EXHIBIT 4.3
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EXECUTION COPY
$200,000,000
INTERLINE BRANDS, INC.
11 1/2% SENIOR SUBORDINATED NOTES DUE 2011
REGISTRATION RIGHTS AGREEMENT
-----------------------------
May 23, 2003
Credit Suisse First Boston LLC
X.X. Xxxxxx Securities Inc.
Fleet Securities, Inc.
Wachovia Securities Inc.
BNY Capital Markets, Inc.
c/o Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Interline Brands, Inc., a New Jersey corporation (the "ISSUER"), proposes
to issue and sell to Credit Suisse First Boston LLC ("CSFB"), X.X. Xxxxxx
Securities Inc. ("JPMORGAN") and the other purchasers (collectively, the
"INITIAL PURCHASERS") set forth in Schedule A to the purchase agreement dated
May 12, 2003 (the "PURCHASE AGREEMENT") among the Issuer, the Guarantors (as
defined below) and the Initial Purchasers named therein, upon the terms set
forth in the Purchase Agreement, $200,000,000 aggregate principal amount of its
11 1/2% Senior Subordinated Notes due 2011 (the "INITIAL SECURITIES") to be
guaranteed (the "GUARANTIES") by the guarantors set forth in Schedule B to the
Purchase Agreement (the "GUARANTORS" and, collectively with the Issuer, the
"COMPANY"). The Initial Securities will be issued pursuant to an Indenture to be
dated the Closing Date (as defined in the Purchase Agreement) (the "INDENTURE"),
among the Issuer, the Guarantors named therein and The Bank of New York, as
trustee (the "TRUSTEE").
On the date hereof, the Issuer has also entered into an escrow agreement
(the "ESCROW AGREEMENT") with The Bank of New York, as escrow agent (the "ESCROW
AGENT").
As an inducement to the Initial Purchasers to enter into the Purchase
Agreement, the Company agrees with the Initial Purchasers, for the benefit of
the Initial Purchasers and the holders of the Securities (as defined below)
(collectively the "HOLDERS"), and the Market-Maker (as defined below), as
follows:
1. REGISTERED EXCHANGE OFFER. Unless not permitted by applicable law (after
the Company has complied with the ultimate paragraph of this Section 1), the
Company shall prepare and, not later than 90 days (such 90th day being an
"EXCHANGE OFFER FILING DEADLINE") after the date on which the Initial Purchasers
purchase the Initial Securities pursuant to the Purchase Agreement (the "CLOSING
DATe"), file with the Securities and Exchange Commission (the "COMMISSION") a
registration statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on an
appropriate form under the Securities Act of 1933 (the "SECURITIES ACT"), with
respect to a proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of
Transfer Restricted Securities (as defined in Section 7 hereof), who are not
prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer, to issue and deliver to such Holders, in exchange for
the Initial Securities, a like aggregate principal amount of debt securities of
the Company issued under the Indenture, identical in all material respects to
the Initial Securities and registered under the Securities Act (the "EXCHANGE
SECURITIES"). The Company shall use its commercially reasonable efforts to (i)
cause such Exchange Offer Registration Statement to become effective under the
Securities Act within
180 days after the Closing Date (such 180th day being an "EXCHANGE OFFER
EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration Statement
effective for not less than 30 days (or longer, if required by applicable law)
after the date notice of the Registered Exchange Offer is mailed to the Holders
(such period being called the "EXCHANGE OFFER REGISTRATION PERIOD").
If the Company commences the Registered Exchange Offer, the Company (i)
will be entitled to consummate the Registered Exchange Offer 30 days after such
commencement (provided that the Company has accepted all the Initial Securities
theretofore validly tendered in accordance with the terms of the Registered
Exchange Offer) and (ii) will use commercially reasonable efforts to consummate
the Registered Exchange Offer no later than 40 days after the date on which the
Exchange Offer Registration Statement is declared effective (such 40th day being
the "CONSUMMATION DEADLINE").
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder of Transfer Restricted Securities electing to exchange the
Initial Securities for Exchange Securities (assuming that such Holder is not an
affiliate of the Company within the meaning of the Securities Act, acquires the
Exchange Securities in the ordinary course of such Holder's business and has no
arrangements with any person to participate in the distribution of the Exchange
Securities and is not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade such Exchange
Securities from and after their receipt without any limitations or restrictions
under the Securities Act and without material restrictions under the securities
laws of the several states of the United States.
The Company acknowledges that, pursuant to current interpretations by the
Commission's staff of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder which is a broker-dealer
electing to exchange Initial Securities, acquired for its own account as a
result of market making activities or other trading activities, for Exchange
Securities (an "EXCHANGING DEALER"), is required to deliver a prospectus
containing the information set forth in (a) Annex A hereto on the cover, (b)
Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of
the Exchange Offer" section, and (c) Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any such
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell
Securities (as defined below) acquired in exchange for Initial Securities
constituting any portion of an unsold allotment, is required to deliver a
prospectus containing the information required by Items 507 or 508 of Regulation
S-K under the Securities Act, as applicable, in connection with such sale. All
references in this Agreement to "prospectus" shall, except when the context
otherwise requires, include any prospectus (or amendment or supplement thereto)
filed with the Commission pursuant to Section 4 of this Agreement.
The Company shall use its commercially reasonable efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
prospectus contained therein, in order to permit such prospectus to be lawfully
delivered by all persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must comply with such
requirements in order to resell the Exchange Securities; provided, however, that
(i) in the case where such prospectus and any amendment or supplement thereto
must be delivered by an Exchanging Dealer or an Initial Purchaser, such period
shall be the lesser of 180 days and the date on which all Exchanging Dealers and
the Initial Purchasers have sold all Exchange Securities held by them (unless
such period is extended pursuant to Section 3(j) below) and (ii) the Company
shall make such prospectus and any amendment or supplement thereto available to
any broker-dealer for use in connection with any resale of any Exchange
Securities for a period of not less than 180-days after the consummation of the
Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
such Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Company
issued under the Indenture and identical in all material respects (including the
existence of restrictions on transfer under the Securities Act and the
securities laws of the several states of the United States of America) to the
Initial Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities,
the Exchange Securities and the Private Exchange Securities are herein
collectively called the "SECURITIES".
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In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days
(or longer, if required by applicable law) after the date notice thereof is
mailed to the Holders;
(c) utilize the services of a depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York,
which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities at any time prior to
the close of business, New York time, on the last business day on which the
Registered Exchange Offer shall remain open; and
(e) otherwise comply in all material respects with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer or
the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not
withdrawn pursuant to the Registered Exchange Offer and the Private
Exchange;
(y) deliver to the Trustee for cancelation all the Initial Securities
so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to each
Holder of the Initial Securities, Exchange Securities or Private Exchange
Securities, as the case may be, equal in principal amount to the Initial
Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be subject
to the transfer restrictions set forth in the Indenture and that all the
Securities will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security issued
pursuant to the Registered Exchange Offer and in the Private Exchange will
accrue from the last interest payment date on which interest was paid on the
Initial Securities surrendered in exchange therefor or, if no interest has been
paid on the Initial Securities, from the date of original issue of the Initial
Securities. No interest shall accrue on any Initial Security surrendered in an
Exchange Offer from and after the day that interest begins to accrue on the
Exchange Securities issued in exchange therefor.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of business, (ii) such Holder has no
arrangements or understanding with any person to participate in the distribution
of the Securities or the Exchange Securities within the meaning of the
Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule 405
of the Securities Act, of the Company or if it is an affiliate, such Holder will
comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, (iv) if such Holder is not a
broker-dealer, that it is not engaged in, and does not intend to engage in, the
distribution of the Exchange Securities and (v) if such Holder is a
broker-dealer, that it will receive Exchange Securities for its own account in
exchange for Initial Securities that were acquired as a result of market-making
activities or other trading activities and that it will be required to
acknowledge that its obligation to deliver a prospectus in connection with any
resale of such Exchange Securities.
Notwithstanding any other provisions hereof, the Company will ensure that
(i) any Exchange Offer Registration Statement and any amendment thereto and any
prospectus forming part thereof and any
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supplement thereto complies in all material respects with the Securities Act and
the rules and regulations thereunder, (ii) any Exchange Offer Registration
Statement and any amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
and (iii) any prospectus forming part of any Exchange Offer Registration
Statement, and any supplement to such prospectus, does not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
If following the date hereof there has been announced a change in
Commission policy with respect to exchange offers that in the reasonable opinion
of counsel to the Company raises a substantial question as to whether the
Registered Exchange Offer is permitted by applicable federal law, the Company
will seek a no-action letter or other favorable decision from the Commission
allowing the Company to consummate the Registered Exchange Offer. The Company
will pursue the issuance of such a decision to the Commission staff level. In
connection with the foregoing, the Company will take all such other actions as
may be requested by the Commission or otherwise required in connection with the
issuance of such decision, including without limitation (i) participating in
telephonic conferences with the Commission, (ii) delivering to the Commission
staff an analysis prepared by counsel to the Company setting forth the legal
bases, if any, upon which such counsel has concluded that the Registered
Exchange Offer should be permitted and (iii) diligently pursuing a resolution
(which need not be favorable) by the Commission staff.
2. SHELF REGISTRATION. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Company
is not permitted to effect a Registered Exchange Offer, as contemplated by
Section 1 hereof, (ii) the Registered Exchange Offer is not consummated by the
220th day after the Closing Date, (iii) any Initial Purchaser notifies the
Company within 10 business days following the consummation of the Registered
Exchange Offer with respect to the Initial Securities (or the Private Exchange
Securities) not eligible to be exchanged for Exchange Securities in the
Registered Exchange Offer and held by it following consummation of the
Registered Exchange Offer or (iv) any Holder (other than an Exchanging Dealer)
is not eligible to participate in the Registered Exchange Offer or, in the case
of any Holder (other than an Exchanging Dealer) that participates in the
Registered Exchange Offer, such Holder does not receive freely tradeable
Exchange Securities on the date of the exchange and any such Holder so requests,
the Company shall take the following actions (the date on which any of the
conditions described in the foregoing clauses (i) through (iv) occur, including
in the case of clauses (iii) or (iv) the receipt of the required notice, being a
"TRIGGER DATE"):
(a) The Company shall promptly (but in no event more than 45 days after
the Trigger Date (such 45th day being the "SHELF FILING DEADLINE" and,
together with the Exchange Offer Filing Deadline, the "FILING DEADLINE"))
file with the Commission and (x) in the case of clause (i) above,
thereafter use its commercially reasonable efforts to cause to be declared
effective no later than the Exchange Offer Effectiveness Deadline and (y)
in the case of clauses (ii) through (iv) above, thereafter use its
commercially reasonable efforts to cause to be declared effective no later
than the 60th day after the Trigger Date (such 60th day being the "SHELF
REGISTRATION STATEMENT EFFECTIVENESS DEADLINE" and, together with the
Exchange Offer Effectiveness Deadline, an "EFFECTIVENESS DEADLINE"), a
registration statement, including any amendment (pre- or post-effective) or
supplement thereto (the "SHELF REGISTRATION STATEMENT" and, together with
the Exchange Offer Registration Statement and any Market-Making
Registration Statement (as defined below), a "REGISTRATION STATEMENT") on
an appropriate form under the Securities Act relating to the offer and sale
of the Transfer Restricted Securities by the Holders thereof from time to
time in accordance with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act (hereinafter,
the "SHELF REGISTRATION"); provided, however, that no Holder (other than an
Initial Purchaser) shall be entitled to have the Securities held by it
covered by such Shelf Registration Statement unless such Holder agrees in
writing to be bound by all the provisions of this Agreement applicable to
such Holder.
(b) Not less than 30 days prior to the Effective Time (as defined
below), mail the Notice and Questionnaire (as defined below) to the holders
of Transfer Restricted Securities; no Holder shall be entitled to be named
as a selling securityholder in the Shelf Registration Statement as of the
Effective
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Time, and no Holder shall be entitled to use the prospectus forming a part
thereof for resales of Transfer Restricted Securities at any time, unless
such Holder has returned a completed and signed Notice and Questionnaire to
the Company by the deadline for response set forth therein; provided,
however, Holders of Transfer Restricted Securities shall have at least 28
days from the date on which the Notice and Questionnaire is first mailed to
such Holders to return a completed and signed Notice and Questionnaire to
the Company.
(c) After the Effective Time, upon the request of any Holder of
Transfer Restricted Securities that is not then an Electing Holder (as
defined below), promptly send a Notice and Questionnaire to such Holder;
provided that the Company shall not be required to take any action to name
such Holder as a selling securityholder in the Shelf Registration Statement
or to enable such Holder to use the prospectus forming a part thereof for
resales of Transfer Restricted Securities until such Holder has returned a
completed and signed Notice and Questionnaire to the Company.
(d) As soon as practicable prepare and file with the Commission such
amendments and supplements to such Shelf Registration Statement and the
prospectus included therein as may be reasonably necessary to effect and
maintain the effectiveness of such Shelf Registration Statement for the
benefit of all Electing Holders for the period specified in Section 2(e)
hereof and as may be required by the applicable rules and regulations of
the Commission and the instructions to the form of such Shelf Registration
Statement, and, if required, cause any such amendments to be declared
effective by the Commission, and furnish to each of the Electing Holders
such copies as each Electing Holder may reasonably request of any such
supplement or amendment simultaneously with or prior to its being used or
filed with the Commission.
(e) The Company shall use its commercially reasonable efforts to keep
the Shelf Registration Statement continuously effective in order to permit
the prospectus included therein to be lawfully delivered by the Holders of
the relevant Securities, for a period of two years (or for such longer
period if extended pursuant to Section 3(j) below) from the date of its
effectiveness or such shorter period that will terminate when all the
Securities covered by the Shelf Registration Statement (i) have been sold
pursuant thereto or (ii) are no longer restricted securities (as defined in
Rule 144 under the Securities Act, or any successor rule thereof) or are
saleable pursuant to Rule 144(k). Except as provided elsewhere in this
Agreement, the Company shall be deemed not to have used its commercially
reasonable efforts to keep the Shelf Registration Statement effective
during the requisite period if it voluntarily takes any action that would
result in Holders of Securities covered thereby not being able to offer and
sell such Securities during that period, unless such action is required by
applicable law.
(f) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto, as of each
effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(g) For purposes of this Agreement, the following terms shall have
following respective meanings:
"EFFECTIVE TIME" with respect to a Shelf Registration Statement shall
mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration
Statement otherwise become effective.
"ELECTING HOLDER" shall mean any Holder of Transfer Restricted
Securities that has returned a completed and signed Notice and
Questionnaire to the Company in accordance with Section 2(b) hereof.
"NOTICE AND QUESTIONNAIRE" means a Selling Securityholder Notice and
Questionnaire substantially in the form of Exhibit A attached hereto.
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3. REGISTRATION PROCEDURES. In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent applicable, any Registered
Exchange Offer contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of the Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and, in the event that an Initial Purchaser
(with respect to any portion of an unsold allotment from the original
offering) is participating in the Registered Exchange Offer or the Shelf
Registration Statement, the Company shall use its commercially reasonable
efforts to reflect in each such document, when so filed with the
Commission, such comments as such Initial Purchaser reasonably may propose;
(ii) include the information set forth in Annex A hereto on the cover, in
Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose
of the Exchange Offer" section and in Annex C hereto in the "Plan of
Distribution" section of the prospectus forming a part of the Exchange
Offer Registration Statement and include the information set forth in Annex
D hereto in the Letter of Transmittal delivered pursuant to the Registered
Exchange Offer; (iii) if requested by an Initial Purchaser, include the
information required by Items 507 or 508 of Regulation S-K under the
Securities Act, as applicable, in the prospectus forming a part of the
Exchange Offer Registration Statement; (iv) include within the prospectus
contained in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution," reasonably acceptable to the Initial Purchasers,
which shall contain a summary statement of the positions taken or policies
made by the staff of the Commission with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT")) of Exchange Securities received by such broker-dealer
in the Registered Exchange Offer (a "PARTICIPATING BROKER-DEALER"), whether
such positions or policies have been publicly disseminated by the staff of
the Commission or such positions or policies, in the reasonable judgment of
the Initial Purchasers based upon advice of counsel (which may be in-house
counsel), represent the prevailing views of the staff of the Commission;
(v) in the case of a Shelf Registration Statement, include the names of the
Electing Holders who propose to sell Securities pursuant to the Shelf
Registration Statement as selling securityholders, provided that such
Holders have provided the Company with such information prior to the filing
of the Shelf Registration Statement; and (vi) in the event the Company
receives a Notice and Questionnaire from an Electing Holder after the
Effective Time, promptly take all necessary actions to name such Electing
Holder as a selling securityholder in the Shelf Registration Statement and,
in the event a post-effective amendment to the Shelf Registration Statement
is required, cause such amendment to be declared effective within 20
business days of receipt of such Notice and Questionnaire.
(b) The Company shall give written notice to the Initial Purchasers,
the Electing Holders of the Securities and any Participating Broker-Dealer
from whom the Company has received prior written notice that it will be a
Participating Broker-Dealer in the Registered Exchange Offer (which notice
pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction
to suspend the use of the prospectus until the requisite changes have been
made):
(i) when the Registration Statement or any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective;
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
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(iv) of the receipt by the Company or its legal
counsel of any notification with respect to the suspension of
the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of any event that requires the
Company to make changes in the Registration Statement or the
prospectus in order that the Registration Statement or the
prospectus do not contain an untrue statement of a material
fact nor omit to state a material fact required to be stated
therein or necessary to make the statements therein (in the
case of the prospectus, in light of the circumstances under
which they were made) not misleading.
(c) The Company shall make every commercially reasonable
effort to obtain the withdrawal at the earliest possible time, of any
order suspending the effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of Securities
included within the coverage of the Shelf Registration, without charge,
at least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
thereto (including those, if any, incorporated by reference), unless
such information is otherwise available on the Electronic Data
Gathering, Analysis and Retrieval System ("XXXXX") of the Commission.
(e) The Company shall deliver to each Exchanging Dealer and
each Initial Purchaser, and to any other Holder who so requests,
without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if any Initial Purchaser or any such
Holder requests, all exhibits thereto (including those incorporated by
reference), unless such information is otherwise available on XXXXX.
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities included within the coverage of
the Shelf Registration, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in the
Shelf Registration Statement and any amendment or supplement thereto as
such person may reasonably request. The Company consents, subject to
the provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders of the
Securities in connection with the offering and sale of the Securities
covered by the prospectus, or any amendment or supplement thereto,
included in the Shelf Registration Statement.
(g) The Company shall deliver to each Initial Purchaser, any
Exchanging Dealer, any Participating Broker-Dealer and such other
persons required to deliver a prospectus following the Registered
Exchange Offer, without charge, as many copies of the final prospectus
included in the Exchange Offer Registration Statement and any amendment
or supplement thereto as such persons may reasonably request. The
Company consents, subject to the provisions of this Agreement, to the
use of the prospectus or any amendment or supplement thereto by any
Initial Purchaser, if necessary, any Participating Broker-Dealer and
such other persons required to deliver a prospectus following the
Registered Exchange Offer in connection with the offering and sale of
the Exchange Securities covered by the prospectus, or any amendment or
supplement thereto, included in such Exchange Offer Registration
Statement.
(h) Prior to any public offering of the Securities pursuant to
any Registration Statement the Company shall use commercially
reasonable efforts to register or qualify or cooperate with the Holders
of the Securities included therein and their respective counsel in
connection with the registration or qualification of the Securities for
offer and sale under the securities or "blue sky" laws of such states
of the United States as any Holder of the Securities reasonably
requests in writing and do any and all other reasonable acts or things
necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by such Registration Statement;
provided,
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however, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action which would subject it to general
service of process or to taxation in any jurisdiction where it is not
then so subject.
(i) The Company shall cooperate with the Holders of the
Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to any
Registration Statement free of any restrictive legends (consistent with
the provisions of the Indenture) and in such denominations and
registered in such names as the Holders may request a reasonable period
of time prior to sales of the Securities pursuant to such Registration
Statement.
(j) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 3(b) above during the period for
which the Company is required to maintain an effective Registration
Statement, the Company shall promptly prepare and file a post-effective
amendment to the Registration Statement or a supplement to the related
prospectus and any other required document so that, as thereafter
delivered to Holders of the Securities or purchasers of Securities, the
prospectus will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. If the Company notifies the
Initial Purchasers, the Holders of the Securities and any known
Participating Broker-Dealer in accordance with paragraphs (ii) through
(v) of Section 3(b) above to suspend the use of the prospectus until
the requisite changes to the prospectus have been made, then the
Initial Purchasers, the Holders (and shall keep confidential the cause
of such notice for so long as such cause is not otherwise publicly
known) of the Securities and any such Participating Broker-Dealers
shall suspend use of such prospectus, and the period of effectiveness
of the Shelf Registration Statement provided for in Section 2(b) above
and the Exchange Offer Registration Statement provided for in Section 1
above shall each be extended by the number of days from and including
the date of the giving of such notice to and including the date when
the Initial Purchasers, the Holders of the Securities and any known
Participating Broker-Dealer shall have received such amended or
supplemented prospectus pursuant to this Section 3(j).
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number for the
Initial Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, and provide the applicable trustee with
printed certificates for the Initial Securities, the Exchange
Securities or the Private Exchange Securities, as the case may be, in a
form eligible for deposit with The Depository Trust Company.
(l) The Company will comply in all material respects with all
rules and regulations of the Commission to the extent and so long as
they are applicable to the Registered Exchange Offer or the Shelf
Registration and will make generally available to its security holders
(or otherwise provide in accordance with Section 11(a) of the
Securities Act) an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act, no later than 45 days after the
end of a 12-month period (or 90 days, if such period is a fiscal year)
beginning with the first month of the Company's first fiscal quarter
commencing after the effective date of the Registration Statement,
which statement shall cover such 12-month period.
(m) The Company shall cause the Indenture to be qualified
under the Trust Indenture Act of 1939, as amended, in a timely manner
and containing such changes, if any, as shall be necessary for such
qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall
appoint a new trustee thereunder pursuant to the applicable provisions
of the Indenture.
(n) The Company may require each Holder of Securities to be
sold pursuant to the Shelf Registration Statement to furnish to the
Company such information regarding the Holder and the distribution of
the Securities as the Company may from time to time reasonably require
for inclusion in the Shelf Registration Statement, and the Company may
exclude from such registration
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the Securities of any Holder that unreasonably fails to furnish such
information within a reasonable time after receiving such request.
(o) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form)
and take all such other action, if any, as any Holder of the Transfer
Restricted Securities (as defined below) shall reasonably request in
order to facilitate the disposition of the Transfer Restricted
Securities pursuant to any Shelf Registration.
(p) In the case of any Shelf Registration, the Company shall
(i) make reasonably available for inspection by the Holders of the
Securities to be sold pursuant to the Shelf Registration Statement, any
underwriter participating in any disposition pursuant to the Shelf
Registration Statement and any attorney, accountant or other agent
retained by the Holders of the Securities or any such underwriter all
relevant financial and other records, pertinent corporate documents and
properties of the Company and (ii) cause the Company's officers,
directors, employees, accountants and auditors to supply all relevant
information reasonably requested by the Holders of the Securities or
any such underwriter, attorney, accountant or agent in connection with
the Shelf Registration Statement, in each case, as shall be reasonably
necessary to enable such persons, to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act; PROVIDED,
HOWEVER, that the foregoing inspection and information gathering shall
be coordinated on behalf of the Initial Purchasers by CSFB and on
behalf of the other parties, by one counsel designated by and on behalf
of such other parties as described in Section 4 hereof; PROVIDED
FURTHER, HOWEVER, that the conduct of the foregoing inspection and
information gathering shall be subject to the execution by all persons
party to such inspection and information gathering of a reasonable
confidentiality undertaking in customary form with respect to
confidential and proprietary information of the Company.
Notwithstanding the foregoing, the Initial Purchasers (and each
employee, representative, or other agent of any such person) may
disclose to any and all persons, without limitation of any kind, the
U.S. federal income tax treatment and tax structure of the transactions
contemplated herein and all materials of any kind (including opinions
or other tax analyses) that are provided to such person relating to
such tax treatment and tax structure.
(q) In the case of any Shelf Registration, the Company, if
requested by any Holder of Securities covered thereby, shall cause (i)
its counsel to deliver an opinion and updates thereof relating to the
Securities in customary form addressed to such Holders and the managing
underwriters, if any, thereof and dated, in the case of the initial
opinion, the effective date of such Shelf Registration Statement (it
being agreed that the matters to be covered by such opinion shall
include, without limitation, the due incorporation and good standing of
the Company and its subsidiaries; the qualification of the Company and
its subsidiaries to transact business as foreign corporations; the due
authorization, execution and delivery of the relevant agreement of the
type referred to in Section 3(o) hereof; the due authorization,
execution, authentication and issuance, and the validity and
enforceability, of the applicable Securities; the absence of material
legal or governmental proceedings involving the Company and its
subsidiaries; the absence of governmental approvals required to be
obtained in connection with the Shelf Registration Statement, the
offering and sale of the applicable Securities, or any agreement of the
type referred to in Section 3(o) hereof (other than as required by any
state securities or "Blue Sky" laws or the federal securities laws of
the United States); the compliance as to form in all material respects
of such Shelf Registration Statement and any documents incorporated by
reference therein and of the Indenture with the requirements of the
Securities Act and the Trust Indenture Act, respectively; and, as of
the date of the opinion and as of the effective date of the Shelf
Registration Statement or most recent post-effective amendment thereto,
as the case may be, the absence from such Shelf Registration Statement
and the prospectus included therein, as then amended or supplemented,
and from any documents incorporated by reference therein of an untrue
statement of a material fact or the omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of any such documents,
in the light of the circumstances existing at the time that such
documents were filed with the Commission under the Exchange Act); (ii)
its officers to execute and deliver all customary documents and
certificates and updates thereof requested by any underwriters of the
applicable Securities and (iii) its independent public accountants and
the independent public accountants with respect to any other entity for
9
which financial information is provided in the Shelf Registration
Statement to provide to the selling Holders of the applicable
Securities and any underwriter therefor a comfort letter in customary
form and covering matters of the type customarily covered in comfort
letters in connection with primary underwritten offerings, subject to
receipt of appropriate documentation as contemplated, and only if
permitted, by Statements of Auditing Standards Nos. 72, 76 and 78.
(r) In the case of the Registered Exchange Offer, if
reasonably requested by any Initial Purchaser or any known
Participating Broker-Dealer, the Company shall cause (i) its counsel to
deliver to such Initial Purchaser or such Participating Broker-Dealer a
signed opinion in the form set forth in Section 6(c) of the Purchase
Agreement with such changes as are customary in connection with the
preparation of a Registration Statement and (ii) its independent public
accountants and the independent public accountants with respect to any
other entity for which financial information is provided in the
Registration Statement to deliver to such Initial Purchaser or such
Participating Broker-Dealer a comfort letter, in customary form,
meeting the requirements as to the substance thereof as set forth in
Sections 6(a) and 6(g) of the Purchase Agreement, with appropriate date
changes.
(s) If a Registered Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Initial Securities by Holders to
the Company (or to such other Person as directed by the Company) in
exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Company shall xxxx, or caused to be
marked, on the Initial Securities so exchanged that such Initial
Securities are being canceled in exchange for the Exchange Securities
or the Private Exchange Securities, as the case may be; in no event
shall the Initial Securities be marked as paid or otherwise satisfied.
(t) The Company will use its commercially reasonable efforts
to (a) if the Initial Securities have been rated prior to the initial
sale of such Initial Securities, confirm such ratings will apply to the
Securities covered by a Registration Statement, or (b) if the Initial
Securities were not previously rated, cause the Securities covered by a
Registration Statement to be rated with the appropriate rating
agencies, in each case, if so requested by Holders of a majority in
aggregate principal amount of Securities covered by such Registration
Statement, or by the managing underwriters, if any.
(u) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member
of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the "RULES") of
the National Association of Securities Dealers, Inc. ("NASD")) thereof,
whether as a Holder of such Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or
otherwise, the Company will assist such broker-dealer in complying with
the requirements of such Rules, including, without limitation, by (i)
if such Rules, including Rule 2720, shall so require, engaging a
"qualified independent underwriter" (as defined in Rule 2720) to
participate in the preparation of the Registration Statement relating
to such Securities, to exercise usual standards of due diligence in
respect thereto and, if any portion of the offering contemplated by
such Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such
Securities, (ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 5 hereof and (iii) providing such information to
such broker-dealer as may be required in order for such broker-dealer
to comply with the requirements of the Rules.
(v) The Company shall use its commercially reasonable efforts
to take all other steps necessary to effect the registration of the
Securities covered by a Registration Statement contemplated hereby.
10
4. MARKET-MAKING.
(a) For so long as any of the Securities are outstanding and
JPMorgan (in such capacity, the "MARKET-MAKER") or any of its
affiliates (as defined in the rules and regulations of the Commission)
owns any equity securities of the Issuer, the Guarantors or any of
their affiliates and proposes to make a market in the Securities as
part of its business in the ordinary course, the following provisions
shall apply for the sole benefit of the Market-Maker:
(i) The Company shall (A) on the date that the
Exchange Offer Registration Statement is filed with the
Commission, file a registration statement (the "MARKET-MAKING
REGISTRATION STATEMENT") (which may be the Exchange Offer
Registration Statement or the Shelf Registration Statement if
permitted by the rules and regulations of the Commission) and
use their commercially reasonable efforts to cause such
Market-Making Registration Statement to be declared effective
by the Commission on or prior to the consummation of the
Exchange Offer; (B) periodically amend such Market-Making
Registration Statement so that the information contained
therein complies with the requirements of Section 10(a) under
the Securities Act; (C) amend the Market-Making Registration
Statement or amend or supplement the related prospectus when
necessary to reflect any material changes in the information
provided therein; and (D) amend the Market-Making Registration
Statement when required to do so in order to comply with
Section 10(a)(3) of the Securities Act; provided, however,
that (1) prior to filing the Market-Making Registration
Statement, any amendment thereto or any amendment or
supplement to the related prospectus, the Company will furnish
to the Market-Maker copies of all such documents proposed to
be filed, which documents will be subject to the review of the
Market-Maker and its counsel, (2) the Company will not file
the Market-Making Registration Statement, any amendment
thereto or any supplement to the related prospectus to which
the Market-Maker and its counsel shall reasonably object
unless the Company is advised by counsel that such
Market-Making Registration Statement, amendment or supplement
is required to be filed and (3) the Company will provide the
Market-Maker and its counsel with copies of the Market-Making
Registration Statement and each amendment and supplement
filed.
(ii) The Company shall notify the Market-Maker and,
if requested by the Market-Maker, confirm such advice in
writing, (A) when any post-effective amendment to the
Market-Making Registration Statement or any amendment or
supplement to the related prospectus has been filed, and, with
respect to any post-effective amendment, when the same has
become effective; (B) of any request by the Commission for any
post-effective amendment to the Market-Making Registration
Statement, any supplement or amendment to the related
prospectus or for additional information; (C) the issuance by
the Commission of any stop order suspending the effectiveness
of the Market-Making Registration Statement or the initiation
of any proceedings for that purpose; (D) of the receipt by the
Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any
proceedings for such purpose; and (E) of the happening of any
event that makes any statement of a material fact made in the
Market-Making Registration Statement, the related prospectus
or any amendment or supplement thereto untrue and that
requires the making of any changes in the Market-Making
Registration Statement, such prospectus or any amendment or
supplement thereto, in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
(iii) If any event contemplated by Section
4(a)(ii)(B) through (E) occurs during the period for which the
Company is required to maintain an effective Market-Making
Registration Statement, the Company shall promptly prepare and
file with the Commission a post-effective amendment to the
Market-Making Registration Statement or an amendment or
supplement to the related prospectus or file any other
required document so that the prospectus will not include an
untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading.
11
(iv) In the event of the issuance of any stop order
suspending the effectiveness of the Market-Making Registration
Statement or of any order suspending the qualification of the
Securities for sale in any jurisdiction, the Company shall use
promptly their commercially reasonable efforts to obtain its
withdrawal.
(v) The Company shall furnish to the Market-Maker,
without charge, (i) at least one conformed copy of the
Market-Making Registration Statement and any post-effective
amendment thereto; and (ii) as many copies of the related
prospectus and any amendment or supplement thereto as the
Market-Maker may reasonably request.
(vi) The Company shall consent to the use of the
prospectus contained in the Market-Making Registration
Statement or any amendment or supplement thereto by the
Market-Maker in connection with its market-making activities.
(vii) Notwithstanding the foregoing provisions of
this Section 4, the Company may for valid business reasons,
including without limitation, a potential acquisition,
divestiture of assets or other material corporate transaction,
issue a notice that the Market-Making Registration Statement
is no longer effective or the prospectus included therein is
no longer usable for offers and sales of Securities and may
issue any notice suspending use of the Market-Making
Registration Statement required under applicable securities
laws to be issued; PROVIDED, HOWEVER, that the use of the
Market-Making Registration Statement shall not be suspended
for more than 60 days in the aggregate in any consecutive 12
month period; PROVIDED, FURTHER, HOWEVER, that the use of the
Market-Making Registration Statement may be suspended for an
additional 15 days in the aggregate in any consecutive 12
month period upon the consent of the Market-Maker (which
consent the Market-Maker shall not withhold if it determines
the reasons for such suspension to be reasonable). The
Market-Maker agrees that upon receipt of any notice from the
Company pursuant to Section 4(a)(iii) or this Section
4(a)(vii), it will discontinue use of the Market-Making
Registration Statement until receipt of copies of the
supplemented or amended prospectus relating thereto or until
advised in writing by the Company that the use of the
Market-Making Registration Statement may be resumed.
(b) In connection with the Market-Making Registration
Statement, the Company shall (i) make reasonably available for
inspection by a representative of, and counsel acting for, the
Market-Maker all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries
and (ii) use its commercially reasonable efforts to have its officers,
directors, employees, accountants and counsel supply all relevant
information reasonably requested by such representative or counsel of
the Market-Maker, provided that such representatives and counsel shall
keep such information provided confidential.
(c) Prior to the effective date of the Market-Making
Registration Statement, the Company shall use its reasonable best
efforts to register or qualify the Securities for offer and sale under
the securities or "blue sky" laws of such jurisdictions as the
Market-Maker reasonably requests in writing and do any and all other
acts or things necessary to enable the offer and sale in such
jurisdictions of the Securities covered by the Market-Making
Registration Statement; provided that the Issuer and the Guarantors
shall not be required to qualify generally to do business in any
jurisdiction where they are not then so qualified or to take any action
which would subject them to general service of process or to taxation
in any such jurisdiction where they are not then so subject.
(d) The Company represents and agrees that the Market-Making
Registration Statement, any post-effective amendments thereto, any
amendments or supplements to the related prospectus and any documents
filed by them under the Exchange Act will, when they become effective
or are filed with the Commission, as the case may be, conform in all
material respects to the requirements of the Securities Act and the
Exchange Act and the rules and regulations of the Commission thereunder
and will not, as of the effective date of such Market-Making
Registration Statement or
12
post-effective amendments and as of the filing date of amendments or
supplements to such prospectus or filings under the Exchange Act,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided that no representation or warranty
is made as to information contained in or omitted from the
Market-Making Registration Statement or the related prospectus in
reliance upon and in conformity with written information furnished to
the Company by the Market-Maker specifically for inclusion therein,
which information the parties hereto agree will be limited to the
statements concerning the market-making activities of the Market-Maker
to be set forth on the cover page, in the "Plan of Distribution"
section and in the Canadian wrapper, if any, of the prospectus (the
"Market-Maker's Information").
(e) At the time of effectiveness of the Market-Making
Registration Statement and concurrently each time the Market-Making
Registration Statement or the related prospectus shall be amended or
such prospectus shall be supplemented, the Issuer shall (if requested
by the Market-Maker) furnish the Market-Maker and its counsel with a
certificate of its or President or any Vice President and its Chief
Financial Officer to the effect that:
(i) the Market-Making Registration Statement has been
declared effective; (ii) in the case of an amendment to the
Market-Making Registration Statement, such amendment has
become effective under the Securities Act as of the date and
time specified in such certificate, if applicable; in the case
of an amendment or supplement to the prospectus, such
amendment or supplement to the prospectus was filed with the
Commission pursuant to the subparagraph of Rule 424(b) under
the Securities Act specified in such certificate on the date
specified therein; (iii) to the knowledge of such officers, no
stop order suspending the effectiveness of the Market-Making
Registration Statement has been issued and no proceeding for
that purpose is pending or threatened by the Commission; (iv)
such officers have carefully examined the Market-Making
Registration Statement and the prospectus (and, in the case of
an amendment or supplement, such amendment or supplement) and
as of the date of such Market-Making Registration Statement,
amendment or supplement, as applicable, the Market-Making
Registration Statement and the prospectus, as amended or
supplemented, if applicable, did not include any untrue
statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading.
(f) At the time of effectiveness of the Market-Making
Registration Statement and concurrently each time the Market-Making
Registration Statement or the related prospectus shall be amended or
such prospectus shall be supplemented, the Company shall (if requested
in writing by the Market-Maker) furnish the Market-Maker and its
counsel with the written opinion of counsel for the Company reasonably
satisfactory to the Market-Maker to the effect that (subject to
customary assumptions, qualifications and exceptions):
(i) the Market-Making Registration Statement has been
declared effective; (ii) in the case of an amendment to the
Market-Making Registration Statement, such amendment has
become effective under the Securities Act as of the date and
time specified in such opinion, if applicable; in the case of
an amendment or supplement to the prospectus, such amendment
or supplement to the prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) under the
Securities Act specified in such opinion on the date specified
therein; (iii) to the knowledge of such counsel, no stop order
suspending the effectiveness of the Market-Making Registration
Statement has been issued and no proceeding for that purpose
is pending or threatened by the Commission; and (iv) such
counsel has reviewed the Market-Making Registration Statement
and the prospectus (and, in the case of an amendment or
supplement, such amendment or supplement) and participated
with officers of the Company and independent public
accountants for the Company in the preparation of such
Market-Making Registration Statement and prospectus (and, in
the case of an amendment or supplement, such amendment or
13
supplement) and has no reason to believe that (except for the
financial statements and other financial data contained
therein as to which no belief is required) as of the date of
such Market-Making Registration Statement, amendment or
supplement, as applicable, the Market-Making Registration
Statement and the prospectus, as amended or supplemented, if
applicable, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading.
(g) At the time of effectiveness of the Market-Making
Registration Statement and concurrently each time the Market-Making
Registration Statement or the related prospectus shall be amended or
such prospectus shall be supplemented to include audited annual
financial information, the Company shall (if requested by the
Market-Maker) furnish the Market-Maker and its counsel with a letter of
Deloitte & Touche LLP (or other independent public accountants for the
Company or the Guarantors of nationally recognized standing) in form
reasonably satisfactory to the Market-Maker, addressed to the
Market-Maker and dated the date of delivery of such letter, (i)
confirming that they are independent public accountants within the
meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission and, (ii) in all other
respects, substantially in the form of the letter delivered to the
Initial Purchasers pursuant to Sections 6(a) and 6(f) of the Purchase
Agreement, with, in the case of an amendment or supplement to include
audited financial information, such changes as may be reasonably
necessary to reflect the amended or supplemented financial information.
(h) The Company, on the one hand, and the Market-Maker, on the
other hand, hereby agree to indemnify each other, and, if applicable,
contribute to the other, in accordance with Section 6 of this
Agreement.
(i) The Company will comply with the provisions of this
Section 4 at its own expense. The Company will reimburse the
Market-Maker for (i) up to $25,000 per year of the Market-Maker's
expenses associated with this Section 4 (other than Sections 4(f) and
4(g)) (including reasonable fees of counsel) and (ii) any of the
Market-Maker's expenses incurred pursuant to Sections 4(f) and 4(g).
(j) The agreements contained in this Section 4 and the
representations, warranties and agreements contained in this Agreement
shall survive all offers and sales of the Securities and shall remain
in full force and effect, regardless of any termination or cancelation
of this Agreement or any investigation made by or on behalf of any
indemnified party.
(k) For purposes of this Section 4, any reference to the terms
"amend", "amendment" or "supplement" with respect to the Market-Making
Registration Statement or the prospectus contained therein shall be
deemed to refer to and include the filing under the Exchange Act of any
document deemed to be incorporated therein by reference.
5. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's performance of and
compliance with this Agreement will be borne by the Company, regardless
of whether a Registration Statement is ever filed or becomes effective,
including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
14
(iii) all expenses of printing (including printing
certificates for the Securities to be issued in the Registered
Exchange Offer and the Private Exchange and printing of
Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the
Company;
(v) all application and filing fees in connection
with listing the Exchange Securities on a national securities
exchange or automated quotation system pursuant to the
requirements hereof; and
(vi) all fees and disbursements of independent
certified public accountants of the Company (including the
expenses of any special audit and comfort letters required by
or incident to such performance).
The Company will bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses
of any person, including special experts, retained by the Company.
(b) In connection with any Shelf Registration Statement
required by this Agreement, the Company will reimburse the Holders of
the Securities covered by such Shelf Registration Statement for the
reasonable fees and disbursements of not more than one counsel, who
shall be Cravath, Swaine & Xxxxx LLP unless another firm shall be
chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Shelf Registration
Statement is being prepared. This Section 5(b) expressly does not apply
to any Market-Making Registration Statement.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless (x) each
Holder of the Securities (including the Market-Maker) included in a
Registration Statement, any Participating Broker-Dealer and each
person, if any, who controls such Holder (including the Market-Maker)
or such Participating Broker-Dealer within the meaning of the
Securities Act or the Exchange Act (each Holder, any Participating
Broker-Dealer and such controlling persons are referred to collectively
as the "INDEMNIFIED PARTIES") from and against any losses, claims,
damages or liabilities, joint or several, or any actions in respect
thereof (including, but not limited to, any losses, claims, damages,
liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under
the Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a
material fact contained in a Registration Statement or prospectus or in
any amendment or supplement thereto or in any preliminary prospectus
relating to a Shelf Registration, or arise out of, or are based upon,
the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse, as incurred, the
Indemnified Parties for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; PROVIDED,
HOWEVER, that (i) the Company shall not be liable in any such case to
the extent that such loss, claim, damage or liability arises out of or
is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in a Registration Statement or
prospectus or in any amendment or supplement thereto or in any
preliminary prospectus relating to a Shelf Registration in reliance
upon and in conformity with written information pertaining to such
Holder or Market-Maker (the "MARKET-MAKER INFORMATION"), respectively,
and furnished to the Company by or on behalf of such Holder or
Market-Maker, respectively, specifically for inclusion therein and (ii)
with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus or final
prospectus, as the case may be, relating to a Shelf Registration
Statement, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Holder (including the
Market-Maker) or Participating Broker-Dealer from whom the person
15
asserting any such losses, claims, damages or liabilities purchased the
Securities concerned, to the extent that a prospectus relating to such
Securities was required to be delivered by such Holder or Participating
Broker-Dealer under the Securities Act in connection with such purchase
and any such loss, claim, damage or liability of such Holder or
Participating Broker-Dealer results from the fact that there was not
sent or given to such person, at or prior to the written confirmation
of the sale of such Securities to such person, a copy of the final
prospectus, or amendment to such prospectus, as the case may be, if the
Company had previously furnished copies thereof to such Holder or
Participating Broker-Dealer; and (y) the Market-Maker 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), that arise out of, or are based upon, any
breach of the Company of its representations, warranties and agreements
contained in Section 4 of this Agreement; PROVIDED FURTHER, HOWEVER,
that this indemnity agreement will be in addition to any liability
which the Company may otherwise have to such Indemnified Party. The
Company shall also indemnify underwriters, their officers and directors
and each person who controls such underwriters within the meaning of
the Securities Act or the Exchange Act to the same extent as provided
above with respect to the indemnification of the Holders of the
Securities if requested by such Holders.
(b) Each Holder of the Securities (including the
Market-Maker), severally and not jointly, will indemnify and hold
harmless the Company and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act from and
against any losses, claims, damages or liabilities or any actions in
respect thereof, to which the Company or any such controlling person
may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement thereto or in
any preliminary prospectus relating to a Shelf Registration, or arise
out of or are based upon the omission or alleged omission to state
therein a material fact necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue
statement or omission or alleged untrue statement or omission was made
in reliance upon and in conformity with written information pertaining
to such Holder or Market-Maker Information, respectively, and furnished
to the Company by or on behalf of such Holder or Market-Maker, as the
case may be, specifically for inclusion therein; and, subject to the
limitation set forth immediately preceding this clause, shall
reimburse, as incurred, the Company for any legal or other expenses
reasonably incurred by the Company or any such controlling person in
connection with investigating or defending any loss, claim, damage,
liability or action in respect thereof. Notwithstanding any other
provision of this Section 6(b), the Holders of the Securities
(including the Market-Maker) shall not be liable for any indemnity
claims hereunder in excess of the amount by which the net proceeds
received by such Holders from the sale of the Securities pursuant to a
Registration Statement or prospectus exceeds the amount of damages
which such Holders (or the Market-Maker) have otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. This indemnity agreement will be in addition to
any liability which such Holder may otherwise have to the Company or
any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action or proceeding
(including a governmental investigation), such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section 6, notify the indemnifying party of the
commencement thereof; provided that the failure to notify the
indemnifying party 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 party shall not relieve it from any
liability that it may have to an indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to
16
assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof the indemnifying party will
not be liable to such indemnified party under this Section 6 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the
defense thereof. In any such proceeding, any indemnified party 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 party unless
(i) the indemnifying party and the indemnified party shall have
mutually agreed to the contrary; (ii) the indemnifying party has failed
within a reasonable time to retain counsel reasonably satisfactory to
the indemnified party; (iii) the indemnified party 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 party, or (iv) the named parties in any such proceeding
(including any impleaded parties) include both the indemnifying party
and the indemnified party 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 party 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 parties, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate
firm for any Initial Purchaser, its affiliates, directors and officers
and any control persons of such Initial Purchaser shall be designated
in writing by CSFB and any such separate firm for the Issuer, the
Guarantors and any control persons of the Issuer and the Guarantors
shall be designated in writing by the Issuer. Any such separate firm
for the Market-Maker shall be designated in writing by the
Market-Maker. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder
by such indemnified party unless such settlement (i) includes an
unconditional release of such indemnified party from all liability on
any claims that are the subject matter of such action, and (ii) does
not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party. No
indemnifying party shall be liable for any settlement or compromise of,
or consent to, the entry of judgment with respect to, any such action
or claim effected without its consent, unless such indemnifying party
has failed, upon request by the indemnified party pursuant to this
Section 6, to reimburse the indemnified party for legal expenses due
within 30 days of such request.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in subsection (a) or (b) above in such
proportion as is appropriate to reflect the relative fault of the
indemnifying party or parties on the one hand and the indemnified party
on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable
considerations. The relative fault of the parties 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 Company
on the one hand or such Holder or such other indemnified party or the
Market-Maker Information, as the case may be, on the other, and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding any other provision of this
Section 6(d), the Holders of the Securities (including the
Market-Maker) shall not be required to contribute any amount in excess
of the amount by which the net proceeds received by such Holders from
the sale of the Securities pursuant to a Registration Statement or
prospectus exceeds the amount of damages which such Holders (or the
Market-Maker) have
17
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. For purposes
of this paragraph (d), each person, if any, who controls such
indemnified party within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act shall have
the same rights to contribution as the Company.
(e) The agreements contained in this Section 6 shall survive
the sale of the Securities pursuant to a Registration Statement and
shall remain in full force and effect, regardless of any termination or
cancelation of this Agreement or any investigation made by or on behalf
of any indemnified party.
7. ADDITIONAL INTEREST UNDER CERTAIN CIRCUMSTANCES.
(a) Additional interest (the "ADDITIONAL INTEREST") with
respect to the Securities shall be assessed as follows if any of the
following events occur (each such event in clauses (i) through (iv)
below being herein called a "REGISTRATION DEFAULT"):
(i) any Registration Statement (other than a
Market-Making Registration Statement) required by this
Agreement is not filed with the Commission on or prior to the
applicable Filing Deadline;
(ii) any Registration Statement (other than a
Market-Making Registration Statement) required by this
Agreement is not declared effective by the Commission on or
prior to the applicable Effectiveness Deadline;
(iii) the Registered Exchange Offer has not been
consummated on or prior to the Consummation Deadline; or
(iv) any Registration Statement (other than a
Market-Making Registration Statement) required by this
Agreement has been declared effective by the Commission but
(A) such Registration Statement thereafter ceases to be
effective (except if such Registration Statement is an
Exchange Offer Registration Statement, such Registration
Statement ceases to be effective during the 180 day period
following the effective date of such Registration Statement
(or such shorter period during which an Exchanging Dealer is
required by law to deliver a prospectus)) or (B) such
Registration Statement or the related prospectus ceases to be
usable in connection with resales of Transfer Restricted
Securities during the periods specified herein because either
(1) any event occurs as a result of which the related
prospectus forming part of such Registration Statement would
include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein in the light of the circumstances under which they
were made not misleading, or (2) it shall be necessary to
amend such Registration Statement or supplement the related
prospectus, to comply with the Securities Act or the Exchange
Act or the respective rules thereunder and, in the case of any
such amendments or supplements related solely to naming
additional Electing Holders as selling securityholders under a
Shelf Registration Statement, such amendments or supplements
are not filed and declared effective by the Commission within
20 business days of the Company's receipt of the applicable
Notice and Questionnaire.
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Company or pursuant to operation of law or as a result of any
action or inaction by the Commission .
Additional Interest shall accrue on the Securities over and above the interest
set forth in the title of the Securities from and including the date on which
any such Registration Default shall occur to but excluding
18
the date on which all such Registration Defaults have been cured, at a rate of
0.25% per annum (the "ADDITIONAL INTEREST RATE") for the first 90-day period
immediately following the occurrence of such Registration Default. The
Additional Interest Rate shall increase by an additional 0.25% per annum with
respect to each subsequent 90-day period until the date on which all
Registration Defaults have been cured, up to a maximum Additional Interest Rate
of 1.5% per annum; provided that the Company shall not be required to pay
Additional Interest for more than one Registration Default at any given time.
(b) A Registration Default referred to in Section 7(a)(iv) hereof shall
be deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related prospectus or (y) other material events, with respect
to the Company that would need to be described in such Shelf Registration
Statement or the related prospectus and (ii) in the case of clause (y), the
Company is proceeding promptly and in good faith to amend or supplement such
Shelf Registration Statement and related prospectus to describe such events;
provided, however, that in any case if such Registration Default occurs for a
continuous period in excess of 45 days, Additional Interest shall be payable in
accordance with the above paragraph from the day such Registration Default
occurs until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section 7(a)
will be payable in cash on the regular interest payment dates with respect to
the Securities. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest Rate by the principal amount of
the Securities and further multiplied by a fraction, the numerator of which is
the number of days such Additional Interest Rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months), and the denominator of which is 360.
(d) "TRANSFER RESTRICTED SECURITIES" means each Security until (i) the
date on which such Security has been exchanged by a person other than a
broker-dealer for a freely transferable Exchange Security in the Registered
Exchange Offer, (ii) following the exchange by a broker-dealer in the Registered
Exchange Offer of an Initial Security for an Exchange Note, the date on which
such Exchange Note is sold to a purchaser who receives from such broker-dealer
on or prior to the date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (iii) the date on which such Security has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the date on which such
Security is distributed to the public pursuant to Rule 144 under the Securities
Act or is saleable pursuant to Rule 144(k) under the Securities Act.
8. RULES 144 AND 144A. The Company shall use its commercially
reasonable efforts to file the reports required to be filed by it under the
Securities Act and the Exchange Act in a timely manner and, if at any time the
Company is not required to file such reports, it will, upon the request of any
Holder of Securities that are "restricted securities" within the meaning of Rule
144 and are not saleable pursuant to Rule 144(k) or the Market Maker, make
publicly available other information so long as necessary to permit sales of
their securities pursuant to Rules 144 and 144A. The Company covenants that it
will take such further action as any Holder of such Securities or the
Market-Maker may reasonably request, all to the extent required from time to
time to enable such Holder or the Market-Maker to sell such Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including the requirements of Rule 144A(d)(4)).
The Company will provide a copy of this Agreement to prospective purchasers of
Initial Securities identified to the Company by the Initial Purchasers upon
request. Upon the request of any Holder of Initial Securities or the
Market-Maker, the Company shall deliver to such Holder or the Market-Maker a
written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
9. UNDERWRITTEN REGISTRATIONS. If any of the Transfer Restricted
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("MANAGING UNDERWRITERS") will be selected by
the
19
Holders of a majority in aggregate principal amount of such Transfer Restricted
Securities to be included in such offering, subject to approval by the Issuer,
which approval shall not be unreasonably withheld or delayed.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
10. SPECIAL TERMINATION PROVISION. In the event the Company shall
complete a Special Mandatory Redemption (as defined on the face of the
Securities) and the Escrow Agent shall have returned the Escrowed Funds (as
defined in the Escrow Agreement) to the Company and the Paying Agent (as defined
in the Indenture) in accordance with the terms of the Escrow Agreement, this
Agreement shall terminate, and the obligations herein shall cease to have any
binding effect upon the parties hereto. Notwithstanding the foregoing, Section 6
of this Agreement shall not terminate, and the obligations of the Company and
the Guarantors pursuant to Section 6 shall remain in effect.
11. MISCELLANEOUS.
(a) REMEDIES. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under Section 1 and 2 hereof may
result in material irreparable injury to the Initial Purchasers 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, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under Sections 1 and
2 hereof. The Company further agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate. The Initial
Purchasers and the Holders acknowledge and agree that the Additional Interest
provided by Section 7 of this Agreement shall be the exclusive monetary remedy
available to Holders for any Registration Default; PROVIDED, HOWEVER, this
limitation shall not limit the remedies available exclusively to the
Market-Maker under this Agreement.
(b) NO INCONSISTENT AGREEMENTS. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders or the Market-Maker
in this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
or the Market-Maker under any agreement in effect on the date hereof.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the Holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consents or,
with respect to Section 4, the written consent of the Market-Maker. Without the
consent of the Holder of each Security, however, no modification may change the
provisions relating to the payment of Additional Interest.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company.
20
(2) if to the Initial Purchasers;
Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
with a copy to:
Cravath, Swaine & Xxxxx LLP
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax. No.: (212) 474 - 3700
Attention: Xxxx X. Xxxxxxxxxx, Esq.
(3) if to the Market-Maker:
X.X. Xxxxxx Securities, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxxx Xxxxxx
with a copy to:
Cravath, Swaine & Xxxxx LLP
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax. No.: (212) 474 - 3700
Attention: Xxxx X. Xxxxxxxxxx, Esq.
(4) if to the Company, at its address as follows:
Interline Brands, Inc.
000 X. Xxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Fax. No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(e) THIRD PARTY BENEFICIARIES. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
21
(f) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Company and its successors and assigns.
(g) 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.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
(j) SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(k) SECURITIES HELD BY THE COMPANY. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Securities is required
hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
(l) SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES. By the execution
and delivery of this Agreement, the Issuer and the Guarantors submit to the
nonexclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. To the
extent that the Issuer or any of the Guarantors may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service of
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property, it hereby irrevocably
waives such immunity in respect of this Agreement, to the fullest extent
permitted by law.
22
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Issuer a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the several Initial Purchasers, the Issuer and the Guarantors in
accordance with its terms.
Very truly yours,
INTERLINE BRANDS, INC.
by /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Executive Vice President, Chief
Financial Officer and Secretary
WILMAR HOLDINGS, INC.
WILMAR FINANCIAL, INC.
by /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
GLENWOOD ACQUISITION LLC
by /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President and Chief
Financial Officer
23
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON LLC
X.X. XXXXXX SECURITIES, INC.
FLEET SECURITIES, INC.
WACHOVIA SECURITIES INC.
BNY CAPITAL MARKETS, INC.
by: CREDIT SUISSE FIRST BOSTON LLC
by
/s/ Xxx X. Xxxxxxx
-------------------------------
Name: Xxx X. Xxxxxxx
Title: Director
24
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the consummation of the Registered Exchange
Offer (as defined in the Registration Rights Agreement), it will make this
Prospectus available to any broker-dealer for use in connection with any such
resale. See "Plan of Distribution."
25
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Initial Securities, where such Initial Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities. See "Plan of
Distribution."
26
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 180 days after the consummation of the Registered
Exchange Offer, it will make this prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale. In
addition, until [ ], 2003, all dealers effecting transactions in the Exchange
Securities may be required to deliver a prospectus.1
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such Exchange
Securities. Any broker-dealer that resells Exchange Securities that were
received by it for its own account pursuant to the Exchange Offer and any broker
or dealer that participates in a distribution of such Exchange Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that, by
acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 180 days after the consummation of the Registered
Exchange Offer the Company will promptly send additional copies of this
Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Company has agreed to pay all expenses incident to the Exchange Offer (including
the expenses of one counsel for the Holders of the Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the
Holders of the Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
-------------
1 In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the inside front cover page of the Exchange Offer prospectus below the
Table of Contents.
27
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
---------------------------------------------
Address:
---------------------------------------------
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
28
EXHIBIT A
INTERLINE BRANDS, INC.
FORM OF SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
(DATE OF MAILING)
URGENT-IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE:
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in the 11 1/2% Senior Subordinated Notes due
2011 (the "Securities") of Interline Brands, InC. (the "Company") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933, as amended, for resale by the beneficial owners thereof. In order
to have their Securities included in the registration statement, beneficial
owners must complete and return the enclosed Selling Securityholder Notice and
Questionnaire.
IT IS IMPORTANT THAT BENEFICIAL OWNERS OF THE SECURITIES RECEIVE A COPY OF THE
ENCLOSED MATERIALS AS SOON AS POSSIBLE as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by o. Please forward a copy of the enclosed documents to each
beneficial owner that holds interests in the Securities through you. If you
require more copies of the enclosed materials or have any questions pertaining
to this matter, please contact o.
A-1
SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE
The undersigned holder (the "selling securityholder") of 11 1/2% Senior
Subordinated Notes Due 2011 (the "registrable securities") of Interline Brands,
Inc. (the "Company"), understands that the Company and certain of its
subsidiaries have filed or intend to file with the Securities and Exchange
Commission (the "SEC") a registration statement on an appropriate form for the
registration of the resale under Rule 415 of the Securities Act of 1933, as
amended (the "Securities Act"), in accordance with the terms of the Registration
Rights Agreement dated as of the issue date of the registrable securities, among
the Company, the guarantors listed on the signature page thereto and the initial
purchasers party thereto (the "Registration Rights Agreement"). A copy of the
Registration Rights Agreement is available from the Company upon request at the
address set forth above.
Each beneficial owner of registrable securities is entitled to the
benefits of the Registration Rights Agreement. In order to sell or otherwise
dispose of any registrable securities pursuant to the shelf registration
statement (or any additional registration statement related thereto), a
beneficial owner of registrable securities generally will be required to be
named as a selling securityholder in the related prospectus, deliver a
prospectus to purchasers of registrable securities and be bound by those
provisions of the Registration Rights Agreement applicable to such beneficial
owner (including certain indemnification provisions, as described below).
Beneficial owners are encouraged to complete and deliver this Notice and
Questionnaire prior to the effectiveness of the shelf registration statement so
that such beneficial owners may be named as selling securityholders in the
related prospectus at the time of effectiveness. Any beneficial owner of
registrable securities wishing to include its registrable securities must
deliver to the Company a properly completed and signed copy of this Notice and
Questionnaire. The Company has agreed to pay additional interest pursuant to the
Registration Rights Agreement under certain circumstances as set forth therein.
Certain legal consequences arise from being named as a selling
securityholder in the shelf registration statement (or any additional
registration statement related thereto) and the related prospectus. Accordingly,
holders and beneficial owners of registrable securities are advised to consult
their own securities law counsel regarding the consequences of being named or
not being named as a selling securityholder in the shelf registration statement
(or any additional registration statement related thereto) and the related
prospectus.
A-2
NOTICE
The undersigned selling securityholder hereby gives notice to the
Company of its intention to sell or otherwise dispose of registrable securities
beneficially owned by it and listed below in Item 3 (unless otherwise specified
under Item 3) pursuant to the shelf registration statement (or any additional
registration statement related thereto). The undersigned, by signing and
returning this Notice and Questionnaire, understands and agrees that it will be
bound by the terms and conditions of this Notice and Questionnaire and the
Registration Rights Agreement.
The undersigned hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete.
A-3
EXHIBIT A
QUESTIONNAIRE
1. (a) Full legal name of selling securityholder:
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(b) Full legal name of registered holder (if not the same as (a) above)
through which registrable securities listed in (3) below are held:
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(c) Full legal name of The Depository Trust Company participant (if
applicable and if not the same as (b) above) through which registrable
securities listed in (3) below are held:
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2. Address for notices to selling securityholder:
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Telephone (including area code):
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Fax (including area code):
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Contact Person:
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3. Beneficial ownership of registrable securities:
(a) Type and Principal Amount of registrable securities beneficially owned:
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(b) CUSIP No(s). of such registrable securities beneficially owned:
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4. Beneficial ownership of the securities of the Company owned by the
selling securityholder:
EXCEPT AS SET FORTH BELOW IN THIS ITEM (4); THE UNDERSIGNED IS NOT THE
BENEFICIAL OR REGISTERED OWNER OF ANY SECURITIES OF THE COMPANY OTHER
THAN REGISTRABLE SECURITIES LISTED ABOVE IN ITEM (3).
(a) Type and Amount of other securities of the Company beneficially owned
by the selling securityholder:
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2
(b) CUSIP No(s). of such other securities of the Company beneficially
owned:
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(c) The amount securities to be offered for the security holder's account:
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(d) The amount and (if one percent or more) the percentage of the class
to be owned by such selling securityholder after completion of the
offering:
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5. RELATIONSHIP WITH THE COMPANY:
EXCEPT AS SET FORTH BELOW, NEITHER THE UNDERSIGNED NOR ANY OF ITS
AFFILIATES (AS DEFINED BELOW), OFFICERS, DIRECTORS OR PRINCIPAL EQUITY
HOLDERS (5% OR MORE) HAS HELD ANY POSITION OR OFFICE OR HAS HAD ANY
OTHER MATERIAL RELATIONSHIP WITHIN THE PAST 3 YEARS WITH THE COMPANY OR
ANY OF ITS PREDECESSORS OR AFFILIATES.
State any exception here:
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3
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6. Plan of distribution:
EXCEPT AS SET FORTH BELOW, THE UNDERSIGNED (INCLUDING ITS DONEES OR
PLEDGEES) INTENDS TO DISTRIBUTE THE REGISTRABLE SECURITIES LISTED ABOVE
IN ITEM (3) PURSUANT TO THE SHELF REGISTRATION STATEMENT (OR ANY
ADDITIONAL REGISTRATION STATEMENT RELATED THERETO) ONLY AS FOLLOWS (IF
AT ALL). SUCH REGISTRABLE SECURITIES MAY BE SOLD FROM TIME TO TIME
DIRECTLY BY THE UNDERSIGNED OR, ALTERNATIVELY, THROUGH UNDERWRITERS, IN
ACCORDANCE WITH THE REGISTRATION RIGHTS AGREEMENT, BROKER-DEALERS OR
AGENTS. IF THE REGISTRABLE SECURITIES ARE SOLD THROUGH UNDERWRITERS OR
BROKER-DEALERS, THE SELLING SECURITYHOLDER WILL BE RESPONSIBLE FOR
UNDERWRITING DISCOUNTS OR COMMISSIONS OR AGENT'S COMMISSIONS. SUCH
REGISTRABLE SECURITIES MAY BE SOLD IN ONE OR MORE TRANSACTIONS AT FIXED
PRICES, AT PREVAILING MARKET PRICES AT THE TIME OF SALE, AT VARYING
PRICES DETERMINED AT THE TIME OF SALE, OR AT NEGOTIATED PRICES. SUCH
SALES MAY BE EFFECTED IN TRANSACTIONS (WHICH MAY INVOLVE BLOCK
TRANSACTIONS) (I) ON ANY NATIONAL SECURITIES EXCHANGE OR QUOTATION
SERVICE ON WHICH THE REGISTRABLE SECURITIES MAY BE LISTED OR QUOTED AT
THE TIME OF SALE, (II) IN THE OVER-THE-COUNTER MARKET, (III) OTHERWISE
THAN ON SUCH EXCHANGES OR SERVICES OR IN THE OVER-THE-COUNTER MARKET,
OR (IV) THROUGH THE WRITING OF OPTIONS. IN CONNECTION WITH SALES OF THE
REGISTRABLE SECURITIES OR OTHERWISE, THE UNDERSIGNED MAY ENTER INTO
HEDGING TRANSACTIONS WITH BROKER-DEALERS, WHICH MAY IN TURN ENGAGE IN
SHORT SALES OF THE REGISTRABLE SECURITIES AND DELIVER REGISTRABLE
SECURITIES TO CLOSE OUT SUCH SHORT POSITIONS, OR LOAN OR PLEDGE
REGISTRABLE SECURITIES TO BROKER-DEALERS THAT IN TURN MAY SELL SUCH
SECURITIES.
State any exceptions here:
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7. NASD affiliates and Relationships with Broker-Dealers:
EXCEPT AS SET FORTH BELOW, THE UNDERSIGNED IS NOT A BROKER OR DEALER
(AS SUCH TERMS ARE DEFINED IN THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED (THE "EXCHANGE ACT"), OR AN "AFFILIATE" (SEE DEFINITION ABOVE)
OF ANY BROKER OR DEALER.
4
State any exceptions here:
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If the undersigned is not a broker-dealer but is an affiliate of a
broker-dealer, please check the appropriate box next to each statement
if the following statements are true:
|_| the undersigned has acquired the registrable
securities in the ordinary course of its business
|_| the undersigned did not have any arrangement or
agreement with any person with respect to the
distribution of the registrable securities at the
time that it acquired the registrable securities
The undersigned acknowledges, agrees and understands that if (a) the
undersigned is a broker or dealer or (b) unless both of the above boxes
are checked, the undersigned is an affiliate of a broker or dealer, the
undersigned may need to be identified as an "underwriter" in the shelf
registration statement (or any additional registration statement
related thereto) and the related prospectus.
LIST THE NAME AND ADDRESS OF ANY NASD AFFILIATE AND BRIEFLY DESCRIBE
THE NATURE OF THE RELATIONSHIP AND ANY ARRANGEMENTS RELATING TO THE
SALE OF ANY OF THE REGISTRABLE SECURITIES:
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The undersigned acknowledges that it understands its
obligation to comply with the provisions of the Securities Act and the Exchange
Act and the rules thereunder relating to prospectus delivery requirements, stock
manipulation, particularly Regulation M thereunder (or any successor rules or
regulations), in connection with any offering of registrable securities pursuant
to the shelf registration statement, or fail to take such action. The
undersigned agrees that neither it nor any person acting on its behalf will
engage in any transaction, or fail to take such action, in violation of such
provisions.
The selling securityholder hereby acknowledges its obligations
under the Registration Rights Agreement to indemnify and hold harmless certain
persons as set forth therein.
Pursuant to the Registration Rights Agreement, the Company has
agreed under certain circumstances to indemnify the selling securityholders
against certain liabilities.
5
In accordance with the undersigned's obligation under the
Registration Rights Agreement to provide such information as may be required by
law for inclusion in the shelf registration statement (or any additional
registration statement related thereto) and the related prospectus, the
undersigned agrees to promptly notify the company of any inaccuracies or changes
in the information provided herein that may occur subsequent to the date hereof
at any time while the shelf registration statement (or any additional
registration statement related thereto) and the related prospectus remain
effective. All notices hereunder and pursuant to the registration rights
agreement shall be made in writing at the address set forth below.
6
By signing below, the undersigned consents to the disclosure
of the information contained herein in its answers to items (1) through (7)
above and the inclusion of such information in the shelf registration statement
(or any additional registration statement related thereto) and the related
prospectus. The undersigned understands that such information will be relied
upon by the Company in connection with the preparation or amendment of the shelf
registration statement (or any additional registration statement related
thereto) and the related prospectus.
IN WITNESS WHEREOF, the undersigned, by authority duly given,
has caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Beneficial Owner
By: /s/
-------------------------------
Name:
Title:
Dated:
