EXHIBIT 1.1
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INTERLINE BRANDS, INC.
8.125% SENIOR SUBORDINATED NOTES DUE 2014
UNDERWRITING AGREEMENT
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June 9, 2006
▇▇▇▇▇▇ BROTHERS INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
As representatives of the several
underwriters named in SCHEDULE 1 attached hereto,
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Interline Brands, Inc., a New Jersey corporation (the "ISSUER"),
proposes to issue and sell to the several underwriters named in SCHEDULE 1
hereto (the "UNDERWRITERS"), for whom you (the "REPRESENTATIVES") are acting as
representatives, $200,000,000 in aggregate principal amount of its 8.125%
Senior Subordinated Notes Due 2014 (the "NOTES"), which Notes will be
guaranteed by Interline Brands, Inc., a Delaware corporation and sole
shareholder of the Issuer (the "COMPANY"). The Notes also will be guaranteed by
each of the guarantors named in SCHEDULE 2 hereto (the "GUARANTORS"). The
guarantees with respect to the Notes of the Company and each Guarantor are
collectively referred to herein as the "GUARANTEES". The Notes and the
Guarantees are collectively referred to herein as the "SECURITIES." The
Securities are to be issued pursuant to the provisions of an indenture (the
"INDENTURE") to be dated as of June 23, 2006 (the "CLOSING DATE"), among the
Company, the Issuer, the Guarantors and The Bank of New York, as trustee (the
"TRUSTEE"), as supplemented by a supplemental indenture to be dated the Closing
Date to provide for the terms of the Notes (as so supplemented, the
"INDENTURE"). This agreement (the "AGREEMENT") is to confirm the agreement
concerning the purchase of the Securities from the Issuer by the Underwriters.
On the Closing Date, the Company is expected to replace its Amended
and Restated Credit Agreement dated as of December 21, 2004, as amended on July
7, 2005 and August 1, 2005 (the "EXISTING CREDIT FACILITY") with a new credit
facility (which may be an amendment or restatement of the Existing Credit
Facility) (the "NEW CREDIT FACILITY"), as more fully described in the
Prospectus.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY,
THE ISSUER AND THE GUARANTORS. The Company, the Issuer and the Guarantors
listed on the signature pages hereto represent, warrant and agree that:
(a) A registration statement on Form S-3 (File No.
333-134415) relating to the Securities and certain other securities
(i) has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and the rules and regulations (the "RULES AND
REGULATIONS") of the Securities and Exchange Commission (the
"COMMISSION") thereunder; (ii) has been filed with the Commission
under the Securities Act; and (iii) is effective under the Securities
Act. Copies of such registration statement and any amendment thereto
have been delivered or made available by the Company to the
Representatives. As used in this Agreement:
(i) "APPLICABLE TIME" means 3:30 p.m. (New York
City time) on the date of this Agreement;
(ii) "EFFECTIVE DATE" means any date as of which
any part of such registration statement relating to the
Securities became, or is deemed to have become, effective
under the Securities Act in accordance with the Rules and
Regulations;
(iii) "ISSUER FREE WRITING PROSPECTUS" means each
"free writing prospectus" (as defined in Rule 405 of the
Rules and Regulations) prepared by or on behalf of the
Company or used or referred to by the Company in connection
with the offering of the Securities;
(iv) "PRELIMINARY PROSPECTUS" means any
preliminary prospectus relating to the Securities included in
such registration statement or filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations,
including any preliminary prospectus supplement thereto
relating to the Securities;
(v) "PRICING DISCLOSURE PACKAGE" means, as of
the Applicable Time, the most recent Preliminary Prospectus,
together with each Issuer Free Writing Prospectus filed or
used by the Company on or before the Applicable Time, other
than a road show that is an Issuer Free Writing Prospectus
under Rule 433 of the Rules and Regulations, and the
information in which is intended for general distribution to
prospective investors, as evidenced by its being specified in
SCHEDULE 3 to this Agreement (including the term sheet
listing the final terms of the Securities and their offering,
included in SCHEDULE 3 to this Agreement, which is referred
to as the "TERMS COMMUNICATION");
(vi) "PROSPECTUS" means the final prospectus
relating to the Securities, including any prospectus
supplement thereto relating to the Securities, as filed with
the Commission pursuant to Rule 424(b) of the Rules and
Regulations;
(vii) "REGISTRATION STATEMENT" means,
collectively, the various parts of such registration
statement, each as amended as of the Effective Date for such
part, including any Preliminary Prospectus or the Prospectus
and all exhibits to such registration statement;
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(viii) the term "SUBSIDIARY" has the meaning
assigned to it in Section 17 hereof;
(ix) "AMERICAN SANITARY ACQUISITION" means the
Company's acquisition of substantially all of the assets of
American Sanitary Incorporated ("AMERICAN SANITARY") by means
of an acquisition of all of the outstanding equity interests
of AmSan, LLC ("AMSAN") pursuant to the Securities Purchase
Agreement;
(x) "SECURITIES PURCHASE AGREEMENT" means the
Agreement by and among American Sanitary, AmSan, Golder,
Thoma, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ Fund V, L.P., GTCR Associates V, GTCR
Capital Partners, L.P. and the Company dated May 23, 2006 by
which the Company has agreed to effect the American Sanitary
Acquisition.
Any reference to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents incorporated by reference
therein pursuant to Form S-3 under the Securities Act as of the date
of such Preliminary Prospectus or the Prospectus, as the case may be.
Any reference to the "MOST RECENT PRELIMINARY PROSPECTUS" shall be
deemed to refer to the latest Preliminary Prospectus included in the
Registration Statement or filed pursuant to Rule 424(b) prior to or on
the date hereof (including, for purposes hereof, any documents
incorporated by reference therein prior to or on the date hereof). Any
reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any document
filed under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), after the date of such Preliminary Prospectus or the
Prospectus, as the case may be, and incorporated by reference in such
Preliminary Prospectus or the Prospectus, as the case may be; and any
reference to any amendment to the Registration Statement shall be
deemed to include any annual report of the Company on Form 10-K filed
with the Commission pursuant to Section 13(a) or 15(d) of the Exchange
Act after the Effective Date that is incorporated by reference in the
Registration Statement. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or suspending the effectiveness of the Registration
Statement, and no proceeding for such purpose has been instituted or,
to the knowledge of the Company, threatened by the Commission. The
Commission has not notified the Company of any objection to the use of
the form of the Registration Statement.
(b) The Company was a "well-known seasoned issuer" (as
defined in Rule 405) at the most recent eligibility determination date
specified in paragraph (2) of the definition of "well-known seasoned
issuer" eligible to use Form S-3 for the offering of the Securities,
including not having been an "ineligible issuer" (as defined in Rule
405) at any such time or date. The Registration Statement is an
"automatic shelf registration statement" (as defined in Rule 405) and
was filed not earlier than the date that is three years prior to the
Closing Date. No notice of objection of the Commission to the use of
such registration statement or any post-effective amendment thereto
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pursuant to Rule 401(g)(2) under the Securities Act has been received
by the Company. No order suspending the effectiveness of the
Registration Statement has been issued by the Commission and no
proceeding for that purpose or pursuant to Section 8A of the
Securities Act against the Company or related to the offering has been
initiated or, to the knowledge of the Company, threatened by the
Commission.
(c) The Registration Statement complied and will comply
in all material respects on the Effective Date and on the Closing
Date, and any amendment to the Registration Statement filed after the
date hereof will comply in all material respects when filed, to the
requirements of the Securities Act and the Rules and Regulations. The
Preliminary Prospectus complied, and the Prospectus will comply, in
all material respects when filed with the Commission pursuant to Rule
424(b) and on the Closing Date to the requirements of the Securities
Act and the Rules and Regulations. The documents incorporated by
reference in the most recent Preliminary Prospectus or the Prospectus
complied, and any further documents to be filed and so incorporated
will comply, when filed with the Commission, in all material respects
to the requirements of the Exchange Act or the Securities Act, as
applicable, and the rules and regulations of the Commission
thereunder.
(d) Each part of the Registration Statement did not, as
of the Effective Date of such part, 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;
PROVIDED that no representation or warranty is made as to (i)
information contained in or omitted from the Registration Statement in
reliance upon and in conformity with written information furnished to
the Company through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein, which information is
specified in Section 8(e) or (ii) the part of the Registration
Statement that constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "TRUST
INDENTURE ACT"), of the Trustee.
(e) The Prospectus will not, as of its date, or, as
amended and supplemented, if applicable, as of the date of any
amendment or supplement thereto, if applicable, or as of the Closing
Date, contain 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; PROVIDED that no representation or warranty is made as to
information contained in or omitted from the Prospectus in reliance
upon and in conformity with written information furnished to the
Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified in
Section 8(e).
(f) The documents incorporated by reference in the most
recent Preliminary Prospectus or the Prospectus did not, and any
further documents filed and incorporated by reference therein will
not, when filed with the Commission, contain an untrue statement of a
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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.
(g) The Pricing Disclosure Package did not, as of the
Applicable Time, contain 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; PROVIDED that no representation or warranty
is made as to information contained in or omitted from the Pricing
Disclosure Package in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or
on behalf of any Underwriter specifically for inclusion therein, which
information is specified in Section 8(e).
(h) Each Issuer Free Writing Prospectus (including,
without limitation, any road show that is a free writing prospectus
under Rule 433), when considered together with the Pricing Disclosure
Package as of the Applicable Time, did not contain 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; PROVIDED that no
representation or warranty is made as to information relating to any
Underwriter contained in or omitted from any Issuer Free Writing
Prospectus in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on behalf
of any Underwriter specifically for inclusion therein, which
information is specified in Section 8(e).
(i) Each Issuer Free Writing Prospectus complied or will
comply in all material respects to the requirements of the Securities
Act and the Rules and Regulations on the date of first use, and the
Company has complied with any filing requirements applicable to such
Issuer Free Writing Prospectus pursuant to the Rules and Regulations.
Neither the Company nor the Issuer has made any offer relating to the
Securities that would constitute an Issuer Free Writing Prospectus
without the prior consent of the Representatives. The Company has
retained in accordance with the Rules and Regulations all Issuer Free
Writing Prospectuses that were not required to be filed pursuant to
the Rules and Regulations.
(j) The Indenture has been duly qualified under the
Trust Indenture Act.
(k) The Company is a corporation duly incorporated and
validly existing and in good standing under the laws of the state of
Delaware with all requisite corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Pricing Disclosure Package and the Prospectus, and is
duly qualified to conduct its business and is in good standing as a
foreign corporation in each jurisdiction or place where the nature of
its properties or the conduct of its business requires such
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qualification, except where the failure to qualify or to be in good
standing would not reasonably be expected to have a material adverse
effect on the financial condition, business, prospects, properties or
results of operations of the Company, the Issuer and the Company's
other subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
(l) The Issuer and each of the Company's other
subsidiaries (as defined in Section 17 hereof) is a corporation duly
incorporated and validly existing and in good standing under the laws
of its state of organization with full power and authority to own,
lease and operate its properties and to conduct its business as
presently conducted, and is duly qualified to conduct its business and
is in good standing as a foreign corporation in each jurisdiction
where the nature of its properties or the conduct of its business
requires such qualification, except where the failure so to qualify or
to be in good standing does not have a Material Adverse Effect.
(m) All the shares of capital stock or other equity
interest of the Company, the Issuer and their subsidiaries (as defined
in Section 17 hereof) outstanding prior to the issuance of the Notes
have been duly authorized and validly issued and are fully paid and
nonassessable. All of the issued shares of the capital stock or other
equity interest of each subsidiary of the Company are owned directly
or indirectly by the Company (except for directors' qualifying
shares), free and clear of all liens, encumbrances, or claims, except
(i) for the liens on or pledges of the capital stock of certain
subsidiaries of the Company in favor of the lenders under or related
to the Existing Credit Facility or (on or after the Closing Date) the
New Credit Facility, or (ii) for such as are described in the Pricing
Disclosure Package and the Prospectus or (iii) such as would not
reasonably be expected to have a Material Adverse Effect.
(n) The Company, the Issuer and each Guarantor has all
requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement and the Indenture. This
Agreement has been duly authorized, executed and delivered by the
Company, the Issuer and each Guarantor and, assuming due
authorization, execution and delivery by the Underwriters, constitutes
the valid and binding agreement of the Company, the Issuer and each
Guarantor.
(o) The Indenture has been duly authorized by the
Company, the Issuer and each Guarantor, and upon its execution and
delivery by the Company, the Issuer and each Guarantor and, assuming
due authorization, execution and delivery by the Trustee, will
constitute the valid and binding agreement of the Company, the Issuer
and each Guarantor, enforceable against the Company, the Issuer and
each Guarantor in accordance with its terms, subject to (i) the
effects of bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other similar laws relating to or affecting
creditors' rights generally, (ii) general equitable principles
(whether considered in a proceeding in equity or at law) and (iii) an
implied covenant of good faith and fair dealing.
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(p) The Issuer has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Notes. The Notes have been duly authorized by the Issuer and when duly
executed by the Issuer in accordance with the terms of the Indenture
and, assuming due authentication, execution and delivery of the Notes
by the Trustee in accordance with the terms of the Indenture, upon
delivery to the Underwriters against payment therefor in accordance
with the terms hereof, will have been validly issued and delivered,
and will constitute valid and binding obligations of the Issuer
entitled to the benefits of the Indenture, enforceable against the
Issuer in accordance with their terms, subject to (i) the effects of
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and other similar laws relating to or affecting creditors'
rights generally, (ii) general equitable principles (whether
considered in a proceeding in equity or at law), (iii) an implied
covenant of good faith and fair dealing and (iv) except as rights to
indemnity and contribution hereunder may be limited by Federal or
state securities laws or principles of public policy. The Notes will
conform to the description thereof in the Pricing Disclosure Package
and the Prospectus in all material respects.
(q) The Guarantees with respect to the Notes have been
duly authorized by the Company and each Guarantor and, if and when the
Notes are executed and delivered by the Issuer in accordance with the
terms of the Indenture and, assuming due authentication of the Notes
by the Trustee, upon delivery of the Notes to the Underwriters against
payment therefor in accordance with the terms hereof, the Guarantees
will constitute valid and binding obligations of the Company and each
of the Guarantors, enforceable against the Company and each of the
Guarantors in accordance with the terms of the Indenture, subject to
(i) the effects of bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other similar laws relating to or affecting
creditors' rights generally, (ii) general equitable principles
(whether enforcement is considered in a proceeding in equity or at
law) and (iii) an implied covenant of good faith and fair dealing. The
Guarantees will conform to the description thereof in the Pricing
Disclosure Package and the Prospectus in all material respects.
(r) The Company and each Guarantor has all requisite
corporate power and authority to execute, deliver and perform its
obligations under its Guarantee.
(s) Other than as disclosed in the Pricing Disclosure
Package and the Prospectus, the Issuer does not own capital stock or
other equity interests of any corporation or entity which would be
required by the Indenture to be a Guarantor thereunder. All of the
Issuer's domestic subsidiaries other than (i) ▇▇▇▇▇▇▇ of the
Caribbean, Inc. and ▇▇▇▇▇▇▇ Ltd. and any other Foreign Subsidiaries
and Receivables Subsidiaries (each as defined in the Pricing
Disclosure Package and the Prospectus) (the "EXCLUDED SUBSIDIARIES")
are Guarantors under the Indenture.
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(t) The execution, delivery and performance of this
Agreement and the Indenture by the Company, the Issuer and each
Guarantor, the issuance of the Notes by the Issuer, the issuance of
the Guarantees by the Guarantors and the application of the proceeds
from the sale of the Notes as described under "Use of Proceeds" in
each of the Pricing Disclosure Package and the Prospectus will not (i)
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any Material
Agreement (as defined below) (ii) result in any violation of the
provisions of the charter or by-laws (or similar organizational
documents) of the Company or any of its subsidiaries; (iii) impose any
lien, charge or encumbrance upon any property or assets of the Company
and its subsidiaries, or (iv) violate in any material respect any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, any of its
subsidiaries or any properties or assets of the Company or any of its
subsidiaries, except, in the case of clauses (i), (iii) and (iv), for
such matters as would not have a Material Adverse Effect.
(u) No consent, approval, authorization or order of, or
filing or registration with, any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any
properties or assets of the Company or any of its subsidiaries is
required for the execution, delivery and performance of this Agreement
and the Indenture by the Company, the Issuer and each Guarantor, the
issuance of the Notes by the Issuer, the issuance of the Guarantees by
the Guarantors and the application of the proceeds from the sale of
the Notes as described under "Use of Proceeds" in each of the Pricing
Disclosure Package and the Prospectus, except for (i) such consents,
approvals, authorizations, orders or filings that have been obtained
or made, are required to be made under the Securities Act, the
Exchange Act or the Rules and Regulations and will be made in a timely
manner or where the failure to do so would not have a Material Adverse
Effect and (ii) by applicable state securities laws or Blue Sky laws
in connection with the offer and sale of the Notes.
(v) Except as described in the Pricing Disclosure
Package and the Prospectus, there are no contracts, agreements or
understandings between the Company and any person granting such person
the right to require the Company or any of its subsidiaries to file a
registration statement under the Securities Act with respect to any
securities of the Company or any of its subsidiaries owned or to be
owned by such person or to require the Company or any of its
subsidiaries to include such securities in the securities registered
pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company or any of its subsidiaries under the Securities Act.
(w) Neither the Company, the Issuer nor any of the
Guarantors have sold or issued any securities that would be integrated
with the offering of the Securities contemplated by this Agreement
pursuant to the Securities Act, the Rules and Regulations or the
interpretations thereof by the Commission.
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(x) Except as described in the Pricing Disclosure
Package and the Prospectus, neither the Company nor any of its
subsidiaries has sustained, since the date of the latest audited
financial statements included or incorporated by reference in the
Pricing Disclosure Package and the Prospectus, any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree that has
resulted in, or could reasonably be expected to result in, a Material
Adverse Effect, and since such date, there has not been any change in
the capital stock or long-term debt of the Company or any of its
subsidiaries or any adverse change, or any development involving a
prospective adverse change, in or affecting the condition (financial
or otherwise), results of operations, stockholders' equity,
properties, management, business or prospects of the Company and its
subsidiaries taken as a whole, in each case except as could not, in
the aggregate, reasonably be expected to have a Material Adverse
Effect.
(y) Except as disclosed in or specifically contemplated
by the Pricing Disclosure Package and the Prospectus, subsequent to
the date as of which such information was given, (i) neither the
Company nor any of its subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction, in
each case not in the ordinary course of business, except where such
incurrence would not reasonably be expected to have a Material Adverse
Effect, (ii) there has been no Material Adverse Effect, and (iii)
except as disclosed in or contemplated by the Pricing Disclosure
Package and the Prospectus, since the date of the latest audited
consolidated financial statements of the Company included in the
Pricing Disclosure Package and the Prospectus, there has been no (A)
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock (other than the payment of
regular quarterly cash dividends), (B) issuance of securities by the
Company or any of its subsidiaries (other than pursuant to the
Company's employee benefit plans and agreements and the issuance of
the Securities offered hereby) or (C) material increase in short-term
or long-term debt of the Company and its subsidiaries.
(z) The consolidated financial statements, together with
the related notes thereto, set forth or incorporated by reference in
the Pricing Disclosure Package and the Prospectus comply as to form in
all material respects with the requirements of Regulation S-X under
the Securities Act applicable to registration statements on Form S-3
under the Securities Act. Such financial statements fairly present in
all material respects the financial position of the Company at the
respective dates indicated and the results of operations and cash
flows for the respective periods indicated, in each case in accordance
with generally accepted accounting principles ("GAAP"), consistently
applied throughout such periods. The other financial information and
data included or incorporated by reference in the Pricing Disclosure
Package and the Prospectus are, in all material respects, accurately
presented and prepared on a basis consistent with such financial
statements and the books and records of the Company.
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(aa) The net sales and EBITDA financial data of American
Sanitary included in the Pricing Disclosure Package and the Prospectus
is based upon unaudited financial information provided by American
Sanitary to the Company, including financial information that is the
subject of representations and warranties contained in the Securities
Purchase Agreement and related financial schedules provided by
American Sanitary, that the Company does not believe, as of the date
hereof, to be untrue in any material respect.
(bb) The Company, the Issuer and each Guarantor is not,
and as of the Closing Date and, after giving effect to the offer and
sale of the Securities and the application of the proceeds therefrom
as described under "Use of Proceeds" in the Pricing Disclosure Package
and the Prospectus, will not be, required to be registered as an
"investment company" within the meaning of such term under the
Investment Company Act of 1940, as amended (the "INVESTMENT COMPANY
ACT"), and the rules and regulations of the Commission thereunder.
(cc) Except as described in the Pricing Disclosure
Package and the Prospectus, there are no legal or governmental
proceedings pending or, to the knowledge of the Company, the Issuer
and the Guarantors expressly contemplated by, or threatened, against
the Company or any of its subsidiaries or to which any of their
properties are subject, that are not disclosed in the Pricing
Disclosure Package and the Prospectus or incorporated by reference
therein, and that are reasonably likely to have a Material Adverse
Effect or to materially and adversely affect the issuance of the Notes
or the consummation of the other transactions contemplated hereby.
Except as disclosed in the Pricing Disclosure Package and the
Prospectus, neither the Company nor any of its subsidiaries is
involved in any strike, job action or labor dispute with any group of
employees that is reasonably likely to have a Material Adverse Effect
and, to the knowledge of the Company, the Issuer and the Guarantors,
no such action or dispute is threatened.
(dd) Neither the Company nor any of its subsidiaries (i)
is in violation of its certificate of incorporation or bylaws or other
organizational documents, (ii) is in default in any material respect
in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, or other agreement or instrument to which any of them is a
party or by which any of them is bound or to which any of their
respective properties or assets is subject that is material to the
Company's consolidated financial condition or prospects (collectively,
the "MATERIAL AGREEMENTS") or (iii) is in violation in any material
respect of any law, statute or ordinance or any rule, regulation,
injunction or decree of any court or governmental agency to which
their property or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise, or other
governmental authorization or permit necessary to the ownership of its
property or to the conduct of its business, except in the case of (i),
(ii) or (iii), as would not, individually or in the aggregate, have a
Material Adverse Effect.
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(ee) There is and has been no failure on the part of the
Company or any subsidiary of the Company or, to the Company's
knowledge, any of the Company's directors or officers, in their
capacities as such, to comply in all material respects with the
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations promulgated in connection therewith, as would,
individually or in the aggregate, have a Material Adverse Effect.
(ff) The Company and each of its subsidiaries will, on or
prior to the Closing Date, have such permits, licenses, franchises,
certificates, consents, orders and other approvals or authorizations
of any governmental or regulatory authority ("PERMITS") as are
necessary under applicable law to own its properties and to conduct
its businesses in the manner described in the Pricing Disclosure
Package and the Prospectus, except to the extent that the failure to
have such Permits would not reasonably be expected to have a Material
Adverse Effect. The Company and each of its subsidiaries is in
compliance in all material respects with all its material obligations
with respect to the Permits, and, to the knowledge of the Company, no
event has occurred which allows, or after notice or lapse of time
would allow, revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such Permit,
subject in each case to such qualification as may be set forth in the
Pricing Disclosure Package and the Prospectus and except to the extent
that any such revocation, termination or impairment would not
reasonably be expected to have a Material Adverse Effect.
(gg) Except as set forth in the Pricing Disclosure
Package and the Prospectus, the Company and each of its subsidiaries
has good and marketable title to all material real properties and all
other material properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or to be made
thereof by them; and except as disclosed in Pricing Disclosure Package
and the Prospectus, the Company and each of its subsidiaries holds any
material leased real or personal property under valid and enforceable
leases with no exceptions that would materially interfere with the use
made or to be made thereof by them.
(hh) Except as would not reasonably be expected to have a
Material Adverse Effect, the Company and each of its subsidiaries own
or possess adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names, trademark
registrations, service ▇▇▇▇ registrations, copyrights, licenses,
know-how, software, systems and technology (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) necessary for the conduct of their
respective businesses and have no reason to believe that the conduct
of their respective businesses will conflict with, and have not
received any notice of any claim of conflict with, any such rights of
others.
11
(ii) Except as set forth in the Pricing Disclosure
Package and the Prospectus, neither the Company nor any of its
subsidiaries is in violation of any statute, any rule, regulation,
decision or order of any governmental agency or body or any court,
domestic or foreign, relating to the use, presence, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "ENVIRONMENTAL LAWS"), is a current or
former owner or operator of any real property contaminated with any
substance that is subject to any environmental laws, is liable for any
off-site disposal or contamination pursuant to any environmental laws,
or is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in
the aggregate have a Material Adverse Effect; and the Company is not
aware of any pending investigation which might lead to such a claim.
(jj) Neither the Company nor any of its subsidiaries nor,
to the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company or any of its subsidiaries is
currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department ("OFAC") as
would, individually or in the aggregate, have a Material Adverse
Effect; and the Issuer will not directly or indirectly use the
proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to the Company, any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(kk) Except as set forth in the Pricing Disclosure
Package and the Prospectus, there are no contracts, agreements or
understandings between the Company or any subsidiary and any person
that would give rise to a valid claim against the Company, any of its
subsidiaries or any Underwriter for a brokerage commission, finder's
fee or other like payment in connection with the purchase and sale of
the Securities.
Any certificate signed by any officer of the Company, the Issuer or
any Guarantor and delivered to the Representatives or counsel for the
Underwriters in connection with the offering of the Notes shall be deemed a
representation and warranty by the Company, the Issuer or such Guarantor, as to
matters covered thereby, to each Underwriter.
2. PURCHASE AND RESALE OF THE NOTES BY THE UNDERWRITERS. The
Issuer hereby agrees, on the basis of the representations, warranties and
agreements of the Underwriters contained herein and subject to all the terms
and conditions set forth herein, to issue and sell to the Underwriters and,
upon the basis of the representations, warranties and agreements of the
Company, the Issuer and the Guarantors herein contained and subject to all the
terms and conditions set forth herein, each Underwriter agrees, severally and
not jointly, to purchase from the Issuer, at a purchase price of 97.189% of the
principal amount thereof, the principal amount of Notes set forth opposite the
name of such Underwriter in SCHEDULE 1 hereto. The Issuer shall not be
12
obligated to deliver any of the Notes to be delivered hereunder except upon
payment for all of the Notes to be purchased as provided herein.
3. OFFERING OF NOTES BY THE UNDERWRITERS. Upon authorization by
the Representatives of the release of the Notes, the several Underwriters
propose to offer the Notes for sale upon the terms and conditions to be set
forth in the Prospectus.
4. DELIVERY OF AND PAYMENT FOR THE NOTES. Delivery to the
Underwriters of and payment for the Notes shall be made at the office of
Cravath, Swaine & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ at
9:00 A.M., New York time, on the Closing Date, or such other place or time as
you and the Company shall designate. The Notes will be delivered to the
Underwriters against payment by or on behalf of the Underwriters of the
purchase price therefor by wire transfer to such account or accounts as the
Company shall specify prior to the Closing Date or by such means as the parties
hereto shall agree prior to the Closing Date in immediately available funds, by
causing The Depository Trust Company ("DTC") to credit the Notes to the account
of the Underwriters at DTC. The Notes will be evidenced by one or more global
securities in definitive Form (the "GLOBAL NOTES") and/or by additional
definitive securities, and will be registered, in the case of the Global Notes,
in the name of Cede & Co. as nominee of DTC, and in the other cases, in such
names and in such denominations as the Underwriters shall request prior to 9:30
A.M., New York City time, on the second business day preceding the Closing
Date. The Notes to be delivered to the Underwriters shall be made available to
the Underwriters in New York City for inspection and packaging not later than
9:30 A.M., New York City time, on the business day next preceding the Closing
Date.
5. FURTHER AGREEMENTS OF THE COMPANY, THE ISSUER, THE GUARANTORS
AND THE UNDERWRITERS. (a) The Company, the Issuer and each of the Guarantors
agrees:
(i) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than the Commission's close of business on
the second business day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to the
Registration Statement or the Prospectus prior to the Closing Date except
as provided herein; to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment or supplement to
the Registration Statement or the Prospectus has been filed and to furnish
the Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Securities; to advise the Representatives,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the
use of the Prospectus or any Issuer Free Writing Prospectus, of the
suspension of the qualification of the Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding or
13
examination for any such purpose or pursuant to Section 8A of the
Securities Act, of any notice from the Commission objecting to the use of
the form of the Registration Statement or any post-effective amendment
thereto or of any request by the Commission for the amending or
supplementing of the Registration Statement, the Prospectus or any Issuer
Free Writing Prospectus or for additional information; and, in the event
of the issuance of any stop order or of any order preventing or suspending
the use of the Prospectus or any Issuer Free Writing Prospectus or
suspending any such qualification, to use promptly its commercially
reasonable efforts to obtain its withdrawal;
(ii) To pay the applicable Commission filing fees relating to the
Securities within the time required by Rule 456(b)(1);
(iii) To deliver promptly or make available to the Representatives
such number of the following documents as the Representatives shall
reasonably request: (A) conformed copies of the Registration Statement as
originally filed with the Commission and each amendment thereto (in each
case excluding exhibits other than this Agreement), (B) each Preliminary
Prospectus, the Prospectus and any amended or supplemented Prospectus, (C)
each Issuer Free Writing Prospectus and (D) any document incorporated by
reference in any Preliminary Prospectus or the Prospectus; and, if, during
the period (not to exceed nine months) when the delivery of a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the
Securities Act) is required by law in connection with the sale of the
Securities by an Underwriter, any event relating to or affecting the
Company or any of its subsidiaries shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason during such period
it shall be necessary to amend or supplement the Prospectus or to file
under the Exchange Act any document incorporated by reference in the
Prospectus in order to comply with the Securities Act or the Exchange Act,
to notify the Representatives and, upon their request, to file such
document and to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended or supplemented Prospectus
that will correct such statement or omission or effect such compliance;
(iv) During the period specified immediately following clause (D)
of Section 5(a)(iii) above, to file promptly with the Commission any
amendment or supplement to the Registration Statement or the Prospectus
that may, in the judgment of the Company or the Representatives, be
required by the Securities Act or requested by the Commission;
(v) During the period specified immediately following clause (D)
of Section 5(a)(iii) above, prior to filing with the Commission any
amendment or supplement to the Registration Statement or the Prospectus,
any document incorporated by reference in the Prospectus or any amendment
14
to any document incorporated by reference in the Prospectus, to furnish a
copy thereof to the Representatives and counsel for the Underwriters and
obtain the consent of the Representatives to the filing, which consent
shall not be unreasonably withheld;
(vi) Not to make any offer relating to the Securities that would
constitute an Issuer Free Writing Prospectus without the prior written
consent of the Representatives;
(vii) To retain in accordance with the Rules and Regulations all
Issuer Free Writing Prospectuses not required to be filed pursuant to the
Rules and Regulations; and if at any time after the date hereof and prior
to the completion of the distribution of the Notes by the Underwriters,
any events shall have occurred as a result of which any Issuer Free
Writing Prospectus, as then amended or supplemented, would conflict with
the information in the Registration Statement, the most recent Preliminary
Prospectus or the Prospectus or would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or, if for any other reason it shall be
necessary to amend or supplement any Issuer Free Writing Prospectus, to
notify the Representatives and, upon their request, to prepare and furnish
without charge to each Underwriter as many copies as the Representatives
may from time to time reasonably request of an amended or supplemented
Issuer Free Writing Prospectus that will correct such conflict, statement
or omission or effect such compliance;
(viii) Promptly from time to time to take such commercially
reasonable action as the Representatives may reasonably request to qualify
the Securities for offering and sale under the applicable securities laws
of such jurisdictions as the Representatives may reasonably request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Securities; PROVIDED that in connection
therewith the Company or the Issuer shall not be required to (i) qualify
as a foreign corporation in any jurisdiction in which it would not
otherwise be required to so qualify, (ii) file a general consent to
service of process in any such jurisdiction, (iii) subject itself to
taxation in any jurisdiction in which it would not otherwise be subject or
(iv) comply with any other requirements in connection with such
qualification deemed by the Company to be unduly burdensome;
(ix) To use all commercially reasonable efforts to do and perform
all things required to be done and performed under this Agreement by it
prior to or after the Closing Date and to satisfy all conditions precedent
on its part to the delivery of the Notes;
(x) For a period of 30 days from the date of the Prospectus, not
to, directly or indirectly, sell, contract to sell, grant any option to
purchase, issue any instrument convertible into or exchangeable for, or
15
otherwise transfer or dispose of, any debt securities of the Company or
the Issuer in a public or private offering for cash having a maturity of
more than one year from the date of issue of such securities, except with
the prior consent of each of the Representatives, which consent shall not
be unreasonably withheld;
(xi) To comply with all agreements set forth in the representation
letters of the Company to DTC relating to the approval of the Notes by DTC
for "book-entry" transfer and to permit the Notes to be eligible for
clearance and settlement through DTC;
(xii) To apply the net proceeds from the sale of the Securities as
set forth in the Prospectus;
(xiii) During the period that is two years after the Closing Date,
to take such steps as shall be necessary to ensure that the Company does
not become an "investment company" within the meaning of such term under
the Investment Company Act of 1940 and the rules and regulations of the
Commission thereunder; and
(xiv) To not take, directly or indirectly, any action designed to
or that might reasonably be expected to cause or result in stabilization
or manipulation of the price of the Notes to facilitate the sale or resale
of the Notes.
(b) The Company agrees that, unless it has obtained or will
obtain the prior consent of the Representatives, and each Underwriter,
severally and not jointly, agrees with the Company that, unless it has
obtained or will obtain, as the case may be, the prior consent of the
Company, it has not made and will not make any offer relating to the
Securities that would constitute (i) an Issuer Free Writing Prospectus or
(ii) that would otherwise constitute a "free writing prospectus" (as
defined in Rule 405) required to be filed by the Company with the
Commission or retained by the Company under Rule 433; provided that the
prior consent of the parties hereto shall be deemed to have been given in
respect of the Free Writing Prospectuses included in SCHEDULE 3 hereto and
any electronic road show. With respect of any other "free writing
prospectus" that is not included in clauses (i) or (ii) of the preceding
sentence, such "free writing prospectus" shall be provided to the Company
prior to the use thereof. Any such free writing prospectus consented to by
the Representatives or the Company is hereinafter referred to as a
"PERMITTED FREE WRITING PROSPECTUS." The Company agrees that (x) it has
treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus and (y) it has complied
and will comply, as the case may be, with requirements of Rules 164 and
433 applicable to any Permitted Free Writing Prospectus, including in
respect of timely filing with the Commission, legending and record
keeping.
6. EXPENSES. The Company, the Issuer and the Guarantors agree,
whether or not the transactions contemplated by this Agreement are consummated
16
or this Agreement is terminated, to pay all costs, expenses and fees incident
to the performance of its obligations under this agreement, including those in
connection with (a) the authorization, issuance, sale and delivery of the Notes
and any stamp duties or other taxes payable in that connection, and the
preparation and printing of certificates for the Notes; (b) the preparation,
printing and filing under the Securities Act of the Registration Statement
(including any exhibits thereto), any Preliminary Prospectus, the Prospectus,
any Issuer Free Writing Prospectus and any amendment or supplement thereto; (c)
the distribution of the Registration Statement (including any exhibits
thereto), any Preliminary Prospectus, the Prospectus, any Issuer Free Writing
Prospectus and any amendment or supplement thereto, or any document
incorporated by reference therein, all as provided in this Agreement; (d) the
production and distribution of this Agreement, the Indenture and any other
related documents reasonably necessary in connection with the offering,
purchase, sale and delivery of the Securities (but not, however, legal fees and
expenses of counsel to the Underwriters incurred in connection with any of the
foregoing); (e) the fee of the National Association of Securities Dealers, Inc.
(the "NASD") in connection with any review by it of the terms of sale of the
Securities; (f) the qualification of the Securities under the securities laws
of the several jurisdictions as provided in Section 5(a)(ix) and the
preparation, printing and distribution of a Blue Sky Memorandum; (g) the
investor presentations on any "road show" undertaken in connection with the
marketing of the Securities, including expenses associated with any electronic
roadshow; (h) the preparation of certificates for the Notes including, without
limitation, printing and engraving, (i) the fees, disbursements and expenses of
the counsel and accountants for the Company and the Issuer, (j) all fees and
expenses (including fees and expenses of counsel) of the Company and the Issuer
in connection with approval of the Notes by DTC for "book-entry" transfer, and
(k) the fees and expenses of the Trustee, any agent of the Trustee and the
counsel for the Trustee in connection with the Indenture, the Notes and the
Guarantees. It is understood, however, that except as provided in this Section
6 and Sections 8 and 11, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, travel and lodging expenses of
the representatives and officers of the Company and the Issuer, the cost of any
aircraft chartered in connection with the road show, transfer taxes on the
resale of any of the Securities by them, and any advertising expenses, if any,
incurred by them in connection with the offering.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when
made and again on the Closing Date as if made again on such date, of the
representations and warranties of the Company, the Issuer and the Guarantors
contained herein, to the performance by the Company, the Issuer and the
Guarantors of their respective obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 5(a)(i); the Company shall have
complied with all filing requirements applicable to any Issuer Free
Writing Prospectus used or referred to after the date hereof; no stop
order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of the Prospectus or any Issuer Free
Writing Prospectus shall have been issued and no proceeding or examination
17
for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A
under the Securities Act, shall have been initiated or, to the knowledge
of the Company, threatened by the Commission; any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with;
and the Commission shall not have notified the Company of any objection to
the use of the Form of the Registration Statement.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement,
the Prospectus or the Pricing Disclosure Package, or any amendment or
supplement thereto, (i) as of the Effective Date as to the Registration
Statement or any amendment or supplement thereto, (ii) as of its date as
to the Prospectus or as of the date when any supplement or amendment to
the Prospectus is filed as to the Prospectus as further amended or
supplemented and (iii) as of the Applicable Time as to the Pricing
Disclosure Package, contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Notes, the
Guarantees, the Registration Statement, the Prospectus and any Issuer Free
Writing Prospectus, and all other legal matters relating to this Agreement
and the transactions contemplated hereby shall be reasonably satisfactory
in all material respects to counsel for the Underwriters, and the Company,
the Issuer and the Guarantors shall have furnished to such counsel all
documents and information that they may reasonably request to enable them
to pass upon such matters.
(d) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel
to the Company, the Issuer and Guarantors, shall have furnished to the
Representatives its written opinion, addressed to the Underwriters and
dated the Closing Date, substantially in the Form attached hereto as
EXHIBIT A.
(e) Dechert LLP, New Jersey counsel to the Company and the
Issuer, shall have furnished to the Representatives its written opinion,
addressed to the Underwriters and dated the Closing Date, substantially in
the Form attached hereto as EXHIBIT B.
(f) The Representatives shall have received from Cravath, Swaine
& ▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Securities,
the Registration Statement, the Prospectus and the Pricing Disclosure
Package and other related matters as the Representatives may reasonably
require, and the Company, the Issuer and the Guarantors shall have
furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
18
(g) At the time of execution of this Agreement, the
Representatives shall have received from Deloitte & Touche LLP,
independent registered public accountants, a letter, in form and substance
satisfactory to the Representatives, addressed to the Underwriters and
dated the date hereof (i) confirming that they are independent registered
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) stating, as of the date hereof (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the most recent Preliminary Prospectus,
as of a date not more than three days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants' "comfort
letters" to underwriters in connection with registered public offerings.
(h) With respect to the letter of Deloitte & Touche LLP referred
to in the preceding paragraph and delivered to the Representatives
concurrently with the execution of this Agreement (the "INITIAL LETTER"),
the Company shall have furnished to the Representatives a letter (the
"BRING-DOWN LETTER") of such accountants, addressed to the Underwriters
and dated the Closing Date (i) confirming that they are independent
registered 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, (ii) stating, as of the date of the bring-down letter (or,
with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in
the Prospectus, as of a date not more than three days prior to the date of
the bring-down letter), the conclusions and findings of such firm with
respect to the financial information and other matters covered by the
initial letter and (iii) confirming in all material respects the
conclusions and findings set forth in the initial letter.
(i) The Company shall have furnished to the Representatives a
certificate, dated the Closing Date, of the President or any Vice
President and a principal financial or accounting officer of the Company,
in which such officers state on behalf of the Company, to the best of
their knowledge after reasonable investigation, that:
(i) the representations and warranties of the Company,
the Issuer and the Guarantors in this Agreement are true and correct
as of the Closing Date and giving effect to the consummation of the
transactions contemplated by this Agreement;
(ii) the Company, the Issuer and each Guarantor has
complied in all material respects with all of its agreements contained
herein;
19
(iii) the conditions set forth in Sections 7(k), 7(l) and
7(n) of this Agreement have been fulfilled;
(iv) no stop order suspending the effectiveness of the
Registration Statement has been issued; no proceedings or examination
for that purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A
under the Securities Act, have been instituted or, to the knowledge of
such officers, threatened; and the Commission has not notified the
Company of any objection to the use of the form of the Registration
Statement or any post-effective amendment thereto; and
(v) they have carefully examined the Registration
Statement, the Prospectus and the Pricing Disclosure Package, and, in
their opinion, (A) (1) the Registration Statement, as of the Effective
Date, (2) the Prospectus, as of its date and on the Closing Date, or
(3) the Pricing Disclosure Package, as of the Applicable Time, did not
and do not contain any untrue statement of a material fact and did not
and do not omit to state a material fact required to be stated therein
or necessary to make the statements therein (except in the case of the
Registration Statement, in the light of the circumstances under which
they were made) not misleading and (B) since the Effective Date, no
event has occurred that should have been set forth in a supplement or
amendment to the Registration Statement, the Prospectus or any Issuer
Free Writing Prospectus that has not been so set forth.
(j) The Company shall have furnished to the Representatives a
certificate, dated the Closing Date, of the principal financial or
accounting officer of the Company, relating to certain financial data
presented under "The Transactions" in the Prospectus, substantially in
form and substance reasonably satisfactory to the Underwriters in all
respects.
(k) None of the Company, the Issuer nor any of their subsidiaries
shall have sustained, since the date of the latest audited financial
statements included or incorporated by reference in the most recent
Preliminary Prospectus, (i) any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree or (ii) since such date, there shall not have been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any Material Adverse Effect otherwise than as set forth or
contemplated in, or incorporated by reference therein, the most recent
Preliminary Prospectus or the Prospectus, the effect of which, in any such
case described in clause (i) or (ii), is, in the reasonable, good faith
judgment of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Notes being delivered on the Closing Date on the terms and
in the manner contemplated in the Prospectus.
20
(l) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the debt
securities of the Company or the Issuer by any "nationally recognized
statistical rating organization" (as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act), and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the debt securities of the Company or the Issuer.
(m) The Issuer shall have entered into the New Credit Facility,
and provided such opinions, certificates and financial and other
information as the lenders under the New Credit Facility may have
reasonably requested.
(n) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or trading in any
securities of the Company or the Issuer on any exchange or in the
over-the-counter market, shall have been suspended or minimum prices shall
have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction; (ii) a banking moratorium
shall have been declared by federal or state authorities; (iii) the United
States shall have become directly engaged in hostilities, there shall have
been an escalation in hostilities involving the United States or there
shall have been a declaration of a national emergency or war by the United
States; or (iv) there shall have occurred such a material adverse change
in general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such), in each case (i) through (iv), as to make it, in the
judgment of the Representatives, impracticable or inadvisable to proceed
with the public offering, sale or delivery of the Notes being delivered on
the Closing Date on the terms and in the manner contemplated in the
Prospectus.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Underwriters.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company, the Issuer and each Guarantor, jointly and
severally, shall indemnify and hold harmless each Underwriter, its
directors, officers and employees and each person, if any, who controls
any Underwriter within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, but not limited to, any loss, claim, damage,
liability or action relating to purchases and sales of the Securities), to
which that Underwriter, director, officer, employee or controlling person
may become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon,
21
(i) any untrue statement or alleged untrue statement of a material fact
contained in (A) any Preliminary Prospectus, the Registration Statement,
the Prospectus or in any amendment or supplement thereto, (B) any Issuer
Free Writing Prospectus or in any amendment or supplement thereto or (C)
any Permitted Issuer Information used or referred to in any "free writing
prospectus" (as defined in Rule 405) used or referred to by any
Underwriter or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement, the Prospectus, any
Issuer Free Writing Prospectus or in any amendment or supplement thereto
or in any Permitted Issuer Information, any material fact or necessary to
make the statements therein in light of the circumstances under which they
were made not misleading and shall reimburse each Underwriter and each
such director, officer, employee or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by that
Underwriter, director, officer, employee or controlling person in
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred; PROVIDED, HOWEVER, that the Company, the Issuer and the
Guarantors shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based
upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration
Statement, the Prospectus, any Issuer Free Writing Prospectus or in any
amendment or supplement thereto or in any Permitted Issuer Information, in
reliance upon and in conformity with written information concerning such
Underwriter furnished to the Company through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein. The
foregoing indemnity agreement is in addition to any liability which the
Company, the Issuer or the Guarantors may otherwise have to any
Underwriter or to any director, officer, employee or controlling person of
that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, the Issuer, each Guarantor, and each of
their respective directors, officers, and each person, if any, who
controls the Company, the Issuer or such Guarantor within the meaning of
the Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company,
the Issuer or any such director, officer, employee or controlling person
may become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or
supplement thereto, or (ii) the omission or alleged omission to state in
any Preliminary Prospectus, the Registration Statement, the Prospectus,
any Issuer Free Writing Prospectus or in any amendment or supplement
thereto, any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, but
in each case only to the extent that the untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and in conformity with written information concerning such Underwriter
22
furnished to the Company through the Representatives by or on behalf of
that Underwriter specifically for inclusion therein, and shall reimburse
the Company, the Issuer, any Guarantor and any such director, officer or
controlling person for any legal or other expenses reasonably incurred by
the Company, the Issuer, any Guarantor or any such director, officer or
controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred. The foregoing indemnity agreement is
in addition to any liability that any Underwriter may otherwise have to
the Company, the Issuer, any Guarantor or any such director, officer,
employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement of that
action; PROVIDED, HOWEVER, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 8 except to the extent it has been materially prejudiced by such
failure and, PROVIDED FURTHER, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have to an
indemnified party otherwise than under this Section 8. If any such claim
or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to assume the
defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party
of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than
reasonable costs of investigation; PROVIDED, HOWEVER, that the
Representatives shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the reasonable
fees and expenses of such counsel shall be at the expense of such
Underwriter unless (i) the employment of such counsel shall have been
specifically authorized in writing by the Company, (ii) the Company shall
have failed within a reasonable time to assume the defense and employ
counsel, (iii) counsel which has been provided by the Company reasonably
determines that its representation of such Underwriter would present it
with a conflict of interest or (iv) the named parties to any such action
(including any impleaded parties) include both such Underwriter and the
Company, and such Underwriter shall have been advised by counsel that
there may be one or more legal defenses available to it which are
different from or additional to those available to the Company (in which
case the Company shall not have the right to assume the defense of such
action on behalf of such Underwriter, it being understood, however, that
the Company shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable
for the reasonable fees and expenses of more than one separate firm of
23
attorneys (in addition to any local counsel) for all such Underwriters,
which firm shall be designated in writing by ▇▇▇▇▇▇ Brothers Inc. and that
all such reasonable fees and expenses shall be reimbursed as they are
incurred). No indemnifying party shall (i) without the prior written
consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action, suit
or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such
action effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment for the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment in accordance with the provisions of
this Section 8.
(d) If the indemnification provided for in this Section 8 shall
for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company, the Issuer and
the Guarantors, on the one hand, and the Underwriters, on the other, from
the offering of the Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company, the Issuer
and the Guarantors, on the one hand, and the Underwriters, on the other,
with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by
the Company, the Issuer and the Guarantors, on the one hand, and the
Underwriters, on the other, with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering
of the Securities purchased under this Agreement (before deducting
expenses) received by the Company, the Issuer and the Guarantors, on the
one hand, and the total discounts and commissions received by the
Underwriters with respect to the Securities purchased under this
Agreement, on the other hand, bear to the total gross proceeds from the
offering of the Securities under this Agreement, in each case as set forth
in the table on the cover page of the Prospectus, on the other hand. The
relative fault shall be determined by reference to whether the untrue or
alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company, the Issuer, the Guarantors or the Underwriters, the intent of the
parties and their relative knowledge, access to information and
24
opportunity to correct or prevent such statement or omission. The Company,
the Issuer, the Guarantors and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 8(d) were to
be determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as
a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8 shall be deemed to include,
for purposes of this Section 8(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this
Section 8(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
purchased by it exceeds the amount of any damages which such Underwriter
has otherwise paid or become liable to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Section 8(d) are several in
proportion to their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company, the
Issuer and the Guarantors acknowledge that (i) the marketing names of the
Underwriters and the statements with respect to the offering of the
Securities by the Underwriters set forth on the cover page of, (ii) the
legal names of the Underwriters set forth in the table, the concession and
reallowance figures and the paragraphs relating to stabilization by the
Underwriters appearing under the caption "Underwriting" in, and (iii) the
marketing names of the Underwriters set forth on the back cover page of
the Pricing Disclosure Package and the Prospectus are correct and
constitute the only information concerning such Underwriters furnished in
writing to the Company by or on behalf of the Underwriters specifically
for inclusion in any Preliminary Prospectus, the Registration Statement,
the Prospectus, any Issuer Free Writing Prospectus or in any amendment or
supplement thereto or in any Non Prospectus Road Show.
9. DEFAULTING UNDERWRITERS. If, on the Closing Date, any
Underwriter defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Underwriters shall be obligated to
purchase the Securities that the defaulting Underwriter agreed but failed to
purchase on the Closing Date in the respective proportions set forth opposite
the name of each remaining non-defaulting Underwriter in SCHEDULE 1 hereto
bears to the total aggregate principal amount of the Securities set forth
opposite the names of all the remaining non-defaulting Underwriters in SCHEDULE
1 hereto; PROVIDED, HOWEVER, that the remaining non-defaulting Underwriters
shall not be obligated to purchase any of the Securities on the Closing Date if
the principal amount of the Securities that the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the
total aggregate principal amount of the Securities to be purchased on the
Closing Date, and any remaining non-defaulting Underwriter shall not be
25
obligated to purchase more than 110% of the principal amount of the Securities
that it agreed to purchase on the Closing Date pursuant to the terms of Section
2. If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Representatives
who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the Securities to be
purchased on the Closing Date. If the remaining Underwriters or other
underwriters satisfactory to the Representatives do not elect to purchase the
Securities that the defaulting Underwriter or Underwriters agreed but failed to
purchase on the Closing Date, this Agreement shall terminate without liability
on the part of any non-defaulting Underwriter or the Company, except that the
Company, the Issuer and the Guarantors will continue to be liable for the
payment of expenses to the extent set forth in Sections 6 and 11. As used in
this Agreement, the term "Underwriter" includes, for all purposes of this
Agreement unless the context requires otherwise, any party not listed in
SCHEDULE 1 hereto that, pursuant to this Section 9, purchases Securities that a
defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or the Issuer for damages caused by its
default. If other Underwriters are obligated or agree to purchase the
Securities of a defaulting or withdrawing Underwriter, either the
Representatives or the Company may postpone the Closing Date for up to seven
full business days in order to effect any changes that in the opinion of
counsel for the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
10. TERMINATION. The obligations of the Underwriters hereunder
may be terminated by the Representatives by notice given to and received by the
Company prior to delivery of and payment for the Securities if, prior to that
time, any of the events described in Sections 7(k), 7(l) and 7(n) shall have
occurred or if the Underwriters shall decline to purchase the Securities for
any reason permitted under this Agreement.
11. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Issuer shall
fail to tender the Notes for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company, the Issuer or any
Guarantor to perform any agreement on its part to be performed, or because any
other condition of the Underwriters' obligations hereunder required to be
fulfilled by the Company, the Issuer or any Guarantor is not fulfilled, the
Company, the Issuer and the Guarantors will reimburse the Underwriters for all
reasonable out-of-pocket expenses (including the reasonable fees and
disbursements of its counsel) (accompanied by documentation) incurred by the
Underwriters in connection with this Agreement and the proposed purchase of the
Securities, and upon demand the Company, the Issuer and the Guarantors shall
pay the full amount thereof to the Underwriters.
12. RESEARCH ANALYST INDEPENDENCE. The Company, the Issuer and
the Guarantors acknowledge that the Underwriters' research analysts and
research departments are required to be independent from their respective
investment banking divisions and are subject to certain regulations and
internal policies, and that such Underwriters' research analysts may hold views
26
and make statements or investment recommendations and/or publish research
reports with respect to the Company, the Issuer and/or the offering that differ
from the views of their respective investment banking divisions. The Company,
the Issuer and the Guarantors hereby waive and release, to the fullest extent
permitted by law, any claims that the Company, the Issuer or any of the
Guarantors may have against the Underwriters with respect to any conflict of
interest that may arise from the fact that the views expressed by their
independent research analysts and research departments may be different from or
inconsistent with the views or advice communicated to the Company, the Issuer
or the Guarantors by such Underwriters' investment banking divisions. The
Company, the Issuer and the Guarantors acknowledge that each of the
Underwriters is a full service securities firm and as such from time to time,
subject to applicable securities laws, may effect transactions for its own
account or the account of its customers and hold long or short positions in
debt or equity securities of the companies that may be the subject of the
transactions contemplated by this Agreement.
13. NO FIDUCIARY DUTY. The Company, the Issuer and the Guarantors
acknowledge and agree that in connection with this offering, sale of the Notes
or any other services the Underwriters may be deemed to be providing hereunder,
notwithstanding any preexisting relationship, advisory or otherwise, between
the parties or any oral representations or assurances previously or
subsequently made by the Underwriters: (i) no fiduciary or agency relationship
between the Company, the Issuer, the Guarantors and any other person, on the
one hand, and the Underwriters, on the other, exists; (ii) the Underwriters are
not acting as advisors, expert or otherwise, to the Company, the Issuer or the
Guarantors, including, without limitation, with respect to the determination of
the public offering price of the Notes, and such relationship between the
Company, the Issuer and the Guarantors, on the one hand, and the Underwriters,
on the other, is entirely and solely commercial, based on arms-length
negotiations; (iii) any duties and obligations that the Underwriters may have
to the Company, the Issuer or the Guarantors shall be limited to those duties
and obligations specifically stated herein; and (iv) the Underwriters and their
respective affiliates may have interests that differ from those of the Company,
the Issuer and the Guarantors. The Company, the Issuer and the Guarantors
hereby waive any claims that the Company, the Issuer or the Guarantors may have
against the Underwriters with respect to any breach of fiduciary duty in
connection with this offering.
14. NOTICES, ETC. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(i) if to the Underwriters, shall be delivered or sent by mail or
facsimile transmission to ▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate Registration (Fax:
▇▇▇-▇▇▇-▇▇▇▇), with a copy, in the case of any notice pursuant to Section
8(b), to the Director of Litigation, Office of the General Counsel, ▇▇▇▇▇▇
Brothers Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (Fax:
▇▇▇-▇▇▇-▇▇▇▇); or
(ii) if to the Company, the Issuer or the Guarantors, shall be
delivered or sent by mail or facsimile transmission to Interline Brands,
27
Inc. ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (Fax: ▇▇▇-▇▇▇-▇▇▇▇), with a copy to ▇▇▇▇, Weiss,
Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ C, ▇▇▇▇▇▇▇ (Fax: ▇▇▇-▇▇▇-▇▇▇▇);
PROVIDED HOWEVER, that any notice to an Underwriter pursuant to Section (b)
shall be delivered or sent by mail or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to ▇▇▇▇▇▇ Brothers
Inc., which address will be supplied to any other party hereto by ▇▇▇▇▇▇
Brothers Inc. upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement
given or made on behalf of the Underwriters by ▇▇▇▇▇▇ Brothers Inc. on behalf
of the Representatives.
15. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the
Company, the Issuer, the Guarantors and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (A) the representations, warranties, indemnities and
agreements of the Company, the Issuer and the Guarantors contained in this
Agreement shall also be deemed to be for the benefit of the persons, if any,
who control any Underwriter within the meaning of Section 15 of the Securities
Act and (B) the indemnity agreement of the Underwriters contained in Section
8(b) of this Agreement shall be deemed to be for the benefit of the directors,
officers of each of the Company, the Issuer and the Guarantors and any person
controlling the Company, the Issuer and the Guarantors within the meaning of
Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 15, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
16. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company, the Issuer, the Guarantors and the
Underwriters contained in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Securities and shall remain in full force and effect,
regardless of any investigation made by or on behalf of any of them or any
person controlling any of them.
17. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY." For
purposes of this Agreement, (a) "BUSINESS DAY" means each Monday, Tuesday,
Wednesday, Thursday or Friday that is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "SUBSIDIARY" has the meaning set forth in Rule 405.
18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
28
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
20. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[SIGNATURE PAGE FOLLOWS]
29
If the foregoing correctly sets forth the agreement among the Company,
the Issuer, the Guarantors and the Underwriters, please indicate your
acceptance in the space provided for that below.
Very truly yours,
INTERLINE BRANDS, INC., a New Jersey Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
INTERLINE BRANDS, INC., a Delaware Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
WILMAR HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
WILMAR FINANCIAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
GLENWOOD ACQUISITION LLC
by INTERLINE BRANDS, INC., its sole member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
▇▇▇▇▇▇ BROTHERS INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
Acting on behalf of themselves
and as the Representatives of
the several Underwriters named
in SCHEDULE 1 hereto.
By ▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
By ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
SCHEDULE 1
PRINCIPAL AMOUNT OF
MANAGER SECURITIES
---------------------------- -------------------
▇▇▇▇▇▇ Brothers Inc.............................. $ 70,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc....................... 70,000,000
Credit Suisse Securities (USA) LLC............... 30,000,000
Banc of America Securities LLC................... 10,000,000
SunTrust Capital Markets, Inc. .................. 10,000,000
Wachovia Capital Markets, LLC.................... 10,000,000
-------------
Total................................ $ 200,000,000
SCHEDULE 2
SUBSIDIARIES
JURISDICTION OF COMPANY'S DIRECT
FORMATION OR OR INDIRECT GUARANTOR
SUBSIDIARY ORGANIZATION OWNERSHIP (YES/NO)
---------- ------------ --------- --------
Wilmar Holdings, Inc. Delaware 100% Yes
Wilmar Financial, Inc. Delaware 100% Yes
Glenwood Acquisition LLC Delaware 100% Yes
▇▇▇▇▇▇▇ of the Caribbean Puerto Rico 100% No
▇▇▇▇▇▇▇ Ltd. Ontario 100% No
SCHEDULE 3
ISSUER FREE WRITING PROSPECTUS
1. Terms Communication.
EXHIBIT A
(i) The Company, the Issuer and each Guarantor has been duly
incorporated and is validly existing and in good standing under the laws
of the State of Delaware and, based solely on certificates of public
officials in the respective jurisdictions (copies of which have been
delivered to the Underwriters by the Company and Guarantors), the Company,
the Issuer and the Guarantors are duly qualified to do business in each of
the jurisdictions listed on [SCHEDULE 1] to such counsel's opinion. The
Company, the Issuer and each Guarantor has all necessary corporate power
and authority to own and hold its properties and conduct its business as
described in the Prospectus. The Company is the record holder of all of
the issued and outstanding capital stock of the Issuer. The Issuer is the
record holder of all of the issued and outstanding capital stock of each
Guarantor.
(ii) The Indenture has been duly authorized, executed and
delivered by the Company, the Issuer and each Guarantor and is a valid and
legally binding obligation of the Company, the Issuer and each Guarantor,
enforceable in accordance with its terms, except that enforceability may
be subject to bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting creditors'
rights generally and subject to general principles of equity (regardless
of whether enforceability is considered in a proceeding in equity or at
law); and the Indenture conforms in all material respects to its
description contained in the Pricing Disclosure Package and the Prospectus
under the caption "Description of the Notes." The Indenture conforms in
all material respects with the requirements of the Trust Indenture Act and
the rules and regulations of the Commission applicable to an indenture
which is qualified under the Trust Indenture Act.
(iii) The Notes conform in all material respects to the description
thereof in the Pricing Disclosure Package and the Prospectus.
(iv) The Notes, when duly and validly authorized, executed, issued
and delivered by the Issuer against payment as provided in the Agreement,
will constitute valid and legally binding obligations of the Issuer
entitled to the benefits of the Indenture and enforceable against the
Issuer in accordance with their terms, except that enforceability may be
subject to bankruptcy, insolvency, reorganization, fraudulent conveyance
or transfer, moratorium or similar laws affecting creditors' rights
generally and subject to general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at law).
(v) Each Guarantor has duly authorized and delivered its
guarantee of the Notes (each, a "Guarantee") and, when the Notes are duly
issued by the Issuer against payment as provided in the Underwriting
Agreement, the Guarantee of each Guarantor will be a valid and binding
obligation of such Guarantor, enforceable in accordance with its terms,
except that enforceability may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar
laws affecting creditors' rights generally and subject to general
principles of equity (regardless of whether enforceability is considered
in a proceeding in equity or at law); and the Guarantees, when issued and
delivered, will conform in all material respects to the description
thereof contained in the Pricing Disclosure Package and the Prospectus
under the caption "Description of the Notes."
(vi) This Agreement has been duly authorized, executed and
delivered by the Company, the Issuer and each Guarantor.
(vii) No consent, approval, authorization or order of, or filing,
with, any Governmental Authority, which has not been obtained, taken or
made is required under any Applicable Law for the issuance, authentication
or sale of the Securities or the performance by the Company, the Issuer
and the Guarantors of their obligations under this Agreement, the
Securities and the Indenture, other than (i) those that have been obtained
or made under the Securities Act or Trust Indenture Act and (ii) those
that may be required under the Securities Act in connection with the use
of a "free writing prospectus". For purposes of such opinion, the term
"Governmental Authority" means any executive, legislative, judicial,
administrative or regulatory body of the State of New York, the State of
Delaware or the United States of America. For purposes of such opinion,
the term "APPLICABLE LAW" means the General Corporation Law of the State
of Delaware (the "GCL") and the laws, rules and regulations of the United
States of America and the State of New York, in each case which in such
counsel's experience are normally applicable to the transactions of the
type contemplated by this Agreement.
(viii) The issuance and sale of the Notes by the Issuer, the
authorization and issuance of the Guarantees with respect to the Notes,
the authentication of the Notes by the Trustee, the compliance by the
Company, the Issuer and each Guarantor with all the provisions of this
Agreement and the Indenture and the consummation of the transactions
contemplated by them will not (i) breach or result in a default under any
agreement, indenture or instrument listed on [SCHEDULE 2] to such
counsel's opinion or (ii) violate Applicable Law or any judgment, order or
decree of any court or arbitrator known to such counsel, except where the
breach, default or violation could reasonably be expected to have a
Material Adverse Effect, and except that, with respect to this clause
(ii), no opinion will be expressed by such counsel as to the anti-fraud
provisions of any securities laws of any applicable jurisdiction.
(ix) None of the Company, the Issuer, or any Guarantor is, or,
after giving effect to the offering and sale of the Securities and the
application of the proceeds as described in the Prospectus under the
heading "Use of Proceeds", will be required to be registered as an
investment company under the Investment Company Act, and the rules and
regulations of the Commission under that statute.
(x) To such counsel's knowledge, there are no legal proceedings
pending or overtly threatened against the Company or any of its
subsidiaries that are not described in the Pricing Disclosure Package and
the Prospectus or that, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect, or could reasonably be
expected to materially impair the Company's, the Issuer's or any
Guarantor's ability to perform its obligations under this Agreement, the
Securities or the Indenture.
(xi) The statements in the Pricing Disclosure Package and the
Prospectus under the heading "Certain U.S. Federal Income Tax
Considerations," to the extent that they constitute summaries of United
States federal law or regulation or legal conclusions, have been reviewed
by us and fairly summarize the matters described under this heading in all
material respects.
(xii) The Registration Statement became effective under the
Securities Act on [ ], 2006, and thereupon [, assuming prior payment by
the Company of the pay-as-you-go registration fee for the offering of
Securities, upon filing of the Prospectus with the Commission] the
offering of the Securities as contemplated by the Prospectus became
registered under the Securities Act; to such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose, pursuant to Rule 401(g)(2) or
pursuant to Section 8A under the Securities Act, have been instituted or
are pending or contemplated under the Securities Act.
[In addition, such counsel shall deliver a standard 10b-5 statement.]
EXHIBIT B
(i) The Issuer has been duly incorporated and is an existing
corporation in good standing under the laws of the State of New Jersey,
with corporate power and corporate authority to own its properties and
conduct its business as described in the Prospectus and to authorize,
issue and sell the Securities as contemplated by the Indenture and this
Agreement.
(ii) The Indenture and the Notes have been duly authorized,
executed and delivered by the Issuer.
(iii) This Agreement has been duly authorized, executed and
delivered by the Issuer.
(iv) No consent, approval or authorization of, or filing with, any
New Jersey governmental agency or body having jurisdiction over the Issuer
is required in connection with the issuance and sale of the Notes by the
Issuer or in connection with the consummation by the Issuer of the other
transactions contemplated by this Agreement, except (1) as may be required
by state securities or Blue Sky laws, as to which such counsel need not
express any opinion, (2) for such filings and recordings with governmental
authorities as may be required to record or perfect liens and (3) such
consents, approvals, authorizations and filings which, if not obtained,
would not have a Material Adverse Effect.
(v) The execution, delivery and performance of the Indenture,
this Agreement, the issuance and sale of the Notes, in each case will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under (X) the Second Amended and Restated Certificate
of Incorporation of the Issuer or the Second Amended and Restated Bylaws
of the Issuer or (Y) any New Jersey statute, New Jersey rule or New Jersey
regulation (other than state securities or Blue Sky laws, other anti-fraud
laws and fraudulent transfer laws and bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, as to which such counsel need
not express any opinion).