FIRST AMENDMENT TO SIXTH AMENDED AND RESTATED CREDIT AGREEMENT
FIRST
AMENDMENT TO
SIXTH
AMENDED AND RESTATED CREDIT AGREEMENT
THIS
FIRST AMENDMENT TO SIXTH AMENDED
AND RESTATED CREDIT AGREEMENT (this “Amendment”) is made
and entered into as of January 1, 2008, by and among INTERFACE, INC., a Georgia
corporation (the “Borrower”),
INTERFACEFLOR, LLC, a Georgia limited liability company (the “Subsidiary L/C Account
Party”), the “Lenders”
party
hereto, and WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association,
in its capacity as Domestic Agent and Collateral Agent (the “Agent”).
WITNESSETH
:
WHEREAS,
the Borrower, the Subsidiary
L/C Account Party, the Agent, and the Lenders party hereto have executed and
delivered that certain Sixth Amended and Restated Credit Agreement dated as
of
June 30, 2006, (as amended, restated, modified, or supplemented from time to
time, the “Credit
Agreement”);
WHEREAS,
the Borrower has requested,
and the Agent and Lenders party hereto have agreed, subject to the terms and
conditions hereof, to certain amendments to the Credit Agreement as set forth
herein;
NOW,
THEREFORE, for and in
consideration of the above premises and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged by the parties
hereto, the Borrower, the Subsidiary L/C Account Party, the Agent, and the
Lenders party hereto hereby covenant and agree as follows:
SECTION
1. Definitions. Unless
otherwise specifically defined herein, each term used herein which is defined
in
the Credit Agreement shall have the meaning assigned to such term in the Credit
Agreement. Each reference to “hereof,” “hereunder,” “herein,” and
“hereby” and each other similar reference and each reference to “this Agreement”
and each other similar reference contained in the Credit Agreement shall from
and after the date hereof refer to the Credit Agreement as amended
hereby.
SECTION
2. Amendments
to Credit
Agreement.
(a) Amendments
to Section
1.01.
(i)
The following definition is hereby added in the appropriate alphabetical order
to read as follows:
“First
Amendment Effective
Date” shall mean January 1, 2008.
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(ii)
The definition of “Domestic Syndicated
Loan
Commitment” is amended and restated so that it reads, in its entirety, as
follows:
“Domestic
Syndicated Loan
Commitment” shall mean, at any time for any Lender, the amount of such
commitment of such Lender as set forth on Schedule 1.1(a)
hereto, as the same may be decreased from time to time as a result of any
reduction thereof pursuant to Section 2.03, any assignment thereof pursuant
to
Section 11.06, any amendment thereof pursuant to Section 11.02, or as otherwise
provided in this Agreement and as the same may be increased from time to time
pursuant to Section 2.09. For periods commencing on the date of this
Agreement through but not including the First Amendment Effective Date, the
aggregate amount of the Domestic Syndicated Loan Commitments for all Lenders
is
One Hundred Twenty-Five Million Dollars ($125,000,000); provided, however,
that (a) on and after the First Amendment Effective Date, the aggregate amount
of the Domestic Syndicated Loan Commitments for all Lenders is One Hundred
Million Dollars ($100,000,000) and (b) on the First Amendment Effective Date,
the Domestic Agent may amend and restate Schedule 1.1(a) with revised Domestic
Syndicated Loan Commitments of the Lenders.
(iii)
The definition of “Applicable Margin” is
amended and restated so that it reads, in its entirety, as follows:
“Applicable
Margin” shall mean,
on and after the First Amendment Effective Date, with respect to all outstanding
Loans bearing interest based on the Base Rate or the Adjusted LIBO Rate, for
any
day, the applicable percentage per annum determined from the chart set forth
below based on the Average Excess Availability for the Consolidated Companies’
most recently completed fiscal quarter:
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Level
|
Average
Excess Availability for the Consolidated Companies’
immediately
preceding fiscal quarter
|
Applicable
Margin for
Base
Advances
|
Applicable
Margin for Adjusted
LIBO
Rate Advances
|
|
I
|
Less
than $25,000,000
|
0.25%
|
2%
|
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II
|
Greater
than or equal to $25,000,000 but less than $35,000,000
|
0.00%
|
1.75%
|
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III
|
Greater
than or equal to $35,000,000 but less than $45,000,000
|
0.00%
|
1.50%
|
|
IV
|
Greater
than or equal to $45,000,000 but less than $55,000,000
|
0.00%
|
1.25%
|
|
V
|
Greater
than or equal to $55,000,000
|
0.00%
|
1.00%
|
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Each
change in the Applicable Margin will become effective as of the first day of
each of the Consolidated Companies’ fiscal quarters, based on the Average Excess
Availability for the Consolidated Companies’ immediately preceding fiscal
quarter; provided, however, that (i) from the Closing Date through the last
day
of the Consolidated Companies’ fiscal quarter ending on or about December 31,
2006, the Applicable Margin shall be based on Level IV and (ii) if Interface
fails to deliver the Domestic Borrowing Base Certificates as required by Section
7.07(d), then from such time and until Interface delivers such Domestic
Borrowing Base Certificate, the Applicable Margin shall be based on Level
I.
In
the
event that any documents or certificates delivered by a Credit Party pursuant
to
this Agreement (including, without limitation, any Domestic Borrowing Base
Certificate) is shown to be inaccurate (regardless of whether this Agreement
or
the Commitment is in effect when such inaccuracy is discovered), and such
inaccuracy, if corrected, would have led to the application of a higher
Applicable Margin for any period (an “Applicable Period”)
than the Applicable Margin applied for such Applicable Period, then (i)
Interface shall immediately deliver to Lenders a correct document or
certificate, as applicable, for such Applicable Period, (ii) the Applicable
Margin for such Applicable Period shall be determined by reference to such
document or certificate, and (iii) Interface shall promptly pay Lenders, ON DEMAND, the accrued
additional interest owing as a result of such increased Applicable Margin for
such Applicable Period, which payment shall be promptly applied by Lenders
in
accordance with the terms hereof.
(iv)
The definition of “Required Lenders” is
amended and restated so that it reads, in its entirety, as follows:
“Required
Lenders” shall mean,
at any time, Lenders holding more than sixty-six and two-thirds percent (66
2/3%) of the aggregate amount of the Domestic Syndicated Loan Commitments or,
if
the Facilities have been terminated pursuant to Article IX, Lenders holding
more
than sixty-six and two-thirds percent (66 2/3%) of the aggregate Extensions
of
Credit.
(v)
The definition of “Stated Maturity
Date”
is amended and restated so that it reads, in its entirety, as
follows:
“Stated
Maturity Date” shall
mean December 31, 2012.
(b)
Amendment to Schedule
1.1(a). Schedule 1.1(a) to the Credit Agreement is hereby
amended and restated in the form of Exhibit A, attached
hereto and made a part hereof (with it being understood that the Commitments
of
each of the Lenders as set forth on Exhibit A shall
become effective simultaneously with the effectiveness of this Amendment, as
further described in that certain 2008 Master Assignment and Acceptance dated
the date hereof by and among the Domestic Agent, the Collateral Agent, the
Borrower, the Subsidiary L/C Account Party, and those of the Lenders which
will,
upon the effectiveness of this Amendment, have a Commitment under the Credit
Agreement).
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(c)
Amendment to Section
2.09(a). The instance of “up to an additional $25,000,000” in
Section 2.09(a) of the Credit Agreement is hereby amended and restated to read
“up to an additional $50,000,000.”
(d)
Amendments to Section
7.07(b).
(i)
The heading of Section 7.07(b) of the Credit Agreement is amended and restated
to read “Quarterly
Financial Statements.”
(ii)
Section 7.07(b)(ii) is hereby deleted in its entirety and amended and restated
to read “[Intentionally
Omitted].”
SECTION
3. Conditions
Precedent. This Amendment shall become effective only upon
execution and delivery of (a) this Amendment by the Borrower, the Subsidiary
L/C
Account Party, the Agent, and all Lenders; (b) the Consent and Reaffirmation
of
Guarantors at the end hereof by each of the Domestic Guarantors; (c) the new
Domestic Syndicated Notes in the form of Exhibit B to the
Credit Agreement by the Borrower (with such conforming changes to the form
thereof as the Domestic Agent deems reasonably necessary); and (d) that certain
2008 Master Assignment and Assumption Agreement by all of the parties
thereto.
SECTION
4. Miscellaneous
Terms.
(a) Effect
of
Amendment. Except as set forth expressly hereinabove, all
terms of the Credit Agreement and the other Credit Documents shall be and remain
in full force and effect, and shall constitute the legal, valid, binding, and
enforceable obligations of the Borrower and the Subsidiary L/C Account
Party.
(b)
No Novation or Mutual
Departure. Each of the Borrower and the Subsidiary L/C Account
Party expressly acknowledges and agrees that (i) there has not been, and this
Amendment does not constitute or establish, a novation with respect to the
Credit Agreement or any of the other Credit Documents, or a mutual departure
from the strict terms, provisions, and conditions thereof and (ii) nothing
in
this Amendment shall affect or limit the Agent’s or the Lenders’ right to demand
payment of liabilities owing from the Borrower or the Subsidiary L/C Account
Party to the Agent and the Lender under, or to demand strict performance of
the
terms, provisions and conditions of, the Credit Agreement and the other Credit
Documents, to exercise any and all rights, powers and remedies under the Credit
Agreement or the other Credit Documents or at law or in equity, or to do any
and
all of the foregoing, immediately at any time after the occurrence of a Default
or an Event of Default under the Credit Agreement or the other Credit
Documents.
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(c)
Ratification. Each
of the Borrower and the Subsidiary L/C Account Party (i) hereby restates,
ratifies, and reaffirms each and every term, covenant, and condition set forth
in the Credit Agreement and the other Credit Documents to which it is a party
effective as of the date hereof and (ii) restates and renews each and every
representation and warranty heretofore made by it in the Credit Agreement and
the other Credit Documents as fully as if made on the date hereof and with
specific reference to this Amendment and all other Credit Documents executed
and/or delivered in connection therewith (except with respect to representations
and warranties made as of an expressed date, in which case such representations
and warranties shall be true and correct as of such date).
(d)
No
Default. To induce the Agent and Lenders party hereto to enter
into this Amendment and to continue to make advances pursuant to the Credit
Agreement (subject to the terms and conditions thereof), each of the Borrower
and the Subsidiary L/C Account party hereby acknowledges and agrees that, as
of
the date hereof, and after giving effect to the terms hereof, there exists
(i) no Default or Event of Default and (ii) no right of offset,
defense, counterclaim, claim, or objection in favor of any of the Borrower
or
the Subsidiary L/C Account Party arising out of or with respect to any of the
Loans or other obligations of the Borrower or the Subsidiary L/C Account Party
owed to the Agent or the Lenders under the Credit Agreement.
(e)
Counterparts. This
Amendment may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which counterparts, taken together,
shall constitute but one and the same instrument. This Amendment may
be executed by each party on separate copies, which copies, when combined so
as
to include the signatures of all parties, shall constitute a single counterpart
of the Amendment.
(f)
Section
References. Section titles and references used in this
Amendment shall be without substantive meaning or content of any kind whatsoever
and are not a part of the agreements among the parties hereto evidenced
hereby.
(g)
Further
Assurances. Each of the Borrower and the Subsidiary L/C
Account Party agrees to take such further actions as the Agent shall reasonably
request in connection herewith to evidence the amendments set forth
herein.
(h)
Governing
Law. This Amendment shall be governed by and construed and
interpreted in accordance with the laws of the State of New York.
[SIGNATURES
ON FOLLOWING PAGES.]
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IN
WITNESS WHEREOF, each of the
Borrower, the Subsidiary L/C Account Party, the Agent, and the Lenders has
caused this Amendment to be duly executed by its duly authorized officer as
of
the day and year first above written.
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INTERFACE,
INC., a Georgia
corporation, as Borrower
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By: /s/
Xxxxxxx X.
Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Senior
Vice President
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INTERFACEFLOR,
LLC, as
Subsidiary L/C Account Party
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By: /s/
Xxxxxxx X.
Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Vice
President
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WACHOVIA
BANK,
NATIONAL
ASSOCIATION,
as
Domestic Agent, Collateral Agent
and
as a Lender
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By:
/s/ Xxxxxx
X.
Xxxxx
Name: Xxxxxx
X. Xxxxx
Title: Director
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BANK
OF
AMERICA, N.A.(as
successor to Fleet Capital Corporation), as a Lender
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By:
/s/ Xxxxxx
Xxxx
Name: Xxxxxx
Xxxx
Title: SVP
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GENERAL
ELECTRIC CAPITAL
CORPORATION, as a Lender
|
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By: /s/
Xxxx X.
Xxxxxx
Name: Xxxx
X. Xxxxxx
Title: Duly
Authorized Signatory
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CITICAPITAL
COMMERCIAL
CORPORATION, as a Lender
|
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By: /s/
Xxxx
Xxxxxx
Name: Xxxx
Xxxxxx
Title: Vice
President
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CONSENT
AND REAFFIRMATION OF GUARANTORS
Each
of the undersigned (i)
acknowledges receipt of the foregoing First Amendment to Sixth Amended and
Restated Credit Agreement (the “Amendment”), (ii)
consents to the execution and delivery of the Amendment by the parties thereto,
and (iii) reaffirms all of its obligations and covenants under the Credit
Agreement, the Fourth Amended and Restated Interface Guaranty Agreement, and
the
Fourth Amended and Restated Subsidiary Guaranty Agreement, as applicable, each
dated as of June 30, 2006, executed by it (as the same may be amended,
restated, supplemented, or otherwise modified from time to time), and agrees
that none of such obligations and covenants shall be reduced or limited by
the
execution and delivery of the Amendment.
This
Consent and Reaffirmation of
Guarantors (this “Consent”) may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which counterparts, taken together, shall
constitute but one and the same instrument. This Consent may be
executed by each party on separate copies, which copies, when combined so as
to
include the signatures of all parties, shall constitute a single counterpart
of
the Consent.
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INTERFACE,
INC.
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By: /s/
Xxxxxxx X.
Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Senior
Vice President
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INTERFACEFLOR,
LLC
BENTLEY
PRINCE STREET,
INC.
BENTLEY
XXXXX, INC.
COMMERCIAL
FLOORING SYSTEMS,
INC.
FLOORING
CONSULTANTS,
INC.
INTERFACE
AMERICAS, INC.
INTERFACE
ARCHITECTURAL RESOURCES,
INC.
INTERFACE
OVERSEAS HOLDINGS,
INC.
XXXX,
INC.
QUAKER
CITY INTERNATIONAL,
INC.
RE:SOURCE
AMERICAS ENTERPRISES,
INC.
RE:SOURCE
MINNESOTA,
INC.
RE:SOURCE
NORTH CAROLINA,
INC.
RE:SOURCE
NEW YORK, INC.
RE:SOURCE
OREGON, INC.
RE:SOURCE
SOUTHERN CALIFORNIA,
INC.
RE:SOURCE
WASHINGTON, D.C.,
INC.
SOUTHERN
CONTRACT SYSTEMS,
INC.
SUPERIOR/XXXXXX
FLOORING RESOURCES,
INC.
By:
/s/
Xxxxxxx
X. Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Vice
President
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INTERFACE
GLOBAL COMPANY APS
By: /s/
Xxxxxx X.
Xxxxxxx
Name: Xxxxxx
X. Xxxxxxx
Title: Senior
Vice President and Director
INTERFACESERVICES,
INC.
By:
/s/
Xxxxx X.
Xxxxxx
Name: Xxxxx
X. Xxxxxx
Title: Treasurer
INTERFACE
REAL ESTATE HOLDINGS, LLC,
By:
BENTLEY PRINCE STREET, INC., its sole member
By: /s/
Xxxxxxx X.
Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Vice
President
INTERFACE
AMERICAS HOLDINGS,
LLC,
By:
INTERFACE, INC., its
manager
By: /s/
Xxxxxxx X.
Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Senior
Vice President
INTERFACE
AMERICAS
RE:SOURCE
TECHNOLOGIES,
LLC,
By:
INTERFACEFLOR, LLC, its sole
member
By: /s/
Xxxxxxx X.
Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Vice
President
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