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EXHIBIT 4.7
December [__], ▇▇▇▇
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Attention: Corporate Trust Trustee Administration
Ladies and Gentlemen:
Arrow Electronics, Inc., a New York corporation (the
"Company"), proposes to make an offer (the "Exchange Offer") to exchange all of
its outstanding Floating Rate Notes due October 5, 2001, 8.20% Senior Notes due
October 1, 2003, 8.70% Senior Notes due October 1, 2005 and 9.15% Senior Notes
due October 1, 2010 (the "Original Notes") for its Floating Rate Exchange Notes
due October 5, 2001, 8.20% Senior Exchange Notes due October 1, 2003, 8.70%
Senior Exchange Notes due October 1, 2005 and 9.15% Senior Exchange Notes due
October 1, 2010 (the "Exchange Notes"). The terms and conditions of the Exchange
Offer as currently contemplated are set forth in a prospectus, dated [_______],
2000 (the "Prospectus"), proposed to be distributed to all record holders of the
Original Notes. The Original Notes and the Exchange Notes are collectively
referred to herein as the "Notes".
The Company hereby appoints The Bank of New York to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
References hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company
on or about [________], 2000. The Letter of Transmittal accompanying the
Prospectus (or in the case of book-entry securities, the Automated Tender Offer
Program ("ATOP") of the Book-Entry Transfer Facility (as defined below)) is to
be used by the holders of the Original Notes to accept the Exchange Offer and
contains instructions with respect to the delivery of certificates for Original
Notes tendered in connection therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City
time, on [_________], 2000 or on such subsequent date or time to which the
Company may extend the Exchange Offer (the "Expiration Date"). Subject to the
terms and conditions set forth in the Prospectus, the Company expressly reserves
the right to extend the Exchange Offer from time to time and may extend the
Exchange Offer by giving oral (promptly confirmed in writing) or written notice
to you before 9:00 a.m., New York City time, on the business day following the
previously scheduled Expiration Date.
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The Company expressly reserves the right to amend or terminate
the Exchange Offer, and not to accept for exchange any Original Notes not
theretofore accepted for exchange, upon the occurrence of any of the conditions
of the Exchange Offer specified in the Prospectus under the caption "The
Exchange Offer -- Conditions of the Exchange Offer." The Company will give oral
(promptly confirmed in writing) or written notice of any amendment, termination
or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act
in accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer" or as specifically set forth herein; provided, however, that in no way
will your general duty to act in good faith be discharged by the foregoing.
2. You will establish a book-entry account with respect to the Original
Notes at The Depository Trust Company (the "Book-Entry Transfer Facility") for
purposes of the Exchange Offer within two business days after the date of the
Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may, until the Expiration Date, make
book-entry delivery of the Original Notes by causing the Book-Entry Transfer
Facility to transfer such Original Notes into your account in accordance with
the Book-Entry Transfer Facility's procedure for such transfer. In every case,
however, a Letter of Transmittal (or a manually executed facsimile thereof), or
a computer-generated message, or Agent's Message, properly completed and duly
executed, with any required signature guarantees and any other required
documents must be transmitted to and received by you prior to the Expiration
Date or the guaranteed delivery procedures described in the Prospectus must be
complied with.
3. You are to examine each of the Letters of Transmittal and
certificates for Original Notes (or confirmation of book-entry transfer into
your account at the Book-Entry Transfer Facility) and any other documents
delivered or mailed to you by or for holders of the Original Notes to ascertain
whether: (i) the Letters of Transmittal and any such other documents are duly
executed and properly completed in accordance with instructions set forth
therein; and (ii) the Original Notes have otherwise been properly tendered. In
each case where the Letter of Transmittal or any other document has been
improperly completed or executed or any of the certificates for Original Notes
are not in proper form for transfer or some other irregularity in connection
with the acceptance of the Exchange Offer exists, you will endeavor to inform
the presenters of the need for fulfillment of all requirements and to take any
other action as may be reasonably necessary or advisable to cause such
irregularity to be corrected.
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4. With the approval of the Executive Vice President of the Company
(such approval, if given orally, to be promptly confirmed in writing) or any
other party designated in writing, by such an officer, you are authorized to
waive any irregularities in connection with any tender of Original Notes
pursuant to the Exchange Offer.
5. Tenders of Original Notes may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer -- Procedures for Tendering", and Original Notes shall be
considered properly tendered to you only when tendered in accordance with the
procedures set forth therein.
Notwithstanding the provisions of this Section 5, Original
Notes which the Executive Vice President of the Company shall approve as having
been properly tendered shall be considered to be properly tendered (such
approval, if given orally, shall be promptly confirmed in writing).
6. You shall advise the Company with respect to any Original Notes
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Original Notes.
7. You shall accept tenders:
(a) in cases where the Original Notes are registered in two or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Original Notes,
provided that customary transfer requirements, including payment of any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Original Notes where so
indicated and as permitted in the Letter of Transmittal and deliver certificates
for Original Notes to the registrar for split-up and return any untendered
Original Notes to the holder (or such other person as may be designated in the
Letter of Transmittal) as promptly as practicable after expiration or
termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice, if given orally, to be promptly
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Original Notes properly tendered and you, on behalf of the Company, will
exchange such Original Notes for Exchange Notes and cause such Original Notes to
be cancelled. Delivery of Exchange Notes will be made on behalf of the Company
by you at the rate of $1,000 principal amount of Exchange Notes for each $1,000
principal amount of the
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corresponding series of Original Notes tendered promptly after notice (such
notice if given orally, to be promptly confirmed in writing) of acceptance of
said Original Notes by the Company; provided, however, that in all cases,
Original Notes tendered pursuant to the Exchange Offer will be exchanged only
after timely receipt by you of (i) either (a) certificates for such Original
Notes (or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility), a properly completed and duly executed Letter of
Transmittal (or manually signed facsimile thereof) with any required signature
guarantees and any other required documents or (b) a confirmation of book-entry
transfer into your account at the Book-Entry Transfer Facility that includes an
Agent's Message in which the holder acknowledges and agrees to be bound by the
terms of the Letter of Transmittal or (ii) any evidence required by the
guaranteed delivery procedures described in the Prospectus. You shall issue
Exchange Notes only in denominations of $1,000 or any integral multiple thereof.
9. If any holder shall report to you that his or her failure to
surrender Original Notes registered in his or her name is due to the loss or
destruction of a certificate or certificates, you shall request such holder to
furnish to you an affidavit of loss and, if required by the Company, a bond of
indemnity in an amount and evidenced by such certificate or certificates of a
surety, as may be satisfactory to you and the Company. The obligees to be named
in each such indemnity bond shall include the Company and you. You shall report
to the Company the names of all holders who claim that their Original Notes have
been lost or destroyed and the principal amount of such Original Notes.
10. As soon as practicable after the Expiration Date, you shall mail or
deliver via the Book Entry Transfer Facility's applicable procedures, the
Exchange Notes that such holders may be entitled to receive and you shall
arrange for cancellation of the Original Notes submitted to you or returned by
DTC in connection with ATOP. Such Original Notes shall be forwarded to the
Trustee for cancellation and retirement.
11. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Original Notes tendered pursuant to the Exchange
Offer may be withdrawn at any time prior to the Expiration Date.
12. The Company shall not be required to exchange any Original Notes
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Original Notes
tendered shall be given (if given orally, to be promptly confirmed in writing)
by the Company to you.
13. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Original Notes tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The
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Exchange Offer -- Conditions of the Exchange Offer" or otherwise, you shall as
soon as practicable after the expiration or termination of the Exchange Offer
return those certificates for unaccepted Original Notes (or effect appropriate
book-entry transfer), together with any related required documents and the
Letters of Transmittal relating thereto that are in your possession, to the
persons who deposited them.
14. All certificates for reissued Original Notes, unaccepted Original
Notes or for Exchange Notes shall be forwarded by first-class mail.
15. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
16. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to act unless the
same constitutes your own gross negligence, willful misconduct or bad faith, and
in no event shall you be liable to a securityholder, the Company or any third
party for special, indirect or consequential damages, or lost profits, arising
in connection with this Agreement;
(b) shall have no duties or obligations other than those
specifically set forth herein or as may be subsequently agreed to in writing
between you and the Company;
(c) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the certificates or the Original Notes represented thereby deposited with you
pursuant to the Exchange Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the Exchange Offer;
(d) shall not be obligated to take any legal action hereunder which
might in your judgment involve any expense or liability, unless you shall have
been furnished with indemnity satisfactory to you;
(e) may conclusively rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter, telegram or
other document or security delivered to you and believed by you to be genuine
and to have been signed or presented by the proper person or persons;
(f) may act upon any tender, statement, request, document,
agreement, certificate or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which you shall in good
faith believe to be genuine or to have been signed or presented by the proper
person or persons;
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(g) may conclusively rely on and shall be protected in acting upon
written or oral instructions from any authorized officer of the Company;
(h) may consult with counsel of your selection with respect to any
questions relating to your duties and responsibilities and the advice or opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by you hereunder in
good faith and in accordance with the advice or opinion of such counsel; and
(i) shall not advise any person tendering Original Notes pursuant to
the Exchange Offer as to the wisdom of making such tender or as to the market
value or decline or appreciation in market value of any Original Notes.
17. You shall take such action as may from time to time be requested by
the Company (and such other action as you may deem appropriate) to furnish
copies of the Prospectus, Letter of Transmittal and the Notice of Guaranteed
Delivery (as defined in the Prospectus) or such other forms as may be approved
from time to time by the Company, to all persons requesting such documents and
to accept and comply with telephone requests for information relating to the
Exchange Offer, provided that such information shall relate only to the
procedures for accepting (or withdrawing from) the Exchange Offer. The Company
will furnish you with copies of such documents on your request. All other
requests for information relating to the Exchange Offer shall be directed to the
Company, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
18. You shall advise by facsimile transmission ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the
Executive Vice President of the Company (at the facsimile number (516)
391-1640), and such other person or persons as the Company may request, daily
(and more frequently during the week immediately preceding the Expiration Date
if requested) up to and including the Expiration Date, as to the number of
Original Notes which have been tendered pursuant to the Exchange Offer and the
items received by you pursuant to this Agreement, separately reporting and
giving cumulative totals as to items properly received and items improperly
received. In addition, you will also inform, and cooperate in making available
to, the Company or any such other person or persons upon oral request made from
time to time prior to the Expiration Date of such other information as they may
reasonably request. Such cooperation shall include, without limitation, the
granting by you to the Company and such person as the Company may request of
access to those persons on your staff who are responsible for receiving tenders,
in order to ensure that immediately prior to the Expiration Date the Company
shall have received information in sufficient detail to enable it to decide
whether to extend the Exchange Offer. You shall prepare a final list of all
persons whose tenders were accepted, the aggregate principal amount of Original
Notes tendered and the aggregate principal amount of Original Notes accepted and
deliver said list to the Company.
19. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and, after the expiration of the Exchange Offer,
the time, of
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receipt thereof and shall be preserved by you for a period of time
at least equal to the period of time you preserve other records pertaining to
the transfer of securities. You shall dispose of unused Letters of Transmittal
and other surplus materials by returning them to the Company.
20. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto. The
provisions of this section shall survive the termination of this Agreement.
21. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal. Any inconsistency between this Agreement, on the one hand, and the
Prospectus, the Letter of Transmittal, the Notice of Guaranteed Delivery, the
form of instructions to registered holders and/or book-entry transfer facility
participants and the form of letter to clients (as they may be amended from time
to time), on the other hand, shall be resolved in favor of the latter, except
with respect to your duties, liabilities and indemnification as Exchange Agent.
22. The Company covenants and agrees to fully indemnify and hold you
harmless against any and all loss, liability, cost or expense, including
attorneys' fees and expenses, incurred without gross negligence or willful
misconduct on your part, arising out of or in connection with any act, omission,
delay or refusal made by you in reliance upon any signature, endorsement,
assignment, certificate, order, request, notice, instruction or other instrument
or document believed by you to be valid, genuine and sufficient and in accepting
any tender or effecting any transfer of Original Notes believed by you in good
faith to be authorized, and in delaying or refusing in good faith to accept any
tenders or effect any transfer of Original Notes. In each case, the Company
shall be notified by you, by letter or facsimile transmission, of the written
assertion of a claim against you or of any other action commenced against you,
promptly after you shall have received any such written assertion or shall have
been served with a summons in connection therewith. The Company shall be
entitled to participate at its own expense in the defense of any such claim or
other action and, if the Company so elects, the Company shall assume the defense
of any suit brought to enforce any such claim. In the event that the Company
shall assume the defense of any such suit, the Company shall not be liable for
the fees and expenses of any additional counsel thereafter retained by you, so
long as the Company shall retain counsel satisfactory to you to defend such
suit, and so long as you have not determined, in your reasonable judgment, that
a conflict of interest exists between you and the Company. The provisions of
this section shall survive the termination of this Agreement. You shall not
enter into a settlement or other compromise with respect to any indemnified
loss, liability or expense without the prior written consent of the Company,
which shall not be unreasonably withheld or delayed.
23. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service.
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24. You shall deliver or cause to be delivered, in a timely manner to
each governmental authority to which any transfer taxes are payable in respect
of the exchange of Original Notes, the Company's check in the amount of all
transfer taxes so payable; provided, however, that you shall reimburse the
Company for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you.
25. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
26. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
27. In case any provision of this Agreement 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.
28. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
29. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
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If to the Company:
Arrow Electronics, Inc.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
If to the Exchange Agent:
The Bank of New York
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Trustee
Administration
30. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 20 and 22 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the
Company any certificates for Notes, funds or property then held by you as
Exchange Agent under this Agreement.
31. This Agreement shall be binding and effective as of the date
hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
By:
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Name:
Title:
Accepted as of the date first above written:
THE BANK OF NEW YORK, as Exchange Agent
By:
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Name:
Title:
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SCHEDULE I
COMPENSATION OF EXCHANGE AGENT:
$[ ] PLUS $[ ] PER EXTENSION OF OFFER
PLUS OUT-OF POCKET EXPENSES, INCLUDING, WITHOUT
LIMITATION, LEGAL FEES AND EXPENSES.
