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TERM LOAN AGREEMENT
dated as of JUNE 25, 1997
among
INTERFACE, INC.,
THE LENDERS LISTED HEREIN,
SUNTRUST BANK, ATLANTA,
as Administrative Agent,
THE FIRST NATIONAL BANK OF CHICAGO,
as Syndication Agent,
and
SUNTRUST BANK, ATLANTA,
as Collateral Agent
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TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT made and entered into as of
June 25, 1997, by and among INTERFACE, INC., a Georgia corporation
("Interface"), SUNTRUST BANK, ATLANTA, a banking corporation organized
under the laws of the State of Georgia ("STBA"), THE FIRST NATIONAL BANK
OF CHICAGO, a national banking association ("FNBC"), the other banks and
lending institutions listed on the signature pages hereof, and any
assignees of STBA, FNBC, or such other banks and lending institutions
which become "Lenders" as provided herein (STBA, FNBC, and such other
banks, lending institutions, and assignees referred to collectively
herein as the "Lenders"), SUNTRUST BANK, ATLANTA, in its capacity as
administrative agent for the Lenders, and each successor agent for such
Lenders as may be appointed from time to time pursuant to Article IX
hereof (the "Administrative Agent"), THE FIRST NATIONAL BANK OF CHICAGO,
in its capacity as syndication agent hereunder (the "Syndication Agent";
the Administrative Agent and the Syndication Agent referred to
collectively herein as the "Co-Agents"), and SUNTRUST BANK, ATLANTA, in
its capacity as collateral agent for the Co-Agents and Lenders and each
successor collateral agent as may be appointed from time to time pursuant
to Article IX hereof (the "Collateral Agent");
W I T N E S S E T H:
WHEREAS, Interface has requested that the Lenders make
term loans to Interface in an aggregate principal amount of $75,000,000;
WHEREAS, the Lenders have agreed to make the requested
term loans to Interface, subject to the terms, conditions and
requirements set forth in this Term Loan Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, Interface, the Lenders, the Co-Agents
and the Collateral Agent agree as follows:
ARTICLE I.
DEFINITIONS; CONSTRUCTION
Section 1.01. Definitions. In addition to the other
terms defined herein, the following terms used herein shall have the
meanings herein specified (to be equally applicable to both the singular
and plural forms of the terms defined):
"Accounts Receivable Facilities" shall mean, collectively,
the receivables financing facilities evidenced by the Receivables
Transfer Agreements, the Receivables Sale Agreements and the Receivables
Backup Purchase Agreements pursuant to which (i) certain of the
Consolidated Companies shall sell accounts receivable to Interface SPC,
(ii) Interface SPC shall sell such accounts receivable (or undivided
ownership interests therein) to SPARCC or CIBC, and (iii) under certain
circumstances, Interface SPC shall sell such accounts receivable (or
undivided ownership interests therein) to the Bank Purchasers.
"Adjusted Working Capital" shall mean, as of the date of
any determination (i) the sum of all inventory, prepaid expenses and
accounts receivable of the Consolidated Companies, plus without
duplication (ii) the aggregate outstanding balance of those accounts
receivable previously sold by Interface SPC pursuant to the Accounts
Receivable Facility, minus (iii) the sum of all accounts payable and
accrued expenses of the Consolidated Companies, in each case, determined
on a consolidated basis in conformity with GAAP.
"Adjusted LIBO Rate" shall mean, with respect to each
Interest Period for a Eurodollar Advance, the rate obtained by dividing
(a) LIBOR for such Interest Period by (b) a percentage equal to 1 minus
the then stated maximum rate (stated as a decimal) of all reserves
requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable to any member bank of
the Federal Reserve System in respect of Eurocurrency liabilities as
defined in Regulation D.
"Administrative Agent" shall mean STBA, acting in the
manner and to the extent described in Article IX, and any successor
Administrative Agent appointed pursuant to Article IX hereof.
"Advance" shall mean any principal amount advanced or to
be advanced and outstanding at any time under the Term Loans, which
Advance shall be made or outstanding in U.S. Dollars as a Base Rate
Advance, CD Rate Advance or Eurodollar Advance, as the case may be.
"Affiliate" of any Person means any other Person directly
or indirectly controlling, controlled by, or under common control with,
such Person, whether through the ownership of voting securities, by
contract or otherwise. For purposes of this definition, "control"
(including with correlative meanings, the terms "controlling",
"controlled by", and "under common control with") as applied to any
Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of that
Person.
"Agents" shall mean, collectively, the Co-Agents and the
Collateral Agent.
"Agreement" shall mean this Term Loan Agreement, as the
same may be amended, restated, or supplemented from time to time.
Applicable Margin shall mean, with respect to all
outstanding Term Loans for any day, the applicable percentage determined
from the chart set forth below based on Interface s Funded Debt Coverage
Ratio calculated as of the relevant determination date:
Funded Debt
Coverage Ratio Applicable Margin
Greater than or equal to 4.00 1.00%
Less than 4.00, but greater than
or equal to 3.50 .750%
Less than 3.50, but greater than
or equal to 3.00 .625%
Less than 3.00, but greater than
or equal to 2.50 .500%
Less than 2.50, but greater than
or equal to 2.00 .400%
Less than 2.00 .350%
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Each change in the Applicable Margin resulting from a change in the
Funded Debt Coverage Ratio shall be effective with respect to all
outstanding Term Loans from and after the date that is five (5) Business
Days after the date of delivery to the Administrative Agent of the
financial statements and certificates required by Section 6.07(a), (b),
and (c), as applicable, indicating such change, until the date that is
five (5) Business Days immediately following the next date of delivery of
such financial statements and certificates indicating another such
change. Notwithstanding the foregoing, at any time during which
Interface has failed to deliver the financial statements and certificates
when required by Section 6.07(a), (b), and (c), as applicable, the
Applicable Margin with respect to Term Loans then outstanding shall be
1.00%.
"Asset Sale" shall mean any sale or other disposition (or
a series of related sales or other dispositions), including without
limitation, loss, damage, destruction or taking, by any Consolidated
Company to any Person other than a Consolidated Company, of any property
or asset (including capital stock but excluding the issuance and sale by
Interface of its own capital stock) having an aggregate Asset Value in
excess of $100,000, other than (i) sales made in the ordinary course of
business of any Consolidated Company and (ii) sales of accounts
receivables (or undivided ownership interests therein) of a Consolidated
Company pursuant to the Accounts Receivable Facilities.
"Asset Value" shall mean, with respect to any property or
asset of any Consolidated Company, an amount equal to the greater of
(i) the book value of such property or asset as established in accordance
with GAAP, and (ii) the fair market value of such property or asset as
determined in good faith by the board of directors (or equivalent
governing body in the case of any Foreign Subsidiary) of such
Consolidated Company.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an Eligible Assignee in
accordance with the terms of this Agreement and substantially in the form
of Exhibit H.
"Bank Purchasers" shall mean, collectively, CIBC and each
other financial institution, if any, that becomes a party to the
Receivables Backup Purchase Agreements, and their respective successors
and assigns.
"Bankruptcy Code" shall mean The Bankruptcy Code of 1978,
as amended and in effect from time to time (11 U.S.C. Sec. 101 et seq.).
"Base Rate" shall mean the following rate (with any change
in the Base Rate to be effective as of the date of change of either of
the following rates): the higher of (a) the rate which the
Administrative Agent publicly announces from time to time to be its prime
lending rate, as in effect from time to time, and (b) the Federal Funds
Rate, as in effect from time to time, plus one-half of one percent
(0.50%) per annum. The Administrative Agent's prime lending rate is a
reference rate and does not necessarily represent the lowest or best rate
charged to customers; the Administrative Agent may make commercial loans
or other loans at rates of interest at, above or below the Administrative
Agent's prime lending rate.
"Base Rate Advance" shall mean an Advance made or out-
standing as a portion of the Term Loans bearing interest based on the
Base Rate as provided in Section 3.03(a)(i).
"Bentley" shall mean Bentley Mills, Inc., a Delaware
corporation.
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"Bentley Acquisition" shall mean the acquisition by In-
terface of all the capital stock of Bentley through the consummation of
the transactions described in the Bentley Purchase Agreement, other
purchases of the capital stock of Bentley and, if necessary, the merger
of a Consolidated Company with and into Bentley.
"Bentley Purchase Agreement" shall mean that certain
Agreement for Purchase of Capital Stock dated as of June 8, 1993, among
Interface, Bentley, First Capital Corporation of Chicago, Madison
Dearborn Partners IV, Chrysler Capital Corporation, and Royce Renfroe, as
the same may hereafter be amended, restated, or supplemented from time to
time as permitted by Section 9.13(b), providing for the purchase by
Interface of capital stock of Bentley, as follows: (i) 32,700 shares
(representing 85.7%) of the issued and outstanding shares of Bentley's
Senior Preferred Stock, (ii) 15,621.5 shares (representing 78.5%) of the
issued and outstanding shares of Bentley's Junior Preferred Stock,
(iii) 826,920 shares (representing 76.2%) of the issued and outstanding
shares of Bentley's Class A Common Stock, and (iv) 490,453 shares (repre-
senting 85.8%) of the issued and outstanding shares of Bentley's Class B
Common Stock, together with all additional shares of such capital stock
of each other shareholder of Bentley that subsequently becomes a party to
such Agreement.
"Borrowing" shall mean the incurrence of Advances of one
Type concurrently having the same Interest Period (except as otherwise
provided in Sections 3.09 and 3.10) or the continuation or conversion of
an existing Borrowing or Borrowings in whole or in part.
"Business Day" shall mean any day excluding Saturday,
Sunday and any other day on which banks are required or authorized to
close in Atlanta, Georgia, New York, New York or Chicago, Illinois and,
if the applicable Business Day relates to Eurodollar Advances, on which
trading is not carried on by and between banks in deposits of U.S.
dollars in the applicable interbank Eurodollar market.
"CD Rate Advance" shall mean an Advance made or out-
standing as a portion of the Term Loans, bearing interest based on the
Fixed CD Rate as provided in Section 3.03(a)(ii).
"CIBC" shall mean Canadian Imperial Bank of Commerce, a
banking institution organized and existing under the laws of Canada, and
its successors and assigns.
"Capital Expenditures" shall mean, for any period, the sum
of (i) expenditures (whether paid in cash or accrued as a liability,
including the portion of capital leases originally incurred during such
period that is capitalized on the consolidated balance sheet of the
Consolidated Companies) by the Consolidated Companies during that period
that, in conformity with GAAP, are included in "capital expenditures",
"additions to property, plant or equipment" or comparable items in the
financial statements of the Consolidated Companies, and (ii) to the
extent not included in clause (i) above, expenditures for all net non-
current assets of businesses acquired by the Consolidated Companies
during that period, including all purchase price adjustments, other than
such assets acquired in transactions where all or substantially all of
the consideration paid for such assets consisted of capital stock of a
Consolidated Company.
"Cash Taxes Paid" shall mean, for any fiscal period of
Interface, the provision of the Consolidated Companies for taxes paid as
shown on the income statement of Interface for such period minus any
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increase (or plus any decrease) in the provision for deferred taxes of
the Consolidated Companies as included in the long-term liabilities of
Interface, determined on a consolidated basis in accordance with GAAP.
"Certificate of Deposit Rate" shall mean, with respect to
each Interest Period for a CD Rate Advance, the rate (rounded, if
necessary, to the next higher 1/16 of 1.0%, if the rate is not such a
multiple), as determined by the Administrative Agent at approximately
9:00 A.M. (Atlanta, Georgia time) on the first day of the Interest Period
for which such Certificate of Deposit Rate is to be applicable,
identified on Telerate as the consensus bid rate for secondary
certificates of deposit in an aggregate amount approximately comparable
to the CD Rate Advance to which such Certificate of Deposit Rate is to be
applicable and with a maturity equal to such Interest Period. As of the
date of the execution of this Agreement, such consensus bid rate appears
on page 5 of Telerate. If the foregoing rate is unavailable on Telerate
for any reason, then such rate shall be determined by the Administrative
Agent from the comparable rate quoted on another interest rate reporting
service of recognized standing as designated by the Administrative Agent
to Interface and the Lenders.
"Change in Control" shall mean and be deemed to occur on
the earliest of, and upon any subsequent occurrence of:
(a) at any time during which the holders of
Interface's Class B common stock are entitled to elect a
majority of Interface's board of directors, the members of
the Existing Shareholder Group shall at any time fail to
be the "beneficial owners" (as defined in Rules 13d-3 and
13d-5 under the Securities Exchange Act of 1934 (the
"Exchange Act")) of a majority of the issued and
outstanding shares of Interface's Class B common stock;
(b) at any time during which the holders of
Interface's Class B common stock have ceased to be
entitled to elect a majority of Interface's board of
directors, (i) any "person" or "group" (as such terms are
used in Sections 13(d) and 14(d) of the Exchange Act),
other than the Existing Shareholder Group, shall become
the "beneficial owner" (as defined in Rules 13d-3 and 13d-
5 under the Exchange Act) of more than 35% of the total
capital stock of Interface entitled to vote for the
election of directors (the "Voting Stock"), if at such
time the members of the Existing Shareholder Group (A)
"beneficially own" (as so defined) a lower percentage of
the Voting Stock than such other person or "group" and (B)
do not have the right or ability by voting power, contract
or otherwise to elect or designate for election a majority
of the board of directors of Interface, or (ii) Interface
consolidates with, or merges with or into, another person
or sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets to any
person, or any person consolidates with, or merges with or
into, Interface, in any such event pursuant to a
transaction in which the outstanding Voting Stock of
Interface is converted into or exchanged for cash,
securities or other property, other than any such
transaction where (A) the outstanding Voting Stock of
Interface is converted into or exchanged for (1) Voting
Stock (other than Redeemable Capital Stock) of the
surviving or transferee corporation or (2) cash,
securities and other property in an amount which could
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then be paid by Interface pursuant to Section 7.04, or a
combination thereof, and (B) immediately after such
transaction no "person" or "group" (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act),
excluding the members of the Existing Shareholder Group,
is the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a person shall
be deemed to have "beneficial ownership" of all securities
that such person has the right to acquire, whether such
right is exercisable immediately or only after the passage
of time, upon the happening of an event or otherwise),
directly or indirectly, of more than 50% of the total
Voting Stock of the surviving or transferee corporation;
(c) at any time during any consecutive two-year
period, individuals who at the beginning of such period
constituted the board of directors of Interface (together
with any new directors whose election by such board of
directors or whose nomination for election by the
stockholders of Interface was approved by a vote of 66-
2/3% of the directors then still in office who were either
directors at the beginning of such period or whose
election or nomination for election was previously so
approved) cease for any reason to constitute a majority of
the board of directors of Interface then in office; or
(d) Interface is liquidated or dissolved or adopts a
plan of liquidation.
"Change in Control Provision" shall mean any term or
provision contained in any indenture, debenture, note, or other agreement
or document evidencing or governing Interface Control Debt which
requires, or permits the holder(s) of such Interface Control Debt to
require, that such Interface Control Debt be redeemed, repurchased,
defeased, prepaid or repaid, either in whole or in part, or the maturity
of such Interface Control Debt to be accelerated in any respect, as a
result of a change in ownership of the capital stock of Interface or
voting rights with respect thereto.
"Class B Shareholders' Agreement" shall mean that certain
Voting Agreement for Interface, Inc. Class B Common Stock Shareholders
dated as of April 13, 1993, by and among Ray C. Anderson and
approximately 38 other holders of Class B common stock of Interface,
pursuant to which Ray C. Anderson is entitled to direct the voting of the
shares of Class B common stock subject thereto.
"Collateral Agent" shall mean STBA acting in the capacity
as collateral agent, collateral trustee, pledgee, secured party, or any
similar capacity under any Security Document, any nominee or designee of
STBA acting in such capacity, and any successor collateral agent
appointed from time to time pursuant to Article IX.
"Consolidated Companies" shall mean, collectively, In-
terface and all of its Subsidiaries.
"Consolidated EBITA" shall mean, for any fiscal period of
Interface, an amount equal to (A) the sum for such fiscal period of
Consolidated Net Income (Loss) plus, to the extent subtracted in
determining such Consolidated Net Income (Loss), provisions for taxes
based on income, Consolidated Interest Expense, Subordinated Debentures
Redemption Charge, and amortization of goodwill and deferred financing
costs, minus (B) any items of gain (or plus any items of loss) which were
included in determining such Consolidated Net Income (Loss) and were (x)
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not realized in the ordinary course of business or (y) the result of any
sale of assets.
"Consolidated EBITDA" shall mean, for any fiscal period of
Interface, an amount equal to (i) Consolidated EBITA for such period,
plus (ii) to the extent subtracted in determining Consolidated Net Income
(Loss) for such period, depreciation expense of the Consolidated
Companies determined for such period in conformity with GAAP.
"Consolidated Interest Expense" shall mean, for any fiscal
period of Interface, total interest expense of the Consolidated Companies
(including without limitation, interest expense attributable to
capitalized leases in accordance with GAAP, all capitalized interest, all
commissions, discounts and other fees and charges owed with respect to
bankers acceptance financing, and total interest expense (whether shown
as interest expense, other expense, or as loss and expenses on sale of
receivables) under a receivables purchase facility) determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income (Loss)" shall mean, for any
fiscal period of Interface, the net income (or loss) of the Consolidated
Companies on a consolidated basis for such period (taken as a single
accounting period) determined in conformity with GAAP, but excluding
therefrom (to the extent otherwise included therein) (i) any gains or
losses, together with any related provision for taxes, realized upon any
sale of assets other than in the ordinary course of business, (ii) any
income or loss of any Person accrued prior to the date such Person
becomes a Subsidiary of Interface or is merged into or consolidated with
any Consolidated Company or all or substantially all of such Person's
assets are acquired by any Consolidated Company, and (iii) the income of
any Consolidated Company to the extent that the declaration or payment of
dividends or similar distributions by such Consolidated Company of that
income is not at the time permitted by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation.
"Consolidated Net Worth" shall mean, as of any date of
determination, Shareholders' Equity of Interface, excluding (i) the
effects of foreign currency translation adjustments under Financial
Accounting Standards Board Statement No. 52 as in effect on the date
hereof, and (ii) after-tax gains on the sales of assets outside the
ordinary course of business of the Consolidated Companies and any after-
tax gains with respect to pension reversions, in any case with respect to
(i) and (ii) above, as such adjustments or gains occur subsequent to
December 29, 1991.
"Consolidated Total Liabilities" shall mean, as at any
date of determination, total liabilities of the Consolidated Companies
determined on a consolidated basis in accordance with GAAP.
"Contractual Obligation" of any Person shall mean any
provision of any security issued by such Person or of any agreement,
instrument or undertaking under which such Person is obligated or by
which it or any of the property owned by it is bound.
"Contribution Agreement" shall mean the Contribution
Agreement executed by Interface and each of the Guarantors, substantially
in the form of Exhibit C attached hereto, as the same may be amended,
restated or supplemented from time to time.
"Convertible Preferred Stock" shall mean Interface's
Series A Cumulative Convertible Preferred Stock having an aggregate
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liquidation value of $25,000,000 and 7.0% cumulative dividend, being
convertible into shares of Interface's Class A common stock at the rate
of one share of Class A common stock for each $14.7875 of "conversion
value" of such Preferred Stock (as defined in the Articles of Amendment
of Interface executed with respect to such Preferred Stock and subject to
adjustments as provided therein), and being subject to redemption at the
option of the holders thereof not earlier than June 1, 2003, on the terms
and conditions set forth in such Articles of Amendment.
"Credit Agreement" shall mean the Second Amended and
Restated Credit Agreement dated as of June 25, 1997, among Interface,
Interface Europe B.V., Interface Europe Limited, SunTrust Bank, Atlanta,
as Domestic Agent and Collateral Agent, The First National Bank of
Chicago, as Multicurrency Agent, and the other banks and financial
institutions listed on the signature pages thereof or that otherwise
become a party thereto, as the same may be further amended, restated or
supplemented from time to time.
"Credit Agreement Term Loans" shall mean the "Term Loans"
made to Interface pursuant to Article II of the Credit Agreement.
"Credit Documents" shall mean, collectively, this Agree-
ment, the Notes, the Guaranty Agreements, the Pledge Agreements, and all
other Security Documents.
"Credit Parties" shall mean, collectively, Interface and
the Guarantors (including all Persons that are currently Guarantors and
all Persons who may at any time in the future become Guarantors), and
every other Person who from time to time executes a Security Document
with respect to all or any portion of the Obligations.
"Currency Contracts" shall mean any forward contracts,
futures contracts, foreign exchange contracts, currency swap agreements,
and other similar agreements and arrangements entered into by any
Consolidated Company designed to protect any Consolidated Company against
fluctuations in foreign exchange rates.
"Default" shall mean any condition or event which, with
notice or lapse of time or both, would constitute an Event of Default.
"Distributor Credit Facilities" shall mean, collectively,
the unsecured lines of credit established by retail distributors of
commercial products of the Consolidated Companies to fund such retail
distributors' working capital needs and having maturities in each case no
longer than two (2) years with annual renewals thereafter, as such lines
of credit were in effect immediately prior to the time that Interface or
its Subsidiaries acquired an ownership interest in, or all or a
substantial portion of the assets or business of, such retail
distributors.
"Dollar" and "U.S. Dollar" and the sign "$" shall mean
lawful money of the United States of America.
"Dollar Equivalent" shall mean, with respect to any mon-
etary amount in a currency other than U.S. Dollars, at any time for the
determination thereof, the amount of U.S. Dollars obtained by converting
such currency involved in such computation into U.S. Dollars at the spot
rate for the purchase of U.S. Dollars with the applicable currency as
quoted by FNBC as of the close of business on the date of determination
thereof specified herein or, if the date of determination thereof is not
otherwise specified herein, on the date two applicable Business Days
prior to such determination.
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"Eligible Assignee" shall mean any financial institution
reasonably acceptable to Interface and the Co-Agents.
"Environmental Laws" shall mean all federal, state, local
and foreign statutes and codes or regulations, rules or ordinances
issued, promulgated, or approved thereunder, now or hereafter in effect
(including, without limitation, those with respect to asbestos or
asbestos containing material or exposure to asbestos or asbestos
containing material), relating to pollution or protection of the
environment and relating to public health and safety, relating to
(i) emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals or industrial toxic or hazardous constituents,
substances or wastes, including without limitation, any Hazardous
Substance, petroleum including crude oil or any fraction thereof, any
petroleum product or other waste, chemicals or substances regulated by
any Environmental Law into the environment (including without limitation,
ambient air, surface water, ground water, land surface or subsurface
strata), or (ii) the manufacture, processing, distribution, use, genera-
tion, treatment, storage, disposal, transport or handling of any
Hazardous Substance, petroleum including crude oil or any fraction
thereof, any petroleum product or other waste, chemicals or substances
regulated by any Environmental Law, and (iii) underground storage tanks
and related piping, and emissions, discharges and releases or threatened
releases therefrom, such Environmental Laws to include, without
limitation (i) the Clean Air Act (42 U.S.C. Sec. 7401 et seq.), (ii) the
Clean Water Act (33 U.S.C. Sec. 1251 et seq.), (iii) the Resource
Conservation and Recovery Act (42 U.S.C. Sec. 6901 et seq.), (iv) the Toxic
Substances Control Act (15 U.S.C. Sec. 2601 et seq.), (v) the Comprehensive
Environmental Response Compensation and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act (42 U.S.C. Sec. 9601 et seq.),
and (vi) all applicable national and local hindrance laws (including,
without limitation "hinderwet") or regulations and the specific terms of
hindrance licenses granted to the Heuga Entities and with all national
and local building, zoning, environmental control or other similar laws
or regulations under specific terms of construction licenses (including,
without limitation, "bouwvergunningen").
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended and in effect from time to time.
"ERISA Affiliate" shall mean, with respect to any Person,
each trade or business (whether or not incorporated) which is a member of
a group of which that Person is a member and which is under common
control within the meaning of the regulations promulgated under
Section 414 of the Tax Code.
"Escrow Letter" shall mean a letter agreement between
Interface and the Collateral Agent substantially in the form of Exhibit D
hereto.
"Eurodollar Advance" shall mean an Advance made or out-
standing in U.S. Dollars as a portion of the Term Loans bearing interest
based on the Adjusted LIBO Rate as provided in Section 3.03(a)(iii).
"Event of Default" shall have the meaning provided in
Article VIII.
"Excess Cash Flow" shall mean, for any fiscal year of
Interface (A) the sum of the amounts for such fiscal year of Con-
solidated Net Income (Loss), plus (to the extent subtracted in
determining such Consolidated Net Income (Loss)) depreciation expense,
amortization expense, provisions for deferred tax expense based on income
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(or minus provisions for deferred tax credit, as the case may be), and
other non-cash items reducing Consolidated Net Income (Loss) (or minus
other non-cash items increasing Consolidated Net Income (Loss)), as
determined in accordance with GAAP, all as determined on a consolidated
basis for the Consolidated Companies, minus (B) the sum of (i) Capital
Expenditures for such fiscal year, (ii) the amount by which Adjusted
Working Capital as determined on the last day of such fiscal year exceeds
(or minus the amount by which such Adjusted Working Capital is less than)
Adjusted Working Capital as determined on the last day of the preceding
fiscal year (such changes in Adjusted Working Capital caused by currency
fluctuations to be calculated in accordance with FASB-52), (iii) required
principal payments on the Term Loans pursuant to Section 2.02(b) and
required principal payments on the Credit Agreement Term Loans pursuant
to Section 2.02(b) of the Credit Agreement, during such fiscal year,
(iv) regularly scheduled principal payments on other Indebtedness of the
Consolidated Companies as permitted under Section 7.01 during such fiscal
year, and (v) the total amount of regularly scheduled cash dividends with
respect to capital stock paid by Interface during such fiscal year as
permitted under Section 7.04.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time, and any successor statute thereto.
"Existing Shareholder Group" shall mean (i) for so long as
Ray C. Anderson shall be living and is performing the duties of chairman
of Interface, Ray C. Anderson and each other party to the Class B
Shareholders' Agreement, Daniel T. Hendrix, Charles R. Eitel, and Brian
L. DeMoura, and (ii) at all times thereafter, the individuals listed on
Schedule 8.10; provided that in the case of each individual referred to
in the preceding clauses (i) and (ii), for purposes of this definition
the reference to such individual shall be deemed to include the members
of such individual's immediate family, such individual's estate, and any
trusts established by such individual (whether inter vivos or
testamentary) for the benefit of members of such individual's immediate
family.
"FASB-52" shall mean Financial Accounting Standards Board
Statement No. 52, as in effect on the date of this Agreement, specifying
applicable accounting principles with respect to translation of foreign
currencies.
"Facility" shall mean the credit facility made available
to Interface pursuant to the Term Loan Commitments.
"Federal Funds Rate" shall mean for any period, a fluc-
tuating interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight Federal funds transactions
with member banks of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by the Administrative
Agent.
"Final Maturity Date" shall mean the earlier of (i)
December 31, 2001, and (ii) the date on which all amounts outstanding
under this Agreement have been declared or have automatically become due
and payable pursuant to the provisions of Article VIII.
"FNBC Currency Contract" shall mean the Interest Rate and
Currency Exchange Agreement dated as of June 30, 1992, between Heuga
- 10 -
Nederland B.V. (now Scherpenzeel B.V.) and The First National Bank of
Chicago (acting through its London Branch), together with all exhibits
and schedules thereto and all confirmations of transactions executed
thereunder, as amended by the Amendment to Interest Rate and Currency
Exchange Agreement dated as of January 9, 1995, and as the same have been
and hereafter may be further amended, restated or supplemented from time
to time.
"Fixed CD Rate" shall mean, with respect to each Interest
Period for a CD Rate Advance, the sum of (i) the rate obtained by
dividing (x) the Certificate of Deposit Rate for such Interest Period by
(y) a percentage equal to 1 minus the stated maximum rate (stated as a
decimal) of all reserve requirements as specified in Regulation D
(including, without limitation, any marginal, emergency, supplemental,
special or other reserves) applicable during such Interest Period to new
nonpersonal time deposits in the United States in an amount equal to or
in excess of $100,000 with a maturity comparable to such Interest Period
of any member bank of the Federal Reserve System, plus (ii) the then
daily net annual assessment rate as estimated by the Administrative Agent
for determining the then current annual assessment payable to the Federal
Deposit Insurance Corporation for insuring time deposits of the
Administrative Agent in the United States.
"Fixed Rate Advance" shall mean a CD Rate Advance or
Eurodollar Advance.
"Foreign Plan" shall mean any pension, profit sharing,
deferred compensation, or other employee benefit plan, program or
arrangement maintained by any Foreign Subsidiary which, under applicable
local law, is required to be funded through a trust or other funding
vehicle.
"Foreign Subsidiary" shall mean each Consolidated Company
that is organized under the laws of a jurisdiction other than the United
States of America or any State thereof.
"Funded Debt" shall mean all Indebtedness for money bor-
rowed, Indebtedness evidenced or secured by purchase money Liens,
capitalized leases, conditional sales contracts and similar title
retention debt instruments, and Indebtedness evidenced by bonds,
debentures, notes or other similar instruments, including all current
maturities of such Indebtedness. The calculation of Funded Debt shall
include all Funded Debt of the Consolidated Companies, plus (i) all
Funded Debt of other Persons to the extent guaranteed by a Consolidated
Company, to the extent supported by a letter of credit issued for the
account of a Consolidated Company, or as to which and to the extent which
a Consolidated Company or its assets otherwise have become liable for
payment thereof, (ii) the aggregate outstanding "Investment" of the
purchasers pursuant to the Receivables Sale Agreements, (iii) the
aggregate outstanding "Investment" of the purchasers pursuant to the
Receivables Backup Purchase Agreements plus (without duplication)
(iv) any other amounts due and owing to the Bank Purchasers pursuant to
the Receivables Backup Purchase Agreements.
"Funded Debt Coverage Ratio" shall mean, as of the last
day of any fiscal quarter of Interface, the ratio of (A) Funded Debt as
of such day, to (B) the sum of Consolidated EBITDA for the fiscal quarter
then ending and the immediately preceding three fiscal quarters.
"GAAP" shall mean generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and
- 11 -
statements and pronouncements of the Financial Accounting Standards Board
or in such other statements by such other entity as may be approved by a
significant segment of the accounting profession, which are applicable to
the circumstances as of the date of determination.
"Guarantors" shall mean, collectively, Interface,
Interface Interior Fabrics, Inc. (formerly Guilford of Maine, Inc.),
Guilford (Delaware), Inc., Interface Flooring Systems, Inc., Rockland
React-Rite Inc., Interface Research Corporation, Interface Europe, Inc.,
Pandel, Inc., Interface Asia-Pacific, Inc., Bentley, Prince Street,
Intek, Inc., Toltec Fabrics, Inc., Interface Architectural Resources,
Inc. (formerly C-Tec, Inc.), Flooring Consultants, Inc., Lasher/White
Carpet Company, Inc., B. Shehadi & Sons, Inc., the 1996 Reorganization
Credit Parties, and all other Material Subsidiaries (other than Interface
SPC) that are not Foreign Subsidiaries, and their respective successors
and permitted assigns.
"Guaranty" shall mean any contractual obligation, con-
tingent or otherwise, of a Person with respect to any Indebtedness or
other obligation or liability of another Person, including without
limitation, any such Indebtedness, obligation or liability directly or
indirectly guaranteed, endorsed, co-made or discounted or sold with
recourse by that Person, or in respect of which that Person is otherwise
directly or indirectly liable, including contractual obligations
(contingent or otherwise) arising through any agreement to purchase,
repurchase, or otherwise acquire such Indebtedness, obligation or
liability or any security therefor, or any agreement to provide funds for
the payment or discharge thereof (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise), or to maintain
solvency, assets, level of income, or other financial condition, or to
make any payment other than for value received. The amount of any
Guaranty shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which
guaranty is made or, if not so stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person
is required to perform thereunder) as determined by such Person in good
faith.
"Guaranty Agreement" shall mean the Subsidiary Guaranty
Agreement executed by each of the Guarantors in favor of the Lenders and
the Co-Agents, substantially in the form of Exhibit B, as the same may be
amended, restated or supplemented from time to time.
"Hazardous Substances" shall have the meaning assigned to
that term in the Comprehensive Environmental Response Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Acts of 1986.
"Heuga Entities" shall mean Interface Europe B.V. (for-
merly Interface Heuga B.V.) and all Subsidiaries of Interface Europe B.V.
"Indebtedness" of any Person shall mean, without dupli-
cation (i) all obligations of such Person which in accordance with GAAP
would be shown on the balance sheet of such Person as a liability
(including, without limitation, obligations for borrowed money and for
the deferred purchase price of property or services, and obligations
evidenced by bonds, debentures, notes or other similar instruments);
(ii) all rental obligations under leases required to be capitalized under
GAAP; (iii) all Guaranties of such Person (including contingent
reimbursement obligations under undrawn letters of credit);
(iv) Indebtedness of others secured by any Lien upon property owned by
such Person, whether or not assumed; (v) obligations or other
liabilities under Currency Contracts, Interest Rate Contracts, or similar
- 12 -
agreements or combinations thereof; and (vi) Redeemable Capital Stock of
such Person valued at the greater of its voluntary or involuntary maximum
fixed repurchase price plus accrued dividends. For purposes hereof, the
"maximum fixed repurchase price" of any Redeemable Capital Stock which
does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Redeemable Capital Stock as if such Redeemable
Capital Stock were purchased on any date on which Indebtedness shall be
required to be determined pursuant to this Agreement, and if such price
is based on, or measured by, the fair market value of such Redeemable
Capital Stock, such fair market value shall be determined in good faith
by the board of directors of the issuer of such Redeemable Capital Stock.
"Intercompany Loan Documents" shall mean, collectively,
the promissory notes and all related loan, subordination, and other
agreements relating in any manner to the Intercompany Loans.
"Intercompany Loans" shall mean, collectively, (i) the
loans more particularly described on Schedule 5.20 and (ii) those loans
or other extensions of credit made by any Consolidated Company to another
Consolidated Company satisfying the terms and conditions set forth in
Section 7.01(h) or as may otherwise be approved in writing by the Co-
Agents; provided that, the advances made pursuant to the Receivables
Subordinated Notes shall not constitute Intercompany Loans.
"Interest Coverage Ratio" shall mean the ratio of Con-
solidated EBITA to Consolidated Interest Expense.
"Interest Period" shall have the meaning set forth in
Section 3.04.
"Interest Rate Contracts" shall mean any forward con-
tracts, futures contracts, interest rate exchange agreements, interest
rate cap agreements, interest rate collar agreements, and other similar
agreements and arrangements entered into by any Consolidated Company
designed to protect any Consolidated Company against fluctuations in
interest rates.
"Interface" shall mean Interface, Inc., a Georgia corpo-
ration, its successors and permitted assigns.
"Interface SPC" shall mean Interface Securitization
Corporation, a Delaware corporation, the Consolidated Company organized
as a special purpose corporation (i) to acquire accounts receivable from
other Consolidated Companies pursuant to the Receivables Transfer
Agreements, (ii) to sell such accounts receivable (or undivided ownership
interests therein) to SPARCC or CIBC pursuant to the Receivables Sale
Agreements, and (iii) under certain circumstances, to sell such accounts
receivable (or undivided ownership interests therein) to the Bank
Purchasers pursuant to the Receivables Backup Purchase Agreements, and
such Consolidated Company's successors and permitted assigns.
"Interface Control Debt" shall mean, at any time, debt of
Interface for borrowed money in an aggregate principal amount outstanding
at such time in excess of $10,000,000 which is subject to Change in
Control Provisions, excluding debt of Interface arising under this
Agreement or any Guaranty or Security Document of Interface delivered
pursuant to this Agreement or the Credit Agreement.
"Investment" shall mean, when used with respect to any
Person, any direct or indirect advance, loan or other extension of
credit (other than the creation of receivables in the ordinary course of
- 13 -
business) or capital contribution by such Person (by means of transfers
of property to others or payments for property or services for the
account or use of others, or otherwise) to any Person, or any direct or
indirect purchase or other acquisition by such Person of, or of a
beneficial interest in, capital stock, partnership interests, bonds,
notes, debentures or other securities issued by any other Person.
"Lender" or "Lenders" shall mean STBA, FNBC, the other
banks and lending institutions listed on the signature pages hereof, and
each assignee thereof, if any, pursuant to Section 10.06(c).
"Lending Office" shall mean for each Lender the office
such Lender may designate in writing from time to time to Interface and
the Co-Agents with respect to each Type of Loan.
"Letter of Credit Agreement" shall mean the Amended and
Restated Letter of Credit Agreement dated as of June 25, 1997, among
Interface, Interface Interior Fabrics, Inc. (formerly Guilford of Maine,
Inc.), Interface Flooring Systems, Inc., Bentley, Prince Street, Pandel,
Inc., Interface Research Corporation, Rockland React-Rite, Inc.,
Interface Architectural Resources, Inc. (formerly C-Tec, Inc.), SunTrust
Bank, Atlanta, as L/C Issuer, Domestic Agent, and Collateral Agent, and
the Domestic Syndicated Lenders (as defined in the Credit Agreement), as
the same may hereafter be further amended, restated or supplemented from
time to time.
"Leverage Ratio" shall mean the ratio, expressed as a
percentage, of Funded Debt to Total Capitalization for the Consolidated
Companies.
"LIBOR" shall mean, for any applicable Interest Period
with respect to Eurodollar Advances, the offered rate for deposits in
Dollars, for a period comparable to the Interest Period and in an amount
comparable to the Administrative Agent's portion of such Advances,
appearing on Telerate Page 3750 as of 11:00 A.M. (London, England time)
on the day that is two Business Days prior to the first day of the
Interest Period. If two or more of such rates appear on the Telerate
Page 3750, the rate shall be the arithmetic mean of such rates. If the
foregoing rate is unavailable from the Telerate Page 3750 for any reason,
then such rate shall be determined by the Administrative Agent from the
Reuters Screen LIBO Page or, if such rate is also unavailable on such
service, then on any other interest rate reporting service of recognized
standing designated in writing by the Administrative Agent to Interface
and the other Lenders, rounded, if necessary, to the next higher 1/16 of
1.0%, if the rate is not such a multiple.
"Lien" shall mean any mortgage, pledge, security interest,
lien, charge, hypothecation, assignment, deposit arrangement, title
retention, preferential right, trust or other arrangement having the
practical effect of the foregoing and shall include the interest of a
vendor or lessor under any conditional sale agreement, capitalized lease
or other title retention agreement.
"Margin Regulations" shall mean Regulation G,
Regulation T, Regulation U and Regulation X of the Board of Governors of
the Federal Reserve System, as the same may be in effect from time to
time.
"Material Company" shall mean (i) Interface, (ii) each
Material Subsidiary, and (iii) each joint venture, general partnership,
association, or other business entity in which one or more of the
Consolidated Companies is a general partner, party, or member, and as to
which such Consolidated Company or Companies has become liable, either by
- 14 -
agreement, by operation of law, or otherwise, for obligations and
liabilities thereof in an aggregate amount greater than $10,000,000.
"Material Subsidiary" shall mean (i) each Credit Party
other than Interface, (ii) each other Consolidated Company listed in the
definition of the term "Pledged Stock" in this Section 1.01, but
excluding Guilford of Maine (Canada), Inc., Interface Heuga Singapore Pte
Ltd., Interface Heuga Hong Kong Ltd., and Interface Heuga Australia Pty
Ltd., and (iii) each other Subsidiary of Interface, now existing or
hereafter established or acquired, that at any time prior to the Final
Maturity Date, has or acquires total assets in excess of $10,000,000, or
that holds any assets material to the operations or business of another
Material Subsidiary (including, without limitation, each of Guilford of
Maine (U.K.) Ltd., Guilford of Maine (Canada), Inc., Interface Heuga
Singapore Pte Ltd., Interface Heuga Hong Kong Ltd., and Interface Heuga
Australia Pty Ltd., at such time, if any, as any of them acquires total
assets in excess of $10,000,000 or holds such material assets).
"Materially Adverse Effect" shall mean any materially
adverse change in (i) the business, results of operations, financial
condition, assets or prospects of the Consolidated Companies, taken as a
whole, or (ii) the ability of Interface to perform its respective
obligations under the Credit Documents.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Net Proceeds" shall mean, with respect to any Asset Sale,
all cash, including (i) cash receivables (when received) by way of
deferred payment pursuant to a promissory note, a receivable or otherwise
(other than interest payable thereon), and (ii) with respect to Asset
Sales resulting from the loss, damage, destruction or taking of property,
the proceeds of insurance settlements and condemnation awards (other than
the portion of the proceeds of such settlements and such awards that are
used to repair, replace, improve or restore the item of property in
respect of which such settlement or award was paid provided that the re-
cipient of such proceeds enters into a binding contractual obligation to
effect such repair, replacement, improvement or restoration within
eighteen (18) months of such loss, damage or destruction and completes
such repair, replacement, improvement or restoration within thirty-six
(36) months of such loss, damage, destruction or taking) as and when
received in cash, in either case, received by any Consolidated Company as
a result of or in connection with such transaction, net of reasonable
sale expenses, fees and commissions incurred, and taxes paid or expected
to be payable within the succeeding 36-month period in connection
therewith, and net of any payment required to be made with respect to the
outstanding principal amount of, premium or penalty, if any, and interest
on any Indebtedness (other than the Term Loans) secured by a Lien (to the
extent permitted by Section 7.02) upon the asset sold in such Asset Sale.
"1996 Reorganization Credit Parties" shall mean,
collectively, Guilford of Maine, Inc., a Nevada corporation, Guilford of
Maine Finishing Services, Inc., a Nevada corporation, Guilford of Maine
Decorative Fabrics, Inc., a Nevada corporation, Guilford of Maine
Marketing Co., a Nevada corporation, Intek Marketing Co., a Nevada
corporation, Interface Holding Company, a Nevada corporation, Interface
Americas, Inc., a Georgia corporation, Interface Americas Services, Inc.,
a Georgia corporation, Interface Specialty Resources, Inc., a Nevada
corporation, Re:Source Americas Enterprises, Inc., a Georgia corporation,
Interface Royalty Company, a Nevada corporation, Interface Licensing
Company, a Nevada corporation, Prince Street Royalty Company, a Nevada
- 15 -
corporation, Bentley Royalty Company, a Nevada corporation,
Superior/Reiser Flooring Resources, Inc., a Texas corporation, Quaker
City International, Inc., a Pennsylvania corporation, Commercial Flooring
Systems, Inc., a Pennsylvania corporation, Congress Flooring Corp., a
Massachusetts corporation, and their respective successors and permitted
assigns.
"1996 Reorganization Transactions" shall mean those
transactions more particularly described on Schedule 1.01 attached hereto
and by this reference made a part hereof.
"Notes" shall mean, collectively, the Term Notes.
"Notice of Term Loan Conversion/Continuation" shall mean a
notice given by Interface to the Administrative Agent in respect of the
conversion or continuation of an outstanding portion of the Term Loans
pursuant to Section 2.01(c).
"Obligations" shall mean all amounts owing to any
Co-Agent, Lender, or Collateral Agent pursuant to the terms of this
Agreement or any other Credit Document, including without limitation, all
Term Loans (including all principal and interest payments due
thereunder), fees, expenses, indemnification and reimbursement payments,
indebtedness, liabilities, and obligations of the Credit Parties, direct
or indirect, absolute or contingent, liquidated or unliquidated, now
existing or hereafter arising, together with all renewals, extensions,
modifications or refinancings thereof.
"PBGC" shall mean the Pension Benefit Guaranty Corpora-
tion, or any successor thereto.
"Payment Office" shall mean the office specified as the
"Payment Office" for the Administrative Agent on the signature page of
the Administrative Agent, or such other location as to which the
Administrative Agent shall have given written notice to Interface and its
Co-Agent.
"Permitted Liens" shall mean those Liens expressly per-
mitted by Section 7.02.
"Person" shall mean any individual, partnership, firm,
corporation, association, joint venture, limited liability company, trust
or other entity, or any government or political subdivision or agency,
department or instrumentality thereof.
"Plan" shall mean any "employee benefit plan" (as defined
in Section 3(3) of ERISA), including, but not limited to, any defined
benefit pension plan, profit sharing plan, money purchase pension plan,
savings or thrift plan, stock bonus plan, employee stock ownership plan,
Multiemployer Plan, or any plan, fund, program, arrangement or practice
providing for medical (including post-retirement medical), hospitaliza-
tion, accident, sickness, disability, or life insurance benefits, but
shall exclude any Foreign Plan.
"Pledge Agreements" shall mean, collectively, that certain
Consolidated Amended and Restated Pledge and Security Agreement, that
certain Amended and Restated Agreement of Pledge, and that certain
Amended and Restated Deed of Pledge, executed in favor of the Collateral
Agent, substantially in the forms of Exhibits E-1 through E-3 and the
Pledge and Security Agreement executed by Interface Asia-Pacific, Inc.,
being amended by that certain 1997 Amendment to Pledge and Security
Agreement substantially in the form of Exhibit E-4, in each case
providing for the grant of first priority Liens on the Pledged Stock, as
- 16 -
the same may be further supplemented, amended or restated from time to
time.
"Pledged Stock" shall mean, collectively, (i) all issued
and outstanding capital stock, together with all warrants, stock options,
and other purchase and conversion rights with respect to such capital
stock, of each of Interface Interior Fabrics, Inc. (formerly Guilford of
Maine, Inc.), Guilford (Delaware) Inc., Interface Flooring Systems, Inc.,
Interface Research Corporation, Rockland React-Rite, Inc., Pandel, Inc.,
Interface Europe, Inc., Interface Asia-Pacific, Inc., Bentley, Prince
Street, Intek, Inc., Toltec Fabrics, Inc., Interface Architectural
Resources, Inc. (formerly C-Tec, Inc.), Flooring Consultants, Inc.,
Lasher/White Carpet Company, Inc., B. Shehadi & Sons, Inc., the 1996
Reorganization Credit Parties, and all other Material Subsidiaries of
Interface organized in the United States, and (ii) 66% of all issued and
outstanding capital stock, together with 66% of all warrants, stock
options, and other purchase and conversion rights with respect to such
capital stock, of Europe Limited, Interface Europe B.V., Interface Heuga
Singapore Pte Ltd., Guilford of Maine (Canada), Inc., Interface Flooring
Systems (Canada), Inc., Interface Heuga Hong Kong Ltd., Interface Heuga
Australia Pty Limited, and all other Material Subsidiaries that are
Foreign Subsidiaries directly owned by Interface and/or one or more other
Subsidiaries organized in the United States.
"Prince Street" shall mean Prince Street Technologies,
Ltd., a Georgia corporation.
"Prince Street Acquisition" shall mean the acquisition by
Interface of Prince Street through the consummation of the transactions
described in the Prince Street Acquisition Agreement.
"Prince Street Acquisition Agreement" shall mean the
Acquisition Agreement dated as of December 3, 1993, among Interface,
Robert S. Weiner, Randall J. Hatch, Nancy O'Donnell, John O'Donnell,
Jacqueline A. Colando, Traccton Corp., Prince Street Holding Company,
Steven C. Andrade, and Robert D. Williams, as amended.
"Pro Rata Share" shall mean, with respect to the Term Loan
Commitments of each Lender and each Loan to be made by and each payment
(including, without limitation, any payment of principal,, interest or
fees) to be made to each such Lender, the percentage designated as such
Lender's Pro Rata Share of such Term Loan Commitments, such Term Loans or
such payments, as applicable, set forth under the name of such Lender on
the respective signature page for such Lender, in each case as such Pro
Rata Share may change from time to time as a result of assignments,
amendments, or reductions made pursuant to this Agreement.
"Receivables Backup Purchase Agreements" shall mean the
agreements among Interface SPC, as seller, Interface, as collection
agent, and the Bank Purchasers, as purchasers, providing for the sale by
Interface SPC, and the purchase by the Bank Purchasers, of accounts
receivable (or undivided ownership interests therein) originated by
certain of the Consolidated Companies, as in effect on December 31, 1996,
and as the same may be amended, restated or supplemented from time to
time.
"Receivables Sale Agreements" shall mean the agreements
among Interface SPC, as seller, Interface, as collection agent, SPARCC,
as purchaser, and CIBC, as servicing agent, providing for the sale by
Interface SPC, and the purchase by SPARCC, of accounts receivable (or
undivided ownership interests therein) originated by certain of the
Consolidated Companies.
- 17 -
"Receivables Subordinated Notes" shall mean any and all
subordinated notes executed by Interface SPC from time to time in favor
of Interface and evidencing advances made from time to time by Interface
to Interface SPC in connection with, and pursuant to the terms of, the
Accounts Receivable Facilities, provided that, the aggregate outstanding
principal balance of such notes shall not at any time exceed $40,000,000.
"Receivables Transfer Agreements" shall mean, col-
lectively, the agreement(s) between certain of the Consolidated Compa-
nies, as originators, and Interface SPC, as purchaser, providing for the
sale by such Consolidated Companies, and the purchase by Interface SPC,
of accounts receivable originated by such Consolidated Companies.
"Redeemable Capital Stock" shall mean any shares of any
class or series of capital stock that, either by the terms thereof, by
the terms of any security into which it is convertible or exchangeable,
or by contract or otherwise, is or upon the happening of an event or
passage of time would be, required to be redeemed prior to the Final
Maturity Date or is redeemable at the option of the holder thereof at any
time prior to the Final Maturity Date, or is convertible into or
exchangeable for debt securities at any time prior to the Final Maturity
Date.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be in effect
from time to time.
"Required Lenders" shall mean at any time Lenders holding
at least 66-2/3% of the then aggregate amount of the Term Loans.
"Requirement of Law" for any person shall mean the ar-
ticles or certificate of incorporation and bylaws or other organizational
or governing documents of such Person, and any law, treaty, rule or
regulation, or determination of an arbitrator or a court or other
governmental authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its
property is subject.
"Reuters Screen" shall mean, when used in connection with
any designated page and LIBOR, the display page so designated on the
Reuter Monitor Money Rates Service (or such other page as may replace
that page on that service for the purpose of displaying rates comparable
to LIBOR).
"SPARCC" shall mean Special Purpose Accounts Receivable
Cooperative Corporation, its successors and permitted assigns.
"Security Documents" shall mean, collectively, the Guar-
anty Agreements, the Pledge Agreements, and each other guaranty
agreement, mortgage, deed of trust, security agreement, pledge agreement,
or other security or collateral document guaranteeing or securing the
Obligations, as the same may be amended, restated, or supplemented from
time to time.
"Senior Funded Debt" shall mean Funded Debt minus Subor-
dinated Debt.
"Senior Subordinated Notes" shall mean, collectively, the
unsecured Senior Subordinated Notes Due 2005 issued by Interface, and
guaranteed by certain Subsidiaries of Interface, in the aggregate
principal amount of $125,000,000 (plus the aggregate principal amount, if
- 18 -
any, of such Senior Subordinated Notes issued pursuant to the
underwriters' over-allotment option up to a total amount of $18,750,000),
as more particularly described on the Senior Subordinated Notes
Description, together with any and all "Exchange Notes" (as defined in
the Senior Subordinated Notes Description) issued to holders of such
Senior Subordinated Notes in exchange therefor.
"Senior Subordinated Notes Description" shall mean the
description of the Senior Subordinated Notes as set forth in Exhibit Y
attached hereto and by this reference made a part hereof.
"Senior Subordinated Notes Guarantor" shall mean each
Subsidiary of Interface that is a "Guarantor" with respect to the Senior
Subordinated Notes as provided in the Senior Subordinated Notes
Indenture.
"Senior Subordinated Notes Indenture" shall mean the
Indenture dated as of November 15, 1995, by and among Interface, Bentley,
Guilford (Delaware), Inc., Guilford of Maine, Inc., Interface Asia-
Pacific, Inc., Interface Europe, Inc., Interface Flooring Systems, Inc.,
Interface Research Corporation, Pandel, Inc., Prince Street, Rockland
React-Rite, Inc., and First Union National Bank of Georgia, pursuant to
which Interface issued its Senior Subordinated Notes, as the same has
been or may hereafter be amended or supplemented from time to time.
"Shareholders' Equity" shall mean, with respect to any
Person as at any date of determination, shareholders' equity of such
Person determined on a consolidated basis in conformity with GAAP.
"Significant Subsidiary" shall have the same meaning as in
Rule 1.02(v) of Regulation S-X under the Securities Act of 1933, as
amended.
"Subordinated Debt" shall mean (i) Indebtedness
outstanding pursuant to the Senior Subordinated Notes, and (ii) other
Indebtedness of Interface subordinated to all obligations of Interface or
any other Credit Party arising under this Agreement, the Term Notes, and
the Guaranty Agreements on terms and conditions satisfactory in all
respects to the Co-Agents and the Required Lenders, including without
limitation, with respect to interest rates, payment terms, maturities,
amortization schedules, covenants, defaults, remedies, and subordination
provisions, as evidenced by the written approval of the Co-Agents and the
Required Lenders.
"Subsidiary" shall mean, with respect to any Person, any
corporation or other entity (including, without limitation, partnerships,
joint ventures, and associations) regardless of its jurisdiction of
organization or formation, at least a majority of the total combined
voting power of all classes of voting stock or other ownership interests
of which shall, at the time as of which any determination is being made,
be owned by such Person, either directly or indirectly through one or
more other Subsidiaries.
"Tax Code" shall mean the Internal Revenue Code of 1986,
as amended and in effect from time to time.
"Taxes" shall mean any present or future taxes, levies,
imposts, duties, fees, assessments, deductions, withholdings or other
charges of whatever nature, including without limitation, income,
receipts, excise, property, sales, transfer, license, payroll,
withholding, social security and franchise taxes now or hereafter imposed
- 19 -
or levied by the United States, or any state, local or foreign government
or by any department, agency or other political subdivision or taxing
authority thereof or therein and all interest, penalties, additions to
tax and similar liabilities with respect thereto.
"Telerate" shall mean, when used in connection with any
designated page and the Certificate of Deposit Rate or LIBOR, the display
page so designated on the Dow Jones Telerate Service (or such other page
as may replace that page on that service for the purpose of displaying
rates comparable to the Certificate of Deposit Rate or LIBOR).
"Term Loan Commitment" shall mean, at any time for any
Lender, the amount of such commitment set forth opposite such Lender's
name on the signature pages hereof, as the same may be increased or
decreased from time to time as a result of any repayment of the Term
Loans, any assignment thereof pursuant to Section 10.06, or any amendment
thereof pursuant to Section 10.02.
"Term Loans" shall mean, collectively, the term loans in
the aggregate principal amount of $75,000,000 to be made to Interface by
the Lenders on the Closing Date pursuant to Section 2.01(a).
"Term Notes" shall mean, collectively, the promissory
notes evidencing the Term Loans substantially in the form of Exhibit A
and duly completed in accordance with the terms hereof.
"Total Capitalization" shall mean the sum of Funded Debt
and Consolidated Net Worth for the Consolidated Companies.
"Type" of Borrowing shall mean a Borrowing consisting of
Base Rate Advances, CD Rate Advances, and Eurodollar Advances.
Section 1.02. Accounting Terms and Determination. Un-
less otherwise defined or specified herein, all accounting terms shall be
construed herein, all accounting determinations hereunder shall be made,
all financial statements required to be delivered hereunder shall be
prepared, and all financial records shall be maintained in accordance
with, GAAP, except that financial records of Foreign Subsidiaries may be
maintained in accordance with generally accepted accounting principles in
effect from time to time in the jurisdiction of organization of such
Foreign Subsidiary; provided, however, that compliance with the financial
covenants and calculations set forth in Section 6.08, Article VII, and
elsewhere herein, and in the definitions used in such covenants and
calculations, shall be calculated, made and applied in accordance with
GAAP and such generally accepted accounting principles in such foreign
jurisdictions, as the case may be, as in effect on the date of this
Agreement applied on a basis consistent with the preparation of the
financial statements referred to in Section 5.14 unless and until the
parties enter into an agreement with respect thereto in accordance with
Section 10.13; and provided, further, that for purposes of such financial
covenants and calculations, the Convertible Preferred Stock shall be
considered as capital stock of Interface and not as Funded Debt.
Section 1.03. Other Definitional Terms. The words
"hereof", "herein" and "hereunder" and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Article, Section, Schedule,
Exhibit and like references are to this Agreement unless otherwise
specified.
Section 1.04. Exhibits and Schedules. All Exhibits and
Schedules attached hereto are by reference made a part hereof.
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ARTICLE II.
TERM LOANS
Section 2.01. Amount of Term Loans; Use of Proceeds.
(a) Subject to and upon the terms and conditions herein
set forth, each Lender agrees to make on the Closing Date, a Term Loan to
Interface in an amount equal to its Term Loan Commitment, such Term Loans
to be repaid as set forth in Section 2.02(b). Interface shall not be
entitled to reborrow any amounts repaid with respect to the Term Loans.
(b) The Term Loans shall, at the option of Interface, be
made or continued as, or converted into, part of one or more Borrowings
that shall consist entirely of Base Rate Advances, CD Rate Advances, or
Eurodollar Advances. The aggregate principal amount of each Borrowing of
Term Loans consisting of CD Rate Advances or Eurodollar Advances shall be
not less than $1,000,000 or a greater integral multiple of $100,000, and
the aggregate principal amount of each Borrowing of Term Loans consisting
of Base Rate Advances shall not be less than $300,000 or a greater
integral multiple of $100,000. At no time shall the number of Borrowings
outstanding under the Term Loans exceed eight in either case; provided
that, for the purpose of determining the number of Borrowings outstanding
and the minimum amount for Borrowings resulting from conversions or
continuations, all Borrowings under the Term Loans comprised of Base Rate
Advances shall be considered in each case as one Borrowing.
(c) Whenever Interface desires to convert all or a
portion of an outstanding Borrowing constituting a portion of the Term
Loans, which Borrowing consists of Base Rate Advances, CD Rate Advances
or Eurodollar Advances, into one or more Borrowings consisting of
Advances of another Type, or to continue outstanding a Borrowing
consisting of CD Rate Advances or Eurodollar Advances for a new Interest
Period, it shall give the Administrative Agent at least two (2) Business
Days' prior written notice (or telephonic notice promptly confirmed in
writing) of each Borrowing being converted into or continued as CD Rate
Advances, and at least three (3) Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) of each Borrowing to be
converted into or continued as Eurodollar Advances. Such notice (a
"Notice of Term Loan Conversion/Continuation") shall be given prior to
11:00 a.m. (Eastern time) on the date specified. Each such Notice of
Term Loan Conversion/Continuation shall be irrevocable and shall specify
the aggregate principal amount of the Advances to be converted or
continued, the date of such conversion or continuation, whether the
Advances are being converted into or continued as CD Rate Advances or
Eurodollar Advances and (in the case of Fixed Rate Advances) the Interest
Period applicable thereto. If, upon the expiration of any Interest
Period in respect of any Borrowing, Interface shall have failed, or
pursuant to the following sentence be unable, to deliver the Notice of
Term Loan Conversion/Continuation, Interface shall be deemed to have
elected to convert or continue such Borrowing to a Borrowing consisting
of Base Rate Advances. So long as any Default or Event of Default shall
have occurred and be continuing, no Borrowing may be converted into or
continued as (upon expiration of the current Interest Period) Fixed Rate
Advances. No conversion of any Borrowing of Fixed Rate Advances shall be
permitted except on the last day of the Interest Period in respect
thereof.
(d) The proceeds from the Term Loans shall be used (i) to
repay outstanding "Domestic Revolving Loans" under the Credit Agreement
by an aggregate principal amount equal to $50,000,000, and (ii) to prepay
that portion of the outstanding "Term Loans" under the Credit Agreement
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in an aggregate principal amount equal to $25,000,000 that were otherwise
scheduled to be repaid on December 31, 2001.
Section 2.02. Term Notes; Repayment of Principal.
(a) Interface's obligations to pay the principal of, and
interest on, the Term Loans to each Lender shall be evidenced by the
records of the Administrative Agent and such Lender and by the respective
Term Note payable to such Lender (or the assignor of such Lender)
completed in conformity with this Agreement.
(b) Interface shall repay all outstanding Term Loans in
full on the Final Maturity Date.
Section 2.03. Mandatory Prepayments.
(a) No mandatory prepayment shall be required pursuant to
this Section 2.03(a) until the aggregate amount of Asset Sales occurring
after October 2, 1994 exceeds $10,000,000 (based on the Asset Values
thereof, but excluding in the foregoing computation (i) Asset Sales
resulting from loss, damage, destruction, or taking where the proceeds
thereof are utilized so as to be excluded from the definition of Net
Proceeds, and (ii) Asset Sales occurring as a part of any sale and
leaseback transactions permitted pursuant to Section 7.06). Whenever
such Asset Values shall have equaled or exceeded such amount, the
following prepayments shall be required to be made:
(i) Within ten (10) Business Days after each
date on which any Consolidated Company receives any
Net Proceeds as a result of or in connection with an
Asset Sale by any Consolidated Company, the Term
Loans outstanding under Section 2.01 and the Credit
Agreement Term Loans shall be prepaid on a pro rata
basis by an amount equal to forty percent (40%) of
such Net Proceeds (such amount being subject to
adjustment pursuant to paragraph (c) of this Section
2.03) plus interest accrued and unpaid on the amount
of such prepayment. If immediately prior to any
Asset Sale the aggregate amount of prior Asset Sales
(determined as aforesaid) is less than $10,000,000,
but such Asset Sale causes the $10,000,000 threshold
amount to be exceeded, then forty percent (40%) of a
pro rata portion of the Net Proceeds of such Asset
Sale, based upon the ratio of the amount of the Asset
Value of such Asset Sale in excess of the $10,000,000
threshold to the total Asset Value of such Asset
Sale, shall be applied as set forth in the preceding
sentence; and
(ii) If, within fourteen (14) months following
an Asset Sale described in the preceding clause (i),
the remaining sixty percent (60%) of such Net
Proceeds, or pro rata portion thereof, has neither
been (x) invested in properties and assets that
replace the properties and assets that were the
subject of such Asset Sale, or in properties and
assets that will be used in the businesses of
Interface and its Subsidiaries existing on
November 1, 1995 or in businesses reasonably related
thereto, or (y) used to prepay the Term Loans
outstanding under Section 2.01 and the Credit
Agreement Term Loans, then Interface shall promptly
prepay any and all such remaining amounts (such
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amounts being subject to adjustment pursuant to
paragraph (c) of this Section 2.03) not so invested
or previously prepaid and such amounts shall be
applied as provided in this Section 2.03(a).
Notwithstanding the foregoing, if all or substantially all of the assets
of any Senior Subordinated Notes Guarantor that is a Significant
Subsidiary, or all of the capital stock of any Senior Subordinated Notes
Guarantor that is a Significant Subsidiary, is sold (including by
issuance or otherwise) by Interface or any of its Subsidiaries to any
Person other than Interface or its wholly owned Subsidiaries, then the
entire amount of the Net Proceeds from such transaction shall immediately
be used to prepay the Term Loans and the Credit Agreement Term Loans on a
pro rata basis.
All such prepayments under this Section 2.03(a) shall be
applied in each case against all remaining scheduled amortization
payments on a pro rata basis, without prejudice, however, to the
provisions of Section 2.03(c).
(b) On the date Interface delivers its annual financial
statements pursuant to Section 6.07(a), but in no event later than the
date that occurs one hundred twenty (120) days after the last day of each
fiscal year of Interface, the Term Loans outstanding under Section 2.01
and the Credit Agreement Term Loans shall be prepaid on a pro rata basis
by an amount equal to 25% of the Excess Cash Flow, if any, for such
fiscal year (such amount being subject to adjustment pursuant to
paragraph (c) of this Section 2.03) plus interest accrued and unpaid on
the amount of such prepayment. Such prepayment shall be applied in each
case to principal installment payments of the Term Loans and the Credit
Agreement Term Loans in the inverse order of their respective maturities,
without prejudice, however, to the provisions of Section 2.03(c).
(c) Notwithstanding the provisions of paragraphs (a) and
(b) of this Section 2.03, (i) no mandatory prepayment shall be required
to be made under paragraph (a) or (b) of this Section 2.03 if the amount
under paragraph (a) or (b) (including any amount required to be prepaid
in respect of the Credit Agreement Term Loans) is less than $100,000 in
any instance, and (ii) mandatory prepayment amounts otherwise required
under said paragraphs (a) and (b) (including any amount required to be
prepaid in respect of the Credit Agreement Term Loans) shall be rounded
to nearest multiple of $100,000 (such that, for example, if the portion
of Net Proceeds required to be prepaid pursuant to paragraph (a) is
$250,000 or more, but less than $350,000, the mandatory prepayment amount
under this Section 2.03 shall equal $300,000 plus interest accrued and
unpaid on such amount).
(d) Each mandatory prepayment of Term Loans and Credit
Agreement Term Loans pursuant to this Section 2.03 shall be applied on a
pro rata basis first to Base Rate Advances outstanding under each such
series of Term Loans to the full extent thereof before application to
Fixed Rate Advances outstanding under such series; provided, however,
that, so long as no Default or Event of Default has occurred and is con-
tinuing, in lieu of application of such prepayment to Fixed Rate Advances
prior to the expiration of the respective Interest Periods with respect
thereto, Interface, at its option, may execute an Escrow Letter with
respect to such prepayments and deposit with the Collateral Agent funds
equal to such prepayments for application in accordance with the terms of
such Escrow Letter.
Section 2.04. Designated Senior Indebtedness. Interface
(i) acknowledges and agrees that the Term Loans and all other Obligations
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from time to time owing under this Agreement and the other Credit
Documents are and shall constitute "Senior Indebtedness" for all purposes
under the Senior Subordinated Notes Indenture, and (ii) hereby designates
the Term Loans and all such other Obligations as "Designated Senior
Indebtedness" for all purposes under the Senior Subordinated Notes
Indenture.
ARTICLE III.
GENERAL LOAN TERMS
Section 3.01. Funding Notices. Without in any way
limiting Interface's obligation to confirm in writing any telephonic
notice, each Co-Agent may act without liability upon the basis of
telephonic notice believed by such Co-Agent in good faith to be from
Interface prior to receipt of written confirmation. In each such case,
Interface hereby waives the right to dispute such Co-Agent's record of
the terms of such telephonic notice.
Section 3.02. Disbursement of Funds.
(a) Unless the Administrative Agent shall have been
notified by any Lender prior to the date of a Borrowing that such Lender
does not intend to make available to the Administrative Agent such
Lender's portion of the Borrowing to be made on such date, the
Administrative Agent may assume that such Lender has made such amount
available to such Administrative Agent on such date and such
Administrative Agent may make available to Interface a corresponding
amount. If such corresponding amount is not in fact made available to
the Administrative Agent by such Lender on the date of Borrowing, the
Administrative Agent shall be entitled to recover such corresponding
amount on demand from such Lender together with interest at the customary
rate set by the Administrative Agent for the correction of errors among
banks. If such Lender does not pay such corresponding amount forthwith
upon the Administrative Agent's demand therefor, the Administrative Agent
shall promptly notify Interface, and Interface shall immediately pay such
corresponding amount to the Administrative Agent together with interest
at the rate specified for the Borrowing which includes such amount paid.
Nothing in this subsection shall be deemed to relieve any Lender from its
obligation to fund its Term Loan Commitment hereunder or to prejudice any
rights which Interface may have against any Lender as a result of any de-
fault by such Lender hereunder.
(b) All Borrowings under the Term Loans shall be loaned
by those Lenders participating in the Facility on the basis of their Pro
Rata Share of the Term Loan Commitments. No Lender shall be responsible
for any default by any other Lender in its obligations hereunder, and
each Lender shall be obligated to make the Term Loans provided to be made
by it hereunder, regardless of the failure of any other Lender to fund
its Term Loan Commitments hereunder.
Section 3.03. Interest.
(a) Interface agrees to pay interest in respect of all
unpaid principal amounts of the Term Loans from the respective dates such
principal amounts were advanced to maturity (whether by acceleration,
notice of prepayment or otherwise) at rates per annum equal to the rates
indicated below as applicable to outstanding Advances in accordance with
the terms hereof:
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(i) For a Base Rate Advance--The Base Rate in effect
from time to time;
(ii) For a CD Rate Advance--The relevant Fixed CD
Rate plus the Applicable Margin; and
(iii) For a Eurodollar Advance--The relevant Adjusted
LIBO Rate plus the Applicable Margin.
(b)Overdue principal and, to the extent not prohibited by
applicable law, overdue interest, in respect of the Term Loans and all other
overdue amounts owing hereunder, shall bear interest from each date that such
amounts are overdue:
(i) in the case of overdue principal and interest
with respect to all Term Loans outstanding as Eurodollar
Advances or CD Rate Advances, at the rate otherwise
applicable for the then-current Interest Period plus an
additional one and one-half percent (1 1/2%) per annum;
thereafter at the rate in effect for Base Rate Advances
pursuant to Section 3.03(a)(i) plus an additional one and
one-half percent (1 1/2%) per annum; and
(ii) in the case of overdue principal and interest
with respect to all Term Loans outstanding as Base Rate
Advances and all other Obligations hereunder (other than
Term Loans), at a rate equal to the applicable Base Rate
plus an additional one and one-half percent (1 1/2%) per
annum;
provided that no Term Loan shall bear interest after maturity (whether by
acceleration, notice of prepayment or otherwise) at a rate per annum less
than one and one-half percent (1 1/2%) per annum in excess of the rate of
interest applicable thereto at maturity.
(c) Interest on each Term Loan shall accrue from and
including the date of such Term Loan to but excluding the date of any
repayment thereof. Interest on all outstanding Base Rate Advances shall
be payable quarterly in arrears on the last calendar day of each fiscal
quarter of Interface in each year. Interest on all outstanding Fixed
Rate Advances shall be payable on the last day of each Interest Period
applicable thereto, and, in the case of Fixed Rate Advances having an
Interest Period in excess of 90 days (in the case of CD Rate Advances, if
quoted on the basis of 180 days) or in excess of three months (in the
case of Eurodollar Advances, if quoted on the basis of six months), on
each day which occurs every 90 days or 3 months, as the case may be,
after the initial date of such Interest Period. Interest on all Term
Loans shall be payable on any conversion of any Advance comprising such
Term Loans into an Advance of another Type, prepayment (on the amount
prepaid), at maturity (whether by acceleration, notice of prepayment or
otherwise) and, after maturity, on demand.
(d) The Administrative Agent, upon determining the Fixed
CD Rate or Adjusted LIBO Rate for any Interest Period, shall promptly
notify by telephone (confirmed in writing) or in writing Interface and
the other Lenders. Any such determination shall, absent manifest error,
be final, conclusive and binding for all purposes.
Section 3.04. Interest Periods. In connection with the
making or continuation of, or conversion into, each Borrowing of Fixed
Rate Advances, Interface shall select an interest period (each an
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"Interest Period") to be applicable to such Advances, which Interest
Period shall (x) in the case of CD Rate Advances, be either a 30, 60, 90
or 180 day period or (y) in the case of Eurodollar Advances, be either a
1, 2, 3 or 6 month period; provided that:
(i) The initial Interest Period for any Borrowing
consisting of any such Advance shall commence on the date
of such Borrowing (including the date of any conversion
from a Borrowing consisting of an Advance of another Type)
and each Interest Period occurring thereafter in respect
of such Borrowing shall commence on the day on which the
next preceding Interest Period expires;
(ii) If any Interest Period would otherwise expire on
a day which is not a Business Day, such Interest Period
shall expire on the next succeeding Business Day, provided
that if any Interest Period in respect of a Eurodollar
Advance would otherwise expire on a day that is not a
Business Day but is a day of the month after which no
further Business Day occurs in such month, such Interest
Period shall expire on the next preceding Business Day;
(iii) Any Interest Period in respect of a Eurodollar
Advance which begins on a day for which there is no nu-
merically corresponding day in the calendar month at the
end of such Interest Period shall, subject to part (iv)
below, expire on the last Business Day of such calendar
month;
(iv) No Interest Period shall extend beyond any date
upon which any principal payment is due with respect to
the Term Loans, unless the aggregate principal amount of
Term Loans that are not Fixed Rate Advances, or that have
Interest Periods which will expire on or before the date
of the respective payment or prepayment, is equal to or in
excess of the amount of any such principal payments or
prepayments to be made;
(v) The Interest Period for a Fixed Rate Advance
which is converted pursuant to Section 3.09(b) shall
commence on the date of such conversion and shall expire
on the date on which the Interest Periods for the Fixed
Rate Advances of the other Lenders which were not con-
verted expires; and
(vi) No Interest Period with respect to the Term
Loans shall extend beyond the Final Maturity Date.
Section 3.05. Fees. Interface shall pay to the
Administrative Agent and the Syndication Agent a quarterly administrative
fee, payable in advance in the respective amounts previously agreed in
writing by Interface.
Section 3.06. Voluntary Prepayments of Borrowings.
(a) Interface may, at its option, prepay Borrowings
consisting of Base Rate Advances, at any time in whole, or from time to
time in part, in amounts aggregating $250,000 or any greater integral
multiple of $1000, by paying the principal amount to be prepaid together
with interest accrued and unpaid thereon to the date of prepayment.
Those Borrowings consisting of Fixed Rate Advances may be prepaid, at
Interface's option, in whole, or from time to time in part, in the
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respective minimum amounts and multiples set forth in Section 2.01(b), as
applicable to the Type of Advance, by paying the principal amount to be
prepaid, together with interest accrued and unpaid thereon to the date of
prepayment, and all compensation payments pursuant to Section 3.12 if
such prepayment is made on a date other than the last day of an Interest
Period applicable thereto. Each such optional prepayment shall be
applied in accordance with Section 3.06(c) below.
(b) Interface shall give written notice (or telephonic
notice confirmed in writing) to the Administrative Agent of any intended
prepayment pursuant to Section 3.06(a), (i) not less than one Business
Day prior to any prepayment of Base Rate Advances, (ii) not less than two
Business Days prior to any prepayment of CD Rate Advances, and (iii) not
less than three Business Days prior to any prepayment of Eurodollar
Advances. Such notice, once given, shall be irrevocable. Upon receipt
of such notice of prepayment, the Administrative Agent shall promptly
notify each Lender whose Advance constitutes a portion of such Borrowing
of the contents of such notice and of such Lender's share of such
prepayment.
(c) Interface may designate the Types of Advances and the
specific Borrowings that are to be prepaid as part of any prepayment
pursuant to Section 3.06(b), provided that (i) if any prepayment of Fixed
Rate Advances made pursuant to a single Borrowing shall reduce the
outstanding Advances made pursuant to such Borrowing to an amount less
than $1,000,000, such Borrowing shall immediately be converted into Base
Rate Advances; and (ii) each prepayment made pursuant to a single
Borrowing shall be applied pro rata among the Term Loans comprising such
Borrowing. In the absence of a designation by Interface, the
Administrative Agent shall, subject to the foregoing, make such
designation in its sole discretion. All voluntary prepayments shall be
applied to the payment of interest before application to principal and
shall be applied against scheduled amortization payments in the inverse
order of maturity.
Section 3.07. Payments, etc.
(a) Except as otherwise specifically provided herein, all
payments under this Agreement and the other Credit Documents shall be
made without defense, set-off or counterclaim to the Administrative Agent
not later than 11:00 A.M. (Eastern time) on the date when due and shall
be made in Dollars in immediately available funds at its Payment Office.
(b) (i) Any and all payments by Interface hereunder or
under the Term Notes shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender, taxes imposed on or
measured by its net income, and franchise taxes and branch profit taxes
imposed on it (A) by the jurisdiction under the laws of which such Lender
is organized or any political subdivision thereof and, in the case of
each Lender, taxes imposed on or measured by its net income, and
franchise taxes and branch profit taxes imposed on it, by the ju-
risdiction of such Lender's appropriate Lending Office or any political
subdivision thereof, and (B) by a jurisdiction in which any payments are
to be made by Interface hereunder, other than the United States of
America or any political subdivision of any thereof, and that would not
have been imposed but for the existence of a connection between such
Lender and the jurisdiction imposing such taxes (other than a connection
arising as a result of this Agreement or the transactions contemplated by
this Agreement), except in the case of taxes described in this
clause (B), to the extent such taxes are imposed as a result of a change
- 27 -
in the law or regulations of any jurisdiction or any applicable treaty or
regulations or in the official interpretation of any such law, treaty or
regulations by any governmental authority charged with the interpretation
or administration thereof after the date of this Agreement (all such
excluded net income taxes, franchise taxes and branch profit taxes
collectively referred to as the "Excluded Taxes"; all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities
being collectively referred to in this Section 3.07(b) as "Taxes"). If
Interface shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Term Note to any Lender, (x)
the sum so payable shall be increased by such amount (the "Gross-up
Amount") as may be necessary so that after making all required deductions
(including deductions with respect to Taxes owed by such Lender on the
Gross-up Amount payable under this Section 3.07(b)(i)) such Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (y) Interface shall make such deductions, and (z)
Interface shall pay the full amount deducted to the relevant taxation au-
thority or other authority in accordance with applicable law.
(ii) Interface will indemnify each Lender for the full
amount of Taxes (together with any Taxes or Excluded Taxes owed by such
Lender applicable to the Gross-up Amount payable under clause (x) of
Section 3.07(b)(i) or on the indemnification payments made by Interface
under this Section 3.07(b)(ii), but without duplication thereof), and any
liability (including penalties, interest and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or such Excluded Taxes
were correctly or legally asserted, so as to compensate such Lender for
any loss, cost, expense or liability incurred as a consequence of any
such Taxes. Payment pursuant to such indemnification shall be made
within 10 Business Days from the date such Lender makes written demand
therefor.
(iii) Within 30 days after the date of Interface's payment
of Taxes, Interface will furnish to the relevant Lender, at its
appropriate Lending Office, the original or a certified copy of a receipt
evidencing payment thereof.
(iv) Each Lender that is a foreign Person (i.e., a Person
other than a United States Person as defined in the Internal Revenue Code
of 1986, as amended) hereby agrees that:
(A) it shall, prior to the time it becomes a Lender
hereunder, deliver to Interface:
(1) for each Lending Office located in the
United States of America, three (3) accurate and
complete signed originals of Internal Revenue Service
Form 4224 or any successor thereto ("Form 4224"),
and/or
(2) for each Lending Office located outside the
United States of America, three (3) accurate and com-
plete signed originals of Internal Revenue Service
Form 1001 or any successor thereto ("Form 1001");
in each case indicating that such Lender, on the date of
delivery thereof, is entitled to receive payments of
principal, interest and fees for the account of such
Lending Office under this Agreement and the Term Notes,
free from withholding of United States Federal income tax;
provided, that if the Form 4224 or Form 1001, as the case
may be, supplied by a Lender fails to establish a complete
exemption from United States withholding tax as of the
- 28 -
date such Lender becomes a Lender, such Lender shall,
within 15 days after a written request from Interface, de-
liver to Interface the forms or other documents necessary
to establish a complete exemption from United States
withholding tax as of such date;
(B) if at any time such Lender changes its Lending
Office or selects an additional Lending Office, it shall,
at the same time or reasonably promptly thereafter (but
only to the extent the forms previously delivered by it
hereunder are no longer effective) deliver to Interface in
replacement for the forms previously delivered by it
hereunder:
(1) for such changed or additional Applicable
Lending Office located in the United States of
America, three (3) accurate and complete signed
originals of Form 4224; or
(2) otherwise, three (3) accurate and complete
signed originals of Form 1001;
in each case indicating that such Lender is on the date of
delivery thereof entitled to receive payments of
principal, interest and fees for the account of such
changed or additional Lending Office under this Agreement
and the Term Notes, free from withholding of United States
Federal income tax.
(v) In addition to the documents to be furnished pursuant
to Section 3.07(b)(iv), each Lender shall, promptly upon the reasonable
written request of Interface to that effect, deliver to Interface such
other accurate and complete forms or similar documentation as such Lender
is legally able to provide and as may be required from time to time by
any applicable law, treaty, rule or regulation of any jurisdiction in
order to establish such Lender's tax status for withholding purposes or
as may otherwise be appropriate to eliminate or minimize any Taxes on
payments under this Agreement or the Term Notes. Each Lender furnishing
forms to Interface pursuant to the requirements of Section 3.07(b)(iv)
and this clause (v), shall furnish copies of such forms to the
Administrative Agent at the same time delivery of such forms is made to
Interface.
(vi) Interface shall not be required to pay any amounts
pursuant to Section 3.07(b)(i) or (ii) to any Lender for the account of
any Lending Office of such Lender in respect of any United States
withholding taxes payable hereunder (and Interface, if required by law to
do so, shall be entitled to withhold such amounts and pay such amounts to
the United States Government) if the obligation to pay such additional
amounts would not have arisen but for a failure by such Lender to comply
with its obligations under Section 3.07(b)(iv), and such Lender shall not
be entitled to exemption from deduction or withholding of United States
Federal income tax in respect of the payment of such sum by Interface
hereunder for the account of such Lending Office for, in each case, any
reason other than a change in United States law or regulations or any
applicable tax treaty or regulations or in the official interpretation of
any such law, treaty or regulations by any governmental authority charged
with the interpretation or administration thereof (whether or not having
the force of law) after the date such Lender became a Lender hereunder.
(vii) Within sixty (60) days of the written request of
Interface, each Lender shall execute and deliver such certificates, forms
- 29 -
or other documents, which can be reasonably furnished consistent with the
facts and which are reasonably necessary to assist in applying for
refunds of Taxes remitted hereunder.
(viii) Each Lender shall use reasonable efforts to avoid
or minimize any amounts which might otherwise be payable by Interface
pursuant to this Section 3.07(b), except to the extent that a Lender
determines that such efforts would be disadvantageous to such Lender, as
determined by such Lender and which determination, if made in good faith,
shall be binding and conclusive on all parties hereto.
(ix) To the extent that the payment of any Lender's Taxes
by Interface gives rise from time to time to a Tax Benefit (as
hereinafter defined) to such Lender in any jurisdiction other than the
jurisdiction which imposed such Taxes, such Lender shall pay to Interface
the amount of each such Tax Benefit so recognized or received. The
amount of each Tax Benefit and, therefore, payment to Interface will be
determined from time to time by the relevant Lender in its sole
discretion, which determination shall be binding and conclusive on all
parties hereto. Each such payment will be due and payable by such Lender
to Interface within a reasonable time after the filing of the income tax
return in which such Tax Benefit is recognized or, in the case of any tax
refund, after the refund is received; provided, however, if at any time
thereafter such Lender is required to rescind such Tax Benefit or such
Tax Benefit is otherwise disallowed or nullified, Interface shall
promptly, after notice thereof from such Lender, repay to Lender the
amount of such Tax Benefit previously paid to Interface and rescinded,
disallowed or nullified. For purposes of this section, "Tax Benefit"
shall mean the amount by which any Lender's income tax liability for the
taxable period in question is reduced below what would have been payable
had Interface not been required to pay the Lender's Taxes. In case of
any dispute with respect to the amount of any payment Interface shall
have no right to any offset or withholding of payments with respect to
future payments due to any Lender under this Agreement or the Term Notes.
(x) Without prejudice to the survival of any other agree-
ment of Interface hereunder, the agreements and obligations of Interface
and the Lenders contained in this Section 3.07(b) shall survive the
termination of this Agreement and the payment in full of the principal
of, premium, if any, interest, and fees hereunder and under the Term
Notes.
(e) Subject to Section 3.04(ii), whenever any payment to
be made hereunder or under any Term Note shall be stated to be due on a
day which is not a Business Day, the due date thereof shall be extended
to the next succeeding Business Day and, with respect to payments of
principal, interest thereon shall be payable at the applicable rate
during such extension.
(f) All computations of interest and fees hereunder and
under the Term Notes shall be made on the basis of a year of 360 days for
the actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest or fees are payable
(to the extent computed on the basis of days elapsed). Interest on Base
Rate Advances shall be calculated based on the Base Rate from and
including the date of such Term Loan to but excluding the date of the
repayment or conversion thereof. Interest on Fixed Rate Advances shall
be calculated as to each Interest Period from and including the first day
thereof to but excluding the last day thereof. Each determination by the
Administrative Agent of an interest rate or fee hereunder shall be made
in good faith and, except for manifest error, shall be final, conclusive
and binding for all purposes.
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(g) Payment by Interface to the Administrative Agent in
accordance with the terms of this Agreement shall constitute payment to
the applicable Lenders under this Agreement.
Section 3.08. Interest Rate Not Ascertainable, etc. In
the event that the Administrative Agent shall have determined (which
determination shall be made in good faith and, absent manifest error,
shall be final, conclusive and binding upon all parties) that on any date
for determining the Adjusted LIBO Rate or the Fixed CD Rate for any
Interest Period, by reason of any changes arising after the date of this
Agreement affecting the London interbank market or the United States
secondary certificate of deposit market, as the case may be, or the
Administrative Agent's position in such markets, adequate and fair means
do not exist for ascertaining the applicable interest rate on the basis
provided for in the definition of Adjusted LIBO Rate or Fixed CD Rate, as
the case may be, then, and in any such event, the Administrative Agent
shall forthwith give notice (by telephone confirmed in writing) to
Interface and to the Lenders of such determination and a summary of the
basis for such determination. Until the Administrative Agent notifies
Interface that the circumstances giving rise to the suspension described
herein no longer exist, the obligations of the Lenders to make or permit
portions of the Term Loans to remain outstanding as CD Rate Advances or
Eurodollar Advances as the case may be, shall be suspended, and such
affected Advances shall bear the same interest as Base Rate Advances.
Section 3.09. Illegality.
(a) In the event that any Lender shall have determined
(which determination shall be made in good faith and, absent manifest
error, shall be final, conclusive and binding upon all parties) at any
time that the making or continuance of any Fixed Rate Advance has become
unlawful by compliance by such Lender in good faith with any applicable
law, governmental rule, regulation, guideline or order (whether or not
having the force of law and whether or not failure to comply therewith
would be unlawful), then, in any such event, the Lender shall give prompt
notice (by telephone confirmed in writing) to Interface and to the
Administrative Agent of such determination and a summary of the basis for
such determination (which notice the Administrative Agent shall promptly
transmit to the other Lenders).
(b) Upon the giving of the notice to Interface referred
to in subsection (a) above, (i) Interface's right to request and such
Lender's obligation to fund portions of CD Rate Advances or Eurodollar
Advances, as the case may be, shall be immediately suspended, and such
Lender shall make the Term Loan as part of the requested Borrowing
consisting of a CD Rate Advance or Eurodollar Advance, as the case may
be, as a Base Rate Advance, which Base Rate Advance shall, for all other
purposes, be considered part of such Borrowing, and (ii) if the affected
Fixed Rate Advance is then outstanding, Interface shall immediately, or
if permitted by applicable law, no later than the date permitted thereby,
upon at least one Business Day's written notice to the Administrative
Agent and the affected Lender, convert the affected Lender's portion of
such Advance into a Term Loan of a different Type with an Interest Period
ending on the date on which the Interest Period applicable to the
affected Fixed Rate Advances expires, provided that if more than one
Lender is affected at any time, then all affected Lenders must be treated
the same pursuant to this Section 3.09(b).
Section 3.10. Increased Costs.
(a) If, by reason of (x) after the date hereof, the
introduction of or any change (including, without limitation, any change
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by way of imposition or increase of reserve requirements) in or in the
interpretation of any law or regulation, or (y) the compliance with any
guideline or request from any central bank or other governmental
authority or quasi-governmental authority exercising control over banks
or financial institutions generally (whether or not having the force of
law):
(i) any Lender (or its applicable Lending Office)
shall be subject to any tax, duty or other charge with
respect to its portion of a Fixed Rate Advance or its
obligation to fund a portion of a Fixed Rate Advance, or
the basis of taxation of payments to any Lender of the
principal of or interest on its portion of a Fixed Rate
Advance or its obligation to fund a portion of a Fixed
Rate Advance shall have changed (except for changes in the
tax on the overall net income of such Lender or its
applicable Lending Office imposed by the jurisdiction in
which such Lender's principal executive office or
applicable Lending Office is located); or
(ii) any reserve (including, without limitation, any
imposed by the Board of Governors of the Federal Reserve
System), special deposit or similar requirement against
assets of, deposits with or for the account of, or credit
extended by, any Lender's applicable Lending Office shall
be imposed or deemed applicable or any other condition
affecting its portion of a Fixed Rate Advance or its
obligation to fund a portion of a Fixed Rate Advance shall
be imposed on any Lender or its applicable Lending Office
or the London interbank market or the United States
secondary certificate of deposit market;
and as a result thereof there shall be any increase in the cost to such
Lender of agreeing to make or making, funding or maintaining a portion of
a Fixed Rate Advance (except to the extent already included in the
determination of the applicable interest rate in effect for such portion
of the Fixed Rate Advance), or there shall be a reduction in the amount
received or receivable by such Lender or its applicable Lending Office,
then Interface shall from time to time (subject, in the case of certain
Taxes, to the applicable provisions of Section 3.07(b)), upon written
notice from and demand by such Lender on Interface (with a copy of such
notice and demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender, within five Business Days after the
date of such notice and demand, additional amounts sufficient to
indemnify such Lender against such increased cost. A certificate as to
the amount of such increased cost, submitted to Interface and the
Administrative Agent by such Lender in good faith and accompanied by a
statement prepared by such Lender describing in reasonable detail the
basis for and calculation of such increased cost, shall, except for
manifest error, be final, conclusive and binding for all purposes.
(b) If any Lender shall advise the Administrative Agent
that at any time, because of the circumstances described in clauses (x)
or (y) in Section 3.10(a) or any other circumstances beyond such Lender's
reasonable control arising after the date of this Agreement affecting
such Lender or the London interbank market or the United States secondary
certificate of deposit market or such Lender's position in such markets,
the Adjusted LIBO Rate or the Fixed CD Rate, as the case may be, as
determined by the Administrative Agent, will not adequately and fairly
reflect the cost to such Lender of funding its portion of a Fixed Rate
Advance, then, and in any such event:
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(i) the Administrative Agent shall forthwith give
notice (by telephone confirmed in writing) to Interface
and to the other Lenders of such advice;
(ii) Interface's right to request and such Lender's
obligation to make or permit portions of the Term Loans to
remain outstanding as a CD Rate Advance or Eurodollar
Advance, as the case may be, shall be immediately
suspended; and
(iii) such Lender shall make a Term Loan as part of
the requested Borrowing consisting of a CD Rate Advance or
Eurodollar Advance, as the case may be, as a Base Rate
Advance, which such Base Rate Advance shall, for all other
purposes, be considered part of such Borrowing.
Section 3.11. Lending Offices.
(a) Each Lender agrees that, if requested by Interface,
it will use reasonable efforts (subject to overall policy considerations
of such Lender) to designate an alternate Lending Office with respect to
any of its portions of Fixed Rate Advances affected by the matters or
circumstances described in Sections 3.07(b), 3.08, 3.09 or 3.10 to reduce
the liability of Interface or avoid the results provided thereunder, so
long as such designation is not disadvantageous to such Lender as
determined by such Lender, which determination if made in good faith,
shall be conclusive and binding on all parties hereto. Nothing in this
Section 3.11 shall affect or postpone any of the obligations of Interface
or any right of any Lender provided hereunder.
(b) If any Lender that is organized under the laws of any
jurisdiction other than the United States of America or any State thereof
(including the District of Columbia) issues a public announcement with
respect to the closing of its lending offices in the United States such
that any withholdings or deductions and additional payments with respect
to Taxes may be required to be made by Interface thereafter pursuant to
Section 3.07(b), such Lender shall use reasonable efforts to furnish
Interface notice thereof as soon as practicable thereafter; provided,
however, that no delay or failure to furnish such notice shall in any
event release or discharge Interface from their obligations to such
Lender pursuant to Section 3.07(b) or otherwise result in any liability
of such Lender.
Section 3.12. Funding Losses. Interface shall compensate
each Lender, upon its written request to Interface (which request shall
set forth the basis for requesting such amounts in reasonable detail and
which request shall be made in good faith and, absent manifest error,
shall be final, conclusive and binding upon all of the parties hereto),
for all losses, expenses and liabilities (including, without limitation,
any interest paid by such Lender to lenders of funds borrowed by it to
make or carry its portions of Fixed Rate Advances to the extent not re-
covered by such Lender in connection with the re-employment of such funds
and including loss of anticipated profits), which the Lender may sustain:
(i) if for any reason (other than a default by such Lender) a borrowing
of, or conversion to or continuation of, Fixed Rate Advances does not
occur on the date specified therefor in a notice given by Interface to
the Administrative Agent as provided herein (whether or not withdrawn),
(ii) if any repayment (including mandatory prepayments and any
conversions pursuant to Section 3.09(b)) of any Fixed Rate Advances
occurs on a date which is not the last day of an Interest Period
applicable thereto, or (iii), if, for any reason, Interface defaults in
its obligation to repay its Fixed Rate Advances when required by the
terms of this Agreement.
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Section 3.13. Assumptions Concerning Funding of Fixed
Rate Advances. Calculation of all amounts payable to a Lender under this
Article III shall be made as though that Lender had actually funded its
portions of relevant Fixed Rate Advances through the purchase of deposits
in the relevant market, bearing interest at the rate applicable to such
Fixed Rate Advances in an amount equal to the amount of its portions of
the Fixed Rate Advances and having a maturity comparable to the relevant
Interest Period; provided however, that each Lender may fund its portions
of each of the Fixed Rate Advances in any manner it sees fit and the
foregoing assumption shall be used only for calculation of amounts
payable under this Article III.
Section 3.14. Apportionment of Payments. Aggregate
principal and interest payments in respect of the Term Loans shall be ap-
portioned among all outstanding Term Loans to which such payments relate,
proportionately to the Lenders' respective Pro Rata Shares of such
outstanding Term Loans. The Administrative Agent shall promptly
distribute to each Lender at its primary address set forth beside its
name on the appropriate signature page hereof or such other address as
any Lender may request its share of all such payments received by the
Administrative Agent.
Section 3.15. Sharing of Payments, Etc. If any Lender
shall obtain any payment or reduction (including, without limitation, any
amounts received as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code) of any obligation of Interface
hereunder (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its Pro Rata Share of
payments or reductions on account of such obligations obtained by all the
Lenders, such Lender shall forthwith (i) notify each of the other Lenders
and the Administrative Agents of such receipt, and (ii) purchase from the
other Lenders such participations in the affected obligations as shall be
necessary to cause such purchasing Lender to share the excess payment or
reduction, net of costs incurred in connection therewith, ratably with
each of them, provided that if all or any portion of such excess payment
or reduction is thereafter recovered from such purchasing Lender or
additional costs are incurred, the purchase shall be rescinded and the
purchase price restored to the extent of such recovery or such additional
costs, but without interest unless the Lender obligated to return such
funds is required to pay interest on such funds. Interface agrees that
any Lender so purchasing a participation from another Lender pursuant to
this Section 3.15 may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct creditor
of Interface in the amount of such participation.
Section 3.16. Capital Adequacy. Without limiting any
other provision of this Agreement, in the event that any Lender shall
have determined that any law, treaty, governmental (or quasi-
governmental) rule, regulation, guideline or order regarding capital
adequacy not currently in effect or fully applicable as of the Closing
Date, or any change therein or in the interpretation or application
thereof, or compliance by such Lender with any request or directive
regarding capital adequacy not currently in effect or fully applicable as
of the Closing Date (whether or not having the force of law and whether
or not failure to comply therewith would be unlawful) from a central bank
or governmental authority or body having jurisdiction, does or shall have
the effect of reducing the rate of return on such Lender's capital as a
consequence of its obligations hereunder to a level below that which such
Lender could have achieved but for such law, treaty, rule, regulation,
guideline or order, or such change or compliance (taking into
- 34 -
consideration such Lender's policies with respect to capital adequacy) by
an amount deemed by such Lender to be material, then within ten Business
Days after written notice and demand by such Lender (with copies thereof
to the Administrative Agent), Interface shall from time to time pay to
such Lender additional amounts sufficient to compensate such Lender for
such reduction (but, in the case of outstanding Base Rate Advances,
without duplication of any amounts already recovered by such Lender by
reason of an adjustment in the applicable Base Rate). Each certificate
as to the amount payable under this Section 3.16 (which certificate shall
set forth the basis for requesting such amounts in reasonable detail),
submitted to Interface by any Lender in good faith, shall, absent
manifest error, be final, conclusive and binding for all purposes.
Section 3.17. Benefits to Guarantors. In consideration
for the execution and delivery by the Guarantors of their Guaranty
Agreement, Interface agrees to make the benefit of extensions of credit
hereunder available to the Guarantors.
Section 3.18. Limitation on Certain Payment Obligations.
(a) Each Lender or the Administrative Agent shall make
written demand on Interface for indemnification or compensation pursuant
to Section 3.07 no later than 90 days after the earlier of (i) the date
on which such Lender or the Administrative Agent makes payment of such
Taxes, and (ii) the date on which the relevant taxing authority or other
governmental authority makes written demand upon such Lender or the
Administrative Agent for payment of such Taxes.
(b) Each Lender or the Administrative Agent shall make
written demand on Interface for indemnification or compensation pursuant
to Section 3.12 no later than 90 days after the event giving rise to the
claim for indemnification or compensation occurs.
(c) Each Lender or the Administrative Agent shall make
written demand on Interface for indemnification or compensation pursuant
to Sections 3.09 and 3.16 no later than 90 days after such Lender or the
Administrative Agent receives actual notice or obtains actual knowledge
of the promulgation of a law, rule, order or interpretation or occurrence
of another event giving rise to a claim pursuant to such sections.
(d) In the event that the Lenders or the Administrative
Agent fail to give Interface notice within the time limitations
prescribed in (a) or (b) above, Interface shall have no obligation to pay
such claim for compensation or indemnification. In the event that the
Lender or the Administrative Agent fails to give Interface notice within
the time limitation prescribed in (c) above, Interface shall have no
obligation to pay any amount with respect to claims accruing prior to the
ninetieth day preceding such written demand.
ARTICLE IV.
CONDITIONS TO BORROWINGS
The obligation of each Lender to make the Term Loans to
Interface hereunder is subject to the satisfaction of the following
conditions:
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Section 4.01. Conditions Precedent to Funding of Term
Loans. At the time of the making of the Term Loans hereunder on the
Closing Date, all obligations of Interface hereunder incurred at or prior
to such funding of the Term Loans (including, without limitation,
Interface's obligations to reimburse the reasonable fees and expenses of
counsel to the Co-Agents and any fees and expenses payable to the
Co-Agents and the Lenders as previously agreed with Interface), shall
have been paid in full, and the Co-Agents shall have received the
following, in form and substance satisfactory in all respects to the Co-
Agents:
(a) the duly executed counterparts of this
Agreement;
(b) the duly completed Term Notes;
(c) the Guaranty Agreement and Contribution
Agreement;
(d) the Pledge Agreements accompanied, to the
extent relevant under applicable law, by (i) all stock
certificates representing the Pledged Stock, (ii) stock
powers for those shares duly executed in blank,
(iii) Uniform Commercial Code financing statements
relating thereto, and (iv) any other documentation
requested by the Collateral Agent in order to assure the
perfection of a first priority lien in such Pledged Stock
in favor of the Collateral Agent for the benefit of the
Lenders;
(e) certificate of Interface in substantially
the form of Exhibit F attached hereto and appropriately
completed;
(f) certificates of the Secretary or Assistant
Secretary of each of the Credit Parties (or, in the case
of any Foreign Subsidiary, a comparable company officer)
attaching and certifying copies of the resolutions of the
boards of directors (or, in the case of any Foreign
Subsidiary, the comparable governing body of such entity)
of the Credit Parties, authorizing as applicable (i) the
execution, delivery and performance of the Credit
Documents, and (ii) the granting of the pledges and
security interests granted pursuant to the Pledge
Agreements;
(g) certificates of the Secretary or an
Assistant Secretary of each of the Credit Parties (or, in
the case of any Foreign Subsidiary, a comparable company
officer) certifying (i) the name, title and true signature
of each officer of such entities executing the Credit
Documents, and (ii) the bylaws or comparable governing
documents of such entities;
(h) certified copies of the certificate or articles
of incorporation of each Credit Party (or comparable
organizational document of each Foreign Subsidiary),
together with certificates of good standing or existence,
as may be available from the Secretary of State (or
comparable office or registry for each Foreign Subsidiary)
of the jurisdiction of incorporation or organization of
such Credit Party;
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(i) examination reports from the Uniform Commercial
Code records of Cobb County and Troup County, Georgia, the
Georgia Superior Court Clerks Cooperative Authority, and
the Secretaries of State of the States of California,
Maine, Michigan, Pennsylvania, and Texas, in each case
showing no outstanding liens or security interests granted
by any Credit Party other than (x) Liens permitted by
Section 7.02, and (y) Liens in favor of the Collateral
Agent (whether acting under this Agreement or the Credit
Agreement);
(j) copies of all documents and instruments,
including all consents, authorizations and filings,
required or advisable under any Requirement of Law or by
any material Contractual Obligation of the Credit Parties,
in connection with the execution, delivery, performance,
validity and enforceability of the Credit Documents and
the other documents to be executed and delivered
hereunder, and such consents, authorizations, filings and
orders shall be in full force and effect and all
applicable waiting periods shall have expired;
(k) certified copies of the Intercompany Loan Docu-
ments;
(l) acknowledgments from each of G. Kimbrough
Taylor, Jr. and Kilpatrick Stockton LLP as to their
appointment as agent for service of process for the
various Credit Parties;
(m) certified copies of indentures, credit
agreements, instruments, and other documents evidencing or
securing Indebtedness of any Consolidated Company
described on Schedule 7.01(b) or Schedule 7.01(j), in any
single case in an amount not less than $2,000,000 (or the
Dollar Equivalent thereof);
(n) certificates, reports and other information as
the Co-Agents may request from any Consolidated Company in
order to satisfy the Lenders as to the absence of any
material liabilities or obligations arising from matters
relating to employees of the Consolidated Companies,
including employee relations, collective bargaining
agreements, Plans, Foreign Plans, and other compensation
and employee benefit plans;
(o) certificates, reports, environmental audits and
investigations, and other information as the Co-Agents may
request from any Consolidated Company in order to satisfy
the Lenders as to the absence of any material liabilities
or obligations arising from environmental and employee
health and safety exposures to which the Consolidated
Companies may be subject, and the plans of the
Consolidated Companies with respect thereto;
(p) certificates, reports and other information as
the Co-Agents may request from any Consolidated Company in
order to satisfy the Lenders as to the absence of any
material liabilities or obligations arising from
litigation (including without limitation, products
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liability and patent infringement claims) pending or
threatened against the Consolidated Companies;
(q) a summary, set forth in format and detail
acceptable to the Co-Agents, of the types and amounts of
insurance (property and liability) maintained by the
Consolidated Companies;
(r) the favorable opinions of (i) Kilpatrick
Stockton LLP, United States counsel to the Credit Parties,
substantially in the form of Exhibit G-1, (ii) Paisner &
Co., United Kingdom counsel to Europe Limited
substantially in the form of Exhibit G-2, and (iii) Nauta
Dutilh, Netherlands counsel to Scherpenzeel B.V. substan-
tially in the form of Exhibit G-3, in each case addressed
to the Co-Agents and each of the Lenders, and covering
such other matters as either Co-Agent or any Lender may
reasonably request;
(s) the favorable opinions of Clifford Chance,
special counsel to the Co-Agents and the Lenders, as to
any matters relating to the Credit Documents under the
laws of the United Kingdom and the Netherlands as may be
requested by the Co-Agents;
(t) the favorable opinion of Allen, Allen & Hemsley
(or Allens Arthur Robinson), special Australian counsel to
the Co-Agents and the Lenders, as to any matters relating
to the Credit Documents arising under Australian law as
may be requested by the Co-Agents;
(u) the favorable opinion of McCarthy Tetrault,
special Canadian counsel to the Co-Agents and the Lenders,
as to any matters relating to the Credit Documents arising
under Canadian law as may be requested by the Co-Agents;
and
(v) a certificate of the president, chief financial
officer or principal accounting officer of Interface as to
the calculation in reasonable detail of the "Consolidated
Fixed Charge Coverage Ratio" (as defined in the Senior
Subordinated Notes Indenture) of Interface, demonstrating
to the satisfaction of the Co-Agents and the Lenders that
at the time of the funding of the Term Loans, and after
giving pro forma effect thereto, such "Consolidated Fixed
Charge Coverage Ratio" of Interface exceeds 2.50:1.00, and
that the Term Loans will constitute "Senior Indebtedness"
for all purposes under the Senior Subordinated Notes
Indenture.
In addition to the foregoing, the following conditions shall have been
satisfied or shall have existed, all to the satisfaction of the
Co-Agents, as of the time the Term Loans were made hereunder:
(w) the Term Loans and the use of proceeds thereof
shall not have contravened, violated or conflicted with,
or involved the Co-Agents or any Lender in a violation of,
any law, rule, injunction, or regulation, or determination
of any court of law or other governmental authority; and
(x) all corporate proceedings and all other legal
matters in connection with the authorization, legality,
validity and enforceability of the Credit Documents shall
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have been reasonably satisfactory in form and substance to
the Required Lenders.
Section 4.02. Other Conditions to Term Loans. At the
time of the making of the Term Loans (before as well as after giving
effect to such Term Loans and the proposed use of the proceeds thereof),
the following conditions shall have been satisfied or shall exist:
(a) there shall exist no Default or Event of
Default;
(b) all representations and warranties by Interface
contained herein, and all representations and warranties
by Interface contained herein, shall be true and correct
in all material respects with the same effect as though
such representations and warranties had been made on and
as of the date of such Term Loans (except that the
representation and warranty set forth in Section 5.19
shall not be deemed to relate to any time subsequent to
the date of the Term Loans hereunder);
(c) since the date of the most recent financial
statements of the Consolidated Companies described in
Section 5.14(a), there shall have been no change which has
had or could reasonably be expected to have a Materially
Adverse Effect (whether or not any notice with respect to
such change has been furnished to the Lenders pursuant to
Section 6.07);
(d) there shall be no action or proceeding
instituted or pending before any court or other
governmental authority or, to the knowledge of Interface,
threatened (i) which reasonably could be expected to have
a Materially Adverse Effect, or (ii) seeking to prohibit
or restrict one or more Credit Party's ownership or
operation of any portion of its business or assets, or to
compel one or more Credit Party to dispose of or hold
separate all or any portion of its businesses or assets,
where such portion or portions of such business(es) or
assets, as the case may be, constitute a material portion
of the total businesses or assets of the Consolidated
Companies;
(e) the Term Loans to be made and the use of
proceeds thereof shall not contravene, violate or conflict
with, or involve the Co-Agents or any Lender in a
violation of, any law, rule, injunction, or regulation, or
determination of any court of law or other governmental
authority applicable to Interface;
(f) Interface shall have given to the Co-Agents with
its notice of Borrowing written notice of its intent to
use any proceeds of any Loan then being requested for the
purchase or carrying of any "margin stock" (as defined in
the Margin Regulations);
(g) The Co-Agents shall have received such other
documents (including, without limitation, any necessary
Federal Reserve Form U-1 or other similar form required by
the Margin Regulations) or legal opinions as the Co-Agents
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or any Lender may reasonably request, all in form and
substance reasonably satisfactory to the Co-Agents; and
(h) Interface shall have paid all proceeds of the
Term Loans to be applied against the "Domestic Syndicated
Loans" outstanding under the Credit Agreement, as provided
by the terms of the Credit Agreement.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Interface (as to itself and all other Consolidated
Companies) represents and warrants as follows:
Section 5.01. Organizational Existence; Compliance with
Law. Each of the Consolidated Companies is duly organized, validly
existing, and in good standing under the laws of the jurisdiction of its
organization, and each of the Credit Parties has the corporate or other
organizational power and authority and the legal right to own and
operate its property and to conduct its business. Each of the
Consolidated Companies (i) other than the Credit Parties, has the
corporate or other organizational power and authority and the legal right
to own and operate its property and to conduct its business, (ii) is duly
qualified as a foreign corporation or other organization and in good
standing under the laws of each jurisdiction where its ownership of
property or the conduct of its business requires such qualification, and
(iii) is in compliance with all Requirements of Law, where (a) with
respect to those Consolidated Companies that are not Credit Parties, the
failure to have such power, authority and legal right as set forth in
clause (i), (b) the failure to be so qualified or in good standing as set
forth in clause (ii), or (c) the failure to comply with Requirements of
Law as set forth in clause (iii), would reasonably be expected, in the
aggregate, to have a Materially Adverse Effect. The jurisdiction of
incorporation or organization, and the ownership of all issued and
outstanding capital stock or other equity interests for each Subsidiary
as of the date of this Agreement is accurately described on
Schedule 5.01.
Section 5.02. Organizational Power; Authorization. Each
of the Credit Parties has the corporate or other organizational power and
authority to make, deliver and perform the Credit Documents to which it
is a party and has taken all necessary corporate or other organizational
action to authorize the execution, delivery and performance of such
Credit Documents. No consent or authorization of, or filing with, any
Person (including, without limitation, any governmental authority), is
required in connection with the execution, delivery or performance by any
Credit Party, or the validity or enforceability against any Credit Party,
of the Credit Documents, other than such consents, authorizations or
filings which have been made or obtained (including without limitation,
any necessary consultations with any Credit Party's supervisory board,
works council ("Ondernemingsraad") or similar body).
Section 5.03. Enforceable Obligations. This Agreement
has been duly executed and delivered, and each other Credit Document will
be duly executed and delivered, by the respective Credit Parties, and
this Agreement constitutes, and each other Credit Document when executed
and delivered will constitute, legal, valid and binding obligations of
the Credit Parties, respectively, enforceable against the Credit Parties
in accordance with their respective terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar
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laws affecting the enforcement of creditors' rights generally and by
general principles of equity.
Section 5.04. No Legal Bar. The execution, delivery and
performance by the Credit Parties of the Credit Documents will not
violate any Requirement of Law or cause a breach or default under any of
their respective Contractual Obligations.
Section 5.05. No Material Litigation. Except as set
forth on Schedule 5.05 or in any notice furnished to the Lenders pursuant
to Section 6.07(i) at or prior to the respective times the
representations and warranties set forth in this Section 5.05 are made or
deemed to be made hereunder, no litigation, investigations or proceedings
of or before any courts, tribunals, arbitrators or governmental
authorities are pending or, to the knowledge of Interface, threatened by
or against any of the Consolidated Companies, or against any of their
respective properties or revenues, existing or future (a) with respect to
any Credit Document, or any of the transactions contemplated hereby or
thereby, or (b) which, if adversely determined, would reasonably be
expected to have a Materially Adverse Effect.
Section 5.06. Investment Company Act, Etc. None of the
Credit Parties is an "investment company" or a company "controlled" by an
"investment company" (as each of the quoted terms is defined or used in
the Investment Company Act of 1940, as amended). None of the Credit
Parties is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, or any foreign, federal or local
statute or regulation limiting its ability to incur indebtedness for
money borrowed, guarantee such indebtedness, or pledge its assets to
secure such indebtedness, as contemplated hereby or by any other Credit
Document.
Section 5.07. Margin Regulations. No part of the pro-
ceeds of any of the Term Loans will be used for any purpose which vio-
lates, or which would be inconsistent or not in compliance with, the
provisions of the applicable Margin Regulations.
Section 5.08. Compliance With Environmental Laws.
(a) The Consolidated Companies have received no notices
of claims or potential liability under, and are in compliance with, all
applicable Environmental Laws, where such claims and liabilities under,
and failures to comply with, such statutes, regulations, rules,
ordinances, laws or licenses, would reasonably be expected to result in
penalties, fines, claims or other liabilities (including, without
limitation, remediation costs and expenses) to the Consolidated Companies
in amounts in excess of $4,500,000, either individually or in the
aggregate (including any such penalties, fines, claims, or liabilities
relating to the matters set forth on Schedule 5.08(a)), except as set
forth on Schedule 5.08(a) or in any notice furnished to the Lenders
pursuant to Section 6.07(j) at or prior to the respective times the
representations and warranties set forth in this Section 5.08(a) are made
or deemed to be made hereunder.
(b) Except as set forth on Schedule 5.08(b) or in any
notice furnished to the Lenders pursuant to Section 6.07(j) at or prior
to the respective times the representations and warranties set forth in
this Section 5.08(b) are made or deemed to be made hereunder, none of the
Consolidated Companies has received during the period from January 1,
1983 through the date of this Agreement, any notice of violation, or
notice of any action, either judicial or administrative, from any
governmental authority (whether United States or foreign) relating to the
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actual or alleged violation of any Environmental Law, including, without
limitation, any notice of any actual or alleged spill, leak, or other
release of any Hazardous Substance, waste or hazardous waste by any
Consolidated Company or its employees or agents, or as to the existence
of any contamination on any properties owned by any Consolidated Company,
where any such violation, spill, leak, release or contamination would
reasonably be expected to result in penalties, fines, claims or other
liabilities (including, without limitation, remediation costs and
expenses) to the Consolidated Companies in amounts in excess of
$4,500,000, either individually or in the aggregate (including any such
penalties, fines, claims or liabilities relating to the matters set forth
on Schedule 5.08(a)); provided, however, that with respect to the period
from January 1, 1983, through December 31, 1986, such representation and
warranty shall be deemed to be made only with respect to notices known to
and disclosed by the Consolidated Companies in this Agreement and any
additional notices of which any Credit Party has actual knowledge as of
the date of this Agreement or hereafter.
(c) The Consolidated Companies have obtained all neces-
sary governmental permits, licenses and approvals which are material to
the operations conducted on their respective properties, including
without limitation, all required material permits, licenses and approvals
for (i) the emission of air pollutants or contaminates, (ii) the
treatment or pretreatment and discharge of waste water or storm water,
(iii) the treatment, storage, disposal or generation of hazardous wastes,
(iv) the withdrawal and usage of ground water or surface water, and
(v) the disposal of solid wastes.
Section 5.09. Insurance. The Consolidated Companies
currently maintain insurance with respect to their respective properties
and businesses, with financially sound and reputable insurers, having
coverages against losses or damages of the kinds customarily insured
against by reputable companies in the same or similar businesses, such
insurance being in amounts no less than those amounts which are customary
for such companies under similar circumstances. The Consolidated
Companies have paid all material amounts of insurance premiums now due
and owing with respect to such insurance policies and coverages, and such
policies and coverages are in full force and effect.
Section 5.10. No Default. None of the Consolidated
Companies is in default under or with respect to any Contractual
Obligation in any respect which has had or is reasonably expected to have
a Materially Adverse Effect.
Section 5.11. No Burdensome Restrictions. Except as set
forth on Schedule 5.11 or in any notice furnished to the Lenders pursuant
to Section 6.07(p) at or prior to the respective times the
representations and warranties set forth in this Section 5.11 are made or
deemed to be made hereunder, none of the Consolidated Companies is a
party to or bound by any Contractual Obligation or Requirement of Law
which has had or would reasonably be expected to have a Materially
Adverse Effect.
Section 5.12. Taxes. Except as set forth on Sched-
ule 5.12, each of the Consolidated Companies have filed or caused to be
filed all declarations, reports and tax returns which are required to
have been filed, and has paid all taxes, custom duties, levies, charges
and similar contributions ("taxes" in this Section 5.12) shown to be due
and payable on said returns or on any assessments made against it or its
properties, and all other taxes, fees or other charges imposed on it or
any of its properties by any governmental authority (other than those the
amount or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity
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with GAAP have been provided in its books); and no tax liens have been
filed and, to the knowledge of Interface, no claims are being asserted
with respect to any such taxes, fees or other charges; excluding,
however, for purposes of the foregoing portions of this Section, tax
returns not filed or taxes not paid where the aggregate amount of taxes
involved does not exceed $2,500,000 in the aggregate and the failure to
file such returns or pay such taxes has resulted from the Consolidated
Companies being without knowledge that the respective tax authorities are
claiming such taxes to be due.
Section 5.13. Subsidiaries. Except as disclosed on
Schedule 5.01, on the date of this Agreement, Interface has no
Subsidiaries and neither Interface nor any Subsidiary is a joint venture
partner or general partner in any partnership. After the date of this
Agreement, except as disclosed on Schedule 5.13 or in any notice
furnished pursuant to Section 6.07(q) at or prior to the respective times
the representations and warranties set forth in this Section 5.13 are
made or deemed to be made hereunder, Interface has no Material
Subsidiaries.
Section 5.14. Financial Statements. Interface has
furnished to the Co-Agents and the Lenders (i) the audited consolidated
balance sheet of the Consolidated Companies as at December 29, 1996 and
the related consolidated statements of income, shareholders' equity and
cash flows for the 52-week period then ended, including in each case the
related schedules and notes, and (ii) the unaudited balance sheet of the
Consolidated Companies as at the end of the first fiscal quarter of 1997,
and the related unaudited consolidated statements of income,
shareholders' equity, and cash flows for the period then ended, setting
forth in each case in comparative form the figures for the previous
fiscal year and first fiscal quarter, as the case may be. The foregoing
financial statements fairly present in all material respects the
consolidated financial condition of such Consolidated Companies as at the
dates thereof and results of operations for such periods in conformity
with GAAP consistently applied. Such Consolidated Companies taken as a
whole do not have any material contingent obligations, contingent
liabilities, or material liabilities for known taxes, long-term leases or
unusual forward or long-term commitments not reflected in the foregoing
financial statements or the notes thereto. Since December 29, 1996,
there have been no changes with respect to such Consolidated Companies
which has had or would reasonably be expected to have a Materially
Adverse Effect.
Section 5.15. ERISA. Except as disclosed on Sched-
ule 5.15 or in any notice furnished to the Lenders pursuant to
Section 6.07(k) at or prior to the respective times the representations
and warranties set forth in this Section 5.15 are made or deemed to be
made hereunder:
(a)(1) Identification of Plans. (A) None of the Con-
solidated Companies nor any of their respective ERISA Affiliates
maintains or contributes to, or has during the past two years maintained
or contributed to, any Plan that is subject to Title IV of ERISA, and
(B) none of the Consolidated Companies maintains or contributes to any
Foreign Plan;
(2) Compliance. Each Plan and each Foreign Plan main-
tained by the Consolidated Companies have at all times been maintained,
by their terms and in operation, in compliance with all applicable laws,
and the Consolidated Companies are subject to no tax or penalty with
respect to any Plan of such Consolidated Company or any ERISA Affiliate
thereof, including without limitation, any tax or penalty under Title I
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or Title IV of ERISA or under Chapter 43 of the Tax Code, or any tax or
penalty resulting from a loss of deduction under Sections 162, 404, or
419 of the Tax Code, where the failure to comply with such laws, and such
taxes and penalties, together with all other liabilities referred to in
this Section 5.15 (taken as a whole), would in the aggregate have a
Materially Adverse Effect;
(3) Liabilities. The Consolidated Companies are subject
to no liabilities (including withdrawal liabilities) with respect to any
Plans or Foreign Plans of such Consolidated Companies or any of their
ERISA Affiliates, including without limitation, any liabilities arising
from Titles I or IV of ERISA, other than obligations to fund benefits
under an ongoing Plan and to pay current contributions, expenses and
premiums with respect to such Plans or Foreign Plans, where such
liabilities, together with all other liabilities referred to in this
Section 5.15 (taken as a whole), would in the aggregate have a Materially
Adverse Effect;
(4) Funding. The Consolidated Companies and, with re-
spect to any Plan which is subject to Title IV of ERISA, each of their
respective ERISA Affiliates, have made full and timely payment of all
amounts (A) required to be contributed under the terms of each Plan and
applicable law, and (B) required to be paid as expenses (including PBGC
or other premiums) of each Plan, where the failure to pay such amounts
(when taken as a whole, including any penalties attributable to such
amounts) would have a Materially Adverse Effect. No Plan subject to
Title IV of ERISA has an "amount of unfunded benefit liabilities" (as
defined in Section 4001(a)(18) of ERISA), determined as if such Plan
terminated on any date on which this representation and warranty is
deemed made, in any amount which, together with all other liabilities
referred to in this Section 5.15 (taken as a whole), would have a Materi-
ally Adverse Effect if such amount were then due and payable. The
Consolidated Companies are subject to no liabilities with respect to
post-retirement medical benefits in any amounts which, together with all
other liabilities referred to in this Section 5.15 (taken as a whole),
would have a Materially Adverse Effect if such amounts were then due and
payable.
(b) With respect to any Foreign Plan, reasonable reserves
have been established in accordance with prudent business practice or
where required by ordinary accounting practices in the jurisdiction where
the Foreign Subsidiary maintains its principal place of business or in
which the Foreign Plan is maintained. The aggregate unfunded
liabilities, after giving effect to any reserves for such liabilities,
with respect to such Foreign Plans, together with all other liabilities
referred to in this Section 5.15 (taken as a whole), would not have a
Materially Adverse Effect.
Section 5.16. Patents, Trademarks, Licenses, Etc. Except
as set forth on Schedule 5.16 or in any notice furnished to the Lenders
pursuant to Section 6.07(p) at or prior to the respective times the
representations and warranties set forth in this Section 5.16 are made
or deemed to be made hereunder, (i) the Consolidated Companies have
obtained and hold in full force and effect all material patents,
trademarks, service marks, trade names, copyrights, licenses and other
such rights, free from burdensome restrictions, which are necessary for
the operation of their respective businesses as presently conducted, and
(ii) to the best of Interface's knowledge, no product, process, method,
service or other item presently sold by or employed by any Consolidated
Company in connection with such business infringes any patents,
trademark, service mark, trade name, copyright, license or other right
owned by any other person and there is not presently pending, or to the
knowledge of Interface, threatened, any claim or litigation against or
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affecting any Consolidated Company contesting such Person's right to sell
or use any such product, process, method, substance or other item where
the result of such failure to obtain and hold such benefits or such
infringement would have a Materially Adverse Effect.
Section 5.17. Ownership of Property. Except as set forth
on Schedule 5.17, (i) each Consolidated Company that is not a Foreign
Subsidiary has good and marketable fee simple title to or a valid
leasehold interest in all of its real property and good title to, or a
valid leasehold interest in, all of its other property, and (ii) each
Foreign Subsidiary owns or has a valid leasehold interest in all of its
real property and owns or has a valid leasehold interest in, all of its
other properties, in the case of clauses (i) and (ii) as such properties
are reflected in the consolidated balance sheet of the Consolidated
Companies as of December 29, 1996, referred to in Section 5.14, other
than properties disposed of in the ordinary course of business since such
date or as otherwise permitted by the terms of this Agreement, subject to
no Lien or title defect of any kind, except Liens permitted hereby and
title defects not constituting material impairments in the intended use
for such properties. The Consolidated Companies enjoy peaceful and
undisturbed possession under all of their respective leases.
Section 5.18. Indebtedness. Except as set forth on
Schedule 7.01, none of the Consolidated Companies is an obligor in
respect of any Indebtedness for borrowed money, or any commitment to
create or incur any Indebtedness for borrowed money, in an amount not
less than $1,000,000 in any single case, and such Indebtedness and
commitments for amounts less than $1,000,000 do not exceed $5,000,000 in
the aggregate for all such Indebtedness and commitments of the
Consolidated Companies.
Section 5.19. Financial Condition. On the Closing Date
and after giving effect to the transactions contemplated by this
Agreement and the other Credit Documents, including without limitation,
the use of the proceeds of the Term Loans as provided in Article II (i)
assets of each Credit Party at fair valuation and based on their present
fair saleable value (including, without limitation, the fair and real-
istic value of (x) any contribution or subrogation rights in respect of
any Guaranty Agreement given by such Credit Party, and (y) any
Intercompany Loan owed to such Credit Party) will exceed such Credit
Party's debts, including contingent liabilities (as such liabilities may
be limited under the express terms of any Guaranty Agreement of such
Credit Party), (ii) the remaining capital of such Credit Party will not
be unreasonably small to conduct the Credit Party's business, and
(iii) such Credit Party will not have incurred debts, or have intended to
incur debts, beyond the Credit Party's ability to pay such debts as they
mature. For purposes of this Section 5.19, "debt" means any liability on
a claim, and "claim" means (a) the right to payment, whether or not such
right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured, or (b) the right to an equitable remedy for breach
of performance if such breach gives rise to a right to payment, whether
or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, disputed, undisputed, secured or
unsecured.
Section 5.20. Intercompany Loans. The Intercompany Loans
and the Intercompany Loan Documents have been duly authorized and
approved by all necessary corporate and shareholder action on the part of
the parties thereto, and constitute the legal, valid and binding
obligations of the parties thereto, enforceable against each of them in
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accordance with their respective terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar
laws affecting creditors' rights generally, and by general principles of
equity.
Section 5.21. Labor Matters. Except as set forth in
Schedule 5.21 or in any notice furnished to the Lenders pursuant to
Section 6.07(p) at or prior to the respective times the representations
and warranties set forth in this Section 5.21 are made or deemed to be
made hereunder, the Consolidated Companies have experienced no strikes,
labor disputes, slow downs or work stoppages due to labor disagreements
which have had, or would reasonably be expected to have, a Materially
Adverse Effect, and, to the best knowledge of Interface, there are no
such strikes, disputes, slow downs or work stoppages threatened against
any Consolidated Company. The hours worked and payment made to employees
of the Consolidated Companies have not been in violation in any material
respect of the Fair Labor Standards Act (in the case of Consolidated
Companies that are not Foreign Subsidiaries) or any other applicable law
dealing with such matters. All payments due from the Consolidated
Companies, or for which any claim may be made against the Consolidated
Companies, on account of wages and employee health and welfare insurance
and other benefits have been paid or accrued as liabilities on the books
of the Consolidated Companies where the failure to pay or accrue such
liabilities would reasonably be expected to have a Materially Adverse
Effect.
Section 5.22. Payment or Dividend Restrictions. Except
as set forth in Section 7.12 or described on Schedule 5.22, none of the
Consolidated Companies is party to or subject to any agreement or
understanding restricting or limiting the payment of any dividends or
other distributions by any such Consolidated Company.
Section 5.23. Disclosure. No representation or warranty
contained in this Agreement (including the Schedules attached hereto) or
in any other document furnished from time to time pursuant to the terms
of this Agreement, contains or will contain any untrue statement of a
material fact or omits or will omit to state any material fact necessary
to make the statements herein or therein not misleading as of the date
made or deemed to be made. Except as may be set forth herein (including
the Schedules attached hereto) or in any notice furnished to the Lenders
pursuant to Section 6.07 at or prior to the respective times the
representations and warranties set forth in this Section 5.23 are made or
deemed to be made hereunder, there is no fact known to Interface which
has had, or is reasonably expected to have, a Materially Adverse Effect.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Term Loan shall remain outstanding or any
other Obligation shall remain unpaid, Interface will:
Section 6.01. Organizational Existence, Etc. Preserve
and maintain, and cause each of its Material Subsidiaries to preserve and
maintain, its corporate or other organizational existence, its material
rights, franchises, and licenses, and its material patents and copyrights
(for the scheduled duration thereof), trademarks, trade names, and ser-
vice marks, necessary or desirable in the normal conduct of its business,
and its qualification to do business as a foreign corporation or other
organization in all jurisdictions where it conducts business or other
activities making such qualification necessary, where the failure to be
so qualified would reasonably be expected to have a Materially Adverse
Effect.
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Section 6.02. Compliance with Laws, Etc. Comply, and
cause each of its Subsidiaries to comply with all Requirements of Law
(including, without limitation, the Environmental Laws subject to the
exception set forth in Section 5.08(a) where the penalties, claims,
fines, and other liabilities resulting from noncompliance with such
Environmental Laws do not involve amounts in excess of $10,000,000 in the
aggregate) and Contractual Obligations applicable to or binding on any of
them where the failure to comply with such Requirements of Law and
Contractual Obligations would reasonably be expected to have a Materially
Adverse Effect.
Section 6.03. Payment of Taxes and Claims, Etc. Pay, and
cause each of its Subsidiaries to pay, (i) all taxes, assessments and
governmental charges imposed upon it or upon its property, and (ii) all
claims (including, without limitation, claims for labor, materials,
supplies or services) which might, if unpaid, become a Lien upon its
property, unless, in each case, the validity or amount thereof is being
contested in good faith by appropriate proceedings and adequate reserves
are maintained with respect thereto.
Section 6.04. Keeping of Books. Keep, and cause each of
its Subsidiaries to keep, proper books of record and account, containing
complete and accurate entries of all their respective financial and
business transactions which are required to be maintained in order to
prepare the consolidated financial statements of Interface in conformity
with GAAP.
Section 6.05. Visitation, Inspection, Etc. Permit, and
cause each of its Subsidiaries to permit, any representative of any Co-
Agent or Lender to visit and inspect any of its property, to examine its
books and records and to make copies and take extracts therefrom, and to
discuss its affairs, finances and accounts with its officers, all at such
reasonable times and as often as such Co-Agent or Lender may reasonably
request after reasonable prior notice to Interface; provided, however,
that at any time following the occurrence and during the continuance of a
Default or an Event of Default, no prior notice to Interface shall be
required. To the extent that any Co-Agent or Lender thereby obtains
possession of non-public information constituting trade secrets,
technology or other similar proprietary information identified to the Co-
Agent or Lender in writing by Interface as being subject to confidential
treatment under this Agreement, such party shall treat such information
as confidential. In any event, such Co-Agent or Lender may, subject to
Section 10.06(e), make disclosure to any assignee or participant, or to
any prospective assignee or participant, in connection with an assignment
or participation permitted thereby, or as required or requested by any
governmental agency or representative thereof, or as required to defend
any legal action or to exercise any rights, remedies or powers available
to the Agents or Lender under the Credit Documents or as otherwise
required by law or pursuant to legal process; provided, that, unless
prohibited by applicable law or court order, such Co-Agent or Lender
shall notify Interface as promptly as practicable after receipt thereof
of any governmental request, subpoena or court order (other than any such
request, subpoena or court order in connection with an examination of the
financial condition of such Co-Agent or Lender by any governmental
agency) for disclosure of any such non-public information; provided, how-
ever, that no delay or failure to provide such notice shall give rise to
any claim, defense or right of offset against such Lender or Co-Agent
hereunder. The foregoing shall not prohibit disclosure of such
information to the extent it has become public information other than
through a disclosure by a Co-Agent or Lender not otherwise permitted
herein.
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Section 6.06. Insurance; Maintenance of Properties.
(a) Maintain or cause to be maintained with financially
sound and reputable insurers, insurance with respect to its properties
and business, and the properties and business of its Subsidiaries,
against loss or damage of the kinds customarily insured against by
reputable companies in the same or similar businesses, such insurance to
be of such types and in such amounts as is customary for such companies
under similar circumstances; provided, however, that in any event
Interface shall use its best efforts to maintain, or cause to be
maintained, insurance in amounts and with coverages not materially less
favorable to any Consolidated Company as in effect on the date of this
Agreement, except where the costs of maintaining such insurance would, in
the judgment of both Interface and the Co-Agents, be excessive.
(b) Cause, and cause each of the Consolidated Companies
to cause, all properties used or useful in the conduct of its business to
be maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, settlements and improvements
thereof, all as in the judgment of Interface may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in
this Section shall prevent Interface from discontinuing the operation or
maintenance of any such properties if such discontinuance is, in the
judgment of Interface, desirable in the conduct of its business or the
business of any Consolidated Company.
Section 6.07. Reporting Covenants. Furnish to each
Lender:
(a) Annual Financial Statements. As soon as
available and in any event within 120 days after the end of each fiscal
year of Interface, balance sheets of the Consolidated Companies as at the
end of such year, presented on a consolidated and a "line of business"
basis, and the related statements of income, shareholders' equity, and
cash flows of the Consolidated Companies for such fiscal year, presented
on a consolidated and a "line of business" basis, setting forth in each
case in comparative form the figures for the previous fiscal year, all in
reasonable detail and, except with respect to the financial statements
prepared on a "line of business" basis, accompanied by a report thereon
of BDO Seidman or other independent public accountants of comparable
recognized national standing, which such report shall be unqualified as
to going concern and scope of audit and shall state that such financial
statements present fairly in all material respects the financial
condition as at the end of such fiscal year on a consolidated basis, and
the results of operations and statements of cash flows of the
Consolidated Companies for such fiscal year in accordance with GAAP and
that the examination by such accountants in connection with such consoli-
dated financial statements has been made in accordance with generally
accepted auditing standards;
(b) Quarterly Financial Statements. As soon as
available and in any event within 60 days after the end of each fiscal
quarter of Interface (other than the fourth fiscal quarter), balance
sheets of the Consolidated Companies as at the end of such quarter
presented on a consolidated and a "line of business" basis and the
related statements of income, shareholders' equity, and cash flows of the
Consolidated Companies for such fiscal quarter and for the portion of
Interface's fiscal year ended at the end of such quarter, presented on a
consolidated and a "line of business" basis setting forth in each case in
comparative form the figures for the corresponding quarter and the
corresponding portion of Interface's previous fiscal year, all in
reasonable detail and certified by the chief financial officer or
- 48 -
principal accounting officer of Interface that such financial statements
fairly present in all material respects the financial condition of the
Consolidated Companies as at the end of such fiscal quarter on a
consolidated and "line of business" basis, and the results of operations
and statements of cash flows of the Consolidated Companies for such
fiscal quarter and such portion of Interface's fiscal year, in accordance
with GAAP consistently applied (subject to normal year-end audit
adjustments and the absence of certain footnotes);
(c) No Default/Compliance Certificate. Together
with the financial statements required pursuant to subsections (a) and
(b) above, a certificate of the president, chief financial officer or
principal accounting officer of Interface (i) to the effect that, based
upon a review of the activities of the Consolidated Companies and such
financial statements during the period covered thereby, there exists no
Event of Default and no Default under this Agreement, or if there exists
an Event of Default or a Default hereunder, specifying the nature thereof
and the proposed response thereto, and (ii) demonstrating in reasonable
detail compliance as at the end of such fiscal year or such fiscal
quarter with Section 6.08 and Sections 7.01 through 7.05;
(d) Excess Cash Flow Certificate. Together with the
financial statements required pursuant to subsection (a) above, a
certificate of the president, chief financial officer or principal
accounting officer of Interface setting forth the calculation of Excess
Cash Flow in reasonable detail for the fiscal year covered by such
financial statements;
(e) Auditor's No Default Certificate. Together with
the financial statements required pursuant to subsection (a) above, a
certificate of the accountants who prepared the report referred to
therein, to the effect that, based upon their audit, there exists no
Default or Event of Default under this Agreement, or if there exists a
Default or Event of Default hereunder, specifying the nature thereof;
(f) Annual Budget. Within 120 days after the
beginning of each fiscal year, an annual financial plan and forecasted
balance sheets and statements of income, shareholders' equity, and cash
flows for such fiscal year for the Consolidated Companies presented on a
consolidated and "line of business" basis;
(g) Notice of Default. Promptly after any officer
of Interface or any other Borrower has notice or knowledge of the
occurrence of an Event of Default or a Default, a certificate of the
chief financial officer or principal accounting officer of Interface
specifying the nature thereof and the proposed response thereto;
(h) Asset Sales. Together with the financial state-
ments required pursuant to subsection (a) above, a certificate of the
chief financial officer or principal accounting officer of Interface
reporting all Asset Sales effected by the Consolidated Companies during
the fiscal year covered by such financial statements which involved Asset
Values in excess of $1,000,000 in any single transaction or related se-
ries of transactions, including the Asset Value of such assets and the
amounts received by the Consolidated Companies with respect to such
sales, and such other information regarding such transactions as any
Co-Agent or Lender may reasonably request;
(i) Litigation. Promptly after (i) the occurrence
thereof, notice of the institution of or any material adverse development
in any material action, suit or proceeding or any governmental
investigation or any arbitration, before any court or arbitrator or any
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governmental or administrative body, agency or official, against any
Consolidated Company, or any material property of any thereof, or
(ii) actual knowledge thereof, notice of the threat of any such action,
suit, proceeding, investigation or arbitration;
(j) Environmental Notices. Promptly after receipt
thereof, notice of any actual or alleged violation, or notice of any
action, claim or request for information, either judicial or
administrative, from any governmental authority relating to any actual or
alleged claim, notice of potential responsibility under or violation of
any Environmental Law, or any actual or alleged spill, leak, disposal or
other release of any waste, petroleum product, or hazardous waste or
Hazardous Substance by any Consolidated Company which could result in
penalties, fines, claims or other liabilities to any Consolidated Company
in amounts in excess of $1,000,000;
(k) ERISA. (A)(i) Promptly after the occurrence
thereof with respect to any Plan of any Consolidated Company or any ERISA
Affiliate thereof, or any trust established thereunder, notice of (A) a
"reportable event" described in Section 4043 of ERISA and the regulations
issued from time to time thereunder (other than a "reportable event" not
subject to the provisions for 30-day notice to the PBGC under such
regulations), or (B) any other event which could subject any
Consolidated Company to any tax, penalty or liability under Title I or
Title IV of ERISA or Chapter 43 of the Tax Code, or any tax or penalty
resulting from a loss of deduction under Sections 162, 404 or 419 of the
Tax Code, or any tax, penalty or liability under any Requirement of Law
applicable to any Foreign Plan, where any such taxes, penalties or li-
abilities exceed or could exceed $1,000,000 in the aggregate;
(ii) Promptly after such notice must be provided to
the PBGC, or to a Plan participant, beneficiary or alter-
native payee, any notice required under Section 101(d),
302(f)(4), 303, 307, 4041(b)(1)(A) or 4041(c)(1)(A) of
ERISA or under Section 401(a)(29) or 412 of the Tax Code
with respect to any Plan of any Consolidated Company or
any ERISA Affiliate thereof;
(iii) Promptly after receipt, any notice received by
any Consolidated Company or any ERISA Affiliate thereof
concerning the intent of the PBGC or any other
governmental authority to terminate a Plan of such Company
or ERISA Affiliate thereof which is subject to Title IV of
ERISA, to impose any liability on such Company or ERISA
Affiliate under Title IV of ERISA or Chapter 43 of the Tax
Code;
(iv) Promptly upon the filing thereof with the
Internal Revenue Service ("IRS") or the Department of
Labor ("DOL"), a copy of IRS Form 5500 or annual report
for each Plan of any Consolidated Company or ERISA
Affiliate thereof which is subject to Title IV of ERISA;
(v) Upon the request of the Co-Agents, (A) true and
complete copies of any and all documents, government re-
ports and IRS determination or opinion letters or rulings
for any Plan of any Consolidated Company from the IRS,
PBGC or DOL, (B) any reports filed with the IRS, PBGC or
DOL with respect to a Plan of the Consolidated Companies
or any ERISA Affiliate thereof, or (C) a current statement
of withdrawal liability for each Multiemployer Plan of any
Consolidated Company or any ERISA Affiliate thereof;
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(B) Promptly upon any Consolidated Company becoming aware
thereof, notice that (i) any material contributions to any Foreign Plan
have not been made by the required due date for such contribution and
such default cannot immediately be remedied, (ii) any Foreign Plan is not
funded to the extent required by the law of the jurisdiction whose law
governs such Foreign Plan based on the actuarial assumptions reasonably
used at any time, or (iii) a material change is anticipated to any
Foreign Plan that may have a Materially Adverse Effect.
(l) Liens. Promptly upon any Consolidated Company
becoming aware thereof, notice of the filing of any federal statutory
Lien, tax or other state or local government Lien or any other Lien
affecting their respective properties, other than those Liens expressly
permitted by Section 7.02;
(m) Domestication of Subsidiaries. Not less than
30 days prior thereto, notice of any intended domestication of any
Foreign Subsidiary as a United States corporation, whether by merger,
stock transfer or otherwise;
(n) Public Filings, Etc. Promptly upon the filing
thereof or otherwise becoming available, copies of all financial
statements, annual, quarterly and special reports, proxy statements and
notices sent or made available generally by Interface to its public
security holders, of all regular and periodic reports and all
registration statements and prospectuses, if any, filed by any of them
with any securities exchange, and of all press releases and other
statements made available generally to the public containing material
developments in the business or financial condition of Interface and the
other Consolidated Companies;
(o) Accountants' Reports. Promptly upon receipt
thereof, copies of all financial statements of, and all reports submitted
by, independent public accountants to Interface in connection with each
annual, interim, or special audit of Interface's financial statements,
including without limitation, the comment letter submitted by such
accountants to management in connection with their annual audit;
(p) Burdensome Restrictions, Etc. Promptly upon the
existence or occurrence thereof, notice of the existence or occurrence of
(i) any Contractual Obligation or Requirement of Law described in
Section 5.11, (ii) failure of any Consolidated Company to hold in full
force and effect those trademarks, service marks, patents, trade names,
copyrights, licenses and similar rights necessary in the normal conduct
of its business, the loss or absence of which could have a Materially
Adverse Effect, and (iii) any strike, labor dispute, slow down or work
stoppage as described in Section 5.21;
(q) New Material Subsidiaries. Within 30 days after the
formation or acquisition of any Material Subsidiary, or any other event
resulting in the creation of a new Material Subsidiary, notice of the
formation or acquisition of such Material Subsidiary or such occurrence,
including a description of the assets of such entity, the activities in
which it will be engaged, and such other information as the Co-Agents may
request;
(r) Intercompany Asset Transfers. Promptly upon the
occurrence thereof, notice of the transfer of any assets from any Credit
Party to any other Consolidated Company that is not a Credit Party (in
any transaction or series of related transactions), excluding (i) sales
or other transfers of assets in the ordinary course of business, where
the Asset Value of such assets is greater than $5,000,000, and (ii) sales
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of accounts receivables or undivided ownership interests therein pursuant
to the terms of the Accounts Receivable Facilities.
(s) Asset Sales. At any time that the aggregate amount
of Asset Sales made by the Consolidated Companies after October 2, 1994
exceeds $10,000,000 (based on the Asset Values), prompt notice of any
additional Asset Sale or related series of Asset Sales involving Asset
Values of $1,000,000 or more; and
(t) Other Information. With reasonable promptness, such
other information about the Consolidated Companies as any Co-Agent or
Lender may reasonably request from time to time.
Section 6.08. Financial Covenants.
(a) Working Capital. Maintain as of the last day of each
fiscal quarter Adjusted Working Capital of at least $110,000,000.
(b) Interest Coverage. Maintain as of the last day of
each fiscal quarter, calculated with respect to the immediately preceding
four fiscal quarters, an Interest Coverage Ratio not less than 2.25 to
1.00.
(c) Funded Debt Coverage. Maintain as of the last day of
each fiscal quarter, a maximum Funded Debt Coverage Ratio as shown below
for each fiscal quarter ending during the periods indicated:
Maximum Funded
Debt Coverage
Period Ratio
------ --------------
December 30, 1996 through
June 29, 1997 4.75:1.00
June 30, 1997 and thereafter 4.50:1.00
(d) Senior Funded Debt to Total Capitalization. Maintain
as of the last day of each fiscal quarter a maximum ratio of Senior
Funded Debt to Total Capitalization, expressed as a percentage, of no
more than 50%.
(e) Leverage Ratio. Maintain as of the last day of each
fiscal quarter a maximum Leverage Ratio of sixty-five percent (65%).
(f) First Fiscal Quarter Calculations. Schedule 6.08
sets forth the calculation of the financial covenant amounts, ratios, and
percentages required by paragraphs (a) through (e) of this Section 6.08
calculated as the end of the first fiscal quarter of Interface's 1997
fiscal year.
Section 6.09. Notices Under Certain Other Indebtedness.
Immediately upon its receipt thereof, Interface shall furnish the Co-
Agents a copy of any notice received by it or any other Consolidated
Company from the holder(s) of Indebtedness referred to in
Section 7.01(b), (c), (e), (g), (i), (j) or (k) (or from any trustee,
agent, attorney, or other party acting on behalf of such holder(s)) in an
amount which, in the aggregate, exceeds $500,000, where such notice
states or claims (i) the existence or occurrence of any default or event
of default with respect to such Indebtedness under the terms of any
indenture, loan or credit agreement, debenture, note, or other document
evidencing or governing such Indebtedness, or (ii) with respect to any
Interface Control Debt, the existence or occurrence of any event or
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condition which requires or permits such holder(s) to exercise rights
under any Change in Control Provision. Interface agrees to take such ac-
tions as may be necessary to require the holder(s) of Interface Control
Debt (or any trustee or agent acting on their behalf) to furnish copies
of all such notices directly to the Co-Agents simultaneously with the
furnishing thereof to Interface, and that such requirement may not be
altered or rescinded without the prior written consent of the Co-Agents.
Section 6.10. Additional Credit Parties and Collateral.
Promptly after (i) the formation or acquisition of any Material Sub-
sidiary not listed on Schedule 5.13, (ii) the transfer of assets to any
Consolidated Company if notice thereof is required to be given pursuant
to Section 6.07(r) and as a result thereof the recipient of such assets
becomes a Material Subsidiary, (iii) the domestication of any Foreign
Subsidiary that is a Material Subsidiary, or (iv) the occurrence of any
other event creating a new Material Subsidiary (other than Interface SPC
which shall not be deemed to be a Material Subsidiary for the purposes of
this Section 6.10), Interface shall execute and deliver, and cause to be
executed and delivered (x) a Pledge Agreement (or, in the case of
Interface Heuga Singapore Pte Ltd. or Interface Heuga Hong Kong Ltd.,
amendments or supplements to the existing Pledge Agreement with respect
to the shares of such Subsidiary, or a new Pledge Agreement with respect
to such shares, as the Co-Agents may require pursuant to the advice of
their counsel) with respect to all capital stock of such Material
Subsidiary if it is not a Foreign Subsidiary, or 66% of the capital stock
of such Material Subsidiary if it is a Foreign Subsidiary directly owned
by Interface or a Subsidiary that is not, and is not directly or
indirectly controlled by, a Foreign Subsidiary, and (y) a Guaranty
Agreement from each such Material Subsidiary that is not a Foreign
Subsidiary, together with related documents of the kind described in
Section 4.01(c), (d), (f), (g), (h), and (r), all in form and substance
satisfactory to the Co-Agents.
Section 6.11. Accounts Receivable Facility. The Accounts
Receivable Facilities shall provide to Interface and those Subsidiaries
that are parties to the Receivables Transfer Agreements financing for
accounts receivable of an aggregate amount outstanding at any time not to
exceed $100,000,000.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Term Loan shall remain outstanding or any
Term Note or other Obligation shall remain unpaid, Interface will not and
will not permit any Subsidiary to:
Section 7.01. Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, other than:
(a) Indebtedness under this Agreement and the Credit
Agreement;
(b) The Senior Subordinated Notes, and other
Indebtedness outstanding on the Closing Date and described
on Schedule 7.01(b);
(c) purchase money Indebtedness to the extent
secured by a Lien permitted by Section 7.02(b) or 7.02(f);
(d) unsecured current liabilities (other than li-
abilities for borrowed money or liabilities evidenced by
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promissory notes, bonds or similar instruments) incurred
in the ordinary course of business and either (i) not more
than 90 days past due, or (ii) being disputed in good
faith by appropriate proceedings with reserves for such
disputed liability maintained in conformity with GAAP;
(e) Indebtedness incurred with respect to (i) the
letters of credit issued for the account of any
Consolidated Company pursuant to the Letter of Credit
Agreement, and (ii) unsecured letters of credit issued for
the account of any Consolidated Subsidiary in the ordinary
course of business in aggregate outstanding stated amounts
not to exceed $5,000,000;
(f) Indebtedness (other than liabilities for
borrowed money or liabilities evidenced by promissory
notes, bonds or similar instruments) permitted under
Section 7.02(c) or (d) or Section 7.06, or permitted under
Section 7.03 in connection with the purchase, lease or
other acquisition of property or assets where such
Indebtedness is to the seller of such property or assets
and represents a deferral of payment for such property or
assets for a period not to exceed the lesser of (i) normal
trade terms for such property or asset, or (ii) 180 days
(commencing from the date of delivery or, if applicable,
the date of installation of such property or asset);
(g) Subordinated Debt (other than the Senior
Subordinated Notes) in an aggregate principal amount not
to exceed $50,000,000;
(h) the Intercompany Loans described on
Schedule 5.20 and any other loans between Consolidated
Companies provided that (i) each loan or other extension
of credit made by a Guarantor to another Consolidated
Company that is not a Guarantor hereunder shall be made
payable on demand and shall not be subordinated to other
obligations of such Consolidated Company and all such
loans and extensions of credit shall not exceed
$35,000,000 in the aggregate at any one time outstanding
(excluding Intercompany Loans listed on Schedule 5.20 and
other Intercompany Loans made for the purpose of and used
reasonably concurrently for acquisitions permitted by Sec-
tion 7.03) unless otherwise agreed in writing by the
Required Lenders, (ii) each loan or other extension of
credit made to a Guarantor by another Consolidated Company
that is not a Guarantor hereunder shall be made on a
subordinated basis consistent with the subordinated
Intercompany Loans in existence on the date of this
Agreement and no portion of the principal amount thereof
shall be payable prior to the Final Maturity Date, and
(iii) such loans or other extensions of credit are
otherwise permitted pursuant to the limitations of Section
7.05(c);
(i) Indebtedness under the Interest Rate Contract(s)
and Currency Contract(s) required to be maintained
pursuant to the Credit Agreement, or other Currency
Contracts entered into in the ordinary course of business
consistent with past practices;
- 54 -
(j) Unsecured lines of credit, revolving credit, and
overdraft credit facilities described on Schedule 7.01(j),
and each extension, renewal, and replacement of such
credit facilities for principal amounts not in excess of
the respective principal amounts shown on
Schedule 7.01(j), and having maturities in each case not
longer than two (2) years with annual renewals thereafter;
(k) Indebtedness, if any, owing by Interface or
Interface SPC pursuant to the Accounts Receivable
Facilities and Indebtedness, if any, owing by any other
Consolidated Company party to the Receivables Transfer
Agreements with respect thereto;
(l) Indebtedness in an aggregate principal amount
not to exceed $15,000,000 under the Distributor Credit
Facilities (including, without limitation, Indebtedness
arising from any Guaranty by Interface or its Subsidiaries
required to be given in respect of a portion of the
Distributor Credit Facilities in connection with the
acquisition of ownership interests in any retail
distributor), together with any extensions or renewals of
such Distributor Credit Facilities to the extent that such
extensions or renewals do not increase the respective
principal amounts that may be outstanding under such
Distributor Credit Facilities; and
(m) other Indebtedness not to exceed $15,000,000 at any
one time outstanding.
Section 7.02. Liens. Create, incur, assume or suffer to
exist any Lien on any of its property now owned or hereafter acquired to
secure any Indebtedness other than:
(a) Liens existing on the date hereof disclosed
on Schedule 7.02;
(b) any Lien on any property securing
Indebtedness incurred or assumed for the purpose of
financing all or any part of the acquisition cost of such
property, provided that such Lien does not extend to any
other property, and provided further that the aggregate
amount of Indebtedness secured by all such Liens at any
time does not exceed $10,000,000;
(c) Liens for taxes not yet due, and Liens for
taxes or Liens imposed by ERISA which are being contested
in good faith by appropriate proceedings and with respect
to which adequate reserves are being maintained;
(d) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and other
Liens imposed by law created in the ordinary course of
business for amounts not yet due or which are being
contested in good faith by appropriate proceedings and
with respect to which adequate reserves are being
maintained;
(e) Liens incurred or deposits made in the
ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders,
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statutory obligations, surety and appeal bonds, bids,
leases, government contracts, performance and return-of-
money bonds and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(f) Liens (other than those permitted by
paragraphs (a) through (e) of this Section 7.02)
encumbering assets having an Asset Value not greater than
$2,000,000 in the aggregate;
(g) Liens (i) in favor of the Collateral Agent
securing the Obligations hereunder and the "Obligations"
as defined in the Credit Agreement, and (ii) securing
Indebtedness under the Interest Rate Contract and Currency
Contract required to be maintained pursuant to the Credit
Agreement (which Liens may be pari passu with the Liens
in favor of the Co-Agents and Lenders securing the Ob-
ligations hereunder and the "Obligations" as defined in
the Credit Agreement, provided that the properties and
assets subject to such Liens, and the terms and conditions
of all agreements and instruments granting or relating to
such Liens, shall be subject to the prior written approval
of the Co-Agents);
(h) Liens on any property included in the "IRB Col-
lateral" as may be approved by the Collateral Agent
pursuant to the terms of the Letter of Credit Agreement;
and
(i) Liens, if any, that may be deemed to have been
granted by any Consolidated Company in favor of SPARCC,
the Bank Purchasers or their respective agents, on
accounts receivable and related property of such
Consolidated Companies as a result of the sale and
assignment thereof (or of undivided ownership interests
therein) to SPARCC, the Bank Purchasers or their
respective agents pursuant to the Accounts Receivable
Facilities.
Section 7.03. Mergers, Acquisitions, Sales, Etc. Merge
or consolidate with any other Person, or sell, lease, or otherwise
dispose of its accounts, property or other assets (including capital
stock of Subsidiaries), or purchase, lease or otherwise acquire all or
any substantial portion of the property or assets (including capital
stock) of any Person; provided, however, that the foregoing restrictions
shall not be applicable to (i) sales of equipment or other personal
property being replaced by other equipment or other personal property
purchased as a Capital Expenditure item, (ii) other Asset Sales (but
excluding Asset Sales occurring as part of any sale and leaseback
transactions permitted by Section 7.06) where, on the date of execution
of a binding obligation to make such Asset Sale (provided that if the
Asset Sale is not consummated within six (6) months of such execution,
then on the date of consummation of such Asset Sale rather than on the
date of execution of such binding obligation), the Asset Value of Asset
Sales occurring after October 2, 1994, taking into account the Asset
Value of the proposed Asset Sale, would not exceed (A) during any fiscal
quarter where Interface's Leverage Ratio for the preceding fiscal quarter
is equal to or greater than 50%, $25,000,000 in the aggregate, (B) during
any fiscal quarter where Interface's Leverage Ratio for the preceding
fiscal quarter is less than 50% but equal to or greater than 35%,
$50,000,000 in the aggregate, and (C) during any fiscal quarter where
Interface's Leverage Ratio for the preceding fiscal quarter is less than
35%, an unlimited amount, and in any such case where the Net Proceeds of
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any such Asset Sale are applied to the extent required by Section 2.03,
(iii) sales of inventory in the ordinary course of business, (iv) sales
of accounts receivable (or of undivided ownership interests therein)
pursuant to the Accounts Receivable Facilities as along as the total
"Investment" of the purchasers party to the Receivables Backup Purchase
Agreements and the Receivable Sale Agreements (as such term is defined in
each such agreement) shall not exceed $100,000,000 in aggregate amount
outstanding at any time, (v) purchases or other acquisitions of all or
any substantial portion of the property or assets of any Person
(including capital stock) during any fiscal year, provided that such
transactions (x) have been approved in advance by a majority of the board
of directors of the seller, and (y) have been demonstrated to the
satisfaction of the Co-Agents, through the preparation and delivery by
Interface to the Lenders prior to the execution of a contractual
obligation to make such purchase, of pro forma financial statements
demonstrating the effect of such transaction (in such detail and using
such form of presentation of historical and forecasted financial infor-
mation as may be satisfactory to the Co-Agents), not to adversely affect
the continued compliance of the Consolidated Companies with the terms of
this Agreement, (vi) Asset Sales occurring as part of any sale and
leaseback transactions permitted pursuant to Section 7.06, or (vii) The
1996 Reorganization Transactions; provided, however, that no transaction
pursuant to clauses (i), (ii), (v) or (vi) above shall be permitted if
any Default or Event of Default otherwise exists at the time of such
transaction or would otherwise exist as a result of such transaction.
Section 7.04. Dividends, Etc. Interface shall not de-
clare or pay any dividend on its capital stock, or make any payment to
purchase, redeem, retire or acquire any of its Subordinated Debt or
capital stock or any option, warrant, or other right to acquire such
Subordinated Debt or capital stock, other than:
(i) dividends payable solely in shares of
capital stock;
(ii) payments made by Interface to repurchase
any shares of Class A Common Stock of Interface
previously delivered as a portion of the
consideration paid in the Prince Street Acquisition,
as may be provided in the Prince Street Acquisition
Agreement; and
(iii) cash dividends declared and paid, and all
other such payments made, after December 29, 1991
(but excluding any payments made pursuant to clause
(ii) above) in an aggregate amount at any time not to
exceed (x) $10,000,000, plus (y) fifty percent (50%)
of Consolidated Net Income (or minus one hundred
percent (100%) of Consolidated Net Loss) earned dur-
ing Interface's 1992 fiscal year and thereafter (such
period to be treated as one accounting period);
provided, however, no such payment may be made pursuant to clause (ii)
above, and no such dividend or other payment may be paid or made pursuant
to clause (iii) above, unless (x) the full amount of the mandatory
prepayment required by Section 2.03(b) has been made, and (y) no Default
or Event of Default exists at the time of such declaration or payment, or
would exist as a result of such declaration or payment. Nothing in this
Section 7.04 shall prevent the conversion of the Convertible Preferred
Stock into the common stock of Interface.
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Section 7.05. Investments, Loans, Etc. Make, permit or
hold any Investments in any Person, or otherwise acquire or hold any
Subsidiaries, other than:
(a) Investments in Subsidiaries that are Guarantors
under this Agreement and Investments by Interface in
Interface SPC in the form of the Receivables Subordinated
Notes;
(b) Investments made and simultaneously used for the
acquisition of the capital stock of any Person, or all or
any substantial portion of the property or assets of any
Person, in an acquisition permitted pursuant to
Section 7.03;
(c) Investments in Subsidiaries, other than those
Subsidiaries that are Guarantors under this Agreement,
made after October 2, 1994, in an aggregate amount not to
exceed $35,000,000 unless otherwise consented to in
writing by the Required Lenders; provided, however, that
no Investment may be made at any time that a Default or
Event of Default has occurred and is continuing or would
exist as a result of such Investment;
(d) direct obligations of the United States or any
agency thereof, or obligations guaranteed by the United
States or any agency thereof, in each case supported by
the full faith and credit of the United States and
maturing within one year from the date of creation
thereof;
(e) commercial paper maturing within one year from
the date of creation thereof rated in the highest grade by
a nationally recognized credit rating agency;
(f) time deposits maturing within one year from the
date of creation thereof with, including certificates of
deposit issued by, any office located in the United States
of any bank or trust company which is organized under the
laws of the United States or any state thereof and has
capital, surplus and undivided profits aggregating at
least $500,000,000, including without limitation, any such
deposits in Eurodollars issued by a foreign branch of any
such bank or trust company;
(g) Investments made by Plans and Foreign Plans; and
(h) Investments (other than those permitted by para-
graphs (a) through (g) above) in an aggregate amount not
to exceed an amount equal to 15% of Interface's
Consolidated Net Worth.
Section 7.06. Sale and Leaseback Transactions. Sell or
transfer any property, real or personal, whether now owned or hereafter
acquired, and thereafter rent or lease such property or other property
which any Consolidated Company intends to use for substantially the same
purpose or purposes as the property being sold or transferred, except for
such transactions occurring after the date of this Agreement (i) with
respect to properties first acquired by any of the Consolidated Companies
after the date of this Agreement with the intent at the time of such
acquisition that such properties be the subjects of such transactions,
and such transactions are actually consummated within 60 days after the
initial acquisition of such properties, so long as the Asset Values of
such properties do not exceed $25,000,000 in the aggregate, and (ii) with
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respect to all other properties in all such transactions, so long as the
Asset Values of such other properties do not exceed $5,000,000 in the
aggregate.
Section 7.07. Transactions with Affiliates.
(a) Enter into any material transaction or series of
related transactions which in the aggregate would be material, whether or
not in the ordinary course of business, with any Affiliate of any
Consolidated Company (but excluding any Affiliate which is also a
Consolidated Company), other than on terms and conditions substantially
as favorable to such Consolidated Company as would be obtained by such
Consolidated Company at the time in a comparable arm's-length transaction
with a Person other than an Affiliate.
(b) Convey or transfer to any other Person (including any
other Consolidated Company) any real property, buildings, or fixtures
used in the manufacturing or production operations of any Consolidated
Company, or convey or transfer to any other Consolidated Company any
other assets (excluding conveyances or transfers in the ordinary course
of business) if at the time of such conveyance or transfer any Default or
Event of Default exists or would exist as a result of such conveyance or
transfer.
Section 7.08. Optional Prepayments. Directly or indi-
rectly, prepay, purchase, redeem, retire, defease or otherwise acquire,
or make any optional payment on account of any principal of, interest on,
or premium payable in connection with the optional prepayment, redemption
or retirement of, any of its Indebtedness, or give a notice of redemption
with respect to any such Indebtedness, or make any payment in violation
of the subordination provisions of any Subordinated Debt, except with
respect to (i) the Obligations under this Agreement and the Term Notes,
and Indebtedness arising under the Credit Agreement, (ii) redemptions,
purchases or other acquisition of the Subordinated Debentures as
previously permitted under the Credit Agreement, (iii) prepayments of
Indebtedness outstanding pursuant to revolving credit, overdraft and line
of credit facilities permitted pursuant to Section 7.01, (iv) permitted
prepayments of Indebtedness incurred in connection with industrial
revenue bonds upon the occurrence of a determination of an event of
taxability entitling the holder(s) thereof to receive a higher rate of
interest, (v) Intercompany Loans made or outstanding pursuant to
Section 7.01(h)(i) where demand for payment has been made in accordance
with Section 7.13, and (vi) Intercompany Loans made or outstanding
pursuant to Section 7.01(h)(ii) upon the prior written consent of the Co-
Agents.
Section 7.09. Changes in Business. Enter into any
business which is substantially different from that presently conducted
by the Consolidated Companies taken as a whole, except where the
aggregate Investment made, and other funds expended or committed, with
respect to such business does not exceed $7,500,000.
Section 7.10. ERISA. Take or fail to take any action
with respect to any Plan or Foreign Plan of any Consolidated Company or,
with respect to its ERISA Affiliates, any Plans which are subject to
Title IV of ERISA or to continuation health care requirements for group
health plans under the Tax Code, including without limitation
(i) establishing any such Plan, (ii) amending any such Plan (except where
required to comply with applicable law), (iii) terminating or withdrawing
from any such Plan, or (iv) incurring an amount of unfunded benefit
liabilities, as defined in Section 4001(a)(18) of ERISA, or any
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withdrawal liability under Title IV of ERISA with respect to any such
Plan, or any unfunded liabilities under any Foreign Plan, without first
obtaining the written approval of the Required Lenders, where such
actions or failures could result in a Material Adverse Effect.
Section 7.11. Additional Negative Pledges. Create or
otherwise cause or suffer to exist or become effective, directly or
indirectly, any prohibition or restriction on the creation or existence
of any Lien upon any asset of any Consolidated Company, other than
pursuant to (i) Section 7.02, (ii) the terms of any agreement, instrument
or other document pursuant to which any Indebtedness permitted by
Section 7.02(b) or 7.02(g) is incurred by any Consolidated Company, so
long as such prohibition or restriction applies only to the property or
asset being financed by such Indebtedness, (iii) any requirement of
applicable law or any regulatory authority having jurisdiction over any
of the Consolidated Companies; and (iv) the terms of the Accounts
Receivable Facilities with respect to the accounts receivable and related
property transferred thereunder and the stock and other assets of
Interface SPC.
Section 7.12. Limitation on Payment Restrictions Af-
fecting Consolidated Companies. Create or otherwise cause or suffer to
exist or become effective, any consensual encumbrance or restriction on
the ability of any Consolidated Company to (i) pay dividends or make any
other distributions on such Consolidated Company's stock, other than the
restrictions on payment of dividends on Interface's common stock imposed
in connection with the Convertible Preferred Stock, or (ii) pay any
indebtedness owed to Interface or any other Consolidated Company, or
(iii) transfer any of its property or assets to Interface or any other
Consolidated Company, except any consensual encumbrance or restriction
existing under the Credit Documents or the Credit Agreement.
Notwithstanding the foregoing, nothing in this Section 7.12 shall be
deemed to prohibit restrictions on dividends and distributions payable by
Interface SPC, set forth in, or required by, the terms of any document
executed in connection with the Accounts Receivable Facilities.
Section 7.13. Actions Under Certain Documents. Without
the prior written consent of the Co-Agents (which consent shall not be
unreasonably withheld), modify, amend, cancel or rescind the Intercompany
Loans or Intercompany Loan Documents, or Subordinated Debt or any
agreements or documents evidencing or governing Subordinated Debt (except
that a loan between Consolidated Companies as permitted by
Section 7.01(h) may be modified or amended so long as it otherwise
satisfies the requirements of clause (ii) of Section 7.01(h)), or make
demand of payment or accept payment on any Intercompany Loans permitted
by Section 7.01(h)(ii), except that current interest accrued thereon as
of the date of this Agreement and all interest subsequently accruing
thereon (whether or not paid currently) may be paid unless an Event of
Default has occurred and is continuing. In addition to the foregoing,
without the prior consent of the Co-Agents, the Consolidated Companies
shall not enter into any amendment or modification of the documents
executed in connection with the Accounts Receivable Facilities which
changes the definition of "Investment" or "Event of Termination" used
therein or any other material provision thereof.
Section 7.14. Designated Senior Indebtedness. Without
the prior written consent of the Co-Agents, cause any Indebtedness of
Interface or any of its Subsidiaries, other than Indebtedness owing under
the Credit Agreement, to become "Designated Senior Indebtedness" as
provided in the Senior Subordinated Notes Indenture.
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ARTICLE VIII.
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of any of
the following specified events (each an "Event of Default"):
Section 8.01. Payments. Interface shall fail to make
promptly when due (including, without limitation, by mandatory
prepayment) any principal payment with respect to the Term Loans, or
Interface shall fail to make within five (5) days after the due date
thereof any payment of interest, fee or other amount payable hereunder;
Section 8.02. Covenants Without Notice. Interface shall
fail to observe or perform any covenant or agreement contained in
Sections 6.07(g), 6.08, 6.11, 7.01 through 7.06, 7.08, 7.09, and 7.11
through 7.14;
Section 8.03. Other Covenants. Interface shall fail to
observe or perform any covenant or agreement contained in this Agreement,
other than those referred to in Sections 8.01 and 8.02, and, if capable
of being remedied, such failure shall remain unremedied for 25 days after
the earlier of (i) Interface's obtaining knowledge thereof, or
(ii) written notice thereof shall have been given to Interface by any
Co-Agent or Lender;
Section 8.04. Representations. Any representation or
warranty made or deemed to be made by Interface or any other Credit Party
or by any of its officers under this Agreement or any other Credit
Document (including the Schedules attached thereto), or any certificate
or other document submitted to the Agents or the Lenders by any such
Person pursuant to the terms of this Agreement or any other Credit
Document, shall be incorrect in any material respect when made or deemed
to be made or submitted;
Section 8.05. Non-Payments of Other Indebtedness. Any
Consolidated Company shall fail to make when due (whether at stated
maturity, by acceleration, on demand or otherwise, and after giving
effect to any applicable grace period) any payment of principal of or
interest on any Indebtedness (other than the Obligations) exceeding
$2,500,000 in the aggregate;
Section 8.06. Defaults Under Other Agreements. Any
Consolidated Company shall fail to observe or perform within any
applicable grace period any covenants or agreements contained in any
agreements or instruments relating to any of its Indebtedness exceeding
$2,500,000 in the aggregate, or any other event shall occur if the effect
of such failure or other event is to accelerate, or to permit the holder
of such Indebtedness or any other Person to accelerate, the maturity of
such Indebtedness; or any such Indebtedness shall be required to be
prepaid (other than by a regularly scheduled required prepayment) in
whole or in part prior to its stated maturity;
Section 8.07. Bankruptcy. Interface or any other Ma-
terial Company shall commence a voluntary case concerning itself under
the Bankruptcy Code or applicable foreign bankruptcy laws; or an
involuntary case for bankruptcy is commenced against any Material Company
and the petition is not controverted within 10 days, or is not dismissed
within 60 days, after commencement of the case; or a custodian (as
defined in the Bankruptcy Code) or similar official under applicable
foreign bankruptcy laws is appointed for, or takes charge of, all or any
substantial part of the property of any Material Company; or any
Material Company commences proceedings of its own bankruptcy or to be
granted a suspension of payments or any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors,
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dissolution, insolvency or liquidation or similar law of any jurisdic-
tion, whether now or hereafter in effect, relating to any Material
Company or there is commenced against any Material Company any such
proceeding which remains undismissed for a period of 60 days; or any
Material Company is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding is entered;
or any Material Company suffers any appointment of any custodian or the
like for it or any substantial part of its property to continue
undischarged or unstayed for a period of 60 days; or any Material Company
makes a general assignment for the benefit of creditors; or any Material
Company shall fail to pay, or shall state that it is unable to pay, or
shall be unable to pay, its debts generally as they become due; or any
Material Company shall call a meeting of its creditors with a view to ar-
ranging a composition or adjustment of its debts; or any Material Company
shall by any act or failure to act indicate its consent to, approval of
or acquiescence in any of the foregoing; or any corporate action is taken
by any Material Company for the purpose of effecting any of the
foregoing;
Section 8.08. ERISA. A Plan or Foreign Plan of a Con-
solidated Company or a Plan subject to Title IV of ERISA of any of its
ERISA Affiliates
(i) shall fail to be funded in accordance with the
minimum funding standard required by applicable law, the
terms of such Plan or Foreign Plan, Section 412 of the Tax
Code or Section 302 of ERISA for any plan year or a waiver
of such standard is sought or granted with respect to such
Plan or Foreign Plan under applicable law, the terms of
such Plan or Foreign Plan or Section 412 of the Tax Code
or Section 303 of ERISA; or
(ii)is being, or has been, terminated or the subject of
termination proceedings under applicable law or the terms of such Plan or
Foreign
Plan; or
(iii) shall require a Consolidated Company to provide
security under applicable law, the terms of such Plan or Foreign Plan,
Section 401 or 412 of the Tax Code or Section 306 or 307 of ERISA; or
(iv)results in a liability to a Consolidated Company under
applicale law, the terms of such Plan or Foreign Plan, or Title IV of ERISA;
and there shall result from any such failure, waiver, termination or
other event a liability to the PBGC (or any similar Person with respect
to any Foreign Plan) or a Plan that would have a Materially Adverse
Effect.
Section 8.09. Money Judgment. A judgment or order for
the payment of money in excess of $2,500,000 or otherwise having a
Materially Adverse Effect shall be rendered against Interface or any
other Material Company and such judgment or order shall continue
unsatisfied (in the case of a money judgment) and in effect for a period
of 30 days during which execution shall not be effectively stayed or
deferred (whether by action of a court, by agreement or otherwise);
Section 8.10. Change in Control of Interface. (i) Any
Change in Control shall occur or exist, or (ii) any event or condition
shall occur or exist which, pursuant to the terms of any Change in
Control Provision, requires or permits the holder(s) of Interface Control
Debt to require that such Interface Control Debt be redeemed,
repurchased, defeased, prepaid or repaid, in whole or in part, or the
maturity of such Interface Control Debt to be accelerated in any respect;
provided, however, that no Event of Default hereunder shall be deemed to
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exist upon the occurrence of any event or condition described in the
foregoing clauses (i) or (ii) until thirty (30) days after the first
occurrence or existence of such event or condition;
Section 8.11. Default Under Other Credit Documents.
There shall exist or occur any "Event of Default" as provided under the
terms of any other Credit Document, or any Credit Document ceases to be
in full force and effect or the validity or enforceability thereof is
disaffirmed by or on behalf of Interface or any other Credit Party, or at
any time it is or becomes unlawful for Interface or any other Credit
Party to perform or comply with its obligations under any Credit
Document, or the obligations of Interface or any other Credit Party under
any Credit Document are not or cease to be legal, valid and binding on
Interface or any such Credit Party;
Section 8.12. Default Under Interest Rate Contract or
Currency Contract. Any event or condition shall occur or exist which
causes, or permits any party thereto (other than the Consolidated Company
or Companies party thereto) to cause, the termination or cancellation of
any Interest Rate Contract or Currency Contract (excluding any termi-
nation or cancellation effected at the option of Interface in the
exercise of Interface's business judgment or any other termination or
cancellation of such Interest Rate Contract or Currency Contract not
resulting from any breach of such agreement or default thereunder by any
Consolidated Company or Companies), and as a result of such cancellation
or termination, any of the Consolidated Companies would be required to
make net payments thereunder in excess of $2,500,000 in the aggregate;
Section 8.13. Attachments. An attachment or similar
action shall be made on or taken against any of the assets of any
Consolidated Company with an Asset Value exceeding $5,000,000 in
aggregate and is not removed within 90 days of the same being made;
Section 8.14. Accounts Receivable Facility. There shall
exist and continue for five (5) days any "Event of Termination" as
provided under the terms of any of the Receivables Backup Purchase
Agreements or the Receivables Sale Agreements (collectively, the
"Receivables Securitization Agreements") other than an Event of
Termination which arises from: (i) the matters described in subsection
12.1(f) of the Receivables Securitization Agreements; (ii) any reduction
in Interface's credit rating (or the imputed equivalent thereof);
(iii) the operation of a cross-termination provision in such Receivables
Securitization Agreements (that is, a provision in such Receivables
Securitization Agreements under which the occurrence of any "Event of
Termination" under any other Receivables Securitization Agreement is also
an Event of Termination under such Receivables Securitization Agreements)
which is not otherwise an Event of Default hereunder; (iv) any
Consolidated Company's failure to comply with, or its making of any
changes in or supplements to, its credit and collection policies; (v) any
failure by Interface to maintain the minimum net worth required in
Interface SPC under the terms of such Receivables Securitization
Agreements; (vi) any amendment of the terms of any Consolidated Company's
accounts receivable or any contract relating thereto or any waiver by
such Consolidated Company of the terms and conditions of such contract;
(vii) any change in the character of the business of any of the
Consolidated Companies (which is not a violation of Section 7.09 hereof)
or in their respective credit and collection policies; (viii) Interface
SPC's entering into or becoming a party to any agreement or instruments
incidental to its administration or operation other than those expressly
permitted under the terms of such Receivables Securitization Agreement;
(ix) any determination that the payment by Interface SPC to any of the
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Consolidated Companies of 100% of the net book value of the accounts
receivable does not constitute the "reasonably equivalent value" of the
accounts receivable and related rights sold by such Consolidated Company
to Interface SPC in connection with the Accounts Receivable Facilities;
(x) any change in the Certificate of Incorporation or By-Laws of
Interface SPC; (xi) any failure by Interface SPC or Interface to comply
with any of the affirmative or negative covenants in such Receivables
Securitization Agreement which relate to the establishment and
maintenance of Interface SPC's separate legal identity; (xii) the past-
due or defaulted accounts receivable of any or all of the Consolidated
Companies exceeding any applicable limitations set forth in such
Receivables Securitization Agreement; (xiii) the aggregate "Dilutions"
(as such term is defined in such Receivables Securitization Agreement) on
any or all of the Consolidated Companies' accounts receivable exceeding
any applicable limitation set forth in such Receivables Securitization
Agreement; or (xiv) the "Portfolio Turnover" (as such term is used in
such Receivables Securitization Agreement) exceeding any applicable
limitation set forth in such Receivables Securitization Agreement; or
Section 8.15. Credit Agreement. There shall exist or
occur any "Event of Default" as provided under the terms of the Credit
Agreement.
ARTICLE IX.
THE CO-AGENTS; COLLATERAL AGENT
Section 9.01 Appointment of Co-Agents. Each Lender
hereby designates (i) STBA as Administrative Agent to administer all
matters concerning the Term Loans and to act as herein specified, and
(ii) FNBC as Co-Agent to act as herein specified. Each Lender hereby ir-
revocably authorizes, and each holder of any Term Note by the acceptance
of a Term Note shall be deemed irrevocably to authorize, the Co-Agents to
take such actions on its behalf under the provisions of this Agreement,
the other Credit Documents, and all other instruments and agreements
referred to herein or therein, and to exercise such powers and to perform
such duties hereunder and thereunder as are specifically delegated to or
required of such Co-Agent by the terms hereof and thereof and such other
powers as are reasonably incidental thereto. The Co-Agents may perform
any of their duties hereunder by or through their agents or employees.
Section 9.02. Appointment of Collateral Agent. (a) Each
Co-Agent and each Lender hereby designates STBA as Collateral Agent and
hereby authorizes the Collateral Agent to enter into each of the Security
Documents substantially in the form attached hereto, and to take all
action contemplated thereby. All rights and remedies under the Security
Documents may be exercised by the Collateral Agent for the benefit of the
Co-Agents and the Lenders and the other beneficiaries thereof upon the
terms thereof. The Co-Agents and the Lenders further agree that the
Collateral Agent may assign its rights and obligations as Collateral
Agent under any of the Security Documents to any affiliate of the
Collateral Agent or to any trustee, which assignee in each such case
shall (subject to compliance with any requirements of applicable law
governing the assignment of such Security Documents) be entitled to all
the rights of the Collateral Agent under and with respect to the ap-
plicable Security Document.
(b) In each circumstance where, under any provision of
any Security Document, the Collateral Agent shall have the right to grant
or withhold any consent, exercise any remedy, make any determination or
direct any action by the Collateral Agent under such Security Document,
the Collateral Agent shall act in respect of such consent, exercise of
remedies, determination or action, as the case may be, with the consent
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of and at the direction of the Required Lenders; provided, however, that
no such consent of the Required Lenders shall be required with respect to
any consent, determination or other matter that is, in the Collateral
Agent's judgment, ministerial or administrative in nature; provided, fur-
ther, that in no event shall the Collateral Agent be required, and in all
cases shall be fully justified in failing or refusing, to take any action
under or pursuant to any Security Document which, in the reasonable
opinion of the Collateral Agent, (a) would be contrary to the terms of
any Security Document or would subject it or its officers, employees, or
directors to liability, unless and until the Collateral Agent shall be
indemnified or tendered security to its satisfaction by the Lenders
against any and all loss, cost, expense or liability in connection
therewith, or (b) would be contrary to law, in each case anything herein
or elsewhere contained to the contrary notwithstanding. In each cir-
cumstance where any consent of or direction from the Required Lenders is
required, the Collateral Agent shall send to the Lenders a notice setting
forth a description in reasonable detail of the matter as to which
consent or direction is requested and the Collateral Agent's proposed
course of action with respect thereto. In the event the Collateral Agent
shall not have received a response from any Lender within five (5)
Business Days after such Lender's receipt of such notice, such Lender
shall be deemed to have agreed to the course of action proposed by the
Collateral Agent.
Section 9.03. Nature of Duties of Agents. The Agents
shall have no duties or responsibilities except those expressly set
forth in this Agreement and the other Credit Documents. None of the
Agents nor any of their respective officers, directors, employees or
agents shall be liable for any action taken or omitted by it as such
hereunder or in connection herewith, unless caused by its or their gross
negligence or willful misconduct. The duties of the Agents shall be
ministerial and administrative in nature; the Agents shall not have by
reason of this Agreement a fiduciary relationship in respect of any
Lender; and nothing in this Agreement, express or implied, is intended to
or shall be so construed as to impose upon the Agents any obligations in
respect of this Agreement or the other Credit Documents except as ex-
pressly set forth herein.
Section 9.04. Lack of Reliance on the Agents.
(a) Independently and without reliance upon the Agents,
each Lender, to the extent it deems appropriate, has made and shall
continue to make (i) its own independent investigation of the financial
condition and affairs of the Credit Parties in connection with the taking
or not taking of any action in connection herewith, and (ii) its own
appraisal of the creditworthiness of the Credit Parties, and, except as
expressly provided in this Agreement, the Agents shall have no duty or
responsibility, either initially or on a continuing basis, to provide any
Lender with any credit or other information with respect thereto, whether
coming into its possession before the making of any Term Loans or at any
time or times thereafter.
(b) The Agents shall not be responsible to any Lender for
any recitals, statements, information, representations or warranties
herein or in any document, certificate or other writing delivered in
connection herewith or for the execution, effectiveness, genuineness,
validity, enforceability, collectibility, priority or sufficiency of this
Agreement, the Term Notes, the Guaranty Agreements, the Pledge
Agreements, or any other documents contemplated hereby or thereby, or the
financial condition of the Credit Parties, or be required to make any
inquiry concerning either the performance or observance of any of the
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terms, provisions or conditions of this Agreement, the Term Notes, the
Guaranty Agreements, the Pledge Agreements, or the other documents
contemplated hereby or thereby, or the financial condition of the Credit
Parties, or the existence or possible existence of any Default or Event
of Default; provided, however, to the extent the Agents have been advised
that a Lender has not received any information formally delivered to the
Agents pursuant to Section 6.07, the Agents shall deliver or cause to be
delivered such information to such Lender.
Section 9.05. Certain Rights of the Agents. If any Agent
shall request instructions from the Required Lenders with respect to any
action or actions (including the failure to act) in connection with this
Agreement, such Agent shall be entitled to refrain from such act or
taking such act, unless and until the Agent shall have received
instructions from such Lenders; and the Agent shall not incur liability
to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against
any Agent as a result of such Agent acting or refraining from acting
hereunder in accordance with the instructions of the Required Lenders
where required by the terms of this Agreement.
Section 9.06. Reliance by Agents. The Agents shall be
entitled to rely, and shall be fully protected in relying, upon any note,
writing, resolution, notice, statement, certificate, telex, teletype or
telecopier message, cable gram, radiogram, order or other documentary,
teletransmission or telephone message believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person. The
Agents may consult with legal counsel (including counsel for any Credit
Party), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken by it
in good faith in accordance with the advice of such counsel, accountants
or experts.
Section 9.07. Indemnification of Agents. To the extent
the Agents are not reimbursed and indemnified by the Credit Parties, each
Lender will reimburse and indemnify each Agent, ratably according to the
respective principal amounts of the Term Loans outstanding by each
Lender, for and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including
counsel fees and disbursements) or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against such
Agent in performing its duties hereunder, in any way relating to or
arising out of this Agreement or the other Credit Documents; provided
that no Lender shall be liable to any Agent for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent's gross
negligence or willful misconduct.
Section 9.08. The Agents in their Individual Capacity.
With respect to its obligation to lend under this Agreement, the Term
Loans made by it and the Term Notes issued to it, each Agent shall have
the same rights and powers hereunder as any other Lender or holder of a
Term Note and may exercise the same as though it were not performing the
duties specified herein; and the terms "Lenders", "Required Lenders",
"holders of Term Notes", or any similar terms shall, unless the context
clearly otherwise indicates, include each of the Agents in its individual
capacity. The Agents may accept deposits from, lend money to, and
generally engage in any kind of banking, trust, financial advisory or
other business with the Consolidated Companies or any affiliate of the
Consolidated Companies as if it were not performing the duties specified
herein, and may accept fees and other consideration from the Consolidated
Companies for services in connection with this Agreement and otherwise
without having to account for the same to the Lenders.
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Section 9.09. Holders of Term Notes. The Agents may deem
and treat the payee of any Term Note as the owner thereof for all pur-
poses hereof unless and until a written notice of the assignment or
transfer thereof shall have been filed with the Agents. Any request,
authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is the holder of any Term
Note shall be conclusive and binding on any subsequent holder, transferee
or assignee of such Term Note or of any Term Note or Notes issued in
exchange therefor.
Section 9.10. Successor Agents.
(a) Any Agent may resign at any time by giving written
notice thereof to the Lenders and Interface and may be removed at any
time with or without cause by the Required Lenders; provided, however,
the Collateral Agent may not resign or be removed except where the
Collateral Agent is also resigning or being removed and a successor
Collateral Agent has been appointed under this Agreement and the Credit
Agreement and shall have accepted such appointment. Upon any such
resignation or removal, the Required Lenders shall have the right, upon
five days' notice to Interface, to appoint a successor Agent; provided,
however, that no Person shall be appointed as a successor Collateral
Agent by the Required Lenders unless such Person is simultaneously being
appointed as Collateral Agent under the Credit Agreement. If no suc-
cessor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Agent's giving of notice of resignation or the Required Lenders' removal
of the retiring Agent, then, upon five days' notice to Interface, the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent,
which shall (i) be a bank which maintains an office in the United States,
or a commercial bank organized under the laws of the United States of
America or any State thereof, or any Affiliate of such bank, having a
combined capital and surplus of at least $100,000,000, and (ii) in the
case of a successor Collateral Agent, simultaneously be appointed as
Collateral Agent under the Credit Agreement.
(b) Upon the acceptance of any appointment as an Agent
hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring
Agent's resignation or removal hereunder as Agent, the provisions of this
Article IX shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was an Agent under this Agreement.
Section 9.11. Interests of FNBC and its Affiliates. Each
of the Lenders confirms and acknowledges that FNBC has advised it that
FNBC has engaged in other transactions with, and performed financial
advisory services for, Interface, and further that certain affiliates of
FNBC and a partnership comprised of employees of an FNBC affiliate
maintain ownership interests in Bentley, as follows: (i) FNBC is party
to certain interest rate and currency exchange swap agreements and
forward rate agreements with one or more of the Consolidated Companies,
(ii) FNBC, through its Mergers and Acquisitions Group, served as
financial advisor to Interface in connection with the Bentley
Acquisition, (iii) prior to the Bentley Acquisition, First Chicago
Investment Corporation, First Capital Corporation of Chicago, and a
partnership comprised of certain employees of First Capital Corporation
of Chicago (collectively, the "FNBC Affiliates") owned, in the aggregate,
a majority of the capital stock of Bentley, and (iv) prior to the Bentley
Acquisition, the FNBC Affiliates elected a majority of the members of the
Bentley board of directors, including the member designated by the
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Bentley board of directors to negotiate the sale of Bentley to Interface.
The FNBC Affiliates own a majority of the preferred stock issued by
Interface as a portion of the purchase price for Bentley, and FNBC may
continue to engage in other transactions with, and perform financial
advisory services for, Interface and other Consolidated Companies. None
of the foregoing relationships or ownership interests shall preclude FNBC
from serving as Co-Agent hereunder or from exercising all rights,
privileges and remedies of a Lender under this Agreement without regard
to such relationships or ownership interests.
ARTICLE X.
MISCELLANEOUS
Section 10.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank
wire, telex, telecopy or similar teletransmission or writing) and shall
be given to such party at its address or applicable teletransmission
number set forth on the signature pages hereof, or such other address or
applicable teletransmission number as such party may hereafter specify by
notice to the Co-Agents and Interface. Each such notice, request or
other communication shall be effective (i) if given by telex, when such
telex is transmitted to the telex number specified in this Section and
the appropriate answerback is received, (ii) if given by mail, 72 hours
after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, (iii) if given by telecopy, when
such telecopy is transmitted to the telecopy number specified in this
Section and the appropriate confirmation is received, or (iv) if given by
any other means (including, without limitation, by air courier), when
delivered or received at the address specified in this Section; provided
that notices to the Co-Agents shall not be effective until received.
Section 10.02. Amendments, Etc. No amendment or waiver
of any provision of this Agreement or the other Credit Documents, nor
consent to any departure by any Credit Party therefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Required Lenders, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given;
provided that no amendment, waiver or consent shall, unless in writing
and signed by all the Lenders do any of the following: (i) waive any of
the conditions specified in Section 4.01, (ii) increase the Term Loan
Commitments or other contractual obligations to Interface under this
Agreement, (iii) reduce the principal of, or interest on, the Term Notes
or any fees hereunder, (iv) postpone any date fixed for the payment in
respect of principal of, or interest on, the Term Notes or any fees
hereunder, (v) change the percentage of the Term Loan Commitments or of
the aggregate unpaid principal amount of the Term Notes, or the number
or identity of Lenders which shall be required for the Lenders or any of
them to take any action hereunder, (vi) agree to release any of the
Pledged Stock from the Lien of the Security Documents to the extent
securing the Obligations or to release any Guarantor from its obligations
under any Guaranty Agreement (provided, that no agreement to any such
release shall be required from any Lenders in connection with the
transactions described in the proviso set forth in the definition of
"Pledged Stock" or in connection with a sale of Pledged Stock that is
made at a time when Interface has satisfied the requirements set forth in
Section 7.03(ii)(C) with respect to such sale), or (vii) amend this
Section 10.02 or Section 10.06. Notwithstanding the foregoing, no
amendment, waiver or consent shall, unless in writing and signed by the
Co-Agents or the Collateral Agent, as the case may be, in addition to the
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Lenders required hereinabove to take such action, affect the rights or
duties of the Co-Agents or the Collateral Agent, as the case may be,
under this Agreement or under any other Credit Document.
Section 10.03. No Waiver; Remedies Cumulative. No
failure or delay on the part of the Co-Agents, the Collateral Agent, any
Lender or any holder of a Term Note in exercising any right or remedy
hereunder or any other Credit Document, and no course of dealing between
any Credit Party and the Co-Agents, the Collateral Agent, any Lender or
the holder of any Term Note shall operate as a waiver thereof, nor shall
any single or partial exercise of any right or remedy hereunder or any
other Credit Document preclude any other or further exercise thereof or
the exercise of any other right or remedy hereunder or thereunder. The
rights and remedies herein expressly provided are cumulative and not
exclusive of any rights or remedies which the Co-Agents, the Collateral
Agent, any Lender or the holder of any Term Note would otherwise have.
No notice to or demand on any Credit Party not required hereunder or any
other Credit Document in any case shall entitle any Credit Party to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Co-Agents, the Collateral
Agent, the Lenders or the holder of any Term Note to any other or further
action in any circumstances without notice or demand.
Section 10.04. Payment of Expenses, Etc. Interface
shall:
(i) whether or not the transactions hereby
contemplated are consummated, pay all reasonable, out-of-
pocket costs and expenses of the Agents in the
administration (both before and after the execution hereof
and including advice of counsel as to the rights and
duties of the Agents and the Lenders with respect thereto)
of, and in connection with the preparation, execution and
delivery of, preservation of rights under, enforcement of,
and, after a Default or Event of Default, refinancing,
renegotiation or restructuring of, this Agreement and the
other Credit Documents and the documents and instruments
referred to therein, and any amendment, waiver or consent
relating thereto (including, without limitation, the
reasonable fees and disbursements of counsel for the
Agents), and in the case of enforcement of this Agreement
or any Credit Document after an Event of Default, all such
reasonable, out-of-pocket costs and expenses (including,
without limitation, the reasonable fees and disbursements
of counsel), for any of the Lenders;
(ii) subject, in the case of certain Taxes, to the
applicable provisions of Section 3.07(b), pay and hold
each of the Lenders harmless from and against any and all
present and future stamp, documentary, and other similar
Taxes with respect to this Agreement, the Term Notes, and
any other Credit Documents, any collateral described
therein, or any payments due thereunder, and save each
Lender harmless from and against any and all liabilities
with respect to or resulting from any delay or omission to
pay such Taxes;
(iii) indemnify each Agent and Lender, and their
respective officers, directors, employees, representatives
and agents from, and hold each of them harmless against,
any and all costs, losses, liabilities, claims, damages or
expenses incurred by any of them (whether or not any of
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them is designated a party thereto) (an "Indemnitee")
arising out of or by reason of any investigation,
litigation or other proceeding related to any actual or
proposed use of the proceeds of any of the Term Loans, or
any Credit Party's entering into and performing of the
Agreement, the Term Notes, or the other Credit Documents,
including, without limitation, the reasonable fees and
disbursements of counsel (including foreign counsel)
incurred in connection with any such investigation,
litigation or other proceeding; provided, however,
Interface shall not be obligated to indemnify any
Indemnitee for any of the foregoing arising out of such
Indemnitee's gross negligence or willful misconduct, or
the violation by such Indemnitee of any law, rule or
regulation, unless such violation occurs directly or
indirectly as a result of an action, inaction,
representation or misrepresentation by or on behalf of any
Credit Party or other Consolidated Company; and
(iv) without limiting the indemnities set forth in
subsection (iii) above, indemnify each Indemnitee for any
and all expenses and costs (including without limitation,
remedial, removal, response, abatement, cleanup,
investigative, closure and monitoring costs), losses,
claims (including claims for contribution or indemnity and
including the cost of investigating or defending any claim
and whether or not such claim is ultimately defeated, and
whether such claim arose before, during or after any
Credit Party's ownership, operation, possession or control
of its business, property or facilities or before, on or
after the date hereof, and including also any amounts paid
incidental to any compromise or settlement by the
Indemnitee or Indemnitees to the holders of any such
claim), lawsuits, liabilities, obligations, actions, judg-
ments, suits, disbursements, encumbrances, liens, damages
(including without limitation damages for contamination or
destruction of natural resources), penalties and fines of
any kind or nature whatsoever (including without
limitation in all cases the reasonable fees, other charges
and disbursements of counsel in connection therewith)
incurred, suffered or sustained by that Indemnitee based
upon, arising under or relating to Environmental Laws
based on, arising out of or relating to in whole or in
part, the existence or exercise of any rights or remedies
by any Indemnitee under this Agreement, any other Credit
Document or any related documents (but excluding those
incurred, suffered or sustained by any Indemnitee as a
result of any action taken by or on behalf of the Lenders
with respect to any Subsidiary of Interface owned or
controlled by the Lenders, the Collateral Agent, or their
nominees or designees, as a result of their acquisition of
Pledged Stock pursuant to exercise of remedies under the
Pledge Agreements).
If and to the extent that the obligations of Interface under this
Section 10.04 are unenforceable for any reason, Interface hereby agrees
to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
Section 10.05. Right of Setoff. In addition to and not
in limitation of all rights of offset that any Lender or other holder of
a Term Note may have under applicable law, each Lender or other holder of
a Term Note shall, upon the occurrence of any Event of Default and
- 70 -
whether or not such Lender or such holder has made any demand or any
Credit Party's obligations are matured, have the right to appropriate and
apply to the payment of any Credit Party's obligations hereunder and the
other Credit Documents, all deposits of any Credit Party (general or
special, time or demand, provisional or final) then or thereafter held by
and other indebtedness or property then or thereafter owing by such
Lender or other holder to any Credit Party, whether or not related to
this Agreement or any transaction hereunder.
Section 10.06. Benefit of Agreement.
(a) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of
the parties hereto, provided that Interface may not assign or transfer
any of its interest hereunder without the prior written consent of the
Lenders.
(b) Any Lender may make, carry or transfer Term Loans at,
to or for the account of, any of its branch offices or the office of an
Affiliate of such Lender.
(c) Each Lender may assign all or a portion of its
interests, rights and obligations under this Agreement (including all or
a portion of its Term Loans at the time owing to it and the Term Notes
held by it) to any Eligible Assignee; provided, however, that (i) the Co-
Agents and Interface must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld), (ii) the
aggregate amount of the outstanding Term Loans of the assigning Lender
that are subject to such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to
the Co-Agents) shall not be less than $5,000,000, (iii) the assigning
Lender retains after the consummation of such assignment a minimum
aggregate amount of Term Loans of $5,000,000, (iv) the parties to each
such assignment shall execute and deliver to the Co-Agents an Assignment
and Acceptance, together with a Term Note or Notes subject to such
assignment and a processing and recordation fee of $2500, and (v) the
assigning Lender shall also assign to such Eligible Assignee a
corresponding portion of its interest, rights and obligations under the
Credit Agreement in respect of such assigning Lender's Credit Agreement
Term Loans; provided, further, that in the case of any assignment made
(x) at any time there exists an Event of Default hereunder, (y) where
such assigning Lender is assigning the entire amount of its Term Loans
hereunder, or (z) where such assigning Lender is assigning to one of its
Affiliates or to a Person that is already a Lender under this Agreement
prior to giving effect to such assignment, then and in any such
assignment described in the preceding clauses (x), (y), or (z), the
minimum amounts specified in clauses (ii) and (iii) in this sentence
shall not be required. From and after the effective date specified in
each Assignment and Acceptance, which effective date shall be at least
five (5) Business Days after the execution thereof, the assignee
thereunder shall be a party hereto and to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement. Within five (5) Business
Days after receipt of the notice and the Assignment and Acceptance,
Interface, at its own expense, shall execute and deliver to the
Administrative Agent, in exchange for the surrendered Term Note or Notes,
a new Term Note or Notes to the order of such assignee in a principal
amount equal to the applicable Term Loans assumed by it pursuant to such
Assignment and Acceptance and new Term Note or Notes to the assigning
Lender in the amount of its retained Term Loans. Such new Term Note or
Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Term Note or Notes, shall be dated
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the date of the surrendered Term Note or Notes which they replace, and
shall otherwise be in substantially the form attached hereto.
(d) Each Lender may, without the consent of Interface or
the Agents, sell participations to one or more banks or other entities in
all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Term Loans and the Term Notes held by
it); provided, however, that (i) no Lender may sell a participation in
its aggregate Term Loans (after giving effect to any permitted assignment
hereof) in an amount in excess of fifty percent (50%) of such aggregate
Term Loans, except that no such maximum amount shall be applicable to any
such participation sold at any time there exists an Event of Default
hereunder, (ii) such Lender's obligations under this Agreement shall
remain unchanged, (iii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, and
(iv) the participating bank or other entity shall not be entitled to the
benefit (except through its selling Lender) of the cost protection
provisions contained in Article III of this Agreement, and (v) Interface
and the Agents and other Lenders shall continue to deal solely and
directly with each Lender in connection with such Lender's rights and
obligations under this Agreement and the other Credit Documents, and
such Lender shall retain the sole right to enforce the obligations of
Interface relating to the Term Loan and to approve any amendment,
modification or waiver of any provisions of this Agreement and the other
Credit Documents.
(e) Any Lender or participant may, in connection with the
assignment or participation or proposed assignment or participation,
pursuant to this Section, disclose to the assignee or participant or
proposed assignee or participant any information relating to Interface or
the other Consolidated Companies furnished to such Lender by or on behalf
of Interface or any other Consolidated Company; provided that, prior to
any such disclosure of information designated by Interface as
confidential, the Lender proposing to make such assignment or sell such
participation shall obtain from such prospective assignee or participant
an agreement whereby such prospective assignee or participant shall agree
to preserve the confidentiality of such confidential information con-
sistent with the provisions of Section 6.05.
(f) Any Lender may at any time assign all or any portion
of its rights in this Agreement and the Term Notes issued to it to a
Federal Reserve Bank; provided that no such assignment shall release the
Lender from any of its obligations hereunder.
(g) If (i) any Taxes referred to in Section 3.07(b) have
been levied or imposed so as to require withholdings or deductions by
Interface and payment by Interface of additional amounts to any Lender as
a result thereof, (ii) any Lender shall make demand for payment of any
material additional amounts as compensation for increased costs or for
its reduced rate of return pursuant to Section 3.10 or 3.17 hereof, or
(iii) any Lender shall decline to consent to a modification or waiver of
the terms of this Agreement or the other Credit Documents requested by
Interface, then and in such event, upon request from Interface delivered
to such Lender and the Co-Agents, such Lender shall assign, in accordance
with the provisions of Section 10.06(c), all of its rights and
obligations under this Agreement and the other Credit Documents to
another Lender or an Eligible Assignee selected by Interface, in
consideration for the payment by such assignee to the Lender of the
principal of, and interest on, the outstanding Term Loans accrued to the
date of such assignment, and the assumption of such Lender's Term Loan
Commitment hereunder, together with any and all other amounts owing to
such Lender under any provisions of this Agreement or the other Credit
Documents accrued to the date of such assignment.
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Section 10.07. Governing Law; Submission to Jurisdiction.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND UNDER THE TERM NOTES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAW PRINCIPLES THEREOF) OF THE STATE OF GEORGIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT, THE TERM NOTES OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN
THE SUPERIOR COURT OF FULTON COUNTY, GEORGIA, OR THE SUPERIOR COURT OF
COBB COUNTY, GEORGIA, OR IN ANY COURT OF THE UNITED STATES OF AMERICA FOR
THE NORTHERN DISTRICT OF GEORGIA, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, INTERFACE HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVE TRIAL BY
JURY, AND INTERFACE HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS.
(c) INTERFACE HEREBY IRREVOCABLY DESIGNATES EACH OF G.
KIMBROUGH TAYLOR, JR. AND KILPATRICK STOCKTON LLP, EACH OF ATLANTA,
GEORGIA, AS ITS DESIGNEE, APPOINTEE AND LOCAL AGENT TO RECEIVE, FOR AND
ON BEHALF OF INTERFACE, SERVICE OF PROCESS IN SUCH RESPECTIVE
JURISDICTIONS IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR THE TERM NOTES OR ANY DOCUMENT RELATED THERETO. IT IS
UNDERSTOOD THAT A COPY OF SUCH PROCESS SERVED ON EITHER SUCH LOCAL AGENT
WILL BE PROMPTLY FORWARDED BY MAIL TO INTERFACE AT ITS ADDRESS SET FORTH
OPPOSITE ITS SIGNATURE BELOW, BUT THE FAILURE OF INTERFACE TO RECEIVE
SUCH COPY SHALL NOT AFFECT IN ANY WAY THE SERVICE OF SUCH PROCESS. IF
FOR ANY REASON SERVICE OF PROCESS CANNOT PROMPTLY BE MADE ON EITHER SUCH
LOCAL AGENT, INTERFACE FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO INTERFACE AT ITS SAID ADDRESS, SUCH SERVICE TO
BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
(d) Nothing herein shall affect the right of the Agents,
any Lender, any holder of a Term Note or any Credit Party to serve
process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against Interface in any other
jurisdiction.
Section 10.08. Independent Nature of Lenders' Rights.
The amounts payable at any time hereunder to each Lender shall be a
separate and independent debt, and each Lender shall be entitled to
protect and enforce its rights pursuant to this Agreement and its Term
Notes, and it shall not be necessary for any other Lender to be joined as
an additional party in any proceeding for such purpose.
Section 10.09. Counterparts. This Agreement may be
executed in any number of counterparts and by the different parties
hereto on separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together
constitute one and the same instrument.
Section 10.10. Survival. (a) The obligations of
Interface under Sections 5.07(b), 3.10, 3.12, 3.13, 3.17, and 10.04
hereof shall survive the payment in full of the Term Notes after the
Final Maturity Date. All representations and warranties made herein, in
the certificates, reports, notices, and other documents delivered pursu-
- 73 -
ant to this Agreement shall survive the execution and delivery of this
Agreement, the other Credit Documents, and such other agreements and
documents, the making of the Term Loans hereunder, the execution and
delivery of the Term Notes.
(b) The obligations of the Co-Agents, the Lenders, their
assignees and participants under Sections 3.07(b), 6.05 and 10.06(e)
hereof shall survive the payment in full of the Term Notes after the
Final Maturity Date.
Section 10.11. Severability. In case any provision in or
obligation under this Agreement or the other Credit Documents shall be
invalid, illegal or unenforceable, in whole or in part, in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any
other jurisdiction, shall not in any way be affected or impaired thereby.
Section 10.12. Independence of Covenants. All covenants
hereunder shall be given independent effect so that if a particular
action or condition is not permitted by any of such covenants, the fact
that it would be permitted by an exception to, or be otherwise within the
limitation of, another covenant, shall not avoid the occurrence of a
Default or an Event of Default if such action is taken or condition
exists.
Section 10.13. Change in Accounting Principles, Fiscal
Year or Tax Laws. If (i) any preparation of the financial statements
referred to in Section 6.07 hereafter occasioned by the promulgation of
rules, regulations, pronouncements and opinions by or required by the
Financial Accounting Standards Board or the American Institute of
Certified Public Accountants (or successors thereto or agencies with
similar functions) result in a material change in the method of
calculation of financial covenants, standards or terms found in this
Agreement, (ii) there is any change in Interface's fiscal quarter or
fiscal year, or (iii) there is a material change in federal tax laws
which materially affects any of the Consolidated Companies' ability to
comply with the financial covenants, standards or terms found in this
Agreement, the parties agree to enter into negotiations in order to amend
such provisions so as to equitably reflect such changes with the desired
result that the criteria for evaluating any of the Consolidated
Companies' financial condition shall be the same after such changes as if
such changes had not been made. Unless and until such provisions have
been so amended, the provisions of this Agreement shall govern.
Section 10.14. Headings Descriptive; Entire Agreement.
The headings of the several sections and subsections of this Agreement
are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Agreement. This
Agreement, the other Credit Documents, and the agreements and documents
required to be delivered pursuant to the terms of this Agreement
constitute the entire agreement among the parties hereto and thereto
regarding the subject matters hereof and thereof and supersede all prior
agreements, representations and understandings related to such subject
matters.
- 74 -
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in Atlanta, Georgia, by their
duly authorized officers as of the day and year first above written.
Address for Notices: INTERFACE, INC.
2859 Paces Ferry Road
Suite 2000
Atlanta, GA 30339 By: /s/ Daniel T. Hendrix
Attention: Daniel T. Hendrix Daniel T. Hendrix
Senior Vice President
Telex No.:
Answerback:
Telecopy No.: 404/319-0070
- 75 -
Address for Notices: SUNTRUST BANK, ATLANTA,
as Administrative Agent and Collateral Agent
25 Park Place
23rd Floor
Atlanta, GA 30303
Attention: Thomas R. Banks By: /s/ Thomas R. Banks
Name: Thomas R. Banks
Title: Assistant Vice President
Telex No.: 542210
Answerback: TRUSCO INT ATL
By: /s/ David W. Parker
Telecopy No.: 404/588-8833 Name: David W. Parker
Title: Group Vice President
Payment Office:
25 Park Place, N.E.
Atlanta, GA 30303
Address for Notices: THE FIRST NATIONAL BANK OF CHICAGO,
as Syndication Agent
One First National Plaza
Chicago, Illinois 60670-0324
Attention: Judith L. Cornwell
By: /s/ Judy Cornwell
Name: Judy Cornwell
Title: Authorized Agent
Telex No.:
Answerback:
By: /s/ Noel St. Laurence
Telecopy No.: 312/732-5296 Name: Noel St. Laurence
Title: Authorized Agent
Administrative Office:
One First National Plaza
Chicago, Illinois 60670-0324
Attention: Judith L. Cornwell
Payment Offices:
(See Schedule 4.01)
Address for Notices: SUNTRUST BANK, ATLANTA
25 Park Place
23rd Floor
Atlanta, GA 30303
Attention: Thomas R. Banks By: /s/ Thomas R. Banks
Name: Thomas R. Banks
Title: Assistant Vice President
Telex No.: 542210
Answerback: TRUSCO INT ATL
By: /s/ David W. Parker
Telecopy No.: 404/588-8833 Name: David W. Parker
Title: Group Vice President
Domestic Lending Office:
One Park Place, N.E.
Atlanta, GA 30303
Telex No.: 542210
Answerback: TRUSCO INT ATL
Eurocurrency Lending Office:
One Park Place, N.E.
Atlanta, Georgia 30303
Telex No. 542210
Answerback: TRUSCO INT ATL
PRO RATA
AMOUNT SHARE
TERM LOAN COMMITMENT: $8,250,000 11.00000%
/TABLE
Address for Notices: THE FIRST NATIONAL BANK OF CHICAGO
Mail Suite 0324
One First National Plaza
Chicago, Illinois 60670-0324
Attention: Judith L. Cornwell
By: /s/ Judy Cornwell
Name: Judy Cornwell
Title: Authorized Agent
Telex No.: 4330253
Answerback: FNBC UI
Telecopy No.: 312/732-5296
Administrative Office
One First National Plaza
Chicago, Illinois 60670-0324
Attention: Judith L. Cornwell
Payment Offices:
(See Schedule 4.01)
PRO RATA
AMOUNT SHARE
TERM LOAN COMMITMENT: $8,250,000 11.00000%
Address for Notices: THE BANK OF TOKYO-MITSUBISHI,
LTD., ATLANTA AGENCY
133 Peachtree Street, N.E.
4970 Georgia-Pacific Center
Atlanta, GA 30303
Attention: Brandon Meyerson By: /s/ Brandon A. Meyerson
Name: Brandon A. Meyerson
Telephone: 404/577-2960 Title: Assistant Vice President
Telecopy No.: 404/577-1155
Telex No.: 6827300
Answerback: 6827300BOT ATL
Domestic Lending Office:
4970 Georgia-Pacific Center
133 Peachtree Street, N.E.
Atlanta, Georgia 30303
Eurocurrency Lending Office:
4970 Georgia-Pacific Center
133 Peachtree Street, N.E.
Atlanta, Georgia 30303
PRO RATA
AMOUNT SHARE
TERM LOAN COMMITMENT: $5,100,000 6.80000%
/TABLE
Address for Notices: CIBC INC.
Canadian Imperial Bank of
Commerce
Two Paces West
2727 Paces Ferry Road,
Suite 1200 By: /s/ William Humphries
Atlanta, Georgia 30339 Name: William Humphries
Attention: William Humphries Title: Director, CIBC Wood Gundy
Securities Corp. AS AGENT
Telephone: 770/319-4906
Telecopy No.: 770/319-4954
Domestic Lending Office:
Canadian Imperial Bank of
Commerce
Two Paces West
2727 Paces Ferry Road, Suite 1200
Atlanta, Georgia 30339
Eurocurrency Lending Office:
Canadian Imperial Bank of
Commerce
Two Paces West
2727 Paces Ferry Road, Suite 1200
Atlanta, Georgia 30339
PRO RATA
AMOUNT SHARE
TERM LOAN COMMITMENT: $5,600,000 7.46667%
Address for Notices: CREDITANSTALT-BANKVEREIN
Two Ravinia Drive
Suite 1680 By: /s/ Carl G. Drake
Atlanta, Georgia 30346 Name: Carl G. Drake
Attention: Carl Drake Title: Senior Associate
Telephone: 770/390-1848 By: /s/ Robert M. Biringer
Telecopy No.: 770/390-1851 Name: Robert M. Biringer
Title: Executive Vice President
Domestic Lending Office:
Two Greenwich Plaza
Greenwich, CT 06830-6353
Attn: Lisa Bruno
Eurocurrency Lending Office:
Two Greenwich Plaza
Greenwich, CT 06830-6353
PRO RATA
AMOUNT SHARE
TERM LOAN COMMITMENT: $6,250,000 8.33333%
/TABLE
Address for Notices: CREDIT LYONNAIS ATLANTA AGENCY
Credit Lyonnais Atlanta Agency
303 Peachtree Street, N.E. By: /s/ David M. Cawrse
Suite 4400 Name: David M. Cawrse
Atlanta, GA 30303 Title: First Vice President & Manager
Attention: David Cawrse
Telephone: 404/524-3700
Telecopy No.: 404/584-5249
Domestic Lending Office:
Credit Lyonnais Atlanta Agency
303 Peachtree Street, N.E.
Suite 4400
Atlanta, GA 30303
Eurocurrency Lending Office:
Credit Lyonnais Atlanta Agency
303 Peachtree Street, N.E.
Suite 4400
Atlanta, GA 30303
PRO RATA
AMOUNT SHARE
TERM LOAN COMMITMENT: $5,100,000 6.80000%
Address for Notices: THE SUMITOMO BANK LIMITED
303 Peachtree Street, N.E. By: /s/ Sybil H. Weldon
Suite 4420 Name: Sybil H. Weldon
Atlanta, GA 30308 Title: Vice President & Mgr.
Attention: Roger Arsham
Telephone: 404/524-6544
Telecopy No.: 404/523-7983 By: /s/ Robert N. Arsham
Name: Robert N. Arsham
Domestic Lending Office: Title: Vice President
233 South Wacker Drive
Suite 5400
Chicago, Illinois 60606
Eurocurrency Lending Office:
233 South Wacker Drive
Suite 5400
Chicago, Illinois 60606
PRO RATA
AMOUNT SHARE
TERM LOAN COMMITMENT: $5,100,000 6.80000%
/TABLE
Address for Notices: FIRST UNION NATIONAL BANK OF
GEORGIA
999 Peachtree Street, N.E. By: /s/ Michalene Donegan
9th Floor Name: Michalene Donegan
Atlanta, GA 30309 Title: VP
Attention:Michalene Donegan
Telephone: 404/827-7154
Telecopy No.: 404/827-7199
Domestic Lending Office:
999 Peachtree Street, N.E.
9th Floor
Atlanta, GA 30309
Eurocurrency Lending Office:
999 Peachtree Street, N.E.
9th Floor
Atlanta, GA 30309
PRO RATA
AMOUNT SHARE
TERM LOAN COMMITMENT: $6,350,000 8.46667%
Address for Notices: FLEET BANK OF MAINE
80 Exchange Street By: /s/ Neil C. Buitenhuys
Bangor, Maine 04401 Name: Neil C. Buitenhuys
Attention: Neil C. Buitenhuys Title: Vice President
Telephone: 207/941-6140
Telecopy No.: 207/941-6023
Domestic Lending Office:
511 Congress Street, P. O. Box 1280
Portland, Maine 04104-5006
Eurocurrency Lending Office:
511 Congress Street, P. O. Box 1280
Portland, Maine 04104-5006
PRO RATA
AMOUNT SHARE
TERM LOAN COMMITMENT: $8,800,000 11.73333%
/TABLE
Address for Notices: NATIONSBANK, N.A.
100 North Tryon Street
Mail Code NC1-007-08-11 By: /s/ David H. Dinkins
Charlotte, NC 28255 Name: David H. Dinkins
Attention: Title: Vice President
Telephone: 704/386-2951
Telecopy No.: 704/386-1270
Domestic Lending Office:
One Independence Center
101 North Tryon Street
Mail Code NC1-001-15-03
Charlotte, NC 28255
Eurocurrency Lending Office:
One Independence Center
101 North Tryon Street
Mail Code NC1-001-15-03
Charlotte, NC 28255
PRO RATA
AMOUNT SHARE
TERM LOAN COMMITMENT: $6,350,000 8.46667%
Address for Notices: PNC BANK, NATIONAL ASSOCIATION
One PNC Plaza
Fifth Avenue and Wood Street By: /s/ Robert J. Mitchell, Jr.
Pittsburgh, PA 15265 Name: Robert J. Mitchell, Jr.
Attention: Robert J. Mitchell, Jr. Title: Vice President
Telephone: 412/762-6547
Telecopy No.: 412/762-6484
Domestic Lending Office:
One PNC Plaza
Fifth Avenue and Wood Street
Pittsburgh, PA 15265
Eurocurrency Lending Office:
One PNC Plaza
Fifth Avenue and Wood Street
Pittsburgh, PA 15265
PRO RATA
AMOUNT SHARE
TERM LOAN COMMITMENT: $3,500,000 4.66667%
/TABLE
Address for Notices: WACHOVIA BANK, N.A.
(Formerly Wachovia Bank of Georgia, N.A.)
191 Peachtree Street, N.E.
30th Floor
Atlanta, GA 30383
Attention: Doug Strickland By: /s/ Douglas W. Strickland
Name: Douglas W. Strickland
Telephone: 404/332-1382 Title: Vice President
Telecopy No.: 404/332-6920
Domestic Lending Office:
191 Peachtree Street, N.E.
Atlanta, Georgia 30383
Eurocurrency Lending Office:
191 Peachtree Street, N.E.
Atlanta, Georgia 30383
PRO RATA
AMOUNT SHARE
TERM LOAN COMMITMENT: $6,350,000 8.46667%