Exhibit 10.32
SECOND LIMITED WAIVER TO
RECEIVABLES PURCHASE AGREEMENT
This Second Limited Waiver to Receivables Purchase Agreement
(this "Limited Waiver") is entered into as of December 20, 2000, by and among
Interface Securitization Corporation, a Delaware corporation ("Seller"),
Interface, Inc., a Georgia corporation ("Interface"), as initial Servicer (the
"Servicer" together with Seller, the "Seller Parties" and each a "Seller
Party"), Jupiter Securitization Corporation ("Company") and Bank One, NA (Main
Office Chicago), as Agent. Unless defined elsewhere herein, capitalized terms
used in this Limited Waiver shall have the meanings assigned to such terms in
the Purchase Agreement (as defined below).
PRELIMINARY STATEMENTS
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Each of the parties hereto entered into a certain Receivables
Purchase Agreement, dated as of December 19, 2000 (as amended, restated,
supplemented or otherwise modified from time to time, the "Purchase Agreement").
Originator desires to enter into a certain Second Amendment
and Limited Waiver to Receivables Transfer Agreement of even date herewith (the
"Transfer Agreement Amendment") in order to permit the replacement of Exhibit II
to the Transfer Agreement Amendment, which Exhibit II lists, among other things,
trade names, corporate names and assumed names used by the Original Sellers and
to allow the use of various corporate names, assumed names or trade names by
various Original Sellers.
Buyer desires to enter into a certain Second Limited Waiver to
Receivables Sale Agreement of even date herewith (the "Sale Agreement Limited
Waiver") in order to permit the replacement of Exhibit II to the Transfer
Agreement Amendment, which Exhibit II lists, among other things, trade names,
corporate names and assumed names used by the Original Sellers and to allow the
use of various corporate names, assumed names or trade names by various Original
Sellers.
Under the terms of the Purchase Agreement, the consent of the
Agent and each Purchaser (collectively, the "Consenting Parties") is required in
order for Originator to enter into the Transfer Agreement Amendment, which
consent the Originator has requested, and for the Seller to enter into the Sale
Agreement Limited Waiver, which consent the Seller has requested.
Each of the Consenting Parties is willing to give such consent
in accordance with the terms and upon the conditions set forth herein.
AGREEMENT
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NOW, THEREFORE, in consideration of the premises, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Consent. Subject to the terms and conditions set forth
herein and upon the effectiveness of this Limited Waiver, each of the Consenting
Parties hereby consents to the Originator's execution and delivery of the
Transfer Agreement Amendment and the performance of its obligations thereunder
and the Seller's execution and delivery of the Sale Agreement Limited Waiver and
the performance of its obligations thereunder.
2. Limited Waiver. Subject to the terms and conditions set
forth herein and upon the effectiveness of this Limited Waiver, the Consenting
Parties hereby waive any Amortization Event or Potential Amortization Event that
may arise as of the date hereof under Section 9.1(i) or Section 9.1(j) of the
Purchase Agreement as a result of Originator's waiver as set forth in Section 2
of the Transfer Agreement Amendment or Seller's waiver as set forth in Section 2
of the Sale Agreement Limited Waiver, respectively.
3. Representations and Warranties. Each of the Seller Parties
represents and warrants, as of the date hereof, that after giving effect to this
Limited Waiver:
(a) all of the representations and
warranties of such Seller Party contained in the Purchase
Agreement and in each other document or certificate delivered
in connection therewith (other than those that expressly speak
only as of a different date) are true and correct; and
(b) no Amortization Event or Potential
Amortization Event has occurred and is continuing.
4. Conditions to Effectiveness of Limited Waiver. The
effectiveness of this Limited Waiver is subject to the satisfaction of the
following conditions precedent:
(a) Limited Waiver. This Limited Waiver
shall have been duly executed and delivered by each of the
parties hereto.
(b) Officer's Certificate. Each of the
Consenting Parties shall have received a certificate, in the
form of Exhibit A hereto, of each of the Seller Parties
certifying as to matters set forth in Sections 3(a) and (b) of
this Limited Waiver.
(c) Waivers and Amendments. The Agent shall
have received duly executed copies of (i) all consents from
and authorizations by any Persons and (ii) all waivers and
amendments to existing credit facilities, that are necessary
in connection with this Limited Waiver.
(d) Documents. The Agent shall have received
each of the documents set forth in Section 4(f) of the
Transfer Agreement Amendment.
(e) UCC-3 Financing Statements. The Agent
shall have received duly executed proper financing statements
for all jurisdictions as may be necessary or, in the opinion
of the Agent, desirable, under the UCC of all appropriate
jurisdictions or any comparable law in connection with this
Amendment.
5. Effect of Limited Waivers. (a) The waivers set forth herein
are effective solely for the purposes set forth herein and shall be limited
precisely as written, and shall not be deemed to (i) be a consent to any
amendment, waiver or modification of any other term or condition of the Purchase
Agreement as amended hereby or any other Transaction Document or of any other
instrument or agreement referred to therein, except as set forth herein, or (ii)
prejudice any right or remedy that each of the Consenting Parties may now have
or may have in the future under or in connection with the Purchase Agreement as
amended hereby or any other Transaction Document or any other instrument or
agreement referred to therein. Each reference in the Purchase Agreement to "the
Agreement," "herein," "hereof" and words of like import and each reference in
the other Transaction Documents to the "Purchase Agreement" or "Receivables
Purchase Agreement" shall mean the Purchase Agreement as amended hereby. This
Limited Waiver shall be construed in connection with and as part of the Purchase
Agreement as amended hereby and all terms, conditions, representations,
warranties, covenants and agreements set forth in the Purchase Agreement as
amended hereby and each other instrument or agreement referred to therein,
except as herein amended, are hereby ratified and confirmed and shall remain in
full force and effect.
(a) Each of the Seller Parties hereby
jointly and severally agrees to pay all reasonable costs, fees
and expenses in connection with the preparation, execution and
delivery of this Limited Waiver (including the reasonable fees
and expenses of counsel to the parties hereto).
(b) This Limited Waiver may be executed in
any number of counterparts, each such counterpart constituting
an original and all of which when taken together shall
constitute one and the same instrument.
(c) Any provision contained in this Limited
Waiver that is held to be inoperative, unenforceable or
invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable or invalid without affecting the
operation, enforceability or validity of the remaining
provisions of this Limited Waiver in that jurisdiction or the
operation, enforceability or validity of such provision in any
other jurisdiction.
(d) THIS LIMITED WAIVER SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their duly authorized officers as of
the date hereof.
INTERFACE SECURITIZATION CORPORATION
By: /s/ Daniel T. Hendrix
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Name: Daniel T. Hendrix
Title: President, Treasurer and
Assistant Secretary
INTERFACE, INC.
By: /s/ Daniel T. Hendrix
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Name: Daniel T. Hendrix
Title: Executive Vice President, CFO,
Treasurer and
Assistant Secretary
JUPITER SECURITIZATION CORPORATION
By: /s/ Julie C. Benda
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Name: Julie C. Benda
Title: Authorized Signatory
BANK ONE, NA (MAIN OFFICE
CHICAGO), as a Financial Institution
and as Agent
By: /s/ Julie C. Benda
---------------------------------
Name: Julie C. Benda
Title: Vice President