EXHIBIT 10.41
SIXTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
This Sixth Amendment to Receivables Purchase Agreement (this
"Amendment") is entered into as of December 17, 2001, by and among Interface
Securitization Corporation, a Delaware corporation ("Seller"), Interface, Inc.,
a Georgia corporation ("Interface"), Jupiter Securitization Corporation
("Company") and Bank One, NA (Main Office Chicago), as Agent and as a Financial
Institution. Unless defined elsewhere herein, capitalized terms used in this
Amendment shall have the meanings assigned to such terms in the Purchase
Agreement (as defined below).
PRELIMINARY STATEMENTS
Each of the parties hereto entered into a certain Receivables
Purchase Agreement, dated as of December 19, 2000 and as amended, restated,
supplemented or otherwise modified from time to time and in effect immediately
prior to the date hereof (the "Purchase Agreement").
Seller and the Servicer have requested certain amendments to
certain provisions of the Purchase Agreement; and, the Purchasers and the Agent
desire to make such amendments on the terms and conditions set forth herein, all
as more fully described herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Amendments to Exhibit I to the Purchase Agreement.
Subject to the terms and conditions set forth herein and upon the effectiveness
of this Amendment, Exhibit I to the Purchase Agreement is hereby amended by:
(a) amending and restating the definition of
"Liquidity Termination Date" appearing in such exhibit in its entirety to read
as follows:
"Liquidity Termination Date" means February 15, 2002.
SIXTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
(b) amending and restating the definition of
"Dilution Reserve Percentage" appearing in such exhibit in its entirety to read
as follows:
"Dilution Reserve Percentage" means the greater of (a) 6.00%
and (b) the following:
(2 X ED + ((DS-ED) X (DS/ED))) X DHR
where:
ED = the average of the Dilution Ratios for the twelve
most recently-ended fiscal months;
DS = the highest of the average Dilution Ratios for any
two-fiscal-month period occurring during the twelve
most recently-ended fiscal months; and
DHR = the result of dividing the aggregate amount of
all net sales by the Original Sellers during the prior
two fiscal months by the Outstanding Balance of all
Eligible Receivables.
2. Representations and Warranties. Each of the Seller
Parties represents and warrants that, as of the date hereof, both before and
after giving effect to this Amendment:
(a) all of the representations and warranties of
such Seller Party contained in the Purchase Agreement and in each other document
or certificate delivered in connection therewith are true and correct; and
(b) no Amortization Event or Potential
Amortization Event has occurred and is continuing.
SIXTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
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3. Conditions to Effectiveness of Amendments. This
Amendment shall become effective as of the date hereof, upon the satisfaction of
the following conditions precedent:
(a) Amendment. This Amendment shall have been
duly executed and delivered by each of the parties hereto.
(b) Fee Letter. The Agent shall have received,
on or before the date hereof, a second amended and restated Fee Letter, duly
executed by the parties thereto and in form and substance reasonably acceptable
to the Agent.
(c) Officer's Certificates. The Agent shall have
received a certificate, in the form of Exhibit A hereto, of each of the Seller
Parties certifying as to matters set forth in Sections 2(a) and (b) of this
Amendment.
(d) Amendment Fee. The Agent shall have received
payment of a fully earned, non-refundable amendment fee equal to $100,000.
4. Effect of Amendments.
(a) The amendments set forth herein are
effective solely for the purposes set forth herein and shall be limited
precisely as written, and shall not be deemed to (i) be a consent to any
amendment, waiver or modification of any other term or condition of the Purchase
Agreement or of any other instrument or agreement referred to therein, or (ii)
prejudice any right or remedy that any Purchaser or the Agent may now have or
may have in the future under or in connection with the Purchase Agreement, as
amended hereby, or any other instrument or agreement referred to therein. Each
reference in the Purchase Agreement to "this Agreement," "herein," "hereof" and
words of like import and each reference in the other Transaction Documents to
the "Purchase Agreement" or "Receivables Purchase Agreement" shall mean the
Purchase Agreement, as amended hereby. This Amendment shall be construed in
connection with and as part of the Purchase Agreement and all terms, conditions,
representations, warranties, covenants and agreements set forth in the Purchase
Agreement and each other instrument or agreement referred to therein, except as
herein amended, are hereby ratified and confirmed and shall remain in full force
and effect.
SIXTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
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(b) This Amendment is a Transaction Document
executed pursuant to the Purchase Agreement and shall be construed, administered
and applied in accordance with the terms and provisions thereof.
(c) Seller hereby agrees to pay all reasonable
costs, fees and expenses in connection with the preparation, execution and
delivery of this Amendment (including the reasonable fees and expenses of
counsel to the Agent and the Purchasers).
(d) This Amendment may be executed in any number
of counterparts, each such counterpart constituting an original and all of which
when taken together shall constitute one and the same instrument. Delivery of an
executed counterpart of a signature page hereto by facsimile shall be effective
as delivery of an originally executed counterpart of this Amendment; provided
that each party hereto agrees to deliver to the Agent originally executed
counterparts of this Amendment on a timely basis.
(e) Any provision contained in this Amendment
that is held to be inoperative, unenforceable or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable or invalid without
affecting the operation, enforceability or validity of the remaining provisions
of this Amendment in that jurisdiction or the operation, enforceability or
validity of such provision in any other jurisdiction.
(f) THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(SIGNATURE PAGE FOLLOWS)
SIXTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their duly authorized officers as of
the date hereof.
INTERFACE SECURITIZATION CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
INTERFACE, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President and CFO
JUPITER SECURITIZATION CORPORATION
By: /s/ Xxx Xxxxxxxx
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Name: Xxx Xxxxxxxx
Title: Authorized Signatory
BANK ONE, NA (MAIN OFFICE CHICAGO), as a
Financial Institution and as Agent
By: /s/ Xxx Xxxxxxxx
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Name: Xxx Xxxxxxxx
Title: Authorized Signatory
SIXTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
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EXHIBIT A
OFFICER'S CERTIFICATE
I,__________________, am the Assistant Secretary of ____________, a
_______ corporation (the "Applicable Party"). I execute and deliver this
Officer's Certificate, dated as of December 17, 2001, on behalf of the
Applicable Party pursuant to Section 3(c) of that certain Sixth Amendment to
Receivables Purchase Agreement (the "Amendment"), dated as of December 17, 2001,
by and among Interface Securiti zation Corporation, a Delaware corporation, as
Seller ("Seller"), Interface, Inc. ("Interface"), Jupiter Securitization
Corporation ("Company") and Bank One, NA (Main Office Chicago), as Agent and as
a Financial Institution, which Sixth Amendment amends certain terms and
provisions of that certain Receivables Purchase Agreement, dated as of December
19, 2000, by and among Seller, Interface, Company and Bank One, NA (Main Office
Chicago) (as amended, restated, supplemented or otherwise modified from time to
time, the "Purchase Agreement"). Capitalized terms used in this Officer's
Certificate and not otherwise defined herein shall have the respective meanings
set forth in the Purchase Agreement.
I hereby certify, on behalf of the Applicable Party, that, both before
and after giving effect to the Amendment, (a) as of the date hereof, no
Amortization Event or Potential Amortization Event has occurred and is
continuing and (b) the representations and warranties of the Applicable Party
contained in the Purchase Agreement and in the other Transaction Documents are
true and correct as of the date hereof.
By:
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Name:
Title: Assistant Secretary
SIXTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
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