Exhibit 10.1
AMENDMENT NO. 1 TO
THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment") made and entered into as of December 19, 2000, by
and among INTERFACE, INC., a Georgia corporation ("Interface"), INTERFACE EUROPE
B.V., a "besloten vennootschap met beperkte aansprakelijkheid" (private company
with limited liability) incorporated and existing under the laws of The
Netherlands with its registered seat in Scherpenzeel, Gld., The Netherlands
("Europe B.V."), INTERFACE EUROPE LIMITED, a private company limited by shares
organized and existing under the laws of England and Wales ("Europe Limited"),
and each other Foreign Subsidiary (as hereinafter defined) that has become a
"Multicurrency Borrower" hereunder as provided in Section 3.09 hereof (each an
"Additional Multicurrency Borrower" and collectively, the "Additional
Multicurrency Borrowers"; Interface, Europe B.V., Europe Limited, and all
Additional Multicurrency Borrowers referred to collectively herein as the
"Borrowers"), SUNTRUST BANK (formerly SunTrust Bank, Atlanta), a banking
corporation organized under the laws of the State of Georgia ("STBA"), BANK ONE,
NA (formerly The First National Bank of Chicago), a national banking association
("Bank One"), the other banks and lending institutions listed on the signature
pages hereof, and any assignees of STBA, Bank One, or such other banks and
lending institutions which become "Lenders" as provided herein (STBA, Bank One,
and such other banks, lending institutions, and assignees referred to
collectively herein as the "Lenders"), SUNTRUST BANK (formerly SunTrust Bank,
Atlanta), in its capacity as agent for those Lenders having Domestic Syndicated
Loan Commitments or having outstanding Domestic Syndicated Loans as provided
herein, and each successor agent for such Lenders as may be appointed from time
to time pursuant to Article X hereof (the "Domestic Agent"), BANK ONE, NA
(formerly The First National Bank of Chicago), in its capacity as agent for
those Lenders having outstanding Multicurrency Syndicated Loan Commitments or
having outstanding Multicurrency Syndicated Loans as provided herein, and each
successor agent for such Lenders as may be appointed from time to time pursuant
to Article X hereof (the "Multicurrency Agent"; the Domestic Agent and the
Multicurrency Agent referred to collectively herein as the "Co-Agents"), and
SUNTRUST BANK (formerly 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 X hereof (the "Collateral
Agent");
W I T N E S S E T H:
WHEREAS, the Borrowers, the Lenders, STBA, as Domestic Agent
and Collateral Agent, and Bank One, as Multicurrency Agent, are parties to a
certain Third Amended and Restated Credit Agreement dated as of June 30, 1998
(the "Credit Agreement");
WHEREAS, the Credit Agreement refers to certain "Accounts
Receivable Facilities" pursuant to which Interface SPC sells accounts receivable
(or undivided ownership
interest therein) to SPARCC or CIBC (herein referred to as the "CIBC Accounts
Receivable Facility");
WHEREAS, the Borrowers have advised the Lenders and the
Co-Agents that the CIBC Accounts Receivable Facility is to be replaced by
another receivable financing facility as more particularly described in this
Amendment (the "New Accounts Receivable Facility");
WHEREAS, the Borrowers have requested that the Lenders amend
certain provisions of the Credit Agreement to take into account the replacement
of the CIBC Accounts Receivable Facility by the New Accounts Receivable Facility
and certain terms and conditions of the New Accounts Receivable Facility;
WHEREAS, Lenders constituting the Required Lenders and the
Co-Agents have agreed to make such amendments, subject to the conditions and
requirements set forth in this Amendment;
NOW, THEREFORE, for and in consideration of the premises, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. DEFINED TERMS. Unless otherwise expressly defined herein, capitalized terms
used in this Amendment that are defined in the Credit Agreement are used herein
with the respective meanings assigned to such capitalized terms in the Credit
Agreement.
2. AMENDMENTS TO SECTION 1.01 ("DEFINITIONS").
(a) Section 1.01 of the Credit Agreement is hereby amended by deleting
in its entirety each of the following defined terms and accompanying definitions
set forth in said Section 1.01: "Accounts Receivable Facilities", "Bank
Purchasers", "CIBC", "Funded Debt", "Interface SPC", "Receivables Backup
Purchase Agreements", "Receivables Sale Agreements", "Receivables Subordinated
Notes", "Receivables Transfer Agreements", and "SPARCC."
(b) Section 1.01 of the Credit Agreement is hereby amended by adding to
said Section 1.01, in appropriate alphabetical order, the following defined
terms and accompanying definitions:
"Accounts Receivable Facilities" shall mean the receivables
financing facility being extended by Bank One, NA and certain third
parties on or about December 19, 2000 (the "Bank One Receivables
Facility") pursuant to which (i) Interface and/or one or more of the
Consolidated Companies from time to time sell, convey or otherwise
transfer accounts receivable, any interests therein and any assets
related thereto, to Interface SPC, and (ii) Interface SPC shall sell,
convey or otherwise transfer such accounts receivable, any interests
therein and any assets related thereto, to Bank One, NA, as agent for
the benefit of certain third-party purchasers of such accounts
receivable, any interests therein and any assets related thereto,
together with any replacement receivables financing
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facility or facilities for Interface and/or one or more of the
Consolidated Companies providing for discounts and advance rates,
reserves, and other pricing terms, recourse obligations, and covenants
applicable to Interface SPC, Interface, and the other Consolidated
Companies that are no less favorable in any material respect than the
comparable provisions of the Accounts Receivable Facility being
replaced or otherwise on terms and conditions approved by the Co-Agents
and the Required Lenders.
"Funded Debt" shall mean all Indebtedness for money borrowed,
Indebtedness evidenced or secured by purchase money Liens, capitalized
leases, Synthetic Lease Obligations (other than those under the
Guilford Equipment Lease), 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, plus (ii) the amount of aggregate "Capital" (as
such term is used in the Bank One Receivables Facility) from time to
time as existing under the Bank One Receivables Facility, and the
comparable amount from time to time as existing under any replacement
Accounts Receivable Facility.
"Interface SPC" shall mean Interface Securitization
Corporation, a Delaware corporation, or any other Consolidated Company
organized as a special purpose entity (i) to acquire accounts
receivable from Interface and/or any Consolidated Company pursuant to
an Accounts Receivable Facility, and (ii) to sell, convey or otherwise
transfer such accounts receivable, any interests therein and any assets
related thereto, to one or more financing entities under such Accounts
Receivable Facility.
"Receivables Subordinated Notes" shall mean any and all
subordinated notes executed by Interface SPC from time to time in favor
of Interface or any of the Consolidated Companies and evidencing
advances made from time to time by Interface or any such Consolidated
Companies 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.
3. AMENDMENT TO SECTION 7.12 ("ACCOUNTS RECEIVABLE FACILITY"). Section 7.12 of
the Credit Agreement is hereby amended by deleting said Section 7.12 in its
entirety and substituting in lieu thereof the following Section 7.12:
SECTION 7.12. ACCOUNTS RECEIVABLE FACILITY. The Accounts
Receivable Facilities shall provide to Interface and those Subsidiaries
that are parties to such Accounts Receivables Facilities financing for
accounts receivable of an aggregate amount outstanding at any time not
to exceed $100,000,000.
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4. AMENDMENT TO SECTION 8.01 ("INDEBTEDNESS"). Section 8.01 of the Credit
Agreement is hereby amended by deleting clause (k) of said Section 8.01 in its
entirety and substituting in lieu thereof the following clause (k):
(k) Indebtedness, if any, owing by Interface or Interface SPC
pursuant to the Accounts Receivable Facilities and Indebtedness, if
any, owing by any Consolidated Company that is a party to such Accounts
Receivable Facilities with respect thereto;
5. AMENDMENT TO SECTION 8.02 ("LIENS"). Section 8.02 of the Credit Agreement is
hereby amended by deleting clause (i) of said Section 8.02 in its entirety and
substituting in lieu thereof the following clause (i):
(i) Liens, if any, that may be deemed to have been granted by
Interface or any Consolidated Company in favor of Interface, Interface
SPC, or any financing entity under any Accounts Receivable Facility or
their respective successors and assigns, on accounts receivable, any
interests therein and any assets related thereto, of Interface or such
Consolidated Company as a result of the sale, conveyance or other
transfer thereof to Interface, Interface SPC, or any financing entity
under any Accounts Receivable Facility or their respective successors
and assigns, pursuant to the Accounts Receivable Facilities.
6. AMENDMENT TO SECTION 8.03 ("MERGERS, ACQUISITIONS, SALES, ETC."). Section
8.03 of the Credit Agreement is hereby amended by deleting clause (ii) of said
Section 8.03 in its entirety and substituting in lieu thereof the following
clause (ii):
(ii) sales of accounts receivable, any interests therein and
any assets related thereto, pursuant to the Accounts Receivable
Facilities so long as the aggregate "Capital" (as such term is used in
the Bank One Receivables Facility) from time to time as existing under
the Bank One Receivables Facility, and the comparable amount from time
to time as existing under any replacement Accounts Receivable Facility,
shall not exceed $100,000,000 in aggregate amount outstanding at any
time,
7. AMENDMENT TO SECTION 8.07 ("TRANSACTION WITH AFFILIATES"). Section 8.07(b) of
the Credit Agreement is hereby amended by deleting paragraph (b) of said Section
8.07(b) in its entirety and substituting in lieu thereof the following paragraph
(b):
(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; provided, however, the foregoing shall not be
deemed to prohibit the conveyance or transfer of accounts receivable
pursuant to the terms of the Accounts Receivable Facilities due to any
Default or Event of Default otherwise existing immediately prior to the
time of such conveyance or transfer.
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8. AMENDMENT TO SECTION 8.08 ("OPTIONAL PREPAYMENTS"). Section 8.08 of the
Credit Agreement is hereby amended by deleting the final clause of said Section
8.08 (incorrectly designated as the second clause (vi) in said Section) in its
entirety and substituting in lieu thereof the following clause (vii):
(vii) Indebtedness arising under the Accounts Receivable
Facilities.
9. AMENDMENT TO SECTION 8.13 ("ACTIONS UNDER CERTAIN DOCUMENTS"). Section 8.13
of the Credit Agreement is hereby amended by deleting the final sentence of said
Section 8.13 in its entirety, and substituting in lieu thereof the following
sentence as the final sentence of said Section 8.13:
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
"Capital" or "Amortization Event" as such terms are used in the Bank
One Receivables Facility, or the definition of any comparable terms
used in any replacement Accounts Receivable Facility, or any other
material provision thereof.
10. AMENDMENT TO SECTION 9.15 ("ACCOUNTS RECEIVABLE FACILITY"). Section 9.15 of
the Credit Agreement is hereby amended by deleting said Section 9.15 in its
entirety and substituting in lieu thereof the following Section 9.15:
SECTION 9.15. ACCOUNTS RECEIVABLE FACILITY. There shall exist
and continue for five (5) days any "Amortization Event" (as such term
is used in the Bank One Receivables Facility) or any comparable event
under any replacement Accounts Receivable Facility, other than any such
event which arises from: (i) any reduction in Interface's credit rating
(or the imputed equivalent thereof); (ii) any Consolidated Company's
failure to comply with, or its making of any changes in or supplements
to, its credit and collection policies; (iii) any failure by Interface
to maintain the minimum net worth required in Interface SPC under the
terms of any agreements evidencing an Accounts Receivable Facility;
(iv) 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; (v)
any change in the character of the business of any of the Consolidated
Companies (which is not a violation of Section 8.09 hereof) or in their
respective credit and collection policies; (vi) 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 any agreements evidencing an
Accounts Receivable Facility; (vii) any determination that the payment
to Interface or any of the Consolidated Companies that sells accounts
receivable under an Accounts Receivable Facility of 100% of the net
book value of the accounts receivable does not constitute "reasonably
equivalent value" of the accounts receivable and related rights sold by
such Person in connection with such Accounts Receivable Facility;
(viii) any change in the Certificate of Incorporation or By-Laws of
Interface SPC; (ix) any failure by Interface SPC or Interface to comply
with any
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of the affirmative or negative covenants in any agreements evidencing
an Accounts Receivable Facility which relate to the establishment and
maintenance of Interface SPC's separate legal identity; (x) the
past-due or defaulted accounts receivable of any or all of the
Consolidated Companies exceeding any applicable limitations as set
forth in any agreements evidencing an Accounts Receivable Facility; or
(xi) the "Dilution Ratio" (as such term is defined in any agreements
evidencing the Bank One Receivables Facility) exceeding any applicable
limitations set forth in any agreements evidencing the Bank One
Receivables Facility, or any comparable event under any agreements
evidencing replacement Accounts Receivable Facility;
11. REPRESENTATIONS AND WARRANTIES. Each of Interface (as to itself and all
other Consolidated Companies) and each of the other Borrowers (as to itself and
all of its Subsidiaries) represents and warrants to the Lenders as follows:
(a) All representations and warranties set forth in the Credit
Agreement are true and correct in all material respects with the same effect as
though such representations and warranties have been made on and as of the date
hereof (except that the representation and warranty set forth in Section 6.19 of
the Credit Agreement shall not be deemed to relate to any time subsequent to the
date of the initial Loans under the Credit Agreement);
(b) No Default or Event of Default has occurred and is continuing on
the date hereof;
(c) Since the date of the most recent financial statements of the
Consolidated Companies submitted to the Lenders pursuant to Section 7.07(b),
there has 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 otherwise been furnished to the Lenders pursuant to Section 7.07);
(d) Each of the Borrowers has the corporate power and authority to
make, deliver and perform this Amendment and has taken all necessary corporate
action to authorize the execution, delivery and performance of this Amendment.
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 Borrower, or the validity or
enforceability against any Borrower, of this Amendment, other than such
consents, authorizations or filings which have been made or obtained (including
without limitation, any necessary consultations with any Borrower's supervisory
board, works council ("Ondernemingsraad") or similar body); and
(e) This Amendment has been duly executed and delivered by each of the
Borrowers and this Amendment constitutes a legal, valid and binding obligations
of the Borrowers, respectively, enforceable against the Borrowers in accordance
with their respective terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
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12. EFFECTIVENESS OF AMENDMENT. This Amendment shall become effective upon (i)
the execution and delivery to the Co-Agents of counterparts hereof (whether
originals or facsimile transmissions thereof) on behalf of each of the
Borrowers, the Co-Agents, the Collateral Agent, and those Lenders constituting
the Required Lenders for purposes of the Credit Agreement, (ii) the New Accounts
Receivable Facility becoming effective in accordance with the terms thereof and
replacing the CIBC Accounts Receivable Facility, and (iii) the termination of
the CIBC Accounts Receivable Facility.
13. REFERENCES TO CREDIT AGREEMENT. On and after the date this Amendment becomes
effective as provided in paragraph 12 above, each and every reference in the
Credit Documents to the Credit Agreement shall be deemed to refer to and mean
the Credit Agreement as amended by this Amendment. The Borrowers further confirm
and agree that (i) except as expressly amended herein, the Credit Agreement
remains in full force and effect in accordance with its terms, and (ii) all
other Credit Documents remain in full force and effect in accordance with their
respective terms.
14. COUNTERPARTS. This Amendment 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.
15. MISCELLANEOUS. This Amendment and the rights and obligations of the parties
hereunder 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. This Amendment shall be binding on and shall inure to the benefit of
and be enforceable by the respective successors and assigns of the parties
hereto.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered in Atlanta, Georgia, by their duly
authorized officers as of the day and year first above written.
INTERFACE, INC.
By: /s/ Daniel T. Hendrix
-----------------------------
Daniel T. Hendrix
Executive Vice President
INTERFACE EUROPE B.V.
By: /s/ Daniel T. Hendrix
-----------------------------
Daniel T. Hendrix
Attorney-in-Fact
INTERFACE EUROPE LIMITED
By: /s/ Daniel T. Hendrix
-----------------------------
Daniel T. Hendrix
Attorney-in-Fact
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SUNTRUST BANK
(FORMERLY SUNTRUST BANK, ATLANTA),
AS DOMESTIC AGENT, COLLATERAL AGENT,
AND A LENDER
By: /s/ Bradley J. Staples
--------------------------------
Name: Bradley J. Staples
Title: Director
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BANK ONE, NA
(FORMERLY THE FIRST NATIONAL BANK OF
CHICAGO), AS MULTICURRENCY AGENT AND
A LENDER
By: /s/ Steven P. Sullivan
--------------------------------
Name: Steven P. Sullivan
Title: Corporate Banking Officer
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ABN AMRO BANK N.V.
By: /s/ Thomas M. Toerpe
-------------------------------
Name: Thomas M. Toerpe
Title: Group Vice President
By: /s/ Thomas Comfort
-------------------------------
Name: Thomas Comfort
Title: Senior Vice President
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THE BANK OF TOKYO-MITSUBISHI, LTD.
By: /s/ R. Glass
--------------------------------
Name: R. Glass
Title: Vice President
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CIBC INC.
By: ___________________________
Name:
Title:
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BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC. (FORMERLY
KNOWN AS CREDITANSTALT CORPORATE
FINANCE, INC.)
By: /s/ Sheila A. Maher
--------------------------------
Name: Sheila A. Maher
Title: Vice President
By: /s/ Laura A. DePersis
--------------------------------
Name: Laura A. DePersis
Title: Vice President
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FIRST UNION NATIONAL BANK
By: /s/ David J.C. Silander
-------------------------------
Name: David J.C. Silander
Title: Vice President
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FLEET NATIONAL BANK
By: /S/ Neil C. Buitenhuys
--------------------------
Name: Neil C. Buitenhuys
Title: Vice President
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BANK OF AMERICA, N.A.
(FORMERLY NATIONSBANK, N.A.)
By: /S/ Deirdre B. Doyle
---------------------------
Name: Deirdre B. Doyle
Title: Principal
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WACHOVIA BANK, N.A.
By: /S/ William B. Nixon
---------------------------
Name: William B. Nixon
Title: Senior Vice President
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