SUPPLEMENTAL INDENTURE
Dated as of December 31, 2001
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SUPPLEMENTAL INDENTURE (this "Supplemental Indenture") dated as of
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December 31, 2001, between Arrow Electronics, Inc., a New York corporation
(the "Company"), and THE BANK OF NEW YORK (as successor to Bank of Montreal
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Trust Company), as trustee (the "Trustee").
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WHEREAS, the Company and the Trustee are parties to an Indenture
dated as of January 15, 1997 (as amended and supplemented as of the date
hereof, the "Existing Indenture") pursuant to which the Company issued
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securities of various series, including its 6.45% Senior Notes due 2003
(the "6.45% Notes").
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Capitalized terms used in this Supplemental Indenture and not otherwise
defined are used herein as defined in the Existing Indenture.
WHEREAS, Section 9.2 of the Existing Indenture provides that
the Company and the Trustee, with the written consent of the Holders
of a majority in aggregate principal amount of the outstanding Securities
of all series affected thereby, may enter into a supplemental indenture
for purposes of amending the Existing Indenture or such Securities.
WHEREAS, the Trustee has received the written consent of
the Holders of a majority in aggregate principal amount of the
outstanding 6.45% Notes to the execution and delivery of this
Supplemental Indenture.
WHEREAS, all things necessary have been done to make
this Supplemental Indenture, when executed and delivered by the
Company, the legal, valid and binding agreement of the Company.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
The parties hereto mutually covenant and agree as follows:
PART ONE
Section 1.1. The special covenant specified in the eleventh
paragraph of the reverse side of each 6.45% Note is hereby amended and
restated to read in its entirety as follows:
"As a special covenant for the benefit of the holders of
the Notes only, the Company may not permit Consolidated Total Debt
to exceed an amount equal to:
(i) on any date on or prior to March 31, 2001, 70%
of Consolidated Total Capitalization; and
(ii) on any date after March 31, 2001, 65% of
Consolidated Total Capitalization.".
Section 1.2. The following new paragraphs are added
between the eleventh and the twelfth paragraphs of the reverse
side of each 6.45% Note:
"Within five (5) Business Days following the date of any Rating
Downgrade, the Company shall give a Rating Downgrade Notice to the Trustee
(and the Trustee shall promptly (and, in any event, within five (5)
Business Days after receipt thereof) provide a copy thereof to each Holder
of Notes). Concurrently with the furnishing of such Rating Downgrade
Notice to the Trustee, the Company shall transmit a copy thereof (via
facsimile) to each Person specified on Schedule I to this Supplemental
Indenture, so long as the Company reasonably believes that such Person owns
a beneficial interest in a Note at the time of such Rating Downgrade (it
being understood that the Company shall have no obligation to verify the
accuracy or completeness of any such information on Schedule I). Each
Holder of Notes may notify the Trustee in writing of such Holder's
acceptance or rejection of the related Rating Downgrade Put Offer (with
respect to all or any portion of the outstanding principal amount of Notes
held by such Holder) on or prior to the Rating Downgrade Response Date
specified in such Rating Downgrade Notice, and the Trustee shall promptly
provide a copy of each such acceptance or rejection to the Company (the
failure of any Holder of Notes to respond in writing to the Trustee on or
prior to the Rating Downgrade Response Date (with respect to all or any
portion of the outstanding principal amount of Notes held by such Holder)
shall be deemed to constitute a rejection of all or such portion by such
Holder of such Rating Downgrade Offer. The applicable unpaid amount of the
Notes held by each Holder of Notes who has accepted the Rating Downgrade
Put Offer, together with any accrued and unpaid interest thereon to the
Rating Downgrade Prepayment Date (but without any premium thereon), shall
become due and payable on the Rating Downgrade Prepayment Date. The Company
will promptly provide the Trustee with all information that any Holder of
Notes may reasonably request in order to enable such Holder to evaluate the
effect of a Rating Downgrade on such Holder's investment in the Notes (and
the Trustee shall promptly upon receipt thereof provide such information to
such Holder of Notes).
For purposes of the foregoing paragraph:
"Rating Downgrade" means that the Company's senior unsecured long-term
indebtedness rating most recently assigned (i) by Standard & Poor's Rating
Services, a division of the XxXxxx-Xxxx Companies, Inc. (or any successor
thereof) is less than "BBB-" or (ii) by Xxxxx'x Investors Service, Inc. (or
any successor thereof) is less than "Baa3".
"Rating Downgrade Notice" means a written notice of a Rating Downgrade
given by the Company to the Trustee, which shall (i) describe the facts and
circumstances of such Rating Downgrade in reasonable detail, (ii) refer to
the twelfth paragraph of the reverse side of each 6.45% Note and the rights
of the Holders thereunder, (iii) inform each Holder of Notes that such
Holder may accept the Rating Downgrade Put Offer on or prior to the Rating
Downgrade Response Date specified therein and may accept such Rating
Downgrade Put Offer with respect to all or any portion of the outstanding
principal amount of Notes held by such Holder, (iv) specify the Rating
Downgrade Prepayment Date and indicate the amount of interest that would be
paid to such Holder on the Rating Downgrade Prepayment Date if such Holder
accepted the Rating Downgrade Put Offer with respect to the entire
outstanding principal amount of Notes held by such Holder, (v) inform each
such Holder that such Holder may accept the Rating Downgrade Put Offer
(with respect to all or any portion of the outstanding principal amount of
Notes held by such Holder) by causing a notice of such acceptance to be
delivered to the Trustee on or prior to the Rating Downgrade Response Date,
and (vi) inform each such Holder that failure by such Holder to respond to
the Rating Downgrade Notice (with respect to all or any portion of the
outstanding principal amount of Notes held by such Holder) shall be deemed
to constitute a rejection of the Rating Downgrade Put Offer by such Holder
(if applicable, with respect to such portion).
"Rating Downgrade Prepayment Date" means a date specified in a Rating
Downgrade Notice on which the applicable aggregate outstanding principal
amount of the Notes plus accrued interest thereon shall be paid to Holders
of Notes who accept the Rating Downgrade Put Offer, which date shall be a
Business Day not less than 30 days nor more than 60 days after the date of
such Rating Downgrade Notice.
"Rating Downgrade Put Offer" means an offer contained in the Rating
Downgrade Notice made by the Company to each Holder of Notes to put such
Holder's Notes in whole or in part to the Company.
"Rating Downgrade Response Date" means the date that is 30 days after
the date of a Rating Downgrade Notice.
PART TWO
Section 2.1. Within two Business Days of the date on which this
Supplemental Indenture shall be executed and delivered by the Company and
the Trustee, the Company shall pay a non-refundable fee (a "Consent Fee")
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for the account of each Consenting Beneficial Owner (as defined below),
in an amount for each such Consenting Beneficial Owner equal to 1.75%
of the principal amount of 6.45% Notes beneficially owned by such
Consenting Beneficial Owner as of the effective date of this Supplemental
Indenture (the "Record Date"). For purposes hereof, "Consenting
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Beneficial Owner" means each Person owning an interest in a
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6.45% Note as reflected on the books of the Depositary Trust
Company ("DTC"), as the sole Holder of the 6.45% Notes as of the
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Record Date, so long as such Person duly consents to the execution
and delivery of this Supplemental Indenture. The Consent Fee shall
be paid as aforesaid by the Company to the Trustee and (promptly
after receipt thereof) by the Trustee to DTC (as sole Holder of the
6.45% Notes) (for the account of each Consenting Beneficial Owner).
PART THREE
Section 3.1. This Supplemental Indenture shall be construed
as supplemental to the Existing Indenture and shall form a part thereof,
and, as supplemented and modified hereby, is hereby ratified, approved
and confirmed.
Section 3.2. This Supplemental Indenture shall be governed
by, and construed in accordance with, laws of the State of New York.
Section 3.3. This Supplemental Indenture may be executed in
any number of counterparts with the same effect as if the signatures
to each counterpart were upon a single instrument, and all such
counterparts together shall be deemed an original of this Supplemental
Indenture.
Section 3.4. The Trustee makes no undertaking or representations
in respect of, and shall not be responsible in any manner whatsoever
for and in respect of, the validity or sufficiency of this Supplemental
Indenture or the proper authorizations or the due execution hereof
by the Company or for and in respect of the recitals and statements
contained herein, all of which recitals and statements are made solely
by the Company.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed as of the day and year
first above written.
ARROW ELECTRONICS, INC.,
as the Company
By
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Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By
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Name:
Title:
