EXHIBIT 4.1
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SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (the "SECOND SUPPLEMENTAL INDENTURE"),
dated as of June 7, 2006, among Interline Brands, Inc., a New Jersey
corporation (the "COMPANY"), the subsidiary guarantors named on the signature
pages hereto (the "Subsidiary Guarantors"), and The Bank of New York, as
trustee (the "TRUSTEE") under the Indenture (as defined below).
WHEREAS, the Company, the Subsidiary Guarantors and the Trustee are
parties to that certain Indenture, dated as of May 23, 2003, as supplemented by
a Supplemental Indenture, dated as of July 8, 2005 (as supplemented, the
"INDENTURE"), pursuant to which the Company's 11(1)/2% Senior Subordinated
Notes Due 2011 were issued. Capitalized terms used but not defined herein shall
have the same meanings ascribed to such terms in the Indenture;
WHEREAS, Section 9.02 of the Indenture provides that the Company, the
Subsidiary Guarantors and the Trustee may make certain amendments to the
Indenture without notice to any Securityholder but with the written consent of
the Holders of at least a majority in principal amount of the Securities then
outstanding;
WHEREAS, the Company distributed an Offer to Purchase and Consent
Solicitation Statement dated as of May 23, 2006 (the "OFFER TO PURCHASE") in
order to, among other things, make an offer to purchase (the "OFFER") all
outstanding Securities upon terms and conditions described in the Offer to
Purchase and to solicit consents (the "CONSENTS") from the Holders to
amendments to the Indenture and the Securities (the "Amendments");
WHEREAS, Holders of at least a majority in aggregate principal amount
of the Securities outstanding have given and not withdrawn their consent to the
Amendments; and
WHEREAS, the execution of this Second Supplemental Indenture by the
parties hereto is in all respects authorized by the provisions of the
Indenture, the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel with respect to such authorization, and all things
necessary to make this Second Supplemental Indenture a valid agreement of the
Company, the Subsidiary Guarantors and the Trustee in accordance with its terms
have been done.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Company, the Subsidiary Guarantors and the Trustee mutually covenant and agree
as follows:
1. EFFECT. This Second Supplemental Indenture shall become
effective upon its execution and delivery by the parties hereto.
Notwithstanding the foregoing, the amendments set forth in Section 2 below
shall become operative only when the Securities that were validly tendered and
not withdrawn prior to the Consent Date (as such term is defined in the Offer
to Purchase) are accepted for purchase by the Company pursuant to the terms of
the Offer. If after the date hereof, either the Offer is terminated or
withdrawn or all payments in respect of the Securities accepted for payment
pursuant to the Offer are not made promptly after the applicable date of
acceptance, then the amendments set forth in Section 2 shall have no effect and
the Indenture and the Securities shall be deemed to be amended so that they
read the same as they did immediately prior to the date hereof.
2. AMENDMENTS. The Indenture and the Securities are hereby
amended as follows:
(a) Section 1.01 is hereby amended as follows:
(i) the definition of "Additional Securities"
is hereby amended by replacing the phrase "Sections 2.13 and 4.03," with
the phrase "Section 2.13,";
(ii) the definition of "Affiliate" is hereby
amended by deleting the following: "For purposes of Sections 4.04, 4.06
and 4.07 only, "Affiliate" shall also mean any beneficial owner of Capital
Stock representing 10% or more of the total voting power of the Voting
Stock (on a fully diluted basis) of the Company or of rights or warrants
to purchase such Capital Stock (whether or not currently exercisable) and
any Person who would be an Affiliate of any such beneficial owner pursuant
to the first sentence hereof. For purposes of Sections 4.04 and 4.06, and
the definitions of "Asset Disposition", "EBITDA" and "Temporary Cash
Investments" only, "Affiliate" shall not include (1) any Affiliate of X.X.
Xxxxxx Partners, LLC in its capacity as a commercial bank or commercial
lender, investment bank, broker-dealer, securities trader, market-maker,
money manager, financial advisor or other similar capacity, in each case
acting in the ordinary course of its business, or (2) General Motors
Investment Management Corporation or any of its Affiliates (other than
First Plaza Group Trust) acting in the ordinary course of its business.";
(iii) the definition of "Board of Directors" is
hereby amended by deleting the phrase "; PROVIDED, HOWEVER, that for
purposes of the definition of "Change of Control" this definition shall
not include any such committees";
(iv) the definition of "Disqualified Stock" is
hereby amended by adding the phrase "as in effect on the Issue Date" after
the words "Sections 4.06 and 4.09";
(v) the definition of "Incur" is hereby amended
by deleting the second sentence thereof;
(vi) the definition of "Investment" is hereby
amended by deleting the phrase ", the definition of `Restricted Payment'
and Section 4.04";
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(vii) the definition of "Unrestricted Subsidiary"
is hereby amended by deleting the phrase "PROVIDED, HOWEVER, that either
(A) the Subsidiary to be so designated has total assets of $1,000 or less
or (B) if such Subsidiary has assets greater than $1,000, such designation
would be permitted under Section 4.04." in the first sentence and by
deleting the phrase "(A) the Company could Incur $1.00 of additional
Indebtedness (other than Subordinated Obligations) under Section 4.03(a)
and (B)" in the second sentence; and
(viii) the definitions of "Asset Disposition,"
"Average Life," "Change of Control," "Consolidated Interest Expense,"
"Consolidated Net Income," "EBITDA," "Existing Mezzanine Indebtedness,"
"Fair Market Value," "Independent Qualified Party," "Net Available Cash,"
"Permitted Holder," "Permitted Investment," "Pro Forma Adjustments,"
"Qualified Receivables Transactions," "Rating Agency," "Receivables
Subsidiary," "Refinancing Indebtedness," "Refinancing Transactions,"
"Related Business," "Related Party," "Restricted Payment," "Revolving
Credit Facility," "Secured Indebtedness," "Temporary Cash Investments,"
"Term Loan Facility" and "Total Assets" are hereby deleted in their
entirety.
(b) Article 2 is hereby amended as follows:
(i) Section 2.06 is hereby amended by deleting
the phrase ", 4.06, 4.09" in the second paragraph; and
(ii) Section 2.13 is hereby amended by deleting
the phrase ", subject to its compliance with Section 4.03," in the first
paragraph and by deleting the phrase "and the provision of Section 4.03
that the Company is relying upon to issue such Additional Securities" in
clause (A) of the second paragraph.
(c) Section 4.02 is hereby amended and restated to read
in its entirety as "The Company shall comply with all applicable provisions of
TIA ss. 314(a)."
(d) The text of Sections 4.03, 4.04, 4.05, 4.06, 4.07,
4.08, 4.09, 4.10 and 4.11 of the Indenture is hereby deleted in its entirety
and these Sections shall be of no further force and effect and the words
"[INTENTIONALLY DELETED]" shall be inserted, in each case, in place of the
deleted text.
(e) Section 5.01 is hereby amended as follows:
(i) by deleting the phrase "shall be a Person
organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia and the Successor Company" in
clause (1) in Section 5.01(a);
(ii) by adding "and" at the end of clause (1) in
Section 5.01(a), deleting the text of clauses (2) and (3) in Section
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5.01(a), by replacing "(4)" in Section 5.01(a) with "(2)" and by deleting
the proviso following clause (4) in Section 5.01(a);
(iii) by deleting the phrase ", if in connection
therewith the Company provides an Officers' Certificate to the Trustee to
the effect that the Company will comply with its obligations under Section
4.06 in respect of such disposition" and the phrase "be a Person organized
and existing under the laws of the jurisdiction under which such
Subsidiary was organized or under the laws of the United States of
America, or any State thereof or the District of Columbia, and such Person
shall" in clause (1) of Section 5.01(b); and
(iv) be deleting the text of clause (2) of
Section 5.01(b).
(f) Section 6.01 is hereby amended as follows:
(i) by deleting the text of clauses (3) through
(6) and (9) and by replacing such text with the words "[INTENTIONALLY
DELETED]";
(ii) by deleting the second to last paragraph in
Section 6.01; and
(iii) by deleting the phrases "(6) or" and "and
any event which with the giving of notice or the lapse of time would
become an Event of Default under clause (4) or (5), its status and what
action the Company is taking or proposes to take with respect thereto" in
the last paragraph in Section 6.01.
(g) Section 8.01 is hereby amended as follows:
(i) by revising clause (2) of Section 8.01(b)
to read as "(2) its obligations under Section 4.02 and the operation of
Sections 6.01(7) and (8) (but with respect only to Subsidiary Guarantors
and Significant Subsidiaries)"; and
(ii) by revising the second sentence in the
second paragraph of Section 8.01(b) to read "If the Company exercises its
covenant defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in Sections 6.01(7)
and (8) (but with respect only to the Subsidiary Guarantors and
Significant Subsidiaries)."
(h) Section 8.02 is hereby amended by deleting clauses
(2), (3) (5), (6) and (8) of Section 8.02 and the words "[INTENTIONALLY
DELETED]" shall be inserted in place of the deleted text and deleting the
phrase "does not constitute a default under any other agreement binding on the
Company and" in clause (4).
(i) Section 11.06 is hereby amended by adding "and"
before clause (ii) in the proviso, deleting "and" before clause (iii) in the
proviso and deleting clause (iii) in its entirety in the proviso of Section
11.06.
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(j) The text of paragraph 8 of the Securities is hereby
deleted in its entirety and replaced with the words "[INTENTIONALLY DELETED]."
(k) The first sentence of paragraph 16 of the Securities
is hereby amended to read as follows "Under the Indenture, Events of Default
include (i) default for 30 days in payment of interest on the Securities; (ii)
default in payment of principal on the Securities at maturity, upon redemption
pursuant to paragraph 5 or 6 of the Securities, upon acceleration or otherwise,
or failure by the Company to redeem or purchase Securities when required; (iii)
certain events of bankruptcy or insolvency with respect to the Company, a
Subsidiary Guarantor or any Significant Subsidiary; and (iv) certain defaults
with respect to the Subsidiary Guaranties."
3. GOVERNING LAW. This Second Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
4. COUNTERPARTS. This Second Supplemental Indenture may be
executed in one or more counterparts, each of which shall be an original, but
all of which together shall constitute one and the same document.
5. EFFECT ON INDENTURE. This Second Supplemental Indenture shall
form a part of the Indenture for all purposes, and every Holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
Except as expressly set forth herein, the Indenture is in all respects ratified
and confirmed and all the terms, conditions and provisions thereof shall remain
in full force and effect, including with respect to this Second Supplemental
Indenture.
6. CONFLICT WITH TRUST INDENTURE ACT. If any provision of this
Second Supplemental Indenture limits, qualifies or conflicts with any provision
of the TIA that may not be so limited, qualified or conflicted with, such
provision of the TIA shall control. If any provision of this Second
Supplemental Indenture modifies or excludes any provision of the TIA that may
be so modified or excluded, the provision of the TIA shall be deemed to apply
to the Indenture as so modified or to be excluded by this Second Supplemental
Indenture, as the case may be.
7. REPARABILITY CLAUSE. In case any provision in this Second
Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
8. EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
9. BENEFITS OF SECOND SUPPLEMENTAL INDENTURE, ETC. Nothing in
this Second Supplemental Indenture, the Indenture or the Securities, express or
implied, shall give to any person, other than the parties hereto and thereto
and their successors hereunder and hereunder and the Holders of Securities, any
benefit of any legal or equitable right, remedy or claim under the Indenture,
this Second Supplemental Indenture or the Securities.
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10. SUCCESSORS AND ASSIGNS. All agreements of the Company and the
Subsidiary Guarantors in this Second Supplemental Indenture and the Securities
shall bind their respective successors.
11. TRUSTEE. The Trustee makes no representations as to the
validity or sufficiency of this Second Supplemental Indenture. The recitals and
statements herein are deemed to be those of the Company and the Subsidiary
Guarantors and not of the Trustee.
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IN WITNESS WHEREOF, the parties have executed this Second
Supplemental Indenture as of the date first written above.
INTERLINE BRANDS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chief Financial Officer
GLENWOOD ACQUISITION LLC
By: Interline Brands, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxx
Title: Chief Financial Officer
WILMAR HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxx
Title: Treasurer
WILMAR FINANCIAL, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxxx
Title: Treasurer
THE BANK OF NEW YORK, as Trustee
By: /s/ Van X. Xxxxx
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Name: Van X. Xxxxx
Title: Vice President
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