EXHIBIT 10.43
EIGHTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
This Eighth Amendment to Receivables Purchase Agreement (this
"Amendment") is entered into as of February 14, 2002, by and among Interface
Securitization Corporation, a Delaware corporation ("Seller"), Interface, Inc.,
a Georgia corporation, Jupiter Securitization Corporation ("Company") and Bank
One, NA (Main Office Chicago), as Agent and as a Financial Institution. Unless
defined elsewhere herein, capitalized terms used in this Amendment shall have
the meanings assigned to such terms in the Purchase Agreement (as defined
below).
PRELIMINARY STATEMENTS
Each of the parties hereto entered into a certain Receivables
Purchase Agreement, dated as of December 19, 2000 and as amended, restated,
supplemented or otherwise modified from time to time and in effect immediately
prior to the date hereof (the "Purchase Agreement").
Seller and the Servicer have requested certain amendments to
certain provisions of the Purchase Agreement and the Purchasers and the Agent
desire to make such amendments on the terms and conditions set forth herein, all
as more fully described herein.
In connection with the foregoing, Originator and the Original
Sellers desire to enter into a certain Fifth Amendment to the Receivables
Transfer Agreement of even date herewith (the "Transfer Agreement Amendment").
Also in connection with the foregoing, Seller and Originator
desire to enter into a certain Second Amendment to the Receivables Sale
Agreement of even date herewith (the "Sale Agreement Amendment"). Under the
terms of the Purchase Agreement, the consent of the Agent is required in order
for Seller to enter into the Sale Agreement Amendment, which consent Seller has
requested.
The Agent is willing to give such consent in accordance with
the terms and upon the conditions set forth herein.
EIGHTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
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. Consent. Subject to the terms and conditions set
forth herein and upon the effectiveness of this Amendment, the Agent hereby
consents to the Seller's execution and delivery of the Sale Agreement Amendment
and the performance of its obligations thereunder.
2. Amendments. Subject to the terms and conditions set
forth herein and upon the effectiveness of this Amendment:
(a) Clause (B) of the first proviso contained in last
sentence of Section 7.1(d) of the Purchase Agreement is hereby amended and
restated in its entirety as follows:
"(B) such cost shall be born by the Seller not more than twice
per calendar year per Person (although in no event shall the foregoing
be construed to limit the Agent or its agents or representatives to two
such examinations and/or visits during such calendar year period with
respect to each such Person)"
(b) Section 8.5 of the Purchase Agreement is hereby
amended by renumbering clauses (i), (ii) and (iii) thereof as clauses (ii),
(iii) and (iv), respectively, and adding a new clause (i) follows:
"(i) by 1pm, Chicago, Illinois time, of each Business Day and
at such other times as the Agent shall request, a Daily Report prepared
as of the end of the immediately preceding Business Day,"
(c) Section 9.1(e) of the Purchase Agreement is
hereby amended by deleting the percentage "7.00%" contained therein and
inserting in its place the percentage "5.50%".
EIGHTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
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(d) Exhibit I to the Purchase Agreement is hereby
amended by inserting the following new definition into such exhibit in
appropriate alphabetical order:
"'Daily Report' means a report, in substantially the form of
Exhibit XII hereto (appropriately completed), furnished by the Servicer
to the Agent pursuant to Section 8.5."
(e) The definition of "Dilution Ratio" appearing in
Exhibit I to the Purchase Agreement is hereby amended by replacing the phrase
"one fiscal month" contained therein with the phrase "three fiscal months".
(f) The definition of "Dilution Reserve Percentage"
appearing in Exhibit I to the Purchase Agreement is hereby amended and restated
in its entirety to read as follows:
"'Dilution Reserve Percentage' means the greater of (a) 6.00%
and (b) the following:
(2.25 X ED + ((DS-ED) X (DS/ED))) X DHR
where:
ED = the average of the Dilution Ratios for the
twelve most recently-ended fiscal months;
DS = the highest of the average Dilution Ratios for
any three-fiscal-month period occurring during the
twelve most recently-ended fiscal months; and
DHR = the result of dividing the aggregate amount of
all net sales by the Original Sellers during the
prior three fiscal months by the Outstanding Balance
of all Eligible Receivables."
(g) Paragraph (i) of the definition of "Eligible
Receivable" appearing in Exhibit I to the Purchase Agreement is hereby amended
and restated in its entirety as follows:
EIGHTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
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"(i) the Obligor of which (a) if a natural person, is a
resident of the United States, (b) if a corporation or other
non-governmental business organization, is organized under the laws of
the United States or any political subdivision thereof and has its
chief executive office in the United States or (c) if a government or a
governmental subdivision or agency, is a U.S. federal, state, municipal
or county government or a subdivision or agency thereof, including any
military branch of the U.S. federal government;"
(h) The definition of "LIBOR Rate" appearing in
Exhibit I to the Purchase Agreement is hereby amended by replacing the phrase
"1.00% per annum" contained at the end of the first sentence thereof with the
phrase "1.50% per annum".
(i) The definition of "Liquidity Termination Date"
appearing in Exhibit I to the Purchase Agreement is hereby amended and restated
in its entirety as follows:
"'Liquidity Termination Date' means February 12, 2003."
(j) The definition of "Loss Percentage" appearing in
Exhibit I to the Purchase Agreement is hereby amended by replacing the phrase
"2.0 X ARR X S" contained therein in with the phrase "2.25 X ARR X S".
(k) The definition of "Purchase Limit" appearing in
Exhibit I to the Purchase Agreement is hereby amended and restated in its
entirety as follows:
"'Purchase Limit' means $50,000,000."
(l) Annex I hereto is hereby inserted as an amendment
and restatement of Exhibit X to the Purchase Agreement in its entirety.
(m) Annex II hereto is hereby inserted as an
amendment and restatement of Exhibit XI to the Purchase Agreement in its
entirety.
(n) Annex III hereto is hereby inserted as Exhibit
XII to the Purchase Agreement.
EIGHTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
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(o) Schedule A to the Purchase Agreement is hereby
amended by deleting the Commitment amount of "$66,300,000" contained therein and
inserting in its place the Commitment amount of "$51,000,000".
3. Representations and Warranties. Each of the Seller
Parties represents and warrants that, as of the date hereof, both before and
after giving effect to this Amendment:
(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 are true and correct; and
(b) no Amortization Event or Potential Amortization
Event has occurred and is continuing.
4. Conditions to Effectiveness of Amendments. This
Amendment shall become effective as of the date hereof upon 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) Amendments to other Transaction Documents. The
Agent shall have received duly executed copies of the Sale Agreement Amendment
and the Transfer Agreement Amendment, and such amendments shall be in full force
and effect.
(c) Officer's Certificates. The Agent shall have
received a certificate, in substantially 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 Amendment.
5. Effect of Amendments.
(a) The amendments 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 or of any
other instrument or agreement referred to therein, or (ii) prejudice any right
or remedy that any Purchaser or the
EIGHTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
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Agent may now have or may have in the future under or in connection with the
Purchase Agreement, as amended hereby, or any other instrument or agreement
referred to therein. Each reference in the Purchase Agreement to "this
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
Amendment shall be construed in connection with and as part of the Purchase
Agreement and all terms, conditions, representations, warranties, covenants and
agreements set forth in the Purchase Agreement 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) This Amendment is a Transaction Document executed
pursuant to the Purchase Agreement and shall be construed, administered and
applied in accordance with the terms and provisions thereof.
(c) Seller hereby agrees to pay all reasonable costs,
fees and expenses actually incurred in connection with the preparation,
execution and delivery of this Amendment (including the reasonable fees and
expenses actually incurred by counsel to the Agent and the Purchasers).
(d) 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. Delivery of an
executed counterpart of a signature page hereto by facsimile shall be effective
as delivery of an originally executed counterpart of this Amendment; provided
that each party hereto agrees to deliver to the Agent originally executed
counterparts of this Amendment on a timely basis.
(e) 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.
(f) THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
EIGHTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
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(Signature Page Follows)
EIGHTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
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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.
INTERFACE SECURITIZATION CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
INTERFACE, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
JUPITER SECURITIZATION CORPORATION
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
BANK ONE, NA (MAIN OFFICE CHICAGO), as a
Financial Institution and as Agent
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
EIGHTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
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Exhibit A
OFFICER'S CERTIFICATE
I, __________________, am the Assistant Secretary of ____________, a
_______ corporation (the "Applicable Party"). I execute and deliver this
Officer's Certificate, dated as of February 14, 2002, on behalf of the
Applicable Party pursuant to Section 4(c) of that certain Eighth Amendment to
Receivables Purchase Agreement (the "Amendment"), dated as of February 14, 2002,
by and among Interface Securitization Corporation, a Delaware corporation, as
Seller ("Seller"), Interface, Inc. ("Interface"), Jupiter Securitization
Corporation ("Company") and Bank One, NA (Main Office Chicago), as Agent and as
Financial Institution, which Eighth Amendment amends certain terms and
provisions of that certain Receivables Purchase Agreement, dated as of December
19, 2000, by and among Seller, Interface, Company and Bank One, NA (Main Office
Chicago) (as amended, restated, supplemented or otherwise modified from time to
time, the "Purchase Agreement"). Capitalized terms used in this Officer's
Certificate and not otherwise defined herein shall have the respective meanings
set forth in the Purchase Agreement.
I hereby certify, on behalf of the Applicable Party, that, both before
and after giving effect to the Amendment, (a) as of the date hereof, no
Amortization Event or Potential Amortization Event has occurred and is
continuing and (b) the representations and warranties of the Applicable Party
contained in the Purchase Agreement and in the other Transaction Documents are
true and correct as of the date hereof.
By:
--------------------------------
Name:
Title: Assistant Secretary
EIGHTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
ANNEX I
EXHIBIT X
FORM OF MONTHLY REPORT
[see attached]
EIGHTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
ANNEX II
EXHIBIT XI
FORM OF WEEKLY REPORT
[see attached]
EIGHTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
ANNEX III
EXHIBIT XII
FORM OF DAILY REPORT
[see attached]
EIGHTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
