Exhibit 10.23
FIRST AMENDMENT AND LIMITED WAIVER TO
RECEIVABLES TRANSFER AGREEMENT
This First Amendment and Limited Waiver to Receivables Transfer
Agreement (this "Amendment") is entered into as of December 31, 2000 by and
among Bentley Mills, Inc., a Delaware corporation ("Bentley"), Chatham Marketing
Co., a North Carolina corporation ("Chatham"), Guilford of Maine Marketing Co.,
a Nevada corpora tion ("Guilford"), Intek Marketing Co., a Nevada corporation
("Intek"), Interface Architectural Resources, Inc., a Michigan corporation
("Interface Architectural"), Interface Flooring Systems, Inc., a Georgia
corporation ("Interface Flooring"), Pandel, Inc., a Georgia corporation
("Pandel"), Prince Street Technologies, Ltd., a Georgia corporation ("Prince
Street"), and Toltec Fabrics, Inc., a Georgia corporation ("Toltec" and together
with Bentley, Chatham, Guilford, Intek, Interface Architectural, Interface
Flooring, Pandel and Prince Street, the "Existing Original Sellers" and,
individually, an "Existing Original Seller"), Interface Americas, Inc., a
Georgia corporation ("Interface Americas"), and Interface, Inc., a Delaware
corporation, as Originator. Unless defined elsewhere herein, capitalized terms
used in this Amendment shall have the meanings assigned to such terms in the
Transfer Agreement (as defined below) (or, if not defined in the Transfer
Agreement, the meaning assigned to such term in the Purchase Agreement).
PRELIMINARY STATEMENTS
Each of the Existing Original Sellers and Originator entered into a
certain Receivables Transfer Agreement, dated as of December 19, 2000 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Transfer Agreement").
Interface Americas desires to become a party to the Transfer Agreement
as an Original Seller as of the date hereof upon the terms and conditions set
forth therein and herein.
Prince Street and Bentley desire to merge, effective as of 11:59 p.m.
on the date hereof, with Bentley being the surviving corporation (the "Merger").
Each of the parties hereto has requested that the Transfer Agreement be
modified in order to permit the Merger and to effect the addition of Interface
Americas as an Original Seller under the Transfer Agreement, as more
particularly described herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowl edged, the parties hereto hereby agree as follows:
1. Addition of New Original Seller. Subject to the terms and conditions
set forth herein and upon the effectiveness of this Amendment,
(a) The Existing Original Sellers and Originator each hereby
consent to the addition of Interface Americas as an Original Seller under the
Transfer Agreement.
(b) Interface Americas hereby agrees to perform and to be
bound by the terms and conditions of the Transfer Agreement as an Original
Seller as of the date hereof.
(c) Interface Americas shall for all purposes be an Original
Seller under the Transfer Agreement, and shall have all the rights and
obligations of an Original Seller under the Transfer Agreement, to the same
extent as if it were an original party thereto.
(d) For the purpose of Section 7.2 of the Transfer Agreement,
notices to Interface Americas shall be sent to it at:
2859 Paces Ferry Road, Suite 2000
Atlanta, GA 30339
(e) Exhibit II to the Transfer Agreement is hereby amended to
insert in its proper alphabetical order among the list of Original Sellers
contained in Exhibit II to the Transfer Agreement:
Interface Americas, Inc.
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Place of Business: 2859 Paces Ferry Road, Suite 2000
Atlanta, GA 30339
Locations of Records: 2859 Paces Ferry Road, Suite 2000
Atlanta, GA 30339 and
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P.O. Box 1503, Orchard Hill Road
LaGrange, GA 30241
Federal Employer Identification Number: 58-2132517
(f) Exhibit V to the Transfer Agreement is hereby amended by
adding the Credit and Collection Policy of Interface Americas (attached hereto
as Exhibit B) thereto.
2. Notice of Merger. Pursuant to the terms of Section 4.2(b) of the
Transfer Agreement, Bentley and Prince Street hereby notify Originator of the
Merger. In connection therewith, upon the effectiveness of the Merger and this
Amendment, the Transfer Agreement shall be deemed amended by the deletion of all
references to Prince Street therefrom.
3. Limited Waiver. Subject to the terms and conditions set forth herein
and upon the effectiveness of this Amendment, Originator hereby waives any
Termination Event or Potential Termination Event that may arise as a result of
Prince Street's failure to preserve and maintain its corporate existence,
rights, franchises and privileges in the jurisdiction of its incorporation, in
accordance with the provisions of Section 4.1(c) of the Transfer Agreement, as a
result of the Merger.
4. Representations and Warranties. Each Original Seller (including
Interface Americas) represents and warrants, as of the date hereof, that after
giving effect to this Amendment:
(a) all of the representations and warranties of such Original
Seller contained in the Transfer 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 Termination Event or Potential Termination Event has
occurred and is continuing.
5. Conditions to Effectiveness of Amendment. The effectiveness of this
Amendment is subject to the satisfaction of the following conditions precedent:
(a) Amendment. This Amendment shall have been duly executed
and delivered by each of the parties hereto.
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(b) Officer's Certificate. The Originator shall have received
a certificate, in the form set forth in Exhibit A hereto, of each of the
Original Sellers certifying as to matters set forth in Sections 4(a) and (b) of
this Amendment.
(c) Waivers and Amendments. The Originator 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 Amendment.
(d) UCC-3 Financing Statements. The Originator shall have
received duly executed proper financing statements for all jurisdictions as may
be necessary or, in the opinion of Originator (or its assigns), desirable, under
the UCC of all appropriate jurisdictions or any comparable law in connection
with this Amendment.
(e) Seller's Consent. The Seller shall have waived the
Termination Event that would otherwise have occurred pursuant to the terms of
Section 5.1(h) of the Receivables Sale Agreement as a result of the Originator's
waiver as set forth in Section 3 of this Amendment.
(f) Agent's Consent. The Agent shall have waived the Amortiza-
tion Event that would otherwise have occurred pursuant to the terms of Section
9.1(j) of the Receivables Purchase Agreement as a result of the Originator's
waiver as set forth in Section 3 of this Amendment.
(g) Interface Americas. The Originator shall have received
each of the following:
(i) Articles of Incorporation. The Articles or
Certificate of Incorporation of Interface Americas, certified
by the Secretary of State of the jurisdiction of incorporation
of Interface Americas.
(ii) By-laws. A copy of the by-laws of Interface
Americas, certified by its Secretary or Assistant Secretary.
(iii) Resolutions. A copy of the Resolutions of the
Board of Directors of Interface Americas, certified by its
Secretary or Assistant Secretary, authorizing its execution
and delivery of this Amend ment and the performance by
Interface Americas of its obligations hereun der and under the
Transfer Agreement and the other documents to be delivered by
it in connection herewith and therewith.
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(iv) Good Standing Certificate. A good standing
certificate (or its equivalent) for Interface Americas issued
by the Secretar ies of State of its state of incorporation and
each jurisdiction where it has material operations, each of
which is listed below:
(1) Georgia
(v) Secretary's Certificate. A certificate of the
Secre tary or Assistant Secretary of Interface Americas
certifying the names and signatures of the officers authorized
on its behalf to execute this Amend ment and any other
documents to be delivered by it hereunder.
(vi) UCC Lien Searches. State and federal tax lien,
judgment lien and UCC lien searches against Interface Americas
from the following jurisdictions:
(1) Georgia
(vii) UCC Financing Statements. Duly executed proper
financing statements for all jurisdictions as may be necessary
or, in the opinion of Originator (or its assigns), desirable,
under the UCC of all appropriate jurisdictions or any
comparable law in order to perfect the sale of Receivables by
Interface Americas under the Transfer Agreement as amended
hereby.
(viii) UCC Termination Statements. Time-stamped
receipt copies of proper UCC termination statements, if any,
necessary to release all security interests and other rights
of any Person in the Receiv ables, Contracts or Related
Security previously granted by Interface Americas.
(ix) Opinions of Counsel. Delivery of favorable
opinions of legal counsel for Interface Americas reasonably
acceptable to Originator (or its assigns) with respect to true
sale, corporate and security interest matters.
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6. Effect of Amendments. (a) The amendments and 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 Transfer
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 the Originator, Seller, the Financial
Institutions, the Company or the Agent may now have or may have in the future
under or in connection with the Transfer Agreement as amended hereby or any
other Transaction Document or any other instrument or agreement referred to
therein. Each reference in the Transfer Agreement to "the Agreement," "herein,"
"hereof" and words of like import and each reference in the other Transaction
Documents to the "Transfer Agreement" or the "Receivables Transfer Agreement"
shall mean the Transfer Agreement as amended hereby. This Amendment shall be
construed in connec tion with and as part of the Transfer Agreement as amended
hereby and all terms, conditions, representations, warranties, covenants and
agreements set forth in the Transfer 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.
(b) Each of the Original Sellers hereby jointly and severally
agrees to pay all costs, fees and expenses in connection with the preparation,
execution and delivery of this Amendment (including the reasonable fees and
expenses of counsel to the parties hereto).
(c) This Amendment may be executed in any number of counter
parts, each such counterpart constituting an original and all of which when
taken together shall constitute one and the same instrument.
(d) Any provision contained in this Amendment 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
Amendment in that jurisdiction or the operation, enforceability or validity of
such provision in any other jurisdiction.
(e) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[SIGNATURE PAGES FOLLOW]
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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.
BENTLEY MILLS, INC.,
as an Original Seller
By: /s/ Daniel T. Hendrix
--------------------------------------
Name: Daniel T. Hendrix
Title: Senior Vice President,
Treasurer and
Assistant Secretary
Address: 16461 E. Don Julian Road
City of Industry, CA 91746
CHATHAM MARKETING CO.,
as an Original Seller
By: /s/ Daniel T. Hendrix
--------------------------------------
Name: Daniel T. Hendrix
Title: Senior Vice President and
Assistant Secretary
Address: P. O. Box 530
304 E. Main Street
Elkin, NC 28621
GUILFORD OF MAINE MARKETING CO., as an
Original Seller
By: /s/ Daniel T. Hendrix
--------------------------------------
Name: Daniel T. Hendrix
Title: Senior Vice President and
Assistant Secretary
Address: P.O. Box 179
Oak Street
Guilford, ME 04443
INTEK MARKETING CO.,
as an Original Seller
By: /s/ Daniel T. Hendrix
--------------------------------------
Name: Daniel T. Hendrix
Title: Senior Vice President and
Assistant Secretary
Address: P.O. Box 1007
300 Taylor Street
Aberdeen, NC 28315
INTERFACE AMERICAS, INC.,
as an Original Seller
By: /s/ Daniel T. Hendrix
--------------------------------------
Name: Daniel T. Hendrix
Title: Senior Vice President,
Treasurer and
Assistant Secretary
Address: 2859 Paces Ferry Road
Suite 2000
Atlanta, GA 30339
INTERFACE ARCHITECTURAL RESOURCES,
INC., as an Original Seller
By: /s/ Daniel T. Hendrix
--------------------------------------
Name: Daniel T. Hendrix
Title: Senior Vice President and
Assistant Secretary
Address: 3700 32nd Street
Grand Rapids, MI 49512-1824
INTERFACE FLOORING SYSTEMS, INC., as an
Original Seller
By: /s/ Daniel T. Hendrix
--------------------------------------
Name: Daniel T. Hendrix
Title: Senior Vice President,
Treasurer and
Assistant Secretary
Address: P.O. Box 1503
Orchard Hill Road
LaGrange, GA 30241
PANDEL, INC.,
as an Original Seller
By: /s/ Daniel T. Hendrix
--------------------------------------
Name: Daniel T. Hendrix
Title: Senior Vice President,
Treasurer and
Assistant Secretary
Address: 21 River Drive
Cartersville, GA 30120
PRINCE STREET TECHNOLOGIES, LTD., as an
Original Seller
By: /s/ Daniel T. Hendrix
--------------------------------------
Name: Daniel T. Hendrix
Title: Senior Vice President,
Treasurer and
Assistant Secretary
Address: 1450 West Avenue
P.O. Drawer 2530
Cartersville, GA 30120
TOLTEC FABRICS, INC.,
as an Original Seller
By: /s/ Daniel T. Hendrix
--------------------------------------
Name: Daniel T. Hendrix
Title: Senior Vice President and
Assistant Secretary
Address: 2859 Paces Ferry Road,
Suite 2000
Atlanta, GA 30339
INTERFACE, INC.
By: /s/ Daniel T. Hendrix
--------------------------------------
Name: Daniel T. Hendrix
Title: Executive Vice President, CFO,
Treasurer and Assistant
Secretary
Address: 2859 Paces Ferry Road,
Suite 2000
Atlanta, GA 30339