COMMERCIAL PAPER
PRIVATE PLACEMENT AGREEMENT,
4(2) Program,
among
ARROW ELECTRONICS, INC., as Issuer,
and,
as Placement Agents,
CHASE SECURITIES INC.,
BANK OF AMERICA SECURITIES LLC,
XXXXXXX, XXXXX & CO., and
XXXXXX XXXXXXX & CO. INCORPORATED,
Concerning Notes to be issued pursuant to an Issuing
and Paying Agency Agreement dated as of November 9,
1999, between the Issuer and The Chase Manhattan
Bank, as Issuing and Paying Agent.
Dated as of
November 9, 1999
COMMERCIAL PAPER
PRIVATE PLACEMENT AGREEMENT
This agreement ("Agreement") sets forth the understandings among the Issuer
and the Placement Agents (each an "Agent" and collectively the "Agents") in
connection with the issuance and sale by the Issuer of its short-term promissory
notes through the Agents (the "Notes").
Certain terms used in this Agreement are defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits described in
this Agreement or such Addendum, are hereby incorporated into this Agreement and
made fully a part hereof.
Section 1. Offers, Sales and Resales of Notes.
1.1 While (i) the Issuer has and shall have no obligation to sell the
Notes to the Agents or to permit the Agents to arrange any sale of the Notes for
the account of the Issuer, and (ii) the Agents have and shall have no obligation
to purchase the Notes from the Issuer or to arrange any sale of the Notes for
the account of the Issuer, the parties hereto agree that in any case where any
Agent purchases Notes from the Issuer, or arranges for the sale of Notes by the
Issuer, such Notes will be purchased or sold by such Agent in reliance on the
representations, warranties, covenants and agreements of the Issuer contained
herein or made pursuant hereto and on the terms and conditions and in the manner
provided herein.
1.2 So long as this Agreement shall remain in effect, and in addition to
the limitations contained in Section 1.7 hereof, the Issuer shall not, without
the consent of each Agent, offer, solicit or accept offers to purchase, or sell,
any Notes except (a) in transactions with one or more agents which may from time
to time after the date hereof become agents with respect to the Notes by
executing with the Issuer one or more agreements which contain provisions
substantially identical to Section 1 of this Agreement, of which the Issuer
hereby undertakes to provide each Agent prompt notice or (b) in transactions
with one of the Agents. In no event shall the Issuer offer, solicit or accept
offers to purchase, or sell, any Notes directly on its own behalf in
transactions with persons other than agents as specifically permitted in this
Section 1.2.
1.3 The Notes shall be in a minimum denomination or minimum amount,
whichever is applicable, of $250,000 or integral multiples of $1,000 in excess
thereof, will bear such interest rates, if interest bearing, or will be sold at
such discount from their face amounts, as shall be agreed upon by the relevant
Agent and the Issuer, shall have (a) maturities not exceeding 180 days from the
date of issuance (exclusive of days of grace) for Notes sold from the date of
this Agreement to May 31, 2000, and, thereafter, (b) maturities not exceeding
270 days from date of issuance (exclusive of days of grace), and shall not
contain any provision for extension, renewal or automatic "rollover."
1.4 The authentication, delivery and payment of the Notes shall be
effected in accordance with the Issuing and Paying Agency Agreement and the
Notes shall be either individual bearer physical certificates or represented by
book-entry Notes registered in the name of DTC or its nominee in the form or
forms annexed to the Issuing and Paying Agency Agreement
1.5 If the Issuer and any Agent shall agree on the terms of the purchase
of any Note by such Agent or the sale of any Note arranged by such Agent
(including, but not limited to, agreement with respect to the date of issue,
purchase price, principal amount, maturity and interest rate (in the case of
interest-bearing Notes) or discount thereof (in the case of Notes issued on a
discount basis), and appropriate compensation for the Agent's services
hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be
issued and delivered in accordance with the terms of the Issuing and Paying
Agency Agreement and payment for such Note shall be made by the purchaser
thereof, either directly or through the Agent, to the Issuer. Except as
otherwise agreed, in the event that any Agent is acting as an agent and a
purchaser shall either fail to accept delivery of or make payment for a Note on
the date fixed for settlement, such Agent shall promptly notify the Issuer, and
if the Agent has theretofore paid the Issuer for the Note, the Issuer will
promptly return such funds to the Agent against its return of the Note to the
Issuer, in the case of a certificated Note, and upon notice of such failure in
the case of a book-entry Note. If such failure occurred for any reason other
than default or negligence by the Agent, the Issuer shall reimburse the Agent on
an equitable basis for the Agent's loss of the use of such funds for the period
such funds were credited to the Issuer's account.
1.6 The Agents and the Issuer hereby establish and agree to observe the
following procedures in connection with offers, sales and subsequent resales or
other transfers of the Notes:
(a) Offers and sales of the Notes by or through the Agents shall be made
only to: (i) investors reasonably believed by the relevant Agent to be Qualified
Institutional Buyers, Institutional Accredited Investors or Sophisticated
Individual Accredited Investors, and (ii) non-bank fiduciaries or agents that
will be purchasing Notes for one or more accounts, each of which the relevant
Agent reasonably believes to be an Institutional Accredited Investor.
(b) Resales and other transfers of the Notes by the holders thereof by or
through any Agent or the Issuer shall, in either case, be made only in
accordance with the restrictions in the legends described in clause (e) below.
(c) No general solicitation or general advertising shall be used in
connection with the offering of the Notes. Without limiting the generality of
the foregoing, without the prior written approval of each Agent, the Issuer
shall not issue any press release or place or publish any "tombstone" or other
advertisement relating to the Notes.
(d) No sale of Notes to any one purchaser shall be for less than $250,000
principal or face amount, and no Note shall be issued in a smaller principal or
face amount. If the purchaser is a non-bank fiduciary acting on behalf of
others, each person for whom such purchaser is acting must purchase at least
$250,000 principal or face amount of Notes.
(e) Offers and sales of the Notes by the Issuer through any Agent shall be
made in accordance with Rule 506 under the Securities Act, and shall be subject
to the restrictions described in the legend appearing on Exhibit A hereto. A
legend substantially to the effect of such Exhibit A shall appear as part of the
Private Placement Memorandum used in connection with offers and sales of Notes
hereunder, as well as on each Note offered and sold pursuant to this Agreement.
(f) Each Agent shall furnish or shall have furnished to each purchaser of
Notes being sold through such Agent to such ultimate purchaser for the first
time a copy of the then-current Private Placement Memorandum unless such
purchaser has previously received a copy of the Private Placement Memorandum as
then in effect. The Private Placement Memorandum shall expressly state that any
person to whom Notes are offered shall have an opportunity to ask questions of,
and receive information from, the Issuer and the relevant Agent and shall
provide the names, addresses and telephone numbers of the persons from whom
information regarding the Issuer may be obtained.
(g) The Issuer agrees, for the benefit of each Agent and each of the
holders and prospective purchasers from time to time of the Notes that, if at
any time the Issuer shall not be subject to Section 13 or 15(d) of the Exchange
Act, the Issuer will furnish, upon request and at its expense, to each Agent and
to holders and prospective purchasers of Notes information required by Rule
144A(d)(4)(i) in compliance with Rule 144A(d).
(h) In the event that any Note offered or to be offered by the Agents
would be ineligible for resale under Rule 144A, the Issuer shall immediately
notify each Agent (by telephone, confirmed in writing) of such fact and shall
promptly prepare and deliver to each Agent an amendment or supplement to the
Private Placement Memorandum describing the Notes that are ineligible, the
reason for such ineligibility and any other relevant information relating
thereto.
(i) The Issuer represents that it is not currently issuing commercial
paper in the United States market in reliance upon the exemption provided by
Section 3(a)(3) of the Securities Act. The Issuer agrees that, should it at any
time while any Notes are outstanding issue any commercial paper in reliance on
such exemption, (a) the proceeds from the sale of the Notes will be segregated
from the proceeds of the sale of such commercial paper by being placed in a
separate account, (b) the Issuer will institute appropriate corporate procedures
to ensure that the offers and sales of such commercial paper are not integrated
with the offering and sale of Notes hereunder, and (c) the Issuer will comply
with each of the requirements of the Securities Act in selling commercial paper
or other short-term debt securities other than the Notes in the United States.
1.7 The Issuer hereby represents and warrants to each Agent, in connection
with offers, sales and resales of Notes, as follows:
(a) The Issuer hereby confirms to the Agents that within the preceding six
months neither the Issuer nor any person other than the Agents or the other
agents referred to in Section 1.2 hereof acting on behalf of the Issuer has
offered or sold any Notes, or any substantially similar security of the Issuer
(including, without limitation, medium-term notes issued by the Issuer), to, or
solicited offers to buy any such security from, any person other than the Agents
or the other agents referred to in Section 1.2 hereof. The Issuer also agrees
that, as long as the Notes are being offered for sale by the Agents and the
other agents referred to in Section 1.2 hereof as contemplated hereby and until
at least six months after the offer of Notes hereunder has been terminated,
neither the Issuer nor any person other than the Agents or the other agents
referred to in Section 1.2 hereof (except as contemplated by Section 1.2 hereof)
will offer the Notes or any substantially similar security of the Issuer
(including, without limitation, medium-term notes issued by the Issuer) for sale
to, or solicit offers to buy any such security from, any person other than the
Agents and the other agents referred to in Section 1.2 hereof, it being
understood that such agreement is made with a view to bringing the offer and
sale of the Notes within the exemption provided by Section 4(2) of the
Securities Act and Rule 506 thereunder and shall survive any termination of this
Agreement. The Issuer hereby represents and warrants that it has not taken or
omitted to take, and will not take or omit to take, any action that would cause
the offering and sale of Notes hereunder to be integrated with any other
offering of securities, whether such offering is made by the Issuer or some
other party or
parties.
(b) The Issuer represents and agrees that the proceeds of the sale of the
Notes will not be currently used for the purpose of buying, carrying or trading
securities within the meaning of Regulation T and the interpretations thereunder
by the Board of Governors of the Federal Reserve System, but it is contemplated
that the proceeds may be used for such purposes in the future. In the event
that the Issuer determines in the future to use the proceeds of the sale of the
Notes for the purpose of buying, carrying or trading securities, whether in
connection with an acquisition of another company or otherwise, the Issuer shall
give each Agent at least three business days' prior written notice to that
effect. The Issuer shall also give each Agent prompt notice of the actual date
that it commences to purchase securities with the proceeds of the Notes.
Thereafter, and until the time that the Issuer informs the Agents that it is no
longer using the proceeds from the sale of the Notes for such purposes, and,
further, until such time that the amount outstanding from the date of the notice
is reduced to zero, in the event that any Agent purchases Notes as principal and
does not resell such Notes on the day of such purchase, to the extent necessary
to comply with Regulation T and the interpretations thereunder, such Agent will
sell such Notes either (i) only to offerees it reasonably believes to be QIBs or
to QIBs it reasonably believes are acting for other QIBs, in each case in
accordance with Rule 144A or (ii) in a manner which would not cause a violation
of Regulation T and the interpretations thereunder.
Section 2. Representations and Warranties of Issuer.
The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly organized, validly existing and in
good standing under the laws of New York and has all the requisite corporate
power and authority to execute, deliver and perform its obligations under the
Notes, this Agreement, and the Issuing and Paying Agency Agreement.
2.2 Each of this Agreement and the Issuing and Paying Agency Agreement has
been duly authorized, executed and delivered by the Issuer and constitutes the
legal, valid and binding obligation of the Issuer enforceable against the Issuer
in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance reorganization and similar laws affecting creditors'
rights generally, and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law).
2.3 The Notes have been duly authorized, and when issued, delivered and
paid for as provided in the Issuing and Paying Agency Agreement, will be duly
and validly issued and delivered and will constitute legal, valid and binding
obligations of the Issuer enforceable against the Issuer in accordance with
their terms, subject to applicable bankruptcy, insolvency fraudulent conveyance
reorganization and similar laws affecting creditors' rights generally, and
subject, as to enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of Notes in the manner contemplated hereby do not
require registration of the Notes under the Securities Act, pursuant to the
exemption from registration contained in Section 4(2) thereof, and no indenture
in respect of the Notes is required to be qualified under the Trust Indenture
Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured and
unsubordinated indebtedness of the Issuer.
2.6 No consent or action of, or filing or registration with, any
governmental or public regulatory body or authority, including the SEC, is
required to authorize, or is otherwise required in connection with the
execution, delivery or performance by the Issuer of, this Agreement, the Notes
or the Issuing and Paying Agency Agreement, except as may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Notes.
2.7 Neither the execution and delivery of this Agreement and the Issuing
and Paying Agency Agreement, nor the issuance and delivery of the Notes in
accordance with the Issuing and Paying Agency Agreement, nor the fulfillment of
or compliance with the terms and provisions hereof or thereof by the Issuer,
will (i) result in the creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of the
Issuer, or (ii) violate or result in a breach or an event of default under any
of (a) the terms of the Issuer's charter documents or by-laws, (b) any contract
or instrument to which the Issuer is a party or by which it or its property is
bound, or (c) any law or regulation, or any order, writ, injunction or decree of
any court or government instrumentality, to which the Issuer is subject or by
which it or its property is bound, which, in the case of (i) and (ii)(b) and
(c), would have a material adverse effect on the condition, financial or
otherwise, or the earnings or business affairs of the Issuer, the validity of
the Notes, or the ability of the Issuer to perform its obligations under this
Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no litigation or governmental proceeding pending, or to the
knowledge of the Issuer threatened, against or affecting the Issuer or any of
its subsidiaries which is reasonably likely to have a material adverse effect on
the condition, financial or otherwise, or the earnings or business affairs of
the Issuer or the ability of the Issuer to perform its obligations under this
Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an "investment company" or an entity "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company Information
contains any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. The
foregoing representation shall not apply to Agent Information.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b) amendment
or supplement of the Private Placement Memorandum shall be deemed a
representation and warranty by the Issuer to the Agents, as of the date thereof,
that, both before and after giving effect to such issuance and after giving
effect to such amendment or supplement, (i) the representations and warranties
given by the Issuer set forth above in this Section 2 remain true and correct on
and as of such date as if made on and as of such date, (ii) in the case of an
issuance of Notes, the Notes being issued on such date have been duly and
validly issued and constitute legal, valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law), and (iii) the Issuer is not in default of any of its obligations
hereunder, under the Notes, or under the Issuing and Paying Agency Agreement,
(iv) in the case of an issuance of Notes, since the date of the most recent
Private Placement Memorandum, there has been no material adverse change and no
development which will result in a prospective material adverse change in the
condition, financial or otherwise, or in the earnings or business affairs of the
Issuer whether or not arising in the ordinary course of business which has not
been disclosed to each Agent in writing.
Section 3. Covenants and Agreements of Issuer
The Issuer covenants and agrees that:
3.1 The Issuer will give each Agent prompt notice (but in any event prior
to any subsequent issuance of Notes hereunder) of any amendment to, modification
of, or waiver with respect to, the Notes, or the Issuing and Paying Agency
Agreement, including a complete copy of any such amendment, modification or
waiver.
3.2 The Issuer shall, whenever there shall occur any material adverse
change and or any development which will result in a prospective material
adverse change in the condition, financial or otherwise, or in the earnings or
business affairs of the Issuer or any development or occurrence in relation to
the Issuer that would be material to holders of the Notes or potential holders
of the Notes (including any downgrading or receipt of any notice of intended or
potential downgrading or any review for potential change in the rating accorded
any of the Issuer's securities by any nationally recognized statistical rating
organization which has published a rating of the Notes), promptly, and in any
event prior to any subsequent issuance of Notes hereunder, notify each Agent (by
telephone, confirmed in writing) of such change, development, or occurrence.
3.3 The Issuer shall from time to time furnish to each Agent such
information as the Agent may reasonably request, including, without limitation,
any press releases or material provided by the Issuer to any national securities
exchange or rating agency, regarding (i) the Issuer's operations and financial
condition, (ii) the due authorization and execution of the Notes, and (iii) the
Issuer's ability to pay the Notes as they mature.
3.4 The Issuer will take all such action as any Agent may reasonably
request to ensure that each offer and each sale of the Notes will comply with
any applicable state Blue Sky laws; provided, that the Issuer shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified or
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
3.5 The Issuer will not be in default of any of its obligations hereunder,
under the Notes, or under the Issuing and Paying Agency Agreement, at any time
that any of the Notes are outstanding.
3.6 The Issuer shall not issue Notes hereunder until each Agent shall have
received (a) an opinion of counsel to the Issuer, addressed to the Agents,
satisfactory in form and substance to each Agent, (b) a copy of the executed
Issuing and Paying Agency Agreement as then in effect, (c) a copy of resolutions
adopted by the Board of Directors of the Issuer, satisfactory in form and
substance to each Agent and certified by the Secretary or similar officer of the
Issuer, authorizing execution and delivery by the Issuer of this Agreement the
Issuing and Paying Agency Agreement and the Notes and consummation by the Issuer
of the transactions contemplated hereby and thereby, (d) prior to the issuance
of any Notes represented by a book-entry note registered in the name of DTC or
its nominee, a copy of the executed Letter of Representations among the
Issuer, the Issuing and Paying Agent and DTC, and (e) such other certificates,
opinions, letters and documents as any Agent shall have reasonably requested.
3.7 The Issuer shall reimburse each Agent for such Agent's reasonable out-
of-pocket expenses related to the transactions contemplated hereby , and, if
applicable, for the reasonable fees and out-of-pocket expenses of such Agent's
counsel. Notwithstanding the foregoing, the Agent shall not incur any expense
to be covered under this section 3.7 without the prior written consent of the
Issuer.
Section 4. Disclosure
4.1 The Private Placement Memorandum and its contents (other than the
Agent Information) shall be the sole responsibility of the Issuer. The Private
Placement Memorandum shall contain a statement expressly offering an opportunity
for each prospective purchaser to ask questions of, and receive answers from,
the Issuer concerning the offering of Notes and to obtain relevant additional
information which the Issuer possesses or can acquire without unreasonable
effort or expense.
4.2 The Issuer agrees promptly to furnish to each Agent the Company
Information as it becomes available.
4.3 (a) The Issuer further agrees to notify each Agent promptly upon the
occurrence of any event relating to or affecting the Issuer that would cause the
Company Information then in existence to include an untrue statement of material
fact or to omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they are
made, not misleading.
(b) In the event that the Issuer gives the Agents notice pursuant to
Section 4.3(a) and any Agent notifies the Issuer that it then has Notes it is
holding in inventory, the Issuer agrees promptly to supplement or amend the
Private Placement Memorandum so that such Private Placement Memorandum, as
amended or supplemented, shall not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and the Issuer shall make such supplement or amendment available to
each Agent.
(c) In the event that (i) the Issuer gives the Agents notice pursuant
to Section 4.3(a) and (ii) no Agent notifies the Issuer that it is then holding
Notes in inventory and (iii) the Issuer chooses not to promptly amend or
supplement the Private Placement Memorandum in the manner described in clause
(b) above, then all solicitations and sales of Notes shall be suspended until
such time as the Issuer has so amended or supplemented the Private Placement
Memorandum, and made such amendment or supplement available to each Agent.
Section 5. Indemnification and Contribution
5.1 The Issuer will indemnify and hold harmless each Agent, each
individual, corporation, partnership, trust, association or other entity
controlling any Agent, any affiliate of any Agent or any such controlling entity
and their respective directors, officers or employees (hereinafter the
"Indemnitees") against any and all liabilities, penalties, suits, causes of
action, losses, damages, claims, costs and expenses (including, without
limitation reasonable fees and disbursements of counsel) or judgments of
whatever kind or nature (each a "Claim"), imposed upon, incurred by or asserted
against the Indemnitees arising out of or based upon (i) any allegation that the
Private Placement Memorandum, the Company Information or any information
provided by the Issuer to the Agents included (as of any relevant time) or
includes an untrue statement of a material fact or omitted (as of any relevant
time) or omits to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (ii) arising out of or based upon the breach by the Issuer of any
agreement, covenant or representation made in or pursuant to this Agreement.
This indemnification shall not apply to the extent that the Claim arises out of
or is based upon the Agent Information of the relevant Agent.
5.2 Provisions relating to claims made for indemnification under this
Section 5 are set forth on Exhibit B to this Agreement.
5.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 5 is
held to be unavailable or insufficient to hold harmless the Indemnitees,
although applicable in accordance with the terms of this Section 5, the Issuer
shall contribute to the aggregate costs incurred by any Indemnitee in connection
with any Claim in the proportion of the respective economic interests of the
Issuer and such Indemnitee; provided, however, that such contribution by the
Issuer shall be in an amount such that the aggregate costs incurred by such
Indemnitee do not exceed the aggregate of the commissions and fees earned by the
relevant Agent hereunder with respect to the issue or issues of Notes to which
such Claim relates. The respective economic interests shall be calculated by
reference to the aggregate proceeds to the Issuer of the Notes issued hereunder
and the aggregate commissions and fees earned by the relevant Agent hereunder.
Section 6. Definitions.
6.1 "Claim" shall have the meaning set forth in Section 5.1.
6.2 "Company Information" at any given time shall mean the Private
Placement Memorandum together with, to the extent applicable, (i) the Issuer's
most recent report on Form 10-K filed with the SEC and each report on Form 10-Q
or 8-K filed by the Issuer with the SEC since the most recent Form 10-K, (ii)
the Issuer's most recent annual audited financial statements and each interim
financial statement or report prepared subsequent thereto, if not included in
item (i) above, (iii) the Issuer's and its affiliates' other publicly available
recent reports, including, but not limited to, any publicly available filings or
reports provided to their respective shareholders, (iv) any other information or
disclosure prepared pursuant to Section 4.3 hereof, and (v) any information
prepared or approved by the Issuer for dissemination to investors or potential
investors in the Notes.
6.3 "Agent Information" shall mean, with respect to each Agent,
information concerning such Agent and its affiliates and provided by such Agent
in writing expressly for inclusion in the Private Placement Memorandum.
6.4 "DTC" shall mean The Depository Trust Company.
6.5 "Exchange Act" shall mean the U.S. Securities Exchange Act of 1934, as
amended.
6.6 "Indemnitee" shall have the meaning set forth in Section 5.1.
6.7 "Institutional Accredited Investor" shall mean an institutional
investor that is an accredited investor within the meaning of Rule 501 under the
Securities Act and that has such knowledge and experience in financial and
business matters that it is capable of evaluating and bearing the economic risk
of an investment in the Notes, including, but not limited to, a bank, as defined
in Section 3(a)(2) of the Securities Act, or a savings and loan association or
other institution, as defined in Section 3(a)(5)(A) of the Securities Act,
whether acting in its individual or fiduciary capacity.
6.8 "Issuing and Paying Agency Agreement" shall mean the issuing and
paying agency agreement described on the cover page of this Agreement, as such
agreement may be amended or supplemented from time to time.
6.9 "Issuing and Paying Agent" shall mean the party designated as such on
the cover page of this Agreement, as issuing and paying agent under the Issuing
and Paying Agency Agreement, or any successor thereto in accordance with the
Issuing and Paying Agency Agreement.
6.10 "Non-bank fiduciary or agent" shall mean a fiduciary or agent other
than (a) a bank, as defined in Section 3(a)(2) of the Securities Act, or (b) a
savings and loan association, as defined in Section 3(a)(5)(A) of the Securities
Act.
6.11 "Private Placement Memorandum" shall mean offering materials prepared
in accordance with Section 4 (including materials referred to therein or
incorporated by reference therein) provided to purchasers and prospective
purchasers of the Notes, and shall include amendments and supplements thereto
which may be prepared from time to time in accordance with this Agreement (other
than any amendment or supplement that has been completely superseded by a later
amendment or supplement).
6.12 "Qualified Institutional Buyer" shall have the meaning assigned to
that term in Rule 144A under the Securities Act.
6.13 "Rule 144A" shall mean Rule 144A under the Securities Act.
6.14 "SEC" shall mean the U.S. Securities and Exchange Commission.
6.15 "Securities Act" shall mean the U.S. Securities Act of 1933, as
amended.
Section 7. General
7.1 Unless otherwise expressly provided herein, all notices under this
Agreement to parties hereto shall be in writing and shall be effective when
received at the address of the respective party set forth in the Addendum to
this Agreement.
7.2 This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without regard to its conflict of laws
provisions.
7.3 The Issuer agrees that any suit, action or proceeding brought by the
Issuer against the Agent in connection with or arising out of this Agreement or
the Notes or the offer and sale of the Notes shall be brought solely in the
United States federal courts located in the borough of Manhattan or the courts
of the State of New York located in the Borough of Manhattan. EACH OF THE AGENT
AND THE ISSUER WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
7.4 This Agreement may be terminated at any time, by the Issuer with
respect to any Agent, upon one business day's prior notice to such Agent, or by
any Agent with respect to such itself, upon one business day's prior notice to
the Issuer. Any such termination, however, shall not affect (a) the obligations
of the Issuer to such Agent under Sections 3.7, 5, 7.3, and, for a period of
seven business days after such termination Section 4.3, hereof, (b) the validity
of this Agreement as between the Issuer and the other Agents, or (c) the
respective representations, warranties, agreements, covenants, rights or
responsibilities of the parties made or arising prior to the termination of this
Agreement.
7.5 This Agreement is not assignable by any party hereto without the
written consent of the other parties; provided, however, that the any Agent may
assign its rights and obligations under this Agreement to any affiliate.
7.6 This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
7.7 This Agreement is for the exclusive benefit of the parties hereto and
their respective successors and assigns hereunder and shall not be deemed to
give any right, remedy, or claim to any other person whatsoever.
7.8 The Issuer acknowledges that the Agents are acting severally, and not
jointly, under this Agreement, and that no Agent shall have any responsibility
whatsoever for any act or undertaking by any other Agent under or in connection
with this Agreement.
[signatures are on the following page]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date and year first above written.
ARROW ELECTRONICS, INC.,
As Issuer
By:
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Name:
---------------------------
Title:
---------------------------
CHASE SECURITIES INC.,
As Agent
By:
------------------------------
Name:
---------------------------
Title:
---------------------------
BANK OF AMERICA SECURITIES LLC,
As Agent
By:
------------------------------
Name:
---------------------------
Title:
---------------------------
XXXXXXX, XXXXX & CO.,
As Agent
By:
------------------------------
Name:
---------------------------
Title:
---------------------------
XXXXXX XXXXXXX & CO. INCORPORATED,
As Agent
By:
------------------------------
Name:
---------------------------
Title:
---------------------------
