EXHIBIT 4.4
WESCO DISTRIBUTION, INC.
$300,000,000
9-1/8% Senior Subordinated Notes due 2008
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
June 5, 1998
CHASE SECURITIES INC.
LEHMAN BROTHERS INC.
c/o Chase Securities Inc.
270 Park Avenue, 4th floor
New York, New York 10017
Ladies and Gentlemen:
WESCO Distribution, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to Chase Securities Inc. ("CSI") and Lehman Brothers
Inc. (together with CSI, the "Initial Purchasers"), upon the terms and subject
to the conditions set forth in a purchase agreement dated May 29, 1998 (the
"Purchase Agreement"), $300,000,000 aggregate principal amount of its 9-1/8%
Senior Subordinated Notes due 2008 (the "Senior Subordinated Notes") to be
guaranteed on an unsecured senior subordinated basis by WESCO International,
Inc. ("Holdings"). Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Purchase Agreement.
As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Initial Purchasers thereunder, the Company and Holdings agree with the Initial
Purchasers, for the benefit of the holders (including the Initial Purchasers) of
the Senior Subordinated Notes, the Senior Subordinated Exchange Notes (as
defined herein) and the Private Senior Subordinated Exchange Notes (as defined
herein) (collectively, the "Holders"), as follows:
1. Senior Subordinated Notes Registered Exchange Offer. The Company
and Holdings shall (i) prepare and, not later than 90 days following the date of
original issuance of the Senior Subordinated Notes (the "Senior Subordinated
Notes Issue Date"), file with the Commission a registration statement (the
"Senior Subordinated Notes Exchange Offer Registration Statement") on an
appropriate form under the Securities Act with respect to a proposed offer to
the Holders of the Senior Subordinated Notes (the "Senior Subordinated Notes
Registered Exchange Offer") to issue and deliver to such Holders, in exchange
for the Senior Subordinated Notes, a like aggregate principal amount of debt
securities of the Company (the "Senior Subordinated Exchange Notes") that are
identical in all material respects to the Senior Subordinated Notes, except for
the transfer restrictions relating to the Senior Subordinated Notes, (ii) use
their reasonable best efforts to cause the Senior Subordinated Notes Exchange
Offer Registration Statement to become effective under the Securities Act no
later than 200 days after the Senior Subordinated Notes Issue Date and the
Senior Subordinated Notes Registered Exchange Offer to be consummated no later
than 230 days after the Senior Subordinated Notes Issue Date and (iii) keep the
Senior Subordinated Notes Exchange Offer Registration Statement effective for
not less than 20 business days (or longer, if required by applicable law) after
the date on which notice of the Senior Subordinated Notes Registered Exchange
Offer is mailed to the Holders (such period being called the "Senior
Subordinated Notes Exchange Offer Registration Period"). The Senior Subordinated
Exchange Notes will be issued under the Senior Subordinated Notes Indenture or
an indenture (the "Senior Subordinated Exchange Notes Indenture") among the
Company, Holdings and the Senior Subordinated Notes Trustee or such other bank
or trust company that is reasonably satisfactory to the Initial Purchasers, as
trustee (the "Senior Subordinated Exchange Notes Trustee"), such
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indenture to be identical in all material respects to the Senior Subordinated
Notes Indenture, except for the transfer restrictions relating to the Senior
Subordinated Notes (as described above).
Upon the effectiveness of the Senior Subordinated Notes Exchange
Offer Registration Statement, the Company shall promptly commence the Senior
Subordinated Notes Registered Exchange Offer, it being the objective of such
Senior Subordinated Notes Registered Exchange Offer to enable each Holder
electing to exchange Senior Subordinated Notes for Senior Subordinated Exchange
Notes (assuming that such Holder (a) is not an affiliate of the Company or a
Senior Subordinated Notes Exchanging Dealer (as defined herein) not complying
with the requirements of the next sentence, (b) is not an Initial Purchaser
holding Senior Subordinated Notes that have, or that are reasonably likely to
have, the status of an unsold allotment in an initial distribution, (c) acquires
the Senior Subordinated Exchange Notes in the ordinary course of such Holder's
business and (d) has no arrangements or understandings with any person to
participate in the distribution of the Senior Subordinated Exchange Notes) and
to trade such Senior Subordinated Exchange Notes from and after their receipt
without any limitations or restrictions under the Securities Act and without
material restrictions under the securities laws of the several states of the
United States. The Company, Holdings, the Initial Purchasers and each Senior
Subordinated Notes Exchanging Dealer acknowledge that, pursuant to current
interpretations by the Commission's staff of Section 5 of the Securities Act,
each Holder that is a broker-dealer electing to exchange Senior Subordinated
Notes, acquired for its own account as a result of market-making activities or
other trading activities, for Senior Subordinated Exchange Notes (a "Senior
Subordinated Notes Exchanging Dealer"), is required to deliver a prospectus
containing substantially the information set forth in Annex A hereto on the
cover, in Annex B hereto in the "Exchange Offer Procedures" section and the
"Purpose of the Exchange Offer" section and in Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any such
Senior Subordinated Exchange Notes received by such Senior Subordinated Notes
Exchanging Dealer pursuant to the Senior Subordinated Notes Registered Exchange
Offer.
If, prior to the consummation of the Senior Subordinated Notes
Registered Exchange Offer, any Holder holds any Senior Subordinated Notes
acquired by it that have, or that are reasonably likely to be determined to
have, the status of an unsold allotment in an initial distribution, or any
Holder is not entitled to participate in the Senior Subordinated Notes
Registered Exchange Offer, the Company shall, upon the request of any such
Holder, simultaneously with the delivery of the Senior Subordinated Exchange
Notes in the Senior Subordinated Notes Registered Exchange Offer, issue and
deliver to any such Holder, in exchange for the Senior Subordinated Notes held
by such Holder (the "Senior Subordinated Notes Private Exchange"), a like
aggregate principal amount of debt securities of the Company (the "Private
Senior Subordinated Exchange Notes") that are identical in all material respects
to the Senior Subordinated Exchange Notes, except for the transfer restrictions
relating to such Private Senior Subordinated Exchange Notes. The Private Senior
Subordinated Exchange Notes will be issued under the same indenture as the
Senior Subordinated Exchange Notes, and the Company shall use its reasonable
best efforts to cause the Private Senior Subordinated Exchange Notes to bear the
same CUSIP number as the Senior Subordinated Exchange Notes.
In connection with the Senior Subordinated Notes Registered Exchange
Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Senior Subordinated Notes Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related documents;
(b) keep the Senior Subordinated Notes Registered Exchange Offer
open for not less than 20 business days (or longer, if required by
applicable law) after the date on which notice of the Senior Subordinated
Notes Registered Exchange Offer is mailed to the Holders;
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(c) utilize the services of a depositary for the Senior Subordinated
Notes Registered Exchange Offer with an address in the Borough of
Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Senior Subordinated Notes at
any time prior to the close of business, New York City time, on the last
business day on which the Senior Subordinated Notes Registered Exchange
Offer shall remain open; and
(e) otherwise comply in all respects with all laws that are
applicable to the Senior Subordinated Notes Registered Exchange Offer.
As soon as practicable after the close of the Senior Subordinated
Notes Registered Exchange Offer and any Senior Subordinated Notes Private
Exchange, as the case may be, the Company shall:
(a) accept for exchange all Senior Subordinated Notes tendered and
not validly withdrawn pursuant to the Senior Subordinated Notes Registered
Exchange Offer and the Senior Subordinated Notes Private Exchange;
(b) deliver to the Senior Subordinated Notes Trustee for cancelation
all Senior Subordinated Notes so accepted for exchange; and
(c) cause the Senior Subordinated Notes Trustee or the Senior
Subordinated Exchange Notes Trustee, as the case may be, promptly to
authenticate and deliver to each Holder, Senior Subordinated Exchange Notes or
Private Senior Subordinated Exchange Notes, as the case may be, equal in
principal amount to the Senior Subordinated Notes of such Holder so accepted for
exchange.
The Company shall use its reasonable best efforts to keep the Senior
Subordinated Notes Exchange Offer Registration Statement effective and to amend
and supplement the prospectus contained therein in order to permit such
prospectus to be used by all persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such persons must
comply with such requirements in order to resell the Senior Subordinated
Exchange Notes; provided that (i) in the case where such prospectus and any
amendment or supplement thereto must be delivered by a Senior Subordinated Notes
Exchanging Dealer, such period shall be the lesser of 180 days and the date on
which all Senior Subordinated Notes Exchanging Dealers have sold all Senior
Subordinated Exchange Notes held by them and (ii) the Company shall make such
prospectus and any amendment or supplement thereto available to any
broker-dealer for use in connection with any resale of any Senior Subordinated
Exchange Notes for a period of not less than 180 days after the consummation of
the Senior Subordinated Notes Registered Exchange Offer.
The Senior Subordinated Notes Indenture or the Senior Subordinated
Exchange Notes Indenture, as the case may be, shall provide that the Senior
Subordinated Notes, the Senior Subordinated Exchange Notes and the Private
Senior Subordinated Exchange Notes shall vote and consent together on all
matters as one class and that none of the Senior Subordinated Notes, the Senior
Subordinated Exchange Notes or the Private Senior Subordinated Exchange Notes
will have the right to vote or consent as a separate class on any matter.
Interest on each Senior Subordinated Exchange Note and Private
Senior Subordinated Exchange Note issued pursuant to the Senior Subordinated
Notes Registered Exchange Offer and in the Senior Subordinated Notes Private
Exchange will accrue from the last interest payment date on which interest was
paid on the Senior Subordinated Notes surrendered in exchange therefor or, if no
interest has been paid on the Senior Subordinated Notes, from the Senior
Subordinated Notes Issue Date.
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Each Holder participating in the Senior Subordinated Notes
Registered Exchange Offer shall be required to represent to the Company that at
the time of the consummation of the Senior Subordinated Notes Registered
Exchange Offer (i) any Senior Subordinated Exchange Notes received by such
Holder will be acquired in the ordinary course of business, (ii) such Holder
will have no arrangements or understandings with any person to participate in
the distribution of the Senior Subordinated Notes or the Senior Subordinated
Exchange Notes within the meaning of the Securities Act and (iii) such Holder is
not an affiliate of the Company or, if it is such an affiliate, such Holder will
comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable.
Notwithstanding any other provisions hereof, the Company and
Holdings will ensure that (i) any Senior Subordinated Notes Exchange Offer
Registration Statement and any amendment thereto and any prospectus forming part
thereof and any supplement thereto complies in all material respects with the
Securities Act and the rules and regulations of the Commission thereunder, (ii)
any Senior Subordinated Notes Exchange Offer Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Senior Subordinated Notes Exchange
Offer Registration Statement, and any supplement to such prospectus, does not,
as of the consummation of the Senior Subordinated Notes Registered Exchange
Offer, include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
2. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff the Company is not
permitted to effect the Senior Subordinated Notes Registered Exchange Offer as
contemplated by Section 1 hereof, or (ii) any Senior Subordinated Notes validly
tendered pursuant to the Senior Subordinated Notes Registered Exchange Offer are
not exchanged for Senior Subordinated Exchange Notes within 230 days after the
Senior Subordinated Notes Issue Date, or (iii) any Initial Purchaser so requests
with respect to Senior Subordinated Notes or Private Senior Subordinated
Exchange Notes not eligible to be exchanged for Senior Subordinated Exchange
Notes in the Senior Subordinated Notes Registered Exchange Offer and held by it
following the consummation of the Senior Subordinated Notes Registered Exchange
Offer, or (iv) any applicable law or interpretations do not permit any Holder to
participate in the Senior Subordinated Notes Registered Exchange Offer, or (v)
any Holder that participates in the Senior Subordinated Notes Registered
Exchange Offer does not receive freely transferable Senior Subordinated Exchange
Notes in exchange for tendered Senior Subordinated Notes, or (vi) the Company so
elects, then the following provisions shall apply:
(a) The Company and Holdings shall use their reasonable best efforts
to file as promptly as practicable with the Commission, and thereafter
shall use their reasonable best efforts to cause to be declared effective,
a shelf registration statement on an appropriate form under the Securities
Act relating to the offer and sale of the Transfer Restricted Securities
(as defined below) by the Holders thereof from time to time in accordance
with the methods of distribution set forth in such registration statement
(hereafter, a "Senior Subordinated Notes Shelf Registration Statement"
and, together with any Senior Subordinated Notes Exchange Offer
Registration Statement, a "Senior Subordinated Notes Registration
Statement").
(b) The Company and Holdings shall use their reasonable best efforts
to keep the Senior Subordinated Notes Shelf Registration Statement
continuously effective in order to permit the prospectus forming part
thereof to be used by Holders of Transfer Restricted Securities for a
period ending on the earlier of (i) two years from the Senior Subordinated
Notes Issue Date or such shorter period that will terminate when all the
Transfer Restricted Securities covered by the Senior Subordinated Notes
Shelf Registration Statement have been sold pursuant thereto and (ii) the
date on which the Senior Subordinated Notes become eligible for resale
without volume restrictions pursuant to Rule 144 under the Securities Act
(in any such case, such period being called the "Shelf
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Registration Period"). The Company and Holdings shall be deemed not to
have used their reasonable best efforts to keep the Senior Subordinated
Notes Shelf Registration Statement effective during the requisite period
if any of them voluntarily take any action that would result in Holders of
Transfer Restricted Securities covered thereby not being able to offer and
sell such Transfer Restricted Securities during that period, unless (A)
such action is required by applicable law or (B) such action was permitted
by Section 3(b).
(c) Notwithstanding any other provisions hereof, the Company and
Holdings will ensure that (i) any Senior Subordinated Notes Shelf
Registration Statement and any amendment thereto and any prospectus
forming part thereof and any supplement thereto complies in all material
respects with the Securities Act and the rules and regulations of the
Commission thereunder, (ii) any Senior Subordinated Notes Shelf
Registration Statement and any amendment thereto (in either case, other
than with respect to information included therein in reliance upon or in
conformity with written information furnished to the Company by or on
behalf of any Holder specifically for use therein (the "Holders'
Information")) does not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and (iii) any prospectus
forming part of any Senior Subordinated Notes Shelf Registration
Statement, and any supplement to such prospectus (in either case, other
than with respect to Holders' Information), does not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
3. Liquidated Damages. (a) The parties hereto agree that the Holders
of Transfer Restricted Securities will suffer damages if the Company and
Holdings fail to fulfill their obligations under Section 1 or Section 2, as
applicable, and that it would not be feasible to ascertain the extent of such
damages. Accordingly, if (i) the applicable Senior Subordinated Notes
Registration Statement is not filed with the Commission on or prior to 90 days
after the Senior Subordinated Notes Issue Date (or, in the case of a Senior
Subordinated Notes Shelf Registration Statement required to be filed in response
to a change in law or applicable interpretations of the Commission's staff, if
later, within 45 days after publication of the change in law or interpretations,
but in no event before 90 days after the Senior Subordinated Notes Issue Date),
(ii) the Senior Subordinated Notes Exchange Offer Registration Statement or the
Senior Subordinated Notes Shelf Registration Statement, as the case may be, is
not declared effective within 200 days after the Senior Subordinated Notes Issue
Date (or in the case of a Senior Subordinated Notes Shelf Registration Statement
required to be filed in response to a change in law or the applicable
interpretations of Commission's staff, if later, within 90 days after
publication of the change in law or interpretation, but in no event before 200
days after the Senior Subordinated Notes Issue Date), (iii) the Senior
Subordinated Notes Registered Exchange Offer is not consummated on or prior to
230 days after the Senior Subordinated Notes Issue Date (other than in the event
the Company files a Senior Subordinated Notes Shelf Registration Statement), or
(iv) the Senior Subordinated Notes Shelf Registration Statement is filed and
declared effective within 200 days after the Senior Subordinated Notes Issue
Date (or in the case of a Senior Subordinated Notes Shelf Registration Statement
required to be filed in response to a change in law or the applicable
interpretations of Commission's staff, if later, within 90 days after
publication of the change in law or interpretation, but in no event before 200
days after the Senior Subordinated Notes Issue Date) but shall thereafter cease
to be effective (at any time that the Company is obligated to maintain the
effectiveness thereof) without being succeeded within 90 days by an additional
Senior Subordinated Notes Registration Statement filed and declared effective
(each such event referred to in clauses (i) through (iv), a "Registration
Default"), the Company and Holdings will be jointly and severally obligated to
pay liquidated damages to each Holder of Transfer Restricted Securities, during
the period of one or more such Registration Defaults, in an amount equal to $
0.192 per week per $1,000 principal amount of Transfer Restricted Securities
held by such Holder until (i) the applicable Senior Subordinated Notes
Registration Statement is filed, (ii) the Senior Subordinated Notes Exchange
Offer Registration Statement is declared effective and the Senior Subordinated
Notes Registered Exchange Offer is consummated, (iii) the Senior Subordinated
Notes Shelf Registration Statement is declared effective or (iv) the Senior
Subordinated Notes Shelf
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Registration Statement again becomes effective, as the case may be. Following
the cure of all Registration Defaults, the accrual of liquidated damages will
cease. As used herein, the term "Transfer Restricted Securities" means (i) each
Senior Subordinated Note until the date on which such Senior Subordinated Note
has been exchanged for a freely transferable Senior Subordinated Exchange Note
in the Senior Subordinated Notes Registered Exchange Offer, (ii) each Senior
Subordinated Note or Private Senior Subordinated Exchange Note until the date on
which it has been effectively registered under the Securities Act and disposed
of in accordance with the Senior Subordinated Notes Shelf Registration Statement
or (iii) each Senior Subordinated Note or Private Senior Subordinated Exchange
Note until the date on which it is distributed to the public pursuant to Rule
144 under the Securities Act or is saleable pursuant to Rule 144(k) under the
Securities Act. Notwithstanding anything to the contrary in this Section 3(a),
the Company shall not be required to pay liquidated damages to a Holder of
Transfer Restricted Securities if such Holder failed to comply with its
obligations to make the representations set forth in the second to last
paragraph of Section 1 or failed to provide the information required to be
provided by it, if any, pursuant to Section 4(n).
(b) Notwithstanding the foregoing provisions of Section 3(a), the
Company may issue a notice that the Senior Subordinated Notes Shelf Registration
Statement is unusable pending the announcement of a material development or
event and may issue any notice suspending use of the Senior Subordinated Notes
Shelf Registration Statement required under applicable securities laws to be
issued and, in the event that the aggregate number of days in any consecutive
twelve-month period for which all such notices are issued and effective exceeds
45 days in the aggregate, then the Company will be obligated to pay liquidated
damages to each Holder of Transfer Restricted Securities in an amount equal to
$0.192 per week per $1,000 principal amount of Transfer Restricted Securities
held by such Holder. Upon the Company declaring that the Senior Subordinated
Notes Shelf Registration Statement is usable after the period of time described
in the preceding sentence the accrual of liquidated damages shall cease;
provided, however, that if after any such cessation of the accrual of liquidated
damages the Senior Subordinated Notes Shelf Registration Statement again ceases
to be usable beyond the period permitted above, liquidated damages will again
accrue pursuant to the foregoing provisions.
(c) The Company shall notify the Senior Subordinated Notes Trustee
and the Paying Agent under the Senior Subordinated Notes Indenture immediately
upon the happening of each and every Registration Default. The Company and
Holdings shall pay the liquidated damages due on the Transfer Restricted
Securities by depositing with the Paying Agent (which may not be the Company for
these purposes), in trust, for the benefit of the Holders thereof, prior to
10:00 a.m., New York City time, on the next interest payment date specified by
the Senior Subordinated Notes Indenture and the Senior Subordinated Notes, sums
sufficient to pay the liquidated damages then due. The liquidated damages due
shall be payable on each interest payment date specified by the Senior
Subordinated Notes Indenture and the Senior Subordinated Notes to the record
holder entitled to receive the interest payment to be made on such date. Each
obligation to pay liquidated damages shall be deemed to accrue from and
including the date of the applicable Registration Default.
(d) The parties hereto agree that the liquidated damages provided
for in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by Holders of Transfer
Restricted Securities by reason of the failure of (i) the Senior Subordinated
Notes Shelf Registration Statement or the Senior Subordinated Notes Exchange
Offer Registration Statement to be filed, (ii) the Senior Subordinated Notes
Shelf Registration Statement to remain effective or (iii) the Senior
Subordinated Notes Exchange Offer Registration Statement to be declared
effective and the Senior Subordinated Notes Registered Exchange Offer to be
consummated, in each case to the extent required by this Agreement.
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4. Registration Procedures. In connection with any Senior
Subordinated Notes Registration Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior
to the filing thereof with the Commission, a copy of the Senior
Subordinated Notes Registration Statement and each amendment thereof and
each supplement, if any, to the prospectus included therein; (ii) include
the information set forth in Annex A hereto on the cover, in Annex B
hereto in the "Exchange Offer Procedures" section and the "Purpose of the
Exchange Offer" section and in Annex C hereto in the "Plan of
Distribution" section of the prospectus forming a part of the Senior
Subordinated Notes Exchange Offer Registration Statement, and include the
information set forth in Annex D hereto in the Letter of Transmittal
delivered pursuant to the Senior Subordinated Notes Registered Exchange
Offer; and (iii) if requested by any Initial Purchaser, include the
information required by Items 507 or 508 of Regulation S-K, as applicable,
in the prospectus forming a part of the Senior Subordinated Notes Exchange
Offer Registration Statement.
(b) The Company shall advise each Initial Purchaser, each Senior
Subordinated Notes Exchanging Dealer and the Holders (if applicable) and,
if requested by any such person, confirm such advice in writing (which
advice pursuant to clauses (ii)-(v) hereof shall be accompanied by an
instruction to suspend the use of the prospectus until the requisite
changes have been made):
(i) when any Senior Subordinated Notes Registration Statement
and any amendment thereto has been filed with the Commission and
when such Senior Subordinated Notes Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to any Senior Subordinated Notes Registration Statement
or the prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of any Senior Subordinated Notes
Registration Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Senior
Subordinated Notes, the Senior Subordinated Exchange Notes or the
Private Senior Subordinated Exchange Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; and
(v) of the happening of any event that requires the making of
any changes in any Senior Subordinated Notes Registration Statement
or the prospectus included therein in order that the statements
therein are not misleading and do not omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(c) The Company and Holdings will make every reasonable effort to
obtain the withdrawal at the earliest possible time of any order
suspending the effectiveness of any Senior Subordinated Notes Registration
Statement.
(d) The Company will furnish to each Holder of Transfer Restricted
Securities included within the coverage of any Senior Subordinated Notes
Shelf Registration Statement, without charge, at least one conformed copy
of such Senior Subordinated Notes Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules and, if any such Holder so requests in writing, all exhibits
thereto (including those, if any, incorporated by reference).
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(e) The Company will, during the Shelf Registration Period, promptly
deliver to each Holder of Transfer Restricted Securities included within
the coverage of any Senior Subordinated Notes Shelf Registration
Statement, without charge, as many copies of the prospectus (including
each preliminary prospectus) included in such Senior Subordinated Notes
Shelf Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request; and the Company consents to the use of
such prospectus or any amendment or supplement thereto by each of the
selling Holders of Transfer Restricted Securities in connection with the
offer and sale of the Transfer Restricted Securities covered by such
prospectus or any amendment or supplement thereto.
(f) The Company will, during the period not exceeding 180 days
following the expiration of the Senior Subordinated Notes Registered
Exchange Offer, furnish to each Initial Purchaser and each Senior
Subordinated Notes Exchanging Dealer, and to any other Holder who so
requests, without charge, at least one conformed copy of the Senior
Subordinated Notes Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules and, if any Initial Purchaser or Senior Subordinated Notes
Exchanging Dealer or any such Holder so requests in writing, all exhibits
thereto (including those, if any, incorporated by reference).
(g) The Company will, during the Senior Subordinated Notes Exchange
Offer Registration Period or the Shelf Registration Period, as applicable,
promptly deliver to each Initial Purchaser, each Senior Subordinated Notes
Exchanging Dealer and such other persons that are required to deliver a
prospectus following the Senior Subordinated Notes Registered Exchange
Offer, without charge, as many copies of the final prospectus included in
the Senior Subordinated Notes Exchange Offer Registration Statement or the
Senior Subordinated Notes Shelf Registration Statement and any amendment
or supplement thereto as such Initial Purchaser, Senior Subordinated Notes
Exchanging Dealer or other persons may reasonably request; and the Company
and Holdings consent to the use of such prospectus or any amendment or
supplement thereto by any such Initial Purchaser, Senior Subordinated
Notes Exchanging Dealer or other persons, as applicable, as aforesaid.
(h) Prior to the effective date of any Senior Subordinated Notes
Registration Statement, the Company and Holdings will use their reasonable
best efforts to register or qualify, or cooperate with the Holders of
Senior Subordinated Notes, Senior Subordinated Exchange Notes or Private
Senior Subordinated Exchange Notes included therein and their respective
counsel in connection with the registration or qualification of, such
Senior Subordinated Notes, Senior Subordinated Exchange Notes or Private
Senior Subordinated Exchange Notes for offer and sale under the securities
or blue sky laws of such jurisdictions as any such Holder reasonably
requests in writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of the Senior
Subordinated Notes, Senior Subordinated Exchange Notes or Private Senior
Subordinated Exchange Notes covered by such Senior Subordinated Notes
Registration Statement; provided that the Company and Holdings will not be
required to qualify generally to do business in any jurisdiction where
they are not then so qualified or to take any action which would subject
them to general service of process or to taxation in any such jurisdiction
where they are not then so subject.
(i) The Company and Holdings will cooperate with the Holders of
Senior Subordinated Notes, Senior Subordinated Exchange Notes or Private
Senior Subordinated Exchange Notes to facilitate the timely preparation
and delivery of certificates representing Senior Subordinated Notes,
Senior Subordinated Exchange Notes or Private Senior Subordinated Exchange
Notes to be sold pursuant to any Senior Subordinated Notes Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as the Holders thereof may request in writing
prior to sales of Senior Subordinated Notes, Senior Subordinated Exchange
Notes or Private Senior
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Subordinated Exchange Notes pursuant to such Senior Subordinated Notes
Registration Statement.
(j) If any event contemplated by Section 4(b)(ii) through (v) occurs
during the period for which the Company and Holdings are required to
maintain an effective Senior Subordinated Notes Registration Statement,
the Company and Holdings will promptly prepare and file with the
Commission a post-effective amendment to the Senior Subordinated Notes
Registration Statement or a supplement to the related prospectus or file
any other required document so that, as thereafter delivered to purchasers
of the Senior Subordinated Notes, Senior Subordinated Exchange Notes or
Private Senior Subordinated Exchange Notes from a Holder, the prospectus
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(k) Not later than the effective date of the applicable Senior
Subordinated Notes Registration Statement, the Company will provide a
CUSIP number for the Senior Subordinated Notes, the Senior Subordinated
Exchange Notes and the Private Senior Subordinated Exchange Notes, as the
case may be, and provide the applicable trustee with printed certificates
for the Senior Subordinated Notes, the Senior Subordinated Exchange Notes
or the Private Senior Subordinated Exchange Notes, as the case may be, in
a form eligible for deposit with The Depository Trust Company.
(l) The Company and Holdings will comply with all applicable rules
and regulations of the Commission and the Company will make generally
available to its security holders as soon as practicable after the
effective date of the applicable Senior Subordinated Notes Registration
Statement an earning statement covering at least 12 months satisfying the
provisions of Section 11(a) of the Securities Act.
(m) The Company and Holdings will cause the Senior Subordinated
Notes Indenture or the Senior Subordinated Exchange Notes Indenture, as
the case may be, to be qualified under the Trust Indenture Act as required
by applicable law in a timely manner.
(n) The Company may require each Holder of Transfer Restricted
Securities to be registered pursuant to any Senior Subordinated Notes
Shelf Registration Statement to furnish to the Company such information
concerning the Holder and the distribution of such Transfer Restricted
Securities as the Company may from time to time reasonably require for
inclusion in such Senior Subordinated Notes Shelf Registration Statement,
and the Company may exclude from such registration the Transfer Restricted
Securities of any Holder that fails to furnish such information within a
reasonable time after receiving such request.
(o) In the case of a Senior Subordinated Notes Shelf Registration
Statement, each Holder of Transfer Restricted Securities to be registered
pursuant thereto agrees by acquisition of such Transfer Restricted
Securities that, upon receipt of any notice from the Company pursuant to
Section 4(b)(ii) through (v), such Holder will discontinue disposition of
such Transfer Restricted Securities until such Holder's receipt of copies
of the supplemental or amended prospectus contemplated by Section 4(j) or
until advised in writing (the "Advice") by the Company that the use of the
applicable prospectus may be resumed. If the Company shall give any notice
under Section 4(b)(ii) through (v) during the period that the Company is
required to maintain an effective Senior Subordinated Notes Registration
Statement (the "Effectiveness Period"), such Effectiveness Period shall be
extended by the number of days during such period from and including the
date of the giving of such notice to and including the date when each
seller of Transfer Restricted Securities covered by such Senior
Subordinated Notes Registration Statement shall have received (x) the
copies of the supplemental or amended prospectus contemplated by
10
Section 4(j) (if an amended or supplemental prospectus is required) or (y)
the Advice (if no amended or supplemental prospectus is required).
(p) In the case of a Senior Subordinated Notes Shelf Registration
Statement, the Company and Holdings shall enter into such customary
agreements (including, if requested, an underwriting agreement in
customary form) and take all such other action, if any, as Holders of a
majority in aggregate principal amount of the Senior Subordinated Notes,
Senior Subordinated Exchange Notes and Private Senior Subordinated
Exchange Notes being sold or the managing underwriters (if any) shall
reasonably request in order to facilitate any disposition of Senior
Subordinated Notes, Senior Subordinated Exchange Notes or Private Senior
Subordinated Exchange Notes pursuant to such Senior Subordinated Notes
Shelf Registration Statement.
(q) In the case of a Senior Subordinated Notes Shelf Registration
Statement, the Company shall (i) make reasonably available for inspection
by a representative of, and Special Counsel (as defined below) acting for,
Holders of a majority in aggregate principal amount of the Senior
Subordinated Notes, Senior Subordinated Exchange Notes and Private Senior
Subordinated Exchange Notes being sold and any underwriter participating
in any disposition of Senior Subordinated Notes, Senior Subordinated
Exchange Notes or Private Senior Subordinated Exchange Notes pursuant to
such Senior Subordinated Notes Shelf Registration Statement, all relevant
financial and other records, pertinent corporate documents and properties
of the Company and its subsidiaries and (ii) use its reasonable best
efforts to have its officers, directors, employees, accountants and
counsel supply all relevant information reasonably requested by such
representative, Special Counsel or any such underwriter (an "Inspector")
in connection with such Senior Subordinated Notes Shelf Registration
Statement.
(r) In the case of a Senior Subordinated Notes Shelf Registration
Statement, the Company shall, if requested by Holders of a majority in
aggregate principal amount of the Senior Subordinated Notes, Senior
Subordinated Exchange Notes and Private Senior Subordinated Exchange Notes
being sold, their Special Counsel or the managing underwriters (if any) in
connection with such Senior Subordinated Notes Shelf Registration
Statement, use its reasonable best efforts to cause (i) its counsel to
deliver an opinion relating to the Senior Subordinated Notes Shelf
Registration Statement and the Senior Subordinated Notes, Senior
Subordinated Exchange Notes or Private Senior Subordinated Exchange Notes,
as applicable, in customary form, (ii) its officers to execute and deliver
all customary documents and certificates requested by Holders of a
majority in aggregate principal amount of the Senior Subordinated Notes,
Senior Subordinated Exchange Notes and Private Senior Subordinated
Exchange Notes being sold, their Special Counsel or the managing
underwriters (if any) and (iii) its independent public accountants to
provide a comfort letter or letters in customary form, subject to receipt
of appropriate documentation as contemplated, and only if permitted, by
Statement of Auditing Standards No. 72.
5. Registration Expenses. The Company and Holdings will jointly and
severally bear all expenses incurred in connection with the performance of its
obligations under Sections 1, 2, 3 and 4 and, other than in connection with the
Senior Subordinated Notes Exchange Offer Registration Statement, the Company
will reimburse the Initial Purchasers and the Holders for the reasonable fees
and disbursements of one firm of attorneys chosen by the Holders of a majority
in aggregate principal amount of the Senior Subordinated Notes, the Senior
Subordinated Exchange Notes and the Private Senior Subordinated Exchange Notes
to be sold pursuant to each Senior Subordinated Notes Registration Statement
(the "Special Counsel") acting for the Initial Purchasers or Holders in
connection therewith.
6. Indemnification. (a) In the event of a Senior Subordinated Notes
Shelf Registration Statement or in connection with any prospectus delivery
pursuant to an Senior Subordinated Notes Exchange Offer Registration Statement
by an Initial Purchaser or Senior
11
Subordinated Notes Exchanging Dealer, as applicable, the Company and Holdings
shall jointly and severally indemnify and hold harmless each Holder (including,
without limitation, any such Initial Purchaser or Senior Subordinated Notes
Exchanging Dealer), its affiliates, their respective officers, directors,
employees, representatives and agents, and each person, if any, who controls
such Holder within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 6 and Section 7 as a
Holder) from and against any loss, claim, damage or liability, joint or several,
or any action in respect thereof (including, without limitation, any loss,
claim, damage, liability or action relating to purchases and sales of Senior
Subordinated Notes, Senior Subordinated Exchange Notes or Private Senior
Subordinated Exchange Notes), to which that Holder may become subject, whether
commenced or threatened, under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any such Senior Subordinated Notes Registration Statement or
any prospectus forming part thereof or in any amendment or supplement thereto or
(ii) the omission or alleged omission to state therein a material fact required
to be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
shall reimburse each Holder promptly upon demand for any legal or other expenses
reasonably incurred by that Holder in connection with investigating or defending
or preparing to defend against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company and Holdings shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with any Holders' Information; and
provided, further, that with respect to any such untrue statement in or omission
from any related preliminary prospectus, the indemnity agreement contained in
this Section 6(a) shall not inure to the benefit of any Holder from whom the
person asserting any such loss, claim, damage, liability or action received
Senior Subordinated Notes, Senior Subordinated Exchange Notes or Private Senior
Subordinated Exchange Notes to the extent that such loss, claim, damage,
liability or action of or with respect to such Holder results from the fact that
both (A) a copy of the final prospectus was not sent or given to such person at
or prior to the written confirmation of the sale of such Senior Subordinated
Notes, Senior Subordinated Exchange Notes or Private Senior Subordinated
Exchange Notes to such person and (B) the untrue statement in or omission from
the related preliminary prospectus was corrected in the final prospectus unless,
in either case, such failure to deliver the final prospectus was a result of
non-compliance by the Company with Section 4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Senior Subordinated Notes Shelf Registration
Statement, each Holder shall indemnify and hold harmless the Company, its
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls the Company within the meaning of
the Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 6(b) and Section 7 as the Company), from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company may become subject, whether commenced or threatened, under
the Securities Act, the Exchange Act, any other federal or state statutory law
or regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any such Senior
Subordinated Notes Registration Statement or any prospectus forming part thereof
or in any amendment or supplement thereto or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with any
Holders' Information furnished to the Company by such Holder, and shall
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that no such Holder shall be liable for
12
any indemnity claims hereunder in excess of the amount of net proceeds received
by such Holder from the sale of Senior Subordinated Notes, Senior Subordinated
Exchange Notes or Private Senior Subordinated Exchange Notes pursuant to such
Senior Subordinated Notes Shelf Registration Statement.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 6(a) or 6(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 6 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 6. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than the reasonable costs of investigation; provided, however,
that an indemnified party shall have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 6(a) and 6(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party (which
consent shall not be unreasonably withheld), effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
7. Contribution. If the indemnification provided for in Section 6 is
unavailable or insufficient to hold harmless an indemnified party under Section
6(a) or 6(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
13
benefits received by the Company from the offering and sale of the Senior
Subordinated Notes, on the one hand, and a Holder with respect to the sale by
such Holder of Senior Subordinated Notes, Senior Subordinated Exchange Notes or
Private Senior Subordinated Exchange Notes, on the other, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
Holdings, on the one hand, and such Holder, on the other, with respect to the
statements or omissions that resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company and Holdings, on
the one hand, and a Holder, on the other, with respect to such offering and such
sale shall be deemed to be in the same proportion as the total net proceeds from
the offering of the Senior Subordinated Notes (before deducting expenses)
received by or on behalf of the Company as set forth in the table on the cover
of the Offering Memorandum, on the one hand, bear to the total proceeds received
by such Holder with respect to its sale of Senior Subordinated Notes, Senior
Subordinated Exchange Notes or Private Senior Subordinated Exchange Notes, on
the other. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to the Company and
Holdings or information supplied by the Company and Holdings, on the one hand,
or to any Holders' Information supplied by such Holder, on the other, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The parties
hereto agree that it would not be just and equitable if contributions pursuant
to this Section 7 were to be determined by pro rata allocation or by any other
method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 7 shall be deemed to include, for
purposes of this Section 7, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending or
preparing to defend any such action or claim. Notwithstanding the provisions of
this Section 7, an indemnifying party that is a Holder of Senior Subordinated
Notes, Senior Subordinated Exchange Notes or Private Senior Subordinated
Exchange Notes shall not be required to contribute any amount in excess of the
amount by which the total price at which the Senior Subordinated Notes, Senior
Subordinated Exchange Notes or Private Senior Subordinated Exchange Notes sold
by such indemnifying party to any purchaser exceeds the amount of any damages
which such indemnifying party has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
8. Rules 144 and 144A. The Company shall use its reasonable best
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the written request of any Holder
of Transfer Restricted Securities, make publicly available other information so
long as necessary to permit sales of such Holder's securities pursuant to Rules
144 and 144A. The Company and Holdings covenant that they will take such further
action as any Holder of Transfer Restricted Securities may reasonably request,
all to the extent required from time to time to enable such Holder to sell
Transfer Restricted Securities without registration under the Securities Act
within the limitation of the exemptions provided by Rules 144 and 144A
(including, without limitation, the requirements of Rule 144A(d)(4)). Upon the
written request of any Holder of Transfer Restricted Securities, the Company and
Holdings shall deliver to such Holder a written statement as to whether they
have complied with such requirements. Notwithstanding the foregoing, nothing in
this Section 8 shall be deemed to require the Company to register any of its
securities pursuant to the Exchange Act.
9. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Senior Subordinated Notes Shelf Registration Statement
are to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will administer the offering will be
selected by the Holders of a majority in aggregate principal
14
amount of such Transfer Restricted Securities included in such offering, subject
to the consent of the Company (which shall not be unreasonably withheld or
delayed), and such Holders shall be responsible for all underwriting commissions
and discounts in connection therewith.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
10. Miscellaneous. (a) Amendments and Waivers. The provisions of
this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of Holders of a majority in aggregate
principal amount of the Senior Subordinated Notes, the Senior Subordinated
Exchange Notes and the Private Senior Subordinated Exchange Notes, taken as a
single class. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Senior Subordinated Notes, Senior Subordinated Exchange
Notes or Private Senior Subordinated Exchange Notes are being sold pursuant to a
Senior Subordinated Notes Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of a
majority in aggregate principal amount of the Senior Subordinated Notes, the
Senior Subordinated Exchange Notes and the Private Senior Subordinated Exchange
Notes being sold by such Holders pursuant to such Senior Subordinated Notes
Registration Statement.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier or air courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 10(b),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Senior Subordinated
Notes Indenture, with a copy in like manner to Chase Securities Inc. and
Lehman Brothers Inc.;
(2) if to an Initial Purchaser, initially at its address set forth
in the Purchase Agreement; and
(3) if to the Company, initially at the address of the Company set
forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; one business day
after being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) Successors And Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopier) and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) Definition of Terms. For purposes of this Agreement, (a) the
term "business day" means any day on which the New York Stock Exchange, Inc. is
open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act and (c) except
15
where otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) Remedies. In the event of a breach by the Company, Holdings or
by any Holder of any of their obligations under this Agreement, each Holder, the
Company or Holdings, as the case may be, in addition to being entitled to
exercise all rights granted by law, including recovery of damages (other than
the recovery of damages for a breach by the Company or Holdings of its
obligations under Sections 1 or 2 hereof for which liquidated damages have been
paid pursuant to Section 3 hereof), will be entitled to specific performance of
its rights under this Agreement. The Company, Holdings and each Holder agree
that monetary damages would not be adequate compensation for any loss incurred
by reason of a breach by each such person of any of the provisions of this
Agreement and hereby further agree that, in the event of any action for specific
performance in respect of such breach, each such person shall waive the defense
that a remedy at law would be adequate.
(i) No Inconsistent Agreements. Each of the Company and Holdings
represents, warrants and agrees that (i) it has not entered into, shall not, on
or after the date of this Agreement, enter into any agreement that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof, (ii) it has not previously
entered into any agreement which remains in effect granting any registration
rights with respect to any of its debt securities to any person and (iii) (with
respect to the Company) without limiting the generality of the foregoing,
without the written consent of the Holders of a majority in aggregate principal
amount of the then outstanding Transfer Restricted Securities, it shall not
grant to any person the right to request the Company to register any debt
securities of the Company under the Securities Act unless the rights so granted
are not in conflict or inconsistent with the provisions of this Agreement.
(j) No Piggyback on Registrations. Neither the Company nor any of
its security holders (other than the Holders of Transfer Restricted Securities
in such capacity) shall have the right to include any securities of the Company
in any Shelf Registration or Senior Subordinated Notes Registered Exchange Offer
other than Transfer Restricted Securities.
(k) Severability. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their reasonable best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
16
Please confirm that the foregoing correctly sets forth the agreement
among the Company, Holdings and the Initial Purchasers.
Very truly yours,
WESCO DISTRIBUTION, INC.
by
--------------------------------
Name:
Title:
WESCO INTERNATIONAL, INC.
by
--------------------------------
Name:
Title:
Accepted:
CHASE SECURITIES INC.
by
--------------------------------
Authorized Signatory
LEHMAN BROTHERS INC.
by
--------------------------------
Authorized Signatory
ANNEX A
Each broker-dealer that receives Senior Subordinated Exchange Notes
for its own account pursuant to the Senior Subordinated Notes Registered
Exchange Offer must acknowledge that it will deliver a prospectus in connection
with any resale of such Senior Subordinated Exchange Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Senior Subordinated Exchange Notes received in exchange for
Senior Subordinated Notes where such Senior Subordinated Notes were acquired by
such broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, for a period of 180 days after the
Expiration Date (as defined herein), it will make this Prospectus available to
any broker-dealer for use in connection with any such resale. See "Plan of
Distribution".
ANNEX B
Each broker-dealer that receives Senior Subordinated Exchange Notes
for its own account in exchange for Senior Subordinated Notes, where such Senior
Subordinated Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that it
will deliver a prospectus in connection with any resale of such Senior
Subordinated Exchange Notes. See "Plan of Distribution".
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Senior Subordinated Exchange Notes
for its own account pursuant to the Senior Subordinated Notes Registered
Exchange Offer must acknowledge that it will deliver a prospectus in connection
with any resale of such Senior Subordinated Exchange Notes. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Senior Subordinated Exchange Notes
received in exchange for Senior Subordinated Notes where such Senior
Subordinated Notes were acquired as a result of market-making activities or
other trading activities. The Company has agreed that, for a period of 180 days
after the Expiration Date, it will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until [ ] 199[ ], all dealers effecting
transactions in the Senior Subordinated Exchange Notes may be required to
deliver a prospectus.
The Company will not receive any proceeds from any sale of Senior
Subordinated Exchange Notes by broker-dealers. Senior Subordinated Exchange
Notes received by broker-dealers for their own account pursuant to the Senior
Subordinated Notes Registered Exchange Offer may be sold from time to time in
one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Senior Subordinated Exchange
Notes or a combination of such methods of resale, at market prices prevailing at
the time of resale, at prices related to such prevailing market prices or at
negotiated prices. Any such resale may be made directly to purchasers or to or
through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such broker-dealer or the purchasers of any
such Senior Subordinated Exchange Notes. Any broker-dealer that resells Senior
Subordinated Exchange Notes that were received by it for its own account
pursuant to the Senior Subordinated Notes Registered Exchange Offer and any
broker or dealer that participates in a distribution of such Senior Subordinated
Exchange Notes may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit on any such resale of Senior Subordinated Exchange
Notes and any commission or concessions received by any such persons may be
deemed to be underwriting compensation under the Securities Act. The Letter of
Transmittal states that, by acknowledging that it will deliver and by delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Senior Subordinated Notes Registered Exchange Offer (including
the expenses of one counsel for the Holders of the Senior Subordinated Notes)
other than commissions or concessions of any broker-dealers and will indemnify
the Holders of the Senior Subordinated Notes (including any broker-dealers)
against certain liabilities, including liabilities under the Securities Act.
ANNEX D
|_| CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS
OR SUPPLEMENTS THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Senior
Subordinated Exchange Notes. If the undersigned is a broker-dealer that will
receive Senior Subordinated Exchange Notes for its own account in exchange for
Senior Subordinated Notes that were acquired as a result of market-making
activities or other trading activities, it acknowledges that it will deliver a
prospectus in connection with any resale of such Senior Subordinated Exchange
Notes; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.