Exhibit 10.25
THIRD AMENDMENT AND LIMITED WAIVER TO
RECEIVABLES TRANSFER AGREEMENT
This Third 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 corporation ("Guilford"), Intek Marketing Co., a Nevada
corporation ("Intek"), Interface Americas, Inc., a Georgia corporation
("Interface Americas"), Interface Architectural Resources, Inc., a Michigan
corporation ("Interface Architectural"), Interface Flooring Systems, Inc., a
Georgia corporation ("Interface Flooring"), Pandel, Inc., a Georgia corporation
("Pandel"), and Toltec Fabrics, Inc., a Georgia corporation ("Toltec" and
together with Bentley, Chatham, Guilford, Intek, Interface Americas, Interface
Architectural, Interface Flooring and Pandel, the "Original Sellers" and,
individually, an "Original Seller"), 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 Original Sellers and Originator entered into a
certain Receivables Transfer Agreement, dated as of December 19, 2000 (as
heretofore amended by that certain First Amendment and Waiver to the Receivables
Transfer Agreement dated as of December 31, 2000 (the "First Amendment") and
that certain Second Amendment and Waiver to the Receivables Transfer Agreement
dated as of December 19, 2000 or otherwise amended, supplemented, restated or
modified from time to time, the "Transfer Agreement").
Each of the parties hereto has requested that the Transfer
Agreement be modified to allow the use of various corporate names, assumed names
or trade names by Interface Americas.
AGREEMENT
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. Amendment. Exhibit II of the Transfer Agreement is hereby
amended by inserting:
"Trade Names: Bentley
Bentley Mills
Prince Street
Prince Street Technologies
Assumed Names: Bentley Mills, Inc.
Prince Street Technologies, Ltd."
immediately following the Federal Employer Identification Number listed for
Interface Americas.
2. 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 have arisen
on or before the date hereof as a result of the failure of Interface Americas to
have disclosed Interface Americas' use of certain corporate, trade or assumed
names in contravention of the representation and warranty contained in Section
2.1(n) of the Transfer Agreement.
3. Representations and Warranties. Each Original Seller
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.
4. 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.
(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
3(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) 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 2 of this Amendment.
(e) Agent's Consent. The Agent shall have waived the
Amortization 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 2 of this
Amendment.
(f) UCC-1 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.
(g) First Amendment. The First Amendment shall have become
effective.
5. 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
connection 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.
(a) 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).
(b) This Amendment 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 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.
(d) THIS AMENDMENT 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
Amendment 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
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