,665 shares outstanding at February 25,
2000.
The following documents are incorporated herein by reference:
1. Proxy Statement filed in connection with Annual Meeting of Shareholders to
be held May 23, 2000 (incorporated in Part III).
PART I
Item 1. Business.
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Arrow Electronics, Inc. (the "company"), incorporated in New York in 1946, 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 operating systems, employee productivity, value-added
programs, and total quality assurance, the company is the distributor of choice
for over 600 suppliers.
The company's global distribution network spans the world's three dominant
electronics markets - the Americas, Europe, and the Asia/Pacific region. The
company serves a diversified base of original equipment manufacturers (OEMs) and
commercial customers worldwide. OEMs include 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 (VARs) of computer systems. The company
maintains over 225 sales facilities and 19 distribution centers in 37 countries.
Through this network, Arrow can offer the most powerful line card in the
industry and a wide range of value-added services to help customers reduce their
time to market, lower their total cost of ownership, and enhance their overall
competitiveness.
Arrow continues to lead the electronics distribution industry by forging
alliances around the world. In January 1999, the company acquired Richey
Electronics, Inc. a leading specialty distributor of interconnect,
electromechanical, and passive electronic components and a provider of related
value-added services to customers throughout North America. Also in January
1999, the company acquired the electronics distribution group of Bell
Industries, Inc., one of the ten largest distributors of electronic components
in North America. The company acquired a majority interest in Panamericana
Comercial Importadora, S.A., the largest distributor of electronic components in
Brazil in June 1999, and in October 1999 the company acquired a majority
interest in the Elko Group, the largest distributor of electronic components in
Argentina. The company also increased its holdings in Spoerle Electronic
Handelsgesellschaft mbH and Support Net, Inc. to 100 percent and acquired an
additional 4 percent interest in Scientific and Business Minicomputers, Inc.
Arrow has made strategic investments in selected Internet start-ups, in addition
to its own Internet venture, arrow.com, to tap into certain market segments not
reached today.
In 1999, Arrow acquired an interest in ChipCenter LLC, an on-line service for
electronic-component information and sourcing, VCE Virtual Chip Exchange, Inc.,
a leading Internet marketplace for buyers and sellers of excess components, and
QuestLink Technology, a technical design resource for engineers. In January
2000, the company acquire an interest in Viacore, Inc., a service provider of an
ebusiness hub for business processes between trading partners in the information
technology supply chain.
In February 2000, the company reached a definitive agreement in principal to
acquire Tekelec Europe, one of Europe's leading distributors of high-tech
components and systems.
The North American Components Operations ("NACO") is comprised of eight
segmented marketing groups. NACO offers one of the broadest line card in the
industry.
The North American Computer Products group ("NACP"), formerly Gates/Arrow
Distributing, Inc. ("Gates/Arrow"), is a full-line technical distributor of
computer systems, peripherals, and software to value-added resellers in the U.S.
and Canada.
Arrow is the largest pan-European electronics distributor as well as the largest
electronics distributor in Northern, Central and Southern Europe. In its
Northern European region, the company serves Ireland, the United Kingdom,
Denmark, Finland, Norway, and Sweden. In its Central European region, the
company serves Germany, Austria, Switzerland, Belgium, and the Netherlands, and
in its Southern European region it serves Italy, France, Spain, and Portugal.
Arrow is the largest electronics distributor in the Asia/Pacific region.
Components Agent Limited (C.A.L.), Strong Electronics, and the Melbourne-based
Veltek and Zatek companies in Australia are the region's leading multi-national
distributors. C.A.L., headquartered in Hong Kong, maintains additional
facilities in key cities in Singapore, Malaysia, the People's Republic of China,
India, and South Korea. Strong Electronics, headquartered in Taipei, serves
customers in Taiwan, South Korea, Singapore, and Malaysia. Arrow Ally also
serves customers in Taiwan and Arrow Components (NZ) services customers in New
Zealand.
The company distributes a broad range of electronic components, computer
products, and related equipment. About 56 percent of the company's consolidated
sales are comprised of semiconductor products; industrial and commercial
computer products, including microcomputer boards and systems, design systems,
desktop computer systems, terminals, printers, disk drives, controllers, and
communication control equipment account for about 32 percent; and the remaining
sales are of passive, electromechanical, and interconnect products, principally
capacitors, resistors, potentiometers, power supplies, relays, switches, and
connectors.
The financial information about the company's reportable segments and foreign
and domestic operations can be found in Note 13 to the Consolidated Financial
Statements.
Most manufacturers of electronic components and computer products rely on
independent authorized distributors, such as the company, to augment their sales
and marketing operations. As a stocking, marketing, and financial intermediary,
the distributor relieves manufacturers of a portion of the costs and personnel
associated with stocking and selling their products (including otherwise sizable
investments in finished goods inventories and accounts receivable), while
providing geographically dispersed selling, order processing, and delivery
capabilities. At the same time, the distributor offers a broad range of
customers the convenience of diverse inventories and rapid or scheduled
deliveries as well as other value-added services such as kitting and memory
programming capabilities. The growth of the electronics distribution industry
has been fostered by the many manufacturers who recognize their authorized
distributors as essential extensions of their marketing organizations.
The company and its affiliates serve over 175,000 industrial and commercial
customers. Industrial customers range from major original equipment
manufacturers to small engineering firms, while commercial customers include
value-added resellers.
Most of the company's customers require delivery of the products they have
ordered on schedules that are generally not available on direct purchases from
manufacturers, and frequently their orders are of insufficient size to be placed
directly with manufacturers. No single customer accounted for more than 4
percent of the company's 1999 sales.
The electronic components and other products offered by the company are sold by
field sales representatives, who regularly call on customers in assigned market
areas, and by telephone from the company's selling locations, from which inside
sales personnel with access to pricing and stocking data provided by computer
display terminals accept and process orders. Each of the company's North
American selling locations, warehouses, and primary distribution centers is
electronically linked to the business' central computer, which provides fully
integrated, on-line, real-time data with respect to nationwide inventory levels
and facilitates control of purchasing, shipping, and billing. The company's
international operations have similar on-line, real-time computer systems, and,
in addition, they can access Arrow's Worldwide Stock Check System, which
provides access to the company's on-line, real-time inventory system.
During the fourth quarter of 1999 Arrow introduced arrow.com PRO-Series, a suite
of on-line supply chain management tools. PRO-Series gives customers Internet-
based, 24 hour access to the company's inventory plus the ability to place,
modify, monitor, and manage every order on-line.
There are approximately 600 manufacturers whose products are sold by the
company. Intel Corporation accounted for approximately 12 percent and Hewlett-
Packard accounted for 10 percent of the business' purchases. No other supplier
accounted for more than 8 percent of 1999 purchases. The company does not regard
any one supplier of products to be essential to its operations and believes that
many of the products presently sold by the company are available from other
sources at competitive prices. Most of the company's purchases are pursuant to
authorized distributor agreements which are typically cancelable by either party
at any time or on short notice.
Approximately 65 percent of the company's inventory consists of semiconductors.
It is the policy of most manufacturers to protect authorized distributors, such
as the company, against the potential write-down of such inventories due to
technological change or manufacturers' price reductions. Under the terms of the
related distributor agreements, and assuming the distributor complies with
certain conditions, such suppliers are required to credit the distributor for
inventory losses incurred through reductions in manufacturers' list prices of
the items. In addition, under the terms of many such agreements, the
distributor has the right to return to the manufacturer for credit a defined
portion of those inventory items purchased within a designated period of time.
A manufacturer who elects to terminate a distributor agreement is generally
required to purchase, from the distributor, the total amount of its products
carried in inventory. While these industry practices do not wholly protect the
company from inventory losses, management believes that they currently provide
substantial protection from such losses.
The company's business is extremely competitive, particularly with respect to
prices, franchises, and, in certain instances, product availability. The
company competes with several other large multi-national, national, and numerous
regional and local distributors. As the world's largest electronics
distributor, the company's financial resources and sales are greater than those
of its competitors.
The company and its affiliates employ over 11,200 people worldwide.
Executive Officers
The following table sets forth the names and ages of, and the positions and
offices with the company held by, each of the executive officers of the
company.
Name Age Position or Office Held
- ---- --- -----------------------
Stephen P. Kaufman 58 Chairman and Chief Executive Officer
Francis M. Scricco 50 President and Chief Operating Officer
Robert E. Klatell 54 Executive Vice President, General Counsel,
and Secretary
Sam R. Leno 54 Senior Vice President and Chief Financial
Officer
Betty Jane Scheihing 51 Senior Vice President
Arthur H. Baer 53 Vice President and President of Arrow Europe
Michael J. Long 41 Vice President and President of the North
American Computer Operation
Jan M. Salsgiver 43 Vice President and President of the North
American Components Products Operation
Set forth below is a brief account of the business experience during the past
five years of each executive officer of the company.
Stephen P. Kaufman has been Chairman of the company since May 1994 and Chief
Executive Officer of the company for more than five years prior thereto.
Francis M. Scricco has been President since June 1999 and Chief Operating
Officer since September 1997. Prior thereto he was Executive Vice President
since August 1997. From March 1994 through August 1997 he was a Group President
at Fischer Scientific International, Inc.
Robert E. Klatell has been Executive Vice President since July 1995 and has
served as Senior Vice President, General Counsel, and Secretary of the company
for more than five years. He also served as Chief Financial Officer from
January 1992 to April 1996 and Treasurer from 1990 to April 1996.
Sam R. Leno has been Senior Vice President and Chief Financial Officer since
March 1999. From July 1995 through February 1999, he served as Executive Vice
President and Chief Financial Officer of Corporate Express, Inc. Prior thereto
he was Chief Financial Officer of Coram Healthcare.
Betty Jane Scheihing has been a Senior Vice President since May 1996 and served
as Vice President of the company for more than five years prior thereto.
Arthur H. Baer was named President of Arrow Europe and a Vice President of the
company in January 2000. Prior to joining Arrow, he was President of Hudson
Valley Publishing, Inc. from February 1998 through December 1999 and President
of Xyan, Inc. from April 1996 through February 1998. Prior thereto, he served
as Dean of the College of Business Administration at Drexel University from May
1993 through April 1996.
Michael J. Long has been President and Chief Operating Officer of North American
Computer Products since July 1999. In addition, he has been a Vice President of
the company for more than five years and President of Gates/Arrow Distributing
since November 1995. Prior thereto he was President of Capstone Electronics
since 1994.
Jan M. Salsgiver has been President of North American Components Operations
since July 1999. Prior thereto, she served as President of the Arrow Supplier
Services Group since its inception in January 1998. Prior thereto, she was
President of the Arrow/Schweber Electronics Group since November 1995 and
President of Zeus Electronics from July 1993 to November 1995. In addition, she
has been a Vice President of the company for more than five years.
Item 2. Properties.
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The company owns and leases sales offices, distribution centers and
administrative facilities worldwide. The company's executive office, a 132,000
square foot facility in Melville, New York, is owned by the company. Including
the executive office, fourteen locations are owned throughout North America,
Europe and Asia, and another facility has been sold and leased back in
connection with the financing thereof. The company occupies over 250 additional
locations under leases due to expire on various dates to 2053. The company
believes its facilities are well maintained and suitable for company
operations.
Item 3. Legal Proceedings.
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The environmental remediation of a "superfund site" the company owns (as the
result of the discontinued lead-refining operations of a subsidiary formerly
owned by the company) has been completed pursuant to the terms of a consent
decree with U.S. EPA and the State of Florida. Removal of the site from the
National Priorities List is expected shortly. Long-term monitoring activities
at the site for which the company remains responsible are not expected to have a
material adverse impact on the company's liquidity, resources, or results.
Item 4. Submission of Matters to a Vote of Security Holders.
---------------------------------------------------
None.
PART II
Item 5. Market Price of the Registrant's Common Equity and Related
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Stockholder Matters.
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Market Information
The company's common stock is listed on the New York Stock Exchange (trading
symbol: "ARW"). The high and low sales prices during each quarter of 1999 and
1998 were as follows:
Year High Low
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1999:
Fourth Quarter $26-1/2 $14-3/4
Third Quarter 23-1/8 16-5/8
Second Quarter 19-7/8 14-5/8
First Quarter 26-9/16 13-3/16
1998:
Fourth Quarter $26-7/8 $11-3/4
Third Quarter 22-5/8 12-1/2
Second Quarter 28-3/8 20-9/16
First Quarter 36-1/4 27
Holders
On February 25, 2000, there were approximately 4,000 shareholders of record of
the company's common stock.
Dividend History and Restrictions
The company has not paid cash dividends on its common stock during the past five
years. While the board of directors considers the payment of dividends on the
common stock from time to time, the declaration of future dividends will be
dependent upon the company's earnings, financial condition, and other relevant
factors.
The terms of the company's credit facilities, senior notes, and senior
debentures (see Note 4 of the Notes to Consolidated Financial Statements) limit,
among other things, the payment of cash dividends and the incurrence of
additional borrowings and require that working capital, net worth, and certain
other financial ratios be maintained at designated levels.
Item 6. Selected Financial Data.
-----------------------
The following table sets forth certain selected consolidated financial data and
should be read in conjunction with the company's consolidated financial
statements and related notes appearing elsewhere in this annual report.
<TABLE>
<CAPTION>
SELECTED FINANCIAL DATA
(In thousands except per share data)
For the year ended: 1999(a) 1998 1997(b) 1996 1995
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Sales
Components $7,276,858 $6,343,890 $6,465,521 $5,520,202 $5,127,258
Computer Products 2,035,767 2,000,769 1,298,424 1,014,375 792,162
---------- ---------- ---------- ---------- ----------
Consolidated 9,312,625 8,344,659 7,763,945 6,534,577 5,919,420
========== ========== ========== ========== ==========
Operating income
Components 390,237 344,349 440,917 411,607 453,496
Computer Products 34,468 55,889 31,672 20,226 4,097
Corporate (86,044) (47,734) (97,868) (31,206) (34,384)
---------- ---------- ---------- ---------- ----------
Consolidated 338,661 352,504 374,721 400,627 423,209
---------- ---------- ---------- ---------- ----------
Net income $ 124,153 $ 145,828 $ 163,656 $ 202,709 $ 202,544
========== ========== ========== ========== ==========
Earnings per share (c)
Basic $ 1.31 $ 1.53 $ 1.67 $ 2.01 $ 2.15
========== ========== ========== ========== ==========
Diluted 1.29 1.50 1.64 1.98 2.03
========== ========== ========== ========== ==========
At year-end:
Accounts receivable
and inventories $3,083,583 $2,675,612 $2,475,407 $1,947,719 $1,979,160
Total assets 4,483,255 3,839,871 3,537,873 2,710,351 2,701,016
Total long-term debt
and capital lease
obligations 1,533,421 1,047,041 829,827 352,576 460,628
Shareholders' equity 1,550,529 1,487,319 1,360,758 1,358,482 1,195,881
(a) Operating and net income include a special charge of $24.6 million and $16.5
million after taxes, respectively, associated with the acquisition and
integration of Richey Electronics, Inc. and the electronics distribution group
of Bell Industries, Inc. Excluding this charge, operating income, net income,
and earnings per share on a basic and diluted basis were $363.2 million, $140.6
million, $1.48, and $1.46, respectively.
(b) Operating and net income include special charges totaling $59.5 million and
$40.4 million after taxes, respectively, associated with the realignment of
Arrow's North American Components Operations and the acquisition and integration
of the volume electronic component distribution businesses of Premier Farnell
plc. Excluding these charges, operating income, net income, and earnings per
share on a basic and diluted basis were $434.2 million, $204.1 million, $2.08,
and $2.05, respectively.
(c) Per share amounts in 1996 and 1995 have been restated to reflect the two-
for-one stock split effective October 15, 1997.
</TABLE>
Item 7. Management's Discussion and Analysis of Financial Condition and
---------------------------------------------------------------
Results of Operations.
---------------------
For an understanding of the significant factors that influenced the company's
performance during the past three years, the following discussion should be read
in conjunction with the consolidated financial statements and other information
appearing elsewhere in this report.
Sales
In 1999, consolidated sales increased to $9.3 billion. This 12 percent sales
growth over 1998 was principally due to growth in the worldwide core components
operations and acquisitions offset, in part, by fewer sales of low margin
microprocessors, a product segment not considered a part of the company's core
business, and foreign exchange rate differences. Excluding the impact of the
Richey Electronics, Inc. ("Richey") and the electronics distribution group of
Bell Industries, Inc. ("EDG") acquisitions, foreign exchange rate differences,
and lower microprocessor sales, consolidated revenue increased by 8 percent over
the prior year and sales of core components increased by 10 percent. Sales of
commercial computer products increased marginally over 1998's level due
principally to softening demand and lower average selling prices, offset by
increasing unit shipments, as a result of market conditions.
Consolidated sales of $8.3 billion in 1998 were 7 percent higher than 1997 sales
of $7.8 billion. This sales growth was due to increased sales of commercial
computer products from $1.3 billion in 1997 to more than $2 billion in 1998.
Excluding the impact of acquisitions, 1998 sales of computer products increased
by 24 percent when compared to 1997. The worldwide market for electronic
components continued to be characterized by product availability well in excess
of demand and resultant pressure on average selling prices and gross profit
margins resulting in a decline in sales from $6.5 billion in 1997 to $6.3
billion in 1998.
In 1997, consolidated sales increased to $7.8 billion, an increase of 19 percent
over 1996 sales of $6.5 billion. This sales growth was due to increased
activity levels throughout the world and acquisitions, principally the volume
electronic component distribution businesses of Premier Farnell plc offset, in
part, by the impact of a stronger U.S. dollar. Sales of commercial computer
products increased by 21 percent, excluding the impact of acquisitions.
Operating Income
In 1999, the company's consolidated operating income decreased to $338.7 million
from $352.5 million in 1998, principally as a result of the special charge of
$24.6 million associated with the acquisition and integration of Richey and EDG.
Excluding this integration charge, operating income was $363.2 million.
Operating income, excluding the integration charge, increased as a result of
higher sales, improving gross profit margins in the core components operations
in the latter part of 1999, and improved operating efficiencies resulting from
the integration of Richey and EDG into the company's North American Components
Operations offset, in part, by lower gross profit margins in the computer
products operations, increased non-cash amortization expense associated with
goodwill, investments made in systems, including the Internet, and personnel to
support anticipated increases in business activities in 2000 and beyond.
The company's consolidated operating income decreased to $352.5 million in 1998,
compared with operating income of $374.7 million in 1997, including special
charges of $59.5 million. Excluding the special charges, operating income in
1997 was $434.2 million. The reduction in operating income reflected a decline
in the sales of the North American Components Operations, a further decline in
gross margins due to proportionately higher sales of lower margin commercial
computer products, and competitive pricing pressures throughout the world
offset, in part, by the impact of increased sales and the benefits of continuing
economies of scale. Operating expenses as a percent of sales remained
consistent with 1997 at 9.7 percent, the lowest in the company's history.
In 1997, the company's consolidated operating income decreased to $374.7
million, compared with operating income of $400.6 million in 1996, principally
as a result of special charges of $59.5 million associated with the realignment
of the North American Components Operations and the acquisition and integration
of the volume electronic component distribution businesses of Premier Farnell
plc. The improvement in operating income, excluding the special charges,
reflects the impact of increased sales, acquisitions, and continuing economies
of scale offset, in part, by lower gross profit margins caused by competitive
pricing pressures and a greater sales mix of commercial computer products.
Operating expenses, excluding the special charges, as a percent of sales
declined to 9.7 percent in 1997.
Interest Expense
In 1999, interest expense increased to $106.3 million from $81.1 million in
1998, reflecting both increases in borrowings to fund acquisitions and
investments in working capital.
Interest expense of $81.1 million in 1998 increased by $14 million from the 1997
level, reflecting increases in borrowings associated with acquisitions and
investments in working capital.
In 1997, interest expense increased to $67.1 million from $38 million in 1996,
reflecting increases in borrowings associated with acquisitions, the purchases
of the company's common stock, and investments in working capital.
Income Taxes
In 1999, the company recorded a provision for taxes at an effective tax rate of
43 percent, excluding the integration charge, compared with 42.2 percent in
1998. The increased rate for 1999 is due to the non-deductibility of goodwill
amortization.
The company recorded a provision for taxes at an effective tax rate of 42.2
percent in 1998 compared with 41 percent, excluding the special charges, in
1997. The higher effective rate in 1998 is due to the non-deductibility of
goodwill amortization.
In 1997, the company recorded a provision for taxes at an effective tax rate of
41 percent, excluding the special charges, compared with 39.9 percent in 1996.
The increased rate for 1997 is due to increased earnings in countries with
higher marginal tax rates and the non-deductibility of goodwill amortization.
Net Income
In 1999, the company's net income decreased to $124.2 million from $145.8
million in 1998. Excluding the integration charge, net income was $140.6
million. The decrease in net income, excluding the integration charge, was
primarily attributable to an increase in operating income and a decrease in
minority interest offset by an increase in interest expense.
Net income in 1998 was $145.8 million, a decrease from $204.1 million, before
the special charges of $59.5 million ($40.4 million after taxes), in 1997. The
decrease in net income is attributable to lower operating income and increases
in interest expense.
In 1997, the company's net income advanced to $204.1 million from $202.7 million
in 1996, before the special charges. The increase in net income was
attributable to higher operating income offset, in part, by an increase in
interest expense.
Liquidity and Capital Resources
The company maintains a significant investment in accounts receivable and
inventories. Consolidated current assets, as a percentage of total assets, were
approximately 70 percent and 75 percent in 1999 and 1998, respectively.
Working capital increased by $138 million, or 8 percent, in 1999 compared with
1998. This increase was due to increased sales, higher working capital
requirements, and acquisitions.
The net amount of cash used for the company's operating activities in 1999 was
$33.5 million, principally reflecting increased customer receivables due to
accelerated sales growth in the fourth quarter offset, in part, by earnings for
the year. The net amount of cash used for investing activities was $543.3
million, including $459.1 million for the acquisitions of Richey, EDG,
Industrade AG, interests in the Elko Group and Panamericana Comercial
Importadora, S.A., the remaining interests in Spoerle Electronic and Support
Net, Inc., and an additional interest in Scientific and Business Minicomputers,
Inc., as well as certain Internet-related investments, and $84.2 million for
various capital expenditures. The net amount of cash provided by financing
activities was $479.1 million, reflecting borrowings under the company's
commercial paper program, the issuance of the company's floating rate notes, and
credit facilities offset, in part, by the repayment of Richey's 7% convertible
subordinated notes and debentures, 8.29% senior debentures, and distributions to
partners.
In 1998, working capital increased by 18 percent, or $262 million, compared with
1997. This increase was due to higher working capital requirements and
acquisitions.
The net amount of cash provided by operations in 1998 was $43.6 million, the
principal element of which was the cash flow resulting from net earnings offset,
in part, by working capital usage. The net amount of cash used by the company
for investing purposes was $129.6 million, including $70.6 million for various
acquisitions. Cash flows provided by financing activities were $131.4 million,
principally reflecting the $445.7 million of proceeds from the issuance of the
company's 6 7/8% senior debentures and 6.45% senior notes offset, in part, by
the reduction in the company's credit facilities, purchases of common stock, and
distributions to partners.
Working capital increased by $160 million, or 13 percent, in 1997 compared with
1996, primarily as a result of increased sales and acquisitions. This
percentage increase was less than the percentage increase of sales as a result
of improvements in working capital usage.
The net amount of cash used for the company's operating activities in 1997 was
$14.2 million, principally reflecting earnings offset by increased working
capital requirements supporting higher sales. The net amount of cash used for
investing activities was $410.8 million, including $381.5 million for
acquisitions and investments. The net amount of cash provided by financing
activities was $422.1 million, principally reflecting the $392.8 million of
proceeds from the issuance of the company's senior notes and senior debentures
and increases in the company's credit facilities offset, in part, by the
purchase of the company's common stock.
Year 2000 Update
The company has experienced no significant failures or disruptions of its
internal systems either on or after January 1, 2000. Additionally, to date,
there have been no material Year 2000 related failures or disruptions with
respect to principal third-party business partners.
The company continues to monitor its systems and the capabilities of its
customers and suppliers to ensure that any previously unidentified Year 2000
issues that may arise are addressed promptly. In the unlikely event that any
issues should occur, the company anticipates that they will be resolved through
implementation of its comprehensive contingency planning efforts.
The company estimates that it has spent approximately $20 million to date
addressing Year 2000 issues and does not expect to incur any material Year 2000
related costs in the future.
Information Relating to Forward-Looking Statements
This report includes forward-looking statements that are subject to certain
risks and uncertainties which could cause actual results or facts to differ
materially from such statements for a variety of reasons, including, but not
limited to: industry conditions, changes in product supply, pricing and customer
demand, competition, other vagaries in the electronic components and commercial
computer products markets, and changes in relationships with key suppliers.
Shareholders and other readers are cautioned not to place undue reliance on
these forward-looking statements, which speak only as of the date on which they
are made. The company undertakes no obligation to update publicly or revise any
forward-looking statements.
Item 7A. Market and Other Risks.
----------------------
The company is exposed to market risk from changes in foreign currency exchange
rates and interest rates.
The company, as a large international organization, faces exposure to adverse
movements in foreign currency exchange rates. These exposures may change over
time as business practices evolve and could have a material impact on the
company's financial results in the future. The company's primary exposure
relates to transactions in which the currency collected from customers is
different from the currency utilized to purchase the product sold in Europe, the
Asia/Pacific region, and South America. At the present time, the company hedges
only those currency exposures for which natural hedges do not exist. Anticipated
foreign currency cash flows and earnings and investments in businesses in
Europe, the Asia/Pacific region, and South America are not hedged as in many
instances there are natural offsetting positions. The translation of the
financial statements of the non-North American operations is impacted by
fluctuations in foreign currency exchange rates. Had the various average
foreign currency exchange rates remained the same during 1999 as compared with
1998, 1999 sales and operating income would have been $102 million and $5
million higher, respectively, than the actual results for 1999.
The company's interest expense, in part, is sensitive to the general level of
interest rates in the Americas, Europe, and the Asia/Pacific region. The
company manages its exposure to interest rate risk through the proportion of
fixed rate and variable rate debt in its total debt portfolio. At December 31,
1999, the company had approximately 48 percent of its debt as fixed rate
borrowings and 52 percent of its debt subject to variable rates. Interest
expense would fluctuate by approximately $7 million if average interest rates
had changed by one percentage point in 1999. This amount was determined by
considering the impact of a hypothetical interest rate on the company's
borrowing cost. This analysis does not consider the effect of the level of
overall economic activity that could exist in such an environment. Further, in
the event of a change of such magnitude, management could likely take actions to
further mitigate any potential negative exposure to the change. However, due to
the uncertainty of the specific actions that would be taken and their possible
effects, the sensitivity analysis assumes no changes in the company's financial
structure.
Item 8. Financial Statements.
--------------------
REPORT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
The Board of Directors and Shareholders
Arrow Electronics, Inc.
We have audited the accompanying consolidated balance sheet of Arrow
Electronics, Inc. as of December 31, 1999 and 1998, and the related consolidated
statements of income, cash flows, and shareholders' equity for each of the three
years in the period ended December 31, 1999. Our audits also included the
financial statement schedule listed in the Index at Item 14(a). These financial
statements and the schedule are the responsibility of the company's management.
Our responsibility is to express an opinion on these financial statements and
the schedule based on our audits.
We conducted our audits in accordance with auditing standards generally accepted
in the United States. Those standards require that we plan and perform the audit
to obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of Arrow
Electronics, Inc. at December 31, 1999 and 1998, and the consolidated results of
its operations and its cash flows for each of the three years in the period
ended December 31, 1999, in conformity with accounting principles generally
accepted in the United States. Also, in our opinion, the related financial
statement schedule, when considered in relation to the basic financial
statements taken as a whole, presents fairly in all material respects the
information set forth therein.
ERNST & YOUNG LLP
New York, New York
February 16, 2000
MANAGEMENT'S RESPONSIBILITY FOR FINANCIAL REPORTING
The consolidated financial statements of Arrow Electronics, Inc. have been
prepared by management, which is responsible for their integrity and
objectivity. These statements, prepared in accordance with generally accepted
accounting principles, reflect our best use of judgment and estimates where
appropriate. Management also prepared the other information in the annual
report and is responsible for its accuracy and consistency with the consolidated
financial statements.
The company's system of internal controls is designed to provide reasonable
assurance that company assets are safeguarded from loss or unauthorized use or
disposition and that transactions are executed in accordance with management's
authorization and are properly recorded. In establishing the basis for
reasonable assurance, management balances the costs of the internal controls
with the benefits they provide. The system contains self-monitoring mechanisms,
and compliance is tested through an extensive program of site visits and audits
by the company's operating controls staff.
The audit committee of the board of directors, consisting entirely of outside
directors, meets regularly with the company's management, operating controls
staff, and independent auditors and reviews audit plans and results as well as
management's actions taken in discharging its responsibilities for accounting,
financial reporting, and internal controls. Members of management, the
operating controls staff, and the independent auditors have direct and
confidential access to the audit committee at all times.
The company's independent auditors, Ernst & Young LLP, were engaged to audit the
consolidated financial statements in accordance with generally accepted auditing
standards. These standards include a study and evaluation of internal controls
for the purpose of establishing a basis for reliance thereon relative to the
scope of their audit of the consolidated financial statements.
Stephen P. Kaufman
Chairman and Chief Executive Officer
Sam R. Leno
Senior Vice President and
Chief Financial Officer
<TABLE>
<CAPTION>
ARROW ELECTRONICS, INC.
CONSOLIDATED STATEMENT OF INCOME
(In thousands except per share data)
Years Ended December 31,
--------------------------------------
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Sales $9,312,625 $8,344,659 $7,763,945
---------- ---------- ----------
Costs and expenses:
Cost of products sold 8,011,419 7,183,413 6,574,415
Selling, general, and
administrative expenses 866,861 756,770 712,213
Depreciation and amortization 71,124 51,972 43,096
Integration charge 24,560 - 21,600
Realignment charge - - 37,900
---------- ---------- ----------
8,973,964 7,992,155 7,389,224
---------- ---------- ----------
Operating income 338,661 352,504 374,721
Equity in earnings (loss)
of affiliated companies (1,107) 937 781
Interest expense, net 106,349 81,126 67,117
---------- ---------- ----------
Earnings before income taxes
and minority interest 231,205 272,315 308,385
Provision for income taxes 101,788 115,018 131,617
---------- ---------- ----------
Earnings before minority interest 129,417 157,297 176,768
Minority interest 5,264 11,469 13,112
---------- ---------- ----------
Net income $ 124,153 $ 145,828 $ 163,656
========== ========== ==========
Per common share:
Basic $ 1.31 $ 1.53 $ 1.67
========== ========== ==========
Diluted 1.29 1.50 1.64
========== ========== ==========
Average number of common shares
outstanding:
Basic 95,123 95,397 98,006
====== ====== ======
Diluted 96,045 97,113 99,769
====== ====== ======
See accompanying notes.
</TABLE>
<TABLE>
<CAPTION>
ARROW ELECTRONICS, INC.
CONSOLIDATED BALANCE SHEET
(Dollars in thousands)
December 31,
------------------------
1999 1998
---- -----
<S> <C> <C>
ASSETS
Current assets:
Cash and short-term investments $ 44,885 $ 158,924
Accounts receivable, less allowance for doubtful
accounts ($32,338 in 1999 and $48,423 in 1998) 1,638,654 1,354,351
Inventories 1,444,929 1,321,261
Prepaid expenses and other assets 29,469 26,279
---------- ----------
Total current assets 3,157,937 2,860,815
---------- ----------
Property, plant and equipment at cost
Land 17,638 15,087
Buildings and improvements 114,158 90,851
Machinery and equipment 257,841 183,227
---------- ----------
389,637 289,165
Less accumulated depreciation and amortization 165,987 134,359
---------- ----------
223,650 154,806
---------- ----------
Investments in affiliated companies 52,233 23,279
Cost in excess of net assets of companies acquired,
less accumulated amortization ($113,762 in 1999
and $91,837 in 1998) 960,770 721,323
Other assets 88,665 79,648
---------- ----------
$4,483,255 $3,839,871
========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 805,468 $ 785,596
Accrued expenses 263,216 211,438
Short-term borrowings, including current maturities
Of long-term debt and capital lease obligations 255,977 168,066
---------- ----------
Total current liabilities 1,324,661 1,165,100
---------- ----------
Long-term debt and capital lease obligations 1,533,421 1,047,041
Deferred income taxes 39,474 41,120
Other liabilities 23,754 29,599
Minority interest 11,416 69,692
Shareholders' equity:
Common stock, par value $1:
Authorized--120,000,000 shares in 1999 and 1998
Issued--102,949,640 shares in 1999 and 1998 102,950 102,950
Capital in excess of par value 501,379 506,002
Retained earnings 1,238,979 1,114,826
Foreign currency translation adjustment (95,295) (23,648)
---------- ----------
1,748,013 1,700,130
Less: Treasury stock (7,004,349 and 7,321,540
Shares in 1999 and 1998), at cost 187,269 198,281
Unamortized employee stock awards 10,215 14,530
---------- ----------
Total shareholders' equity 1,550,529 1,487,319
---------- ----------
$4,483,255 $3,839,871
========== ==========
See accompanying notes.
</TABLE>
<TABLE>
<CAPTION>
ARROW ELECTRONICS, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
(In thousands)
Years Ended December 31,
---------------------------------
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Cash flows from operating activities:
Net income $ 124,153 $ 145,828 $ 163,656
Adjustments to reconcile net income to net
cash provided by (used for) operations:
Minority interest in earnings 5,264 11,469 13,112
Depreciation and amortization 78,635 55,101 47,057
Equity in (earnings) loss of
affiliated companies 1,107 (937) (781)
Deferred income taxes (11,318) 19,661 (9,814)
Integration charge 24,560 - 21,600
Realignment charge - - 37,900
Change in assets and liabilities, net of
effects of acquired businesses:
Accounts receivable (242,370) (38,792) (219,488)
Inventories (15,568) (33,490) (94,144)
Prepaid expenses and other assets (236) 10,785 (8,048)
Accounts payable (8,735) (17,049) 36,784
Accrued expenses 20,412 (88,808) (4,917)
Other (9,395) (20,164) 2,913
--------- --------- ---------
Net cash provided by (used for) operating
activities (33,491) 43,604 (14,170)
--------- --------- ---------
Cash flows from investing activities:
Acquisition of property, plant and equipment (84,249) (59,006) (29,335)
Cash consideration paid for acquired
businesses (428,969) (67,521) (364,499)
Investments in affiliates (30,127) (3,078) (16,973)
--------- --------- ---------
Net cash used for investing activities (543,345) (129,605) (410,807)
--------- --------- ---------
Cash flows from financing activities:
Change in short-term borrowings (29,010) (4,850) 55,018
Change in credit facilities 224,683 (223,127) 122,830
Proceeds from short-term debt 119,814 - -
Proceeds from long-term debt 298,103 445,665 392,844
Repayment of long-term debt (97,833) (25,411) (338)
Proceeds from exercise of stock options 1,282 7,504 20,209
Distributions to minority partners (37,852) (18,227) (17,464)
Purchases of common stock (100) (50,129) (151,010)
--------- --------- ---------
Net cash provided by financing activities 479,087 131,425 422,089
--------- --------- ---------
Effect of exchange rate changes on cash (16,290) (3,964) (20,847)
--------- --------- ---------
Net increase (decrease) in cash and
short-term investments (114,039) 41,460 (23,735)
Cash and short-term investments at
beginning of year 158,924 112,665 136,400
Cash and short-term investments of acquired
affiliate - 4,799 -
--------- --------- ---------
Cash and short-term investments at end of
year $ 44,885 $ 158,924 $ 112,665
========= ========= =========
Supplemental disclosures of cash flow information:
Cash paid during the year for:
Income taxes $ 47,145 $ 88,718 $ 121,251
Interest 105,239 81,500 52,265
See accompanying notes.
</TABLE>
<TABLE>
<CAPTION>
ARROW ELECTRONICS, INC.
CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
(In thousands)
Common Foreign Unamortized
Stock Capital in Currency Employee
at Par Excess of Retained Translation Treasury Stock Awards
Value Par Value Earnings Adjustment Stock and Other Total
-------- ---------- -------- ----------- -------- ------------ -----
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at December
31, 1996 $102,392 $498,717 $805,342 $ 8,753 $(49,065) $ (7,657) $1,358,482
Net income - - 163,656 - - - 163,656
Translation
adjustments - - - (44,634) - - (44,634)
----------
Comprehensive
income 119,022
----------
Exercise of
stock options 198 (8,626) - - 28,637 - 20,209
Tax benefits
related to exercise
of stock options - 7,074 - - - - 7,074
Restricted stock
awards, net 360 9,491 - - 7,231 (17,082) -
Amortization of
Employee stock
awards - - - - - 6,981 6,981
Purchases of
common stock - - - - (151,010) - (151,010)
-------- -------- ---------- -------- --------- -------- ----------
Balance at December
31, 1997 102,950 506,656 968,998 (35,881) (164,207) (17,758) 1,360,758
Net income - - 145,828 - - - 145,828
Translation
adjustments - - - 12,233 - - 12,233
----------
Comprehensive
income 158,061
----------
Exercise of
stock options - (2,777) - - 10,281 - 7,504
Tax benefits
related to exercise
of stock options - 1,619 - - - - 1,619
Restricted stock
awards, net - 503 - - 5,766 (6,269) -
Amortization of
employee stock
awards - - - - - 9,497 9,497
Purchases of
common stock - - - - (50,129) - (50,129)
Other - 1 - - 8 - 9
-------- -------- ---------- -------- --------- -------- ----------
Balance at December
31, 1998 102,950 506,002 1,114,826 (23,648) (198,281) (14,530) 1,487,319
Net income - - 124,153 - - - 124,153
Translation
adjustments - - - (71,647) - - (71,647)
----------
Comprehensive
income 52,506
----------
Exercise of
stock options - (1,259) - - 2,541 - 1,282
Tax benefits
related to exercise
of stock options - 189 - - - - 189
Restricted stock
awards, net - (3,921) - - 8,571 (4,650) -
Amortization of
Employee stock
awards - - - - - 8,965 8,965
Other - 368 - - (100) - 268
-------- -------- ---------- -------- --------- -------- ----------
Balance at December
31, 1999 $102,950 $501,379 $1,238,979 $(95,295) $(187,269) $(10,215) $1,550,529
======== ======== ========== ======== ========= ======== ==========
See accompanying notes.
</TABLE>
ARROW ELECTRONICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Summary of Significant Accounting Policies
Principles of Consolidation
- ---------------------------
The consolidated financial statements include the accounts of the company and
its majority-owned subsidiaries. All significant intercompany transactions are
eliminated.
Use of Estimates
- ----------------
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the amounts reported in the consolidated financial statements and
accompanying notes. Actual results could differ from those estimates.
Cash and Short-term Investments
- -------------------------------
Short-term investments which have a maturity of ninety days or less at time of
purchase are considered cash equivalents in the consolidated statement of cash
flows. The carrying amount reported in the consolidated balance sheet for short-
term investments approximates fair value.
Financial Instruments
- ---------------------
The company uses various financial instruments, including derivative financial
instruments, for purposes other than trading. The company does not use
derivative financial instruments for speculative purposes. Derivatives used as
part of the company's risk management strategy are designated at inception as
hedges and measured for effectiveness both at inception and on an ongoing basis.
Inventories
- -----------
Inventories are stated at the lower of cost or market. Cost is determined on
the first-in, first-out (FIFO) method.
Property, Plant and Equipment
- -----------------------------
Property, plant and equipment are stated at cost. Depreciation is computed on
the straight-line method for financial reporting purposes and on accelerated
methods for tax reporting purposes. Leasehold improvements are amortized over
the shorter of the term of the related lease or the life of the improvement.
Cost in Excess of Net Assets of Companies Acquired
- --------------------------------------------------
The cost in excess of net assets of companies acquired is being amortized on a
straight-line basis, over a period of 20 to 40 years. Management reassesses the
carrying value and remaining life of the excess cost over fair value of net
assets of companies acquired on an ongoing basis. Whenever events indicate that
the carrying values are impaired, the excess cost over fair value of those
assets is adjusted appropriately. As of December 31, 1999, management believes
there is no impairment with respect to these assets.
Foreign Currency
- ----------------
The assets and liabilities of foreign operations are translated at the exchange
rates in effect at the balance sheet date, with the related translation gains or
losses reported as a separate component of shareholders' equity. The results of
foreign operations are translated at the monthly weighted average exchange
rates.
ARROW ELECTRONICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Income Taxes
- ------------
Income taxes are accounted for under the liability method. Deferred taxes
reflect the tax consequences on future years of differences between the tax
bases of assets and liabilities and their financial reporting amounts.
Stock Split
- -----------
The company's board of directors authorized a two-for-one stock split effected
in the form of a 100 percent stock dividend distributed on October 15, 1997 to
shareholders of record on October 3, 1997. Shareholders' equity has been
restated to give retroactive recognition to the stock split in 1997 by
reclassifying from capital in excess of par value to common stock the par value
of the additional shares arising from the split.
Net Income Per Share
- --------------------
Basic EPS is computed by dividing income available to common shareholders by the
weighted average number of common shares outstanding for the period. Diluted
EPS reflects the potential dilution that would occur if securities or other
contracts to issue common stock were exercised or converted into common stock.
Comprehensive Income
- --------------------
Comprehensive income is defined as the aggregate change in shareholders' equity
excluding changes in ownership interests. The foreign currency translation
adjustments included in comprehensive income have not been tax effected as
investments in foreign affiliates are deemed to be permanent.
Segment and Geographic Information
- ----------------------------------
Operating segments are defined as components of an enterprise for which separate
financial information is available that is evaluated regularly by the chief
operating decision makers in deciding how to allocate resources and in assessing
performance. The company's operations are classified into two reportable
business segments, the distribution of electronic components to original
equipment manufacturers and the distribution of computer products to value-added
resellers (VARs).
Revenue Recognition
- -------------------
The company recognizes revenue when customers' orders are complete and shipped.
Reclassification
- ----------------
Certain prior year amounts have been reclassified to conform with current year
presentation.
Impact of Recently Issued Accounting Standards
- ----------------------------------------------
In March 1998, the American Institute of Certified Public Accountants issued
Statement of Position 98-1, "Accounting for the Costs of Computer Software
Developed or Obtained for Internal Use" which principally defined those internal
costs that should be capitalized. The Statement was adopted by the company in
1998. The company capitalized $24,259,000 and $3,300,000 in 1999 and 1998,
respectively.
ARROW ELECTRONICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
In June 1998, the Financial Accounting Standards Board issued Statement No. 133,
"Accounting for Derivative Instruments and Hedging Activities." As its
effective date was deferred, the company expects to adopt the new Statement in
2001. The Statement will require the company to recognize all derivatives on
the balance sheet at fair value. Gains and losses resulting from changes in the
value of the derivatives would be accounted for depending on the intended use of
the derivative and whether it qualifies for hedge accounting. Due to the
company's limited use of derivative financial instruments, adoption of Statement
No. 133 is not expected to have a significant effect on the company's
consolidated results of operations, financial position, or cash flows.
2. Acquisitions
During 1999, the company acquired Richey Electronics, Inc. ("Richey"), a leading
specialty distributor of interconnect, electromechanical, and passive electronic
components and provider of related value-added services to customers throughout
North America, and the electronics distribution group of Bell Industries, Inc.
("EDG"), one of the ten largest distributors of electronic components in North
America. In addition, during 1999 the company acquired a two-thirds interest in
Panamericana Comercial Importadora, S.A., the largest distributor of electronic
components in Brazil, and a 70 percent interest in the Elko Group, the largest
distributor of electronic components in Argentina. The company also increased
its holdings in Spoerle Electronic Handelsgesellschaft mbH ("Spoerle") and
Support Net, Inc. to 100 percent and acquired an additional 4 percent interest
in Scientific and Business Minicomputers, Inc. ("SBM"). Also during 1999
Spoerle acquired Industrade AG, one of Switzerland's leading distributors of
electronic components and related products. The aggregate cost of these
acquisitions was $428,969,000.
A summary of the allocation of the aggregate consideration paid for the
aforementioned acquisitions, excluding amounts paid for increases in majority
holdings, to the fair market value of assets acquired and liabilities assumed is
as follows (in thousands):
Current assets:
Accounts receivable $ 92,861
Inventory 144,061
Other 7,056 $243,978
--------
Property, plant and equipment 26,585
Cost in excess of net assets
of companies acquired 173,982
Other assets 6,680
--------
$451,225
--------
Current liabilities:
Accounts payable $ 53,204
Accrued expenses 22,762
Other 14,831 $ 90,797
--------
Long-term debt 73,207
Other 2,181
--------
$166,185
--------
Net consideration paid $285,040
========
In 1999, the company recorded a special charge of $24,560,000 ($16,480,000 after
taxes) in the second quarter and an additional $37,991,000 ($25,833,000 after
taxes), as cost in excess of net assets of companies acquired, to integrate
Richey and EDG into the company. Of the total amount recorded, $30,140,000 was
associated with the closing of various office facilities and distribution and
value-added centers with the remaining amounts associated with severance, the
ARROW ELECTRONICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
termination of certain supplier relationships, and professional fees. Of the
total amount recorded, $27,610,000 has been spent. Approximately $24,495,000 of
the remaining amount relates to vacated facilities, leased with various
expiration dates through 2010, and an estimated $7,200,000 represents non-cash
items. It is not anticipated that these items will have a significant impact
upon cash flow in any one particular year.
During 1998, the company acquired Unitronics Componentes S.A. and a majority
interest in SBM. The company also increased its holdings in Spoerle to 90
percent and the Veltek/Zatek companies in Australia and Strong Electronics Co.,
Ltd. in Taiwan to 100 percent. The aggregate cost of these acquisitions was
$62,918,000.
The cost of each acquisition has been allocated among the net assets acquired on
the basis of the respective fair values of the assets acquired and liabilities
assumed. For financial reporting purposes, the acquisitions are accounted for
as purchase transactions in accordance with Accounting Principles Board Opinion
No. 16, "Business Combinations." Accordingly, the consolidated results of the
company in 1999 include these companies from their respective dates of
acquisition. The aggregate consideration paid for all acquisitions exceeded the
net assets acquired by $303,326,000 and $46,591,000 in 1999 and 1998,
respectively.
In connection with certain acquisitions, the company may be required to make
additional payments that are contingent upon the acquired businesses achieving
certain operating goals. During 1998, the company made additional payments of
$2,942,000, which have been capitalized as cost in excess of net assets of
companies acquired.
3. Investments in Affiliated Companies
At December 31, 1999, the company had a 24.7 percent interest in ChipCenter LLC,
a comprehensive on-line service for electronic component information and
sourcing. During 1999, the company also acquired a 49 percent interest in VCE
Virtual Chip Exchange, Inc. ("VCE"), an Internet marketplace for electronic
components. VCE matches buyers with sellers and provides its members with
supporting services such as real-time market availability and pricing
information by device type or technology.
During 1998, the company acquired a 50 percent interest in Marubun/Arrow, a
joint venture with Marubun Corporation, Japan's largest independent components
distributor. This joint venture was formed to serve Japanese customers in the
Asia/Pacific region and North America. The company also has a 50 percent
interest in Altech Industries (Pty) Ltd., a joint venture with Allied
Technologies Limited, a South African electronics distributor.
These investments are accounted for using the equity method.
In addition, the company has a 13.38 percent interest in QuestLink Technology,
Inc., a technical design resource for engineers.
4. Debt
The company has short-term floating rate notes in the amount of $120,000,000
that are not redeemable prior to their maturity on November 24, 2000. The notes
bear interest at LIBOR plus .75% with interest payable on a quarterly basis.
Other short-term borrowings are principally utilized to support the working
capital requirements of certain foreign operations. The weighted average
interest rates of these borrowings at December 31, 1999 and 1998 were 5% and 7%,
respectively.
ARROW ELECTRONICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Long-term debt consisted of the following at December 31 (in thousands):
1999 1998
---- ----
Global multi-currency credit facility $ 381,726 $ 173,633
Commercial paper 298,123 -
7% senior notes, due 2007 198,227 197,976
7 1/2% senior debentures, due 2027 196,211 196,071
8.29% senior notes 25,000 50,000
6 7/8% senior debentures, due 2018 196,148 195,939
6.45% senior notes, due 2003 249,885 249,855
Other obligations with various
interest rates and due dates 13,101 8,567
1,558,421 1,072,041
---------- ----------
Less installments due within one year 25,000 25,000
---------- ----------
$1,533,421 $1,047,041
========== ==========
The company's revolving credit agreement (the "global multi-currency credit
facility"), as amended, provides up to $650,000,000 of available credit and has
a maturity date of September 2001. The interest rate for loans under this
facility is at the applicable eurocurrency rate (5.8225 percent for U.S. dollar
denominated loans at December 31, 1999) plus a margin of .225 percent. The
company pays the banks a facility fee of .125 percent per annum.
In March 1999, the company entered into a 364-day $350,000,000 credit facility
(the "364-day facility") which expires in March 2000. The company expects to
renew the 364-day facility for another 364-day period. There are no outstanding
borrowings under this facility.
In November 1999, the company established a commercial paper program, providing
for the issuance of up to $1,000,000,000 in aggregate maturity value of
commercial paper. Interest rates on outstanding commercial paper borrowings as
of December 31, 1999, ranged from 5.25% to 7.75% with an effective average rate
of 6.7224%. The amounts outstanding under the commercial paper program have
been classified as long-term debt, as such amounts are supported by the
company's credit facilities and will continue to be refinanced.
The 7% senior notes and the 7 1/2% senior debentures are not redeemable prior to
their maturity. The 8.29% senior notes are payable in 2000. The 6 7/8% senior
debentures and the 6.45% senior notes may be prepaid at the option of the
company on at least 30 days prior notice subject to a "make whole" clause.
The global multi-currency credit facility, the 364-day facility, the senior
notes, and the senior debentures limit, among other things, the payment of cash
dividends and the incurrence of additional borrowings, and require that working
capital, net worth, and certain other financial ratios be maintained at
designated levels.
Annual payments of borrowings during each of the years 2000 through 2004 are
$255,977,000, $681,598,000, $659,000, $250,579,000, and $598,000, respectively,
and $599,987,000 for all years thereafter.
At December 31, 1999, the estimated fair market value of the 7% senior notes was
93 percent of par, the 7 1/2% senior debentures was 89 percent of par, the 8.29%
senior notes was 109 percent of par, the 6 7/8% senior debentures was 85 percent
of par, and the 6.45% senior notes was 94 percent of par. The balance of the
company's borrowings approximate their fair value.
ARROW ELECTRONICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
5. Income Taxes
The provision for income taxes consists of the following (in thousands):
1999 1998 1997
---- ---- ----
Current
- -------
Federal $ 42,189 $ 46,449 $ 81,278
State 9,968 11,373 19,679
Foreign 40,014 35,796 31,096
-------- -------- --------
92,171 93,618 132,053
-------- -------- --------
Deferred
- --------
Federal 8,922 15,667 (9,321)
State 2,144 3,815 (2,130)
Foreign (1,449) 1,918 11,015
-------- -------- --------
9,617 21,400 (436)
-------- -------- --------
$101,788 $115,018 $131,617
======== ======== ========
The principal causes of the difference between the U.S. statutory and effective
income tax rates are as follows (in thousands):
1999 1998 1997
---- ---- ----
Provision at statutory rate $ 80,921 $ 95,311 $107,935
State taxes, net of federal
benefit 7,873 9,872 11,407
Foreign tax rate differential 2,860 858 2,499
Non-deductible goodwill 6,904 4,704 4,167
Other 3,230 4,273 5,609
-------- -------- --------
$101,788 $115,018 $131,617
======== ======== ========
For financial reporting purposes, income before income taxes attributable to the
United States was $131,007,000 in 1999, $183,048,000 in 1998, and $216,993,000
in 1997, and income before income taxes attributable to foreign operations was
$100,198,000 in 1999, $89,267,000 in 1998, and $91,392,000 in 1997.
The significant components of the company's deferred tax assets, which are
included in other assets, are as follows (in thousands):
1999 1998
---- ----
Inventory reserves $13,642 $11,148
Allowance for doubtful accounts 4,376 9,208
Accrued expenses 2,187 919
Realignment reserves 897 1,869
Integration reserves 27,101 19,116
Other (1,635) (3,912)
------- -------
$46,568 $38,348
======= =======
Deferred tax liabilities were $39,474,000 and $41,120,000 at December 31, 1999
and 1998, respectively. The deferred tax liabilities are principally the result
of the differences in the bases of the company's German assets and liabilities
for tax and financial reporting purposes.
6. Shareholders' Equity
The company has 2,000,000 authorized shares of serial preferred stock with a par
value of $1.
In 1988, the company paid a dividend of one preferred share purchase right on
each outstanding share of common stock. Each right, as amended, entitles a
shareholder to purchase one one-hundredth of a share of a new series of
preferred stock at an exercise price of $50 (the "exercise price"). The rights
are exercisable only if a person or group acquires 20 percent or more of the
company's common stock or announces a tender or exchange offer that will result
in such person or group acquiring 30 percent or more of the company's common
stock. Rights owned by the person acquiring such stock or transferees thereof
will automatically be void. Each other right will become a right to buy, at the
exercise price, that number of shares of common stock having a market value of
twice the exercise price. The rights, which do not have voting rights, may be
redeemed by the company at a price of $.01 per right at any time until ten days
after a 20 percent ownership position has been acquired. In the event that the
company merges with, or transfers 50 percent or more of its consolidated assets
or earning power to, any person or group after the rights become exercisable,
holders of the rights may purchase, at the exercise price, a number of shares of
common stock of the acquiring entity having a market value equal to twice the
exercise price. The rights, as amended, expire on March 1, 2008.
7. Realignment Charge
During 1997, the company announced the realignment of its North American
Components Operations into seven operating groups based upon customer needs.
The company recorded a special charge of $37,900,000 before taxes ($.24 per
share on a diluted basis) for costs associated with the realignment, including
real estate termination costs, severance and other expenses related to personnel
as well as costs of communicating the realignment to customers, suppliers, and
employees. During 1999, the company spent $2,442,000 principally for vacated
facilities. At December 31, 1999, $3,119,000 of the total amount recorded
remains unspent principally to cover the cost of vacated facilities. The costs
of these vacated facilities, leased through 2007, should not have a significant
impact upon cash flow in any particular year.
8. Earnings Per Share
The following table sets forth the calculation of basic and diluted earnings per
share ("EPS") for the years ended December 31 (in thousands):
1999 1998 1997
---- ---- ----
Net income for EPS $124,153(a) $145,828 $163,656(b)
======== ======== ========
Weighted average common shares
outstanding for basic EPS 95,123 95,397 98,006
Net effect of dilutive stock
options and restricted stock awards 922 1,716 1,763
-------- -------- --------
Weighted average common shares
outstanding for diluted EPS 96,045 97,113 99,769
======== ======== ========
Basic EPS $ 1.31(a) $ 1.53 $ 1.67(b)
======== ======== ========
Diluted EPS 1.29(a) 1.50 1.64(b)
======== ======== ========
(a) Net income includes a special charge totaling $24,560,000 ($16,480,000 after
taxes) related to the company's acquisition and integration of Richey and EDG.
Excluding the integration charge, net income and net income per share on a basic
and diluted basis were $140,633,000, $1.48, and $1.46, respectively.
(b) Net income includes special charges totaling $59,500,000 ($40,435,000 after
taxes) associated with the realignment of the North American Components
Operations and the acquisition and integration of the volume electronic
component distribution businesses of Premier Farnell plc. Excluding these
charges, net income and net income per share on a basic and diluted basis were
$204,091,000, $2.08, and $2.05, respectively.
ARROW ELECTRONICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
9. Employee Stock Plans
Restricted Stock Plan
- ---------------------
Under the terms of the Arrow Electronics, Inc. Restricted Stock Plan (the
"Plan"), a maximum of 3,960,000 shares of common stock may be awarded at the
discretion of the board of directors to key employees of the company.
Shares awarded under the Plan may not be sold, assigned, transferred, pledged,
hypothecated, or otherwise disposed of, except as provided in the Plan. Shares
awarded become free of vesting restrictions generally over a four-year period.
The company awarded 205,000 shares of common stock to 125 key employees in early
2000, 325,750 shares of common stock to 114 key employees during 1999, 215,400
shares of common stock to 140 key employees during 1998, and 292,304 shares of
common stock to 209 key employees during 1997.
Forfeitures of shares awarded under the Plan were 10,335, 7,359, and 31,250
during 1999, 1998, and 1997, respectively. The aggregate market value of
outstanding awards under the Plan at the respective dates of award is being
amortized over the vesting period, and the unamortized balance is included in
shareholders' equity as unamortized employee stock awards.
Stock Option Plans
- ------------------
Under the terms of various Arrow Electronics, Inc. Stock Option Plans (the
"Option Plans"), both nonqualified and incentive stock options for an aggregate
of 21,500,000 shares of common stock were authorized for grant to directors and
key employees at prices determined by the board of directors at its discretion
or, in the case of incentive stock options, prices equal to the fair market
value of the shares at the dates of grant. Options granted under the plans
after May 1997 are exercisable in equal installments over a four-year period.
Previously, options became exercisable over a two- or three-year period.
Options currently outstanding have terms of ten years.
Included in the 1999 granted shares are the converted shares relating to the
January 1999 acquisition of Richey. The options converted on January 7, 1999
totaled 233,381 with a weighted average exercise price of $21.17 per share.
In October 1997, all employees of the North American operations below the level
of vice president were granted a special award of stock options totaling
1,255,320 at the then market price of the company's stock as an incentive
related to the realignment of the North American Components Operations. In
December 1998, the board of directors approved the repricing of the remaining
unforfeited options, totaling 1,050,760, reducing the exercise price from $27.50
to $22.5625.
ARROW ELECTRONICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The following information relates to the Option Plans for the years ended
December 31:
Average Average Average
Exercise Exercise Exercise
1999 Price 1998 Price 1997 Price
--------- --------- ---------- ---------- -------- -------
Options outstanding at
beginning of year 7,562,149 $23.41 8,231,809 $24.00 7,107,042 $20.25
Granted 2,914,601 18.20 131,120 (a) 25.87 2,648,340 29.51
Exercised (93,956) 13.60 (375,501) 19.96 (1,316,962) 15.34
Forfeited (536,114) 24.51 (425,279)(a) 26.53 (206,611) 22.16
--------- --------- ----------
Options outstanding
at end of year 9,846,680 $21.90 7,562,149 $23.41 8,231,809 $24.00
========= ========= ==========
Prices per share of
options outstanding $1.81-34.00 $1.81-34.00 $1.81-32.25
Options available for future grant:
Beginning of year 7,255,214 6,962,805 432,700
End of year 5,533,128 7,255,214 6,962,805
(a) Excludes 1,050,760 options granted in October 1997 to all employees of the
North American operations below the level of vice president and repriced on
December 14, 1998 from $27.50 to $22.5625.
The following table summarizes information about stock options outstanding
at December 31, 1999:
Options Outstanding Options Exercisable
----------------------------------------- ----------------------
Weighted Weighted Weighted
Maximum Average Average Average
Exercise Number Remaining Exercise Number Exercise
Price Outstanding Contractual Life Price Exercisable Price
- -------- ----------- ---------------- --------- ----------- --------
$20.00 2,587,921 79 months $15.79 1,261,791 $15.99
25.00 4,416,426 89 months 21.27 2,519,969 21.51
30.00 1,731,851 83 months 26.20 1,583,512 26.12
35.00 1,110,482 95 months 31.94 553,303 31.93
--------- ------ --------- ------
All 9,846,680 86 months $21.90 5,918,575 $22.54
========= ====== ========= ======
The company applies Accounting Principles Board Opinion No. 25, "Accounting for
Stock Issued to Employees," and related interpretations in accounting for the
Option Plans.
Had stock-based compensation costs been determined as prescribed by Statement of
Financial Accounting Standards No. 123, "Accounting for Stock-Based
Compensation," net income would have been reduced by $4.1 million ($.03 per
share on a diluted basis) in 1999, $6.7 million ($.04 per share on a diluted
basis) in 1998 and $7.6 million ($.06 per share on a diluted basis) in 1997.
The estimated weighted average fair value, utilizing the Black-Scholes option-
pricing model, at the date of option grant during 1999, 1998, and 1997 was
$7.07, $8.35, and $9.41, per option, respectively. The weighted average fair
value was estimated using the following assumptions:
1999 1998 1997
---- ---- ----
Expected life (months) 48 48 47
Risk-free interest rate (percent) 5.8 5.4 5.8
Expected volatility (percent) 40 31 29
There is no expected dividend yield.
ARROW ELECTRONICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Stock Ownership Plan
- --------------------
The company maintains a noncontributory employee stock ownership plan which
enables most North American employees to acquire shares of the company's common
stock. Contributions, which are determined by the board of directors, are in
the form of common stock or cash which is used to purchase the company's common
stock for the benefit of participating employees. Contributions to the plan for
1999, 1998, and 1997 amounted to $6,810,000, $5,531,000, and $5,147,000,
respectively.
10. Retirement Plans
The company has a defined contribution plan for eligible employees which
qualifies under Section 401(k) of the Internal Revenue Code. The company's
contribution to the plan, which is based on a specified percentage of employee
contributions, amounted to $5,801,000, $4,387,000, and $4,988,000 in 1999,
1998, and 1997, respectively. Certain domestic and foreign subsidiaries
maintain separate defined contribution plans for their employees and made
contributions thereunder, which amounted to $1,773,000, $1,813,000, and
$1,363,000, in 1999, 1998, and 1997, respectively.
The company maintains an unfunded supplemental retirement plan for certain
executives. The company's board of directors determines those employees
eligible to participate in the plan and their maximum annual benefit upon
retirement. Expense relating to the plan was $2,150,000, $2,367,000, and
$1,770,000 for the years ended December 31, 1999, 1998, and 1997, respectively.
11. Lease Commitments
The company leases certain office, distribution, and other property under
noncancelable operating leases expiring at various dates through 2053. Rental
expense under noncancelable operating leases, net of sublease income of
$3,362,000, $2,469,000, and $2,529,000 in 1999, 1998, and 1997, respectively,
amounted to $40,382,000 in 1999, $29,231,000 in 1998, and $29,190,000 in 1997.
Aggregate minimum rental commitments under all noncancelable operating leases,
exclusive of real estate taxes, insurance, and leases related to facilities
closed in connection with the North American realignment and the integration of
the acquired businesses, are $38,852,000 in 2000, $31,124,000 in 2001,
$25,470,000 in 2002, $17,409,000 in 2003, $13,226,000 in 2004, and $46,450,000
thereafter.
12. Financial Instruments
The company enters into foreign exchange forward contracts (the "contracts") to
mitigate the impact of changes in foreign currency exchange rates, principally
French franc, German deutsche mark, Italian lira, and British pound sterling.
These contracts are executed to facilitate the netting of offsetting foreign
currency exposures resulting from inventory purchases and sales, and generally
have terms of no more than three months. Gains or losses on these contracts are
deferred and recognized when the underlying future purchase or sale is
recognized. The company does not enter into forward contracts for trading
purposes. The risk of loss on a contract is the risk of nonperformance by the
counterparties which the company minimizes by limiting its counterparties to
major financial institutions. The fair value of the contracts is estimated using
market quotes. The notional amount of the contracts at December 31, 1999 and
December 31, 1998, was $59,348,000 and $79,595,000, respectively. The carrying
amounts, which are nominal, approximated fair value at December 31, 1999 and
1998.
ARROW ELECTRONICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
13. Segment and Geographic Information
The company is engaged in the distribution of electronic components to original
equipment manufacturers and computer products to value-added resellers (VARs).
Operating income for the electronic components and computer products segments
excludes the effects of special charges relating to the integration of acquired
businesses and the realignment of the North American Components Operations.
Revenue, operating income, and assets by segment are as follows (in thousands):
Electronic Computer
Components Products Corporate Total
---------- -------- --------- -----
1999
- ----
Revenue from external
customers $7,276,858 $2,035,767 $ - $9,312,625
Operating income (loss) 390,237 34,468 (86,044)(a) 338,661(a)
Total assets 3,551,043 757,995 174,217 4,483,255
1998
- ----
Revenue from external
customers $6,343,890 $2,000,769 $ - $8,344,659
Operating income (loss) 344,349 55,889 (47,734) 352,504
Total assets 3,014,100 640,786 184,985 3,839,871
1997
- ----
Revenue from external
customers $6,465,521 $1,298,424 $ - $7,763,945
Operating income (loss) 440,917 31,672 (97,868)(b) 374,721(b)
Total assets 2,777,625 545,872 214,376 3,537,873
(a) Includes a special charge totaling $24,560,000 associated with the
acquisition and integration of Richey and EDG.
(b) Includes special charges totaling $59,500,000 associated with the
realignment of the North American Components Operations and the acquisition and
integration of the volume electronic component distribution businesses of
Premier Farnell plc.
As a result of the company's philosophy of maximizing operating efficiencies
through the centralization of certain functions, selected fixed assets and
related depreciation, borrowings, and goodwill amortization are not directly
attributable to the individual operating segments. In its evaluation of its
operating groups performance, the company excludes the impact of unusual items
such as realignment and integration charges.
ARROW ELECTRONICS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Revenues, by geographic area, are as follows (in thousands):
1999 1998 1997
---- ---- ----
Americas $6,160,726 $5,351,061 $4,964,660
Europe 2,393,705 2,396,452 2,279,951
Asia/Pacific 758,194 597,146 519,334
---------- ---------- ----------
$9,312,625 $8,344,659 $7,763,945
========== ========== ==========
Total assets, by geographic area, are as follows (in thousands):
1999 1998 1997
---- ---- ----
Americas $2,642,601 $2,066,785 $1,952,348
Europe 1,460,439 1,473,857 1,386,976
Asia/Pacific 380,215 299,229 198,549
---------- ---------- ----------
$4,483,255 $3,839,871 $3,537,873
========== ========== ==========
14. Quarterly Financial Data (Unaudited)
A summary of the company's quarterly results of operations follows (in thousands
except per share data):
First Second Third Fourth
Quarter Quarter Quarter Quarter
------- ------- ------- -------
1999
- ----
Sales $2,201,632 $2,250,028 $2,375,797 $2,485,168
Gross profit 308,282 314,139 323,227 355,558
Net income 28,341 15,022(a) 36,753 44,037
Per share:
Basic .30 .16(a) .39 .46
Diluted .30 .16(a) .38 .46
1998
- ----
Sales $2,025,760 $2,023,966 $2,134,769 $2,160,164
Gross profit 294,879 291,331 285,282 289,754
Net income 41,945 35,990 35,563 32,330
Per share:
Basic .44 .37 .37 .34
Diluted .43 .37 .37 .34
(a) Net income includes a special charge totaling $24,560,000 ($16,480,000 after
taxes) associated with the acquisition and integration of Richey and EDG.
Excluding this charge, net income was $31,502,000 or $.33 per share on a basic
and diluted basis.
Item 9. Changes in and disagreements with Accountants on Accounting and
---------------------------------------------------------------
Financial Disclosure.
--------------------
None.
Part III
Item 10. Directors and Executive Officers of the Registrant.
--------------------------------------------------
See "Executive Officers" in Item 1 above. In addition, the information set
forth under the heading "Election of Directors" in the company's Proxy Statement
filed in connection with the Annual Meeting of Shareholders scheduled to be held
May 23, 2000 hereby is incorporated herein by reference.
Item 11. Executive Compensation.
----------------------
The information set forth under the heading "Executive Compensation and Other
Matters" in the company's Proxy Statement filed in connection with the Annual
Meeting of Shareholders scheduled to be held May 23, 2000 hereby is incorporated
herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management.
--------------------------------------------------------------
The information is included in the company's Proxy Statement filed in connection
with the Annual Meeting of Shareholders scheduled to be held May 23, 2000 hereby
is incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions.
----------------------------------------------
The information set forth under the heading "Executive Compensation and Other
Matters" in the company's Proxy Statement filed in connection with the Annual
Meeting of Shareholders scheduled to be held May 23, 2000 hereby is incorporated
herein by reference.
Part IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K.
---------------------------------------------------------------
(a) The following documents are filed as part of this report:
Page
----
1. Financial Statements.
Report of Ernst & Young LLP, Independent Auditors 14
Consolidated Statement of Income for the years
ended December 31, 1999, 1998, and 1997 16
Consolidated Balance Sheet at December 31, 1999
and 1998 17
Consolidated Statement of Cash Flows for the
years ended December 31, 1999, 1998, and 1997 18
Consolidated Statement of Shareholders' Equity
for the years ended December 31, 1999, 1998,
and 1997 19
Notes to Consolidated Financial Statements for
the years ended December 31, 1999, 1998, and 1997 21
2. Financial Statement Schedule.
Schedule II - Valuation and Qualifying Accounts 42
All other schedules have been omitted since the required information is not
present or is not present in amounts sufficient to require submission of the
schedule, or because the information required is included in the consolidated
financial statements, including the notes thereto.
3. Exhibits.
See index of Exhibits included on pages 35 - 40.
(b) Reports on Form 8-K.
None.
(a)3. Exhibits.
--------
(2)(a)(i) Share Purchase Agreement, dated as of October 10,
1991, among EDI Electronics Distribution International B.V., Aquarius
Investments Ltd., Andromeda Investments Ltd., and the other persons named
therein (incorporated by reference to Exhibit 2.2 to the company's Registration
Statement on Form S-3, Registration No. 33-42176).
(ii) Standstill Agreement, dated as of October 10, 1991,
among Arrow Electronics, Inc., Aquarius Investments Ltd., Andromeda Investments
Ltd., and the other persons named therein (incorporated by reference to Exhibit
4.1 to the company's Registration Statement on Form S-3, Registration No. 33-
42176).
(iii) Shareholder's Agreement, dated as of October 10,
1991, among EDI Electronics Distribution International B.V., Giorgio Ghezzi,
Germano Fanelli, and Renzo Ghezzi (incorporated by reference to Exhibit
2(f)(iii) to the company's Annual Report on Form 10-K for the year ended
December 31, 1993, Commission File No. 1-4482).
(b) Agreement and Plan of Merger, dated as of June 24,
1994, by and among Arrow Electronics, Inc., AFG Acquisition Company and
Gates/FA Distributing, Inc. (incorporated by reference to Exhibit 2 to the
company's Registration Statement on Form S-4, Commission File No. 35-54413).
(c) Agreement and Plan of Merger, dated as of
September 21, 1994, by and among Arrow Electronics, Inc., MTA Acquisition
Company and Anthem Electronics, Inc. (incorporated by reference to Exhibit 2 to
the company's Registration Statement on Form S-4, Commission File No. 33-55645).
(d) Master Agreement, dated as of December 20, 1996,
among Premier Farnell plc and Arrow Electronics, Inc. relating to the sale and
purchase of the Farnell Volume Business (incorporated by reference to Exhibit
2(d) to the company's Annual Report on Form 10-K for the year ended December 31,
1996, Commission File No. 1-4482).
(e)(i) Agreement and Plan of Merger, dated as of September
30, 1998, by and among Arrow Electronics, Inc., Lear Acquisition Corp. and
Richey Electronics, Inc. (incorporated by reference to Exhibit 2(e) to the
company's Annual Report on Form 10-K for the year ended December 31, 1998,
Commission File No. 1-4482).
(ii) Amendment to Agreement and Plan of Merger, dated as
of October 21, 1998 by and among Arrow Electronics, Inc., Lear Acquisition Corp.
and Richey Electronics, Inc. in 2(e)(i) above (incorporated by reference to
Exhibit 2(e)(i) to the company's Annual Report on Form 10-K for the year ended
December 31, 1998, Commission No. 1-4482).
(f) Agreement of Purchase and Sale, dated as of October
1, 1998, by and between Bell Industries, Inc. and Arrow Electronics, Inc.
(incorporated by reference to Exhibit 2(f) to the company's Annual Report on
Form 10-K for the year ended December 31, 1998, Commission No. 1-4482).
(3)(a)(i) 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 Commission File
No. 1-4482).
(ii) Certificate of Amendment of the Certificate of
Incorporation of Arrow Electronics, Inc., dated as of August 30, 1996
(incorporated by reference to Exhibit 3 to the company's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1996, Commission File No. 1-4482).
(b) By-Laws of the company, as amended (incorporated by
reference to Exhibit 3(b) to the company's Annual Report on Form 10-K for the
year ended December 31, 1986, Commission File No. 1-4482).
(4)(a)(i) Rights Agreement dated as of March 2, 1988 between
Arrow Electronics, Inc. and Manufacturers Hanover Trust Company, as Rights
Agent, which includes as Exhibit A a Certificate of Amendment of the Restated
Certificate of Incorporation for Arrow Electronics, Inc. for the Participating
Preferred Stock, as Exhibit B a letter to shareholders describing the Rights and
a summary of the provisions of the Rights Agreement and as Exhibit C the forms
of Rights Certificate and Election to Exercise (incorporated by reference to
Exhibit 1 to the company's Current Report on Form 8-K dated March 3, 1988,
Commission File No. 1-4482).
(ii) First Amendment, dated June 30, 1989, to the Rights
Agreement in (4)(a)(i) above (incorporated by reference to Exhibit 4(b) to the
Company's Current Report on Form 8-K dated June 30, 1989, Commission File No. 1-
4482).
(iii) Second Amendment, dated June 8, 1991, to the Rights
Agreement in (4)(a)(i) above (incorporated by reference to Exhibit 4(i)(iii) to
the company's Annual Report on Form 10-K for the year ended December 31, 1991,
Commission File No. 1-4482).
(iv) Third Amendment, dated July 19, 1991, to the Rights
Agreement in (4)(a)(i) above (incorporated by reference to Exhibit 4(i)(iv) to
the company's Annual Report on Form 10-K for the year ended December 31, 1991,
Commission File No. 1-4482).
(v) Fourth Amendment, dated August 26, 1991, to the
Rights Agreement in (4)(a)(i) above (incorporated by reference to Exhibit
4(i)(v) to the company's Annual Report on Form 10-K for the year ended December
31, 1991, Commission File No. 1-4482).
(vi) Fifth Amendment, dated February 25, 1998, to the
Rights Agreement in (4)(a)(i)above (incorporated by reference to Exhibit 7 to
the company's current report on Form 8 A/A dated March 2, 1998, Commission File
No. 1-4482).
(b)(i) Indenture, dated as of January 15, 1997, between the
company and the Bank of Montreal Trust Company, as Trustee (incorporated by
reference to Exhibit 4(b)(i) to the company's Annual Report on Form 10-K for the
year ended December 31, 1996, Commission File No. 1-4482).
(ii) Officers' Certificate, as defined by the Indenture in
4(b)(i) above, dated as of January 22, 1997, with respect to the company's
$200,000,000 7% Senior Notes due 2007 and $200,000,000 7 1/2% Senior Debentures
due 2027 (incorporated by reference to Exhibit 4 (b)(ii) to the company's Annual
Report on Form 10-K for the year ended December 31, 1996, Commission File No. 1-
4482).
(iii) Officers' Certificate, as defined by the indenture in
4(b)(i) above, dated as of January 15, 1997, with respect to the $200,000,000 6
7/8% Senior Debentures due 2018, dated as of May 29, 1998 (incoporated by
reference to Exhibit 4(b)(iii) to the company's Annual Report on Form 10-K for
the year ended December 31, 1998, Commission File No. 1-4482).
(iv) Officers' Certificate, as defined by the indenture in
4(b)(i) above, dated as of January 15, 1997, with respect to the $250,000,000
6.45% Senior Notes due 2003, dated October 21, 1998 (incorporated by reference
to Exhibit 4(b)(iv) to the company's Annual Report on Form 10-K for the year
ended December 31, 1998, Commission No. 1-4482).
(10)(a)(i) Arrow Electronics Savings Plan, as amended and
restated through December 28, 1994 (incorporated by reference to Exhibit
10(a)(iii) to the company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996, Commission File No. 1-4482).
(ii) Amendment No. 1, dated March 29, 1996, to the Arrow
Electronics Savings Plan in (10)(b)(i) above (incorporated by reference to
Exhibit 10(a)(iv) to the company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996, Commission File No. 1-4482).
(iii) Second Amendment No. 1 to the Arrow Electronics
Savings Plan in (10)(a)(i) above (incorporated by reference to Exhibit
10(a)(iii) to the company's Annual Report on Form 10-K for the year ended
December 31, 1998, Commission No. 1-4482).
(iv) Amendment No. 3 to the Arrow Electronics Savings Plan
in (10)(a)(i) above (incorporated by reference to Exhibit 10(a)(iv) to the
company's Annual Report on Form 10-K for the year ended December 31, 1998,
Commission No. 1-4482).
(v) Amendment No. 4 dated May 26, 1998 to the Arrow
Electronics Savings Plan in (10)(a)(i) above (incorporated by reference to
Exhibit 10(a)(v) to the company's Annual Report on Form 10-K for the year ended
December 31, 1998, Commission No. 1-4482).
(b)(i) Arrow Electronics Stock Ownership Plan, as amended
and restated through December 28, 1994 (incorporated by reference to Exhibit
10(a)(i) to the company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996, Commission File No. 1-4482).
(ii) Amendment No. 1, dated March 29, 1996, to the Arrow
Electronics Stock Ownership Plan in (10)(b)(i) above (incorporated by reference
to Exhibit 10(a)(ii) to the company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996, Commission File No. 1-4482).
(iii) Second Amendment No. 1 to the Arrow Electronics Stock
Ownership Plan in 10(b)(i) above (incorporated by reference to Exhibit
10(a)(viii) to the company's Annual Report on Form 10-K for the year ended
December 31, 1998, Commission No. 1-4482).
(iv) Amendment No. 3 to the Arrow Electronics Stock
Ownership Plan in 10(b)(i) above (incorporated by reference to Exhibit 10(a)(ix)
to the company's Annual Report on Form 10-K for the year ended December 31,
1998, Commission No. 1-4482).
(v) Amendment No. 4 dated May 26, 1998, to the Arrow
Electronics Stock Ownership Plan in 10(b)(i) above (incorporated by reference to
Exhibit 10(a)(x) to the company's Annual Report on Form 10-K for the year ended
December 31, 1998, Commission No. 1-4482).
(c)(i) Employment Agreement, dated as of February 22, 1995,
between the company and Stephen P. Kaufman (incorporated by reference to Exhibit
10(c)(ii) to the company's Annual Report on Form 10-K for the year ended
December 31, 1995, Commission File No. 1-4482).
(ii) Employment Agreement, dated as of January 1, 1998
between the company and Robert E. Klatell (incorporated by reference to Exhibit
10(c)(iii) to the company's Annual Report on Form 10-K for the year ended
December 31, 1997, Commission File No. 1-4482).
(iii) Form of agreement between the company and the
employees parties to the Employment Agreements listed in 10(c)(i)-(ii) above
providing extended separation benefits under certain circumstances (incorporated
by reference to Exhibit 10(c)(iv) to the company's Annual Report on Form 10-K
for the year ended December 31, 1988, Commission File No. 1-4482).
(iv) Employment Agreement, dated as of January 1, 2000,
between the company and Arthur H. Baer.
(v) Employment Agreement, dated as of March 1, 1999,
between the company and Sam R. Leno (incorporated by reference to Exhibit
10(b)(iv) to the company's Annual Report on Form 10-K for the year ended
December 31, 1998, Commission No. 1-4482).
(vi) Employment Agreement, dated as of January 1, 1998,
between the company and Betty Jane Scheihing (incorporated by reference to
Exhibit 10(c)(v) to the company's Annual Report on Form 10-K for the year ended
December 31, 1997, Commission File No. 1-4482).
(vii) Employment Agreement, dated as of September 1, 1997,
between the company and Jan M. Salsgiver (incorporated by reference to Exhibit
10(c)(vi) to the company's Annual Report on Form 10-K for the year ended
December 31, 1997, Commission File No. 1-4482).
(viii) Employment Agreement, dated as of September 1, 1997,
between the company and Francis M. Scricco (incorporated by reference to Exhibit
10(c)(vi) to the company's Annual Report on Form 10-K for the year ended
December 31, 1997, Commission File No. 1-4482).
(ix) Employment Agreement, dated as of April 15, 1996,
between the company and Gerald Luterman (incorporated by reference to Exhibit
10(b)(vii) to the company's Annual Report on Form 10-K for the year ended
December 31, 1996, Commission File No. 1-4482).
(x) Employment Agreement, dated as of September 21,
1994, between the company and Robert S. Throop (incorporated by reference to
Exhibit 10(c)(x) to the company's Annual Report on Form 10-K for the year ended
December 31, 1994, Commission File No. 1-4482).
(xi) Employment Agreement, dated as of September 1, 1994
between the company and Steven W. Menefee (incorporated by reference to Exhibit
10(c)(v) to the company's Annual Report on Form 10-K for the year ended December
31, 1994, Commission File No. 1-4482).
(xii) Form of agreement between the company and all
corporate Vice Presidents, including the employees parties to the Employment
Agreements listed in 10(c)(v)-(xi) above, providing extended separation benefits
under certain circumstances (incorporated by reference to Exhibit 10(c)(ix) to
the company's Annual Report on Form 10-K for the year ended December 31, 1988,
Commission File No. 1-4482).
(xiii) Form of agreement between the company and non-
corporate officers providing extended separation benefits under certain
circumstances (incorporated by reference to Exhibit 10(c)(x) to the company's
Annual Report on Form 10-K for the year ended December 31, 1988, Commission File
No. 1-4482).
(xiv) Unfunded Pension Plan for Selected Executives of
Arrow Electronics, Inc., as amended (incorporated by reference to Exhibit
10(c)(xiii) to the company's Annual Report on Form 10-K for the year ended
December 31, 1994, Commission File No. 1-4482).
(xv) Amendment, dated May 1998, to the Unfunded Pension
Plan for Selected Executives of Arrow Electronics, Inc. (incorporated by
reference to Exhibit 10(b)(xiv) to the company's Annual Report on Form 10-K for
the year ended December 31, 1998, Commission No. 1-4482).
(xvi) Grantor Trust Agreement, dated June 25, 1998, by and
between Arrow Electronics, Inc. and Wachovia Bank, N.A. (incorporated by
reference to Exhibit 10(b)(xv) to the company's Annual Report on Form 10-K for
the year ended December 31, 1998, Commission No. 1-4482).
(xvii) English translation of the Service Agreement, dated
January 19, 1993, between Spoerle Electronic and Carlo Giersch (incorporated by
reference to Exhibit 10(f)(v) to the company's Annual Report on Form 10-K for
the year ended December 31, 1992, Commission File No. 1-4482).
(d)(i) Senior Note Purchase Agreement, dated as of December
29, 1992, with respect to the company's 8.29 percent Senior Secured Notes due
2000 (incorporated by reference to Exhibit 10(d) to the company's Annual Report
on Form 10-K for the year ended December 31, 1992, Commission File No. 1-4482).
(ii) First Amendment, dated as of December 22, 1993, to
the Senior Note Purchase Agreement in 10(d)(i) above (incorporated by reference
to Exhibit 10(d)(ii) to the company's Annual Report on form 10-K for the year
ended December 31, 1993, Commission File No. 1-4482).
(iii) Second Amendment, dated as of April 24, 1995, to the
Senior Note Purchase Agreement in 10(d)(i) above (incorporated by reference to
Exhibit 10(c)(iii) to the company's Annual Report on form 10-K for the year
ended December 31, 1996, Commission File No. 1-4482).
(iv) Third Amendment, dated as of December 23, 1996, to
the Senior Note Purchase Agreement in 10(d)(i) above (incorporated by reference
to Exhibit 10(c)(iv) to the company's Annual Report on form 10-K for the year
ended December 31, 1996, Commission File No. 1-4482).
(v) Fourth Amendment, dated as of October 28, 1998, to
the Senior Note Purchase Agreement in 10(d)(i) above (incorporated by reference
to Exhibit 10(c)(v) to the company's Annual Report on Form 10-K for the year
ended December 31, 1998, Commission File No. 1-4482).
(vi) Fifth Amendment, dated as of March 25, 1999, to the
Senior Note Purchase Agreement in 10(d)(i) above.
(e)(i) Amended and Restated Credit Agreement, dated as of
August 16, 1995 among Arrow Electronics, Inc., the several Banks from time to
time parties hereto, Bankers Trust Company and Chemical Bank, as agents
(incorporated by reference to Exhibit 10(d) to the company's Annual Report on
form 10-K for the year ended December 31, 1995, Commission File No. 1-4482).
(ii) First Amendment, dated as of September 30, 1996, to
the Arrow Electronics, Inc. Second Amended and Restated Credit Agreement, dated
August 16, 1995 in (10)(e)(i) above (incorporated by reference to Exhibit 10 to
the company's Quarterly Report on Form 10-Q for the quarter ended September 30,
1996, Commission File No. 1-4482).
(f) 364-Day Credit Agreement, dated as of March 30,
1999, among Arrow Electronics, Inc., the Subsidiary Borrowers, the several banks
and other financial institutions from time to time parties hereto, Chase
Securities Inc., as arranger, and The Chase Manhattan Bank, as administrative
agent.
(g) Commercial Paper Private Placement Agreement, dated
as of November 9, 1999, among Arrow Electronics, Inc., as issuer, and Chase
Securities Inc., Bank of America Securities LLC, Goldman, Sachs & Co., and
Morgan Stanley & Co. Incorporated as placement agents.
(h) $120,000,000 Arrow Electronics, Inc. Floating Rate
Notes due November 24, 2000, dated as of November 19, 1999, among Arrow
Electronics, Inc. and Chase Securities Inc. and Bank of America Securities LLC
as underwriters (incorporated by reference to Exhibit 4.1 to the company's
Registration Statement on Form S-3, Registration No. 333-91387).
(i)(i) Arrow Electronics, Inc. Stock Option Plan, as
amended and restated, effective as of May 15, 1997 (incorporated by reference to
Exhibit 99(a) to the company's Registration Statement on Form S-8, Registration
No. 333-45631).
(ii) Form of Stock Option Agreement under 10(i)(i) above
(incorporated by reference to Exhibit 10(e)(ii) to the company's Annual Report
on form 10-K for the year ended December 31, 1997, Commission File No. 1-4482).
(iii) Form of Nonqualified Stock Option Agreement under
10(i)(i) above (incorporated by reference to Exhibit 10(k)(iv) to the company's
Registration Statement on Form S-4, Registration No. 33-17942).
(j)(i) Restricted Stock Plan of Arrow Electronics, Inc., as
amended and restated effective May 15, 1997 (incorporated by reference to
Exhibit 99(b) to the company's Registration Statement on Form S-8,
Registration No. 333-45631).
(ii) Form of Restricted Stock Award Agreement under
10(j)(i) above (incorporated by reference to Exhibit 10(f)(ii) to the company's
Annual Report on Form 10-K for the year ended December 31, 1997, Commission File
No. 1-4482).
(k)(i) Non-Employee Directors Stock Option Plan as of May
15, 1997 (incorporated by reference to Exhibit 99(c) to the company's
Registration Statement on Form S-8, Registration No.333-45631).
(ii) Form of Nonqualified Stock Option Agreement under
10(k)(i) above (incorporated by reference to Exhibit 10(g)(ii) to the company's
Annual Report on Form 10-K for the year ended December 31, 1997, Commission File
No. 1-4482).
(l) Non-Employee Directors Deferral Plan as of May 15,
1997 (incorporated by reference to Exhibit 99(d) to the Company's Registration
Statement on Form S-8, Registration No. 333-45631).
(m) Form of Indemnification Agreement between the
company and each director (incorporated by reference to Exhibit 10(m) to the
company's Annual Report on Form 10-K for the year ended December 31, 1986,
Commission File No. 1-4482).
(21) Subsidiary Listing.
(23) Consent of Ernst & Young LLP.
(27) Financial Data Schedule.
(28)(i) Record of Decision, issued by the EPA on September 28,
1990, with respect to environmental clean-up in Plant City, Florida
(incorporated by reference to Exhibit 28 to the company's Annual Report on Form
10-K for the year ended December 31, 1990, Commission File No. 1-4482).
(ii) Consent Decree lodged with the U.S. District Court for
the Middle District of Florida, Tampa Division, on December 18, 1991, with
respect to environmental clean-up in Plant City, Florida (incorporated by
reference to Exhibit 28(ii) to the company's Annual Report on Form 10-K for the
year ended December 31, 1991, Commission File No. 1-4482).
ARROW ELECTRONICS, INC.
SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
For the three years ended December 31, 1999
Additions
-----------------------
Balance at Balance
beginning Charged Charged to at end
of year to income other (1) Write-offs of year
----------- ----------- ---------- ----------- -----------
Allowance for
doubtful accounts
1999 $48,423,000 $26,151,000 $1,567,000 $43,803,000 $32,338,000
=========== =========== ========== =========== ===========
1998 $46,055,000 $31,643,000 $ 542,000 $29,817,000 $48,423,000
=========== =========== ========== =========== ===========
1997 $39,753,000 $20,360,000 $1,896,000 $15,954,000 $46,055,000
=========== =========== ========== =========== ===========
(1) Represents the allowance for doubtful accounts of the businesses acquired by
the company during each year.
SIGNATURES
----------
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the Registrant has duly caused this annual report to be signed on
its behalf by the undersigned, thereunto duly authorized.
ARROW ELECTRONICS, INC.
By: /s/ Robert E. Klatell
---------------------
Robert E. Klatell.
Executive Vice President
March 30, 2000
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated:
By: /s/ Stephen P. Kaufman March 30,2000
----------------------
Stephen P. Kaufman, Chairman, Principal
Executive Officer, and Director
By: /s/ Francis M. Scricco March 30, 2000
----------------------
Francis M. Scricco, President and Chief
Operating Officer, and Director
By: /s/ Robert E. Klatell March 30, 2000
---------------------
Robert E. Klatell, Executive Vice President,
Secretary, and Director
By: /s/ Sam R. Leno March 30, 2000
---------------
Sam R. Leno, Senior Vice President and Chief
Financial Officer
By: /s/ Paul J. Reilly March 30, 2000
------------------
Paul J. Reilly, Vice President-Finance
and Principal Accounting Officer
By: /s/ Daniel W. Duval March 30, 2000
-------------------
Daniel W. Duval, Director
By: /s/ Carlo Giersch March 30, 2000
-----------------
Carlo Giersch, Director
By: /s/ John N. Hanson March 30, 2000
------------------
John N. Hanson, Director
By: /s/ Roger King March 30, 2000
--------------
Roger King, Director
By: /s/ Karen Gordon Mills March 30, 2000
----------------------
Karen Gordon Mills, Director
By: /s/ Barry W. Perry March 30, 2000
------------------
Barry W. Perry, Director
By: /s/ Richard S. Rosenbloom March 30, 2000
-------------------------
Richard S. Rosenbloom, Director
By: /s/ Robert S. Throop March 30, 2000
--------------------
Robert S. Throop, Director
By: /s/ John C. Waddell March 30, 2000
-------------------
John C. Waddell, Director
EMPLOYMENT AGREEMENT made as of the 1st day of January, 2000 by and between
ARROW ELECTRONICS, INC., a New York corporation with its principal office at 25
Hub Drive, Melville, New York 11747 (the "Company"), and ARTHUR H. BAER,
residing at 61 Bushnell Road, Hillsdale, New York 12529 (the "Executive").
WHEREAS, the Company wishes to employ the Executive as President of the
Company's European operations, with the responsibilities and duties of a
principal executive officer of the Company; and
WHEREAS, the Executive wishes to accept such employment and to render
services to the Company on the terms set forth in, and in accordance with the
provisions of, this Employment Agreement (the "Agreement");
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties agree as follows:
1. Employment and Duties.
a) Employment. The Company hereby employs the Executive for the
Employment Period defined in Paragraph 3, to perform such duties for the
Company, its subsidiaries and affiliates and to hold such offices as may be
specified from time to time by the Company's Board of Directors, subject to the
following provisions of this Agreement. The Executive hereby accepts such
employment.
b) Duties and Responsibilities. It is contemplated that the Executive
will be President of the Company's European operations but the Board of
Directors shall have the right to adjust the duties, responsibilities and title
of the Executive as the Board of Directors may from time to time deem to be in
the interests of the Company (provided, however, that during the employment
period, without the consent of the Executive, he shall not be assigned any
titles, duties or responsibilities which, in the aggregate, represent a material
diminution in, or are materially inconsistent with, his title, duties, and
responsibilities as President-Europe). If the Board of Directors does not
either continue the Executive in the office of President-Europe or elect him to
some other principal executive office satisfactory to the Executive, the
Executive shall have the right to decline to give further service to the Company
and shall have the rights and obligations which would accrue to him under
Paragraph 6 if he were discharged without cause. If the Executive decides to
exercise such right to decline to give further service, he shall within forty-
five days after such action or omission by the Board of Directors give written
notice to the Company stating his objection and the action he thinks necessary
to correct it, and he shall permit the Company to have a forty-five day period
in which to correct its action or omission. If the Company makes a correction
satisfactory to the Executive, the Executive shall be obligated to continue to
serve the Company. If the Company does not make such a correction, the
Executive's rights and obligations under Paragraph 6 shall accrue at the
expiration of such forty-five day period.
c) Time Devoted to Duties. The Executive shall devote substantially
all of his normal business time and efforts to the business of the Company, its
subsidiaries and its affiliates, the amount of such time to be sufficient, in
the reasonable judgment of the Board of Directors, to permit him diligently and
faithfully to serve and endeavor to further their interests to the best of his
ability.
2. Compensation.
a) Monetary Remuneration and Benefits. During the Employment Period,
the Company shall pay to the Executive for all services rendered by him in any
capacity:
i. a minimum base salary at the rate of $450,000 per year
(payable in accordance with the Company's then prevailing practices, but in no
event less frequently than in equal monthly installments), subject to increase
from time to time in the sole discretion of the Board of Directors of the
Company; provided that, should the Company institute a company-wide pay
cut/furlough program, such salary may be decreased by up to 15%, but only for as
long as said company-wide program is in effect;
ii. such additional compensation by way of salary or bonus or
fringe benefits as the Board of Directors of the Company in its sole discretion
shall authorize or agree to pay, payable on such terms and conditions as it
shall determine; and
iii. such employee benefits that are made available by the Company
to its other principal executives.
b) Annual Incentive Payment. The Executive shall participate in the
Company's Management Incentive Plan (or such alternative, successor, or
replacement plan or program in which the Company's principal operating
executives, other than the Chief Executive Officer, generally participate) and
shall have a targeted incentive thereunder of not less than $225,000 per annum;
provided, however, that the Executive's actual incentive payment in any year
shall be measured by the Company's performance against goals established for
that year and that such performance may produce an incentive payment ranging
from none to twice the targeted amount. The Executive's incentive payment for
any year will be appropriately pro-rated to reflect a partial year of
employment. The foregoing notwithstanding, the Executive's incentive for the
year ending December 31, 2000 shall be not less than $225,000.
c) Automobile. During the Employment Period, the Company will provide
the Executive with an appropriate leased automobile.
d) Expenses. During the Employment Period, the Company agrees to
reimburse the Executive, upon the submission of appropriate vouchers, for out-
of-pocket expenses (including, without limitation, expenses for travel, lodging
and entertainment) incurred by the Executive in the course of his duties
hereunder.
e) Office and Staff. The Company will provide the Executive with an
office, secretary and such other facilities as may be reasonably required for
the proper discharge of his duties hereunder.
f) Indemnification. The Company agrees to indemnify the Executive for
any and all liabilities to which he may be subject as a result of his employment
hereunder (and as a result of his service as an officer or director of the
Company, or as an officer or director of any of its subsidiaries or affiliates),
as well as the costs of any legal action brought or threatened against him as a
result of such employment, to the fullest extent permitted by law.
g) Participation in Plans. Notwithstanding any other provision of
this Agreement, the Executive shall have the right to participate in any and all
of the plans or programs made available by the Company (or its subsidiaries,
divisions or affiliates) to, or for the benefit of, executives (including the
annual stock option and restricted stock grant programs) or employees in
general, on a basis consistent with other senior executives. It is agreed,
however, that the Executive shall not participate in the Company's Unfunded
Pension Plan for Selected Executives (the "SERP").
3. The Employment Period.
The "Employment Period", as used in the Agreement, shall mean the
period beginning as of the date hereof and terminating on the last day of the
calendar month in which the first of the following occurs:
a) the death of the Executive;
b) the disability of the Executive as determined in accordance with
Paragraph 4 hereof and subject to the provisions thereof;
c) the termination of the Executive's employment by the Company for
cause in accordance with Paragraph 5 hereof; or
d) December 31, 2002; provided, however, that the Company and the
Executive will, at least twelve months prior to December 31, 2002, discuss their
mutual intention to continue the Employment Period or to permit this Agreement
to expire on December 31, 2002.
4. Disability.
For purposes of this Agreement, the Executive will be deemed "disabled"
upon the earlier to occur of (i) his becoming disabled as defined under the
terms of the disability benefit program applicable to the Executive, if any, and
(ii) his absence from his duties hereunder on a full-time basis for one hundred
eighty (180) consecutive days as a result of his incapacity due to accident or
physical or mental illness. If the Executive becomes disabled (as defined in
the preceding sentence), the Employment Period shall terminate on the last day
of the month in which such disability is determined. Until such termination of
the Employment Period, the Company shall continue to pay to the Executive his
base salary, any additional compensation authorized by the Company's Board of
Directors, and any other remuneration and benefits provided in accordance with
Paragraph 2, all without delay, diminution or proration of any kind whatsoever
(except that his remuneration hereunder shall be reduced by the amount of any
payments he may otherwise receive as a result of his disability pursuant
to a disability program provided by or through the Company), and his medical
benefits and life insurance shall remain in full force. After termination of
the Employment Period as a result of the disability of the Executive, the
medical benefits covering the Executive and his family shall remain in place
(subject to the eligibility requirements and other conditions continued in the
underlying plan, as described in the Company's employee benefits manual, and
subject to the requirement that the Executive continue to pay the "employee
portion" of the cost thereof), and the Executive's life insurance policy under
the Management Insurance Program shall be transferred to him, as provided in the
related agreement, subject to the obligation of the Executive to pay the
premiums therefor.
In the event that, notwithstanding such a determination of disability,
the Executive is determined not to be totally and permanently disabled prior to
the then scheduled expiration of the Employment Period, the Executive shall be
entitled to resume employment with the Company under the terms of this Agreement
for the then remaining balance of the Employment Period.
5. Termination for Cause.
In the event of any malfeasance, willful misconduct, active fraud or
gross negligence by the Executive in connection with his employment hereunder,
or a breach by the Executive of any of the Company's policies, the Company shall
have the right to terminate the Employment Period by giving the Executive notice
in writing of the reason for such proposed termination. If the Executive shall
not have corrected such conduct to the satisfaction of the Company within thirty
days after such notice, the Employment Period shall terminate and the Company
shall have no further obligation to the Executive hereunder but the restriction
on the Executive's activities contained in Paragraph 7 and the obligations of
the Executive contained in Paragraph 8(b) and 8(c) shall continue in effect as
provided therein.
6. Termination Without Cause.
In the event that the Company discharges the Executive without cause,
the Executive shall be entitled to the salary provided in Paragraph 2(a), two
thirds of the targeted incentive provided in Paragraph 2(b), the vesting of any
restricted stock awards and the immediate exercisability of any stock options,
as well as his rights under Paragraph 4, which would have vested or become
exercisable during the full Employment Period (which, in that event, shall
continue until December 31, 2002 unless sooner terminated by the Executive's
disability or death). Any amounts payable to the Executive under this Paragraph
6 shall be reduced by the amount of the Executive's earnings from other
employment (which the Executive shall have an affirmative duty to seek;
provided, however, that the Executive shall not be obligated to accept a new
position which is not reasonably comparable to his employment with the Company).
7. Non-Competition; Trade Secrets.
During the Employment Period and for a period of two years after the
termination of the Employment Period, the Executive will not, directly or
indirectly:
a) Disclosure of Information. Use, attempt to use, disclose or
otherwise make known to any person or entity (other than to the Board of
Directors of the Company or otherwise in the course of the business of the
Company, its subsidiaries or affiliates and except as may be required by
applicable law):
i. any knowledge or information, including, without limitation,
lists of customers or suppliers, trade secrets, know-how, inventions,
discoveries, processes and formulae, as well as all data and records pertaining
thereto, which he may acquire in the course of his employment, in any manner
which may be detrimental to or cause injury or loss to the Company, its
subsidiaries or affiliates; or
ii. any knowledge or information of a confidential nature
(including all unpublished matters) relating to, without limitation, the
business, properties, accounting, books and records, trade secrets or memoranda
of the Company, its subsidiaries or affiliates, which he now knows or may come
to know in any manner which may be detrimental to or cause injury or loss to the
Company its subsidiaries or affiliates.
b) Non-Competition. Engage or become interested in the United States,
Europe, Canada or Mexico (whether as an owner, shareholder, partner, lender or
other investor, director, officer, employee, consultant or otherwise) in the
business of distributing electronic parts, components, supplies or systems, or
any other business that is competitive with the principal business or businesses
then conducted by the Company, its subsidiaries or affiliates (provided,
however, that nothing contained herein shall prevent the Executive from
acquiring or owning less than 1% of the issued and outstanding capital stock or
debentures of a corporation whose securities are listed on the New York Stock
Exchange, American Stock Exchange, or the National Association of Securities
Dealers Automated Quotation System, if such investment is otherwise permitted by
the Company's Human Resource and Conflict of Interest policies);
c) Solicitation. Solicit or participate in the solicitation of any
business of any type conducted by the Company, its subsidiaries or affiliates,
during said term or thereafter, from any person, firm or other entity which was
or at the time is a supplier or customer, or prospective supplier or customer,
of the Company, its subsidiaries or affiliates;
or
d) Employment. Employ or retain, or arrange to have any other person,
firm or other entity employ or retain, or otherwise participate in the
employment or retention of, any person who was an employee or consultant of the
Company, its subsidiaries or affiliates, at any time during the period of twelve
consecutive months immediately preceding such
employment or retention.
The Executive will promptly furnish in writing to the Company, its
subsidiaries or affiliates, any information reasonably requested by the Company
(including any third party confirmations) with respect to any activity or
interest the Executive may have in any business.
Except as expressly herein provided, nothing contained herein is
intended to prevent the Executive, at any time after the termination of the
Employment Period, from either (i) being gainfully employed or (ii) exercising
his skills and abilities outside of such geographic areas, provided in either
case the provisions of this Agreement are complied with.
8. Preservation of Business.
a) General. During the Employment Period, the Executive will use his
best efforts to advance the business and organization of the Company, its
subsidiaries and affiliates, to keep available to the Company, its subsidiaries
and affiliates, the services of present and future employees and to advance the
business relations with its suppliers, distributors, customers and others.
b) Patents and Copyrights, etc. The Executive agrees, without
additional compensation, to make available to the Company all knowledge
possessed by him relating to any methods, developments, inventions, processes,
discoveries and/or improvements (whether patented, patentable or unpatentable)
which concern in any way the business of the Company, it subsidiaries or
affiliates, whether acquired by the Executive before or during his employment or
retention hereunder.
Any methods, developments, inventions, processes, discoveries
and/or improvements (whether patented, patentable or unpatentable) which the
Executive may conceive of or make, related directly or indirectly to the
business or affairs of the Company, its subsidiaries or affiliates, or any part
thereof, during the Employment Period, shall be and remain the property of the
Company. The Executive agrees promptly to communicate and disclose all such
methods, developments, inventions, processes, discoveries and/or improvements to
the Company and to execute and deliver to it any instruments deemed necessary by
the Company to effect the disclosure and assignment thereof to it. The
Executive also agrees, on request and at the expense of the Company, to execute
patent applications and any other instruments deemed necessary by the Company
for the prosecution of such patent applications or the acquisition of Letters
Patent in the United States or any other country and for the assignment to the
Company of any patents which may be issued. The Company shall indemnify and
hold the Executive harmless from any and all costs, expenses, liabilities or
damages sustained by the Executive by reason of having made such patent
application or being granted such patents.
Any writings or other materials written or produced by the Executive
or under his supervision (whether alone or with others and whether or not during
regular business hours), during the Employment Period which are related,
directly or indirectly, to the business or affairs of the Company, its
subsidiaries or affiliates, or are capable of being used therein, and the
copyright thereof, common law or statutory, including all renewals and
extensions, shall be and remain the property of the Company. The Executive
agrees promptly to communicate and disclose all such writings or materials to
the Company and to execute and deliver to it any instruments deemed necessary by
the Company to effect the disclosure and assignment thereof to it. The
Executive further agrees, on request and at the expense of the Company, to take
any and all action deemed necessary by the Company to obtain copyrights or other
protections for such writings or other materials or to protect the Company's
right, title and interest therein. The Company shall indemnify and hold the
Executive harmless from any and all costs, expenses, liabilities or damages
sustained by the Executive by reason of the Executive's compliance with the
Company's request.
c) Return of Documents. Upon the termination of the Employment
Period, including any termination of employment described in Paragraph 6, the
Executive will promptly return to the Company all copies of information
protected by Paragraph 7(a) hereof or pertaining to matters covered by
subparagraph (b) of this Paragraph 8 which are in his possession, custody or
control, whether prepared by him or others.
9. Separability.
The Executive agrees that the provisions of Paragraphs 7 and 8 hereof
constitute independent and separable covenants which shall survive the
termination of the Employment Period and which shall be enforceable by the
Company notwithstanding any rights or remedies the Executive may have under any
other provisions hereof. The Company agrees that the provisions of Paragraph 6
hereof constitute independent and separable covenants which shall survive the
termination of the Employment Period and which shall be enforceable by the
Executive notwithstanding any rights or remedies the Company may have under any
other provisions hereof.
10. Specific Performance.
The Executive acknowledges that (i) the services to be rendered under
the provisions of this Agreement and the obligations of the Executive assumed
herein are of a special, unique and extraordinary character; (ii) it would be
difficult or impossible to replace such services and obligations; (iii) the
Company, it subsidiaries and affiliates will be irreparably damaged if the
provision hereof are not specifically enforced; and (iv) the award of monetary
damages will not adequately protect the Company, its subsidiaries and affiliates
in the event of a breach hereof by the Executive. The Company acknowledges that
(i) the Executive will be irreparably damaged if the provisions of Paragraph 6
hereof are not specifically enforced; and (ii) the award of monetary damages
will not adequately protect the Executive in the event of a breach thereof by
the Company. By virtue thereof, the Executive agrees and consents that if he
violates any of the provisions of this Agreement, and the Company agrees and
consents that if it violates any of the provisions of Paragraph 6 hereof, the
other party, in addition to any other rights and remedies available under this
Agreement or otherwise, shall (without any bond or other security being required
and without the necessity of proving monetary damages) be entitled to a
temporary and/or permanent injunction to be issued by a court of competent
jurisdiction restraining the breaching party from committing or continuing any
violation of this Agreement, or any other appropriate decree of specific
performance. Such remedies shall not be exclusive and shall be in addition to
any other remedy which any of them may have.
11. Miscellaneous.
a) Entire Agreement; Amendment. This Agreement constitutes the whole
employment agreement between the parties and may not be modified, amended or
terminated except by a written instrument executed by the parties hereto. All
other agreements between the parties pertaining to the employment or
remuneration of the Executive not specifically contemplated hereby or
incorporated or merged herein are terminated and shall be of no further force or
effect.
b) Assignment. Except as stated below, this Agreement is not
assignable by the Company without the written consent of the Executive, or by
the Executive without the written consent of the Company, and any purported
assignment by either party of such party's rights and/or obligations under this
Agreement shall be null and void; provided, however, that, notwithstanding the
foregoing, the Company may merge or consolidate with or into another
corporation, or sell all or substantially all of its assets to another
corporation or business entity or otherwise reorganize itself, provided the
surviving corporation or entity, if not the Company, shall assume this Agreement
and become obligated to perform all of the terms and conditions hereof, in which
event the Executive's obligations shall continue in favor of such other
corporation or entity.
c) Waivers, etc. No waiver of any breach or default hereunder shall
be considered valid unless in writing, and no such waiver shall be deemed a
waiver of any subsequent breach or default of the same or similar nature. The
failure of any party to insist upon strict adherence to any term of this
Agreement on any occasion shall not operate or be construed as a waiver of the
right to insist upon strict adherence to that term of any other term of this
Agreement on that or any other occasion.
d) Provisions Overly Broad. In the event that any term or provision
of this Agreement shall be deemed by a court of competent jurisdiction to be
overly broad in scope, duration or area of applicability, the court considering
the same shall have the power and hereby is authorized and directed to modify
such term or provision to limit such scope, duration or area, or all of them, so
that such term or provision is no longer overly broad and to enforce the same as
so limited. Subject to the foregoing sentence, in the event any provision of
this Agreement shall be held to be invalid or unenforceable for any reason, such
invalidity or unenforceability shall attach only to such provision and shall not
affect or render invalid or unenforceable any other provision of this Agreement.
e) Notices. Any notice permitted or required hereunder shall be in
writing and shall be deemed to have been given on the date of delivery or, if
mailed by registered or certified mail, postage prepaid, on the date of mailing:
i. if to the Executive to:
Arthur H. Baer
61 Bushnell Road
Hillsdale, NY 12529
ii. if to the Company to:
Arrow Electronics, Inc.
25 Hub Drive
Melville, New York 11747
Attention: Robert E. Klatell
Executive Vice President
Either party may, by notice to the other, change his or its address for notice
hereunder.
f) New York Law. This Agreement shall be construed and governed in
all respects by the internal laws of the State of New York, without giving
effect to principles of conflicts of law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
Attest:
ARROW ELECTRONICS, INC.
By:
--------------------
Secretary
Executive Vice President
THE EXECUTIVE
/s/ Arthur H. Baer
- ------------------
Arthur H. Baer
CONFORMED COPY
ARROW ELECTRONICS, INC.
25 Hub Drive
Melville, New York 11747
New York, New York
As of March 25, 1999
Re: Amendment No. 5 to Senior Note Purchase Agreements
dated as of December 29, 1992
To the Noteholders
Referred to Below
Ladies and Gentlemen:
Reference is made to the several Senior Note Purchase Agreements, each
dated as of December 29, 1992 (collectively, as in effect on the date hereof,
the "Agreements"), between Arrow Electronics, Inc., a New York corporation (the
"Company") and the financial institutions identified in Annex A thereto,
pursuant to which said financial institutions purchased $75,000,000 aggregate
principal amount of the Company's 8.29% Senior Secured
Notes due 2000 (the "Senior Notes").
The Company has requested that the holders of the Senior Notes (the
"Noteholders") agree, and the Noteholders party hereto are willing, to amend
various provisions of the Agreements, all on the terms and
conditions of this Amendment.
Accordingly, in consideration of the premises and the mutual
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. Unless otherwise defined herein, all terms used
herein that are defined in the Agreements (as amended hereby) shall have their
respective meanings as therein defined.
2. Amendments to Agreements. Subject to the satisfaction of the
condition to effectiveness specified in 5 below, but with effect on and after
the date hereof, the Agreements are amended as follows:
2.1 Amendment to Section 2.02. Section 2.02 of the Agreements is
amended by deleting the definition of "Credit Agreement" therein and adding the
following new definitions thereto (in their appropriate alphabetic locations):
"Bank' means any lender party to a Credit Agreement."
"Credit Agreement' means, collectively, (i) the Credit
Agreement dated as of August 16, 1995 among the Company, the Foreign
Subsidiaries party thereto, the financial institutions party thereto and The
Chase Manhattan Bank, as successor by merger to Chemical Bank, as Administrative
Agent, (ii) the Credit Agreement dated as of March 30, 1999 among the Company,
the Foreign Subsidiaries party thereto, the financial institutions party thereto
and The Chase Manhattan Bank, as Administrative Agent and (iii) any agreement
evidencing Indebtedness incurred by the Company or any Foreign Subsidiary to
refinance any Credit Agreement referred to in clause (i) or (ii), in each case
as such agreement may be amended, restated, modified, supplemented and in effect
from time to time.".
2.2. Amendment to Section 8.01. Section 8.01 of the
Agreements is amended by re-designating subsections "(p)" and "(q)" thereof as
subsections "(q)" and "(r)", respectively, and adding the following new
subsection (p):
"(p) Guarantees by Subsidiaries of Bank Debt (subject
to the provisions of Section 8.16);".
3. Additional Undertaking. In consideration of the
amendments set forth in 2 above, the Company hereby acknowledges to and agrees
with each of the Noteholders that, notwithstanding anything to the contrary
herein or in the Agreements, no Subsidiary of the Company (other than any
Foreign Subsidiary) will borrow, or become obligated to borrow, under any Credit
Agreement. The Company acknowledges that a failure to comply with this 3 shall
constitute an Event of Default for purposes of Section 9.01 of the Agreements.
4. Representations and Warranties. The Company represents
and warrants to the Noteholders as follows (and the parties hereto agree that
the following representations and warranties shall be deemed to have been made
pursuant to the Agreements for all relevant purposes thereof):
4.1. Power and Authority. The Company has the
corporate power and authority to execute and deliver this Amendment and to
perform the Agreements as amended hereby (the "Amended Agreements").
4.2. Authorization, etc. This Amendment has been duly
authorized by all necessary corporate action on the part of the Company and has
been duly executed and delivered by the Company, and the Amended Agreements
constitute legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as such enforcement
may be limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
4.3. No Conflicts. The execution and delivery by the
Company of this Amendment and the performance by the Company of this Amendment
and of the Amended Agreements will not (i) violate any material provision of law
applicable to the Company or any of its Subsidiaries or any Order binding on the
Company or any of its Subsidiaries, (ii) to the best knowledge of the Company,
conflict with, result in a material breach of or constitute (with due notice or
lapse of time or both) a material default under any agreement or instrument
binding on the Company or any of its Subsidiaries or affecting their Properties
or (iii) require any approval or consent of any Governmental Authority or, to
the best knowledge of the Company, any other Person under any agreement or
instrument binding on the Company or any of its Subsidiaries or affecting their
Properties.
4.4. No Defaults. Both immediately prior and after
giving effect to this Amendment, no Default or Event of Default has occurred and
is continuing.
5. Condition to Effectiveness. The amendments to the
Agreements set forth in 2 shall become effective, as of the date hereof, upon
the execution and delivery of this Amendment by the Company and the
Required Holders.
6. Miscellaneous.
6.1. Costs and Expenses. As provided in Section 10.02
of the Agreements, the Company agrees to pay on demand all reasonable out-of-
pocket costs and expenses of the Noteholders in connection with the negotiation,
preparation, execution and delivery of this Amendment and any documents executed
pursuant hereto.
6.2. Ratification; Waiver. The Agreements, except as
amended pursuant hereto, are in all respects ratified and confirmed, and the
terms, covenants and agreements thereof shall remain in full force and effect.
6.3. References to Agreements and Senior Notes. From
and after the date hereof, all references to the Agreements in the Agreements,
the Senior Notes, the Subsidiary Guarantees and the other Loan Documents
shall be deemed to be references to the Agreements as amended by this Amendment.
6.4. Governing Law. This Amendment shall be construed
in accordance with and governed by the laws of the State of New York.
6.5. Execution in Counterparts. This Amendment may be
executed in counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
If you are in agreement with the foregoing, please sign the
form of acceptance in the space provided below whereupon this Amendment shall
become a binding agreement between you and the Company.
Very truly yours,
ARROW ELECTRONICS, INC.
By: /s/ Robert E. Klatell
-------------------------
Name: Robert E. Klatell
Title: Executive Vice President
ACCEPTED AND AGREED:
CIG & CO.
By: /s/ Edward Lewis
-------------------
Name: Edward Lewis
Title: Partner
PRINCIPAL LIFE INSURANCE COMPANY
By Principal Capital Management, LLC,
a Delaware limited liability company,
its Authorized Signatory
By: /s/ Jon C. Heiny
-------------------
Name: Jon C. Heiny
Title: Counsel
By: /s/ Dennis D. Ballard
------------------------
Name: Dennis D. Ballard
Title: Counsel
TEACHERS INSURANCE & ANNUITY
ASSOCIATION OF AMERICA
By: /s/ Estelle Simsolo
----------------------
Name: Estelle Simsolo
Title: Director - Private Placements
THE LINCOLN NATIONAL LIFE INSURANCE
COMPANY
By: Lincoln Investment Management, Inc.,
It's Attorney-in-Fact
By: /s/ David C. Patch
---------------------
Name: David C. Patch
Title: Vice President
CONFORMED COPY
$350,000,000
364-DAY CREDIT AGREEMENT
among
ARROW ELECTRONICS, INC.,
THE SUBSIDIARY BORROWERS,
The Several Banks
from Time to Time Parties Hereto,
CHASE SECURITIES INC.,
as Arranger
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
Dated as of March 30, 1999
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS 1
1.1 Defined Terms 1
1.2 Other Definitional Provisions 19
1.3 Accounting Determinations 19
SECTION 2. THE COMMITTED RATE LOANS 20
2.1 Committed Rate Loans 20
2.2 Procedure for Committed Rate Loan Borrowing 20
2.3 Repayment of Committed Rate Loans; Evidence of Debt 20
2.4 Termination or Reduction of Commitments 21
2.5 Optional Prepayments 21
2.6 Conversion and Continuation Options 21
2.7 Minimum Amounts of Tranches 22
2.8 Interest Rates and Payment Dates for Committed Rate Loans 22
2.9 Inability to Determine Interest Rate 23
SECTION 3. THE COMPETITIVE ADVANCE LOANS 23
3.1 Competitive Advance Loans 23
3.2 Procedure for Competitive Advance Loan Borrowing 24
3.3 Repayment of Competitive Advance Loans; Evidence of Debt 25
3.4 Prepayments 26
SECTION 4. THE SWING LINE LOANS 26
4.1 Swing Line Loans 26
4.2 Procedure for Swing Line Borrowing 26
4.3 Repayment of Swing Line Loans; Evidence of Debt 27
4.4 Allocating Swing Line Loans; Swing Line Loan Participations 27
SECTION 5. CERTAIN PROVISIONS APPLICABLE TO THE LOANS 29
5.1 Facility Fee; Utilization Fee; Other Fees 29
5.2 Computation of Interest and Fees 29
5.3 Pro Rata Treatment and Payments 30
5.4 Illegality 30
5.5 Requirements of Law 31
5.6 Taxes 33
5.7 Company's Options upon Claims for Increased Costs and Taxes 35
5.8 Indemnity 36
5.9 Determinations 36
5.10 Change of Lending Office 36
5.11 Company Controls on Exposure; Calculation of Exposure;
Prepayment if Exposure exceeds Commitments 37
SECTION 6. REPRESENTATIONS AND WARRANTIES 38
6.1 Financial Condition 38
6.2 No Change 38
6.3 Corporate Existence; Compliance with Law 38
6.4 Corporate Power; Authorization; Enforceable Obligations 39
6.5 No Legal Bar 39
6.6 No Material Litigation 39
6.7 No Default 39
6.8 Ownership of Property; Liens 39
6.9 Intellectual Property 40
6.10 Year 2000 Matters 40
6.11 Taxes 40
6.12 Federal Regulations 40
6.13 ERISA 41
6.14 Investment Company Act; Other Regulations 41
6.15 Subsidiaries 41
6.16 Accuracy and Completeness of Information 42
6.17 Purpose of Loans 42
6.18 Senior Indebtedness 42
6.19 Environmental Matters 42
SECTION 7. CONDITIONS PRECEDENT 43
7.1 Conditions to Closing Date 43
7.2 Conditions to Each Loan 45
SECTION 8. AFFIRMATIVE COVENANTS 46
8.1 Financial Statements 46
8.2 Certificates; Other Information 47
8.3 Payment of Obligations 48
8.4 Conduct of Business and Maintenance of Existence 48
8.5 Maintenance of Property; Insurance 48
8.6 Inspection of Property; Books and Records; Discussions 49
8.7 Notices 49
8.8 Environmental Laws 50
8.9 Additional Subsidiary Guarantees 50
SECTION 9. NEGATIVE COVENANTS 50
9.1 Financial Condition Covenants 50
9.2 Limitation on Indebtedness of Domestic Subsidiaries 50
9.3 Limitation on Liens 51
9.4 Limitation on Fundamental Changes 51
9.5 Limitation on Modifications of Debt Instruments 52
SECTION 10. EVENTS OF DEFAULT 52
SECTION 11. THE ADMINISTRATIVE AGENT; THE ARRANGER 55
11.1 Appointment 55
11.2 Delegation of Duties 55
11.3 Exculpatory Provisions 55
11.4 Reliance by Administrative Agent 55
11.5 Notice of Default 56
11.6 Non-Reliance on Administrative Agent and Other Banks 56
11.7 Indemnification 57
11.8 Administrative Agent in Its Individual Capacity 57
11.9 Successor Administrative Agent 57
11.10 The Arranger 58
SECTION 12. MISCELLANEOUS 58
12.1 Amendments and Waivers 58
12.2 Notices 59
12.3 No Waiver; Cumulative Remedies 60
12.4 Survival of Representations and Warranties 61
12.5 Payment of Expenses and Taxes 61
12.6 Successors and Assigns; Participations and Assignments 62
12.7 Adjustments; Set-off 64
12.8 Power of Attorney 65
12.9 Judgment 65
12.10 Counterparts 66
12.11 Severability 66
12.12 Integration 66
12.13 GOVERNING LAW 66
12.14 Submission To Jurisdiction; Waivers 66
12.15 Acknowledgments 67
12.16 WAIVERS OF JURY TRIAL 67
SCHEDULES
I - Banks and Commitments
II - Subsidiary Borrowers
III - Certain Information Concerning Swing Line Loans
IV - Administrative Schedule
6.13 - Excluded ERISA Arrangements
6.15 - Subsidiaries
6.19 - Environmental Matters
364-DAY CREDIT AGREEMENT, dated as of March 30, 1999, among:
(i) ARROW ELECTRONICS, INC., a New York corporation (the
"Company");
(ii) the SUBSIDIARY BORROWERS (as hereinafter defined);
(iii) the several banks and other financial institutions from time
to time parties to this Agreement (the "Banks");
(iv) CHASE SECURITIES INC., as advisor, lead arranger and book
manager (in such capacity, the "Arranger"); and
(v) THE CHASE MANHATTAN BANK, as administrative agent for the Banks
hereunder (in such capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, the Company has requested the Banks to make available a
364-day revolving credit facility; and
WHEREAS, the Banks are willing to make such credit facility
available upon and subject to the terms and conditions hereafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto hereby agree as follows:
1. SECTION DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall have
the following meanings:
1.2
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to the greatest of (a) the Prime Rate
in effect on such day, (b) the Base CD Rate in effect on such day plus 1% and
(c) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. For
purposes hereof: "Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by Chase as its prime rate in effect at its
principal office in New York City (the Prime Rate not being intended to be the
lowest rate of interest charged by Chase in connection with extensions of credit
to debtors); "Base CD Rate" shall mean the sum of (a) the product of (i) the
Three-Month Secondary CD Rate and (ii) a fraction, the numerator of which is one
and the denominator of which is one minus the C/D Reserve Percentage and (b) the
C/D Assessment Rate; "Three-Month Secondary CD Rate" shall mean, for any day,
the secondary market rate for three-month certificates of deposit reported as
being in effect on such day (or, if such day shall not be a Business Day, the
next preceding Business Day) by the Board through the public information
telephone line of the Federal Reserve Bank of New York (which rate will, under
the current practices of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or, if such rate shall
not be so reported on such day or such next preceding Business Day, the average
of the secondary market quotations for three-month certificates of deposit of
major money center banks in New York City received at approximately 10:00 A.M.,
New York City time, on such day (or, if such day shall not be a Business Day, on
the next preceding Business Day) by the Administrative Agent from three New York
City negotiable certificate of deposit dealers of recognized standing selected
by it; and "Federal Funds Effective Rate" shall mean, for any day, the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the average
of the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it. If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Base CD Rate or the Federal Funds Effective Rate,
or both, for any reason, including the inability or failure of the
Administrative Agent to obtain sufficient quotations in accordance with the
terms thereof, the ABR shall be determined without regard to clause (b) or (c),
or both, of the first sentence of this definition, as appropriate, until the
circumstances giving rise to such inability no longer exist. Any change in the
ABR due to a change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate shall be effective as of the opening of business on the effective
day of such change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate, respectively.
"ABR Loans": Loans denominated in Dollars the rate of interest
applicable to which is based upon the ABR.
"Adjusted Consolidated EBITDA": for any fiscal period, (a) the
Consolidated Net Income of the Company and its Subsidiaries for such period,
plus (b) to the extent deducted from earnings in determining Consolidated Net
Income for such period, the sum, in each case for such period, of income taxes,
interest expense, depreciation expense, amortization expense, including
amortization of any goodwill or other intangibles, minus (c) to the extent
included in determining Consolidated Net Income for such period, non-cash equity
earnings of unconsolidated Affiliates, plus (d) to the extent excluded in
determining Consolidated Net Income for such period, cash distributions received
by the Company from unconsolidated Affiliates, all as determined on a
consolidated basis in accordance with GAAP.
"Administrative Schedule": Schedule IV to this Agreement, which
contains interest rate definitions and administrative information in respect of
each Currency and each Type of Loan.
"Administrative Agent": as defined in the preamble hereto.
"Affected Bank": any Bank affected by the events described in
subsection 5.4, 5.5 or 5.6, as the case may be, but only for the period during
which such Bank shall be affected by such events.
"Affiliate": as to any Person, (a) any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person or (b) any Person who is a director
or officer of the Company or any of its Subsidiaries. For purposes of this
definition, "control" of a Person means the power, directly or indirectly,
either to (i) vote 10% or more of the securities having ordinary voting power
for the election of directors of such Person or (ii) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agents": as defined in the preamble hereto (individually, each an
"Agent").
"Agreement": this 364-Day Credit Agreement, as amended,
supplemented or otherwise modified from time to time.
"Aggregate 1995 Exposure": at any time, the aggregate Exposure (as
defined in the 1995 Credit Agreement) of the Foreign Subsidiary Borrowers (as
defined in the 1995 Credit Agreement) and the Local Currency Borrowers (as
defined in the 1995 Credit Agreement).
"Allocable Share": as to any Assenting Bank at any time, a
fraction, the numerator of which shall be the Commitment of such Assenting Bank
then in effect and the denominator of which shall be the aggregate of the
Commitments of all Assenting Banks then in effect.
"Applicable Margin": for each Type of Loan on any date, the rate per
annum determined based upon the Rating in effect on such date by both S&P and
Moody's set forth under the relevant column heading below opposite such Rating:
Rating Applicable Margin (in basis points) Applicable Margin (in basis
(S&P/Moody's) for Eurocurrency Loans points) for ABR Loans
Greater than or
equal to A/A2 32.00 0
Greater than or
equal to A-/A3 35.00 0
Greater than or
equal to BBB+/Baa1 45.00 0
Greater than or
equal to BBB/Baa2 52.50 0
Greater than or
equal to BBB-/Baa3 75.00 0
Less than or equal
To BB+/Ba1 92.50 0
; provided that, in the event that the Ratings of S&P and Moody's do not
coincide, the Applicable Margin set forth above opposite the higher of such
Ratings will apply, unless one of the Ratings is BB+/Ba1 or lower, or if there
is no rating, in which case the Applicable Margin will be based on the rating of
BB+/Ba1.
"Assenting Bank": as defined in subsection 5.7(a).
"Assignee": as defined in subsection 12.6(c).
"Assignment and Acceptance": each Assignment and Acceptance,
substantially in the form of Exhibit I, executed and delivered pursuant to
subsection 12.6(c).
"Available Foreign Currencies": Pounds Sterling and euro.
"Banks": as defined in the preamble hereto.
"Board": the Board of Governors of the Federal Reserve System or
any successor.
"Borrowers": the collective reference to the Company and the
Subsidiary Borrowers.
"Borrowing Date": any Business Day on which the Company or any
Subsidiary Borrower requests the Banks to make Loans hereunder.
"Business": as defined in subsection 6.19(b).
"Business Day": (a) when such term is used in respect of any
amount denominated or to be denominated in (i) any Available Foreign Currency, a
London Banking Day which is also a day other than a Saturday or Sunday on which
banks are open for general banking business in (x) the city which is the
principal financial center of the country of issuance of such Available Foreign
Currency (or, in the case of Pounds Sterling, Paris), (y) in the case of euro
only, Frankfurt am Main, Germany (or such other principal financial center as
the Administrative Agent may from time to time nominate for this purpose) and
(z) New York City and (ii) Dollars, a London Banking Day which is also a day
other than a Saturday or Sunday on which banks are open for general banking
business in New York City and (b) when such term is used for the purpose of
determining the date on which the Eurocurrency Rate is determined under this
Agreement for any Loan denominated in euro for any Interest Period therefor and
for purposes of determining the first and last day of any Interest Period,
references in this Agreement to Business Days shall be deemed to be references
to Target Operating Days.
"C/D Assessment Rate": for any day as applied to any ABR Loan, the
net annual assessment rate (rounded upward to the nearest 1/100th of 1%)
determined by Chase to be payable on such day to the Federal Deposit Insurance
Corporation or any successor ("FDIC") for FDIC's insuring time deposits made in
Dollars at offices of Chase in the United States.
"C/D Reserve Percentage": for any day as applied to any ABR Loan,
that percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board, for determining the maximum reserve requirement for a
Depositary Institution (as defined in Regulation D of the Board) in respect of
new non-personal time deposits in Dollars having a maturity of 30 days or more.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, options or rights to purchase any of the foregoing.
"Capitalization Documents": the collective reference to the
Governing Documents of the Company and each of its Subsidiaries, the
certificates of designation and other agreements governing the issuance of, or
setting forth the terms of, any Capital Stock (including, without limitation,
the common stock) issued or to be issued by the Company or any of its
Subsidiaries and the Rights Agreement.
"Change in Control": one or more of the following events:
(a) less than a majority of the members of the Company's board of
directors shall be persons who either (i) were serving as directors on the
Closing Date or (ii) were nominated as directors and approved by the vote of the
majority of the directors who are directors referred to in clause (i) above or
this clause (ii); or
(b) the stockholders of the Company shall approve any plan or
proposal for the liquidation or dissolution of the Company; or
(c) a Person or group of Persons acting in concert (other than
the direct or indirect beneficial owners of the Capital Stock of the Company as
of the Closing Date) shall, as a result of a tender or exchange offer, open
market purchases, privately negotiated purchases or otherwise, have become the
direct or indirect beneficial owner (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended from time to time) of securities of
the Company representing 40% or more of the combined voting power of the
outstanding voting securities for the election of directors or shall have the
right to elect a majority of the board of directors of the Company.
"Chase": The Chase Manhattan Bank.
"Closing Date": the date on which the conditions precedent set
forth in subsection 7.1 shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment": as to any Bank, the obligation of such Bank to make
and/or acquire participating interests in Committed Rate Loans or Swing Line
Loans hereunder in an aggregate Dollar Equivalent Amount at any one time
outstanding not to exceed the amount set forth opposite such Bank's name on
Schedule I, as such amount may be changed from time to time in accordance with
the provisions of this Agreement.
"Commitment Percentage": as to any Bank at any time, the percentage
which such Bank's Commitment then constitutes of the aggregate Commitments (or,
at any time after the Commitments shall have expired or terminated, the
percentage which the amount of such Bank's Exposure at such time constitutes of
the aggregate amount of the Exposure of all the Banks at such time).
"Commitment Period": the period from and including the Closing Date
to but not including the Termination Date or such earlier date on which the
Commitments shall terminate as provided herein.
"Committed Exposure": as to any Bank, the sum of (a) the aggregate
Dollar Equivalent Amount of the principal amount of all outstanding Committed
Rate Loans and made by such Bank plus (b) such Bank's Commitment Percentage of
the aggregate Dollar Equivalent Amount of the principal amount of all
outstanding Swing Line Loans.
"Committed Rate Loan": as defined in subsection 2.1; a Committed
Rate Loan bearing interest based upon the ABR shall be a "Committed Rate ABR
Loan", and a Committed Rate Loan bearing interest based upon a Eurocurrency Rate
shall be a "Committed Rate Eurocurrency Loan".
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within the meaning
of Section 4001 of ERISA or is part of a group which includes the Company and
which is treated as a single employer under Section 414 of the Code.
"Company": as defined in the preamble hereto.
"Company Guarantee": the Guarantee of the Company, substantially in
the form of Exhibit F-1, as amended, supplemented or otherwise modified from
time to time.
"Company Guarantee Ratio": at any time, the ratio (expressed as a
percentage) of (a) the excess of (i) the aggregate Exposure of the Subsidiary
Borrowers at such time plus the Aggregate 1995 Exposure at such time over (ii)
the Guarantee Ceiling Amount at such time (the "Excess Exposure") to (b) the
aggregate Exposure of the Subsidiary Borrowers at such time plus the Aggregate
1995 Exposure at such time; provided that, if the Excess Exposure at any time is
less than or equal to zero, the Company Guarantee Ratio shall be zero.
"Competitive Advance Loan": as defined in subsection 3.1.
"Competitive Advance Loan Offer": with respect to any Competitive
Advance Loan Request in any Currency, an offer from a Bank in respect of such
Competitive Advance Loan Request, containing the information in respect of such
Competitive Advance Loan Offer and delivered to the Person, in the manner and by
the time specified for a Competitive Advance Loan Offer in respect of such
Currency in the Administrative Schedule.
"Competitive Advance Loan Request": with respect to any Competitive
Advance Loan in any Currency, a request from the Borrower in respect of such
Loan, containing the information in respect of such Competitive Advance Loan and
delivered to the Person, in the manner and by the time specified for a
Competitive Advance Loan Request in respect of such Currency in the
Administrative Schedule.
"Consolidated Cash Interest Expense": for any period, (a) the
amount which would, in conformity with GAAP, be set forth opposite the caption
"interest expense" or any like caption on a consolidated income statement of the
Company and its Subsidiaries minus (b) the amount of non-cash interest
(including interest paid by the issuance of additional securities) included in
such amount.
"Consolidated Net Income": for any fiscal period, the consolidated
net income (or loss) of the Company and its Subsidiaries after excluding all
unusual, extraordinary and non-recurring gains and after adding all unusual,
extraordinary and non-recurring losses, in all cases of the Company and its
Subsidiaries determined on a consolidated basis during the relevant period in
accordance with GAAP.
"Consolidated Net Worth": at a particular date, all amounts which
would be included under shareholders' equity on a consolidated balance sheet of
the Company and its Subsidiaries determined on a consolidated basis in
accordance with GAAP.
"Consolidated Total Capitalization": at a particular date, the sum
of (a) Consolidated Net Worth plus (b) Consolidated Total Debt as at such date.
"Consolidated Total Debt": all Indebtedness of the Company and its
Subsidiaries (excluding Indebtedness of the Company owing to any of its
Subsidiaries or Indebtedness of any Subsidiary of the Company owing to the
Company or any other Subsidiary of the Company), as determined on a consolidated
basis in accordance with GAAP.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Documents": this Agreement, the Subsidiary Guarantees and
the Company Guarantee.
"Currencies": the collective reference to Dollars and Available
Foreign Currencies.
"Default": any of the events specified in Section 10, whether or
not any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Dollar Equivalent Amount": with respect to (i) the amount of any
Available Foreign Currency on any date, the equivalent amount in Dollars of such
amount of Available Foreign Currency, as determined by the Administrative Agent
using the Exchange Rate and (ii) any amount in Dollars, such amount.
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Domestic Subsidiary": as to any Person, a Subsidiary of such
Person organized
under the laws of a State of the United States or the District of Columbia.
"Domestic Subsidiary Borrower": each Subsidiary of the Company
listed as a Domestic Subsidiary Borrower in Schedule III as amended from time to
time in accordance with subsection 12.1(b)(i).
"Environmental Laws": any and all applicable foreign, Federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority or other
Requirements of Law (including, without limitation, common law) regulating,
relating to or imposing liability or standards of conduct concerning protection
of human health or the environment, as now or may at any time hereafter be in
effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"euro": the single currency of participating member states of the
European Union.
"Eurocurrency Loan": any Loan bearing interest based upon a
Eurocurrency Rate.
"Eurocurrency Rate": in respect of Dollars and each Available
Foreign Currency, the rate determined as the Eurocurrency Rate for Dollars or
such Available Foreign Currency in the manner set forth in the Administrative
Schedule.
"Event of Default": any of the events specified in Section 10,
provided that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Exchange Rate": with respect to any Available Foreign Currency on
any date, the rate at which such Available Foreign Currency may be exchanged
into Dollars, as set forth on such date on the relevant Reuters currency page at
or about 11:00 A.M. London time on such date. In the event that such rate does
not appear on any Reuters currency page, the "Exchange Rate" with respect to
such Available Foreign Currency shall be determined by reference to such other
publicly available service for displaying exchange rates as may be agreed upon
by the Administrative Agent and the Company or, in the absence of such
agreement, such "Exchange Rate" shall instead be the Administrative Agent's spot
rate of exchange in the interbank market where its foreign currency exchange
operations in respect of such Available Foreign Currency are then being
conducted, at or about 10:00 A.M., local time, at such date for the purchase of
Dollars with such Available Foreign Currency, for delivery two Business Days
later; provided, that if at the time of any such determination, no such spot
rate can reasonably be quoted, the Administrative Agent may use any reasonable
method as it deems applicable to determine such rate, and such determination
shall be conclusive absent manifest error (without prejudice to the
determination of the reasonableness of such method).
"Exposure": at any date, (a) as to all the Banks, the aggregate
Dollar Equivalent Amount of the outstanding principal amount of all Loans then
outstanding and (b) as to any Bank, the aggregate Dollar Equivalent Amount of
(i) the outstanding principal amount of all Committed Rate Loans and Competitive
Advance Loans made by such Bank and (ii) such Bank's Commitment Percentage of
the outstanding principal amount of all Swing Line Loans.
"Facility Fee Rate": for any date, a rate per annum determined based
upon the Rating in effect on such date by both S&P and Moody's set forth under
the relevant column heading below opposite such Rating:
Rating Facility Fee Rate (in basis points)
(S&P/Moody's)
Greater than or equal to 8.00
A/A2
Greater than or equal to 10.00
A-/A3
Greater than or equal to 12.50
BBB+/Baa1
Greater than or equal to 17.50
BBB/Baa2
Greater than or equal to 25.00
BBB-/Baa3
Less than or equal to 32.50
BB+/Ba1
; provided that, in the event that the Ratings of S&P and Moody's do not
coincide, the Facility Fee Rate set forth above opposite the higher of such
Ratings will apply, unless one of the Ratings is BB+/Ba1 or lower, in which case
the Facility Fee Rate will be based on the rating of BB+/Ba1.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"Foreign Currency Exposure": at any date, the aggregate Dollar
Equivalent Amount of the outstanding principal amount of all Loans then
outstanding which are denominated in a currency other than Dollars.
"Foreign Subsidiary Borrower": each Subsidiary of the Company
listed as a Foreign Subsidiary Borrower in Schedule III as amended from time to
time in accordance with subsection 12.1(b)(i); provided that with respect to any
Subsidiary for which a Foreign Subsidiary Opinion has not previously been
delivered, if the aggregate Exposure of such Subsidiary owing to all Banks
exceeds $20,000,000 for a period of 30 consecutive days, then, unless a Foreign
Subsidiary Opinion is delivered within 30 days after the end of such period,
such Subsidiary shall cease to be a Foreign Subsidiary Borrower 30 days after
the end of such period with respect to all Exposure of such Subsidiary owing to
the Banks in excess of $20,000,000.
"Foreign Subsidiary Opinion": with respect to any Foreign
Subsidiary Borrower, a legal opinion of counsel to such Foreign Subsidiary
Borrower addressed to the Administrative Agent and the Banks concluding that
such Foreign Subsidiary Borrower and the Credit Documents to which it is a party
substantially comply with the matters listed on Exhibit G-3 hereto, with such
deviations therefrom as the Administrative Agent shall consent (such consent not
to be unreasonably withheld).
"Funding Office": for each Type of Committed Rate Loan and each
Currency, the Funding Office set forth in respect thereof in the Administrative
Schedule.
"Funding Time": for each Type of Committed Rate Loan and each
Currency, the Funding Time set forth in respect thereof in the Administrative
Schedule.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"Gates": Gates/Arrow Distributing, Inc., a Delaware corporation.
"Governing Documents": as to any Person, the certificate or
articles of incorporation and by-laws or other organizational or governing
documents of such Person.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantee Ceiling Amount": at any time, the aggregate amount of
obligations that, pursuant to the restrictions contained in the Note Purchase
Agreement, may be guaranteed by the Company under the Company Guarantee on a
basis pari passu with the 1992 Private Placement Notes.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to induce
the creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of the guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the
maximum amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Company in good
faith.
"Guarantor": the Company or any Subsidiary in its capacity as a
party to the Company Guarantee or a Subsidiary Guarantee, as the case may be.
"Hedging Agreements": (a) Interest Rate Agreements and (b) any
swap, futures, forward or option agreements or other agreements or arrangements
designed to limit or eliminate the risk and/or exposure of a Person to
fluctuations in currency exchange rates.
"Hedging Banks": any Bank or any of its subsidiaries or affiliates
which from time to time enter into Hedging Agreements with the Company or any of
its Subsidiaries.
"Indebtedness": of any Person at any date, without duplication, (a)
the principal amount of all indebtedness of such Person for borrowed money or
for the deferred purchase price of property or services (other than current
trade liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), (b) the principal amount of any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (c) the portion of all obligations of such Person under
Financing Leases which must be capitalized in accordance with GAAP, (d) the
principal or stated amount of all obligations of such Person in respect of
letters of credit, banker's acceptances or similar obligations issued or created
for the account of such Person, (e) all liabilities arising under Hedging
Agreements of such Person, (f) the principal or stated amount of all Guarantee
Obligations of such Person (other than guarantees by the Company or any
Subsidiary in respect of current trade liabilities of the Company or any
Subsidiary incurred in the ordinary course of business and payable in accordance
with customary terms), and (g) the principal amount of all liabilities secured
by any Lien on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof.
"Initial Subsidiary Guarantee": the Subsidiary Guarantee executed
on the Closing Date by Gates, substantially in the form of Exhibit F-2, as the
same may be amended, supplemented or otherwise modified from time to time.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the last day of
each March, June, September and December, (b) as to any Committed Rate
Eurocurrency Loan having an Interest Period of three months or less, the last
day of such Interest Period, (c) as to any Committed Rate Eurocurrency Loan
having an Interest Period longer than three months, each day which is three
months after the first day of such Interest Period and the last day of such
Interest Period, (d) as to any Swing Line Loan, the last Business Day of each
calendar month during which such Swing Line Loan is outstanding, and (e) as to
any Competitive Advance Loan, the date or dates set forth in the applicable
Competitive Advance Loan Request or otherwise agreed upon by the relevant
Borrower and Bank at the time the terms of such Competitive Advance Loan are
determined as provided in Section 3.2.
"Interest Period": with respect to any Committed Rate Eurocurrency
Loan:
(i) initially, the period commencing on the borrowing or conversion date, as
the case may be, with respect to such Eurocurrency Loan and ending one, two,
three or six months thereafter, as selected by the relevant Borrower in its
Notice of Borrowing or Notice of Conversion, as the case may be, given with
respect thereto; and
(i) thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such Eurocurrency Loan and ending one, two, three
or six months thereafter, as selected by the relevant Borrower by a Notice of
Continuation with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(1) if any Interest Period would otherwise end on a day that is not a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest Period into
another calendar month in which event such Interest Period shall end on the
immediately preceding Business Day;
(1) any Interest Period that would otherwise extend beyond the Termination Date
shall end on the Termination Date; and
(1) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last
Business Day of a calendar month.
"Interest Rate Agreement": any interest rate protection agreement,
interest rate future, interest rate option, interest rate swap, interest rate
cap or other interest rate hedge or arrangement under which the Company is a
party or a beneficiary.
"Joinder Agreement": each Joinder Agreement, substantially in the
form of Exhibit A, from time to time executed and delivered hereunder pursuant
to subsection 12.1 (b).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Financing Lease
having substantially the same economic effect as any
of the foregoing).
"Loan": any Committed Rate Loan, Competitive Advance Loan or Swing
Line Loan.
"Loan Parties": the Company and each Subsidiary of the Company
which is a party to a Credit Document.
"London Banking Day": any day on which banks in London are open for
general banking business, including dealings in foreign currency and exchange.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or prospects
of the Company and its Subsidiaries taken as a whole, (b) the ability of the
Company to perform its obligations under this Agreement or other Credit
Documents or (c) the validity or enforceability of this Agreement or any of the
other Credit Documents or the rights or remedies of the Administrative Agent, or
the Banks hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Moody's": Moody's Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"1995 Credit Agreement": the Second Amended and Restated Credit
Agreement, dated as of August 16, 1995, as amended, among the Company, the other
borrowers named therein, Chase, as administrative agent, and others.
"1992 Private Placement Notes": the $75,000,000 Senior Secured
Notes issued by the Company pursuant to the Note Purchase Agreement, as any of
the same may be amended, supplemented, endorsed or otherwise modified from time
to time; provided the aggregate principal amount thereof is not increased.
"Non-Excluded Taxes": as defined in subsection 5.6.
"Note Purchase Agreement": the collective reference to the several
Senior Note Purchase Agreements, each dated as of December 29, 1992, among the
Company and the respective financial institutions party thereto as purchasers,
as the same may be amended, supplemented or otherwise modified from time to
time.
"Notice of Borrowing": with respect to a Committed Rate Loan of any
Type in any Currency, a notice from the Borrower in respect of such Loan,
containing the information in respect of such Loan and delivered to the Person,
in the manner and by the time specified for a Notice of Borrowing in respect of
such Currency and such Type of Loan in the Administrative Schedule.
"Notice of Continuation": with respect to a Committed Rate
Eurocurrency Loan in any Currency, a notice from the Borrower in respect of such
Loan, containing the information in respect of such Loan and delivered to the
Person, in the manner and by the time specified for a Notice of Continuation in
respect of such Currency in the Administrative Schedule.
"Notice of Conversion": with respect to a Committed Rate Loan in
Dollars which a Borrower wishes to convert from a Eurocurrency Loan to an ABR
Loan, or from an ABR Loan to a Eurocurrency Loan, as the case may be, a notice
from such Borrower setting forth the amount of such Loan to be converted, the
date of such conversion and, in the case of conversions of ABR Loans to
Eurocurrency Loans, the length of the initial Interest Period applicable
thereto. Each Notice of Conversion shall be delivered to the Administrative
Agent at its address set forth in subsection 12.2 and shall be delivered before
12:00 Noon, New York City time, on the Business Day of the requested conversion
in the case of conversions to ABR Loans, and before 12:00 Noon, New York City
time, three Business Days before the requested conversion in the case of
conversions to Eurocurrency Loans.
"Notice of Guarantee Ceiling Amount": a certificate of the Company
substantially in the form of Exhibit J delivered to the Administrative Agent and
calculating the Guarantee Ceiling Amount.
"Notice of Prepayment": with respect to prepayment of any Committed
Rate Loan of any Type in any Currency, a notice from the Borrower in respect of
such Loan, containing the information in respect of such prepayment and
delivered to the Person, in the manner and by the time specified for a Notice of
Prepayment in respect of such Currency and such Type of Loan in the
Administrative Schedule.
"Notice of Swing Line Borrowing": with respect to a Swing Line Loan
of any Type in any Currency, a notice from the Borrower in respect of such Loan,
containing the information in respect of such Swing Line Loan and delivered to
the Person, in the manner and by the time agreed by the Company and the
applicable Swing Line Bank in respect of such Currency and such Type of Loan.
"Notice of Swing Line Outstandings": with respect to each Swing
Line Bank, a notice from such Swing Line Bank containing the information,
delivered to the Person, in the manner and by the time, specified for a Notice
of Swing Line Outstandings in the Administrative Schedule.
"Notice of Swing Line Refunding": with respect to each Swing Line
Bank, a notice from such Swing Line Bank containing the information, delivered
to the Person, in the manner and by the time, specified for a Notice of Swing
Line Refunding in the Administrative Schedule.
"Participant": as defined in subsection 12.6(b).
"Payment Office": for each Type of Committed Rate Loan and each
Currency, the Payment Office set forth in respect thereof in the Administrative
Schedule.
"Payment Time": for each Type of Committed Rate Loan and each
Currency, the Payment Time set forth in respect thereof in the Administrative
Schedule.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Company or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Properties": as defined in subsection 6.19(a).
"Ratings": the actual or implied senior unsecured non-credit
enhanced debt ratings of the Company in effect from time to time by Moody's or
S&P, as the case may be, the bank debt rating of the Company in effect from time
to time by Moody's or the corporate credit rating of the Company in effect from
time to time by S&P..
"Register": as defined in subsection 12.6(d).
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Replacement Bank": as defined in subsection 5.7(b).
"Reportable Event": any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. 2615.
"Required Banks": at any time, Banks the Commitment Percentages of
which aggregate more than 50%.
"Requirement of Law": as to any Person, the Governing Documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": as to any Person, the chief executive
officer, the chairman of the board, the president, the chief financial officer,
the chief accounting officer, any executive or senior vice president or the
treasurer of such Person.
"Restricted Payments": as defined in subsection 9.5.
"Rights Agreement": the Rights Agreement, dated as of March 2,
1988, between the Company and Chase, as successor by merger to Manufacturers
Hanover Trust Company, as rights agent, as amended, supplemented or otherwise
modified from time to time.
"S&P": Standard & Poor's Ratings Group.
"Schedule Amendment": each Schedule Amendment, substantially in the
form of Exhibit B, executed and delivered pursuant to subsection 12.1.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Subordinated Debentures": the Company's 5-3/4% Convertible
Subordinated Debentures due 2002.
"Subordinated Indebtedness": Indebtedness outstanding under the
Subordinated Debentures.
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.
"Subsidiary Borrower": the collective reference to the Foreign
Subsidiary Borrowers and the Domestic Subsidiary Borrowers
"Subsidiary Guarantee": each of (a) the Initial Subsidiary
Guarantee and (b) each other Subsidiary Guarantee, substantially in the form of
the Initial Subsidiary Guarantee with such changes as shall be approved by the
Administrative Agent, to be executed and delivered from time to time by any
other Domestic Subsidiary that accounts for more than 5% of Total Assets at any
date, in each case, as the same may be amended, supplemented or otherwise
modified from time to time.
"Swing Line Bank": in respect of any Borrower and any Currency,
each Bank listed as a Swing Line Bank in respect of such Borrower and Currency
in Schedule III.
"Swing Line Currency": in respect of any Borrower, the Currency set
forth for such Borrower in Schedule III.
"Swing Line Limit": in respect of any Borrower, the amount listed
as the Swing Line Limit in respect of such Borrower in Schedule III, but not in
any case for all Borrowers to exceed a Dollar Equivalent Amount equal to
$25,000,000.
"Swing Line Loan": as defined in subsection 4.1.
"Swing Line Rate": in respect of each Swing Line Currency for each
Swing Line Bank, the interest rate agreed from time to time between the Company
and such Swing Line Bank.
"Target Operating Day": any day that is not (a) a Saturday or
Sunday, (b) Christmas Day or New Year's Day or (c) any other day on which the
Trans-European Real-time Gross Settlement Operating System (or any successor
settlement system) is not operating (as determined by the Administrative Agent).
"Termination Date": March 28, 2000.
"Total Assets": at a particular date, the assets of the Company and
its Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"Tranche": the collective reference to Committed Rate Eurocurrency
Loans in any Currency the then current Interest Periods with respect to all of
which begin on the same date and end on the same later date (whether or not such
Loans shall originally have been made on the same day).
"Transferee": as defined in subsection 12.6(f).
"Type": in respect of any Loan, its character as a Committed Rate
Loan, Competitive Advance Loan or Swing Line Loan, as the case may be.
"UCC": the Uniform Commercial Code as from time to time in effect
in the relevant jurisdiction.
"Undrawn Commitment": as to any Bank at any time, the amount of
such Bank's Commitment minus the amount of such Bank's Committed Exposure at
such time but not less than zero.
(a) Other Definitional Provisions.
Unless otherwise specified therein, all terms defined in this Agreement shall
have the defined meanings when used in any certificate or other document made or
delivered pursuant hereto.
(b)
(c) As used herein and in any certificate or other document made or delivered
pursuant hereto, accounting terms relating to the Company and its Subsidiaries
not defined in subsection 1.1 and accounting terms partly defined in subsection
1.1, to the extent not defined, shall have the respective meanings given to them
under GAAP.
(d)
(e) The words "hereof", "herein" and "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement, and Section, subsection, Schedule
and Exhibit references are to this Agreement unless otherwise specified.
(f)
(g) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(h)
(i) The phrases "to the knowledge of the Company" and "of which
any Subsidiary is aware" and phrases of similar import when used in this
Agreement shall mean to the actual knowledge of a Responsible Officer of the
Company or any such Subsidiary, as the case may be.
(j)
1.2 Accounting Determinations.
Unless otherwise specified herein, all accounting determinations for purposes of
calculating or determining compliance with the terms found in subsection 1.1 or
the standards and covenants found in subsection 9.1 and otherwise to be made
under this Agreement shall be made in accordance with GAAP applied on a basis
consistent in all material respects with that used in preparing the financial
statements referred to in subsection 6.1. If GAAP shall change from the basis
used in preparing such financial statements, the certificates required to be
delivered pursuant to subsection 8.1 demonstrating compliance with the covenants
contained herein shall set forth calculations setting forth the adjustments
necessary to demonstrate how the Company is in compliance with the financial
covenants based upon GAAP as in effect on the Closing Date.
1.3
1.4
2. SECTION THE COMMITTED RATE LOANS
(a) Committed Rate Loans. Subject to the terms and conditions hereof, each
Bank severally agrees to make loans on a revolving credit basis ("Committed Rate
Loans") to any Borrower from time to time during the Commitment Period;
provided, that (i) no Committed Rate Loan shall be made if, after giving effect
to the making of such Loan and the simultaneous application of the proceeds
thereof, (A) the aggregate amount of the Exposure of all the Banks would exceed
$350,000,000 (the aggregate amount of the Commitments) or (B) the aggregate
amount of the Foreign Currency Exposure would exceed $100,000,000, and (ii) no
Committed Rate Loan shall be made to any Subsidiary Borrower if, after giving
effect to the making of such Loan and the simultaneous application of the
proceeds thereof, the Company Guarantee Ratio would exceed 25%. During the
Commitment Period, the Borrowers may use the Commitments by borrowing, prepaying
the Committed Rate Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof.
(b)
(c) The Committed Rate Loans may be made in Dollars or any Available Foreign
Currency and may from time to time be (i) Committed Rate Eurocurrency Loans,
(ii) in the case of Committed Rate Loans in Dollars only, Committed Rate ABR
Loans or (iii) a combination thereof, as determined by the relevant Borrower and
set forth in the Notice of Borrowing or Notice of Conversion with respect
thereto; provided, that no Committed Rate Eurocurrency Loan shall be made after
the day that is one month prior to the Termination Date.
(d)
1.2 Procedure for Committed Rate Loan Borrowing.
Any Borrower may request the Banks to make Committed Rate Loans on any
Business Day during the Commitment Period by delivering a Notice of Borrowing.
Each borrowing of Committed Rate Loans (other than pursuant to a Swing Line
Refunding pursuant to subsection 4.4) shall be in an amount equal to (a) in the
case of ABR Loans, $1,000,000 or a whole multiple of $500,000 in excess thereof
(or, if the then aggregate undrawn amount of the Commitments is less than
$1,000,000, such lesser amount) and (b) in the case of Eurocurrency Loans,
(i) if in Dollars, $2,000,000 or increments of $500,000 thereafter, and
(ii) if in any Available Foreign Currency, an amount in such Available Foreign
Currency of which the Dollar Equivalent Amount is at least $2,000,000. Upon
receipt of any such Notice of Borrowing from a Borrower, the Administrative
Agent shall promptly notify each Bank of receipt of such Notice of Borrowing
and of such Bank's Commitment Percentage of the Committed Rate Loans to be made
pursuant thereto. Subject to the terms and conditions hereof, each Bank will
make its Commitment Percentage of each such borrowing available to the
Administrative Agent for the account of such Borrower at the Funding Office,
and at or prior to the Funding Time, for the Currency of such Loan in
funds immediately available to the Administrative Agent in the applicable
Currency. The amounts made available by each Bank will then be made available
to such Borrower at the Funding Office, in like funds as received by the
Administrative Agent.
1.3
1.4 Repayment of Committed Rate Loans; Evidence of Debt.
(a) Each Borrower hereby unconditionally promises to pay to the Administrative
Agent for the account of each Bank on the Termination Date (or such earlier date
on which the Loans become due and payable pursuant to Section 10), the then
unpaid principal amount of each Committed Rate Loan made by such Bank to such
Borrower. Each Borrower hereby further agrees to pay interest on the unpaid
principal amount of the Committed Rate Loans made to such Borrower from time to
time outstanding from the date hereof until payment in full thereof at the rates
per annum, and on the dates, set forth in subsection 2.8.
1.5
1.6 (b) Each Bank shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of each Borrower to such Bank
resulting from each Committed Rate Loan of such Bank from time to time,
including the amounts of principal and interest payable and paid to such Bank
from time to time under this Agreement.
1.7
1.8 (c) The Administrative Agent shall maintain the Register pursuant to
subsection 12.6(d), and a subaccount therein for each Bank, in which shall be
recorded (i) the amount of each Committed Rate Loan made hereunder and each
Interest Period (if any) applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from each Borrower to each
Bank under Committed Rate Loans and (iii) the amount of any sum received by the
Administrative Agent from each Borrower in respect of Committed Rate Loans, and
the amount of each Bank's share thereof.
1.9
1.10 (d) The entries made in the Register and the accounts of each Bank
maintained pursuant to subsection 2.3(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of each Borrower therein recorded; provided, however, that the
failure of any Bank or the Administrative Agent to maintain the Register or any
such account, or any error therein, shall not in any manner affect the
obligation of each Borrower to repay (with applicable interest) the Committed
Rate Loans made to such Borrower by such Bank in accordance with the terms of
this Agreement.
1.11
1.12 Termination or Reduction of Commitments.
The Company shall have the right, upon not less than five Business Days' notice
to the Administrative Agent, to terminate the Commitments or, from time to time,
to reduce the amount of the Commitments. Any such reduction shall be in an
amount equal to $5,000,000 or a whole multiple thereof and shall reduce
permanently the Commitments then in effect; provided that the Commitments may
not be optionally reduced at any time to an amount which is less than the amount
of the Exposure of all the Banks at such time; and provided further that the
Commitments may not be reduced to an amount which is less than $50,000,000
unless they are terminated in full.
1.13
1.14 Optional Prepayments.
By giving a Notice of Prepayment, any Borrower may, at any time and from time
to time, prepay the Committed Rate Loans made to such Borrower, in whole or in
part, without premium or penalty (except as provided in subsection 5.8).
Upon receipt of any such notice the Administrative Agent shall promptly notify
each Bank thereof. If any such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein, together with any
amounts payable pursuant to subsection 5.8. Partial prepayments shall be in an
aggregate principal amount of $1,000,000 or a whole multiple of $500,000 in
excess thereof or an aggregate principal Dollar Equivalent Amount of at least
$1,000,000 for Loans denominated in a Foreign Currency.
1.15
(a) Conversion and Continuation Options.
By giving a Notice of Conversion, any Borrower may elect from time to time
(i) to convert such Borrower's Eurocurrency Loans in Dollars to ABR
Loans or (ii) to convert such Borrower's ABR Loans to Eurocurrency Loans in
Dollars. Upon receipt of any Notice of Conversion the Administrative Agent
shall promptly notify each Bank thereof. All or any part of Eurocurrency Loans
outstanding in Dollars or ABR Loans may be converted as provided herein,
provided that (i) no ABR Loan may be converted into a Eurocurrency Loan when any
Event of Default has occurred and is continuing and the Administrative Agent has
or the Required Banks have determined that such a conversion is not appropriate
and (ii) no ABR Loan may be converted into a Eurocurrency Loan after the date
that is one month prior to the Termination Date.
(b)
(c) By giving a Notice of Continuation, any Borrower may continue any of such
Borrower's Eurocurrency Loans as Eurocurrency Loans in the same Currency for
additional Interest Periods.
(d)
(e) Any Borrower may convert Committed Rate Loans outstanding in Dollars or
one Available Foreign Currency to Committed Rate Loans in Dollars or a different
Currency by repaying such Loans in the first Currency and borrowing Loans of
such different Currency in accordance with the applicable provisions of this
Agreement.
(f)
(g) If any Borrower shall fail to timely give a Notice of Continuation or a
Notice of Conversion in respect of any of such Borrower's Eurocurrency Loans
with respect to which an Interest Period is expiring, such Borrower shall be
deemed to have given a Notice of Continuation for an Interest Period of one
month.
(h)
1.16 Minimum Amounts of Tranches.
All borrowings, conversions and continuations of Committed Rate Loans and all
selections of Interest Periods shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate principal
amount of the Committed Rate Loans comprising (i) each Tranche in Dollars shall
be not less than $2,000,000 and (ii) each Tranche in any Available Foreign
Currency shall be not less than the Dollar Equivalent Amount in such Currency of
$2,000,000.
1.17
(a) Interest Rates and Payment Dates for Committed Rate Loans tc " Interest
Rates and Payment Dates for Committed Rate Loans " \l 2 . Each Committed Rate
Eurocurrency Loan shall bear interest for each day during each Interest Period
with respect thereto at a rate per annum equal to the Eurocurrency Rate for such
Interest Period plus the Applicable Margin.
(b)
(c) Each Committed Rate ABR Loan shall bear interest at a rate per annum equal
to the ABR.
(d)
(e) If all or a portion of (i) the principal amount of any Committed Rate
Loan or (ii) any interest payable thereon shall not be paid when due (whether at
the stated maturity, by acceleration or otherwise), such overdue amount shall
bear interest at a rate per annum which is (x) in the case of overdue principal,
the rate that would otherwise be applicable thereto pursuant to the foregoing
provisions of this subsection plus 2% or (y) in the case of overdue interest,
the rate described in paragraph (b) of this subsection plus 2%, in each case
from the date of such non-payment until such amount is paid in full (as well
after as before judgment).
(f)
(g) Interest on Committed Rate Loans shall be payable in arrears on each
Interest Payment Date; provided, that interest accruing pursuant to paragraph
(c) of this subsection shall be payable from time to time on demand.
(h)
1.18 Inability to Determine Interest Rate.
If on or prior to the date on which the Eurocurrency Rate is determined for any
Interest Period in respect of any Eurocurrency Loan in any Currency:
1.19
(a) the Administrative Agent shall have determined (which determination shall
be conclusive absent manifest error) that, by reason of circumstances affecting
the relevant market generally, adequate and reasonable means do not exist for
ascertaining the Eurocurrency Rate for such affected Currency or such affected
Interest Period, or
(a) the Administrative Agent shall have received notice from Banks having
Commitments comprising at least 25% of the aggregate amount of the Commitments
that the Eurocurrency Rate determined or to be determined for such affected
Interest Period will not adequately and fairly reflect the cost to such Banks
(as conclusively certified by such Banks) of making or maintaining their
affected Committed Rate Loans during such affected Interest Period, the
Administrative Agent shall give telecopy or telephonic notice thereof to the
Company and the Banks as soon as practicable thereafter. If such notice is
given (x) any Eurocurrency Loans requested to be made in such affected Currency
on the first day of such affected Interest Period shall be made as ABR Loans in
Dollars in the Dollar Equivalent Amount, (y) any Committed Rate Loans that were
to have been converted on the first day of such affected Interest Period from
ABR Loans to Eurocurrency Loans shall be continued as ABR Loans and (z) any
Eurocurrency Loans in such affected Currency that were to have been continued as
such shall be converted, on the first day of such Interest Period, to ABR Loans
in Dollars in the Dollar Equivalent Amount. Until such notice has been
withdrawn by the Administrative Agent, no further Eurocurrency Loans in such
affected Currency shall be made, converted to or continued as such.
1. SECTION THE COMPETITIVE ADVANCE LOANS
(a) Competitive Advance Loans. Subject to the terms and conditions hereof, any
Borrower may, from time to time during the Commitment Period, request the Banks
to offer bids, and any Bank may, in its sole discretion, offer such bids, to
make competitive advance loans ("Competitive Advance Loans") to such Borrower on
the terms and conditions set forth in such bids. Each Competitive Advance Loan
shall bear interest at the rates, be payable on the dates, and shall mature on
the date, agreed between such Borrower and Bank at the time such Competitive
Advance Loan is made; provided, that (i) each Competitive Advance Loan shall
mature not earlier than 1 day and not later than 180 days, after the date such
Competitive Advance Loan is made and (ii) no Competitive Advance Loan shall
mature after the Termination Date. During the Commitment Period, the Borrowers
may accept bids from Banks from time to time for Competitive Advance Loans, and
borrow and repay Competitive Advance Loans, all in accordance with the terms and
conditions hereof; provided, that (i) no Competitive Advance Loan shall be made
if, after giving effect to the making of such Loan and the simultaneous
application of the proceeds thereof, (A) the aggregate amount of the Exposure of
all the Banks would exceed the aggregate amount of the Commitments or (B) the
aggregate amount of the Foreign Currency Exposure would exceed $100,000,000, and
(ii) no Competitive Advance Loan shall be made to any Subsidiary Borrower if,
after giving effect to the making of such Loan and the simultaneous application
of the proceeds thereof, the Company Guarantee Ratio would exceed 25%. Subject
to the foregoing, any Bank may, in its sole discretion, make Competitive Advance
Loans in an aggregate outstanding amount exceeding the amount of such Bank's
Commitment.
(b)
(c) The Competitive Advance Loans may be made in Dollars or any Available
Foreign Currency, as agreed between the Borrower and Bank in respect thereof at
the time such Competitive Advance Loan is made.
(d)
1.2 Procedure for Competitive Advance Loan Borrowing.
1.3
(a) Any Borrower may request Competitive Advance Loans by delivering a
Competitive Advance Loan Request. The Administrative Agent shall notify each
Bank promptly by facsimile transmission of the contents of each Competitive
Advance Loan Request received by the Administrative Agent. Each Bank may elect,
in its sole discretion, to offer irrevocably to make one or more Competitive
Advance Loans to the Borrower by delivering a Competitive Advance Loan Offer to
the Administrative Agent.
(b)
(c) Before the acceptance time set forth in the applicable Competitive Advance
Loan Request, the relevant Borrower, in its absolute discretion, shall:
(d)
(i) cancel such Competitive Advance Loan Request by giving the Administrative
Agent telephone notice to that effect, or
(1) by giving telephone notice to the Administrative Agent immediately
confirmed in writing or by facsimile transmission subject to the provisions of
subsection 3.2(c) accept one or more of the offers made by any Bank or Banks
pursuant to subsection 3.2(a) of the amount of Competitive Advance Loans for
each relevant maturity date and reject any remaining offers made by Banks
pursuant to subsection 3.2(a).
(a) The relevant Borrower's acceptance of Competitive Advance Loans in response
to any Competitive Advance Loan Request shall be subject to the following
limitations:
(b)
(i) The amount of Competitive Advance Loans accepted for each maturity date
specified by any Bank in its Competitive Advance Loan Offer shall not exceed the
maximum amount for such maturity date specified in such Competitive Advance Loan
Offer;
(ii) the aggregate amount of Competitive Advance Loans accepted for all
maturitydates specified by any Bank in its Competitive Advance Loan Offer shall
not exceed the aggregate maximum amount specified in such Competitive Advance
Loan Offer for all such maturity dates;
(iii) such Borrower may not accept offers for Competitive Advance Loans for any
maturity date in an aggregate principal amount in excess of the maximum
principal amount requested in the related Competitive Advance Loan Request; and
(iv) if such Borrower accepts any of such offers, it must accept offers based
solely upon pricing for such relevant maturity date and upon no other criteria
whatsoever and if two or more Banks submit offers for any maturity date at
identical pricing and such Borrower accepts any of such offers but does not wish
to (or by reason of the limitations set forth in this subsection 3.2(c)(iii)
cannot) borrow the total amount offered by such Banks with such identical
pricing, the Administrative Agent shall allocate offers from all of such Banks
in amounts among them pro rata according to the amounts offered by such Banks
(or as nearly pro rata as shall be practicable).
(d) If the relevant Borrower notifies the Administrative Agent that a
Competitive Advance Loan Request is cancelled, the Administrative Agent shall
give prompt telephone notice thereof to the Banks.
(e) If the relevant Borrower accepts one or more of the offers made by any
Bank or Banks, the Administrative Agent promptly shall notify each Bank which
has made such a Competitive Advance Loan Offer of (i) the aggregate amount of
such Competitive Advance Loans to be made for each maturity date and (ii) the
acceptance or rejection of any offers to make such Competitive Advance Loans
made by such Bank. Before the Funding Time for Committed Rate Loans of the
applicable Currency, each Bank whose Competitive Advance Loan Offer has been
accepted shall make available to the Administrative Agent for the account of the
relevant Borrower at the Funding Office for Committed Rate Loans of the
applicable Currency the amount of Competitive Advance Loans in the applicable
Currency to be made by such Bank, in immediately available funds.
1.1 Repayment of Competitive Advance Loans; Evidence of Debt tc " Repayment
of Competitive Advance Loans; Evidence of Debt " \l 2 . (a) Each Borrower that
borrows any Competitive Advance Loan hereby unconditionally promises to pay to
the Bank that made such Competitive Advance Loan on the maturity date, as agreed
by such Borrower and Bank (or such earlier date on which all the Loans become
due and payable pursuant to Section 10), the then unpaid principal amount of
such Competitive Advance Loan. Each Borrower hereby further agrees to pay
interest on the unpaid principal amount of the Competitive Advance Loans made by
any Bank to such Borrower from time to time outstanding from the date thereof
until payment in full thereof at the rate per annum, and on the dates, agreed by
such Borrower and Bank at the time such Competitive Advance Loan is made. All
payments in respect of Competitive Advance Loans shall be made by such Borrower
to the Administrative Agent for the account of the Bank that makes such
Competitive Advance Loan to the Payment Office and by the Payment Time specified
for Committed Rate Loans in the applicable Currency.
1.2
1.3 (b) Each Bank shall maintain in accordance with its usual practice an
account or accounts evidencing indebtedness of each Borrower to such Bank
resulting from each Competitive Advance Loan of such Bank from time to time,
including the amounts of principal and interest payable and paid to such Bank
from time to time in respect of Competitive Advance Loans. The entries made in
the accounts of each Bank maintained pursuant to this subsection 3.3(b) shall,
to the extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of each Borrower therein recorded,
absent manifest error; provided, however, that the failure of any Bank to
maintain any such account, or any error therein, shall not in any manner affect
the obligation of each Borrower to repay (with applicable interest) the
Competitive Advance Loans made to such Borrower by such Bank in accordance with
the terms of this Agreement.
1.4
1.5 Prepayments. Unless otherwise agreed by the
Bank making a Competitive Advance Loan, upon giving a Notice of Prepayment at
the address and time specified for Committed Rate Loans in the applicable
Currency such Competitive Advance Loan may be optionally prepaid prior to the
scheduled maturity date thereof.
1.6
1.7
2. SECTION THE SWING LINE LOANS
1.1 Swing Line Loans. Subject to the terms and conditions hereof, each
Borrower may borrow from such Borrower's Swing Line Bank swing line loans
("Swing Line Loans") from time to time during the Commitment Period in a Swing
Line Currency of such Borrower; provided, that (i) no Swing Line Loan shall be
made if, after giving effect to the making of such Loan and the simultaneous
application of the proceeds thereof, (A) the aggregate amount of the Exposure of
all the Banks would exceed the aggregate amount of the Commitments, (B) the
aggregate amount of the Foreign Currency Exposure would exceed $100,000,000, or
(C) the aggregate Dollar Equivalent Amount of all outstanding Swing Line Loans
of such Borrower would exceed the Swing Line Limit for such Borrower or the
Dollar Equivalent Amount of all outstanding Swing Line Loans would exceed the
Swing Line Limit, and (ii) no Swing Line Loan shall be made to any Subsidiary
Borrower if, after giving effect to the making of such Loan and the simultaneous
application of the proceeds thereof, the Company Guarantee Ratio would exceed
25%. During the Commitment Period, the Borrowers may borrow and prepay the
Swing Line Loans, in whole or in part, all in accordance with the terms and
conditions hereof.
1.1 Procedure for Swing Line Borrowing tc " Procedure for Swing Line
Borrowing " \l 2 . (a) Any Borrower may borrow Swing Line Loans during the
Commitment Period on any Business Day by giving a Notice of Swing Line Borrowing
in respect of such Swing Line Loan. Subject to the terms and conditions hereof,
on the Borrowing Date of each Swing Line Loan, the relevant Swing Line Bank
shall make the proceeds thereof available to the relevant Borrower in
immediately available funds in the applicable Currency in the manner from time
to time agreed by such Borrower and such Swing Line Bank.
1.2
1.3 (b) Upon request of the Administrative Agent and on the last Business Day
of each month on which a Swing Line Bank has any outstanding Swing Line Loans,
such Bank shall deliver to the Administrative Agent a Notice of Swing Line
Outstandings. The Administrative Agent will, at the request of any Swing Line
Bank, advise such Swing Line Bank of the Exchange Rate used by the
Administrative Agent in calculating the Dollar Equivalent Amount of Swing Line
Loans of such Swing Line Bank on any date.
1.4
1.5 Repayment of Swing Line Loans; Evidence of Debt.
(a) Each Borrower hereby unconditionally promises to pay to its Swing Line Bank
on the Termination Date (or such earlier date on which such Swing Line Loans
become due and payable pursuant to subsection 4.4 or on which all the Loans
become due and payable pursuant to Section 10), the then unpaid principal amount
of all Swing Line Loans made to such Borrower. Each Borrower hereby further
agrees to pay interest on the unpaid principal amount of all Swing Line Loans
made to such Borrower from time to time outstanding from the date thereof until
payment in full thereof at the Swing Line Rate for the Currency of such Swing
Line Loan, payable on the last Business Day of each calendar month on which such
Swing Line Loans are outstanding. All payments in respect of Swing Line Loans
shall be made by such Borrower to its Swing Line Bank at the address set forth
in Schedule III for such Swing Line Bank and Swing Line Loans in such Currency.
1.6
1.7 (b) Each Swing Line Bank shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of each Borrower to such
Swing Line Bank resulting from each Swing Line Loan of such Bank from time to
time, including the amounts of principal and interest payable and paid to such
Swing Line Bank from time to time under this Agreement. The entries made in the
accounts of each Swing Line Bank maintained pursuant to this subsection 4.3(b)
shall, to the extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of each Borrower therein recorded;
provided, however, that the failure of any Swing Line Bank to maintain any such
account, or any error therein, shall not in any manner affect the obligation of
each Borrower to repay (with applicable interest) the Swing Line Loans made to
such Borrower by such Swing Line Bank in accordance with the terms of this
Agreement.
1.8
(a) Allocating Swing Line Loans; Swing Line Loan Participations. If any
Event of Default shall occur and be continuing, any Swing Line Bank may, in its
sole and absolute discretion, direct that the Swing Line Loans owing to it be
refunded, by delivering a Notice of Swing Line Refunding. Upon receipt of a
Notice of Swing Line Refunding the Administrative Agent shall promptly give
notice of the contents thereof to the Banks and, unless an Event of Default
described in Section 10(h) in respect of the Company or the relevant Borrower
has occurred, to the Company and the relevant Borrower. Each such Notice of
Swing Line Refunding shall be deemed to constitute delivery by such Borrower of
a Notice of Borrowing of Committed Rate Eurocurrency Loans in the amount and
Currency of the Swing Line Loans to which it relates, for an Interest Period of
one month's duration. Subject to the terms and conditions hereof, each Bank
(including each Swing Line Bank in its capacity as a Bank having a Commitment)
hereby agrees to make a Committed Rate Loan to such Borrower pursuant to Section
2 in an amount equal to such Bank's Borrowing Percentage of the aggregate amount
of the Swing Line Loans to which such Notice of Swing Line Refunding relates.
Unless any of the events described in Section 10(h) in respect of the Company or
such Borrower shall have occurred (in which case the procedures of subsection
4.4(b) shall apply), each Bank shall make the amount of such Committed Rate Loan
available to the Administrative Agent at the Funding Office, and at or prior to
the Funding Time, for the Currency of such Loan in funds immediately available
to the Administrative Agent. The proceeds of such Committed Rate Loans shall be
immediately made available to such Swing Line Bank by the Administrative Agent
and applied by such Swing Line Bank to repay the Swing Line Loans to which such
Notice of Swing Line Refunding related.
(b)
(c) If prior to the time a Committed Rate Loan would have otherwise been made
pursuant to subsection 4.4(a), one of the events described in Section 10(h)
shall have occurred in respect of the Company or the relevant Borrower, each
Bank (other than the relevant Swing Line Bank) shall, on the date such Committed
Rate Loan would have been made pursuant to the Notice of Swing Line Refunding
referred to in subsection 4.4(a) (the "Refunding Date"), purchase an undivided
participating interest in the outstanding Swing Line Loans to which such Notice
of Swing Line Refunding related, in an amount equal to (i) such Bank's
Commitment Percentage times (ii) the aggregate principal amount of such Swing
Line Loans then outstanding which were to have been repaid with Committed Rate
Loans (the "Swing Line Participation Amount"). On the Refunding Date, (x) each
Bank shall transfer to such Swing Line Bank, in immediately available funds,
such Bank's Swing Line Participation Amount, and upon receipt thereof such Swing
Line Bank shall, if requested by any Bank, deliver to such Bank a participation
certificate dated the date of such Swing Line Bank's receipt of such funds and
evidencing such Bank's ownership of its Swing Line Participation Amount and (y)
the interest rate on the applicable Swing Line Loan will automatically be
converted to the applicable Eurocurrency Rate with an Interest Period of one
month plus the Applicable Margin. If any amount required to be paid by any Bank
to any Swing Line Bank pursuant to this subsection 4.4 in respect of any Swing
Line Participation Amount is not paid to such Swing Line Bank on the date such
payment is due from such Bank, such Bank shall pay to such Swing Line Bank on
demand an amount equal to the product of (i) such amount, times (ii) (A) in the
case of any such payment obligation denominated in Dollars, the daily average
Federal funds rate, as quoted by such Swing Line Bank, or (B) in the case of any
such payment obligation denominated in an Available Foreign Currency, the rate
customary in such Currency for settlement of similar inter-bank obligations, as
quoted by such Swing Line Bank, in each case during the period from and
including the date such payment is required to the date on which such payment is
immediately available to the Swing Line Bank, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. A certificate of a Swing Line Bank submitted to
any Bank with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error.
(d)
(e) Whenever, at any time after any Swing Line Bank has received from any Bank
such Bank's Swing Line Participation Amount, such Swing Line Bank receives any
payment on account of the related Swing Line Loans, such Swing Line Bank will
distribute to such Bank its Commitment Percentage of such payment on account of
its Swing Line Participation Amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Bank's
participating interest was outstanding and funded); provided, however, that in
the event that such payment received by such Swing Line Bank is required to be
returned, such Bank will return to such Swing Line Bank any portion thereof
previously distributed to it by such Swing Line Bank.
(f)
(g) Each Bank's obligation to make Committed Rate Loans pursuant to subsection
4.4(a) and to purchase participating interests pursuant to subsection 4.4(b)
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any set-off, counterclaim,
recoupment, defense or other right which such Bank may have against any other
Bank or any Borrower, or any Borrower may have against any Bank or any other
Person, as the case may be, for any reason whatsoever; (ii) the occurrence or
continuance of a Default or an Event of Default; (iii) any adverse change in the
condition (financial or otherwise) of the Company or any of its Subsidiaries;
(iv) any breach of this Agreement by any party hereto; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
(h)
2. SECTION CERTAIN PROVISIONS APPLICABLE TO THE LOANS
1.1 Facility Fee; Utilization Fee; Other Fees. (a) The Company agrees to pay
to the Administrative Agent for the account of each Bank a facility fee for the
period from and including the Closing Date to, but excluding, the Termination
Date, computed at the Facility Fee Rate in effect from time to time on the
average daily amount of the Commitment (used and unused) of such Bank during the
period for which payment is made, payable quarterly in arrears on the last day
of each March, June, September and December and on the Termination Date or such
earlier date on which the Commitments shall terminate as provided herein,
commencing on the first of such dates to occur after the date hereof.
(b) The Company will pay to the Administrative Agent for the amount of
each Bank a utilization fee on such Bank's Commitment Percentage of the
aggregate outstanding principal amount of Committed Rate Loans and Swing Line
Loans ("Aggregate Committed Outstandings") calculated at the rate of (a) 0.10%
on the Aggregate Committed Outstandings equal to or exceeding 33-1/3%, but less
than 66-2/3%, of the aggregate Commitments and (b).25% on the Aggregate
Committed Outstandings equal to or exceeding 66-2/3% of the aggregate
Commitments.
(c) The Company agrees to pay to the Administrative Agent, for its own
account and for the account of the Arranger, the fees in the amounts and on the
dates agreed to by such parties in writing prior to the date of this Agreement.
(a) Computation of Interest and Fees. Facility fees and, whenever it is
calculated on the basis of the Prime Rate, interest shall be calculated on the
basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed; and, otherwise, interest shall be calculated on the basis of a 360-day
year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the relevant Borrower and the Banks of each determination of
a Eurocurrency Rate. Any change in the ABR due to a change in the Prime Rate,
the Base CD Rate or the Federal Funds Effective Rate shall be effective as of
the opening of business on the effective day of such change in the Prime Rate,
the Base CD Rate or the Federal Funds Effective Rate, respectively. The
Administrative Agent shall as soon as practicable notify the relevant Borrower
and the Banks of the effective date and the amount of each such change in
interest rate.
(b)
(c) Each determination of an interest rate by the Administrative Agent pursuant
to any provision of this Agreement shall be conclusive and binding on the
Borrowers and the Banks in the absence of manifest error.
(d)
(e) Pro Rata Treatment and Payments. Each payment by the Company on account
of any facility fee or utilization fee hereunder and any reduction of the
Commitments of the Banks shall be made pro rata according to the respective
Commitment Percentages of the Banks. Each disbursement of Committed Rate Loans
shall be made by the Banks pro rata according to the respective Commitment
Percentages of the Banks. Each payment (including each prepayment) by any
Borrower on account of principal of and interest on any Loans shall be made pro
rata according to the respective principal amounts of the Loans of such Borrower
then due and owing to the Banks. All payments (including prepayments) to be
made by any Borrower hereunder, whether on account of principal, interest, fees
or otherwise, shall be made without set off or counterclaim. All payments in
respect of Loans in any Currency shall be made in such Currency and in
immediately available funds at the Payment Office, and at or prior to the
Payment Time, for such Type of Loans and such Currency, on the due date thereof.
The Administrative Agent shall distribute to the Banks any payments received by
the Administrative Agent promptly upon receipt in like funds as received. If
any payment hereunder becomes due and payable on a day other than a Business
Day, such payment shall be extended to the next succeeding Business Day, and,
with respect to payments of principal, interest thereon shall be payable at the
then applicable rate during such extension.
(f)
(g) Unless the Administrative Agent shall have been notified in writing by any
Bank prior to a Borrowing Date in respect of Committed Rate Loans that such Bank
will not make the amount that would constitute its Commitment Percentage of such
borrowing available to the Administrative Agent, the Administrative Agent may
assume that such Bank is making such amount available to the Administrative
Agent, and the Administrative Agent may, in reliance upon such assumption, make
available to the relevant Borrower a corresponding amount. If such amount is
not made available to the Administrative Agent by the required time on the
Borrowing Date therefor, such Bank shall pay to the Administrative Agent, on
demand, such amount with interest thereon at a rate equal to (A) in the case of
any such Committed Rate Loans denominated in Dollars, the daily average Federal
funds rate, as quoted by the Administrative Agent, or (B) in the case of any
Committed Rate Loans denominated in an Available Foreign Currency, the rate
customary in such Currency for settlement of similar inter-bank obligations, as
quoted by the Administrative Agent, in each case for the period until such Bank
makes such amount immediately available to the Administrative Agent. A
certificate of the Administrative Agent submitted to any Bank with respect to
any amounts owing under this subsection shall be conclusive in the absence of
manifest error. If such Bank's Commitment Percentage of such borrowing is not
made available to the Administrative Agent by such Bank within three Business
Days of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
Swing Line Loans in such Currency hereunder, on demand, from the relevant
Borrower.
(h)
1.2 Illegality. Notwithstanding any other provision herein, if the adoption of
or any change in any Requirement of Law or in the interpretation thereof by any
Governmental Authority charged with the administration or interpretation thereof
shall make it unlawful for any Bank to make or maintain Eurocurrency Loans to
one or more Borrowers contemplated by this Agreement, the commitment of such
Bank hereunder to make Eurocurrency Loans, continue Eurocurrency Loans as such
and convert Loans to Eurocurrency Loans to such Borrowers shall forthwith be
cancelled to the extent necessary to remedy or prevent such illegality. Nothing
in this subsection 5.4 shall affect the obligation of the Banks to make and
maintain ABR Loans to the Company and, to the extent not unlawful, to Subsidiary
Borrowers, notwithstanding that a Requirement of Law may make it unlawful to
make and maintain Eurocurrency Loans to such Borrowers.
1.3
(a) Requirements of Law. If the adoption of or any change in any Requirement of
Law (other than the Certificate of Incorporation and By-Laws or other
organizational or governing documents of the Banks) or in the interpretation or
application thereof or compliance by any Bank with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority made subsequent to the date hereof:
(b)
(i) shall subject any Bank or any corporation controlling such Bank or from
which such Bank obtains funding or credit to any tax of any kind whatsoever with
respect to this Agreement, or any Eurocurrency Loan made by it, or change the
basis of taxation of payments to such Bank or such corporation in respect
thereof (except for Non-Excluded Taxes covered by subsection 5.6 (including
taxes excluded under the first sentence of subsection 5.6(a)) and changes in the
rate of tax on the overall net income of such Bank or such corporation);
(i) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by, deposits
or other liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of funds by, any office of
such Bank or any corporation controlling such Bank or from which such Bank
obtains funding or credit which is not otherwise included in the determination
of the Eurocurrency Rate hereunder; or
(i) shall impose on such Bank or any corporation controlling such Bank or from
which such Bank obtains funding or credit any other condition; and the result of
any of the foregoing is to increase the cost to such Bank or such corporation,
by an amount which such Bank or such corporation deems to be material, of
making, converting into, continuing or maintaining Eurocurrency Loans or to
reduce any amount receivable hereunder in respect thereof, then, in any such
case, the Company shall promptly pay such Bank, within five Business Days after
its demand, any additional amounts necessary to compensate such Bank for such
increased cost or reduced amount receivable, together with interest on each such
amount from the date due until payment in full at a rate per annum equal to the
ABR plus 2%. If any Bank becomes entitled to claim any additional amounts
pursuant to this subsection, it shall promptly notify the Company, through the
Administrative Agent, of the event by reason of which it has become so entitled.
A certificate as to any additional amounts payable pursuant to this subsection
submitted by such Bank, through the Administrative Agent, to the Company shall
be conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of Loans and all other amounts
payable hereunder.
(a) If any Bank shall have determined that the adoption of or any change in any
Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by such Bank or any corporation controlling
such Bank or from which such Bank obtains funding or credit with any request or
directive regarding capital adequacy (whether or not having the force of law)
from any Governmental Authority made subsequent to the date hereof does or shall
have the effect of reducing the rate of return on such Bank's or such
corporation's capital as a consequence of its obligations hereunder to a level
below that which such Bank or such corporation could have achieved but for such
change or compliance (taking into consideration such Bank's or such
corporation's policies with respect to capital adequacy) by an amount deemed by
such Bank to be material, then from time to time, after submission by such Bank
to the Company (with a copy to the Administrative Agent) of a written request
therefor (which written request shall be conclusive in the absence of manifest
error), the Company shall pay to such Bank such additional amount or amounts as
will compensate such Bank for such reduction.
(b)
(c) In addition to, and without duplication of, amounts which may become
payable from time to time pursuant to paragraphs (a) and (b) of this subsection
5.5, each Borrower agrees to pay to each Bank which requests compensation under
this paragraph (c) by notice to such Borrower, on the last day of each Interest
Period with respect to any Committed Rate Eurocurrency Loan made by such Bank to
such Borrower, at any time when such Bank shall be required to maintain reserves
against "Eurocurrency liabilities" under Regulation D of the Board (or, at any
time when such Bank may be required by the Board or by any other Governmental
Authority, whether within the United States or in another relevant jurisdiction,
to maintain reserves against any other category of liabilities which includes
deposits by reference to which the Eurocurrency Rate is determined as provided
in this Agreement or against any category of extensions of credit or other
assets of such Bank which includes any such Committed Rate Eurocurrency Loans),
an additional amount (determined by such Bank's calculation or, if an accurate
calculation is impracticable, reasonable estimate using such reasonable means of
allocation as such Bank shall determine) equal to the actual costs, if any,
incurred by such Bank during such Interest Period as a result of the
applicability of the foregoing reserves to such Committed Rate Eurocurrency
Loans.
(d)
(e) A certificate of each Bank or Swing Line Bank setting forth such amount or
amounts as shall be necessary to compensate such Bank or Swing Line Bank as
specified in paragraph (a), (b) or (c) above, as the case may be, and setting
forth in reasonable detail an explanation of the basis of requesting such
compensation in accordance with paragraph (a) or (b) above, including
calculations in detail comparable to the detail set forth in certificates
delivered to such Bank in similar circumstances under comparable provisions of
other comparable credit agreements, shall be delivered to the relevant Borrower
and shall be conclusive absent manifest error. The relevant Borrower shall pay
each Bank or Swing Line Bank the amount shown as due on any such certificate
delivered to it within 10 days after its receipt of the same.
(f)
(g) The agreements in this subsection shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
(h)
(i) Taxes. All payments made by any Borrower under this Agreement shall be
made free and clear of, and without deduction or withholding for or on account
of, any present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding, in the
case of the Administrative Agent and each Bank, (i) net income taxes, capital
taxes, doing business taxes and franchise taxes imposed on the Administrative
Agent or such Bank (including, without limitation, each Bank in its capacity as
a Swing Line Bank), as the case may be, as a result of a present or former
connection between the jurisdiction of the government or taxing authority
imposing such tax and the Administrative Agent or such Bank (excluding a
connection arising solely from the Administrative Agent or such Bank having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement) or any political subdivision or taxing authority
thereof or therein, (ii) taxes required to be withheld because of a failure to
deliver any certificate described in this subsection 5.6 or subsection 12.6 for
any reason and (iii) any and all withholding taxes payable with respect to
payments under this Agreement other than any such
withholding taxes imposed as a result of any change in or amendment to the laws
of any jurisdiction affecting taxation (including any regulation or ruling
proposed or promulgated by a taxing authority thereof and any treaty provisions)
or any change in the official application, enforcement or interpretation of such
laws, regulations, rulings or treaties or any other action taken by a taxing
authority or a court of competent jurisdiction, which change, amendment,
application, enforcement, interpretation or action becomes effective after the
date hereof (all such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions and withholdings being hereinafter called "Non-Excluded
Taxes"). If any Non-Excluded Taxes are required to be withheld from any amounts
payable to the Administrative Agent or any Bank hereunder, the amounts so
payable to the Administrative Agent or such Bank shall be increased to the
extent necessary to yield to the Administrative Agent or such Bank (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement. Whenever
any Non-Excluded Taxes are payable by any Borrower, as promptly as possible
thereafter such Borrower shall send to the Administrative Agent for its own
account or for the account of such Bank, as the case may be, a certified copy of
an original official receipt received by such Borrower showing payment thereof.
If such Borrower fails to pay any Non-Excluded Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent the required
receipts or other required documentary evidence, such Borrower shall indemnify
the Administrative Agent and such Bank for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or such Bank as a
result of any such failure. The agreements in this subsection 5.6(a) shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
(j)
(i) Each Bank (including each Assignee) that is not incorporated
under the laws of the United States of America or a state thereof agrees that it
will deliver to the Company and the Administrative Agent concurrently with the
delivery of this Agreement (or, in the case of any Assignee, concurrently with
the delivery of an Assignment and Acceptance) two duly completed copies of (x)
United States Internal Revenue Service Form 1001 or 4224 or successor applicable
form, as the case may be, and (y) an Internal Revenue Service Form W-8 or W-9 or
successor applicable form, as the case may be. Each such Bank also agrees to
deliver to the Company and the Administrative Agent two further copies of the
said Form 1001 or 4224 and Form W-8 or W-9, or successor applicable forms or
other manner of certification, as the case may be, on or before the date that
any such form expires or becomes obsolete or after the occurrence of any event
(including, without limitation, a change in such Bank's lending office)
requiring a change in the most recent form previously delivered by it to the
Company and the Administrative Agent, and such extensions or renewals thereof as
may reasonably be requested by the Company or the Administrative Agent, unless
in any such case an event (including, without limitation, any change in treaty,
law or regulation) has occurred prior to the date on which any such delivery
would otherwise be required which renders all such forms inapplicable or which
would prevent such Bank from duly completing and delivering any such form with
respect to it and such Bank so advises the Company and the Administrative Agent.
Such Bank shall certify (x) in the case of a Form 1001 or 4224, that it is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes and (y) in the case of a
Form W-8 or W-9, that it is entitled to an exemption from United States backup
withholding tax.
(ii)
(iii) Upon the written request of any Borrower, each Bank promptly will provide
to such Borrower and to the Administrative Agent, or file with the relevant
taxing authority (with a copy to the Administrative Agent) such form,
certification or similar documentation (each duly completed, accurate and
signed) as is required by the relevant jurisdiction in order to obtain an
exemption from, or reduced rate of Non-Excluded Taxes to which such Bank or the
Administrative Agent is entitled pursuant to an applicable tax treaty or the law
of the relevant jurisdiction; provided, however, such Bank will not be required
to (x) disclose information which in its reasonable judgment it deems
confidential or proprietary or (y) incur a cost if such cost would, in its
reasonable judgment, be substantial in comparison to the cost of the Borrower
under this subsection 5.6 of such Bank's failure to provide such form,
certification or similar documentation. Such Bank shall certify in the case of
any such form, certification or similar documentation so provided (to the extent
it may accurately and properly do so) that it is entitled to receive payments
under this Agreement without deduction or withholding, or at a reduced rate of
deduction or withholding of Non-Excluded Taxes.
(i) A Bank shall be required to furnish a form under this paragraph (b) only if
it is entitled to claim an exemption from or a reduced rate of withholding under
applicable law. A Bank that is not entitled to claim an exemption from or a
reduced rate of withholding under applicable law, promptly upon written request
of the applicable Borrower, shall inform the applicable Borrower in writing.
(a) If any Bank is, in its sole opinion, able to apply for any tax credit, tax
deduction or other reduction in tax (a "Tax Benefit") by reason of any increased
amount paid by the Company under this subsection 5.6, such Bank will use
reasonable efforts to obtain such Tax Benefit and, upon receipt thereof will pay
to the Company such amount, not exceeding the increased amount paid by the
Company, as it considers, in its sole opinion, to be equal to the net after-tax
value to such Bank of the Tax Benefit or such part thereof allocable to such
withholding or deduction, having regard to all of such Bank's dealings giving
rise to similar credits and to the cost of obtaining the same, less any and all
expenses incurred by such Bank in obtaining such Tax Benefit (including any and
all professional fees incurred therewith); provided, however, that (i) no Bank
shall be obligated by this subsection 5.6 to disclose to the Company any
information regarding its tax affairs or computations, (ii) nothing in this
subsection 5.6 shall interfere with the right of each Bank to arrange its tax
affairs as it deems appropriate and (iii) nothing in this subsection 5.6 shall
impose an obligation on a Bank to obtain any Tax Benefit if, in such Bank's sole
opinion, to do so would (x) impose undue hardships, burdens or expenditures on
such Bank or (y) increase such Bank's exposure to taxation by the jurisdiction
in question.
(b)
1.2 Company's Options upon Claims for Increased Costs and Taxes. In the event
that any Affected Bank shall decline to make Eurocurrency Loans pursuant to
subsection 5.4 or shall have notified the Company that it is entitled to claim
compensation pursuant to subsection 5.5 or 5.6, the Company may exercise any one
or both of the following options:
1.3
(a) The Company may request one or more of the Banks which are not Affected
Banks to take over all (but not part) of any Affected Banks's then outstanding
Loans and to assume all (but not part) of any Affected Bank's Commitments, if
any. If one or more Banks shall so agree in writing (collectively, the
"Assenting Banks"; individually, an "Assenting Bank") with respect to an
Affected Bank, (i) the Commitments, if any, of each Assenting Bank and the
obligations of such Assenting Bank under this Agreement shall be increased by
its respective Allocable Share of the Commitments, if any, and of the
obligations of such Affected Bank under this Agreement and (ii) each Assenting
Bank shall make Loans to the Company, according to such Assenting Bank's
respective Allocable Share, in an aggregate principal amount equal to the
outstanding principal amount of the Loans and of such Affected Bank, on a date
mutually acceptable to the Assenting Banks, such Affected Bank and the Company.
The proceeds of such Loans, together with funds of the Company, shall be used to
prepay the Loans, together with all interest accrued thereon and all other
amounts owing to such Affected Bank hereunder (including any amounts payable
pursuant to subsection 5.8 in connection with such prepayment), and, upon such
assumption by the Assenting Bank and prepayment by the Company, such Affected
Bank shall cease to be a "Bank" for purposes of this Agreement and shall no
longer have any obligations or rights hereunder (other than any obligations or
rights which according to this Agreement shall survive the termination of this
Agreement).
(a) The Company may designate a replacement bank (a "Replacement Bank") to
assume the Commitments, if any, and the obligations of any such Affected Bank
hereunder, and to purchase the outstanding Loans of such Affected Bank and such
Affected Bank's rights hereunder and with respect thereto, without recourse
upon, or warranty by, or expense to, such Affected Bank (unless such Affected
Bank agrees otherwise), for a purchase price equal to the outstanding principal
amount of the Loans of such Affected Bank plus (i) all interest accrued and
unpaid thereon and all other amounts owing to such Affected Bank hereunder and
(ii) any amount which would be payable to such Affected Bank pursuant to
subsection 5.8, and upon such assumption and purchase by the Replacement Bank,
such Replacement Bank shall be deemed to be a "Bank" for purposes of this
Agreement and such Affected Bank shall cease to be a "Bank" for purposes of this
Agreement and shall no longer have any obligations or rights hereunder (other
than any obligations or rights which according to this Agreement shall survive
the termination of this Agreement).
1.1 Indemnity. Each Borrower agrees to indemnify each Bank and to hold each
Bank harmless from any loss or expense (but excluding any lost profits) which
such Bank may sustain or incur as a consequence of (a) default by such Borrower
in payment when due of the principal amount of or interest on any Eurocurrency
Loan, (b) default by such Borrower in making a borrowing of, conversion into or
continuation of Eurocurrency Loans after such Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (c)
default by such Borrower in making any prepayment of Eurocurrency Loans after
such Borrower has given a notice thereof in accordance with the provisions of
this Agreement, (d) the making of a prepayment or conversion of Eurocurrency
Loans on a day which is not the last day of an Interest Period with respect
thereto or (e) the prepayment of any Competitive Advance Loan, including,
without limitation, in each case, any such loss or expense arising from the
reemployment or repayment of funds obtained by such Bank or from fees payable to
terminate the deposits from which such funds were obtained. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
1.2
1.3 Determinations. In making the determinations contemplated by subsection
5.5, 5.6 and 5.8, each Bank may make such estimates, assumptions, allocations
and the like that such Bank in good faith determines to be appropriate. Upon
request of the Company, each Bank shall furnish to the Company, at any time
after demand for payment of an amount under subsection 5.5(a) or 5.8, a
certificate outlining in reasonable detail the computation of any amounts owing.
Any certificate furnished by a Bank shall be binding and conclusive in the
absence of manifest error.
1.4
1.5 Change of Lending Office. If an event occurs with respect to any Bank that
makes operable the provisions of subsection 5.4 or entitles such Bank to make a
claim under subsection 5.5 or 5.6, such Bank shall, if requested in writing by
the Company, to the extent not inconsistent with such Bank's internal policies,
use reasonable efforts to (a) designate another office or offices for the making
and maintaining of its Loans or (b) obtain a different source of funds or
credit, as the case may be, the designation or obtaining of which will eliminate
such operability or reduce materially the amount such Bank is so entitled to
claim, provided that such designation or obtaining would not, in the sole
discretion of such Bank, result in such Bank incurring any costs unless the
Company has agreed to reimburse such Bank therefor.
1.6
1.7 Company Controls on Exposure; Calculation of Exposure; Prepayment if
Exposure exceeds Commitments. The Company will implement and maintain internal
accounting controls to monitor the borrowings and repayments of Loans by the
Borrowers, with the object of preventing any request for any Loan that would
result in (i) the Exposure of the Banks being in excess of the Commitments, (ii)
the Foreign Currency Exposure exceeding $100,000,000 or (iii) the Company
Guarantee Ratio exceeding 25%, and of promptly identifying and remedying any
circumstance where, by reason of changes in exchange rates, (i) the aggregate
amount of the Exposure exceeds the Commitments, (ii) the amount of the Foreign
Currency Exposure exceeds $100,000,000 or (iii) the Company Guarantee Ratio
exceeds 25%. In the event that at any time the Company determines that (i) the
aggregate amount of the Exposure of the Banks exceeds the aggregate amount of
the Commitments by more than 5%, (ii) the amount of the Foreign Currency
Exposure exceeds $100,000,000 or (iii) the Company Guarantee Ratio exceeds 25%,
the Company will, as soon as practicable but in any event within five Business
Days of making such determination, make or cause to be made such repayments or
prepayments of Loans as shall be necessary to cause (i) the aggregate amount of
the Exposure of the Banks to no longer exceed the Commitments, (ii) the amount
of the Foreign Currency Exposure not to exceed $100,000,000 and (iii) the
Company Guarantee Ratio not to exceed 25%.
(a) The Administrative Agent will calculate the aggregate amount of the
Exposure of the Banks from time to time, and in any event not less frequently
than once during each calendar month. In making such calculations, the
Administrative Agent will rely on the information most recently received by it
from the Swing Line Banks in respect of outstanding Swing Line Loans, and from
Banks in respect of outstanding Competitive Advance Loans. Upon making each
such calculation, the Administrative Agent will inform the Company and the Banks
of the results thereof.
(b)
(c) In the event that on any date the Administrative Agent calculates that (i)
the aggregate amount of the Exposure of the Banks exceeds the aggregate amount
of the Commitments by more than 5%, (ii) the Foreign Currency Exposure exceeds
$100,000,000 or (iii) the Company Guarantee Ratio exceeds 25%, the
Administrative Agent will give notice to such effect to the Company. Within
five Business Days after receipt of any such notice, the Company will, as soon
as practicable but in any event within five Business Days of receipt of such
notice, make or cause to be made such repayments or prepayments of Loans as
shall be necessary to cause (i) the aggregate amount of the Exposure of the
Banks to no longer exceed the Commitments, (ii) the Foreign Currency Exposure
not to exceed $100,000,000 and (iii) the Company Guarantee Ratio not to exceed
25%.
(d)
(e) If at any time the Committed Exposure of any Bank exceeds such Bank's
Commitment, upon demand of such Bank, the Company will within one Business Day
prepay Loans in such amounts that after giving effect to such prepayment the
Committed Exposure of such Bank does not exceed its Commitment.
(f)
(g) Any prepayment required to be made pursuant to this subsection 5.11 shall
be accompanied by payment of amounts payable, if any, pursuant to subsection 5.8
in respect of the amount so prepaid.
2. SECTION REPRESENTATIONS AND WARRANTIES
To induce the Agents, the Administrative Agent and the Banks to enter into
this Agreement and to make the Loans, the Company and each Subsidiary Borrower
(in so far as the representations and warranties by such Subsidiary Borrower
relate to it) hereby represents and warrants to each Agent, the Administrative
Agent and each Bank that:
1.1 Financial Condition. The audited consolidated balance sheets of the
Company and its consolidated Subsidiaries as at December 31, 1997 and the
related consolidated statements of income and of cash flows for the fiscal year
ended on such date, reported on by Ernst & Young LLP, copies of which have
heretofore been furnished to each Bank or will be furnished to each Bank that
has not already received such copies, present fairly the consolidated financial
condition of the Company and its consolidated Subsidiaries as at such date, and
the consolidated results of their operations and their consolidated cash flows
for the fiscal year then ended. The unaudited consolidating balance sheet of
the Company and its consolidated Subsidiaries by principal operating group as at
September 30, 1998, the related unaudited consolidating statement of operations
and retained earnings for the portion of the fiscal year ended on September 30,
1998, and the press release of the Company with respect to its earnings for
fiscal year ended December 31, 1998 (dated February 24, 1999), certified by a
Responsible Officer, copies of which have heretofore been furnished to each Bank
or will be furnished to each Bank that has not already received such copies,
present fairly the consolidating financial condition of the Company and its
consolidated Subsidiaries by principal operating group as at such date, and the
consolidating results of their operations for the fiscal year then ended. All
such financial statements, including the related schedules and notes thereto,
have been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by such accountants or Responsible Officer,
as the case may be, and as disclosed therein). Neither the Company nor any of
its consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material Guarantee Obligation, contingent liability or
liability for taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any interest rate or foreign currency
swap or exchange transaction, which is not reflected in the foregoing statements
or referred to in the notes thereto. During the period from September 30, 1998
to and including the date hereof there has been no sale, transfer or other
disposition by the Company or any of its consolidated Subsidiaries of any
material part of its business or property and no purchase or other acquisition
of any business or property (including any Capital Stock of any other Person)
material in relation to the consolidated financial condition of the Company and
its consolidated Subsidiaries at September 30, 1998 (except as otherwise
disclosed in writing to the Banks prior to the Closing Date).
1.1 No Change. Since December 31, 1997 there has been no development or event
which has had or could reasonably be expected to have a Material Adverse Effect.
1.2
1.3 Corporate Existence; Compliance with Law. Each of the Company and its
Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has the corporate or other
power and authority, and the legal right, to own and operate its property, to
lease the property it operates as lessee and to conduct the business in which it
is currently engaged, (c) is duly qualified as a foreign corporation or other
entity and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification, except where the failure to be duly qualified or in
good standing could not reasonably be expected to have a Material Adverse
Effect, and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
1.4
1.5 Corporate Power; Authorization; Enforceable Obligations. The Company and
each of its Subsidiaries has the corporate or other power and authority, and the
legal right, to make, deliver and perform the Credit Documents to which it is a
party and to borrow hereunder and has taken all necessary corporate action to
authorize the borrowings on the terms and conditions of this Agreement and the
execution, delivery and performance of the Credit Documents to which it is a
party. No consent or authorization of, filing with, notice to or other act by
or in respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of the Credit Documents. This Agreement
has been, and each other Credit Document to which the Company or any of its
Subsidiaries is a party will be, duly executed and delivered on behalf of the
Company or such Subsidiary, as the case may be. This Agreement constitutes, and
each other Credit Document to which it is a party when executed and delivered
will constitute, a legal, valid and binding obligation of the Company or any of
its Subsidiaries party thereto enforceable against the Company or such
Subsidiary, as the case may be, in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
1.6
1.7 No Legal Bar. The execution, delivery and performance of the Credit
Documents to which the Company or any of its Subsidiaries is a party, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or Contractual Obligation of the Company or of any of its
Subsidiaries (except for violations of Contractual Obligations which,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect) and will not result in, or require, the creation or
imposition of any Lien on any of its or their respective properties or revenues
pursuant to any such Requirement of Law or Contractual Obligation, except for
the Liens expressly permitted by subsection 9.3.
1.8
1.9 No Material Litigation. No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the knowledge
of the Company, threatened by or against the Company or any of its Subsidiaries
or against any of its or their respective properties or revenues with respect to
any of the Credit Documents or any of the transactions contemplated hereby or
thereby.
1.10
1.11 No Default. No Default or Event of Default has occurred and is
continuing.
1.12
1.13 Ownership of Property; Liens. Each of the Company and its Subsidiaries has
good record and marketable title in fee simple to,
or a valid leasehold interest in, all its real property, and good title to, or a
valid leasehold interest in, all its other property, and none of such property
is subject to any Lien except as permitted by subsection 9.3.
1.14
1.15 Intellectual Property. The Company and each of its Subsidiaries owns, or
is licensed to use, all domestic and foreign trademarks, tradenames, copyrights,
technology, know-how and processes necessary for the conduct of its business as
currently conducted (the "Intellectual Property"). No claim has been asserted
and is pending or, to the knowledge of the Company, has been threatened by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property, nor does the
Company know of any valid basis for any such claim. The use of such
Intellectual Property by the Company and its Subsidiaries does not infringe on
the rights of any Person.
1.16
(i) Year 2000 Matters. Any reprogramming required to permit the proper
functioning, in and following the year 2000, of the Company's computer systems
and equipment containing embedded microchips (including systems and equipment
supplied by others or with which Company's systems interface) and the testing of
all such systems and equipment, as so reprogrammed, will be completed by
September 30, 1999. The cost to the Company of such reprogramming and testing
and of the reasonably foreseeable consequences of year 2000 to the Company
(including, without limitation, reprogramming errors and, to the best knowledge
of the Company, the failure of others' systems or equipment) will not result in
a Default or a Material Adverse Effect. Except for such of the reprogramming
referred to in the preceding sentence as may be necessary, the computer and
management information systems of the Company and its Subsidiaries are and, with
ordinary course upgrading and maintenance, will continue for the term of this
Agreement to be, sufficient to permit the Company to conduct its business
without Material Adverse Effect.
1.1 Taxes. Each of the Company and its consolidated Subsidiaries has filed or
caused to be filed all tax returns which, to the knowledge of the Company, are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any unfiled tax returns for taxes, and unpaid
taxes, fees and other charges, (a) the amount or validity of which are currently
being contested in good faith by appropriate proceedings and with respect to
which reserves in conformity with GAAP have been provided on the books of the
Company or its consolidated Subsidiaries, as the case may be, or (b) which in
each case, individually or in the aggregate, would not cause the Company and its
consolidated Subsidiaries to have a liability in excess of $5,000,000 or the
Dollar Equivalent Amount thereof); no notice of tax Lien has been filed, and, to
the knowledge of the Company, no claim is being asserted by any taxing
authority, with respect to any such tax, fee or other charge except for claims
the amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Company or its consolidated
Subsidiaries, as the case may be, and claims for amounts which, in the
aggregate, do not exceed $5,000,000.
1.2
1.3 Federal Regulations. No part of the proceeds of any Loans will be used for
"purchasing" or "carrying" any "margin stock" within the respective meanings of
each of the quoted terms under Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in effect or for
any purpose which violates the provisions of the regulations of such Board of
Governors. If requested by any Bank or the Administrative Agent, the Company
will furnish to the Administrative Agent and each Bank a statement to the
foregoing effect in conformity with the requirements of FR Form U-1 referred to
in said Regulation U.
1.4
1.5 ERISA. Each Plan which is intended to be qualified under Section 401(a)
(or 403(a) as appropriate) of the Code and each related trust agreement, annuity
contract or other funding instrument which is intended to be tax-exempt under
Section 501(a) of the Code is so qualified and tax-exempt and has been so
qualified and tax-exempt during the period from its adoption to date. No event
has occurred in connection with which the Company or any Commonly Controlled
Entity or any Plan, directly or indirectly, could reasonably be expected to be
subject to any material liability under ERISA, the Code or any other law,
regulation or governmental order or under any agreement, instrument, statute,
rule of law or regulation pursuant to or under which the Company or a Subsidiary
has agreed to indemnify or is required to indemnify any person against liability
incurred under, or for a violation or failure to satisfy the requirements of,
any such statute, regulation or order. No Reportable Event has occurred during
the five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all material
respects with the applicable provisions of ERISA and the Code. The present
value of all accrued benefits under each Single Employer Plan maintained by the
Company or any Commonly Controlled Entity or for which the Company or any
Commonly Controlled Entity has or could have any liability (based on those
assumptions used to fund the Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits.
Neither the Company nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan, and neither the Company nor any
Commonly Controlled Entity could reasonably be expected to become subject to any
liability under ERISA if the Company or any such Commonly Controlled Entity were
to withdraw completely from all Multiemployer Plans as of the valuation date
most closely preceding the date on which this representation is made or deemed
made. No such Multiemployer Plan is in Reorganization or Insolvent. The
present value (determined using actuarial and other assumptions which are
reasonable in respect of the benefits provided and the employees participating)
of the unfunded liability of the Company and each Commonly Controlled Entity for
benefits under all unfunded retirement or severance plans, programs, policies or
other arrangements (including, without limitation, post retirement benefits to
be provided to their current and former employees under Plans which are welfare
benefit plans (as defined in Section 3(1) of ERISA)), whether or not funded does
not, in the aggregate, exceed $5,000,000 (excluding those arrangements set forth
on Schedule 6.13).
1.6
1.7 Investment Company Act; Other Regulations. Neither the Company nor any
Subsidiary of the Company is an "investment company", or a company "controlled"
by an "investment company", within the meaning of the Investment Company Act of
1940, as amended. Neither the Company nor any Subsidiary of the Company is
subject to regulation under any Federal or State statute or regulation which
limits its ability to incur Indebtedness.
1.8
1.9 Subsidiaries. On the Closing Date, the only Subsidiaries of the Company,
and the only material partnerships or joint ventures in which the Company or any
Subsidiary has an interest, are those set forth on Schedule 6.15. On the
Closing Date, the Company owns the percentage of the issued and outstanding
Capital Stock or other evidences of the ownership of each Subsidiary,
partnership or joint venture set forth on Schedule 6.15 as set forth on such
Schedule. On the Closing Date, except as set forth on Schedule 6.15, no such
Subsidiary, partnership or joint venture has issued any securities convertible
into shares of its Capital Stock. The outstanding stock and securities (or
other evidence of ownership) of such Subsidiaries, partnerships or joint
ventures owned by the Company and its Subsidiaries are owned by the Company and
its Subsidiaries free and clear of all Liens, warrants, options or rights of
others of any kind whatsoever except for Liens permitted by subsection 9.3.
1.10
1.11 Accuracy and Completeness of Information. No document furnished or
statement made in writing to the Banks by the Company in connection with the
negotiation, preparation or execution of this Agreement or any of the other
Credit Documents contains any untrue statement of a material fact, or omits to
state any such material fact necessary in order to make the statements contained
therein not misleading, in either case which has not been corrected,
supplemented or remedied by subsequent documents furnished or statements made in
writing to the Banks. All other written information, reports and other papers
and data with respect to the Company and its Subsidiaries (other than financial
statements), furnished to the Banks by the Company, or on behalf of the Company,
were (a) in the case of those not prepared for delivery to the Banks, to the
Company's knowledge, at the time the same were so furnished, complete and
correct in all material respects for the purposes for which the same were
prepared and (b) in the case of those prepared for delivery to the Banks, to the
Company's knowledge, complete and correct in all material respects, or have been
subsequently supplemented by other information, reports or other papers or data,
to the extent necessary to give the Banks a true and accurate knowledge of the
subject matter in all material respects, it being understood that financial
projections as to future events are not to be viewed as facts and that actual
results may differ from projected results.
1.12
1.13 Purpose of Loans. The proceeds of the Loans shall be used by the Company
for working capital purposes in the ordinary course of business and for general
corporate purposes of the Company and, to the extent permitted hereunder, its
Subsidiaries.
1.14
1.15 Senior Indebtedness. The principal of and interest on the Loans, the
Reimbursement Obligations and the Company's obligations under the Company
Guarantee are and will continue to be within the definition of "Senior
Indebtedness" or any similar term under the Subordinated Debentures.
1.16
1.17 Environmental Matters. Except as set forth on Schedule 6.19 or insofar as
there is no reasonable likelihood of a Material Adverse Effect arising from any
combination of facts or circumstances inconsistent with any of the following:
1.18
1.19 The facilities and properties owned or operated by the Company or any of
its Subsidiaries (the "Properties") do not contain, and to the knowledge of the
Company or its Subsidiaries, have not previously contained, any Materials of
Environmental Concern in amounts or concentrations which (i) constitute or
constituted a violation of, or (ii) could reasonably be expected to give rise to
liability under, any applicable Environmental Law.
(a) The Properties and all operations at the Properties are in compliance with
all applicable Environmental Laws, and there is no contamination at, under or to
the knowledge of the Company about the Properties or violation of any
Environmental Law with respect to the Properties or the business operated by the
Company or any of its Subsidiaries (the "Business") which could materially
interfere with the continued operation of the Properties.
(a) Neither the Company nor any of its Subsidiaries has received any notice of
violation, alleged violation, non-compliance, liability or potential liability
regarding environmental matters or compliance with Environmental Laws with
regard to any of the Properties or the Business, nor does the Company or any of
its Subsidiaries have knowledge or reason to believe that any such notice will
be received or is being threatened.
(a) To the knowledge of the Company or any of its Subsidiaries, Materials of
Environmental Concern have not been transported or disposed of from the
Properties in violation of, or in a manner or to a location which could
reasonably be expected to give rise to liability under, any Environmental Law,
nor have any Materials of Environmental Concern been generated, treated, stored
or disposed of at, on or under any of the Properties in violation of, or in a
manner that could reasonably be expected to give rise to liability under, any
applicable Environmental Law.
(a) No judicial proceeding or governmental or administrative action is pending
or, to the knowledge of the Company or any of its Subsidiaries, threatened,
under any Environmental Law to which the Company or any Subsidiary is or will be
named as a party with respect to the Properties or the Business, nor are there
any consent decrees or other decrees, consent orders, administrative orders or
other orders, or other analogous administrative or judicial requirements
outstanding under any Environmental Law with respect to the Properties or the
Business.
(a) There has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related to
the operations of the Company or any Subsidiary in connection with the
Properties or otherwise in connection with the Business, in violation of or in
amounts or in a manner that could reasonably give rise to liability under any
applicable Environmental Laws.
1. SECTION CONDITIONS PRECEDENT
1.1 Conditions to Closing Date. The occurrence of the Closing Date, and the
agreement of each Bank to make the initial Loan requested to be made by it on or
after the Closing Date, shall be subject to the satisfaction, on or prior to the
Closing Date, of the following conditions precedent:
(a) Credit Documents. The Administrative Agent shall have received (i) this
Agreement, executed and delivered by a duly authorized officer of the Company,
with a counterpart for each Bank, (ii) for the account of each Bank, the Company
Guarantee executed and delivered by a duly authorized officer of the Company,
with a counterpart or conformed copy for each Bank and (iii) each Initial
Subsidiary Guarantee, executed and delivered by a duly authorized officer of the
Guarantor party thereto, with a counterpart or a conformed copy for each Bank.
(a) Corporate Proceedings of each Loan Party. The Administrative Agent shall
have received, with a counterpart for each Bank, a copy of the resolutions, in
form and substance satisfactory to the Administrative Agent, of the Board of
Directors of each Loan Party (except any Foreign Subsidiary Borrower)
authorizing (i) the execution, delivery and performance of each Credit Document
to which it is a party and (ii) in the case of each Borrower (except any Foreign
Subsidiary Borrower), the borrowings contemplated hereunder, certified by the
Secretary or an Assistant Secretary of such Borrower as of the Closing Date,
which certificate shall be in form and substance satisfactory to the
Administrative Agent and shall state that the resolutions thereby certified have
not been amended, modified, revoked or rescinded.
(a) Fees and Expenses. The Administrative Agent shall have received the fees
and expenses to be received on or prior to the Closing Date pursuant to
subsection 5.1(b).
(a) Legal Opinions. The Administrative Agent shall have received, with a
counterpart for each Bank, the following executed legal opinions:
(i) the executed legal opinion of Milbank, Tweed, Hadley & McCloy LLP, counsel
to the Company and the Subsidiary Borrowers, substantially in the form of
Exhibit G-1, with such modifications therein as shall be reasonably requested or
approved by the Administrative Agent; and
(i) the executed legal opinion of Robert E. Klatell, general counsel of the
Company, substantially in the form of Exhibit G-2, with such modifications
therein as shall be reasonably requested or approved by the Administrative
Agent.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement and the other Credit Documents as
the Administrative Agent may reasonably require.
No Material Litigation. No litigation, inquiry, injunction or restraining
order shall be pending, entered or threatened (including any proposed statute,
rule or regulation) which in the reasonable judgment of any Bank could have a
Material Adverse Effect.
(a) Amendments of 1995 Credit Agreement and Note Purchase Agreement. The
Administrative Agent shall have received copies of any amendments, modifications
or waivers to the 1995 Credit Agreement and the Note Purchase Agreement required
to permit the transactions contemplated hereby.
(a) Notice of Guarantee Ceiling Amount. The Administrative Agent shall have
received with a counterpart for each Bank, a Notice of Guarantee Ceiling Amount,
dated the Closing Date, with appropriate insertions, executed by a Responsible
Officer of the Company.
(a) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Credit Documents shall
be reasonably satisfactory in form and substance to the Administrative Agent.
1.1 Conditions to Each Loan. The agreement of each Bank to make any Loan
requested to be made by it on any date (excluding any Committed Rate Loan made
pursuant to a Notice of Swing Line Refunding, or pursuant to subsection 2.6(c)
if the Dollar Equivalent Amount thereof is not increased) is subject to the
satisfaction of the following conditions precedent:
1.2
(a) Representations and Warranties. Each of the representations and warranties
made by the Company and its Subsidiaries in or pursuant to the Credit Documents
(other than, in respect of each Loan made after the Closing Date, Section 6.2)
shall be true and correct in all material respects on and as of such date as if
made on and as of such date.
(a) No Default. No Default or Event of Default shall have occurred and be
continuing on such date after giving effect to the Loans requested to be made on
such date.
(a) No Material Adverse Change in Subsidiary Borrowers. If such Loan is made
to a Subsidiary Borrower, no event which has or could reasonably expected to
have a material adverse effect on the ability of such Subsidiary Borrower to
perform its obligations under this Agreement shall have occurred.
(a) Borrowing Certificate. In the case of the first requested borrowing
subsequent to the Closing Date, the Administrative Agent shall have received
with a counterpart for each Bank, a certificate of the Company, dated as of such
date, substantially in the form of Exhibit E, with appropriate insertions and
attachments, satisfactory in form and substance to the Administrative Agent,
executed by the President, Executive Vice President or any Vice President and
the Secretary or any Assistant Secretary of the Company.
(e) Foreign Subsidiary Opinion. If such Loan is requested to be made to a
Foreign Subsidiary Borrower incorporated in England or Germany, the Company
shall deliver to the Administrative Agent on or prior to such date (i) an
executed Foreign Subsidiary Opinion of counsel to such Foreign Subsidiary
Borrower and (ii) a copy of the resolutions, in form and substance satisfactory
to the Administrative Agent, of the Board of Directors of such Foreign
Subsidiary Borrower authorizing (1) the execution, delivery and performance of
each Credit Document to which it is a party and (2) the borrowings contemplated
hereunder, certified by the Secretary or an Assistant Secretary of such Foreign
Subsidiary Borrower as of the Closing Date, which certificate shall be in form
and substance satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded.
Each borrowing by any Borrower shall constitute a representation and warranty by
the Company and such Borrower as of the date of such Loan that the conditions
contained in this subsection 7.2 have been satisfied.
1. SECTION AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in
effect, any Loan remains outstanding and unpaid or any other amount is owing to
any Bank any Agent or the Administrative Agent hereunder, the Company shall and
(except in the case of delivery of financial information, reports and notices)
shall cause each of its Subsidiaries to:
1.1 Financial Statements. Furnish to each Bank:
(a) as soon as available, but in any event within 120 days after the end of
each fiscal year of the Company, a copy of the audited consolidated balance
sheet of the Company and its consolidated Subsidiaries as at the end of such
year and the related consolidated statements of operations and shareholders
equity and of cash flows for such year, setting forth in each case in
comparative form the figures for the previous year, reported on without a "going
concern" or like qualification or exception, or qualification arising out of the
scope of the audit, by Ernst & Young or other independent certified public
accountants of nationally recognized standing reasonably acceptable to the
Required Banks;
(a) as soon as available, but in any event within 120 days after the end of
each fiscal year of the Company, the unaudited consolidating balance sheet of
the Company and its consolidated Subsidiaries by principal operating group as at
the end of such year and the related unaudited consolidating statements of
operations of the Company and its consolidated Subsidiaries by principal
operating group for such year, setting forth in each case in comparative form
the figures for the previous year, certified pursuant to subsection 8.2(b) by a
Responsible Officer as fairly presenting the consolidating financial condition
and results of operations of the Company and its consolidated Subsidiaries by
principal operating group;
(a) as soon as available, but in any event within 60 days after the end of each
of the first three quarterly periods of each fiscal year of the Company, the
unaudited consolidated balance sheet of the Company and its consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated statements of operations and shareholders' equity and of cash flows
of the Company and its consolidated Subsidiaries for such quarter and the
portion of the fiscal year through the end of such quarter, setting forth in
each case in comparative form the figures for such quarter of the previous year,
certified by a Responsible Officer as fairly presenting in all material respects
when considered in relation to the consolidated financial statements of the
Company and its consolidated Subsidiaries (subject to normal year-end audit
adjustments); provided that the Company may in lieu of furnishing such unaudited
consolidated balance sheet furnish to each Bank its Form 10-Q filed with the
Securities and Exchange Commission or any successor or analogous Governmental
Authority for the relevant quarterly period; and
(a) as soon as available, but in any event within 60 days after the end of each
of the first three quarterly periods of each fiscal year of the Company, the
unaudited consolidating balance sheet of the Company and its consolidated
Subsidiaries by principal operating group as at the end of such quarter and the
related unaudited consolidating statements of operations of the Company and its
consolidated Subsidiaries by principal operating group for such quarter and the
portion of the fiscal year through the end of such quarter, in the case of the
unaudited consolidating balance sheet setting forth in comparative form the
figures for the previous year (but not the corresponding figures for such
quarter of the previous year) and in the case of the statements of operations
setting forth in comparative form the figures for such quarter of the previous
year, certified by a Responsible Officer as fairly presenting the consolidating
financial condition and results of operations of the Company and its
consolidated Subsidiaries by principal operating group (subject to normal year-
end audit adjustments);
the financial statements to be furnished pursuant to this subsection 8.1 shall
fairly present the consolidated (or consolidating by principal operating group,
as appropriate) financial position and results of operations of the Company and
its consolidated Subsidiaries in accordance with GAAP (subject, in the case of
subsections 8.1(c) and (d), to normal year-end audit adjustments and the absence
of complete footnotes) applied consistently throughout the periods reflected
therein and with prior periods (except as approved by such accountants or
Responsible Officer, as the case may be, and disclosed therein).
1.1 Certificates; Other Information. Furnish to each Bank:
1.2
(a) concurrently with the delivery of the financial statements referred to in
subsection 8.1(a), a certificate of the independent certified public accountants
reporting on such financial statements stating that in making the examination
necessary therefor no knowledge was obtained of any Default or Event of Default,
except as specified in such certificate;
(b) concurrently with the delivery of the financial statements referred to in
subsections 8.1(a) and 8.1(b), a certificate of a Responsible Officer
substantially in the form of Exhibit H;
(a) concurrently with the delivery of the financial statements referred to in
subsection 8.1(c), a certificate of a Responsible Officer (i) stating that, to
the best of such Responsible Officer's knowledge, the Company has observed and
performed all of its covenants and other agreements contained in this Agreement
and the other Credit Documents to which it is a party to be observed or
performed by it, (ii) that such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as specified therein and (iii) setting
forth calculations supporting compliance with subsections 9.1(a), (b) and (c),
9.2 and 9.5;
(a) as soon as delivered, a copy of the letter, addressed to the Company, of
the certified public accountants who prepared the financial statements referred
to in subsection 8.1(a) for such fiscal year and otherwise referred to as a
"management letter";
(a) within five days after the same are sent, copies of all financial
statements and reports which the Company sends to its stockholders generally,
and within five days after the same are filed, copies of all financial
statements and reports which the Company or any of its Subsidiaries may make to,
or file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority;
(a) concurrently with the delivery of the financial statements referred to in
subsections 8.1(a) and 8.1(c) and upon any incurrence or prepayment of any lien,
guarantee or indebtedness which decreases the Guarantee Ceiling Amount by more
than 5%, a Notice of Guarantee Ceiling Amount as of the last day of such fiscal
period or as the date of such occurrence; and
(a) promptly, such additional documents, instruments, legal opinions or
financial and other information as the Administrative Agent or any Bank may from
time to time reasonably request.
1.1 Payment of Obligations. Pay, discharge or otherwise satisfy at or before
maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, including, without limitation, all obligations
in respect of taxes, except where the amount or validity thereof is currently
being contested in good faith by appropriate proceedings and reserves in
conformity with GAAP with respect thereto have been provided on the books of the
Company or its Subsidiaries, as the case may be, or where the failure to pay,
discharge or otherwise satisfy could not reasonably be expected to have a
Material Adverse Effect.
1.2
1.3 Conduct of Business and Maintenance of Existence. Continue to engage in
business of the same general type as now conducted by it and preserve, renew and
keep in full force and effect its corporate existence and take all reasonable
action to maintain all rights, privileges and franchises necessary or desirable
in the normal conduct of its business except as otherwise permitted pursuant to
subsection 9.4; comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
1.4
1.5 Maintenance of Property; Insurance. Keep all property useful and necessary
in its business in good working order and condition, except where the failure to
do so could not reasonably be expected to have a Material Adverse Effect;
maintain with financially sound and reputable insurance companies insurance on
all its property in at least such amounts and against at least such risks (but
including in any event public liability, product liability and business
interruption) as are usually insured against in the same general area by
companies engaged in the same or a similar business; and furnish to each Bank,
upon written request, full information as to the insurance carried.
1.6
1.7 Inspection of Property; Books and Records; Discussions. Keep proper books
of records and account in which the entries are, in all material respects, full,
true and correct in conformity with sound business practice and all Requirements
of Law shall be made of all dealings and transactions in relation to its
business and activities; and, upon reasonable notice under the circumstances,
permit representatives of the Administrative Agent to visit and inspect any of
its properties and examine and make abstracts from any of its books and records
at any reasonable time and as often as may reasonably be desired and to discuss
the business, operations, properties and financial and other condition of the
Company and its Subsidiaries with officers and employees of the Company and its
Subsidiaries and with its independent certified public accountants.
1.8
1.9 Notices. Promptly, after the Company becomes aware thereof, give notice to
the Administrative Agent and each Bank of:
1.10
(a) the occurrence of any Default or Event of Default;
(a) any (i) default or event of default under any Contractual Obligation of the
Company or any of its Subsidiaries or (ii) litigation, investigation or
proceeding which may exist at any time between the Company or any of its
Subsidiaries and any Governmental Authority, which in either case, if not cured
or if adversely determined, as the case may be, could reasonably be expected to
have a Material Adverse Effect or cause a Default or an Event of Default;
(a) any litigation or proceeding affecting the Company or any of its
Subsidiaries (i) in which the amount involved is $5,000,000 or more and not
covered by insurance or (ii) in which injunctive or similar relief is sought
which could reasonably be expected to have a Material Adverse Effect;
(a) the following events: (i) the occurrence or expected occurrence of any
Reportable Event with respect to any Plan, a failure to make any required
contribution to a Plan, the creation of any Lien in favor of the PBGC or a Plan
or any withdrawal from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or the taking of any
other action by the PBGC or the Company or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the terminating
(other than a standard termination under Section 4041(b) of ERISA),
Reorganization or Insolvency of, any Plan;
(a) any change, development or event involving a prospective change, which has
had or could reasonably be expected to have a Material Adverse Effect; and
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Company proposes to take with respect thereto.
(a) Environmental Laws. Comply with, and take all reasonable efforts to
ensure compliance by all tenants and subtenants, if any, in all material
respects with, all applicable Environmental Laws and obtain and comply in all
material respects with and maintain, and undertake all reasonable efforts to
ensure that all tenants and subtenants obtain and comply in all material
respects with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws.
(b)
(c) Conduct and complete all investigations, studies, sampling and testing, and
all remedial, removal and other actions required under Environmental Laws and
promptly comply in all material respects with all lawful orders and directives
of all Governmental Authorities regarding Environmental Laws except to the
extent that the same are being contested in good faith by appropriate
proceedings and the pendency of such proceedings could not reasonably be
expected to have a Material Adverse Effect.
(d)
1.2 Additional Subsidiary Guarantees. In the event that any Domestic
Subsidiary which is not a Guarantor shall account for more than 5% of Total
Assets at any date, take all actions necessary to cause such Domestic Subsidiary
to execute and deliver a Subsidiary Guarantee, within 60 days of the occurrence
of such event.
1.3
2. SECTION NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in
effect, any Loan remains outstanding and unpaid or any other amount is owing to
any Bank or the Administrative Agent hereunder:
1.1 Financial Condition Covenants. The Company shall not:
1.2
(a) Maintenance of Indebtedness. Permit Consolidated Total Debt at any time to
exceed an amount equal to 55% of Consolidated Total Capitalization.
(a) Maintenance of Net Worth. Permit Consolidated Net Worth at any time to be
less than an amount equal to the sum of $750,000,000 plus 40% of cumulative
Consolidated Net Income for the fiscal quarter commencing April 1, 1995 and for
each fiscal quarter thereafter (without subtraction for any fiscal quarter
during which Consolidated Net Income is a negative number).
Interest Coverage. Permit for any period of four consecutive fiscal
quarters at any time the ratio of Adjusted Consolidated EBITDA to Consolidated
Cash Interest Expense to be less than 3.0 to 1.0.
1.1 Limitation on Indebtedness of Domestic Subsidiaries. The Company shall not
permit any of its Domestic Subsidiaries to, and the Domestic Subsidiaries shall
not, directly or indirectly, create, incur, assume or suffer to exist any
Indebtedness, except (a) Indebtedness in an aggregate amount not to exceed 10%
of Consolidated Net Worth, (b) any Indebtedness of Domestic Subsidiaries
pursuant to any of the Credit Documents and (c) any Indebtedness of the Domestic
Subsidiaries pursuant to the Subsidiary Guarantees under (and as defined in) the
1995 Credit Agreement.
1.2
1.3 Limitation on Liens. The Company shall not, and shall not permit any of
its Domestic Subsidiaries to, directly or indirectly, create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, except for:
1.4
(a) Liens for taxes not yet due or which are being contested in good faith by
appropriate proceedings, provided that adequate reserves with respect thereto
are maintained on the books of the Company or its Domestic Subsidiaries, as the
case may be, in conformity with GAAP;
(a) carriers', warehousemen's, mechanics', materialmen's, repairmen's or other
like Liens arising in the ordinary course of business which are not overdue for
a period of more than 60 days or which are being contested in good faith by
appropriate proceedings;
(a) pledges or deposits in connection with workers' compensation, unemployment
insurance and other social security legislation and deposits securing liability
to insurance carriers under insurance or self-insurance arrangements;
(a) deposits to secure the performance of bids, trade contracts (other than for
borrowed money), leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(a) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business which, in the aggregate, are not
substantial in amount and which do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the Company or such Domestic Subsidiary; and
(a) Liens (not otherwise permitted hereunder) which secure obligations not
exceeding (as to the Company and all Domestic Subsidiaries) a Dollar Equivalent
Amount equal to 5% of Consolidated Net Worth at any time outstanding.
1.1 Limitation on Fundamental Changes. The Company (a) shall not, and shall
not permit any of its Domestic Subsidiaries to, directly or indirectly, enter
into any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease, assign, transfer or otherwise dispose of, all or substantially all of its
property, business or assets and (b) shall not, and shall not permit any of its
Subsidiaries, to make any material change in its present method of conducting
business, except:
1.2
(i) any Subsidiary may be merged or consolidated with or into the Company
(provided that the Company shall be the continuing or surviving corporation) or
with or into any one or more wholly-owned Domestic Subsidiaries; and
(i) any Subsidiary may sell, lease, transfer or otherwise dispose of any or
all of its assets (upon voluntary liquidation or otherwise) to the Company or
any other wholly owned Domestic Subsidiary.
1.1 Limitation on Modifications of Debt Instruments. The Company shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly, amend,
modify or change, or consent or agree to any amendment, modification or change
to any of the terms of any Subordinated Indebtedness or any agreement which sets
forth the terms of any Subordinated Indebtedness, except amendments,
modifications or changes which would not (directly or indirectly) increase the
amount of any payment of principal thereof, increase the interest rate or
premium payable thereon, increase the amount of fees or any other amounts
payable with respect thereto, shorten the scheduled amortization or average
weighted life thereof, shorten the date for payment of interest thereon, shorten
the final maturity thereof or modify the subordination provisions thereof.
1.2
1.3
2. SECTION EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(i) Any Borrower shall fail to pay any principal of any Loan owing by it when
due (whether at the stated maturity, by acceleration or otherwise) in accordance
with the terms hereof; or (ii) any Borrower shall fail to pay any interest on
any Loan or any fee or any other amount payable hereunder, within five days
after any such interest or other amount becomes due in accordance with the terms
thereof or hereof; or
(a) Any representation or warranty made or deemed made by the Company or any
Subsidiary herein or in any other Credit Document or which is contained in any
certificate, document or financial or other statement furnished by it at any
time under or in connection with this Agreement or any such other Credit
Document shall prove to have been incorrect in any material respect on or as of
the date made or deemed made; or
(a) The Company or any Subsidiary shall default in the observance or
performance of any agreement contained in Section 9 and, with respect to
subsections 9.2 and 9.3, such default shall continue unremedied for a period of
30 days; or
(a) The Company or any Subsidiary shall default in the observance or
performance of any other agreement contained in this Agreement or any other
Credit Document (other than as provided in paragraphs (a) through (c) of this
Section), and such default shall continue unremedied for a period of 30 days
after the Company has knowledge thereof; or
(a) Any of the Credit Documents shall cease, for any reason, to be in full
force and effect, or the Company shall so assert in writing; or
(a) The subordination provisions applicable to any Subordinated Indebtedness,
for any reason, cease to be in full force and effect, or any Person shall so
assert to the Company in writing and the Company shall not promptly contest such
assertion; or
(a) The Company or any of its consolidated Subsidiaries shall (i) default in
any payment of principal of or interest of any Indebtedness (other than the
Loans) or in the payment of any Guarantee Obligation, in either case with an
outstanding principal amount in excess of a Dollar Equivalent Amount equal to
$5,000,000 when due beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness or Guarantee Obligation
was created; or (ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or Guarantee Obligation
or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
holders of such Indebtedness or beneficiary or beneficiaries of such Guarantee
Obligation (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable; or
(a) (i) Any Borrower or any Subsidiary that accounts for more than 5% of Total
Assets at any date shall commence any case, proceeding or other action (A) under
any existing or future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or any Borrower or any such Subsidiary shall
make a general assignment for the benefit of its creditors; or (ii) there shall
be commenced against any Borrower or any such Subsidiary any case, proceeding or
other action of a nature referred to in clause (i) above which (A) results in
the entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against any Borrower or any such Subsidiary any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or
(a) (i) Any Person shall engage in any "prohibited transaction" (as defined in
Section 406 of ERISA or Section 4975 of the Code) involving any Plan, (ii) any
"accumulated funding deficiency" (as defined in Section 302 of ERISA), whether
or not waived, shall exist with respect to any Plan or any Lien in favor of the
PBGC or a Plan shall arise on the assets of the Company or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Banks, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the Company
or any Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Banks is likely to, incur any liability in connection with a withdrawal
from, or the Insolvency or Reorganization of, a Multiemployer Plan or (vi) any
other event or condition shall occur or exist with respect to a Plan; and in
each case in clauses (i) through (vi) above, such event or condition, together
with all other such events or conditions, if any, could reasonably be expected
to subject the Company to any tax, penalty or other liabilities in the aggregate
material in relation to the business, operations, property or financial or other
condition of the Company; or
(a) One or more judgments or decrees shall be entered against the Company or
any of its Subsidiaries involving in the aggregate a liability (not paid or
fully covered by insurance) of a Dollar Equivalent Amount equal to $5,000,000 or
more, and all such judgments or decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within 60 days from the entry thereof; or
(a) The Company Guarantee or any Subsidiary Guarantee shall cease, for any
reason, to be in full force and effect or any Guarantor party thereto shall so
assert; or
(a) A Change in Control shall occur; then, and in any such event, (A) if such
event is an Event of Default specified in clause (i) or (ii) of paragraph (h)
above with respect to the Company, automatically the Commitments shall
immediately terminate and the Loans hereunder (with accrued interest thereon)
and all other amounts owing under this Agreement shall become immediately due
and payable and (B) if such event is any other Event of Default, either or both
of the following actions may be taken: (i) with the consent of the Required
Banks, the Administrative Agent may, or upon the request of the Required Banks,
the Administrative Agent shall, by notice to the Company declare the Commitments
to be terminated forthwith, whereupon the Commitments shall immediately
terminate; and (ii) with the consent of the Required Banks, the Administrative
Agent may, or upon the request of the Required Banks, the Administrative Agent
shall, by notice to the Company, declare the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
Except as expressly provided above in this Section, presentment, demand,
protest and all other notices of any kind are hereby expressly waived.
1. SECTION THE ADMINISTRATIVE AGENT; THE ARRANGER
1.1 Appointment. Each Bank hereby irrevocably designates and appoints Chase as
the Administrative Agent of such Bank under this Agreement and the other Credit
Documents, and each such Bank irrevocably authorizes Chase, as the
Administrative Agent for such Bank, to take such action on its behalf under the
provisions of this Agreement and the other Credit Documents and to exercise such
powers and perform such duties as are expressly delegated to the Administrative
Agent by the terms of this Agreement and the other Credit Documents, together
with such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, the Administrative Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any Bank, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Credit Document or otherwise exist against the
Administrative Agent.
1.1 Delegation of Duties. The Administrative Agent may execute any of its
duties under this Agreement and the other Credit Documents by or through agents
or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys in-fact
selected by it with reasonable care.
1.2
1.3 Exculpatory Provisions. Neither the Administrative Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Credit Document
(except for its or such Person's own gross negligence or willful misconduct) or
(ii) responsible in any manner to any of the Banks for any recitals, statements,
representations or warranties made by the Company or any officer thereof
contained in this Agreement or any other Credit Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Credit Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Credit Document or
for any failure of the Company to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be under any obligation to any
Bank to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other
Credit Document, or to inspect the properties, books or records of the Company.
1.4
1.5 Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document or conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Company), independent accountants and other experts selected by the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Credit
Document unless it shall first receive such advice or concurrence of the
Required Banks or all of the Banks, as may be required hereunder, as it deems
appropriate or it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected from liability to the Banks in acting, or in
refraining from acting, under this Agreement and the other Credit Documents in
accordance with a request of the Required Banks or all of the Banks, as may be
required hereunder, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Banks and their respective
successors and assigns.
1.6
1.7 Notice of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Bank or the
Company referring to this Agreement, describing such Default or Event of Default
and stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
notice thereof to the Banks. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Required Banks or all of the Banks, as may be required hereunder;
provided that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the Banks.
1.8
1.9 Non-Reliance on Administrative Agent and Other Banks. Each Bank expressly
acknowledges that neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Administrative Agent
hereinafter taken, including any review of the affairs of the Company, shall be
deemed to constitute any representation or warranty by the Administrative Agent
to any Bank. Each Bank represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any other
Bank, and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of the Company and
made its own decision to make its Loans hereunder and enter into this Agreement
and the other Credit Documents to which it is or will be a party. Each Bank
also represents that it will, independently and without reliance upon the
Administrative Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Credit Documents, and to make such investigation as
it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Company and its
Subsidiaries. Except for notices, reports and other documents expressly
required to be furnished to the Banks by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
the Company and its Subsidiaries which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
1.10
1.11 Indemnification. The Banks agree to indemnify the Administrative Agent in
its capacity as such (to the extent not reimbursed by the Company and without
limiting the obligation of the Company to do so), ratably according to their
respective Commitment Percentages in effect on the date on which indemnification
is sought under this subsection (or, if indemnification is sought after the date
upon which the Commitments shall have terminated and the Loans shall have been
paid in full, ratably in accordance with their Commitment Percentages
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against the Administrative Agent or any
in any way relating to or arising out of this Agreement, any of the other Credit
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the foregoing;
provided that no Bank shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Administrative
Agent's gross negligence or willful misconduct. The agreements in this
subsection shall survive the payment of the Loans and all other amounts payable
hereunder.
1.12
1.13 Administrative Agent in Its Individual Capacity. The Administrative Agent
and its Affiliates may make loans to, accept deposits from and generally engage
in any kind of business with the Company and any of its Subsidiaries as though
the Administrative Agent were not the Administrative Agent hereunder and under
the other Credit Documents. With respect to its Loans made or renewed by it,
the Administrative Agent shall have the same rights and powers under this
Agreement and the other Credit Documents as any Bank and may exercise the same
as though it were not the Administrative Agent, and the terms "Bank" and "Banks"
shall include the Administrative Agent in its individual capacity.
1.14
1.15 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 10 days' notice to the Banks; provided that any such
resignation shall not be effective until a successor agent has been appointed
and approved in accordance with this subsection 11.9, and such successor agent
has accepted its appointment. If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Credit Documents, then
the Required Banks shall appoint from among the Banks a successor administrative
agent for the Banks, which successor agent shall be approved by the Company
(which approval shall not be unreasonably withheld), whereupon such successor
administrative agent shall succeed to the rights, powers and duties of the
Administrative Agent, and the term "Administrative Agent" shall mean such
successor agent effective upon such appointment and approval, and the former
Administrative Agent's rights, powers and duties as Administrative Agent shall
be terminated, without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to this Agreement. After any
retiring Administrative Agent's resignation as Administrative Agent, the
provisions of this subsection shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Administrative Agent under this
Agreement and the other Credit Documents. 1.16
1.17 The Arranger. Each Bank acknowledges that the Arranger, in such capacity,
shall have no duties or responsibilities, and shall incur no liabilities, under
this Agreement or the other Credit Documents.
1.18
1.19
2. SECTION MISCELLANEOUS
(a) Amendments and Waivers. Neither this Agreement nor any other Credit
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this subsection. The
Required Banks may, or, with the written consent of the Required Banks, the
Administrative Agent may, from time to time, (i) enter into with the Loan
Parties party thereto written amendments, supplements or modifications to this
Agreement and the other Credit Documents for the purpose of adding any
provisions to this Agreement or the other Credit Documents or changing in any
manner the rights of the Banks or of the Loan Parties hereunder or thereunder or
(ii) waive, on such terms and conditions as the Required Banks or the
Administrative Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or the other Credit Documents or any Default
or Event of Default and its consequences; provided, however, that no such waiver
and no such amendment, supplement or modification shall (i) reduce the amount or
extend the scheduled date of maturity of any Loan or reduce the stated rate of
any interest or fee payable hereunder or extend the scheduled date of any
payment thereof or increase the aggregate amount or extend the expiration date
of any Bank's Commitment, in each case without the consent of each Bank directly
affected thereby, or (ii) amend, modify or waive any provision of this
subsection or reduce the percentage specified in the definition of Required
Banks, or consent to the assignment or transfer by the Company of any of its
rights and obligations under this Agreement and the other Credit Documents or
amend, modify or waive subsection 5.3(a) or 12.6(a), or release any Subsidiary
from its Subsidiary Guarantee or release the Company from the Company Guarantee,
in each case without the written consent of all the Banks, or (iii) amend,
modify or waive any provision of Section 11 without the written consent of the
then Administrative Agent. Any such waiver and any such amendment, supplement
or modification shall apply equally to each of the Banks and shall be binding
upon the Company, the Subsidiary Borrowers, the Banks, the Agents, the
Administrative Agent and all future holders of the Loans. In the case of any
waiver, the Company, the Banks and the Administrative Agent shall be restored to
their former position and rights hereunder and under any other Credit Documents,
and any Default or Event of Default waived shall be deemed to be cured and not
continuing; but no such waiver shall extend to any subsequent or other Default
or Event of Default, or impair any right consequent thereon.
(a) In addition to amendments effected pursuant to the foregoing paragraph (a),
Schedules II, III and IV may be amended as follows:
(b)
(i) Schedule II will be amended to add Subsidiaries of the Company as
additional Subsidiary Borrowers upon (A) execution and delivery by the Company,
any such Subsidiary Borrower and the Administrative Agent, of a Joinder
Agreement providing for any such Subsidiary to become a Subsidiary Borrower, and
(B) delivery to the Administrative Agent of (1) if reasonably requested by the
Administrative Agent, a legal opinion in respect of such additional Subsidiary
Borrower and (2) such other documents with respect thereto as the Administrative
Agent shall reasonably request.
(i) Schedule II will be amended to remove any Subsidiary as a Subsidiary
Borrower upon (A) execution and delivery by the Company of a Schedule Amendment
providing for such amendment and (b) repayment in full of all outstanding Loans
of such Subsidiary Borrower.
(i) Schedule III will be amended to designate other Banks as additional or
replacement Swing Line Banks upon execution and delivery by the Company, the
Administrative Agent and such additional or replacement Swing Line Bank of a
Schedule Amendment providing for such amendment. In the case of any replacement
of a Swing Line Bank pursuant to a Schedule Amendment, the existing Swing Line
Bank replaced pursuant thereto shall cease to be a Swing Line Bank upon the
effectiveness of such Schedule Amendment and the repayment of all Swing Line
Loans owing to such replaced Swing Line Bank.
(i) Schedule III will be amended to change administrative information
(including the Swing Line Rate definition) with respect to Swing Line Banks,
upon execution and delivery by the Company, the Administrative Agent and such
Swing Line Bank of a Schedule Amendment providing for such amendment.
(i) Schedule IV will be amended to change administrative information contained
therein (other than any interest rate definition, Funding Time, Payment Time or
notice time contained therein), upon execution and delivery by the Company and
the Administrative Agent of a Schedule Amendment providing for such amendment.
(i) Schedule IV will be amended to conform any Funding Time, Payment Time or
notice time contained therein to then-prevailing market practices, upon
execution and delivery by the Company, the Required Banks and the Administrative
Agent of a Schedule Amendment providing for such amendment.
(i) Schedule IV will be amended to change any interest rate definition
contained therein, upon execution and delivery by the Company, all the Banks and
the Administrative Agent of a Schedule Amendment providing for such amendment.
(a) The Administrative Agent shall give prompt notice to each Bank of
any amendment effect pursuant to subsection 12.1(b).
(b)
1.2 Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by telecopy), and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made when delivered by hand, or five days after being deposited in the
mail, postage prepaid, or, in the case of telecopy notice, when received,
addressed as follows in the case of the Company, the Subsidiary Borrowers and
the Administrative Agent, and as set forth in Schedule I in the case of the
other parties hereto, or to such other address as may be hereafter notified by
the respective parties hereto and any future holders of the Loans:
1.3
The Company: Arrow Electronics, Inc.
25 Hub Drive
Melville, New York 11747
Attention: Robert E. Klatell and
Ira M. Birns
Telecopy: (516) 391-1683
Telephone: (516) 391-1848
The Administrative Agent: The Chase Manhattan Bank
270 Park Avenue, 47th Floor
New York, New York 10017
Attention: Michael Lancia
Telecopy: (212) 270-5120
Telephone: (212) 270-2468
with a copy to:
Chase Bank Agent Bank Services Group
1 Chase Manhattan Plaza, 8th Floor
New York, New York 10081
Attention: Maggie Swales
Telecopy: (212) 552-5662
Telephone: (212) 552-7472
The Subsidiary Borrowers: c/o Arrow Electronics, Inc.
25 Hub Drive
Melville, New York 11747
Attention: Robert E. Klatell and
Ira M. Birns
Telecopy: (516) 391-1683
Telecopy: (516) 391-1848
; provided that any Notice of Borrowing, Notice of Continuation, Notice of
Conversion, Notice of Swing Line Outstandings, Notice of Swing Line Refunding,
Notice of Guarantee Ceiling Amount, Notice of Prepayment, or any notice pursuant
to subsections 2.4 or 2.5 shall not be effective until received.
No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Bank, any right,
remedy, power or privilege hereunder or under the other Credit Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
1.1 Survival of Representations and Warranties. All representations and
warranties made hereunder, in the other Credit Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the other Credit
Documents and the making of the Loans hereunder.
1.2
1.3 Payment of Expenses and Taxes. The Company agrees (a) to pay or reimburse
the Administrative Agent and the Arranger for all its reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Credit Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
fees and disbursements of counsel to the Administrative Agent and the Arranger,
(b) to pay or reimburse each Bank and the Administrative Agent for all its
reasonable costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Credit Documents and
any such other documents upon the occurrence of an Event of Default, including,
without limitation, the fees and disbursements of counsel to the Administrative
Agent and to the several Banks, and (c) to pay, indemnify, and hold each Bank,
each Agent, the Arranger and the Administrative Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any, which
may be payable or determined to be payable in connection with the execution and
delivery of, or consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Credit Documents
and any such other documents, and (d) to pay, indemnify, and hold each Bank,
each Agent, the Arranger and the Administrative Agent (and their respective
directors, officers, employees and agents) (collectively, the "indemnified
person") harmless from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, the
other Credit Documents and any such other documents, including, without
limitation, any of the foregoing relating to the use of proceeds of the Loans or
the violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of the Company, any of its Subsidiaries or any of
the Properties (it being understood that costs and expenses incurred in
connection with the enforcement or preservation of rights under this Agreement
and the other Credit Documents shall be paid or reimbursed in accordance with
clause (b) above rather than this clause (d)) (all the foregoing in this clause
(d), collectively, the "indemnified liabilities"), provided, that the Company
shall have no obligation hereunder to any indemnified person with respect to
indemnified liabilities arising from (i) the gross negligence or willful
misconduct of such indemnified person or (ii) legal proceedings commenced
against the Administrative Agent or any Bank by any security holder or creditor
thereof arising out of and based upon rights afforded any such security holder
or creditor solely in its capacity as such. Any payments required to be made by
the Company under this subsection 12.5 shall be made within 30 days of the
demand therefor. The agreements in this subsection shall survive repayment of
the Loans and all other amounts payable hereunder.
1.4
(a) Successors and Assigns; Participations and Assignments. This Agreement
shall be binding upon and inure to the benefit of the Company, the Subsidiary
Borrowers, the Banks, the Administrative Agent, all future holders of the Loans
and their respective successors and assigns, except that no Borrower may assign
or transfer any of its rights or obligations under this Agreement without the
prior written consent of each Bank.
(b)
(c) Any Bank may, in the ordinary course of its commercial lending business and
in accordance with applicable law, at any time sell to one or more banks or
other entities ("Participants") participating interests in any Loan owing to
such Bank, any Commitment of such Bank or any other interest of such Bank
hereunder and under the other Credit Documents. In the event of any such sale
by a Bank of a participating interest to a Participant, such Bank's obligations
under this Agreement to the other parties to this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Loan for all purposes
under this Agreement and the other Documents, and the Company, the Subsidiary
Borrowers and the Administrative Agent shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and obligations
under this Agreement and the other Credit Documents. Each of the Company and
the Subsidiary Borrowers agrees that if amounts outstanding under this Agreement
are due or unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall be
deemed to have the right of setoff in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Bank under this Agreement,
provided that, in purchasing such participating interest, such Participant shall
be deemed to have agreed to share with the Banks the proceeds thereof as
provided in subsection 12.7(a) as fully as if it were a Bank hereunder. Each of
the Company and the Subsidiary Borrowers also agrees that each Participant shall
be entitled to the benefits of subsections 5.5, 5.6 or 5.8 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it was a Bank; provided that, in the case of subsection 5.6, such Participant
shall have complied with the requirements of said subsection and provided,
further, that no Participant shall be entitled to receive any greater amount
pursuant to any such subsection than the transferor Bank would have been
entitled to receive in respect of the amount of the participation transferred by
such transferor Bank to such Participant had no such transfer occurred. Each
participating interest under this Agreement sold by a Bank to a Participant
after the Closing Date shall be under terms providing that such Participant's
rights to consent or withhold consent in respect of actions by such selling Bank
under this Agreement shall be limited to such actions that, pursuant to
subsection 12.1, require the consent of all the Banks. Each Bank selling or
granting a participation shall indemnify the Borrowers and the Administrative
Agent for any taxes and liabilities that they may sustain as a result of such
Bank's failure to withhold and pay any taxes applicable to payments by such Bank
to its participant in respect of such participation.
(d)
(e) Any Bank may, in the ordinary course of its commercial lending business and
in accordance with applicable law, at any time and from time to time assign to
any Bank or any affiliate thereof or, with the consent of the Administrative
Agent and the Company (which shall not be unreasonably withheld), to an
additional bank or financial institutions ("an Assignee") all or any part of its
rights and obligations under this Agreement and the Loans pursuant to an
Assignment and Acceptance, executed by such Assignee, such assigning Bank (and,
in the case of an Assignee that is not then a Bank or an affiliate thereof, by
the Administrative Agent and the Company) and delivered to the Administrative
Agent for its acceptance and recording in the Register. Upon such execution,
delivery, acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Bank hereunder with a Commitment as set
forth therein, and (y) the assigning Bank thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Bank's rights and obligations under
this Agreement, such assigning Bank shall cease to be a party hereto).
Notwithstanding anything herein to the contrary, no Assignee shall be entitled
to receive any greater amount pursuant to subsections 5.5, 5.6 or 5.8 than the
transferor Bank would have been entitled to receive in respect of the amount of
the Commitment transferred by such transferor Bank to such Assignee had no such
transfer occurred, unless following the date of such assignment, a change in any
applicable Requirement of Law or any interpretation thereof shall have occurred
which entitles such Assignee to claim additional amounts pursuant to such
subsections.
(f)
(g) The Administrative Agent shall maintain at its address referred to in
subsection 12.2 a copy of each Assignment and Acceptance delivered to it and a
register (the "Register") for the recordation of the names and addresses of the
Banks and the Commitment of, and principal amount of the Loans owing hereunder
to, each Bank from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Company, the
Administrative Agent and the Banks may treat each Person whose name is recorded
in the Register as the owner of the Loan recorded therein for all purposes of
this Agreement. The Register shall be available for inspection by the Company
or any Bank at any reasonable time and from time to time upon reasonable prior
notice.
(h)
(i) Upon its receipt of an Assignment and Acceptance executed by an assigning
Bank and an Assignee (and, in the case of an Assignee that is not then a Bank or
an affiliate thereof, by the Administrative Agent) together with payment to the
Administrative Agent of a registration and processing fee of $3,500, the
Administrative Agent shall (i) promptly accept such Assignment and Acceptance
and (ii) on the effective date determined pursuant thereto record the
information contained therein in the Register and give notice of such acceptance
and recordation to the Banks and the Company.
(j)
(k) The Company authorizes each Bank to disclose to any Participant or Assignee
(each, a "Transferee") and any prospective Transferee any and all financial
information in such Bank's possession concerning the Company and its Affiliates
which has been delivered to such Bank by or on behalf of the Company pursuant to
this Agreement or which has been delivered to such Bank by or on behalf of the
Company in connection with such Bank's credit evaluation of the Company and its
Affiliates prior to becoming a party to this Agreement so long as each such
prospective Transferee shall execute a confidentiality agreement containing
provisions substantially similar to the provisions contained in the next
succeeding sentences of this paragraph (f). The Administrative Agent and each
Bank shall hold nonpublic information obtained pursuant to the requirements of
this Agreement other than information (i) that is, or generally becomes,
available to the public, (ii) that was or becomes available to the
Administrative Agent or any Bank on a nonconfidential basis or (iii) that
becomes available to the Administrative Agent or any Bank from a Person or other
source that is not, to the best knowledge of the Administrative Agent or such
Bank, as the case may be, otherwise bound by a confidentiality obligation to the
Company, in accordance with its customary procedures for treatment of
confidential information and in accordance with safe and sound banking practices
and in any event, may make disclosure reasonably required by any Governmental
Authority or representative thereof pursuant to subpoena or other legal process
or as otherwise required by law, order or regulation. Unless specifically
prohibited by applicable law, regulation, rule or court order, the
Administrative Agent and each Bank shall notify the Company of any request by
any Governmental Authority or representative thereof (other than any such
request in connection with an examination of the financial condition of the
Administrative Agent or such Bank by such Governmental Authority) for disclosure
of such information by the Administrative Agent or such Bank so that any of them
may seek an appropriate protective order. Except as may be required by an order
of a court of competent jurisdiction and to the extent set forth therein,
neither the Administrative Agent nor any Bank shall be obligated or required to
return any materials furnished by the Company. Nothing in this paragraph (f)
shall prohibit the Administrative Agent or any Bank from disclosing nonpublic
information to its examiners, regulators and professional advisors.
(l)
(m) Nothing herein shall prohibit any Bank from pledging or assigning any Loan
to any Federal Reserve Bank in accordance with applicable law or require any
Bank to obtain the consent of any Loan Party in order to pledge or assign any
Loan to any Federal Reserve Bank in accordance with applicable law.
(n)
(o) Adjustments; Set-off. If any Bank (a "benefitted Bank") shall at any
time receive any payment of all or part of its Loans then due and owing to it,
or interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 12(h), or otherwise), in a greater proportion
than any such payment to or collateral received by any other Bank, if any, in
respect of such other Bank's Loans then due and owing to it, or interest
thereon, such benefitted Bank shall purchase for cash from the other Banks a
participating interest in such portion of each such other Bank's Loans, or shall
provide such other Banks with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such benefitted Bank to share
the excess payment or benefits of such collateral or proceeds ratably with each
of the Banks; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefitted Bank, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. Each of the Company and the
Subsidiary Borrowers agrees that each Bank so purchasing a portion of another
Bank's Loan may exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if such Bank were
the direct holder of such portion.
(p)
(q) In addition to any rights and remedies of the Banks provided by law, each
Bank shall have the right, without prior notice to the Company or any Subsidiary
Borrower, any such notice being expressly waived by the Company and the
Subsidiary Borrowers to the extent permitted by applicable law, upon any amount
becoming due and payable by any Borrower hereunder or under this Agreement or
the other Credit Documents (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Bank or any branch or agency
thereof to or for the credit or the account of such Borrower, as the case may
be. Each Bank agrees promptly to notify the Company and the Administrative
Agent after any such set-off and application made by such Bank, provided that
the failure to give such notice shall not affect the validity of such set-off
and application.
(r)
1.5 Power of Attorney. Each Subsidiary Borrower hereby grants to the Company
an irrevocable power of attorney to act as its attorney-in-fact with regard to
matters relating to this Agreement, the Applications and each other Credit
Document, including, without limitation, execution and delivery of any
amendments, supplements, waivers or other modifications hereto or thereto,
receipt of any notices hereunder or thereunder and receipt of service of process
in connection herewith or therewith. Each Subsidiary Borrower hereby explicitly
acknowledges that the Administrative Agent and each Bank has executed and
delivered this Agreement and each other Credit Document to which it is a party,
and has performed its obligations under this Agreement and each other Credit
Document to which it is a party, in reliance upon the irrevocable grant of such
power of attorney pursuant to this subsection 12.8. The power of attorney
granted by each Subsidiary Borrower hereunder is coupled with an interest.
1.6
1.7 Judgment. (a) If for the purpose of obtaining judgment in any court it is
necessary to convert a sum due hereunder in one currency into another currency,
the parties hereto agree, to the fullest extent that they may effectively do so,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the first currency
with such other currency on the Business Day preceding the day on which final
judgment is given.
1.8
1.9 (b) The obligation of any Borrower in respect of any sum due to any Bank or
the Administrative Agent hereunder shall, notwithstanding any judgment in a
currency (the "Judgment Currency") other than that in which such sum is
denominated in accordance with the applicable provisions of this Agreement or
the other Credit Documents (the "Agreement Currency"), be discharged only to the
extent that on the Business Day following receipt by such Bank or the
Administrative Agent (as the case may be) of any sum adjudged to be so due in
the Judgment Currency such Bank or the Administrative Agent (as the case may be)
may in accordance with normal banking procedures purchase the Agreement Currency
with the Judgment Currency; if the amount of the Agreement Currency so purchased
is less than the sum originally due to such Bank or the Administrative Agent (as
the case may be) in the Agreement Currency, such Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such Bank or the
Administrative Agent (as the case may be) against such loss, and if the amount
of the Agreement Currency so purchased exceeds the sum originally due to any
Bank or the Administrative Agent (as the case may be), such Bank or the
Administrative Agent (as the case may be) agrees to remit to such Borrower such
excess.
1.10
1.11 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Agreement
signed by all the parties shall be lodged with the Company and the
Administrative Agent.
1.12
1.13 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
1.14
1.15 Integration. This Agreement and the other Credit Documents represent the
agreement of the Company, the Subsidiary Borrowers, the Administrative Agent and
the Banks with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Bank relative to subject matter hereof not expressly set forth or referred to
herein or in the other Credit Documents.
1.16
1.17 GOVERNING LAW. THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE OTHER CREDIT
DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
1.18
1.19 Submission To Jurisdiction; Waivers. (a) Each of the Company and the
Subsidiary Borrowers hereby irrevocably and unconditionally:
1.20
(i) submits for itself and its property in any legal action or proceeding
relating to this Agreement and the other Credit Documents to which it is a
party, or for recognition and enforcement of any judgement in respect thereof,
to the non-exclusive general jurisdiction of the Courts of the State of New
York, the courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(iii) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to the Company at its
address set forth in subsection 12.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(iv) agrees that nothing herein shall affect the right to effect service
of process in
any other manner permitted by law or shall limit the right to sue in any other
jurisdiction;
and
(v) waives, to the maximum extent not prohibited by law, any right it may
have to claim or recover in any legal action or proceeding referred to in this
subsection any special, exemplary, punitive or consequential damages.
(b) Each Subsidiary Borrower hereby irrevocably appoints the Company
as its agent for service of process in any proceeding referred to in subsection
12.14(a) and agrees that service of process in any such proceeding may be made
by mailing or delivering a copy thereof to it care of the Company at its address
for notice set forth in subsection 12.2.
1.1 Acknowledgments. Each of the Company and the Subsidiary Borrowers hereby
acknowledges that:
1.2
(a) it has been advised by counsel in the negotiation, execution and delivery
of this Agreement and the other Credit Documents;
(a) none of the Administrative Agent or any Bank has any fiduciary relationship
with or duty to the Company and the Subsidiary Borrowers arising out of or in
connection with this Agreement or any of the other Credit Documents, and the
relationship between the Administrative Agent and the Banks, on one hand, and
the Company and the Subsidiary Borrowers, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor; and
(a) no joint venture is created hereby or by the other Credit Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Banks or among the Company and the Subsidiary Borrowers and the Banks.
1.1 WAIVERS OF JURY TRIAL. THE COMPANY, THE SUBSIDIARY BORROWERS, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
1.1
1.2
ARROW ELECTRONICS, INC.
By: /s/ Robert E. Klatell
------------------------
Name: Robert E. Klatell
Title: Executive Vice President
ARROW ELECTRONICS GmbH
By: /s/ Robert E. Klatell
------------------------
Name: Robert E. Klatell
Title: Managing Director
ARROW ELECTRONICS (UK) LTD.
By: /s/ Robert E. Klatell
------------------------
Name: Robert E. Klatell
Title: Vice President
THE CHASE MANHATTAN BANK, as
Administrative Agent, as an Agent and as a Bank
By: /s/ Michael Lancia
---------------------
Name: Michael Lancia
Title: Vice President
BANCA POPOLARE DI MILANO
By: /s/ Fulvio Montanari
-----------------------
Name: Fulvio Montanari
Title: First Vice President
By: /s/ Esperanza Quintero
-------------------------
Name: Esperanza Quintero
Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ J. Alan Edwards
----------------------
Name: J. Alan Edwards
Title: Authorized Signatory
BANKERS TRUST COMPANY
By: /s/ Gina S. Thompson
-----------------------
Name: Gina S. Thompson
Title: Vice President
BANQUE NATIONALE DE PARIS
By: /s/ Richard L. Sted
----------------------
Name: Richard L. Sted
Title: Senior Vice President
By: /s/ Richard Pace
-------------------
Name: Richard Pace
Title: Vice President
Corporate Banking Division
BAYERISCHE LANDESBANK
GIROZENTRALE, CAYMAN ISLANDS
BRANCH
By: /s/ Peter Obermann
---------------------
Name: Peter Obermann
Title: Senior Vice President
By: /s/ James H. Boyle
---------------------
Name: James H. Boyle
Title: Second Vice President
CARIPLO-CASSA DI RISPARMIO DELLE
PROVINCIE LOMBARDE S.P.A.
By: /s/ Charles W. Kennedy
-------------------------
Name: Charles W. Kennedy
Title: F.V.P.
By: /s/ Maria Elena Greene
-------------------------
Name: Maria Elena Greene
Title: A.V.P.
CREDIT INDUSTRIEL ET COMMERCIAL
(C.I.C. PARIS)
By: /s/ R. Barrois
-----------------
Name: R. Barrois
Title:
By: /s/ S. Francis
-----------------
Name: S. Francis
Title:
DEN DANSKE BANK AKTIESELSKAB,
CAYMAN ISLANDS BRANCH
By: /s/ Peter L. Hargraves
-------------------------
Name: Peter L. Hargraves
Title: Vice President
By: /s/ John A. O'Neill
----------------------
Name: John A. O'Neill
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ David R. Arias
---------------------
Name: David R. Arias
Title: Corporate Banking Officer
FLEET BANK, NATIONAL ASSOCIATION
By: /s/ Magda Hayden
-------------------
Name: Magda Hayden
Title: Senior Vice President
HSBC BANK USA
By: /s/ Rochelle Forster
-----------------------
Name: Rochelle Forster
Title: Vice President
MELLON BANK, N.A.
By: /s/ Laurie G. Dunn
---------------------
Name: Laurie G. Dunn
Title: Vice President
NATIONSBANK, N.A.
By: /s/ Sharon Ellis
-------------------
Name: Sharon Ellis
Title: Vice President
STANDARD CHARTERED BANK
By: /s/ David D. Cutting
-----------------------
Name: David D. Cutting
Title: Senior Vice President
By: /s/ Kristina McDavid
-----------------------
Name: Kristina McDavid
Title: Vice President
COMMERCIAL PAPER
PRIVATE PLACEMENT AGREEMENT,
4(2) Program,
among
ARROW ELECTRONICS, INC., as Issuer,
and,
as Placement Agents,
CHASE SECURITIES INC.,
BANK OF AMERICA SECURITIES LLC,
GOLDMAN, SACHS & CO., and
MORGAN STANLEY & CO. INCORPORATED,
Concerning Notes to be issued pursuant to an Issuing
and Paying Agency Agreement dated as of November 9,
1999, between the Issuer and The Chase Manhattan
Bank, as Issuing and Paying Agent.
Dated as of
November 9, 1999
COMMERCIAL PAPER
PRIVATE PLACEMENT AGREEMENT
This agreement ("Agreement") sets forth the understandings among the Issuer
and the Placement Agents (each an "Agent" and collectively the "Agents") in
connection with the issuance and sale by the Issuer of its short-term promissory
notes through the Agents (the "Notes").
Certain terms used in this Agreement are defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits described in
this Agreement or such Addendum, are hereby incorporated into this Agreement and
made fully a part hereof.
Section 1. Offers, Sales and Resales of Notes.
1.1 While (i) the Issuer has and shall have no obligation to sell the
Notes to the Agents or to permit the Agents to arrange any sale of the Notes for
the account of the Issuer, and (ii) the Agents have and shall have no obligation
to purchase the Notes from the Issuer or to arrange any sale of the Notes for
the account of the Issuer, the parties hereto agree that in any case where any
Agent purchases Notes from the Issuer, or arranges for the sale of Notes by the
Issuer, such Notes will be purchased or sold by such Agent in reliance on the
representations, warranties, covenants and agreements of the Issuer contained
herein or made pursuant hereto and on the terms and conditions and in the manner
provided herein.
1.2 So long as this Agreement shall remain in effect, and in addition to
the limitations contained in Section 1.7 hereof, the Issuer shall not, without
the consent of each Agent, offer, solicit or accept offers to purchase, or sell,
any Notes except (a) in transactions with one or more agents which may from time
to time after the date hereof become agents with respect to the Notes by
executing with the Issuer one or more agreements which contain provisions
substantially identical to Section 1 of this Agreement, of which the Issuer
hereby undertakes to provide each Agent prompt notice or (b) in transactions
with one of the Agents. In no event shall the Issuer offer, solicit or accept
offers to purchase, or sell, any Notes directly on its own behalf in
transactions with persons other than agents as specifically permitted in this
Section 1.2.
1.3 The Notes shall be in a minimum denomination or minimum amount,
whichever is applicable, of $250,000 or integral multiples of $1,000 in excess
thereof, will bear such interest rates, if interest bearing, or will be sold at
such discount from their face amounts, as shall be agreed upon by the relevant
Agent and the Issuer, shall have (a) maturities not exceeding 180 days from the
date of issuance (exclusive of days of grace) for Notes sold from the date of
this Agreement to May 31, 2000, and, thereafter, (b) maturities not exceeding
270 days from date of issuance (exclusive of days of grace), and shall not
contain any provision for extension, renewal or automatic "rollover."
1.4 The authentication, delivery and payment of the Notes shall be
effected in accordance with the Issuing and Paying Agency Agreement and the
Notes shall be either individual bearer physical certificates or represented by
book-entry Notes registered in the name of DTC or its nominee in the form or
forms annexed to the Issuing and Paying Agency Agreement
1.5 If the Issuer and any Agent shall agree on the terms of the purchase
of any Note by such Agent or the sale of any Note arranged by such Agent
(including, but not limited to, agreement with respect to the date of issue,
purchase price, principal amount, maturity and interest rate (in the case of
interest-bearing Notes) or discount thereof (in the case of Notes issued on a
discount basis), and appropriate compensation for the Agent's services
hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be
issued and delivered in accordance with the terms of the Issuing and Paying
Agency Agreement and payment for such Note shall be made by the purchaser
thereof, either directly or through the Agent, to the Issuer. Except as
otherwise agreed, in the event that any Agent is acting as an agent and a
purchaser shall either fail to accept delivery of or make payment for a Note on
the date fixed for settlement, such Agent shall promptly notify the Issuer, and
if the Agent has theretofore paid the Issuer for the Note, the Issuer will
promptly return such funds to the Agent against its return of the Note to the
Issuer, in the case of a certificated Note, and upon notice of such failure in
the case of a book-entry Note. If such failure occurred for any reason other
than default or negligence by the Agent, the Issuer shall reimburse the Agent on
an equitable basis for the Agent's loss of the use of such funds for the period
such funds were credited to the Issuer's account.
1.6 The Agents and the Issuer hereby establish and agree to observe the
following procedures in connection with offers, sales and subsequent resales or
other transfers of the Notes:
(a) Offers and sales of the Notes by or through the Agents shall be made
only to: (i) investors reasonably believed by the relevant Agent to be Qualified
Institutional Buyers, Institutional Accredited Investors or Sophisticated
Individual Accredited Investors, and (ii) non-bank fiduciaries or agents that
will be purchasing Notes for one or more accounts, each of which the relevant
Agent reasonably believes to be an Institutional Accredited Investor.
(b) Resales and other transfers of the Notes by the holders thereof by or
through any Agent or the Issuer shall, in either case, be made only in
accordance with the restrictions in the legends described in clause (e) below.
(c) No general solicitation or general advertising shall be used in
connection with the offering of the Notes. Without limiting the generality of
the foregoing, without the prior written approval of each Agent, the Issuer
shall not issue any press release or place or publish any "tombstone" or other
advertisement relating to the Notes.
(d) No sale of Notes to any one purchaser shall be for less than $250,000
principal or face amount, and no Note shall be issued in a smaller principal or
face amount. If the purchaser is a non-bank fiduciary acting on behalf of
others, each person for whom such purchaser is acting must purchase at least
$250,000 principal or face amount of Notes.
(e) Offers and sales of the Notes by the Issuer through any Agent shall be
made in accordance with Rule 506 under the Securities Act, and shall be subject
to the restrictions described in the legend appearing on Exhibit A hereto. A
legend substantially to the effect of such Exhibit A shall appear as part of the
Private Placement Memorandum used in connection with offers and sales of Notes
hereunder, as well as on each Note offered and sold pursuant to this Agreement.
(f) Each Agent shall furnish or shall have furnished to each purchaser of
Notes being sold through such Agent to such ultimate purchaser for the first
time a copy of the then-current Private Placement Memorandum unless such
purchaser has previously received a copy of the Private Placement Memorandum as
then in effect. The Private Placement Memorandum shall expressly state that any
person to whom Notes are offered shall have an opportunity to ask questions of,
and receive information from, the Issuer and the relevant Agent and shall
provide the names, addresses and telephone numbers of the persons from whom
information regarding the Issuer may be obtained.
(g) The Issuer agrees, for the benefit of each Agent and each of the
holders and prospective purchasers from time to time of the Notes that, if at
any time the Issuer shall not be subject to Section 13 or 15(d) of the Exchange
Act, the Issuer will furnish, upon request and at its expense, to each Agent and
to holders and prospective purchasers of Notes information required by Rule
144A(d)(4)(i) in compliance with Rule 144A(d).
(h) In the event that any Note offered or to be offered by the Agents
would be ineligible for resale under Rule 144A, the Issuer shall immediately
notify each Agent (by telephone, confirmed in writing) of such fact and shall
promptly prepare and deliver to each Agent an amendment or supplement to the
Private Placement Memorandum describing the Notes that are ineligible, the
reason for such ineligibility and any other relevant information relating
thereto.
(i) The Issuer represents that it is not currently issuing commercial
paper in the United States market in reliance upon the exemption provided by
Section 3(a)(3) of the Securities Act. The Issuer agrees that, should it at any
time while any Notes are outstanding issue any commercial paper in reliance on
such exemption, (a) the proceeds from the sale of the Notes will be segregated
from the proceeds of the sale of such commercial paper by being placed in a
separate account, (b) the Issuer will institute appropriate corporate procedures
to ensure that the offers and sales of such commercial paper are not integrated
with the offering and sale of Notes hereunder, and (c) the Issuer will comply
with each of the requirements of the Securities Act in selling commercial paper
or other short-term debt securities other than the Notes in the United States.
1.7 The Issuer hereby represents and warrants to each Agent, in connection
with offers, sales and resales of Notes, as follows:
(a) The Issuer hereby confirms to the Agents that within the preceding six
months neither the Issuer nor any person other than the Agents or the other
agents referred to in Section 1.2 hereof acting on behalf of the Issuer has
offered or sold any Notes, or any substantially similar security of the Issuer
(including, without limitation, medium-term notes issued by the Issuer), to, or
solicited offers to buy any such security from, any person other than the Agents
or the other agents referred to in Section 1.2 hereof. The Issuer also agrees
that, as long as the Notes are being offered for sale by the Agents and the
other agents referred to in Section 1.2 hereof as contemplated hereby and until
at least six months after the offer of Notes hereunder has been terminated,
neither the Issuer nor any person other than the Agents or the other agents
referred to in Section 1.2 hereof (except as contemplated by Section 1.2 hereof)
will offer the Notes or any substantially similar security of the Issuer
(including, without limitation, medium-term notes issued by the Issuer) for sale
to, or solicit offers to buy any such security from, any person other than the
Agents and the other agents referred to in Section 1.2 hereof, it being
understood that such agreement is made with a view to bringing the offer and
sale of the Notes within the exemption provided by Section 4(2) of the
Securities Act and Rule 506 thereunder and shall survive any termination of this
Agreement. The Issuer hereby represents and warrants that it has not taken or
omitted to take, and will not take or omit to take, any action that would cause
the offering and sale of Notes hereunder to be integrated with any other
offering of securities, whether such offering is made by the Issuer or some
other party or
parties.
(b) The Issuer represents and agrees that the proceeds of the sale of the
Notes will not be currently used for the purpose of buying, carrying or trading
securities within the meaning of Regulation T and the interpretations thereunder
by the Board of Governors of the Federal Reserve System, but it is contemplated
that the proceeds may be used for such purposes in the future. In the event
that the Issuer determines in the future to use the proceeds of the sale of the
Notes for the purpose of buying, carrying or trading securities, whether in
connection with an acquisition of another company or otherwise, the Issuer shall
give each Agent at least three business days' prior written notice to that
effect. The Issuer shall also give each Agent prompt notice of the actual date
that it commences to purchase securities with the proceeds of the Notes.
Thereafter, and until the time that the Issuer informs the Agents that it is no
longer using the proceeds from the sale of the Notes for such purposes, and,
further, until such time that the amount outstanding from the date of the notice
is reduced to zero, in the event that any Agent purchases Notes as principal and
does not resell such Notes on the day of such purchase, to the extent necessary
to comply with Regulation T and the interpretations thereunder, such Agent will
sell such Notes either (i) only to offerees it reasonably believes to be QIBs or
to QIBs it reasonably believes are acting for other QIBs, in each case in
accordance with Rule 144A or (ii) in a manner which would not cause a violation
of Regulation T and the interpretations thereunder.
Section 2. Representations and Warranties of Issuer.
The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in
good standing under the laws of New York and has all the requisite corporate
power and authority to execute, deliver and perform its obligations under the
Notes, this Agreement, and the Issuing and Paying Agency Agreement.
2.2 Each of this Agreement and the Issuing and Paying Agency Agreement has
been duly authorized, executed and delivered by the Issuer and constitutes the
legal, valid and binding obligation of the Issuer enforceable against the Issuer
in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance reorganization and similar laws affecting creditors'
rights generally, and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law).
2.3 The Notes have been duly authorized, and when issued, delivered and
paid for as provided in the Issuing and Paying Agency Agreement, will be duly
and validly issued and delivered and will constitute legal, valid and binding
obligations of the Issuer enforceable against the Issuer in accordance with
their terms, subject to applicable bankruptcy, insolvency fraudulent conveyance
reorganization and similar laws affecting creditors' rights generally, and
subject, as to enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of Notes in the manner contemplated hereby do not
require registration of the Notes under the Securities Act, pursuant to the
exemption from registration contained in Section 4(2) thereof, and no indenture
in respect of the Notes is required to be qualified under the Trust Indenture
Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and
unsubordinated indebtedness of the Issuer.
2.6 No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority, including the SEC, is
required to authorize, or is otherwise required in connection with the
execution, delivery or performance by the Issuer of, this Agreement, the Notes
or the Issuing and Paying Agency Agreement, except as may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing
and Paying Agency Agreement, nor the issuance and delivery of the Notes in
accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of
or compliance with the terms and provisions hereof or thereof by the Issuer,
will (i) result in the creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of the
Issuer, or (ii) violate or result in a breach or an event of default under any
of (a) the terms of the Issuer's charter documents or by-laws, (b) any contract
or instrument to which the Issuer is a party or by which it or its property is
bound, or (c) any law or regulation, or any order, writ, injunction or decree of
any court or government instrumentality, to which the Issuer is subject or by
which it or its property is bound, which, in the case of (i) and (ii)(b) and
(c), would have a material adverse effect on the condition, financial or
otherwise, or the earnings or business affairs of the Issuer, the validity of
the Notes, or the ability of the Issuer to perform its obligations under this
Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no litigation or governmental proceeding pending, or to the
knowledge of the Issuer threatened, against or affecting the Issuer or any of
its subsidiaries which is reasonably likely to have a material adverse effect on
the condition, financial or otherwise, or the earnings or business affairs of
the Issuer or the ability of the Issuer to perform its obligations under this
Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an "investment company" or an entity "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information
contains any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. The
foregoing representation shall not apply to Agent Information.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment
or supplement of the Private Placement Memorandum shall be deemed a
representation and warranty by the Issuer to the Agents, as of the date thereof,
that, both before and after giving effect to such issuance and after giving
effect to such amendment or supplement, (i) the representations and warranties
given by the Issuer set forth above in this Section 2 remain true and correct on
and as of such date as if made on and as of such date, (ii) in the case of an
issuance of Notes, the Notes being issued on such date have been duly and
validly issued and constitute legal, valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law), and (iii) the Issuer is not in default of any of its obligations
hereunder, under the Notes, or under the Issuing and Paying Agency Agreement,
(iv) in the case of an issuance of Notes, since the date of the most recent
Private Placement Memorandum, there has been no material adverse change and no
development which will result in a prospective material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs of the
Issuer whether or not arising in the ordinary course of business which has not
been disclosed to each Agent in writing.
Section 3. Covenants and Agreements of Issuer
The Issuer covenants and agrees that:
3.1 The Issuer will give each Agent prompt notice (but in any event prior
to any subsequent issuance of Notes hereunder) of any amendment to, modification
of, or waiver with respect to, the Notes, or the Issuing and Paying Agency
Agreement, including a complete copy of any such amendment, modification or
waiver.
3.2 The Issuer shall, whenever there shall occur any material adverse
change and or any development which will result in a prospective material
adverse change in the condition, financial or otherwise, or in the earnings or
business affairs of the Issuer or any development or occurrence in relation to
the Issuer that would be material to holders of the Notes or potential holders
of the Notes (including any downgrading or receipt of any notice of intended or
potential downgrading or any review for potential change in the rating accorded
any of the Issuer's securities by any nationally recognized statistical rating
organization which has published a rating of the Notes), promptly, and in any
event prior to any subsequent issuance of Notes hereunder, notify each Agent (by
telephone, confirmed in writing) of such change, development, or occurrence.
3.3 The Issuer shall from time to time furnish to each Agent such
information as the Agent may reasonably request, including, without limitation,
any press releases or material provided by the Issuer to any national securities
exchange or rating agency, regarding (i) the Issuer's operations and financial
condition, (ii) the due authorization and execution of the Notes, and (iii) the
Issuer's ability to pay the Notes as they mature.
3.4 The Issuer will take all such action as any Agent may reasonably
request to ensure that each offer and each sale of the Notes will comply with
any applicable state Blue Sky laws; provided, that the Issuer shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified or
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
3.5 The Issuer will not be in default of any of its obligations hereunder,
under the Notes, or under the Issuing and Paying Agency Agreement, at any time
that any of the Notes are outstanding.
3.6 The Issuer shall not issue Notes hereunder until each Agent shall have
received (a) an opinion of counsel to the Issuer, addressed to the Agents,
satisfactory in form and substance to each Agent, (b) a copy of the executed
Issuing and Paying Agency Agreement as then in effect, (c) a copy of resolutions
adopted by the Board of Directors of the Issuer, satisfactory in form and
substance to each Agent and certified by the Secretary or similar officer of the
Issuer, authorizing execution and delivery by the Issuer of this Agreement the
Issuing and Paying Agency Agreement and the Notes and consummation by the Issuer
of the transactions contemplated hereby and thereby, (d) prior to the issuance
of any Notes represented by a book-entry note registered in the name of DTC or
its nominee, a copy of the executed Letter of Representations among the
Issuer, the Issuing and Paying Agent and DTC, and (e) such other certificates,
opinions, letters and documents as any Agent shall have reasonably requested.
3.7 The Issuer shall reimburse each Agent for such Agent's reasonable out-
of-pocket expenses related to the transactions contemplated hereby , and, if
applicable, for the reasonable fees and out-of-pocket expenses of such Agent's
counsel. Notwithstanding the foregoing, the Agent shall not incur any expense
to be covered under this section 3.7 without the prior written consent of the
Issuer.
Section 4. Disclosure
4.1 The Private Placement Memorandum and its contents (other than the
Agent Information) shall be the sole responsibility of the Issuer. The Private
Placement Memorandum shall contain a statement expressly offering an opportunity
for each prospective purchaser to ask questions of, and receive answers from,
the Issuer concerning the offering of Notes and to obtain relevant additional
information which the Issuer possesses or can acquire without unreasonable
effort or expense.
4.2 The Issuer agrees promptly to furnish to each Agent the Company
Information as it becomes available.
4.3 (a) The Issuer further agrees to notify each Agent promptly upon the
occurrence of any event relating to or affecting the Issuer that would cause the
Company Information then in existence to include an untrue statement of material
fact or to omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they are
made, not misleading.
(b) In the event that the Issuer gives the Agents notice pursuant to
Section 4.3(a) and any Agent notifies the Issuer that it then has Notes it is
holding in inventory, the Issuer agrees promptly to supplement or amend the
Private Placement Memorandum so that such Private Placement Memorandum, as
amended or supplemented, shall not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and the Issuer shall make such supplement or amendment available to
each Agent.
(c) In the event that (i) the Issuer gives the Agents notice pursuant
to Section 4.3(a) and (ii) no Agent notifies the Issuer that it is then holding
Notes in inventory and (iii) the Issuer chooses not to promptly amend or
supplement the Private Placement Memorandum in the manner described in clause
(b) above, then all solicitations and sales of Notes shall be suspended until
such time as the Issuer has so amended or supplemented the Private Placement
Memorandum, and made such amendment or supplement available to each Agent.
Section 5. Indemnification and Contribution
5.1 The Issuer will indemnify and hold harmless each Agent, each
individual, corporation, partnership, trust, association or other entity
controlling any Agent, any affiliate of any Agent or any such controlling entity
and their respective directors, officers or employees (hereinafter the
"Indemnitees") against any and all liabilities, penalties, suits, causes of
action, losses, damages, claims, costs and expenses (including, without
limitation reasonable fees and disbursements of counsel) or judgments of
whatever kind or nature (each a "Claim"), imposed upon, incurred by or asserted
against the Indemnitees arising out of or based upon (i) any allegation that the
Private Placement Memorandum, the Company Information or any information
provided by the Issuer to the Agents included (as of any relevant time) or
includes an untrue statement of a material fact or omitted (as of any relevant
time) or omits to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (ii) arising out of or based upon the breach by the Issuer of any
agreement, covenant or representation made in or pursuant to this Agreement.
This indemnification shall not apply to the extent that the Claim arises out of
or is based upon the Agent Information of the relevant Agent.
5.2 Provisions relating to claims made for indemnification under this
Section 5 are set forth on Exhibit B to this Agreement.
5.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 5 is
held to be unavailable or insufficient to hold harmless the Indemnitees,
although applicable in accordance with the terms of this Section 5, the Issuer
shall contribute to the aggregate costs incurred by any Indemnitee in connection
with any Claim in the proportion of the respective economic interests of the
Issuer and such Indemnitee; provided, however, that such contribution by the
Issuer shall be in an amount such that the aggregate costs incurred by such
Indemnitee do not exceed the aggregate of the commissions and fees earned by the
relevant Agent hereunder with respect to the issue or issues of Notes to which
such Claim relates. The respective economic interests shall be calculated by
reference to the aggregate proceeds to the Issuer of the Notes issued hereunder
and the aggregate commissions and fees earned by the relevant Agent hereunder.
Section 6. Definitions.
6.1 "Claim" shall have the meaning set forth in Section 5.1.
6.2 "Company Information" at any given time shall mean the Private
Placement Memorandum together with, to the extent applicable, (i) the Issuer's
most recent report on Form 10-K filed with the SEC and each report on Form 10-Q
or 8-K filed by the Issuer with the SEC since the most recent Form 10-K, (ii)
the Issuer's most recent annual audited financial statements and each interim
financial statement or report prepared subsequent thereto, if not included in
item (i) above, (iii) the Issuer's and its affiliates' other publicly available
recent reports, including, but not limited to, any publicly available filings or
reports provided to their respective shareholders, (iv) any other information or
disclosure prepared pursuant to Section 4.3 hereof, and (v) any information
prepared or approved by the Issuer for dissemination to investors or potential
investors in the Notes.
6.3 "Agent Information" shall mean, with respect to each Agent,
information concerning such Agent and its affiliates and provided by such Agent
in writing expressly for inclusion in the Private Placement Memorandum.
6.4 "DTC" shall mean The Depository Trust Company.
6.5 "Exchange Act" shall mean the U.S. Securities Exchange Act of 1934, as
amended.
6.6 "Indemnitee" shall have the meaning set forth in Section 5.1.
6.7 "Institutional Accredited Investor" shall mean an institutional
investor that is an accredited investor within the meaning of Rule 501 under the
Securities Act and that has such knowledge and experience in financial and
business matters that it is capable of evaluating and bearing the economic risk
of an investment in the Notes, including, but not limited to, a bank, as defined
in Section 3(a)(2) of the Securities Act, or a savings and loan association or
other institution, as defined in Section 3(a)(5)(A) of the Securities Act,
whether acting in its individual or fiduciary capacity.
6.8 "Issuing and Paying Agency Agreement" shall mean the issuing and
paying agency agreement described on the cover page of this Agreement, as such
agreement may be amended or supplemented from time to time.
6.9 "Issuing and Paying Agent" shall mean the party designated as such on
the cover page of this Agreement, as issuing and paying agent under the Issuing
and Paying Agency Agreement, or any successor thereto in accordance with the
Issuing and Paying Agency Agreement.
6.10 "Non-bank fiduciary or agent" shall mean a fiduciary or agent other
than (a) a bank, as defined in Section 3(a)(2) of the Securities Act, or (b) a
savings and loan association, as defined in Section 3(a)(5)(A) of the Securities
Act.
6.11 "Private Placement Memorandum" shall mean offering materials prepared
in accordance with Section 4 (including materials referred to therein or
incorporated by reference therein) provided to purchasers and prospective
purchasers of the Notes, and shall include amendments and supplements thereto
which may be prepared from time to time in accordance with this Agreement (other
than any amendment or supplement that has been completely superseded by a later
amendment or supplement).
6.12 "Qualified Institutional Buyer" shall have the meaning assigned to
that term in Rule 144A under the Securities Act.
6.13 "Rule 144A" shall mean Rule 144A under the Securities Act.
6.14 "SEC" shall mean the U.S. Securities and Exchange Commission.
6.15 "Securities Act" shall mean the U.S. Securities Act of 1933, as
amended.
Section 7. General
7.1 Unless otherwise expressly provided herein, all notices under this
Agreement to parties hereto shall be in writing and shall be effective when
received at the address of the respective party set forth in the Addendum to
this Agreement.
7.2 This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to its conflict of laws
provisions.
7.3 The Issuer agrees that any suit, action or proceeding brought by the
Issuer against the Agent in connection with or arising out of this Agreement or
the Notes or the offer and sale of the Notes shall be brought solely in the
United States federal courts located in the borough of Manhattan or the courts
of the State of New York located in the Borough of Manhattan. EACH OF THE AGENT
AND THE ISSUER WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
7.4 This Agreement may be terminated at any time, by the Issuer with
respect to any Agent, upon one business day's prior notice to such Agent, or by
any Agent with respect to such itself, upon one business day's prior notice to
the Issuer. Any such termination, however, shall not affect (a) the obligations
of the Issuer to such Agent under Sections 3.7, 5, 7.3, and, for a period of
seven business days after such termination Section 4.3, hereof, (b) the validity
of this Agreement as between the Issuer and the other Agents, or (c) the
respective representations, warranties, agreements, covenants, rights or
responsibilities of the parties made or arising prior to the termination of this
Agreement.
7.5 This Agreement is not assignable by any party hereto without the
written consent of the other parties; provided, however, that the any Agent may
assign its rights and obligations under this Agreement to any affiliate.
7.6 This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
7.7 This Agreement is for the exclusive benefit of the parties hereto and
their respective successors and assigns hereunder and shall not be deemed to
give any right, remedy, or claim to any other person whatsoever.
7.8 The Issuer acknowledges that the Agents are acting severally, and not
jointly, under this Agreement, and that no Agent shall have any responsibility
whatsoever for any act or undertaking by any other Agent under or in connection
with this Agreement.
[signatures are on the following page]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date and year first above written.
ARROW ELECTRONICS, INC.,
As Issuer
By:
------------------------------
Name:
---------------------------
Title:
---------------------------
CHASE SECURITIES INC.,
As Agent
By:
------------------------------
Name:
---------------------------
Title:
---------------------------
BANK OF AMERICA SECURITIES LLC,
As Agent
By:
------------------------------
Name:
---------------------------
Title:
---------------------------
GOLDMAN, SACHS & CO.,
As Agent
By:
------------------------------
Name:
---------------------------
Title:
---------------------------
MORGAN STANLEY & CO. INCORPORATED,
As Agent
By:
------------------------------
Name:
---------------------------
Title:
---------------------------
Exhibit 21
ARROW ELECTRONICS, INC.
SUBSIDIARY LISTING
As of 12/31/99
1. Arrow Electronics, Inc. a New York corporation
2. Arrow Electronics Canada Ltd., a Canadian corporation
3. Schuylkill Metals of Plant City, Inc., a Delaware corporation
4. Arrow Altech Holdings (Pty) Ltd., a South African company and
subsidiary:
A. Arrow Altech Distribution (Pty) Ltd., a South African
company
5. Gates/Arrow Distributing, Inc., a Delaware corporation
6. Consan Incorporated., a Minnesota corporation (75% owned)
7. SN Holding, Inc. a Delaware corporation (100% owned) and
subsidiary:
A. Support Net, Inc., an Indiana corporation
8. SBM Holding, Inc., a Delaware Corporation (84% owned) and
subsidiary:
A. Scientific & Business Minicomputers, Inc., a Georgia
corporation
9. Arrow Electronics Distribution Group - Europe B.V., a Dutch
company, and subsidiaries which include:
A. Arrow Electronics UK Holding B.V., a British company, and
subsidiaries:
i. Electronic Services Distribution Ltd., a British
company
ii Arrow Electronics (UK) Ltd. a British company
iii. Multichip Information Technology Ltd., a British
company
B. Arrow Electronics (Espana) S.L., a Spanish company, and subsidiaries
which include:
i. ATD Microtronica SLU, a Spanish company
ii. Arrow-Iberia Electronica SLU, a Spanish company
C. EDI Electronics Distribution International France S.A., a
French company and subsidiaries:
1. Arrow Electronique S.A., a French company, and
subsidiaries:
a. CCI Electronique S.A., a French company
b. Arrow Computer Products S.N.C. a French company
and subsidiary:
i. Multichip GmbH, a German company.
D. Arrow Electronics GmbH, a German company, which owns a 100%
interest in Spoerle Electronic Handelsgesellschaft mbH, a
German company
E. Silverstar Ltd. S.p.A., an Italian company (98% owned) and
subsidiaries
F. Arrow Components Sweden AB, a Swedish Company and
subsidiaries which include:
1. Arrow Nordic Components AB, a Swedish company
2. Arrow Norway A/S, a Norwegian company
3. Microtronica A/S, a Norwegian company
4. Microtronica AB, a Swedish company
G. Arrow Denmark A/S, a Danish company
H. Arrow Finland Oy, a Finnish company and subsidiaries:
1. Microtronica Oy, a Finnish company
2. Arrow-Field EESTI AS, an Estonian company
10. Arrow Electronics, Australia Pty Ltd., an Australian company and
subsidiaries:
A. Veltek Australia Pty Ltd., an Australian company
B. Zatek Australia Pty Ltd., an Australian company
C. Gates/Arrow Distributing Pty. Ltd., an Australian
company
11. Components Agent Limited, a British Virgin Islands company (90%
owned) and subsidiaries which include:
A. Arrow/Components (HK) Ltd., a Hong Kong company
B. Arrow Korea (HK) Ltd., a Hong Kong company and subsidiary:
1. Arrow Electronics Korea Limited, a South Korean company
C. Arrow Electronics(S)Pte Ltd., a Singaporean company and
subsidiary:
1. Arrow Components(M)Sdn Bhd, a Malaysian company
D. Microtronica (HK) Ltd., a Hong Kong company
E. Microtronica(S)Pte. Ltd., a Singaporean company
F. Microtronica(M)Sdn Bhd, a Malayasian company
12. Texny (Holdings) Limited, a British Virgin Islands company and
subsidiary:
A. Texny (H.K.) Limited, a Hong Kong company
13. Strong Electronics Co., Ltd., a Taiwanese company
14. Arrow/Ally, Inc. a Taiwanese company (75% owned) and subsidiary:
A. Creative Model Limited, a Hong Kong company
15. Arrow Components (NZ) Limited, a New Zealand company (75% owned)
16. Panamericana Comercial Importadora S.A., a Brazilian company (66.67% owned)
17. Elko C.E., S.A., an Argentinean company (70% owned) and subsidiary
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statements
(Forms S-8 No. 333-70343, No. 333-45631, No. 33-55565, No. 33-66594, No. 33-
48252, No. 33-20428 and No. 2-78185) and in the related Prospectuses pertaining
to the employee stock plans of Arrow Electronics, Inc., in the Registration
Statement (Form S-3 No. 333-91387) and in the related Prospectus pertaining to
the registration and issuance of the senior notes and senior debentures of Arrow
Electronics, Inc., in the Registration Statement (Form S-3 No. 333-52695) and in
Amendment No. 1 to the Registration Statement (Form S-3 No. 333-19431) and in
the related Prospectuses pertaining to the registration and issuance of the
senior notes and senior debentures of Arrow Electronics, Inc., in Amendment No.
1 to the Registration Statement (Form S-3 No. 33-54473) and in the related
Prospectus pertaining to the registration of 1,376,843 shares of Arrow
Electronics, Inc. Common Stock, in Amendment No. 1 to the Registration Statement
(Form S-3 No. 33-67890) and in the related Prospectus pertaining to the
registration of 1,009,086 shares of Arrow Electronics, Inc. Common Stock, and in
Amendment No. 1 to the Registration Statement (Form S-3 No. 33-42176) and in the
related Prospectus pertaining to the registration of up to 944,445 shares of
Arrow Electronics, Inc. Common Stock held by Aquarius Investments Ltd. and
Andromeda Investments Ltd. of our report dated February 16, 2000 with respect to
the consolidated financial statements and schedule of Arrow Electronics, Inc.
included in this Annual Report on Form 10-K for the year ended December 31,
1999.
ERNST & YOUNG LLP
New York, New York
March 30, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND> THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION
EXTRACTED FROM THE 1999 10-K AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
<MULTIPLIER> 1,000
<CURRENCY> U.S.DOLLARS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-1-1999
<PERIOD-END> DEC-31-1999
<PERIOD-TYPE> 12-MOS
<EXCHANGE-RATE> 1
<CASH> 44,885
<SECURITIES> 0
<RECEIVABLES> 1,670,992
<ALLOWANCES> 32,338
<INVENTORY> 1,444,929
<CURRENT-ASSETS> 3,157,937
<PP&E> 389,637
<DEPRECIATION> 165,987
<TOTAL-ASSETS> 4,483,255
<CURRENT-LIABILITIES> 1,324,661
<BONDS> 1,533,421
0
0
<COMMON> 102,950
<OTHER-SE> 1,447,579
<TOTAL-LIABILITY-AND-EQUITY> 4,483,255
<SALES> 9,312,625
<TOTAL-REVENUES> 9,312,625
<CGS> 8,011,419
<TOTAL-COSTS> 8,973,964
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 26,151
<INTEREST-EXPENSE> 106,349
<INCOME-PRETAX> 231,205
<INCOME-TAX> 101,788
<INCOME-CONTINUING> 124,153
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 124,153
<EPS-BASIC> 1.31
<EPS-DILUTED> 1.29
</TABLE>
