Unassociated Document
As filed with the Securities and
Exchange Commission on September 16,
2009
SECURITIES AND EXCHANGE
COMMISSION
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF
1933
(Exact name of registrant as
specified in its charter)
(State or other jurisdiction
of incorporation
or organization)
(IRS Employer Identification No.)
(Address,
including zip code, and telephone number, including area
code,
of registrant’s principal
executive offices)
Executive
Vice President and Chief Financial Officer
Phone:
(954) 987-4000 Fax: (954) 987-8228
(Name,
address, including zip code, and telephone number, including
area
code, of agent for service)
One
Southeast Third Avenue, 27th Floor
Phone:
(305) 374-5600 Fax: (305) 374-5095
Approximate date of commencement of
proposed sale to the public: From time to time after this
registration statement becomes effective.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. o
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. þ
If this
Form is filed to register additional securities for an offering pursuant to
Rule 462(b) under the Securities Act, please check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. þ
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or
additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and
“smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check
one):
Large
accelerated filer þ
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Accelerated
filer o
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Non-accelerated
filer o
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Smaller
reporting company o
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(Do
not check if a smaller reporting company)
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CALCULATION
OF REGISTRATION FEE
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Proposed
maximum
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Proposed
maximum
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Title
of each class
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Amount
to be
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offering
price
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aggregate
offering
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Amount
of
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of securities to be
registered (1)
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registered (2)
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per unit
(3)
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price
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registration fee
(4)
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Common
Stock, par value $.01 per share
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Class
A Common Stock, par value $.01 per share
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Preferred
Stock, par value $.01 per share
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Debt
Securities
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Depositary
Shares
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Warrants
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Units
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Subtotal
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Secondary
Offering of Common Stock
by Selling
Shareholders
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Secondary
Offering of Class A Common Stock
by
Selling Shareholders
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Total
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(1)
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This
Registration Statement also covers Common Stock, Class A Common Stock,
preferred stock, debt securities, depositary shares, warrants and units
which may be issued in exchange for, or upon conversion of, as the case
may be, the securities registered
hereunder.
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(2)
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An
indeterminate number of Common Stock, Class A Common Stock, preferred
stock, debt securities, depositary shares, warrants and units are being
registered.
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There
also is being registered hereunder an indeterminate number of rights to purchase
one one-hundredth of a share of our Series B Junior Participating Preferred
Stock, par value $.01 per share, which attach to each share of Common Stock
pursuant to the Rights Agreement described in the prospectus contained in this
Registration Statement. There also is being registered hereunder an
indeterminate number of rights to purchase one one-hundredth of a share of our
Series C Junior Participating Preferred Stock, par value $.01 per share, which
attach to each share of Class A Common Stock pursuant to the Rights Agreement
described in the prospectus contained in this Registration Statement. These
rights will be issued for no additional consideration because the value
attributable to the rights, if any, is reflected in the value of the Common
Stock and Class A Common Stock. Accordingly, no additional registration fee is
payable.
(3)
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The
proposed maximum offering price per unit (a) has been omitted pursuant to
Instruction II.E of Form S-3 and (b) will be determined, from time to
time, by the Registrant in connection with the issuance by the Registrant
of the securities registered
hereunder.
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(4)
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In
accordance with Rules 456(b) and 457(r) under the Securities Act, the
Registrant is deferring payment of all of the registration
fee.
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[LOGO
OF HEICO CORPORATION]
HEICO
Corporation may offer Common Stock, Class A Common Stock, preferred stock, debt
securities, depositary shares, warrants and units from time to time in amounts,
at prices and on terms that will be determined at the time of any such offering.
In addition, the selling shareholders listed on the selling shareholder table
included in this prospectus may offer Common Stock and Class A Common Stock from
time to time in amounts, at prices and on terms that will be determined at the
time of any such offering. We will not receive any proceeds from sales of common
shares by the selling shareholders.
This
prospectus describes the general terms of these securities and the general
manner in which we and the selling shareholders will offer the securities. The
specific terms of any securities we or the selling shareholders offer will be
included in a supplement to this prospectus. The prospectus supplement will also
describe the specific manner in which we and the selling shareholders will offer
the securities. The prospectus supplements may also add, update or change
information contained in this prospectus. You should read this prospectus and
any supplements carefully before you invest. This prospectus may not be used to
sell securities unless accompanied by a prospectus supplement.
Our
Common Stock is traded on the New York Stock Exchange (“NYSE”) under the symbol
“HEI.” The last reported sale price of our Common Stock on September 9, 2009,
was $37.78 per share. Our Class A Common Stock is traded on the NYSE under the
symbol “HEI.A.” The last reported sale price of our Class A Common Stock on
September 9, 2009 was $30.49 per share. We will make application to list any
shares of Common Stock or Class A Common Stock sold pursuant to a supplement to
this prospectus on the NYSE. We have not determined whether we will list any of
the other securities we may offer on any exchange or over-the-counter market. If
we decide to seek the listing of any securities, the supplement will disclose
the exchange or market.
Investing
in these securities involves risks. You should carefully consider the
risks described under the “Risk Factors” section of this prospectus beginning on
page 7, our filings with the Securities and Exchange Commission (“SEC”) and any
applicable prospectus supplement.
Neither
the SEC nor any state securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
September
16, 2009
----------
You
should rely only on the information contained or incorporated by reference in
this prospectus and any prospectus supplement. Neither we nor the
selling shareholders have authorized anyone to provide you with different
information. If anyone provides you with different or inconsistent
information, you should not rely on it. Neither we nor the selling
shareholders are making an offer to sell these securities in any jurisdiction
where the offer or sale of these securities is not permitted. You
should assume that the information appearing in this prospectus is accurate only
as of the date on the front cover of this prospectus and that any information we
have incorporated by reference is accurate only as of the date of the document
incorporated by reference. Our business, financial condition, results
of operations and prospects may have changed since these dates.
This
prospectus is part of a Registration Statement on Form S-3 that we filed with
the SEC utilizing a “shelf” registration process. Under this shelf registration
process, we may, from time to time, sell any combination of securities described
in this prospectus in one or more offerings. In addition, the selling
shareholders listed on the table included in this prospectus may offer Common
Stock and Class A Common Stock from time to time in amounts, at prices and on
terms that will be determined at the time of any such offering. This prospectus
provides you with a general description of the securities we and the selling
shareholders may offer. Each time we or the selling shareholders sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering and the securities being offered.
The prospectus supplement may also add, update or change information contained
in this prospectus. You should read both this prospectus and any applicable
prospectus supplement together with the additional information described below
under the heading “Where You Can Find Additional Information.”
When used
in this prospectus and any prospectus supplement, the terms “HEICO,” “we,”
“our,” and “us” refer to HEICO Corporation and its subsidiaries. The following
summary contains basic information about us. It likely does not contain all the
information that is important to you. We encourage you to read this entire
prospectus, any prospectus supplement and the documents to which we have
referred you to before you choose to invest in these securities.
Certain
statements in this prospectus constitute “forward-looking statements” within the
meaning of the Private Securities Litigation Reform Act of 1995. All statements
contained herein that are not clearly historical in nature may be
forward-looking and the words “anticipate,” “believe,” “expect,” “estimate” and
similar expressions are generally intended to identify forward-looking
statements. Any forward-looking statements contained herein, in press releases,
written statements, or other documents filed with the Securities and Exchange
Commission or in communications and discussions with investors and analysts in
the normal course of business through meetings, phone calls and conference
calls, concerning our operations, economic performance and financial condition
are subject to known and unknown risks, uncertainties and contingencies. We have
based these forward-looking statements on our current expectations and
projections about future events. All forward-looking statements involve risks
and uncertainties, many of which are beyond our control, which may cause actual
results, performance or achievements to differ materially from anticipated
results, performance or achievements. Also, forward-looking statements are based
upon management’s estimates of fair values and of future costs, using currently
available information. Therefore, actual results may differ materially from
those expressed or implied in those statements. Factors that could cause such
differences include, but are not limited to:
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Lower
demand for commercial air travel or airline fleet changes, which could
cause lower demand for our goods and
services;
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Product
specification costs and requirements, which could cause an increase to our
costs to complete contracts;
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Governmental
and regulatory demands, export policies and restrictions, reductions in
defense, space or homeland security spending by U.S. and/or foreign
customers or competition from existing and new competitors, which could
reduce our sales;
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Our
ability to introduce new products and product pricing levels, which could
reduce our sales or sales growth;
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Our
ability to make acquisitions and achieve operating synergies from acquired
businesses, customer credit risk, interest rates and economic conditions
within and outside of the aviation, defense, space and electronics
industries, which could negatively impact our costs and revenues;
and
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Our
ability to maintain effective internal controls, which could adversely
affect our business and the market price of our common
stock.
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We
undertake no obligation to publicly update or revise any forward-looking
statement, whether as a result of new information, future events or
otherwise.
This
summary highlights information contained elsewhere in this prospectus or the
documents incorporated by reference herein. It is not complete and may not
contain all of the information that you should consider before investing in
these securities. You should carefully read the entire prospectus, including the
“Risk Factors” section, the documents incorporated by reference into this
prospectus, and any prospectus supplement.
HEICO
Corporation
HEICO
Corporation through its subsidiaries believes it is the world’s largest
manufacturer of Federal Aviation Administration (“FAA”)-approved jet engine and
aircraft component replacement parts, other than the original equipment
manufacturers (“OEMs”) and their subcontractors. HEICO also believes it is a
leading manufacturer of various types of electronic equipment for the aviation,
defense, space, medical, telecommunication and electronic
industries.
The
Company was organized in 1993 creating a new holding corporation known as HEICO
Corporation and renaming the former holding company (formerly known as HEICO
Corporation, organized in 1957) as HEICO Aerospace Corporation. The
reorganization, which was completed in 1993, did not result in any change in the
business of the Company, its consolidated assets or liabilities or the relative
interests of its shareholders.
Our
business is comprised of two operating segments:
The Flight Support Group. Our
Flight Support Group, consisting of HEICO Aerospace Holdings Corp. (“HEICO
Aerospace”) and its subsidiaries, accounted for 75%, 76% and 71% of our net
sales in fiscal 2008, 2007 and 2006, respectively. The Flight Support Group uses
proprietary technology to design and manufacture jet engine and aircraft
component replacement parts for sale at lower prices than those manufactured by
OEMs. These parts are approved by the FAA and are the functional equivalent of
parts sold by OEMs. In addition, the Flight Support Group repairs and
distributes jet engine and aircraft components, avionics and instruments for
domestic and foreign commercial air carriers and aircraft repair companies as
well as military and business aircraft operators; and manufactures thermal
insulation products and other component parts primarily for aerospace, defense
and commercial applications.
The
Flight Support Group competes with the leading industry OEMs and, to a lesser
extent, with a number of smaller, independent parts distributors. Historically,
the three principal jet engine OEMs, General Electric (including CFM
International), Pratt & Whitney and Rolls Royce, have been the sole source
of substantially all jet engine replacement parts for their jet engines. Other
OEMs have been the sole source of replacement parts for their aircraft component
parts. While we believe that we currently supply less than 2% of the market for
jet engine and aircraft component replacement parts, we have consistently been
adding new products to our line and currently hold Parts Manufacturer Approvals,
which we refer to as “PMAs,” for over 7,000 jet engine and aircraft component
replacement parts.
We
believe that, based on our competitive pricing, reputation for high quality,
short lead time requirements, strong relationships with domestic and foreign
commercial air carriers and repair stations (companies that overhaul aircraft
engines and/or components), strategic relationships with Lufthansa and other
major airlines and successful track record of receiving PMAs from the FAA, we
are uniquely positioned to continue to increase our product lines and gain
market share.
The Electronic Technologies
Group. Our Electronic Technologies Group, consisting of HEICO Electronic
Technologies Corp. and its subsidiaries, accounted for 25%, 24% and 29% of our
net sales in fiscal 2008,
2007 and
2006, respectively. Through our Electronic Technologies Group, which derived
approximately 41% of its sales in fiscal 2008 from the sale of products and
services to U.S. and foreign military agencies, we design, manufacture and sell
various types of electronic, microwave and electro-optical products, including
infrared simulation and test equipment, laser rangefinder receivers, electrical
power supplies, back-up power supplies, power conversion products,
electromagnetic interference and radio frequency interference shielding, high
power capacitor charging power supplies, amplifiers, photodetectors, amplifier
modules, flash lamp drivers, laser diode drivers, arc lamp power supplies,
custom power supply designs, cable assemblies, high voltage interconnection
devices and wire, high voltage energy generators, high frequency power delivery
systems and high-speed interface products that link devices such as telemetry
receivers, digital cameras, high resolution scanners, simulation systems and
test systems to almost any computer.
In
October 1997, we entered into a strategic alliance with Lufthansa. Lufthansa is
the world’s largest independent provider of engineering and maintenance services
for commercial aircraft components and jet engines and supports over 200
airlines, governments and other customers. As part of this strategic alliance,
Lufthansa has invested over $60 million in our Company to acquire and maintain a
20% minority interest in HEICO Aerospace. This strategic alliance has
enabled us to expand domestically and internationally by enhancing our ability
to (i) identify key jet engine and aircraft component replacement parts with
significant profit potential by utilizing Lufthansa’s extensive operating data
on engine and component parts; (ii) introduce those parts throughout the world
in an efficient manner due to Lufthansa’s testing and diagnostic resources; and
(iii) broaden our customer base by capitalizing on Lufthansa’s established
relationships and alliances within the airline industry.
In March
2001, we entered into a joint venture with American Airlines, one of the world’s
largest airlines, to develop, design and sell FAA-approved jet engine and
aircraft component replacement parts through HEICO Aerospace. The joint venture
is partly owned by American Airlines. American Airlines and HEICO Aerospace have
agreed to cooperate regarding technical services and marketing support on a
worldwide basis. We have also entered into several strategic relationships with
other leading airlines, such as United Airlines (May 2002), Delta Air Lines
(February 2003), Japan Airlines (March 2004) and British Airways (May 2007).
These relationships accelerate HEICO’s efforts in developing a broad range of
jet engine and aircraft component replacement parts for FAA approval. Each of
the aforementioned airlines purchase these newly developed parts, and many of
HEICO Aerospace’s current FAA-approved parts product line, on an exclusive basis
from HEICO Aerospace.
In
February 2006, we entered into a Joint Cooperation Agreement with China Aviation
Import and Export Group Corporation (“CASGC”) of the Peoples Republic of China
to promote HEICO Aerospace’s FAA-approved aircraft and engine replacement
products in China. CASGC is a state-owned company, which is a comprehensive
service provider for aviation supplies, primarily engaged in the import and
export of aviation-related products in China including aircraft engines, spares,
ground support and safety equipment. CASGC’s business scope also covers leasing
maintenance, component repair and overhaul, consignment stores, manufacturing
and training.
HEICO has
continuously operated in the aerospace industry for more than 50 years. Since
assuming control in 1990, our current management has achieved significant sales
and profit growth through a broadened line of product offerings, an expanded
customer base, increased research and development expenditures and the
completion of a number of acquisitions. As a result of internal growth and
acquisitions, our net sales from continuing operations have grown from $26.2
million in fiscal 1990 to $582.3 million in fiscal 2008, a compound annual
growth rate of approximately 19%. During the same period, we improved our net
income from continuing operations from $2.0 million to $48.5 million,
representing a compound annual growth rate of approximately 20%.
Corporate
Information
Our
principal executive offices are located at 3000 Taft Street, Hollywood, Florida
33021, and our telephone number is (954) 987-4000. Our website
address is www.heico.com. Information on, or accessible through, our
website is not a part of, and is not incorporated into, this
prospectus.
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FOR
THE FISCAL YEAR ENDED OCTOBER 31
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FOR
THE NINE MONTHS ENDED
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2004
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2005
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2006
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2007
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2008
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July
31, 2009
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EARNINGS:
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Earnings
before minority interests and income taxes
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$ |
36,555,000 |
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$ |
44,041,000 |
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$ |
63,983,000 |
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$ |
82,816,000 |
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$ |
102,837,000 |
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$ |
63,896,000 |
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Fixed
charges
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2,336,000 |
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2,318,000 |
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4,886,000 |
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4,930,000 |
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4,666,000 |
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2,285,000 |
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Adjusted
earnings
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$ |
38,891,000 |
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$ |
46,359,000 |
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$ |
68,869,000 |
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$ |
87,746,000 |
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$ |
107,503,000 |
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$ |
66,181,000 |
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FIXED
CHARGES:
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Interest
expense
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$ |
1,090,000 |
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$ |
1,136,000 |
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$ |
3,523,000 |
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$ |
3,293,000 |
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$ |
2,314,000 |
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$ |
484,000 |
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Amortization
of debt issuance costs
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334,000 |
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289,000 |
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227,000 |
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230,000 |
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327,000 |
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208,000 |
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Portion
of rental payments deemed to be interest (1)
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912,000 |
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893,000 |
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1,136,000 |
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1,407,000 |
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2,025,000 |
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1,593,000 |
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Total
fixed charges
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$ |
2,336,000 |
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$ |
2,318,000 |
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$ |
4,886,000 |
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$ |
4,930,000 |
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$ |
4,666,000 |
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$ |
2,285,000 |
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Ratio
of earnings to fixed charges:
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16.6 |
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20.0 |
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14.1 |
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17.8 |
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23.0 |
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29.0 |
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(1) Interest
portion of rental expense is estimated to be one-third of rental
expense.
Investing
in our securities involves risks. In addition to the information set
forth elsewhere in this prospectus and in the documents incorporated by
reference into this prospectus and in any prospectus supplement, you should
carefully consider the following factors relating to us and our securities in
deciding whether to invest in our securities.
Our
success is highly dependent on the performance of the aviation industry, which
could be impacted by lower demand for commercial air travel or airline fleet
changes causing lower demand for our goods and services.
Economic
factors and passenger security concerns that affect the aviation industry also
affect our business. The aviation industry has historically been subject to
downward cycles from time to time which reduce the overall demand for jet engine
and aircraft component replacement parts and repair and overhaul services, and
such downward cycles result in lower prices and greater credit risk. These
economic factors and passenger security concerns may have a material adverse
effect on our business, financial condition and results of
operations.
We
are subject to governmental regulation and our failure to comply with these
regulations could cause the government to withdraw or revoke our authorizations
and approvals to do business and could subject us to penalties and sanctions
that could harm our business.
Governmental
agencies throughout the world, including the FAA, highly regulate the
manufacture, repair and overhaul of aircraft parts and accessories. We include,
with the replacement parts that we sell to our customers, documentation
certifying that each part complies with applicable regulatory requirements and
meets applicable standards of airworthiness established by the FAA or the
equivalent regulatory agencies
in other
countries. In addition, our repair and overhaul operations are subject to
certification pursuant to regulations established by the FAA. Specific
regulations vary from country to country, although compliance with FAA
requirements generally satisfies regulatory requirements in other countries. The
revocation or suspension of any of our material authorizations or approvals
would have an adverse effect on our business, financial condition and results of
operations. New and more stringent government regulations, if adopted and
enacted, could have an adverse effect on our business, financial condition and
results of operations. In addition, some sales to foreign countries of the
equipment manufactured by our Electronic Technologies Group require approval or
licensing from the U.S. government. Denial of export licenses could reduce our
sales to those countries and could have a material adverse effect on our
business.
The
retirement of commercial aircraft could reduce our revenues.
Our
Flight Support Group designs, engineers, manufactures and distributes jet engine
and aircraft component replacement parts and also repairs, refurbishes and
overhauls jet engine and aircraft components. If aircraft or engines for which
we have replacement parts or supply repair and overhaul services are retired and
there are fewer aircraft that require these parts or services, our revenues may
decline.
Reductions
in defense, space or homeland security spending by U.S. and/or foreign customers
could reduce our revenues.
In fiscal
2008, approximately 41% of the sales of our Electronic Technologies Group were
derived from the sale of products and services to U.S. and foreign military
agencies and their suppliers. A decline in defense, space or homeland security
budgets or additional restrictions imposed by the U.S. government on sales of
products or services to foreign military agencies could lower sales of our
products and services.
Intense
competition from existing and new competitors may harm our
business.
We face
significant competition in each of our businesses.
Flight
Support Group
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For
jet engine replacement parts, we compete with the industry’s leading jet
engine OEMs, particularly Pratt & Whitney and General
Electric.
|
|
·
|
For
the overhaul and repair of jet engine and airframe components as well as
avionics and navigation systems, we compete
with:
|
|
-
|
major
commercial airlines, many of which operate their own maintenance and
overhaul units;
|
|
-
|
OEMs,
which manufacture, repair and overhaul their own parts;
and
|
|
-
|
other
independent service companies.
|
Electronic
Technologies Group
|
·
|
For
the design and manufacture of various types of electronic and
electro-optical equipment as well as high voltage interconnection devices
and high speed interface products, we compete in a fragmented marketplace
with a number of companies, some of which are well
capitalized.
|
The
aviation aftermarket supply industry is highly fragmented, has several highly
visible leading companies, and is characterized by intense competition. Some of
our OEM competitors have greater name recognition than HEICO, as well as
complementary lines of business and financial, marketing and other resources
that HEICO does not have. In addition, OEMs, aircraft maintenance providers,
leasing companies and FAA-certificated repair facilities may attempt to bundle
their services and product offerings in the supply industry, thereby
significantly increasing industry competition. Moreover, our smaller competitors
may be able to offer more attractive pricing of parts as a result of lower labor
costs or other factors. A variety of potential actions by any of our
competitors, including a reduction of product prices or the establishment by
competitors of long-term relationships with new or existing customers, could
have a material adverse effect on our business, financial condition and results
of operations. Competition typically intensifies during cyclical downturns in
the aviation industry, when supply may exceed demand. We may not be able to
continue to compete effectively against present or future competitors, and
competitive pressures may have a material and adverse effect on our business,
financial condition and results of operations.
Our
success is dependent on the development and manufacture of new products,
equipment and services. Our inability to develop, manufacture and introduce new
products and services at profitable pricing levels could reduce our sales or
sales growth.
The
aviation, defense, space and electronics industries are constantly undergoing
development and change and, accordingly, new products, equipment and methods of
repair and overhaul service are likely to be introduced in the future. In
addition to manufacturing electronic and electro-optical equipment and selected
aerospace and defense components for OEMs and the U.S. government and repairing
jet engine and aircraft components, we re-design sophisticated aircraft
replacement parts originally developed by OEMs so that we can offer the
replacement parts for sale at substantially lower prices than those manufactured
by the OEMs. Consequently, we devote substantial resources to research and
product development. Technological development poses a number of challenges and
risks, including the following:
|
·
|
We
may not be able to successfully protect the proprietary interests we have
in various aircraft parts, electronic and electro-optical equipment and
our repair processes;
|
|
·
|
As
OEMs continue to develop and improve jet engines and aircraft components,
we may not be able to re-design and manufacture replacement parts that
perform as well as those offered by OEMs or we may not be able to
profitably sell our replacement parts at lower prices than the
OEMs;
|
|
·
|
We
may need to expend significant capital
to:
|
|
-
|
purchase
new equipment and machines,
|
|
-
|
train
employees in new methods of production and service,
and
|
|
-
|
fund
the research and development of new products;
and
|
|
·
|
Development
by our competitors of patents or methodologies that preclude us from the
design and manufacture of aircraft replacement parts or electrical and
electro-optical equipment could adversely affect our business, financial
condition and results of
operations.
|
In
addition, we may not be able to successfully develop new products, equipment or
methods of repair and overhaul service, and the failure to do so could have a
material adverse effect on our business, financial condition and results of
operations.
Product
specification costs and requirements could cause an increase to our costs to
complete contracts.
The costs
to meet customer specifications and requirements could result in us having to
spend more to design or manufacture products and this could reduce our profit
margins on current contracts or those we obtain in the future.
We
may incur product liability claims that are not fully insured.
Our jet
engine and aircraft component replacement parts and repair and overhaul services
expose our business to potential liabilities for personal injury or death as a
result of the failure of an aircraft component that we have designed,
manufactured or serviced. The commercial aviation industry occasionally has
catastrophic losses that may exceed policy limits. An uninsured or partially
insured claim, or a claim for which third-party indemnification is not
available, could have a material adverse effect on our business, financial
condition and results of operations. Additionally, insurance coverage costs may
become even more expensive in the future. Our customers typically require us to
maintain substantial insurance coverage and our inability to obtain insurance
coverage at commercially reasonable rates could have a material adverse effect
on our business.
We
may not have the administrative, operational or financial resources to continue
to grow the company.
We have
experienced rapid growth in recent periods and intend to continue to pursue an
aggressive growth strategy, both through acquisitions and internal expansion of
products and services. Our growth to date has placed, and could continue to
place, significant demands on our administrative, operational and financial
resources. We may not be able to grow effectively or manage our growth
successfully, and the failure to do so could have a material adverse effect on
our business, financial condition and results of operations.
We
may not be able to execute our acquisition strategy, which could slow our
growth.
A key
element of our strategy is growth through the acquisition of additional
companies. Our acquisition strategy is affected by and poses a number of
challenges and risks, including the following:
|
·
|
Availability
of suitable acquisition candidates;
|
|
·
|
Availability
of capital;
|
|
·
|
Diversion
of management’s attention;
|
|
·
|
Integration
of the operations and personnel of acquired
companies;
|
|
·
|
Potential
write downs of acquired intangible
assets;
|
|
·
|
Potential
loss of key employees of acquired
companies;
|
|
·
|
Use
of a significant portion of our available
cash;
|
|
·
|
Significant
dilution to our shareholders for acquisitions made utilizing our
securities; and
|
|
·
|
Consummation
of acquisitions on satisfactory
terms.
|
We may
not be able to successfully execute our acquisition strategy, and the failure to
do so could have a material adverse effect on our business, financial condition
and results of operations.
We
may incur environmental liabilities and these liabilities may not be covered by
insurance.
Our
operations and facilities are subject to a number of federal, state and local
environmental laws and regulations, which govern, among other things, the
discharge of hazardous materials into the air and water as well as the handling,
storage and disposal of hazardous materials. Pursuant to various environmental
laws, a current or previous owner or operator of real property may be liable for
the costs of removal or remediation of hazardous materials. Environmental laws
typically impose liability whether or not the owner or operator knew of, or was
responsible for, the presence of hazardous materials. Although management
believes that our operations and facilities are in material compliance with
environmental laws and regulations, future changes in them or interpretations
thereof or the nature of our operations may require us to make significant
additional capital expenditures to ensure compliance in the future.
We do not
maintain specific environmental liability insurance and the expenses related to
these environmental liabilities, if we are required to pay them, could have a
material adverse effect on our business, financial condition and results of
operations.
We
are dependent on key personnel and the loss of these key personnel could have a
material adverse effect on our success.
Our
success substantially depends on the performance, contributions and expertise of
our senior management team led by Laurans A. Mendelson, our Chairman, President
and Chief Executive Officer. Technical employees are also critical to our
research and product development, as well as our ability to continue to
re-design sophisticated products of OEMs in order to sell competing replacement
parts at substantially lower prices than those manufactured by the OEMs. The
loss of the services of any of our executive officers or other key employees or
our inability to continue to attract or retain the necessary personnel could
have a material adverse effect on our business, financial condition and results
of operations.
Our
executive officers and directors have significant influence over our management
and direction.
As of
September 9, 2009, collectively our executive officers and entities controlled
by them, our 401(k) Plan and members of the Board of Directors beneficially
owned approximately 26% of our outstanding Common Stock and approximately 7% of
our outstanding Class A Common Stock. Accordingly, they will be able to
substantially influence the election of the Board of Directors and control our
business, policies and affairs, including our position with respect to proposed
business combinations and attempted takeovers.
Unless we
inform you otherwise in a prospectus supplement, we intend to use the net
proceeds of any securities sold under this prospectus for general corporate
purposes. General corporate purposes may include any of the
following:
|
·
|
funding
capital expenditures;
|
|
·
|
paying
for possible acquisitions or the expansion of our business;
and
|
|
·
|
providing
working capital.
|
When a
particular series of securities is offered, the prospectus supplement relating
to that offer will set forth our intended use for the proceeds we receive from
the sale of those securities. Pending the application of the net proceeds, we
may invest the proceeds in short-term, interest-bearing instruments or other
investment-grade securities.
From time
to time, we engage in preliminary discussions and negotiations with various
businesses in order to explore the possibility of an acquisition or investment.
However, as of the date of this prospectus, we have not entered into any
agreements or arrangements which would make an acquisition or investment
probable under Rule 3-05(a) of Regulation S-X. In addition, as of the
date of this prospectus, we have not entered into any agreements or arrangements
for capital expenditures that would be paid for from the proceeds of this
offering.
We will
not receive any proceeds from sales of common shares by the selling
shareholders.
We have
historically paid semi-annual cash dividends on both our Common Stock and Class
A Common Stock. In July 2009, we paid our 62nd consecutive semi-annual cash
dividend since 1979. Our Board of Directors presently intends to continue the
payment of regular semi-annual cash dividends on both classes of our common
stock. Our ability to pay dividends could be affected by future business
performance, liquidity, capital needs, alternative investment opportunities and
loan covenants under our revolving credit facility. For the frequency
and amount of cash dividends paid on our Common Stock and Class A Common Stock
for the two most recent fiscal years and quarterly periods, see the section
“Price Range of Common Stock and Class A Common Stock and
Dividends.”
CLASS
A COMMON STOCK AND DIVIDENDS
Our
Common Stock and Class A Common Stock are listed and traded on the NYSE under
the symbols “HEI,” and “HEI.A,” respectively. The following tables set forth,
for the periods indicated, the high and low share prices for the Common Stock
and Class A Common Stock as reported on the NYSE, as well as the amount of cash
dividends paid per share during such periods.
Common
Stock
|
|
High
|
|
|
Low
|
|
|
Cash
Dividends
Per Share
|
|
Fiscal
2007:
|
|
|
|
|
|
|
|
|
|
First
Quarter
|
|
$ |
40.07 |
|
|
$ |
34.01 |
|
|
$ |
.04 |
|
Second
Quarter
|
|
|
40.35 |
|
|
|
33.76 |
|
|
|
— |
|
Third
Quarter
|
|
|
44.43 |
|
|
|
35.81 |
|
|
|
.04 |
|
Fourth
Quarter
|
|
|
54.52 |
|
|
|
39.51 |
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal
2008:
|
|
|
|
|
|
|
|
|
|
|
|
|
First
Quarter
|
|
$ |
56.92 |
|
|
$ |
42.00 |
|
|
$ |
.05 |
|
Second
Quarter
|
|
|
52.78 |
|
|
|
41.80 |
|
|
|
— |
|
Third
Quarter
|
|
|
54.35 |
|
|
|
30.16 |
|
|
|
.05 |
|
Fourth
Quarter
|
|
|
48.27 |
|
|
|
26.49 |
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal
2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
First
Quarter
|
|
$ |
42.78 |
|
|
$ |
24.30 |
|
|
$ |
.06 |
|
Second
Quarter
|
|
|
41.64 |
|
|
|
21.40 |
|
|
|
— |
|
Third
Quarter
|
|
|
40.50 |
|
|
|
26.32 |
|
|
|
.06 |
|
As of
September 9, 2009, there were 598 holders of record of our Common
Stock.
Class A Common
Stock
|
|
High
|
|
|
Low
|
|
|
Cash
Dividends
Per Share
|
|
Fiscal
2007:
|
|
|
|
|
|
|
|
|
|
First
Quarter
|
|
$ |
33.01 |
|
|
$ |
28.72 |
|
|
$ |
.04 |
|
Second
Quarter
|
|
|
34.29 |
|
|
|
29.10 |
|
|
|
— |
|
Third
Quarter
|
|
|
37.58 |
|
|
|
30.65 |
|
|
|
.04 |
|
Fourth
Quarter
|
|
|
44.36 |
|
|
|
32.65 |
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal
2008:
|
|
|
|
|
|
|
|
|
|
|
|
|
First
Quarter
|
|
$ |
44.63 |
|
|
$ |
32.05 |
|
|
$ |
.05 |
|
Second
Quarter
|
|
|
42.24 |
|
|
|
32.80 |
|
|
|
— |
|
Third
Quarter
|
|
|
41.68 |
|
|
|
24.87 |
|
|
|
.05 |
|
Fourth
Quarter
|
|
|
36.19 |
|
|
|
19.82 |
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fiscal
2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
First
Quarter
|
|
$ |
31.36 |
|
|
$ |
18.27 |
|
|
$ |
.06 |
|
Second
Quarter
|
|
|
30.63 |
|
|
|
17.34 |
|
|
|
— |
|
Third
Quarter
|
|
|
32.76 |
|
|
|
23.26 |
|
|
|
.06 |
|
As of
September 9, 2009, there were 595 holders of record of our Class A Common
Stock.
The table
below sets forth, as of September 9, 2009, the number of shares of our Common
Stock and our Class A Common Stock that each selling shareholder beneficially
owns. The percentage of outstanding shares of Common Stock and Class A Common
Stock beneficially owned before the offering is based on 10,395,141 shares of
our Common Stock and 15,695,984 shares of our Class A Common Stock outstanding
as of September 9, 2009 and is calculated in accordance with Rule 13d-3 under
the Exchange Act.
The term
“selling shareholders,” as used in this prospectus, includes each of the holders
listed below and its donees or heirs receiving shares from the holder listed
below after the date of this prospectus. The selling shareholders may sell,
transfer or otherwise dispose of some or all of their shares of Common Stock and
Class A Common Stock, including shares of Common Stock and Class A Common Stock
and other of our securities not covered by this prospectus, in transactions
exempt from the registration requirements of the Securities Act of 1933,
including in open-market transactions in reliance on Rule 144 under the
Securities Act. We will update, amend or supplement this prospectus from time to
time to update the disclosure in this section as may be required.
The
selling shareholders will not bear the expenses of the registration in
connection with the offering of their shares. The registration of the selling
shareholders' shares of Common Stock and Class A Common Stock does not
necessarily mean that the selling shareholders will offer or sell any of their
shares.
Name
|
|
Shares
Beneficially Owned Prior to Offering*
|
|
|
Percentage
of Outstanding Shares Beneficially Owned Prior to Offering*
|
|
|
|
|
|
|
|
|
Mendelson
Reporting Group
|
|
|
|
|
|
|
Common Stock
(1)
|
|
|
1,926,922 |
|
|
|
17.5 |
% |
Class A Common Stock
(2)
|
|
|
398,058 |
|
|
|
2.5 |
% |
_____________________________________
(1)
|
Consists
of 1,049,623 shares deemed to be beneficially owned by Laurans A.
Mendelson, 445,901 shares deemed to be beneficially owned by Eric A.
Mendelson, and 431,398 shares deemed to be beneficially owned by Victor H.
Mendelson. Laurans A. Mendelson is the Chairman of the Board,
President and Chief Executive Officer of HEICO. Eric A.
Mendelson is the President – Flight Support Group, President and Chief
Executive Officer of HEICO Aerospace Holdings Corp., and a director of
HEICO. Victor H. Mendelson is the President – Electronic
Technologies Group, President and Chief Executive Officer of HEICO
Electronic Technologies Corp., and a director of
HEICO.
|
(2)
|
Consists
of 84,631 shares deemed to be beneficially owned by Laurans A. Mendelson,
115,106 shares deemed to be beneficially owned by Eric A. Mendelson,
133,612 shares deemed to be beneficially owned by Victor H. Mendelson and
64,709 shares owned by Mendelson International Corporation, which may be
deemed to be beneficially owned by each or any of Laurans, Eric or Victor
Mendelson, however Laurans Mendelson disclaims beneficial ownership of
these shares.
|
*
|
We
have determined the number and percentage of shares beneficially owned in
accordance with Rule 13d-3 of the Exchange Act and this information does
not necessarily indicate ownership for any other
purpose.
|
General
We are
authorized to issue 30,000,000 shares of Common Stock, par value $.01 per share,
30,000,000 shares of Class A Common Stock, par value $.01 per share, and
10,000,000 shares of Preferred Stock, par value $.01 per share, of which 300,000
shares have been designated as Series B Junior Participating Preferred Stock and
300,000 shares have been designated as Series C Junior Participating Preferred
Stock. As of September 9, 2009, (i) 10,395,141 shares of Common Stock
were outstanding and such shares were held by approximately 598 holders of
record and (ii) 15,695,984 shares of Class A Common Stock were outstanding and
such shares were held by approximately 595 holders of record. None of the
Preferred Stock is outstanding.
The
following descriptions of the Common Stock, the Class A Common Stock, the
Preferred Stock, the Series B Preferred Stock and the Series C Preferred Stock
are based on our Articles and Bylaws and applicable Florida law.
Common
Stock
Each
holder of Common Stock is entitled to one vote for each share owned of record on
all matters presented to the shareholders. In the event of a
liquidation, dissolution or winding up of the company, the holders of Common
Stock are entitled to share equally and ratably in the assets of the company, if
any, remaining after the payment of all of our debts and liabilities and the
liquidation preference of any outstanding Preferred Stock. The Common
Stock has no preemptive rights, no cumulative voting rights and no redemption,
sinking fund or conversion provisions. As of September 9, 2009,
3,220,376 shares are reserved for issuance as either Common Stock or Class A
Common Stock under our existing stock option plans.
Holders
of Common Stock are entitled to receive dividends if, as and when declared by
the Board of Directors out of funds legally available therefor, subject to the
dividend and liquidation rights of any Preferred Stock that may be issued and
outstanding and subject to any dividend restrictions in our revolving credit
facility. No dividends or other distributions (including redemptions
or repurchases of shares of capital stock) may be made if, after giving effect
to any such dividends or distributions, we would not be able to pay our debts as
they become due in the usual course of business or our total assets would be
less than the sum of its total liabilities plus the amount that would be needed
at the time of a liquidation to satisfy the preferential rights of any holders
of Preferred Stock.
The
transfer agent and registrar for the Common Stock is BNY Mellon Shareowner
Services, Pittsburgh, Pennsylvania.
Class
A Common Stock
Each
holder of Class A Common Stock is entitled to the identical rights as the
holders of Common Stock except that each share of Common Stock will entitle the
holder thereof to one vote in respect of matters submitted for the vote of
holders of Common Stock, whereas each share of Class A Common Stock will entitle
the holder thereof to one-tenth of a vote on such matters.
Preferred
Stock, Series B Preferred Stock and Series C Preferred Stock
Our Board
of Directors is authorized, without further shareholder action, to designate and
issue from time to time one or more series of Preferred Stock, including the
Series B Preferred Stock and Series C Preferred Stock. The Board of
Directors may fix and determine the designations, preferences and relative
rights and qualifications, limitations or restrictions of any series of
Preferred Stock so established, including voting powers, dividend rights,
liquidation preferences, redemption rights and conversion
privileges. Because the Board of Directors has the power to establish
the preferences and rights of each series of Preferred Stock, it may afford the
holders of any series of Preferred Stock preferences and rights, voting or
otherwise senior to the rights of holders of Common Stock and Class A Common
Stock. Subject to adjustment, holders of shares of the Series B and
Series C Preferred Stock will be entitled to, among other things, (i) receive,
when, as and if declared by the Board of Directors cash dividends in an amount
per share equal to 100 times the aggregate per share amount of all cash
dividends declared or paid on the applicable class of stock and (ii) 100 votes
per share of Series B Preferred Stock and 10 votes per share of Series C
Preferred Stock on all matters submitted to a vote of the shareholders and the
right to vote together with the holders of shares of Common Stock and Class A
Common Stock as a single voting group on all matters submitted to a vote of the
shareholders. As of the date of this Prospectus, the Board of
Directors has not issued any Preferred Stock or Series B or Series C Preferred
Stock, and has no plans to issue any shares of Preferred Stock or Series B or
Series C Preferred Stock.
Anti-takeover
Effects of Certain Provisions of Florida Law, Our Articles of Incorporation and
Bylaws, and the Preferred Stock Purchase Rights
Articles and
Bylaws. Some of the provisions of our articles of
incorporation and bylaws may be deemed to have anti-takeover effects and may
discourage, delay, defer or prevent a takeover attempt that a shareholder might
consider in its best interest. These provisions do the
following:
|
·
|
establish
advance notice procedures for the nomination of candidates for election as
directors and for shareholder proposals to be considered at annual
shareholders’ meetings;
|
|
·
|
provide
that special meetings of the shareholders may be called by the Chairman of
the Board of Directors or the President of HEICO or by a majority of the
Board of Directors;
|
|
·
|
authorize
the issuance of 10,000,000 shares of Preferred Stock with the
designations, rights, preferences and limitations as may be determined
from time to time by the Board of
Directors;
|
|
·
|
authorize
the issuance of 30,000,000 shares of Common Stock having one vote per
share; and
|
|
·
|
authorize
the issuance of 30,000,000 shares of Class A Common Stock having 1/10th
vote per share.
|
Accordingly,
without shareholder approval, the Board of Directors can, among other
things,
|
·
|
issue
preferred stock with dividend, liquidation, conversion, voting or other
rights that could adversely affect the voting powers or other rights of
holders of our Common Stock and Class A Common Stock;
and
|
|
·
|
help
maintain the voting power of existing Common Stock shareholders and deter
or frustrate takeover attempts that existing holders of Common Stock might
consider to be in their best interest by issuing additional shares of
Class A Common Stock.
|
Rights. In
addition, each Common Stock right entitles the registered holder to purchase
from us one one-hundredth of a share of our Series B Junior Participating
Preferred Stock, par value $.01 per share, at a price of $45.00 per one
one-hundredth of a share of Series B Preferred Stock, subject to
adjustment. Furthermore, each Class A Common Stock right entitles the
registered holder to purchase from us one one-hundredth of a share of our Series
C Junior Participating Preferred Stock, par value $.01 per share, at a price of
$39.00 per one one-hundredth of a share Series C Preferred Stock, subject to
adjustment. The rights trade with each outstanding share of Common
Stock and Class A Common Stock, as applicable. The rights applicable
to the Common Stock or Class A Common Stock are not exercisable or transferable
apart from the respective class of stock until a person or group acquires 15% or
more of the outstanding shares of that class of stock or commences, or announces
an intention to commence, a tender offer for 15% or more of the outstanding
shares of that class of stock. The rights applicable to the Common
Stock or Class A Common Stock expire on November 2, 2013, and will cause
substantial dilution to a person or a group who attempts to acquire our company
on terms not approved by the Board of Directors or who acquires 15% or more of
the outstanding shares of Common Stock or Class A Common Stock without approval
of the Board of Directors. We can redeem the rights at $.01 per right
at any time until the close of business on the tenth day after a person or group
has obtained beneficial ownership of 15% or more of the outstanding Common Stock
or Class A Common Stock or until a person commences or announces an intention to
commence a tender offer for 15% or more of the outstanding Common Stock or Class
A Common Stock.
Subject
to adjustment, holders of shares of the Series B and Series C Preferred Stock
will be entitled to, among other things, (i) receive, when, as and if declared
by the Board of Directors, cash dividends in an amount per share equal to 100
times the aggregate per share amount of all cash dividends declared or paid on
the applicable class of stock and (ii) 100 votes per share of Series B Preferred
Stock and 10 votes per share of Series C Preferred Stock on all matters
submitted to a vote of the shareholders and the right to vote together with the
holders of shares of common stock as a single voting group on all
matters submitted to a vote of the shareholders.
Florida
Law. Furthermore, some of the provisions of the Florida
Business Corporation Act could have the effect of delaying, deferring or
preventing a change in control.
The
following description, together with the additional information we include in
any applicable prospectus supplement, summarizes the material terms and
provisions of the debt securities that we may offer under this prospectus. While
the terms we have summarized below will generally apply to any future debt
securities we may offer under this prospectus, we will describe the particular
terms of any debt securities that we may offer in more detail in the applicable
prospectus supplement. The terms of any debt securities we offer
under a prospectus supplement may differ from the terms we describe
below.
We may
offer debt securities in the form of either senior debt securities or
subordinated debt securities. The senior debt securities and the
subordinated debt securities are together referred to in this prospectus as the
“debt securities.” Unless otherwise specified in a supplement to this
prospectus, the senior debt securities will be our direct, unsecured obligations
and will rank equally with all of our other unsecured and unsubordinated
indebtedness. The subordinated debt securities generally will be
entitled to payment only after payment of our senior debt. See
“--Subordination” below.
The debt
securities will be issued under an indenture between us and a
trustee. We have summarized below the general features of the debt
securities to be governed by the indenture. The form of summary is
not complete. The
form of indenture has been filed as an exhibit to the registration statement
that we have filed with the SEC, of which this prospectus forms a
part. We encourage you to read the applicable
prospectus
supplements related to the debt securities that we may offer under this
prospectus, as well as the indenture. Capitalized terms used in the
summary have the meanings specified in the indenture.
General
The terms
of each series of debt securities will be established by or pursuant to a
resolution of our Board of Directors, or a committee thereof, and set forth or
determined in the manner provided in an officers’ certificate or by a
supplemental indenture. The particular terms of each series of debt
securities will be described in a prospectus supplement relating to such series,
including any pricing supplement.
We can
issue an unlimited amount of debt securities under the indenture that may be in
one or more series with the same or various maturities, at par, at a premium or
at a discount. We will set forth in a prospectus supplement,
including any pricing supplement, relating to any series of debt securities
being offered, the aggregate principal amount and the following terms of the
debt securities:
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the
principal amount being offered, and, if a series, the total amount
authorized and the total amount
outstanding;
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any
limit on the amount that may be
issued;
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whether
or not we will issue the series of debt securities in global form and, if
so, the terms and who the depositary will
be;
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the
principal amount due at maturity, and whether the debt securities will be
issued with any original issue
discount;
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whether
and under what circumstances, if any, we will pay additional amounts on
any debt securities held by a person who is not a United States person for
tax purposes, and whether we can redeem the debt securities if we have to
pay such additional amounts;
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the
annual interest rate, which may be fixed or variable, or the method for
determining the rate, the date interest will begin to accrue, the dates
interest will be payable and the regular record dates for interest payment
dates or the method for determining such
dates;
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whether
or not the debt securities will be secured or unsecured, and the terms of
any secured debt;
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the
terms of the subordination of any series of subordinated
debt;
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the
place where payments will be
payable;
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restrictions
on transfer, sale or other assignment, if
any;
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our
right, if any, to defer payment of interest and the maximum length of any
such deferral period;
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provisions
for a sinking fund purchase or other analogous fund, if
any;
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the
date, if any, on which, and the price at which we are obligated, pursuant
to any mandatory sinking fund or analogous fund provisions or otherwise,
to redeem, or at the holder’s option to purchase, the series of debt
securities;
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a
discussion of any material or special United States federal income tax
considerations applicable to the debt
securities;
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information
describing any book-entry features;
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the
procedures for any auction and remarketing, if
any;
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the
denominations in which we will issue the series of debt securities, if
other than denominations of $1,000 and any integral multiple
thereof;
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if
other than dollars, the currency in which the series of debt securities
will be denominated; and
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any
other specific terms, preferences, rights or limitations of, or
restrictions on, the debt securities, including any events of default that
are in addition to those described in this prospectus or any covenants
provided with respect to the debt securities that are in addition to those
described above, and any terms which may be required by us or be advisable
under applicable laws or regulations or advisable in connection with the
marketing of the debt securities.
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We may issue debt securities that
provide for an amount less than their stated principal amount to be due and
payable upon declaration of acceleration of their maturity pursuant to the terms
of the indenture. We will provide you with information on the federal
income tax considerations and other special considerations applicable to any of
these debt securities in the applicable prospectus supplement.
Conversion
of Exchange Rights
We will
set forth in the prospectus supplement the terms on which a series of debt
securities may be convertible into or exchangeable for common stock or other
securities of ours or a third-party, including the conversion or exchange rate,
as applicable, or how it will be calculated, and the applicable conversion or
exchange period. We will include provisions as to whether conversion
or exchange is mandatory, at the option of the holder or at our
option. We may include provisions pursuant to which the number of our
securities or the securities of a third-party that the holders of the series of
debt securities receive upon conversion or exchange would, under the
circumstances described in those provisions, be subject to adjustment, or
pursuant to which those holders would, under those circumstances, receive other
property upon conversion or exchange, for example in the event of our merger or
consolidation with another entity.
Covenants
We will
set forth in the applicable prospectus supplement any restrictive covenants
applicable to any issue of debt securities.
Consolidation,
Merger and Sale of Assets
The
indenture in the form initially filed as an exhibit to the registration
statement of which this prospectus is a part does not contain any covenant which
restricts our ability to merge or consolidate, or sell, convey, transfer or
otherwise dispose of all or substantially all of our assets. However, any
successor of ours or acquirer of such assets must assume all of our obligations
under the indenture and the debt securities.
Events
of Default
The
following are events of default under the indenture with respect to any series
of debt securities that we may issue:
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if
we fail to pay interest when due and payable and our failure continues for
30 days and the time for payment has not been extended or
deferred;
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if
we fail to pay the principal, or premium, if any, when due and payable and
the time for payment has not been extended or
delayed;
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if
we fail to observe or perform any other covenant contained in the debt
securities or the indenture, other than a covenant specifically relating
to another series of debt securities, and our failure continues for 90
days after we receive notice from the trustee or holders of at least 25%
in aggregate principal amount of the outstanding debt securities of the
applicable series;
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if
specified events of bankruptcy, insolvency or reorganization occur;
and
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any
other event of default provided with respect to debt securities of that
series that is described in the applicable prospectus supplement
accompanying this prospectus.
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No event
of default with respect to a particular series of debt securities (except as to
certain events of bankruptcy, insolvency or reorganization) necessarily
constitutes an event of default with respect to any other series of debt
securities. The occurrence of an event of default may constitute an
event of default under our bank credit agreements in existence from time to
time. In addition, the occurrence of certain events of default or an
acceleration under the indenture may constitute an event of default under
certain of our other indebtedness outstanding from time to time.
If an
event of default with respect to debt securities of any series at the time
outstanding occurs and is continuing, then the trustee or the holders of not
less than a majority in principal amount of the outstanding debt securities of
that series may, by a notice in writing to us (and to the trustee if given by
the holders), declare to be due and payable immediately the principal (or, if
the debt securities of that series are discount securities, that portion of the
principal amount as may be specified in the terms of that series) of, and
accrued and unpaid interest, if any, on all debt securities of that
series. In the case of an event of default resulting from certain
events of bankruptcy, insolvency or reorganization, the principal (or such
specified amount) of and accrued and unpaid interest, if any, on all outstanding
debt securities will become and be immediately due and payable without any
declaration or other act on the part of the trustee or any holder of outstanding
debt securities. At any time after a declaration of acceleration with
respect to debt securities of any series has been made, but before a judgment or
decree for payment of the money due has been obtained by the trustee, the
holders of a majority in aggregate principal amount of the outstanding debt
securities of that series may, by written notice to us and to the trustee,
rescind and annul the acceleration if all events of default, other than the
non-payment of accelerated principal and interest, if any, with respect to debt
securities of that series, have been cured or waived as provided in the
indenture. We refer you to the prospectus supplement relating to any
series of debt securities that are
discount
securities for the particular provisions relating to acceleration of a portion
of the principal amount of such discount securities upon the occurrence of an
event of default.
The
indenture provides that the trustee will be under no obligation to exercise any
of its rights or powers under the indenture at the request of any holder of
outstanding debt securities, unless the trustee receives indemnity satisfactory
to it against any loss, liability or expense. Subject to certain
rights of the trustee, the holders of a majority in principal amount of the
outstanding debt securities of any series will have the right 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 that series.
No holder
of any debt security of any series will have any right to institute any
proceeding, judicial or otherwise, with respect to the indenture or for the
appointment of a receiver or trustee, or for any remedy under the indenture,
unless:
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that
holder has previously given to the trustee written notice of a continuing
event of default with respect to debt securities of that series;
and
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the
holders of at least a majority in aggregate principal amount of the
outstanding debt securities of that series then outstanding have made
written request, and offered reasonable indemnity, to the trustee to
institute the proceeding as trustee, and the trustee has failed to
institute the proceeding within 60 days and has not received from the
holders of a majority in aggregate principal amount of the outstanding
debt securities of that series a direction inconsistent with that request
during such 60 day period.
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Notwithstanding
the foregoing, the holder of any debt security will have an absolute and
unconditional right to receive payment of the principal of, and any premium and
interest on, that debt security on or after the due dates expressed in that debt
security and to institute suit for the enforcement of payment.
If any securities are outstanding under
the indenture, the indenture requires us, within 120 days after the end of our
fiscal year, to furnish to the trustee a statement as to compliance with the
indenture. The indenture provides that the trustee may withhold
notice to the holders of debt securities of any series of any default or event
of default (except in payment on any debt securities of that series) with
respect to debt securities of that series if it in good faith determines that
withholding notice is in the interest of the holders of those debt securities.
Modification
and Waiver
We may
modify and amend the indenture without the consent of or notice to the holders
to cure any ambiguity or to correct or supplement any provision contained in the
indenture, in any supplemental indenture, or in the debt securities of any
series that may be defective or inconsistent with any other provision contained
in the indenture or any supplemental indenture; to convey, transfer, assign,
mortgage or pledge any property to or with the trustee, or to make such other
provisions in regard to matters or questions arising under the indenture as
shall not adversely affect the legal rights of the holders under the indenture;
to establish the forms or terms of debt securities of any series which is not
yet issued; to add to the restrictive covenants for the benefit of the holders
of all or any series of debt securities (or if such covenants are for the
benefit of less than all series of debt securities, stating that such covenants
are expressly being included for the benefit of such series) or to surrender any
right or power herein conferred upon us; to change or eliminate any of the
provisions of the indenture with respect to any series of debt securities,
provided that any such change or elimination shall become effective only when
there is no debt security outstanding of any series created prior to the
execution of such supplemental indenture which is
entitled
to the benefit of such provision; to provide for the assumption of our
obligations to the holders of debt securities in the case of a merger or
consolidation or sale of all or substantially all of our assets; to make any
change that would provide any additional rights or benefits to the holders of
debt securities or that does not adversely affect the legal rights under the
indenture of any such holder; to modify or amend the indenture in such manner,
including pursuant to requirements of the SEC, in order to effect or maintain
the qualification of the indenture under the Trust Indenture Act; to add
guarantees with respect to the debt securities of any series or to secure the
debt securities of any series; to secure the debt securities pursuant to the
requirements of any indenture supplement; to supplement any of the provisions of
this indenture to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of debt securities under the terms of the
indenture; to evidence and provide for the acceptance of appointment by a
successor or separate trustee with respect to the debt securities of any series
and to add to or change any of the provisions of the indenture as shall be
necessary to provide for or facilitate the administration of the indenture by
more than one trustee; or to provide for uncertificated debt
securities.
Except as
described below, we and the trustee may, with respect to any series of debt
securities, amend or supplement the indenture or the debt securities of such
series with the consent of at least a majority in aggregate principal amount of
the outstanding debt securities of each series affected by the modifications or
amendments. The holders of a majority in aggregate principal amount of the
outstanding debt securities of any series may on behalf of the holders of all
the debt securities of such series waive any past default under the indenture
with respect to that series and its consequences, except a default in the
payment of the principal of, or any premium or interest on, any debt security of
that series or in respect of a covenant or provision, which cannot be modified
or amended without the consent of the holder of each outstanding debt security
of the series affected; provided, however, that the holders of a majority in
principal amount of the outstanding debt securities of any series may rescind an
acceleration and its consequences, including any related payment default that
resulted from the acceleration.
We may
not make any modification or amendment without the consent of the holders of
each affected debt security then outstanding if that amendment
will:
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reduce
the amount of debt securities whose holders must consent to an amendment
or waiver;
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reduce
the rate of or extend the time for payment of interest (including default
interest) on any debt security;
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reduce
the principal of or change the fixed maturity of any debt security or
alter the provisions, or waive any payment with respect to the redemption
of any debt security of that
series;
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waive
a default or event of default in the payment of the principal of, or
premium or interest on, any debt security (except a rescission of
acceleration of the debt securities of any series by the holders of at
least a majority in aggregate principal amount of the then outstanding
debt securities of that series and a waiver of the payment default that
resulted from such acceleration);
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make
the principal of, or premium or interest on, any debt security payable in
currency other than U.S. dollars;
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make
any change to certain provisions of the indenture relating to waivers of
past defaults or the rights of holders of debt securities of a series to
receive payments of principal of, and premium and interest on, those debt
securities and to institute suit for the enforcement of any such payment
and to waivers or amendments;
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release any guarantor from any of
its obligations under its guarantee or the indenture, except in accordance
with the terms of the
indenture;
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impair the right to institute
suit for the enforcement of any payment on or with respect to the
securities or the guarantees;
or
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make any change in the preceding
amendment and waiver
provisions.
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Defeasance
of Debt Securities and Certain Covenants in Certain Circumstances
Legal
Defeasance. The indenture provides that, unless otherwise
provided by the terms of the applicable series of debt securities, we may be
discharged from any and all obligations in respect of the debt securities of any
series (except for certain obligations to register the transfer or exchange of
debt securities of such series, to replace stolen, lost or mutilated debt
securities of such series, and to maintain paying agencies and certain
provisions relating to the treatment of funds held by paying
agents). We will be so discharged upon the irrevocable deposit with
the trustee, in trust for the benefit of the holders of the series of
securities, of cash in U.S. dollars, non-callable government securities, or a
combination of cash in U.S. dollars and non-callable government securities, in
amounts as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants to the principal of, premium and interest on the
debt securities of that series on the stated maturity or on the applicable
redemption date in accordance with the terms of the indenture and those debt
securities.
This
discharge may occur only if, among other things, we have delivered to the
trustee an opinion of counsel stating that we have received from, or there has
been published by, the United States Internal Revenue Service a ruling or, since
the date of execution of the indenture, there has been a change in the
applicable United States federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the holders of the debt
securities of that series will not recognize income, gain or loss for United
States federal income tax purposes as a result of the deposit, defeasance and
discharge and will be subject to United States federal income tax on the same
amounts and in the same manner and at the same times as would have been the case
if the deposit, defeasance and discharge had not occurred.
Covenant Defeasance. The
indenture provides that, unless otherwise provided by the terms of the
applicable series of debt securities, upon compliance with certain conditions we
shall be released from our obligations under any covenants that are made
applicable to such series of debt securities through a supplemental indenture
pursuant to the terms of the indenture, on and after the date the conditions set
forth in the indenture are satisfied and the debt securities of that series
shall thereafter be deemed not “outstanding” for the purposes of any direction,
waiver, consent or declaration or act of holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
“outstanding” for all other purposes under the indenture (it being understood
that such debt securities shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding series of debt securities, we may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere in the indenture to any such covenant or by reason of any
reference in any such covenant to any other provision in the indenture or in any
other document and such omission to comply shall not constitute a default or an
event of default.
The
conditions include:
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the
irrevocable deposit with the trustee, in trust for the benefit of the
holders of the series of securities, of cash in U.S. dollars, non-callable
government securities, or a combination of cash in U.S. dollars and
non-callable government securities, in amounts as will be sufficient, in
the
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opinion
of a nationally recognized firm of independent public accountants, to the
principal of, premium and interest on the debt securities of that series on the
stated maturity or on the applicable redemption date in accordance with the
terms of the indenture and those debt securities; and
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delivery
to the trustee of an opinion of counsel stating that we have received
from, or there has been published by, the United States Internal Revenue
Service a ruling or, since the date of execution of the indenture, there
has been a change in the applicable United States federal income tax law,
in either case to the effect that, and based thereon such opinion shall
confirm that, the holders of the debt securities of that series will not
recognize income, gain or loss for United States federal income tax
purposes as a result of the deposit, defeasance and discharge and will be
subject to United States federal income tax on the same amounts and in the
same manner and at the same times as would have been the case if the
deposit, defeasance and discharge had not
occurred.
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Subordination
Unless
indicated differently in a prospectus supplement, our subordinated debt
securities will be subordinated in right of payment to the prior payment in full
of all our senior debt. This means that upon:
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any
distribution of our assets upon our dissolution, winding-up, liquidation
or reorganization in bankruptcy, insolvency, receivership or other
proceedings, or
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the
acceleration of the maturity of the subordinated debt securities,
or
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a
failure to pay any senior debt or interest thereon when due and the
continuance of that default beyond any applicable grace period,
or
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the
acceleration of the maturity of any senior debt as a result of a
default,
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the
holders of all of our senior debt will be entitled to receive:
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in
the case of the first two bullet points above, payment of all amounts due
or to become due on all senior debt,
and
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in
the case of the second two bullet points above, payment of all amounts due
on all senior debt,
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before
the holders of any of the subordinated debt securities are entitled to receive
any payment. So long as any of the events in the bullet points above
has occurred and is continuing, any amounts payable on the subordinated debt
securities will instead be paid directly to the holders of all senior debt to
the extent necessary to pay the senior debt in full and, if any payment is
received by the subordinated indenture trustee under the subordinated indenture
or the holders of any of the subordinated debt securities before all senior debt
is paid in full, the payment or distribution must be paid over to the holders of
the unpaid senior debt. Subject to paying the senior debt in full,
the holders of the subordinated debt securities will be subrogated to the rights
of the holders of the senior debt to the extent that payments are made to the
holders of senior debt out of the distributive share of the subordinated debt
securities.
The term
“senior debt” means with respect to the subordinated debt securities, the
principal of, premium, if any, and interest, if any, on and any other payment in
respect of indebtedness due pursuant to any of the following, whether
outstanding on the date the subordinated debt securities are issued or
thereafter incurred, created or assumed:
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all
of our indebtedness evidenced by notes, debentures, bonds or other
securities sold by us for money or other obligations for money
borrowed;
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all
indebtedness of others of the kinds described in the preceding bullet
point assumed by or guaranteed in any manner by us or in effect guaranteed
by us through an agreement to purchase, contingent or otherwise, as
applicable; and
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all
renewals, extensions or refundings of indebtedness of the kinds described
in either of the first two bullet points
above,
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unless,
in the case of any particular indebtedness, renewal, extension or refunding, the
instrument creating or evidencing the same or the assumption or guarantee of the
same by its terms provides that such indebtedness, renewal, extension or
refunding is not superior in right of payment to or is pari passu with such
securities.
Due to
the subordination, if our assets are distributed upon insolvency, certain of our
general creditors may recover more, ratably, than holders of subordinated debt
securities. The subordination provisions will not apply to money and
securities held in trust under the satisfaction and discharge and the defeasance
provisions of the applicable subordinated indenture.
The subordinated debt securities and
the subordinated indenture do not limit our ability to incur additional
indebtedness, including indebtedness that will rank senior to the subordinated
debt securities. We may incur substantial additional amounts of
indebtedness in the future.
Governing
Law
Unless
otherwise described in any prospectus supplement, the indenture and the debt
securities will be governed by, and construed in accordance with, the internal
laws of the State of New York.
This
section describes the general terms of the depositary shares we may offer and
sell by this prospectus. This prospectus and any accompanying
prospectus supplement will contain the material terms and conditions for the
depositary shares. The accompanying prospectus supplement may add,
update, or change the terms and conditions of the depositary shares as described
in this prospectus.
General
We may,
at our option, elect to offer depositary shares, each representing a fraction
(to be set forth in the prospectus supplement relating to a particular series of
preferred stock) of a share of a particular class or series of preferred stock
as described below. In the event we elect to do so, depositary
receipts evidencing depositary shares will be issued to the public.
The
shares of any class or series of preferred stock represented by depositary
shares will be deposited under a deposit agreement among us, a depositary
selected by us, and the holders of the depositary receipts. The
depositary will be a bank or trust company having its principal office in the
United States and having a combined capital and surplus of at least $50,000,000.
Subject to the terms of the deposit agreement, each owner of a depositary share
will be entitled, in proportion to the applicable fraction of a share of
preferred stock represented by such depositary share, to all of the rights and
preferences of the shares of preferred stock represented by the depositary
share, including dividend, voting, redemption and liquidation
rights.
The
depositary shares will be evidenced by depositary receipts issued pursuant to
the deposit agreement. Depositary receipts will be distributed to
those persons purchasing the fractional shares of the related class or series of
preferred shares in accordance with the terms of the offering described in the
related prospectus supplement.
Pending
the preparation of definitive depositary receipts, the depositary may, upon our
written order, issue temporary depositary receipts substantially identical to,
and entitling the holders thereof to all the rights pertaining to, the
definitive depositary receipts but not in definitive form. Definitive depositary
receipts will be prepared without unreasonable delay, and temporary depositary
receipts will be exchangeable for definitive depositary receipts without charge
to the holder.
Dividends
and Other Distributions
The
depositary will distribute all cash dividends or other cash distributions
received for the preferred stock to the entitled record holders of depositary
shares in proportion to the number of depositary shares that the holder owns on
the relevant record date; provided, however, that if we or the depositary is
required by law to withhold an amount on account of taxes, then the amount
distributed to the holders of depositary shares shall be reduced
accordingly. The depositary will distribute only an amount that can
be distributed without attributing to any holder of depositary shares a fraction
of one cent. The depositary will add the undistributed balance to and
treat it as part of the next sum received by the depositary for distribution to
holders of the depositary shares.
If there is a non-cash distribution,
the depositary will distribute property received by it to the entitled record
holders of depositary shares, in proportion, insofar as possible, to the number
of depositary shares owned by the holders, unless the depositary determines,
after consultation with us, that it is not feasible to make such
distribution. If this occurs, the depositary may, with our approval,
sell such property and distribute the net proceeds from such sale to the
holders. The deposit agreement also will contain provisions relating
to how any subscription or similar rights that we may offer to holders of the
preferred stock will be available to the holders of the depositary
shares.
Withdrawal
of Shares
Upon
surrender of the depositary receipts at the corporate trust office of the
depositary, unless the related depositary shares have previously been called for
redemption, converted or exchanged into our other securities, the holder of the
depositary shares evidenced thereby is entitled to delivery of the number of
whole shares of the related class or series of preferred stock and any money or
other property represented by such depositary shares. Holders of
depositary receipts will be entitled to receive whole shares of the related
class or series of preferred stock on the basis set forth in the prospectus
supplement for such class or series of preferred stock, but holders of such
whole shares of preferred stock will not thereafter be entitled to exchange them
for depositary shares. If the depositary receipts delivered by the
holder evidence a number of depositary shares in excess of the number of
depositary shares representing the number of whole shares of preferred stock to
be withdrawn, the depositary will deliver to such holder at the same time a new
depositary receipt evidencing such excess number of depositary
shares. In no event will fractional shares of preferred stock be
delivered upon surrender of depositary receipts to the depositary.
Conversion,
Exchange and Redemption
If any
class or series of preferred stock underlying the depositary shares may be
converted or exchanged, each record holder of depositary receipts representing
the shares of preferred stock being converted or
exchanged
will have the right or obligation to convert or exchange the depositary shares
represented by the depositary receipts.
Whenever
we redeem or convert shares of preferred stock held by the depositary, the
depositary will redeem or convert, at the same time, the number of depositary
shares representing the preferred stock to be redeemed or
converted. The depositary will redeem the depositary shares from the
proceeds it receives from the corresponding redemption of the applicable series
of preferred stock. The depositary will mail notice of redemption or
conversion to the record holders of the depositary shares that are to be
redeemed between 30 and 60 days before the date fixed for redemption or
conversion. The redemption price per depositary share will be equal
to the applicable fraction of the redemption price per share on the applicable
class or series of preferred stock. If less than all the depositary
shares are to be redeemed, the depositary will select which shares are to be
redeemed by lot on a pro rata basis or by any other equitable method as the
depositary may decide.
After the
redemption or conversion date, the depositary shares called for redemption or
conversion will no longer be outstanding. When the depositary shares
are no longer outstanding, all rights of the holders will end, except the right
to receive money, securities or other property payable upon redemption or
conversion of the depositary shares.
Voting
the Preferred Stock
When the
depositary receives notice of a meeting at which the holders of the particular
class or series of preferred stock are entitled to vote, the depositary will
mail the particulars of the meeting to the record holders of the depositary
shares. Each record holder of depositary shares on the record date
may instruct the depositary on how to vote the shares of preferred stock
underlying the holder's depositary shares. The depositary will try,
if practical, to vote the number of shares of preferred stock underlying the
depositary shares according to the instructions. We will agree to
take all reasonable action requested by the depositary to enable it to vote as
instructed.
Amendment
and Termination of the Deposit Agreement
We and
the depositary may agree at any time to amend the deposit agreement and the
depositary receipt evidencing the depositary shares. Any amendment
that (a) imposes or increases certain fees, taxes or other charges payable by
the holders of the depositary shares as described in the deposit agreement or
(b) otherwise materially adversely affects any substantial existing rights of
holders of depositary shares, will not take effect until such amendment is
approved by the holders of at least a majority of the depositary shares then
outstanding. Any holder of depositary shares that continues to hold
its shares after such amendment has become effective will be deemed to have
agreed to the amendment.
We may
direct the depositary to terminate the deposit agreement by mailing a notice of
termination to holders of depositary shares at least 30 days before
termination. The depositary may terminate the deposit agreement if 90
days have elapsed after the depositary delivered written notice of its election
to resign and a successor depositary is not appointed. In addition,
the deposit agreement will automatically terminate if:
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the
depositary has redeemed all related outstanding depositary
shares;
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all
outstanding shares of preferred stock have been converted into or
exchanged for common stock; or
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we have liquidated, terminated or
wound up our business and the depositary has distributed the preferred
stock of the relevant series to the holders of the related depositary
shares.
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Reports
and Obligations
The
depositary will forward to the holders of depositary shares all reports and
communications from us that are delivered to the depositary and that we are
required by law, the rules of an applicable securities exchange or our amended
and restated articles of incorporation to furnish to the holders of the
preferred stock. Neither we nor the depositary will be liable if the
depositary is prevented or delayed by law or any circumstances beyond its
control in performing its obligations under the deposit
agreement. The deposit agreement limits our obligations to
performance in good faith of the duties stated in the deposit
agreement. The depositary assumes no obligation and will not be
subject to liability under the deposit agreement except to perform such
obligations as are set forth in the deposit agreement without negligence or bad
faith. Neither we nor the depositary will be obligated to prosecute
or defend any legal proceeding connected with any depositary shares or class or
series of preferred stock unless the holders of depositary shares requesting us
to do so furnish us with a satisfactory indemnity. In performing our
obligations, we and the depositary may rely and act upon the advice of our
counsel or accountants, on any information provided to us by a person presenting
shares for deposit, any holder of a receipt, or any other document believed by
us or the depositary to be genuine and to have been signed or presented by the
proper party or parties.
Payment
of Fees and Expenses
We will
pay all fees, charges and expenses of the depositary, including the initial
deposit of the preferred stock and any redemption of the preferred
stock. Holders of depositary shares will pay taxes and governmental
charges and any other charges as are stated in the deposit agreement for their
accounts.
Resignation
and Removal of Depositary
At any
time, the depositary may resign by delivering notice to us, and we may remove
the depositary at any time. Resignations or removals will take effect
upon the appointment of a successor depositary and its acceptance of the
appointment. The successor depositary must be appointed within 90
days after the delivery of the notice of resignation or removal and must be a
bank or trust company having its principal office in the United States and
having a combined capital and surplus of at least $50,000,000.
This
section describes the general terms of the warrants that we may offer and sell
by this prospectus. This prospectus and any accompanying prospectus
supplement will contain the material terms and conditions for each
warrant. The accompanying prospectus supplement may add, update or
change the terms and conditions of the warrants as described in this
prospectus.
General
We may
issue warrants to purchase debt securities or equity securities, including
Common Stock, Class A Common Stock or preferred stock. Warrants may
be issued independently or together with any securities and may be attached to
or separate from those securities. The warrants will be issued under
warrant agreements to be entered into between us and a bank or trust company, as
warrant agent, all of which will be described in the prospectus supplement
relating to the warrants we are offering. The warrant agent will act
solely as our agent in connection with the warrants and will not have any
obligation or
relationship
of agency or trust for or with any holders or beneficial owners of
warrants. A copy of the warrant agreement will be filed with the SEC
in connection with the offering of the warrants.
Debt
Warrants
We may
issue warrants for the purchase of our debt securities. As explained
below, each debt warrant will entitle its holder to purchase debt securities at
an exercise price set forth in, or to be determinable as set forth in, the
related prospectus supplement. Debt warrants may be issued separately
or together with debt securities.
The debt
warrants are to be issued under debt warrant agreements to be entered into
between us, and one or more banks or trust companies, as debt warrant agent, as
will be set forth in the prospectus supplement relating to the debt warrants
being offered by the prospectus supplement and this prospectus. A
copy of the debt warrant agreement, including a form of the debt warrant
certificate representing the debt warrants, will be filed with the SEC in
connection with the offering of the debt warrants.
The
particular terms of each issue of debt warrants, the debt warrant agreement
relating to the debt warrants and the debt warrant certificates representing
debt warrants will be described in the applicable prospectus supplement,
including, as applicable:
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the
title of the debt warrants;
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the
initial offering price;
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the
title, aggregate principal amount and terms of the debt securities
purchasable upon exercise of the debt
warrants;
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the
currency or currency units in which the offering price, if any, and the
exercise price are payable;
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the
title and terms of any related debt securities with which the debt
warrants are issued and the number of the debt warrants issued with each
debt security;
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the
date, if any, on and after which the debt warrants and the related debt
securities will be separately
transferable;
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the
principal amount of debt securities purchasable upon exercise of each debt
warrant and the price at which that principal amount of debt securities
may be purchased upon exercise of each debt
warrant;
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if
applicable, the minimum or maximum number of warrants that may be
exercised at any one time;
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the
date on which the right to exercise the debt warrants will commence and
the date on which the right will
expire;
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·
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if
applicable, a discussion of United States federal income tax, accounting
or other considerations applicable to the debt
warrants;
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whether
the debt warrants represented by the debt warrant certificates will be
issued in registered or bearer form, and, if registered, where they may be
transferred and registered;
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anti-dilution
provisions of the debt warrants, if
any;
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redemption
or call provisions, if any, applicable to the debt warrants;
and
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any
additional terms of the debt warrants, including terms, procedures and
limitations relating to the exchange and exercise of the debt
warrants.
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Debt warrant certificates will be
exchangeable for new debt warrant certificates of different denominations and,
if in registered form, may be presented for registration of transfer, and debt
warrants may be exercised at the corporate trust office of the debt warrant
agent or any other office indicated in the related prospectus
supplement. Before the exercise of debt warrants, holders of debt
warrants will not be entitled to payments of principal of, premium, if any, or
interest, if any, on the debt securities purchasable upon exercise of the debt
warrants, or to enforce any of the covenants in the indenture.
Equity
Warrants
We may
issue warrants for the purchase of our equity securities, such as our Common
Stock, Class A Common Stock or preferred stock. As explained below,
each equity warrant will entitle its holder to purchase equity securities at an
exercise price set forth in, or to be determinable as set forth in, the related
prospectus supplement. Equity warrants may be issued separately or
together with equity securities.
The
equity warrants are to be issued under equity warrant agreements to be entered
into between us and one or more banks or trust companies, as equity warrant
agent, as will be set forth in the prospectus supplement relating to the equity
warrants being offered by the prospectus supplement and this prospectus. A copy
of the equity warrant agreement, including a form of the equity warrant
certificate representing the equity warranty, will be filed with the SEC in
connection with the offering of the equity warrants.
The
particular terms of each issue of equity warrants, the equity warrant agreement
relating to the equity warrants and the equity warrant certificates representing
equity warrants will be described in the applicable prospectus supplement,
including, as applicable:
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the
title of the equity warrants;
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the
initial offering price;
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the
aggregate number of equity warrants and the aggregate number of shares of
the equity security purchasable upon exercise of the equity
warrants;
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the
currency or currency units in which the offering price, if any, and the
exercise price are payable;
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·
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if
applicable, the designation and terms of the equity securities with which
the equity warrants are issued, and the number of equity warrants issued
with each equity security;
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the
date, if any, on and after which the equity warrants and the related
equity security will be separately
transferable;
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if
applicable, the minimum or maximum number of the equity warrants that may
be exercised at any one time;
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the
date on which the right to exercise the equity warrants will commence and
the date on which the right will
expire;
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if
applicable, a discussion of United States federal income tax, accounting
or other considerations applicable to the equity
warrants;
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anti-dilution
provisions of the equity warrants, if
any;
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redemption
or call provisions, if any, applicable to the equity warrants;
and
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any
additional terms of the equity warrants, including terms, procedures and
limitations relating to the exchange and exercise of the equity
warrants.
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Holders
of equity warrants will not be entitled, solely by virtue of being holders, to
vote, to consent, to receive dividends, to receive notice as shareholders with
respect to any meeting of shareholders for the election of directors or any
other matter, or to exercise any rights whatsoever as a holder of the equity
securities purchasable upon exercise of equity warrants.
We may
issue units comprised of one or more debt securities, common stock, shares of
preferred stock and warrants in any combination. Each unit will be
issued so that the holder of the unit is also the holder of each security
included in the unit. Thus, the holder of a unit will have the rights
and obligations of a holder of each included security. The unit
agreement under which a unit is issued may provide that the securities included
in the unit may not be held or transferred separately, at any time or at any
time before a specified date.
The
prospectus supplement may describe:
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the
designation and terms of the units and of the securities comprising the
units, including whether and under what circumstances those securities may
be held or transferred separately;
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any
provisions of the governing unit agreement that differ from those
described below; and
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any
provisions for the issuance, payment, settlement, transfer or exchange of
the units or of the securities comprising the
units.
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We may
issue units in such amounts and in as many distinct series as we
wish. This section summarizes terms of the units that apply generally
to all series.
Unit
Agreements
We will
issue the units under one or more unit agreements to be entered into between us
and a bank or other financial institution, as unit agent. We may add,
replace or terminate unit agents from time to time. We will identify
the unit agreement under which each series of units will be issued and the unit
agent under that agreement in the prospectus supplement.
The following provisions will generally
apply to all unit agreements unless otherwise stated in the prospectus
supplement.
Enforcement
of Rights
The unit
agent under a unit agreement will act solely as our agent in connection with the
units issued under that agreement. The unit agent will not assume any
obligation or relationship of agency or trust for or with any holders of those
units or of the securities comprising those units. The unit agent
will not be obligated to take any action on behalf of those holders to enforce
or protect their rights under the units or the included securities.
Except as
indicated in the next paragraph, a holder of a unit may, without the consent of
the unit agent or any other holder, enforce its rights as holder under any
security included in the unit, in accordance with the terms of that security and
the indenture, warrant agreement or other instrument under which that security
is issued.
Notwithstanding
the foregoing, a unit agreement may limit or otherwise affect the ability of a
holder of units issued under that agreement to enforce its rights, including any
right to bring a legal action, with respect to those units or any securities,
other than debt securities that are included in those
units. Limitations of this kind will be described in the prospectus
supplement.
Modification
Without Consent of Holders
Unless
provided otherwise in an applicable prospectus supplement, we and the applicable
unit agent may amend any unit or unit agreement without the consent of any
holder:
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to
correct or supplement any defective or inconsistent provision;
or,
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to
make any other change that we believe is necessary or desirable and will
not adversely affect the interests of the affected holders in any material
respect.
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We do not
need any approval to make changes that affect only units to be issued after the
changes take effect. We may also make changes that do not adversely
affect a particular unit in any material respect, even if they adversely affect
other units in a material respect. In those cases, we do one need to
obtain the approval of the holder of the unaffected unit; we need only obtain
any required approvals from the holders of the affected units.
Modification
With Consent of Holders
Unless
provided otherwise in an applicable prospectus supplement, we may not amend any
particular unit or a unit agreement with respect to any particular unit unless
we obtain the consent of the holder of that unit, if the amendment
would:
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impair
any right of the holder to exercise or enforce any right under a security
included in the unit if the terms of that security require the consent of
the holder to any changes that would impair the exercise or enforcement of
that right, or
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reduce
the percentage of outstanding units or any series or class the consent of
whose holders is required to amend that series or class, or the applicable
unit agreement with respect to that series or class, as described
below.
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Unless
provided otherwise in an applicable prospectus supplement, any other change to a
particular unit agreement and the units issued under that agreement would
require the following approval:
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If
the change affects only the units of a particular series issued under that
agreement, the change must be approved by the holders of a majority of the
outstanding units of that series,
or
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·
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If
the change affects the units of more than one series issued under that
agreement, it must be approved by the holders of a majority of all
outstanding units of all series affected by the change, with the units of
all the affected series voting together as one class for this
purpose.
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These
provisions regarding changes with majority approval also apply to changes
affecting any securities issued under a unit agreement, as the governing
document.
In each case, the required approval
must be given by written consent.
Unit
Agreements Will Not Be Qualified Under The Trust Indenture Act
No unit
agreement will be qualified as an indenture, and no unit agent will be required
to qualify as a trustee, under the Trust Indenture Act. Therefore, holders of
units issued under unit agreements will not have the protections of the Trust
Indenture Act with respect to their units.
Title
We and
the unit agents and any of our respective agents may treat the registered holder
of any unit certificate as an absolute owner of the units evidenced by that
certificate for any purpose and as the person entitled to exercise the rights
attaching to the units so requested, despite any notice to the
contrary.
We and
the selling shareholders may sell the securities described in this prospectus
from time to time in one or more transactions:
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to
purchasers directly;
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to
underwriters for public offering and sale by
them;
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through
a combination of any of the foregoing methods of
sale.
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We and
the selling shareholders may distribute the securities from time to time in one
or more transactions at:
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a
fixed price or prices, which may be
changed;
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market
prices prevailing at the time of
sale;
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prices
related to such prevailing market prices;
or
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Direct
Sales
We and
the selling shareholders may sell the securities directly to institutional
investors or others. A prospectus supplement will describe the terms
of any sale of securities we are offering hereunder.
To
Underwriters
The
applicable prospectus supplement will name any underwriter involved in a sale of
securities. Underwriters may offer and sell securities at a fixed
price or prices, which may be changed, or from time to time at market prices or
at negotiated prices. Underwriters may be deemed to have received
compensation from us from sales of securities in the form of underwriting
discounts or commissions and may also receive commissions from purchasers of
securities for whom they may act as agent.
Underwriters
may sell securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions (which may be changed from time to time) from
the purchasers for whom they may act as agent.
Unless otherwise provided in a
prospectus supplement, the obligations of any underwriters to purchase
securities or any series of securities will be subject to certain conditions
precedent, and the underwriters will be obligated to purchase all such
securities if any are purchased.
Through
Agents and Dealers
We and
the selling shareholders will name any agent involved in a sale of securities,
as well as any commissions payable by us to such agent, in a prospectus
supplement. Unless we indicate differently in the prospectus
supplement, any such agent will be acting on a reasonable efforts basis for the
period of its appointment.
If a dealer is utilized in the sale of
the securities being offered pursuant to this prospectus, the securities will be
sold to the dealer, as principal. The dealer may then resell the
securities to the public at varying prices to be determined by the dealer at the
time of resale.
Delayed
Delivery Contracts
If we so
specify in the applicable prospectus supplement, underwriters, dealers and
agents will be authorized to solicit offers by certain institutions to purchase
securities pursuant to contracts providing for payment and delivery on future
dates. Such contracts will be subject to only those conditions set
forth in the applicable prospectus supplement.
The underwriters, dealers and agents
will not be responsible for the validity or performance of the
contracts. We will set forth in the prospectus supplement relating to
the contracts the price to be paid for the securities, the commissions payable
for solicitation of the contracts and the date in the future for delivery of the
securities.
Underwriters,
dealers and agents participating in a sale of the securities may be deemed to be
underwriters as defined in the Securities Act, and any discounts and commissions
received by them and any profit realized by them on resale of the securities may
be deemed to be underwriting discounts and
commissions,
under the Securities Act. We and the selling shareholders may have
agreements with underwriters, dealers and agents to indemnify them against
certain civil liabilities, including liabilities under the Securities Act, and
to reimburse them for certain expenses.
Underwriters
or agents and their associates may be customers of, engage in transactions with
or perform services for us or our affiliates in the ordinary course of
business.
Unless we
indicate differently in a prospectus supplement, we will not list the securities
on any securities exchange, other than shares of our Common Stock and Class A
Common Stock. The securities, except for our Common Stock and Class A
Common Stock, will be a new issue of securities with no established trading
market. Any underwriters that purchase securities for public offering
and sale may make a market in such securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. We make no assurance as to the liquidity of or the trading
markets for any securities.
The filing of the registration
statement in which this prospectus is included does not preclude us from issuing
securities in a transaction that is exempt from the registration provisions of
the securities laws.
Certain
legal matters relating to the offering will be passed upon for us and the
selling shareholders by Akerman Senterfitt, Miami, Florida.
The
consolidated financial statements, and the related consolidated financial
statement schedule, incorporated in this Prospectus by reference from HEICO
Corporation's Annual Report on Form 10-K, and the effectiveness of HEICO
Corporation's internal control over financial reporting have been audited by
Deloitte & Touche LLP, an independent registered public accounting firm, as
stated in their report, which is incorporated herein by
reference. Such financial statements and financial statement
schedule have been so incorporated in reliance upon the report of such firm
given upon their authority as experts in accounting and auditing.
We file
annual, quarterly and special reports and other information with the SEC. You
may read and copy these reports and other information at the Public Reference
Room maintained by the SEC at 100 F Street, N.E. Washington, D.C.
20549. Please call the SEC at 1-800-SEC-0330 for further information on the
Public Reference Room. In addition, you may read our SEC filings over the
Internet at the SEC’s website at www.sec.gov.
Our
website is www.heico.com. We make available free of charge through
our website our annual reports on Form 10-K, quarterly reports on Form 10-Q,
current reports on Form 8-K and amendments to those reports filed or furnished
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 as
soon as reasonably practicable after we electronically file such material with,
or furnish it to, the SEC. The information contained on, connected to
or that can be accessed via our website is not part of this
prospectus.
We have
filed with the SEC a Registration Statement on Form S-3 under the Securities Act
to register with the SEC the securities described herein. This prospectus, which
is a part of the registration statement,
does not
contain all of the information set forth in the registration statement. For
further information about us and our securities, you should refer to the
registration statement.
The SEC
allows us to provide information about our business and other important
information to you by “incorporating by reference” the information we file with
the SEC, which means that we can disclose the information to you by referring in
this prospectus to the documents we file with the SEC. Under the SEC’s
regulations, any statement contained in a document incorporated by reference in
this prospectus is automatically updated and superseded by any information
contained in this prospectus, or in any subsequently filed document of the types
described below.
We
incorporate into this prospectus by reference the following documents filed by
us with the SEC, each of which should be considered an important part of this
prospectus:
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a)
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Our
Annual Report on Form 10-K for the year ended October 31, 2008, filed with
the SEC on December 24, 2008;
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b)
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Our
Quarterly Reports on Form 10-Q for the period ended January 31, 2009,
filed with the SEC on March 4, 2009, for the period ended April 30, 2009,
filed with the SEC on June 3, 2009 and for the period ended July 31, 2009,
filed with the SEC on September 1,
2009;
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c)
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Our
Current Reports on Form 8-K, filed with the SEC on December 16, 2008 and
March 31, 2009;
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d)
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The
description of our Common Stock contained in our Registration Statement on
Form 8-A, filed with the SEC on April 28, 1993, as amended January 27,
1999;
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e)
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The
description of our Class A Common Stock contained in our Registration
Statement on Form 8-A, filed with the SEC on April 8, 1998, as amended
January 27, 1999; and
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f)
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The
description of our (i) Rights to Purchase Series B Junior Participating
Preferred Stock and (ii) Rights to Purchase Series C Junior Participating
Preferred Stock contained in our Registration Statement on Form 8-A, filed
November 4, 2003.
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In
addition, all documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this registration statement and to be a part
hereof from the date of filing of such documents. Any statement in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for the purposes of this registration statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
We will
provide to you, upon request, a copy of each of our filings at no cost. Please
make your request by writing or telephoning us at the following address or
telephone number:
HEICO
Corporation
3000 Taft
Street
Hollywood,
Florida 33021
Tel:
(954) 987-4000
You
should rely only on the information incorporated by reference or provided in
this prospectus or any supplement. We have not authorized anyone else to provide
you with different information. You should not assume that the information in
this prospectus or any supplement is accurate as of any date other than the date
on the front of those documents.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth all expenses in connection with the issuance and
distribution of the securities being registered. All amounts shown
are estimates, except for the SEC registration fee:
SEC
registration fee
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$
*
|
Legal
fees and expenses
|
$
**
|
Accounting
fees and expenses
|
$
**
|
Printing,
engraving and mailing expenses
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$
**
|
Miscellaneous
|
$
**
|
|
|
Total
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$
**
|
*
|
The
Registrant is deferring payment of the registration fee in reliance of
Rule 456(b) and Rule 457(r) under the Securities
Act.
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**
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These
fees and expenses depend on the securities offered and the number of
issuances, and accordingly cannot be estimated at this
time.
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Item
15. Indemnification of Directors and Officers.
We have
authority under Section 607.0850 of the Florida Business Corporation Act to
indemnify our directors and officers to the extent provided in such
statute. Our Articles of Incorporation provide that we may indemnify
our executive officers and directors to the fullest extent permitted by law
either now or hereafter. We have entered or will enter into an
agreement with each of our directors and some of our officers wherein we have
agreed or will agree to indemnify each of them to the fullest extent permitted
by law.
The provisions of the Florida Business
Corporation Act that authorize indemnification do not eliminate the duty of care
of a director, and in appropriate circumstances, equitable remedies such as
injunctive or other forms of non-monetary relief will remain available under
Florida law. In addition, each director will continue to be subject
to liability for (a) violations of criminal laws, unless the director had
reasonable cause to believe his conduct was lawful or had no reasonable cause to
believe his conduct was unlawful; (b) deriving an improper personal benefit from
a transaction; (c) voting for or assenting to an unlawful distribution; and (d)
willful misconduct or a conscious disregard for our best interests in a
proceeding by or in our right to procure a judgment in our favor or in a
proceeding by or in the right of a
shareholder. The statute does not
affect a director's responsibilities under any other law, such as the federal
securities laws.
Item
16. Exhibits.
EXHIBIT
NO
|
|
DESCRIPTION
|
|
|
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4.1
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Form
of Indenture.
|
|
|
|
4.2
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Form
of Note.*
|
|
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|
4.3
|
|
Form
of Deposit Agreement and Depositary Receipt.*
|
|
|
|
4.4
|
|
Form
of Common Stock Warrant Agreement and Warrant
Certificate.*
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|
|
|
4.5
|
|
Form
of Class A Common Stock Warrant Agreement and Warrant
Certificate.*
|
|
|
|
4.6
|
|
Form
of Preferred Stock Warrant Agreement and Warrant
Certificate.*
|
|
|
|
4.7
|
|
Form
of Debt Securities Warrant Agreement and Warrant
Certificate.*
|
|
|
|
4.8
|
|
Form
of Unit.*
|
|
|
|
4.9
|
|
Form
of Unit Agreement.*
|
|
|
|
5.1
|
|
Opinion
of Akerman Senterfitt.
|
|
|
|
12.1
|
|
Statement
of Computation of Ratio of Earnings to Fixed Charges.
|
|
|
|
23.1
|
|
Consent
of Deloitte & Touche LLP.
|
|
|
|
23.2
|
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Consent
of Akerman Senterfitt (included in Exhibit 5.1 hereto).
|
|
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24.1
|
|
Power
of Attorney (included on signature page of this Registration
Statement).
|
|
|
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25.1
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Form
T-1 Statement of Eligibility of Trustee for Indenture under the Trust
Indenture Act of 1939.*
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* To
be filed by post-effective amendment, as applicable, or as an exhibit to a
report filed under the Securities Exchange Act of 1934, as amended, and
incorporated herein by reference.
|
Item
17. Undertakings.
(a)
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The
undersigned registrant hereby
undertakes:
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|
(1)
|
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
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(i)
|
To
include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
|
|
(ii)
|
To
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in
the effective registration
statement;
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|
(iii)
|
To
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any
material change to such information in the registration
statement;
|
Paragraphs
(a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the
registration statement is on Form S-3 or Form F-3 and the information required
to be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is
part of the registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
|
(i)
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Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall
be deemed to be part of the registration statement as of the date the
filed prospectus was deemed part of and included in the registration
statement; and
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(ii)
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Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5),
or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to
Rule 415(a)(1)(i), (vii) or (x) for the purpose of
providing the information required by section 10(a) of the Securities
Act of 1933 shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any person that is at
|
that date
an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona
fide offering thereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
(5) That,
for the purpose of determining liability of the registrant under the Securities
Act of 1933, as amended, to any purchaser in the initial distribution of the
securities:
The
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by means of
any of the following communications, the undersigned registrant will be a seller
to the purchaser and will be considered to offer or sell such securities to such
purchaser:
|
(i)
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Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
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(ii)
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Any
free writing prospectus relating to the offering prepared by or on behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
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|
(iii)
|
The
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant;
and
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|
(iv)
|
Any
other communication that is an offer in the offering made by the
undersigned registrant to the
purchaser.
|
(b) The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide
offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a
court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
(d) The
undersigned registrant hereby undertakes to file an application for the purposes
of determining the eligibility of the trustee to act under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Trust
Indenture Act.
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Hollywood, State of Florida, on September 16, 2009.
|
HEICO
CORPORATION
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By:
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/s/ Thomas S. Irwin
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Thomas
S. Irwin
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Executive
Vice President and
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Chief
Financial Officer
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(Principal
Financial and
|
|
|
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Accounting
Officer)
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KNOW ALL
MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas S. Irwin and Joseph W. Pallot, and
each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said 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, 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, or any of them,
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed by the following persons in the capacities and on the dates
indicated.
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|
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|
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|
|
/s/ Laurans A. Mendelson
|
|
Chairman,
President,
|
|
September
16, 2009
|
Laurans
A. Mendelson
|
|
Director
(Principal Executive Officer)
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Samuel L. Higginbottom
|
|
Director
|
|
September
16, 2009
|
Samuel
L. Higginbottom
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|
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|
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|
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|
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|
|
/s/ Mark H. Hildebrandt
|
|
Director
|
|
September
16, 2009
|
Mark
H. Hildebrandt
|
|
|
|
|
|
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|
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|
|
|
/s/ Wolfgang Mayrhuber
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|
Director
|
|
September
16, 2009
|
Wolfgang
Mayrhuber
|
|
|
|
|
/s/ Eric A. Mendelson
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|
Director
|
|
September
16, 2009
|
Eric
A. Mendelson
|
|
|
|
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|
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|
|
/s/ Victor H. Mendelson
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|
Director
|
|
September
16, 2009
|
Victor
H. Mendelson
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|
|
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|
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|
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|
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|
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Director
|
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Albert
Morrison, Jr.
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|
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|
/s/ Alan Schriesheim
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|
Director
|
|
September
16, 2009
|
Alan
Schriesheim
|
|
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|
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|
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/s/ Frank J. Schwitter
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|
Director
|
|
September
16, 2009
|
Frank
J. Schwitter
|
|
|
|
|
EXHIBIT
INDEX
Exhibit
No.
|
|
Description
|
|
|
|
4.1
|
|
Form
of Indenture.
|
|
|
|
5.1
|
|
Opinion
of Akerman Senterfitt.
|
|
|
|
12.1
|
|
Statement
of Computation of Ratio of Earnings to Fixed Charges.
|
|
|
|
23.1
|
|
Consent
of Deloitte & Touche LLP.
|
|
|
|
23.2
|
|
Consent
of Akerman Senterfitt (included in Exhibit 5.1 hereto).
|
|
|
|
24.1
|
|
Power
of Attorney (included on signature page of this Registration
Statement).
|
Unassociated Document
EXHIBIT
4.1
HEICO
CORPORATION,
ISSUER
AND
[NAME
OF TRUSTEE]
TRUSTEE
----------
FORM
OF INDENTURE
Dated
as of _______
DEBT
SECURITIES
----------
FORM
OF INDENTURE
INDENTURE,
dated as of _______________ among HEICO Corporation, a Florida corporation (the
“Company”), the guarantors listed on Schedule 1 hereto (herein called the
“Guarantors”) and [ ], as trustee (the “Trustee”):
WHEREAS,
for its lawful corporate purposes, the Company has duly authorized the execution
and delivery of this Indenture to provide for the issuance of debt securities
(hereinafter referred to as the “Securities”), in an unlimited aggregate
principal amount to be issued from time to time in one or more series as in this
Indenture provided, as registered Securities without coupons, to be
authenticated by the certificate of the Trustee;
WHEREAS,
to provide the terms and conditions upon which the Securities are to be
authenticated, issued and delivered, the Company has duly authorized the
execution of this Indenture; and
WHEREAS,
all things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
NOW,
THEREFORE, in consideration of the premises and the purchase of the Securities
by the holders thereof, it is mutually covenanted and agreed as follows for the
equal and ratable benefit of the holders of Securities:
DEFINITIONS
AND INCORPORATION
BY
REFERENCE
The terms
defined in this Section (except as in this Indenture or any indenture
supplemental hereto otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section and shall
include the plural as well as the singular. All other terms used in
this Indenture that are defined in the Trust Indenture Act of 1939, as amended,
or that are by reference in such Act defined in the Securities Act of 1933, as
amended (except as herein or any indenture supplemental hereto otherwise
expressly provided or unless the context otherwise requires), shall have the
meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of the execution of this
instrument.
“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 purposes of this definition, “control,” as
used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise. For purposes of this definition, the terms
“controlling,” “controlled by” and “under common control with” shall have
correlative meanings.
“Agent”
means any Registrar, paying agent or co-registrar.
“Authenticating
Agent” means an authenticating agent with respect to all or any of the series of
Securities appointed by the Trustee pursuant to Section 2.10.
“Bankruptcy
Law” means Title 11, U.S. Code or any similar federal or state law
for the relief of debtors.
“Beneficial
Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act.
“Board of
Directors” means: (1) with respect to a corporation, the board of directors of
the corporation; (2) with respect to a partnership, the board of directors of
the general partner of the partnership; and (3) with respect to any other
Person, the board or committee of such Person serving a similar
function.
“Board
Resolution” of the Company means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company, as the case may be, to have
been duly adopted by its Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the
Trustee. Except as otherwise expressly provided or unless the context
otherwise requires, each reference herein to a “Board Resolution” shall mean a
Board Resolution of the Company.
“Business
Day” means any day which is not a Saturday or Sunday or Legal
Holiday. If a payment date is not a Business Day at a place of
payment, payment may be made at that place on the next succeeding day that is a
Business Day, and no interest shall accrue on such payment for the intervening
period.
“Capital
Lease Obligation” means, at the time any determination thereof is to be made,
the amount of the liability in respect of a capital lease that would at that
time be required to be capitalized on a balance sheet in accordance with
GAAP.
“Capital
Stock” means (1) in the case of a corporation, corporate stock; (2) in the case
of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock; (3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited); and (4) any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person.
“Company”
means HEICO Corporation
“Continuing
Directors” means, as of any date of determination, any member of the Board of
Directors of the Company who:
(1) was
a member of such Board of Directors on the date of this Indenture;
or
(2) was
nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of such Board at the
time of such nomination or election.
“Corporate
Trust Operations Office” means the principal office of the Trustee at which at
any time its corporate trust business shall be administered, which office at the
date hereof is located at the address of the Trustee specified in Section 11.02
hereof, or such other address as to which the Trustee may from time to time give
notice to the Company and to the Holders.
“Default”
means any event that is, or with the passage of time or the giving of notice or
both, would be, an Event of Default.
“Defaulted
Interest” has the meaning given to it in Section 2.03(c).
“Depositary”
means, with respect to Securities of any series for which the Company shall
determine that such Securities will be issued as a Global Security, The
Depositary Trust Company, New York, New York, another clearing agency, or any
successor registered as a clearing agency under the Exchange Act, or other
applicable statute or regulation, which, in each case, shall be appointed as
depositary hereunder and having become such pursuant to the applicable
provisions of this Indenture.
“Event of
Default” has the meaning given to it in Section 6.01.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“GAAP”
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
have been approved by a significant segment of the accounting profession as
amended and/or modified from time to time.
“Global
Security” means, with respect to any series of Securities, a Security executed
by the Company and delivered by the Trustee to the Depositary or pursuant to the
Depositary’s instruction, all in accordance with the Indenture, which shall be
registered in the name of the Depositary or its nominee.
“Government
Securities” means securities issued or directly and fully guaranteed or insured
by the United States government or any agency or instrumentality of the United
States government; provided that the full faith and credit of the United States
is pledged in support of those securities.
“Guarantee”
means a guarantee other than by endorsement of negotiable instruments for
collection or deposit in the ordinary course of business, direct or indirect, in
any manner including, without limitation, by way of a pledge of assets or
through letters of credit or reimbursement agreements in respect thereof, of all
or any part of any Indebtedness.
“Guarantors”
means any Subsidiary that executes a Guarantee, in form and substance acceptable
to the Trustee, providing for the Guarantee of the payment of the Securities of
any
series in
accordance with provisions of this Indenture or any supplemental indentures, and
its respective successors and assigns.
“Hedging
Agreements” mean, with respect to any specified Person, such
Persons:
(1) interest
rate swap agreements, interest rate cap agreements and interest rate collar
agreements; and
(2) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
“Holder”
means a Person in whose name a Security is registered on the books of the
Company kept for that purpose in accordance with the terms of this
Indenture.
“Indebtedness”
means, with respect to any specified Person, any indebtedness of such Person,
whether or not contingent:
(1) in
respect of borrowed money;
(2) evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof);
(3) in
respect of banker’s acceptances;
(4) representing
Capital Lease Obligations;
(5) representing
the balance deferred and unpaid of the purchase price of any property, except
any such balance that constitutes an accrued expense or trade payable;
or
(6) in
respect of any Hedging Obligations,
if and to
the extent any of the preceding items (other than letters of credit and
obligations under Hedging Agreements) would appear as a liability upon a balance
sheet of the specified Person prepared in accordance with GAAP. In
addition, the term “Indebtedness” includes all Indebtedness of others secured by
a Lien on any asset of the specified Person (whether or not such Indebtedness is
assumed by the specified Person) and, to the extent not otherwise included, the
Guarantee by the specified Person of any Indebtedness of any other
Person.
The
amount of any Indebtedness outstanding as of any date will be:
(A) the
accreted value of the Indebtedness, in the case of any Indebtedness issued with
original issue discount;
(B) the
net payment obligation under such Person’s Hedging Agreements at the time of
determination;
(C) the
principal amount of the Indebtedness, together with any interest on the
Indebtedness that is more than 30 days past due, in the case of any other
Indebtedness.
“Indenture”
means this Indenture, as amended or supplemented from time to time.
“Interest
Payment Date,” when used with respect to any installment of interest on a
Security of a particular series, means the date specified in such Security or in
a Board Resolution or in an indenture supplemental hereto with respect to such
series as the fixed date on which an installment of interest with respect to
Securities of that series is due and payable.
“Legal
Holiday” means a day on which banking institutions in The City of New York or at
a place of payment are authorized by law, regulation or executive order to
remain closed.
“Officer”
means, with respect to any Person, the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the
Secretary, any Assistant Secretary or any Vice-President of such
Person.
“Officers’
Certificate” means a certificate signed on behalf of the Company by at least two
Officers of the Company, one of whom must be either the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company, which shall be in form and substance
reasonably acceptable to the Trustee.
“Opinion
of Counsel” means an opinion from legal counsel who is reasonably acceptable to
the Trustee, which shall be in form and substance reasonably acceptable to the
Trustee. The counsel may be an employee of or counsel to the Company,
any Subsidiary of the Company or the Trustee.
“Outstanding”
when used with respect to any series of Securities means, as of the date of
determination, all such Securities theretofore authenticated and delivered under
this Indenture, except:
(A) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(B) Securities,
or portions thereof, for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company or any Affiliate thereof) in trust or set aside and
segregated in trust by the Company or any Affiliate thereof (if the Company or
any Affiliate thereof shall act as if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor reasonably satisfactory to the Trustee has been made;
(C) Securities,
to the extent provided in Section 802 and 803, with respect to which the Company
has effected defeasance or covenant defeasance as provided in Article Eight;
and
(D) Securities
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 and the Company
proof
reasonably
satisfactory to each of them that such Securities are held by a bona fide
purchaser in whose hands the Securities are valid obligations of the
Company;
PROVIDED,
HOWEVER, that in determining whether the Holders of the requisite principal
amount of outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or such
other obligor shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually 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 reasonably 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 upon the Securities or any Affiliate of the Company or such other
obligor.
“Person”
means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability
company or government or other entity.
“Predecessor
Security” of any particular Security means every previous Security evidencing
all or a portion of the same Indebtedness as that evidenced by such particular
Security; and, for the purposes of this definition, any Security authenticated
and delivered under Section 2.07 in lieu of a lost, destroyed or stolen Security
shall be deemed to evidence the same Indebtedness as the lost, destroyed or
stolen Security.
“Responsible
Officer,” when used with respect to the Trustee, means any vice president,
assistant vice president, treasurer, assistant treasurer or other trust officer
within the Corporate Trust Operations Office of the Trustee (or any successor
group of the Trustee) or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject and who shall have direct responsibility
for the administration of this Indenture.
“SEC”
means the Securities and Exchange Commission.
“Securities”
means the debt securities authenticated and delivered under this
Indenture.
“Security
Register” has the meaning given to it in Section 2.05.
“Security
Registrar” has the meaning given to it in Section 2.05.
“Securities
Act” means the Securities Act of 1933, as amended.
“Stated
Maturity” means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which such payment of interest or principal
was scheduled to
be paid
in the original documentation governing such Indebtedness, and shall not include
any contingent obligations to repay, redeem or repurchase any such interest or
principal prior to the date originally scheduled for the payment
thereof.
“Subsidiary”
means, with respect to any specified Person: (1) any corporation, association or
other business entity of which more than 50% of the total voting power of shares
of Capital Stock entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof is at the
time owned or controlled, directly or indirectly, by such Person or one or more
of the other Subsidiaries of that Person (or a combination thereof); and (2) any
partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general
partners of which are such Person or one or more Subsidiaries of such Person (or
any combination thereof).
“Trustee”
means ________________, until a successor replaces it in accordance with the
applicable provisions of this Indenture and thereafter means the successor
serving hereunder.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended and as in
effect on the date on which this Indenture is qualified under the Trust
Indenture Act.
“U.S.
Dollar Equivalent” means with respect to any monetary amount in a currency other
than U.S. dollars, at the time for determination thereof, the amount
of U.S. dollars obtained by converting such foreign currency involved in such
computation into U.S. dollars at the spot rate for the purchase of U.S. dollars
with the applicable foreign currency as published in The Wall Street Journal in
the “Exchange Rates” table under the heading “Currency Trading” on the date two
Business Days prior to such determination.
Whenever
it is necessary to determine whether the Company has complied with any covenant
in this Indenture or a Default has occurred and an amount is expressed in a
currency other than U.S. dollars, such amount will be treated as the
U.S. Dollar Equivalent determined as of the date such amount was initially
incurred in such currency.
“Voting
Stock” of any Person as of any date means the Capital Stock of such Person that
is at the time entitled to vote in the election of the Board of Directors of
such Person.
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Incorporation
by Reference of Trust Indenture
Act.
|
Whenever
this Indenture refers to a provision of the Trust Indenture Act, the provision
is incorporated by reference in and made a part of this Indenture.
The
following Trust Indenture Act terms used in this Indenture have the following
meanings:
“indenture
securities” means any Securities issued pursuant to this Indenture;
“indenture
security Holder” means a Holder of a Security;
“indenture
to be qualified” means this Indenture;
“indenture
trustee” or “institutional trustee” means the Trustee; and
“obligor”
on the Securities means the Company and any successor obligor upon the
Securities.
All other
terms used in this Indenture that are defined by the Trust Indenture Act,
defined by Trust Indenture Act reference to another statute or defined by SEC
rule under the Trust Indenture Act have the meanings so assigned to
them.
Unless
the context otherwise requires:
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(i)
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a
term has the meaning assigned to
it;
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(ii)
|
an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
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(iii)
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“or”
is not exclusive;
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(iv)
|
words
in the singular include the plural, and in the plural include the
singular;
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(v)
|
provisions
apply to successive events and transactions;
and
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(vi)
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references
to sections of or rules under the
Securities
|
Act shall
be deemed to include substitute, replacement of successor sections or rules
adopted by the SEC from time to time.
ISSUE,
DESCRIPTION, TERMS, EXECUTION, REGISTRATION AND EXCHANGE
OF
SECURITIES
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Designation
And Terms Of Securities.
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(a)
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series up to the aggregate principal
amount of Securities of that series from time to time authorized by or pursuant
to a Board Resolution or pursuant to one or more indentures supplemental
hereto. Prior to the initial issuance of Securities of any series,
there shall be established in or pursuant to a Board Resolution, and set forth
in an Officers’ Certificate, or established in one or more indentures
supplemental hereto:
(i)
the title of the Securities of the series (which shall
distinguish the Securities of that series from all other
Securities);
(ii)
any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated 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 that series);
(iii)
the date or dates on which the principal of the Securities of the
series is payable, any original issue discount that may apply to the Securities
of that series upon their issuance, the principal amount due at maturity, and
the place(s) of payment;
(iv)
the rate or rates at which the Securities of the series shall bear
interest or the manner of calculation of such rate or rates, if
any;
(v)
the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest will be payable or the manner
of determination of such Interest Payment Dates, the place(s) of payment, and
the record date for the determination of holders to whom interest is payable on
any such Interest Payment Dates or the manner of determination of such record
dates;
(vi)
the right, if any, to extend the interest payment periods and the
duration of such extension;
(vii)
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;
(viii)
the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund, mandatory redemption, or
analogous provisions (including payments made in cash in satisfaction of future
sinking fund obligations) 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;
(ix)
the form of the Securities of the series including the form of
the certificate of authentication for such series;
(x)
if other than denominations of one thousand U.S. dollars ($1,000) or
any integral multiple thereof, the denominations in which the Securities of the
series shall be issuable;
(xi)
any and all other terms (including terms, to the extent applicable,
relating to any auction or remarketing of the Securities of the series and any
security for the obligations of the Company with respect to such Securities)
with respect to such series of Securities (which terms shall not be inconsistent
with the terms of this Indenture, as amended by any supplemental indenture)
including any terms which may be required by or advisable under United States
laws or regulations or advisable in connection with the marketing of Securities
of that series;
(xii)
whether the Securities of the series are issuable as a Global Security and, in
such case, the terms and the identity of the Depositary for such
series;
(xiii)
whether the Securities of the series will be convertible into or
exchangeable for shares of common stock or other securities of the Company or
any other Person and, if so, the terms and conditions upon which such Securities
will be so convertible or exchangeable, including the conversion or exchange
price, as applicable, or how it will be calculated and may be adjusted, any
mandatory or optional (at the Company’s option or the holders’ option)
conversion or exchange features, and the applicable conversion or exchange
period;
(xiv)
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
acceleration of the maturity thereof pursuant to Section 6.01;
(xv)
any additional or different Events of Default or restrictive
covenants (which may include, among other restrictions, restrictions on the
Company’s ability or the ability of the Company’s Subsidiaries to: incur
additional Indebtedness; issue additional securities; create liens; pay
dividends or make distributions in respect of their capital stock; redeem
capital stock; place restrictions on such Subsidiaries placing restrictions on
their ability to pay dividends, make distributions or transfer assets; make
investments or other restricted payments; sell or otherwise dispose of assets;
enter into sale-leaseback transactions; engage in transactions with shareholders
and affiliates; issue or sell stock of their Subsidiaries; or effect a
consolidation or merger) or financial covenants (which may include, among other
financial covenants, financial covenants that require the Company and its
Subsidiaries to maintain specified interest coverage, fixed charge, cash
flow-based or asset-based ratios) provided for with respect to the Securities of
the series;
(xvi)
if other than dollars, the coin or currency in which the Securities of the
series are denominated (including, but not limited to, foreign
currency);
(xvii)
the terms and conditions, if any, upon which the Company shall pay amounts
in addition to the stated interest, premium, if any, and principal amounts, with
respect to the Securities of the series to any Holder that is not a “United
States person” for federal tax purposes;
(xviii)
any restrictions on transfer, sale or assignment of the Securities of the
series; and
(xix)
the form and terms of any guarantee of any Securities of the
series.
All
Securities of any one series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to any such
Board Resolution or in any indentures supplemental hereto.
If any of
the terms of the series are established by action taken pursuant to a Board
Resolution of the Company, 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 Officers’ Certificate of the Company setting
forth the terms of the series.
Securities
of any particular series may be issued at various times, with different dates on
which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which rates of interest may
be determined, with different dates on which such interest may be payable and
with different redemption dates.
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Form
of Securities and Trustee’s
Certificate.
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The
Securities of any series and the Trustee’s certificate of authentication shall
be substantially of the tenor and purport as set forth in one or more indentures
supplemental hereto or as provided in a Board Resolution, and set forth in an
Officers’ Certificate, and they may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any securities exchange on which Securities of that
series may be listed, or to conform to usage.
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Denominations:
Provisions For Payment.
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(a) The
Securities shall be issuable as registered Securities and in the denominations
of one thousand U.S. dollars ($1,000) or any integral multiple thereof, subject
to Section 2.01(10). The Securities of a particular series shall bear
interest payable on the dates and at the rate specified with respect to that
series. The principal of and the interest on the Securities of any
series, as well as any premium thereon in case of redemption thereof prior to
maturity, shall be payable in the coin or currency of the United States of
America that at the time is legal tender for public and private debt, at the
office or agency of the Company maintained for that purpose. Each
Security shall be dated the date of its authentication. Except as
otherwise specified or contemplated in Section 2.01, interest on the Securities
shall be computed on the basis of a 360-day year composed of twelve 30-day
months.
(b) The
interest installment on any Security that is payable, and is punctually paid or
duly provided for, on any Interest Payment Date for Securities of that series
shall be paid to the Person in whose name said Security (or one or more
Predecessor Securities) is registered at the close of business on the regular
record date for such interest installment. In the event that any
Security of a particular series or portion thereof is called for redemption and
the redemption date is subsequent to a regular record date with respect to any
Interest Payment Date and prior to such Interest Payment Date, interest on such
Security will be paid upon presentation and surrender of such Security as
provided in Section 3.05.
(c) Any
interest on any Security that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date for Securities of the same series
(herein called “Defaulted Interest”) shall forthwith cease to be payable to the
registered holder on the relevant regular record date by virtue of having been
such holder; and such Defaulted Interest shall be paid by the Company, at its
election, as provided in clause (i) or clause (ii) below:
(i) The
Company may make payment of any Defaulted Interest on Securities to the Persons
in whose names such Securities (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 such Security 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 satisfactory 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 in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest which
shall not be more than 15 nor 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 proposed payment. The Trustee shall promptly notify
the Company of such special record date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the special record date therefor to be mailed, first class postage
prepaid, to each Holder at his or her address as it appears in the Security
Register (as hereinafter defined), not less than 10 days prior to such special
record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names such
Securities (or their respective Predecessor Securities) are registered on such
special record date.
(ii) The
Company may make payment of any Defaulted Interest on any Securities 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 given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(d) Unless
otherwise set forth in a Board Resolution or one or more indentures supplemental
hereto establishing the terms of any series of Securities pursuant to Section
2.01 hereof, the term “regular record date” as used in this Section with respect
to a series of Securities and any Interest Payment Date for such series shall
mean either the fifteenth day of the month immediately preceding the month in
which an Interest Payment Date established for such series pursuant to Section
2.01 hereof shall occur, if such Interest Payment Date is the first day of a
month, or the last day of the month immediately preceding the month in which an
Interest Payment Date established for such series pursuant to Section 2.01
hereof shall occur, if such Interest Payment Date is the fifteenth day of a
month, whether or not such date is a Business Day.
(e) Subject
to the foregoing provisions of this Section, each Security of a series delivered
under this Indenture upon transfer of or in exchange for or in lieu of any other
Security of such series shall carry the rights to interest accrued and unpaid,
and to accrue, that were carried by such other Security.
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Execution
and Authentication.
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The
Securities shall be signed on behalf of the Company by one of its Officers,
under its corporate seal attested by its secretary or one of its assistant
secretaries. Signatures may be in the form of a manual, facsimile or
other commercially accepted electronic means signature.
The
Company may use the manual, facsimile or other commercially accepted electronic
means signature of any Person who shall have been an Officer, notwithstanding
the fact that at the time the Securities shall be authenticated and delivered or
disposed of such Person shall have ceased to be such an Officer of the
Company. The seal of the Company may be in the form of a manual,
facsimile or other commercially accepted electronic means of such seal and may
be impressed, affixed, imprinted or otherwise reproduced on the
Securities. The Securities may contain such notations, legends or
endorsements required by law, stock exchange rule or usage. Each
Security shall be dated the date of its authentication by the
Trustee.
A
Security shall not be valid until authenticated manually by an authorized
signatory of the Trustee. Such signature shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered
hereunder and that the holder is entitled to the benefits of this
Indenture. At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
written order of the Company for the authentication and delivery of such
Securities, signed by an Officer, and the Trustee in accordance with such
written order shall authenticate and deliver such Securities.
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 7.01) shall be fully protected in
relying upon, an Opinion of Counsel stating that the form and terms thereof have
been established in conformity with the provisions of this
Indenture.
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 Securities and this Indenture or otherwise in a
manner that is not reasonably acceptable to the Trustee.
(a) Securities
of any series may be exchanged upon presentation thereof at the office or agency
of the Company designated for such purpose, for other Securities of such series
of authorized denominations, and for a like aggregate principal amount, upon
payment of a sum sufficient to cover any tax or other governmental charge in
relation thereto, all as provided in this Section. In respect of any
Securities so surrendered for exchange, the Company shall execute, the Trustee
shall authenticate and such office or agency shall deliver in exchange therefor
the Security or Securities of the same series that the Holder making the
exchange shall be entitled to receive, bearing numbers not contemporaneously
outstanding.
(b) The
Company shall keep, or cause to be kept, at its office or agency designated for
such purpose in the city wherein the Trustee’s primary offices are located, or
such other location designated by the Company, a register or registers (herein
referred to as the “Security
Register”)
in which, subject to such reasonable regulations as it may prescribe (including,
but not limited to, compliance with the provisions of the Securities Act and any
rules and regulations promulgated thereunder, and any other applicable
securities laws), the Company shall register the Securities and the transfers of
Securities as in this Article provided and which at all reasonable times shall
be open for inspection by the Trustee. The registrar for the purpose
of registering Securities and transfer of Securities as herein provided shall be
appointed as authorized by Board Resolution (the “Security
Registrar”).
Upon
surrender for transfer of any Security at the office or agency of the Company
designated for such purpose, the Company shall execute, the Trustee shall
authenticate and such office or agency shall deliver in the name of the
transferee or transferees a new Security or Securities of the same series as the
Security presented for a like aggregate principal amount.
All
Securities presented or surrendered for exchange or registration of transfer, as
provided in this Section, shall be accompanied (if so required by the Company or
the Security Registrar) by a written instrument or instruments of transfer, in
form satisfactory to the Company or the Security Registrar, duly executed by the
registered holder or by such holder’s duly authorized attorney in
writing.
(c) Except
as provided pursuant to Section 2.01 pursuant to a Board Resolution, and set
forth in an Officers’ Certificate, or established in one or more indentures
supplemental to this Indenture, no service charge shall be made for any exchange
or registration of transfer of Securities, or issue of new Securities in case of
partial redemption of any series, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge in relation thereto,
other than exchanges pursuant to Section 2.06, Section 3.05(b)and Section 9.05
not involving any transfer.
(d) The
Company shall not be required (i) to issue, exchange or register the transfer of
any Securities during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of less than all the
outstanding Securities of the same series and ending at the close of business on
the day of such mailing, nor (ii) to register the transfer of or exchange any
Securities of any series or portions thereof called for redemption, other than
the unredeemed portion of any such Securities being redeemed in
part. The provisions of this Section 2.05 are, with respect to any
Global Security, subject to Section 2.11 hereof.
Pending
the preparation of definitive Securities of any series, the Company may execute,
and the Trustee shall authenticate and deliver, temporary Securities (printed,
lithographed or typewritten) of any authorized denomination. Such
temporary Securities shall be substantially in the form of the definitive
Securities in lieu of which they are issued, but with such omissions, insertions
and variations as may be appropriate for temporary Securities, all as may be
determined by the Company. Every temporary Security of any series
shall be executed by the Company and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like effect, as
the definitive Securities of such series. Without unnecessary delay
the Company will execute and will furnish definitive Securities of such series
and thereupon any or all temporary Securities of such series may be surrendered
in exchange
therefor
(without charge to the holders), at the office or agency of the Company
designated for the purpose, and the Trustee shall authenticate and such office
or agency shall deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of such series, unless the
Company advises the Trustee to the effect that definitive Securities need not be
executed and furnished until further notice from the Company. Until
so exchanged, the temporary Securities of such series shall be entitled to the
same benefits under this Indenture as definitive Securities of such series
authenticated and delivered hereunder.
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Mutilated,
Destroyed, Lost Or Stolen
Securities.
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In case
any temporary or definitive Security shall become mutilated or be destroyed,
lost or stolen, the Company (subject to the next succeeding sentence) shall
execute, and upon the Company’s request the Trustee (subject as aforesaid) shall
authenticate and deliver, a new Security of the same series, bearing a number
not contemporaneously outstanding, in exchange and substitution for the
mutilated Security, or in lieu of and in substitution for the Security so
destroyed, lost or stolen. In every case the applicant for a
substituted Security shall furnish to the Company and the Trustee such security
or indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee evidence to their satisfaction of the destruction,
loss or theft of the applicant’s Security and of the ownership
thereof. The Trustee may authenticate any such substituted Security
and deliver the same upon the written request or authorization of any officer of
the Company. Upon the issuance of any substituted Security, 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.
In case
any Security that has matured or is about to mature shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated Security) if the applicant for such payment
shall furnish to the Company and the Trustee such security or indemnity as they
may require to save them harmless, and, in case of destruction, loss or theft,
evidence to the satisfaction of the Company and the Trustee of the destruction,
loss or theft of such Security and of the ownership thereof.
Every
replacement Security issued pursuant to the provisions of this Section shall
constitute an additional contractual obligation of the Company whether or not
the mutilated, destroyed, lost or stolen Security shall be found at any time, or
be enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of the
same series duly issued hereunder. All Securities shall be held and
owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities, and shall preclude (to the extent lawful) any and all other
rights or remedies, notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
All
Securities surrendered for the purpose of payment, redemption, exchange or
registration of transfer shall, if surrendered to the Company or any paying
agent, be delivered to the Trustee for cancellation, or, if surrendered to the
Trustee, shall be cancelled by it, and no Securities shall be issued in lieu
thereof except as expressly required or permitted by any of the provisions of
this Indenture. On request of the Company at the time of such
surrender, the Trustee shall deliver to the Company canceled Securities held by
the Trustee. In the absence of such request the Trustee may dispose
of canceled Securities in accordance with its standard procedures and deliver a
certificate of disposition to the Company. If the Company shall
otherwise acquire any of the Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the Indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for
cancellation.
Nothing
in this Indenture or in the Securities, express or implied, shall give or be
construed to give to any Person, other than the parties hereto and the holders
of the Securities any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition or provision herein
contained; all such covenants, conditions and provisions being for the sole
benefit of the parties hereto and of the holders of the Securities.
So long
as any of the Securities of any series remain outstanding there may be an
Authenticating Agent for any or all such series of Securities which the Trustee
shall have the right to appoint. Said Authenticating Agent shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, transfer or partial redemption thereof, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. An Authenticating Agent has the same rights as an
Agent to deal with Holders or an Affiliate of the Company. All
references in this Indenture to the authentication of Securities by the Trustee
shall be deemed to include authentication by an Authenticating Agent for such
series. Each Authenticating Agent shall be acceptable to the Company
and shall be a corporation that has a combined capital and surplus, as most
recently reported or determined by it, sufficient under the laws of any
jurisdiction under which it is organized or in which it is doing business to
conduct a trust business, and that is otherwise authorized under such laws to
conduct such business and is subject to supervision or examination by federal or
state authorities. If at any time any Authenticating Agent shall
cease to be eligible in accordance with these provisions, it shall resign
immediately.
Any
Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any
time (and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation,
termination or cessation of eligibility of any Authenticating Agent, the Trustee
may appoint an eligible successor Authenticating Agent acceptable to the
Company. Any successor Authenticating
Agent,
upon acceptance of its appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder as if originally named as
an Authenticating Agent pursuant hereto.
(a) If
the Company shall establish pursuant to Section 2.01 that the Securities of a
particular series are to be issued as a Global Security, then the Company shall
execute and the Trustee shall, in accordance with Section 2.04, authenticate and
deliver, a Global Security that (i) shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of, all of the outstanding
Securities of such series, (ii) shall be registered in the name of the
Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instruction and (iv) shall bear a
legend substantially to the following effect: “Except as otherwise provided in
Section 2.11 of the Indenture, this Security may be transferred, in whole but
not in part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary.”
(b) Notwithstanding
the provisions of Section 2.05, the Global Security of a series may be
transferred, in whole but not in part and in the manner provided in Section
2.05, only to another nominee of the Depositary for such series, or to a
successor Depositary for such series selected or approved by the Company or to a
nominee of such successor Depositary.
(c) If
at any time the Depositary for a series of the Securities notifies the Company
that it is unwilling or unable to continue as Depositary for such series or if
at any time the Depositary for such series shall no longer be registered or in
good standing under the Exchange Act, or other applicable statute or regulation,
and a successor Depositary for such series is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
condition, as the case may be, or if an Event of Default has occurred and is
continuing and the Company has received a request from the Depositary, this
Section shall no longer be applicable to the Securities of such series and the
Company will execute, and subject to Section 2.04, the Trustee will authenticate
and deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Security of such series in exchange for
such Global Security. In addition, the Company may at any time
determine that the Securities of any series shall no longer be represented by a
Global Security and that the provisions of this Section shall no longer apply to
the Securities of such series. In such event the Company will execute
and, subject to Section 2.04, the Trustee, upon receipt of an Officers’
Certificate evidencing such determination by the Company, will authenticate and
deliver the Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Security of such series in exchange for
such Global Security. Upon the exchange of the Global Security for
such Securities in definitive registered form without coupons, in authorized
denominations, the Global Security shall be canceled by the
Trustee. Such Securities in definitive registered form issued in
exchange for the Global Security pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such
Securities
to the Depositary for delivery to the Persons in whose names such Securities are
so registered.
REDEMPTION
OF SECURITIES AND SINKING FUND PROVISIONS
The
Company may redeem the Securities of any series issued hereunder on and after
the dates and in accordance with the terms established for such series pursuant
to Section 2.01 hereof.
(a) In
case the Company shall desire to exercise such right to redeem all or, as the
case may be, a portion of the Securities of any series in accordance with any
right the Company reserved for itself to do so pursuant to Section 2.01 hereof,
the Company shall, or shall cause the Trustee to, give notice of such redemption
to holders of the Securities of such series to be redeemed by mailing, first
class postage prepaid, a notice of such redemption not less than 30 days and not
more than 60 days before the date fixed for redemption of that series to such
holders at their last addresses as they shall appear upon the Security Register,
unless a shorter period is specified in the Securities to be
redeemed. Any notice that is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
registered holder receives the notice. In any case, failure duly to
give such notice to the holder of any Security of any series designated for
redemption in whole or in part, or any defect in the notice, shall not affect
the validity of the proceedings for the redemption of any other Securities of
such series or any other series. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers’ Certificate evidencing
compliance with any such restriction.
(b) Each
such notice of redemption shall specify the date fixed for redemption and the
redemption price at which Securities of that series are to be redeemed, and
shall state that payment of the redemption price of such Securities to be
redeemed will be made at the office or agency of the Company in the city wherein
the Trustee’s primary offices are located upon presentation and surrender of
such Securities, that interest accrued to the date fixed for redemption will be
paid as specified in said notice, that from and after said date interest will
cease to accrue and that the redemption is for a sinking fund, if such is the
case. If less than all the Securities of a series are to be redeemed,
the notice to the holders of Securities of that series to be redeemed in part
shall specify the particular Securities to be so redeemed.
(c) In
case any Security is to be redeemed in part only, the notice that relates to
such Security shall state the portion of the principal amount thereof to be
redeemed, and shall state that on and after the redemption date, upon surrender
of such Security, a new Security or Securities of such series in principal
amount equal to the unredeemed portion thereof will be issued.
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Selection
of Securities to be Redeemed.
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(a) If
less than all the Securities of a series are to be redeemed, the Company shall
give the Trustee at least 45 days’ notice in advance of the date fixed for
redemption as to the aggregate principal amount of Securities of the series to
be redeemed, and thereupon the Trustee shall select, by lot or in such other
manner as it shall deem appropriate and fair in its discretion and that may
provide for the selection of a portion or portions (equal to one thousand U.S.
dollars ($1,000) or any integral multiple thereof) of the principal amount of
such Securities of a denomination larger than $1,000, the Securities to be
redeemed and shall thereafter promptly notify the Company in writing of the
numbers of the Securities to be redeemed, in whole or in part.
(b) The
Company may, if and whenever it shall so elect, by delivery of instructions
signed on its behalf by an Officer listed in clause (i) of the definition
thereof, instruct the Trustee or any paying agent to call all or any part of the
Securities of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in the
name of the Company or its own name as the Trustee or such paying agent may deem
advisable. In any case in which notice of redemption is to be given
by the Trustee or any such paying agent, the Company shall deliver or cause to
be delivered to, or permit to remain with, the Trustee or such paying agent, as
the case may be, such Security Register, transfer books or other records, or
suitable copies or extracts therefrom, sufficient to enable the Trustee or such
paying agent to give any notice by mail that may be required under the
provisions of this Section.
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Effect
of Notice of Redemption.
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Once
notice of redemption is mailed in accordance with Section 3.02 hereof,
Securities of any series called for redemption become irrevocably due and
payable on the redemption date at the redemption price.
(a) If
the giving of notice of redemption shall have been completed as above provided,
the Securities or portions of Securities of the series to be redeemed specified
in such notice shall become due and payable on the date and at the place stated
in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption and interest on such Securities or
portions of Securities shall cease to accrue on and after the date fixed for
redemption, unless the Company shall default in the payment of such redemption
price and accrued interest with respect to any such Security or portion
thereof. On presentation and surrender of such Securities on or after
the date fixed for redemption at the place of payment specified in the notice,
said Securities shall be paid and redeemed at the applicable redemption price
for such series, together with interest accrued thereon to the date fixed for
redemption (but if the date fixed for redemption is an interest payment date,
the interest installment payable on such date shall be payable to the registered
holder at the close of business on the applicable record date pursuant to
Section 2.03).
(b) Upon
presentation of any Security of such series that is to be redeemed in part only,
the Company shall execute and the Trustee shall authenticate and the office or
agency
where the
Security is presented shall deliver to the holder thereof, at the expense of the
Company, a new Security of the same series of authorized denominations in
principal amount equal to the unredeemed portion of the Security so
presented.
The
provisions of Sections 3.06, 3.07 and 3.08 shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise specified
as contemplated by Section 2.01 for Securities of such series.
The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a “mandatory sinking fund
payment,” and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an “optional sinking
fund payment.” If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 3.07. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
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Satisfaction
Of Sinking Fund Payments With
Securities.
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The
Company (i) may deliver outstanding Securities of a series and (ii) may apply as
a credit Securities of a series that have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted 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 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 previously so
credited. Such Securities shall be received and credited 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.
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Redemption
Of Securities For Sinking Fund.
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Not less
than 45 days 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 the series, the portion thereof, if any, that is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 3.07 and the basis for such credit and will, together with such
Officers’ Certificate, 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 3.03 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 3.02. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Section 3.05.
COVENANTS
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Payment
Of Principal, Premium And Interest.
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The
Company will duly and punctually pay or cause to be paid the principal of (and
premium, if any) and interest on the Securities of that series at the time and
place and in the manner provided herein and established with respect to such
Securities.
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Maintenance
of Office or Agency.
|
So long
as any series of the Securities remain outstanding, the Company agrees to
maintain an office or agency in the city wherein the Trustee’s primary offices
are located, with respect to each such series and at such other location or
locations as may be designated as provided in this Section, where (i) Securities
of that series may be presented for payment, (ii) Securities of that series may
be presented as herein above authorized for registration of transfer and
exchange, and (iii) notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be given or served, such
designation to continue with respect to such office or agency until the Company
shall, by written notice signed by any officer authorized to sign an Officers’
Certificate and delivered to the Trustee, designate some other office or agency
for such purposes or any of them. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, notices and demands may be
made or served at the Corporate Trust Operations Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, notices and demands. The Company initially appoints
the Corporate Trust Operations Office of the Trustee, located in the city
wherein the Trustee’s primary offices are located, as its paying agent with
respect to the Securities.
(a) If
the Company shall appoint one or more paying agents for all or any series of the
Securities, other than the Trustee, the Company will cause each such paying
agent to execute and deliver to the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this
Section:
(i) that
it will hold all sums held by it as such agent for the payment of the principal
of (and premium, if any) or interest on the Securities of that series (whether
such sums have been paid to it by the Company or by any other obligor of such
Securities) in trust for the benefit of the Persons entitled
thereto;
(ii) that
it will give the Trustee notice of any failure by the Company (or by any other
obligor of such Securities) to make any payment of the principal of (and
premium, if any) or interest on the Securities of that series when the same
shall be due and payable;
(iii) that
it will, at any time during the continuance of any failure referred to in the
preceding paragraph (a)(2) above, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such paying agent;
and
(iv) that
it will perform all other duties of paying agent as set forth in this
Indenture.
(b) If
the Company shall act as its own paying agent with respect to any series of the
Securities, it will on or before each due date of the principal of (and premium,
if any) or interest on Securities of that series, set aside, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum sufficient to pay
such principal (and premium, if any) or interest so becoming due on Securities
of that series until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of such
action, or any failure (by it or any other obligor on such Securities) to take
such action. 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 on any Securities of that series,
deposit with the paying agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such paying agent is the Trustee) the Company will promptly notify the
Trustee of this action or failure so to act.
(c) Notwithstanding
anything in this Section to the contrary, (i) the agreement to hold sums in
trust as provided in this Section is subject to the provisions of Section 8.06
and Section 10.03, and (ii) 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 direct any paying 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 Trustee
upon the same terms and conditions as those upon which such sums were held by
the Company or such paying agent; and, upon such payment by the Company or any
paying agent to the Trustee, the Company or such paying agent shall be released
from all further liability with respect to such money.
The
Company will furnish or cause to be furnished to the Trustee (a) on each regular
record date (as defined in Section 2.03) a list, in such form as the Trustee may
reasonably require, of the names and addresses of the holders of each series of
Securities as of such regular record date, provided that the Company shall not
be obligated to furnish or cause to furnish such list at any time that the list
shall not differ in any respect from the most recent list furnished to the
Trustee by the Company and (b) at such other times as the Trustee may request in
writing within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to the
time such list is furnished; provided, however, that, in either case, no such
list need be furnished for any series for which the Trustee shall be the
Security Registrar and the Company shall otherwise comply with Trust Indenture
Act Section 312(a).
The
Company or any Guarantors shall deliver to the Trustee, within 120 days after
the end of each fiscal year during which any Securities of any series were
outstanding, an Officers’ Certificate stating whether or not the signers know of
any Default or Event of Default that occurred during such fiscal
year. Such certificate shall contain a certification from the
principal executive officer, principal financial officer or principal accounting
officer of the Company that a review has been conducted of the activities of the
Company and the Company’s performance under this Indenture and that the Company
has complied with all conditions and covenants under this
Indenture. For purposes of this Section, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture. If any of the officers of the Company
signing such certificate has knowledge of such a Default or Event of Default,
the certificate shall describe any such Default or Event of Default and its
status.
The
Company covenants and agrees to provide to the Trustee, after the Company files
the same with the SEC, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may from time to time by rules and regulations prescribe) that the
Company files with the SEC pursuant to Section 13 or Section 15(d) of the
Exchange Act.
SUCCESSOR
ENTITY
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Company
May Consolidate, Etc.
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Except as
established in one or more indentures supplemental to this Indenture, nothing
contained in this Indenture shall prevent any consolidation or merger of the
Company with or into any other Person (whether or not affiliated with the
Company) or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of the property of the Company or its
successor or successors as an entirety, or substantially as an entirety, to any
other corporation (whether or not affiliated with the Company or its successor
or successors) authorized to acquire and operate the same; provided, however,
the Company hereby covenants and agrees that, upon any such consolidation or
merger (in each case, if the Company is not the survivor of such transaction),
sale, conveyance, transfer or other disposition, the due and punctual payment of
the principal of (premium, if any) and interest on all of the Securities of all
series in accordance with the terms of each series, according to their tenor,
and the due and punctual performance and observance of all the covenants and
conditions of this Indenture with respect to each series or established with
respect to such series pursuant to Section 2.01 to be kept or performed by the
Company shall be expressly assumed, by supplemental indenture (which shall
conform to the provisions of the Trust Indenture Act, as then in effect)
reasonably satisfactory in form to the Trustee executed and delivered to the
Trustee, by the entity formed by such consolidation, or into which the Company
shall have been merged, or by the entity which shall have acquired such
property.
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Successor
Entity Substituted.
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(a) In
case of any such consolidation, merger, sale, conveyance, transfer or other
disposition and, if the Company is not the survivor of such transaction, upon
the assumption by the successor entity by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the
obligations set forth under Section 5.01 on all of the Securities of all series
outstanding, such successor entity shall succeed to and be substituted for the
Company with the same effect as if it had been named as the Company herein, and
thereupon the predecessor corporation shall be relieved of all obligations and
covenants under this Indenture and the Securities.
(b) In
case of any such consolidation, merger, sale, conveyance, transfer or other
disposition, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be
appropriate.
(c) Nothing
contained in this Article shall require any action by the Company in the case of
a consolidation or merger of any Person into the Company where the Company is
the survivor of such transaction, or the acquisition by the Company, by purchase
or otherwise, of all or any part of the property of any other Person (whether or
not affiliated with the Company).
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Evidence
of Consolidation, Etc to Trustee.
|
The
Trustee, subject to the provisions of Section 7.01, may receive an Officers’
Certificate or an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale, conveyance, transfer or other disposition, and any
such assumption, comply with the provisions of this Article.
DEFAULTS
AND REMEDIES
(a) Each
of the following is an “Event of Default”:
(i) the
Company defaults in the payment of any installment of interest upon any of the
Securities of that series, as and when the same shall become due and payable,
and such default continues for a period of 30 days; provided, however, that a
valid extension of an interest payment period by the Company in accordance with
the terms of any indenture supplemental hereto shall not constitute a default in
the payment of interest for this purpose;
(ii) the
Company defaults in the payment of the principal of (or premium, if any, on) any
of the Securities of that series as and when the same shall become due and
payable whether at maturity, upon redemption, by declaration or otherwise, or in
any payment required by any sinking or analogous fund established with respect
to that series; provided, however, that a valid extension of the maturity of
such Securities in
accordance
with the terms of any indenture supplemental hereto shall not constitute a
default in the payment of principal or premium, if any;
(iii) the
Company fails to observe or perform any other of its covenants or agreements
with respect to that series contained in this Indenture or otherwise established
with respect to that series of Securities pursuant to Section 2.01 hereof (other
than a covenant or agreement that has been expressly included in this Indenture
solely for the benefit of one or more series of Securities other than such
series) for a period of 90 days after the date on which written notice of such
failure, requiring the same to be remedied and stating that such notice is a
“Notice of Default” hereunder, shall have been given to the Company by the
Trustee, by registered or certified mail, or to the Company and the Trustee by
the holders of at least 25% in principal amount of the Securities of that series
at the time outstanding;
(iv) the
Company pursuant to or within the meaning of any Bankruptcy Law (i) commences a
voluntary case, (ii) consents to the entry of an order for relief against it in
an involuntary case, (iii) consents to the appointment of a custodian of it or
for all or substantially all of its property or (iv) makes a general assignment
for the benefit of its creditors; or
(v) a
court of competent jurisdiction enters an order under any Bankruptcy Law that
(i) is for relief against the Company in an involuntary case, (ii) appoints a
custodian of the Company for all or substantially all of its property or (iii)
orders the liquidation of the Company, and the order or decree remains unstayed
and in effect for 90 days.
(a) In
the case of an Event of Default that has occurred and is continuing (other than
an Event of Default specified in Section 6.01(a)(iv) or Section 6.01(a)(v)
above), unless the principal of all the Securities of that series shall have
already become due and payable, either the Trustee or the Holders of not less
than a majority in aggregate principal amount of the Securities of that series
then outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by such Holders), may declare the principal of (and premium, if
any, on) and accrued and unpaid interest on all the Securities of that series to
be due and payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable. If an Event of
Default specified in Section 6.01(a)(iv) or Section 6.01(a)(v) above occurs, the
principal of and accrued and unpaid interest on all the Securities of that
series shall automatically be immediately due and payable without any
declaration or other act on the part of the Trustee or the holders of the
Securities.
(b) At
any time after the principal of (and premium, if any, on) and accrued and unpaid
interest on the Securities of that series shall have been so declared due and
payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the holders of a
majority in aggregate principal amount of the Securities of that series then
outstanding hereunder, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if any and all Events of
Default
under the Indenture with respect to such series shall have been remedied or
waived as provided in Section 6.05. No such rescission and annulment
shall extend to or shall affect any subsequent default or impair any right
consequent thereon.
(c) In
case the Trustee shall have proceeded to enforce any right with respect to
Securities of that series under this Indenture and such proceedings shall have
been discontinued or abandoned because of such rescission or annulment or for
any other reason or shall have been determined adversely to the Trustee, then
and in every such case, subject to any determination in such proceedings, the
Company and the Trustee shall be restored respectively to their former positions
and rights hereunder, and all rights, remedies and powers of the Company and the
Trustee shall continue as though no such proceedings had been
taken.
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Collection
of Indebtedness and Suits For Enforcement by
Trustee.
|
(a) The
Company covenants that (i) in case it shall default in the payment of any
installment of interest on any of the Securities of a series, and such default
shall have continued for a period of 30 days, or (ii) in case it shall default
in the payment of the principal of (or premium, if any, on) any of the
Securities of a series when the same shall have become due and payable, whether
upon maturity of the Securities of a series or upon redemption or upon
declaration or otherwise, or in any payment required by any sinking or analogous
fund established with respect to that series as and when the same shall have
become due and payable, then, upon demand of the Trustee, the Company will pay
to the Trustee, for the benefit of the holders of the Securities of that series,
the whole amount that then shall have been become due and payable on all such
Securities for principal (and premium, if any) or interest, or both, as the case
may be, with interest upon the overdue principal (and premium, if any) and (to
the extent that payment of such interest is enforceable under applicable law)
upon overdue installments of interest at the rate per annum expressed in the
Securities of that series; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, and the
amount payable to the Trustee under Section 7.13.
(b) If
the Company shall fail to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, shall be entitled
and empowered to institute any action or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any such action or
proceeding to judgment or final decree, and may enforce any such judgment or
final decree against the Company or other obligor upon the Securities of that
series and collect the moneys adjudged or decreed to be payable in the manner
provided by law or equity out of the property of the Company or other obligor
upon the Securities of that series, wherever situated.
(c) The
Trustee is authorized and entitled to intervene and file in any judicial
proceedings to file such proofs of claim and other papers and documents as may
be necessary or advisable in order to have the claims of the Trustee and of the
Holders of Securities of such series allowed for the entire amount due and
payable by the Company under the Indenture at the date of institution of such
proceedings and for any additional amount that may become due and payable by the
Company after such date, and to collect and receive any moneys or other property
payable or deliverable on any such claim, and to distribute the same after the
deduction of the amount payable to the Trustee under Section 7.13; and any
receiver, assignee or trustee in
bankruptcy
or reorganization of the Company in any such proceedings is hereby authorized by
each of the Holders of Securities of such series to make such payments to the
Trustee, and, in the event that the Trustee shall consent to the making of such
payments directly to such Holders, to pay to the Trustee any amount due it under
Section 7.13.
(d) All
rights of action and of asserting claims under this Indenture, or under any of
the terms established with respect to Securities of that series, may be enforced
by the Trustee without the possession of any of such Securities, or the
production thereof at any trial or other proceeding relative thereto, and any
such suit or 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 payment to the Trustee of any amounts due under Section 7.13, be
for the ratable benefit of the Holders of the Securities of such
series.
(e) In
case of an Event of Default hereunder, the Trustee may in its discretion proceed
to protect and enforce the rights vested in it by this Indenture by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of such rights, either at law or in equity or in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in the Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
(f) Nothing
contained herein shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
of that series or the rights of any holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such
proceeding.
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Application
Of Moneys Collected.
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(a) Any
moneys collected by the Trustee pursuant to this Article with respect to a
particular series of Securities shall be applied in the following order and, in
case of the distribution of such moneys on account of principal (or premium, if
any) or interest, upon presentation of the Securities of that series, and
notation thereon of the payment, if only partially paid, and upon surrender
thereof if fully paid:
First: To
the payment of reasonable costs and expenses of collection and of all amounts
payable to the Trustee under Section 7.13;
Second:
To the payment of the amounts then due and unpaid upon Securities of such series
for principal (and premium, if any) and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any) and interest, respectively;
and
Third: To
the payment of the remainder, if any, to the Company or any other Person
lawfully entitled thereto.
(b) The
Trustee may fix a record date and payment date for any payment to Holders of
Securities pursuant to this Section.
The
Holders of a majority in aggregate principal amount of any series of Securities
then outstanding by notice to the Trustee, may on behalf of the Holders of all
of the Securities of that series, waive any existing Default or Event of Default
and its consequences hereunder, except a continuing Default or Event of Default
in the payment of interest on, or the principal of, the Securities of that
series (unless such Default or Event of Default has been cured and a sum
sufficient to pay all matured installments of interest and principal and any
premium has been deposited with the Trustee (in accordance with Section 6.02(b))
or a Default in respect of a covenant or provision which cannot be modified or
amended without the consent of each Holder of a Security of that series;
provided, however, that the Holders of a majority in aggregate principal amount
of the then outstanding Securities of that series may rescind an acceleration
and its consequences, including any related payment default that resulted from
such acceleration. The Company shall deliver to the Trustee an
Officers’ Certificate stating that the requisite percentage of Holders have
consented to such waiver and attaching copies of such consents. In
case of any such waiver, the Company, the Trustee and the Holders shall be
restored to their former positions and rights hereunder and under the
Securities, respectively. This Section shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Indenture, as
permitted by the Trust Indenture Act. Upon any such waiver, such
Default or Event of 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
Event of Default or impair any right consequent thereon.
The
holders of a majority in aggregate principal amount of the Securities of any
series at the time outstanding shall have the right 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 such
series; provided, however, that such direction shall not be in conflict with any
rule of law or with this Indenture. Subject to the provisions of
Section 7.01, the Trustee shall have the right to decline to follow any such
direction if the Trustee in good faith shall, by a Responsible Officer or
officers of the Trustee, determine that the proceeding so directed, subject to
the Trustee’s duties under the Trust Indenture Act, would involve the Trustee in
personal liability or might be unduly prejudicial to the Holders not involved in
the proceeding.
(a) No
Holder of any Security of any series shall have any right by virtue or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(i) such
Holder previously shall have given to the Trustee written notice of an Event of
Default and of the continuance thereof with respect to the Securities of such
series specifying such Event of Default, as hereinbefore provided;
(ii) the
Holders of not less than a majority in aggregate principal amount of the
Securities of such series then outstanding shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
Trustee hereunder;
(iii) such
Holder shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby;
(iv) the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity, shall have failed to institute any such action, suit or proceeding;
and
(v) during
such 60 day period, the Holders of a majority in aggregate principal amount of
the Securities of that series do not give the Trustee a direction inconsistent
with the request.
(b) A
Holder of a Security may not use this Indenture to prejudice the rights of
another Holder of a Security or to obtain a preference over another Holder of a
Security.
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Rights
of Holders of Securities to Receive
Payment.
|
Notwithstanding
anything contained herein to the contrary or any other provisions of this
Indenture, the right of any Holder of any Security to receive payment of the
principal of (and premium, if any) and interest on such Security, as therein
provided, on or after the respective due dates expressed in such Security (or in
the case of redemption, on the redemption date), or to institute suit for the
enforcement of any such payment on or after such respective dates or redemption
date, shall not be impaired or affected without the consent of such Holder and
by accepting a Security hereunder it is expressly understood, intended and
covenanted by the taker and Holder of every Security of such series with every
other such taker and Holder and the Trustee, that no one or more Holders of
Securities of such series shall have any right in any manner whatsoever by
virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the Holders of any other of such Securities, or to
obtain or seek to obtain priority over or preference to any other such Holder,
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders of
Securities of such series. For the protection and enforcement of the
provisions of this Section, each and every Holder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
All
parties to this Indenture agree, and each Holder of any Securities by such
Holder’s 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 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
discretion
assess
reasonable costs, including reasonable attorneys’ fees, against any party
litigant in such suit, having due regard to 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 more than 10% in
aggregate principal amount of the outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security of such series, on
or after the respective due dates expressed in such Security or established
pursuant to this Indenture.
TRUSTEE
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Certain
Duties And Responsibilities Of
Trustee.
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(a) The
Trustee, prior to the occurrence of an Event of Default with respect to the
Securities of a series and after the curing of all Events of Default with
respect to the Securities of that series that may have occurred, shall undertake
to perform with respect to the Securities of such series such duties and only
such duties as are specifically set forth in this Indenture, and no implied
covenants shall be read into this Indenture against the Trustee. In
case an Event of Default with respect to the Securities of a series has occurred
(that has not been cured or waived), the Trustee shall exercise with respect to
Securities of that series such of the rights and powers vested in it by this
Indenture, 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.
(b) No
provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or its
own willful misconduct, except that:
(i) prior
to the occurrence of an Event of Default with respect to the Securities of a
series and after the curing or waiving of all such Events of Default with
respect to that series that may have occurred:
(A) the
duties and obligations of the Trustee shall with respect to the Securities of
such series be determined solely by the express provisions of this Indenture,
and the Trustee shall not be liable with respect to the Securities of such
series except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and
(B) in
the absence of bad faith on the part of the Trustee, the Trustee may with
respect to the Securities of such series conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished
to the
Trustee,
the Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirement of this Indenture;
(ii) the
Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the
Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the holders of not
less than a majority in aggregate principal amount of the Securities of any
series at the time outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee under this Indenture with respect
to the Securities of that series; and
(iv) None
of the provisions contained in this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur personal financial liability in
the performance of any of its duties or in the exercise of any of its rights or
powers if there is reasonable ground for believing that the repayment of such
funds or liability is not reasonably assured to it under the terms of this
Indenture or adequate indemnity against such risk is not reasonably assured to
it.
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Certain
Rights of Trustee.
|
Except as
otherwise provided in Section 7.01:
(a) The
Trustee may rely and shall be protected in acting or refraining from acting upon
any resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, bond, security 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, direction, order or demand of the Company mentioned herein shall be
sufficiently evidenced by a Board Resolution or an instrument signed in the name
of the Company by any authorized officer of the Company (unless other evidence
in respect thereof is specifically prescribed herein);
(c) 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 or suffered or omitted hereunder in good faith and
in reliance thereon;
(d) The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request, order or direction of any of the
Holders pursuant to the provisions of this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities that may be incurred therein or thereby; nothing
contained herein shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of Default with respect to a series of the Securities
(that has not been cured or waived), to exercise with respect to Securities of
that series such of the rights and powers vested in it by this Indenture, and to
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;
(e) The
Trustee shall not be liable for any action taken or omitted to be taken by it in
good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(f) The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond, security, or other papers or
documents, unless requested in writing so to do by the Holders of not less than
a majority in aggregate principal amount of the outstanding Securities of the
particular series affected thereby; provided, however, that if the payment
within a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such costs, expenses or liabilities as a condition
to so proceeding. The reasonable expense of every such examination
shall be paid by the Company or, if paid by the Trustee, shall be repaid by the
Company upon demand; 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.
In
addition, the Trustee shall not be deemed to have knowledge of any Default or
Event of Default except (1) any Event of Default occurring pursuant to Sections
6.01(a)(i), 6.01(a)(ii) and 4.01 hereof or (2) any Default or Event of Default
of which the Trustee shall have received written notification in the manner set
forth in this Indenture or a Responsible Officer of the Trustee shall have
obtained actual knowledge. Delivery of reports to the Trustee as
required pursuant to this Indenture under Section 4.06 is for informational
purposes only and the information and the Trustee’s receipt of the foregoing
shall not constitute constructive notice of any information contained therein,
or determinable from information contained therein including the Company’s
compliance with any of their covenants thereunder (as to which the Trustee is
entitled to rely exclusively on an Officers’ Certificate).
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Individual
Rights of Trustee.
|
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Securities and may become a creditor of, or otherwise deal with, the Company
or any of its Affiliates with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any
conflicting interest as described in the Trust Indenture Act, it must eliminate
such conflict within 90 days, apply to the SEC for permission to continue as
trustee or resign. Any Agent may do the same with like rights and
duties. The Trustee is also subject to Sections 7.11 and 7.12
hereof.
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Trustee
Not Responsible For Recitals Or Issuance Or
Securities.
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(a) The
recitals contained herein and in the Securities shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for the correctness of
the same.
(b) The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities.
(c) The
Trustee shall not be accountable for the use or application by the Company of
any of the Securities or of the proceeds of such Securities, or for the use or
application of any moneys paid over by the Trustee in accordance with any
provision of this Indenture or established pursuant to Section 2.01, or for the
use or application of any moneys received by any paying agent other than the
Trustee.
The
Trustee or any paying agent or Security Registrar, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not Trustee, paying agent or Security
Registrar.
Subject
to the provisions of Section 8.06 and Section 10.03, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received, but 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 moneys received by it hereunder except
such as it may agree with the Company to pay thereon.
If any
Default or any Event of Default occurs and is continuing and if such Default or
Event of Default is known to a Responsible Officer of the Trustee, the Trustee
shall mail to each Holder in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act notice of the Default or Event of Default
within 45 days after it occurs, unless such Default or Event of Default has been
cured; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest on any Security, the
Trustee shall be protected in withholding 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 determine that the
withholding of such notice is in the interest of the Holders.
(a) On
or before July 1 in each year in which any of the Securities are outstanding,
the Trustee shall transmit by mail, first class postage prepaid, to the Holders,
as their names and addresses appear upon the Security Register, a brief report
dated as of the preceding May 1, if and to the extent required under Section
313(a) of the Trust Indenture Act.
(b) The
Trustee shall comply with Section 313(b) and 313(c) of the Trust Indenture
Act.
(c) A
copy of each such report shall, at the time of such transmission to Holders, be
filed by the Trustee with the Company, with each securities exchange upon which
any Securities are listed (if so listed) and also with the SEC. The
Company agrees to notify the Trustee when any Securities become listed on any
securities exchange.
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Reliance
On Officers’ Certificate.
|
Except as
otherwise provided in Section 7.01, whenever in the administration of the
provisions of this Indenture the Trustee shall deem it reasonably necessary or
desirable that a matter be proved or established prior to taking or suffering or
omitting to take any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers’ Certificate delivered to the Trustee and
such certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted to be taken by it under the provisions of this Indenture upon the faith
thereof.
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Preservation
Of Information; Communications With
Holders.
|
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Securities contained
in the most recent list furnished to it as provided in Section 4.04 and as to
the names and addresses of holders of Securities received by the Trustee in its
capacity as Security Registrar (if acting in such capacity).
(b) The
Trustee may destroy any list furnished to it as provided in Section 4.04 upon
receipt of a new list so furnished.
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Preferential
Collection of Claims Against
Company.
|
The
Trustee is subject to Trust Indenture Act Section 311(a), excluding any creditor
relationship listed in Trust Indenture Act Section 311(b). A Trustee
who has resigned or been removed shall be subject to Trust Indenture Act Section
311(a) to the extent indicated therein. The Trustee hereby waives any
right to set-off any claim that it may have against the Company in any capacity
(other than as Trustee and paying agent) against any of the assets of the
Company held by the Trustee; provided, however, that if the Trustee is or
becomes a lender of any other Indebtedness permitted hereunder to be pari passu
with the Securities of any series, then such waiver shall not apply to the
extent of such Indebtedness.
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Corporate
Trustee Required; Eligibility; Disqualification; Conflicting
Interests.
|
(a) There
shall at all times be a Trustee with respect to the Securities issued hereunder
which shall at all times be a corporation organized and doing business under the
laws of the United States of America or any state or territory thereof or of the
District of Columbia, or
a
corporation or other Person permitted to act as trustee by the SEC, authorized
under such laws to exercise corporate trust powers, having a combined capital
and surplus of at least fifty million U.S. dollars ($50,000,000), and subject to
supervision or examination by federal, state, territorial, or District of
Columbia authority.
(b) If
the Trustee has or shall acquire any “conflicting interest” within the meaning
of Section 310(b) of the Trust Indenture Act, the Trustee and the Company shall
in all respects comply with the provisions of Section 310(b) of the Trust
Indenture Act.
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Compensation
And Reimbursement.
|
(a) The
Company covenants and agrees to pay to the Trustee, and the Trustee shall be
entitled to, such reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
as the Company and the Trustee may from time to time agree in writing, for all
services rendered by it in the execution of the trusts hereby created and in the
exercise and performance of any of the powers and duties hereunder of the
Trustee, and, except as otherwise expressly provided herein, the Company will
pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not
regularly in its employ), except any such expense, disbursement or advance as
may arise from its negligence or bad faith and except as the Company and Trustee
may from time to time agree in writing. The Company also covenants to
indemnify the Trustee (and its officers, agents, directors and employees) for,
and to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust, including the
reasonable costs and expenses of defending itself against any claim of liability
in the premises.
(b) The
obligations of the Company under this Section to compensate and indemnify the
Trustee and to pay or reimburse the Trustee for reasonable expenses,
disbursements and advances shall constitute additional Indebtedness
hereunder. Such additional Indebtedness shall be secured by a lien
prior 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.
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Resignation
And Removal; Appointment Of
Successor.
|
(a) The
Trustee or any successor hereafter appointed may at any time resign with respect
to the Securities of one or more series by giving written notice thereof to the
Company and by transmitting notice of resignation by mail, first class postage
prepaid, to the Holders of such series, as their names and addresses appear upon
the Security Register. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee with respect to the
Securities of such series by written instrument, in duplicate, executed by order
of the Board of Directors, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a
successor
trustee with respect to the Securities of such series, or any Holder of that
series who has been a bona fide holder of a Security or Securities for at least
six months may on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court
may thereupon after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In
case at any time any one of the following shall occur:
(i) the
Trustee shall fail to comply with the provisions of Section 7.12 after written
request therefor by the Company or by any Holder who has been a bona fide holder
of a Security or Securities for at least six months; or
(ii) the
Trustee shall cease to be eligible in accordance with the provisions of Section
7.12 and shall fail to resign after written request therefor by the Company or
by any such Holder; or
(iii) the
Trustee shall become incapable of acting, or shall be adjudged a bankrupt or
insolvent, or commence a voluntary bankruptcy proceeding, or a receiver of the
Trustee or of its property shall be appointed or consented to, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in
any such case, the Company may remove the Trustee with respect to all Securities
and appoint a successor trustee by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be delivered
to the Trustee so removed and one copy to the successor trustee, or any Holder
who has been a bona fide holder of a Security or Securities for at least six
months may, on behalf of that Holder and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The
holders of a majority in aggregate principal amount of the Securities of any
series at the time outstanding may at any time remove the Trustee with respect
to such series by so notifying the Trustee and the Company and may appoint a
successor Trustee for such series with the consent of the Company.
(d) Any
resignation or removal of the Trustee and appointment of a successor trustee
with respect to the Securities of a series pursuant to any of the provisions of
this Section shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 7.15.
(e) Any
successor trustee appointed pursuant to this Section may be appointed with
respect to the Securities of one or more series or all of such series, and at
any time there shall be only one Trustee with respect to the Securities of any
particular series.
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Acceptance
Of Appointment By Successor.
|
(a) In
case of the appointment hereunder of a successor trustee with respect to all
Securities, every such successor trustee so appointed shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument 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 conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the request of the Company or the
successor trustee, such retiring Trustee shall, upon payment of its charges,
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.
(b) In
case of the appointment hereunder of a successor 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 (i) 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, (ii) 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 (iii) shall
add to or change any of the provisions of this Indenture as shall be necessary
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, that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee and that no Trustee shall be responsible for any act or failure to
act on the part of any other Trustee hereunder; 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, such
retiring Trustee shall with respect to the Securities of that or those series to
which the appointment of such successor trustee relates have no further
responsibility for the exercise of rights and powers or for the performance of
the duties and obligations vested in the Trustee under this Indenture, and each
such successor trustee, without 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, to the extent contemplated by such
supplemental indenture, the 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 trustee all such rights, powers and trusts referred to in paragraph
(a) or (b) of this Section, as the case may be.
(d) No
successor trustee shall accept its appointment unless at the time of such
acceptance such successor trustee shall be qualified and eligible under this
Article.
(e) Upon
acceptance of appointment by a successor trustee as provided in this Section,
the Company shall transmit notice of the succession of such trustee hereunder by
mail, first class postage prepaid, to the Holders, as their names and addresses
appear upon the Security Register. If the Company fails to transmit
such notice within ten days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be transmitted at the
expense of the Company.
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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 corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such corporation shall be
qualified and eligible under the provisions of Section 7.12, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding. 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.
DEFEASANCE
AND COVENANT DEFEASANCE
|
Option
to Effect Legal Defeasance or Covenant
Defeasance.
|
The
Company may, at the option of the Board of Directors evidenced by a resolution
set forth in an Officers’ Certificate, at any time, elect to have either Section
8.02 or 8.03 hereof be applied to all of the outstanding Securities of any
series upon compliance with the conditions set forth below in this Article
Eight.
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Legal
Defeasance and Discharge.
|
Upon the
Company’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.02, the Company shall, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, be deemed to have been discharged from its
obligations with respect to all of the outstanding Securities of any series on
the date the conditions set forth below are satisfied (hereinafter, “Legal
Defeasance”). For this purpose, Legal Defeasance means that, with
respect to a series of Securities, the Company shall be deemed to have paid and
discharged all of its obligations under the terms of such series of Securities
and this Indenture (and the Trustee, on reasonable demand of and at the expense
of the Company, shall execute proper instruments acknowledging the same), except
for the following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Securities of
that series to receive solely from the trust fund described in Section 8.04
hereof, and as more
fully set
forth in such Section, payments in respect of the principal of, premium, if any,
and interest on such Securities when such payments are due, (b) the Company’s
obligations with respect to such Securities under Article 2 concerning issuing
temporary Securities, registration of Securities and mutilated, destroyed, lost
or stolen Securities and Company’s obligations under Section 4.02 hereof, (c)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and
the Company’s obligations in connection therewith and (d) this Article
8. Subject to compliance with this Article 8, the Company may
exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
Upon the
Company’s exercise under Section 8.01 hereof of the option applicable to this
Section 8.03, the Company shall, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be released from its
obligations under any covenants that are made applicable to such series of
Securities through a supplemental indenture pursuant to Section 2.01 of this
Indenture, on and after the date the conditions set forth in Section 8.04 are
satisfied (hereinafter, “Covenant Defeasance”), and the Securities of that
series shall thereafter be deemed not “outstanding” for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed “outstanding” for all other purposes hereunder (it being
understood that such Securities shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding series of Securities, the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such series of Securities shall be unaffected
thereby. In addition, upon the Company’s exercise under Section 8.01
hereof of the option applicable to this Section 8.03, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, Section
6.01(a)(iii) shall no longer constitute an Event of Default.
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Conditions
to Legal or Covenant Defeasance.
|
The
following shall be the conditions to the application of either Section 8.02 or
Section 8.03 hereof to any outstanding series of Securities:
(a) the
Company must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of the series of Securities, cash in U.S. dollars, non-callable
Government Securities, or a combination of cash in U.S. dollars and non-callable
Government Securities, in amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants, to pay the
principal of, or interest and premium on the series of Securities on the Stated
Maturity or on the applicable redemption date, as the case may be, and the
Company must specify whether the Securities of the series are being defeased to
maturity or to a particular redemption date and, if the Securities of the series
are being defeased to a particular redemption date, the Company must have
delivered to the Trustee an irrevocable notice of redemption;
(b) in
the case of Legal Defeasance, the Company shall have delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that (a) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling or (b) since the date hereof, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel will confirm that, the Holders of the series of
Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
(c) in
the case of Covenant Defeasance, the Company shall have delivered to the Trustee
an Opinion of Counsel reasonably acceptable to the Trustee confirming that the
Holders of the series of Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had not
occurred;
(d) no
Default or Event of Default has occurred and is continuing either (a) on the
date of such deposit or (b) insofar as Events of Default from bankruptcy or
insolvency events are concerned, at any time in the period ending on the 123rd
day after the date of deposit;
(e) such
Legal Defeasance or Covenant Defeasance will not result in a breach or violation
of, or constitute a default under, any material agreement or instrument (other
than this Indenture) to which the Company or any of its Subsidiaries is a party
or by which the Company or any of its Subsidiaries is bound;
(f) the
Company must have delivered to the Trustee an Officers’ Certificate stating that
the deposit was not made by the Company with the intent of preferring the
Holders of the series of Securities of that series over the other creditors of
the Company or with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others;
(g) the
Company must have delivered to the Trustee an Opinion of Counsel to the effect
that the creation of the defeasance trust does not violate the Investment
Company Act of 1940 and after the passage of 123 days following the deposit, the
trust fund will not be subject to the effect of Section 547 of the
U.S. Bankruptcy Code or Section 15 of the New York Debtor and
Creditor Law; and
(h) the
Company must deliver to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
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Deposited
Money and Government Securities to Be Held in Trust; Other Miscellaneous
Provisions.
|
(a) Subject
to Section 8.06 hereof, all money and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee pursuant to Section
8.04 hereof in respect of any outstanding series of Securities shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
series of Securities and this Indenture, to the payment,
either
directly or through any paying agent (including the Company acting as paying
agent) as the Trustee may determine, to the Holders of such series of Securities
of all sums due and to become due thereon in respect of principal, premium, if
any, and interest, but such money need not be segregated from other funds except
to the extent required by law.
(b) The
Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the cash or non-callable Government Securities
deposited pursuant to Section 8.04 hereof or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the outstanding series of
Securities.
(c) Anything
in this Article Eight to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon the request of the Company any
money or non-callable Government Securities held by it as provided in Section
8.04 hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.04 hereof), are
in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
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Repayment
to the Company.
|
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, premium, if any, or interest on any
Security and remaining unclaimed for two years after such principal, and
premium, if any, or interest has become due and payable shall be paid to the
Company on its request or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security shall thereafter look only to the
Company for payment thereof, and all liability of the 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 the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining shall be repaid to the Company.
If the
Trustee or paying agent is unable to apply any United States dollars or
non-callable Government Securities in accordance with Section 8.02 or Section
8.03 hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company’s obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or Section 8.03 hereof until such time as the Trustee
or paying agent is permitted to apply all such money in accordance with Section
8.02 or Section 8.03 hereof, as the case may be; provided, however, that, if the
Company makes any payment of principal of, premium, if any, or interest on any
Securities following the reinstatement of its obligations, the
Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money held by the Trustee or paying agent.
AMENDMENT,
SUPPLEMENT AND WAIVER
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Without
Consent of Holders of Securities.
|
(a) Notwithstanding
Section 9.02 of this Indenture, the Company and the Trustee may amend or
supplement this Indenture or any series of Securities without the consent of any
Holder of a Security of such series:
(i) to
cure any ambiguity or to correct or supplement any provision contained in the
Indenture, in any supplemental indenture or in the Securities of any series that
may be defective or inconsistent with any other provision contained herein or
therein, to convey, transfer, assign, mortgage or pledge any property to or with
the Trustee, or to make such other provisions in regard to matters or questions
arising under the Indenture as shall not adversely affect the legal rights under
this Indenture of any Holders;
(ii) to
establish the form or terms of Securities of any series as permitted by sections
201, which is not yet issues;
(iii) 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;
(iv) to
change or eliminate any of the provisions of this Indenture with respect to any
series of Securities; PROVIDED that any such change or elimination 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;
(v) to
provide for the assumption of the Company’s obligations to Holders of Securities
in the case of a merger or consolidation or sale of all or substantially all of
the Company’s assets;
(vi) to
make any change that would provide any additional rights or benefits to the
Holders of Securities or that does not adversely affect the legal rights under
this Indenture of any such Holder;
(vii) to
modify or amend the Indenture in such manner, including pursuant to requirements
with requirements of the SEC, in order to effect or maintain the qualification
of this Indenture under the Trust Indenture Act;
(viii) to
add guarantees with respect to any series of the Securities of any series or to
secure any series of the Securities of any series;
(ix) to
secure the Securities pursuant to the requirements of such indenture supplement,
if applicable;
(x)
to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of
Securities pursuant to sections 801, 802 and 803;
(xi) to
evidence and provide for the acceptance of appointment by a successor or
separate Trustee with respect to the Securities of any series and to add to or
change any of the provisions of the Indenture as shall be necessary to provide
for or facilitate the administration of the Indenture by more than one Trustee;
or
(xii) to
provide for uncertificated Securities in addition to or in place of certificated
Securities;
(b) Upon
the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and
upon receipt by the Trustee of the documents described in Section 7.02 hereof,
the Trustee shall join with the Company in the execution of any amended or
supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations that may be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
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With
Consent of Holders of Securities.
|
(a) Except
as provided in Sections 9.02(b) and 9.02(d):
(i)
the Company and the Trustee may, with respect to any
series of Securities, amend or supplement this Indenture or the Securities of
such series with the consent of the Holders of at least a majority in aggregate
principal amount of the then outstanding Securities of that series (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, Securities); and
(ii) subject
to Section 6.05 and Section 6.08 hereof, any existing Default or Event of
Default or compliance in a particular instance by the Company with any provision
of this Indenture, or the Securities of that series, may be waived with the
consent of the Holders of a majority in aggregate principal amount of the then
outstanding Securities of that series (including, without limitation, consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, Securities).
(b) Notwithstanding
anything contained herein to the contrary, without the consent of each Holder
affected, an amendment or waiver under this Section 9.02 may not (with respect
to any Securities held by a non-consenting Holder):
(i)
reduce the principal amount of Securities of a
series whose Holders must consent to an amendment, supplement or
waiver;
(ii)
reduce the principal of or change the fixed
maturity of any Security of a series or alter the provisions, or waive any
payment, with respect to the redemption of the Securities of that
series;
(iii) reduce
the rate of or change the time for payment of interest on any Security of a
series;
(iv) waive
a Default or Event of Default in the payment of principal of, or interest or
premium, if any, on any Securities of a series (except a rescission of
acceleration of such Securities by the Holders of at least a majority in
aggregate principal amount of such Securities and a waiver of the payment
default that resulted from such acceleration);
(v) make
the principal of or interest or premium, if any, on any Security of a series
payable in money other than U.S. dollars;
(vi) make
any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders of Securities of a series to receive payments
of principal of, or interest or premium, if any, on such
Securities;
(vii) waive
a redemption payment with respect to any Security of a series;
(viii) release
any Guarantor from any of its obligations under its Guarantee or this Indenture,
except in accordance with the terms of this Indenture;
(ix) impair
the right to institute suit for the enforcement of any payment on or with
respect to the Securities or the Guarantees; or
(x)
make any change in the preceding amendment and waiver provisions.
(c) The
Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to consent to any indenture supplemental
hereto. If a record date is fixed, the Holders on such record date,
or its duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided that unless such consent shall have
become effective by virtue of the requisite percentage having been obtained
prior to the date which is 90 days after such record date, any such consent
previously given shall automatically and without further action by any Holder be
cancelled and of no further effect.
(d) Upon
the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and
upon the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of the affected series of Securities as aforesaid, and
upon receipt by the Trustee of the documents described in Section 7.02 hereof,
the Trustee shall join with the Company in the execution of such amended or
supplemental indenture unless such amended or supplemental
indenture
directly
affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental indenture.
(e) Upon
the execution of any amended or supplemental indenture with respect to a series
of Securities pursuant to the provisions of this Article or of Section 5.01,
this Indenture shall, with respect to such series of Securities, be and be
deemed to be modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of Securities of the
series affected thereby shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
(f)
It shall not be necessary for the consent of the Holders of a series of
Securities under this Section to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
(g) After
an amendment, supplement or waiver under this Section becomes effective, the
Company shall mail to the Holders of the series of Securities affected thereby a
notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver.
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Compliance
with Trust Indenture Act.
|
Every
amendment or supplement to this Indenture or the Securities of any series shall
be set forth in an amended or supplemental indenture that complies with the
Trust Indenture Act as then in effect.
|
Revocation
and Effect of Consents.
|
Until an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
of a Security is a continuing consent by the Holder of a Security and every
subsequent Holder of a Security or portion of a Security that evidences the same
Indebtedness as the consenting Holder’s Security, even if notation of the
consent is not made on any Security. However, any such Holder of a
Security or subsequent Holder of a Security may revoke the consent as to its
Security if the Trustee receives written notice of revocation before the date
the waiver, supplement or amendment becomes effective. An amendment,
supplement or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.
|
Notation
on or Exchange of Securities.
|
(a) The
Trustee may place an appropriate notation about an amendment, supplement or
waiver on any Security thereafter authenticated. The Company in
exchange for all Securities of a series may issue and the Trustee shall, upon
receipt of an authentication order, authenticate new Securities of that series
that reflect the amendment, supplement or waiver.
(b) Failure
to make the appropriate notation or issue a new Security shall not affect the
validity and effect of such amendment, supplement or waiver.
|
Trustee
to Sign Amendments, Etc.
|
The
Trustee shall sign any amended or supplemental indenture or Security authorized
pursuant to this Article Nine if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the
Trustee. In executing any amended or supplemental indenture or
Security, the Trustee shall be entitled to receive and (subject to Section 7.01
hereof) shall be fully protected in relying upon an Officers’ Certificate and an
Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Indenture and that all conditions
precedent to such execution have been met.
SATISFACTION
AND DISCHARGE
|
Satisfaction
and Discharge.
|
(a) This
Indenture shall be discharged and shall cease to be of further effect as to all
Securities of a series issued thereunder, when:
(i) either:
(A) all
Securities of that series which have been authenticated (except lost, stolen or
destroyed Securities of the series that have been replaced or paid and
Securities of the series for whose payment money has theretofore been deposited
in trust and thereafter repaid to the Company) have been delivered to the
Trustee for cancellation; or
(B) all
Securities of that series which have not been delivered to the Trustee for
cancellation have become due and payable by reason of the making of a notice of
redemption or otherwise or will become due and payable within one year and the
Company has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust solely for the benefit of the Holders of such Securities of
that series, cash in U.S. dollars, non-callable Government Securities, or a
combination thereof, in such amounts as will be sufficient without consideration
of any reinvestment of interest to pay and discharge the entire Indebtedness on
the Securities of that series not delivered to the Trustee for cancellation for
principal, premium, if any, and accrued interest to the date of maturity or
redemption;
(ii)
no Default or Event of Default shall have occurred and
be continuing on the date of such deposit or shall occur as a result of such
deposit and such deposit will not result in a breach or violation of, or
constitute a default under, any other instrument to which the Company is a party
or by which the Company is bound;
(iii) the
Company has paid or caused to be paid all sums payable by it hereunder;
and
(iv) the
Company has delivered irrevocable instructions to the Trustee hereunder to apply
the deposited money toward the payment of the Securities of that series at
maturity or the redemption date, as the case may be.
(b) In
addition, the Company must deliver an Officers’ Certificate and an Opinion of
Counsel to the Trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.
|
Deposited
Money and Government Securities to Be Held in Trust; Other Miscellaneous
Provisions.
|
Subject
to Section 10.03 hereof, all money and non-callable Government Securities
(including the proceeds thereof) deposited with the Trustee pursuant to Section
10.01 hereof in respect of the outstanding Securities of any series shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Securities and this Indenture, to the payment, either directly or through
any paying agent (including the Company acting as paying agent) as the Trustee
may determine, to the Holders of such Securities of that series of all sums due
and to become due thereon in respect of principal, premium, if any, and
interest, but such money be segregated from other funds except to the extent
required by law.
|
Repayment
to the Company.
|
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, premium, if any, or interest on any
Securities of any series and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter
look only to the Company for payment thereof, and all liability of the 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 the New York
Times or The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining shall be repaid to the
Company.
MISCELLANEOUS
|
Trust
Indenture Act Controls.
|
If any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by Trust Indenture Act Section 318(c), the imposed duties shall
control.
(a) Any
notice or communication by the Company or any Guarantor, on the one hand, or the
Trustee on the other hand, to the other is duly given if in writing and
delivered in Person or mailed by first class mail (registered or certified,
return receipt requested), telecopier or overnight air courier guaranteeing next
day delivery, to the others’ address:
If to the
Company:
HEICO
Corporation
3000 Taft
Street
Hollywood,
Florida 33021
Facsimile:
(954) 987-8228
Attention:
Thomas S. Irwin
With a
copy to:
Akerman
Senterfitt
One
Southeast Third Avenue
25th
Floor
Miami,
Florida 33131-1714
Facsimile:
(305) 374-5095
Attention:
Jonathan L. Awner
If to the
Trustee:
____________________________
____________________________
Facsimile:____________________
Attention:____________________
(b) The
Company the Guarantors if any, or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
(c) All
notices and communications (other than those sent to Holders) shall be deemed to
have been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the mail, postage prepaid, if
mailed; when receipt acknowledged, if telecopied; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
(d) Any
notice or communication to a Holder shall be mailed by first class mail,
certified or registered, return receipt requested, or by overnight air courier
guaranteeing next day delivery to its address shown on the register kept by the
Registrar. Any notice or communication shall also be so mailed to any
Person described in Trust Indenture Act Section 313(c), to the extent required
by the Trust Indenture Act. Failure to mail a notice or communication
to a Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
(e) If
a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives
it. Notwithstanding the foregoing, notices to the Trustee shall be
deemed to be effective only when actually received by the Trustee’s Corporate
Trust Department.
(f)
If the Company mails a notice or
communication to Holders, it shall mail a copy to the Trustee and each Agent at
the same time.
|
Communication
by Holders of Securities with Other Holders of
Securities.
|
Holders
may communicate as provided in Section 312(b) of the Trust Indenture Act with
other Holders with respect to their rights under this Indenture or under the
Securities. The Company, the Trustee, the Registrar and anyone else
shall have the protection of Trust Indenture Act Section 312(c).
|
Certificate
and Opinion as to Conditions
Precedent.
|
Upon any
request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee:
(i) an
Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee stating that, in the opinion of the signers, all conditions precedent
and covenants, if any, provided for in this Indenture relating to the proposed
action have been satisfied; and
(ii) an
Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of such counsel (who may rely upon the Officer’s
Certificate as to matters of fact), all such conditions precedent and covenants
have been satisfied.
|
Rules
by Trustee and Agents.
|
The
Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or paying agent may make reasonable rules and
set reasonable requirements for its functions.
|
No
Personal Liability of Directors, Officers, Employees and
Shareholders.
|
No
recourse under or upon any obligation, covenant or agreement of this Indenture,
or of any Security, or any guarantee thereof or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, past, present or future as such, of the
Company or any Guarantor or of any predecessor or successor corporation of the
Company or any Guarantor, either directly or through the Company or any
Guarantor or any such predecessor or successor corporation of the Company or any
Guarantor, whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever shall attach
to, or is or shall be incurred by, the incorporators, shareholders, officers or
directors as
such, of
the Company, or any Guarantor or of any predecessor or successor corporation of
the Company or any Guarantor, or any of them, because of the creation of the
Indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities,
or any guarantees thereof, or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, shareholder, officer or director as such,
because of the creation of the Indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities, or any guarantees thereof, or implied therefrom,
are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture, the issuance of such
Securities, and any guarantees thereof. Each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Securities. The waiver may not be
effective to waive liabilities under the federal securities laws.
THIS
INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
Any legal
suit, action or proceeding arising out of or based upon this Indenture or the
transactions contemplated hereby (“Related Proceedings”) may be instituted in
the federal courts of the United States of America located in the City of New
York or the courts of the State of New York in each case located in the City of
New York (collectively, the “Specified Courts”), and each party irrevocably
submits to the exclusive jurisdiction (except for proceedings instituted in
regard to the enforcement of a judgment of any such court (a “Related
Judgment”), as to which such jurisdiction is non-exclusive) of such courts in
any such suit, action or proceeding. Service of any process, summons,
notice or document by mail to such party’s (other than the Trustee) address set
forth above shall be effective service of process for any suit, action or other
proceeding brought in any such court. The parties irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action
or other proceeding in the Specified Courts and irrevocably and unconditionally
waive and agree not to plead or claim in any such court has been brought in an
inconvenient forum.
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No
Adverse Interpretation of Other
Agreements.
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This
Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or any of its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
All
agreements of the Company in this Indenture and the Securities shall bind its
successors and assigns. All agreements of the Trustee in this
Indenture shall bind its successors and assigns.
In case
any provision in this Indenture or the Securities of any series shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired
thereby.
The
parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by the Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agents duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Holders signing
such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the Company
if made in the manner provided in this Section.
(b) The
fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to such witness, notary or officer the execution
thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) Notwithstanding
anything to the contrary contained in this Section, the principal amount and
serial numbers of Securities of any series held by any Holder, and the date of
holding the same, shall be proved by the register of the Securities of that
series maintained by the Registrar as provided in Section 2.05
hereof.
(d) If
the Company shall solicit from the Holders of the Securities any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a resolution of its Board of
Directors, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do
so. Notwithstanding Trust Indenture Act Section 316(c), such record
date shall be the record date specified in or pursuant to such resolution, which
shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith or the date of the
most
recent
list of Holders forwarded to the Trustee prior to such solicitation pursuant to
Section 4.04 hereof and not later than the date such solicitation is
completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of the then outstanding
Securities of that series have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other Act,
and for that purpose the then outstanding Securities of that series shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than 90 days after the record date.
(e) Any
request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Security of a series shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration or
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(f)
Without limiting the foregoing,
a Holder entitled hereunder to take any action hereunder with regard to any
particular Security may do so itself with regard to all or any part of the
principal amount of such Security or by one or more duly appointed agents each
of which may do so pursuant to such appointment with regard to all or any part
of such principal amount.
Nothing,
in this Indenture or in the Securities of any series, express or implied, shall
give to any Person, other than the parties hereto, any paying agent, any
Registrar and its successors hereunder, and the Holders of Securities of that
series, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
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Table
of Contents, Headings, Etc.
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The Table
of Contents, Cross-Reference Table and Headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part of this Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
EACH OF
THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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SIGNATURES:
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HEICO
Corporation, Issuer
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By:
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Name:
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Title:
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,as
Trustee
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By:
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Name:
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Title:
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Unassociated Document
EXHIBIT
5.1
Akerman
Senterfitt
One
Southeast Third Avenue, 25th Floor
Miami, FL
33131
September
16, 2009
HEICO
Corporation
3000 Taft
Street
Hollywood,
Florida 33021
Ladies
and Gentlemen:
We have
acted as counsel for HEICO Corporation, a Florida corporation (the “Company”)
and the selling shareholders (the “Selling Shareholders”) listed in the
registration statement, in connection with the Registration Statement on Form
S-3 (the “Registration Statement”) filed by the Company with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended (the
“Securities Act”), for the registration of the sale from time to time (I) by the
Company of (a) Common Stock, par value $0.01 per share (the “Common Stock”), and
related preferred stock purchase rights; (b) Class A Common Stock , par value
$0.01 per share (the “Class A Common Stock”), and related preferred stock
purchase rights; (c) Preferred Stock, par value $0.01 per share (the “Preferred
Stock”); (d) the Company’s senior debt securities and subordinated debt
securities (collectively, the “Debt Securities”), which may be issued pursuant
to a senior debt indenture, between the Company and a trustee to be named
therein (the “Senior Debt Trustee”) (the “Senior Debt Indenture”) and a
subordinated debt indenture between the Company and a trustee to be named
therein (the “Subordinated Debt Trustee” and, together with the Senior Debt
Trustee, the “Trustees”) (the “Subordinated Indenture,” and together with the
Senior Indenture, the “Indentures”); (e) depositary shares of the Company (the
“Depositary Shares”) each representing a fractional interest in a share of a
particular class or series of Preferred Stock and evidenced by a deposit receipt
(the “Deposit Receipts”), which may be issued pursuant to a deposit agreement
among the Company, a depositary to be named therein (the “Depositary”) and the
holders from time to time of the Deposit Receipts issued thereunder (the
“Deposit Agreement”); (f) warrants of the Company (the “Warrants”), which may be
issued pursuant to a warrant agreement between the Company and a warrant agent
to be named therein (the “Warrant Agent”) (the “Warrant Agreement”); and (g)
units (the “Units”) to be issued under one or more unit agreements to be entered
into among the Company, a bank or trust company, as unit agent (the “Unit
Agent”), and the holders from time to time of the Units (each such unit
agreement, a “Unit Agreement”) and (II) by the Selling Shareholders of up to
1,926,922 shares of Common Stock and 398,058 shares of Class A Common Stock (the
“Shareholders’ Securities”). All of the Shareholder Securities to be offered
were issued and outstanding as of the date of the filing of the Registration
Statement.
We, as
your counsel, have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary or advisable for the purpose of rendering this opinion.
Based
upon the foregoing, we are of the opinion that:
1.
When the necessary corporate action on the part of the Company has been taken to
authorize the issuance and sale of such shares of Common Stock or Class A Common
Stock proposed to be sold by the Company, and when such shares of Common Stock
or Class A Common Stock are issued and delivered in accordance with the
applicable underwriting or other agreement against payment therefor (in excess
of par value thereof) or upon conversion or exercise of any security offered
under the Registration Statement (the “Offered Security”), in accordance with
terms of such Offered Security or the instrument governing such Offered Security
providing for such conversion or exercise as approved by the Board of Directors,
for the consideration approved by the Board of Directors (which consideration is
not less than the par value of the Common Stock or Class A Common Stock), such
shares of Common Stock or Class A Common Stock will be validly issued,
fully-paid and non-assessable.
2. Upon
designation of the relative rights, preferences and limitations of any series of
Preferred Stock by the Board of Directors of the Company and if necessary, the
proper filing with the Secretary of State of the State of Florida of a
Certificate of Designation relating to such series of Preferred Stock, all
necessary corporate action on the part of the Company will have been taken to
authorize the issuance and sale of such series of Preferred Stock proposed to be
sold by the Company, and when such shares of Preferred Stock are issued and
delivered in accordance with the applicable underwriting or other agreement
against payment therefor (in excess of par value thereof), such shares of
Preferred Stock will be validly issued, fully paid and
non-assessable.
3. When the
Indentures and any supplemental indenture to be entered into in connection with
the issuance of any Debt Securities have been duly authorized, executed and
delivered by the Trustees and the Company; the specific terms of a particular
series of Debt Securities have been duly authorized and established in
accordance with the Indenture; and such Debt Securities have been duly
authorized, executed, authenticated, issued and delivered in accordance with the
Indenture and the applicable underwriting or other agreement against payment
therefor, such Debt Securities will constitute valid and binding obligations of
the Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally,
concepts of reasonableness and equitable principles of general
applicability.
4. When the
Deposit Agreement to be entered into in connection with the issuance of any
Depositary Shares has been duly authorized, executed and delivered by the
Depositary and the Company; the specific terms of the Depositary Shares have
been duly authorized and established in accordance with the Deposit Agreement;
the underlying Preferred Shares have been validly issued as described in
paragraph 2 above; the Depositary has duly issued the Deposit Receipts
evidencing the Depositary Shares against deposit of the Preferred Shares in
respect thereof in accordance with the Deposit Agreement; and the Deposit
Receipts have been duly executed, issued and delivered by one of the
Depositary’s authorized officers in accordance with the Deposit Agreement and
the applicable underwriting or other agreement against payment therefor, the
Deposit Receipts will be duly and validly issued.
5. When the
Warrant Agreement to be entered into in connection with the issuance of any
Warrants has been duly authorized, executed and delivered by the
Warrant
Agent and the Company; the specific terms of the Warrants have been duly
authorized and established in accordance with the Warrant Agreement; and such
Warrants have been duly authorized, executed, issued and delivered in accordance
with the Warrant Agreement and the applicable underwriting or other agreement
against payment therefor, such Warrants will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors’
rights generally, concepts of reasonableness and equitable principles of general
applicability.
6. When the Unit
Agreement to be entered into in connection with the issuance of any Units has
been duly authorized, executed and delivered by the Unit Agent and the Company;
the specific terms of the Units have been duly authorized and established in
accordance with the Unit Agreement; and such Units have been duly authorized,
executed, issued and delivered in accordance with the Unit Agreement and the
applicable underwriting or other agreement against payment therefor, such Units
will constitute valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights generally, concepts of reasonableness
and equitable principles of general applicability.
In
connection with the opinions expressed above, we have assumed that, at or prior
to the time of the delivery of any such security, (i) the Board of Directors
shall have duly established the terms of such security and duly authorized the
issuance and sale of such security and such authorization shall not have been
modified or rescinded; (ii) the Registration Statement shall have been declared
effective and such effectiveness shall not have been terminated or rescinded;
and (iii) there shall not have occurred any change in law affecting the validity
or enforceability of such security. We have also assumed that none of the terms
of any security to be established subsequent to the date hereof, nor the
issuance and delivery of such security, nor the compliance by the Company with
the terms of such security will violate any applicable law or public policy or
will result in a violation of any provision of any instrument or agreement then
binding upon the Company, or any restriction imposed by any court or
governmental body having jurisdiction over the Company.
We are
members of the Bar of the State of Florida and the foregoing opinion is limited
to the laws of the State of Florida and the federal securities
laws.
We hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement referred to above and further consent to the reference to our name
under the caption “Legal Matters” in the prospectus, which is a part of the
Registration Statement. In giving this consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the
Securities Act.
This
opinion is rendered solely to you in connection with the above matter. This
opinion may not be relied upon by you for any other purpose or relied upon by or
furnished to any other person without our prior written consent.
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Very
truly yours,
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/s/
AKERMAN SENTERFITT
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Unassociated Document
EXHIBIT
12.1
RATIO
OF EARNINGS TO FIXED CHARGES
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FOR
THE FISCAL YEAR ENDED OCTOBER 31
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FOR
THE NINE MONTHS ENDED
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2004
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2005
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2006
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2007
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2008
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July
31, 2009
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EARNINGS:
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Earnings
before minority interests and income taxes
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$ |
36,555,000 |
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$ |
44,041,000 |
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$ |
63,983,000 |
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$ |
82,816,000 |
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$ |
102,837,000 |
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$ |
63,896,000 |
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Fixed
charges
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2,336,000 |
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2,318,000 |
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4,886,000 |
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4,930,000 |
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4,666,000 |
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2,285,000 |
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Adjusted
earnings
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$ |
38,891,000 |
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$ |
46,359,000 |
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$ |
68,869,000 |
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$ |
87,746,000 |
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$ |
107,503,000 |
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$ |
66,181,000 |
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FIXED
CHARGES:
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Interest
expense
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$ |
1,090,000 |
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$ |
1,136,000 |
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$ |
3,523,000 |
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$ |
3,293,000 |
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$ |
2,314,000 |
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$ |
484,000 |
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Amortization
of debt issuance costs
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334,000 |
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289,000 |
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227,000 |
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230,000 |
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327,000 |
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208,000 |
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Portion
of rental payments deemed to be interest (1)
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912,000 |
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893,000 |
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1,136,000 |
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1,407,000 |
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2,025,000 |
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1,593,000 |
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Total
fixed charges
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$ |
2,336,000 |
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$ |
2,318,000 |
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$ |
4,886,000 |
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$ |
4,930,000 |
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$ |
4,666,000 |
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$ |
2,285,000 |
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Ratio
of earnings to fixed charges:
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16.6 |
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20.0 |
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14.1 |
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17.8 |
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23.0 |
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29.0 |
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(1) Interest
portion of rental expense is estimated to be one-third of rental
expense.
Unassociated Document
EXHIBIT
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in this Registration Statement on Form
S-3 of our report dated December 24, 2008, relating to the consolidated
financial statements and consolidated financial statement schedule of HEICO
Corporation, and the effectiveness of HEICO Corporation's internal control over
financial reporting, appearing in the Annual Report on Form 10-K of HEICO
Corporation for the year ended October 31, 2008, and to the reference to us
under the heading "Experts" in the Prospectus, which is part of this
Registration Statement.
DELOITTE
& TOUCHE LLP
Certified
Public Accountants
Miami,
Florida
September
16, 2009