Form 8-K

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): February 16, 2012

 

 

CDW CORPORATION

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   333-169258  

26-0273989

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

200 N. Milwaukee Avenue

Vernon Hills, Illinois

  60061
(Address of principal executive offices)   (Zip Code)

Registrant’s telephone number, including area code: (847) 465-6000

None

(Former name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 1.01. Entry into a Material Definitive Agreement.

Existing Senior Note Supplemental Indenture

On February 17, 2012, CDW Corporation announced that, in connection with the previously announced cash tender offer and consent solicitation by its wholly owned subsidiaries, CDW LLC and CDW Finance Corporation (together, the “Issuers”), for all of the Issuers’ outstanding $49,321,000 aggregate principal amount of 11.00% Senior Exchange Notes due 2015 (the “Existing Senior Cash Pay Notes”) and all of the Issuers’ outstanding $79,672,076 aggregate principal amount of 11.50% / 12.25% Senior PIK Election Exchange Notes due 2015 (the “Existing Senior PIK Election Notes,” and together with the Existing Senior Cash Pay Notes, the “Existing Senior Notes”), pursuant to the Issuers’ Offer to Purchase and Consent Solicitation Statement, dated as of February 2, 2012 (as amended or supplemented, the “Offer to Purchase”), the Issuers have received the requisite consents to adopt proposed amendments to the indenture governing the Existing Senior Notes (the “Existing Senior Note Indenture”) that, among other things, eliminate substantially all of the restrictive covenants and certain events of default contained in the Existing Senior Note Indenture.

As of 5:00 p.m., New York City time, on February 16, 2012 (such date and time, the “Consent Date”), holders of $49,158,999 of the Existing Senior Cash Pay Notes and $71,435,555 of the Existing Senior PIK Election Notes, together representing approximately 93.49% of the Existing Senior Notes, had tendered their Existing Senior Notes in the tender offer and consented to the proposed amendments to the Existing Senior Note Indenture.

Upon receiving the requisite consents, the Issuers, the applicable guarantors and U.S. Bank National Association, as trustee, executed a supplemental indenture with respect to the Existing Senior Note Indenture implementing the proposed amendments described above. The supplemental indenture became effective upon execution, and the amendments to the Existing Senior Note Indenture became operative upon acceptance of the tendered Existing Senior Notes by the Issuers on February 17, 2012 pursuant to the terms and conditions described in the Offer to Purchase. A copy of the supplemental indenture is attached hereto as Exhibit 4.1 and is incorporated by reference herein.

Additional 8.5% Senior Notes due 2019

On February 17, 2012, the Issuers completed the sale of an additional $130.0 million aggregate principal amount of 8.5% Senior Notes due 2019 (the “New Notes”) at an issue price of 104.375% of the principal amount of the New Notes in a private placement to “qualified institutional buyers” as defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and outside the United States pursuant to Regulation S under the Securities Act. The New Notes were issued as additional notes under the indenture dated as of April 13, 2011, under which certain escrow corporations, which have since been dissolved, previously issued, and the Issuers subsequently assumed, $1,175.0 million aggregate principal amount of 8.5% Senior Notes due 2019 (the “Original Notes”). The New Notes and the Original Notes have identical terms and, once the New Notes have been exchanged for notes registered under the Securities Act, will trade fungibly. The New Notes mature on April 1, 2019 and bear interest at a rate of 8.5% per annum, payable semi-annually on April 1 and October 1 of each year. Interest will accrue from October 1, 2011, and the first interest payment date will be April 1, 2012.

All of the proceeds from the offering will be used, along with cash on hand and/or advances under our senior secured revolving credit facility, to pay the consideration in the Issuers’ concurrent tender offer and consent solicitation for any and all of the Issuers’ outstanding $129.0 million aggregate principal amount of Existing Senior Notes and to pay for the redemption of any Existing Senior Notes that were not validly tendered and/or were validly withdrawn in the tender offer and consent solicitation.

A copy of the press release announcing the closing of the offering is attached hereto as Exhibit 99.1 and is incorporated by reference herein.

Indenture

The terms of the New Notes are governed by the indenture (as amended or supplemented, the “Senior Note Indenture”), dated as of April 13, 2011, among the Issuers, the guarantors named therein (the “Guarantors”) and U.S. Bank National Association, as trustee (the “Trustee”), and the New Notes and Original Notes constitute a single series of notes under the Senior Note Indenture.


The Issuers may redeem the New Notes, in whole or in part, at any time prior to April 1, 2015 at a redemption price equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest to the redemption date, plus the applicable “make-whole” premium, as described in the Senior Note Indenture. The Issuers may redeem the New Notes, in whole or in part, at any time on or after April 1, 2015 at a redemption price equal to 100% of the principal amount of the New Notes, plus accrued and unpaid interest to the redemption date, plus a premium declining over time as set forth in the Senior Note Indenture. In addition, at any time prior to April 1, 2014, the Issuers may redeem up to 40% of the aggregate principal amount of the notes issued under the Senior Note Indenture with the proceeds of certain equity offerings, as described in the Senior Note Indenture, at a redemption price equal to 108.5% of the principal amount of the notes, plus accrued and unpaid interest to the redemption date. If CDW LLC experiences certain change of control events, holders of notes may require CDW LLC to repurchase all or part of their notes at 101% of the principal amount of the notes, plus accrued and unpaid interest to the repurchase date.

As previously disclosed, the Senior Note Indenture contains covenants that, among other things, restrict the ability of CDW LLC and the Guarantors to, among other things, incur or guarantee additional indebtedness or issue preferred stock; pay dividends and make other restricted payments; incur restrictions on the payment of dividends or other distributions from restricted subsidiaries; create or incur certain liens; make certain investments; transfer or sell assets; engage in transactions with affiliates; and merge or consolidate with other companies or transfer all or substantially all of its assets. The Senior Note Indenture also contains certain restrictions on the business activities, assets and liabilities of CDW Finance Corporation. These covenants are subject to a number of other limitations and exceptions set forth in the Senior Note Indenture.

The Senior Note Indenture also provides for customary events of default, including failure to pay any principal or interest when due, failure to comply with covenants and cross acceleration provisions. In the case of an event of default arising from specified events of bankruptcy or insolvency, all outstanding notes will become due and payable immediately without further action or notice. If any other event of default under the Senior Note Indenture occurs or is continuing, the Trustee, acting at the written direction of the holders of at least 25% in aggregate principal amount of the then outstanding notes, may declare all of the notes to be due and payable immediately.

The description of the New Notes contained in this Current Report on Form 8-K is qualified in its entirety by reference to the complete text of the Senior Note Indenture, which is incorporated herein by reference.

Registration Rights Agreement

The New Notes are entitled to registration rights pursuant to a registration rights agreement, dated as of February 17, 2012 (the “Registration Rights Agreement”), among the Issuers, the Guarantors and the initial purchaser of the New Notes. The Issuers are required to use commercially reasonable efforts to file an exchange offer registration statement with the Securities and Exchange Commission (the “SEC”), have such registration statement declared effective by the SEC and complete the exchange offer by December 13, 2012, and in certain limited circumstances, to file a shelf registration statement. If the Issuers breach certain of their obligations under the Registration Rights Agreement (including any obligations related to the requirement to complete the exchange offer), the interest rate for the New Notes will increase by 0.25% per annum so long as the registration default continues, increasing by an additional 0.25% per annum if such default continues for any subsequent 90-day period, up to a maximum of 0.50% per annum.

The description of the Registration Rights Agreement contained in this Current Report on Form 8-K is qualified in its entirety by reference to the complete text of the Registration Rights Agreement, a copy of which is filed herewith as Exhibit 4.7, which is incorporated herein by reference.

 

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth under Item 1.01 above is incorporated by reference into this Item 2.03.


Item 2.04. Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement.

On February 17, 2012, the Issuers issued a notice of redemption to holders of its Existing Senior Notes that the remaining $8,398,521 of Existing Senior Notes that were not validly tendered and/or were validly withdrawn in the tender offer and consent solicitation on or prior to the Consent Date will be redeemed by the Issuers on March 19, 2012 (the “Redemption Date”). The Existing Senior Cash Pay Notes will be redeemed at a redemption price of 105.50% of the principal amount thereof plus accrued and unpaid interest to, but not including, the Redemption Date in accordance with the provisions of the Senior Note Indenture. The Existing Senior PIK Election Notes will be redeemed at a redemption price of 105.75% of the principal amount thereof plus accrued and unpaid interest to, but not including, the Redemption Date in accordance with the provisions of the Existing Senior Note Indenture.

 

Item 3.03. Material Modification to Rights of Security Holders.

On February 17, 2012, the Issuers accepted for purchase the $120,594,554 million aggregate principal amount of the Existing Senior Notes (approximately 93.49% of the outstanding aggregate principal amount of Existing Senior Notes) that were tendered prior to the Consent Date pursuant to its previously announced tender offer and consent solicitation. Upon such acceptances, the amendments to the indenture governing the Existing Senior Notes set forth in that certain supplemental indenture dated February 16, 2012 became operative. Accordingly, substantially all of the restrictive covenants and certain events of default contained in the Existing Senior Note Indenture have been eliminated.

 

Item 8.01. Other Events.

On February 16, 2012, CDW Corporation issued a press release announcing the completion of the offering of the New Notes, the early settlement of the tender offer and consent solicitation and the Issuers’ receipt of the requisite consents pursuant to the tender offer and consent solicitation. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated by reference herein.

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit No.

  

Description

4.1    Third Senior Exchange Note Supplemental Indenture, dated as of February 16, 2012, by and among the Issuers, the Guarantors and the Trustee.
4.2    Indenture, dated as of April 13, 2011, by and between CDW Escrow Corporation and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.1 to CDW Corporation’s Current Report on Form 8-K filed on April 14, 2011).
4.3    Supplemental Indenture, dated as of April 13, 2011, by and among CDW Escrow Corporation, the Issuers, the Guarantors and the Trustee (incorporated by reference to Exhibit 4.2 to CDW Corporation’s Current Report on Form 8-K filed on April 14, 2011).
4.4    Second Supplemental Indenture, dated as of May 20, 2011, by and among CDW Escrow Corporation, the Issuers, the Guarantors and the Trustee (incorporated by reference to Exhibit 4.1 to CDW Corporation’s Current Report on Form 8-K filed on May 23, 2011).
4.5    Third Supplemental Indenture, dated as of February 17, 2012, by and among the Issuers, the Guarantors and the Trustee.
4.6    Form of 8.5% Senior Note due 2019 (included as Exhibit A to Exhibit 4.2).
4.7    Registration Rights Agreement, dated as of February 17, 2012, by and among the Issuers, the Guarantors and the initial purchaser of the New Notes.
99.1    Press release dated February 17, 2012, announcing the closing of the offering of New Notes, the early settlement of the tender offer and consent solicitation, and the receipt of the requisite consents pursuant to the tender offer and consent solicitation.


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

    CDW CORPORATION

Date: February 17, 2012

  By:   /s/ Ann E. Ziegler
    Ann E. Ziegler
    Senior Vice President and Chief Financial Officer


EXHIBIT INDEX

 

Exhibit No.

  

Description

4.1    Third Senior Exchange Note Supplemental Indenture, dated as of February 16, 2012, by and among the Issuers, the Guarantors and the Trustee.
4.2    Indenture, dated as of April 13, 2011, by and between CDW Escrow Corporation and U.S. Bank National Association, as trustee (incorporated by reference to Exhibit 4.1 to CDW Corporation’s Current Report on Form 8-K filed on April 14, 2011).
4.3    Supplemental Indenture, dated as of April 13, 2011, by and among CDW Escrow Corporation, the Issuers, the Guarantors and the Trustee (incorporated by reference to Exhibit 4.2 to CDW Corporation’s Current Report on Form 8-K filed on April 14, 2011).
4.4    Second Supplemental Indenture, dated as of May 20, 2011, by and among CDW Escrow Corporation, the Issuers, the Guarantors and the Trustee (incorporated by reference to Exhibit 4.1 to CDW Corporation’s Current Report on Form 8-K filed on May 23, 2011).
4.5    Third Supplemental Indenture, dated as of February 17, 2012, by and among the Issuers, the Guarantors and the Trustee.
4.6    Form of 8.5% Senior Note due 2019 (included as Exhibit A to Exhibit 4.2).
4.7    Registration Rights Agreement, dated as of February 17, 2012, by and among the Issuers, the Guarantors and the initial purchaser of the New Notes.
99.1    Press release dated February 17, 2012, announcing the closing of the offering of New Notes, the early settlement of the tender offer and consent solicitation, and the receipt of the requisite consents pursuant to the tender offer and consent solicitation.
Third Senior Exchange Note Supplemental Indenture

Exhibit 4.1

THIRD SENIOR EXCHANGE NOTE SUPPLEMENTAL INDENTURE, dated as of February 16, 2012 (this “Third Supplemental Indenture”), among CDW LLC, an Illinois limited liability company (“CDW”), CDW Finance Corporation, a Delaware corporation (“CDW Finance” and together with CDW, the “Issuers”), CDW Corporation, CDW Technologies, Inc., CDW Direct, LLC, CDW Government LLC and CDW Logistics, Inc. (together, the “Guarantors”) and U.S. Bank National Association, as trustee (the “Trustee”).

WHEREAS, there has heretofore been executed and delivered to the Trustee an Indenture dated as of October 10, 2008, as amended by the Senior Exchange Note Supplemental Indenture dated as of May 10, 2010 and the Second Senior Exchange Note Supplemental Indenture dated as of August 23, 2010 (as so amended, the “Indenture”), providing for the issuance of the Issuers’ Senior Exchange Notes and Senior PIK Election Exchange Notes (collectively, the “Notes”);

WHEREAS, Section 9.02 of the Indenture provides that the Issuers, the Guarantors and the Trustee may amend the Indenture with the written consent of the Required Holders and Lenders;

WHEREAS, the Issuers and the Guarantors have duly authorized the execution and delivery of this Third Supplemental Indenture;

WHEREAS, the Issuers have offered to purchase any and all of the outstanding Notes for cash (the “Tender Offer”), upon the terms and subject to the conditions set forth in the Issuers’ offer to purchase and consent solicitation statement, dated as of February 2, 2012 (the “Offer to Purchase”), as may be amended, supplemented or modified from time to time;

WHEREAS, in connection with the Tender Offer, the Issuers have also solicited consents from the Holders of the Notes to certain proposed amendments (the “Proposed Amendments”) to the Indenture as described in the Offer to Purchase and set forth in Article I of this Third Supplemental Indenture, with the operation of such Proposed Amendments being subject to the satisfaction or waiver by the Issuers of the conditions to the Tender Offer and the acceptance by the Issuers for purchase and payment of the Notes validly tendered and not validly withdrawn pursuant to the Tender Offer;

WHEREAS, the Required Holders and Lenders have consented to the amendments effected by this Third Supplemental Indenture in accordance with Section 9.02 of the Indenture;

WHEREAS, all things necessary to make this Third Supplemental Indenture a valid agreement, in accordance with its terms, have been complied with or have been performed or done; and

WHEREAS, pursuant to the terms of the Tender Offer to which this Third Supplemental Indenture relates, a consent payment will be made to certain Holders of the Notes who tender their Notes and deliver their consents to the Proposed Amendments.

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Issuers, the Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

ARTICLE I

AMENDMENTS TO INDENTURE

 

  (a) The Indenture is hereby amended to delete each of the following sections in its entirety, and insert in lieu thereof the phrase “[Intentionally Omitted]”:

 

  (i) Section 4.03. Reports and Other Information.

 

  (ii) Section 4.04 Compliance Certificate.

 

  (iii) Section 4.05 Taxes.

 

  (iv) Section 4.06 Stay, Extension and Usury Laws.


  (v) Section 4.07. Limitation on Restricted Payments.

 

  (vi) Section 4.08. Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries.

 

  (vii) Section 4.09. Limitation on Incurrence of Indebtedness and Issuance of Preferred Stock.

 

  (viii) Section 4.10. Asset Sales.

 

  (ix) Section 4.11. Transactions with Affiliates.

 

  (x) Section 4.12. Liens.

 

  (xi) Section 4.14. Offer to Repurchase Upon Change of Control.

 

  (xii) Section 4.15. Additional Guarantees.

 

  (xiii) Section 4.16. Limitation on Payments for Consent.

 

  (xiv) Section 4.17. Limitation on Business Activities.

 

  (xv) Clauses (3) and (4) of paragraph (a) of Section 5.01 (Merger, Consolidation or Sale of All or Substantially All Assets); and

 

  (xvi) Clauses (3), (4), (5) and (6) of Section 6.01 (Events of Default).

 

  (b) The Second Senior Exchange Note Supplemental Indenture dated as of August 23, 2010 is hereby amended to delete Section 5 in its entirety, and insert in lieu thereof the phrase “[Intentionally Omitted]”.

 

  (c) Any definition used exclusively in the provisions of the Indenture that are deleted pursuant to this Article I, and any definitions used exclusively within such definitions, are hereby deleted in their entirety from the Indenture, and all references in the Indenture to any sections or clauses set forth above in this Article I, any and all obligations thereunder and any event of default related solely to such sections and clauses, are hereby deleted throughout the Indenture.

ARTICLE II

MISCELLANEOUS

 

  (a) Instruments To Be Read Together. This Third Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture, and said Indenture and this Third Supplemental Indenture shall henceforth be read together.

 

  (b) Confirmation. The Indenture as amended and supplemented by this Third Supplemental Indenture is in all respects confirmed and preserved.

 

  (c) Terms Defined. Any capitalized terms used but not defined herein shall have the meanings assigned to them in the Indenture.

 

  (d) Trust Indenture Act Controls. If any provision of this Third Supplemental Indenture limits, qualifies or conflicts with another provision that is required to be included in this Third Supplemental Indenture or the Indenture by the Trust Indenture Act, the required provision shall control.


  (e) Headings. The headings of the Articles and Sections of this Third Supplemental Indenture have been inserted for convenience of reference only, and are not to be considered a part hereof and shall in no way modify or restrict any of the terms and provisions hereof.

 

  (f) Governing Law. The laws of the State of New York shall govern this Third Supplemental Indenture.

 

  (g) Counterparts. This Third Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

 

  (h) Effectiveness; Operativeness. This Third Supplemental Indenture will become effective and binding upon the Issuers, the Guarantors, the Trustee and the Holders of the Notes upon execution and delivery of this Third Supplemental Indenture. All of the provisions of this Third Supplemental Indenture other than Article I hereof will become operative on, and simultaneously with, the time that this Third Supplemental Indenture becomes effective. Article I of this Third Supplemental Indenture will become operative upon, and simultaneously with, and shall have no force or effect prior to, the written notification to the Trustee by the Issuers that they have accepted for purchase and payment (the “Early Settlement Date”) Notes constituting at least a majority in aggregate principal amount of the Notes then outstanding, pursuant to the terms of the Tender Offer.

 

  (i) Termination. The provisions of this Third Supplemental Indenture will take effect immediately upon its execution and delivery by the Trustee in accordance with the provisions of Section 9.02 of the Indenture; provided, that the amendments to the Indenture set forth in Article I of this Third Supplemental Indenture shall become operative as specified in Article 2(h) hereof. Prior to the Early Settlement Date, the Issuers may terminate this Third Supplemental Indenture upon written notice to the Trustee.

 

  (j) Acceptance by Trustee. The Trustee accepts the Proposed Amendments to the Indenture effected by this Third Supplemental Indenture.

 

  (k) Responsibility of Trustee. The recitals contained herein shall be taken as the statements of the Issuers, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Third Supplemental Indenture.

[Signature Pages Follow]


IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed, all as of the date first written above.

 

CDW LLC
  By   /s/ Robert J. Welyki
   

Name: Robert J. Welyki

Title: Vice President and Treasurer

 

CDW FINANCE CORPORATION

  By   /s/ Robert J. Welyki
   

Name: Robert J. Welyki

Title: Vice President and Treasurer

 

CDW CORPORATION
  By   /s/ Robert J. Welyki
   

Name: Robert J. Welyki

Title: Vice President and Treasurer

 

CDW TECHNOLOGIES, INC.
  By   /s/ Robert J. Welyki
   

Name: Robert J. Welyki

Title: Vice President and Treasurer

 

CDW DIRECT, LLC
  By   /s/ Robert J. Welyki
   

Name: Robert J. Welyki

Title: Vice President and Treasurer

 

CDW GOVERNMENT LLC
  By   /s/ Robert J. Welyki
   

Name: Robert J. Welyki

Title: Vice President and Treasurer


 

CDW LOGISTICS, INC.
  By   /s/ Robert J. Welyki
   

Name: Robert J. Welyki

Title: Vice President and Treasurer


 

U.S. BANK NATIONAL ASSOCIATION
  By   /s/ Raymond S. Haverstock
   

Name: Raymond S. Haverstock

Title: Vice President

Third Supplemental Indenture, dated as of February 17, 2012

Exhibit 4.5

THIRD SUPPLEMENTAL INDENTURE

THIRD SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of February 17, 2012, by and among CDW LLC, an Illinois limited liability company (the “Company”), CDW Finance Corporation, a Delaware corporation (“FinanceCo” and together with the Company, the “Issuers”), CDW Corporation, a Delaware corporation, and the subsidiaries of the Company party hereto (collectively, the “Guarantors”), and U.S. Bank National Association, as trustee (the “Trustee”), under the Indenture referred to below.

W I T N E S S E T H

WHEREAS, CDW Escrow Corporation, a Delaware corporation (the “Original Escrow Issuer”), and the Trustee executed and delivered an indenture dated as of April 13, 2011, as amended by the first supplemental indenture dated as of April 13, 2011, among the Original Escrow Issuer, the Issuers, the Guarantors and the Trustee, and as further amended by the second supplemental indenture dated as of May 20, 2011, among CDW Escrow Corporation, a Delaware corporation, the Issuers, the Guarantors and the Trustee (as so supplemented, the “Indenture”), providing for the issuance of 8.5% Senior Notes due 2019 (the “Notes”); and

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Issuers and the Guarantors are authorized to execute and deliver this Supplemental Indenture without the consent of the Holders of the Notes.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Issuers, the Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

ARTICLE I

CAPITALIZED TERMS

Section 1.1 All capitalized terms which are used herein and not otherwise defined herein are defined in the Indenture and are used herein with the same meanings as in the Indenture.

ARTICLE II

AMENDMENTS TO INDENTURE

The Indenture is hereby amended in accordance with this Article II. Except as so amended, the Indenture shall continue in full force and effect.

Section 2.1 AMENDMENTS TO DEFINITIONS.

(a) The following cross-reference is added to Section 1.02 of the Indenture in appropriate alphabetical order.

 

Additional Notes

     2.01 (c) 


Section 2.2 AMENDMENTS TO ARTICLES.

(a) The term “(“Additional Notes”)” is added immediately prior to the first proviso in the first sentence of the third paragraph of Section 2.01(c).

ARTICLE III

MISCELLANEOUS

Section 3.1 GOVERNING LAW. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES.

Section 3.2 INSTRUMENTS TO BE READ TOGETHER. This Third Supplemental Indenture is an indenture supplemental to and in implementation of the Indenture, and said Indenture and this Third Supplemental Indenture shall henceforth be read together.

Section 3.3 CONFIRMATION. The Indenture as amended and supplemented by this Third Supplemental Indenture is in all respects confirmed and preserved.

Section 3.4 COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

Section 3.5 EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.

Section 3.6 THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Issuers and the Guarantors.

[Signatures Pages Follow]

 

2


IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed and attested, all as of the date first above written.

 

    CDW LLC
    By:   /s/ Robert J. Welyki
      Name: Robert J. Welyki
      Title: Vice President and Treasurer

 

    CDW FINANCE CORPORATION
    By:   /s/ Robert J. Welyki
      Name: Robert J. Welyki
      Title: Vice President and Treasurer

 

 

    CDW CORPORATION
    By:   /s/ Robert J. Welyki
      Name: Robert J. Welyki
      Title: Vice President and Treasurer

 

 

    CDW TECHNOLOGIES, INC.
    By:   /s/ Robert J. Welyki
      Name: Robert J. Welyki
      Title: Vice President and Treasurer

 

    CDW DIRECT, LLC
    By:   /s/ Robert J. Welyki
      Name: Robert J. Welyki
      Title: Vice President and Treasurer

 

    CDW GOVERNMENT LLC
    By:   /s/ Robert J. Welyki
      Name: Robert J. Welyki
      Title: Vice President and Treasurer


 

    CDW LOGISTICS, INC.
    By:   /s/ Robert J. Welyki
      Name: Robert J. Welyki
      Title: Vice President and Treasurer


 

 

U.S. BANK NATIONAL ASSOCIATION,

not in its individual capacity but solely as Trustee

By:   /s/ Raymond S. Haverstock
 

Name: Raymond S. Haverstock

Title: Vice President

Registration Rights Agreement, dated as of February 17, 2012

Exhibit 4.7

REGISTRATION RIGHTS AGREEMENT

This REGISTRATION RIGHTS AGREEMENT dated as of February 17, 2012 (this “Agreement”) is entered into by and among CDW LLC, an Illinois limited liability company (the “Company”), CDW FINANCE CORPORATION, a Delaware corporation (“Finance Co” and, together with the Company, the “Issuers”), CDW CORPORATION, a Delaware corporation (“Parent”), the other guarantors listed in Schedule 1 hereto (together with Parent, the “Initial Guarantors”), and Barclays Capital Inc. (“Barclays”).

The Issuers, the Guarantors and Barclays are parties to the Purchase Agreement dated February 2, 2012 (the “Purchase Agreement”), which provides for the sale by the Issuers to Barclays of $130,000,000 aggregate principal amount of the Issuers’ 8.5% Senior Notes due 2019 which will be guaranteed on a senior unsecured basis by each of the Guarantors (the “Securities”). As an inducement to Barclays to enter into the Purchase Agreement, the Issuers and the Guarantors have agreed to provide to Barclays and its direct and indirect transferees the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the closing under the Purchase Agreement.

In consideration of the foregoing, the parties hereto agree as follows:

1. Definitions. As used in this Agreement, the following terms shall have the following meanings:

“Additional Guarantor” shall mean any subsidiary of Parent that executes a Guarantee under the Indenture after the date of this Agreement.

“Agreement” shall have the meaning set forth in the preamble.

“Barclays” shall have the meaning set forth in the preamble.

“Business Day” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed.

“Company” shall have the meaning set forth in the preamble and shall also include the Company’s successors.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended from time to time.

“Exchange Date” shall have the meaning set forth in Section 2(a)(ii) hereof.

“Exchange Offer” shall mean the exchange offer by the Issuers and the Guarantors of Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof.


“Exchange Offer Registration” shall mean a registration under the Securities Act effected pursuant to Section 2(a) hereof.

“Exchange Offer Registration Statement” shall mean an exchange offer registration statement on Form S-4 (or, if applicable, on another appropriate form) and all amendments and supplements to such registration statement, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.

“Exchange Securities” shall mean senior unsecured notes issued by the Issuers and guaranteed by the Guarantors under the Indenture containing terms identical to the Securities (except that the Exchange Securities will not be subject to restrictions on transfer or to any increase in annual interest rate for failure to comply with this Agreement) and to be offered to Holders of Securities in exchange for Securities pursuant to the Exchange Offer.

“FINRA” means the Financial Industry Regulatory Authority, Inc.

“Free Writing Prospectus” means each free writing prospectus (as defined in Rule 405 under the Securities Act) prepared by or on behalf of the Issuers or used or referred to by the Issuers in connection with the sale of the Securities or the Exchange Securities.

“Guarantees” shall mean the guarantees of the Securities and guarantees of the Exchange Securities by the Guarantors under the Indenture.

“Guarantors” shall mean the Initial Guarantors, any Additional Guarantors and any Guarantor’s successor that Guarantees the Securities.

“Holders” shall mean Barclays, for so long as it owns any Registrable Securities, and each of its successors, assigns and direct and indirect transferees who become owners of Registrable Securities under the Indenture; provided that for purposes of Section 4 and Section 5 hereof, the term “Holders” shall include Participating Broker-Dealers.

“Indemnified Person” shall have the meaning set forth in Section 5(c) hereof.

“Indemnifying Person” shall have the meaning set forth in Section 5(c) hereof.

“Indenture” shall mean the Indenture relating to the Securities dated as of April 13, 2011, among the Original Escrow Issuer and the Trustee, as amended by the first supplemental indenture dated as of April 13, 2011, among the Original Escrow Issuer, the Issuers, the guarantors party thereto and the Trustee, and as further amended by the second supplemental indenture dated as of May 20, 2011, among the Subsequent Escrow Issuer, the Issuers and the Trustee, and as the same has been and may be amended from time to time in accordance with the terms thereof, including by the Supplemental Indenture.

 

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“Initial Purchasers” shall have the meaning set forth in the preamble.

“Inspector” shall have the meaning set forth in Section 3(a)(xiv) hereof.

“Issuers” shall have the meaning set forth in the preamble and shall also include the Issuers’ successors.

“Issuer Information” shall have the meaning set forth in Section 5(a) hereof.

“Majority Holders” shall mean the Holders of a majority of the aggregate principal amount of the outstanding Registrable Securities; provided that whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, any Registrable Securities owned directly or indirectly by either Issuer or any of its affiliates shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage or amount; and provided, further, that if either Issuer shall issue any additional Securities under the Indenture prior to consummation of the Exchange Offer or, if applicable, the effectiveness of any Shelf Registration Statement, such additional Securities and the Registrable Securities to which this Agreement relates shall be treated together as one class for purposes of determining whether the consent or approval of Holders of a specified percentage of Registrable Securities has been obtained.

“Notice and Questionnaire” shall mean a notice of registration statement and selling security holder questionnaire distributed to a Holder by the Issuers upon receipt of a Shelf Request from such Holder.

“Original Escrow Issuer” shall mean CDW Escrow Corporation, a Delaware corporation that has since been dissolved.

“Participating Broker-Dealers” shall have the meaning set forth in Section 4(a) hereof.

“Participating Holder” shall mean any Holder of Registrable Securities that has returned a completed and signed Notice and Questionnaire to the Company in accordance with Section 2(b) hereof.

“Person” shall mean an individual, partnership, limited liability company, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof.

“Prospectus” shall mean the prospectus included in, or, pursuant to the rules and regulations of the Securities Act, deemed a part of, a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus supplement, including a prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and supplements to such prospectus, and in each case including any document incorporated by reference therein.

 

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“Purchase Agreement” shall have the meaning set forth in the preamble.

“Registrable Securities” shall mean the Securities; provided that the Securities shall cease to be Registrable Securities (i) when a Registration Statement with respect to such Securities has become effective under the Securities Act and such Securities have been exchanged or disposed of pursuant to such Registration Statement, (ii) when such Securities cease to be outstanding, (iii) except in the case of Securities that otherwise remain Registrable Securities and that are held by an Initial Purchaser and that are ineligible to be exchanged in the Exchange Offer, when the Exchange Offer is consummated, or (iv) the second anniversary of this Agreement; provided that such date shall be extended by the number of days of any permitted extension pursuant to Section 3(d) hereof.

“Registration Default” shall mean the occurrence of any of the following: (i) the Exchange Offer is not completed on or prior to the Target Completion Deadline, (ii) the Shelf Registration Statement, if required pursuant to Section 2(b)(i) or Section 2(b)(ii) hereof, has not become effective on or prior to the Target Completion Deadline, (iii) if the Company receives a Shelf Request pursuant to Section 2(b)(iii), the Shelf Registration Statement required to be filed thereby has not become effective by the later of (a) the Target Completion Deadline and (b) 90 days after delivery of such Shelf Request, (iv) the Shelf Registration Statement, if required by this Agreement, has become effective and thereafter ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement, at any time during the Shelf Effectiveness Period, and such failure to remain effective or usable exists for more than 90 days (whether or not consecutive) in any 12-month period or (v) the Shelf Registration Statement, if required by this Agreement, has become effective and thereafter, on more than two occasions in any 12-month period during the Shelf Effectiveness Period, the Shelf Registration Statement ceases to be effective or the Prospectus contained therein ceases to be usable, in each case whether or not permitted by this Agreement.

“Registration Expenses” shall mean any and all expenses incident to performance of or compliance by the Issuers and the Guarantors with this Agreement, including without limitation: (i) all SEC, stock exchange or FINRA registration and filing fees, (ii) all fees and expenses incurred in connection with compliance with state securities or blue sky laws (including reasonable fees and disbursements of one counsel for any Underwriters or Holders in connection with blue sky qualification of any Exchange Securities or Registrable Securities), (iii) all expenses of any Persons in preparing or assisting in preparing, word

 

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processing, printing and distributing any Registration Statement, any Prospectus, any Free Writing Prospectus and any amendments or supplements thereto, any underwriting agreements, securities sales agreements or other similar agreements and any other documents relating to the performance of and compliance with this Agreement, (iv) all rating agency fees, (v) all fees and disbursements relating to the qualification of the Indenture under applicable securities laws, (vi) the fees and disbursements of the Trustee and its counsel, (vii) the fees and disbursements of counsel for the Issuers and the Guarantors and, in the case of a Shelf Registration Statement, the reasonable fees and disbursements of one counsel for the Participating Holders (which counsel shall be selected by the Participating Holders holding a majority of the aggregate principal amount of Registrable Securities held by such Participating Holders and which counsel may also be counsel for Barclays) and (viii) the fees and disbursements of the independent registered public accountants of the Issuers and the Guarantors, including the expenses of any special audits or “comfort” letters required by or incident to the performance of and compliance with this Agreement, but excluding fees and expenses of counsel to the Underwriters (other than fees and expenses set forth in clause (ii) above) or the Holders and underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating to the sale or disposition of Registrable Securities by a Holder.

“Registration Statement” shall mean any registration statement of the Issuers and the Guarantors that covers any of the Exchange Securities or Registrable Securities pursuant to the provisions of this Agreement and all amendments and supplements to any such registration statement, including post-effective amendments, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.

“SEC” shall mean the United States Securities and Exchange Commission.

“Securities” shall have the meaning set forth in the preamble.

“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.

“Shelf Effectiveness Period” shall have the meaning set forth in Section 2(b) hereof.

“Shelf Registration” shall mean a registration effected pursuant to Section 2(b) hereof.

 

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“Shelf Registration Statement” shall mean a “shelf” registration statement of the Issuers and the Guarantors that covers all or a portion of the Registrable Securities (but no other securities, other than debt securities of the Issuers, unless approved by a majority in aggregate principal amount of the Securities held by the Participating Holders) on an appropriate form under Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein or deemed a part thereof, all exhibits thereto and any document incorporated by reference therein.

“Shelf Request” shall have the meaning set forth in Section 2(b) hereof.

“Staff” shall mean the staff of the SEC.

“Subsequent Escrow Issuer” shall mean CDW Escrow Corporation, a Delaware corporation that has since been dissolved.

“Supplemental Indenture” shall mean the Supplemental Indenture relating to the Securities dated as of February 17, 2012 among the Issuers, the guarantors party thereto and the Trustee.

“Target Completion Deadline” shall mean December 13, 2012.

“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended from time to time.

“Trustee” shall mean the trustee with respect to the Securities under the Indenture.

“Underwriter” shall have the meaning set forth in Section 3(e) hereof.

“Underwritten Offering” shall mean an offering in which Registrable Securities are sold to an Underwriter for reoffering to the public.

2. Registration Under the Securities Act.

(a) To the extent not prohibited by any applicable law or applicable interpretations of the Staff, the Issuers and the Guarantors shall use their commercially reasonable efforts to (x) cause to be filed an Exchange Offer Registration Statement covering an offer to the Holders to exchange all the Registrable Securities for Exchange Securities and (y) have such Registration Statement become and remain effective until 180 days after the Exchange Date for use by one or more Participating Broker-Dealers, or such shorter period as will terminate when all the Registrable Securities covered by such Registration Statement have been sold pursuant thereto. The Issuers and the Guarantors shall commence the Exchange Offer promptly after the Exchange Offer Registration Statement is declared effective by the SEC and use their commercially reasonable efforts to complete the Exchange Offer not later than 60 days after such effective date.

 

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The Issuers and the Guarantors shall commence the Exchange Offer by mailing the related Prospectus, appropriate letters of transmittal, if applicable, and other accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law, substantially the following:

(i) that the Exchange Offer is being made pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn will be accepted for exchange;

(ii) the date of acceptance for exchange (which shall be a period of at least 20 Business Days from the date such notice is mailed) (the “Exchange Date”);

(iii) that any Registrable Security not tendered will remain outstanding and continue to accrue interest but will not retain any rights under this Agreement, except as otherwise specified herein;

(iv) that any Holder electing to have a Registrable Security exchanged pursuant to the Exchange Offer will be required to (A) surrender such Registrable Security, together, if requested, with the appropriate letters of transmittal, to the institution and at the address and in the manner specified in the notice, or (B) effect such exchange otherwise in compliance with the applicable procedures of the depositary for such Registrable Security, in each case prior to the close of business on the Exchange Date; and

(v) that any Holder will be entitled to withdraw its election, not later than the close of business on the Exchange Date, by (A) sending to the institution and at the address and in the manner specified in the notice, a statement setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange and a statement that such Holder is withdrawing its election to have such Securities exchanged or (B) effecting such withdrawal in compliance with the applicable procedures of the depositary for the Registrable Securities.

As a condition to participating in the Exchange Offer, a Holder will be required to represent to the Issuers and the Guarantors that (1) any Exchange Securities to be received by it will be acquired in the ordinary course of its business, (2) at the time of the commencement of the Exchange Offer it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Securities in violation of the provisions of the Securities Act, (3) it is not an “affiliate” (within the meaning of Rule 405 under the Securities Act) of either Issuer or any Guarantor and (4) if such Holder is a broker-dealer that will receive Exchange Securities for its own account in exchange for Registrable Securities that were acquired as a result of market-making or other trading activities, then such Holder will deliver a Prospectus (or, to the extent permitted by law, make available a Prospectus to purchasers) in connection with any resale of such Exchange Securities.

 

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The Issuers and the Guarantors shall use reasonable best efforts, within 60 days of the effective date of the Exchange Offer Registration Statement:

(i) to accept for exchange Registrable Securities or portions thereof validly tendered and not properly withdrawn pursuant to the Exchange Offer; and

(ii) to deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Securities or portions thereof so accepted for exchange by the Issuers and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, Exchange Securities equal in principal amount to the principal amount of the Registrable Securities tendered by such Holder.

The Issuers and the Guarantors shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that the Exchange Offer does not violate any applicable law or applicable interpretations of the Staff.

(b) In the event that (i) the Issuers and the Guarantors determine that the Exchange Offer Registration provided for in Section 2(a) hereof is not available or the Exchange Offer may not be completed as soon as practicable after the Exchange Date because it would violate any applicable law or applicable interpretations of the Staff, (ii) the Exchange Offer is not for any other reason completed by the Target Completion Deadline or (iii) upon receipt of a written request (a “Shelf Request”) from any Initial Purchaser representing that it holds Registrable Securities that are or were ineligible to be exchanged in the Exchange Offer, the Issuers and the Guarantors shall use their commercially reasonable efforts to cause to be filed as soon as practicable after such determination, date or Shelf Request, as the case may be, a Shelf Registration Statement providing for the sale of all the Registrable Securities by the Holders thereof and to have such Shelf Registration Statement become effective; provided that no Holder will be entitled to have any Registrable Securities included in any Shelf Registration Statement, or entitled to use the prospectus forming a part of such Shelf Registration Statement, until such Holder shall have delivered a completed and signed Notice and Questionnaire and provided such other information regarding such Holder to the Company as is contemplated by Section 3(b) hereof.

In the event that the Issuers and the Guarantors are required to file a Shelf Registration Statement pursuant to clause (iii) of the preceding sentence, the Issuers and the Guarantors shall use their commercially reasonable efforts to file and have become effective both an Exchange Offer Registration Statement pursuant to Section 2(a) hereof with respect to all Registrable Securities and a Shelf Registration Statement (which may be a combined Registration Statement with the Exchange Offer Registration Statement) with respect to offers and sales of Registrable Securities held by Barclays after completion of the Exchange Offer.

 

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The Issuers and the Guarantors agree to use their commercially reasonable efforts to keep the Shelf Registration Statement continuously effective until the Securities cease to be Registrable Securities (the “Shelf Effectiveness Period”). The Issuers and the Guarantors further agree to supplement or amend the Shelf Registration Statement, the related Prospectus and any Free Writing Prospectus if required by the rules, regulations or instructions applicable to the registration form used by the Issuers for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder or if reasonably requested by a Holder of Registrable Securities with respect to information relating to such Holder, and to use their commercially reasonable efforts to cause any such amendment to become effective, if required, and such Shelf Registration Statement, Prospectus or Free Writing Prospectus, as the case may be, to become usable as soon as thereafter practicable. The Issuers and the Guarantors agree to furnish to the Participating Holders copies of any such supplement or amendment promptly after its being used or filed with the SEC.

(c) The Issuers and the Guarantors shall pay all Registration Expenses in connection with any registration pursuant to Section 2(a) or Section 2(b) hereof. Each Holder shall pay all underwriting discounts and commissions, brokerage commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.

(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof will not be deemed to have become effective unless it has been declared effective by the SEC. A Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC or is automatically effective upon filing with the SEC as provided by Rule 462 under the Securities Act.

If a Registration Default occurs, the interest rate on the Registrable Securities will be increased by (i) 0.25% per annum for the first 90-day period beginning on the day immediately following such Registration Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, in each case until but not including the date such Registration Default ends, up to a maximum increase of 0.50% per annum. A Registration Default ends when the applicable Securities cease to be Registrable Securities or, if earlier, (1) in the case of a Registration Default under clause (i) of the definition thereof, when the Exchange Offer is completed, (2) in the case of a Registration Default under clause (ii) or clause (iii) of the definition thereof, when the Shelf Registration Statement becomes effective or (3) in the case of a Registration Default under clause (iv) or clause (v) of the definition thereof, when the Shelf Registration Statement again becomes effective or the Prospectus again becomes usable. If at any time more than one Registration Default has occurred and is continuing, then, until the next date that there is no Registration Default, the increase in interest rate provided for by this paragraph shall apply as if there occurred a single Registration Default that begins on the date that the earliest such Registration Default occurred and ends on such next date that there is no Registration Default.

 

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(e) Without limiting the remedies available to Barclays and the Holders, the Issuers and the Guarantors acknowledge that any failure by the Issuers or the Guarantors to comply with their obligations under Section 2(a) and Section 2(b) hereof

may result in material irreparable injury to Barclays or the Holders for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of any such failure, Barclays or any Holder may obtain such relief as may be required to specifically enforce the Issuers’ and the Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.

3. Registration Procedures.

(a) In connection with their obligations pursuant to Section 2(a) and Section 2(b) hereof, the Issuers and the Guarantors shall use commercially reasonable efforts to:

(i) prepare and file with the SEC a Registration Statement on the appropriate form under the Securities Act, which form (A) shall be selected by the Issuers and the Guarantors, (B) shall, in the case of a Shelf Registration, be available for the sale of the Registrable Securities by the Holders thereof and (C) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith; and use their commercially reasonable efforts to cause such Registration Statement to become effective and remain effective for the applicable period in accordance with Section 2 hereof;

(ii) prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period in accordance with Section 2 hereof and cause each Prospectus to be supplemented by any required prospectus supplement and, as so supplemented, to be filed pursuant to Rule 424 under the Securities Act; and keep each Prospectus current during the period described in Section 4(3) of and Rule 174 under the Securities Act that is applicable to transactions by brokers or dealers with respect to the Registrable Securities or Exchange Securities;

(iii) to the extent any Free Writing Prospectus is used, file with the SEC any Free Writing Prospectus that is required to be filed by the Company or the Guarantors with the SEC in accordance with the Securities Act and to retain any Free Writing Prospectus not required to be filed;

(iv) in the case of a Shelf Registration, furnish to each Participating Holder, to counsel for such Participating Holders and to each Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge, as many copies of each Prospectus, preliminary prospectus or Free Writing Prospectus, and any amendment or supplement thereto, as such Participating Holder, counsel or Underwriter may reasonably request in order to facilitate the sale or other disposition of the Registrable Securities thereunder; and, subject to Section 3(c) hereof, the Issuers and the Guarantors consent to the use of such Prospectus, preliminary prospectus or such Free Writing Prospectus and any amendment or supplement thereto in accordance with applicable law by each of the

 

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Participating Holders and any such Underwriters in connection with the offering and sale of the Registrable Securities covered by and in the manner described in such Prospectus, preliminary prospectus or such Free Writing Prospectus or any amendment or supplement thereto in accordance with applicable law;

(v) register or qualify the Registrable Securities under all applicable state securities or blue sky laws of such jurisdictions as any Participating Holder shall reasonably request in writing by the time the applicable Registration Statement becomes effective; cooperate with such Participating Holders in connection with any filings required to be made with FINRA; and do any and all other acts and things that may be reasonably necessary or advisable to enable each Participating Holder to complete the disposition in each such jurisdiction of the Registrable Securities owned by such Participating Holder; provided that neither of the Issuers nor any Guarantor shall be required to (1) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (2) file any general consent to service of process in any such jurisdiction or (3) subject itself to taxation in any such jurisdiction if it is not so subject;

(vi) in the case of a Shelf Registration, notify each Participating Holder and counsel for such Participating Holders promptly and, if requested by any such Participating Holder or counsel, confirm such advice in writing (1) when a Registration Statement has become effective, when any post-effective amendment thereto has been filed and becomes effective, when any Free Writing Prospectus has been filed or any amendment or supplement to the Prospectus or any Free Writing Prospectus has been filed, (2) of any request by the SEC or any state securities authority for amendments and supplements to a Registration Statement, Prospectus or any Free Writing Prospectus or for additional information after the Registration Statement has become effective, (3) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, including the receipt by the Issuers of any notice of objection of the SEC to the use of a Shelf Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act, (4) if, between the applicable effective date of a Shelf Registration Statement and the closing of any sale of Registrable Securities covered thereby, the representations and warranties of either Issuer or any Guarantor contained in any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to an offering of such Registrable Securities cease to be true and correct in all material respects or if either Issuer or any Guarantor receives any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, (5) of the happening of any event during the period a Registration Statement is effective that makes any statement made in such Registration Statement or the related Prospectus or any Free Writing Prospectus untrue in any material respect or that requires the making of any changes in such Registration Statement or Prospectus or any Free Writing Prospectus in order to make the statements therein not misleading and (6) of any determination by either Issuer or any Guarantor that a post-effective amendment to a Registration Statement or any amendment or supplement to the Prospectus or any Free Writing Prospectus would be appropriate;

 

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(vii) obtain the withdrawal of any order suspending the effectiveness of a Registration Statement or, in the case of a Shelf Registration, the resolution of any objection of the SEC pursuant to Rule 401(g)(2) under the Securities Act, including by filing an amendment to such Registration Statement on the proper form, as soon as practicable and provide immediate notice to each Holder or Participating Holder of the withdrawal of any such order or such resolution;

(viii) in the case of a Shelf Registration, furnish to each Participating Holder, without charge, at least one conformed copy of each Registration Statement and any post-effective amendment thereto (without any documents incorporated therein by reference or exhibits thereto, unless requested);

(ix) in the case of a Shelf Registration, cooperate with the Participating Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends and enable such Registrable Securities to be issued in such denominations and registered in such names (consistent with the provisions of the Indenture) as such Participating Holders may reasonably request at least one Business Day prior to the closing of any sale of Registrable Securities;

(x) upon the occurrence of any event contemplated by Section 3(a)(vi)(5) hereof, prepare and file with the SEC a supplement or post-effective amendment to the Exchange Offer Registration Statement or, if applicable, Shelf Registration Statement or the related Prospectus or any Free Writing Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered (or, to the extent permitted by law, made available) to purchasers of the Registrable Securities, such Prospectus or Free Writing Prospectus, as the case may be, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and the Issuers and the Guarantors shall notify the Participating Holders (in the case of a Shelf Registration Statement) and Barclays and any Participating Broker-Dealers known to the Company (in the case of an Exchange Offer Registration Statement) to suspend use of the Prospectus or any Free Writing Prospectus as promptly as practicable after the occurrence of such an event, and such Participating Holders, such Participating Broker-Dealers and Barclays, as applicable, hereby agree to suspend use of the Prospectus or any Free Writing Prospectus, as the case may be, until the Issuers and the Guarantors have amended or supplemented the Prospectus or the Free Writing Prospectus, as the case may be, to correct such misstatement or omission;

 

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(xi) in the case of a Shelf Registration, a reasonable time prior to the filing of any Registration Statement, any Prospectus, any Free Writing Prospectus, any amendment to a Registration Statement or amendment or supplement to a Prospectus or a Free Writing Prospectus or of any document that is to be incorporated by reference into a Registration Statement, a Prospectus or a Free Writing Prospectus after initial filing of a Registration Statement, provide copies of such document to Barclays and its counsel and the Participating Holders and their counsel and make such of the representatives of the Issuers and the Guarantors as shall be reasonably requested by Barclays or its counsel or the Participating Holders or their counsel available for discussion of such document; and the Issuers and the Guarantors shall not, at any time after initial filing of a Registration Statement, use or file any Prospectus, any Free Writing Prospectus, any amendment of or supplement to a Registration Statement or a Prospectus or a Free Writing Prospectus, or any document that is to be incorporated by reference into a Registration Statement, a Prospectus or a Free Writing Prospectus, of which Barclays and its counsel and the Participating Holders and their counsel shall not have previously been advised and furnished a copy or to which Barclays or its counsel or the Participating Holders or their counsel shall object in writing;

(xii) obtain a CUSIP number for all Exchange Securities or Registrable Securities, as the case may be, not later than the initial effective date of a Registration Statement;

(xiii) cause the Indenture to be qualified under the Trust Indenture Act in connection with the registration of the Exchange Securities or Registrable Securities, as the case may be; cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the Trust Indenture Act; and execute, and use their commercially reasonable efforts to cause the Trustee to execute, all documents as may be required to effect such changes and all other forms and documents required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner;

(xiv) in the case of a Shelf Registration, make available for inspection by a representative of the Participating Holders (an “Inspector”), any Underwriter participating in any disposition pursuant to such Shelf Registration Statement, any attorneys and accountants designated by a majority in aggregate principal amount of the Securities held by the Participating Holders and any attorneys and accountants designated by such Underwriter, at reasonable times and in a reasonable manner, all pertinent financial and other records, documents and properties of Parent and its subsidiaries, and cause the respective officers, directors and employees of the Issuers and the Guarantors to supply all information reasonably requested by any such Inspector, Underwriter, attorney or accountant in connection with a Shelf Registration Statement; provided that if any such information is identified by either Issuer or any Guarantor as being confidential or proprietary, each Person receiving such information shall take such actions as are reasonably necessary to protect the confidentiality of such information to the extent such action is otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of any Inspector, Holder or Underwriter;

 

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(xv) in the case of a Shelf Registration, use their commercially reasonable efforts to cause all Registrable Securities to be listed on any securities exchange or any automated quotation system on which similar securities issued or guaranteed by either Issuer or any Guarantor are then listed if requested by the Majority Holders, to the extent such Registrable Securities satisfy applicable listing requirements;

(xvi) if reasonably requested by any Participating Holder, promptly include in a prospectus supplement or post-effective amendment such information with respect to such Participating Holder as such Participating Holder reasonably requests to be included therein and make all required filings of such prospectus supplement or such post-effective amendment as soon as the Issuers have received notification of the matters to be so included in such filing;

(xvii) in the case of a Shelf Registration, enter into such customary agreements and take all such other actions in connection therewith (including those requested by the Holders of a majority in principal amount of the Registrable Securities covered by the Shelf Registration Statement) in order to expedite or facilitate the disposition of such Registrable Securities including, but not limited to, an Underwritten Offering and in such connection, (1) to the extent possible, make such representations and warranties to the Participating Holders and any Underwriters of such Registrable Securities with respect to the business of Parent and its subsidiaries and the Registration Statement, Prospectus, any Free Writing Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings and confirm the same if and when requested, (2) obtain opinions of counsel to the Issuers and the Guarantors (which counsel and opinions, in form, scope and substance, shall be reasonably satisfactory to the Participating Holders and such Underwriters and their respective counsel) addressed to each Participating Holder and Underwriter of Registrable Securities, covering the matters customarily covered in opinions requested in underwritten offerings, (3) obtain “comfort” letters from the independent registered public accountants of the Issuers and the Guarantors (and, if necessary, any other registered public accountant of any subsidiary of either Issuer or any Guarantor, or of any business acquired by either Issuer or any Guarantor for which financial statements and financial data are or are required to be included in the Registration Statement) addressed to each Participating Holder (to the extent permitted by applicable professional standards) and Underwriter of Registrable Securities, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters in connection with underwritten offerings, including but not limited to financial information contained in any preliminary prospectus, Prospectus or Free Writing Prospectus and (4) deliver such documents and certificates as may be reasonably requested by the Holders of a majority in principal amount of the Registrable Securities being sold or the

 

14


Underwriters, and which are customarily delivered in underwritten offerings, to evidence the continued validity of the representations and warranties of the Issuers and the Guarantors made pursuant to clause (1) above and to evidence compliance with any customary conditions contained in an underwriting agreement; and

(xviii) so long as any Registrable Securities remain outstanding, cause each Additional Guarantor upon the creation or acquisition by either Issuer of such Additional Guarantor, to execute a counterpart to this Agreement in the form attached hereto as Annex A and to deliver such counterpart to Barclays no later than five Business Days following the execution thereof.

(b) In the case of a Shelf Registration Statement, the Issuers may require each Holder of Registrable Securities to furnish to the Issuers a Notice and Questionnaire and such other information regarding such Holder and the proposed disposition by such Holder of such Registrable Securities as the Issuers and the Guarantors may from time to time reasonably request in writing.

(c) Each Participating Holder agrees that, upon receipt of any notice from the Issuers and the Guarantors of the happening of any event of the kind described in Section 3(a)(vi)(3) or Section 3(a)(vi)(5) hereof, such Participating Holder will forthwith discontinue disposition of Registrable Securities pursuant to the Shelf Registration Statement until such Participating Holder’s receipt of the copies of the supplemented or amended Prospectus and any Free Writing Prospectus contemplated by Section 3(a)(x) hereof and, if so directed by the Issuers and the Guarantors, such Participating Holder will deliver to the Issuers and the Guarantors all copies in its possession, other than permanent file copies then in such Participating Holder’s possession, of the Prospectus and any Free Writing Prospectus covering such Registrable Securities that is current at the time of receipt of such notice.

(d) If the Issuers and the Guarantors shall give any notice to suspend the disposition of Registrable Securities pursuant to a Registration Statement, the Issuers and the Guarantors shall extend the period during which such Registration Statement shall be maintained effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such notice to and including the date when the Holders of such Registrable Securities shall have received copies of the supplemented or amended Prospectus or any Free Writing Prospectus necessary to resume such dispositions. The Issuers and the Guarantors may give any such notice only twice during any 12-month period and any such suspensions shall not exceed 90 days in any 12-month period and there shall not be more than two suspensions in effect during any 12-month period.

(e) The Participating Holders who desire to do so may sell such Registrable Securities in an Underwritten Offering. In any such Underwritten Offering, the investment bank or investment banks and manager or managers (each an “Underwriter”) that will administer the offering will be selected by the Holders of a majority in principal amount of the Registrable Securities included in such offering.

 

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4. Participation of Broker-Dealers in Exchange Offer.

(a) The Staff has taken the position that any broker-dealer that receives Exchange Securities for its own account in the Exchange Offer in exchange for Securities that were acquired by such broker-dealer as a result of market-making or other trading activities (a “Participating Broker-Dealer”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Securities.

The Issuers and the Guarantors understand that it is the Staff’s position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Securities, without naming the Participating Broker-Dealers or specifying the amount of Exchange Securities owned by them, such Prospectus may be delivered by Participating Broker-Dealers (or, to the extent permitted by law, made available to purchasers) to satisfy their prospectus delivery obligation under the Securities Act in connection with resales of Exchange Securities for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act.

(b) In light of the above, and notwithstanding the other provisions of this Agreement, the Issuers and the Guarantors agree to amend or supplement the Prospectus contained in the Exchange Offer Registration Statement for a period of up to 180 days after the Exchange Date (as such period may be extended pursuant to Section 3(d) hereof), in order to expedite or facilitate the disposition of any Exchange Securities by Participating Broker-Dealers consistent with the positions of the Staff recited in Section 4(a) above. The Issuers and the Guarantors further agree that Participating Broker-Dealers shall be authorized to deliver such Prospectus (or, to the extent permitted by law, make available) during such period in connection with the resales contemplated by this Section 4.

(c) The Participating Broker-Dealers shall have no liability to either Issuer, any Guarantor or any Holder with respect to any request that they may make pursuant to Section 4(b) hereof.

5. Indemnification and Contribution.

(a) Each Issuer and each Guarantor, jointly and severally, agree to indemnify and hold harmless each Participating Broker-Dealer and each Holder, their respective affiliates, directors and officers and each Person, if any, who controls any Participating Broker-Dealer or any Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (1) any untrue statement or alleged untrue statement of a material fact contained in any

 

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Registration Statement or any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (2) any untrue statement or alleged untrue statement of a material fact contained in any Prospectus, any Free Writing Prospectus or any “issuer information” (“Issuer Information”) filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Participating Broker-Dealer or information relating to any Holder or any selling Holder, respectively expressly for use therein. In connection with any Underwritten Offering permitted by Section 3, the Issuers and the Guarantors, jointly and severally, will also indemnify the Underwriters, if any, selling brokers, dealers and similar securities industry professionals participating in the distribution, their respective affiliates and each Person who controls such Persons (within the meaning of the Securities Act and the Exchange Act) to the same extent as provided above with respect to the indemnification of the Holders, if requested in connection with any Registration Statement, any Prospectus, any Free Writing Prospectus or any Issuer Information.

(b) Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Issuers, the Guarantors, and the Participating Broker-Dealers and the other selling Holders, the directors of the Issuers and the Guarantors, each officer of the Issuers and the Guarantors who signed the Registration Statement and each Person, if any, who controls the Issuers, the Guarantors, any Participating Broker-Dealer and any other selling Holder within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Holder furnished to the Issuers in writing by such Holder expressly for use in any Registration Statement, any Prospectus and any Free Writing Prospectus.

(c) If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any Person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such Person (the “Indemnified Person”) shall promptly notify the Person against whom such indemnification may be sought (the “Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or (b) above 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 Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others entitled to indemnification

 

17


pursuant to this Section 5 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm (x) for any Participating Broker-Dealer, its affiliates, directors and officers and any control Persons of such Participating Broker-Dealer shall be designated in writing by Barclays, (y) for any Holder, its directors and officers and any control Persons of such Holder shall be designated in writing by the Majority Holders and (z) in all other cases shall be designated in writing by the Issuers. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such settlement (A) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.

(d) If the indemnification provided for in paragraphs (a) and (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Issuers and the Guarantors from the offering of the Securities and the Exchange Securities, on the one hand, and by the Holders from receiving Securities or Exchange Securities registered under the Securities Act, on the other hand, or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Issuers and the Guarantors on the one hand

 

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and the Holders on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of the Issuers and the Guarantors on the one hand and the Holders on the other 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 information supplied by the Issuers and the Guarantors or by the Holders and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

(e) The Issuers, the Guarantors and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5 were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 5, in no event shall a Holder be required to contribute any amount in excess of the amount by which the total price at which the Securities or Exchange Securities sold by such Holder exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such 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. The Holders’ obligations to contribute pursuant to this Section 5 are several and not joint.

(f) The remedies provided for in this Section 5 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.

(g) The indemnity and contribution provisions contained in this Section 5 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of a Participating Broker-Dealer or any Holder or any Person controlling any Participating Broker-Dealer or any Holder, or by or on behalf of the Issuers or the Guarantors or the officers or directors of or any Person controlling the Issuers or the Guarantors, (iii) acceptance of any of the Exchange Securities and (iv) any sale of Registrable Securities pursuant to a Shelf Registration Statement.

6. General.

(a) No Inconsistent Agreements. The Issuers and the Guarantors represent, warrant and agree that (i) the rights granted to the Holders hereunder do not conflict with the rights granted to the holders of any other outstanding securities issued or guaranteed by either Issuer or any Guarantor under any other agreement and (ii) neither of the Issuers nor any Guarantor has entered into, or on or after the date of this Agreement will enter into, any agreement that is inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof.

 

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(b) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the Issuers and the Guarantors have obtained the written consent of Holders of at least a majority in aggregate principal amount of the outstanding Registrable Securities affected by such amendment, modification, supplement, waiver or consent; provided that no amendment, modification, supplement, waiver or consent to any departure from the provisions of Section 5 hereof shall be effective as against any Holder of Registrable Securities unless consented to in writing by such Holder. Any amendments, modifications, supplements, waivers or consents pursuant to this Section 6(b) shall be by a writing executed by each of the parties hereto.

(c) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder, at the most current address given by such Holder to the Issuers by means of a notice given in accordance with the provisions of this Section 6(c), which address initially is, with respect to Barclays, the address set forth in the Purchase Agreement; (ii) if to the Issuers and the Guarantors, initially at the Issuers’ address set forth in the Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c); and (iii) to such other persons at their respective addresses as provided in the Purchase Agreement and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 6(c). All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged, if telecopied; and on the next Business Day if timely delivered to an air courier guaranteeing overnight delivery. Copies of all such notices, demands or other communications shall be concurrently delivered by the Person giving the same to the Trustee, at the address specified in the Indenture.

(d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders; provided that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms of the Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Registrable Securities in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all the terms of this Agreement, and by taking and holding such Registrable Securities such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and such Person shall be entitled to receive the benefits hereof. Barclays (in its capacity as initial purchaser) shall have no liability or obligation to the Issuers or the Guarantors with respect to any failure by a Holder to comply with, or any breach by any Holder of, any of the obligations of such Holder under this Agreement.

 

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(e) Third Party Beneficiaries. Each Holder shall be a third party beneficiary to the agreements made hereunder between the Issuers and the Guarantors, on the one hand, and Barclays, on the other hand, and shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of other Holders hereunder.

(f) Counterparts. This Agreement may be executed in any number of counterparts 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.

(g) Headings. The headings in this Agreement are for convenience of reference only, are not a part of this Agreement and shall not limit or otherwise affect the meaning hereof.

(h) Governing Law. This Agreement, and any claim, controversy or dispute arising under or related to this Agreement, shall be governed by and construed in accordance with the laws of the State of New York.

(j) Entire Agreement; Severability. This Agreement contains the entire agreement between the parties relating to the subject matter hereof and supersedes all oral statements and prior writings with respect thereto. If any term, provision, covenant or restriction contained in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable or against public policy, the remainder of the terms, provisions, covenants and restrictions contained herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated. The Issuers, the Guarantors and Barclays shall endeavor in good faith negotiations to replace the invalid, void or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, void or unenforceable provisions.

* * * * *

 

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

 

CDW LLC
By:   /s/ Robert J. Welyki
 

Name: Robert J. Welyki

Title: Vice President and Treasurer

 

CDW FINANCE CORPORATION

By:   /s/ Robert J. Welyki
 

Name: Robert J. Welyki

Title: Vice President and Treasurer

 

CDW CORPORATION
By:   /s/ Robert J. Welyki
 

Name: Robert J. Welyki

Title: Vice President and Treasurer

 

CDW TECHNOLOGIES, INC.
By:   /s/ Robert J. Welyki
 

Name: Robert J. Welyki

Title: Vice President and Treasurer

 

CDW DIRECT, LLC
By:   /s/ Robert J. Welyki
 

Name: Robert J. Welyki

Title: Vice President and Treasurer

[Signature Page to Registration Rights Agreement]


 

CDW GOVERNMENT LLC
By:   /s/ Robert J. Welyki
 

Name: Robert J. Welyki

Title: Vice President and Treasurer

 

CDW LOGISTICS, INC.
By:   /s/ Robert J. Welyki
 

Name: Robert J. Welyki

Title: Vice President and Treasurer

Confirmed and accepted as of the date first above written:

 

BARCLAYS CAPITAL INC.
By   /s/ Jean-Francois Astier
      Authorized Signatory

[Signature Page to Registration Rights Agreement]


Schedule 1

Initial Guarantors

CDW CORPORATION

CDW TECHNOLOGIES, INC.

CDW DIRECT, LLC

CDW GOVERNMENT LLC

CDW LOGISTICS, INC.


Annex A

Counterpart to Registration Rights Agreement

The undersigned hereby unconditionally and irrevocably agrees as a Guarantor (as defined in the Registration Rights Agreement, dated as of February 17, 2012 by and among CDW LLC, an Illinois limited liability company, CDW Finance Corporation, a Delaware corporation, the guarantors party thereto and Barclays Capital Inc.) to be bound by the terms and provisions of such Registration Rights Agreement.

IN WITNESS WHEREOF, the undersigned has executed this counterpart as of             , 201                    .

 

[GUARANTOR]
By:    
  Name:
  Title:
Press Release dated February 17, 2012

Exhibit 99.1

FOR IMMEDIATE RELEASE

Press Release

CDW Corporation Announces Closing of Senior Notes Offering,

Early Settlement of Concurrent Tender Offer and Consent

Solicitation, and Issuance of Notices of Redemption of All Existing

Senior Notes due 2015 that Remain Outstanding

VERNON HILLS, Ill. – February 17, 2012 — CDW Corporation, a leading provider of technology solutions for business, government, education and healthcare, today announced that its wholly owned subsidiaries, CDW LLC and CDW Finance Corporation (together, the “Issuers”), have closed their previously announced offering of $130,000,000 in aggregate principal amount of 8.5% Senior Notes due 2019 (the “Notes”) in a private offering that was exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”).

CDW Corporation also today announced the early settlement of the Issuers’ previously announced tender offer and consent solicitation in respect of their existing 11.00% Senior Exchange Notes due 2015 (the “Existing Senior Cash Pay Notes”) and 11.50% / 12.25% Senior PIK Election Exchange Notes due 2015 (the “Existing Senior PIK Election Notes,” and together with the Existing Senior Cash Pay Notes, the “Existing Senior Notes”). The tender offer and consent solicitation were subject to customary conditions, including, among others, the receipt of requisite consents to adopt proposed amendments to the indenture governing the Existing Senior Notes that will, among other things, eliminate substantially all of the restrictive covenants and certain events of default contained in the indenture, and the consummation of a refinancing transaction by the Issuers yielding net proceeds in an amount sufficient to complete their obligations under the tender offer and consent solicitation. As of February 17, 2012, these conditions were satisfied and, pursuant to the terms and conditions of the tender offer and consent solicitation as set forth in the Issuers’ Offer to Purchase and Consent Solicitation Statement, dated as of February 2, 2012 (the “Offer to Purchase”), the Issuers accepted for purchase, using the proceeds from the offering of the Notes, together with cash on hand and/or advances under their senior secured revolving credit facility, all $49,158,999 of the Existing Senior Cash Pay Notes and all $71,435,555 of the Existing Senior PIK Election Notes that were tendered on or prior to 5:00 p.m., New York City time, on February 16, 2012 (such date and time, the “Consent Date”), together representing $120,594,554, or approximately 93.49%, of the outstanding aggregate principal amount of Existing Senior Notes.

Upon receiving the requisite consents, the Issuers, the applicable guarantors and U.S. Bank National Association, as trustee, executed a supplemental indenture with respect to the indenture governing the Existing Senior Notes implementing the amendments described above. The supplemental indenture became effective upon execution, and the amendments to the indenture became operative upon today’s acceptance of the tendered Existing Senior Notes by the Issuers pursuant to the terms and conditions described in the Offer to Purchase.

All holders of Existing Senior Notes that validly tendered (and did not validly withdraw) their Existing Senior Notes on or prior to the Consent Date, and whose Existing Senior Notes were accepted for purchase, will receive consideration equal to $1,060.00 per $1,000.00 principal amount of Existing Senior Cash Pay Notes and $1,062.50 per $1,000.00 principal amount of Existing Senior PIK Election Notes, plus accrued and unpaid interest up to, but not including, February 17, 2012, the date of early settlement for the tender offer and consent solicitation.


The tender offer remains open and is scheduled to expire at 5:00 p.m., New York City time, on March 2, 2012 (such date and time, the “Expiration Date”). Holders of Existing Senior Notes that validly tender (and do not validly withdraw) their Existing Senior Notes after the Consent Date, but on or prior to the Expiration Date, and whose Existing Senior Notes are accepted for purchase, will receive the tender offer consideration equal to $1,030.00 per $1,000.00 principal amount of Existing Senior Cash Pay Notes and $1,032.50 per $1,000.00 principal amount of Existing Senior PIK Election Notes. Existing Senior Notes tendered after the Consent Date, but prior to the Expiration Date, may not be withdrawn, except in the limited circumstances described in the Offer to Purchase. Existing Senior Notes not tendered and purchased pursuant to the tender offer will remain outstanding, and the holders thereof will be bound by the amendments contained in the supplemental indenture governing the Existing Senior Notes even though they have not consented to the amendments described above.

The Issuers have also called for redemption and will redeem for cash on March 19, 2012 (the “Redemption Date”) all Existing Senior Notes that remain outstanding after the Issuers’ acceptance for payment of Existing Senior Notes following the early settlement date at their current redemption prices. The current redemption prices are $1,055.00 per $1,000.00 principal amount of Existing Senior Cash Pay Notes (plus accrued and unpaid interest up to, but not including, the Redemption Date) and $1,057.50 per $1,000.00 principal amount of Existing Senior PIK Election Notes (plus accrued and unpaid interest up to, but not including, the Redemption Date). As of February 17, 2012, after giving effect to all of the Existing Senior Notes purchased in the tender offer and consent solicitation, $8,398,521 aggregate principal amount of the Existing Senior Notes remained outstanding.

On the Redemption Date, the redemption prices will become due and payable on the Existing Senior Notes, and on and after the Redemption Date, the Existing Senior Notes shall cease to bear interest. Payment of the redemption prices will be made on or promptly after the Redemption Date.

A notice of redemption, which more fully describes the terms and conditions of the redemption, has been sent to all holders of the remaining Existing Senior Notes.

Barclays Capital Inc. is acting as the dealer manager and solicitation agent and D.F. King & Co., Inc. is the information agent and tender agent for the tender offer and consent solicitation. Requests for documents may be directed to D.F. King & Co., Inc. at (800) 290-6429 (toll-free) or (212) 269-5550 (collect). Questions regarding the tender offer or consent solicitation may be directed to Barclays Capital Inc. at (800) 438-3242 (toll-free) or (212) 528-7581 (collect).

The Notes and related guarantees were offered only to “qualified institutional buyers” in reliance on the exemption from registration pursuant to Rule 144A under the Securities Act and to persons outside of the United States in compliance with Regulation S under the Securities Act. The Notes and related guarantees have not been registered under the Securities Act, or the securities laws of any state or other jurisdiction, and may not be offered or sold in the United States without registration or an applicable exemption from the Securities Act and applicable state securities or blue sky laws and foreign securities laws.


This press release is for informational purposes only and shall not constitute an offer to sell or the solicitation of an offer to buy the Notes, the Existing Senior Notes or any other securities. The Notes offering was made by means of a private offering memorandum, and was not made to any person in any jurisdiction in which the offer, solicitation or sale is unlawful. The tender offer and consent solicitation are only being made pursuant to the terms of the Offer to Purchase, and are not being made in any jurisdiction in which the making or acceptance thereof would not be in compliance with the securities, blue sky or other laws of such jurisdiction. None of CDW LLC, CDW Finance Corporation, the dealer manager and solicitation agent, the information agent and tender agent, the trustee or their respective affiliates is making any recommendation as to whether or not holders should tender all or any portion of their Existing Senior Notes in the tender offer.

About CDW

CDW is a leading provider of technology solutions for business, government, education and healthcare. CDW features dedicated account managers who help customers choose the right technology products and services to meet their needs. The company’s solution architects offer expertise in designing customized solutions, while its advanced technology engineers assist customers with the implementation and long-term management of those solutions. Areas of focus include software, network communications, notebooks/mobile devices, data storage, video monitors, desktops, printers and solutions such as virtualization, collaboration, security, mobility, data center optimization and cloud computing. CDW was founded in 1984 and employs more than 6,700 coworkers.

Contact:

Investor Inquiries

Collin Kebo

Vice President, Financial Planning

(847) 419-6383

investorrelations@cdw.com

or

Media Inquiries

Mary Viola

Sr. Director, Corporate Communications

(847) 968-0743