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Exhibit 99.3
FORM OF EXCHANGE AGENT AGREEMENT
THIS EXCHANGE AGENT AGREEMENT (this "Agreement") is made and entered into
as of September , 2001, by and between WESCO International, Inc., a Delaware
corporation, ("WESCO International"), WESCO Distribution, Inc., a Delaware
corporation and a wholly owned subsidiary of WESCO International (the "Company"
and, together with WESCO International, the "Issuer"), and Bank One, N.A., a
national banking association incorporated and existing under the laws of the
United States of America, as exchange agent (the "Exchange Agent").
RECITALS
The Issuer is making an offer to exchange, upon the terms and subject to
the conditions set forth in the Issuer's Prospectus, dated September , 2001
(the "Prospectus"), attached hereto as Exhibit A and the accompanying letter of
transmittal (the "Letter of Transmittal") attached hereto as Exhibit B (which
together with the Prospectus constitutes the "Exchange Offer"), its 9 1/8%
Senior Subordinated Notes due 2008 (the "Outstanding Notes") for an equal
principal amount of its 9 1/8% Senior Subordinated Notes due 2008, issued 2001
(the "Exchange Notes" and, together with the Outstanding Notes, the
"Securities.")
The Exchange Offer will commence as soon as practicable after the Issuer's
Registration Statement on Form S-4 relating to the Exchange Offer is declared
effective under the Securities Act of 1933, as certified in writing to the
Exchange Agent by the Issuer (the "Effective Time") and shall terminate at 5:00
p.m., New York City time, on , 2001 (the "Expiration Date"), unless the
Exchange Offer is extended by the Issuer and the Issuer notifies the Exchange
Agent of such extension by 5:00 p.m., New York City time, on the previous
Expiration Date, in which case, the term "Expiration Date" shall mean the latest
date and time to which the Exchange Offer is extended. In connection therewith,
the undersigned parties hereby agree as follows:
1. Appointment and Duties as Exchange Agent. The Issuer hereby authorizes
the Exchange Agent, to act as the exchange agent in connection with the Exchange
Offer, and the Exchange Agent, hereby agrees to act as the exchange agent and to
perform the services outlined herein in connection with the Exchange Offer on
the terms and conditions contained herein.
2. Mailing to Holders of the Outstanding Notes. As soon as practicable
after its receipt of certification from the Issuer as to the Effective Time, the
Exchange Agent will mail to each Holder (as defined in the Indenture), and to
each DTC participant identified by DTC as a holder of any Outstanding Notes (i)
a Letter of Transmittal with instructions (including instructions for completing
a substitute Form W-9), (ii) a Prospectus and (iii) a Notice of Guaranteed
Delivery substantially in the form attached hereto as Exhibit C (the "Notice of
Guaranteed Delivery") all in accordance with the procedures described in the
Prospectus.
B. The Issuer shall supply the Exchange Agent with sufficient copies of the
Prospectus, Letter of Transmittal and Notice of Guaranteed Delivery to enable
the Exchange Agent to perform its duties hereunder. The Issuer shall also
furnish or cause to be furnished to the Exchange Agent a list of the holders of
the Outstanding Notes (including a beneficial holder list from The Depository
Trust Company ("DTC"), certificated Outstanding Notes' numbers and amounts,
mailing addresses, and social security numbers), unless waived by the Exchange
Agent.
3. ATOP Registration. As soon as practicable, the Exchange Agent shall
establish an account with DTC in its name to facilitate book-entry tenders of
Outstanding Notes through DTC's Automated Tender Offer Program (herein "ATOP")
for the Exchange Offer.
4. Receipt of Letters of Transmittal and Related Items. From and after the
Effective Time, the Exchange Agent is hereby authorized and directed to accept
(i) Letters of Transmittal, duly executed in accordance with the instructions
thereto (or a manually signed facsimile thereof), and any requisite collateral
documents from Holders of the Outstanding Notes and (ii) surrendered Outstanding
Notes to which such Letters of Transmittal relate. The Exchange Agent is
authorized to request from any person tendering Outstanding Notes such
additional documents as the Exchange Agent or the Issuer deems appropriate. The
Exchange Agent is hereby authorized and directed to process withdrawals of
tenders to the extent withdrawal thereof is authorized by the Exchange Offer.
5. Defective or Deficient Outstanding Notes and Instruments. As soon as
practicable after receipt, the Exchange Agent will examine instructions
transmitted by DTC ("DTC Transmissions"), Outstanding Notes, Letters of
Transmittal and other
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documents received by the Exchange Agent in connection with tenders of
Outstanding Notes to ascertain whether (i) the Letters of Transmittal are
completed and executed in accordance with the instructions set forth therein (or
that the DTC Transmissions contain the proper information required to be set
forth therein), (ii) the Outstanding Notes have otherwise been properly tendered
in accordance with the Prospectus and the Letters of Transmittal (or that
book-entry confirmations are in due and proper form and contain the information
required to be set forth therein) and (iii) if applicable, the other documents
(including the Notice of Guaranteed Delivery) are properly completed and
executed.
B. If any Letter of Transmittal or other document has been improperly
completed or executed (or any DTC Transmissions are not in due and proper form
or omit required information) or the Outstanding Notes accompanying such Letter
of Transmittal are not in proper form for transfer or have been improperly
tendered (or the book-entry confirmations are not in due and proper form or omit
required information) or if some other irregularity in connection with any
tender of any Outstanding Notes exists, the Exchange Agent shall promptly report
such information to the Holder. If such condition is not promptly remedied by
the Holder, the Exchange Agent shall report such condition to the Issuer and
await its direction. All questions as to the validity, form, eligibility
(including timeliness of receipt), acceptance and withdrawal of any Outstanding
Notes tendered or delivered shall be determined by the Issuer, in its sole
discretion. Notwithstanding the above, the Exchange Agent shall not be under any
duty to give notification of defects in such tenders and shall not incur any
liability for failure to give such notification unless such failure constitutes
gross negligence or willful misconduct.
C. The Issuer reserves the absolute right (i) to reject any or all tenders
of any particular Outstanding Notes determined by the Issuer not to be in proper
form or the acceptance or exchange of which may, in the opinion of the Issuer's
counsel, be unlawful and (ii) to waive any of the conditions of the Exchange
Offer or any defect or irregularity in the tender of any particular Outstanding
Notes, and the Issuer's interpretation of the terms and conditions of the
Exchange Offer (including the Letter of Transmittal and Notice of Guaranteed
Delivery and the instructions set forth therein) will be final and binding.
6. Requirements of Tenders. Tenders of Outstanding Notes shall be made only
as set forth in the Letter of Transmittal, and shall be considered properly
tendered only when tendered in accordance therewith. Notwithstanding the
provisions of this paragraph, any Outstanding Notes that the Issuer's President,
Chief Financial Officer or Corporate Controller, or any other person designated
by the Issuer's President shall approve as having been properly tendered shall
be considered to be properly tendered.
B. The Exchange Agent shall (a) ensure that each Letter of Transmittal and
the related Outstanding Notes or a bond power are duly executed (with signatures
guaranteed where required) by the appropriate parties in accordance with the
terms of the Exchange Offer; (b) in those instances where the person executing
the Letter of Transmittal (as indicated on the Letter of Transmittal) is acting
in a fiduciary or a representative capacity, ensure that proper evidence of his
or her authority so to act is submitted; and (c) in those instances where the
Outstanding Notes are tendered by persons other than the registered holder of
such Outstanding Notes, ensure that customary transfer requirements, including
any applicable transfer taxes, and the requirements imposed by the transfer
restrictions on the Outstanding Notes (including any applicable requirements for
certifications, legal opinions or other information) are fulfilled.
7. Exchange of the Outstanding Notes. Promptly after the Effective Time,
the Issuer will deliver the Exchange Notes to the Exchange Agent. Upon surrender
of the Outstanding Notes properly tendered in accordance with the Exchange
Offer, the Exchange Agent is hereby directed to deliver or cause to be delivered
Exchange Notes to the Holders of such surrendered Outstanding Notes. The
principal amount of the Exchange Notes to be delivered to a Holder shall equal
the principal amount of the Outstanding Notes surrendered.
B. The Exchange Notes issued in exchange for certificated Outstanding Notes
shall be mailed by the Exchange Agent, in accordance with the instructions
contained in the Letter of Transmittal, by first class or registered mail, and
under coverage of the Exchange Agent's blanket surety bond for first class or
registered mail losses protecting the Issuer from loss or liability arising out
of the non-receipt or non-delivery of such Exchange Notes or the replacement
thereof.
C. Notwithstanding any other provision of this Agreement, issuance of the
Exchange Notes for accepted Outstanding Notes pursuant to the Exchange Offer
shall be made only after deposit with the Exchange Agent of the Outstanding
Notes, the Letter of Transmittal and any other required documents.
8. Securities Held in Trust. The Exchange Notes and any cash or other
property (the "Property") deposited with or received by the Exchange Agent (in
such capacity) from the Issuer shall be held in a segregated account, solely for
the benefit of the Issuer and Holders tendering Outstanding Notes, as their
interests may appear, and the Property shall not be
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commingled with securities, money, assets or property of the Exchange Agent or
any other party. The Exchange Agent hereby waives any and all rights of lien, if
any, against the Property, except to the extent set forth in the Indenture with
respect to the Exchange Notes.
9. Reports to the Issuer. The Exchange Agent shall notify, by facsimile or
electronic communication, the Issuer of the principal amount of the Outstanding
Notes which have been duly tendered since the previous report and the aggregate
amount tendered since the Effective Date on a weekly basis until the Expiration
Date. Such notice shall be delivered in substantially the form set forth as
Exhibit D.
10. Record Keeping. Each Letter of Transmittal, Outstanding Notes and any
other documents received by the Exchange Agent in connection with the Exchange
Offer shall be stamped by the Exchange Agent to show the date of receipt (or if
Outstanding Notes are tendered by book-entry delivery, such form of record
keeping of receipt as is customary for tenders through ATOP) and, if defective,
the date and time the last defect was cured or waived by the Issuer. The
Exchange Agent shall cancel certificated Outstanding Notes. The Exchange Agent
shall retain all Outstanding Notes and Letters of Transmittal and other related
documents or correspondence received by the Exchange Agent until the Expiration
Date. The Exchange Agent shall return all such material to the Issuer as soon as
practicable after the Expiration Date. If the Exchange Agent receives any
Letters of Transmittal after the Expiration Date, the Exchange Agent shall
return the same together with all enclosures to the party from whom such
documents were received.
11. Discrepancies or Questions. Any discrepancies or questions regarding
any Letter of Transmittal, Outstanding Notes, notice of withdrawal or any other
documents received by the Exchange Agent in connection with the Exchange Offer
shall be referred to the Issuer and the Exchange Agent shall have no further
duty with respect to such matter; provided that the Exchange Agent shall
cooperate with the Issuer in attempting to resolve such discrepancies or
questions.
12. Transfer of Registration. Exchange Notes may be registered in a name
other than that of the record Holder of surrendered Outstanding Notes, if and
only if (i) the Outstanding Notes surrendered shall be properly endorsed (either
by the registered Holder thereof or by a properly completed separate power with
such endorsement guaranteed by an Eligible Institution (as defined in the Letter
of Transmittal) and otherwise in proper form for transfer, (ii) the person
requesting such transfer of registration shall pay to the Exchange Agent any
transfer or other taxes required, or shall establish to the Exchange Agent's
satisfaction that such tax is not owed or has been paid and (iii) the such other
documents and instruments as the Issuer or the Exchange Agent require shall be
received by the Exchange Agent.
13. Partial Tenders. If, pursuant to the Exchange Offer, less than all of
the principal amount of any Outstanding Notes submitted to the Exchange Agent
are tendered, the Exchange Agent shall, promptly after the Expiration Date,
return, or cause the registrar with respect to such Outstanding Notes to return,
new Outstanding Notes for the principal amount not being tendered to, or in
accordance with the instruction of, the Holder who has made a partial tender.
14. Withdrawals. A tendering Holder may withdraw tendered Outstanding Notes
as set forth in the Prospectus, in which event the Exchange Agent shall, after
proper notification of such withdrawal, return such Outstanding Notes to, or in
accordance with the instructions of, such Holder and such Outstanding Notes
shall no longer be considered properly tendered. Any withdrawn Outstanding Notes
may be tendered by again following the procedures therefor described in the
Prospectus at any time on or prior to the Expiration Date.
15. Rejection of Tenders. If, pursuant to the Exchange Offer, the Issuer
does not accept for exchange all of the Outstanding Notes tendered by a Holder
of Outstanding Notes, the Exchange Agent shall return or cause to be returned
such Outstanding Notes to, or in accordance with the instructions of, such
Holder of Outstanding Notes.
16. Cancellation of Exchanged Outstanding Notes. The Exchange Agent is
authorized and directed to cancel all Outstanding Notes received by it upon
delivering the Exchange Notes to tendering holders of the Outstanding Notes as
provided herein. The Exchange Agent shall maintain a record as to which
Outstanding Notes have been exchanged pursuant to Section 7 hereof.
17. Requests for Information. The Exchange Agent shall accept and comply
with telephone and mail requests for information from any person concerning the
proper procedure to tender Outstanding Notes. The Exchange Agent shall provide
copies of the Prospectus, Letter of Transmittal and Notice of Guaranteed
Delivery to any person upon request. All other requests for materials shall be
referred to the Issuer. The Exchange Agent shall not offer any concessions or
pay any commissions or solicitation fees to any brokers, dealers, banks or other
persons or engage any persons to solicit tenders.
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18. Tax Matters. The Exchange Agent shall file with the Internal Revenue
Service and Holders Form 1099 reports regarding principal and interest payments
on Securities which the Exchange Agent has made in connection with the Exchange
Offer, if any. Any questions with respect to any tax matters relating to the
Exchange Offer shall be referred to the Issuer, and the Exchange Agent shall
have no duty with respect to such matter; provided that the Exchange Agent shall
cooperate with the Issuer in attempting to resolve such questions.
19. Reports. Within five (5) days after the Expiration Date, the Exchange
Agent shall furnish the Issuer a final report showing the disposition of the
Exchange Notes.
20. Fees and Expenses. The Issuer will pay the Exchange Agent its fees plus
expenses, including counsel fees and disbursements, as set forth in Exhibit E.
21. Concerning the Exchange Agent. As exchange agent hereunder, the
Exchange Agent:
A. shall have no duties or obligations other than those specifically set
forth in this Agreement;
B. will make no representation and will have no responsibility as to the
validity, value or genuineness of the Exchange Offer, shall not make any
recommendation as to whether a Holder of Outstanding Notes should or should not
tender its Outstanding Notes and shall not solicit any Holder for the purpose of
causing such Holder to tender its Outstanding Notes;
C. shall not be obligated to take any action hereunder which may, in the
Exchange Agent's sole judgment, involve any expense or liability to the Exchange
Agent unless it shall have been furnished with indemnity against such expense or
liability which, in the Exchange Agent's sole judgment, is adequate;
D. may rely on and shall be protected in acting upon any certificate,
instrument, opinion, notice, instruction, letter, telegram or other document, or
any security, delivered to the Exchange Agent and believed by the Exchange Agent
to be genuine and to have been signed by the proper party or parties;
E. may rely on and shall be protected in acting upon the written
instructions of the Issuer, its counsel, or its representatives;
F. shall not be liable for any claim, loss, liability or expense, incurred
without the Exchange Agent's negligence or willful misconduct, arising out of or
in connection with the administration of the Exchange Agent's duties hereunder;
and
G. may consult with counsel, and the advice of such counsel or any opinion
of counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by the Exchange Agent hereunder in
accordance with the advice of such counsel or any opinion of counsel.
22. Indemnification. The Issuer covenants and agrees to indemnify and hold
harmless the Exchange Agent, its directors, officers, employees and agents (the
"Indemnified Persons") against any and all losses, damages, costs or expenses
(including reasonable attorney's fees and court costs), arising out of or
attributable to its acceptance of appointment as the Exchange Agent hereunder,
provided that such indemnification shall not apply to losses, damages, costs or
expenses incurred due to negligence or willful misconduct of the Exchange Agent.
The Exchange Agent shall notify the Issuer in writing of any written asserted
claim against the Exchange Agent or of any other action commenced against the
Exchange Agent, reasonably promptly after the Exchange Agent shall have received
any such written assertion or shall have been served with a summons in
connection therewith. The Issuer shall be entitled to participate at its own
expense in the defense of any such claim or other action and, if the Issuer so
elects, the Issuer may assume the defense of any pending or threatened action
against the Exchange Agent in respect of which indemnification may be sought
hereunder; provided that the Issuer shall not be entitled to assume the defense
of any such action if the named parties to such action include both the Issuer
and the Exchange Agent and representation of both parties by the same legal
counsel would, in the written opinion of counsel for the Exchange Agent, be
inappropriate due to actual or potential conflicting interests between them; and
further provided that in the event the Issuer shall assume the defense of any
such suit, and such defense is reasonably satisfactory to the Exchange Agent,
the Issuer shall not therewith be liable for the fees and expenses of any
counsel retained by the Exchange Agent.
B. The Exchange Agent agrees that, without the prior written consent of the
Issuer (which consent shall not be unreasonably withheld), it will not settle,
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding in respect of which indemnification could be sought
in accordance with the indemnification provision of this Agreement (whether or
not any Indemnified Persons is an actual or potential party to such claim,
action or proceeding).
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23. Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York, without regard to conflicts
of laws principles.
24. Notices. Notices or other communications pursuant to this Agreement
shall be delivered by facsimile transmission, reliable overnight courier or by
first-class mail, postage prepaid, addressed as follows:
<Table>
To the Issuer at: WESCO International, Inc.
Commerce Court, Suite 700
Pittsburgh, PA 15219
Attention: Roy W. Haley
Fax: (412) 454-2550
Telephone: (412) 454-2200
With a copy to: Kirkpatrick & Lockhart
Henry W. Oliver Building
535 Smithfield Street
Pittsburgh, PA 15222
Attention: Michael C. McLean
Fax: (412) 355-6501
Telephone: (412) 355-6500
Or to the Exchange Agent at: Bank One, N.A.
One North State Street, 9th Floor
Chicago, IL 60602
Attention: Exchanges
Fax: (312) 407-8853
Telephone: (800) 524-9472
</Table>
Or to such address as either party shall provide by notice to the other party.
25. Change of Exchange Agent. The Exchange Agent may resign from its duties
under this Agreement by giving to the Issuer thirty days prior written notice.
If the Exchange Agent resigns or becomes incapable of acting as the exchange
agent and the Issuer fails to appoint a new exchange agent within a period of 30
days after it has been notified in writing of such resignation or incapacity by
the Exchange Agent, the Issuer shall appoint a successor exchange agent or
assume all of the duties and responsibilities of exchange agent. Any successor
exchange agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as the exchange agent
without any further act or deed; but the Exchange Agent shall deliver and
transfer to the successor exchange agent any Property at the time held by it
hereunder, and execute and deliver any further assurance, conveyance, act or
deed necessary for such purpose.
26. Miscellaneous. Neither party may transfer or assign its rights or
responsibilities under this Agreement without the written consent of the other
party hereto; provided, however, that the Exchange Agent may transfer and assign
its rights and responsibilities hereunder to any of its affiliates otherwise
eligible to act as the Exchange Agent and, upon 45 days prior written notice to
the Exchange Agent, the Issuer may transfer and assign its rights and
responsibilities hereunder to any successor by merger, any purchaser of all of
the common stock of the Issuer, or any purchaser of all or substantially all of
the Issuer's assets. This Agreement may be amended only in writing signed by
both parties. Any Exchange Notes which remain undistributed after the Expiration
Date shall be cancelled and delivered to the Issuer upon demand, and any
Outstanding Notes which are tendered thereafter shall be returned by the
Exchange Agent to the tendering party. Except for Sections 20 and 22, this
Agreement shall terminate on the 31st day after the Expiration Date.
27. Advertisements. The Issuer agrees to place advertisements regarding the
Exchange Offer in The Wall Street Journal, The Bond Buyer and/or Bloomberg as
soon as practicable following the Effective Date.
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28. Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefits or remedy of any nature whatsoever under or by reason of this
Agreement. Without limitation to the foregoing, the parties hereto expressly
agree that no Holder or holder of Securities shall have any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
29. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of such
counterparts together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Issuer and the Exchange Agent have caused this
Agreement to be signed by their respective officers thereunto authorized as of
the date first written above.
WESCO INTERNATIONAL, INC.
By:
--------------------------------------
Name:
Title:
WESCO DISTRIBUTION, INC.
By:
--------------------------------------
Name:
Title:
BANK ONE, N.A.
By:
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Name:
Title:
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EXHIBIT A
Prospectus
EXHIBIT B
Form of Letter of Transmittal
EXHIBIT C
Notice of Guaranteed Delivery
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EXHIBIT D
Date: ________________
WESCO INTERNATIONAL, INC.
WESCO DISTRIBUTION, INC.
BY FAX: ________________________
Re: Notice of Tenders
With respect to Section 9 of the Exchange Agent Agreement, dated as of
________________, 2001, we confirm the following information as of the date
hereof:
1. Principal amount of Outstanding Notes tendered during the past week:
$ ________________________
2. Principal amount of Outstanding Notes referred to in paragraph 1. above
regarding which the Exchange Agent questions validity of the tender:
$ ________________________
3. Aggregate principal amount of Outstanding Notes tendered since the
Effective Date as to which the Exchange Agent questions the validity of
the tender:
$ ________________________
4. Principal amount of Outstanding Notes remaining unpresented (based on
$ ________________________ total Outstanding Notes): $ _________________
5. Total aggregate principal amount of Outstanding Notes validly tendered
since the Effective Date:
$ ________________________
Bank One, N.A.,
as the Exchange Agent
By:
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Name:
Title:
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EXHIBIT E
Schedule of Fees
Per letter of transmittal mailed: $150.00
Minimum fee: $5,000.00
Extraordinary services and special requests: by appraisal
Out of pocket expenses incurred will be billed for reimbursement at invoiced
cost
The minimum fee of $5,000.00 shall be due and payable upon execution of the
Exchange Agent Agreement. The remaining balance shall be due and payable upon
receipt of the Exchange Agent's invoice therefor.