CARTER, LEDYARD & MILBURN
Counsellors at Law
2 Wall Street
New York, New York 10005
(212) 238-8742
January 7, 1994
BY DIRECT EDGAR TRANSMISSION
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: Avnet, Inc.
Ladies and Gentlemen:
On behalf of Avnet, Inc., we are filing herewith a
Registration Statement on Form S-3 relating to a proposed
offering on a continuous or delayed basis, pursuant to Rule
415(a)(x) under the Securities Act of 1933, of up to
$200,000,000 aggregate principal amount of debt securities.
The required registration fee for this filing, in the amount
of $68,965.52, has been paid pursuant to Reg. section 202.3a.
If there are any questions with respect to the
enclosed material, please call the undersigned or Bernard
Cedarbaum of this office at (212) 732-3200.
Very truly yours,
/s/Stephen V. Burger
Stephen V. Burger
SVB:lrh
Enclosures
cc: David R. Birk, Esq.
<PAGE>
As filed with the Securities and Exchange Commission on January 7, 1994
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AVNET, INC.
(Exact name of registrant as specified in its charter)
New York 11-1890605
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
David R. Birk, Esq.
Senior Vice President and
General Counsel
Avnet, Inc.
80 Cutter Mill Road 80 Cutter Mill Road
Great Neck, New York 11021 Great Neck, New York 11021
(516) 466-7000 (516) 466-7000
(Address, including zip code, (Name, address, including
and telephone number, including zip code, and telephone
area code, of registrant's number, including area
principal executive offices) code, of agent for service)
COPIES TO:
Bernard Cedarbaum, Esq. Jonathan I. Mark, Esq.
Carter, Ledyard & Milburn Cahill Gordon & Reindel
2 Wall Street Eighty Pine Street
New York, New York 10005 New York, New York 10005
(212) 732-3200 (212) 701-3000
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this Registration Statement, as
determined by market conditions and other factors.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the
following box.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box. X
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed maximum Proposed maximum
Title of each class of securities Amount to be reg- offering price per aggregate offering Amount of registra-
to be registered istered unit price tion fee
<S> <C> <C> <C> <C>
Debt Securities................. $200,000,000(1) 100% (1)(2) $200,000,000(2) $68,965.52
<FN>
(1) If any Debt Securities are issued in a principal amount denom-
inated in a foreign currency, the amount to be registered shall be such
amount as shall result in an aggregate principal amount equivalent to
$200,000,000 at the time of the initial offerings. If any Debt Securities
are issued at an original issue discount, the amount to be registered shall
be increased so as to result in an aggregate offering price of all Debt
Securities equal to $200,000,000, and the proposed maximum offering price
per security will be correspondingly decreased.
(2) Estimated solely for the purpose of calculating the registration
fee. Excludes accrued interest, if any, from the date of issuance. <PAGE>
</FN>
</TABLE>
____________________________
The registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the regis-
trant shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
Information contained herein is subject to completion or amend-
ment. A registration statement relating to these securities has
been filed with the Securities and Exchange Commission. These
securities may not be sold nor may offers to buy be accepted
prior to the time the registration statement becomes effective.
This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of
these securities in any State in which such offer, solicitation
or sale would be unlawful prior to registration or qualification
under the securities laws of any such State.
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED JANUARY 7, 1994
PROSPECTUS
Avnet, Inc.
Debt Securities
Avnet, Inc., a New York corporation (the "Company"),
may offer, from time to time, debt securities consisting of
debentures, notes and/or other unsecured evidences of indebted-
ness (the "Debt Securities") at an aggregate principal amount not
to exceed $200,000,000 or, if the principal of the Debt Securi-
ties is payable in a foreign or composite currency, the equiva-
lent thereof at the time of the initial offerings. The Debt
Securities may be offered as separate series and may be offered
in amounts, at prices and on terms to be determined at the time
of sale. When a particular series of Debt Securities (the
"Offered Debt Securities") are offered, a supplement to this
Prospectus (a "Prospectus Supplement") will be delivered with
this Prospectus setting forth the terms of such Offered Debt
Securities, including, if applicable, the specific designation,
aggregate principal amount, denominations, currency, purchase
price, maturity, rate (which may be fixed or variable) and time
of payment of interest, redemption terms, and any listing on a
securities exchange of the Offered Debt Securities.
The Debt Securities may be issued in registered or
bearer form or both. In addition, all or a portion of the Debt
Securities of a series may be issued in temporary or permanent
global form. Debt Securities in bearer form will be offered only
to non-United States persons and to offices located outside the
United States of certain United States financial institutions.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROS-
PECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Offered Debt Securities may be sold directly by the
Company, or indirectly through agents designated from time to
time or through underwriters or dealers, or through a combination
of such methods. See "Plan of Distribution." If any agents of
the Company or any underwriters or dealers are involved in the
sale of the Offered Debt Securities, the names of such agents,
underwriters or dealers and any applicable commissions or
discounts will also be set forth in the Prospectus Supplement.
The net proceeds to the Company from such sale will be set forth
in the Prospectus Supplement.
The date of this Prospectus is ________ __, 1994.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and in accordance therewith files reports,
proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at
the public reference facilities maintained by the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the following regional offices of the
Commission: New York Regional Office, 7 World Trade Center, 13th
Floor, New York, New York 10048; and Chicago Regional Office,
Suite 1500, Northwest Atrium Center, 500 West Madison Avenue,
Chicago, Illinois 60661-2511. Copies of such materials can be
obtained at prescribed rates from the Public Reference Branch of
the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549. Such material can also be
inspected at the offices of the New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10005, and the Pacific Stock
Exchange, Inc., 301 Pine Street, San Francisco, California 94104
or 618 South Spring Street, Los Angeles, California 90014, on
which exchanges the common stock of the Company is listed.
This Prospectus constitutes a part of a Registration
Statement on Form S-3 (which, together with all amendments and
exhibits thereto, is referred to herein as the "Registration
Statement") filed by the Company with the Commission under the
Securities Act of 1933, as amended (the "Securities Act"). This
Prospectus omits certain of the information contained in the
Registration Statement, and reference is hereby made to the
Registration Statement for further information with respect to
the Company and the Debt Securities offered hereby. Any
statement contained herein concerning the provisions of any
contract or other document is not necessarily complete, and is
qualified in its entirety by reference to the copy of such
contract or other document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission.
The Registration Statement may be inspected without charge at the
office of the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and copies thereof may be
obtained from the Commission at prescribed rates.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the
Commission (File No. 1-4224) are incorporated herein by
reference:
1. The Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1993, and Amendment No. 1 to such
Report;
2. The Company's definitive proxy statement dated
October 15, 1993, for the annual meeting of the shareholders
of the Company held on November 17, 1993;
3. The Company's Quarterly Report on Form 10-Q for
the quarter ended October 1, 1993; and
4. The Company's Current Reports on Form 8-K bearing
cover dates of July 1, 1993, and January 6, 1994.
All documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act prior to the termination of the offering of the Debt Securi-
ties shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing of
such documents.
Any statement contained herein or in a document
incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that
a statement contained in any subsequently filed document deemed
to be incorporated herein or contained in the accompanying
Prospectus Supplement modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of the
Registration Statement or this Prospectus.
The Company will provide without charge to each person
to whom a copy of this Prospectus is delivered, on the written or
oral request of any such person, a copy of any or all of the
documents incorporated herein by reference (other than exhibits
to such documents, unless such exhibits are specifically
incorporated by reference into the documents that this Prospectus
incorporates). Requests for such copies should be directed to
Raymond Sadowski, Senior Vice President, Avnet, Inc., 80 Cutter
Mill Road, Great Neck, New York 11021 (telephone (516) 466-7000).
<PAGE>
THE COMPANY
The Company is the largest industrial distributor of
electronic components and computer products in the United States.
Its primary customers are original equipment manufacturers,
including military contractors. Electronic components are
shipped either as received from the Company's suppliers or with
assembly or other value added. The Company also produces or
distributes other electronic, electrical and video communications
products.
The Company's principal industry segments are as
follows:
1. The Electronic Marketing Group (86% of total sales
and 97% of earnings in the fiscal year ended June 30, 1993)
is engaged in the marketing, assembly and/or processing,
principally for industrial, commercial and military use, of
electronic and electromechanical components and computer
products. The Group's principal suppliers are Intel,
Motorola, National Semiconductor, Texas Instruments,
Advanced Micro Devices, Harris Corporation, AMP, Inc., ITT
Cannon, Bendix Corporation, Digital Equipment Corporation,
Connor Peripherals and Seagate Technology.
2. The Electrical and Industrial Group (8% of total
sales), which includes the Company's Brownell Electro and
Mechanics Choice operations, is engaged in the distribution
of electrical insulation, magnet wire, electrical motors and
parts, measuring instruments, control equipment, seals and
industrial maintenance products, and the production of
trophy component parts and certain other items.
3. The Video Communications Group (6% of total sales)
is engaged in the manufacture, assembly and marketing of
television signal processing and audio equipment.
On July 1, 1993, the Company acquired Hall-Mark
Electronics Corporation ("Hall-Mark") which, together with its
subsidiary Allied Electronics, Inc., was the third largest
electronics distributor in North America. For the twelve months
ended June 30, 1993, Hall-Mark had sales of $744 million. The
acquisition added approximately 25,000 customers and additional
distribution franchises to the Company's Electronic Marketing
Group.
The principal executive offices of the Company are
located at 80 Cutter Mill Road, Great Neck, New York 11021,
telephone (516) 466-7000.
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of the Company's
earnings to fixed charges, on a consolidated basis, for the
periods indicated:
<TABLE>
<CAPTION>
Three months Year ended June 30,
ended
October 1, 1993 1993 1992 1991 1990 1989
<C> <C> <C> <C> <C> <C>
5.1.* 8.7 5.5 6.2 5.5 4.6
<FN>
* Income from continuing operations before income taxes for
the three months ended October 1, 1993, includes
restructuring and integration charges of $22.7 million in
connection with the acquisition of Hall-Mark. Had such one-
time charges not been included, the ratio of earnings to
fixed charges for the three months ended October 1, 1993,
would have been 9.9 on a pro forma basis.
</FN>
</TABLE>
For purposes of the foregoing ratios, earnings were
calculated by adding fixed charges to income before income taxes,
and then deducting capitalized interest. Fixed charges were
calculated by adding interest expense (including amortization of
debt expense and any discount or premium relating to
indebtedness, and interest expense relating to certain
guarantees), capitalized interest and the interest component of
rental expense.
USE OF PROCEEDS
Except as may be set forth in a Prospectus Supplement,
the Company intends to use the net proceeds from the sale of the
Debt Securities for general corporate purposes, which may include
repayment of debt, capital expenditures, possible acquisitions
and working capital. Pending such use, the net proceeds may be
temporarily invested in short-term securities.
Depending on market conditions, the financial needs of
the Company and other factors, the Company may, from time to
time, undertake additional financings. The amount and timing of
such financings, if any, cannot be determined at this time.
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt
Securities sets forth certain general terms and provisions of the
Debt Securities to which any Prospectus Supplement may relate.
The particular terms of the Debt Securities offered by any
Prospectus Supplement (the "Offered Debt Securities") and the
extent, if any, to which such general provisions may apply to the
Offered Debt Securities will be described in the Prospectus
Supplement relating to such Offered Debt Securities.
The Debt Securities are to be issued under an Indenture
(the "Indenture"), to be dated as of January 1, 1994, between the
Company and The First National Bank of Chicago, as Trustee (the
"Trustee"), the form of which is filed as an exhibit to the
Registration Statement. The following summary of certain general
provisions of the Indenture and the Debt Securities does not
purport to be complete and is subject to, and is qualified in its
entirety by reference to, the provisions of the Indenture, in-
cluding the definitions therein of certain terms. Whenever
particular provisions in the Indenture are referred to herein,
such provisions are incorporated by reference herein. Unless
otherwise defined herein, all capitalized terms in this section
have the same meanings given to such terms in the Indenture.
General
The aggregate principal amount of Debt Securities which
can be issued under the Indenture is unlimited. The Debt
Securities to which this Prospectus relates will be issued from
time to time in one or more series in amounts the proceeds of
which will aggregate up to $200,000,000 and will be offered to
the public on terms determined by market conditions at the time
of sale. The Debt Securities will be unsecured and will rank
pari passu with all other unsecured and unsubordinated
indebtedness of the Company. The Indenture does not limit the
amount of other indebtedness or securities, other than certain
secured indebtedness as described below, that may be issued by
the Company.
Debt Securities of a series may be issued in registered
form ("Registered Securities") or bearer form ("Bearer
Securities") or both as specified in the terms of the series.
Debt Securities in bearer form will be offered only to non-United
States persons and to offices located outside the United States
of certain United States financial institutions. Debt Securities
of a series may be issued in whole or in part in the form of one
or more global securities ("Global Securities") registered in the
name of a depository or its nominee and, in such case, beneficial
interests in the Global Securities will be shown on, and
transfers thereof will be effected only through, records
maintained by the designated depository and its participants.
<PAGE>
Reference is made to the Prospectus Supplement relating
to the particular series of Offered Debt Securities offered
thereby for the following terms of the Offered Debt Securities:
* The designation, aggregate principal amount and autho-
rized denominations;
* The issue price expressed as a percentage of the aggre-
gate principal amount;
* The date or dates of maturity;
* The interest rate per annum (fixed or floating) or the
method by which such interest rate will be determined;
* The dates interest will commence accruing and, if
applicable, be paid and, for Registered Securities, the
record dates for interest payments;
* Where principal and interest, if any, will be paid;
* Any optional or mandatory sinking fund provisions;
* The dates and redemption prices relating to any
optional or mandatory redemption provisions and other
terms and provisions of any optional or mandatory
redemptions;
* The denominations of Registered Securities if other
than denominations of $1,000 and any multiple thereof,
and the denominations of Bearer Securities if other
than denominations of $5,000;
* The portion of the principal amount payable on declara-
tion of acceleration of maturity or provable in
bankruptcy, if other than the principal amount;
* Any Events of Default, if not set forth in the
Indenture;
* The currency or currencies, including composite curren-
cies, of payment of the principal of (and premium, if
any) and interest (if any), if other than the currency
of the United States of America;
* If the principal of (and premium, if any) or interest,
if any, are to be payable, at the election of the
Company or any Holder thereof, in coin or currency
other than that in which the Offered Debt Securities of
the series are stated to be payable, the period or
periods within which, and the terms and condition on
which, such election may be made;
* If such securities are to be denominated in a currency
or currencies, including composite currencies, other
than the currency of the United States of America, the
equivalent price in the currency of the United States
of America for purposes of determining the voting
rights of Holders of such Offered Debt Securities as
Outstanding Securities under the Indenture;
* If the amount of payments of principal of (and premium,
if any), or portions thereof, or interest may be deter-
mined with reference to an index, formula or other
method, the manner of determining such amounts;
* Whether the Offered Debt Securities will be issuable in
registered or bearer form or both, any restrictions
applicable to the offer, sale or delivery of the
Offered Debt Securities in bearer form, and whether the
Offered Debt Securities in bearer form will be
exchangeable (and the terms on which such exchange may
be made) for Offered Debt Securities in registered
form;
* Whether Offered Debt Securities will be issued in whole
or in part in the form of one or more Global Securities
and, if so, the method of transferring beneficial
interest in such Global Security or Global Securities;
* The application, if any, of certain provisions of the
Indenture relating to defeasance and discharge, and
related conditions;
* Any additional restrictive covenants or other material
terms relating thereto which may not be inconsistent
with the Indenture; and
* Any applicable federal income tax consequences.
Unless otherwise indicated in the Prospectus Supplement
relating thereto, principal (and premium, if any) will be
payable, and the Registered Securities will be transferable, at
the corporate trust office of the Trustee in New York, New York.
Unless other arrangements are made, interest, if any, will be
paid by checks mailed to the Holders of Registered Securities at
their registered addresses. To the extent set forth in the
Prospectus Supplement relating thereto, Bearer Securities and the
coupons appertaining thereto will be payable, against surrender
thereof, subject to any applicable laws and regulations, at the
offices of such paying agencies outside the United States as the
Company may appoint from time to time. No service charge will be
made for any transfer or exchange of the Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith.
One or more series of the Debt Securities may be issued
as discounted Debt Securities (bearing no interest or interest at
a rate which at the time of issuance is below market rates) to be
sold at a substantial discount below their stated principal
amount. Federal income tax consequences and other special
considerations applicable to any such discounted Debt Securities
will be described in the Prospectus Supplement relating thereto.
The Company will comply with Section 14(e) of the
Exchange Act, and any tender offer rules of the Commission under
the Exchange Act which may then be applicable, in connection with
any obligation of the Company to purchase Offered Debt Securities
at the option of the holders thereof. Any such obligation
applicable to a series of Debt Securities will be described in
the Prospectus Supplement or Prospectus Supplements relating
thereto.
The Company may at any time purchase Debt Securities at
any price in the open market or otherwise. Debt Securities so
purchased by the Company may, at its sole option, be held, resold
or surrendered to the Trustee for cancellation.
Certain Definitions
"Attributable Debt" means, as to any particular lease,
the greater of (i) the fair market value of the property subject
to the lease (as determined by the Company's Board of Directors),
or (ii) the total net amount of rent required to be paid during
the remaining term of the lease, discounted by the weighted
average effective interest cost per annum of the outstanding Debt
Securities of all series, compounded semi-annually.
"Consolidated Net Assets" means total assets after
deducting therefrom all current liabilities as set forth in the
most recent balance sheet of the Company and its consolidated
Subsidiaries and computed in accordance with generally accepted
accounting principles.
"Funded Debt" means (i) all indebtedness for money
borrowed having a maturity of more than twelve months from the
date as of which the determination is made or having a maturity
of twelve months or less but by its terms being renewable or
extendible beyond twelve months from such date at the option of
the borrower and, (ii) rental obligations payable more than
twelve months from such date under leases which are capitalized
in accordance with generally accepted accounting principles (such
rental obligations to be included as Funded Debt at the amount so
capitalized and to be included as an asset for the purposes of
the definition of Consolidated Net Assets).
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Principal Property" means any manufacturing or
processing plant or warehouse owned at the date hereof or
hereafter acquired by the Company or any Restricted Subsidiary of
the Company which is located within the United States and the
gross book value (including related land and improvements thereon
and all machinery and equipment included therein without
deduction of any depreciation reserves) of which on the date as
of which the determination is being made exceeds 2% of
Consolidated Net Assets, other than (i) any such manufacturing or
processing plant or warehouse or any portion thereof (together
with the land on which it is erected and fixtures comprising a
part thereof) which is financed by industrial development bonds
which are tax exempt pursuant to Section 103 of the Internal
Revenue Code (or which receive similar tax treatment under any
subsequent amendments thereto or any successor laws thereof or
under any other similar statute of the United States), (ii) any
property which in the opinion of the Company's Board of Directors
is not of material importance to the total business conducted by
the Company as an entirety, or (iii) any portion of a particular
property which is similarly found not to be of material
importance to the use or operation of such property.
"Restricted Subsidiary" means a Subsidiary of the
Company (i) substantially all the property of which is located,
or substantially all the business of which is carried on, within
the United States, and (ii) which owns a Principal Property.
"Subsidiary" means any corporation more than 50% of the
outstanding Voting Stock of which at the time of determination is
owned, directly or indirectly, by the Company and/or by one or
more other Subsidiaries.
"Voting Stock" means capital stock of a corporation of
the class or classes having general voting power under ordinary
circumstances to elect at least a majority of the Board of
Directors, managers or trustees of such corporation (irrespective
of whether or not at the time stock of any other class or classes
shall have or might have voting power upon the occurrence of any
contingency).
Highly Leveraged Transactions
Unless otherwise described in a Prospectus Supplement
relating to any Offered Debt Securities, there are no covenants
or provisions contained in the Indenture which may afford the
holders of Offered Debt Securities direct protection in the event
of a highly leveraged transaction involving the Company.
Restrictions on Secured Debt
The Company covenants in the Indenture, for the benefit
of each series of Debt Securities other than any series which
specifically provides otherwise, that if the Company or any
Restricted Subsidiary shall after the date of the Indenture incur
or guarantee any evidence of indebtedness for money borrowed
("Debt") secured by a mortgage, pledge or lien ("Mortgage") on
any Principal Property of the Company or any Restricted
Subsidiary, or on any share of stock or Debt of any Restricted
Subsidiary, the Company will secure or cause such Restricted
Subsidiary to secure the Debt Securities, other than any series
of Debt Securities established by or pursuant to a Board
Resolution or in one or more supplemental indentures which
specifically provide otherwise, equally and ratably with (or, at
the Company's option, prior to) such secured Debt, unless the
aggregate amount of all such secured Debt (plus all Attributable
Debt which is not excluded as described below under the caption
" -- Restrictions on Sale and Leaseback Financings") would not
exceed 10% of Consolidated Net Assets.
This restriction will not apply to, and there will be
excluded from secured Debt in any computation of the above
restriction, Debt secured by (a) Mortgages on property of, or on
any shares of stock of or Debt of, any corporation existing at
the time such corporation becomes a Restricted Subsidiary,
(b) Mortgages in favor of the Company or a Restricted Subsidiary,
(c) Mortgages in favor of governmental bodies to secure progress,
advance or other payments, (d) Mortgages on property, shares of
stock or Debt existing at the time of acquisition thereof
(including acquisition through merger or consolidation) and
purchase money and construction or improvement Mortgages which
are entered into within 180 days after the acquisition of such
property, shares or Debt or, in the case of real property, within
180 days after the later of (1) the completion of construction
on, substantial repair to, alteration or development of, or
substantial improvement to, such property, or (2) the
commencement of commercial operations on such property, (e)
mechanics' and similar liens arising in the ordinary course of
business in respect of obligations not due or being contested in
good faith, (f) Mortgages arising from deposits with, or the
giving of any form of security to, any governmental agency
required as a condition to the transaction of business or to the
exercise of any privilege, franchise or license, (g) Mortgages
for taxes, assessments or government charges or levies which are
not then due or, if delinquent, are being contested in good
faith, (h) Mortgages (including judgment liens) arising from
legal proceedings being contested in good faith, (i) Mortgages
existing at the date of the Indenture and (j) any extension,
renewal or refunding of any Mortgage referred to in the foregoing
clauses (a) through (i) inclusive.
Restrictions on Sale and Leaseback Financings
The Company covenants in the Indenture, for the benefit
of each series of Debt Securities other than any series which
specifically provides otherwise, that the Company will not
itself, and will not permit any Restricted Subsidiary to, enter
into any sale and leaseback transaction involving any Principal
Property, unless after giving effect thereto the aggregate amount
of all Attributable Debt with respect to all such transactions,
plus all secured Debt which is not excluded as described above
under the caption " -- Restrictions on Secured Debt," would not
exceed 10% of Consolidated Net Assets.
This restriction will not apply to, and there will be
excluded from Attributable Debt in any computation of the above
restriction, any sale and leaseback transaction if (a) the lease
is for a period, including renewal rights, of not in excess of
three years, (b) the sale or transfer of the Principal Property
is made within 180 days after its acquisition or after the later
of (1) the completion of construction on, substantial repair to,
alteration or development of, or substantial improvement to, such
property, or (2) the commencement of commercial operations
thereon, (c) the transaction is between the Company and a
Restricted Subsidiary, or between Restricted Subsidiaries, (d)
the Company or a Restricted Subsidiary would be entitled to incur
a Mortgage on such Principal Property securing Debt in an amount
equal to the Attributable Debt with respect to such transaction
without equally or ratably securing the Securities, or (e) the
Company or a Restricted Subsidiary, within 180 days after the
sale or transfer is completed, applies to the retirement of
Funded Debt of the Company or a Restricted Subsidiary ranking on
a parity with or senior to the Debt Securities, or to the
purchase of other property which will constitute a Principal
Property having a fair market value at least equal to the fair
market value of the Principal Property leased, an amount equal to
the greater of the net proceeds of the sale of the Principal
Property or the fair market value (as determined by the Company's
Board of Directors) of the Principal Property leased at the time
of entering into such arrangement (as determined by the Board of
Directors).
Restrictions on Mergers and Consolidations
The Company covenants in the Indenture that it will not
merge or sell, convey, transfer or lease all or substantially all
of its assets unless (i) the successor Person is the Company or
another Person organized under the laws of the United States
(including any state thereof and the District of Columbia) which
assumes the Company's obligations in the Debt Securities and
under the Indenture, and (ii) after giving effect to such
transaction, the Company or the successor Person would not be in
default under the Indenture.
Events of Default
The Indenture defines "Events of Default" with respect
to the Debt Securities of any series as being one of the
following events: (i) default in the payment of any installment
of interest on that series for 30 days after becoming due; (ii)
default in the payment of principal on that series when due;
(iii) default in the deposit of any sinking fund payment on that
series when due; (iv) default in the performance of any other
covenant in the Debt Securities of that series or the Indenture
(other than a covenant included in the Indenture solely for the
benefit of any series of Debt Securities other than that series)
for 90 days after notice; (v) certain events of bankruptcy,
insolvency or reorganization; and (vi) any other Event of Default
provided with respect to Debt Securities of that series. If an
Event of Default shall occur and be continuing with respect to
the Debt Securities of any series, either the Trustee or the
holders of at least 25% in principal amount of the Debt
Securities then outstanding of that series may declare the
principal amount of the Debt Securities of such series (or, in
the case of Debt Securities sold at an original issue discount,
the amount specified in the terms thereof) and the accrued
interest thereon, if any, to be due and payable. Under certain
conditions, such a declaration may be rescinded.
The Indenture provides that the Trustee shall, within
90 days after the occurrence of a default known to it, give the
affected holders of Debt Securities notice of all uncured
defaults known to it (the term "default" to mean the events
specified above without grace periods); provided that, except in
the case of default in the payment of principal of or interest on
any Debt Security, the Trustee shall be protected in withholding
such notice if it in good faith determines that the withholding
of such notice is in the interest of the affected holders of Debt
Securities.
The Company will be required to furnish to the Trustee
annually a statement by certain officers of the Company
certifying that there are no defaults or specifying any default.
The holders of a majority in principal amount of the
outstanding Debt Securities of any series will have the right,
subject to certain limitations, to direct the time, method and
place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the
Trustee with respect to the Debt Securities of such series, and
to waive certain defaults with respect thereto. The Indenture
provides that in case an Event of Default shall occur and be
continuing, the Trustee shall exercise such of its rights and
powers under the Indenture, and use the same degree of care and
skill in exercising the same, as a prudent Person would exercise
or use under the circumstances in the conduct of such Person's
own affairs. Subject to such provisions, the Trustee will be
under no obligation to exercise any of its rights or powers under
the Indenture at the request of any of the holders of Debt
Securities unless they shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by the Trustee in compliance
with such request.
Modification of the Indenture
With certain exceptions, the Indenture may be modified
or amended with the consent of the holders of not less than a
majority in principal amount of the outstanding Debt Securities
of each series affected by the modification; provided that no
such modification or amendment may be made, without the consent
of the holder of each Debt Security affected, which would (i)
reduce the principal amount of or the interest on any Debt
Security, or change the stated maturity of the principal of, or
any installment of interest on, any Debt Security or the other
terms of payment thereof, or (ii) reduce the above-stated
percentage of Debt Securities, the consent of the holders of
which is required to modify or amend the Indenture, or the
percentage of Debt Securities of any series, the consent of the
holders of which is required to waive certain past defaults.
Defeasance and Discharge
The Indenture provides that the Company may elect, with
respect to the Debt Securities of any series, to terminate (and
be deemed to have satisfied) any and all its obligations in
respect of such Debt Securities (except for certain obligations
to register the transfer or exchange of Debt Securities, to
replace stolen, lost or mutilated Debt Securities, to maintain
paying agencies and hold monies for payment in trust and, if so
specified with respect to the Debt Securities of a certain
series, to pay the principal of (and premium, if any) and
interest, if any, on such specified Debt Securities) on the 91st
day after the deposit with the Trustee, in trust, of money and/or
U.S. Government Obligations (as defined) which, through the
payment of interest thereon and principal thereof in accordance
with their terms, will provide money in an amount sufficient to
pay any installment of principal of (and premium, if any), and
interest, if any, on, and any mandatory sinking fund payments in
respect of, such Debt Securities on the stated maturity of such
payments in accordance with the terms of the Indenture and such
Debt Securities. Such a trust may be established only if, among
other things, the Company has delivered to the Trustee an Opinion
of Counsel (who may be counsel to the Company) to the effect
that, based upon applicable Federal income tax law or a ruling
published by the United States Internal Revenue Service, such a
defeasance and discharge will not be deemed, or result in, a
taxable event with respect to holders of such Debt Securities.
If so specified with respect to the Debt Securities of a series,
such a trust may be established only if establishment of the
trust would not cause the Debt Securities of any such series
listed on any nationally recognized securities exchange to be de-
listed as a result thereof.
Concerning the Trustee
The First National Bank of Chicago is the Trustee under
the Indenture and has been appointed by the Company as initial
Security Registrar with regard to the Debt Securities. The
Company currently does, and from time to time in the future may,
maintain lines of credit and have customary banking relationships
with the Trustee. The Trustee may serve as trustee for other
debt securities issued by the Company from time to time.
PLAN OF DISTRIBUTION
The Company may sell Offered Debt Securities (i) to or
through underwriters or dealers, (ii) through agents,
(iii) directly to purchasers, or (iv) through a combination of
any of the foregoing. Any such underwriter, dealer or agent may
be deemed to be an underwriter within the meaning of the
Securities Act. Any Prospectus Supplement relating to Offered
Debt Securities will set forth their offering terms, including
the name or names of any underwriters, the purchase price of the
Offered Debt Securities and the proceeds to the Company from such
sale, any underwriting discounts, commissions and other items
constituting underwriters' compensation, any initial public
offering price, any discounts or concessions allowed or reallowed
or paid to dealers, and any securities exchanges on which the
Offered Debt Securities may be listed.
If underwriters are used in the sale, the Offered Debt
Securities will be acquired by the underwriters for their own
account and may be resold from time to time in one or more
transactions, at a fixed price or prices, which may be changed,
or at market prices prevailing at the time of sale, or at prices
related to such prevailing market prices, or at negotiated
prices. The Offered Debt Securities may be offered to the public
either through underwriting syndicates represented by one or more
managing underwriters or directly by one or more of such firms.
Unless otherwise set forth in the Prospectus Supplement, the
obligations of the underwriters to purchase the Offered Debt
Securities will be subject to certain conditions precedent and
the underwriters will be obligated to purchase all the Offered
Debt Securities if any are purchased. Any initial public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
Under agreements which may be entered into by the Company,
underwriters, dealers and agents who participate in the
distribution of Offered Debt Securities may be entitled to
indemnification or contribution by the Company against certain
liabilities, including liabilities under the Securities Act.
The specific terms and manner of sale of Offered Debt
Securities are set forth or summarized in the Prospectus Supple-
ment.
If so indicated in the Prospectus Supplement, the
Company will authorize underwriters or other persons acting as
the Company's agents to solicit offers by certain institutions to
purchase Offered Debt Securities from the Company pursuant to
contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include
commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and
others, but in all cases will be subject to acceptance by the
Company. The obligations of any purchaser under any such
contracts will be subject to the conditions that the purchase of
Offered Debt Securities shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which such
purchaser is subject. The underwriters and such other persons
will not have any responsibility in respect of the validity or
performance of such contracts.
LEGAL MATTERS
The validity of the Offered Debt Securities will be
passed upon for the Company by David R. Birk, Senior Vice
President and General Counsel of the Company. Mr. Birk
beneficially owns 7,632 shares of the Company's common stock,
including 7,250 shares issuable upon exercise of employee stock
options. Certain legal matters with respect to the Offered Debt
Securities will be passed upon for the underwriters, dealers or
agents, if any, by Cahill Gordon & Reindel, a partnership
including a professional corporation, unless otherwise specified
in the Prospectus Supplement.
EXPERTS
The consolidated financial statements and schedules of
the Company and its subsidiaries incorporated by reference in
this Prospectus have been audited by Arthur Andersen & Co.,
independent public accountants, as indicated in their report with
respect thereto, and are included herein in reliance upon the
authority of said firm as experts in accounting and auditing in
giving said reports.
The consolidated financial statements of Hall-Mark and
its subsidiaries incorporated in this Prospectus by reference to
the Current Report on Form 8-K of the Company bearing cover date
of January 6, 1994, have been so incorporated in reliance on the
report of Coopers & Lybrand, independent accountants, given on
the authority of said firm as experts in auditing and accounting.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the registration of the
securities being offered hereby are estimated to be:
Securities and Exchange Commission
registration fee . . . . . . . . . . . . $ 68,966
Rating agency fees . . . . . . . . . . . . 120,000
Legal fees . . . . . . . . . . . . . . . . 75,000
Accounting fees . . . . . . . . . . . . . 60,000
Printing and engraving expenses . . . . . 8,000
Blue sky fees and expenses . . . . . . . . 7,500
Trustee's fees and expenses . . . . . . . 5,000
Miscellaneous . . . . . . . . . . . . . . 5,534
Total . . . . . . . . . . . . . . $350,000
Item 15. Indemnification of Directors and Officers.
Section 53 of the registrant's By-laws provides as
follows:
"Indemnification"
"53. A. The Corporation shall indemnify, and advance
the expenses of, any director, officer or employee to the
full extent permitted by the New York Business Corporation
Law as the same now exists or may hereafter be amended.
"B. The indemnification and advancement of expenses
granted pursuant to this Section 53 shall not be exclusive
or limiting of any other rights to which any person seeking
indemnification or advancement of expenses may be entitled
when authorized by (i) a resolution or shareholders, (ii) a
resolution of directors or (iii) an agreement providing for
such indemnification; provided that no indemnification may
be made to or on behalf of any such person if a judgment or
other final adjudication adverse to such person establishes
that his acts were committed in bad faith or were the result
of active and deliberate dishonesty and were material to the
cause of action so adjudicated, or that he personally gained
in fact a financial profit or other advantage to which he
was not legally entitled.
"C. No amendment, modification or rescission of these
By-laws shall be effective to limit any person's right to
indemnification with respect to any alleged cause of action
that accrues or other incident or matter that occurs prior
to the date on which such modification, amendment or rescis-
sion is adopted."
Section 721 of the New York Business Corporation Law
(the "B.C.L.") provides that no indemnification may be made to or
on behalf of any director or officer of the Registrant if "a
judgment or other final adjudication adverse to the director or
officer establishes that his acts were committed in bad faith or
were the result of active and deliberate dishonesty and were
material to the cause of action so adjudicated, or that he
personally gained in fact a financial profit or other advantage
to which he was not legally entitled." Section 53B of the Regis-
trant's By-laws includes the foregoing statutory language.
The rights granted under Section 53 of the By-laws are
in addition to, and are not exclusive of, any other rights to
indemnification and expenses to which any director or officer may
otherwise be entitled. Under the B.C.L., a New York corporation
may indemnify any director or officer who is made or threatened
to be made a party to an action by or in the right of such corpo-
ration against "amounts paid in settlement and reasonable expens-
es, including attorneys' fees," actually and necessarily incurred
by him in connection with the defense or settlement of such
action, or in connection with an appeal therein, if such director
or officer acted, in good faith, for a purpose which he reason-
ably believed to be in the best interests of the corporation,
except that no indemnification shall be made in respect of (1) a
threatened action, or a pending action which is settled or
otherwise disposed of, or (2) any claim, issue or matter as to
which such director or officer shall have been adjudged liable to
the corporation, unless and only to the extent that a court
determines that the director or officer is fairly and reasonably
entitled to indemnity (B.C.L. Section 722(c)). A corporation may
also indemnify directors and officers who are parties to other
actions or proceedings (including actions or proceedings by or in
the right of any other corporation or other enterprise which the
director or officer served at the request of the corporation)
against "judgments, fines, amounts paid in settlement and reason-
able expenses, including attorneys' fees," actually or necessari-
ly incurred as a result of such actions or proceedings, or any
appeal therein, provided the director or officer acted, in good
faith, for a purpose which he reasonably believed to be in the
best interests of the corporation (or in the case of service to
another corporation or other enterprise at the request of such
corporation, not opposed to the best interests of such corpora-
tion) and, in criminal cases, that he also had no reasonable
cause to believe that his conduct was unlawful (B.C.L. Section
722(a)). Any indemnification under Section 722 may be made only
if authorized in the specific case by disinterested directors, or
by the board of directors upon the opinion in writing of
independent legal counsel that indemnification is proper, or by
the shareholders (B.C.L. Section 723(b)), but even without such
authorization, a court may order indemnification in certain
circumstances (B.C.L. Section 724). Further, any director or
officer who is "successful, on the merits or otherwise," in the
defense of an action or proceeding is entitled to indemnification
as a matter of right (B.C.L. Section 723(a)).
A New York corporation may generally purchase insur-
ance, consistent with the limitations of New York insurance law
and regulatory supervision, to indemnify the corporation for any
obligation which it incurs as a result of the indemnification of
directors and officers under the provisions of the B.C.L., so
long as no final adjudication has established that the directors'
or officers' acts of active and deliberate dishonesty were
material to the cause of action so adjudicated or that the
directors or officers personally gained in fact a financial
profit or other advantage (B.C.L. Section 726).
The registrant's directors and officers are currently
covered as insureds under directors' and officers' liability
insurance. Such insurance, subject to annual renewal and certain
rights of the insurer to terminate, provides an aggregate maximum
of $50,000,000 of coverage for directors and officers of the
Registrant and its subsidiaries against claims made during the
policy period relating to certain civil liabilities, including
liabilities under the Securities Act of 1933.
Item 16. Exhibits.
Exhibit
No.
1 Form of Underwriting Agreement.
4 Form of Indenture between the registrant and The First
National Bank of Chicago, as Trustee.
5 Opinion of David R. Birk, Esq. with respect to the
legality of the securities being registered hereunder.
12 Statement of computation of ratios of earnings to fixed
charges.
23(a) Consent of Arthur Andersen & Co.
23(b) Consent of Coopers & Lybrand.
23(c) Consent of David R. Birk, Esq. (included in Exhibit 5).
24 Powers of Attorney.
25 Form T-1 Statement of Eligibility of The First National
Bank of Chicago under the Trust Indenture Act of 1939.
Item 17. Undertakings.
The undersigned registrant hereby undertakes as fol-
lows:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(a) to include any prospectus required by section
10(a)(3) of the Securities Act of 1933 (the "1933
Act"), unless the information required to be included
in such post-effective amendment is contained in a
periodic report filed by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of
1934 (the "1934 Act") that is incorporated herein by
reference;
(b) to reflect in the prospectus any facts or
events arising after the effective date of the regis-
tration statement (or the most recent post-effective
amendment thereof) which, individually or in the ag-
gregate, represent a fundamental change in the informa-
tion set forth in the registration statement, unless
the information required to be included in such post-
effective amendment is contained in a periodic report
filed by the registrant pursuant to Section 13 or 15(d)
of the 1934 Act that is incorporated herein by refer-
ence; and
(c) to include any material information with
respect to the plan of distribution not previously
disclosed in this Registration Statement or any mate-
rial change to such information in the registration
statement.
(2) That, for the purpose of determining any liability
under the 1933 Act, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securi-
ties at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purposes of determining any liabili-
ty under the 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of
the 1934 Act that is incorporated by reference in this
Registration Statement shall be deemed to be a new registra-
tion statement relating to the securities offered herein,
and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising
under the 1933 Act may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
provisions referred to in Item 15 above, or otherwise, the
registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the 1933 Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of registrant in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as
expressed in the Act and will be governed by the final
adjudication of such issue.
(6) For purposes of determining any liability under
the 1933 Act, the information omitted from the form of
prospectus filed as part of this Registration Statement in
reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the 1933 Act shall be
deemed to be part of this Registration Statement as of the
time it was declared effective.
(7) For the purpose of determining any liability under
the 1933 Act, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3, and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in
the Town of Great Neck, State of New York, on January 6, 1994.
AVNET, INC.
By:/s/Raymond Sadowski
Raymond Sadowski
Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed on January 6,
1994, by the following persons in the capacities indicated:
Signature Title
/s/Leon Machiz Chairman of the Board, Chief
Leon Machiz Executive Officer and Director
* Director
Gerald J. Berkman
* Director
Joseph F. Caligiuri
* Director
Alvin E. Friedman
* Director
Sylvester D. Herlihy
*
Ehud Houminer Director
* Director
Salvatore J. Nuzzo
* Director
Frederic Salerno
* Director
David Shaw
* Director
Howard Stein
* Director
Roy Vallee
* Director
J. S. Webb
* Director
George Weissman
* Director
Frederick S. Wood
/s/Raymond Sadowski Senior Vice President and
Raymond Sadowski Chief Financial Officer
/s/John F. Cole Controller and
John F. Cole Chief Accounting Officer
______________________
* By:/s/Raymond Sadowski
Raymond Sadowski
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Exhibit
No.
1 Form of Underwriting Agreement
4 Form of Indenture between the
registrant and The First National
Bank of Chicago, as Trustee
5 Opinion of David R. Birk, Esq. with
respect to the legality of the
securities being registered
hereunder
12 Statement of computation of ratios
of earnings to fixed charges
23(a) Consent of Arthur Andersen & Co.
23(b) Consent of Coopers & Lybrand.
23(c) Consent of David R. Birk, Esq.
(included in Exhibit 5)
24 Powers of Attorney
25 Form T-1 Statement of Eligibility
of The First National Bank of
Chicago under the Trust Indenture
Act of 1939
<PAGE>
EXHIBIT 1
<PAGE>
December 1993
AVNET, INC.
DEBT SECURITIES
STANDARD UNDERWRITING AGREEMENT PROVISIONS
1. Introductory. Avnet, Inc., a New York corpora-
tion (the "Company"), proposes to issue and sell from time to
time certain of its debt securities registered under the regis-
tration statement referred to in Section 3(a) ("Securities").
The Securities will be issued under an indenture, dated as of
January 1, 1994 (such indenture as amended or supplemented is
herein referred to as the "Indenture"), between the Company and
The First National Bank of Chicago, as Trustee, in one or more
series, which series may vary as to interest rates, maturities,
redemption provisions, selling prices and other terms, with all
such terms for any particular series of the Securities being
determined at the time of sale. Particular series of the Secu-
rities will be sold pursuant to a Pricing Agreement referred to
in Section 2, for resale in accordance with terms of offering
determined at the time of sale.
The firm or firms which agree to purchase the Securi-
ties are hereinafter referred to as the "Underwriters" of such
Securities, and the representative or representatives of the
Underwriters, if any, specified in a Pricing Agreement referred
to in Section 2 are hereinafter referred to as the "Representa-
tives"; provided, however, that if the Pricing Agreement does
not specify any representative of the Underwriters, the term
"Representatives," as used in this Agreement (other than in the
second sentence of Section 2), shall mean the Underwriters.
2. Purchase and Offering of Securities. The obli-
gation of the Underwriters to purchase the Securities will be
evidenced by an exchange of written communications ("Pricing
Agreement") at the time the Company determines to sell the
Securities. The Pricing Agreement will incorporate by refer-
ence the provisions of this Agreement, except as otherwise pro-
vided therein, and will specify (1) the firm or firms which
will be Underwriters, (2) the names of any Representatives, (3)
the principal amount of Securities to be purchased by each
Underwriter and the purchase price to be paid by the Underwrit-
ers, (4) the terms of the Securities not already specified in
the Indenture, (5) the time and date on which delivery of the
<PAGE>
-2-
Securities will be made to the Representatives for the accounts
of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price
in New York Clearing House funds (such time and date, or such
other time and date not later than seven full business days
thereafter as the Representatives and the Company agree to as
to time and date for payment and delivery, being herein and in
the Pricing Agreement referred to as the "Closing Date") and
(6) the place of delivery and payment.
The obligations of the Underwriters to purchase the
Securities will be several and not joint. The Securities
delivered to the Underwriters on the Closing Date will be in
definitive fully registered form, in such denominations and
registered in such names as the Representatives may request.
Certificates for the Securities shall be registered
in such names and in such denominations as the Representatives
may request not less than two full Business Days in advance of
the Closing Date.
3. Representations and Warranties of the Company:
The Company represents and warrants to each of the Underwriters
as of the date of execution of the Pricing Agreement (the "Rep-
resentation Date") and as of the Closing Date that:
(a) the Company is permitted to use Form S-3 under
the Securities Act of 1933, as amended (the "Act"), and
has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on such Form, which
has become effective, for the registration under the Act
of the Securities. Such registration statement, as
amended at the date of this Agreement, meets the require-
ments set forth in Rule 415(a)(1)(x) under the Act and
complies in all other material respects with said Rule.
Such registration statement, including the exhibits
thereto, as amended at the date of any Pricing Agreement,
is hereinafter called the "Registration Statement" and the
prospectus included in the Registration Statement, as sup-
plemented to reflect the terms of any series of the Secu-
rities and the plan of distribution thereof, in the form
in which it shall be filed with the Commission pursuant to
Rule 424(b), is hereinafter called the "Prospectus." Any
reference herein to the Registration Statement or the Pro-
spectus shall be deemed to include the documents incorpo-
rated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934
(the "Exchange Act") on or before the date of this
<PAGE>
-3-
Agreement or the date of the Prospectus, as the case may
be, and any reference herein to the terms "amend," "amend-
ment" or "supplement" with respect to the Registration
Statement or the Prospectus shall be deemed to include the
filing of any document under the Exchange Act after the
date of this Agreement or the date of the Prospectus, as
the case may be, deemed to be incorporated therein by
reference;
(b) as of the date of any Pricing Agreement, when
the Prospectus is first filed pursuant to Rule 424(b)
under the Act, when, prior to the Closing Date, any amend-
ment to the Registration Statement becomes effective
(including the filing of any document incorporated by ref-
erence in the Registration Statement) and at the Closing
Date, (i) the Registration Statement, as amended as of any
such time, and the Prospectus, as amended or supplemented
as of any such time, and the Indenture will comply in all
material respects with the applicable requirements of the
Act, the Trust Indenture Act of 1939 (the "Trust Indenture
Act") and the Exchange Act and the respective rules there-
under and (ii) neither the Registration Statement, as
amended as of any such time, nor the Prospectus, as
amended or supplemented as of any such time, will contain
any untrue statement of a material fact or omit to state
any material fact required to be stated therein or neces-
sary in order to make the statements therein not mislead-
ing; provided, however, that the Company makes no warranty
or representation with respect to any statement contained
in the Registration Statement or the Prospectus in reli-
ance upon and in conformity with information furnished in
writing by or on behalf of any Underwriter through the
Representatives to the Company expressly for use in the
Registration Statement or the Prospectus;
(c) all of the issued and outstanding shares of cap-
ital stock of the Company have been duly and validly
authorized and issued and are fully paid, non-assessable
and free of statutory and contractual preemptive rights;
the Company and each of its subsidiaries (the "Subsidiar-
ies") have been duly incorporated and are validly existing
as corporations in good standing under the laws of their
respective jurisdictions of incorporation, with full power
and authority to own their respective properties and con-
duct their respective businesses as described in the Reg-
istration Statement and the Prospectus; the Company has
full power and authority to execute and deliver this
<PAGE>
-4-
Agreement, the Pricing Agreement and the Indenture and to
issue and sell the Securities as herein contemplated;
(d) the Company and each of its Subsidiaries are
duly qualified or licensed by and are in good standing in
each jurisdiction in which they conduct their respective
businesses and in which the failure, individually or in
the aggregate, to be so licensed or qualified could have a
material adverse effect on the operations, business or
condition of the Company and its Subsidiaries, taken as a
whole, and with respect to the Company the jurisdictions
listed on Schedule A hereto constitute a complete list of
such jurisdictions in which the Company is required to be
so licensed or qualified; and the Company and each of its
Subsidiaries are in compliance in all material respects
with the laws, orders, rules, regulations and directives
issued or administered by such jurisdictions;
(e) neither the Company nor any of its Subsidiaries
is in breach of, or in default under (nor has any event
occurred which with notice, lapse of time, or both would
constitute a breach of, or default under), its respective
charter or by-laws or in the performance or observance of
any obligation, agreement, covenant or condition contained
in any material indenture, mortgage, deed of trust, bank
loan or credit agreement or other agreement or instrument
to which the Company or any of its Subsidiaries is a party
or by which any of them is bound, and the execution,
delivery and performance of this Agreement, the Pricing
Agreement, and the Indenture and the issuance of the Secu-
rities and consummation of the transactions contemplated
hereby and thereby will not conflict with, or result in
any breach of or constitute a default under (nor consti-
tute any event which with notice, lapse of time, or both
would constitute a breach of, or default under), any pro-
visions of the charter or by-laws of the Company or any of
its Subsidiaries or under any provision of any license,
indenture, mortgage, deed of trust, bank loan or credit
agreement or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which
any of them or their respective properties may be bound or
affected, or under any federal, state, local or foreign
law, regulation or rule or any decree, judgment or order
applicable to the Company or any of its Subsidiaries;
(f) the Indenture has been duly authorized by the
Company and when executed and delivered by the Company
will be a legal, valid and binding agreement of the
<PAGE>
-5-
Company enforceable in accordance with its terms, except
as the enforceability thereof may be limited by bank-
ruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, and by general
principles of equity;
(g) the Securities have been duly authorized by the
Company and when executed and delivered by the Company
will constitute legal, valid and binding obligations of
the Company enforceable in accordance with their terms,
except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or sim-
ilar laws affecting creditors' rights generally, and by
general principles of equity;
(h) the Pricing Agreement has been duly authorized,
executed and delivered by the Company;
(i) the Securities and the Indenture conform in all
material respects to the description thereof contained in
the Registration Statement and Prospectus;
(j) no approval, authorization, consent or order of
or filing with any national, state or local governmental
or regulatory commission, board, body, authority or agency
is required in connection with the issuance and sale of
the Securities as contemplated hereby other than registra-
tion of the Securities under the Act, qualification of the
Indenture under the Trust Indenture Act and any necessary
qualification under the securities or blue sky laws of the
various jurisdictions in which the Securities are being
offered by the Underwriters;
(k) the accountants whose reports on the consoli-
dated financial statements of the Company and its Subsid-
iaries are filed with the Commission as part of the Regis-
tration Statement and Prospectus are independent public
accountants as required by the Act and the applicable pub-
lished rules and regulations thereunder;
(l) each of the Company and its Subsidiaries (i) has
all necessary licenses, authorizations, consents and
approvals which are material to its business, (ii) has
made all filings required under any federal, state, local
or foreign law, regulation or rule, the failure to make
which would have a material adverse effect on the opera-
tions, business or financial condition of the Company and
its Subsidiaries taken as a whole, and (iii) has obtained
<PAGE>
-6-
all necessary authorizations, consents and approvals from
other persons which are material to its business; neither
the Company nor any of its Subsidiaries is in violation
of, or in default under, any such license, authorization,
consent or approval or any federal, state, local or for-
eign law, regulation or rule or any decree, order or judg-
ment applicable to the Company or any of its Subsidiaries
the effect of which violation or default could have a
material adverse effect on the Company and its Subsidiar-
ies taken as a whole;
(m) all legal or governmental proceedings, contracts
or documents of a character required to be described in
the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement have
been so described or filed as required;
(n) there are no actions, suits or proceedings pend-
ing or threatened against the Company or any of its Sub-
sidiaries or any of their respective properties, at law or
in equity, before or by any federal, state, local or for-
eign governmental or regulatory commission, board, body,
authority or agency which have a reasonable likelihood of
resulting in a judgment, decree or order having a material
adverse effect on the business, condition, prospects or
property of the Company and its Subsidiaries taken as a
whole;
(o) the audited financial statements included in the
Registration Statement and the Prospectus present fairly
the consolidated financial position of the Company and its
Subsidiaries as of the dates indicated and the consoli-
dated results of operations and cash flows of the Company
and its Subsidiaries for the periods specified; such
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a con-
sistent basis during the periods involved;
(p) subsequent to the respective dates as of which
information is given in the Registration Statement and
Prospectus, and except as may be otherwise stated in the
Registration Statement or Prospectus, there has not been
(A) any material and unfavorable change, financial or oth-
erwise, in the business, properties, prospects, regulatory
environment, results of operations or condition (financial
or otherwise), present or prospective, of the Company and
its Subsidiaries taken as a whole, (B) any transaction,
which is material and unfavorable to the Company and its
<PAGE>
-7-
Subsidiaries taken as a whole, contemplated or entered
into by the Company or either of its Subsidiaries or
(C) any obligation, contingent or otherwise, directly or
indirectly, incurred by the Company or any of its Subsid-
iaries which is material and unfavorable to the Company
and its Subsidiaries taken as a whole;
(q) no Subsidiary is a "significant subsidiary" as
that term is defined in Regulation S-X, promulgated under
the Act;
(r) the Company and each of the Subsidiaries have
filed all material federal and state income and franchise
tax returns (or obtained extensions with respect to the
filing of such returns) and have paid all taxes shown
thereon as currently due, and the Company has no knowledge
of any material tax deficiency which has been or might be
asserted against the Company or any of the Subsidiaries;
all material tax liabilities are adequately provided for
on the books of the Company and each of the Subsidiaries;
(s) the Company and its Subsidiaries own or possess,
or can acquire on reasonable terms, adequate material pat-
ents, patent rights, licenses, trademarks, inventions,
service marks, trade names, copyrights and know-how
(including trade secrets and other proprietary or confi-
dential information, systems or procedures, whether pat-
ented or unpatented) (collectively, "intellectual prop-
erty") necessary to conduct the business now or proposed
to be operated by them as described in the Registration
Statement and in the Prospectus, and neither the Company
nor any of its Subsidiaries has received any notice of
infringement of or conflict with (or knows of any such
infringement of or conflict with) asserted rights of oth-
ers with respect to any of such intellectual property
which, if such assertion of infringement or conflict were
sustained, would result in any material adverse effect on
the Company and its Subsidiaries taken as a whole;
(t) neither the Company nor any agent acting on its
behalf has taken or will take any action that might cause
this Agreement or sale of the Securities to violate Regu-
lation G, T, U or X of the Board of Governors of the Fed-
eral Reserve System, in each case as in effect, or as the
same may hereafter be in effect, on the Closing Date;
(u) except as described in the Registration State-
ment and the Prospectus, (i) the operations of the Company
<PAGE>
-8-
and its Subsidiaries are in compliance in all material
respects with all applicable environmental laws, (ii) the
Company and its Subsidiaries have obtained all material
environmental, health and safety permits, licenses and
approvals necessary for its operation, all such permits,
licenses and approvals are in effect and the Company and
its Subsidiaries are in compliance in all material
respects with the terms and conditions thereof, (iii) with
respect to any property currently or formerly owned,
leased or operated by the Company or any of its Subsidiar-
ies, (a) neither the Company nor any such Subsidiary is
subject to any judicial or administrative proceeding or
any order from or agreement with any governmental author-
ity (collectively, "Proceedings"), and (b) the Company
does not have knowledge of any pending or threatened
investigation by any governmental authority (collectively,
"Investigations") relating to any violation or alleged
violation of any environmental law, any release or threat-
ened release of a hazardous material into the environment,
or any remedial action that may be necessary in connection
with any such violation or release, except for such Pro-
ceedings or Investigations which, whether individually or
in the aggregate, could not be expected to have a material
adverse effect on the operations, business or financial
condition of the Company and its Subsidiaries, taken as a
whole, (iv) neither the Company nor any such Subsidiary
has filed any notice under any environmental law indicat-
ing past or present treatment, storage, disposal or
release of a hazardous material into the environment in a
manner that is not in compliance with, or which could
result in liability under, applicable environmental laws,
except where such non-compliance or liability, whether
individually or in the aggregate, could not be expected to
have a material adverse effect on the operations, business
or financial condition of the Company and its Subsidiar-
ies, taken as a whole, and (v) neither the Company nor any
such Subsidiary has received notice of a claim that it may
be subject to liability (a "Notice") as a result of a
release or threatened release of hazardous material,
except for such Notice which, whether individually or in
the aggregate, could not be expected to have a material
adverse effect on the operations, business or financial
condition of the Company and its Subsidiaries taken as a
whole and to the best of the Company's knowledge there is
no reasonable basis for any such claim, action, suit or
investigation with respect to any environmental law;
<PAGE>
-9-
(v) the Company is not an "investment company" or an
affiliated person of, or "promoter" or "principal under-
writer" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended,
and the rules and regulations thereunder; and
(w) to the best knowledge of the Company, no labor
problem exists with employees of the Company or any of its
Subsidiaries or is imminent that could have a material
adverse effect on the Company and its Subsidiaries taken
as a whole.
4. Certain Covenants of the Company: The Company
hereby agrees:
(a) to furnish such information as may be reasonably
required by and otherwise to cooperate with, the Represen-
tatives in qualifying the Securities for offering and sale
under the securities or blue sky laws of such states as
the Representatives may designate (including the provi-
sions of Florida blue sky law, if requested, relating to
issuers doing business with Cuba) and to maintain such
qualifications in effect as long as required for the dis-
tribution of the Securities, provided that the Company
shall not be required to qualify as a foreign corporation
or a dealer or to consent to the service of process under
the laws of any such state (except service of process with
respect to the offering and sale of the Securities) or to
take any action which would or could subject the Company
to taxation in any state where it is not now so subject;
and to promptly advise the Representatives of the receipt
by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of
any proceeding for such purpose;
(b) to make available to the Representatives in New
York City, as soon as practicable after the Registration
Statement becomes effective, and thereafter from time to
time to furnish to the Underwriters, as many copies of the
Prospectus (or of the Prospectus as amended or supple-
mented if the Company shall have made any amendments or
supplements thereto after the effective date of the Regis-
tration Statement) as the Underwriters may reasonably
request for the purposes contemplated by the Act;
(c) that the Company will use its best efforts to
cause any amendment of the Registration Statement to
<PAGE>
-10-
become effective promptly. The Company will not file any
amendment to the Registration Statement or amendment or
supplement to the Prospectus relating to any series of the
Securities to which the Underwriters of such series shall
object in writing after a reasonable opportunity to review
the same. Subject to the foregoing sentence, the Company
will cause each Prospectus supplement relating to the
Securities to be filed with the Commission pursuant to the
applicable paragraph of Rule 424 within the time period
prescribed and will provide evidence satisfactory to the
Underwriters of such timely filing. The Company will
promptly advise the Underwriters of any series of Securi-
ties (A) when any Prospectus supplement relating to such
series shall have been filed with the Commission pursuant
to Rule 424, (B) when, prior to termination of the offer-
ing of such series, any amendment to the Registration
Statement shall have been filed with the Commission or
become effective, (C) of any request by the Commission for
any amendment of the Registration Statement or supplement
to the Prospectus or for any additional information,
(D) of the receipt by the Company of any notification of
the issuance by the Commission of any stop order suspend-
ing the effectiveness of the Registration Statement or the
use of any Prospectus or Prospectus supplement or, if the
Company has knowledge, of the institution or threat of any
proceeding for that purpose and (E) of the receipt by the
Company of any notification with respect to the suspension
of the qualification of the Securities for sale in any
jurisdiction or, if the Company has knowledge, of the ini-
tiation or threat of any proceeding for such purpose. The
Company will make every reasonable effort to prevent the
issuance of any such stop order or of any order suspending
or preventing any such use and, if issued, to obtain as
soon as possible the withdrawal thereof;
(d) to furnish to the Representatives and, upon
request, to each of the other Underwriters for a period of
three years from the date of each Pricing Agreement
(i) copies of any reports or other communications which
the Company shall send to its shareholders or shall from
time to time publish or publicly disseminate, (ii) copies
of all annual, quarterly and current reports filed with
the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar form as may be designated by the Commission, and
(iii) such other information as the Representatives may
reasonably request regarding the Company or its
Subsidiaries;
<PAGE>
-11-
(e) to advise the Underwriters of a series of Secu-
rities promptly of the happening of any event known to the
Company within the time during which a prospectus relating
to such series is required to be delivered under the Act
which, in the judgment of the Company, would require the
making of any change in the Prospectus then being used, or
in the information incorporated therein by reference, so
that the Prospectus would not include an untrue statement
of a material fact or omit to state a material fact neces-
sary to make the statements therein, in light of the cir-
cumstances under which they are made, not misleading, and,
during such time, to prepare and furnish, at the Company's
expense, to the Underwriters promptly such amendments or
supplements to such Prospectus as may be necessary to
reflect any such change and to furnish to the Representa-
tives a copy of such proposed amendment or supplement
before filing any such amendment or supplement with the
Commission;
(f) that, as soon as practicable after the date of
each Pricing Agreement, the Company will make generally
available to its Security holders an earnings statement
that satisfies the provisions of Section 11(a) of the Act
and Rule 158 under the Act;
(g) to apply the net proceeds from the sale of the
Securities in the manner set forth under the caption "Use
of Proceeds" in the Prospectus;
(h) to pay all expenses, fees and taxes (other than
any transfer taxes and fees and disbursements of counsel
for the Underwriters except as set forth under Section 5
hereof and (iii) and (iv) below) in connection with
(i) the preparation and filing of the Registration State-
ment, each preliminary Prospectus, the Prospectus, and any
amendments or supplements thereto, and the printing and
furnishing of copies of each thereof to the Underwriters
and to dealers (including costs of mailing and shipment),
(ii) the preparation, issuance, execution, authentication
and delivery of the Securities, (iii) the printing of this
Agreement, the Pricing Agreement, an Agreement Among
Underwriters, any dealer agreements, any Statements of
Information and Powers of Attorney, the Indenture and the
reproduction and/or printing and furnishing of copies of
each thereof to the Underwriters and to dealers (including
costs of mailing and shipment), (iv) the qualification of
the Securities for offering and sale under state laws and
the determination of their eligibility for investment
<PAGE>
-12-
under state law as aforesaid (including the legal fees and
filing fees and other disbursements of counsel for the
Underwriters) and the printing and furnishing of copies of
any blue sky surveys or legal investment surveys to the
Underwriters and to dealers, (v) any listing of the Secu-
rities on any securities exchange and any registration
thereof under the Exchange Act, (vi) any fees payable to
investment rating agencies with respect to the Securities,
(vii) any filing for review of the public offering of the
Securities by the National Association of Securities Deal-
ers, Inc. and (viii) the performance of the Company's
other obligations hereunder; and
(i) that the Company will not, without the consent
of the Representatives, offer or sell, or publicly
announce its intention to offer or sell, (i) any debt
securities pursuant to a public offering or (ii) any unse-
cured debt securities pursuant to a private placement
which contemplates the purchasers of such debt securities
receiving customary registration rights, in each case dur-
ing the period beginning on the date of the Pricing Agree-
ment and ending the 90th day following the date of the
Pricing Agreement. The Company has not taken, and will
not take, directly or indirectly, any action which might
reasonably be expected to cause or result in the stabili-
zation or manipulation of the price of any security to
facilitate the sale or resale of the Securities.
5. Reimbursement of Underwriters' Expenses: If the
Securities of a series to which the attached Pricing Agreement
relates are not delivered for any reason other than (a) a ter-
mination of the obligations of the several Underwriters in
accordance with clause (a), (c) or (d) of Section 7 hereof, or
(b) a default by one or more of the Underwriters in its or
their respective obligations hereunder, the Company shall reim-
burse the Underwriters for all of their out-of-pocket expenses,
including the fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations: The
several obligations of the Underwriters to purchase and pay for
the Securities are subject to the accuracy of the representa-
tions and warranties on the part of the Company herein on the
Representation Date and at the Closing Date (including those
contained in the Pricing Agreement), to the accuracy of the
statements of officers of the Company made pursuant to the pro-
visions hereof, to the performance by the Company of its obli-
gations hereunder and to the following conditions:
<PAGE>
-13-
(a) The Company shall furnish to the Representatives
at the Closing Date an opinion of Carter, Ledyard &
Milburn, counsel for the Company, or other counsel to the
Company reasonably acceptable to the Representatives,
addressed to the Underwriters and dated the Closing Date
and in form satisfactory to counsel for the Underwriters,
stating that:
(i) the Pricing Agreement (which incorporates
by reference all the provisions of this Agreement)
has been duly authorized, executed and delivered by
the Company;
(ii) the Indenture has been duly authorized,
executed and delivered by the Company, and, assuming
due authorization, execution and delivery by the
Trustee, constitutes the legal, valid and binding
agreement of the Company enforceable against the Com-
pany in accordance with its terms, except insofar as
the enforceability thereof may be limited by bank-
ruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally,
and by general principles of equity;
(iii) the Securities have been duly authorized by
the Company and, when executed and authenticated in
accordance with the terms of the Indenture and deliv-
ered to and paid for by the Underwriters, will be
legal, valid and binding obligations of the Company
enforceable against the Company in accordance with
their terms, except insofar as the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors'
rights generally, and by general principles of
equity;
(iv) the Securities and the Indenture conform in
all material respects to the summary descriptions
thereof contained in the Registration Statement and
Prospectus;
(v) the Registration Statement and the Prospec-
tus (except as to the financial statements and sched-
ules and other financial and statistical data con-
tained or incorporated by reference therein and the
Trustee's Statement of Eligibility on Form T-1, as to
which such counsel need express no opinion) comply as
<PAGE>
-14-
to form in all material respects with the require-
ments of the Act;
(vi) the Registration Statement has become
effective under the Act and, to the best of such
counsel's knowledge, no stop order proceedings with
respect thereto are pending or threatened under the
Act;
(vii) no approval, authorization, consent or
order of or filing with any United States Federal or
New York State governmental or regulatory commission,
board, body, authority or agency is required in con-
nection with the issue or sale of the Securities by
the Company as contemplated hereby, other than regis-
tration of the Securities under the Act and qualifi-
cation of the Indenture under the Trust Indenture Act
(except such counsel need express no opinion as to
any necessary qualification under the state securi-
ties or blue sky laws of the various jurisdictions in
which the Securities are being offered by the
Underwriters);
(viii) the Indenture has been duly qualified under
the Trust Indenture Act.
In addition, such counsel shall state that it has
participated in conferences with officers and other repre-
sentatives of the Company, representatives of the indepen-
dent public accountants of the Company and representatives
of the Underwriters, at which the contents of the Regis-
tration Statement and Prospectus were discussed and,
although such counsel has not independently verified, is
not passing upon and does not assume responsibility for,
the accuracy, completeness or fairness of the statements
contained in the Registration Statement or Prospectus
(except as and to the extent stated in subparagraph (iv)
above), no facts have come to the attention of such coun-
sel, in the course of such participation, that causes it
to believe that the Registration Statement, or any
post-effective amendment thereto, as of the date it was
declared effective, contained an untrue statement of a
material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus or any sup-
plement thereto, at the date of such Prospectus or such
supplement and at all times up to and including the Clos-
ing Date, contained or contains an untrue statement of a
<PAGE>
-15-
material fact or omitted or omits to state a material fact
required to be stated therein or necessary in order to
make the statements therein, in the light of the circum-
stances under which they were made, not misleading (it
being understood that such counsel need express no opinion
with respect to the financial statements and schedules and
other financial and statistical data included in the Reg-
istration Statement or Prospectus or with respect to the
Trustee's Statement of Eligibility on Form T-1).
In rendering such opinion, counsel may state that
such opinion is limited to United States Federal and New
York law.
(b) The Company shall furnish to the Representatives
at the Closing Date an opinion of David R. Birk, Senior
Vice President and General Counsel for the Company, or
such other counsel to the Company acceptable to the Repre-
sentatives, addressed to the Underwriters and dated the
Closing Date and in form satisfactory to counsel for the
Underwriters, stating that:
(i) the Company is a corporation validly exist-
ing and in good standing under the laws of the State
of New York, with full corporate power and authority
to own its properties and conduct its business as
described in the Registration Statement and the Pro-
spectus and to issue, sell and deliver the Securities
as herein contemplated;
(ii) the outstanding shares of capital stock of
the Company have been duly and validly authorized and
issued and are fully paid, non-assessable and free of
statutory and contractual preemptive rights;
(iii) each of the Subsidiaries organized in the
United States of America is a corporation validly
existing and in good standing under the laws of its
respective jurisdiction of incorporation with full
corporate power and authority to own its respective
properties and to conduct its respective business (in
rendering this opinion with respect to jurisdictions
other than the State of New York, such counsel may
state that he is relying on certificates and other
documents of public officials of such jurisdictions);
(iv) the Company is duly qualified to transact
business as a foreign corporation in the
<PAGE>
-16-
jurisdictions listed on Schedule A hereto, other than
the State of New York (in rendering this opinion,
such counsel may state that he is relying on certifi-
cates and other documents of public officials of such
jurisdictions);
(v) to the best of such counsel's knowledge,
neither the Company nor any of its Subsidiaries is in
breach of, or in default under (nor has any event
occurred which with notice, lapse of time, or both
would constitute a breach of, or default under), any
"material contract" (within the meaning of Item
601(b)(10) of Regulation S-K promulgated under the
Exchange Act) to which the Company or any of its Sub-
sidiaries is a party or by which any of them or their
respective properties may be bound or affected, or
under any United States Federal or New York State
law, regulation or rule, or under any decree, judg-
ment or order applicable to the Company or any of its
Subsidiaries;
(vi) the execution, delivery and performance of
the Pricing Agreement and the Indenture and the issu-
ance of the Securities by the Company and the consum-
mation by the Company of the transactions contem-
plated hereby and thereby do not and will not con-
flict with, or result in any breach of, or constitute
a default under (nor constitute any event which with
notice, lapse of time, or both would constitute a
breach of or default under), any provisions of the
charter or by-laws of the Company or any of its Sub-
sidiaries or under any provision of any material
license, indenture, mortgage, deed of trust, bank
loan, credit agreement or other agreement or instru-
ment to which the Company or any of its Subsidiaries
is a party or by which any of them or their respec-
tive properties may be bound or affected, or under
any law, regulation or rule or any decree, judgment
or order applicable to the Company or any of its
Subsidiaries;
(vii) to the best of such counsel's knowl-
edge, there are no contracts, licenses, agreements,
leases or documents of a character which are required
to be filed as exhibits to the Registration Statement
or to be summarized or described in the Prospectus
which have not been so filed, summarized or
described;
<PAGE>
-17-
(viii) to the best of such counsel's knowl-
edge, there are no actions, suits or proceedings
pending or threatened against the Company or any of
its Subsidiaries or any of their respective proper-
ties, at law or in equity or before or by any commis-
sion, board, body, authority or agency which are
required to be described in the Prospectus but are
not so described;
(ix) the documents incorporated by reference in
the Registration Statement and Prospectus, when they
were filed (or, if an amendment with respect to any
such document was filed when such amendment was
filed), complied as to form in all material respects
with the Exchange Act (except as to the financial
statements and schedules and other financial and sta-
tistical data contained or incorporated by reference
therein as to which such counsel need express no
opinion);
(c) The Representatives shall have received from the
Company's independent public accountants letters dated,
respectively, as of the date of the Pricing Agreement and
the Closing Date, and addressed to the Underwriters in the
forms heretofore approved by the Representatives.
(d) The Representatives shall have received at the
Closing Date the favorable opinion of counsel for the
Underwriters, dated the Closing Date, in form and sub-
stance reasonably satisfactory to the Representatives.
(e) Prior to the Closing Date (i) the Registration
Statement and all amendments thereto, or modifications
thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the
statements therein not misleading and (ii) the Prospectus
and all amendments or supplements thereto, or modifica-
tions thereof, if any, shall not contain an untrue state-
ment of material fact or omit to state a material fact
required to be stated therein or necessary in order to
make the statements therein, in the light of the circum-
stances under which they are made, not misleading.
(f) Between the time of execution of the Pricing
Agreement and the Closing Date, (i) no material and unfa-
vorable change, financial or otherwise (other than as
referred to in the Registration Statement and Prospectus),
<PAGE>
-18-
in the business or condition of the Company and its Sub-
sidiaries taken as a whole shall occur or become known and
(ii) no transaction which is material and unfavorable to
the Company shall have been entered into by the Company or
any of its Subsidiaries.
(g) The Company will, at the Closing Date, deliver
to the Representatives a certificate of two of its execu-
tive officers to the effect that the representations and
warranties of the Company set forth in Section 3 of this
Agreement and the conditions set forth in subsections (e)
and subsection (f) of this Section 6 have been met and are
true and correct as of such date.
(h) The Company shall have furnished to the Repre-
sentatives such other documents and certificates as to the
accuracy and completeness of any statement in the Regis-
tration Statement and the Prospectus as of the Closing
Date as the Representatives may reasonably request.
(i) The Company shall perform such of its obliga-
tions under this Agreement and the Pricing Agreement as
are to be performed by the terms hereof at or before the
Closing Date.
(j) No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceed-
ings for that purpose have been instituted or threatened.
(k) At the Closing Date, counsel for the Underwrit-
ers shall have been furnished with such information, cer-
tificates and documents as they may reasonably require for
the purpose of enabling them to pass upon the issuance and
sale of the Securities as contemplated herein and related
proceedings, or in order to evidence the accuracy of any
of the representations or warranties, or the fulfillment
of any of the conditions, herein contained; and all opin-
ions and certificates mentioned above or elsewhere in this
Agreement shall be reasonably satisfactory in form and
substance to the Representatives and counsel for the
Underwriters.
7. Termination: The obligations of the several
Underwriters hereunder shall be subject to termination in the
absolute discretion of the Representatives or any group of
Underwriters (which may include the Representatives) which has
agreed pursuant to the Pricing Agreement to purchase in the
aggregate at least 50% of the Securities if, at any time prior
<PAGE>
-19-
to the Closing Date, (a) trading in securities on the New York
Stock Exchange shall have been suspended or minimum prices
shall have been established on the New York Stock Exchange,
(b) a downgrading shall have occurred in the rating accorded
the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by
the Commission for purposes of Rule 436(g)(2) of the rules and
regulations promulgated under the Act or such organization
shall have publicly announced that it has under surveillance or
review, other than with possible positive implications, its
rating of any of the Company's debt securities, (c) a banking
moratorium shall have been declared either by the United States
or New York State authorities, or (d) the United States shall
have declared war in accordance with its constitutional pro-
cesses or there shall have occurred any material outbreak or
escalation of hostilities or other national or international
calamity or crisis of such magnitude in its effect on the
financial markets of the United States as, in the judgment of
the Representatives or in the judgment of such group of Under-
writers, to make it impracticable to market the Securities.
If the Representatives or any group of Underwriters
elects to terminate this Agreement as provided in this Sec-
tion 7, the Company and each other Underwriter shall be noti-
fied promptly by letter or telegram.
If the sale to the Underwriters of the Securities, as
contemplated by this Agreement and the Pricing Agreement, is
not carried out by the Underwriters for any reason permitted
under this Agreement or if such sale is not carried out because
the Company shall be unable to comply with any of the terms of
this Agreement, the Company shall not be under any obligation
or liability under this Agreement (except to the extent pro-
vided in Sections 4(h), 5, 8 and 9 hereof), and the Underwrit-
ers shall be under no obligation or liability to the Company
under this Agreement (except to the extent provided in
Sections 8 and 9 hereof) or to one another hereunder.
8. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of Sec-
tion 15 of the Act as follows:
(i) against any and all loss, liability, claim, dam-
age and expense whatsoever, as incurred, arising out of
any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or
any amendment thereto), including the information deemed
<PAGE>
-20-
to be part of the Registration Statement pursuant to Rule
430A(b) under the Act, if applicable, or the omission or
alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue state-
ment or alleged untrue statement of a material fact con-
tained in any preliminary Prospectus or the Prospectus (or
any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, dam-
age and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation,
or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omis-
sion, or any such alleged untrue statement or omission, if
such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as
incurred (including, subject to Section 8(c) hereof, the
fees and disbursements of counsel chosen by the Represen-
tatives), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation
or proceeding by any governmental agency or body, com-
menced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged
untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above; provided,
however, that the indemnity provided in this Section 8(a)
shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement
or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written informa-
tion furnished to the Company by or on behalf of any
Underwriter through the Representatives expressly for use
in the Registration Statement (or any amendment thereto)
or any preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto); provided, further, that
with respect to any untrue statement or omission or
alleged untrue statement or omission made in any prelimi-
nary Prospectus, the indemnity provided in this
Section 8(a) shall not inure to the benefit of any Under-
writer from whom the person asserting any such losses,
claims, damages, liabilities or expenses purchased the
<PAGE>
-21-
Securities concerned to the extent that (i) any such loss,
claim, damage, liability or expense of such Underwriter
and its affiliates results from the fact that a copy of
the final Prospectus was not sent or given to such person
at or prior to the written confirmation of sale of such
Securities as required by the Act, and (ii) the untrue
statement or omission has been corrected in the final
Prospectus.
(b) Each Underwriter severally agrees to indemnify
and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each per-
son, if any, who controls the Company within the meaning of
Section 15 of the Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained
in subsection (a) of this Section 8, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or
any amendment thereto) or any preliminary Prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives
expressly for use in the Registration Statement (or any amend-
ment thereto) or such preliminary Prospectus or the Prospectus
(or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party
of any action commenced against it in respect of which indem-
nity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party
from any liability which it may have otherwise than on account
of this Section 8. An indemnifying party may participate at
its own expense in the defense of any such action. In no event
shall the indemnifying parties be liable for fees and expenses
of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the
same general allegations or circumstances.
9. Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity
provided for in Section 8 is for any reason held to be unen-
forceable by the indemnified parties although applicable in
accordance with its terms, the Company and the Underwriters
shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by Section 8
<PAGE>
-22-
incurred by the Company and one or more of the Underwriters, as
incurred, in such proportions that the Underwriters are respon-
sible for that portion represented by the percentage that the
underwriting discount appearing on the cover page of the Pro-
spectus or any supplement thereto bears to the initial public
offering price appearing thereon and the Company is responsible
for the balance; provided, however, that no person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls
an Underwriter within the meaning of Section 15 of the Act
shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company
who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of
the Act shall have the same rights to contribution as the
Company.
10. Notices: Except as otherwise herein provided,
all statements, requests, notices and agreements shall be in
writing and, if to the Underwriters, at their addresses fur-
nished to the Company in the Pricing Agreement for the purpose
of communications hereunder and, if to the Company, shall be
sufficient in all respects if delivered or telefaxed to the
Company at the offices of the Company at 80 Cutter Mill Road,
Great Neck, New York 11021, Attention: Mr. Raymond Sadowski
(fax no. (516) 466-0349).
11. Construction: This Agreement and the Pricing
Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York. The section headings
in this Agreement have been inserted as a matter of convenience
of reference and are not a part of this Agreement.
12. Parties at Interest: The Agreement herein set
forth and the Pricing Agreement have been and are made solely
for the benefit of the Underwriters and the Company and the
controlling persons, directors and officers referred to in Sec-
tions 8 and 9 hereof, and their respective successors, assigns,
executors and administrators. No other person, partnership,
association or corporation (including a purchaser, as such pur-
chaser, from any of the Underwriters) shall acquire or have any
right under or by virtue of this Agreement or the Pricing
Agreement.
<PAGE>
Schedule A
JURISDICTIONS IN WHICH AVNET, INC. IS INCORPORATED OR QUALIFIED
Alabama, Alaska, Arizona, California, Colorado, Connecticut,
Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky,
Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nevada,
New Hampshire, New Jersey, New Mexico, New York, North Caro-
lina, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Texas,
Utah, Washington, Wisconsin
<PAGE>
AVNET, INC.
DEBT SECURITIES
PRICING AGREEMENT
, 199
Avnet, Inc.
80 Cutter Mill Road
Great Neck, New York 11021
Attention:
Ladies and Gentlemen:
Referring to the Debt Securities of Avnet, Inc. (the
"Company") covered by the Registration Statement on Form S-3
(No. 33- ) (the "Registration Statement") filed by the
Company, on the basis of the representations, warranties and
agreements contained in this Agreement and in the Company's
Standard Underwriting Agreement Provisions attached hereto (the
"Standard Underwriting Agreement"), and subject to the terms
and conditions set forth herein and therein, the Underwriters
named on Schedule I hereto ("Underwriters") agree to purchase,
severally and not jointly, and the Company agrees to sell to
the Underwriters, $ aggregate principal amount of
% Due (the "Securities")
in the respective principal amounts set forth opposite the
names of the Underwriters on Schedule A hereto.
The price at which the Securities shall be purchased
from the Company by the Underwriters shall be % of the
principal amount thereof [plus accrued interest from
, 199 ]. The Securities will be offered as set
forth in the Prospectus supplement relating thereto.
The Securities will have the following terms:
Title:
Interest Rate: % per annum
Interest Payment Dates: and
commencing , 199
Maturity:
Other Provisions: as set forth in the Prospectus Supplement
relating to the Securities
<PAGE>
-2-
Closing: A.M. on , 19 , at
, in New York Clearing House
(next day) funds.
Name[s] and Address[es] of Representative[s]:
The provisions contained in the Standard Underwriting
Agreement, a copy of which has been filed as Exhibit 1 to the
Registration Statement, are incorporated herein by reference.
The Securities will be made available for checking
and packaging at the office of at least 24
hours prior to the Closing Date.
We represent that we are authorized to act for the
several Underwriters named in Schedule A hereto in connection
with this financing and any action under this agreement by any
of us will be binding upon all the Underwriters.
This Pricing Agreement may be executed in one or more
counterparts, all of which counterparts shall constitute one
and the same instrument.
<PAGE>
-3-
If the foregoing is in accordance with your under-
standing of our agreement, kindly sign and return to us the
enclosed duplicate hereof, whereupon it will become a binding
agreement among the Company and the several Underwriters in
accordance with its terms.
Very truly yours,
[NAMES OF REPRESENTATIVES]
On behalf of themselves and
as Representatives of the
Several Underwriters
By_____________________________
By_____________________________
Name:
Title:
The foregoing Pricing Agreement
is hereby confirmed as of the
date first above written
AVNET, INC.
By__________________________
Name:
Title:
<PAGE>
SCHEDULE I
Principal
Underwriter Amount
$
_______
Total. . . . . . . . . . . . . . . $_______
<PAGE>
EXHIBIT 4
<PAGE>
_______________________________________________________________
AVNET, INC.
________________
INDENTURE
Dated as of January 1, 1994
________________
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
_______________________________________________________________
<PAGE>
CROSS REFERENCE TABLE
TIA Indenture
Section Section
310 (a) (1) ...................................... 609
(a) (2) ...................................... 609
(a) (3) ...................................... N.A.
(a) (4) ...................................... N.A.
(b) .......................................... 608,610
(c) .......................................... N.A.
311 (a) .......................................... 613
(b) .......................................... 613
(c) .......................................... N.A.
(d) .......................................... 701, 702
312 (a) .......................................... 702
(b) .......................................... 702
(c) .......................................... 703
313 (a) .......................................... 703
(b) (1) ...................................... N.A.
(b) (2) ...................................... 703
(c) .......................................... 703
314 (a) .......................................... 704, 1005
(b) .......................................... N.A.
(c) (1) ...................................... 102
(c) (2) ...................................... 102
(c) (3) ...................................... N.A.
(d) .......................................... N.A.
(e) .......................................... 102
(f) .......................................... N.A.
315 (a) .......................................... 601, 603
(b) .......................................... 602
(c) .......................................... 601
(d) .......................................... 601
(e) .......................................... 514
316 (a) (last sentence)........................... N.A.
(a) (1) (A)................................... 512
(a) (1) (b)................................... 513
(a) (2) ...................................... N.A.
(b) .......................................... 508
(c) .......................................... 512
317 (a) (1) ...................................... 503
(a) (2) ...................................... 504
(b) .......................................... 1003
318 (a) .......................................... 108
___________________
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any pur-
pose, be deemed to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
PARTIES ............................................... 1
RECITALS .............................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions ............................ 1
"Act" .................................. 2
"Affiliate" ............................ 2
"Attributable Debt" .................... 2
"Authorized Newspaper" ................. 2
"Authorized Officer" ................... 3
"Bearer Security" ...................... 3
"Board of Directors" ................... 3
"Board Resolution" ..................... 3
"Business Day" ......................... 3
"Capital Stock" ........................ 3
"CEDEL S.A." ........................... 3
"Commission" ........................... 4
"Company" .............................. 4
"Company Request" and "Company
Order"............................... 4
"Consolidated Net Assets" .............. 4
"Corporate Trust Office" ............... 4
"Coupon" ............................... 4
"Debt" ................................. 4
"Default Interest" ..................... 4
"Dollar or $" .......................... 4
"DTC" .................................. 5
"Euro-clear" ........................... 5
"Event of Default" ..................... 5
"Funded Debt" .......................... 5
"Holder" ............................... 5
"Indenture" ............................ 5
"Interest" ............................. 5
"Interest Payment Date" ................ 5
"Internal Revenue Code" ................ 6
"Maturity" ............................. 6
"Mortgage" ............................. 6
"Officers' Certificate" ................ 6
"Opinion of Counsel" ................... 6
-ii-
<PAGE>
Page
"Original Issue Discount
Security" ............................ 6
"Outstanding" .......................... 6
"Paying Agent" ......................... 8
"Person" ............................... 8
"Place of Payment" ..................... 8
"Predecessor Security" ................. 8
"Principal Property" ................... 8
"Redemption Date" ...................... 9
"Redemption Price" ..................... 9
"Registered Security" .................. 9
"Regular Record Date" .................. 9
"Responsible Officer" .................. 9
"Restricted Subsidiary" ................ 10
"Securities" ........................... 10
"Security Register" and
"Security Registrar" ................. 10
"Special Record Date" .................. 10
"Stated Maturity" ...................... 10
"Subsidiary" ........................... 10
"Trustee" .............................. 10
"Trust Indenture Act" .................. 10
"United States" ........................ 10
"United States Alien" .................. 11
"U.S. Government Obligation" ........... 11
"Voting Stock" ......................... 11
SECTION 102. Compliance Certificates and Opin-
ions ................................. 11
SECTION 103. Form of Documents Delivered to
Trustee .............................. 12
SECTION 104. Acts of Holders ........................ 13
SECTION 105. Notices, Etc., to Trustee and
Company .............................. 15
SECTION 106. Notice to Holders; Waiver .............. 15
SECTION 107. Language of Notices, Etc. .............. 17
SECTION 108. Conflict with Trust Indenture Act....... 17
SECTION 109. Effect of Headings and Table of
Contents ............................. 17
-iii-
<PAGE>
Page
SECTION 110. Successors and Assigns ................. 17
SECTION 111. Separability Clause .................... 17
SECTION 112. Benefits of Indenture .................. 17
SECTION 113. Governing Law .......................... 18
SECTION 114. Legal Holidays ......................... 18
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally ........................ 18
SECTION 202. Form of Trustee's Certificate of
Authentication ....................... 19
SECTION 203. Securities in Global Form .............. 19
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in
Series ............................... 20
SECTION 302. Denominations .......................... 24
SECTION 303. Execution, Authentication, Deliv-
ery and Dating ....................... 24
SECTION 304. Temporary Securities ................... 27
SECTION 305. Registration, Registration of
Transfer and Exchange ................ 30
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities .................... 34
SECTION 307. Payment of Interest; Interest
Rights Preserved ..................... 35
SECTION 308. Persons Deemed Owners .................. 37
SECTION 309. Cancellation ........................... 38
-iv-
<PAGE>
Page
SECTION 310. Computation of Interest ................ 38
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of
Indenture ............................ 39
SECTION 402. Application of Trust Money ............. 40
SECTION 403. Discharge and Defeasance of Secu-
rities of any Series ................. 41
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default ...................... 43
SECTION 502. Acceleration of Maturity; Rescis-
sion and Annulment ................... 45
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by Trus-
tee .................................. 46
SECTION 504. Trustee May File Proofs of Claim ....... 47
SECTION 505. Trustee May Enforce Claims With-
out Possession of Securities or
Coupons .............................. 48
SECTION 506. Application of Money Collected ......... 48
SECTION 507. Limitation on Suits .................... 49
SECTION 508. Unconditional Rights of Holders
To Receive Principal, Premium
and Interest ......................... 50
SECTION 509. Restoration of Rights and Reme-
dies ................................. 50
SECTION 510. Rights and Remedies Cumulative ......... 51
SECTION 511. Delay or Omission Not Waiver ........... 51
-v-
<PAGE>
Page
SECTION 512. Control by Holders ..................... 51
SECTION 513. Waiver of Past Defaults ................ 52
SECTION 514. Undertaking for Costs .................. 52
SECTION 515. Waiver of Stay or Extension Laws ....... 53
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibili-
ties ................................. 53
SECTION 602. Notice of Defaults ..................... 55
SECTION 603. Certain Rights of Trustee .............. 55
SECTION 604. Not Responsible for Recitals or
Issuance of Securities ............... 57
SECTION 605. May Hold Securities .................... 57
SECTION 606. Money Held in Trust .................... 57
SECTION 607. Compensation and Reimbursement ......... 57
SECTION 608. Disqualification; Conflicting
Interests ............................ 58
SECTION 609. Corporate Trustee Required; Eli-
gibility ............................. 58
SECTION 610. Resignation and Removal; Appoint-
ment of a Successor .................. 59
SECTION 611. Acceptance of Appointment by Suc-
cessor ............................... 61
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business ............ 63
SECTION 613. Preferential Collection of Claims
Against Company ...................... 63
-vi-
<PAGE>
Page
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company To Furnish Trustee Names
and Addresses of Holders of
Registered Securities ................ 63
SECTION 702. Preservation of Information; Com-
munications to Holders ............... 64
SECTION 703. Reports by Trustee ..................... 66
SECTION 704. Reports by Company ..................... 68
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc.,
Only on Certain Terms................. 69
SECTION 802. Successor Substituted .................. 70
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without
Consent of Holders ................... 71
SECTION 902. Supplemental Indentures with Con-
sent of Holders ...................... 72
SECTION 903. Execution of Supplemental Inden-
tures ................................ 74
SECTION 904. Effect of Supplemental Indentures....... 74
SECTION 905. Conformity with Trust Indenture
Act .................................. 74
SECTION 906. Reference in Securities to Sup-
plemental Indentures ................. 74
-vii-
<PAGE>
Page
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and
Interest ............................. 75
SECTION 1002. Maintenance of Office or Agency ........ 75
SECTION 1003. Money for Security Payments To Be
Held in Trust ........................ 77
SECTION 1004. Restrictions on Secured Debt ........... 79
SECTION 1005. Statement as to Compliance ............. 81
SECTION 1006. Corporate Existence .................... 81
SECTION 1007. Waiver of Certain Covenants ............ 81
SECTION 1008. Additional Amounts ..................... 82
SECTION 1009. Restrictions on Sales and
Leasebacks ........................... 83
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of This Article .......... 84
SECTION 1102. Election To Redeem; Notice to
Trustee .............................. 84
SECTION 1103. Selection by Trustee of Securi-
ties To Be Redeemed .................. 84
SECTION 1104. Notice of Redemption ................... 85
SECTION 1105. Deposit of Redemption Price ............ 86
SECTION 1106. Securities Payable on Redemption
Date ................................. 86
SECTION 1107. Securities Redeemed in Part ............ 88
-viii-
<PAGE>
Page
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article ............... 88
SECTION 1202. Satisfaction of Sinking Fund Pay-
ments With Securities ................ 89
SECTION 1203. Redemption of Securities for
Sinking Fund ......................... 89
ARTICLE THIRTEEN
MEETINGS OF THE HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May
Be Called ............................ 90
SECTION 1302. Call, Notice and Place of Meet-
ings ................................. 90
SECTION 1303. Persons Entitled To Vote at Meet-
ings ................................. 91
SECTION 1304. Quorum; Action ......................... 91
SECTION 1305. Determination of Voting Rights;
Conduct and Adjournment of
Meeting .............................. 93
SECTION 1306. Counting Votes and Recording
Action of Meetings ................... 94
COUNTERPARTS
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
Exhibit A. Form of Registered Security
Exhibit B. Form of Bearer Security
Exhibit C. Forms of Certification
-ix-
<PAGE>
INDENTURE, dated as of January 1, 1994 between Avnet,
Inc., a New York corporation (hereinafter called the "Company")
having its principal office at 80 Cutter Mill Road, Great Neck,
New York 11021, and The First National Bank of Chicago, as
trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from
time to time of its unsecured debentures, notes or other evi-
dences of indebtedness (hereinafter called the "Securities"),
to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the pur-
chase of the Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit
of all Holders of the Securities or of a series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as other-
wise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the mean-
ings assigned to them in this Article, and include the
plural as well as the singular;
(2) all other terms used herein which are defined in
the Trust Indenture Act, either directly or by reference
therein, have the meanings assigned to them therein;
<PAGE>
-2-
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance
with generally accepted accounting principles in the
United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting princi-
ples" with respect to any computation required or permit-
ted hereunder shall mean such accounting principles which
are generally accepted in the United States at the date or
time of such computation; and
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other
subdivision.
Certain terms, used principally in Article Six, are
defined in that Article.
"Act", when used with respect to any Holder, has the
meaning specified in Section 104.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified
Person. For the purposes of this definition, "control" when
used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "con-
trolled" have meanings correlative to the foregoing.
"Attributable Debt" means, as to any particular
lease, the greater of the fair market value of the property
subject to the lease (as determined by the Board of Directors)
or the total net amount of rent required to be paid during the
remaining term of the lease, discounted by the weighted average
effective interest cost per annum of the Outstanding Securities
of all series compounded semi-annually.
"Authorized Newspaper" means a newspaper, in the Eng-
lish language or in an official language of the country of pub-
lication, customarily published on each Business Day, whether
or not published on Saturdays, Sundays or holidays, and of gen-
eral circulation in the place in connection with which the term
is used or in the financial community of such place. Where
successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same
<PAGE>
-3-
or in different newspapers in the same city meeting the fore-
going requirements and in each case on any Business Day.
"Authorized Officer", when used with respect to the
Company, means the Chairman of the Board, ant Vice Chairman of
the Board, the President,the chief executive officer, the chief
financial officer, the chief operating the chief legal officer,
the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary
of the Company.
"Bearer Security" means any Security substantially in
the form for Bearer Securities set forth in Exhibit B or estab-
lished pursuant to Section 201 which is payable to bearer.
"Board of Directors" means either the board of direc-
tors of the Company or any duly authorized committee of that
board.
"Board Resolution" means a copy of a resolution cer-
tified by the Secretary or an Assistant Secretary of the Com-
pany to have been duly adopted by the Board of Directors and to
be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day", when used with respect to any Place
of Payment or any other particular location referred to in the
Indenture or in the Securities, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or other location
are authorized or obligated by law or executive order to close,
unless otherwise specified for a particular series of
Securities.
"Capital Stock", as applied to the stock of any cor-
poration, means the capital stock of every class whether now or
hereafter authorized, regardless of whether such capital stock
shall be limited to a fixed sum or percentage with respect to
the rights of the holders thereof to participate in dividends
and in the distribution of assets upon the voluntary or invol-
untary liquidation, dissolution or winding up of such
corporation.
"CEDEL S.A." means Centrale de Livraison de Valeurs
Mobilieres S.A.
<PAGE>
-4-
"Commission" means the Securities and Exchange Com-
mission, as from time to time constituted, created under the
Securities Exchange Act of 1934, or if at any time after the
execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such
time.
"Company" means the Person named as the "Company" in
the first paragraph of this instrument until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such suc-
cessor Person.
"Company Request" and "Company Order" mean, respec-
tively, a written request or order signed in the name of the
Company by two Authorized Officers of the Company, and deliv-
ered to the Trustee.
"Consolidated Net Assets" means total assets after
deducting therefrom all current liabilities as set forth on the
most recent balance sheet of the Company and its consolidated
Subsidiaries and computed in accordance with generally accepted
accounting principles.
"Corporate Trust Office" means the principal corpo-
rate trust office of the Trustee at which, at any particular
time, its corporate trust business shall be administered, which
office at the date hereof is located at One First National
Plaza, Suite 0126, Chicago, Illinois 60670-0126, Attention:
Corporate Trust Administration, except that for purposes of
Section 1002, such term shall mean the office or agency of the
Trustee in the Borough of Manhattan, the City of New York,
which office at the date hereof is located at 14 Wall Street,
8th Floor, New York, New York 10005, Attention: Corporate
Trust Administration.
"Coupon" means any interest coupon appertaining to a
Bearer Security.
"Debt" has the meaning specified in Section 1004.
"Default Interest" has the meaning specified in Sec-
tion 307.
"Dollar or $" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
<PAGE>
-5-
shall be legal tender for the payment of public and private
debts.
"DTC" means The Depository Trust Company or a nominee
thereof or successor thereto.
"Euro-clear" means the operator of the Euro-clear
System.
"Event of Default" has the meaning specified in Sec-
tion 501.
"Funded Debt" means (i) all indebtedness for money
borrowed having a maturity of more than 12 months from the date
as of which the determination is made or having a maturity of
12 months or less but by its terms being renewable or extend-
ible beyond 12 months from such date at the option of the bor-
rower and (ii) rental obligations payable more than 12 months
from such date under leases which are capitalized in accordance
with generally accepted accounting principles (such rental
obligations to be included as Funded Debt at the amount so cap-
italized and to be included as an asset for the purposes of the
definition of Consolidated Net Assets).
"Holder" means in the case of a Registered Security
the Person in whose name the Security is registered in the
Security Register and in the case of a Bearer Security or any
related coupon the bearer thereof.
"Indenture" means this instrument as originally exe-
cuted or as it may from time to time be supplemented or amended
by one or more supplemental indentures entered into pursuant to
the applicable provisions hereof and shall include the terms of
a particular series of Securities established as contemplated
by Section 301.
"Interest", when used with respect to an Original
Issue Discount Security which by its terms bears interest only
after Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to
any Security, means the Stated Maturity of an installment of
interest on such Security.
<PAGE>
-6-
"Internal Revenue Code" means the Internal Revenue
Code of 1986, as amended to the date hereof and from time to
time hereafter, and any successor statute.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security or an
installment of principal becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declara-
tion of acceleration, call for redemption or otherwise.
"Mortgage" has the meaning specified in Section 1004.
"Officers' Certificate" means a certificate signed by
two Authorized Officers of the Company and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of coun-
sel, who may be an employee of or counsel to the Company or may
be other counsel satisfactory to the Trustee.
"Original Issue Discount Security" means any Security
which provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of accelera-
tion of the Stated Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities
of all series or Securities of any series means, as of the date
of determination, all such Securities theretofore authenticated
and delivered under this Indenture, except:
(i) Such Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Such Securities or portions thereof for whose
payment or redemption (a) money in the necessary amount
has been theretofore deposited in trust with the Trustee
or any Paying Agent (other than the Company) or set aside
and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities and any coupons appertaining thereto or
(b) U.S. Government Obligations as contemplated by Section
403 in the necessary amount have been theretofore depos-
ited in satisfaction of the requirements of Section 403
with the Trustee (or another trustee satisfying the
requirements of Section 609) in trust for the Holders of
such Securities and any coupons thereto appertaining in
accordance with Section 402; provided that, if such
<PAGE>
-7-
Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provi-
sion therefor satisfactory to the Trustee has been made;
and
(iii) Such Securities which have been paid pursuant to
Section 402 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant
to this Indenture other than any such Securities in
respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such Securi-
ties are valid obligations of the Company;
provided, however, that in determining whether the Holders of
the requisite principal amount of such Outstanding Securities
have given any request, demand, authorization, direction,
notice, consent or waiver hereunder or whether a quorum is pre-
sent at a meeting of Holders of such Securities, (i) the prin-
cipal amount of an Original Issue Discount Security that shall
be deemed to be Outstanding shall be the amount of the princi-
pal thereof that would be due and payable as of the date of
such determination upon acceleration of the Stated Maturity
thereof pursuant to Section 502, (ii) the principal amount of
Securities denominated in more than one currency (including
composite currencies) shall be the Dollar equivalent (deter-
mined, unless otherwise provided as contemplated by
Section 301, on the basis of the spot rate of exchange, on the
date of such determination, for any currency other than Dollars
as determined by the Company or by an authorized exchange rate
agent and evidenced to the Trustee by an Officers' Certificate)
of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent on the date of such
determination of the amount determined as provided in
(i) above) of such Securities, and (iii) Securities owned by
the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor shall be disre-
garded and deemed not to be Outstanding, except that, in deter-
mining whether the Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice,
consent or waiver, or upon any such determination as to the
presence of a quorum only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company or any other obligor
<PAGE>
-8-
upon the Securities or any Affiliate of the Company or such
other obligor. For purposes of clause (ii) above, an exchange
rate agent may be authorized in advance or from time to time by
the Company, and may be the Trustee. Any such determination by
the Company or by any such exchange rate agent shall be conclu-
sive and binding on all Holders of Securities and related cou-
pons, if any, and neither the Trustee, the Company nor such
exchange rate agent shall be liable therefor in the absence of
bad faith.
"Paying Agent" means any Person (including the Com-
pany) authorized by the Company to pay the principal of (and
premium, if any) or interest, if any, on any Securities on
behalf of the Company.
"Person" means any individual, corporation, partner-
ship, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to any
series of Securities or any coupons, means the place or places
where, subject to the provisions of Section 1002, the principal
of (and premium, if any) and interest, if any, on the Securi-
ties of that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security
means every previous Security evidencing all or a portion of
the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security authen-
ticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or the
Security to which the mutilated, destroyed, lost or stolen cou-
pon appertains, as the case may be, shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen Secu-
rity or the Security to which the mutilated, destroyed, lost or
stolen coupon appertains, as the case may be.
"Principal Property" means any manufacturing or
assembly plant or warehouse owned at the date hereof or here-
after acquired by the Company or any Restricted Subsidiary of
the Company which is located within the United States and the
gross book value (including related land and improvements
thereon and all machinery and equipment included therein with-
out deduction of any depreciation reserves) of which on the
date as of which the determination is being made exceeds 2% of
<PAGE>
-9-
Consolidated Net Assets other than (i) any such manufacturing
or assembly plant or warehouse or any other real property or
any portion thereof (together with the land on which it is
erected and fixtures comprising a part thereof) which is
financed by industrial development bonds which are tax exempt
pursuant to Section 103 of the Internal Revenue Code (or which
receive similar tax treatment under any subsequent amendments
thereto or any successor laws thereof or under any other simi-
lar statute of the United States), (ii) any property which in
the opinion of the Board of Directors is not of material impor-
tance to the total business conducted by the Company as an
entirety or (iii) any portion of a particular property which is
similarly found not to be of material importance to the use or
operation of such property.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemp-
tion by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture (including any premium with
respect thereto).
"Registered Security" means any Security substan-
tially in the form for Registered Securities set forth in
Exhibit A or established pursuant to Section 201 which is reg-
istered in the Security Register.
"Regular Record Date" for the interest payable on any
Interest Payment Date on the Registered Securities of any
series means the date specified for that purpose as contem-
plated by Section 301.
"Responsible Officer", when used with respect to the
Trustee, means any officer within the Corporate Trust Adminis-
tration (or any successor group of the Trustee) including any
vice president, assistant vice president, any trust officer,
any assistant secretary or any other officer or assistant offi-
cer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter
is referred at the Trustee's principal Corporate Trust Office
because of his knowledge of and familiarity with the particular
subject.
<PAGE>
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"Restricted Subsidiary" means a Subsidiary of the
Company (i) substantially all the property of which is located,
or substantially all the business of which is carried on,
within the United States and (ii) which owns a Principal
Property.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any Secu-
rities authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any
Defaulted Interest on the Registered Securities of any series
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any
Security or any installment of principal thereof or interest
thereon, means the date specified in such Security or a coupon
representing such installment of interest as the fixed date on
which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means any corporation more than 50% of
the outstanding Voting Stock of which at the time of determina-
tion is owned, directly or indirectly, by the Company and/or
one or more other Subsidiaries.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this instrument until a successor trus-
tee shall have become such pursuant to the applicable provi-
sions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at
any time there is more than one such Person, "Trustee" as used
with respect to the Securities of any series shall mean the
Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act
of 1939, as amended and as in force at the date as of which
this instrument was executed, except as provided in Section
905.
"United States" means the United States of America
(including the States and the District of Columbia), its terri-
tories and possessions and other area subject to its
jurisdiction.
<PAGE>
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"United States Alien" means any Person who, for
United States Federal income tax purposes, is a foreign corpo-
ration, a non-resident alien individual, a non-resident alien
fiduciary of a foreign estate or trust, or a foreign partner-
ship one or more of the members of which is, for United States
Federal income tax purposes, a foreign corporation, a
non-resident alien individual or a non-resident alien fiduciary
of a foreign estate or trust.
"U.S. Government Obligation" means securities which
are (i) direct obligations of the United States of America for
the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of Amer-
ica, which, in either case, are not callable or redeemable at
the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custo-
dian with respect to any such obligation evidenced by such
depository receipt or a specific payment of interest on or
principal of any such obligation held by such custodian for the
account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custo-
dian in respect of the obligation set forth in (i) or (ii)
above or the specific payment of interest on or principal of
such obligation evidenced by such depository receipt.
"Voting Stock" means Capital Stock of a corporation
of the class or classes having general voting power under ordi-
nary circumstances to elect at least a majority of the board of
directors, managers or trustees of such corporation (irrespec-
tive of whether or not at the time stock of any other class or
classes shall have or might have voting power upon the occur-
rence of any contingency).
SECTION 102. Compliance Certificates
and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Inden-
ture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, pro-
vided for in this Indenture relating to the proposed action
have been complied with and an Opinion of Counsel stating that
<PAGE>
-12-
in the opinion of such counsel all such conditions precedent,
if any, have been complied with, except that in the case of any
such application or request as to which the furnishing of such
documents is specifically required by any provision of this
Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compli-
ance with a condition or covenant provided for in this Inden-
ture (other than certificates provided pursuant to Subsection
704(4)) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant
and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation
as is necessary to enable him to express an informed opin-
ion as to whether or not such condition or covenant has
been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been com-
plied with.
SECTION 103. Form of Documents Delivered
to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Per-
son, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some
matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Com-
pany may be based, insofar as it relates to legal matters, upon
a certificate or opinion of, or representations by, counsel,
<PAGE>
-13-
unless such officer knows, or in the exercise of reasonable
care should know, that the certificate or opinion or represen-
tations with respect to the matters upon which his certificate
or opinion is based are erroneous.
Any such certificate or Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a cer-
tificate or opinion of, or representations by, an Authorized
Officer or Authorized Officers of the Company stating that the
information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates,
statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one
instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Inden-
ture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly
appointed in writing. If Securities of a series are issuable
as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of such series
may, alternatively, be embodied in and evidenced by the record
of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writ-
ing, at any meeting of Holders of Securities of such series
duly called and held in accordance with the provisions of
Article Thirteen, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or
instruments or record, or both, are delivered to the Trustee
and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein some-
times referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at any such meeting.
Proof of an execution of any such instrument or of a writing
<PAGE>
-14-
appointing any such agent or proxy, or of the holding by any
Person of a Security, shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor
of the Trustee and the Company and any agent of the Company, if
made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner
provided in Section 1306.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affida-
vit of a witness of such execution or by a certificate of any
notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual sign-
ing such instrument or writing acknowledged to him the execu-
tion thereof. Where such execution is by an officer of a cor-
poration or association or a member of a partnership, or an
official of a public or governmental body, on behalf of such
corporation, association, partnership or public or governmental
body or by a fiduciary, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact
and date of the execution by any Person of any such instrument
or writing, or the authority of the Person executing the same,
may also be proved in any other manner which shall be satisfac-
tory to the Trustee.
(c) The principal amount and serial numbers of Reg-
istered Securities held by any Person, and the date of holding
the same, shall be proved by the Security Register.
(d) The principal amount and serial numbers of
Bearer Securities held by any Person, and the date of holding
the same, may be proved by the production of such Bearer Secu-
rities or by a certificate executed, by any trust company,
bank, banker or other depositary, as depositary, wherever situ-
ated, if such certificate shall be satisfactory to the Trustee,
showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by
the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit shall be satisfac-
tory to the Trustee. The Trustee and the Company may assume
that such ownership of any Bearer Security continues until (1)
another certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, or (2) such
Bearer Security is produced to the Trustee by some other Per-
son, or (3) such Bearer Security is surrendered in exchange for
a Registered Security, or (4) such Bearer Security is no longer
<PAGE>
-15-
Outstanding. The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the
same, may also be proved in any other manner which shall be
satisfactory to the Trustee.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any
Security shall bind every future Holder of the same Security
and the Holder of every Security issued upon the registration
of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done or suffered to be done by the Trus-
tee or the Company in reliance thereon, whether or not notation
of such action is made upon such Security.
SECTION 105. Notices, Etc., to Trustee
and Company.
Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trus-
tee at its Corporate Trust Office, which, as of the date
of this Indenture, is: One First National Plaza, Suite
0126, Chicago, Illinois 60670-0126, Attention: Corpo-
rate Trust Administration; or
(2) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office
specified in the first paragraph of this instrument, to
the attention of the Corporate Secretary or at any other
address previously furnished in writing to the Trustee by
the Company.
SECTION 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where
this Indenture provides for notice to Holders of any event,
(1) such notice shall be sufficiently given to
Holders of Registered Securities if in writing and
<PAGE>
-16-
mailed, first-class postage prepaid, to each Holder of a
Registered Security affected by such event, at his
address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice;
(2) such notice shall be sufficiently given to
Holders of Bearer Securities if published in an autho-
rized Newspaper in the City of New York and in such other
city or cities as may be specified in such Securities on
a Business Day at least once, the first such publication
to be not earlier than the earliest date, and not later
than the latest date, prescribed for the giving of such
notice.
If, by reason of the suspension of regular mail ser-
vice, it shall be impracticable to mail notice of any event to
Holders of Registered Securities when such notice is required
to be given pursuant to any provision of this Indenture, then
such manner of giving such notice as shall be acceptable to the
Trustee shall constitute sufficient giving of such notice. In
any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder of a
Registered Security shall affect the sufficiency of such notice
with respect to other Holders of Registered Securities or the
sufficiency of any notice with respect to Holders of Bearer
Securities given as provided herein.
If, by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of
any other cause it shall be impracticable to publish any notice
to Holders of Bearer Securities as provided above, then such
notification to Holders of Bearer Securities as shall be given
in a manner satisfactory to the Trustee shall constitute suffi-
cient notice to such Holders for every purpose hereunder. Nei-
ther the failure to give notice by publication to Holders of
Bearer Securities as provided above, nor any defect in any
notice so published, shall affect the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in any man-
ner, such notice may be waived in writing by the Person enti-
tled to receive such notice, either before or after the event,
and such waiver shall be the equivalent of such notice. Waiv-
ers of notice by Holders shall be filed with the Trustee, but
<PAGE>
-17-
such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
SECTION 107. Language of Notices, Etc.
Any request, demand, authorization, direction,
notice, consent, waiver, Act of Holders or other document
required or permitted under this Indenture shall be in the Eng-
lish language, except that any published notice may be in an
official language of the country of publication.
SECTION 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or con-
flicts with any obligation or requirement included or deemed
included herein by operation of the Trust Indenture Act, such
obligation or requirement of the Trustee Indenture Act shall
control.
SECTION 109. Effect of Headings and
Table of Contents.
The Article and Section headings herein and the Table
of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or the Secu-
rities or coupons shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining pro-
visions shall not in any way be affected or impaired thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or the Securities or cou-
pons, expressed or implied, shall give to any Person, other
than the parties hereto, their successors hereunder and the
Holders of Securities or coupons, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
<PAGE>
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SECTION 113. Governing Law.
This Indenture and the Securities and any coupons
shall be governed by and construed in accordance with the laws
of the State of New York without giving effect to the conflicts
of laws provisions thereof.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemp-
tion Date or Stated Maturity or Maturity of any Security shall
not be a Business Day at any Place of Payment, then (notwith-
standing any other provision of this Indenture or of the Secu-
rities or coupons other than a provision in the Securities of
any series which specifically states that such provision shall
apply in lieu of this Section) payment of principal (and pre-
mium, if any) or interest, if any, need not be made at such
Place of Payment on such date, but may be made on the next suc-
ceeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity or Maturity, pro-
vided that no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date,
Redemption Date, Stated Maturity or Maturity, as the case may
be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and
the Bearer Securities, if any, of each series and related cou-
pons, if any, shall be in substantially the forms set forth in
Exhibit A and Exhibit B to this Indenture, respectively, or in
such other form (including temporary or permanent global form)
as shall be established in one or more supplemental indentures
or approved from time to time by or pursuant to a Board Resolu-
tion in accordance with Section 301, in each case with such
appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and
may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or
as may, consistently herewith, be determined by the officers
executing such Securities and coupons, if any, as evidenced by
<PAGE>
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their execution of the Securities and coupons, if any. If the
forms of Securities and coupons, if any, of any series (or the
form of any such temporary or permanent global Security) are
established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentica-
tion and delivery of such Securities or coupons (or any such
temporary or permanent global Security).
Unless otherwise provided as contemplated by Section
301 with respect to any series of Securities, the Securities of
each series shall be issuable in registered form without cou-
pons. If so provided as contemplated by Section 301, the Secu-
rities of a series also shall be issuable in bearer form, with
interest coupons, if any, attached.
The definitive Securities and coupons, if any, shall
be printed, lithographed or engraved or produced by any combi-
nation of these methods on steel engraved borders or may be
produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all
as determined by the officers executing such Securities and
coupons, if any, as evidenced by their execution of such Secu-
rities and coupons, if any.
SECTION 202. Form of Trustee's Certificate
of Authentication.
The Trustee's certificate of authentication shall be
in substantially the following form:
This is one of the Securities of the series desig-
nated herein referred to in the within-mentioned Indenture.
The First National Bank of Chicago,
as Trustee
By_________________________________
Authorized Officer
SECTION 203. Securities in Global Form.
<PAGE>
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If Securities of a series are issuable in global
form, as specified as contemplated by Section 301, then, not-
withstanding clause (8) of Section 301 and the provisions of
Section 302, any such Security shall represent such of the Out-
standing Securities of such series as shall be specified
therein and may provide that it shall represent the aggregate
amount of Outstanding Securities from time to time endorsed
thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to
reflect the amount, or any decrease in the amount, of Outstand-
ing Securities represented thereby shall be made by the Trustee
in such manner and upon instructions given by such Person or
Persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 303 or Sec-
tion 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner
and upon instructions given by the Person or Persons specified
therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 102
and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 201 and
307, unless otherwise specified as contemplated by Section 301,
payment of principal of (and premium, if any) and interest, if
any, on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and
except as provided in the preceding paragraph, the Company, the
Trustee and any agent of the Company and the Trustee shall
treat a Person as the Holder of such principal amount of Out-
standing Securities represented by a permanent global Security
as shall be specified in a written statement of the Holder of
such permanent global Security or, in the case of a permanent
global Security in bearer form, of Euro-clear or CEDEL, S.A.,
which is produced to the Trustee by such Person.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable
<PAGE>
-21-
in Series.
The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is
unlimited.
The Securities may be issued in one or more series.
There shall be established in or pursuant to a Board Resolu-
tion, and, subject to Section 303, set forth in an Officers'
Certificate, or established in one or more supplemental inden-
tures, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series
(which shall distinguish the Securities of the series
from all other Securities);
(2) any limit upon the aggregate principal amount
of the Securities of the series which may be authenti-
cated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 304, 305,
306, 906 or 1107);
(3) the date or dates on which the principal of the
Securities of the series is payable;
(4) the rate or rates (which may be fixed or float-
ing) at which the Securities of the series shall bear
interest, if any, the date or dates from which such
interest shall accrue, the Interest Payment Dates on
which such interest shall be payable and the Regular
Record Date for the interest payable on Registered Secu-
rities on any Interest Payment Date or the formula or
method by which such rate or rates, or date or dates may
be determined;
(5) the place or places where, subject to the pro-
visions of Section 1002, the principal of (and premium,
if any) and interest, if any, on Securities of the series
shall be payable, any Registered Securities of the series
may be surrendered for registration of transfer, Securi-
ties of the series may be surrendered for exchange and
notices and demands to or upon the Company in respect of
the Securities of the series and this Indenture may be
served;
<PAGE>
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(6) the period or periods within which, the price
or prices at which and the terms and conditions upon
which Securities of the series may be redeemed, in whole
or in part, at the option of the Company;
(7) the obligation, if any, of the Company to
redeem or purchase Securities of the series pursuant to
any sinking fund or analogous provisions or at the option
of a Holder thereof and the period or periods within
which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to
such obligation;
(8) the denominations in which any Registered Secu-
rities of the series shall be issuable, if other than
denominations of $1,000 and any integral multiple
thereof, and the denomination or denominations in which
any Bearer Securities of the series shall be issuable if
other than the denomination of $5,000;
(9) if other than the principal amount thereof, the
portion of the principal amount of Securities of the
series which shall be payable upon declaration of accel-
eration of the Stated Maturity thereof pursuant to Sec-
tion 502;
(10) any paying agents, transfer agents, registrars
or any other agents with respect to the Securities of the
series;
(11) the currency or currencies, including com-
posite currencies, in which payment of the principal of
(and premium, if any) and interest, if any, on such Secu-
rities shall be payable if other than the currency of the
United States;
(12) if the principal of (and premium, if any), or
interest, if any, on such Securities are to be payable,
at the election of the Company or any Holder thereof, in
a coin or currency or currencies, including composite
currencies, other than that or those in which such Secu-
rities are stated to be payable, the coin or currency or
currencies, including composite currencies, in which pay-
ment of the principal of (and premium, if any), or inter-
est, if any, on Securities of such series as to which
such election is made shall be payable, and the periods
<PAGE>
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within which, and the terms and conditions upon which,
such election may be made;
(13) if such Securities are to be denominated in
more than one currency, including composite currencies,
the basis of determining the equivalent price in the cur-
rency of the United States (if other than as set forth in
the definition of Outstanding) for purposes of determin-
ing the voting rights of Holders of such Securities under
this Indenture;
(14) if the amount of payments of principal of (and
premium, if any), or portions thereof, or interest, if
any, on such Securities may be determined with reference
to an index, formula or other method, the manner in which
such amounts shall be determined;
(15) whether Securities of the series are to be
issuable as Registered Securities, Bearer Securities or
both, whether any Securities of the series are to be
issuable initially in temporary global form and whether
any Securities of the series are to be issuable in perma-
nent global form and, if so, whether beneficial owners of
interests in any such permanent global Security may
exchange such interests for Securities of such series and
of like tenor of any authorized form and denomination and
the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section
305;
(16) the applicability of Section 403 of this
Indenture to the Securities of such series; and
(17) any other terms of or provisions applicable to
the series (which terms and provisions shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and any coupons
appertaining thereto shall be substantially identical except,
in the case of Registered Securities, as to denomination and
except in the case of any series of Securities, as may other-
wise be provided in or pursuant to such Board Resolution
referred to above and (subject to Section 303) set forth in
such Officers' Certificate or in any such indenture supplemen-
tal hereto. All Securities of one series need not be issued
at the same time and, unless otherwise provided, a series may
be reopened for issuances of additional Securities of such
<PAGE>
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series. Securities may differ between series in respect of
any matters.
If any of the terms of the Securities of any series
are established by action taken pursuant to a Board Resolu-
tion, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the deliv-
ery of the Officers' Certificate setting forth the terms of
the Securities of such series.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section
301 with respect to the Securities of any series, any Regis-
tered Securities of such series shall be issuable in denomina-
tions of $1,000 and any integral multiple thereof and any
Bearer Securities of such series shall be issuable in the
denomination of $5,000.
SECTION 303. Execution, Authentication,
Delivery and Dating.
The Securities shall be executed on behalf of the
Company by its Chairman of the Board, President and Chief
Executive Officer, any Senior Vice President, any Vice Presi-
dent or the Treasurer, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Sec-
retaries. The signature of any of these officers on the Secu-
rities may be manual or facsimile. Coupons shall bear the
facsimile signature of the Treasurer or any Assistant Trea-
surer of the Company.
Securities and coupons bearing the manual or fac-
simile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, not-
withstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of
such Securities.
At any time and from time to time after the execu-
tion and delivery of this Indenture, the Company may deliver
Securities of any series, together with any coupons apper-
taining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authen-
tication and delivery of such Securities, and the Trustee in
<PAGE>
-25-
accordance with the Company Order shall authenticate and
deliver such Securities; provided, however, that, in connec-
tion with its original issuance, no Bearer Security shall be
mailed or otherwise delivered to any location in the United
States; and provided, further, that a Bearer Security may be
delivered in connection with its original issuance only if the
Person entitled to receive such Bearer Security shall have
furnished a certificate in the form set forth in Exhibit C-1
to this Indenture, dated no earlier than 15 days prior to the
earlier of the date on which such Bearer Security is delivered
and the date on which any temporary global Security first
becomes exchangeable for such Bearer Security in accordance
with the terms of such temporary global Security and this
Indenture. If any Security shall be represented by a perma-
nent global Bearer Security, then, for purposes of this Sec-
tion and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary global Security
shall be deemed to be delivery in connection with its original
issuance of such beneficial owner's interest in such permanent
global Security. Except as permitted by Section 306, the
Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have
been detached and cancelled.
If the forms or terms of the Securities of the
series and any related coupons have been established in or
pursuant to one or more Board Resolutions as permitted by Sec-
tions 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully pro-
tected in relying upon, an Opinion of Counsel stating,
(a) if the forms of such Securities and any coupons
have been established by or pursuant to a Board Resolution
as permitted by Section 201, that such forms have been
established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities and any coupons
have been established by or pursuant to a Board Resolution
as permitted by Section 301, that such terms have been
established in conformity with the provisions of this
Indenture; and
<PAGE>
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(c) that such Securities, together with any coupons
appertaining thereto, when authenticated and delivered by
the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obliga-
tions of the Company, enforceable in accordance with their
terms, subject, as to enforcement, to bankruptcy, insol-
vency, reorganization and other laws of general applica-
bility relating to or affecting the enforcement of credi-
tors' rights and to general principles of equity.
If such forms or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the
issue of such Securities pursuant to this Indenture will affect
the Trustee's own rights, duties or immunities under the Secu-
rities and this Indenture or will otherwise affect the Trustee
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of
the preceding paragraph, if all Securities of a series are not
to be originally issued at one time, it shall not be necessary
to deliver the Officers' Certificate otherwise required pursu-
ant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Security of such
series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of
such series to be issued.
A Company Order delivered in the circumstances set
forth in the preceding paragraph may provide that Securities
which are the subject thereof will be authenticated and deliv-
ered by the Trustee on original issue from time to time upon
the telephonic or written order of persons designated in such
Company Order (telephonic instructions to be promptly confirmed
in writing by such persons) and that such persons are autho-
rized to determine, consistent with the Officers' Certificate
referred to in Section 301 or any applicable supplemental
indenture, such terms and conditions of said Securities as are
specified in such Company Order, provided the foregoing proce-
dure is acceptable to the Trustee.
Each Registered Security shall be dated the date of
its authentication. Each Bearer Security of a series shall be
dated as of the date of the initial issuance of Securities of
such series.
<PAGE>
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No Security or any related coupon shall be entitled
to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security, or the
Security to which such coupon appertains, a certificate of
authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certifi-
cate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated
and delivered hereunder and that such Security and any related
coupon are entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of
any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substan-
tially of the tenor of the definitive Securities in lieu of
which they are issued, in registered form or, if authorized, in
bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
In the case of Debt Securities of any series, such temporary
Securities may be in global form, representing all or a portion
of the Outstanding Debt Securities of such series. A temporary
Bearer Security shall be delivered only in compliance with the
conditions set forth in Section 303.
Except in the case of temporary Bearer Securities in
global form (which shall be exchanged in accordance with the
provisions of the following paragraphs), if temporary Securi-
ties of any series are issued, the Company will cause defini-
tive Securities of that series to be prepared without unreason-
able delay. After the preparation of definitive Securities of
such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon sur-
render of the temporary Securities of such series at the office
or agency of the Company maintained pursuant to Section 1002 in
a Place of Payment for that series, without charge to the
Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any
unmatured coupons appertaining thereto) the Company shall exe-
cute and the Trustee shall authenticate and deliver in exchange
therefor a like aggregate principal amount of definitive Secu-
rities of the same series and of like tenor of authorized
<PAGE>
-28-
denominations; provided, however, that no definitive Bearer
Security shall be delivered in exchange for a temporary Regis-
tered Security; and provided, further, that a definitive Bearer
Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in
Section 303. Until so exchanged the temporary Securities of
any series shall in all respects be entitled to the same bene-
fits under this Indenture as definitive Securities of such
series.
If temporary Bearer Securities of any series are
issued in global form, any such temporary global Security
shall, unless otherwise provided therein, be delivered to the
London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euro-clear and CEDEL S.A., for
credit to the respective accounts of the beneficial owners of
such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later
than the date specified in, or determined pursuant to the terms
of, any such temporary global Bearer Security of a series (the
"Exchange Date"), the Company shall deliver to the Trustee
definitive Securities of such series in aggregate principal
amount equal to the principal amount of such temporary global
Bearer Security, executed by the Company. On or after the
Exchange Date, such temporary global Bearer Security shall be
surrendered by the Common Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Securities of such
series without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global
Bearer Security, a like aggregate principal amount of defini-
tive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global
Bearer Security to be exchanged; provided, however, that,
unless otherwise specified in such temporary global Bearer
Security, upon such presentation by the Common Depositary, such
temporary global Bearer Security is accompanied by a certifi-
cate dated the Exchange Date or a subsequent date and signed by
Euro-clear as to the portion of such temporary global Bearer
Security held for its account then to be exchanged and a cer-
tificate dated the Exchange Date or a subsequent date and
signed by CEDEL S.A. as to the portion of such temporary global
Bearer Security held for its account then to be exchanged, each
in the form set forth in Exhibit C-2 to this Indenture. To the
extent required by applicable United States Treasury regula-
tions, in the case of a Bearer Security, the Exchange Date
<PAGE>
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shall not be later than the expiration of a reasonable period
after the expiration of the 40-day period beginning on the date
of issuance of the temporary global Bearer Security to be
exchanged. The definitive Securities to be delivered in
exchange for any such temporary global Bearer Security shall be
in bearer form, registered form, permanent global bearer form
or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if
any combination thereof is so specified, as requested by the
beneficial owner thereof; provided, however, that definitive
Bearer Securities shall be delivered in exchange for a portion
of a temporary global Security only in compliance with the
requirements of Section 303.
Unless otherwise specified in such temporary global
Bearer Security, the interest of a beneficial owner of Securi-
ties of a series in a temporary global Bearer Security shall be
exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder
instructs Euro-clear or CEDEL S.A., as the case may be, to
request such exchange on his behalf and delivers to Euro-clear
or CEDEL S.A., as the case may be, a certificate in the form
set forth in Exhibit C-1 to this Indenture, dated no earlier
than 15 days prior to the Exchange Date, copies of which cer-
tificate shall be available from the offices of Euro-clear and
CEDEL S.A., the Trustee and each Paying Agent. Unless other-
wise specified in such temporary global Bearer Security, any
such exchange shall be made free of charge to the beneficial
owners of such temporary global Bearer Security, except that a
Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like in the event
that such Person does not take delivery of such definitive
Securities in person at the offices of Euro-clear or CEDEL S.A.
Definitive Securities in bearer form to be delivered in
exchange for any portion of a temporary global Bearer Security
shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as defini-
tive Securities of the same series and of like tenor authenti-
cated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a
temporary global Bearer Security on an Interest Payment Date
for Securities of such series occurring prior to the applicable
Exchange Date shall be payable to Euro-clear and CEDEL S.A. on
such Interest Payment Date upon delivery by Euro-clear and
<PAGE>
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CEDEL S.A. to the Trustee of a certificate or certificates in
the form set forth in Exhibit C-3 to this Indenture, for credit
without further interest on or after such Interest Payment Date
to the respective accounts of the Persons who are the benefi-
cial owners of such temporary global Security on such Interest
Payment Date and who have each delivered to Euro-clear or CEDEL
S.A., as the case may be, a certificate in the form set forth
in Exhibit C-4 to this Indenture. Any interest so received by
Euro-clear and CEDEL S.A. and not paid as herein provided shall
be returned to the Trustee immediately prior to the expiration
of two years after such Interest Payment Date in order to be
repaid to the Company in accordance with Section 1003.
SECTION 305. Registration, Registration of
Transfer and Exchange.
The Company shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the register maintained
in such office and in any other office or agency to be main-
tained by the Company in accordance with Section 1002 being
herein sometimes collectively referred to as the "Security Reg-
ister") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration
of Registered Securities and of transfers of Registered Securi-
ties. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Registered Securities and transfers
of Registered Securities as herein provided.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency main-
tained pursuant to Section 1002 for such purpose in a Place of
Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the des-
ignated transferee or transferees, one or more new Registered
Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of
any series may be exchanged for other Registered Securities of
the same series, of any authorized denominations and of a like
aggregate principal amount and tenor, upon surrender of the
Securities to be exchanged at such office or agency. Bearer
Securities may not be issued in exchange for Registered
Securities.
At the option of the Holder, Bearer Securities of any
series may be exchanged for Registered Securities of the same
<PAGE>
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series of any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Bearer Secu-
rities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default apper-
taining thereto. If the Holder of a Bearer Security is unable
to produce any such unmatured or matured coupon or coupons in
default, such exchange may be effected if the Bearer Securities
are accompanied by payment in funds acceptable to the Company
in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may
be waived by the Company or jointly by the Company and the
Trustee if there is furnished to them such security or indem-
nity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in
respect of which such a payment shall have been made, such
Holder shall be entitled to receive the amount of such payment;
provided, however, that, except as otherwise provided in Sec-
tion 1002, interest represented by coupons shall be payable
only upon presentation and surrender of those coupons at an
office or agency located outside the United States. Notwith-
standing the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a
Registered Security of the same series and like tenor after the
close of business at such office or agency on (i) any Regular
Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or
Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the
case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to
the Holder of such coupon when due in accordance with the pro-
visions of this Indenture.
Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder mak-
ing the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise
specified as contemplated by Section 301, any permanent global
Security shall be exchangeable only as provided in this
<PAGE>
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paragraph. If the beneficial owners of interests in a perma-
nent global Security are entitled to exchange such interests
for Securities of such series and of like tenor and principal
amount of another authorized form and denomination, as speci-
fied as contemplated by Section 301, then without unnecessary
delay but in any event not later than the earliest date on
which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities of that series in
aggregate principal amount equal to the principal amount of
such permanent global Security, executed by the Company. On or
after the earliest date on which such interests may be so
exchanged, such permanent global Security shall be surrendered
by the Common Depositary or such other depositary as shall be
specified in the Company Order with respect thereto to the
Trustee as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for defini-
tive Securities of the same series without charge and the Trus-
tee shall authenticate and deliver, in exchange for each por-
tion of such permanent global Security, a like aggregate prin-
cipal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of
such permanent global Security to be exchanged which, unless
the Securities of the series are not issuable both as Bearer
Securities and as Registered Securities, as specified as con-
templated by Section 301, shall be in the form of Bearer Secu-
rities or Registered Securities, or any combination thereof, as
shall be specified by the beneficial owner thereof; provided,
however, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selec-
tion of Securities of that series to be redeemed and ending on
the relevant Redemption Date; and provided, further, that no
Bearer Security delivered in exchange for a portion of a perma-
nent global Security (or, if specified as contemplated by
Section 301, in exchange for Registered Securities) shall be
mailed or otherwise delivered to any location in the United
States. Promptly following any such exchange in part and any
endorsement thereon to reflect the amount represented by such
exchange, such permanent global Security shall be returned by
the Trustee to the Common Depositary or such other depositary
or Common Depositary referred to above in accordance with the
instructions of the Company referred to above. If a Registered
Security is issued in exchange for any portion of a permanent
global Security after the close of business at the office or
agency where such exchange occurs on (i) any Regular Record
Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Spe-
cial Record Date and before the opening of business at such
<PAGE>
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office or agency on the related proposed date for payment of
interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for pay-
ment, as the case may be, in respect of such Registered Secu-
rity, but will be payable on such Interest Payment Date or pro-
posed date for payment, as the case may be, only to the Person
to whom interest in respect of such portion of such permanent
global Security is payable in accordance with the provisions of
this Indenture.
All Securities issued upon any registration of trans-
fer or exchange of Securities shall be the valid obligations of
the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered
upon such registration of transfer or exchange.
Every Registered Security presented or surrendered
for registration of transfer or for exchange shall (if so
required by the Company or the Trustee or any transfer agent)
be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Trustee and
the Security Registrar or any transfer agent duly executed, by
the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration
of transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Sections 304, 906 or 1107 not involving
any transfer.
The Company shall not be required (i) to issue, reg-
ister the transfer of or exchange Securities of any series dur-
ing a period beginning at the opening of business 15 days
before any selection of Securities of that series to be
redeemed and ending at the close of business on (A) if Securi-
ties of the series are issuable only as Registered Securities,
the day of the mailing of the relevant notice of redemption,
and (B) if Securities of the series are issuable as Bearer
Securities, the day of the first publication of the relevant
notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication,
the mailing of the relevant notice of redemption, (ii) to reg-
ister the transfer of or exchange any Registered Security so
selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or
<PAGE>
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(iii) to exchange any Bearer Security so selected for redemp-
tion except that such a Bearer Security may be exchanged for a
Registered Security of that series and like tenor, provided
that such Registered Security shall be simultaneously surren-
dered for redemption.
Nothwithstanding anything in this Indenture or in the
terms of a Security to the contrary, the exchange of Bearer
Securities for Registered Securities will be subject to satis-
faction of the provisions of the United States tax laws in
effect at the time of the exchange. Neither the Company nor
the Trustee nor any agent of the Company or the Trustee shall
be required to exchange any Bearer Security for a Registered
Security if (i) as a result thereof and in the Company's judg-
ment, the Company would incur adverse consequences under then
applicable United States Federal income tax laws and (ii) in
the case of the Trustee or any agent of the Company or the
Trustee, the Company shall have delivered to such Person an
Officers' Certificate and an Opinion of Counsel as to the mat-
ters set forth in clause (i) above.
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities.
If any mutilated Security or a Security with a muti-
lated coupon appertaining thereto is surrendered to the Trus-
tee, the Company shall execute, and the Trustee shall authenti-
cate and deliver in exchange therefor, a new Security of the
same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding, with coupons corre-
sponding to the coupons, if any, appertaining to the surren-
dered Security.
If there shall have been delivered to the Company and
the Trustee (i) evidence to their satisfaction of the destruc-
tion, loss or theft of any Security or coupon, and (ii) such
security or indemnity as may be required by them to save each
of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security or coupon has been acquired
by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu
of any such destroyed, lost or stolen Security or in exchange
for the Security to which a destroyed, lost or stolen coupon
appertains (with all appurtenant coupons not destroyed, lost or
stolen), a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any,
<PAGE>
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appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen coupon
appertains.
In case any such mutilated, destroyed, lost or stolen
Security or coupon has become or is about to become due and
payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security or coupon; provided, however,
that principal of (and premium, if any) and interest, if any,
on Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an office or agency located
outside the United States; and provided, further, that, unless
otherwise specified as contemplated by Section 301 with respect
to any series of Securities, interest on Bearer Securities (but
not any additional amounts payable as provided in Section
1008), shall be payable only upon presentation and surrender of
the coupons appertaining thereto.
Upon the issuance of any new Security under this Sec-
tion, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if
any, issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security, or in exchange for a Security to which
a destroyed, lost or stolen coupon appertains, shall constitute
an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall
be at any time enforceable by anyone, and any such new Security
and coupons, if any, shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all
other Securities of that series and their coupons, if any, duly
issued hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of muti-
lated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest
Rights Preserved.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, interest on any
<PAGE>
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Registered Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest.
Unless otherwise specified as contemplated by Section
301 with respect to any series of Securities, any interest due
on Bearer Securities on or before the Maturity shall be payable
only upon presentation and surrender of the several coupons for
such interest installments as are evidenced thereby as they
severally mature.
Any interest on any Registered Security of any series
which is payable, but is not punctually paid or duly provided
for, on any Interest Payment Date (herein called "Default
Interest") shall forthwith cease to be payable to the Holder on
the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in clause (1) or (2)
below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Reg-
istered Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on
each Registered Security of such series and the date of
the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satis-
factory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to
such Defaulted Interest as provided in this clause.
Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the pro-
posed payment. The Trustee shall promptly notify the Com-
pany of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the
<PAGE>
-37-
proposed payment of such Defaulted Interest and the Spe-
cial Record Date therefor (i) to be mailed, first-class
postage prepaid, to each Holder of Registered Securities
of such series at his address as it appears in the Secu-
rity Register, not less than 10 days prior to such Special
Record Date, and (ii) with respect to Bearer Securities of
such series, to be published as provided for in Section
106. The Trustee may, in addition, in its discretion, in
the name and at the expense of the Company, cause a simi-
lar notice to be published at least once in a newspaper
published in the English language customarily published on
each Business Day and of general circulation in the Bor-
ough of Manhattan, the City of New York, New York, but
such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Spe-
cial Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in
whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and
shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any
other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such
exchange, if, after notice is given by the Company to the
Trustee of the proposed payment pursuant to this clause,
such manner or payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section
and Section 305, each Security delivered under this Indenture
upon registration of transfer of or in exchange for or in lieu
of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in
whose name such Registered Security is registered as the owner
<PAGE>
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of such Registered Security for the purpose of receiving pay-
ment of principal of (and premium, if any) and (subject to Sec-
tions 305 and 307) interest, if any, on such Security and for
all other purposes whatsoever, whether or not payment on such
Security is overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by
notice to the contrary.
Title to any Bearer Security and any coupons apper-
taining thereto shall pass by delivery. The Company, the Trus-
tee and any agent of the Company or the Trustee may treat the
bearer of any Bearer Security and the bearer of any coupon as
the absolute owner of such Bearer Security or coupon for the
purpose of receiving payment thereof or on account thereof and
for all other purposes whatsoever, whether or not payment on
such Bearer Security or coupon is overdue, and neither the Com-
pany, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment,
redemption, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee and
such Securities and coupons shall be promptly cancelled by the
Trustee. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities can-
celled as provided in this Section, except as expressly permit-
ted by this Indenture. All cancelled Securities and coupons
held by the Trustee shall be destroyed by the Trustee unless
other instructions are furnished to the Trustee by a Company
Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by
Section 301 for the Securities of any series, interest, if any,
on the Securities of each series shall be computed on the basis
of a 360-day year of twelve 30-day months.
<PAGE>
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge
of Indenture.
This Indenture shall upon Company Request cease to be
of further effect with respect to any series of Securities
(except as to any surviving rights of registration of transfer
or exchange of Securities of such series herein expressly pro-
vided for or in the form of Security for such series and any
right to receive additional amounts, as provided in
Section 1008), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series, when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining
to Bearer Securities surrendered for exchange for Regis-
tered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided
in Section 305, (ii) Securities of such series and coupons
appertaining thereto which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306, (iii) coupons appertaining to Securities of
such series called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived
as provided in Section 1106 and (iv) Securities of such
series and coupons appertaining thereto for whose payment
money has theretofore been deposited in trust or segre-
gated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trus-
tee for cancellation; or
(B) all such Securities of such series and, in the
case of (i) or (ii) below, any coupons appertaining
thereto not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
<PAGE>
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(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the Trus-
tee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee
as trust funds in trust for the purpose an amount suffi-
cient to pay and discharge the entire indebtedness on such
Securities and coupons not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if
any) and interest, if any, to the date of such deposit (in
the case of Securities which have become due and payable)
or to the Stated Maturity or the Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company with respect
to such series; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that, with respect to such series, all conditions
precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of
this Indenture with respect to such series, the obligations of
the Company to the Trustee with respect to such series under
Section 607, and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Sec-
tion, the obligations of the Trustee under Section 402 and the
last paragraph of Section 1003, shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of
Section 1003, all money deposited with the Trustee pursuant to
Section 401, all money and U.S. Government Obligations depos-
ited with the Trustee (or a successor trustee satisfying the
requirements of Section 609) pursuant to Section 403 and all
money received by the Trustee in respect of U.S. Government
Obligations deposited with the Trustee pursuant to Section 403
<PAGE>
-41-
shall be held in trust and shall be applied by it, in accor-
dance with the provisions of the series of Securities and this
Indenture, to the payment, either directly or through any Pay-
ing Agent as the Trustee may determine, to the Persons entitled
thereto, of all sums due and to become due thereon in respect
of the principal of (and premium, if any) and interest, if any,
on the Securities for which payment of such money has been
deposited with the Trustee or to make mandatory sinking fund
payments or analogous payments as contemplated by Section 403.
SECTION 403. Discharge and Defeasance of
Securities of any Series.
If this Section 403 is specified, as contemplated by
Section 301, to be applicable to the Securities of any series,
then, notwithstanding the provisions of Section 401, the Com-
pany shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Securities of any such
series on the 91st day after the date of the deposit referred
to in subparagraph (d) hereof, and the provisions of this
Indenture, as it relates to such Outstanding Securities, shall
no longer be in effect (and the Trustee, at the expense of the
Company, shall, upon Company Request execute proper instruments
acknowledging the same), except as to:
(a) the rights of Holders of Securities of such
series to receive, from the trust funds described in
subparagraph (d) hereof, (i) payment of the principal of
(and premium, if any) and each installment of principal of
(and premium, if any) or interest, if any, on the Out-
standing Securities of such series on the Stated Maturity
of such principal or installment of principal or interest
and (ii) any mandatory sinking fund payments or analogous
payments applicable to the Securities of such series on
the day on which such payments are due and payable in
accordance with the terms of this Indenture and such Secu-
rities; and
(b) the rights, powers, trusts, duties and immuni-
ties of the Trustee hereunder with respect to such series,
including those set forth in Section 607; and
(c) either (1) if this Section 403(c)(1) is speci-
fied, as contemplated by Section 301, to be applicable to
the Securities of any series, the Company's obligations
with respect to the Securities of such series under
Sections 304, 305, 306, 1002 and 1003; or, alternatively,
<PAGE>
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(2) if this Section 403(c)(2) is specified, as contem-
plated by Section 301, to be applicable to the Securities
of any series, the Company's obligations with respect to
such Securities under Sections 304, 305, 306, 1001, 1002
and 1003;
provided that, the following conditions shall have been
satisfied:
(d) the Company shall have irrevocably deposited or
caused to be deposited (in accordance with Section 402)
with the Trustee (or another trustee satisfying the
requirements of Section 609) as trust funds in trust spe-
cifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Securities of that
series, with reference to this Section 403 (i) money in an
amount, or (ii) U.S. Government Obligations which through
the payment of interest and principal in respect thereof
in accordance with their terms will provide not later than
one Business Day before the due date of any payment
referred to in clause (A) or (B) of this subparagraph (d)
money in an amount, or (iii) a combination thereof, suffi-
cient, in the opinion of a nationally recognized firm of
independent certified public accounts expressed in a writ-
ten certification thereof delivered to the Trustee, to pay
and discharge (A) the principal of (and premium, if any)
and each installment of principal of (and premium, if any)
and interest, if any, on the Outstanding Securities of
such series on the Stated Maturity of such principal or
installment of principal or interest or on the applicable
Redemption Date and (B) any mandatory sinking fund pay-
ments or analogous payments applicable to the Securities
of such series on the day on which such payments are due
and payable in accordance with the terms of this Indenture
and of such Securities;
(e) such deposit shall not cause the Trustee with
respect to the Securities of such series to have a con-
flicting interest as defined in Section 608 or for pur-
poses of the Trust Indenture Act with respect to the Secu-
rities of any series;
(f) such deposit will not result in a breach or vio-
lation of, or constitute a default under, any applicable
laws, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
<PAGE>
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(g) if this Section 403(g) is specified, as contem-
plated by Section 301, to be applicable to the Securities
of any series, such provision would not cause any Out-
standing Securities of such series then listed on the New
York Stock Exchange or other nationally recognized securi-
ties exchange to be de-listed as a result thereof;
(h) no Event of Default or event which with the giv-
ing of notice or lapse of time or both would become an
Event of Default with respect to the Securities of that
series shall have occurred and be continuing on the date
of such deposit or at any time during the period ending on
the 91st day after such date;
(i) the Company has delivered to the Trustee an
Opinion of Counsel to the effect that, based upon appli-
cable Federal income tax law or a ruling published by the
Internal Revenue Service (which opinion, for the purposes
contemplated by Section 403(c)(1), must be based on a
change in applicable Federal income tax law after the date
of this Indenture or a ruling published by the Internal
Revenue Service after the date of this Indenture), the
Holders of the Securities of such series will not recog-
nize income, gain or loss for Federal income tax purposes
as a result of such deposit, defeasance and discharge and
will be subject to Federal income tax on the same amount
and in the same manner and at the same times, as would
have been the case if such deposit, defeasance and dis-
charge had not occurred; and
(j) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent relating to the
defeasance contemplated by this Section have been complied
with.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect
to Securities of any series, means any one of the following
events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order
<PAGE>
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of any court or any order, rule or regulation of any adminis-
trative or governmental body):
(1) default in the payment of any installment of
interest upon any Security of that series when it becomes
due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its
Maturity; or
(3) default in the deposit of any sinking fund pay-
ment, when and as due by the terms of a Security of that
series; or
(4) default in the performance or breach of any
covenant or warranty of the Company in this Indenture
(other than a covenant or warranty a default in whose per-
formance or whose breach is elsewhere in this Section spe-
cifically dealt with or which has expressly been included
in this Indenture solely for the benefit of a particular
series of Securities other than that series) and continu-
ance of such default or breach for a period of 90 days
after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a
written notice specifying such default or breach and
requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(5) the entry by a court of competent jurisdiction
of (A) a decree or order for relief in respect of the Com-
pany in an involuntary case under any applicable bank-
ruptcy, insolvency, reorganization or other similar law
now or hereafter in effect, or (B) a decree or order
appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company
or for any substantial part of its property, or ordering
the winding-up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary
case under any applicable bankruptcy, insolvency, reorgan-
ization or other similar law now or hereafter in effect,
<PAGE>
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or the consent by it to the entry of an order for relief
in an involuntary case in respect of it under any such
law, or the consent by it to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or similar official) of the Com-
pany or for any substantial part of its property, or the
making by it of any general assignment for the benefit of
creditors; or
(7) any other Event of Default provided with respect
to Securities of that series.
SECTION 502. Acceleration of Maturity;
Rescission and Annulment.
If an Event of Default with respect to Securities of
any series at the time Outstanding occurs and is continuing,
then in every such case the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of
that series may declare the principal amount (or, if the Secu-
rities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may
be specified in the terms thereof) of all of the Securities of
that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Hold-
ers), and upon any such declaration such principal amount (or
specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration
with respect to Securities of any series has been made and
before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration
and its consequences if:
(1) the Company has paid or deposited with the Trus-
tee a sum sufficient to pay
(A) all overdue installments of interest on all
Securities of that series,
(B) the principal of (and premium, if any, on)
any Securities of that series which have become due other-
wise than by such declaration of acceleration and
<PAGE>
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interest, if any, thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest
is lawful, interest upon any overdue installments of
interest at the rate or rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, dis-
bursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities
of that series, other than the nonpayment of the principal
of Securities of that series which have become due solely
by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such recision shall affect any subsequent default or impair
any right consequent thereon.
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any install-
ment of interest on any Security when such interest
becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal
of (or premium, if any, on) any Security at its Maturity,
the Company will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities and coupons, the
whole amount then due and payable on such Securities and cou-
pons for principal (and premium, if any) and interest, if any,
and, to the extent that payment of such interest shall be
legally enforceable, interest on the overdue principal (and
premium, if any) and on any overdue installments of interest,
at the rate or rates prescribed therefor in such Securities
and, in addition thereto, such further amount as shall be suf-
ficient to cover the costs and expenses of collection,
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including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee
of an express trust, may institute a judicial proceeding for
the collection of the sums so due and unpaid, may prosecute
such proceeding to judgment or final decree and may enforce the
same against the Company or any other obligor upon such Securi-
ties and collect the moneys adjudged or decreed to be payable
in the manner provided by law out of the property of the Com-
pany or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of
any series occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any cove-
nant or agreement in this Indenture or in aid of the exercise
of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim.
In the case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrange-
ment, adjustment, composition or other judicial proceeding rel-
ative to the Company or any other obligor upon the Securities
or the property of the Company or of such other obligor or the
creditors of the Company or such other obligor, the Trustee
(irrespective of whether the principal of the Securities shall
then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of overdue prin-
cipal or interest) shall be entitled and empowered, by inter-
vention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount
of principal (and premium, if any) and interest, if any,
owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
<PAGE>
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agents and counsel) and of the Holders of Securities and
coupons allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other prop-
erty payable or deliverable on any such claims and to dis-
tribute the same;
and any receiver, assignee, custodian, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder of Securities
and coupons to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such pay-
ments directly to the Holders of Securities and coupons, to pay
to the Trustee any amount due to it for the reasonable compen-
sation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee
under Section 607.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder of a Security or coupon any plan of reor-
ganization, arrangement, adjustment or composition affecting
the Securities or coupons or the rights of any Holder thereof
or to authorize the Trustee to vote in respect of the claim of
any Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims
Without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture
or the Securities or coupons may be prosecuted and enforced by
the Trustee without the possession of any of the Securities or
coupons or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for
the payment of the reasonable compensation, expenses, disburse-
ments and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of
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such money on account of principal (or premium, if any) or
interest, if any, upon presentation of the Securities or cou-
pons or both and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee
under Section 607;
Second: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and inter-
est, if any, on the Securities and coupons in respect of
which or for the benefit of which such money has been col-
lected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such
Securities and coupons for principal (and premium, if any)
and interest, if any, respectively; and
Third: The balance, if any, to the Person or Persons
determined to be entitled thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any
related coupons shall have any right to institute any proceed-
ing, judicial or otherwise, with respect to this Indenture, or
for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default with
respect to the Securities of that series;
(2) the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute pro-
ceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trus-
tee reasonable indemnity against the costs, expenses and
liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to
institute any such proceeding; and
<PAGE>
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(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of
the Outstanding Securities of that series;
it being understood and intended that no one or more of the
Holders of Securities of such series shall have any right in
any manner whatever by virtue of, or by availing of, any provi-
sion of this Indenture to affect, disturb or prejudice the
rights of any other such Holders of, or to obtain or to seek to
obtain priority or preference over any other such Holders or to
enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all
such Holders.
SECTION 508. Unconditional Rights of Holders
To Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Inden-
ture, the Holder of any Security or coupon shall have the
right, which is absolute and unconditional, to receive payment
of the principal of (and premium, if any) and (subject to
Sections 305 and 307) interest, if any, on such Security or
payment of such coupon on the Stated Maturity or Maturities
expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for
the enforcement of any such payment, and such rights shall not
be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of any Security or cou-
pon has instituted any proceeding to enforce any right or rem-
edy under this Indenture and such proceeding has been discon-
tinued or abandoned for any reason, or has been determined
adversely to the Trustee or to such Holder, then and in every
such case the Company, the Trustee and the Holders of such
Securities and coupons shall, subject to any determination in
such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and
remedies of the Trustee and the Holders shall continue as
though no such proceeding had been instituted.
<PAGE>
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SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen
Securities or coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trus-
tee or to the Holders of Securities or coupons is intended to
be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder
of any Security or coupon to exercise any right or remedy
accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default
or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders of
Securities or coupons may be exercised from time to time, as
often as may be deemed expedient, by the Trustee or by the
Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders.
(a) The Holders of a majority in principal amount of
the Outstanding Securities of any series shall have the right
to direct the time, method and place of conducting any proceed-
ing for any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict
with any rule of law or with this Indenture, and
(2) the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent
with such direction.
(b) The Company may set a record date for purposes
of determining the identity of Holders entitled to vote or con-
sent to any action by vote or consent authorized or permitted
by this Section 512 and Section 513. Such record date shall be
<PAGE>
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the later of (1) 30 days prior to the first solicitation of
such consent or (2) the date of the most recent list of Holders
furnished to the Trustee pursuant to Section 701 prior to such
solicitation.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and
any related coupons waive any past default hereunder with
respect to the Securities of such series and its consequences,
except a default
(1) in the payment of the principal of (or pre-
mium, if any) or interest, if any, on any Securities of
such series, or
(2) with respect to a covenant or provision
hereof which under Article Nine cannot be modified or
amended without the consent of the Holder of each Out-
standing Security of such series affected.
Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder
of any Security or coupon by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its dis-
cretion assess reasonable costs, including reasonable attor-
neys' fees, against any party litigant in such suit, having due
regard for the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Out-
standing Securities of any series, or to any suit instituted by
<PAGE>
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any Holder of any Security or coupon for the enforcement of the
payment of the principal of (or premium, if any) or interest,
if any, on any Security or the payment of any coupon on or
after the Stated Maturity or Maturities expressed in such Secu-
rity or coupon (or, in the case of redemption, on or after the
Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may law-
fully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the cove-
nants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and
Responsibilities.
(a) Except during the continuance of an Event of
Default with respect to the Securities of any series,
(1) the Trustee undertakes to perform such
duties and only such duties as are specifically set forth
in this Indenture with respect to such series, and no
implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Inden-
ture; but in the case of any such certificates or opinions
which by any provisions hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under
<PAGE>
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a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred with
respect to Securities of any series and is continuing, the
Trustee shall exercise such of the rights and powers vested in
it by this Indenture with respect to such series of Securities,
and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(c) No provision of this Indenture shall be con-
strued to relieve the Trustee from liability for its own negli-
gent action, its own negligent failure to act, or its own will-
ful misconduct, except that
(1) this Subsection shall not be construed to
limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any
error or judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with
respect to any action taken, suffered or omitted to be
taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the
Outstanding Securities of any series, determined as pro-
vided in Section 512, relating to the time, method and
place of conducting any proceeding for any remedy avail-
able to the Trustee, or exercising any trust or power con-
ferred upon the Trustee, under this Indenture with respect
to the Securities of such series; and
(4) no provision of this Indenture shall
require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance
of any of its duties hereunder or in the exercise of any
of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or ade-
quate indemnity against such risk or liability is not rea-
sonably assured to it.
(d) Whether or not herein expressly so provided,
every provision of this Indenture relating to the conduct or
<PAGE>
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affecting the liability of or affording protection to the Trus-
tee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default
hereunder with respect to the Securities of any series, the
Trustee shall transmit in the manner and to the extent provided
in Section 703(c), notice of such default hereunder known to
the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any)
or interest, if any, on any Security of such series or in the
payment of any sinking fund installment with respect to Securi-
ties of such series, the Trustee shall be protected in with-
holding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith deter-
mines that the withholding of such notice is in the interest of
the Holders of Securities of such series, and provided, fur-
ther, that in the case of any default of the character speci-
fied in Section 501(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least
60 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, cer-
tificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
coupon, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request or direction of the Company men-
tioned herein shall be sufficiently evidenced by a Company
Request or Company Order or as otherwise expressly pro-
vided herein and any resolution of the Board of Directors
may be sufficiently evidenced by a Board Resolution;
<PAGE>
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(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be
proved or established prior to taking, suffering or omit-
ting any action hereunder, the Trustee (unless other evi-
dence be herein specifically presented) may, in the
absence of bad faith on its part, rely upon an Officers'
Certificate and such Officers' Certificate, in the absence
of negligence or bad faith on the part of the Trustee,
shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this
Indenture upon the faith thereof;
(d) the Trustee may consult with counsel and the
written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Hold-
ers pursuant to this Indenture, unless such Holders of
Securities of any series or related coupons shall have
offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any res-
olution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, coupon, other evidence of indebtedness or
other paper or document, but the Trustee, in its discre-
tion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trus-
tee shall determine to make such further inquiry or inves-
tigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by
agent or attorney; and
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the
Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed
with due care by it hereunder.
<PAGE>
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SECTION 604. Not Responsible for Recitals or
Issuance of Securities.
The recitals contained herein and in the Securities,
except the Trustee's certificates of authentication, shall be
taken as the statements of the Company, and the Trustee assumes
no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Indenture or of the Securities or the coupons. The Trustee
shall not be accountable for the use or application by the Com-
pany of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Paying Agent, any Security Registrar
or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities
or coupons and, subject to Section 608 and 613, may otherwise
deal with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Security Registrar or such
other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not
be segregated from other funds except to the extent required by
law. The Trustee shall be under no liability for interest on
any money received by it hereunder except as otherwise agreed
with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trus-
tee of an express trust);
(2) except as otherwise expressly provided
herein, to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred
or made by the Trustee in accordance with any provision of
this Indenture (including (i) the reasonable compensation
and the expenses and disbursements of its agents and coun-
sel and (ii) any taxes and related costs incurred in
<PAGE>
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connection with an irrevocable deposit made by the Company
pursuant to Section 403(d)), except any such expense, dis-
bursement or advance as may be attributable to its negli-
gence or bad faith; and
(3) to indemnify the Trustee for, and to hold
it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any
claim or liability in connection with the exercise or per-
formance of any of its powers or duties hereunder.
The obligations of the Company under this Section
shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be a senior claim to that of the
Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities, and the Securities are
hereby subordinated to such senior claim. If the Trustee
incurs expenses after the occurrence of a default specified in
Section 501(5) and 501(6), such expenses are intended to con-
stitute expenses of administration under any bankruptcy law.
SECTION 608. Disqualification; Conflicting
Interests.
If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by and subject to the provi-
sions of, the Trust Indenture Act.
SECTION 609. Corporate Trustee Required;
Eligibility.
There shall at all times be a Trustee hereunder which
shall be a corporation organized and doing business under the
laws of the United States or of any State or the District of
Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least
$50,000,000, subject to supervision or examination by Federal,
State or District of Columbia authority and having a Corporate
Trust Office or agency in the Borough of Manhattan, the City of
New York, New York. If such corporation publishes reports of
<PAGE>
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condition at least annually, pursuant to law or to the require-
ments of the aforesaid supervising or examining authority, then
for the purposes of this Section, the combined capital and sur-
plus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Sec-
tion, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article. Neither the Com-
pany nor any Affiliate of the Company may serve as Trustee.
SECTION 610. Resignation and Removal;
Appointment of a Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article
shall become effective until the acceptance of appointment by
the successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect
to the Securities of one or more series by giving written
notice thereof to the Company. If the instrument of acceptance
by a successor Trustee required by Section 611 shall not have
been delivered to the Trustee within 30 days after the giving
of such notice of resignation, the resigning Trustee may peti-
tion any court of competent jurisdiction for the appointment of
a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders
of a majority in principal amount of the Outstanding Securities
of such series delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Sec-
tion 608 after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Secu-
rity for at least six months; or
(2) the Trustee shall cease to be eligible
under Section 609 and shall fail to resign after written
request therefor by the Company or by any such Holder; or
(3) the Trustee shall become incapable of act-
ing or shall be adjudged a bankrupt or insolvent or a
<PAGE>
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receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or con-
trol of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company by Board Resolution may
remove the Trustee with respect to all Securities, or (ii) sub-
ject to Section 514, any Holder who has been a bona fide Holder
of a Security for at least six months may, on behalf of himself
and all other similarly situated, petition any court of compe-
tent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the
office of Trustee for any cause, with respect to the Securities
of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such
series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and
shall comply with the applicable requirements of Section 611.
If, within one year after such resignation, removal or incapa-
bility, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed
by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company
and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 611,
become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee
appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by
the Company or the Holders of Securities of that series and
accepted appointment in the manner required by Section 611, any
Holder of a Security who has been a bona fide Holder of a Secu-
rity of such series for at least six months, subject to Section
514, may, on behalf of himself and all others similarly situ-
ated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securi-
ties of such series.
<PAGE>
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(f) The Company shall give notice of each resigna-
tion and each removal of the Trustee with respect to the Secu-
rities of any series and each appointment of a successor Trus-
tee with respect to the Securities of any series in the manner
provided in Section 106. Each notice shall include the name of
the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
(g) Except in the case of a default in the payment
of the principal of or interest on any Security or in the pay-
ment of any sinking or purchase fund installment, the Trustee
shall not be required to resign as provided by this Section if
such Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that
(1) the default under the Indenture may be
cured or waived during a reasonable period and under
the procedures described in such application, and
(2) a stay of the Trustee's duty to resign will
not be inconsistent with the interest of Holders.
The filing of an application shall automatically stay
the performance of the duty to resign until the Com-
mission orders otherwise.
SECTION 611. Acceptance of Appointment
by Successor.
(a) In case of the appointment hereunder of a suc-
cessor Trustee with respect to all Securities, every such suc-
cessor Trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instru-
ment accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or con-
veyance, shall become vested with all the rights, powers,
trusts, and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee
shall, upon payment of the charges due it pursuant to Section
607, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver
to such successor Trustee all property and money held by such
retiring Trustee hereunder. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for
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more fully and certainly vesting in and confirming to such suc-
cessor Trustee all such rights, powers and trusts.
(b) In case of the appointment hereunder of a suc-
cessor Trustee with respect to the Securities of one or more
(but not all) series, the Company, the retiring Trustee and
each successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental
hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and
to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or
change any of the provisions of this Indenture as shall be nec-
essary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereun-
der separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution
and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, with-
out any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor
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Trustee all such rights, powers and trusts referred to in para-
graph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appoint-
ment unless at the time of such acceptance such successor Trus-
tee shall be qualified and eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any cor-
poration resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation suc-
ceeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise quali-
fied and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of
the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to
such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as
if such successor Trustee had itself authenticated such
Securities.
SECTION 613. Preferential Collection of Claims
Against Company._________________
The Trustee shall comply with the provisions of Sec-
tion 311 of the Trust Indenture Act.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company To Furnish Trustee Names
and Addresses of Holders of
Registered Securities.__________
The Company shall furnish or cause to be furnished to
the Trustee with respect to the Registered Securities of each
series:
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(a) semi-annually, not more than 15 days after each
Regular Record Date, or in the case of any series of Secu-
rities on which semi-annual interest is not payable, not
more than 15 days after such semi-annual dates as may be
specified by the Trustee, a list, in such form as the
Trustee may reasonably require, of the names and addresses
of the Holders of such Registered Securities as of such
Regular Record Date or such semi-annual date, as the case
may be, and
(b) at such other times as the Trustee may request
in writing, within 30 days after the receipt by the Com-
pany of any such request, a list of similar form and con-
tent as of a date not more than 15 days prior to the time
such list is furnished,
provided, however, that so long as the Trustee is the Security
Registrar, no such list need be furnished.
SECTION 702. Preservation of Information;
Communications to Holders.__
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Hold-
ers of Registered Securities (i) contained in the most recent
list furnished to the Trustee as provided in Section 701, (ii)
received by the Trustee in its capacity as Security Registrar
(or Paying Agent, if so acting) and (iii) filed with it during
the two preceding years pursuant to Section 703(c)(2). The
Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders of Securities of any
series (hereinafter referred to as "applicants") apply in writ-
ing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and
such application states that the applicants desire to communi-
cate with other Holders of Securities of such series with
respect to their rights under this Indenture or under the Secu-
rities of such series and is accompanied by a copy of the form
of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five business days
after the receipt of such application, at its election, either
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(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with
Section 702(a), or
(ii) inform such applicants as to the approximate
number of Holders of Registered Securities of such series
whose names and addresses appear in the information pre-
served at the time by the Trustee in accordance with Sec-
tion 702(a), and as to the approximate cost of mailing to
such Holders of Registered Securities of such series the
form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford such appli-
cants access to such information, the Trustee shall, upon the
written request of such applicants, mail to each Holder of Reg-
istered Securities of such series whose name and address
appears in the information preserved at the time by the Trustee
in accordance with Section 702(a), a copy of the form of proxy
or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the pay-
ment, of the reasonable expenses of mailing, unless within five
days after such tender, the Trustee shall mail to such appli-
cants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that,
in the opinion of the Trustee, such mailing would be contrary
to the best interest of the Holders of Registered Securities of
such series or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If
the Commission, after opportunity for a hearing upon the objec-
tions specified in the written statement so filed, shall enter
an order refusing to sustain any of such objections or if,
after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and oppor-
tunity for hearing, that all the objections so sustained have
been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders of Reg-
istered Securities of such series with reasonable promptness
after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any objection or
duty to such applicants respecting their application.
(c) Every Holder of Securities or coupons, by
receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee, nor any agent
of the Company or the Trustee shall be held accountable by
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reason of the disclosure of any such information as to the
names and addresses of the Holders of Registered Securities in
accordance with Section 702(b), regardless of the source from
which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pur-
suant to a request made under Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year, com-
mencing with the May 15 following the first issuance of Securi-
ties hereunder, the Trustee shall transmit by mail to all Hold-
ers a brief report dated as of such May 15 with respect to any
of the following events which may have occurred within the pre-
vious 12 months (but if no such event has occurred within such
period no report need be transmitted):
(1) any change to its eligibility under Section
609 and its qualifications under Section 608;
(2) the creation of or any material change to a
relationship specified in Section 310(b) of the Trust
Indenture Act;
(3) the character and amount of any advances
(and if the Trustee elects so to state, the circum-
stances surrounding the making thereof) made by the
Trustee (as such) which remain unpaid on the date of
such report, and for the reimbursement of which it
claims or may claim a lien or charge, prior to that
of the Securities, on any property or funds held or
collected by it as Trustee, except that the Trustee
shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggre-
gate not more than 1/2 of 1% of the principal amount
of the Securities Outstanding on the date of such
report;
(4) any change to the amount, interest rate and
maturity date of all other indebtedness owing by the
Company (or by any other obligor on the Securities)
to the Trustee in its individual capacity, on the
date of such report, with a brief description of any
property held as collateral security therefor, except
an indebtedness based upon a creditor relationship
arising in any manner that is the subject of Section
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311(b)(2), (3), (4), or (6) of the Trust Indenture
Act;
(5) any change to the property and funds, if
any, physically in the possession of the Trustee as
such on the date of such report;
(6) any additional issue of Securities which
the Trustee has not previously reported; and
(7) any action taken by the Trustee in the per-
formance of its duties hereunder which it has not
previously reported and which in its opinion materi-
ally affects the Securities, except action in respect
of a default, notice of which has been or is to be
withheld by the Trustee in accordance with Section
602.
(b) The Trustee shall transmit by mail to all Hold-
ers, as provided in subsection (c) of this Section, a brief
report with respect to the character and amount of any advances
(and if the Trustee elects so to state, the circumstances sur-
rounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to sub-
section (a) of this Section (or if no such report has yet been
transmitted, since the date of execution of this instrument)
for the reimbursement of which it claims or may claim a lien,
or charge, prior to that of the Securities, on property or
funds held or collected by it as Trustee, and which it has not
previously reported pursuant to this Subsection, except that
the Trustee shall not be required (but may elect) to report
such advances if such advances remaining unpaid at any time
aggregate 10% or less of the principal amount of the Securities
Outstanding at such time, such report to be transmitted within
90 days after such time.
(c) Reports pursuant to this Section shall be trans-
mitted by mail:
(1) to all Holders of Registered Securities, as
the names and addresses of such Holders appear in the
Security Register;
(2) to such Holders of Bearer Securities as
have, within the two years preceding such transmis-
sion, filed their names and addresses with the Trus-
tee for that purpose; and
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(3) except in the case of reports pursuant to
subsection (b) of this Section, to each Holder of a
Security whose name and address is preserved at the
time by the Trustee, as provided in Section 702(a).
(d) A Copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each
securities exchange upon which any Securities are listed, with
the Commission and with the Company. The Company will notify
the Trustee when any Securities are listed on any securities
exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the
Company files the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the fore-
going as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required
to file with the Commission pursuant to Section 13 or Sec-
tion 15(d) of the Securities Exchange Act of 1934; or, if
the Company is not required to file information, documents
or reports pursuant to either of said Sections, then it
will file with the Trustee and the Commission, in accor-
dance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and
periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange
Act of 1934, in respect of a security listed and regis-
tered on a national securities exchange as may be pre-
scribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time
to time by the Commission, such additional information,
documents, and reports with respect to compliance by the
Company with the conditions and covenants of this Inden-
ture as may be required from time to time by such rules
and regulations; and
(3) transmit by mail to all Holders, within 30 days
after the filing thereof with the Trustee, in the manner
and to the extent provided in Section 703(c) with respect
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to reports pursuant to Section 703(a), such summaries of
any information, documents and reports required to be
filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
(4) furnish to the Trustee, not less often than
annually, the certificate referred to in Section 1005.
For purposes of such certificate, compliance by the com-
pany with respect to the conditions and covenants under
this Indenture shall be determined without regard to any
period of grace or requirement of notice provided under
this Indenture.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc.,
Only on Certain Terms.________
The Company shall not consolidate with or merge into
any other Person or sell, convey, transfer or lease its proper-
ties and assets substantially as an entirety to any Person
unless:
(1) the Person formed by such consolidation or into
which the Company is merged or the Person which acquires
by sale, conveyance, transfer or lease the properties and
assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws of
the United States, any State thereof or the District of
Columbia;
(2) the Person formed by such consolidation or into
which the Company is merged or the Person which acquires
by sale, conveyance, transfer or lease the properties and
assets of the Company substantially as an entirety shall
expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfac-
tory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest, if any
(including all additional amounts, if any, payable pursu-
ant to Section 1008), on all the Securities and the
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performance of every covenant of this Indenture on the
part of the Company to be performed and observed;
(3) immediately after giving effect to such transac-
tion, and treating any indebtedness which becomes an obli-
gation of the Company or a Subsidiary as a result of such
transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction no Event of
Default, and no event which, after notice or lapse of
time, or both, would become an Event of Default, shall
have happened and be continuing; and
(4) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stat-
ing that such consolidation, merger, sale, conveyance,
transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supple-
mental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation or merger by the Company with
or into any other Person, or any sale, conveyance, transfer or
lease by the Company of the properties and assets of the Com-
pany substantially as an entirety to any Person in accordance
with Section 801, the successor Person formed by such consoli-
dation or into which the Company is merged or to which such
sale, conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if
such successor Person had been named as the Company herein; and
thereafter, the Company (which term shall for this purpose mean
the Person named as the "Company" in the first paragraph of
this Indenture or any successor Person which shall theretofore
become such in the manner described in Section 801) shall be
discharged from all obligations and covenants under this Inden-
ture and the Securities and coupons, and may be dissolved and
liquidated.
<PAGE>
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without
Consent of Holders.____________
Without the consent of any Holder of Securities, the
Company, when authorized by or pursuant to a Board Resolution,
and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satis-
factory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to
the Company and the assumption by any such successor of
the covenants of the Company herein contained and in the
Securities; or
(2) to add to the covenants of the Company, for the
benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of
such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of
this Indenture to provide that Bearer Securities may be
registrable as to principal, to change or eliminate any
restrictions on the payment of principal (or premium, if
any) or interest, if any, on Bearer Securities, to permit
Bearer Securities to be issued for Bearer Securities of
other authorized denominations or to permit the issuance
of Securities in uncertificated form, provided that any
such action shall not adversely affect the interests of
the Holders of Securities of any series or any related
coupons in any material respect; or
(5) to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimina-
tion shall become effective only when there is no Security
Outstanding of any series created prior to the execution
of such supplemental indenture which is entitled to the
benefit of such provision; or
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(6) to secure the Securities and related coupons; or
(7) to establish the form or terms of Securities of
any series and related coupons as permitted by Section 201
and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect
to the Securities of one or more series and/or to add to
or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administra-
tion of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement
any provisions herein which may be defective or inconsis-
tent with any other provision herein, or to make any other
provisions with respect to matters or questions arising
under this Indenture, provided that such action shall not
adversely affect the interests of the Holders of Securi-
ties of any series or any related coupons in any material
respect.
SECTION 902. Supplemental Indentures with Consent
of Holders.
With the consent of the Holders of not less than a
majority in principal amount of the Outstanding Securities of
each series affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Com-
pany, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders of
Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental inden-
ture shall, without the consent of the Holder of each Outstand-
ing Security affected thereby,
(1) change the Stated Maturity of the principal of,
or any installment of principal of or any interest on, any
security, or reduce the principal amount thereof or any
rate of interest thereon or any premium payable upon the
redemption thereof, or change any obligation of the Com-
pany to pay additional amounts pursuant to Section 1008
(except as contemplated by Section 801(1) and permitted by
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Section 901(1)), or reduce the amount of the principal of
an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Stated
Maturity thereof pursuant to Section 502, or change the
method in which amounts of payments of principal or any
interest thereon are determined, or change any Place of
Payment, or change the coin or currency in which any Secu-
rity or any premium or any interest thereon is payable, or
impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption
Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture,
or the consent of whose Holders is required for any waiver
(of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences) pro-
vided for in this Indenture, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1007, except to increase any such
percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security
affected thereby, provided, however, that this clause
shall not be deemed to require the consent of any Holder
of a Security or coupon with respect to changes in the
references to "the Trustee" and concomitant changes in
this Section and Section 1007, or the deletion of this
proviso, in accordance with the requirements of Section
611(b) and 901(8).
A supplemental indenture which changes or eliminates any cove-
nant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the Hold-
ers of Securities of such series with respect to such covenant
or other provisions, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other
series.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any pro-
posed supplemental indenture, but it shall be sufficient if
such Act shall approve the substance thereof.
<PAGE>
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SECTION 903. Execution of Supplemental
Indentures.
In executing, or accepting the additional trusts cre-
ated by, any supplemental indenture permitted by this Article
or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (sub-
ject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such sup-
plemental indenture is authorized or permitted by this Inden-
ture, and that such supplemental indenture, when executed and
delivered by the Company, will constitute a valid and binding
obligation of the Company in accordance with its terms. The
Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in accor-
dance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and deliv-
ered hereunder and of any coupons appertaining thereto shall be
bound thereby.
SECTION 905. Conformity with Trust
Indenture Act.
Every supplemental indenture executed pursuant to
this Article shall conform to the requirements of the Trust
Indenture Act as then in effect.
SECTION 906. Reference in Securities to
Supplemental Indentures.
Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a
notation in form acceptable to the Trustee as to any matter
provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as
to conform, in the opinion of the Company, to any such supple-
mental indenture may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
<PAGE>
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium
and Interest.
The Company covenants and agrees for the benefit of
each series of Securities that it will duly and punctually pay
the principal of (and premium, if any) and interest, if any, on
the Securities of that series in accordance with the terms of
such series of Securities, any coupons appertaining thereto and
this Indenture. Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, any
interest due on Bearer Securities on or before Maturity shall
be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby
as they severally mature.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable as or
exchangeable for Registered Securities, the Company will main-
tain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or sur-
rendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company with respect to the
Securities of that series and this Indenture may be served, any
one or more of which offices or agencies may be the same for
one or more series of Securities.
If Securities of a series are issuable as Bearer
Securities, the Company will maintain (A) in the Borough of
Manhattan, the City of New York, an office or agency where any
Registered Securities of that series may be presented or sur-
rendered for payment, where any Registered Securities of that
series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange,
where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served
and where Bearer Securities of that series and related coupons
may be presented or surrendered for payment in the circum-
stances described in the following paragraph (and not other-
wise), (B) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Bearer
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Securities of that series and related coupons may be presented
and surrendered for payment (including payment of any addi-
tional amounts payable on Securities of that series pursuant to
Section 1008); provided, however, that if the Securities of
that series are listed on The International Stock Exchange of
the United Kingdom and the Republic of Ireland Limited, the
Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such securities exchange shall so
require, the Company will maintain a Paying Agent for the Secu-
rities of that series in London, Luxembourg or any other
required city located outside the United States, as the case
may be, so long as the Securities of that series are listed on
such exchange, and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series
located outside the United States, an office or agency where
any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may
be surrendered for exchange and where notices and demands to or
upon the Company in respect of the Securities of that series
and this Indenture may be served.
The Company will give prompt written notice to the
Trustee and prompt notice to the Holders of Securities of such
series, as provided in Section 106, of the location, and of any
change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required
office or agency in respect of any series of Securities or
shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, except
that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment
of any additional amounts payable on Bearer Securities of that
series pursuant to Section 1008) at any Place of Payment for
such series located outside the United States and the Company
hereby appoints the Trustee its agent to receive all such pre-
sentations, surrenders, notices and demands.
No payment of principal, premium or interest on
Bearer Securities shall be made at any office or agency of the
Company in the United States or by check mailed to any address
in the Untied States or by transfer to an account maintained
with a bank located in the United States; provided, however,
that, if the Securities of a series are denominated and payable
in Dollars, payment of principal of and any premium and inter-
est on any Bearer Security (including any additional amounts
payable on Securities of such series pursuant to Section 1008)
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and payment of any coupon related thereto shall be made at the
office of the Company's Paying Agent in the United States, if
(but only if) payment in Dollars of the full amount of such
principal, premium, interest or additional amounts, as the case
may be, at all offices or agencies outside the United States
maintained for the purpose by the Company in accordance with
this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one
or more other offices or agencies (in or outside any Place of
Payment) where the Securities of one or more series and any
related coupons may be presented or surrendered for any or all
such purposes and may from time to time rescind such designa-
tions; provided, however, that no such designation or rescis-
sion shall in any manner relieve the Company of its obligation
to maintain an office or agency for Securities of any series
and related coupons for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other
office or agency.
SECTION 1003. Money for Security Payments
To Be Held in Trust.
If the Company shall at any time act as its own Pay-
ing Agent with respect to any series of Securities, it will, on
or before each due date of the principal of (and premium, if
any) or interest, if any, on any of the Securities of that
series, segregate and hold in trust for the benefit of the Per-
sons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest, if any, so becoming due
until such sums shall be paid to such Persons or otherwise dis-
posed of as herein provided and will promptly notify the Trus-
tee of its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents for any series of Securities, it will, prior to each due
date of the principal of (and premium, if any) or interest, if
any, on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal (and premium, if
any) or interest, if any, so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such prin-
cipal, premium or interest, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of
its action or failure so to act.
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The Company will cause each Paying Agent of any
series of Securities other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest, if any, on
the Securities of that series in trust for the benefit of
the Persons entitled thereto until such sums shall be paid
to such Persons otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities of that
series) in the making of any payment of principal (and
premium, if any) or interest, if any, on the Securities of
that series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forth-
with pay to the Trustee all sums so held in trust by such
Paying Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or
for any other purpose, pay, or by Company Order direct any Pay-
ing Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trus-
tee upon the same trusts as those upon which such sums were
held by the Company or such Paying Agent; and, upon such pay-
ment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of
the principal of (and premium, if any) or interest, if any, on
any Security of any series or the payment of any related coupon
and remaining unclaimed for two years after such principal (and
premium, if any) or interest, if any, has become due and pay-
able shall, unless otherwise required by mandatory provisions
of applicable escheat, or abandoned or unclaimed property law,
be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the
Holder of such Security or any coupon appertaining thereto
shall thereafter, as an unsecured general creditor, look only
to the Company for payment thereof, and all liability of the
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Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once,
in an Authorized Newspaper in each Place of Payment, notice
that such money remains unclaimed and that, after a date speci-
fied therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money
then remaining will, unless otherwise required by mandatory
provisions of applicable escheat, or abandoned or unclaimed
property law, be repaid to the Company.
SECTION 1004. Restrictions on Secured Debt.
The Company covenants and agrees for the benefit of
each series of Securities, other than any series established by
or pursuant to a Board Resolution or in one or more supplemen-
tal indentures hereto which specifically provides otherwise,
that it will not itself, and will not permit any Restricted
Subsidiary to, incur, issue, assume, or guarantee any loans,
whether or not evidenced by negotiable instruments or securi-
ties, or any notes, bonds, debentures or other similar evi-
dences of indebtedness for money borrowed (loans, and notes,
bonds, debentures or other similar evidences of indebtedness
for money borrowed being hereinafter called "Debt"), secured
after the date hereof by a pledge of, or mortgage or lien on,
any Principal Property of the Company or any Restricted Subsid-
iary or any shares of Capital Stock of or Debt of any
Restricted Subsidiary (mortgages, pledges and liens being here-
inafter called "Mortgage" or "Mortgages"), without effectively
providing that the Securities, other than Securities of a
series not entitled to the benefits of this covenant, shall be
secured equally and ratably with (or, at the option of the Com-
pany, prior to) such secured Debt, so long as such secured Debt
shall be so secured, unless, after giving effect thereto, the
aggregate amount of all such secured Debt (plus all Attribut-
able Debt not otherwise permitted by the second paragraph of
Section 1009) would not exceed 10% of Consolidated Net Assets;
provided, however, that this Section 1004 shall not apply to,
and there shall be excluded from secured Debt in any computa-
tion under this Section 1004, Debt secured by:
(1) Mortgages on property of, or on any shares of
Capital Stock of or Debt of, any corporation existing at
the time such corporation becomes a Restricted Subsidiary;
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(2) Mortgages in favor of the Company or any
Restricted Subsidiary;
(3) Mortgages in favor of any governmental body to
secure progress, advance or other payments pursuant to any
contract or provision of any statute;
(4) Mortgages on property, shares of Capital Stock or
Debt existing at the time of acquisition thereof (including
acquisition through merger or consolidation) or to secure
the payment of all or any part of the purchase price thereof
or the cost of construction, substantial repair or
alteration thereon or development or substantial improve-
ment thereto or to secure any Debt incurred prior to, at
the time of, or within 180 days after (A) the acquisition
of such property, shares of Capital Stock or Debt or (B)
in the case of real property the later of (x) the comple-
tion of construction, substantial repair or alteration
thereon or development or substantial improvement thereto
or (y) commencement of commercial operations on such prop-
erty for the purpose of financing all or any part of the
purchase price thereof or the cost of construction,
substantial repair or alteration thereon or development
or substantial improvement thereto;
(5) Mechanics', materialmen's, carriers' or other
like liens arising in the ordinary course of business
(including construction of facilities) in respect of obli-
gations which are not due or which are being contested in
good faith;
(6) Any Mortgage arising by reason of deposits with,
or the giving of any form of security to, any governmental
agency or any body created or approved by law or govern-
mental regulations, which is required by law or governmen-
tal regulation as a condition to the transaction of any
business, or the exercise of any privilege, franchise or
license;
(7) Mortgages for taxes, assessments or governmental
charges or levies not yet delinquent, or Mortgages for
taxes, assessments or governmental charges or levies
already delinquent but the validity of which is being con-
tested in good faith;
(8) Mortgages (included judgment liens) arising in
connection with legal proceedings so long as such
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proceedings are being contested in good faith and, in the
case of judgment liens, execution thereon is stayed;
(9) Mortgages existing at the date of this Inden-
ture; and
(10) Any extension, renewal or replacement (or suc-
cessive extensions, renewals or replacements), as a whole
or in part, of any Mortgage referred to in the foregoing
clauses (1) to (9), inclusive; provided, however, that
such extension, renewal or replacement Mortgage shall be
limited to all or part of the same property, shares of
Capital Stock or Debt that secured the Mortgage extended,
renewed or replaced (plus improvements on such property).
SECTION 1005. Statement as to Compliance.
The Company will deliver to the Trustee, within 120
days after the end of each fiscal year of the Company ending
after the date of the first issuance of Securities hereunder, a
certificate of the chief executive officer, chief financial
officer or chief accounting officer, stating, as to each signer
thereof, that
(1) a review of the activities of the Company during
such year and of performance under this Indenture has been
made under his supervision, and
(2) to the best of his knowledge, based on such
review, the Company has complied with all of its condi-
tions and covenants under this Indenture, or if the Com-
pany has not so complied, specifying each such default
known to him and the nature and status thereof.
SECTION 1006. Corporate Existence.
Subject to Article Eight, the Company will do or
cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence.
SECTION 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any term, provision, covenant or condition set
forth in Sections 1004 and 1009, if before the time for such
compliance the Holders of at least a majority in principal
amount of the outstanding Securities of each series shall, by
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Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provi-
sion, covenant or condition, but no such waiver shall extend to
or affect such term, provision, covenant or condition except to
the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties
of the Trustee with respect to any such term, provision, cove-
nant or condition shall remain in full force and effect.
SECTION 1008. Additional Amounts.
If the Securities of a series provide for the payment
of additional amounts, the Company will pay to the Holder of
any Security of such series or any coupon appertaining thereto
additional amounts as provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect
of, any Security of any series or payment of any related coupon
or the net proceeds received on the sale or exchange of any
Security of any series, such mention shall be deemed to include
mention of the payment of additional amounts provided for in
this Section to the extent that, in such context, additional
amounts are, were or would be payable in respect thereof pursu-
ant to the provisions of this Section and express mention of
the payment of additional amounts (if applicable) in any provi-
sions hereof shall not be construed as excluding additional
amounts in those provisions hereof where such express mention
is not made.
If the Securities of a series provide for the payment
of additional amounts, at least 10 days prior to the first
Interest Payment Date with respect to that series of Securities
(or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of princi-
pal and any premium is made), and at least 10 days prior to
each date of payment of principal and any premium or interest
if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company
will furnish the Trustee and the Company's principal Paying
Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of and
any premium or interest on the Securities of that series shall
be made to one or more Holders of Securities of that series or
any related coupons who are United States Aliens without with-
holding for or on account of any tax, assessment or other gov-
ernmental charge described in the Securities of that series.
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If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of
Securities or coupons and the Company will pay to the Trustee
or such Paying Agent the additional amounts required by this
Section. The Company covenants to indemnify the Trustee and
any Paying Agent for, and to hold them harmless against, any
loss, liability or expense reasonably incurred without negli-
gence or bad faith on their part arising out of or in connec-
tion with actions taken or omitted by any of them in reliance
on any Officers' Certificate furnished pursuant to this
Section.
SECTION 1009. Restrictions on Sales and Leasebacks.
The Company covenants and agrees for the benefit of
each series of Securities, other than any series established
pursuant to a Board Resolution or in one or more supplemental
indentures hereto which specifically provides otherwise, that
it will not itself, and will not permit any Restricted Subsid-
iary to enter into any sale and leaseback transaction involving
any Principal Property, unless after giving effect thereto the
aggregate amount of all Attributable Debt with respect to all
such transactions (plus all secured Debt not otherwise permitted
by clauses 1 through 10 of Section 1004) would not exceed 10% of
Consolidated Net Assets.
This restriction will not apply to, and there shall
be excluded from Attributable Debt in any computation under
such restriction, any sale and leaseback transaction if (a) the
lease is for a period, including renewal rights, of not in
excess of three years, (b) the sale or transfer of the Princi-
pal Property is made within 180 days after its acquisition or
after the later of (1) the completion of construction, substan-
tial repair or alteration thereon or development or substantial
improvement thereto, or (2) commencement of commercial operations
thereon, (c) the transaction is between the Company and a
Restricted Subsidiary, or between Restricted Subsidiaries,
(d) the Company or a Restricted Subsidiary would be entitled to
incur a Mortgage on such Principal Property pursuant to
clauses 1 through 10 of Section 1004, or (e) the Company or a
Restricted Subsidiary, within 180 days after the sale or
transfer is completed, applies to the retirement of Funded Debt
of the Company or a Restricted Subsidiary ranking on a parity
with or senior to the Securities, or to the purchase of other
property which will constitute a Principal Property having a
fair market value at least equal to the fair market value ofthe
Principal Property leased, an amount equal to the greater
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of the net proceeds of the sale of the Principal Property or
the fair market value (as determined by the Board of Directors)
of the Principal Property leased at the time of entering into
such arrangement (as determined by the Board of Directors).
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of This Article.
Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with
this Article.
SECTION 1102. Election To Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company of less than all the
Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount
of Securities of such series to be redeemed, such notice to be
accompanied by a written statement signed by an Authorized
Officer of the Company stating that no defaults in the payment
of interest or Events of Default with respect to the Securities
of that series have occurred (which have not been waived or
cured). In the case of any redemption of Securities (i) prior
to the expiration of any restriction on such redemption pro-
vided in the terms of such Securities or elsewhere in this
Indenture, or (ii) pursuant to an election of the Company which
is subject to a condition specified in the terms of such Secu-
rities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or
condition.
SECTION 1103. Selection by Trustee of Securities
To Be Redeemed.
If less than all the Securities of any series are to
be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series not
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previously called for redemption by lot or by such other method
as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to
the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that
series or of portions of the principal amount of global Securi-
ties of such series.
The Trustee shall promptly notify the Company in
writing of the Securities selected for redemption and, in the
case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the con-
text otherwise requires, all provisions relating to the redemp-
tion of Securities shall relate, in the case of any Securities
redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner
provided in Section 106 not more than 60 days nor less than 30
days prior to the Redemption Date, to the Holders of Securities
to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price and any accrued interest;
(3) if less than all Outstanding Securities of any
series are to be redeemed, the identification (and, in the
case of partial redemption, the principal amounts) of the
particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption
Price, and any accrued interest thereon, will become due
and payable upon each such Security to be redeemed and
that interest thereon shall cease to accrue from and after
said date;
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(5) the place or places where such Securities are,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemp-
tion Date, to be surrendered for payment of the Redemption
Price and any accrued interest thereon;
(6) If such be the case, that the installment of
interest on Registered Securities whose Stated Maturity is
the Redemption Date is payable to the Persons in whose
names such Registered Securities are registered at the
close of business on the Regular Record Date immediately
preceding the Redemption Date; and
(7) that the redemption is for a sinking fund, if
such is the case.
Notice of redemption of Securities to be redeemed
shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
Not later than 11:00 a.m., New York City time, on any
Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Sec-
tion 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Inter-
est Date) any accrued interest on, all the Securities which are
to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
the Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein speci-
fied together with any accrued interest thereon and from and
after such date (unless the Company shall default in the pay-
ment of the Redemption Price and accrued interest), such Secu-
rities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void.
Upon surrender of any such Securities for redemption in accor-
dance with said notice, such Securities shall be paid by the
Company at the Redemption Price, together with any accrued
interest to the Redemption Date; provided, however, that any
installments of interest on Bearer Securities whose Stated
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Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest, and
provided, further, that, unless otherwise specified as contem-
plated by Section 301, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemp-
tion Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to
their terms and the provisions of Section 307.
If any Bearer Security which is to be redeemed in
whole or in part (as set forth in Section 1107) when surren-
dered for redemption shall not be accompanied by all appurte-
nant coupons maturing after the Redemption Date, such Security
may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by
the Company or jointly by the Company and the Trustee if there
be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If
thereafter, a Holder shall surrender to the Trustee or any Pay-
ing Agent any such missing coupon in respect of which a deduc-
tion shall have been made from the Redemption Price, such
Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall
be payable only upon presentation and surrender of those cou-
pons at an office or agency located outside of the United
States except as otherwise provided in Section 1002.
If the Company shall default in the payment of the
Redemption Price and accrued interest on any Security called
for redemption, the principal (and premium, if any) of such
Security shall, until paid or until payment is provided for in
accordance herewith, bear interest from the Redemption Date at
the rate, if any, prescribed therefor in the Security.
So long as it is known to the Trustee that an Event
of Default is continuing hereunder, the Trustee shall not
redeem any Securities of any series pursuant to this Article
(unless all outstanding Securities of such series are to be
redeemed) or mail or give any notice of redemption of Securi-
ties except that, where the mailing of notice of redemption of
any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided
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that it shall have received from the Company a sum sufficient
for such redemption. Except as aforesaid, any monies thereto-
fore or thereafter received by the Trustee shall, during the
continuance of such Event of Default, be deemed to have been
collected under Article Five and held for the payment of all
such Securities. In case such Event of Default shall have been
waived as provided in Section 513 or the default cured on or
before the sixtieth day preceding the Redemption Date, such
monies shall thereafter be applied in accordance with the pro-
visions of this Article.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part
shall be surrendered at any Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or
a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or
his attorney duly authorized in writing) together, in the case
of Bearer Securities, with all coupons appertaining thereto
maturing after the Redemption Date, and the Company shall exe-
cute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security
or Securities of the same series and of like tenor, of any
authorized denomination as requested by the Holder, in an
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 301
for the Securities of such series.
The minimum amount of any sinking fund payment pro-
vided for by the terms of Securities of any series is herein
referred to as a "mandatory sinking fund payment", and any pay-
ment in excess of such minimum amount provided for by the terms
of the Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms
of the Securities of any series, the cash amount of any sinking
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fund payment may be subject to reduction as provided in Section
1202. Each sinking fund payment made on the Securities of a
series shall be applied to the redemption of the Securities of
such series as provided for by the terms of the Securities of
such series.
SECTION 1202. Satisfaction of Sinking Fund
Payments With Securities.
The Company (1) may deliver Outstanding Securities of
a series (other than any previously called for redemption),
together in the case of any Bearer Securities of such series
with all unmatured coupons appertaining thereto, and (2) may
apply as a credit the Securities of a series which have been
redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permit-
ted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any
part of any sinking fund payment as specified in the Officers'
Certificate delivered pursuant to Section 1203 with respect to
the Securities of such series required to be made pursuant to
the terms of such Securities as provided for by the terms of
such series; provided that such Securities have not been previ-
ously so credited. Such Securities shall be received and cred-
ited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly.
SECTION 1203. Redemption of Securities
for Sinking Fund.
Not less than 60 days or such other shorter period as
may be acceptable to the Trustee prior to each sinking fund
payment date for any series of Securities, the Company will
deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by payment of cash and the por-
tion thereof, if any, which is to be satisfied by delivering
and crediting Securities of that series pursuant to Section
1202 and will also deliver to the Trustee any Securities to be
so delivered. Not less than 30 days before each such sinking
fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the
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Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
MEETINGS OF THE HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings
May Be Called.
If any Securities of a series are issuable as Bearer
Securities, a meeting of Holders of Securities of such series
may be called at any time and from time to time pursuant to
this Article to make, give or take any request, demand, autho-
rization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Hold-
ers of Securities of such series.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of
Holders of Securities of any series issuable as Bearer Securi-
ties or as Bearer Securities and Registered Securities for any
purpose specified in Section 1301, to be held at such time and
at such place in the Borough of Manhattan, The City of New
York, or in London as the Trustee shall determine. Notice of
every meeting of Holders of Securities of any series, setting
forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not less than 21
nor more than 180 days prior to the date fixed for the meeting;
provided, that, any such notice of a meeting of Holders of
Securities of any series may be waived by Persons entitled to
vote a majority in principal amount of the outstanding Securi-
ties of such series; provided, further, that if any action is
to be taken at such meeting with respect to a consent or waiver
as to which this Indenture or the terms of such series
expressly provides may be given by Holders of not less than a
specified percentage of principal amount of the Outstanding
Securities of such series, then such notice may only be waived
by Persons entitled to vote such specified percentage in prin-
cipal amount of the Outstanding Securities of such series. If
notice of any meeting of Holders of Securities of any series is
waived pursuant to this Section 1302(a), then prompt notice of
the taking of any action at such meeting shall be given to
<PAGE>
-91-
Holders of Securities of such series who were not present at
such meeting in the manner provided in Section 106.
(b) In case at any time the Company, pursuant to a
Board Resolution, or the Holders of at least 10% in principal
amount of the Outstanding Securities of any series issuable as
Bearer Securities or as Bearer Securities and Registered Secu-
rities shall have requested the Trustee to call a meeting of
the Holders of Securities of such series for any purpose speci-
fied in Section 1301, by written request setting forth in rea-
sonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have made the first publication of
the notice of such meeting within 21 days after receipt of such
request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in the Bor-
ough of Manhattan, The City of New York, or in London for such
meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
SECTION 1303. Persons Entitled To Vote
at Meetings.
To be entitled to vote at any meeting of Holders of
Securities of any series, a Person shall be (1) a Holder of one
or more Outstanding Securities of such series, or (2) a Person
appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled
to be present or to speak at any meeting of Holders of Securi-
ties of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company
and its counsel. The Company may set a record date for pur-
poses of determining the identity of Holders entitled to vote
at any meeting of Holders of Securities.
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in principal
amount of the Outstanding Securities of a series shall consti-
tute a quorum for a meeting of Holders of Securities of such
series; provided, however, that if any action is to be taken at
such meeting with respect to a consent or waiver which this
Indenture or the terms of such series expressly provides may be
given by the Holders of not less than a specified percentage of
<PAGE>
-92-
the principal amount of the Outstanding Securities of a series,
the Persons entitled to vote such specified percentage in prin-
cipal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 min-
utes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities of
such series, be dissolved. In any other case the meeting may
be adjourned for a period of not less than 10 days as deter-
mined by the chairman of the meeting prior to the adjournment
of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned
meeting shall be given as provided in Section 1302(a), except
that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series
which shall constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be
adopted by the affirmative vote of the Holders of a majority in
principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to
Section 902, any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or
other action which this Indenture or the terms of such series
expressly provides may be made, given or taken by the Holders
of a specified percentage in principal amount of the Outstand-
ing Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is pre-
sent as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstand-
ing Securities of that series.
Any resolution passed or decision taken at any meet-
ing of Holders of Securities of any series duly held in accor-
dance with this Section shall be binding on all the Holders of
Securities of such series and the related coupons, whether or
not present or represented at the meeting.
<PAGE>
-93-
SECTION 1305. Determination of Voting Rights;
Conduct and Adjournment of Meeting.
(a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as
it may deem advisable for any meeting of Holders of Securities
of a series in regard to proof of the holding of Securities of
such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submis-
sion and examination of proxies, certificates and other evi-
dence of the right to vote, and such other matters concerning
the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regula-
tions, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall
be proved in the manner specified in Section 104 or by having
the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities.
Such regulations may provide that written instruments appoint-
ing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other
proof.
(b) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company or by Holders of Securi-
ties as provided in Section 1302(b), in which case the Company
or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Persons entitled to
vote a majority in principal amount of the Outstanding Securi-
ties of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such
series or proxy shall be entitled to one vote for each $1,000
principal amount of the Outstanding Securities of such series
held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Secu-
rity challenged as not Outstanding and ruled by the chairman of
the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Security
of such series or proxy.
(d) Any meeting of Holders of Securities of any
series duly called pursuant to Section 1302 at which a quorum
<PAGE>
-94-
is present may be adjourned from time to time by Persons enti-
tled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1306. Counting Votes and Recording
Action of Meetings._________
The vote upon any resolution submitted to any meeting
of Holders of Securities of any series shall be by written bal-
lots on which shall be subscribed the signatures of the Holders
of Securities of such series or of their representatives by
proxy and the principal amounts and serial numbers of the Out-
standing Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspec-
tors of votes who shall count all votes cast at the meeting for
or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least
in duplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of
the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by bal-
lot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the Notice of
the meeting and showing that said notice was given as provided
in Section 1302 and, if applicable, Section 1304. Each copy
shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall
be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein
stated.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together consti-
tute but one and the same instrument.
<PAGE>
-95-
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective corpo-
rate seals to be hereunto affixed and attested, all as of the
day and year first above written.
AVNET, INC.
By_______________________________
Name:
Title:
[Seal]
Attest:
_________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By_______________________________
Name:
Title:
[Seal]
Attest:
_________________________
Name:
Title:
<PAGE>
EXHIBIT A
[FORM OF REGISTERED SECURITY]*
[Form of Face]
[If an Original Issue Discount Security, insert any
legend required by the Internal Revenue Code and the Regula-
tions thereunder.]
AVNET, INC.
............................
No. [R-] ................ [U.S. $] ..............
AVNET, INC., a corporation duly organized and exist-
ing under the laws of the State of New York (herein called the
"Company," which term includes any successor Person under the
Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to
...............................................................
or registered assigns the principal sum of ....................
.................................... [United States] Dollars on
.................................... [If the Security is
interest-bearing, insert-, and to pay interest thereon from
..............., .... or from the most recent Interest Payment
Date to which interest has been paid or duly provided for,
[semi-annually in arrears on ................. and
................. in each year] [annually in arrears on
................. in each year], commencing ..................,
.... at the rate of ....% per annum, until the principal hereof
is paid or made available for payment [if applicable, insert-,
and (to the extent that the payment of such interest shall be
legally enforceable) at the rate of ....% per annum on any
overdue principal [and premium, if any] and on any overdue
installment of interest)]. The interest so payable, and punc-
tually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor
_________________________
* To be completed and supplemented to reflect the terms of
any series of Securities.
<PAGE>
A-2
Securities) is registered at the close of business on the Regu-
lar Record Date for such interest, which shall be the
...................... [or ................] (whether or not a
Business Date) [, as the case may be,] next preceding such
Interest Payment Date. Except as otherwise provided in the
Indenture, any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder
on such Regular Record Date and may either be paid to the Per-
son in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be
fixed by the Trustee, notice whereof shall be given to Holders
of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may
be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to
Maturity, insert- The principal of this Security shall not bear
interest except in the case of a default in payment of princi-
pal upon acceleration, upon redemption or at Stated Maturity,
and in such case the overdue principal of this Security shall
bear interest at the rate of ....% per annum (to the extent
that the payment of such interest shall be legally enforce-
able), which shall accrue from the date of such default in pay-
ment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal
that is not so paid on demand shall bear interest at the rate
of ....% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from
the date of such demand for payment to the date payment of such
interest has been made or duly provided for, and such interest
shall also be payable on demand.] [Payment of the principal of
[(and premium, if any)] and [if applicable, insert- any such]
interest on this Security will be made at [the offices or agen-
cies of the Company maintained for that purpose in
.........................................., in such coin or
currency [of the United States of America] as at the time of
payment is legal tender for payment of public and private
debt]. [If applicable, insert-; provided, however, that at the
option of the Company payment of interest may be made by
[United States dollars] check mailed to the address of the
<PAGE>
A-3
Person entitled thereto as such address shall appear in the
Security Register].]
[If Securities of the series are to be offered to
United States Aliens and, if applicable, insert- The Company
will pay to the Holder of this Security who is a United States
Alien (as defined below) such additional amounts as may be nec-
essary in order that [If the Security is interest-bearing,
insert- every net payment of the principal of [(and premium, if
any)] and interest on this Security] [if the Security is not to
bear interest prior to Maturity, insert- (i) the net payment of
principal of (and interest on overdue principal, if any, on)
this Security and (ii) the net proceeds from the sale or
exchange of this Security, including, in each case, amounts
received in respect of original issue discount], after deduc-
tion or withholding for or on account of any present or future
tax, assessment or other governmental charge imposed by the
United States (as defined below) or any political subdivision
or taxing authority thereof or therein upon or as a result of
such payment [If the Security is not to bear interest prior to
Maturity, insert- or as a result of such sale or exchange],
will not be less than the amount provided for in this Security
to be then due and payable [If the Security is not to bear
interest prior to Maturity, insert- or, in the case of a sale
or exchange, the amount of the net proceeds from the sale or
exchange before any such tax, assessment or other governmental
charge); provided, however, that the foregoing obligation to
pay additional amounts will not apply to any one or more of the
following:
(a) any tax, assessment or other governmental charge
which would not have been so imposed but for (i) the exis-
tence of any present or former connection between such
Holder (or between a fiduciary, settlor, beneficiary, mem-
ber of, or possessor of a power over, or shareholder of
such Holder, if such Holder is an estate, a trust, a part-
nership or a corporation) and the United States, includ-
ing, without limitation, such Holder (or such fiduciary,
settlor, beneficiary, member, possessor or shareholder
being or having been a citizen or resident or treated as a
resident thereof, or being or having been engaged in trade
or business or present therein, or having or having had a
permanent establishment therein, or (ii) such Holder's
present or former status as a personal holding company, a
foreign personal holding company, a controlled foreign
corporation for United States tax purposes or a
<PAGE>
A-4
corporation which accumulates earnings to avoid United
States federal income tax;
(b) any tax, assessment or other governmental charge
imposed [if the Security is interest-bearing, insert- on
interest received by a Person holding, actually or con-
structively, 10% or more of the total combined voting
power of all classes of stock of the Company entitled to
vote or on interest received by a bank on an extension of
credit made pursuant to a loan agreement entered into in
the ordinary course of its trade or business, within the
meaning of section 881(c)(3)(A) of the Internal Revenue
Code of 1986, as amended (the "Code")] [if the Security is
not to bear interest prior to Maturity insert- by reason
of such Holder's past or present status as the actual or
constructive owner of 10% or more of the total combined
voting power of all classes of stock of the Company enti-
tled to vote or on interest received by a bank on an
extension of credit made pursuant to a loan agreement
entered into the ordinary course of its trade or business,
within the meaning of section 881(c)(3)(A) of the Code];
(c) any tax, assessment or other governmental charge
which would not have been imposed but for the failure to
comply with any certification, identification or other
reporting requirements concerning the nationality, resi-
dence, identity or connection with the United States of
the Holder or beneficial owner of this Security, if com-
pliance is required by statute or by regulation of the
United States as a precondition to exemption from such
tax, assessment or other governmental charge;
(d) any estate, inheritance, gift, sales, transfer,
personal property or any similar tax, assessment or gov-
ernmental charge;
(e) any tax, assessment or other governmental charge
which is payable otherwise than by deduction or withhold-
ing from payments of [if the Security is interest-bearing,
insert- principal of [(and premium, if any)] or interest
on this Security] [If the Security is not to bear interest
prior to Maturity, insert- principal of (or interest on
overdue principal, if any, on) this Security or from pay-
ments from the proceeds of a sale or exchange of this
Security]; or
<PAGE>
A-5
(f) any tax, assessment or other governmental charge
which would not have been so imposed but for the presenta-
tion by the Holder of this Security for payment on a date
more than 15 days after the date on which such payment
became due and payable or the date on which payment
thereof is duly provided for, whichever occurs later;
nor will additional amounts be paid with respect to any payment
of [if the Security is interest-bearing, insert- principal of
[(and premium, if any)] or interest on this Security] [if the
Security is not to bear interest prior to Maturity, insert-
principal of (or interest on overdue principal, if any, on)
this Security or of the proceeds of any sale or exchange of
this Security] to any United States Alien who is a fiduciary or
partnership or other than the sole beneficial owner of any such
payment to the extent that a beneficiary or settlor with
respect to such fiduciary, a member of such a partnership or
the beneficial owner would not have been entitled to the addi-
tional amounts had such beneficiary, settlor, member or benefi-
cial owner been the Holder of this Security. In the case of
net proceeds from the sale or exchange of a Bearer Security,
additional amounts with respect to such net proceeds shall not
(a) exceed additional amounts that would have been payable if
the Bearer Security had been redeemed for its issue price plus
accrued original issue discount at the time of such sale or
exchange or (b) be paid in respect of any sale or exchange
occurring after the date fixed for redemption of such Security.
Except as previously provided herein with respect to Bearer
Securities, the Company shall not be required to make any pay-
ment with respect to any tax, assessment or other governmental
charge imposed by any government or any political subdivision
or taxing authority thereof or therein and may make such
withholdings and deductions on account of any such charge as
may be required by applicable law or regulation. The term
"United States Alien" means any Person who, for United States
federal income tax purposes, is a foreign corporation, a non-
resident alien individual, a non-resident alien fiduciary of a
foreign estate or trust or a foreign partnership one or more of
the members of which is, for United States federal income tax
purposes, a foreign corporation, a non-resident alien individ-
ual or a non-resident alien fiduciary of a foreign estate or
trust, and the term "United States" means the United States of
America (including the States and the District of Columbia),
its territories, its possessions and other areas subject to its
jurisdiction.]
<PAGE>
A-6
Reference is hereby made to the further provisions of
this Security set forth on the reverse side hereof, which fur-
ther provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof,
directly or through an Authenticating Agent, by manual signa-
ture of an authorized signatory, this Security shall not be
entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
<PAGE>
A-7
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated:___________________
AVNET, INC.
By_______________________________
Attest:
_________________________
<PAGE>
A-8
[Form of Reverse]
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Inden
ture, dated as of January 1, 1994 (herein called the "Inden-
ture"), between the Company and The First National Bank of Chi-
cago, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limita-
tions of rights, duties and immunities thereunder of the Com-
pany, the Trustee and the Holders of the Securities [If the
Securities of the series are issuable as Bearer Securities,
insert- and any coupons appertaining thereto] and of the terms
upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on
the face hereof[, limited in aggregate principal amount to
[U.S.] [$] ______________]. The Securities of this series are
issuable as [Bearer Securities] [, with interest coupons
attached,] in the denomination of [If Securities of the series
are issuable as Bearer Securities, insert- [U.S. $] __________,
and] [only] Registered Securities, without coupons in denomina-
tions of [U.S. $]_____________, and any integral multiple
thereof. As provided in the Indenture and subject to certain
limitations therein set forth [Bearer Securities and Regis-
tered] Securities of this series are exchangeable for a like
aggregate principal amount of [Registered] Securities of this
series and of like tenor of any authorized denominations, as
requested by the Holder surrendering the same, upon surrender
of the Security or Securities to be exchanged at [any office or
agency described below where Registered Securities of this
series may be presented for registration of transfer]. [Bearer
Securities may not be issued in exchange for Registered
Securities.]
[If applicable, insert- The Securities of this series
are subject to redemption [(1)] [If applicable, insert- on
__________ in any year commencing with the year __________ and
ending with the year __________ through operation of the sink-
ing fund for this series at a Redemption Price equal to [100%
of the principal amount] [or insert formula for determining the
amount], [and] (2) [If applicable, insert- at any time [on or
after __________, 19__], as a whole or in part, at the election
of the Company, at the following Redemption Prices (expressed
as percentages of the principal amount): If redeemed [or
<PAGE>
A-9
before __________, ____% and if redeemed] during the 12-month
period beginning __________ of the years indicated,
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to ________% of the
principal amount,] [If applicable, insert- [and (____)] under
the circumstances described in the next [two] succeeding
paragraph[s] at a Redemption Price equal to [100% of the prin-
ciple amount,] [or insert formula for determining the amount]]
[If the Security is interest-bearing, insert-, together in the
case of any such redemption [If applicable, insert- (whether
through operation of the sinking fund or otherwise)] with
accrued interest to the Redemption Date; provided, however,
that installments of interest on this Security whose Stated
Maturity is on or prior to such Redemption Date will be payable
to the Holder of this Security, or one or more Predecessor
Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in
the Indenture].
[If applicable, insert- The Securities of this series
are subject to redemption (1) on __________ in any year com-
mencing with the year ____ and ending with the year ____
through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sink-
ing fund (expressed as percentages of the principal amount) set
forth in the table below, and (2) at any time [on or after
__________, ____], as a whole or in part, at the election of
the Company, at the Redemption Prices for redemption otherwise
than through operation of the sinking fund (expressed as per-
centages of the principal amount) set forth in the table below:
If redeemed during the 12-month period beginning __________ of
the years indicated,
<PAGE>
A-10
Redemption Price for
Redemption Price for Redemption Otherwise
Redemption Through Than Through
Operation of the Operation of the
Year Sinking Fund Sinking Fund
and thereafter at a Redemption Price equal to __________% of
the principal amount, [If applicable, insert- and (3) under the
circumstances described in the next [two] succeeding
paragraph[s] at a Redemption Price equal to [100% of the prin-
cipal amount] [or insert formula for determining the amount]]
[If the Security is interest-bearing, insert-, together in the
case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemp-
tion Date; provided, however, that installments of interest on
this Security whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holder of this Security,
or one or more Predecessor Securities, of record at the close
of business on the relevant Record Dates referred to on the
face hereof, all as provided in the Indenture].]
[Partial redemption must be made in an amount not
less than [U.S. $1,000] principal amount of Securities.]
[Notwithstanding the foregoing, the Company may not,
prior to ______, redeem any Securities of this series as con-
templated by clause [(2)] above as a part of, or in anticipa-
tion of, any refunding operation by the application, directly
or indirectly, of moneys borrowed having an interest cost to
the Company (calculated in accordance with generally accepted
financial practice) of less than _____% per annum.]
[If Securities of the series are to be offered to
United States Aliens, insert- The Securities may be redeemed,
as a whole but not in part, at the option of the Company, at a
Redemption Price [equal to 100% of their principal amount]
[determined as set forth in the preceding paragraph] [If the
Security is interest-bearing, insert-, together with interest
<PAGE>
A-11
accrued to the date fixed for redemption,] if (i), as a result
of any amendment to, or change in, the laws or regulations of
the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, or any amend-
ment to or change in an official interpretation or application
of such laws or regulations, which amendment or change ("Tax
Law Change") is effective on or after __________, ____, the
Company has or will become obligated to pay additional amounts
(as described in the face hereof] [If the Security is
interest-bearing, insert- on the next succeeding Interest Pay-
ment Date] [If the Security is not to bear interest prior to
Maturity, insert- at Maturity or upon the sale or exchange of
any Security]; provided that, at the time such notice is given,
such obligation to pay such additional amounts remains in
effect, or (ii) in the written opinion of independent counsel
selected by the Company there is a substantial likelihood that
the Company has or will become obligated to pay such additional
amounts as a result of any action taken by any taxing authority
or of any action brought in a court of competent jurisdiction
in the United States or any political subdivision thereof or
therein, including any of the actions described in (i) above,
whether or not such action has been taken or brought with
respect to the Company, or as a result of any officially pro-
posed Tax Law Change, which action or proposed change occurs
after _______________].
[If the Securities of the series are issuable as
Bearer Securities and if applicable, insert- In addition, if
the Company determines, based upon a written opinion of inde-
pendent counsel selected by the Company, that any payment made
outside the United States by the Company or any of its Paying
Agents of the full amount of principal, [(premium, if any)] or
interest, if any, due with respect to any Bearer Security or
coupon would, under any present or future laws or regulations
of the United States, be subject to any certification, identi-
fication or other reporting requirement of any kind, the effect
of which requirement is the disclosure to the Company, any Pay-
ing Agent or any governmental authority of the nationality,
residence or identity of a beneficial owner of such Bearer
Security or coupon who is a United States Alien (as defined on
the face hereof (other than such a requirement (a) which would
not be applicable to a payment made by the Company or any one
of its Paying Agents (i) directly to the beneficial owner or
(ii) to any custodian, nominee or other agent of the beneficial
owner, or (b) which can be satisfied by the custodian, nominee
or other agent certifying that the beneficial owner is a United
<PAGE>
A-12
States Alien, provided in each case referred to in clauses
(a)(ii) and (b) that payment by such custodian, nominee or
other agent of such beneficial owner is not otherwise subject
to any such requirement), the Company at its election will
either (x) redeem the Securities, as a whole but not in part,
at a Redemption Price [equal to 100% of their principal amount]
[determined as set forth in the next preceding paragraph,]
together with interest accrued to the date fixed for redemp-
tion, or (y) if and so long as any such certification, identi-
fication or other reporting requirement would be fully satis-
fied by payment of a backup withholding tax or similar charge,
pay to the Holders of Bearer Securities who are United States
Aliens certain additional amounts specified in the Bearer Secu-
rities of this series. The Company will make such determina-
tion and election and notify the Trustee thereof as soon as
practicable, and the Trustee will promptly give notice of such
determination in the manner provided below (the "Determination
Notice"), in each case stating the effective date of such cer-
tification, identification or other reporting requirement,
whether the Company will redeem the Securities or will pay to
the Holders of Bearer Securities who are United States Aliens
the additional amounts specified in the Bearer Securities of
this series and (if applicable) the last day by which the
redemption of the Securities must take place. If the Company
elects to redeem the Securities, such redemption shall take
place on such date, not later than one year after publication
of the Determination Notice, as the Company elects by notice to
the Trustee at least 60 days before such date, unless shorter
notice is acceptable to the Trustee. Notwithstanding the fore-
going, the Company will not so redeem the Securities if the
Company, based upon an opinion of independent counsel selected
by the Company subsequently determines, not less than 10 days
prior to the date fixed for redemption, that subsequent pay-
ments would not be subject to any such requirement, in which
case the Company will notify the Trustee, which will promptly
give notice of that determination in the manner provided below,
and any earlier redemption notice will thereupon be revoked and
of no further effect. If the Company elects as provided in
clause (y) above to pay such additional amounts to the Holders
of Bearer Securities who are United States Aliens, and as long
as the Company is obligated to pay such additional amounts to
such Holders, the Company may subsequently redeem the Securi-
ties, at any time, as a whole but not in part, at a Redemption
Price [equal to 100% of their principal amount] [determined as
set forth in the next preceding paragraph,] together with
<PAGE>
A-13
interest accrued to the date fixed for redemption, but without
reduction for applicable United States withholding taxes.]
[The sinking fund for this series provides for the
redemption on __________ in each year, beginning with the year
_____ and ending with the year _____ of [not less than] [U.S.]
$__________ [("mandatory sinking fund") and not more than [U.S.
$__________] aggregate principal amount of Securities of this
series. [Securities of this series acquired or redeemed by the
Company otherwise than through [mandatory] sinking fund pay-
ments may be credited against subsequent [mandatory] sinking
fund payments otherwise required to be made in the inverse
order in which they become due.]]
[Notice of redemption will be given by mail to Hold-
ers of [If the Securities of the series are issuable as Bearer
Securities, insert- Registered] Securities, not more than 60
days nor less than 30 days prior to the date fixed for redemp-
tion, all as provided in this Indenture.]
In the event of redemption of this Security in part
only, a new [If the Securities of the series are issuable as
Bearer Securities, insert- Registered] Security or Securities
of this series and of like tenor for the unredeemed portion
hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default with respect to Securities of
this series shall occur and be continuing, [the] [If an Origi-
nal Issue Discount Security, insert- an amount of] principal of
the Securities of this series may be declared due and payable
in the manner and with the effect provided in the Indenture.
[If an Original Issue Discount Security, insert- Such amount
shall be equal to to-insert formula for determining the amount.
Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and over-
due interest (in each case to the extent that the payment of
such interest shall be legally enforceable), all of the Compa-
ny's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall
terminate.]
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected [If the
<PAGE>
A-14
Securities of the series are issuable as Bearer Securities and
are interest-bearing, insert- and any related coupons] under
the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding (with each
series voting as a separate class in certain cases specified in
the Indenture, or with all series voting as one class, in cer-
tain other cases specified in the Indenture), on behalf of the
Holders of all Securities of such series [If the Securities of
the series are issuable as Bearer Securities [and are
interest-bearing] insert- and any related coupons], to waive
compliance by the Company with certain provisions of the Inden-
ture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notification of such
consent or waiver is made upon this Security.
As set forth in, and subject to the provisions of the
Indenture, no Holder of any Security of this series will have
any right to institute any proceeding with respect to the
Indenture or for any remedy thereunder, unless such Holder
shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to this series, the
Holders of not less than 25% in principal amount of the Out-
standing Securities of this series shall have made written
request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not
have received from the Holders of a majority in principal
amount of the Outstanding Securities of this series a direction
inconsistent with such request and shall have failed to insti-
tute such proceeding within 60 days; provided, however, that
such limitations do not apply to a suit instituted by the
Holder hereof for the enforcement of payment of the principal
of [(and premium, if any)] and [any] interest on this Security
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provi-
sions of this Security or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of [(and premium, if any)]
<PAGE>
A-15
and [any] interest [(including additional amounts, as described
on the face hereof)] on this Security at the times, place[s]
and rate, and in the coin or currency, herein prescribed.
[Title to Bearer Securities shall pass by delivery.]
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of [this] [Registered] Security
is registrable in the Security Register, upon surrender of
[this] [Registered] Security for registration of transfer at
the office or agency of the Company in [any place where the
principal of [(and premium, if any)] and [any] interest on such
Security are payable], duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Com-
pany and the Security Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and there-
upon one or more new [If the Securities of the series are issu-
able as Bearer Securities, insert- Registered] Securities of
this series and of like tenor, of authorized denominations and
for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
[If the Securities of the series are not issuable as
Bearer Securities insert- The Securities of this series are
issuable only in registered form, without coupons, in denomina-
tions of [$]__________ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable
for a like aggregate principal amount of Securities of this
series and of like tenor of a different authorized denomina-
tion, as requested by the Holder surrendering the same.]
No service charge shall be made for any such regis-
tration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other govern-
mental charge payable in connection therewith.
Prior to due presentment of this Security for regis-
tration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name
this Security is registered as the owner hereof for all pur-
poses, whether or not this Security is overdue, and neither the
Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
Notwithstanding anything in the Indenture or in the
terms of this Security to the contrary, the exchange of this
<PAGE>
A-16
Security for a Registered Security will be subject to satisfac-
tion of the provisions of the United States tax laws in effect
at the time of the exchange. Neither the Company nor the Trus-
tee nor any agent of the Company or the Trustee shall be
required to exchange this Security for a Registered Security if
(i) as a result thereof and in the Company's judgment, the Com-
pany would incur adverse consequences under then applicable
United States Federal income tax laws and (ii) in the case of
the Trustee or any agent of the Company or the Trustee, the
Company shall have delivered to such Person an Officers' Cer-
tificate and an Opinion of Counsel as to the matters set forth
in clause (i) above.
The Indenture, [and] the Securities and [If the Secu-
rities of the series are issuable as Bearer Securities, insert-
any coupons appertaining thereon] shall be governed by and con-
strued in accordance with the laws of the State of New York,
without giving effect to the conflicts of laws provisions
thereof.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
<PAGE>
EXHIBIT B
[FORM OF BEARER SECURITY
AND FORM OF RELATED COUPON]*
[Form of Face of Security]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION
WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME
TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j)
AND 1287(a) OF THE INTERNAL REVENUE CODE [If an Original Issue
Discount Security, insert any legend required by the Internal
Revenue Code and the Regulations thereunder.]
AVNET, INC.
......................
No. B.................. [U.S. $................]
AVNET, INC., a corporation duly organized and exist-
ing under the laws of the State of New York (herein called the
"Company", which term includes any successor Person under the
Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to bearer upon presentation
and surrender of this Security the principal sum of
...................... [United States dollars] on
.................... [if the Security is interest-bearing,
insert-, and to pay interest thereon, from the date hereof,
[semi-annually in arrears on ..................... and
.................. in each year] [annually in arrears on
.......... in each year], commencing ....................,
..............., at the rate of .....% per annum, until the
principal hereof is paid or made available for payment [if
applicable, insert-, and (to the extent that the payment of
such interest shall be legally enforceable) at the rate of
.......% per annum on any overdue principal and premium and on
any overdue installment of interest)].
[If the Security is not to bear interest prior to
Maturity, insert- The principal of this Security shall not bear
interest except in the case of a default in payment of princi-
pal upon acceleration, upon redemption or at Stated Maturity,
and in such case the overdue principal of this Security shall
bear interest at the rate of . . . .% per annum (to the extent
_________________________
* To be completed and supplemented to reflect the terms of
any series of Securities.
<PAGE>
B-2
that the payment of such interest shall be legally enforce-
able), which shall accrue from the date of such default in pay-
ment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal
that is not so paid on demand shall bear interest at the rate
of .....% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from
the date of such demand for payment to the date payment of such
interest has been made or duly provided for, and such interest
shall also be payable on demand.] Such payments [(including
premium, if any)] shall be made, subject to any laws or regula-
tions applicable thereto and to the right of the Company (lim-
ited as provided in the Indenture) to rescind the designation
of any such Paying Agent, at the [main] office of .......... in
.........., .......... in .........., .......... in ..........,
.......... in .......... and .......... in .........., or at
such other offices or agencies outside the United States (as
defined below) as the Company may designate, at the option of
the Holder, by [United States dollar] check drawn on a bank in
The City of New York or by transfer of [United States dollars]
to an account maintained by the payee with a bank located out-
side the United States. [If the Security is interest-bearing,
insert- Interest on this Security due on or before Maturity
shall be payable only upon presentation and surrender at such
an office or agency of the interest coupons hereto attached as
they severally mature.] No payment of principal [, or] [pre-
mium] [or interest] on this Security shall be made at any
office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer
to an account maintained with a bank located in the United
States [If the Security is denominated and payable in United
States dollars, insert-; provided, however, that payment of
principal of [(and premium, if any)] and [any] interest on this
Security (including any additional amounts which may be payable
as provided below) shall be made at the office of the Company's
Paying Agent in the United States of America, if (but only if)
payment in United States dollars of the full amount of such
principal[, premium] [, interest] or additional amounts, as the
case may be, at all offices or agencies outside United States
maintained for the purpose by the Company in accordance with
the Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions, as determined by the
Company].
The Company will pay to the Holder of this Security
[if the Security is interest-bearing, insert- or any coupon
<PAGE>
B-3
appertaining hereto] who is a United States Alien (as defined
below) such additional amounts as may be necessary in order
that [If the Security is interest-bearing, insert- every net
payment of the principal of [(and premium, if any)] and inter-
est on this Security] [If the Security is not to bear interest
prior to Maturity, insert- (i) the net payment of principal of
(and interest on overdue principal, if any, on) this Security
and (ii) the net proceeds from the sale or exchange of this
Security, including, in each case, amounts received in respect
of original issue discount], after deduction or withholding for
or on account of any present or future tax, assessment or other
governmental charge imposed by the United States or any politi-
cal subdivision or taxing authority thereof or therein upon or
as a result of such payment [If the Security is not to bear
interest prior to Maturity, insert- or as a result of such sale
or exchange], will not be less than the amount provided for in
this Security [If the Security is interest-bearing, insert- or,
in the case of a sale or exchange, the amount of the net pro-
ceeds from the sale or exchange before any such tax, assessment
or other governmental charge]; provided, however, that the
foregoing obligation to pay additional amounts will not apply
to any one or more of the following:
(a) any tax, assessment or other governmental charge
which would not have been so imposed but for (i) the exis-
tence of any present or former connection between such
Holder (or between a fiduciary, settlor, beneficiary, mem-
ber of, or possessor of a power over, or shareholder of
such Holder, if such Holder is an estate, a trust, a part-
nership or a corporation) and the United States, includ-
ing, without limitation, such Holder (or such fiduciary,
settlor, beneficiary, member, possessor or shareholder)
being or having been a citizen or resident or treated as a
resident thereof, or being or having been engaged in trade
or business or present therein, or having or having had a
permanent establishment therein, or (ii) such Holder's
present or former status as a personal holding company, a
foreign personal holding company, a controlled foreign
corporation for United States tax purposes or a corpora-
tion which accumulates earnings to avoid United States
federal income tax;
(b) any tax, assessment or other governmental charge
imposed [If the Security is interest-bearing, insert- on
interest received by a Person holding, actually or con-
structively, 10% or more of the total combined voting
power of all classes of stock of the Company entitled to
<PAGE>
B-4
vote or on interest received by a bank on an extension of
credit made pursuant to a loan agreement entered into in
the ordinary course of its trade or business, within the
meaning of section 881(c)(3)(A) of the Internal Revenue
Code of 1986, as amended (the "Code")] [If the Security is
not to bear interest prior to Maturity, insert- by reason
of such Holder's past or present status as the actual or
constructive owner of 10% or more of the total combined
voting power of all classes of stock of the Company enti-
tled to vote or on interest received by a bank on an
extension of credit made pursuant to a loan agreement
entered into in the ordinary course of its trade or busi-
ness, within the meaning of section 881(c)(3)(A) of the
Code];
(c) any tax, assessment or other governmental charge
which would not have been imposed but for the failure to
comply with any certification, identification or other
reporting requirements concerning the nationality, resi-
dence, identity or connection with the United States of
the Holder or beneficial owner of this Security [If the
Security is interest-bearing, insert- or any coupon apper-
taining hereto], if compliance is required by statute or
by regulation of the United States as a precondition to
exemption from such tax, assessment or other governmental
charge;
(d) any estate, inheritance, gift, sales, transfer,
personal property or any similar tax, assessment or gov-
ernmental charge;
(e) any tax, assessment or other governmental charge
which is payable otherwise than by deduction or withhold-
ing from payments of [If the Security is interest-bearing,
insert- principal of [(and premium, if any)] or interest
on this Security.] [If the Security is not to bear inter-
est prior to Maturity, insert- principal of (or interest
on overdue principal, if any, on) this Security or from
payments from the proceeds of a sale or exchange of this
Security]; or
(f) any tax, assessment or other governmental charge
which would not have been so imposed but for the presenta-
tion by the Holder of this Security [If Security is
interest-bearing, insert- or any coupon appertaining
hereto] for payment on a date more than 15 days after the
date on which such payment became due and payable or the
<PAGE>
B-5
date on which payment thereof is duly provided for, which-
ever occurs later;
nor will additional amounts be paid with respect to any payment
of [If the Security is interest-bearing, insert- principal of
[(and premium, if any)] or interest on this Security] [If the
Security is not to bear interest prior to Maturity, insert-
principal of (or interest on overdue principal, if any, on)
this Security or of the proceeds of any sale or exchange of
this Security] to any United States Alien who is a fiduciary or
partnership or other than the sole beneficial owner of any such
payment to the extent that a beneficiary or settlor with
respect to such fiduciary, a member of such a partnership or
the beneficial owner would not have been entitled to the addi-
tional amounts had such beneficiary, settlor, member or benefi-
cial owner been the Holder of this Security [If the Security is
interest-bearing, insert- or any coupon appertaining hereto].
In the case of net proceeds from the sale or exchange of a
Bearer Security, additional amounts with respect to such net
proceeds shall not (a) exceed additional amounts that would
have been payable if the Bearer Security had been redeemed for
its issue price plus accrued original issue discount at the
time of such sale or exchange or (b) be paid in respect of any
sale or exchange occurring after the date fixed for redemption
of such Security. Except as previously provided herein with
respect to Bearer Securities, the Company shall not be required
to make any payment with respect to any tax, assessment or
other governmental charge imposed by any government or any
political subdivision or taxing authority thereof or therein
and may make such withholdings and deductions on account of any
such charge as may be required by applicable law or regulation.
The term "United States Alien" means any Person who, for United
States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary
of a foreign estate or trust, or a foreign partnership one or
more of the members of which is, for United States federal
income tax purposes, a foreign corporation, a non-resident
alien individual or a non-resident alien fiduciary of a foreign
estate or trust, and the term "United States" means the United
States of America (including the States and the District of
Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
[Notwithstanding the foregoing, if and so long as a
certification, identification or other reporting requirement
referred to in the [fourth] [fifth] paragraph on the reverse
hereof would be fully satisfied by payment of a backup
<PAGE>
B-6
withholding tax or similar charge, the Company may elect, by so
stating in the Determination Notice (as defined in such para-
graph), to have the provisions of this paragraph apply in lieu
of the provisions of such paragraph. In such event, the Com-
pany will pay as additional amounts such amounts as may be nec-
essary so that every net payment made following the effective
date of such requirements outside the United States by the Com-
pany or any of its Paying Agents of principal [(and premiums,
if any)] [If the Security is interest-bearing, insert- or
interest] due in respect of any Bearer Security [If the Secu-
rity is interest-bearing, insert - or any coupon] of which the
beneficial owner is a United States Alien (but without any
requirement that the nationality, residence or identity of such
beneficial owner be disclosed to the Company, any Paying Agent
or any governmental authority), after deduction or withholding
for or on account of such backup withholding tax or similar
charge other than a backup withholding tax or similar charge
which is (i) the result of a certification, identification or
other reporting requirement described in the second parentheti-
cal clause of such paragraph, or (ii) imposed as a result of
the fact that the Company or any of its Paying Agents has
actual knowledge that the beneficial owner of such Bearer Secu-
rity [If the Security is interest-bearing, insert - or any cou-
pon] is within the category of Persons described in clause (a)
of the [third] paragraph of this Security, or (iii) imposed as
a result of presentation of such Bearer Security [If the Secu-
rity is interest-bearing, insert - or coupon] for payment more
than 15 days after the date on which such payment becomes due
and payable or on which payment thereof is duly provided for,
whichever occurs later, will not be less than the amount pro-
vided for in such Bearer Security [If the Security is interest-
bearing, insert - or coupon] to be then due and payable.]
Reference is made to the further provisions of this
Security set forth on the reverse hereof, which further provi-
sions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has
been executed by the Trustee referred to on the reverse hereof,
or through an authenticating agent, by manual signature of an
authorized signatory, neither this Security, nor any coupon
appertaining hereto, shall be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
<PAGE>
B-7
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal and
coupons bearing the facsimile signature of [its Treasurer] [one
of its Assistant Treasurers] to be annexed hereto.
Dated as of _______________, ____
AVNET, INC.
By__________________________
Attest:
_____________________________
<PAGE>
B-8
[Form of Reverse of Security]
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"),
issued and to be issued in one or more series under an Inden-
ture, dated as of January 1, 1994 (herein called the "Inden-
ture"), between the Company and The First National Bank of Chi-
cago, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limita-
tions of rights, duties and immunities thereunder of the Com-
pany, the Trustee and the Holders of the Securities are, and
are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof [, limited in
aggregate principal amount to [U.S. $]......]. The Securities
of this series are issuable as Bearer Securities, with interest
coupons attached, in the denomination of [U.S. $.........[, and
as Registered Securities, without coupons, in denominations of
[U.S. $]......... and any integral multiple thereof.] [As pro-
vided in the Indenture and subject to certain limitations
therein set forth, Bearer Securities and Registered Securities
of this series are exchangeable for a like aggregate principal
amount of Registered Securities of this series and of like
tenor of any authorized denominations, as requested by the
Holder surrendering the same, upon surrender of the Security or
Securities to be exchanged, with all unmatured coupons and all
matured coupons in default thereto appertaining, at any office
or agency described below where Registered Securities of this
series may be presented for registration of transfer, provided,
however, that Bearer Securities surrendered in exchange for
Registered Securities between a Record Date and the relevant
Interest Payment Date shall be surrendered without the coupon
relating to such Interest Payment Date. Bearer Securities may
not be issued in exchange for Registered Securities.]
[If applicable, insert - The Securities of this
series are subject to redemption [(1)] [If applicable, insert -
on (1) .......... in any year commencing with the year
.......... and ending with the year .......... through opera-
tion of the sinking fund for this series at a Redemption Price
equal to [100% of the principal amount] [or Insert formula for
determining the amount], and (2)] [If applicable, insert - at
any time [on or after .........., .....], as a whole or in
part, at the election of the Company, at the following Redemp-
tion Prices (expressed as percentages of the principal amount):
If redeemed [or before .........., .....%, and if redeemed]
<PAGE>
B-9
during the 12-month period beginning . . . . . of the years
indicated,
Redemption Redemption
Year __Price__ Year __Year___
and thereafter at a Redemption Price equal to ....% of the
principal amount,] [and (.....)] (under the circumstances
described in the next [two] succeeding paragraph[s] at a
Redemption Price equal to [100% of the principal amount] [or
insert formula for determining the amount] [If the Security is
interest-bearing, insert -, together in the case of any such
redemption [If applicable, insert - (whether through operation
of the sinking fund or otherwise)] with accrued interest to the
Redemption Date; provided, however, that interest installments
on this Security whose Stated Maturity is on or prior to such
Redemption Date will be payable only upon presentation and sur-
render of coupons for such interest (at an office or agency
located outside the United States, except as herein provided
otherwise)].]
[If applicable, insert - The Securities of this
series are subject to redemption (1) on ......... in any year
commencing with the year .... and ending with the year
.......... through operation of the sinking fund for this
series at the Redemption Prices for redemption through opera-
tion of the sinking fund (expressed as percentages of the prin-
cipal amount) set forth in the table below, and (2) at any time
[on or after .....,.....], as a whole or in part, at the elec-
tion of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed
as percentages of the principal amount) set forth in the table
below: If redeemed during the 12-month period beginning
.......... of the years indicated.
<PAGE>
B-10
Redemption
Redemption Price for
Price Redemption
for Otherwise
Redemption Than
Through Through
Operation Operation
of the of the
Sinking Sinking
Year ___Fund___ ___Fund___
and thereafter at a Redemption Price equal to ...% of the prin-
cipal amount, and (3) under the circumstances described in the
next [two] succeeding paragraph[s] at a Redemption Price equal
to 100% of the principal amount [or insert formula for deter-
mining the amount] [If the Security is interest-bearing, insert
- together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued inter-
est to the Redemption Date; provided, however, that interest
installments on this Security whose Stated Maturity is on or
prior to such Redemption Date will be payable only upon presen-
tation and surrender of coupons for such interest (at an office
or agency located outside the United States, except as herein
provided otherwise].]
[Partial redemption must be in an amount not less
than [U.S. $5,000] principal amount of Securities.] [Notwith-
standing the foregoing, the Company may not, prior to
.........., redeem any Securities of this series as contem-
plated by clause [(2)] above as a part of, or in anticipation
of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted
financial practice) of less than ...% per annum.]
[The Securities may be redeemed, as a whole but not
in part, at the option of the Company, at a Redemption Price
[equal to 100% of their principal amount] [determined as set
forth in the preceding paragraph] [If the Security is
interest-bearing, insert -, together with interest accrued to
the date fixed for redemption,] if (i), as a result of any
amendment to, or change in, the laws or regulations of the
United States or any political subdivision or taxing authority
<PAGE>
B-11
thereof or therein affecting taxation, or any amendment to or
change in an official interpretation or application of such
laws or regulations, which amendment or change ("Tax Law
Change") is effective on or after .........., ...., the Company
has or will become obligated to pay additional amounts (as
described on the face hereof) [If the Security is
interest-bearing, insert - on the next succeeding Interest Pay-
ment Date] [If the Security is not to bear interest prior to
Maturity, insert - at Maturity or upon the sale or exchange of
any Security] at the time such notice is given, such obligation
to pay such additional amounts remains in effect or (ii) in the
written opinion of independent counsel selected by the Company
there is a substantial likelihood that the Company has or will
become obligated to pay such additional amounts as a result of
any action taken by any taxing authority or of any action
brought in a court of competent jurisdiction in the United
States or any political subdivision thereof or therein, includ-
ing any of the actions described in (i) above, whether or not
such action has been taken or brought with respect to the Com-
pany, or as a result of any officially proposed Tax Law Change,
which action or proposed change occurs after ............
[If applicable, insert - In addition, if the Company
determines, based upon a written opinion of independent counsel
selected by the Company, that any payment made outside the
United States by the Company or any of its Paying Agents of the
full amount of principal [(, premium, if any)] or interest due
with respect to any Bearer Security or coupon would, under any
present or future laws or regulations of the United States, be
subject to any certification, identification or other reporting
requirement of any kind, the effect of which requirement is the
disclosure to the Company, any Paying Agent or any governmental
authority of the nationality, residence or identity of a bene-
ficial owner of such Bearer Security or coupon who is a United
States Alien (as defined on the face hereof) (other than such a
requirement (a) which would not be applicable to a payment made
by the Company or any one of its Paying Agents (i) directly to
the beneficial owner, or (ii) to any custodian, nominee or
other agent of the beneficial owner, or (b) which can be satis-
fied by the custodian, nominee or other agent certifying that
the beneficial owner is a United States Alien, provided in each
case referred to in clauses (a)(ii) and (b) that payment by
such custodian, nominee or other agent of such beneficial owner
is not otherwise subject to any such requirement), the Company
at its election will either (x) redeem the Securities, as a
whole but not in part, at a Redemption Price [equal to 100% of
their principal amount,] [determined as set forth in the next
<PAGE>
B-12
preceding paragraph,] together with interest accrued to the
date fixed for redemption, or (y) if and so long as the condi-
tions of the [third] paragraph on the face of this Security are
satisfied, pay the additional amounts specified in such para-
graph. The Company will make such determination and election
and notify the Trustee thereof as soon as practicable, and the
Trustee will promptly give notice of such determination in the
manner provided below (the "Determination Notice"), in each
case stating the effective date of such certification, identi-
fication or other reporting requirement, whether the Company
will redeem the Securities or will pay the additional amounts
specified in such paragraph and (if applicable) the last day by
which the redemption of the Securities must take place. If the
Company elects to redeem the Securities, such redemption shall
take place on such date, not later than one year after publica-
tion of the Determination Notice, as the Company elects by
notice to the Trustee at least 60 days before such date, unless
shorter notice is acceptable to the Trustee. Notwithstanding
the foregoing, the Company will not so redeem the Securities if
the Company, based upon an opinion of independent counsel
selected by the Company, subsequently determines, not less than
10 days prior to the date fixed for redemption, that subsequent
payments would not be subject to any such requirement, in which
case the Company will notify the Trustee, which will promptly
give notice of that determination in the manner provided below,
and any earlier redemption notice will thereupon be revoked and
of no further effect. If the Company elects as provided in
clause (y) above to pay such additional amounts, the Company
may subsequently redeem the Securities, at any time, as a whole
or in part, at a Redemption Price [equal to 100% of their prin-
cipal amount] [determined as set forth in the next preceding
paragraph,] together with interest accrued to the date fixed
for redemption, but without reduction for applicable United
States withholding taxes.]
[If applicable, insert - In addition, if the Company
determines, based upon a written opinion of independent counsel
selected by the Company, that any payment made outside the
United States by the Company or any of its Paying Agents of the
full amount due with respect to any Bearer Security would,
under any present or future laws or regulations of the United
States, be subject to any certification, identification or
other reporting requirement of any kind, the effect of which
requirement is the disclosure to the Company, any Paying Agent
or any governmental authority of the nationality, residence or
identity of a beneficial owner of such Bearer Security who is a
United States Alien (as defined on the face hereof) (other than
<PAGE>
B-13
such a requirement (a) which would not be applicable to a pay-
ment made by the Company or any one of its Paying Agents (i)
directly to the beneficial owner or (ii) to any custodian, nom-
inee or other agent of the beneficial owner, or (b) which can
be satisfied by the custodian, nominee or other agent certify-
ing to the effect that such beneficial owner is a United States
Alien, provided in each case referred to in clauses (a)(ii) and
(b) that payment by such custodian, nominee or other agent of
such beneficial owner is not otherwise subject to any such
requirement), the Company at its election will either (x) per-
mit any Holder of a Bearer Security to present such Bearer
Security for redemption within 90 days of notice of such
redemption, at a Redemption Price determined as set forth in
the next preceding paragraph, or (y) if and so long as the con-
ditions of the [fifth] paragraph on the face of this Security
are satisfied, pay the additional amounts specified in such
paragraph. The Company will make such determination and elec-
tion and notify the Trustee thereof as soon as practicable, and
the Trustee will promptly give notice of such determination in
the manner provided below (the "Determination Notice"), in each
case stating the effective date of such certification, identi-
fication or other reporting requirement, whether the Company
has elected to permit redemption of the Bearer Securities or to
pay the additional amounts specified in such paragraph and (if
applicable) the last day by which the Company may publish any
notice of redemption. If the Company elects to permit redemp-
tion of the Bearer Securities, notice of the redemption will be
given not more than 268 days following the Determination Notice
and will specify the date fixed for redemption. The Bearer
Securities will be redeemed on the day 97 days after notice of
the redemption has been given. Notwithstanding the foregoing,
the Company will not permit redemption of the Bearer Securities
if the Company, based upon an opinion of independent counsel,
subsequently determines, not less than 10 days prior to the
date fixed for redemption, that no payment would be subject to
any such requirement, in which case the Company will promptly
notify the Trustee, which will promptly give notice of that
determination in the manner described below, and any earlier
redemption notice will thereupon be revoked and of no further
effect.]
[The sinking fund for this series provides for the
redemption on ................. in each year, beginning with
the year ........ and ending with the year ........, of [not
less than] [U.S.] $......... [("mandatory sinking fund") and
not more than [U.S. $.........]] aggregate principal amount of
Securities of this series. [Securities of this series acquired
<PAGE>
B-14
or redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent [man-
datory] sinking fund payments otherwise required to be made --
in the inverse order in which they become due.]]
[Notice of redemption will be given by publication in
an Authorized Newspaper in The City of New York and, if the
Securities of this series are then listed on [The International
Stock Exchange of the United Kingdom and the Republic of Ire-
land Limited] [the Luxembourg Stock Exchange] [or] any [other]
stock exchange located outside the United States and such stock
exchange shall so require, in [London] [Luxembourg] [or] in any
[other] required city outside the United States, or, if not
practicable, elsewhere in Europe, [and by mail to Holders of
Registered Securities] not less than 30 nor more than 60 days
prior to the date fixed for redemption, all as provided in the
Indenture.]
If an Event of Default with respect to Securities of
this series shall occur and be continuing, [the] [If an Origi-
nal Issue Discount Security, insert - an amount of] principal
of the Securities of the series may be declared due and payable
in the manner and with the effect provided in the Indenture
[the] [If an Original Issue Discount Security, insert - such
amount shall be equal to - insert formula for determining the
amount. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to the extent that
the payment of such interest shall be legally enforceable), all
of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this
series shall terminate.]
The Indenture permits with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected [If
the Securities of the series are interest-bearing, insert - and
any related coupons] under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time Out-
standing of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified per-
centages in principal amount of the Securities of each series
at the time Outstanding (with each series voting as a separate
class in certain cases specified in the Indenture, or with all
series voting as one class, in certain other cases specified in
<PAGE>
B-15
the Indenture), on behalf of the Holders of all Securities of
such series [If the Securities of the series are interest-bear-
ing, insert - and any related coupons], to waive compliance by
the Company with certain provisions of the Indenture and cer-
tain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future
Holders of this Security and any coupon appertaining hereto and
of any Security issued in exchange hereof or in lieu hereof,
whether or not notation of such consent or waiver is made upon
this Security.
As set forth in, and subject to, the provisions of
the Indenture, no Holder of any Security of this series [If the
Security is interest-bearing, insert - or any related coupon]
will have any right to institute any proceeding with respect to
the Indenture or for any remedy thereunder, unless such Holder
shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to this series, the
Holders of not less than 25% in principal amount of the Out-
standing Securities of this series shall have made written
request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not
have received from the Holders of a majority in principal
amount of the Outstanding Securities of this series a direction
inconsistent with such request and shall have failed to insti-
tute such proceeding within 60 days; provided, however, that
such limitations do not apply to a suit instituted by the
Holder hereof [If the Security in interest-bearing, insert - or
any related coupon] for the enforcement of payment for the
principal of [(and premium, if any)] or [any] interest on this
Security [If the Security is interest-bearing, insert - or pay-
ment of such coupon] on or after the respective due dates
expressed herein [If the Security is interest-bearing, insert -
or payment of such coupon] on or after the respective due dates
expressed herein [If the Security is interest-bearing, insert -
or in such coupon].
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of [(and premium, if any)] and [any]
interest [(including additional amounts, as described on the
face hereof)] on this Security at the times, place[s] and rate,
and in the coin or currency, herein prescribed.
<PAGE>
B-16
Title to [Bearer] Securities and coupons shall pass
by delivery. [As provided in the Indenture and subject to cer-
tain limitations therein set forth, the transfer of Registered
Securities is registrable in the Security Register, upon sur-
render of a Registered Security for registration of transfer at
the [Corporate Trust Office of the Trustee or such other]
office or agency of the Company in any place where the princi-
pal of (premium, if any) and interest, if any, on such Security
are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and
the Security Registrar duly executed by, the Holder thereof or
his attorney duly authorized in writing, and thereupon one or
more new [Registered] Securities of this series and of like
tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee
or transferees.]
[No service charge shall be made for any such [regis-
tration of transfer or] exchange, but the Company may require
payment of a sum sufficient to cover any tax or other govern-
mental charge payable in connection therewith.]
The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of a Bearer Security or any
series [If the Securities of the series are interest-bearing,
insert - and any coupon appertaining thereto] [, and prior to
due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security
is registered,] as the owner thereof for all purposes, whether
or not such Security [If the Securities of the series are
interest-bearing, insert - or such coupon] is overdue, and nei-
ther the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
Notwithstanding anything in the Indenture or in the
terms of this Security to the contrary, the exchange of this
Security for a Registered Security will be subject to satisfac-
tion of the provisions of the United States tax laws in effect
at the time of the exchange. Neither the Company nor the Trus-
tee nor any agent of the Company or the Trustee shall be
required to exchange this Security for a Registered Security if
(i) as a result thereof and in the Company's judgment, the Com-
pany would incur adverse consequences under then applicable
United States Federal income tax laws and (ii) in the case of
the Trustee or any agent of the Company or the Trustee, the
Company shall have delivered to such Person an Officers'
<PAGE>
B-17
Certificate and an Opinion of Counsel as to the matters set
forth in clause (i) above.
The Indenture, the Securities and any coupons apper-
taining thereto shall be governed by and construed in accor-
dance with the laws of the State of New York without giving
effect to the conflicts of laws provisions thereof. All terms
used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
<PAGE>
B-18
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION
WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES
INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN
SECTION 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED.
[R-]...............
AVNET, INC. [U.S. $]...........
Due................
..............................
Unless the Security to which this coupon appertains
shall have been called for previous redemption and payment
thereof duly provided for on the date set forth hereon, AVNET,
INC. (herein called the "Company") will pay to bearer, upon
surrender hereof, the amount shown hereon (together with any
additional amounts in respect thereof which the Company may be
required to pay according to the terms of said Security and the
Indenture referred to therein) [at the initial Paying Agents
set out on the reverse hereof or at such other offices or agen-
cies (which, except as otherwise provided in the Security to
which this coupon appertains, shall be located outside the
United States of America (including the States and the District
of Columbia), its territories, its possessions and other areas
subject to its jurisdiction (the "United States")) as the Com-
pany may designate from time to time,] at the option of the
Holder, by [United States dollar check] drawn on a bank in The
City of New York or by transfer of [United States dollars] to
an account maintained by the payee with a bank located outside
the United States, being [one year's] interest then payable on
said Security.
AVNET, INC.
By ..............................
<PAGE>
B-19
[Reverse of Coupon]*
.................................
.................................
.................................
.................................
.................................
____________________
* Insert names and addresses of Initial Paying Agents
located outside the United States.
<PAGE>
C-1-1
EXHIBIT C-1
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY]
[Whenever any provision of this Indenture or the
forms of Security contemplates that certification be given
by a Person entitled to receive a Bearer Security, such
certification shall be provided substantially in the form
of the following certificate, with only such changes as
shall be approved by the Company:]
CERTIFICATE
.............
[Insert title or sufficient description
of Securities to be delivered]
[This is to certify that as of the date hereof, and
except as set forth below, the above-captioned Securities
held by you for our account (i) are owned by person(s)
that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or other
entities created or organized in or under the laws of the
United States or any political subdivision thereof, or any
estate or trust the income of which is subject to United
States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United
States person(s) that are (a) foreign branches of United
States financial institutions (financial institutions as
defined in United States Treasury Regulations section
1.165-12(c)(1)(v), are herein referred to as "financial
institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States
financial institutions and who hold the Securities through
such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United
States financial institution hereby agrees, on its own
behalf or through its agent, that you may advise Avnet,
Inc. or its agent that such financial institution will
comply with the requirements of section 165(j)(3)(A), (B)
or (C) of the United States Internal Revenue Code of 1986,
<PAGE>
C-1-2
as amended, and the regulations thereunder), or (iii) are
owned by United States or foreign financial institution(s)
for purposes of resale during the restricted period (as
defined in United States Treasury Regulations section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is
a United States or foreign financial institution described
in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United
States person or to a person within the United States or
its possessions.
As used herein, "United States" means the United
States of America (including the States and the District
of Columbia); and its "possessions" including Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex
if the above statement as to beneficial ownership is not
correct on the date of delivery of the above-captioned
Securities in bearer form as to all of such Securities.
If the undersigned is a dealer, the undersigned
agrees to obtain a similar certificate from each person
entitled to delivery of any of the above-captioned Securi-
ties in bearer form purchased from it; provided, however,
that, if the undersigned has actual knowledge (as defined
in applicable Internal Revenue Service regulations) that
the information contained in such a certificate is false,
the undersigned will not deliver a Security in temporary
or definitive bearer form to a person who signed such cer-
tificate notwithstanding the delivery of such certificate
to the undersigned.
This certificate excepts and does not relate to
$________ of such interest in the above-captioned Securi-
ties in respect of which we are not able to certify and as
to which we understand an exchange for and delivery of
definitive Securities (or, if relevant, collection of any
payment) cannot be made until we do so certify.
We understand that this certificate may be required
in connection with certain tax laws of the United States.
If administrative or legal proceedings are commenced or
threatened
<PAGE>
C-1-3
in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in
such proceedings.]
Dated: ___________________, 19__
[To be dated no earlier
than the 15th day prior
to the Exchange Date or
prior to the date of the
[ ] certificate, if later]
[Name of Person Making Certification]
_____________________________________
(Authorized Signatory)
Name:
Title:
<PAGE>
C-2-1
Exhibit C-2
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR
OR CEDEL S.A.
IN CONNECTION WITH THE EXCHANGE OF A PORTION
OF A TEMPORARY GLOBAL SECURITY
Whenever any provision of this Indenture or the forms
of Security contemplates that certification be given by
Euro-clear or CEDEL S.A. in connection with the exchange
of a portion of a temporary global Security, such certifi-
cation shall be provided substantially in the form of the
following certificate, with only such changes as shall be
approved by the Company:]
CERTIFICATE
.............
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that based solely on written cer-
tifications that we have received in writing, by tested
telex or by electronic transmission from each of the per-
sons appearing in our records as persons entitled to a
portion of the Principal Amount at Maturity set forth
below (our "Member Organizations") substantially in the
form attached hereto, as of the date hereof $__________
Principal Amount at Maturity of the above-captioned Secu-
rities (i) is owned by person(s) that are not citizens or
residents of the United States, domestic partnerships,
domestic corporations or other entities created or orga-
nized in or under the laws of the United States or any
political subdivision thereof, or any estate or trust the
income of which is subject to United States federal income
taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that
are (a) foreign branches of United States financial insti-
tutions (financial institutions, as defined in U.S. Trea-
sury Regulations section 1.165-12(c)(1)(v), are herein
referred to as "financial institutions") purchasing for
<PAGE>
C-2-2
their own account or for resale, or (b) United States
person(s) who acquired the Securities through foreign
branches of United States financial institutions and who
hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or
(b), each such financial institution has agreed on its own
behalf or through its agent that we may advise Avnet, Inc.
or its agent that such financial institution will comply
with the requirements of section 165(j)(3)(A), (B) or (C)
of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in United
States Treasury Regulations section 1.163-5(c)(2)(i)(D)(7)
and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes or resale
directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United
States of America (including the States and the District
of Columbia); and its "possessions' including Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making avail-
able herewith for exchange (or, if relevant, collection of
any amounts) any portion of the temporary global Security
representing the above-captioned Securities excepted in
the above-referenced certificates of Member Organizations
and (ii) as of the date hereof we have not received any
notification from any of our Member Organizations to the
effect that the statements made by such Member Organiza-
tions with respect to any portion of the part submitted
herewith for exchange (or, if relevant, collection of any
amounts) are no longer true and cannot be relied upon as
of the date hereof.
We understand that this certification is required in
connection with certain tax laws of the United States. If
administrative or legal proceedings are commenced or
threatened in connection with which this certificate is or
would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party
in such proceedings.
<PAGE>
C-2-3
Dated: __________, 19__
[Certification may be dated
no earlier than the Exchange
Date.]
[ , as
Operator of the Euro-clear system]
[CEDEL S.A.]
By_________________________________
<PAGE>
C-3-1
Exhibit C-3
[FORM OF CERTIFICATE TO BE GIVEN BY
EURO-CLEAR AND CEDEL S.A.
TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
Whenever any provision of this Indenture or the forms
of Security contemplates that certification be given by
Euro-clear or CEDEL S.A. to obtain interest prior to an
Exchange Date, such certification shall be provided sub-
stantially in the form of the following certificate, with
only such changes as shall be approved by the Company:]
CERTIFICATE
_______________________
[Insert title or sufficient description of Securities]
This is to certify that based solely on written cer-
tifications that we have received in writing, by tested
telex or by electronic transmission from each of the per-
sons appearing in our records as persons entitled to a
portion of the Principal Amount at Maturity set forth
below (our "Member Organizations") substantially in the
form attached hereto, as of the date hereof $__________
Principal Amount at Maturity of the above-captioned Secu-
rities (i) is owned by person(s) that are not citizens or
residents of the United States, domestic partnerships,
domestic corporations or other entities created or orga-
nized in or under the laws of the Untied States or any
political subdivision thereof, or any estate or trust the
income of which is subject to United States federal income
taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that
are (a) foreign branches of United States financial insti-
tutions (financial institutions, as defined in U.S. Trea-
sury Regulations section 1.165-12(c)(1)(v), are herein
referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States
person(s) who acquired the Securities through foreign
branches of United States financial institutions and who
hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or
<PAGE>
C-3-2
(b), each such financial institution has agreed, on its
own behalf or through its agent, that we may advise Avnet,
Inc. or its agent that such financial institution will
comply with the requirements of section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of 1986, as amended,
and the regulations thereunder), or (iii) is owned by
United States or foreign financial institution(s) for pur-
poses of resale during the restricted period (as defined
in United States Treasury Regulations section 1.163-
5(c)(2)(i)(D)(7)) and, to the further effect, that finan-
cial institutions described in clause (iii) above (whether
or not also described in clause (i) or (ii)) have certi-
fied that they have not acquired the Securities for pur-
poses of resale directly or indirectly to a United States
person or to a person within the United States or its
possessions.
As used herein, "United States" means the United
States of America (including the States and the District
of Columbia); and its "possessions" include Puerto Rico,
the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We understand that this certification is required in
connection with certain tax laws of the United States. If
administrative or legal proceedings are commenced or
threatened in connection with which this certificate is or
would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party
in such proceedings.
<PAGE>
C-3-3
We undertake that any interest received by us and not
paid to a person described in clauses (i) through (iii)
above shall be returned to the Trustee for the above Secu-
rities immediately prior to the expiration of two years
after such Interest Payment Date in order to be repaid by
such Trustee to the above issuer at the end of two years
after such Interest Payment Date.
Dated: _______________
[To be dated on or after
the relevant Interest
Payment Date]
[ ,
as Operator of the Euro-clear
System]
[CEDEL S.A.]
By: ____________________________
<PAGE>
C-4-1
Exhibit C-4
[FORM OF CERTIFICATION BY BENEFICIAL OWNERS TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE
Whenever any provision of this Indenture or the forms
of Security contemplates that certification be given by a Per-
son who beneficially owns any [Bearer] Security in connection
with obtaining any interest prior to an Exchange Date relating
to such Bearer Security, such certification shall be provided
substantially in the form of the following certificate, with
only such changes as shall be approved by the Company:]
CERTIFICATE
_______________________
[Insert title or sufficient description of Securities]
This is to certify that as of the date hereof, and
except as set forth below, the above-captioned Securities held
by you for our account (i) are owned by person(s) that are not
citizens or residents of the United States, domestic partner-
ships, domestic corporations or other entities created or orga-
nized in or under the laws of the United States or any politi-
cal subdivision thereof, or any estate or trust the income of
which is subject to United States federal income taxation
regardless of its source ("United States person(s)"), (ii) are
owned by United States person(s) that are (a) foreign branches
of United States financial institutions (financial institu-
tions, as defined in United States Treasury Regulations sec-
tion 1.165-12(c)(1)(v), are herein referred to as "financial
institutions") purchasing for their own account or for resale,
or (b) United States person(s) who acquired the Securities
through foreign branches of United States financial institu-
tions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution
hereby agrees, on its own behalf or through its agent, that you
may advise Avnet, Inc. or its agent that such financial insti-
tution will comply with the requirements of Section 165(j)
(3)(A), (B) or (C) of the United States Internal Revenue Code
of 1986, as amended, and the regulations thereunder) or
(iii) are owned by United States or foreign financial
<PAGE>
C-4-2
institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations sec-
tion 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is
a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i)
or (ii)), this is to further certify that such financial insti-
tution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person
within the United States or its possessions.
As used herein, "United States person" means any
citizen or resident of the United States, any corporation,
partnership or other entity created or organized in or under
the laws of the United States and any estate or trust the
income of which is subject to United States Federal income
taxation regardless of its source, and "United States" means
the United States of America (including the States and the Dis-
trict of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
This certificate excepts and does not relate to [U.S.
$__________] principal amount of the above-captioned Securities
appearing in your books as being held for our account as to
which we were not yet able to certify and as to which we under-
stand interest cannot be credited unless and until we are able
so to certify.
We understand that this certificate may be required
in connection with certain securities and tax legislation in
the United States. If administrative or legal proceedings are
commenced or threatened in connection with which this certifi-
cate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested
party in such proceedings.
Dated: _______________
[To be dated on or after
the relevant Payment Date]
[Name of Person Entitled to
Receive Interest]
_________________________________
(Authorized Signatory)
Name:
Title:
<PAGE>
EXHIBIT 5
<PAGE>
Avnet, Inc.
80 Cutter Mill Road
Great Neck, New York 11021
January 5, 1994
Avnet, Inc.
80 Cutter Mill Road
Great Neck, New York 11021
Re: Registration Statement on Form S-3
Gentlemen:
I refer to the Registration Statement on Form S-3 (the
"Registration Statement") to be filed by Avnet, Inc. (the "Compa-
ny") with the Securities and Exchange Commission in connection
with the registration under the Securities Act of 1933, as
amended, of $200,000,000 maximum aggregate principal amount of
the Company's debt securities to be issued from time to time in
one or more public offerings (the "Debt Securities").
I have examined and am familiar with originals, or
copies the authenticity of which has been established to my
satisfaction, of such documents and instruments as I have deemed
necessary to express the opinions hereinafter set forth. Based
upon the foregoing, it is my opinion that the Debt Securities,
when issued or delivered in the manner provided for in the form
of Underwriting Agreement filed as an exhibit to the Registration
Statement, will be legally issued and the binding obligations of
the Company.
I consent to the use of this opinion as Exhibit 5 to
the Registration Statement and to the reference to me under the
caption "Legal Matters" in the prospectus constituting Part I
thereof.
Very truly yours,
/s/David R. Birk
David R. Birk
Senior Vice President and
General Counsel
<PAGE>
EXHIBIT 12
<PAGE>
EXHIBIT 12
<TABLE>
Avnet, Inc.
Computation of Ratio of Earnings to Fixed Charges
(Dollar amounts in thousands)
<CAPTION>
Three
months
ended Year ended June 30,
Oct. 1,
1993 1993 1992 1991 1990 1989
<S> <C> <C> <C> <C> <C> <C>
Income from continuing
operations before
income taxes per $19,824 $114,183 $ 83,426 $100,029 $ 98,732 $ 87,245
statement of income
Add fixed charges 4,786 14,901 18,523 19,184 22,161 24,197
Income as adjusted $24,610 $129,084 $101,949 $119,213 $120,893 $111,442
Fixed charges:
Interest on
indebtedness $3,201 $8,972 $13,404 $13,295 $15,285 $16,440
Amortization of
debt expense 31 66 92 97 92 100
Rents:
Portion of rents
representative
of the interest
factor 1,554 5,863 5,027 5,792 6,784 7,657
Total fixed charges $4,786 $14,901 $18,523 $19,184 $22,161 $24,197
Ratio of earnings to
fixed charges 5.1 8.7 5.5 6.2 5.5 4.6
<FN>
Notes:
The interest factor of rental expense is estimated at one-third of total rental
expense, which the Company believes be a reasonable approximation.
Income from continuing operations before income taxes for the three months ended
October 1, 1993, includes restructuring and integration charges of $22.7 million
in connection with the acquisition of Hall-Mark. Had such one-time charges not been included
the ratio of earnings to fixed charges for the three months ended October 1, 1993, would have
been 9.9 on a pro forma basis.
</FN>
</TABLE>
<PAGE>
EXHIBIT 23(a)
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to
the incorporation by reference in this Registration Statement of
our report dated August 10, 1993, included in Avnet, Inc.'s
Annual Report on Form 10-K for the year ended June 30, 1993, and
to all references to our firm included in this Registration
Statement.
ARTHUR ANDERSEN & CO.
New York, New York
January 6, 1994
<PAGE>
EXHIBIT 23(b)
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement of Avnet, Inc. on Form S-3 of our report dated February
15, 1993, on our audits of the consolidated financial statements
of Hall-Mark Electronics Corporation. Such report appears in the
Current Report on Form 8-K of Avnet, Inc. bearing cover date of
January 6, 1994. We also consent to the reference to our firm
under the caption "Experts" in the said registration statement.
COOPERS & LYBRAND
Dallas, Texas
January 6, 1994
<PAGE>
EXHIBIT 24
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and
appoint David R. Birk and Raymond Sadowski, and each of them, his
attorneys-in-fact and agents with full power of substitution, to
execute for him and in his behalf in any and all capacities a
Registration Statement on Form S-3, any amendments thereto
(including post-effective amendments), and any other documents
incidental thereto, relating to up to $200,000,000 of debt
securities of Avnet, Inc. (the "Company") which may be offered
and sold from time to time, and to file the same, with all
exhibits thereto and all other required documents, with the
Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection with the
said filings, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof. This power of attorney expires ninety (90) days
after the date hereof.
IN WITNESS WHEREOF, the undersigned has executed this
power of attorney this 17th day of November, 1993.
/s/Leon Machiz
Leon Machiz
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and
appoint David R. Birk and Raymond Sadowski, and each of them, his
attorneys-in-fact and agents with full power of substitution, to
execute for him and in his behalf in any and all capacities a
Registration Statement on Form S-3, any amendments thereto
(including post-effective amendments), and any other documents
incidental thereto, relating to up to $200,000,000 of debt
securities of Avnet, Inc. (the "Company") which may be offered
and sold from time to time, and to file the same, with all
exhibits thereto and all other required documents, with the
Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection with the
said filings, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof. This power of attorney expires ninety (90) days
after the date hereof.
IN WITNESS WHEREOF, the undersigned has executed this
power of attorney this 17th day of November, 1993.
/s/Gerald J. Berkman
Gerald J. Berkman
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and
appoint David R. Birk and Raymond Sadowski, and each of them, his
attorneys-in-fact and agents with full power of substitution, to
execute for him and in his behalf in any and all capacities a
Registration Statement on Form S-3, any amendments thereto
(including post-effective amendments), and any other documents
incidental thereto, relating to up to $200,000,000 of debt
securities of Avnet, Inc. (the "Company") which may be offered
and sold from time to time, and to file the same, with all
exhibits thereto and all other required documents, with the
Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection with the
said filings, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof. This power of attorney expires ninety (90) days
after the date hereof.
IN WITNESS WHEREOF, the undersigned has executed this
power of attorney this 17th day of November, 1993.
/s/Joseph F. Caligiuri
Joseph F. Caligiuri
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and
appoint David R. Birk and Raymond Sadowski, and each of them, his
attorneys-in-fact and agents with full power of substitution, to
execute for him and in his behalf in any and all capacities a
Registration Statement on Form S-3, any amendments thereto
(including post-effective amendments), and any other documents
incidental thereto, relating to up to $200,000,000 of debt
securities of Avnet, Inc. (the "Company") which may be offered
and sold from time to time, and to file the same, with all
exhibits thereto and all other required documents, with the
Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection with the
said filings, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
This power expires ninety (90) days from the date
hereof.
IN WITNESS WHEREOF, the undersigned has executed this
power of attorney this 17th day of November, 1993.
/s/Alvin E. Friedman
Alvin E. Friedman
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and
appoint David R. Birk and Raymond Sadowski, and each of them, his
attorneys-in-fact and agents with full power of substitution, to
execute for him and in his behalf in any and all capacities a
Registration Statement on Form S-3, any amendments thereto
(including post-effective amendments), and any other documents
incidental thereto, relating to up to $200,000,000 of debt
securities of Avnet, Inc. (the "Company") which may be offered
and sold from time to time, and to file the same, with all
exhibits thereto and all other required documents, with the
Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection with the
said filings, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
This power of attorney expires ninety (90) days after
the date hereof.
IN WITNESS WHEREOF, the undersigned has executed this
power of attorney this 17th day of November, 1993.
/s/Sylvester D. Herlihy
Sylvester D. Herlihy
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and
appoint David R. Birk and Raymond Sadowski, and each of them, his
attorneys-in-fact and agents with full power of substitution, to
execute for him and in his behalf in any and all capacities a
Registration Statement on Form S-3, any amendments thereto
(including post-effective amendments), and any other documents
incidental thereto, relating to up to $200,000,000 of debt
securities of Avnet, Inc. (the "Company") which may be offered
and sold from time to time, and to file the same, with all
exhibits thereto and all other required documents, with the
Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection with the
said filings, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof. This power of attorney expires ninety (90) days
after the date hereof.
IN WITNESS WHEREOF, the undersigned has executed this
power of attorney this 17th day of November, 1993.
/s/Ehud Houminer
Ehud Houminer
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and
appoint David R. Birk and Raymond Sadowski, and each of them, his
attorneys-in-fact and agents with full power of substitution, to
execute for him and in his behalf in any and all capacities a
Registration Statement on Form S-3, any amendments thereto
(including post-effective amendments), and any other documents
incidental thereto, relating to up to $200,000,000 of debt
securities of Avnet, Inc. (the "Company") which may be offered
and sold from time to time, and to file the same, with all
exhibits thereto and all other required documents, with the
Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection with the
said filings, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof. This power of attorney expires ninety (90) days
after the date hereof.
IN WITNESS WHEREOF, the undersigned has executed this
power of attorney this 17th day of November, 1993.
/s/Salvatore J. Nuzzo
Salvatore J. Nuzzo
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and
appoint David R. Birk and Raymond Sadowski, and each of them, his
attorneys-in-fact and agents with full power of substitution, to
execute for him and in his behalf in any and all capacities a
Registration Statement on Form S-3, any amendments thereto
(including post-effective amendments), and any other documents
incidental thereto, relating to up to $200,000,000 of debt
securities of Avnet, Inc. (the "Company") which may be offered
and sold from time to time, and to file the same, with all
exhibits thereto and all other required documents, with the
Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection with the
said filings, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
This power expires ninety (90) days from the date
hereof.
IN WITNESS WHEREOF, the undersigned has executed this
power of attorney this 17th day of November, 1993.
/s/Frederic Salerno
Frederic Salerno
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and
appoint David R. Birk and Raymond Sadowski, and each of them, his
attorneys-in-fact and agents with full power of substitution, to
execute for him and in his behalf in any and all capacities a
Registration Statement on Form S-3, any amendments thereto
(including post-effective amendments), and any other documents
incidental thereto, relating to up to $200,000,000 of debt
securities of Avnet, Inc. (the "Company") which may be offered
and sold from time to time, and to file the same, with all
exhibits thereto and all other required documents, with the
Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection with the
said filings, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
This power expires ninety (90) days after the date
hereof.
IN WITNESS WHEREOF, the undersigned has executed this
power of attorney this 17th day of November, 1993.
/s/David Shaw
David Shaw
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and
appoint David R. Birk and Raymond Sadowski, and each of them, his
attorneys-in-fact and agents with full power of substitution, to
execute for him and in his behalf in any and all capacities a
Registration Statement on Form S-3, any amendments thereto
(including post-effective amendments), and any other documents
incidental thereto, relating to up to $200,000,000 of debt
securities of Avnet, Inc. (the "Company") which may be offered
and sold from time to time, and to file the same, with all
exhibits thereto and all other required documents, with the
Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection with the
said filings, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
This power of attorney expires ninety (90) days from
the date hereof.
IN WITNESS WHEREOF, the undersigned has executed this
power of attorney this 17th day of November, 1993.
/s/Howard Stein
Howard Stein
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and
appoint David R. Birk and Raymond Sadowski, and each of them, his
attorneys-in-fact and agents with full power of substitution, to
execute for him and in his behalf in any and all capacities a
Registration Statement on Form S-3, any amendments thereto
(including post-effective amendments), and any other documents
incidental thereto, relating to up to $200,000,000 of debt
securities of Avnet, Inc. (the "Company") which may be offered
and sold from time to time, and to file the same, with all
exhibits thereto and all other required documents, with the
Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection with the
said filings, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
This power expires ninety (90) days from the date
hereof.
IN WITNESS WHEREOF, the undersigned has executed this
power of attorney this 17th day of November, 1993.
/s/Roy Vallee
Roy Vallee
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and
appoint David R. Birk and Raymond Sadowski, and each of them, his
attorneys-in-fact and agents with full power of substitution, to
execute for him and in his behalf in any and all capacities a
Registration Statement on Form S-3, any amendments thereto
(including post-effective amendments), and any other documents
incidental thereto, relating to up to $200,000,000 of debt
securities of Avnet, Inc. (the "Company") which may be offered
and sold from time to time, and to file the same, with all
exhibits thereto and all other required documents, with the
Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection with the
said filings, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
This power expires ninety (90) days from the date
hereof.
IN WITNESS WHEREOF, the undersigned has executed this
power of attorney this 17th day of November, 1993.
/s/J. S. Webb
J. S. Webb
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and
appoint David R. Birk and Raymond Sadowski, and each of them, his
attorneys-in-fact and agents with full power of substitution, to
execute for him and in his behalf in any and all capacities a
Registration Statement on Form S-3, any amendments thereto
(including post-effective amendments), and any other documents
incidental thereto, relating to up to $200,000,000 of debt
securities of Avnet, Inc. (the "Company") which may be offered
and sold from time to time, and to file the same, with all
exhibits thereto and all other required documents, with the
Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection with the
said filings, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
This power expires ninety (90) days from the date
hereof.
IN WITNESS WHEREOF, the undersigned has executed this
power of attorney this 17th day of November, 1993.
/s/George Weissman
George Weissman
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and
appoint David R. Birk and Raymond Sadowski, and each of them, his
attorneys-in-fact and agents with full power of substitution, to
execute for him and in his behalf in any and all capacities a
Registration Statement on Form S-3, any amendments thereto
(including post-effective amendments), and any other documents
incidental thereto, relating to up to $200,000,000 of debt
securities of Avnet, Inc. (the "Company") which may be offered
and sold from time to time, and to file the same, with all
exhibits thereto and all other required documents, with the
Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection with the
said filings, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
This power expires ninety (90) days from the date
hereof.
IN WITNESS WHEREOF, the undersigned has executed this
power of attorney this 17th day of November, 1993.
/s/Frederick S. Wood
Frederick S. Wood
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
The undersigned does hereby make, constitute and
appoint David R. Birk and John Cole, and each of them, his
attorneys-in-fact and agents with full power of substitution, to
execute for him and in his behalf in any and all capacities a
Registration Statement on Form S-3, any amendments thereto
(including post-effective amendments), and any other documents
incidental thereto, relating to up to $200,000,000 of debt
securities of Avnet, Inc. (the "Company") which may be offered
and sold from time to time, and to file the same, with all
exhibits thereto and all other required documents, with the
Securities and Exchange Commission. The undersigned further
grants unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection with the
said filings, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents and/or any of them or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this
power of attorney this 14th day of December, 1993.
/s/Raymond Sadowski
Raymond Sadowski
<PAGE>
EXHIBIT 25
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
AVNET, INC.
(Exact name of obligor as specified in its charter)
New York 11-1890605
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
80 Cutter Mill Road
Great Neck, New York 11021
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
<PAGE>
Item 1. General Information. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act
of 1939, as amended, the trustee, The First National
Bank of Chicago,, a national banking association orga-
nized and existing under the laws of the United States
of America, has duly caused this Statement of Eligibil-
ity to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Chicago
and State of Illinois,on the 20th day of December,
1993.
The First National Bank of Chicago,
Trustee,
By R. D. Manella
R. D. Manella
Vice President
*Exhibits 1, 2, 3, and 4 are herein incorporated by
reference to Exhibits bearing identical numbers in Item
12 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 26(b) to the Registration
Statement on Form S-3 of Dow Capital B.V. and The Dow
Chemical Company, filed with the Securities and Ex-
change Commission on June 3, 1991 (Registration No. 33-
36314).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
December 20, 1993
Securities and Exchange Commission,
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between
Avnet Inc. and The First National Bank of Chicago, the under-
signed, in accordance with Section 321(b) of the Trust Indenture
Act of 1939, as amended, hereby consents that the reports of
examinations of the undersigned, made by Federal or State author-
ities authorized to make such examinations, may be furnished by
such authorities to the Securities and Exchange Commission upon
its request therefore.
Very truly yours,
The First National Bank of
Chicago
By R.D. Manella
R. D. Manella
Vice President
<PAGE>
EXHIBIT 7
A copy of the latest report of conditions of the
trustee published pursuant to law or the requirements of its
supervising or examining authority.
<PAGE>
<TABLE>
Legal Title of Bank: First National Bank of Chicago Call Date: 9/30/93 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1993
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount
outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
<CAPTION>
Dollar Amounts RCFD C400 <-
in Thousands BIL MIL THOU
ASSETS
<S> <C> <C> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule
RCA-A):
a. Noninterest-bearing balances and currency and coin(1) 0081 6,140,040 1.a.
b. Interest-bearing balances(2) 0071 6,078,671 1.b.
2. Securities (from Schedule RC-B) 0390 580,723 2.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold 0276 3,134,457 3.a.
b. Securities purchased under agreements to resell 0277 252,650 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) RCFD 2122 13,404,247 4.a.
b. LESS: Allowance for loan and lease losses RCFD 3123 343,005 4.b.
c. LESS: Allocated transfer risk reserve RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) 2125 13,061,242 4.d.
5. Assets held in trading accounts 2146 2,202,246 5.
6. Premises and fixed assets (including capitalized leases) 2145 500,925 6.
7. Other real estate owned (from Schedule RC-M) 2155 111,329 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) 2130 14,491 8.
9. Customers' liability to this bank on acceptances outstanding 2155 552,637 9.
10. Intangible assets (from Schedule RC-M) 2143 155,975 10.
11. Other assets (from Schedule RC-F) 2160 2,847,290 11.
12. Total assets (sum of items 1 through 11) 2170 35,632,676 12.
<FN>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
</FN>
</TABLE>
<PAGE>
<TABLE>
Legal Title of Bank: First National Bank of Chicago Call Date: 9/30/93 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
Schedule RC-Continued
<CAPTION>
Dollar Amounts in
Thousands Bil Mil Thou
LIABILITIES
<S> <C> <C> <C> <C> <C> <C> <C>
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) RCON 2200 14,261,174 13.a.
(1) Noninterest-bearing(1) RCON 6631 6,124,322 13.a.(1)
(2) Interest-bearing RCON 6636 8,136,852 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries,
and IBFs (from Schedule RC-E, part II) RCFN 2200 10,168,389 13.b.
(1) Noninterest bearing RCFN 6631 2,339,236 13.b.(1)
(2) Interest-bearing RCFN 6636 7,829,153 13.b.(2)
14. Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the bank
and of its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased RCFD 0278 2,411,666 14.a.
b. Securities sold under agreements to repurchase RCFD 0279 7,738 14.b.
15. Demand notes issued to the U.S. Treasury RCON 2840 102,420 15.
16. Other borrowed money RCFD 2850 1,871,318 16.
17. Mortgage indebtedness and obligations under capitalized
leases RCFD 2910 267,000 17.
18. Bank's liability on acceptance executed and outstanding RCFD 2920 552,637 18.
19. Subordinated notes and debentures RCFD 3200 1,175,000 19.
20. Other liabilities (from Schedule RC-G) RCFD 2930 2,196,402 20.
21. Total liabilities (sum of items 13 through 20) RCFD 2948 33,013,744 21.
22. Limited-Life preferred stock and related surplus RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus RCFD 3838 0 23.
24. Common stock RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) RCFD 3839 2,249,790 25.
26. a. Undivided profits and capital reserves RCFD 3632 169,255 26.a.
b. LESS: Net unrealized loss on marketable equity
securities RCFD 0297 0 26.b.
27. Cumulative foreign currency translation adjustments RCFD 3284 (971) 27.
28. Total equity capital (sum of items 23 through 27) RCFD 3210 2,618,932 28.
29. Total liabilities, limited-life preferred stock, and
equity capital (sum of items 21, 22, and 28) RCFD 3300 35,632,676 29.
<FN>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most
comprehensive level of auditing work performed for the bank by independent external
auditors as of any date during 1992 *********************** RCFA 6724 N/A M.1.
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
</FN>
</TABLE>
<PAGE>
