Exhibit 10.22
RECEIVABLES TRANSFER AGREEMENT
DATED AS OF DECEMBER 19, 2000
AMONG
BENTLEY XXXXX, INC., as an Original Seller,
CHATHAM MARKETING CO., as an Original Seller
GUILFORD OF MAINE MARKETING CO., as an Original Seller,
INTEK MARKETING CO., as an Original Seller,
INTERFACE ARCHITECTURAL RESOURCES, INC., as an Original Seller,
INTERFACE FLOORING SYSTEMS, INC., as an Original Seller,
PANDEL, INC., as an Original Seller,
PRINCE STREET TECHNOLOGIES, LTD., as an Original Seller,
TOLTEC FABRICS, INC., as an Original Seller,
AND
INTERFACE, INC.,
as Originator
TABLE OF CONTENTS
Page
ARTICLE I
AMOUNTS AND TERMS OF THE PURCHASE......................................................-2-
Section 1.1 Purchase of Receivables...............................-2-
Section 1.2 Payment for the Purchase..............................-3-
Section 1.3 Purchase Price Credit Adjustments.....................-4-
Section 1.4 Payments and Computations, Etc........................-5-
Section 1.5 Transfer of Records...................................-5-
Section 1.6 Characterization......................................-6-
ARTICLE II
REPRESENTATIONS AND WARRANTIES..........................................................-6-
Section 2.1 Representations and Warranties
of Original Sellers...................................-6-
ARTICLE III
CONDITIONS OF PURCHASE................................................................-11-
Section 3.1 Conditions Precedent to Purchase.....................-11-
Section 3.2 Conditions Precedent to Subsequent Payments..........-11-
ARTICLE IV
COVENANTS.............................................................................-11-
Section 4.1 Affirmative Covenants of Original Seller.............-11-
Section 4.2 Negative Covenants of Original Sellers...............-16-
ARTICLE V
TERMINATION EVENTS....................................................................-17-
Section 5.1 Termination Events...................................-17-
Section 5.2 Remedies.............................................-19-
ARTICLE VI
INDEMNIFICATION......................................................................-20-
Section 6.1 Indemnities by Original Seller.......................-20-
-i-
Section 6.2 Other Costs and Expenses.............................-22-
ARTICLE VII
MISCELLANEOUS........................................................................-23-
Section 7.1 Waivers and Amendments...............................-23-
Section 7.2 Notices..............................................-23-
Section 7.3 Protection of Ownership Interests of Originator......-23-
Section 7.4 Confidentiality......................................-24-
Section 7.5 Bankruptcy Petition..................................-26-
Section 7.7 CHOICE OF LAW........................................-26-
Section 7.8 CONSENT TO JURISDICTION..............................-26-
Section 7.9 WAIVER OF JURY TRIAL.................................-27-
Section 7.10 Integration; Binding Effect;
Survival of Terms....................................-27-
Section 7.11 Counterparts; Severability;
Section References...................................-28-
-ii-
Exhibits and Schedules
Exhibit I - Definitions
Exhibit II - Principal Place of Business; Location(s) of Records;
Federal Employer Identification Number
Exhibit III - Lock-Boxes; Collection Accounts; Collection Banks
Exhibit IV - [Intentionally omitted.]
Exhibit V - Credit and Collection Policies
Schedule A List of Documents to Be Delivered to Originator Prior
to the Purchase
-iii-
RECEIVABLES TRANSFER AGREEMENT
THIS RECEIVABLES TRANSFER AGREEMENT, dated as of December 19, 2000, is
by and among Bentley Xxxxx, 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 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"), Toltec Fabrics, Inc., a Georgia corporation ("Toltec," each of
Bentley, Chatham, Guilford, Intek, Interface Architectural, Interface Flooring,
Pandel, Prince Street and Toltec, an "Original Seller" and, collectively, the
"Original Sellers"), and INTERFACE, INC., a Delaware corporation ("Originator").
Unless defined elsewhere herein, capitalized terms used in this Agreement shall
have the meanings assigned to such terms in Exhibit I hereto (or, if not defined
in Exhibit I hereto, the meaning assigned to such term in Exhibit I to the
Purchase Agreement).
PRELIMINARY STATEMENTS
Each of Chatham, Pandel and Interface Architectural (each, a
"New Original Seller" and, collectively, the "New Original Sellers" now
owns, and from time to time hereafter will own, Receivables.
Each of Bentley, Guilford and Interface Flooring is a party to
a Transfer Agreement, each dated August 4, 1995, between such Original
Seller and Buyer, and each of Intek, Prince Street and Toltec (each, an
"Existing Original Seller" and, together with Bentley, Guilford and
Interface Flooring, collectively, the "Existing Original Sellers") is
party to a Transfer Agreement, each dated December 27, 1996, between
such Original Seller and Originator (each such Transfer Agreement, as
previously amended or modified and as in effect on the date hereof, an
"Existing Agreement" and, collectively, the "Existing Agreements"),
pursuant to which the Originator purchases receivables from such
Existing Original Seller in accordance with the terms thereof. Each of
the Existing Original Sellers wishes to terminate its respective
Existing Agreement in accordance with the terms thereof, and to enter
into this Agreement on the terms and conditions set forth herein,
pursuant to which the New Original Sellers and the Existing Original
Sellers will sell to Originator and Originator will purchase from such
New Original Sellers and Existing Original Sellers their respective
Receivables, together with the Related Security and Collections with
respect thereto, in accordance with the terms and conditions thereof.
Each the Original Sellers and Originator intend the
transactions contemplated hereby to be true sales of the Receivables
from each such Original Seller to Originator, providing Originator with
the full benefits of ownership of the Receivables, and neither any of
the Original Sellers nor Originators intend these transactions to be,
or for any purpose to be characterized as, loans from Originator to any
Original Seller.
Following the purchase of Receivables from the Original
Sellers, (a) Originator will sell to Interface Securitization
Corporation ("SPV") and SPV will purchase from Originator, all of
Originator's right, title and interest in and to the Receivables,
Related Security and Collections purchased by Originator pursuant to
the terms of a certain Receivables Sales Agreement, dated as of the
date hereof, between Originator and SPV (as amended, restated or
otherwise modified from time to time, the "Receivables Sale Agreement")
in accordance with the terms thereof and (b) SPV will sell undivided
interests therein pursuant to that certain Receivables Purchase
Agreement dated as of the date hereof (as the same may from time to
time hereafter be amended, supplemented, restated or otherwise
modified, the "Purchase Agreement") among SPV, Interface, Inc., as
Servicer, Jupiter Securitization Corporation ("Company"), the financial
institutions from time to time party thereto as "Financial
Institutions" and Bank One, NA (Main Office Chicago) or any successor
agent appointed pursuant to the terms of the Purchase Agreement, as
agent for Company and such Financial Institutions (in such capacity,
the "Agent").
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual agreements herein contained and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
AMOUNTS AND TERMS OF THE PURCHASE
Section 1.1 Purchase of Receivables.
------------------------
(a) Effective on the date hereof, in consideration for the
Purchase Price and upon the terms and subject to the conditions set forth
herein, each Original Seller does hereby sell, assign, transfer, set-over and
otherwise convey to Originator, without recourse (except to the extent expressly
provided herein), and Originator does hereby purchase from each Original Seller,
all of such Original Seller's right, title and interest in and to all of such
Original Seller's Receivables existing as of the close of business on the
Business Day immediately prior to the date hereof and all Receivables thereafter
arising through and including the Termination Date, together, in each case, with
all Related Security relating thereto and all Collections thereof. In accordance
with the preceding sentence, on the date hereof Originator shall acquire all of
such Original Seller's right, title and interest in and to all of such
Receivables existing as of the close of business on the Business Day immediately
prior to the date hereof and thereafter arising through and including the
Termination Date, together with all Related Security relating thereto and all
Collections thereof. Originator shall be obligated to pay the Purchase Price for
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the Receivables purchased hereunder in accordance with Section 1.2. In
connection with consummation of the Purchase Price for any Receivables purchased
hereunder, Originator may request that each Original Seller deliver, and each
Original Seller shall deliver, such approvals, opinions, information, reports or
documents as Originator may reasonably request.
(b) It is the intention of the parties hereto that the
Purchase of Receivables made hereunder shall constitute a sale, which sale is
absolute and irrevocable and provides Originator with the full benefits of
ownership of the Receivables. Except for the Purchase Price Credits owed
pursuant to Section 1.3, the sale of Receivables hereunder is made without
recourse to any Original Seller; provided, however, that (i) each Original
Seller shall be liable to Originator for all representations, warranties,
covenants and indemnities made by such Original Seller pursuant to the terms of
the Transaction Documents to which such Original Seller is a party, and (ii)
such sale does not constitute and is not intended to result in an assumption by
Originator or any assignee thereof of any obligation of any Original Seller or
any other Person arising in connection with the Receivables, the related
Contracts and/or other Related Security or any other obligations of any Original
Seller. In view of the intention of the parties hereto that the Purchase of
Receivables made hereunder shall constitute a sale of such Receivables rather
than loans secured thereby, each Original Seller agrees that it will, on or
prior to the date hereof and in accordance with Section 4.1(e)(ii), xxxx its
master data processing records relating to the Receivables with a legend
acceptable to Originator, SPV (as Originator's assignee) and to the Agent (as
SPV's assignee), evidencing that Originator has purchased such Receivables as
provided in this Agreement and to note in its financial statements that its
Receivables have been sold to Originator. Upon the request of Originator, SPV
(as Originator's assignee) or the Agent (as SPV's assignee), each Original
Seller will execute and file such financing or continuation statements, or
amendments thereto or assignments thereof, and such other instruments or
notices, as may be necessary or appropriate to perfect and maintain the
perfection of Originator's ownership interest in the Receivables and the Related
Security and Collections with respect thereto, or as Originator, SPV (as
Originator's assignee) or the Agent (as SPV's assignee) may reasonably request.
Section 1.2 Payment for the Purchase.
------------------------
(a) The Purchase Price for the Purchase of Receivables in
existence on the close of business on the Business Day immediately preceding the
date hereof (the "Initial Cutoff Date") shall be payable in full by Originator
to the Original Seller of such Receivables on the date hereof, and shall be paid
to such Original Seller by delivery of immediately available funds. The Purchase
Price for each Receivable coming into existence after the Initial Cutoff Date
shall be due and owing in full by Originator to the Original Seller of such
Receivable or its designee on the date each such Receivable came into existence
(except that Originator may, with respect to any such Purchase Price, offset
against such Purchase Price any amounts owed by the applicable Original
Page 3
Seller to Originator hereunder and that have become due but remain unpaid) and
shall be paid to such Original Seller in the manner provided in the following
paragraphs (b), (c) and (d).
(b) With respect to any Receivables coming into existence
after the Initial Cutoff Date, on each Settlement Date, Originator shall pay the
Purchase Price therefor in accordance with Section 1.2(d) by delivery of
immediately available funds.
(c) From and after the Termination Date, no Original Seller
shall sell Receivables to Originator.
(d) Although the Purchase Price for each Receivable coming
into existence after the Initial Cutoff Date shall be due and payable in full by
Originator to the Original Seller of such Receivable on the date such Receivable
came into existence, settlement of the Purchase Price between Originator and
each Original Seller shall be effected on each Settlement Date with respect to
all Receivables coming into existence (i) if settlement is effected on a monthly
basis, during the same Calculation Period and based on information contained in
the Monthly Report delivered by the Servicer pursuant to Article VIII of the
Purchase Agreement for the Calculation Period most recently ended or (ii) if
settlement is effected on a weekly basis, during the calendar week reported in
the Weekly Report most recently delivered by the Servicer pursuant to Article
VIII of the Purchase Agreement and based on the information contained in such
Weekly Report. Although settlement shall be effected in the foregoing manner,
increases or decreases in the amount owing under the Subordinated Note made
pursuant to Section 1.2(b) and any contribution of capital by Originator to
Originator made pursuant to Section 1.2(b) shall be deemed to have occurred and
shall be effective as of the last Business Day of the Calculation Period to
which such settlement relates.
Section 1.3 Purchase Price Credit Adjustments. If on any day:
---------------------------------
(a) the Outstanding Balance of a Receivable is:
(i) reduced as a result of any defective or rejected
or returned goods or services, any discount or any adjustment
or otherwise by the Original Seller of such Receivable (other
than cash Collections on account of the Receivables),
(ii) reduced or canceled as a result of a setoff in
respect of any claim by any Person (whether such claim arises
out of the same or a related transaction or an unrelated
transaction), or
(b) any Contract with respect to any Receivable shall fail to
create a legal, valid and binding obligation of the related Obligor to pay the
Outstanding Balance of the Receivable created thereunder and any accrued
interest thereon, or
Page 4
(c) any of the representations and warranties set forth in
Article II are not true when made or deemed made with respect to any Receivable,
then, in such event, Originator shall be entitled to a credit (each, a "Purchase
Price Credit") against the Purchase Price otherwise payable hereunder to the
Original Seller of such Receivable equal to the Outstanding Balance of such
Receivable (calculated before giving effect to the applicable reduction or
cancellation). If such Purchase Price Credit exceeds the Original Balance of the
Receivables of such Original Seller coming into existence on any day, then such
Original Seller shall pay the remaining amount of such Purchase Price Credit in
cash immediately.
Section 1.4 Payments and Computations, Etc. All amounts to be paid or
--------------------------------
deposited by Originator hereunder shall be paid or deposited in accordance with
the terms hereof on the day when due in immediately available funds to the
account of the applicable Original Seller designated from time to time by such
Original Seller or as otherwise directed by such Original Seller. In the event
that any payment owed by any Person hereunder becomes due on a day that is not a
Business Day, then such payment shall be made on the next succeeding Business
Day. If any Person fails to pay any amount hereunder when due, such Person
agrees to pay, on demand, the Default Fee in respect thereof until paid in full;
provided, however, that such Default Fee shall not at any time exceed the
maximum rate permitted by applicable law. All computations of interest payable
hereunder shall be made on the basis of a year of 360 days for the actual number
of days (including the first but excluding the last day) elapsed.
Section 1.5 Transfer of Records.
-------------------
(a) In connection with the Purchase of Receivables hereunder,
each Original Seller hereby sells, transfers, assigns and otherwise conveys to
Originator all of such Original Seller's right and title to and interest in the
Records relating to all Receivables sold hereunder, without the need for any
further documentation in connection with the Purchase. In connection with such
transfer, each Original Seller hereby grants to each of Originator, SPV, the
Agent and the Servicer an irrevocable, non-exclusive license to use, without
royalty or payment of any kind, all software used by such Original Seller to
account for its Receivables, to the extent necessary to administer such
Receivables, whether such software is owned by such Original Seller or is owned
by others and used by such Original Seller under license agreements with respect
thereto, provided that should the consent of any licensor of such software be
required for the grant of the license described herein, to be effective, such
Original Seller hereby agrees that upon the request of Originator (or
Originator's assignee), such Original Seller will use its reasonable efforts to
obtain the consent of such third-party licensor. The license granted hereby
shall be irrevocable until the indefeasible payment in full of the Aggregate
Unpaids, and shall terminate on the date this Agreement terminates in accordance
with its terms.
Page 5
(b) Each Original Seller (i) shall take such action requested
by Originator, SPV (as Originator's assignee) and/or the Agent (as SPV's
assignee), from time to time hereafter, that may be necessary or appropriate to
ensure that Originator, SPV and their respective assigns have an enforceable
ownership interest in the Records relating to the Receivables purchased from
such Original Seller hereunder, and (ii) shall use its reasonable efforts to
ensure that Originator, SPV, the Agent and the Servicer each has an enforceable
right (whether by license or sublicense or otherwise) to use all of the computer
software used to account for the Receivables and/or to recreate such Records.
Section 1.6 Characterization. If, notwithstanding the
----------------
intention of the parties expressed in Section 1.1(b), any sale by any Original
Seller to Originator of Receivables hereunder shall not be characterized as a
sale or such sale shall for any reason be ineffective or unenforceable, then
this Agreement shall be deemed to, and hereby does, constitute a security
agreement under the UCC and other applicable law. For this purpose and without
being in derogation of the parties' intention that the sale of Receivables
hereunder shall constitute a true sale thereof, each Original Seller hereby
grants to Originator a valid and enforceable security interest in all of such
Original Seller's right, title and interest in, to and under all Receivables now
existing and hereafter arising, all Collections and Related Security with
respect thereto, each Lock-Box and Collection Account, all other rights and
payments relating to the Receivables and all proceeds of the foregoing to secure
the prompt and complete payment of a loan deemed to have been made in an amount
equal to the aggregate outstanding Purchase Price of such Original Seller's
Receivables together with all other obligations of such Original Seller
hereunder, which security interest shall be prior to all other Adverse Claims
thereto. Originator and its assigns shall have, in addition to the rights and
remedies that they may have under this Agreement, all other rights and remedies
provided to a secured creditor under the UCC and other applicable law, which
rights and remedies shall be cumulative.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of Original
-----------------------------------------------
Sellers. Each Original Seller hereby represents and warrants to Originator on
-------
the date hereof, on the date of the Purchase and on each date that any of such
Original Seller's Receivables comes into existence that:
(a) Corporate Existence and Power. Such Original Seller is a
corporation duly organized, validly existing and in good standing under the laws
of its state of incorporation, and is duly qualified to do business and is in
good standing as a foreign corporation, and has and holds all corporate power
and all governmental licenses, authorizations, consents and approvals required
to carry on its business in each jurisdiction in which its business is
conducted, except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.
Page 6
(b) Power and Authority; Due Authorization, Execution and
Delivery. The execution and delivery by such Original Seller of this Agreement
and each other Transaction Document to which it is a party, and the performance
of its obligations hereunder and thereunder and, such Original Seller's use of
the proceeds of the Purchase from such Original Seller made hereunder, are
within its corporate powers and authority, and have been duly authorized by all
necessary corporate action on its part. This Agreement and each other
Transaction Document to which such Original Seller is a party has been duly
executed and delivered by such Original Seller.
(c) No Conflict. The execution and delivery by such Original
Seller of this Agreement and each other Transaction Document to which it is a
party, and the performance of its obligations hereunder and thereunder do not
contravene or violate (i) its certificate or articles of incorporation or
by-laws, (ii) any law, rule or regulation applicable to it, (iii) any
restrictions under any agreement, contract or instrument to which it is a party
or by which it or any of its property is bound, or (iv) any order, writ,
judgment, award, injunction or decree binding on or affecting it or its
property, and do not result in the creation or imposition of any Adverse Claim
on assets of such Original Seller or its Subsidiaries (except as created
hereunder), except, in any case, where such contravention or violation could not
reasonably be expected to have a Material Adverse Effect. No transaction
contemplated hereby requires compliance with any bulk sales act or similar law.
(d) Governmental Authorization. Other than the filing of the
financing statements required hereunder, no authorization or approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution and delivery by such Original
Seller of this Agreement and each other Transaction Document to which it is a
party and the performance of its obligations hereunder.
(e) Actions, Suits. There are no actions, suits or proceedings
pending, or to the best of such Original Seller's knowledge, threatened, against
or affecting such Original Seller, or any of its properties, in or before any
court, arbitrator or other body, that could reasonably be expected to have a
Material Adverse Effect. Such Original Seller is not in default with respect to
any order of any court, arbitrator or governmental body that could reasonably be
expected to have a Material Adverse Effect.
(f) Binding Effect. This Agreement and each other Transaction
Document to which such Original Seller is a party constitute the legal, valid
and binding obligations of such Original Seller enforceable against such
Original Seller in accordance with their respective terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization
or other similar laws relating to or limiting creditors' rights generally and by
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
Page 7
(g) Accuracy of Information. All information heretofore
furnished by such Original Seller or any of its Affiliates to Originator (or its
assigns) for purposes of or in connection with this Agreement, any of the other
Transaction Documents or any transaction contemplated hereby or thereby is true
and accurate in every material respect on the date such information is stated or
certified and does not contain any material misstatement of fact or omit to
state a material fact or any fact necessary to make the statements contained
therein not misleading as of the date such information is stated or certified.
(h) Use of Proceeds. No proceeds of any Purchase Price payment
to such Original Seller hereunder will be used (i) for a purpose that violates,
or would be inconsistent with, any law, rule or regulation applicable to such
Original Seller or (ii) to acquire any security in any transaction that is
subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(i) Good Title. Immediately prior to the Purchase hereunder,
each Original Seller is the legal and beneficial owner of the Receivables and
the Related Security with respect thereto, free and clear of any Adverse Claim,
except as created by the Transaction Documents. There have been duly filed all
financing statements or other similar instruments or documents necessary under
the UCC (or any comparable law) of all appropriate jurisdictions to perfect such
Original Seller's ownership interest in each Receivable, its Collections and the
Related Security.
(j) Perfection. This Agreement, together with the filing of
the financing statements contemplated hereby, is effective to, and shall, upon
each Purchase hereunder, transfer to Originator (and Originator shall acquire
from such Original Seller) (i) legal and equitable title to, with the right to
sell and encumber each Receivable existing or hereafter arising, together with
the Collections with respect thereto, and (ii) all of such Original Seller's
right, title and interest in the Related Security associated with each
Receivable, in each case, free and clear of any Adverse Claim, except as created
by the Transactions Documents. There have been duly filed all financing
statements or other similar instruments or documents necessary under the UCC (or
any comparable law) of all appropriate jurisdictions to perfect Originator's
ownership interest in the Receivables, the Related Security and the Collections.
(k) Places of Business and Locations of Records. The
principal places of business and chief executive office of such Original Seller
and the offices where it keeps all of its Records are located at the address(es)
listed on Exhibit II or such other locations of which Originator has been
notified in accordance with Section 4.2(a) in jurisdictions where all action
required by Section 4.2(a) has been taken and completed. Such Original Seller's
Federal Employer Identification Number is correctly set forth on Exhibit II.
Page 8
(l) Collections. The conditions and requirements set forth in
Section 4.1(j) have at all times been satisfied and duly performed. The names
and addresses of all Collection Banks, together with the account numbers of the
Collection Accounts of such Original Seller at each Collection Bank and the post
office box number of each Lock-Box, are listed on Exhibit III. Such Original
Seller has not granted any Person, other than Originator (and its assigns)
dominion and control of any Lock-Box or Collection Account, or the right to take
dominion and control of any such Lock-Box or Collection Account at a future time
or upon the occurrence of a future event.
(m) Material Adverse Effect. Since December 31, 1999, no
event has occurred that would have a Material Adverse Effect.
(n) Names. In the past five (5) years, such Original Seller
has not used any corporate names, trade names or assumed names other than the
name in which it has executed this Agreement.
(o) Ownership of Originator. Originator owns, directly or
indirectly, 100% of the issued and outstanding capital stock of each Original
Seller, free and clear of any Adverse Claim. Such capital stock is validly
issued, fully paid and nonassessable, and there are no options, warrants or
other rights to acquire securities of Original Seller.
(p) Not a Holding Company or an Investment Company. Such
Original Seller is not a "holding company" or a "subsidiary holding company" of
a "holding company" within the meaning of the Public Utility Holding Company Act
of 1935, as amended, or any successor statute. Such Original Seller is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or any successor statute.
(q) Compliance with Law. Such Original Seller has complied in
all respects with all applicable laws, rules, regulations, orders, writs,
judgments, injunctions, decrees or awards to which it may be subject, except
where the failure to so comply could not reasonably be expected to have a
Material Adverse Effect. Each Receivable, together with the Contract related
thereto, does not contravene any laws, rules or regulations applicable thereto
(including, without limitation, laws, rules and regulations relating to truth in
lending, fair credit billing, fair credit reporting, equal credit opportunity,
fair debt collection practices and privacy), and no part of such Contract is in
violation of any such law, rule or regulation, except where such contravention
or violation could not reasonably be expected to have a Material Adverse Effect.
(r) Compliance with Credit and Collection Policies. Such
Original Seller has complied in all material respects with such Original
Seller's Credit and
Page 9
Collection Policy with regard to each Receivable and the related Contract, and
has not made any change to such Credit and Collection Policy, except such
material change as to which Originator (or its assigns) has been notified in
accordance with Section 4.1(a)(vii).
(s) Payments to Original Sellers. With respect to each
Receivable transferred to Originator by such Original Seller hereunder or under
any Existing Agreement, the Purchase Price received by such Original Seller
constitutes reasonably equivalent value in consideration therefor and such
transfer was not made for or on account of an antecedent debt. No transfer by
such Original Seller of any Receivable hereunder or under any Existing Agreement
is or may be voidable under any section of the Bankruptcy Reform Act of 1978 (11
U.S.C. xx.xx. 101 et seq.), as amended.
(t) Enforceability of Contracts. Each Contract with respect
to each Receivable of such Original Seller is effective to create, and has
created, a legal, valid and binding obligation of the related Obligor to pay the
Outstanding Balance of the Receivable created thereunder and any accrued
interest thereon, enforceable against the Obligor in accordance with its terms,
except as such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws relating to or limiting creditors' rights
generally and by general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law).
(u) Eligible Receivables. Each Receivable of such Original
Seller included at any time in the Net Receivables Balance as an Eligible
Receivable was, (i) in the case of the Existing Receivables, as of the date
hereof, and, (ii) in the case of all other Receivables, on the later to occur of
the date of the Purchase and the date it came into existence, an Eligible
Receivable on such date.
(v) Accounting. The manner in which such Original Seller
accounts for the transactions contemplated by this Agreement does not jeopardize
the characterization of the transactions contemplated herein as being true
sales.
ARTICLE III
CONDITIONS OF PURCHASE
Section 3.1 Conditions Precedent to Purchase. The Purchase
under this Agreement is subject to the conditions precedent that (a) Originator
shall have received on or before the date of such purchase those documents
listed on Schedule A and (b) all of the conditions to the initial purchase under
the Receivables Sale Agreement and the Purchase Agreement shall have been
satisfied or waived in accordance with the terms thereof.
Section 3.2 Conditions Precedent to Subsequent Payments.
Originator's obligation to pay for Receivables coming into existence after the
Initial Cutoff Date shall be
Page 10
subject to the further conditions precedent that (a) the Facility Termination
Date shall not have occurred; (b) Originator (or its assigns) shall have
received such other approvals, opinions or documents as it may reasonably
request and (c) on the date such Receivable came into existence, the following
statements shall be true (and acceptance of the proceeds of any payment by any
Original Seller for such Receivable shall be deemed a representation and
warranty by such Original Seller that such statements are then true):
(i) the representations and warranties of such Original Seller
set forth in Article II are true and correct on and as of the date such
Receivable came into existence as though made on and as of such date; and
(ii) no event has occurred and is continuing that will
constitute a Termination Event or a Potential Termination Event.
Notwithstanding the foregoing conditions precedent, upon payment of the Purchase
Price for any Receivable (whether by payment of cash and/or by offset of amounts
owed to Originator), title to such Receivable and the Related Security and
Collections with respect thereto shall vest in Originator, whether or not the
conditions precedent to Originator's obligation to pay for such Receivable were
in fact satisfied. The failure of any Original Seller to satisfy any of the
foregoing conditions precedent, however, shall give rise to a right of
Originator to rescind the related purchase of Receivables from such Original
Seller and to direct such Original Seller to pay to Originator an amount equal
to the Purchase Price payment that shall have been made with respect to any
Receivables related thereto.
ARTICLE IV
COVENANTS
Section 4.1 Affirmative Covenants of Original Sellers. Until
the date on which this Agreement terminates in accordance with its terms, each
Original Seller hereby covenants as set forth below:
(a) Reporting. Such Original Seller will maintain,
for itself and each of its Subsidiaries, a system of accounting established and
administered in accordance with GAAP, and furnish to Originator (or its
assigns):
(i) Change in Credit and Collection
Policies. At least thirty (30) days prior to the effectiveness of any material
change in or material amendment to such Original Seller's Credit and Collection
Policy, a copy of such Original Seller's Credit and Collection Policy then in
effect and a notice (A) indicating such change or amendment, and (B) if such
proposed change or amendment could adversely affect the collectibility of the
Receivables of such Original Seller or decrease the
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credit quality of any newly created Receivables of such Original Seller,
requesting Originator's consent thereto.
(ii) Other Information. Promptly, from time
to time, such other information, documents, records or reports relating to the
Receivables or the condition or operations, financial or otherwise, of such
Original Seller as Originator (or its assigns) may from time to time reasonably
request in order to protect the interests of Originator (and its assigns) under
or as contemplated by this Agreement.
(b) Notices. Such Original Seller will notify the Originator
(or its assigns) in writing of any of the following promptly upon learning of
the occurrence thereof, describing the same and, if applicable, the steps being
taken with respect thereto:
(i) Termination Events or Potential Termination
Events. The occurrence of each Termination Event and each Potential Termination
Event, by a statement of an Authorized Officer of such Original Seller.
(ii) Judgment and Proceedings. (1) The entry of any
judgment or decree against such Original Seller or any of its Subsidiaries if
the aggregate amount of all judgments and decrees then outstanding against such
Original Seller and its Subsidiaries could reasonably be expected to have a
Material Adverse Effect, and (2) the institution of any litigation, arbitration
proceeding or governmental proceeding against such Original Seller.
(iii) Material Adverse Effect. The occurrence of any
event or condition that has had, or could reasonably be expected to have, a
Material Adverse Effect.
(iv) Defaults Under Other Agreements. The occurrence
of a default or an event of default under any other material financing
arrangement pursuant to which such Original Seller is a debtor or an obligor.
(v) Downgrade of the Interface. Any downgrade in the
rating of any Indebtedness of Interface, Inc. by Standard and Poor's Ratings
Group or by Xxxxx'x Investors Service, Inc., setting forth the Indebtedness
affected and the nature of such change.
(c) Compliance with Laws and Preservation of Corporate
Existence. Such Original Seller will comply in all respects with all applicable
laws, rules,
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regulations, orders, writs, judgments, injunctions, decrees or awards to which
it may be subject, except where the failure to so comply could not reasonably be
expected to have a Material Adverse Effect. Such Original Seller will preserve
and maintain its corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation, and qualify and remain qualified in good
standing as a foreign corporation in each jurisdiction where its business is
conducted, except where the failure to so preserve and maintain or qualify could
not reasonably be expected to have a Material Adverse Effect.
(d) Audits. Such Original Seller will furnish to Originator
(or its assigns) from time to time such information with respect to it and the
Receivables as Originator (or its assigns) (subject to the last sentence of this
Section 4.1(d)) may reasonably request. Such Original Seller will, from time to
time during regular business hours as requested by Originator (or its assigns),
upon reasonable notice and at the sole cost of such Original Seller, permit
Originator (or its assigns) or their respective agents or representatives, (i)
to examine and make copies of and abstracts from all Records in the possession
or under the control of such Original Seller relating to the Receivables and the
Related Security, including, without limitation, the related Contracts, and (ii)
to visit the offices and properties of such Original Seller for the purpose of
examining such materials described in clause (i) above, and to discuss matters
relating to such Original Seller's financial condition or the Receivables and
the Related Security or such Original Seller's performance under any of the
Transaction Documents or such Original Seller's performance under the Contracts
and, in each case, with any of the officers or employees of such Original Seller
having knowledge of such matters. All such examinations and visits shall be at
the sole cost of such Original Seller; provided, however, that (i) for so long
as no Termination Event or Potential Termination Event shall have occurred and
be continuing and (ii) the result of the immediately preceding examination
and/or visit of Original Seller shall have been reasonably satisfactory to
Originator (and its assigns) (A) such examinations and/or visits shall be
limited to four times per calendar year per Person and (B) such cost shall be
borne by such Original Seller not more than once per calendar year per Original
Seller (although in no event shall the foregoing be construed to limit
Originator (and its assigns) or their respective agents or representatives to
one such examination and/or visit of such Original Seller during such calendar
year period).
(e) Keeping and Marking of Records and Books.
(i) Such Original Seller will maintain and implement
administrative and operating procedures (including, without
limitation, an ability to recreate records evidencing
Receivables in the event of the destruction of the originals
thereof), and keep and maintain all documents, books, records
and other information reasonably necessary or advisable for
the collection of all Receivables (including, without
limitation, records adequate to permit the immediate
identification of each new
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Receivable and all Collections of and adjustments to each
existing Receivable). Such Original Seller will give
Originator (or its assigns) notice of any material change in
the administrative and operating procedures referred to in the
previous sentence.
(ii) Such Original Seller will (A) on or prior to the
date hereof, xxxx its master data processing records and other
books and records relating to the Receivables of such Original
Seller with a legend, acceptable to Originator (or its
assigns), describing Originator's and SPV's ownership
interests in the Receivables and further describing the
Purchaser Interests of the Agent (on behalf of the Purchasers)
under the Purchase Agreement and (B) upon the request of
Originator (or its assigns) after the occurrence of a
Termination Event, (x) xxxx each Contract with a legend
describing Originator's and SPV's ownership interests in the
Receivables of such Original Seller and further describing the
Purchaser Interests of the Agent (on behalf of the Purchasers)
and (y) deliver to Originator (or its assigns) all Contracts
(including, without limitation, all multiple originals of any
such Contract) relating to the Receivables.
(f) Compliance with Contracts and Credit and Collection
Policy. Such Original Seller will timely and fully (i) perform and comply with
all provisions, covenants and other promises required to be observed by it under
the Contracts related to the Receivables of such Original Seller, and (ii)
comply in all respects with the Credit and Collection Policy in regard to each
Receivable of such Original Seller and the related Contract.
(g) Ownership. Such Original Seller will take all necessary
action to establish and maintain, irrevocably in Originator, (i) legal and
equitable title to the Receivables of such Original Seller and the Collections
and (ii) all of such Original Seller's right, title and interest in the Related
Security associated with such Receivables, in each case, free and clear of any
Adverse Claims other than Adverse Claims in favor of Originator (and its
assigns) (including, without limitation, the filing of all financing statements
or other similar instruments or documents necessary under the UCC (or any
comparable law) of all appropriate jurisdictions to perfect Originator's
interest in such Receivables, Related Security and Collections and such other
action to perfect, protect or more fully evidence the interest of Originator as
Originator (or its assigns) may reasonably request).
(h) [Intentionally Omitted].
(i) Collections. Such Original Seller will cause (1) all
proceeds from all Lock-Boxes to be directly deposited by a Collection Bank into
a Collection Account and (2) each Lock-Box and Collection Account to be subject
at all times to a Collection Account Agreement that is in full force and effect.
In the event any payments
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relating to Receivables are remitted directly to such Original Seller or any
Affiliate of such Original Seller, such Original Seller will remit (or will
cause all such payments to be remitted) directly to a Collection Bank and
deposited into a Collection Account (A) if no Termination Event and no
Amortization Event has then occurred and is continuing within two (2) Business
Days following receipt thereof, and at any time a Termination Event or an
Amortization Event has occurred and is continuing, immediately upon receipt
thereof.. At all times prior to such remittance, such Original Seller will
itself hold or, if applicable, will cause such payments to be held in trust for
the exclusive benefit of Originator and its assigns. Such Original Seller will
transfer exclusive ownership, dominion and control of each Lock-Box and
Collection Account to Originator and, will not grant the right to take dominion
and control of any Lock-Box or Collection Account at a future time or upon the
occurrence of a future event to any Person, except to Originator (or its
assigns) as contemplated by this Agreement and the Purchase Agreement.
(j) Taxes. Such Original Seller will file all tax returns and
reports required by law to be filed by it and promptly pay all taxes and
governmental charges at any time owing, except any such taxes which are not yet
delinquent or are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books. Such Original Seller will pay when due any taxes
payable in connection with the Receivables of such Original Seller for all
periods during which such Receivables were owned by such Original Seller,
exclusive of taxes on or measured by income or gross receipts of Originator and
its assigns.
(k) Insurance. Such Original Seller will maintain in effect,
or cause to be maintained in effect, at such Original Seller's own expense, such
casualty and liability insurance as such Original Seller deems appropriate in
its good faith business judgement. Originator, SPV and the Agent, for the
benefit of the Purchasers, shall be named as additional insureds with respect to
all such liability insurance maintained by such Original Seller. Such Original
Seller will pay or cause to be paid, the premiums therefor and deliver to
Originator, SPV and the Agent evidence satisfactory to Originator and the Agent
of such insurance coverage. Copies of each policy shall be furnished to
Originator, SPV, the Agent and any Purchaser in certificated form upon
Originator's, SPV's, the Agent's or such Purchaser's request. The foregoing
requirements shall not be construed to negate, reduce or modify, and are in
addition to, such Original Seller's obligations hereunder.
(l) Accuracy of Information. All information furnished by such
Original Seller or any of its Affiliates to Originator (or its assigns) will be
true and accurate in every material respect on the date such information is
stated or certified and will not contain any material misstatement of fact or
omit to state a material face or any fact necessary to make the statements
contained therein not misleading as of the date such information is stated or
certified.
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Section 4.2 Negative Covenants of Original Sellers. Until the
date on which this Agreement terminates in accordance with its terms, each
Original Seller hereby covenants that:
(a) Name Change, Offices and Records. In the event that any
Original Seller shall change its name, such Original Seller shall notify
Originator (and its assigns) of such change immediately, and in any event within
10 days of the occurrence of any such change. In the event that any Original
Seller shall change its identity or corporate structure (within the meaning of
Section 9-402(7) of any applicable enactment of the UCC) or relocate its chief
executive office or any office where any material portion of Records are kept,
such Original Seller shall notify Originator (and its assigns) of such change as
soon as reasonably practicable, and in any event within 30 days of the
occurrence of any such change.
(b) Change in Payment Instructions to Obligors. Such Original
Seller will not add or terminate any bank as a Collection Bank, or make any
change in the instructions to Obligors regarding payments to be made to any
Lock-Box or Collection Account, unless Originator (or its assigns) shall have
received, at least ten (10) days before the proposed effective date therefor,
(i) written notice of such addition, termination or change and (ii) with respect
to the addition of a Collection Bank or a Collection Account or Lock-Box, an
executed Collection Account Agreement acceptable to Originator (and to SPV and
its assigns) with respect to the new Collection Account or Lock-Box; provided,
however, that such Original Seller may make changes in instructions to Obligors
regarding payments if such new instructions require such Obligor to make
payments to another existing Collection Account.
(c) Modifications to Contracts and Credit and Collection
Policy. Such Original Seller will not make any material change or any material
amendment to the Credit and Collection Policy that could reasonably be expected
to adversely affect the collectibility of the Receivables of such Original
Seller or decrease the credit quality of any newly created Receivables of such
Original Seller without the prior written consent of Originator (and SPV and its
assigns). Except as otherwise permitted in its capacity as Servicer pursuant to
Article VIII of the Purchase Agreement, such Original Seller will not extend,
amend or otherwise modify the terms of any Receivable of such Original Seller or
any Contract related thereto other than in accordance with its Credit and
Collection Policy.
(d) Sales, Liens. Such Original Seller will not sell, assign
(by operation of law or otherwise) or otherwise dispose of, or grant any option
with respect to, or create or suffer to exist any Adverse Claim upon (including,
without limitation, the filing of any financing statement) or with respect to,
any Receivable of such Original Seller or any Related Security or Collections
with respect thereto, or upon or with respect to any Contract under which any
such Receivable arises, or any Lock-Box or Collection Account, or assign any
right to receive income with respect thereto (other than, in each case, the
creation of the
Page 16
interests therein in favor of Originator provided for herein), and such Original
Seller will defend the right, title and interest of Originator in, to and under
any of the foregoing property, against all claims of third parties claiming
through or under such Original Seller. Such Original Seller shall not create or
suffer to exist any mortgage, pledge, security interest, encumbrance, lien,
charge or other similar arrangement on any of its inventory.
(e) Accounting for Purchase. Such Original Seller will not,
and will not permit any Affiliate to, account for or treat (whether in financial
statements or otherwise) the transactions contemplated hereby in any manner
other than the sale of the Receivables of such Original Seller and the Related
Security by such Original Seller to Originator or in any other respect account
for or treat the transactions contemplated hereby in any manner other than as a
sale of such Receivables and the Related Security by such Original Seller to
Originator except to the extent that such transactions are not recognized on
account of consolidated financial reporting in accordance with generally
accepted accounting principles.
ARTICLE V
TERMINATION EVENTS
Section 5.1 Termination Events. The occurrence of any one or more of
the following events shall constitute a Termination Event:
(a) Any Original Seller shall fail (i) to make any payment or
deposit consisting of principal required hereunder when due and, in the case of
any failure to make a timely payment or deposit solely by reason of any
mechanical delay in or malfunction of the Fedwire system, such failure shall
continue for one (1) Business Day and so long as such Original Seller pays
immediately upon demand any and all losses, costs and expenses incurred by the
Originator, the Buyer, any Purchaser or the Agent in connection with or as a
result of such failure to make a timely payment or deposit, (ii) to make any
payment or deposit (other than as referred to in clause (i) of this paragraph
(a)) of any other amounts when due hereunder and such failure shall continue for
three (3) consecutive Business Days, (iii) to comply with the provisions of
Section 4.1(b)(i), (ii) or (iii) or 4.2 and such failure shall continue for
three (3) consecutive Business Days, (iv) to comply with the provisions of
Section 4.1 (c), (f), (g), (h), (j), (m) or (n) and such failure shall continue
for five (5) consecutive Business Days or (v) to perform or observe any term,
covenant or agreement hereunder (other than as referred to in clauses (i), (ii),
(iii) or (iv) of this paragraph (a)) and such failure shall continue for ten
(10) consecutive Business Days.
(b) Any representation, warranty, certification or statement
made by any Original Seller in this Agreement, any other Transaction Document to
which it is a party or in any other document delivered pursuant hereto or
thereto shall prove to have been incorrect when made or deemed made.
Page 17
(c) Failure of any Original Seller to pay any Indebtedness
when due in an amount in excess of $10,000,000; or the default by any Original
Seller in the performance of any term, provision or condition contained in any
agreement under which any such Indebtedness was created or is governed, the
effect of which is to cause, or to permit the holder or holders of such
Indebtedness to cause, such Indebtedness to become due prior to its stated
maturity; or any such Indebtedness of any Original Seller shall be declared to
be due and payable or required to be prepaid (other than by a regularly
scheduled payment) prior to the date of maturity thereof.
(d) (i) Any Original Seller shall generally not pay its debts
as such debts become due or shall admit in writing its inability to pay its
debts generally or shall make a general assignment for the benefit of creditors;
or (ii) any proceeding shall be instituted by any Original Seller seeking to
adjudicate it bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition of it
or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee or other similar official for it or any
substantial part of its property or (iii) any proceeding shall be instituted
against any Original Seller seeking to adjudicate it bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee or other
similar official for it or any substantial part of its property which proceeding
is not dismissed within 30 days of the institution thereof or (iv) any Original
Seller shall take any corporate action to authorize any of the actions set forth
in this subsection (d).
(e) One or more final judgments for the payment of money in an
amount in excess of $10,000,000, individually or in the aggregate, shall be
entered against any Original Seller on claims not covered by insurance or as to
which the insurance carrier has denied its responsibility, and such judgment
shall continue unsatisfied and in effect for thirty (30) consecutive days
without a stay of execution.
(f) This Agreement shall terminate in whole or in part (except
in accordance with its terms), or shall cease to be effective or to be the
legally valid, binding and enforceable obligation of any Original Seller, or any
Obligor shall directly or indirectly contest in any manner such effectiveness,
validity, binding nature or enforceability, or the Originator shall cease to
have a valid ownership interest in the Receivables, the Related Security and the
Collections with respect thereto and the Collection Accounts, free and clear of
any Adverse Claims.
(g) Originator shall fail to own, free and clear of any
Adverse Claims, 100% of the voting stock of any Original Seller.
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Section 5.12 Remedies. Upon the occurrence and during the continuation
of a Termination Event, Originator may take any of the following actions: (i)
declare the Termination Date to have occurred, whereupon the Termination Date
shall forthwith occur, without demand, protest or further notice of any kind,
all of which are hereby expressly waived by each Original Seller; provided,
however, that upon the occurrence of a Termination Event described in Section
5.1(d), or of an actual or deemed entry of an order for relief with respect to
any Original Seller under the Federal Bankruptcy Code, the Termination Date
shall automatically occur, without demand, protest or any notice of any kind,
all of which are hereby expressly waived by each Original Seller and (ii) to the
fullest extent permitted by applicable law, declare that the Default Fee shall
accrue with respect to any amounts then due and owing by each Original Seller to
Originator. The aforementioned rights and remedies shall be without limitation
and shall be in addition to all other rights and remedies of Originator and its
assigns otherwise available under any other provision of this Agreement, by
operation of law, at equity or otherwise, all of which are hereby expressly
preserved, including, without limitation, all rights and remedies provided under
the UCC, all of which rights shall be cumulative.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Indemnities by Original Sellers. Without limiting any other
rights that Originator may have hereunder or under applicable law, each Original
Seller hereby agrees to indemnify (and pay upon demand to) Originator and its
assigns, officers, directors, agents and employees (each an "Indemnified Party")
from and against any and all damages, losses, claims, taxes, liabilities, costs,
expenses and for all other amounts payable, including reasonable attorneys' fees
(which attorneys may be employees of Originator or any such assign) and
disbursements (all of the foregoing being collectively referred to as
"Indemnified Amounts") awarded against or incurred by any of them arising out of
or as a result of this Agreement or the acquisition, either directly or
indirectly, by Originator of an interest in the Receivables of such Original
Seller, excluding, however:
(i) Indemnified Amounts to the extent a final
judgment of a court of competent jurisdiction holds that such
Indemnified Amounts resulted from gross negligence or willful
misconduct on the part of the Indemnified Party seeking
indemnification;
(ii) Indemnified Amounts to the extent the same
includes losses in respect of Receivables that are
uncollectible on account of the insolvency, bankruptcy or lack
of creditworthiness of the related Obligor; or
Page 19
(iii) taxes imposed by the jurisdiction in which such
Indemnified Party's principal executive office is located and
any jurisdiction in which such Indemnified Party is doing
business (except to the extent that any such tax is imposed by
such jurisdiction based upon this Agreement or any other
Transaction Document), on or measured by the overall net
income of such Indemnified Party to the extent that the
computation of such taxes is consistent with the
characterization for income tax purposes of the acquisition by
the Purchasers of Purchaser Interests under the Purchase
Agreement as a loan or loans by the Purchasers to Originator
secured by, among other things, the Receivables, the Related
Security and the Collections;
provided, however, that nothing contained in this sentence shall limit the
liability of any Original Seller or limit the recourse of Originator to any
Original Seller for amounts otherwise specifically provided to be paid by such
Original Seller under the terms of this Agreement. Without limiting the
generality of the foregoing indemnification, each Original Seller shall
indemnify Originator for Indemnified Amounts (including, without limitation,
losses in respect of uncollectible receivables, regardless of whether
reimbursement therefor would constitute recourse to such Original Seller)
relating to or resulting from:
(i) any representation or warranty made by such
Original Seller (or any officers of such Original Seller)
under or in connection with this Agreement, any other
Transaction Document or any other information or report
delivered by such Original Seller pursuant hereto or thereto
that shall have been false or incorrect when made or deemed
made;
(ii) the failure by such Original Seller, to comply
with any applicable law, rule or regulation with respect to
any Receivable of such Original Seller or Contract related
thereto, or the nonconformity of any Receivable of such
Original Seller or Contract included therein with any such
applicable law, rule or regulation or any failure of such
Original Seller to keep or perform any of its obligations,
express or implied, with respect to any Contract;
(iii) any failure of such Original Seller to perform
its duties, covenants or other obligations in accordance with
the provisions of this Agreement or any other Transaction
Document;
(iv) any products liability, personal injury or
damage, suit or other similar claim arising out of or in
connection with merchandise, insurance or services that are
the subject of any Contract or any Receivable of such Original
Seller;
Page 20
(v) any dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obligor) of the Obligor to the
payment of any Receivable of such Original Seller (including,
without limitation, a defense based on such Receivable or the
related Contract not being a legal, valid and binding
obligation of such Obligor enforceable against it in
accordance with its terms), or any other claim resulting from
the sale of the merchandise or service related to such
Receivable or the furnishing or failure to furnish such
merchandise or services;
(vi) the commingling of Collections of Receivables of
such Original Seller at any time with other funds;
(vii) any investigation, litigation or proceeding
related to or arising from this Agreement or any other
Transaction Document, the transactions contemplated hereby,
the use of the proceeds of any Purchase Price Payment, the
ownership of the Receivables of such Original Seller or any
other investigation, litigation or proceeding relating to such
Original Seller in which any Indemnified Party becomes
involved as a result of any of the transactions contemplated
hereby;
(viii)any inability to litigate any claim against any
Obligor in respect of any Receivable of such Original Seller
as a result of such Obligor being immune from civil and
commercial law and suit on the grounds of sovereignty or
otherwise from any legal action, suit or proceeding;
(ix) any Termination Event described in Section
5.1(d);
(x) any failure to vest and maintain vested in
Originator, or to transfer to Originator, legal and equitable
title to, and ownership of, the Receivables of such Original
Seller and the Collections, and all of such Original Seller's
right, title and interest in the Related Security associated
with the Receivables of such Original Seller, in each case,
free and clear of any Adverse Claim;
(xi) the failure to have filed, or any delay in
filing, financing statements or other similar instruments or
documents under the UCC of any applicable jurisdiction or
other applicable laws with respect to any Receivable of such
Original Seller, the Related Security and Collections with
respect thereto, and the proceeds of any thereof, whether at
the time of the Purchase or at any subsequent time;
Page 21
(xii) any action or omission by such Original Seller
that reduces or impairs the rights of Originator with respect
to any Receivable of such Original Seller or the value of any
such Receivable;
(xiii) any attempt by any Person to void the Purchase
hereunder under statutory provisions or common law or
equitable action; and
(xiv) the failure of any Receivable of such Original
Seller included in the calculation of the Net Receivables
Balance as an Eligible Receivable to be an Eligible Receivable
at the time so included.
Section 6.2 Other Costs and Expenses. The Original Sellers shall be
jointly and severally liable for, and shall pay to Originator on demand, all
costs and out-of-pocket expenses actually incurred in connection with the
preparation, execution, delivery and administration of this Agreement, the
transactions contemplated hereby and the other documents to be delivered
hereunder. Each Original Seller shall pay to Originator on demand any and all
costs and expenses of Originator actually incurred, if any, including reasonable
counsel fees and expenses (which such counsel may be employees of Originator or
its assigns to the extent not duplicative of services provided by outside
counsel, in which case such fees may consist of internally-allocated costs with
respect to such internal counsel; provided, that such internally-allocated costs
shall not include typically separately expressed items such as telephone,
telecopier and photocopy charges, each of which shall be separately stated in
any invoice to such Original Seller; provided, further, that such fees shall be
as may be reasonable and customary for internal counsel of financial
institutions) in connection with the enforcement of this Agreement and the other
documents delivered hereunder against such Original Seller and in connection
with any restructuring or workout of this Agreement, the Receivables Sale
Agreement or the Purchase Agreement, or such documents, or the administration of
this Agreement following a Termination Event.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Waivers and Amendments.
(a) No failure or delay on the part of Originator (or its
assigns) in exercising any power, right or remedy under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or remedy preclude any other further exercise thereof or the
exercise of any other power, right or remedy. The rights and remedies herein
provided shall be cumulative and nonexclusive of any rights or
Page 22
remedies provided by law. Any waiver of this Agreement shall be effective only
in the specific instance and for the specific purpose for which given.
(b) No provision of this Agreement may be amended,
supplemented, modified or waived except in writing signed by each Original
Seller and Originator and, to the extent required under the Purchase Agreement,
the Agent and the Financial Institutions or the Required Financial Institutions.
Section 7.2 Notices. All communications and notices provided for
hereunder shall be in writing (including bank wire, telecopy or electronic
facsimile transmission or similar writing) and shall be given to the other
parties hereto at their respective addresses or telecopy numbers set forth on
the signature pages hereof or at such other address or telecopy number as such
Person may hereafter specify for the purpose of notice to each of the other
parties hereto. Each such notice or other communication shall be effective (i)
if given by telecopy, upon the receipt thereof, (ii) if given by mail, three (3)
Business Days after the time such communication is deposited in the mail with
first class postage prepaid or (iii) if given by any other means, when received
at the address specified in this Section 7.2.
Section 7.3 Protection of Ownership Interests of Originator.
(a) Each Original Seller agrees that from time to time, at its
expense, it will promptly execute and deliver all instruments and documents, and
take all actions, that may be necessary or desirable, or that Originator (or its
assigns) may request, to perfect, protect or more fully evidence the interest of
Originator hereunder and the Purchaser Interests, or to enable Originator (or
its assigns) to exercise and enforce their rights and remedies hereunder. At any
time, Originator (or its assigns) may, at such Original Seller's sole cost and
expense, direct such Original Seller to notify the Obligors of Receivables of
such Original Seller of the ownership interests of Originator under this
Agreement and may also direct that payments of all amounts due or that become
due under any or all Receivables of such Original Seller be made directly to
Originator or its designee.
(b) If any Original Seller fails to perform any of its
obligations hereunder, Originator (or its assigns) may (but shall not be
required to) perform, or cause performance of, such obligations, and
Originator's (or such assigns') costs and expenses incurred in connection
therewith shall be payable by the Original Sellers as provided in Section 6.2.
Each Original Seller irrevocably authorizes Originator (and its assigns) at any
time and from time to time in the sole discretion of Originator (or its
assigns), and appoints Originator (and its assigns) as its
attorney(ies)-in-fact, to act on behalf of such Original Seller (i) to execute
on behalf of such Original Seller as debtor and to file financing statements
necessary or desirable in Originator's (or its assigns') sole discretion to
perfect and to maintain the perfection and priority of the interest of
Originator in the Receivables of such Original Seller and (ii) to file a carbon,
photographic or other reproduction of this
Page 23
Agreement or any financing statement with respect to the Receivables of such
Original Seller as a financing statement in such offices as Originator (or its
assigns) in their sole discretion deem necessary or desirable to perfect and to
maintain the perfection and priority of Originator's interests in the
Receivables of such Original Seller. This appointment is coupled with an
interest and is irrevocable.
(c) Each Original Seller hereby agrees to act as sub-servicer
of the Servicer with respect to all Receivables conveyed by such Original Seller
to Originator hereunder and to perform the duties and obligations of the
Servicer pursuant to the terms of the Purchase Agreement with respect to such
Receivables. Notwithstanding the foregoing (i) Interface shall be and remain
primarily liable to the Agent and the Purchasers for the full and prompt
performance of all duties and responsibilities of the Servicer under the
Purchase Agreement and (ii) the Agent and the Purchasers shall be entitled to
deal exclusively with Interface in matters relating to the discharge by the
Servicer of its duties and responsibilities thereunder.
Section 7.4 Confidentiality.
(a) Each Original Seller shall maintain and shall cause each
of its employees and officers to maintain the confidentiality of this Agreement
and the other confidential or proprietary information with respect to the Agent
and Company and their respective businesses obtained by it or them in connection
with the structuring, negotiating and execution of the transactions contemplated
herein, except that such Original Seller and its officers and employees may
disclose such information to such Original Seller's external accountants and
attorneys and as required by any applicable law or order of any judicial or
administrative proceeding.
(b) Anything herein to the contrary notwithstanding, each
Original Seller hereby consents to the disclosure of any nonpublic information
with respect to it (i) to Originator, SPV, the Agent, the Financial Institutions
or Company by each other, (ii) by Originator, SPV, the Agent or the Purchasers
to any prospective or actual assignee or participant of any of them and (iii) by
the Agent to any rating agency, Commercial Paper dealer or provider of a surety,
guaranty or credit or liquidity enhancement to Company or any entity organized
for the purpose of purchasing, or making loans secured by, financial assets for
which Bank One acts as the administrative agent and to any officers, directors,
employees, outside accountants and attorneys of any of the foregoing; provided,
that each such Person is informed of the confidential nature of such
information. In addition, the Purchasers and the Agent may disclose any such
nonpublic information pursuant to any law, rule, regulation, direction, request
or order of any judicial, administrative or regulatory authority or proceedings
(whether or not having the force or effect of law).
(c) Originator shall maintain and shall cause each of its
employees and officers to maintain the confidentiality of this Agreement and the
other confidential
Page 24
or proprietary information with respect to each Original Seller, the Obligors
and their respective businesses obtained by it in connection with the due
diligence evaluations, structuring, negotiating and execution of the Transaction
Documents, and the consummation of the transactions contemplated herein and any
other activities of Originator arising from or related to the transactions
contemplated herein provided, however, that each of Originator and its employees
and officers shall be permitted to disclose such confidential or proprietary
information: (i) to the SPV, the Agent and the other Purchasers, (ii) to any
prospective or actual assignee or participant of the Agent or the other
Purchasers who execute a confidentiality agreement for the benefit of the
Original Sellers and Originator on terms comparable to those required of
Originator hereunder with respect to such disclosed information, (iii) to any
rating agency, provider of a surety, guaranty or credit or liquidity enhancement
to Company, (iv) to any officers, directors, employees, outside accountants and
attorneys of any of the foregoing, and (v) to the extent required pursuant to
any applicable law, rule, regulation, direction, request or order of any
judicial, administrative or regulatory authority or proceedings with competent
jurisdiction (whether or not having the force or effect of law) so long as such
required disclosure is made under seal to the extent permitted by applicable law
or by rule of court or other applicable body.
Section 7.5 Bankruptcy Petition. (a) Each Original Seller and
Originator each hereby covenants and agrees that, prior to the date that is one
year and one day after the payment in full of all outstanding senior
indebtedness of Company or any Financial Institution that is a special purpose
bankruptcy remote entity, it will not institute against, or join any other
Person in instituting against, Company or any such entity any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceeding under the laws of the United States or any state of the
United States.
(b) Each Original Seller covenants and agrees that, prior to
the date that is one year and one day after the payment in full of all
outstanding obligations of Originator under the Purchase Agreement, it will not
institute against, or join any other Person in instituting against, Originator
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceeding under the laws of the United States or
any state of the United States.
Section 7.6 Limitation of Liability. Except with respect to any claim
arising out of the willful misconduct or gross negligence of Company, the Agent
or any Financial Institution, no claim may be made by any Original Seller or any
other Person against Company, the Agent or any Financial Institution or their
respective Affiliates, directors, officers, employees, attorneys or agents for
any special, indirect, consequential or punitive damages in respect of any claim
for breach of contract or any other theory of liability arising out of or
related to the transactions contemplated by this Agreement, or any act, omission
or event occurring in connection therewith; and each Original Seller hereby
waives, releases, and agrees not to xxx upon any claim for any such damages,
whether or not accrued and whether or not known or suspected to exist in its
favor.
Page 25
Section 7.7 CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS
OTHER THAN SECTION 5-1401 OF THE NEW YORK OBLIGATIONS LAW) OF THE STATE OF NEW
YORK.
Section 7.8 CONSENT TO JURISDICTION. EACH ORIGINAL SELLER HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK, NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT EXECUTED
BY SUCH ORIGINAL SELLER PURSUANT TO THIS AGREEMENT AND SUCH ORIGINAL SELLER
HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF ORIGINATOR (OR ITS
ASSIGNS) TO BRING PROCEEDINGS AGAINST ANY ORIGINAL SELLER IN THE COURTS OF ANY
OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY ANY ORIGINAL SELLER AGAINST
ORIGINATOR (OR ITS ASSIGNS) OR ANY AFFILIATE THEREOF INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
THIS AGREEMENT OR ANY DOCUMENT EXECUTED BY SUCH ORIGINAL SELLER PURSUANT TO THIS
AGREEMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK, NEW YORK.
Section 7.9 WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH PARTY HERETO HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
THIS AGREEMENT, ANY DOCUMENT EXECUTED BY ANY ORIGINAL SELLER PURSUANT TO THIS
AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER OR THEREUNDER.
Section 7.10 Integration; Binding Effect; Survival of Terms.
(a) This Agreement and each other Transaction Document contain
the final and complete integration of all prior expressions by the parties
hereto with respect to the subject matter hereof and shall constitute the entire
agreement among the parties hereto with respect to the subject matter hereof
superseding all prior oral or written understandings.
Page 26
(b) This Agreement shall be binding upon and inure to the
benefit of each Original Seller and Originator, and their respective successors
and permitted assigns (including any trustee in bankruptcy). No Original Seller
may assign any of its rights and obligations hereunder or any interest herein
without the prior written consent of Originator. Originator may assign at any
time its rights and obligations hereunder and interests herein to any other
Person without the consent of any Original Seller. Without limiting the
foregoing, each Original Seller acknowledges that Originator, pursuant to the
Receivables Sale Agreement, may assign to the SPV, its rights, remedies, powers
and privileges hereunder, that the SPV, pursuant to the Purchase Agreement, may
assign to the Agent its rights, remedies, powers and privileges thereunder, and
that the Agent may further assign such rights, remedies, powers and privileges
to the extent permitted in the Purchase Agreement. Each Original Seller agrees
that SPV, as the assignee of Originator, and the Agent, as assignee of SPV,
shall, subject to the terms of the Receivables Sale Agreement and the Purchase
Agreement, have the right to enforce this Agreement and to exercise directly all
of Originator's rights and remedies under this Agreement (including, without
limitation, the right to give or withhold any consents or approvals of
Originator to be given or withheld hereunder) and each Original Seller agrees to
cooperate fully with SPV and the Agent in the exercise of such rights and
remedies. This Agreement shall create and constitute the continuing obligations
of the parties hereto in accordance with its terms and shall remain in full
force and effect until terminated in accordance with its terms; provided,
however, that the rights and remedies with respect to (i) any breach of any
representation and warranty made by any Original Seller pursuant to Article II;
(ii) the indemnification and payment provisions of Article VI; and (iii) Section
7.5 shall be continuing and shall survive any termination of this Agreement.
Section 7.11 Counterparts; Severability; Section References. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same Agreement. Delivery of an executed counterpart of a signature page to
this Agreement by facsimile shall be as effective as delivery of a manually
executed counterpart to this Agreement. Any provisions of this Agreement that
are prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Unless otherwise
expressly indicated, all references herein to "Article," "Section," "Schedule"
or "Exhibit" shall mean articles and sections of, and schedules and exhibits to,
this Agreement.
[SIGNATURE PAGE FOLLOWS]
Page 27
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 XXXXX, INC., as an Original Seller
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President, Treasurer and
Assistant Secretary
Address: 00000 X. Xxx Xxxxxx Xxxx
Xxxx xx Xxxxxxxx, XX 00000
CHATHAM MARKETING CO., as an Original Seller
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Assistant
Secretary
Address: P. O. Box 530
000 X. Xxxx Xxxxxx
Xxxxx, XX 00000
GUILFORD OF MAINE MARKETING CO., as an
Original Seller
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Assistant
Secretary
Address: X.X. Xxx 000
Xxx Xxxxxx
Xxxxxxxx, XX 00000
INTEK MARKETING CO., as an Original Seller
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Assistant
Secretary
Address: X.X. Xxx 0000
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
INTERFACE ARCHITECTURAL RESOURCES, INC., as
an Original Seller
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Assistant
Secretary
Address: 0000 00xx Xxxxxx
Xxxxx Xxxxxx, XX 00000-0000
INTERFACE FLOORING SYSTEMS, INC., as an
Original Seller
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President, Treasurer and
Assistant Secretary
Address: X.X. Xxx 0000
Xxxxxxx Xxxx Xxxx
XxXxxxxx, XX 00000
PANDEL, INC., as an Original Seller
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President, Treasurer and
Assistant Secretary
Address: 00 Xxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
PRINCE STREET TECHNOLOGIES, LTD., as an
Original Seller
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President, Treasurer and
Assistant Secretary
Address: 0000 Xxxx Xxxxxx
X.X. Xxxxxx 0000
Xxxxxxxxxxxx, XX 00000
TOLTEC FABRICS, INC., as an Original Seller
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Assistant
Secretary
Address: 0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
INTERFACE, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President, CFO,
Treasurer and Assistant
Secretary
Address: 0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
EXHIBIT I
Definitions
This is Exhibit I to the Agreement (as hereinafter defined).
As used in the Agreement and the Exhibits, Schedules and Annexes thereto,
capitalized terms have the meanings set forth in this Exhibit I (such meanings
to be equally applicable to the singular and plural forms thereof). If a
capitalized term is used in the Agreement, or any Exhibit, Schedule or Annex
thereto, and not otherwise defined therein or in this Exhibit I, such term shall
have the meaning assigned thereto in Exhibit I to the Purchase Agreement.
"Agent" has the meaning set forth in the Preliminary
Statements to the Agreement.
"Agreement" means the Receivables Transfer Agreement, dated as
of December 19, 2000, among the Original Sellers and Originator, as the same may
be amended, restated or otherwise modified.
"Originator" has the meaning set forth in the preamble to the
Agreement.
"Calculation Period" means each calendar month or portion
thereof that elapses during the term of the Agreement. The first Calculation
Period shall commence on the date of the Purchase of Receivables hereunder and
the final Calculation Period shall terminate on the Termination Date.
"Change of Control" means the acquisition by any Person, or
two or more Persons acting in concert, of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934) of 20% or more of the outstanding shares of
voting stock of any Original Seller.
"Company" has the meaning set forth in the Preliminary
Statements to the Agreement.
"Credit and Collection Policy" means each Original Seller's
credit and collection policies and practices relating to Contracts and
Receivables existing on the date hereof and summarized in Exhibit V, as modified
from time to time in accordance with the Agreement.
"Default Fee" means a per annum rate of interest equal to the
sum of (i) the Prime Rate, plus (ii) 2% per annum.
"Dilutions" means, at any time, the aggregate amount of
reductions or cancellations described in Section 1.3(a) of the Agreement.
Exh.I-1
"Discount Factor" means a percentage calculated to provide
Originator with a reasonable return on its investment in the Receivables of any
Original Seller after taking account of (i) the time value of money based upon
the anticipated dates of collection of the Receivables of such Original Seller
and the cost to Originator of financing its investment in the Receivables of
such Original Seller during such period and (ii) the risk of nonpayment by the
Obligors. Each Original Seller and Originator may agree from time to time to
change the Discount Factor with respect to Receivables purchased by Originator
from such Original Seller hereunder based on changes in one or more of the items
affecting the calculation thereof, provided that any change to the Discount
Factor shall take effect as of the commencement of a Calculation Period, shall
apply only prospectively and shall not affect the Purchase Price payment made
prior to the Calculation Period during which such Original Seller and Originator
agree to make such change.
"Initial Cutoff Date" has the meaning set forth in Section
1.2(a).
"Material Adverse Effect" means a material adverse effect on
(i) the financial condition or operations of any Original Seller and its
Subsidiaries, (ii) the ability of any Original Seller to perform its obligations
under the Agreement or any other Transaction Document, (iii) the legality,
validity or enforceability of the Agreement or any other Transaction Document,
(iv) any Original Seller's, Originator's, SPV's, the Agent's or any Purchaser's
interest in the Receivables generally or in any significant portion of the
Receivables, the Related Security or Collections with respect thereto, or (v)
the collectibility of the Receivables generally or of any material portion of
the Receivables.
"Net Value" means, as of any date of determination, an amount
equal to the sum of (i) the aggregate Outstanding Balance of the Receivables at
such time, minus (ii) the sum of (A) the Aggregate Capital outstanding at such
time, plus (B) the Aggregate Reserves.
"Net Worth" means as of the last Business Day of each
Calculation Period preceding any date of determination, the excess, if any, of
(a) the aggregate Outstanding Balance of the Receivables at such time, over (b)
the Aggregate Capital outstanding at such time.
"Original Balance" means, with respect to any Receivable
coming into existence after the Initial Cutoff Date, the Outstanding Balance of
such Receivable on the date it was created.
"Original Seller" has the meaning set forth in the preamble to
the Agreement.
"Potential Termination Event" means an event that, with the
passage of time or the giving of notice, or both, would constitute a Termination
Event.
Exh.I-2
"Purchase" means the purchase pursuant to Section 1.1(a) of
the Agreement by Originator from an Original Seller of such Original Seller's
Receivables and the Related Security and Collections related thereto, together
with all related rights in connection therewith.
"Purchase Agreement" has the meaning set forth in the
Preliminary Statements to the Agreement.
"Purchase Price" means, with respect to the Purchase, the
aggregate price to be paid by Originator to the applicable Original Seller for
such Purchase in accordance with Section 1.2 of the Agreement for the
Receivables, Collections and Related Security of such Original Seller being sold
to Originator, which price shall equal on any date (i) the product of (x) the
Outstanding Balance of such Receivables on such date, multiplied by (y) one
minus the Discount Factor for such Original Seller in effect on such date, minus
(ii) any Purchase Price Credits to be credited against the Purchase Price
otherwise payable to such Original Seller in accordance with Section 1.3 of the
Agreement.
"Purchase Price Credit" has the meaning set forth in Section
1.3 of the Agreement.
"Receivable" means all indebtedness and other obligations owed
to an Original Seller (at the times it arises, and before giving effect to any
transfer or conveyance under the Agreement) or Originator (after giving effect
to the transfers under the Agreement) or in which an Original Seller or
Originator has a security interest or other interest, including, without
limitation, any indebtedness, obligation or interest constituting an account,
chattel paper, instrument or general intangible, arising in connection with the
sale of goods or the rendering of services by such Original Seller, and further
includes, without limitation, the obligation to pay any Finance Charges with
respect thereto. Indebtedness and other rights and obligations arising from any
one transaction, including, without limitation, indebtedness and other rights
and obligations represented by an individual invoice, shall constitute a
Receivable separate from a Receivable consisting of the indebtedness and other
rights and obligations arising from any other transaction; provided, further,
that any indebtedness, rights or obligations referred to in the immediately
preceding sentence shall be a Receivable regardless of whether the account
debtor or such Original Seller treats such indebtedness, rights or obligations
as a separate payment obligation.
"Related Security" means, with respect to any Receivable:
(i) all of the interest of the Original Seller
of such Receivable in the inventory and goods (including returned or
repossessed inventory or goods), if any, the sale or financing of which
by such Original Seller gave rise to such Receivable, and all insurance
contracts with respect thereto,
Exh.I-3
(ii) all other security interests or liens and
property subject thereto from time to time, if any, purporting to
secure payment of such Receivable, whether pursuant to the Contract
related to such Receivable or otherwise, together with all financing
statements and security agreements describing any collateral securing
such Receivable,
(iii) all guaranties, letters of credit, insurance
and other agreements or arrangements of whatever character from time to
time supporting or securing payment of such Receivable whether pursuant
to the Contract related to such Receivable or otherwise,
(iv) all service contracts and other contracts and
agreements associated with such Receivable,
(v) all Records related to such Receivable,
(vi) all of such Original Seller's right, title and
interest in each Lock-Box and each Collection Account,
(vii) in the case of an Existing Original Seller, all
of such Existing Original Seller's interest in, to and under the
Existing Agreement to which such Existing Original Seller is a party,
and
(viii) all proceeds of any of the foregoing.
"Required Capital Amount" means, as of any date of
determination, an amount equal to the sum of (i) the twenty-four month rolling
average of Dilutions, plus (ii) the result obtained in the foregoing clause (i)
of this definition, multiplied by 10%.
"Settlement Date" means, with respect to each Calculation
Period, the date that is the sixth calendar day of the month following such
Calculation Period.
"Termination Date" means the earliest to occur of (i) the
Facility Termination Date, (ii) the Business Day immediately prior to the
occurrence of a Termination Event set forth in Section 5.1(d), (iii) the
Business Day specified in a written notice from Originator to the Original
Sellers following the occurrence of any other Termination Event, and (iv) the
date that is 30 Business Days after Originator's receipt of written notice from
any Original Seller that it wishes to terminate the facility evidenced by this
Agreement.
Exh.I-4
"Termination Event" has the meaning set forth in Section 5.1
of the Agreement.
"Transaction Documents" means, collectively, this Agreement,
each Collection Account Agreement and all other instruments, documents and
agreements executed and delivered in connection herewith.
All accounting terms not specifically defined herein shall be
construed in accordance with GAAP. All terms used in Article 9 of the UCC in the
State of New York, and not specifically defined herein, are used herein as
defined in such Article 9.
Exh.I-5
