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SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of JUNE 25, 1997
among
INTERFACE, INC.,
INTERFACE EUROPE B.V.,
INTERFACE EUROPE LIMITED,
THE LENDERS LISTED HEREIN,
SUNTRUST BANK, ATLANTA
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Co-Agents,
and
SUNTRUST BANK, ATLANTA,
as Collateral Agent
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SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT made
and entered into as of June 25, 1997, by and among INTERFACE,
INC., a Georgia corporation ("Interface"), INTERFACE EUROPE B.V.,
a "besloten vennootschap met beperkte aansprakelijkheid" (private
company with limited liability) incorporated and existing under
the laws of The Netherlands with its registered seat in
Scherpenzeel, Gld., The Netherlands ("Europe B.V."), INTERFACE
EUROPE LIMITED, a private company limited by shares organized and
existing under the laws of England and Wales ("Europe Limited";
Interface, Scherpenzeel B.V. and Europe Limited referred to col-
lectively herein as the "Borrowers"), SUNTRUST BANK, ATLANTA, a
banking corporation organized under the laws of the State of
Georgia ("STBA"), THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association ("FNBC"), the other banks and lending
institutions listed on the signature pages hereof, and any
assignees of STBA, FNBC, or such other banks and lending
institutions which become "Lenders" as provided herein (STBA,
FNBC, and such other banks, lending institutions, and assignees
referred to collectively herein as the "Lenders"), SUNTRUST BANK,
ATLANTA, in its capacity as agent for those Lenders having
Domestic Syndicated Loan Commitments or Term Loan Commitments, or
both, or having outstanding Domestic Syndicated Loans or Term
Loans, or both, as provided herein, and each successor agent for
such Lenders as may be appointed from time to time pursuant to
Article XI hereof (the "Domestic Agent"), THE FIRST NATIONAL BANK
OF CHICAGO, in its capacity as agent for those Lenders having
outstanding Multicurrency Syndicated Loan Commitments or having
outstanding Multicurrency Syndicated Loans as provided herein,
and each successor agent for such Lenders as may be appointed
from time to time pursuant to Article XI hereof (the
"Multicurrency Agent"; the Domestic Agent and the Multicurrency
Agent referred to collectively herein as the "Co-Agents"), and
SUNTRUST BANK, ATLANTA, in its capacity as collateral agent for
the Co-Agents and Lenders and each successor collateral agent as
may be appointed from time to time pursuant to Article XI hereof
(the "Collateral Agent");
W I T N E S S E T H:
--------------------
WHEREAS, Interface, Interface Scherpenzeel B.V.,
Europe Limited, the Lenders listed therein, SunTrust Bank,
Atlanta and The First National Bank of Chicago, as Co-Agents, and
SunTrust Bank, Atlanta, as Collateral Agent, are parties to a
certain Credit Agreement dated as of January 9, 1995, as amended
and restated by a certain Amended and Restated Credit Agreement
dated as of June 30, 1995, and as further amended by a certain
First Amendment to Amended and Restated Credit Agreement dated as
of July 31, 1995, by a certain Second Amendment to Amended and
Restated Credit Agreement dated as of November 21, 1995, by a
certain Third Amendment to Amended and Restated Credit Agreement
dated as of February 28, 1996, by a certain Fourth Amendment to
Amended and Restated Credit Agreement dated as of July 30, 1996,
and by a certain Fifth Amendment to Amended and Restated Credit
Agreement dated as of December 29, 1996 (as so amended, the
"Existing Credit Agreement");
WHEREAS, the Borrowers have requested that the
Existing Credit Agreement be modified so as to (i) increase the
Multicurrency Syndicated Loan Commitments from an aggregate
principal amount of $60,000,000 to an aggregate principal amount
of $80,000,000, (ii) remove Interface Scherpenzeel B.V. as a
borrower under the Multicurrency Syndicated Facility and have
Europe B.V. become a party hereto and a borrower under the
Multicurrency Syndicated Facility, (iii) reduce the Domestic
Syndicated Loan Commitments from an aggregate principal amount of
$190,000,000 to an aggregate principal amount of $170,000,000,
(iv) permit Interface to borrow up to $75,000,000 under a new
term loan agreement to be entered into by Interface, and (v)
amend the Existing Credit Agreement in certain other respects;
WHEREAS, the Lenders, the Co-Agents, and the
Collateral Agent have agreed to amend and restate the Existing
Credit Agreement so as to incorporate the foregoing
modifications, subject to the terms, conditions and requirements
set forth in this Second Amended and Restated Credit Agreement;
NOW, THEREFORE, in consideration of the premises
and the mutual covenants herein contained, Interface, Europe
B.V., Europe Limited, the Lenders, the Co-Agents and the
Collateral Agent agree as follows:
ARTICLE I.
DEFINITIONS; CONSTRUCTION
Section 1.01. Definitions. In addition to the
other terms defined herein, the following terms used herein shall
have the meanings herein specified (to be equally applicable to
both the singular and plural forms of the terms defined):
"Accepted Domestic Bid Rate" shall mean, with
respect to a Domestic Bid Rate Loan made by a particular Domestic
Bid Rate Lender for the relevant Interest Period, the rate of
interest per annum (rounded to the nearest 1/100 of one percent)
offered by such Domestic Bid Rate Lender and accepted by
Interface pursuant to Section 3.06(c)(5).
"Accepted Multicurrency Bid Rate" shall mean, with
respect to a Multicurrency Bid Rate Loan made by a particular
Multicurrency Bid Rate Lender for the relevant Interest Period,
the rate of interest per annum (rounded to the nearest 1/100 of
one percent) offered by such Multicurrency Bid Rate Lender and
accepted by or on behalf of a Multicurrency Borrower pursuant to
Section 4.06(c)(5).
"Accounts Receivable Facilities" shall mean,
collectively, the receivables financing facilities evidenced by
the Receivables Transfer Agreements, the Receivables Sale
Agreements and the Receivables Backup Purchase Agreements
pursuant to which (i) certain of the Consolidated Companies shall
sell accounts receivable to Interface SPC, (ii) Interface SPC
shall sell such accounts receivable (or undivided ownership
interests therein) to SPARCC or CIBC, and (iii) under certain
circumstances, Interface SPC shall sell such accounts receivable
(or undivided ownership interests therein) to the Bank
Purchasers.
"Adjusted Working Capital" shall mean, as of the
date of any determination (i) the sum of all inventory, prepaid
expenses and accounts receivable of the Consolidated Companies,
plus without duplication (ii) the aggregate outstanding balance
of those accounts receivable previously sold by Interface SPC
pursuant to the Accounts Receivable Facility, minus (iii) the sum
of all accounts payable and accrued expenses of the Consolidated
Companies, in each case, determined on a consolidated basis in
conformity with GAAP.
"Adjusted LIBO Rate" shall mean, with respect to
each Interest Period for a Euro Advance, the sum of (i) the rate
obtained by dividing (a) LIBOR for such Interest Period by (b) a
percentage equal to 1 minus the then stated maximum rate (stated
as a decimal) of all reserves requirements (including, without
limitation, any marginal, emergency, supplemental, special or
other reserves) applicable to any member bank of the Federal Re-
serve System in respect of Eurocurrency liabilities as defined in
Regulation D (or against any successor category of liabilities as
defined in Regulation D), plus (ii) if the relevant Eurocurrency
Advance is in British pounds sterling, a percentage sufficient to
compensate the Multicurrency Lenders for the cost of complying
with any reserves, liquidity and/or special deposit requirements
of the Bank of England directly or indirectly affecting the main-
tenance or funding of such Advances.
"Administrative Office" shall mean that office of
the Multicurrency Agent designated as its "Administrative Office"
on the signature page for such Multicurrency Agent, or such other
office as may hereafter be designated in writing by the
Multicurrency Agent to Interface as being the "Administrative Of-
fice" for purposes of this Agreement.
"Advance" shall mean any principal amount advanced
or to be advanced and outstanding at any time under (i) the Term
Loans or Domestic Syndicated Loans, which Advance shall be made
or outstanding in U.S. Dollars as a Base Rate Advance, CD Rate
Advance or Eurodollar Advance, as the case may be, (ii) the
Multicurrency Syndicated Loans, which Advance shall be made or
outstanding as a Base Rate Advance (which Advance shall be made
in U.S. Dollars) or Eurocurrency Advance (which Advance may be
made in any Currency), as the case may be, (iii) the Domestic
Swing Line Loans, which Advance shall be made or outstanding in
U.S. Dollars as a Base Rate Advance or Domestic Transaction Rate
Advance, as the case may be, (iv) the Multicurrency Swing Line
Loans, which Advance shall be made or outstanding in U.S. Dollars
as a Base Rate Advance or a Multicurrency Transaction Rate
Advance, as the case may be, (v) the Domestic Bid Rate Loans,
which Advance shall be made or outstanding in U.S. Dollars as a
Domestic Bid Rate Advance, and (vi) the Multicurrency Bid Rate
Loans, which Advance shall be made or outstanding in U.S. Dollars
as a Multicurrency Bid Rate Advance.
"Affiliate" of any Person means any other Person
directly or indirectly controlling, controlled by, or under
common control with, such Person, whether through the ownership
of voting securities, by contract or otherwise. For purposes of
this definition, "control" (including with correlative meanings,
the terms "controlling", "controlled by", and "under common
control with") as applied to any Person, means the possession,
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directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person.
"Aggregate L/C Outstandings" shall mean, at any
time with respect to all outstanding Letters of Credit, the sum
of the L/C Outstandings for each Letter of Credit.
"Agents" shall mean, collectively, the Co-Agents
and the Collateral Agent.
"Agreement" shall mean this Second Amended and
Restated Credit Agreement, as the same may be further amended,
restated, or supplemented from time to time.
Applicable Commitment Fee Rate shall mean the
rate for any day to be used to calculate commitment fees payable
by the Borrowers pursuant to Section 5.05(b) and 5.05(c),
expressed as a percentage and determined from the chart set forth
below based on Interface's Funded Debt Coverage Ratio calculated
as of the relevant determination date:
Funded Debt Applicable Commitment
Coverage Ratio Fee Rate
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Greater than or equal to 3.00 .25%
Less than 3.00, but greater than
or equal to 2.00 .20%
Less than 2.00 .15%
Each change in the Applicable Commitment Fee Rate resulting from a change
in the Funded Debt Coverage Ratio shall be effective from and after the
date that is five (5) Business Days after the date of delivery to the
Domestic Agent of the financial statements and certificates required by
Section 8.07(a), (b), and (c), as applicable, indicating such change,
until the date that is five (5) Business Days immediately following the
next date of delivery of such financial statements and certificates
indicating another such change. Notwithstanding the foregoing, at any
time during which Interface has failed to deliver the financial
statements and certificates when required by Section 8.07(a), (b), and
(c), as applicable, the Applicable Commitment Fee Rate shall be .25%.
Applicable Margin shall mean, with respect to all
outstanding Loans for any day, the applicable percentage determined from
the chart set forth below based on Interface s Funded Debt Coverage Ratio
calculated as of the relevant determination date:
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Funded Debt
Coverage Ratio Applicable Margin
Greater than or equal to 4.00 1.00%
Less than 4.00, but greater than
or equal to 3.50 .750%
Less than 3.50, but greater than
or equal to 3.00 .625%
Less than 3.00, but greater than
or equal to 2.50 .500%
Less than 2.50, but greater than
or equal to 2.00 .400%
Less than 2.00 .350%
Each change in the Applicable Margin resulting from a change in the
Funded Debt Coverage Ratio shall be effective with respect to outstanding
Loans from and after the date that is five (5) Business Days after the
date of delivery to the Domestic Agent of the financial statements and
certificates required by Section 8.07(a), (b), and (c), as applicable,
indicating such change, until the date that is five (5) Business Days
immediately following the next date of delivery of such financial
statements and certificates indicating another such change.
Notwithstanding the foregoing, at any time during which Interface has
failed to deliver the financial statements and certificates when required
by Section 8.07(a), (b), and (c), as applicable, the Applicable Margin
with respect to Loans then outstanding shall be 1.00%.
"Appropriate Co-Agent" shall mean (i) with respect to
matters relating to the Multicurrency Revolving Loans, the Multicurrency
Agent, and (ii) with respect to matters relating to the Domestic
Revolving Loans, the Term Loans, and all other matters not described in
the preceding clause (i), the Domestic Agent.
"Asset Sale" shall mean any sale or other disposition (or
a series of related sales or other dispositions), including without
limitation, loss, damage, destruction or taking, by any Consolidated
Company to any Person other than a Consolidated Company, of any property
or asset (including capital stock but excluding the issuance and sale by
Interface of its own capital stock) having an aggregate Asset Value in
excess of $100,000, other than (i) sales made in the ordinary course of
business of any Consolidated Company and (ii) sales of accounts
receivables (or undivided ownership interests therein) of a Consolidated
Company pursuant to the Accounts Receivable Facilities.
"Asset Value" shall mean, with respect to any property or
asset of any Consolidated Company, an amount equal to the greater of
(i) the book value of such property or asset as established in accordance
with GAAP, and (ii) the fair market value of such property or asset as
determined in good faith by the board of directors (or equivalent
governing body in the case of any Foreign Subsidiary) of such
Consolidated Company.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an Eligible Assignee in
accordance with the terms of this Agreement and substantially in the form
of Exhibit H.
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"Bank Purchasers" shall mean, collectively, CIBC and each
other financial institution, if any, that becomes a party to the
Receivables Backup Purchase Agreements, and their respective successors
and assigns.
"Bankruptcy Code" shall mean The Bankruptcy Code of 1978,
as amended and in effect from time to time (11 U.S.C. Sec. 101 et seq.).
"Base Rate" shall mean the average of the following two
rates (with any change in the Base Rate to be effective as of the date of
change of either of the following rates):
(i) the higher of (a) the rate which the Multicurrency
Agent publicly announces from time to time as its corporate
base rate, as in effect from time to time, and (b) the Federal
Funds Rate, as in effect from time to time, plus one-half of
one percent (0.50%) per annum. The Multicurrency Agent's
corporate base rate is a reference rate and does not
necessarily represent the lowest or best rate actually charged
to any customer; the Multicurrency Agent may make commercial
loans or other loans at rates of interest at, above or below
the Multicurrency Agent's corporate base rate; and
(ii) the higher of (a) the rate which the Domestic Agent
publicly announces from time to time to be its prime lending
rate, as in effect from time to time, and (b) the Federal Funds
Rate, as in effect from time to time, plus one-half of one
percent (0.50%) per annum. The Domestic Agent's prime lending
rate is a reference rate and does not necessarily represent the
lowest or best rate charged to customers; the Domestic Agent
may make commercial loans or other loans at rates of interest
at, above or below the Domestic Agent's prime lending rate.
"Base Rate Advance" shall mean an Advance made or out-
standing as (i) a portion of the Term Loans or Domestic Revolving Loans,
as the case may be, bearing interest based on the Base Rate as provided
in Section 5.03(a)(i), or (ii) Multicurrency Revolving Loans made in U.S.
Dollars bearing interest based on the Base Rate as provided in
Section 5.03(b)(i).
"Bentley" shall mean Bentley Xxxxx, Inc., a Delaware
corporation.
"Bentley Acquisition" shall mean the acquisition by In-
terface of all the capital stock of Bentley through the consummation of
the transactions described in the Bentley Purchase Agreement, other
purchases of the capital stock of Bentley and, if necessary, the merger
of a Consolidated Company with and into Bentley.
"Bentley Purchase Agreement" shall mean that certain
Agreement for Purchase of Capital Stock dated as of June 8, 1993, among
Interface, Bentley, First Capital Corporation of Chicago, Madison
Dearborn Partners IV, Chrysler Capital Corporation, and Xxxxx Xxxxxxx, as
the same may hereafter be amended, restated, or supplemented from time to
time as permitted by Section 9.13(b), providing for the purchase by
Interface of capital stock of Bentley, as follows: (i) 32,700 shares
(representing 85.7%) of the issued and outstanding shares of Bentley's
Senior Preferred Stock, (ii) 15,621.5 shares (representing 78.5%) of the
issued and outstanding shares of Bentley's Junior Preferred Stock,
(iii) 826,920 shares (representing 76.2%) of the issued and outstanding
shares of Bentley's Class A Common Stock, and (iv) 490,453 shares (repre-
senting 85.8%) of the issued and outstanding shares of Bentley's Class B
Common Stock, together with all additional shares of such capital stock
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of each other shareholder of Bentley that subsequently becomes a party to
such Agreement.
"Borrowers" shall mean, (i) with respect to the Term Loans
and Domestic Revolving Loans, Interface, and (ii) collectively, with
respect to the Multicurrency Revolving Loans, Interface, Europe B.V., and
Europe Limited, and their respective successors and permitted assigns.
"Borrowing" shall mean the incurrence by any Borrower
under any Facility of Advances of one Type concurrently having the same
Interest Period (except as otherwise provided in Sections 5.09 and 5.10)
or the continuation or conversion of an existing Borrowing or Borrowings
in whole or in part.
"Business Day" shall mean any day excluding Saturday,
Sunday and any other day on which banks are required or authorized to
close in Atlanta, Georgia, New York, New York or Chicago, Illinois and,
if the applicable Business Day relates to Euro Advances, on which trading
is not carried on by and between banks in deposits of the applicable
Currencies in the applicable interbank Eurocurrency market.
"CD Rate Advance" shall mean an Advance made or out-
standing as a portion of the Term Loans or Domestic Syndicated Loans, as
the case may be, bearing interest based on the Fixed CD Rate as provided
in Section 5.03(a)(ii).
"CIBC" shall mean Canadian Imperial Bank of Commerce, a
banking institution organized and existing under the laws of Canada, and
its successors and assigns.
"Capital Expenditures" shall mean, for any period, the sum
of (i) expenditures (whether paid in cash or accrued as a liability,
including the portion of capital leases originally incurred during such
period that is capitalized on the consolidated balance sheet of the
Consolidated Companies) by the Consolidated Companies during that period
that, in conformity with GAAP, are included in "capital expenditures",
"additions to property, plant or equipment" or comparable items in the
financial statements of the Consolidated Companies, and (ii) to the
extent not included in clause (i) above, expenditures for all net non-
current assets of businesses acquired by the Consolidated Companies
during that period, including all purchase price adjustments, other than
such assets acquired in transactions where all or substantially all of
the consideration paid for such assets consisted of capital stock of a
Consolidated Company.
"Cash Taxes Paid" shall mean, for any fiscal period of
Interface, the provision of the Consolidated Companies for taxes paid as
shown on the income statement of Interface for such period minus any
increase (or plus any decrease) in the provision for deferred taxes of
the Consolidated Companies as included in the long-term liabilities of
Interface, determined on a consolidated basis in accordance with GAAP.
"Certificate of Deposit Rate" shall mean, with respect to
each Interest Period for a CD Rate Advance, the rate (rounded, if
necessary, to the next higher 1/16 of 1.0%, if the rate is not such a
multiple), as determined by the Domestic Agent at approximately 9:00 A.M.
(Atlanta, Georgia time) on the first day of the Interest Period for which
such Certificate of Deposit Rate is to be applicable, identified on
Telerate as the consensus bid rate for secondary certificates of deposit
in an aggregate amount approximately comparable to the CD Rate Advance to
which such Certificate of Deposit Rate is to be applicable and with a
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maturity equal to such Interest Period. As of the date of the execution
of this Agreement, such consensus bid rate appears on page 5 of Telerate.
If the foregoing rate is unavailable on Telerate for any reason, then
such rate shall be determined by the Domestic Agent from the comparable
rate quoted on another interest rate reporting service of recognized
standing as designated by the Domestic Agent to Interface and the
Domestic Syndicated Lenders.
"Change in Control" shall mean and be deemed to occur on
the earliest of, and upon any subsequent occurrence of:
(a) at any time during which the holders of Interface's
Class B common stock are entitled to elect a majority of
Interface's board of directors, the members of the Existing
Shareholder Group shall at any time fail to be the "beneficial
owners" (as defined in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934 (the "Exchange Act")) of a
majority of the issued and outstanding shares of Interface's
Class B common stock;
(b) at any time during which the holders of Interface's
Class B common stock have ceased to be entitled to elect a
majority of Interface's board of directors, (i) any "person" or
"group" (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act), other than the Existing Shareholder Group,
shall become the "beneficial owner" (as defined in Rules 13d-3
and 13d-5 under the Exchange Act) of more than 35% of the total
capital stock of Interface entitled to vote for the election of
directors (the "Voting Stock"), if at such time the members of
the Existing Shareholder Group (A) "beneficially own" (as so
defined) a lower percentage of the Voting Stock than such other
person or "group" and (B) do not have the right or ability by
voting power, contract or otherwise to elect or designate for
election a majority of the board of directors of Interface, or
(ii) Interface consolidates with, or merges with or into,
another person or sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets to
any person, or any person consolidates with, or merges with or
into, Interface, in any such event pursuant to a transaction in
which the outstanding Voting Stock of Interface is converted
into or exchanged for cash, securities or other property, other
than any such transaction where (A) the outstanding Voting
Stock of Interface is converted into or exchanged for (1)
Voting Stock (other than Redeemable Capital Stock) of the
surviving or transferee corporation or (2) cash, securities and
other property in an amount which could then be paid by
Interface pursuant to Section 9.04, or a combination thereof,
and (B) immediately after such transaction no "person" or
"group" (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act), excluding the members of the Existing
Shareholder Group, is the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a
person shall be deemed to have "beneficial ownership" of all
securities that such person has the right to acquire, whether
such right is exercisable immediately or only after the passage
of time, upon the happening of an event or otherwise), directly
or indirectly, of more than 50% of the total Voting Stock of
the surviving or transferee corporation;
(c) at any time during any consecutive two-year period,
individuals who at the beginning of such period constituted the
board of directors of Interface (together with any new
directors whose election by such board of directors or whose
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nomination for election by the stockholders of Interface was
approved by a vote of 66-2/3% of the directors then still in
office who were either directors at the beginning of such
period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a
majority of the board of directors of Interface then in office;
or
(d) Interface is liquidated or dissolved or adopts a plan
of liquidation.
"Change in Control Provision" shall mean any term or
provision contained in any indenture, debenture, note, or other agreement
or document evidencing or governing Interface Control Debt which
requires, or permits the holder(s) of such Interface Control Debt to
require, that such Interface Control Debt be redeemed, repurchased,
defeased, prepaid or repaid, either in whole or in part, or the maturity
of such Interface Control Debt to be accelerated in any respect, as a
result of a change in ownership of the capital stock of Interface or
voting rights with respect thereto.
"Class B Shareholders' Agreement" shall mean that certain
Voting Agreement for Interface, Inc. Class B Common Stock Shareholders
dated as of April 13, 1993, by and among Xxx X. Xxxxxxxx and
approximately 38 other holders of Class B common stock of Interface,
pursuant to which Xxx X. Xxxxxxxx is entitled to direct the voting of the
shares of Class B common stock subject thereto.
"Collateral Agent" shall mean STBA acting in the capacity
as collateral agent, collateral trustee, pledgee, secured party, or any
similar capacity under any Security Document, any nominee or designee of
STBA acting in such capacity, and any successor collateral agent
appointed from time to time pursuant to Article XI.
"Commitment" shall mean (i) for any Lender at any time,
any of its Term Loan Commitment, Domestic Syndicated Loan Commitment, or
Multicurrency Syndicated Loan Commitment, (ii) for the Domestic Swing
Line Lender at any time, its Domestic Swing Line Commitment, and
(iii) for the Multicurrency Swing Line Lender at any time, its
Multicurrency Swing Line Commitment, in each case as the context may
require.
"Consolidated Companies" shall mean, collectively, In-
terface and all of its Subsidiaries.
"Consolidated EBITA" shall mean, for any fiscal period of
Interface, an amount equal to (A) the sum for such fiscal period of
Consolidated Net Income (Loss) plus, to the extent subtracted in
determining such Consolidated Net Income (Loss), provisions for taxes
based on income, Consolidated Interest Expense, Subordinated Debentures
Redemption Charge, and amortization of goodwill and deferred financing
costs, minus (B) any items of gain (or plus any items of loss) which were
included in determining such Consolidated Net Income (Loss) and were (x)
not realized in the ordinary course of business or (y) the result of any
sale of assets.
"Consolidated EBITDA" shall mean, for any fiscal period of
Interface, an amount equal to (i) Consolidated EBITA for such period,
plus (ii) to the extent subtracted in determining Consolidated Net Income
(Loss) for such period, depreciation expense of the Consolidated
Companies determined for such period in conformity with GAAP.
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"Consolidated Interest Expense" shall mean, for any fiscal
period of Interface, total interest expense of the Consolidated Companies
(including without limitation, interest expense attributable to
capitalized leases in accordance with GAAP, all capitalized interest, all
commissions, discounts and other fees and charges owed with respect to
bankers acceptance financing, and total interest expense (whether shown
as interest expense, other expense, or as loss and expenses on sale of
receivables) under a receivables purchase facility) determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income (Loss)" shall mean, for any
fiscal period of Interface, the net income (or loss) of the Consolidated
Companies on a consolidated basis for such period (taken as a single
accounting period) determined in conformity with GAAP, but excluding
therefrom (to the extent otherwise included therein) (i) any gains or
losses, together with any related provision for taxes, realized upon any
sale of assets other than in the ordinary course of business, (ii) any
income or loss of any Person accrued prior to the date such Person
becomes a Subsidiary of Interface or is merged into or consolidated with
any Consolidated Company or all or substantially all of such Person's
assets are acquired by any Consolidated Company, and (iii) the income of
any Consolidated Company to the extent that the declaration or payment of
dividends or similar distributions by such Consolidated Company of that
income is not at the time permitted by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute,
rule or governmental regulation.
"Consolidated Net Worth" shall mean, as of any date of
determination, Shareholders' Equity of Interface, excluding (i) the
effects of foreign currency translation adjustments under Financial
Accounting Standards Board Statement No. 52 as in effect on the date
hereof, and (ii) after-tax gains on the sales of assets outside the
ordinary course of business of the Consolidated Companies and any after-
tax gains with respect to pension reversions, in any case with respect to
(i) and (ii) above, as such adjustments or gains occur subsequent to
December 29, 1991.
"Consolidated Total Liabilities" shall mean, as at any
date of determination, total liabilities of the Consolidated Companies
determined on a consolidated basis in accordance with GAAP.
"Contractual Obligation" of any Person shall mean any
provision of any security issued by such Person or of any agreement,
instrument or undertaking under which such Person is obligated or by
which it or any of the property owned by it is bound.
"Contribution Agreement" shall mean the Amended and
Restated Contribution Agreement executed by each of the Guarantors,
substantially in the form of Exhibit I attached hereto, as the same may
be amended, restated or supplemented from time to time.
"Convertible Preferred Stock" shall mean Interface's
Series A Cumulative Convertible Preferred Stock having an aggregate
liquidation value of $25,000,000 and 7.0% cumulative dividend, being
convertible into shares of Interface's Class A common stock at the rate
of one share of Class A common stock for each $14.7875 of "conversion
value" of such Preferred Stock (as defined in the Articles of Amendment
of Interface executed with respect to such Preferred Stock and subject to
adjustments as provided therein), and being subject to redemption at the
option of the holders thereof not earlier than June 1, 2003, on the terms
and conditions set forth in such Articles of Amendment.
- 10 -
"Credit Documents" shall mean, collectively, this Agree-
ment, the Notes, the Letter of Credit Agreement, the Guaranty Agreements,
the Pledge Agreements, the L/C Cash Collateral Assignment, the IRB
Collateral Documents, and all other Security Documents.
"Credit Parties" shall mean, collectively, each of the
Borrowers, the Guarantors, and the L/C Account Parties (including all
Persons that are currently Borrowers, Guarantors, and L/C Account Parties
and all Persons who may at any time in the future become Borrowers,
Guarantors, or L/C Account Parties), and every other Person who from time
to time executes a Security Document with respect to all or any portion
of the Obligations.
"Currency" shall mean, with respect to the Multicurrency
Loan Commitments, Dollars, British pounds sterling, Dutch guilders,
French francs, German marks and Japanese yen, as selected by the
applicable Borrower.
"Currency Contracts" shall mean any forward contracts,
futures contracts, foreign exchange contracts, currency swap agreements,
and other similar agreements and arrangements entered into by any
Consolidated Company designed to protect any Consolidated Company against
fluctuations in foreign exchange rates.
"Default" shall mean any condition or event which, with
notice or lapse of time or both, would constitute an Event of Default.
"Distributor Credit Facilities" shall mean, collectively,
the unsecured lines of credit established by retail distributors of
commercial products of the Consolidated Companies to fund such retail
distributors' working capital needs and having maturities in each case no
longer than two (2) years with annual renewals thereafter, as such lines
of credit were in effect immediately prior to the time that Interface or
its Subsidiaries acquired an ownership interest in, or all or a
substantial portion of the assets or business of, such retail
distributors.
"Dollar" and "U.S. Dollar" and the sign "$" shall mean
lawful money of the United States of America.
"Dollar Equivalent" shall mean, with respect to any mon-
etary amount in a currency other than U.S. Dollars, at any time for the
determination thereof, the amount of U.S. Dollars obtained by converting
such currency involved in such computation into U.S. Dollars at the spot
rate for the purchase of U.S. Dollars with the applicable currency as
quoted by the Multicurrency Agent as of the close of business on the date
of determination thereof specified herein or, if the date of
determination thereof is not otherwise specified herein, on the date two
applicable Business Days prior to such determination.
"Domestic Agent" shall mean STBA, acting in the manner and
to the extent described in Article XI, and any successor domestic agent
appointed pursuant to Article XI hereof.
"Domestic Bid Rate" shall mean the rate of interest
specified by a Domestic Syndicated Lender in its Domestic Bid Rate Quote
as provided in Section 3.06(c)(3).
"Domestic Bid Rate Acceptance Notice" shall mean the
notice given by Interface to the Domestic Agent accepting one or more
Domestic Bid Rate Quotes as provided in Section 3.06(c)(5).
- 11 -
"Domestic Bid Rate Advance" shall mean a Borrowing
pursuant to Section 3.06 consisting of the aggregate amount of one or
more Domestic Bid Rate Loans made by one or more of the Domestic
Syndicated Lenders to Interface at the same time, on the same interest
rate basis, and for the same Interest Period.
"Domestic Bid Rate Borrowing" shall mean a Borrowing
consisting or to consist of a Domestic Bid Rate Advance.
"Domestic Bid Rate Facility" shall mean the credit
facility being made available by the Domestic Syndicated Lenders to
Interface as described in Section 3.06(a).
"Domestic Bid Rate Lender" shall mean a Domestic
Syndicated Lender making one or more Domestic Bid Rate Loans pursuant to
Section 3.06.
"Domestic Bid Rate Loans" shall mean, collectively, the
loans made to Interface by the Domestic Bid Rate Lenders pursuant to
Section 3.06.
"Domestic Bid Rate Notes" shall mean, collectively, the
promissory notes evidencing the Domestic Bid Rate Loans substantially in
the form of Exhibit L and duly completed in accordance with the terms
hereof.
"Domestic Bid Rate Quote" shall mean an offer or offers by
a Domesticated Syndicated Lender to make one or more Domestic Bid Rate
Loans to Interface, substantially in the form of Exhibit Q hereto
completed and delivered by such Domesticated Syndicated Lender to the
Domestic Agent in accordance with Section 3.06(c)(3).
"Domestic Bid Rate Quote Request" shall mean a request
transmitted by Interface to the Domestic Agent for offers from the
Domestic Syndicated Lenders to make Domestic Bid Rate Loans substantially
in the form of Exhibit O hereto completed and delivered to the Domestic
Agent in accordance with Section 3.06(c)(1).
"Domestic Revolving Loans" shall mean, collectively, all
Domestic Syndicated Loans, Domestic Swing Line Loans, and Domestic Bid
Rate Loans.
"Domestic Swing Line Advance" shall mean a Borrowing
pursuant to Section 3.05 consisting of a Domestic Swing Line Loan (which
may be made either as a Base Rate Advance or as a Domestic Transaction
Rate Advance) made by the Domestic Swing Line Lender to Interface on the
same date and interest rate basis and, if made as a Fixed Rate Advance,
for the same Interest Period.
"Domestic Swing Line Borrowing" shall mean a Borrowing
consisting or to consist of a Domestic Swing Line Advance.
"Domestic Swing Line Borrowing Notice" shall mean the
notice given by Interface to the Domestic Agent requesting a Domestic
Swing Line Advance as provided in Section 3.05(c).
"Domestic Swing Line Commitment" shall mean the commitment
of the Domestic Swing Line Lender to make Domestic Swing Line Loans in an
aggregate principal amount at any time outstanding not to exceed
$5,000,000.
"Domestic Swing Line Facility" shall mean the credit
facility described in Section 3.05.
- 12 -
"Domestic Swing Line Lender" shall mean STBA or any
subsequent Domestic Syndicated Lender extending to Interface the Domestic
Swing Line Commitment hereunder.
"Domestic Swing Line Loans" shall mean, collectively, the
loans made to Interface by the Domestic Swing Line Lender pursuant to
Section 3.05.
"Domestic Swing Line Note" shall mean the promissory note
evidencing the Domestic Swing Line Loans substantially in the form of
Exhibit K and duly completed in accordance with the terms hereof.
"Domestic Syndicated Advance" shall mean a Borrowing
pursuant to Section 3.02 consisting of the aggregate amount of Domestic
Syndicated Loans made by the Domestic Syndicated Lenders to Interface at
the same time, on the same interest rate basis and, if made as a Fixed
Rate Advance, for the same Interest Period.
"Domestic Syndicated Borrowing" shall mean a Borrowing
consisting or to consist of a Domestic Syndicated Advance.
"Domestic Syndicated Borrowing Notice" shall mean the
notice given by Interface to the Domestic Agent requesting one or more
Domestic Syndicated Advances as provided in Section 3.02(c).
"Domestic Syndicated Facility" shall mean the credit
facility made available by the Domestic Syndicated Lenders to Interface
as described in Section 3.02(a).
"Domestic Syndicated Lenders" shall mean, collectively,
the Lenders extending the Domestic Syndicated Loan Commitments to
Interface pursuant to Section 3.02(a).
"Domestic Syndicated Loan Commitments" shall mean, at any
time for any Domestic Syndicated Lender, the amount of such commitment
set forth opposite such Domestic Syndicated Lender's name on the
signature pages of this Agreement, as the same may be increased or
decreased from time to time as a result of any reduction thereof pursuant
to Section 3.03, any assignment thereof pursuant to Section 12.06, or any
amendment thereof pursuant to Section 12.02, such commitment including,
without limitation, such Domestic Syndicated Lender's L/C Subcommitment.
"Domestic Syndicated Loans" shall mean, collectively, the
loans made to Interface by the Domestic Syndicated Lenders pursuant to
Section 3.02.
"Domestic Syndicated Notes" shall mean, collectively, the
promissory notes evidencing the Domestic Syndicated Loans in the form
attached hereto as Exhibit B duly completed in accordance with the terms
hereof.
"Domestic Transaction Rate" shall mean the rate of
interest specified by the Domestic Swing Line Lender to Interface as
being applicable to a Domestic Swing Line Loan requested by Interface
pursuant to Section 3.05(c).
"Domestic Transaction Rate Advance" shall mean an Advance
made or outstanding as a Domestic Swing Line Loan bearing interest based
on the Domestic Transaction Rate as provided in Section 5.03(a)(iv).
- 13 -
"Domestic Transaction Rate Quote" shall mean an offer by
the Domestic Swing Line Lender to make a Domestic Swing Line Loan to
Interface at the Domestic Transaction Rate specified therein for the
Interest Period to be applicable to the Domestic Swing Line Loan as
specified therein, pursuant to Section 3.05(c).
"Eligible Assignee" shall mean any financial institution
reasonably acceptable to Interface and the Co-Agents.
"Environmental Laws" shall mean all federal, state, local
and foreign statutes and codes or regulations, rules or ordinances
issued, promulgated, or approved thereunder, now or hereafter in effect
(including, without limitation, those with respect to asbestos or
asbestos containing material or exposure to asbestos or asbestos
containing material), relating to pollution or protection of the
environment and relating to public health and safety, relating to
(i) emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals or industrial toxic or hazardous constituents,
substances or wastes, including without limitation, any Hazardous
Substance, petroleum including crude oil or any fraction thereof, any
petroleum product or other waste, chemicals or substances regulated by
any Environmental Law into the environment (including without limitation,
ambient air, surface water, ground water, land surface or subsurface
strata), or (ii) the manufacture, processing, distribution, use, genera-
tion, treatment, storage, disposal, transport or handling of any
Hazardous Substance, petroleum including crude oil or any fraction
thereof, any petroleum product or other waste, chemicals or substances
regulated by any Environmental Law, and (iii) underground storage tanks
and related piping, and emissions, discharges and releases or threatened
releases therefrom, such Environmental Laws to include, without
limitation (i) the Clean Air Act (42 U.S.C. Sec. 7401 et seq.), (ii) the
Clean Water Act (33 U.S.C. Sec. 1251 et seq.), (iii) the Resource
Conservation and Recovery Act (42 U.S.C. sec. 6901 et seq.), (iv) the Toxic
Substances Control Act (15 U.S.C. Sec. 2601 et seq.), (v) the Comprehensive
Environmental Response Compensation and Liability Act, as amended by the
Superfund Amendments and Reauthorization Act (42 U.S.C. Sec. 9601 et seq.),
and (vi) all applicable national and local hindrance laws (including,
without limitation "hinderwet") or regulations and the specific terms of
hindrance licenses granted to the Heuga Entities and with all national
and local building, zoning, environmental control or other similar laws
or regulations under specific terms of construction licenses (including,
without limitation, "bouwvergunningen").
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended and in effect from time to time.
"ERISA Affiliate" shall mean, with respect to any Person,
each trade or business (whether or not incorporated) which is a member of
a group of which that Person is a member and which is under common
control within the meaning of the regulations promulgated under
Section 414 of the Tax Code.
"Escrow Letter" shall mean a letter agreement between
Interface and the Collateral Agent substantially in the form of Exhibit J
hereto.
"Euro Advance" shall mean (i) a Eurodollar Advance, or
(ii) a Eurocurrency Advance.
"Eurocurrency Advance" shall mean an Advance made or
outstanding as Multicurrency Syndicated Loans bearing interest based on
the Adjusted LIBO Rate or Special Adjusted LIBO Rate as provided in
Section 5.03(b)(ii).
- 14 -
"Eurodollar Advance" shall mean an Advance made or out-
standing in U.S. Dollars as a portion of the Term Loans or Domestic
Syndicated Loans, as the case may be, bearing interest based on the Ad-
justed LIBO Rate as provided in Section 5.03(a)(iii).
"Europe B.V." shall mean Interface Europe B.V., a
"besloten vennootschap met beperkte aansprakelijkheid" (private company
with limited liability) incorporated and existing under the laws of The
Netherlands with its registered seat in Scherpenzeel, Gld., The Nether-
lands, its successors and permitted assigns.
"Europe Limited" shall mean Interface Europe Limited
(formerly Interface Flooring Systems Limited), a private company limited
by shares organized and existing under the laws of England and Wales, its
successors and permitted assigns.
"Event of Default" shall have the meaning provided in
Article X.
"Excess Cash Flow" shall mean, for any fiscal year of
Interface (A) the sum of the amounts for such fiscal year of Con-
solidated Net Income (Loss), plus (to the extent subtracted in
determining such Consolidated Net Income (Loss)) depreciation expense,
amortization expense, provisions for deferred tax expense based on income
(or minus provisions for deferred tax credit, as the case may be), and
other non-cash items reducing Consolidated Net Income (Loss) (or minus
other non-cash items increasing Consolidated Net Income (Loss)), as
determined in accordance with GAAP, all as determined on a consolidated
basis for the Consolidated Companies, minus (B) the sum of (i) Capital
Expenditures for such fiscal year, (ii) the amount by which Adjusted
Working Capital as determined on the last day of such fiscal year exceeds
(or minus the amount by which such Adjusted Working Capital is less than)
Adjusted Working Capital as determined on the last day of the preceding
fiscal year (such changes in Adjusted Working Capital caused by currency
fluctuations to be calculated in accordance with FASB-52), (iii) required
principal payments on the Term Loans pursuant to Section 2.02(b), and
required principal payments on the 1997 Term Loans pursuant to Section
2.02(b) of the 1997 Term Loan Agreement, during such fiscal year,
(iv) regularly scheduled principal payments on other Indebtedness of the
Consolidated Companies as permitted under Section 9.01 during such fiscal
year, and (v) the total amount of regularly scheduled cash dividends with
respect to capital stock paid by Interface during such fiscal year as
permitted under Section 9.04.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time, and any successor statute thereto.
"Existing Shareholder Group" shall mean (i) for so long as
Xxx X. Xxxxxxxx shall be living and is performing the duties of chairman
of Interface, Xxx X. Xxxxxxxx and each other party to the Class B
Shareholders' Agreement, Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxx, and Xxxxx
X. XxXxxxx, and (ii) at all times thereafter, the individuals listed on
Schedule 10.11; provided that in the case of each individual referred to
in the preceding clauses (i) and (ii), for purposes of this definition
the reference to such individual shall be deemed to include the members
of such individual's immediate family, such individual's estate, and any
trusts established by such individual (whether inter vivos or
testamentary) for the benefit of members of such individual's immediate
family.
- 15 -
"FASB-52" shall mean Financial Accounting Standards Board
Statement No. 52, as in effect on the date of this Agreement, specifying
applicable accounting principles with respect to translation of foreign
currencies.
"FCB Account" shall mean, with respect to Advances made in
each Currency other than Dollars under the Multicurrency Loan Commitment,
the account maintained by the Multicurrency Agent for disbursements to,
and payments from, the respective Borrower in such Currency, as more
particularly described on Schedule 4.01.
"FC Bank" shall mean, for each FCB Account, the bank at
which such FCB Account shall be maintained, as more particularly
described on Schedule 4.01.
"Facility" or "Facilities" shall mean the credit facili-
ties made available to the Borrowers pursuant to the Term Loan
Commitments, the Domestic Syndicated Loan Commitments, the Domestic Swing
Line Commitment, the Domestic Bid Rate Facility, the Multicurrency
Syndicated Loan Commitments, the Multicurrency Swing Line Commitment, or
the Multicurrency Bid Rate Facility, as the context may indicate.
"Federal Funds Rate" shall mean for any period, a fluc-
tuating interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight Federal funds transactions
with member banks of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Domestic Agent from three Federal funds
brokers of recognized standing selected by the Domestic Agent.
"FNBC Currency Contract" shall mean the Interest Rate and
Currency Exchange Agreement dated as of June 30, 1992, between Heuga
Nederland B.V. (now Scherpenzeel B.V.) and The First National Bank of
Chicago (acting through its London Branch), together with all exhibits
and schedules thereto and all confirmations of transactions executed
thereunder, as amended by the Amendment to Interest Rate and Currency
Exchange Agreement dated as of January 9, 1995, and as the same have been
and hereafter may be amended, restated or supplemented from time to time.
"Fixed CD Rate" shall mean, with respect to each Interest
Period for a CD Rate Advance, the sum of (i) the rate obtained by
dividing (x) the Certificate of Deposit Rate for such Interest Period by
(y) a percentage equal to 1 minus the stated maximum rate (stated as a
decimal) of all reserve requirements as specified in Regulation D
(including, without limitation, any marginal, emergency, supplemental,
special or other reserves) applicable during such Interest Period to new
nonpersonal time deposits in the United States in an amount equal to or
in excess of $100,000 with a maturity comparable to such Interest Period
of any member bank of the Federal Reserve System, plus (ii) the then
daily net annual assessment rate as estimated by the Domestic Agent for
determining the then current annual assessment payable to the Federal
Deposit Insurance Corporation for insuring time deposits of the Domestic
Agent in the United States.
"Fixed Rate Advance" shall mean a CD Rate Advance, Euro
Advance, Domestic Bid Rate Advance, Multicurrency Bid Rate Advance and,
to the extent quoted to and accepted by a Borrower on the basis of a
fixed rate of interest for a specified Interest Period pursuant to
Section 3.05 or 4.05, a Domestic Transaction Rate Advance or
Multicurrency Transaction Rate Advance.
- 16 -
"Foreign Plan" shall mean any pension, profit sharing,
deferred compensation, or other employee benefit plan, program or
arrangement maintained by any Foreign Subsidiary which, under applicable
local law, is required to be funded through a trust or other funding
vehicle.
"Foreign Subsidiary" shall mean each Consolidated Company
that is organized under the laws of a jurisdiction other than the United
States of America or any State thereof.
"Funded Debt" shall mean all Indebtedness for money bor-
rowed, Indebtedness evidenced or secured by purchase money Liens,
capitalized leases, conditional sales contracts and similar title
retention debt instruments, and Indebtedness evidenced by bonds,
debentures, notes or other similar instruments, including all current
maturities of such Indebtedness. The calculation of Funded Debt shall
include all Funded Debt of the Consolidated Companies, plus (i) all
Funded Debt of other Persons to the extent guaranteed by a Consolidated
Company, to the extent supported by a letter of credit issued for the
account of a Consolidated Company, or as to which and to the extent which
a Consolidated Company or its assets otherwise have become liable for
payment thereof, (ii) the aggregate outstanding "Investment" of the
purchasers pursuant to the Receivables Sale Agreements, (iii) the
aggregate outstanding "Investment" of the purchasers pursuant to the
Receivables Backup Purchase Agreements plus (without duplication)
(iv) any other amounts due and owing to the Bank Purchasers pursuant to
the Receivables Backup Purchase Agreements.
"Funded Debt Coverage Ratio" shall mean, as of the last
day of any fiscal quarter of Interface, the ratio of (A) Funded Debt as
of such day, to (B) the sum of Consolidated EBITDA for the fiscal quarter
then ending and the immediately preceding three fiscal quarters.
"GAAP" shall mean generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board
or in such other statements by such other entity as may be approved by a
significant segment of the accounting profession, which are applicable to
the circumstances as of the date of determination.
"Guarantors" shall mean, collectively, Interface,
Interface Interior Fabrics, Inc. (formerly Guilford of Maine, Inc.),
Guilford (Delaware), Inc., Interface Flooring Systems, Inc., Rockland
React-Rite Inc., Interface Research Corporation, Interface Europe, Inc.,
Pandel, Inc., Interface Asia-Pacific, Inc., Bentley, Prince Street,
Intek, Inc., Toltec Fabrics, Inc., Interface Architectural Resources,
Inc. (formerly C-Tec, Inc.), Flooring Consultants, Inc., Xxxxxx/White
Carpet Company, Inc., X. Xxxxxxx & Sons, Inc., the 1996 Reorganization
Credit Parties, and all other Material Subsidiaries (other than Interface
SPC) that are not Foreign Subsidiaries, and their respective successors
and permitted assigns.
"Guaranty" shall mean any contractual obligation, con-
tingent or otherwise, of a Person with respect to any Indebtedness or
other obligation or liability of another Person, including without
limitation, any such Indebtedness, obligation or liability directly or
indirectly guaranteed, endorsed, co-made or discounted or sold with
recourse by that Person, or in respect of which that Person is otherwise
directly or indirectly liable, including contractual obligations
(contingent or otherwise) arising through any agreement to purchase,
- 17 -
repurchase, or otherwise acquire such Indebtedness, obligation or
liability or any security therefor, or any agreement to provide funds for
the payment or discharge thereof (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise), or to maintain
solvency, assets, level of income, or other financial condition, or to
make any payment other than for value received. The amount of any
Guaranty shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which
guaranty is made or, if not so stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person
is required to perform thereunder) as determined by such Person in good
faith.
"Guaranty Agreements" shall mean, collectively, the
Amended and Restated Interface Guaranty Agreement and the Amended and
Restated Subsidiary Guaranty Agreement executed by the Guarantors in
favor of the Lenders and the Co-Agents, substantially in the form of
Exhibits D-1 and D-2, respectively, as the same may be amended, restated
or supplemented from time to time.
"Hazardous Substances" shall have the meaning assigned to
that term in the Comprehensive Environmental Response Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Acts of 1986.
"Heuga Entities" shall mean Interface Europe B.V. (for-
xxxxx Interface Heuga B.V.) and all Subsidiaries of Interface Europe B.V.
"IRB Collateral Documents" shall mean, collectively, the
mortgages, deeds of trust, deeds to secure debt, assignments of leases,
security agreements, pledge agreements, and other security and collateral
documents securing the obligations of any L/C Account Parties in respect
of Letters of Credit issued by the L/C Issuer for the account of such
parties in support of industrial development revenue bonds.
"Indebtedness" of any Person shall mean, without dupli-
cation (i) all obligations of such Person which in accordance with GAAP
would be shown on the balance sheet of such Person as a liability
(including, without limitation, obligations for borrowed money and for
the deferred purchase price of property or services, and obligations
evidenced by bonds, debentures, notes or other similar instruments);
(ii) all rental obligations under leases required to be capitalized under
GAAP; (iii) all Guaranties of such Person (including contingent
reimbursement obligations under undrawn letters of credit);
(iv) Indebtedness of others secured by any Lien upon property owned by
such Person, whether or not assumed; (v) obligations or other
liabilities under Currency Contracts, Interest Rate Contracts, or similar
agreements or combinations thereof; and (vi) Redeemable Capital Stock of
such Person valued at the greater of its voluntary or involuntary maximum
fixed repurchase price plus accrued dividends. For purposes hereof, the
"maximum fixed repurchase price" of any Redeemable Capital Stock which
does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Redeemable Capital Stock as if such Redeemable
Capital Stock were purchased on any date on which Indebtedness shall be
required to be determined pursuant to this Agreement, and if such price
is based on, or measured by, the fair market value of such Redeemable
Capital Stock, such fair market value shall be determined in good faith
by the board of directors of the issuer of such Redeemable Capital Stock.
"Indemnity Agreement" shall mean the Second Supplemental
Indemnification Agreement executed by Interface in favor of the Lenders
and the Co-Agents, substantially in the form of Exhibit U, as the same
may be amended, restated, or supplemented from time to time.
- 18 -
"Intercompany Loan Documents" shall mean, collectively,
the promissory notes and all related loan, subordination, and other
agreements relating in any manner to the Intercompany Loans.
"Intercompany Loans" shall mean, collectively, (i) the
loans more particularly described on Schedule 7.20 and (ii) those loans
or other extensions of credit made by any Consolidated Company to another
Consolidated Company satisfying the terms and conditions set forth in
Section 9.01(h) or as may otherwise be approved in writing by the Co-
Agents; provided that, the advances made pursuant to the Receivables
Subordinated Notes shall not constitute Intercompany Loans.
"Interest Coverage Ratio" shall mean the ratio of Con-
solidated EBITA to Consolidated Interest Expense.
"Interest Period" shall have the meaning set forth in
Section 5.04.
"Interest Rate Contracts" shall mean any forward con-
tracts, futures contracts, interest rate exchange agreements, interest
rate cap agreements, interest rate collar agreements, and other similar
agreements and arrangements entered into by any Consolidated Company
designed to protect any Consolidated Company against fluctuations in
interest rates.
"Interface" shall mean Interface, Inc., a Georgia corpo-
ration, its successors and permitted assigns.
"Interface SPC" shall mean Interface Securitization
Corporation, a Delaware corporation, the Consolidated Company organized
as a special purpose corporation (i) to acquire accounts receivable from
other Consolidated Companies pursuant to the Receivables Transfer
Agreements, (ii) to sell such accounts receivable (or undivided ownership
interests therein) to SPARCC or CIBC pursuant to the Receivables Sale
Agreements, and (iii) under certain circumstances, to sell such accounts
receivable (or undivided ownership interests therein) to the Bank
Purchasers pursuant to the Receivables Backup Purchase Agreements, and
such Consolidated Company's successors and permitted assigns.
"Interface Control Debt" shall mean, at any time, debt of
Interface for borrowed money in an aggregate principal amount outstanding
at such time in excess of $10,000,000 which is subject to Change in
Control Provisions, excluding debt of Interface arising under this
Agreement or the 1997 Term Loan Agreement or any Guaranty or Security
Document of Interface delivered pursuant to this Agreement or the 1997
Term Loan Agreement.
"Investment" shall mean, when used with respect to any
Person, any direct or indirect advance, loan or other extension of
credit (other than the creation of receivables in the ordinary course of
business) or capital contribution by such Person (by means of transfers
of property to others or payments for property or services for the
account or use of others, or otherwise) to any Person, or any direct or
indirect purchase or other acquisition by such Person of, or of a
beneficial interest in, capital stock, partnership interests, bonds,
notes, debentures or other securities issued by any other Person.
"Invitation for Domestic Bid Rate Quote" shall mean an
invitation from Interface to each of the Domestic Syndicated Lenders to
submit Domestic Bid Rate Quotes offering to make Domestic Bid Rate Loans,
- 19 -
substantially in the form of Exhibit P hereto and transmitted by the
Domestic Agent in accordance with Section 3.06(c)(2).
"Invitation for Multicurrency Bid Rate Quote" shall mean
an invitation from or on behalf of a Multicurrency Borrower to each of
the Multicurrency Syndicated Lenders to submit Multicurrency Bid Rate
Quotes offering to make Multicurrency Bid Rate Loans, substantially in
the form of Exhibit S hereto and transmitted by the Multicurrency Agent
in accordance with Section 4.06(c)(2).
"L/C Account Party" shall mean any Consolidated Company
for whose account a Letter of Credit has been issued pursuant to the
Letter of Credit Agreement.
"L/C Cash Collateral Account" shall mean the cash col-
lateral account established pursuant to the L/C Cash Collateral
Assignment (and designated thereunder as the L/C Cash Collateral Account)
in favor of the Collateral Agent.
"L/C Cash Collateral Assignment" shall mean the Amended
and Restated L/C Cash Collateral Assignment Agreement among those
Consolidated Companies that are parties to the Letter of Credit Agreement
and the Collateral Agent, substantially in the form of Exhibit W, as the
same may hereafter be further amended, restated or supplemented from time
to time.
"L/C Exposure" shall mean, for each Lender, and with
respect to all Letters of Credit as to which it was a Participating
Lender, the sum, for all such Letters of Credit, of the product of (i)
the L/C Outstandings for each Letter of Credit, multiplied by (ii) such
Lender's applicable L/C Pro Rata Share for such Letter of Credit.
"L/C Issuer" shall mean SunTrust Bank, Atlanta, a Georgia
banking corporation, and each other issuer of a Letter of Credit pursuant
to the Letter of Credit Agreement, and their respective successors and
assigns.
"L/C Outstandings" shall mean, as at any date of deter-
mination with respect to an outstanding Letter of Credit, the sum of (i)
the maximum aggregate amount which at such date of determination is
available to be drawn (assuming conditions for drawing thereunder have
been met) under such Letter of Credit then outstanding, plus (ii) the
aggregate amount of all drawings under such Letter of Credit and honored
by the L/C Issuer not theretofore reimbursed by or on behalf of the L/C
Account Party.
"L/C Pro Rata Share" shall mean, at any time, for each
Participating Lender in respect of a Letter of Credit, the percentage
designated in the Letter of Credit Agreement as such Lender's L/C Pro
Rata Share under the name of such Lender on the respective signature page
for such Lender, in each case as such L/C Pro Rata Share may have been
adjusted pursuant to the terms of the Letter of Credit Agreement as of
the date of issuance of such Letter of Credit.
"L/C Subcommitment" shall mean, at any time for any
Domestic Revolving Lender, the amount of the Letter of Credit
Subcommitment set forth opposite such Domestic Syndicated Lender's name
on the signature page of the Letter of Credit Agreement, as the same may
be adjusted from time to time pursuant to the terms of the Letter of
Credit Agreement.
- 20 -
"Lender" or "Lenders" shall mean STBA, FNBC, the other
banks and lending institutions listed on the signature pages hereof, and
each assignee thereof, if any, pursuant to Section 12.06(c).
"Lending Office" shall mean for each Lender the office
such Lender may designate in writing from time to time to the Borrowers
and the Co-Agents with respect to each Type of Loan.
"Letter of Credit" shall mean any letter of credit issued
by the L/C Issuer for the account of an L/C Account Party pursuant to the
Letter of Credit Agreement, as the same may be amended, extended or re-
issued from time to time.
"Letter of Credit Agreement" shall mean the Amended and
Restated Letter of Credit Agreement among Interface, Interface Interior
Fabrics, Inc. (formerly Guilford of Maine, Inc.), Interface Flooring
Systems, Inc., Bentley, Prince Street, Pandel, Inc., Interface Research
Corporation, Rockland React-Rite, Inc., Interface Architectural
Resources, Inc. (formerly C-Tec, Inc.), SunTrust Bank, Atlanta, as L/C
Issuer, the Domestic Syndicated Lenders, the Domestic Agent, and the Col-
lateral Agent, substantially in the form of Exhibit V, as the same may
hereafter be further amended, restated or supplemented from time to time.
"Leverage Ratio" shall mean the ratio, expressed as a
percentage, of Funded Debt to Total Capitalization for the Consolidated
Companies.
"LIBOR" shall mean, for any applicable Interest Period:
(i) with respect to Eurodollar Advances under the
Domestic Syndicated Loan Commitments or the Term Loans,
the offered rate for deposits in Dollars, for a period
comparable to the Interest Period and in an amount
comparable to the Domestic Agent's portion of such
Advances, appearing on Telerate Page 3750 as of 11:00 A.M.
(London, England time) on the day that is two Business
Days prior to the first day of the Interest Period. If
two or more of such rates appear on Telerate Page 3750,
the rate shall be the arithmetic mean of such rates. If
the foregoing rate is unavailable from Telerate Page 3750
for any reason, then such rate shall be determined by the
Domestic Agent from the Reuters Screen LIBO Page or, if
such rate is also unavailable on such service, then on any
other interest rate reporting service of recognized
standing designated in writing by the Domestic Agent to
Interface and the other Lenders;
(ii) with respect to Eurocurrency Advances under the
Multicurrency Syndicated Loan Commitments, the offered
rate for deposits in the applicable Currency, for a period
comparable to the Interest Period and in an amount
comparable to the Multicurrency Agent's portion of such
Advances, appearing on Telerate Page 3750 as of 11:00 A.M.
(London, England time) on the day that is two Business
Days prior to the first day of the Interest Period. If
the foregoing rate is unavailable from Telerate for any
reason, then such rate shall be determined by the
Multicurrency Agent from any other interest rate reporting
service of recognized standing designated in writing by
the Multicurrency Agent to Interface and the other
Lenders;
- 21 -
in any such case rounded, if necessary, to the next higher 1/16 of 1.0%,
if the rate is not such a multiple.
"Lien" shall mean any mortgage, pledge, security interest,
lien, charge, hypothecation, assignment, deposit arrangement, title
retention, preferential right, trust or other arrangement having the
practical effect of the foregoing and shall include the interest of a
vendor or lessor under any conditional sale agreement, capitalized lease
or other title retention agreement.
"Loans" shall mean, collectively, the Term Loans, the Domestic
Syndicated Loans, the Domestic Swing Line Loans, the Domestic Bid Rate
Loans, the Multicurrency Syndicated Loans, the Multicurrency Swing Line
Loans, and the Multicurrency Bid Rate Loans.
"Margin Regulations" shall mean Regulation G, Regulation T,
Regulation U and Regulation X of the Board of Governors of the Federal
Reserve System, as the same may be in effect from time to time.
"Material Company" shall mean (i) Interface, (ii) each Material
Subsidiary, and (iii) each joint venture, general partnership,
association, or other business entity in which one or more of the
Consolidated Companies is a general partner, party, or member, and as to
which such Consolidated Company or Companies has become liable, either by
agreement, by operation of law, or otherwise, for obligations and
liabilities thereof in an aggregate amount greater than $10,000,000.
"Material Subsidiary" shall mean (i) each Credit Party other
than Interface, (ii) each other Consolidated Company listed in the
definition of the term "Pledged Stock" in this Section 1.01, but
excluding Guilford of Maine (Canada), Inc., Interface Heuga Singapore Pte
Ltd., Interface Heuga Hong Kong Ltd., and Interface Heuga Australia Pty
Ltd., and (iii) each other Subsidiary of Interface, now existing or
hereafter established or acquired, that at any time prior to the Term
Loan Final Maturity Date or Revolver/Multicurrency Maturity Date
(whichever is last to occur), has or acquires total assets in excess of
$10,000,000, or that holds any assets material to the operations or
business of another Material Subsidiary (including, without limitation,
each of Guilford of Maine (U.K.) Ltd., Guilford of Maine (Canada), Inc.,
Interface Heuga Singapore Pte Ltd., Interface Heuga Hong Kong Ltd., and
Interface Heuga Australia Pty Ltd., at such time, if any, as any of them
acquires total assets in excess of $10,000,000 or holds such material
assets).
"Materially Adverse Effect" shall mean any materially adverse
change in (i) the business, results of operations, financial condition,
assets or prospects of the Consolidated Companies, taken as a whole, or
(ii) the ability of Interface to perform its respective obligations under
the Credit Documents.
"Multicurrency Agent" shall mean FNBC, acting in the manner and
to the extent described in Article XI, and any successor multicurrency
agent appointed from time to time pursuant to Article XI hereof.
"Multicurrency Bid Rate" shall mean the rate of interest
specified by a Multicurrency Syndicated Lender in its Multicurrency Bid
Rate Quote as provided in Section 4.06(c)(3).
"Multicurrency Bid Rate Acceptance Notice" shall mean the
notice given by or on behalf of a Multicurrency Borrower to the
Multicurrency Agent accepting one or more Multicurrency Bid Rate Quotes
as provided in Section 4.06(c)(5).
- 22 -
"Multicurrency Bid Rate Advance" shall mean a Borrowing in U.S.
Dollars pursuant to Section 4.06 consisting of the aggregate amount of
one or more Multicurrency Bid Rate Loans made by one or more of the
Multicurrency Syndicated Lenders to the same Borrower at the same time,
on the same interest rate basis, and for the same Interest Period.
"Multicurrency Bid Rate Borrowing" shall mean a Borrowing in
U.S. Dollars consisting or to consist of a Multicurrency Bid Rate
Advance.
"Multicurrency Bid Rate Facility" shall mean the credit
facility being made available by the Multicurrency Syndicated Lenders to
the Multicurrency Borrowers as described in Section 4.06(a).
"Multicurrency Bid Rate Lender" shall mean a Multicurrency
Syndicated Lender making one or more Multicurrency Bid Rate Loans
pursuant to Section 4.06.
"Multicurrency Bid Rate Loans" shall mean, collectively, the
loans made to the Multicurrency Borrowers by the Multicurrency Bid Rate
Lenders pursuant to Section 4.06.
"Multicurrency Bid Rate Note" shall mean the promissory notes
evidencing the Multicurrency Bid Rate Loans in the form attached hereto
as Exhibit N and duly completed in accordance with the terms hereof.
"Multicurrency Bid Rate Quote" shall mean an offer or offers by
a Multicurrency Syndicated Lender to make one or more Multicurrency Bid
Rate Loans to a Multicurrency Borrower substantially in the form of
Exhibit T hereto completed and delivered by such Multicurrency Syndicated
Lender to the Multicurrency Agent in accordance with Section 4.06(c)(3).
"Multicurrency Bid Rate Quote Request" shall mean a request
transmitted by or on behalf of a Multicurrency Borrower to the
Multicurrency Agent for offers from the Multicurrency Syndicated Lenders
to make Multicurrency Bid Rate Loans substantially in the form of Exhibit
R hereto completed and delivered to the Domestic Agent in accordance with
Section 4.06(c)(1).
"Multicurrency Borrowers" shall mean, collectively, Interface,
Europe B.V. and Europe Limited.
"Multicurrency Revolving Loans" shall mean, collectively, all
Multicurrency Syndicated Loans, Multicurrency Swing Line Loans, and
Multicurrency Bid Rate Loans.
"Multicurrency Swing Line Advance" shall mean a Borrowing in
U.S. Dollars pursuant to Section 4.05 consisting of a Multicurrency Swing
Line Loan (which may be made either as a Base Rate Advance or as a
Multicurrency Transaction Rate Advance) made by the Multicurrency Swing
Line Lender to a Multicurrency Borrower on the same date and interest
rate basis and, if made as a Fixed Rate Advance, for the same Interest
Period.
"Multicurrency Swing Line Borrowing" shall mean a Borrowing in
U.S. Dollars consisting or to consist of a Multicurrency Swing Line
Advance.
"Multicurrency Swing Line Borrowing Notice" shall mean the
notice given by or on behalf of a Multicurrency Borrower to the
Multicurrency Agent requesting a Multicurrency Swing Line Advance as
provided in Section 4.05(c).
- 23 -
"Multicurrency Swing Line Commitment" shall mean the commitment
of the Multicurrency Swing Line Lender to make Multicurrency Swing Line
Loans in an aggregate principal amount at any time outstanding not to
exceed $5,000,000.
"Multicurrency Swing Line Loans" shall mean, collectively, the
loans made to the Multicurrency Borrowers by the Multicurrency Swing Line
Lender pursuant to Section 4.05.
"Multicurrency Swing Line Notes" shall mean the promissory
notes evidencing the Multicurrency Swing Line Loans substantially in the
form of Exhibits X-0, X-0, xxx X-0 and duly completed in accordance with
the terms hereof.
"Multicurrency Syndicated Advance" shall mean a Borrowing
pursuant to Section 4.02 consisting of the aggregate amount of
Multicurrency Syndicated Loans made by the Multicurrency Syndicated
Lenders to a Multicurrency Borrower at the same time, on the same
interest rate basis and, if made as a Fixed Rate Advance, for the same
Interest Period.
"Multicurrency Syndicated Borrowing" shall mean a Borrowing
consisting or to consist of a Multicurrency Syndicated Advance.
"Multicurrency Syndicated Borrowing Notice" shall mean the
notice given by or on behalf of a Multicurrency Borrower to the
Multicurrency Agent requesting one or more Multicurrency Syndicated
Advances as provided in Section 4.02(c).
"Multicurrency Syndicated Facility" shall mean the credit
facility made available by the Multicurrency Syndicated Lenders to the
Multicurrency Borrowers as described in Section 4.02(a).
"Multicurrency Syndicated Lenders" shall mean, collectively,
the Lenders extending the Multicurrency Syndicated Loan Commitments to
the Multicurrency Borrowers pursuant to Section 4.02(a).
"Multicurrency Syndicated Loan Commitments" shall mean, at any
time for any Multicurrency Syndicated Lender, the amount of such
commitment set forth opposite such Multicurrency Syndicated Lender's name
on the signature pages hereof, as the same may be increased or decreased
from time to time as a result of any reduction thereof pursuant to
Section 4.03, any assignment thereof pursuant to Section 12.06, or any
amendment thereof pursuant to Section 12.02.
"Multicurrency Syndicated Loans" shall mean, collectively, the
loans made to a Multicurrency Borrower by the Multicurrency Syndicated
Lenders pursuant to Section 4.02.
"Multicurrency Syndicated Notes" shall mean, collectively, the
promissory notes evidencing the Multicurrency Syndicated Loans in the
forms attached hereto as Exhibits C-1, C-2 and C-3, duly completed in
accordance with the terms hereof.
"Multicurrency Transaction Rate" shall mean the rate of
interest specified by the Multicurrency Swing Line Lender to a
Multicurrency Borrower, or to Interface on behalf of a Multicurrency
Borrower, as the case may be, as being applicable to a Multicurrency
Swing Line Loan requested by or on behalf of a Multicurrency Borrower
pursuant to Section 4.05(c).
"Multicurrency Transaction Rate Advance" shall mean an Advance
made or outstanding as a Multicurrency Swing Line Loan bearing interest
- 24 -
based on the Multicurrency Transaction Rate as provided in Section
5.03(b)(iii).
"Multicurrency Transaction Rate Quote" shall mean an offer by
the Multicurrency Swing Line Lender to make a Multicurrency Swing Line
Loan to Interface, Scherpenzeel B.V. or Europe Limited at the
Multicurrency Transaction Rate specified therein for the Interest Period
to be applicable to the Multicurrency Swing Line Loan as specified
therein, pursuant to Section 4.05(c).
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Net Proceeds" shall mean, with respect to any Asset Sale, all
cash, including (i) cash receivables (when received) by way of deferred
payment pursuant to a promissory note, a receivable or otherwise (other
than interest payable thereon), and (ii) with respect to Asset Sales
resulting from the loss, damage, destruction or taking of property, the
proceeds of insurance settlements and condemnation awards (other than the
portion of the proceeds of such settlements and such awards that are used
to repair, replace, improve or restore the item of property in respect of
which such settlement or award was paid provided that the recipient of
such proceeds enters into a binding contractual obligation to effect such
repair, replacement, improvement or restoration within eighteen (18)
months of such loss, damage or destruction and completes such repair,
replacement, improvement or restoration within thirty-six (36) months of
such loss, damage, destruction or taking) as and when received in cash,
in either case, received by any Consolidated Company as a result of or in
connection with such transaction, net of reasonable sale expenses, fees
and commissions incurred, and taxes paid or expected to be payable within
the succeeding 36-month period in connection therewith, and net of any
payment required to be made with respect to the outstanding principal
amount of, premium or penalty, if any, and interest on any Indebtedness
(other than the Loans) secured by a Lien (to the extent permitted by
Section 9.02) upon the asset sold in such Asset Sale.
"1996 Reorganization Credit Parties" shall mean, collectively,
Guilford of Maine, Inc., a Nevada corporation, Guilford of Maine
Finishing Services, Inc., a Nevada corporation, Guilford of Maine
Decorative Fabrics, Inc., a Nevada corporation, Guilford of Maine
Marketing Co., a Nevada corporation, Intek Marketing Co., a Nevada
corporation, Interface Holding Company, a Nevada corporation, Interface
Americas, Inc., a Georgia corporation, Interface Americas Services, Inc.,
a Georgia corporation, Interface Specialty Resources, Inc., a Nevada
corporation, Re:Source Americas Enterprises, Inc., a Georgia corporation,
Interface Royalty Company, a Nevada corporation, Interface Licensing
Company, a Nevada corporation, Prince Street Royalty Company, a Nevada
corporation, Bentley Royalty Company, a Nevada corporation,
Superior/Xxxxxx Flooring Resources, Inc., a Texas corporation, Quaker
City International, Inc., a Pennsylvania corporation, Commercial Flooring
Systems, Inc., a Pennsylvania corporation, Congress Flooring Corp., a
Massachusetts corporation, and their respective successors and permitted
assigns.
"1996 Reorganization Transactions" shall mean those
transactions more particularly described on Schedule 1.01 attached hereto
and by this reference made a part hereof.
"1997 Term Lenders" shall mean the banks and other financial
institutions listed on the signature pages of the 1997 Term Loan
Agreement, their successors and assigns, and each other bank and
financial institution that becomes a party thereto.
- 25 -
"1997 Term Loan Agreement" shall mean the Term Loan Agreement
dated as of June 25, 1997, among Interface, SunTrust Bank, Atlanta, as
Administrative Agent and Collateral Agent, FNBC, as Syndication Agent,
and the 1997 Term Lenders, as the same may be amended, restated, or
supplemented from time to time, pursuant to which the 1997 Term Loans
shall be made to Interface.
"1997 Term Loans" shall mean, collectively, the term loans in
an aggregate principal amount of $75,000,000 made to Interface by the
1997 Term Lenders pursuant to the terms of the 1997 Term Loan Agreement.
"Notes" shall mean, collectively, the Term Notes, the Domestic
Syndicated Notes, the Domestic Swing Line Note, the Domestic Bid Rate
Notes, the Multicurrency Syndicated Notes, the Multicurrency Swing Line
Notes, and the Multicurrency Bid Rate Notes.
"Notice of Domestic Conversion/Continuation" shall mean the
notice given by Interface to the Domestic Agent in respect of the
conversion or continuation of an outstanding Domestic Syndicated
Borrowing as provided in Section 3.02(e).
"Notice of Multicurrency Conversion/Continuation" shall mean a
notice given by or on behalf of a Multicurrency Borrower in respect of
the conversion or continuation of an outstanding Multicurrency Syndicated
Borrowing pursuant to Section 4.02(e).
"Notice of Term Loan Conversion/Continuation" shall mean a
notice given by Interface to the Domestic Agent in respect of the
conversion or continuation of an outstanding portion of the Term Loans
pursuant to Section 2.01(c).
"Obligations" shall mean all amounts owing to any Co-Agent,
Lender, L/C Issuer, or Collateral Agent pursuant to the terms of this
Agreement, the Letter of Credit Agreement, or any other Credit Document,
including without limitation, all Loans (including all principal and
interest payments due thereunder), fees, expenses, indemnification and
reimbursement payments, indebtedness, liabilities, and obligations of the
Credit Parties, direct or indirect, absolute or contingent, liquidated or
unliquidated, now existing or hereafter arising, together with all renew-
als, extensions, modifications or refinancings thereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or
any successor thereto.
"Participating Lender" shall have the meaning specified for
such term in the Letter of Credit Agreement.
"Payment Office" shall mean (i) with respect to payments of
principal and interest relating to Multicurrency Syndicated Loans out-
standing in Currencies other than Dollars, the respective FCB Accounts
designated for such Currencies, (ii) with respect to payments of all
other principal, interest, fees or other amounts relating to the
Multicurrency Syndicated Loans, Multicurrency Swing Line Loans, and
Multicurrency Bid Rate Loans, the office specified as the "Payment
Office" for the Multicurrency Agent on the signature page of the
Multicurrency Agent, or such other location as to which the Multicurrency
Agent shall have given written notice to the Borrowers and its Co-Agent,
and (iii) with respect to payments of principal, interest, fees or other
amounts relating to the Domestic Revolving Loans, Domestic Bid Rate
Loans, the Term Loans, and all other Obligations not described in the
preceding clauses (i) and (ii), the office specified as the "Payment
- 26 -
Office" for the Domestic Agent on the signature page of the Domestic
Agent, or such other location as to which the Domestic Agent shall have
given written notice to Interface and its Co-Agent.
"Permitted Liens" shall mean those Liens expressly permitted by
Section 9.02.
"Person" shall mean any individual, partnership, firm,
corporation, association, joint venture, limited liability company, trust
or other entity, or any government or political subdivision or agency,
department or instrumentality thereof.
"Plan" shall mean any "employee benefit plan" (as defined in
Section 3(3) of ERISA), including, but not limited to, any defined
benefit pension plan, profit sharing plan, money purchase pension plan,
savings or thrift plan, stock bonus plan, employee stock ownership plan,
Multiemployer Plan, or any plan, fund, program, arrangement or practice
providing for medical (including post-retirement medical), hospitaliza-
tion, accident, sickness, disability, or life insurance benefits, but
shall exclude any Foreign Plan.
"Pledge Agreements" shall mean, collectively, that certain
Consolidated Amended and Restated Pledge and Security Agreement, that
certain Amended and Restated Agreement of Pledge, and that certain
Amended and Restated Deed of Pledge, executed in favor of the Collateral
Agent, substantially in the forms of Exhibits E-1 through E-3 and the
Pledge and Security Agreement executed by Interface Asia-Pacific, Inc.,
being amended by that certain 1997 Amendment to Pledge and Security
Agreement substantially in the form of Exhibit E-4, in each case
providing for the grant of first priority Liens on the Pledged Stock, as
the same may be further supplemented, amended or restated from time to
time.
"Pledged Stock" shall mean, collectively, (i) all issued and
outstanding capital stock, together with all warrants, stock options, and
other purchase and conversion rights with respect to such capital stock,
of each of Interface Interior Fabrics, Inc. (formerly Guilford of Maine,
Inc.), Guilford (Delaware) Inc., Interface Flooring Systems, Inc.,
Interface Research Corporation, Rockland React-Rite, Inc., Pandel, Inc.,
Interface Europe, Inc., Interface Asia-Pacific, Inc., Bentley, Prince
Street, Intek, Inc., Toltec Fabrics, Inc., Interface Architectural
Resources, Inc. (formerly C-Tec, Inc.), Flooring Consultants, Inc.,
Xxxxxx/White Carpet Company, Inc., X. Xxxxxxx & Sons, Inc., the 1996
Reorganization Credit Parties, and all other Material Subsidiaries of
Interface organized in the United States, and (ii) 66% of all issued and
outstanding capital stock, together with 66% of all warrants, stock
options, and other purchase and conversion rights with respect to such
capital stock, of Europe Limited, Interface Europe B.V., Interface Heuga
Singapore Pte Ltd., Guilford of Maine (Canada), Inc., Interface Flooring
Systems (Canada), Inc., Interface Heuga Hong Kong Ltd., Interface Heuga
Australia Pty Limited, and all other Material Subsidiaries that are
Foreign Subsidiaries directly owned by Interface and/or one or more other
Subsidiaries organized in the United States.
"Prince Street" shall mean Prince Street Technologies, Ltd., a
Georgia corporation.
"Prince Street Acquisition" shall mean the acquisition by
Interface of Prince Street through the consummation of the transactions
described in the Prince Street Acquisition Agreement.
- 00 -
"Xxxxxx Xxxxxx Acquisition Agreement" shall mean the
Acquisition Agreement dated as of December 3, 1993, among Interface,
Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxx, Xxxxx X'Xxxxxxx, Xxxx X'Xxxxxxx,
Xxxxxxxxxx X. Xxxxxxx, Traccton Corp., Prince Street Holding Company,
Xxxxxx X. Xxxxxxx, and Xxxxxx X. Xxxxxxxx, as amended.
"Pro Rata Share" shall mean, with respect to each of the
Domestic Syndicated Loan Commitments (including, without limitation the
L/C Subcommitments) and Multicurrency Syndicated Loan Commitments of each
Domestic Syndicated Lender or Multicurrency Syndicated Lender, as the
case may be, and each Loan to be made by and each payment (including,
without limitation, any payment of principal, Letter of Credit
reimbursement obligation, interest or fees) to be made to each such
Lender, the percentage designated as such Lender's Pro Rata Share of such
Commitments, such Loans or such payments, as applicable, set forth under
the name of such Lender on the respective signature page for such Lender,
in each case as such Pro Rata Share may change from time to time as a
result of assignments, amendments, or reductions made pursuant to this
Agreement.
"Receivables Backup Purchase Agreements" shall mean the
agreements among Interface SPC, as seller, Interface, as collection
agent, and the Bank Purchasers, as purchasers, providing for the sale by
Interface SPC, and the purchase by the Bank Purchasers, of accounts
receivable (or undivided ownership interests therein) originated by
certain of the Consolidated Companies, as in effect on December 31, 1996,
and as the same may be amended, restated or supplemented from time to
time.
"Receivables Sale Agreements" shall mean the agreements among
Interface SPC, as seller, Interface, as collection agent, SPARCC, as
purchaser, and CIBC, as servicing agent, providing for the sale by
Interface SPC, and the purchase by SPARCC, of accounts receivable (or
undivided ownership interests therein) originated by certain of the
Consolidated Companies.
"Receivables Subordinated Notes" shall mean any and all
subordinated notes executed by Interface SPC from time to time in favor
of Interface and evidencing advances made from time to time by Interface
to Interface SPC in connection with, and pursuant to the terms of, the
Accounts Receivable Facilities, provided that, the aggregate outstanding
principal balance of such notes shall not at any time exceed $40,000,000.
"Receivables Transfer Agreements" shall mean, collectively, the
agreement(s) between certain of the Consolidated Companies, as
originators, and Interface SPC, as purchaser, providing for the sale by
such Consolidated Companies, and the purchase by Interface SPC, of
accounts receivable originated by such Consolidated Companies.
"Redeemable Capital Stock" shall mean any shares of any class
or series of capital stock that, either by the terms thereof, by the
terms of any security into which it is convertible or exchangeable, or by
contract or otherwise, is or upon the happening of an event or passage of
time would be, required to be redeemed prior to the Term Loan Final
Maturity Date or is redeemable at the option of the holder thereof at any
time prior to the Term Loan Final Maturity Date, or is convertible into
or exchangeable for debt securities at any time prior to the Term Loan
Final Maturity Date.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be in effect
from time to time.
- 28 -
"Required Lenders" shall mean at any time Lenders holding at
least 66-2/3% of the then aggregate amount of the Domestic Syndicated
Loan Commitments, Multicurrency Syndicated Loan Commitments and Term
Loans; provided, however, that in connection with any proposed amendment
or waiver of any of the following provisions, "Required Lenders" shall
mean both the Lenders holding at least 66-2/3% of the then aggregate
amount of the Domestic Syndicated Commitments, Multicurrency Syndicated
Loan Commitments, and Term Loans, and Multicurrency Syndicated Lenders
holding at least 66-2/3% of the then aggregate amount of the
Multicurrency Syndicated Loan Commitments: (i) Article IV,
(ii) Section 5.03(b), Section 5.07(b)(v) and (viii), and Section 5.13, or
(iii) the definitions of the terms Currency, Payment Office, FCB Account
or FC Bank.
"Required Multicurrency Syndicated Lenders" shall have the
meaning provided in Section 12.02.
"Requirement of Law" for any person shall mean the articles or
certificate of incorporation and bylaws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation, or determination of an arbitrator or a court or other
governmental authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its
property is subject.
"Reuters Screen" shall mean, when used in connection with any
designated page and LIBOR, the display page so designated on the Reuter
Monitor Money Rates Service (or such other page as may replace that page
on that service for the purpose of displaying rates comparable to LIBOR).
Revolver/ Multicurrency Maturity Date shall mean the earlier
of (i) December 31, 2001, and (ii) the date on which all amounts
outstanding under this Agreement have been declared or have automatically
become due and payable pursuant to the provisions of Article X.
"SPARCC" shall mean Special Purpose Accounts Receivable
Cooperative Corporation, its successors and permitted assigns.
"Security Documents" shall mean, collectively, the Guaranty
Agreements, the Pledge Agreements, the L/C Cash Collateral Assignment,
the IRB Collateral Documents, the Indemnity Agreement, and each other
guaranty agreement, mortgage, deed of trust, security agreement, pledge
agreement, or other security or collateral document guaranteeing or
securing the Obligations, as the same may be amended, restated, or
supplemented from time to time.
"Senior Funded Debt" shall mean Funded Debt minus Subordinated
Debt.
"Senior Subordinated Notes" shall mean, collectively, the
unsecured Senior Subordinated Notes Due 2005 issued by Interface, and
guaranteed by certain Subsidiaries of Interface, in the aggregate
principal amount of $125,000,000 (plus the aggregate principal amount, if
any, of such Senior Subordinated Notes issued pursuant to the
underwriters' over-allotment option up to a total amount of $18,750,000),
as more particularly described on the Senior Subordinated Notes
Description, together with any and all "Exchange Notes" (as defined in
the Senior Subordinated Notes Description) issued to holders of such
Senior Subordinated Notes in exchange therefor.
- 29 -
"Senior Subordinated Notes Description" shall mean the
description of the Senior Subordinated Notes as set forth in Exhibit X
attached hereto and by this reference made a part hereof.
"Senior Subordinated Notes Guarantor" shall mean each
Subsidiary of Interface that is a "Guarantor" with respect to the Senior
Subordinated Notes as provided in the Senior Subordinated Notes
Indenture.
"Senior Subordinated Notes Indenture" shall mean the Indenture
dated as of November 15, 1995, by and among Interface, Bentley, Guilford
(Delaware), Inc., Guilford of Maine, Inc., Interface Asia-Pacific, Inc.,
Interface Europe, Inc., Interface Flooring Systems, Inc., Interface
Research Corporation, Pandel, Inc., Prince Street, Rockland React-Rite,
Inc., and First Union National Bank of Georgia, pursuant to which
Interface issued its Senior Subordinated Notes, as the same has been or
may hereafter be amended or supplemented from time to time.
"Shareholders' Equity" shall mean, with respect to any Person
as at any date of determination, shareholders' equity of such Person
determined on a consolidated basis in conformity with GAAP.
"Significant Subsidiary" shall have the same meaning as in Rule
1.02(v) of Regulation S-X under the Securities Act of 1933, as amended.
"Special Adjusted LIBO Rate" shall mean the sum of (i) the rate
obtained by dividing (A) Special LIBOR as in effect from time to time by
(B) a percentage equal to 1 minus the then stated maximum rate (stated as
a decimal) of all reserves requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves)
applicable to any member bank of the Federal Reserve System in respect of
Eurocurrency liabilities as defined in Regulation D (or against any
successor category of liabilities as defined in Regulation D), plus
(ii) if the relevant Eurocurrency Advance is in British pounds sterling,
a percentage sufficient to compensate the Multicurrency Syndicated
Lenders for the cost of complying with any reserves, liquidity and/or
special deposit requirements of the Bank of England directly or
indirectly affecting the maintenance or funding of such Advances.
"Special LIBOR" shall mean the rate of interest per annum as
determined by the Multicurrency Agent (rounded, if necessary, to the next
higher multiple of 1/16%) at which overnight or weekend deposits of the
appropriate Currency (or if such amount remains unpaid for more than
three Business Days, then for such other period of time not longer than
three months as the Multicurrency Agent may select in its absolute
discretion) for delivery in immediately available and transferable funds
would be offered by the Multicurrency Agent to major banks in the London
interbank market upon request of such major banks for the applicable
period as determined above and in an amount comparable to the
Multicurrency Agent's portion of the unpaid Obligations bearing interest
at such rate (or, if the Multicurrency Agent is not placing such deposits
in such Currency in the London interbank market, then the Multicurrency
Agent's cost of funds in such Currency for such period).
"Subordinated Debt" shall mean (i) Indebtedness outstanding
pursuant to the Senior Subordinated Notes, and (ii) other Indebtedness of
Interface subordinated to all obligations of Interface or any other
Credit Party arising under this Agreement, the Notes, and the Guaranty
Agreements on terms and conditions satisfactory in all respects to the
Co-Agents and the Required Lenders, including without limitation, with
respect to interest rates, payment terms, maturities, amortization
schedules, covenants, defaults, remedies, and subordination provisions,
as evidenced by the written approval of the Co-Agents and the Required
Lenders.
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"Subsidiary" shall mean, with respect to any Person, any
corporation or other entity (including, without limitation, partnerships,
joint ventures, and associations) regardless of its jurisdiction of
organization or formation, at least a majority of the total combined
voting power of all classes of voting stock or other ownership interests
of which shall, at the time as of which any determination is being made,
be owned by such Person, either directly or indirectly through one or
more other Subsidiaries.
"Tax Code" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to time.
"Taxes" shall mean any present or future taxes, levies,
imposts, duties, fees, assessments, deductions, withholdings or other
charges of whatever nature, including without limitation, income,
receipts, excise, property, sales, transfer, license, payroll,
withholding, social security and franchise taxes now or hereafter imposed
or levied by the United States, or any state, local or foreign government
or by any department, agency or other political subdivision or taxing
authority thereof or therein and all interest, penalties, additions to
tax and similar liabilities with respect thereto.
"Telerate" shall mean, when used in connection with any
designated page and the Certificate of Deposit Rate or LIBOR, the display
page so designated on the Dow Xxxxx Telerate Service (or such other page
as may replace that page on that service for the purpose of displaying
rates comparable to the Certificate of Deposit Rate or LIBOR).
"Term Lenders" shall mean, collectively, those Lenders
extending the Term Loans to Interface pursuant to Section 2.01(a).
"Term Loan Commitment" shall mean, at any time for any Term
Lender, the amount of such commitment set forth opposite such Lender's
name on the signature pages hereof, as the same may be increased or
decreased from time to time as a result of any repayment of the Term
Loans, any assignment thereof pursuant to Section 12.06, or any amendment
thereof pursuant to Section 12.02.
"Term Loan Final Maturity Date" shall mean the earlier of (i)
December 29, 2000, and (ii) the date on which all amounts outstanding
under this Agreement have been declared or have automatically become due
and payable pursuant to the provisions of Article X.
"Term Loans" shall mean, collectively, the term loans in the
original aggregate principal amount of $50,000,000 made to Interface by
the Term Lenders on January 9, 1995 pursuant to Section 2.01(a), to be
reduced to an aggregate principal amount outstanding of $25,000,000 on
the Closing Date.
"Term Notes" shall mean, collectively, the promissory notes
evidencing the Term Loans substantially in the form of Exhibit A and duly
completed in accordance with the terms hereof.
"Total Capitalization" shall mean the sum of Funded Debt and
Consolidated Net Worth for the Consolidated Companies.
"Total Commitment" shall mean, for any Lender at any time, the
sum of such Lender's Term Loan Commitment, Domestic Syndicated Loan
Commitment, and Multicurrency Syndicated Loan Commitment and, in the case
of the Domestic Swing Line Lender or Multicurrency Swing Line Lender, as
the case may be, its Domestic Swing Line Commitment or Multicurrency
- 31 -
Swing Line Commitment, as applicable; and "Total Commitments" shall mean,
for all Lenders at any time, the sum of the Total Commitment of all
Lenders.
"Type" of Borrowing shall mean a Borrowing consisting of Base
Rate Advances, CD Rate Advances, Euro Advances, Domestic Bid Rate
Advances, Domestic Transaction Rate Advances, Multicurrency Bid Rate
Advances, and Multicurrency Transaction Rate Advances.
Section 1.02. Accounting Terms and Determination. Unless
otherwise defined or specified herein, all accounting terms shall be
construed herein, all accounting determinations hereunder shall be made,
all financial statements required to be delivered hereunder shall be
prepared, and all financial records shall be maintained in accordance
with, GAAP, except that financial records of Foreign Subsidiaries may be
maintained in accordance with generally accepted accounting principles in
effect from time to time in the jurisdiction of organization of such
Foreign Subsidiary; provided, however, that compliance with the financial
covenants and calculations set forth in Section 8.09, Article IX, and
elsewhere herein, and in the definitions used in such covenants and
calculations, shall be calculated, made and applied in accordance with
GAAP and such generally accepted accounting principles in such foreign
jurisdictions, as the case may be, as in effect on the date of this
Agreement applied on a basis consistent with the preparation of the
financial statements referred to in Section 7.14 unless and until the
parties enter into an agreement with respect thereto in accordance with
Section 12.13; and provided, further, that for purposes of such financial
covenants and calculations, the Convertible Preferred Stock shall be
considered as capital stock of Interface and not as Funded Debt.
Section 1.03. Other Definitional Terms. The words "hereof",
"herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Article, Section, Schedule,
Exhibit and like references are to this Agreement unless otherwise
specified.
Section 1.04. Exhibits and Schedules. All Exhibits and
Schedules attached hereto are by reference made a part hereof.
ARTICLE II.
TERM LOANS
Section 2.01. Amount of Term Loans; Use of Proceeds.
(a) Subject to and upon the terms and conditions herein set
forth, each Term Lender has made to Interface on January 9, 1995, a Term
Loan in an amount equal to its Term Loan Commitment, such Term Loans to
be repaid as set forth in Section 2.02(b). On the Closing Date,
Interface agrees to repay an aggregate principal portion of the
outstanding Term Loans equal to $25,000,000, together with interest
accrued and unpaid thereon to the date of payment, and all compensation
payments, if any are due, pursuant to Section 5.12. Such payments shall
be applied as provided in Section 5.06(c) below. Interface shall not be
entitled to reborrow any amounts repaid with respect to the Term Loans.
(b) Each Term Loan shall, at the option of Interface, be made
or continued as, or converted into, part of one or more Borrowings that
shall consist entirely of Base Rate Advances, CD Rate Advances, or
Eurodollar Advances. The aggregate principal amount of each Borrowing of
Term Loans consisting of CD Rate Advances or Eurodollar Advances shall be
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not less than $1,000,000 or a greater integral multiple of $100,000, and
the aggregate principal amount of each Borrowing of Term Loans consisting
of Base Rate Advances shall not be less than $300,000 or a greater
integral multiple of $100,000. At no time shall the number of Borrowings
outstanding under the Term Loans exceed eight in either case; provided
that, for the purpose of determining the number of Borrowings outstanding
and the minimum amount for Borrowings resulting from conversions or
continuations, all Borrowings under the Term Loans comprised of Base Rate
Advances shall be considered in each case as one Borrowing.
(c) Whenever Interface desires to convert all or a portion of
an outstanding Borrowing constituting a portion of the Term Loans, which
Borrowing consists of Base Rate Advances, CD Rate Advances or Eurodollar
Advances, into one or more Borrowings consisting of Advances of another
Type, or to continue outstanding a Borrowing consisting of CD Rate
Advances or Eurodollar Advances for a new Interest Period, it shall give
the Domestic Agent at least two (2) Business Days' prior written notice
(or telephonic notice promptly confirmed in writing) of each Borrowing
being converted into or continued as CD Rate Advances, and at least three
(3) Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing to be converted into or continued
as Eurodollar Advances. Such notice (a "Notice of Term Loan
Conversion/Continuation") shall be given prior to 11:00 a.m. (Eastern
time) on the date specified. Each such Notice of Term Loan
Conversion/Continuation shall be irrevocable and shall specify the
aggregate principal amount of the Advances to be converted or continued,
the date of such conversion or continuation, whether the Advances are
being converted into or continued as CD Rate Advances or Eurodollar
Advances and (in the case of Fixed Rate Advances) the Interest Period
applicable thereto. If, upon the expiration of any Interest Period in
respect of any Borrowing, Interface shall have failed, or pursuant to the
following sentence be unable, to deliver the Notice of Term Loan
Conversion/Continuation, Interface shall be deemed to have elected to
convert or continue such Borrowing to a Borrowing consisting of Base
Rate Advances. So long as any Default or Event of Default shall have
occurred and be continuing, no Borrowing may be converted into or
continued as (upon expiration of the current Interest Period) Fixed Rate
Advances. No conversion of any Borrowing of Fixed Rate Advances shall be
permitted except on the last day of the Interest Period in respect
thereof.
Section 2.02. Notes; Repayment of Principal.
(a) Interface's obligations to pay the principal of, and
interest on, the Term Loans to each Term Lender shall be evidenced by the
records of the Domestic Agent and such Term Lender and by the respective
Term Note payable to such Term Lender (or the assignor of such Term
Lender) completed in conformity with this Agreement.
(b) Interface shall repay in full all Term Loans outstanding
after the Closing Date, if not sooner paid, on the Term Loan Final
Maturity Date.
Section 2.03. Mandatory Prepayments.
(a) No mandatory prepayment shall be required pursuant to this
Section 2.03(a) until the aggregate amount of Asset Sales occurring after
October 2, 1994 exceeds $10,000,000 (based on the Asset Values thereof,
but excluding in the foregoing computation (i) Asset Sales resulting from
loss, damage, destruction, or taking where the proceeds thereof are
utilized so as to be excluded from the definition of Net Proceeds, and
- 33 -
(ii) Asset Sales occurring as a part of any sale and leaseback
transactions permitted pursuant to Section 9.06). Whenever such Asset
Values shall have equaled or exceeded such amount, the following
prepayments shall be required to be made:
(i) Within ten (10) Business Days after each date on
which any Consolidated Company receives any Net Proceeds
as a result of or in connection with an Asset Sale by any
Consolidated Company, the Term Loans outstanding under
Section 2.01 and the 1997 Term Loans shall be prepaid on a
pro rata basis by an amount equal to forty percent (40%)
of such Net Proceeds (such amount being subject to
adjustment pursuant to paragraph (c) of this Section 2.03)
plus interest accrued and unpaid on the amount of such
prepayment. If immediately prior to any Asset Sale the
aggregate amount of prior Asset Sales (determined as
aforesaid) is less than $10,000,000, but such Asset Sale
causes the $10,000,000 threshold amount to be exceeded,
then forty percent (40%) of a pro rata portion of the Net
Proceeds of such Asset Sale, based upon the ratio of the
amount of the Asset Value of such Asset Sale in excess of
the $10,000,000 threshold to the total Asset Value of such
Asset Sale, shall be applied as set forth in the preceding
sentence; and
(ii) If, within fourteen (14) months following an
Asset Sale described in the preceding clause (i), the
remaining sixty percent (60%) of such Net Proceeds, or pro
rata portion thereof, has neither been (x) invested in
properties and assets that replace the properties and
assets that were the subject of such Asset Sale, or in
properties and assets that will be used in the businesses
of Interface and its Subsidiaries existing on November 1,
1995 or in businesses reasonably related thereto, or
(y) used to prepay the Term Loans outstanding under
Section 2.01 and the 1997 Term Loans or, if the Term Loans
and the 1997 Term Loans have been paid in full, to prepay
the outstanding Domestic Revolving Loans and Multicurrency
Revolving Loans and permanently reduce the Domestic
Syndicated Loan Commitments and Multicurrency Syndicated
Loan Commitments as provided in Section 3.03(b) and
Section 4.03(c), then Interface shall promptly prepay any
and all such remaining amounts (such amounts being subject
to adjustment pursuant to paragraph (c) of this Section
2.03) not so invested or previously prepaid and such
amounts shall be applied as provided in this Section
2.03(a) and/or in Section 3.03(b) and Section 4.03(c) with
the permanent reductions in commitments as provided
therein.
Notwithstanding the foregoing, if all or substantially all of the assets
of any Senior Subordinated Notes Guarantor that is a Significant
Subsidiary, or all of the capital stock of any Senior Subordinated Notes
Guarantor that is a Significant Subsidiary, is sold (including by
issuance or otherwise) by Interface or any of its Subsidiaries to any
Person other than Interface or its wholly owned Subsidiaries, then the
entire amount of the Net Proceeds from such transaction shall immediately
be used to prepay the Term Loans and the 1997 Term Loans on a pro rata
basis, or, if the Term Loans and the 1997 Term Loans have been paid in
full, to prepay the outstanding Domestic Revolving Loans and
Multicurrency Revolving Loans and permanently reduce the Domestic
Syndicated Loan Commitments and Multicurrency Syndicated Loan Commitments
as provided in Section 3.03(b) and Section 4.03(c).
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All such prepayments under this Section 2.03(a) shall be
applied in each case against all remaining scheduled amortization
payments on a pro rata basis, without prejudice, however, to the
provisions of Section 2.03(c). Notwithstanding the limitations on
reductions of the Domestic Syndicated Loan Commitments and Multicurrency
Syndicated Loan Commitments in Section 3.03(b) and Section 4.03(c),
respectively, any reductions in such commitments otherwise required by
this Section 2.03(a) shall be made regardless of whether, after giving
effect to such reductions, such commitments would be less than
$135,000,000 in the aggregate.
(b) On the date Interface delivers its annual financial
statements pursuant to Section 8.07(a), but in no event later than the
date that occurs one hundred twenty (120) days after the last day of each
fiscal year of Interface, the Term Loans outstanding under Section 2.01
and the 1997 Term Loans shall be prepaid on a pro rata basis by an amount
equal to 25% of the Excess Cash Flow, if any, for such fiscal year (such
amount being subject to adjustment pursuant to paragraph (c) of this
Section 2.03) plus interest accrued and unpaid on the amount of such
prepayment. Such prepayment shall be applied in each case to principal
installment payments of the Term Loans and the 1997 Term Loans in the
inverse order of their respective maturities, without prejudice, however,
to the provisions of Section 2.03(c).
(c) Notwithstanding the provisions of paragraphs (a) and (b)
of this Section 2.03, (i) no mandatory prepayment shall be required to be
made under paragraph (a) or (b) of this Section 2.03 if the amount under
paragraph (a) or (b) (including any amount required to be prepaid in
respect of the 1997 Term Loans) is less than $100,000 in any instance,
and (ii) mandatory prepayment amounts otherwise required under said
paragraphs (a) and (b) (including any amount required to be prepaid in
respect of the 1997 Term Loans) shall be rounded to nearest multiple of
$100,000 (such that, for example, if the portion of Net Proceeds required
to be prepaid pursuant to paragraph (a) is $250,000 or more, but less
than $350,000, the mandatory prepayment amount under this Section 2.03
shall equal $300,000 plus interest accrued and unpaid on such amount).
(d) Each mandatory prepayment of Term Loans and 1997 Term
Loans pursuant to this Section 2.03 shall be applied on a pro rata basis
first to Base Rate Advances outstanding under each such series of Term
Loans to the full extent thereof before application to Fixed Rate
Advances outstanding under such series; provided, however, that, so long
as no Default or Event of Default has occurred and is continuing, in lieu
of application of such prepayment to Fixed Rate Advances prior to the
expiration of the respective Interest Periods with respect thereto,
Interface, at its option, may execute an Escrow Letter with respect to
such prepayments and deposit with the Collateral Agent funds equal to
such prepayments for application in accordance with the terms of such
Escrow Letter.
ARTICLE III.
DOMESTIC REVOLVING LOANS
Section 3.01. Description of Domestic Revolving Credit
Facilities. Subject to and upon the terms and conditions herein set
forth (i) the Domestic Syndicated Lenders hereby establish in favor of
Interface a revolving credit facility pursuant to which such Domestic
Syndicated Lenders agree to make Domestic Syndicated Loans to Interface
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in accordance with Section 3.02, (ii) the Domestic Swing Line Lender
hereby establishes in favor of Interface a swing line credit facility
pursuant to which the Domestic Swing Line Lender agrees to make Domestic
Swing Line Loans to Interface in accordance with Section 3.05, and (iii)
each Domestic Syndicated Lender may, in its sole discretion, submit bids
to make Domestic Bid Rate Loans to Interface in accordance with Section
3.06; provided, however, that in no event may the aggregate principal
amount of all outstanding Domestic Revolving Loans and the Aggregate L/C
Outstandings exceed at any time the total Domestic Syndicated Loan
Commitments from time to time in effect.
Section 3.02. Domestic Syndicated Loans.
(a) Subject to and upon the terms and conditions herein set
forth (including the limitation set forth in Section 3.01), each Domestic
Syndicated Lender severally agrees to make to Interface, from time to
time prior to the Revolver/Multicurrency Maturity Date, Domestic
Syndicated Loans in an aggregate principal amount outstanding at any time
not to exceed an amount equal to (i) such Domestic Syndicated Lender's
Domestic Syndicated Loan Commitment, minus (ii) such Domestic Syndicated
Lender's L/C Exposure. Interface shall be entitled to repay and reborrow
Domestic Syndicated Loans in accordance with the provisions, and subject
to the limitations, set forth herein (including the limitation set forth
in Section 3.01).
(b) Each Domestic Syndicated Loan shall, at the option of
Interface, be made or continued as, or converted into, part of one or
more Borrowings that shall consist entirely of Base Rate Advances, CD
Rate Advances, or Eurodollar Advances. The aggregate principal amount of
each Borrowing of Domestic Syndicated Loans shall be not less than
$1,000,000 or a greater integral multiple of $100,000, provided that each
Borrowing of Domestic Syndicated Loans comprised of Base Rate Advances
shall be not less than $250,000 or a greater integral multiple of $1000,
except to the extent otherwise provided with respect to Domestic
Syndicated Loans made pursuant to Section 3.02(c)(2). At no time shall
the total number of Borrowings outstanding under this Section 3.02 and
Section 3.06 exceed eight; provided that, for purposes of determining the
number of Borrowings outstanding and the minimum amount for Borrowings
resulting from conversions or continuations, all Borrowings of Base Rate
Advances under this Section 3.02 shall be considered as one Borrowing.
(c) (1) Whenever Interface desires to make a Domestic
Syndicated Borrowing (other than one resulting from a
conversion or continuation pursuant to Section 3.02(e)), it
shall give the Domestic Agent prior written notice (or
telephonic notice promptly confirmed in writing) of such
Domestic Syndicated Borrowing (each a "Domestic Syndicated
Borrowing Notice") prior to 11:00 a.m. (Eastern time) at its
Payment Office (i) one Business Day prior to the requested date
of such Domestic Syndicated Borrowing in the case of Base Rate
Advances, (ii) two Business Days prior to the requested date of
such Domestic Syndicated Borrowing in the case of CD Rate
Advances, and (iii) three Business Days prior to the requested
date of such Domestic Syndicated Borrowing in the case of
Eurodollar Advances. Notices received after 11:00 a.m.
(Eastern time) shall be deemed received on the next Business
Day. Each Domestic Syndicated Borrowing Notice shall be
irrevocable and shall specify the aggregate principal amount of
the Domestic Syndicated Borrowing, the date of the Domestic
Syndicated Borrowing (which shall be a Business Day), and
whether the Domestic Syndicated Borrowing is to be made as a
Base Rate Advance, CD Rate Advance or Eurodollar Advance and,
in the case of a CD Rate Advance or Eurodollar Advance, the
Interest Period to be applicable thereto.
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(2) Whenever there occurs any request or demand for
payment under any Letter of Credit by the beneficiary thereof,
and Interface shall not have notified the Domestic Agent and
the L/C Issuer prior to 11:00 a.m. (Eastern time) on the
Business Day immediately prior to the date on which such
drawing is to be honored that the L/C Account Party or
Interface, on behalf of such L/C Account Party, intends to
reimburse the L/C Issuer for the amount of such drawing with
funds other than the proceeds of Domestic Syndicated Loans, (i)
Interface shall be deemed to have given a Domestic Syndicated
Borrowing Notice to the Domestic Agent requesting a Domestic
Syndicated Borrowing consisting of Base Rate Loans on the date
on which such drawing is to be honored in an amount equal to
the amount of such drawing, and (ii) each Domestic Syndicated
Lender shall, by 1:00 p.m. (Eastern time) on the date of the
honoring of such drawing, make a Domestic Syndicated Loan to
Interface which is a Base Rate Loan in an amount equal to the
product of the amount of such drawing and such Domestic
Syndicated Lender's Pro Rata Share, the proceeds of which shall
be applied directly by the Domestic Agent to reimburse the L/C
Issuer for the amount of such drawing (provided that, solely
for purposes of such Domestic Syndicated Borrowing, the
conditions precedent set forth in Section 6.03 shall not be
applicable to such Domestic Syndicated Borrowing).
(d) No later than 11:00 a.m. (Eastern time) on the date of
each Domestic Syndicated Borrowing (other than one resulting from a
conversion or continuation pursuant to Section 3.02(e)), each Domestic
Syndicated Lender will make available its Pro Rata Share of the amount of
such Domestic Syndicated Borrowing in immediately available funds at the
Payment Office of the Domestic Agent. The Domestic Agent will make
available to Interface the aggregate of the amounts (if any) so made
available by the Domestic Syndicated Lenders to the Domestic Agent in a
timely manner by crediting such amounts to Interface's demand deposit
account maintained with the Domestic Agent. If any Domestic Syndicated
Lender does not make such amount available to the Domestic Agent by the
time prescribed above, but such amount is received later that day, such
amount may be credited to Interface in the manner described in the
preceding sentence on the next Business Day (with interest on such amount
to begin accruing hereunder on such next Business Day).
(e) Whenever Interface desires to convert all or a portion of
an outstanding Domestic Syndicated Borrowing made as a Base Rate Advance,
CD Rate Advance or Eurodollar Advance into one or more Domestic
Syndicated Borrowings consisting of an Advance of another Type, or to
continue outstanding a Domestic Syndicated Borrowing made as a CD Rate
Advance or Eurodollar Advance for a new Interest Period, it shall give
the Domestic Agent at least two (2) Business Days' prior written notice
(or telephonic notice promptly confirmed in writing) of each such
Domestic Syndicated Borrowing being converted into or continued as a CD
Rate Advance, and at least three (3) Business Days' prior written notice
(or telephonic notice promptly confirmed in writing) of each such
Domestic Syndicated Borrowing to be converted into or continued as a
Eurodollar Advance. Such notice (each a "Notice of Domestic
Conversion/Continuation") shall be given prior to 11:00 a.m. (Eastern
time) on the date specified. Each such Notice of Domestic
Conversion/Continuation shall be irrevocable and shall specify the
aggregate principal amount of the Advance to be converted or continued,
the date of such conversion or continuation, whether the Advance is being
converted into or continued as a CD Rate Advance or Eurodollar Advance
- 37 -
and (in the case of a CD Rate Advance or a Eurodollar Advance) the
Interest Period to be applicable thereto. If, upon the expiration of any
Interest Period in respect of any Domestic Syndicated Borrowing,
Interface shall have failed, or pursuant to the following sentence be
unable, to deliver the Notice of Domestic Conversion/Continuation,
Interface shall be deemed to have elected to convert or continue such
Domestic Syndicated Borrowing to a Domestic Syndicated Borrowing made as
a Base Rate Advance. So long as any Default or Event of Default shall
have occurred and be continuing, no Domestic Syndicated Borrowing may be
converted into or continued as (upon expiration of the current Interest
Period) a Fixed Rate Advance. No conversion of any Domestic Syndicated
Borrowing made as a Fixed Rate Advance shall be permitted except on the
last day of the Interest Period in respect thereof.
(f) Interface's obligations to pay the principal of, and
interest on, the Domestic Syndicated Loans to each Domestic Syndicated
Lender shall be evidenced by the records of the Domestic Agent and such
Domestic Syndicated Lender and by the Domestic Syndicated Note payable to
such Domestic Syndicated Lender (or the assignor of such Domestic
Syndicated Lender) completed in conformity with this Agreement.
(g) All outstanding principal amounts under the Domestic
Syndicated Loans shall be due and payable in full on the
Revolver/Multicurrency Maturity Date.
Section 3.03. Reductions of Domestic Syndicated Loan
Commitments.
(a) Upon at least three Business Days' prior telephonic notice
(promptly confirmed in writing) to the Domestic Agent, Interface shall
have the right, without premium or penalty, to terminate the Domestic
Syndicated Loan Commitments, in part or in whole, provided that (i) any
such termination shall apply to proportionately and permanently reduce
the Domestic Syndicated Loan Commitments of each of the Domestic
Syndicated Lenders, (ii) any partial termination pursuant to this Section
3.03 shall be in an amount of at least $1,000,000 and integral multiples
of $100,000, and (iii) no such reduction shall be permitted which would
(x) require a prepayment that is not permitted by Section 5.06, or (y)
reduce the Domestic Syndicated Loan Commitments to an amount less than
the sum of (A) the Aggregate L/C Outstandings and (B) the aggregate
principal amount outstanding under the Domestic Revolving Loans.
(b) If any mandatory prepayment shall be due with respect to
the Term Loans pursuant to Section 2.03, but such prepayment cannot be
applied, or an escrow for such prepayment is established as provided in
Section 2.03(d) for application, against the Term Loans, in whole or in
part, because the Term Loans have been, or are then being, paid
(currently or pursuant to such escrow arrangement) in full, then the
Domestic Syndicated Loan Commitments and the Multicurrency Syndicated
Loan Commitments shall automatically and ratably be reduced by an amount
equal to such prepayment or portion thereof which cannot be so applied;
provided, however, that no such reduction pursuant to this Section
3.03(b) shall be required to the extent that the Domestic Syndicated Loan
Commitments and the Multicurrency Syndicated Loan Commitments would be
less than $135,000,000 in the aggregate. Any such reduction of the
Domestic Syndicated Loan Commitments and the Multicurrency Syndicated
Loan Commitments shall apply as a proportional and permanent reduction
with respect to the Domestic Syndicated Loan Commitments and the
Multicurrency Syndicated Loan Commitments of each of the Domestic
Syndicated Lenders and Multicurrency Syndicated Lenders, respectively.
Section 3.04. Mandatory Prepayments of Domestic Revolving
Loans. If the aggregate outstanding principal amount of the Domestic
Revolving Loans and the Aggregate L/C Outstandings exceed at any time the
- 38 -
amount of the Domestic Syndicated Loan Commitments, as reduced pursuant
to Section 3.03 or otherwise, Interface shall immediately repay the
Domestic Revolving Loans by an amount equal to such excess, together with
all accrued but unpaid interest on such excess amount. Each prepayment
of Domestic Revolving Loans shall be applied first to Base Rate Advances
to the full extent thereof before application to Fixed Rate Advances;
provided, however, that so long as no Default or Event of Default has
occurred and is continuing, in lieu of application of such prepayment to
Fixed Rate Advances prior to the expiration of the respective Interest
Periods with respect thereto, Interface, at its option, may execute an
Escrow Letter with respect to such prepayment and deposit with the
Collateral Agent funds equal to the amount of such prepayment for
application in accordance with the terms of such Escrow Letter.
Section 3.05. Domestic Swing Line Loans.
(a) Subject to and upon the terms and conditions herein set
forth (including the limitation set forth in Section 3.01), the Domestic
Swing Line Lender agrees to make to Interface, from time to time prior to
the Revolver/Multicurrency Maturity Date, Domestic Swing Line Loans in an
aggregate principal amount outstanding at any time not to exceed the
Domestic Swing Line Commitment then in effect. Interface shall be
entitled to repay and reborrow Domestic Swing Line Loans in accordance
with the provisions, and subject to the limitations, set forth herein
(including the limitation set forth in Section 3.01).
(b) Each Domestic Swing Line Loan shall, at the option of
Interface, be made as a Base Rate Advance or Domestic Transaction Rate
Advance. The aggregate principal amount of each Domestic Swing Line
Borrowing shall be not less than $250,000 or a greater integral multiple
of $1,000. At no time shall the number of Domestic Swing Line Borrowings
outstanding under this Section 3.05 exceed three; provided that, for
purposes of determining the number of Domestic Swing Line Borrowings
outstanding, all Domestic Swing Line Borrowings consisting of Base Rate
Advances shall be considered as one Domestic Swing Line Borrowing.
(c) Whenever Interface desires to make a Domestic Swing Line
Borrowing, it shall give the Domestic Swing Line Lender (with a copy to
the Domestic Agent) prior written notice (or telephonic notice promptly
confirmed in writing) of such Domestic Swing Line Borrowing (each a
"Domestic Swing Line Borrowing Notice") prior to 10:00 a.m. (Eastern
time) on the date of such Domestic Swing Line Borrowing. Each Domestic
Swing Line Borrowing Notice shall specify the aggregate principal amount
of the Domestic Swing Line Borrowing, the date of such Domestic Swing
Line Borrowing (which shall be a Business Day), whether a Domestic
Transaction Rate Quote is being requested and, if so, the Interest Period
to be applicable thereto. If Interface requests a Domestic Transaction
Rate Quote as aforesaid, then prior to 12:00 noon (Eastern time) on such
date, the Domestic Swing Line Lender shall furnish Interface (with a copy
to the Domestic Agent) with a quotation of the interest rate being
offered with respect to such Domestic Swing Line Borrowing (whether
expressed as a fixed rate of interest in effect for the Interest Period
applicable thereto or as a floating rate of interest based on a specified
interest rate index and applicable margin for the Interest Period to be
applicable thereto; in either case, a "Domestic Transaction Rate Quote")
by telephone (promptly confirmed in writing) or by facsimile
transmission. Interface shall immediately inform the Domestic Swing Line
Lender (with a copy to the Domestic Agent) of its decision as to whether
to accept the Domestic Transaction Rate Quote and to confirm the Domestic
Swing Line Borrowing (which may be done by telephone, promptly confirmed
in writing, and which decision shall be irrevocable). If Interface has
- 39 -
so informed the Domestic Swing Line Lender and confirmed the terms of the
Domestic Swing Line Borrowing, then no later than 2:00 p.m. (Eastern
time) on such date, the Domestic Swing Line Lender shall make the
principal amount of the Domestic Swing Line Loan available to the
Domestic Agent in immediately available funds at the Payment Office of
the Domestic Agent, and the Domestic Agent will make available to
Interface such amount by crediting such amount to Interface's demand
deposit account maintained with the Domestic Agent. In the event that
the Domestic Swing Line Lender does not make such amount available to the
Domestic Agent at the time prescribed above, but such amount is received
later that day, such amount may be credited to Interface in the manner
described in the preceding sentence on the next Business Day (with
interest on such amount to begin accruing hereunder on such next Business
Day).
(d) Interface's obligations to pay the principal of, and
interest on, the Domestic Swing Line Loans shall be evidenced by the
records of the Domestic Agent and the Domestic Swing Line Lender and by
the Domestic Swing Line Note payable to the Domestic Swing Line Lender
(or the assignor of such Domestic Swing Line Lender) completed in
conformity with this Agreement.
(e) The outstanding principal amount under each Domestic Swing
Line Loan shall be due and payable in full (i) on the expiration of the
Interest Period applicable to such Domestic Swing Line Loan if
outstanding as a Domestic Transaction Rate Advance, and (ii) on the
Revolver/Multicurrency Maturity Date.
(f) At any time on the request of the Domestic Swing
Line Lender, each Domestic Syndicated Lender other than the
Domestic Swing Line Lender shall purchase a participating
interest in all outstanding Domestic Swing Line Loans in an
amount equal to its Pro Rata Share (based upon on its respective
Domestic Syndicated Loan Commitment) of such Domestic Swing Line
Loans, and the Domestic Swing Line Lender shall furnish each
Domestic Syndicated Lender with a certificate evidencing such
participating interest. Such purchase shall be made on the third
Business Day after such request is made; provided, however, that
unless an Event of Default has occurred and is continuing on the
date such request is made, the purchase of a participating
interest in any Domestic Swing Line Loan outstanding as a
Domestic Transaction Rate Advance shall not be required to be
made until the expiration of the current Interest Period in
effect for such Domestic Swing Line Loan. On the date of such
required purchase, each Domestic Syndicated Lender will
immediately transfer to the Domestic Swing Line Lender, in
immediately available funds, the amount of its participation.
Whenever, at any time after the Domestic Swing Line Lender has
received from any such Domestic Syndicated Lender the funds for
its participating interest in a Domestic Swing Line Loan, the
Domestic Agent receives any payment on account thereof, the
Domestic Agent will distribute to such Domestic Syndicated Lender
its participating interest in such amount (appropriately
adjusted, in the case of interest payments, to reflect the period
of time during which such Domestic Syndicated Lender's
participating interest was outstanding and funded); provided,
however, that if such payment received by the Domestic Agent is
required to be returned, such Domestic Syndicated Lender will
return to the Domestic Agent any portion thereof previously
distributed by the Domestic Agent to it. Each Domestic
Syndicated Lender's obligation to purchase such participating
interests shall be absolute and unconditional and shall not be
affected by any circumstance, including without limitation (i)
any setoff, counterclaim, recoupment, defense or other right that
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such Domestic Syndicated Lender or any other Person may have
against the Domestic Swing Line Lender requesting such purchase
or any other Person for any reason whatsoever, (ii) the
occurrence or continuation of a Default or an Event of Default or
the termination of any of the Commitments, (iii) any adverse
change in the condition (financial or otherwise) of Interface,
any of its Consolidated Subsidiaries, or any other Person, (iv)
any breach of this Agreement by Interface, any other Borrower, or
any other Lender, or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing;
provided, however, that no such obligation shall exist (A) to the
extent that the aggregate Domestic Swing Line Loans were advanced
in excess of the Domestic Swing Line Commitment then in effect,
or (B) with respect to any Domestic Swing Line Loan where the
Domestic Swing Line Lender actually advanced to Interface net
proceeds from the Domestic Swing Line Loan (and therefore was not
refunding a previous Domestic Swing Line Loan) at a time when (x)
the Domestic Swing Line Lender had actual knowledge that an Event
of Default had occurred and then existed, and (y) the Required
Lenders had not agreed to waive such Event of Default for
purposes of funding such Domestic Swing Line Loan.
Section 3.06. Domestic Bid Rate Loans.
(a) Subject to and upon the terms and conditions
herein set forth (including the limitation set forth in Section
3.01), Interface may, as set forth in this Section 3.06, request
the Domestic Syndicated Lenders, from time to time prior to the
Revolver/Multicurrency Maturity Date, to make offers to make
Domestic Bid Rate Loans to Interface. Each Domestic Syndicated
Lender may, but shall have no obligation to, make such offers and
Interface may, but shall have no obligation to, accept any such
offers in the manner set forth in this Section 3.06. Interface
shall be entitled to repay and reborrow Domestic Bid Rate Loans
in accordance with the provisions, and subject to the limitations
set forth herein (including the limitation set forth in Section
3.01).
(b) The aggregate principal amount of each Domestic
Bid Rate Borrowing requested by Interface shall be in a principal
amount not less than $5,000,000 or a greater integral multiple of
$1,000,000. At no time shall the number of Borrowings
outstanding under this Section 3.06 and Section 3.02 exceed
eight.
(c) Domestic Bid Rate Loans may be made to Interface
in accordance with the procedures set forth in this Section
3.06(c).
(1) Whenever Interface wishes to request
offers to make Domestic Bid Rate Loans under this
Section 3.06, Interface shall transmit to the
Domestic Agent by facsimile transmission a request
for such offers (each a "Domestic Bid Rate Quote
Request") so as to be received by the Domestic
Agent not later than 10:00 a.m. (Eastern time) on
the third Business Day immediately preceding the
date of the proposed Domestic Bid Rate Borrowing,
specifying (i) the date of the Domestic Bid Rate
Borrowing (which shall be a Business Day), (ii)
the aggregate principal amount of the Domestic Bid
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Rate Borrowing, and (iii) the Interest Period to
be applicable thereto. Interface may request
offers to make Domestic Bid Rate Loans for more
than one Interest Period in a single Domestic Bid
Rate Quote Request. A Domestic Bid Rate Quote
Request that does not conform substantially to
the format of Exhibit O hereto shall be rejected,
and the Domestic Agent shall promptly notify
Interface of such rejection by facsimile
transmission. No Domestic Bid Rate Quote Request
shall be given within ten Business Days after any
other Domestic Bid Rate Quote Request has been
transmitted to the Domestic Syndicated Lenders
pursuant to Section 3.06(c)(2).
(2) Promptly upon receipt of a Domestic Bid
Rate Quote Request that is not rejected pursuant
to Section 3.06(c)(1), the Domestic Agent shall
transmit to each of the Domestic Syndicated
Lenders by facsimile transmission an invitation by
Interface to each Domestic Syndicated Lender to
submit Domestic Bid Rate Quotes offering to make
Domestic Bid Rate Loans in accordance with this
Section 3.06 (each an "Invitation for Domestic Bid
Rate Quotes") substantially in the form of
Exhibit P hereto.
(3) Each Domestic Syndicated Lender may, in
its sole discretion, submit a Domestic Bid Rate
Quote containing an offer or offers to make
Domestic Bid Rate Loans in response to any
Invitation for Domestic Bid Rate Quotes in
accordance with the following procedures:
(A) Each Domestic Bid Rate Quote must
comply with the requirements of this Section
3.06(c)(3) and must be submitted to the
Domestic Agent by facsimile transmission at
its offices specified herein not later than
(x) 9:45 a.m. (Eastern time) in the case of
the Domestic Agent, and (y) 10:00 a.m.
(Eastern time) in the case of each other
Domestic Syndicated Lender, on the second
Business Day immediately preceding the date
of the proposed Domestic Bid Rate Borrowing
or, in any such case upon reasonable prior
notice to the Domestic Syndicated Lenders,
such other time and date as Interface and the
Domestic Agent may agree, provided that the
Domestic Agent shall always be required to
submit its Domestic Bid Rate Quotes not less
than 15 minutes prior to the other Domestic
Syndicated Lenders). Subject to Articles VI
and X, any Domestic Bid Rate Quotes so made
shall be irrevocable except with the written
consent of the Domestic Agent given on the
instructions of Interface.
(B) Each Domestic Bid Rate Quote shall
in any case specify (i) the date of the
proposed Domestic Bid Rate Borrowing, which
shall be the same as that set forth in the
applicable Invitation for Domestic Bid Rate
Quotes, (ii) the principal amount of the
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Domestic Bid Rate Loan for which each such
offer is being made, which principal amount
(x) may be greater than, less than or equal
to the Domestic Syndicated Loan Commitment of
the quoting Domestic Syndicated Lender, and
(y) may not exceed the principal amount of
Domestic Bid Rate Loans for which offers were
requested, (iii) the minimum or maximum
amount, if any, of the Domestic Bid Rate Loan
which may be accepted by Interface, (iv) the
applicable Interest Period, and (v) the
identity of the quoting Domestic Syndicated
Lender.
(C) The Domestic Agent shall reject any
Domestic Bid Rate Quote that (i) is not
substantially in the form of Exhibit Q hereto
or does not specify all of the information
required by Section 3.06(c)(3)(B), (ii)
contains qualifying, conditional or similar
language, other than any such language
contained in Exhibit Q hereto, (iii) proposes
terms other than or in addition to those set
forth in the applicable Invitation for
Domestic Bid Rate Quotes, or (iv) arrives
after the time set forth in Section
3.06(c)(3)(A).
(D) If any Domestic Bid Rate Quote
shall be rejected pursuant to Section
3.06(c)(3)(C), then the Domestic Agent shall
notify the relevant Domestic Syndicated
Lender of such rejection as soon as
practicable.
If any Domestic Syndicated Lender shall elect not
to submit a Domestic Bid Rate Quote, such Domestic
Bid Rate Lender shall so notify the Domestic Agent
not later than 10:00 a.m. (Eastern time) on the
second Business Day immediately preceding the date
of the proposed Domestic Bid Rate Borrowing, and
such Domestic Syndicated Lender shall not be
obligated to, and shall not, make any Domestic Bid
Rate Loan as part of such Domestic Bid Rate
Borrowing; provided, however, that the failure of
any Domestic Syndicated Lender to give such notice
shall not cause it to be obligated to make any
Domestic Bid Rate Loan as part of such Borrowing.
(4) Subject to its timely receipt of one or
more Domestic Bid Rate Quotes in the manner
described in Section 3.06(c)(3), the Domestic
Agent shall notify Interface as soon as
practicable (but in any event using reasonable
efforts to effect such notice prior to 10:45 a.m.
(Eastern time) on the second Business Day
immediately preceding the date of the proposed
Domestic Bid Rate Borrowing) as to the terms (i)
of any Domestic Bid Rate Quote submitted by a
Domestic Syndicated Lender that is in accordance
with Section 3.06(c) and (ii) of any Domestic Bid
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Rate Quote that is in accordance with Section
3.06(c) and amends, modifies or is otherwise
inconsistent with a previous Domestic Bid Rate
Quote submitted by such Domestic Syndicated Lender
with respect to the same Domestic Bid Rate Quote
Request. Any such subsequent Domestic Bid Rate
Quote shall be disregarded by the Domestic Agent
unless such subsequent Domestic Bid Rate Quote
specifically states that it is submitted solely to
correct a manifest error in such previous Domestic
Bid Rate Quote. The Domestic Agent's notice to
Interface shall specify the aggregate principal
amount of Domestic Bid Rate Loans for which offers
have been received for each Interest Period
specified in the related Domestic Bid Rate Quote
Request and the respective principal amounts and
Domestic Bid Rates, as the case may be, so
offered.
(5) Subject to receipt of the notice from
the Domestic Agent referred to in Section
3.06(c)(4), not later than 11:00 a.m. (Eastern
time) on the second Business Day immediately
preceding the date of the proposed Domestic Bid
Rate Borrowing, Interface shall notify the
Domestic Agent of Interface's acceptance or
rejection of the offer so notified to it pursuant
to Section 3.06(c)(4); provided, however, that the
failure by Interface to give such notice to the
Domestic Agent shall be deemed to be a rejection
by Interface of all such offers. In the case of
acceptance, such notice (each a "Domestic Bid Rate
Acceptance Notice") shall specify the aggregate
principal amount of offers for each Interest
Period that are accepted. Interface may accept or
reject any Domestic Bid Rate Quote in whole or in
part (subject to the terms of Section 3.06(b);
provided that (i) the aggregate principal amount
of each Domestic Bid Rate Advance may not exceed
the applicable amount set forth in the related
Domestic Bid Rate Quote Request, (ii) acceptance
of offers may only be made in the order of
ascending Domestic Bid Rates, (iii) Interface may
not accept any offer of the type described in
Section 3.06(c)(3)(C) or that otherwise fails to
comply with the requirements of this Agreement for
the purpose of obtaining a Domestic Bid Rate Loan
under this Agreement, and (iv) any such acceptance
by Interface shall constitute its irrevocable
request to borrow the aggregate principal amount
so accepted.
(6) If offers are made by two or more
Domestic Syndicated Lenders with the same Domestic
Bid Rates for a greater aggregate principal amount
than the amount in respect of which offers are
permitted to be accepted for the related Interest
Period, the principal amount of Domestic Bid Rate
Loans in respect of which such offers are accepted
shall be allocated by the Domestic Agent among
such Domestic Syndicated Lenders as nearly as
possible (in such multiples as the Domestic Agent
may deem appropriate) in proportion to the
aggregate principal amount of such offers;
- 44 -
provided, however, that no Domestic Syndicated
Lender shall be allocated a portion of any
Domestic Bid Rate Advance which is less than the
minimum amount which such Domestic Syndicated
Lender has indicated that it is willing to accept.
Allocations by the Domestic Agent of the amounts
of Domestic Bid Rate Loans shall be conclusive in
the absence of manifest error. The Domestic Agent
shall promptly, but in any event by 12:00 noon
(Eastern time) on the second Business Day
immediately preceding the date of the proposed
Domestic Bid Rate Borrowing, notify each Domestic
Syndicated Lender of its receipt of a Domestic Bid
Rate Acceptance Notice and the aggregate principal
amount of each Domestic Bid Rate Advance allocated
to each participating Domestic Syndicated Lender.
(d) No later than 1:00 p.m. (Eastern time) on the date
of each Domestic Bid Rate Borrowing, each Domestic Bid Rate
Lender participating in such Borrowing will make available its
portion of such Borrowing in immediately available funds at the
Payment Office of the Domestic Agent. The Domestic Agent will
make available to Interface the aggregate of the amounts (if any)
so made available by the Domestic Bid Rate Lenders to the
Domestic Agent in a timely manner by crediting such amounts to
Interface's demand deposit account maintained with the Domestic
Agent. In the event that the Domestic Bid Rate Lenders do not
make such amounts available to the Domestic Agent by the time
prescribed above, but such amount is received later that day,
such amount may be credited to Interface in the manner described
in the preceding sentence on the next Business Day (with interest
on such amount to begin accruing hereunder on such next Business
Day).
(e) Interface's obligations to pay the principal of,
and interest on, the Domestic Bid Rate Loans to each Domestic Bid
Rate Lender shall be evidenced by the records of the Domestic
Agent and such Domestic Bid Rate Lender and by the Domestic Bid
Rate Note payable to such Domestic Bid Rate Lender (or the
assignor of such Domestic Bid Rate Lender) completed in
conformity with this Agreement.
(f) All outstanding principal amounts under each
Domestic Bid Rate Loan shall be due and payable in full (i) on
the expiration of the Interest Period applicable to such Domestic
Bid Rate Loan, and (ii) on the Revolver/Multicurrency Maturity
Date.
Section 3.07. Use of Proceeds. The proceeds of the
Domestic Syndicated Loans, Domestic Swing Line Loans, and
Domestic Bid Rate Loans shall be used as working capital and for
other general corporate purposes of Interface and its
Consolidated Subsidiaries.
Section 3.08. Reduction in Domestic Syndicated
Loan Commitments on the Closing Date.
(a) On the Closing Date, the aggregate Domestic
Syndicated Loan Commitments of the Lenders shall be reduced from
$190,000,000 in aggregate principal amount to $170,000,000 in
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aggregate principal amount, with such aggregate reduction being
the result of an increase in the Domestic Syndicated Loan
Commitment by one of the Lenders and decreases in the Domestic
Syndicated Loan Commitments of the remaining Lenders. After
giving effect to the foregoing actions, the Domestic Syndicated
Loan Commitments of the Lenders shall be as set forth on the
signature pages to this Agreement. On the Closing Date, all
outstanding Domestic Syndicated Loans that had been borrowed or
previously continued or converted prior to the Closing Date shall
be prepaid in full, together with all interest accrued and unpaid
thereon through the date of such prepayment occurring and all
amounts required to be paid pursuant to Section 5.12 as a result
of such prepayment occurring on a date other than the last day of
an Interest Period. All Borrowings of Domestic Syndicated Loans
pursuant to Section 3.02 (including, without limitation, all such
Borrowings made by Interface on the Closing Date to prepay all
Domestic Syndicated Loans then outstanding) and all continuations
and conversions of outstanding Domestic Syndicated Loans pursuant
to Section 3.02 occurring after the Closing Date shall be made on
the basis of the revised Domestic Syndicated Loan Commitments as
provided in this Agreement. All Domestic Bid Rate Loans
outstanding on the Closing Date and scheduled to mature after the
Closing Date shall continue to remain outstanding in accordance
with their respective terms and shall not be repaid or otherwise
affected by the transactions described in this Section 3.08.
(b) Interface's obligations to pay the principal of,
and interest on, all Domestic Syndicated Loans under the Domestic
Syndicated Notes being executed and delivered on the Closing Date
by Interface shall be evidenced by the records of the Domestic
Agent and each such Lender and by such Domestic Syndicated Note
payable to such Lender completed in conformity with this
Agreement.
(c) From and after the Closing Date, all references in
this Agreement to the Domestic Syndicated Loan Commitments shall
be deemed to include the Domestic Syndicated Loan Commitments as
reduced by this Section 3.08 (subject, however, to subsequent
increases or decreases from time to time pursuant to the
provisions of this Agreement).
ARTICLE IV.
MULTICURRENCY REVOLVING LOANS
Section 4.01. Description of Multicurrency Revolving
Credit Facilities. Subject to and upon the terms and conditions
herein set forth (i) the Multicurrency Syndicated Lenders hereby
establish in favor of the Multicurrency Borrowers a revolving
credit facility pursuant to which such Multicurrency Syndicated
Lenders agree to make Multicurrency Syndicated Loans to the
Multicurrency Borrowers in accordance with Section 4.02, (ii) the
Multicurrency Swing Line Lender hereby establishes in favor of
the Multicurrency Borrowers a swing line credit facility pursuant
to which the Multicurrency Swing Line Lender agrees to make
Multicurrency Swing Line Loans to the Multicurrency Borrowers in
accordance with Section 4.05, and (iii) each Multicurrency
Syndicated Lender may, in its sole discretion, submit bids to
make Multicurrency Bid Rate Loans to the Multicurrency Borrowers
in accordance with Section 4.06; provided, however, that in no
event may the aggregate principal amount of all outstanding
Multicurrency Revolving Loans exceed at any time the total
Multicurrency Syndicated Loan Commitments from time to time in
effect.
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Section 4.02. Multicurrency Syndicated Loans.
(a) Subject to and upon the terms and conditions
herein set forth (including the limitation set forth in Section
4.01), each Multicurrency Syndicated Lender severally agrees to
make to the Multicurrency Borrowers from time to time prior to
the Revolver/Multicurrency Maturity Date, Multicurrency
Syndicated Loans in an aggregate principal amount outstanding at
any time not to exceed such Multicurrency Syndicated Lender's
Multicurrency Syndicated Loan Commitment. For the purpose of
determining the unutilized portion of the Multicurrency
Syndicated Loan Commitment of each Multicurrency Syndicated
Lender on the date of a requested Borrowing under the
Multicurrency Syndicated Loan Commitments, the Dollar Equivalent
of the Borrowing then being requested shall be aggregated with
the Dollar Equivalents of all Multicurrency Syndicated Loans then
outstanding (the Dollar Equivalent of each such outstanding Loan
to be calculated as of the date of the most recent conversion or
continuation of such Loan pursuant to Section 4.02(e) or, if not
previously continued or converted, the date of the initial
Borrowing of such Loan pursuant to Section 4.02(c)). The
Multicurrency Borrowers shall be entitled to repay and reborrow
Multicurrency Syndicated Loans in accordance with the provisions,
and subject to the limitations, set forth herein (including the
limitation set forth in Section 4.01).
(b) Each Multicurrency Syndicated Loan shall, at the
option of a Multicurrency Borrower, be made or continued as, or
converted into, part of one or more Borrowings that, unless
otherwise specifically provided herein, shall consist entirely of
Base Rate Advances (if selected by Scherpenzeel B.V. with respect
to Multicurrency Syndicated Loans made in U.S. Dollars) or
Eurocurrency Advances. The aggregate principal amount of each
Borrowing of Multicurrency Syndicated Loans shall be in the
minimum amounts and multiples indicated below for a Borrowing in
the specified Currency, provided that Multicurrency Syndicated
Loans comprised of Base Rate Advances shall not be less than
$250,000 or a greater integral multiple of $1,000:
Minimum
Currency Borrowing Multiple
-------- --------- --------
U.S. Dollars 1,000,000 100,000
Dutch Guilders 2,000,000 200,000
German Marks 1,500,000 150,000
French Francs 5,500,000 550,000
British Pounds 550,000 55,000
Japanese Yen 100,000,000 10,000,000
At no time shall the number of Borrowings outstanding under this
Section 4.02 and Section 4.06 exceed eight; provided that, for
purposes of determining the number of Borrowings outstanding and
the minimum amount for Borrowings resulting from conversions or
continuations, all Borrowings of Base Rate Advances under this
Section 4.02 shall be considered as one Borrowing.
(c) Whenever a Multicurrency Borrower desires to make
a Multicurrency Syndicated Borrowing (other than one resulting
from a conversion or continuation pursuant to Section 4.02(e)),
it shall give the Multicurrency Agent prior written notice (or
telephonic notice promptly confirmed in writing) of such
- 47 -
Multicurrency Syndicated Borrowing (each a "Multicurrency
Syndicated Borrowing Notice") prior to 11:00 a.m. (Eastern time)
at its Payment Office (i) one Business Day prior to the requested
date of such Multicurrency Syndicated Borrowing in the case of
Base Rate Advances (available only with respect to Multicurrency
Syndicated Loans to be made to Scherpenzeel B.V. in U.S.
Dollars), and (ii) three Business Days prior to the requested
date of such Multicurrency Syndicated Borrowing in the case of
Eurocurrency Advances. Notices received after 11:00 a.m.
(Eastern time) shall be deemed received on the next Business Day.
Each Multicurrency Syndicated Borrowing Notice shall be
irrevocable and shall specify the aggregate principal amount of
the Multicurrency Syndicated Borrowing, the date of the
Multicurrency Syndicated Borrowing (which shall be a Business
Day), and whether the Multicurrency Syndicated Borrowing is to
consist of a Base Rate Advance or a Eurocurrency Advance and, in
the case of a Eurocurrency Advance, the Currency in which such
Advance is to be made and the Interest Period to be applicable
thereto.
(d) No later than 11:00 a.m. (Eastern time) on the
date of each Multicurrency Syndicated Borrowing (other than one
resulting from a conversion or continuation pursuant to Section
4.02(e)), each Multicurrency Syndicated Lender will make
available its Pro Rata Share of the amount of such Multicurrency
Syndicated Borrowing in immediately available funds at the
Payment Office of the Multicurrency Agent. The Multicurrency
Agent will make available to the applicable Multicurrency
Borrower the aggregate of the amounts (if any) so made available
by the Multicurrency Syndicated Lenders to the Multicurrency
Agent in a timely manner by crediting such amounts to the
applicable Multicurrency Borrower's demand deposit account
maintained with the Multicurrency Agent. If a Multicurrency
Syndicated Lender does not make such amount available to the
Multicurrency Agent by the time prescribed above, but such amount
is received later that day, such amount may be credited to the
applicable Multicurrency Borrower in the manner described in the
preceding sentence on the next Business Day (with interest on
such amount to begin accruing hereunder on such next Business
Day).
(e) Whenever a Multicurrency Borrower desires to
convert all or a portion of an outstanding Multicurrency
Syndicated Borrowing made as a Base Rate Advance or Eurocurrency
Advance into one or more Multicurrency Syndicated Borrowings in
the same Currency consisting of an Advance of another Type, or to
continue outstanding a Multicurrency Syndicated Borrowing made as
a Eurocurrency Advance in the same Currency for a new Interest
Period, such Multicurrency Borrower or Interface acting on behalf
of such Multicurrency Borrower, shall give the Multicurrency
Agent at least three Business Days' prior written notice (or
telephonic notice promptly confirmed in writing) of each such
Multicurrency Syndicated Borrowing to be converted into or
continued as a Eurocurrency Advance. Such notice (each a
"Notice of Multicurrency Conversion/Continuation") shall be given
prior to 11:00 a.m. (Eastern time) at its Administrative Office
on the date specified. Each such Notice of Multicurrency
Conversion/Continuation shall be irrevocable and shall specify
the aggregate principal amount of the Advance to be converted or
continued, the date of such conversion or continuation, whether
the Advance is being converted into or continued as a
Eurocurrency Advance and the Interest Period to be applicable
thereto. If, upon the expiration of any Interest Period in
respect of any Eurocurrency Advance, the applicable Multicurrency
- 48 -
Borrower shall have failed, or pursuant to the following sentence
be unable, to deliver or have delivered on its behalf the Notice
of Multicurrency Conversion/Continuation, such Borrowing shall,
until repaid or until subsequently converted or continued when
the applicable conditions set forth in the following sentence
shall no longer exist, continue outstanding in the same Currency
and shall bear interest at the Special Adjusted LIBO Rate plus
the Applicable Margin. Notwithstanding the first sentence of
this Section 4.02(e), no Notice of Multicurrency
Conversion/Continuation may be given if, on the date of the
requested conversion or continuation, the Dollar Equivalent of
the aggregate outstanding Multicurrency Syndicated Loans
(calculated in the manner set forth in the second sentence of
Section 4.01(a)), together with the aggregate outstanding
Multicurrency Swing Line Loans and Multicurrency Bid Rate Loans,
exceeds the amount of the Multicurrency Syndicated Loan
Commitments in effect on such date, and the Multicurrency
Borrowers shall repay the Multicurrency Revolving Loans by an
amount equal to such excess together with all accrued interest on
such excess amount. So long as any Default or Event of Default
shall have occurred and be continuing, no Multicurrency
Syndicated Borrowing may be converted into or continued as (upon
expiration of the current Interest Period) a Eurocurrency
Advance. No conversion of any Eurocurrency Advance shall be
permitted except on the last day of the Interest Period in
respect thereof.
(f) The Multicurrency Borrowers' obligations to pay
the principal of, and interest on, the Multicurrency Syndicated
Loans to each Multicurrency Syndicated Lender shall be evidenced
by the records of the Multicurrency Agent and such Multicurrency
Syndicated Lender and by the Multicurrency Syndicated Notes
payable to such Multicurrency Syndicated Lender (or the assignor
of such Multicurrency Syndicated Lender) completed in conformity
with this Agreement.
(g) All outstanding principal amounts under the
Multicurrency Syndicated Loans shall be due and payable in full
on the Revolver/Multicurrency Maturity Date.
Section 4.03. Reductions of Multicurrency Syndicated
Loan Commitments.
(a) Upon at least three Business Days' prior
telephonic notice (promptly confirmed in writing) to the
Multicurrency Agent, the Multicurrency Borrowers shall have the
right, without premium or penalty, to terminate the Multicurrency
Syndicated Loan Commitments, in part or in whole, provided that
(i) any such termination shall apply to proportionately and
permanently reduce the Multicurrency Syndicated Loan Commitments
of each of the Multicurrency Syndicated Lenders, (ii) any partial
termination pursuant to this Section 4.03 shall be in an amount
of at least $1,000,000 and integral multiples of $100,000, and
(iii) no such reduction shall be permitted which would (x)
require a prepayment that is not permitted by Section 5.06, or
(y) reduce the Multicurrency Syndicated Loan Commitments to an
amount less than the aggregate principal amounts outstanding
under the Multicurrency Revolving Loans.
(b) If any Multicurrency Syndicated Lender fails to
deliver to Interface by December 31, 1997, the certificate or
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other document from the United Kingdom Inland Revenue as
specified in Section 5.07(b)(v)(B) or otherwise fails to
establish to the satisfaction of Interface that it is exempt from
withholding taxes imposed by the United Kingdom, and such
Multicurrency Syndicated Lender's Multicurrency Syndicated Loan
Commitment has not been assigned to another Multicurrency
Syndicated Lender or an Eligible Assignee pursuant to Section
12.06(g), then upon at least five Business Days' prior written
notice to the Multicurrency Agent and such Multicurrency
Syndicated Lender, the Multicurrency Borrowers shall have the
right to terminate the Multicurrency Syndicated Loan Commitment
of such Multicurrency Syndicated Lender, and the aggregate amount
of Multicurrency Syndicated Loan Commitments shall be reduced by
such amount (but without any effect on the amount of the
Multicurrency Syndicated Loan Commitment of any other
Multicurrency Syndicated Lender).
(c) If any mandatory prepayment shall be due with
respect to the Term Loans pursuant to Section 2.03, but such
prepayment cannot be applied, or an escrow for such prepayment is
established as provided in Section 2.03(d) for application,
against the Term Loans, in whole or in part, because the Term
Loans have been, or are then being, paid (currently or pursuant
to such escrow arrangement) in full, then the Domestic Syndicated
Loan Commitments and the Multicurrency Syndicated Loan
Commitments shall automatically and ratably be reduced by an
amount equal to such prepayment or portion thereof which cannot
be so applied; provided, however, that no such reduction pursuant
to this Section 4.03(b) shall be required to the extent that the
Domestic Syndicated Loan Commitments and the Multicurrency
Syndicated Loan Commitments would be less than $135,000,000 in
the aggregate. Any such reduction of the Domestic Syndicated
Loan Commitments and the Multicurrency Syndicated Loan
Commitments shall apply as a proportional and permanent reduction
with respect to the Domestic Syndicated Loan Commitments and the
Multicurrency Syndicated Loan Commitments of each of the Domestic
Syndicated Lenders and Multicurrency Syndicated Lenders,
respectively.
Section 4.04. Mandatory Prepayments of Multicurrency
Revolving Loans.
(a) If the aggregate outstanding principal amounts of
the Multicurrency Revolving Loans exceed at any time the amount
of the Multicurrency Syndicated Loan Commitments, as reduced
pursuant to Section 4.03 or otherwise, the Multicurrency
Borrowers shall immediately repay the Multicurrency Revolving
Loans by an amount equal to such excess, together with all
accrued but unpaid interest on such excess amount. If the Dollar
Equivalent of the aggregate outstanding Multicurrency Revolving
Loans (calculated in the manner set forth in the second sentence
of Section 4.02(a)) exceed the amount of the Multicurrency
Syndicated Loan Commitments, as reduced pursuant to Section 4.03
or otherwise, the Multicurrency Borrowers shall immediately repay
the Multicurrency Revolving Loans by a Dollar Equivalent amount
equal to such excess, together with all accrued but unpaid
interest on such excess amount.
(b) If at any time the Multicurrency Agent shall
determine that the aggregate principal amount of the
Multicurrency Revolving Loans (after converting all Eurocurrency
Advances to their Dollar Equivalent on the date of calculation)
is equal to or greater than one hundred ten percent (110%) of the
aggregate Multicurrency Syndicated Loan Commitments then in
- 50 -
effect, the Multicurrency Borrowers shall, upon three Business
Days' prior written notice from the Multicurrency Agent to the
Multicurrency Borrowers, or to Interface on behalf of the
Multicurrency Borrowers, prepay an aggregate principal amount of
Multicurrency Revolving Loans such that the Dollar Equivalent of
the outstanding principal amount of the Multicurrency Revolving
Loans does not exceed the aggregate Multicurrency Syndicated Loan
Commitments.
(c) Each mandatory prepayment of Multicurrency
Revolving Loans pursuant to this Section 4.04 shall be applied
first to Base Rate Advances to the full extent thereof before
application to Fixed Rate Advances; provided, however, that so
long as no Default or Event of Default has occurred and is
continuing, in lieu of application of such prepayment to Fixed
Rate Advances prior to the expiration of the respective Interest
Periods with respect thereto, the Multicurrency Borrowers, at
their option, may execute an Escrow Letter with respect to such
prepayment and deposit with the Collateral Agent funds equal to
the amount of such prepayment for application in accordance with
the terms of such Escrow Letter.
Section 4.05. Multicurrency Swing Line Loans.
(a) Subject to and upon the terms and conditions
herein set forth (including the limitation set forth in Section
4.01), the Multicurrency Swing Line Lender agrees to make to the
Multicurrency Borrowers from time to time prior to the
Revolver/Multicurrency Maturity Date, Multicurrency Swing Line
Loans in U.S. Dollars in an aggregate principal amount
outstanding at any time not to exceed the Multicurrency Swing
Line Commitment then in effect. The Multicurrency Borrowers
shall be entitled to repay and reborrow Multicurrency Swing Line
Loans in accordance with the provisions, and subject to the
limitations, set forth herein (including the limitation set forth
in Section 4.01).
(b) Each Multicurrency Swing Line Loan shall, at the
option of the applicable Multicurrency Borrower, be made as a
Base Rate Advance or Multicurrency Transaction Rate Advance. The
aggregate principal amount of each Multicurrency Swing Line
Borrowing shall be not less than $250,000 or a greater integral
multiple of $1,000. At no time shall the number of Multicurrency
Swing Line Borrowings outstanding under this Section 4.05 exceed
three; provided that, for purposes of determining the number of
Multicurrency Swing Line Borrowings outstanding, all
Multicurrency Swing Line Borrowings consisting of Base Rate
Advances shall be considered as one Multicurrency Swing Line
Borrowing.
(c) Whenever a Multicurrency Borrower desires to make
a Multicurrency Swing Line Borrowing, such Multicurrency
Borrower, or Interface acting on behalf of such Multicurrency
Borrower, shall give the Multicurrency Swing Line Lender (with a
copy to the Multicurrency Agent) prior written notice (or
telephonic notice promptly confirmed in writing) of such
Multicurrency Swing Line Borrowing (each a "Multicurrency Swing
Line Borrowing Notice") prior to 10:00 a.m. (Eastern time) on the
date of such Multicurrency Swing Line Borrowing. Each
Multicurrency Swing Line Borrowing Notice shall specify the
aggregate principal amount of the Multicurrency Swing Line
- 51 -
Borrowing, the date of such Multicurrency Swing Line Borrowing
(which shall be a Business Day), whether a Multicurrency
Transaction Rate Quote is being requested and, if so, the
Interest Period to be applicable thereto. If a Multicurrency
Transaction Rate Quote is requested as aforesaid, then prior to
12:00 noon (Eastern time) on such date, the Multicurrency Swing
Line Lender shall furnish to the Multicurrency Borrower or to
Interface on behalf of such Multicurrency Lender (with a copy to
the Multicurrency Agent) with a quotation of the interest rate
being offered with respect to such Multicurrency Swing Line
Borrowing (whether expressed as a fixed rate of interest in
effect for the Interest Period applicable thereto or as a
floating rate of interest based on a specified interest rate
index and applicable margin for the Interest Period to be
applicable thereto; in either case, a "Multicurrency Transaction
Rate Quote") by telephone (promptly confirmed in writing) or by
facsimile transmission. The Multicurrency Borrower, or Interface
acting on behalf of the Multicurrency Borrower, shall immediately
inform the Multicurrency Swing Line Lender (with a copy to the
Multicurrency Agent) of its decision as to whether to accept the
Multicurrency Transaction Rate Quote and to confirm the
Multicurrency Swing Line Borrowing (which may be done by
telephone, promptly confirmed in writing, and which decision
shall be irrevocable). If the Multicurrency Borrower, or
Interface acting on behalf of the Multicurrency Borrower, has so
informed the Multicurrency Swing Line Lender and confirmed the
terms of the Multicurrency Swing Line Borrowing, then no later
than 2:00 p.m. (Eastern time) on such date, the Multicurrency
Swing Line Lender shall make the principal amount of the
Multicurrency Swing Line Loan available to the Multicurrency
Agent in immediately available funds at the Payment Office of the
Multicurrency Agent, and the Multicurrency Agent will make
available to the Multicurrency Borrower such amount by crediting
such amount to the Multicurrency Borrower's demand deposit
account maintained with the Multicurrency Agent. In the event
that the Multicurrency Swing Line Lender does not make such
amount available to the Multicurrency Agent at the time
prescribed above, but such amount is received later that day,
such amount may be credited to the Multicurrency Borrower in the
manner described in the preceding sentence on the next Business
Day (with interest on such amount to begin accruing hereunder on
such next Business Day).
(d) The Multicurrency Borrowers' obligations to pay
the principal of, and interest on, the Multicurrency Swing Line
Loans shall be evidenced by the records of the Multicurrency
Agent and the Multicurrency Swing Line Lender and by the
Multicurrency Swing Line Notes payable to the Multicurrency Swing
Line Lender (or the assignor of such Multicurrency Swing Line
Lender) completed in conformity with this Agreement.
(e) All outstanding principal amounts under each
Multicurrency Swing Line Loan shall be due and payable in full
(i) on the expiration of the Interest Period applicable to such
Multicurrency Swing Line Loan if outstanding as a Multicurrency
Transaction Rate Advance, and (ii) on the Revolver/Multicurrency
Maturity Date.
(f) At any time on the request of the Multicurrency
Swing Line Lender, each Multicurrency Syndicated Lender other
than the Multicurrency Swing Line Lender shall purchase a
participating interest in all outstanding Multicurrency Swing
Line Loans in an amount equal to its Pro Rata Share (based upon
on its respective Multicurrency Syndicated Loan Commitment) of
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such Multicurrency Swing Line Loans, and the Multicurrency Swing
Line Lender shall furnish each Multicurrency Syndicated Lender
with a certificate evidencing such participating interest. Such
purchase shall be made on the third Business Day after such
request is made; provided, however, that unless an Event of
Default has occurred and is continuing on the date such request
is made, the purchase of a participating interest in any
Multicurrency Swing Line Loan outstanding as a Multicurrency
Transaction Rate Advance shall not be required to be made until
the expiration of the current Interest Period in effect for such
Multicurrency Swing Line Loan. On the date of such required
purchase, each Multicurrency Syndicated Lender will immediately
transfer to the Multicurrency Swing Line Lender, in immediately
available funds, the amount of its participation. Whenever, at
any time after the Multicurrency Swing Line Lender has received
from any such Multicurrency Syndicated Lender the funds for its
participating interest in a Multicurrency Swing Line Loan, the
Multicurrency Agent receives any payment on account thereof, the
Multicurrency Agent will distribute to such Multicurrency
Syndicated Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Multicurrency
Syndicated Lender's participating interest was outstanding and
funded); provided, however, that if such payment received by the
Multicurrency Agent is required to be returned, such
Multicurrency Syndicated Lender will return to the Multicurrency
Agent any portion thereof previously distributed by the
Multicurrency Agent to it. Each Multicurrency Syndicated
Lender's obligation to purchase such participating interests
shall be absolute and unconditional and shall not be affected by
any circumstance, including without limitation (i) any setoff,
counterclaim, recoupment, defense or other right that such
Multicurrency Syndicated Lender or any other Person may have
against the Multicurrency Swing Line Lender requesting such
purchase or any other Person for any reason whatsoever, (ii) the
occurrence or continuation of a Default or an Event of Default or
the termination of any of the Commitments, (iii) any adverse
change in the condition (financial or otherwise) of the
Multicurrency Borrowers, Interface, any of its Consolidated
Subsidiaries, or any other Person, (iv) any breach of this
Agreement by the Multicurrency Borrower, Interface, or any other
Lender, or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing;
provided, however, that no such obligation shall exist (A) to the
extent that the aggregate Multicurrency Swing Line Loans were
advanced in excess of the Multicurrency Swing Line Commitment
then in effect, or (B) with respect to any Multicurrency Swing
Line Loan where the Multicurrency Swing Line Lender actually
advanced to the applicable Borrower net proceeds from the
Multicurrency Swing Line Loan (and therefore was not refunding a
previous Multicurrency Swing Line Loan) at a time when (x) the
Multicurrency Swing Line Lender had actual knowledge that an
Event of Default had occurred and then existed, and (y) the
Required Lenders had not agreed to waive such Event of Default
for purposes of funding such Multicurrency Swing Line Loan.
Section 4.06. Multicurrency Bid Rate Loans.
(a) Subject to and upon the terms and conditions
herein set forth (including the limitation set forth in Section
4.01), a Multicurrency Borrower may, as set forth in this Section
- 53 -
4.06, request the Multicurrency Syndicated Lenders, from time to
time prior to the Revolver/Multicurrency Maturity Date, to make
offers to make Multicurrency Bid Rate Loans in U.S. Dollars to
the Multicurrency Borrower. Each Multicurrency Syndicated Lender
may, but shall have no obligation to, make such offers and the
Multicurrency Borrower may, but shall have no obligation to,
accept any such offers in the manner set forth in this Section
4.06. The Multicurrency Borrowers shall be entitled to repay and
reborrow Multicurrency Bid Rate Loans in accordance with the
provisions, and subject to the limitation set forth herein
(including the limitations set forth in Section 4.01).
(b) The aggregate principal amount of each
Multicurrency Bid Rate Borrowing requested by a Multicurrency
Borrower shall be an amount not less than $5,000,000 or a greater
integral multiple of $1,000,000. At no time shall the number of
Borrowings outstanding under this Section 4.06 and Section 4.02
exceed eight.
(c) Multicurrency Bid Rate Loans may be made to the
Multicurrency Borrowers in accordance with the procedures set
forth in this Section 4.06(c).
(1) Whenever a Multicurrency Borrower wishes
to request offers to make Multicurrency Bid Rate
Loans under this Section 4.06, the Multicurrency
Borrower, or Interface acting on behalf of the
Multicurrency Borrower, shall transmit to the
Multicurrency Agent by facsimile transmission a
request for such offers (each a "Multicurrency Bid
Rate Quote Request") so as to be received by the
Multicurrency Agent not later than 10:00 a.m.
(Eastern time) on the third Business Day
immediately preceding the date of the proposed
Multicurrency Bid Rate Borrowing, specifying (i)
the date of the Multicurrency Bid Rate Borrowing
(which shall be a Business Day), (ii) the
aggregate principal amount of the Multicurrency
Bid Rate Borrowing, and (iii) the Interest Period
to be applicable thereto. The Multicurrency
Borrower may request offers to make Multicurrency
Bid Rate Loans for more than one Interest Period
in a single Multicurrency Bid Rate Quote Request.
A Multicurrency Bid Rate Quote Request that does
not conform substantially to the format of Exhibit
R hereto shall be rejected, and the Multicurrency
Agent shall promptly notify the Multicurrency
Borrower, or Interface on behalf of the
Multicurrency Borrower, of such rejection by
facsimile transmission. No Multicurrency Bid Rate
Quote Request shall be given within ten Business
Days after any other Multicurrency Bid Rate Quote
Request has been transmitted to the Multicurrency
Syndicated Lenders pursuant to Section 4.06(c)(2).
(2) Promptly upon receipt of a Multicurrency
Bid Rate Quote Request that is not rejected
pursuant to Section 4.06(c)(1), the Multicurrency
Agent shall transmit to each of the Multicurrency
Syndicated Lenders by facsimile transmission an
invitation by the Multicurrency Borrower to each
Multicurrency Syndicated Lender to submit
Multicurrency Bid Rate Quotes offering to make
Multicurrency Bid Rate Loans in accordance with
- 54 -
this Section 4.06 (each an "Invitation for
Multicurrency Bid Rate Quotes") substantially in
the form of Exhibit S hereto.
(3) Each Multicurrency Syndicated Lender
may, in its sole discretion, submit a
Multicurrency Bid Rate Quote containing an offer
or offers to make Multicurrency Bid Rate Loans in
response to any Invitation for Multicurrency Bid
Rate Quotes in accordance with the following
procedures:
(A) Each Multicurrency Bid Rate Quote
must comply with the requirements of this
Section 4.06(c)(3) and must be submitted to
the Multicurrency Agent by facsimile
transmission at its offices specified herein
not later than (x) 9:45 a.m. (Eastern time)
in the case of the Multicurrency Agent, and
(y) 10:00 a.m. (Eastern time) in the case of
each other Multicurrency Syndicated Lender,
on the second Business Day immediately
preceding the date of the proposed
Multicurrency Bid Rate Borrowing or, in any
such case upon reasonable prior notice to the
Multicurrency Syndicated Lenders, such other
time and date as the applicable Multicurrency
Borrower, or Interface acting on behalf of
the Multicurrency Borrower, and the
Multicurrency Agent may agree, provided that
the Multicurrency Agent shall always be
required to submit its Multicurrency Bid Rate
Quotes not less than 15 minutes prior to the
other Multicurrency Syndicated Lenders).
Subject to Articles VI and X, any
Multicurrency Bid Rate Quotes so made shall
be irrevocable except with the written
consent of the Multicurrency Agent given on
the instructions of the Multicurrency
Borrower, or Interface acting on behalf of
the Multicurrency Borrower.
(B) Each Multicurrency Bid Rate Quote
shall in any case specify (i) the date of the
proposed Multicurrency Bid Rate Borrowing,
which shall be the same as that set forth in
the applicable Invitation for Multicurrency
Bid Rate Quotes, (ii) the principal amount of
the Multicurrency Bid Rate Loan for which
each such offer is being made, which
principal amount (x) may be greater than,
less than or equal to the Multicurrency
Syndicated Loan Commitment of the quoting
Multicurrency Syndicated Lender, and (y) may
not exceed the principal amount of
Multicurrency Bid Rate Loans for which offers
were requested, (iii) the minimum or maximum
amount, if any, of the Multicurrency Bid Rate
Loan which may be accepted by the
Multicurrency Borrower, (iv) the applicable
Interest Period, and (v) the identity of the
quoting Multicurrency Syndicated Lender.
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(C) The Multicurrency Agent shall
reject any Multicurrency Bid Rate Quote that
(i) is not substantially in the form of
Exhibit T hereto or does not specify all of
the information required by Section
4.06(c)(3)(B), (ii) contains qualifying,
conditional or similar language, other than
any such language contained in Exhibit T
hereto, (iii) proposes terms other than or in
addition to those set forth in the applicable
Invitation for Multicurrency Bid Rate Quotes,
or (iv) arrives after the time set forth in
Section 4.06(c)(3)(A).
(D) If any Multicurrency Bid Rate Quote
shall be rejected pursuant to Section
4.06(c)(3)(C), then the Multicurrency Agent
shall notify the relevant Multicurrency
Syndicated Lender of such rejection as soon
as practicable.
If any Multicurrency Syndicated Lender shall elect
not to submit a Multicurrency Bid Rate Quote, such
Multicurrency Bid Rate Lender shall so notify the
Multicurrency Agent not later than 10:00 a.m.
(Eastern time) on the second Business Day
immediately preceding the date of the proposed
Multicurrency Bid Rate Borrowing, and such
Multicurrency Syndicated Lender shall not be
obligated to, and shall not, make any
Multicurrency Bid Rate Loan as part of such
Multicurrency Bid Rate Borrowing; provided,
however, that the failure of any Multicurrency
Syndicated Lender to give such notice shall not
cause it to be obligated to make any Multicurrency
Bid Rate Loan as part of such Borrowing.
(4) Subject to its timely receipt of one or
more Multicurrency Bid Rate Quotes in the manner
described in Section 4.06(c)(3), the Multicurrency
Agent shall notify the Multicurrency Borrower, or
Interface acting on behalf of the Multicurrency
Borrower, as soon as practicable (but in any event
using reasonable efforts to effect such notice
prior to 10:45 a.m. (Eastern time) on the second
Business Day immediately preceding the date of the
proposed Multicurrency Bid Rate Borrowing) as to
the terms (i) of any Multicurrency Bid Rate Quote
submitted by a Multicurrency Syndicated Lender
that is in accordance with Section 4.06(c) and
(ii) of any Multicurrency Bid Rate Quote that is
in accordance with Section 4.06(c) and amends,
modifies or is otherwise inconsistent with a
previous Multicurrency Bid Rate Quote submitted by
such Multicurrency Syndicated Lender with respect
to the same Multicurrency Bid Rate Quote Request.
Any such subsequent Multicurrency Bid Rate Quote
shall be disregarded by the Multicurrency Agent
unless such subsequent Multicurrency Bid Rate
Quote specifically states that it is submitted
solely to correct a manifest error in such
- 56 -
previous Multicurrency Bid Rate Quote. The
Multicurrency Agent's notice to the Multicurrency
Borrower, or Interface acting on behalf of the
Multicurrency Borrower, shall specify the
aggregate principal amount of Multicurrency Bid
Rate Loans for which offers have been received for
each Interest Period specified in the related
Multicurrency Bid Rate Quote Request and the
respective principal amounts and Multicurrency Bid
Rates, as the case may be, so offered.
(5) Subject to receipt of the notice from
the Multicurrency Agent referred to in Section
4.06(c)(4), not later than 11:00 a.m. (Eastern
time) on the second Business Day immediately
preceding the date of the proposed Multicurrency
Bid Rate Borrowing, the Multicurrency Borrower, or
Interface acting on behalf of the Multicurrency
Borrower, shall notify the Multicurrency Agent of
the Multicurrency Borrower's acceptance or
rejection of the offer so notified to it pursuant
to Section 4.06(c)(4); provided, however, that the
failure to give such notice to the Multicurrency
Agent shall be deemed to be a rejection by the
Multicurrency Borrower of all such offers. In the
case of acceptance, such notice (each a
"Multicurrency Bid Rate Acceptance Notice") shall
specify the aggregate principal amount of offers
for each Interest Period that are accepted. The
Multicurrency Borrower may accept or reject any
Multicurrency Bid Rate Quote in whole or in part
(subject to the terms of Section 4.06(b); provided
that (i) the aggregate principal amount of each
Multicurrency Bid Rate Advance may not exceed the
applicable amount set forth in the related
Multicurrency Bid Rate Quote Request, (ii)
acceptance of offers may only be made in the order
of ascending Multicurrency Bid Rates, (iii) the
Multicurrency Borrower may not accept any offer of
the type described in Section 4.06(c)(3)(C) or
that otherwise fails to comply with the
requirements of this Agreement for the purpose of
obtaining a Multicurrency Bid Rate Loan under this
Agreement, and (iv) any such acceptance shall
constitute its irrevocable request to borrow the
aggregate principal amount so accepted.
(6) If offers are made by two or more
Multicurrency Syndicated Lenders with the same
Multicurrency Bid Rates for a greater aggregate
principal amount than the amount in respect of
which offers are permitted to be accepted for the
related Interest Period, the principal amount of
Multicurrency Bid Rate Loans in respect of which
such offers are accepted shall be allocated by the
Multicurrency Agent among such Multicurrency
Syndicated Lenders as nearly as possible (in such
multiples as the Multicurrency Agent may deem
appropriate) in proportion to the aggregate
principal amount of such offers; provided,
however, that no Multicurrency Syndicated Lender
- 57 -
shall be allocated a portion of any Multicurrency
Bid Rate Advance which is less than the minimum
amount which such Multicurrency Syndicated Lender
has indicated that it is willing to accept.
Allocations by the Multicurrency Agent of the
amounts of Multicurrency Bid Rate Advances shall
be conclusive in the absence of manifest error.
The Multicurrency Agent shall promptly, but in any
event by 12:00 noon (Eastern time) on the second
Business Day immediately preceding the date of the
proposed Multicurrency Bid Rate Borrowing, notify
each Multicurrency Syndicated Lender of its
receipt of a Multicurrency Bid Rate Acceptance
Notice and the aggregate principal amount of each
Multicurrency Bid Rate Advance allocated to each
participating Multicurrency Syndicated Lender.
(d) No later than 1:00 p.m. (Eastern time) on the date
of each Multicurrency Bid Rate Borrowing, each Multicurrency Bid
Rate Lender participating in such Borrowing will make available
its portion of such Borrowing in immediately available funds at
the Payment Office of the Multicurrency Agent. The Multicurrency
Agent will make available to the Multicurrency Borrower in U.S.
Dollars the aggregate of the amounts (if any) so made available
by the Multicurrency Bid Rate Lenders to the Multicurrency Agent
in a timely manner by crediting such amounts to the Multicurrency
Borrower's demand deposit account maintained with the
Multicurrency Agent. In the event that the Multicurrency Bid
Rate Lenders do not make such amounts available to the
Multicurrency Agent by the time prescribed above, but such amount
is received later that day, such amount may be credited to the
Multicurrency Borrower in the manner described in the preceding
sentence on the next Business Day (with interest on such amount
to begin accruing hereunder on such next Business Day).
(e) The Multicurrency Borrowers' obligations to pay
the principal of, and interest on, the Multicurrency Bid Rate
Loans to each Multicurrency Bid Rate Lender shall be evidenced by
the records of the Multicurrency Agent and such Multicurrency Bid
Rate Lender and by the Multicurrency Bid Rate Notes payable to
such Multicurrency Bid Rate Lender (or the assignor of such
Multicurrency Bid Rate Lender) completed in conformity with this
Agreement.
(f) All outstanding principal amounts under each
Multicurrency Bid Rate Loan shall be due and payable in full (i)
on the expiration of the Interest Period applicable to such
Multicurrency Bid Rate Loan, and (ii) on the
Revolver/Multicurrency Maturity Date.
Section 4.07. Use of Proceeds. The proceeds of the
Multicurrency Syndicated Loans, Multicurrency Swing Line Loans,
and Multicurrency Bid Rate Loans shall be used as working capital
and for other general corporate purposes of the applicable
Multicurrency Borrower and its Consolidated Subsidiaries.
Section 4.08. Increase in Multicurrency Syndicated
Loan Commitments on the Closing Date.
(a) On the Closing Date, the aggregate Multicurrency
Syndicated Loan Commitments of the Multicurrency Lenders shall be
increased from U.S. $60,000,000 in aggregate principal amount to
U.S. $80,000,000 in aggregate principal amount, with such
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aggregate increase being the result of increases in Multicurrency
Syndicated Loan Commitments by each of the Multicurrency Lenders.
After giving effect to the foregoing actions, the Multicurrency
Syndicated Loan Commitments of the Multicurrency Lenders shall be
as set forth on the signature pages to this Agreement. On the
Closing Date, all outstanding Multicurrency Syndicated Loans that
have been borrowed or previously continued or converted prior to
the Closing Date shall be repaid in full, together with all
interest accrued and unpaid thereon through the date of such
prepayment occurring and all amounts required to be paid pursuant
to Section 5.12 as a result of such prepayment occurring on a
date other than the last day of an Interest Period. All
Borrowings of Multicurrency Syndicated Loans pursuant to Section
4.02 (including, without limitation, all Borrowings made on the
Closing Date to prepay all Multicurrency Syndicated Loans then
outstanding) and all continuations and conversions of outstanding
Multicurrency Syndicated Loans pursuant to Section 4.02 occurring
after the Closing Date shall be made on the basis of the revised
Multicurrency Syndicated Loan Commitments as provided in this
Agreement. All Multicurrency Bid Rate Loans outstanding on the
Closing Date and scheduled to mature after the Closing Date shall
continue to remain outstanding in accordance with their
respective terms and shall not be repaid or otherwise affected by
the transactions described in this Section 4.08.
(b) The Borrowers' respective obligations to pay the
principal of, and interest on, all Multicurrency Syndicated Loans
under the Multicurrency Syndicated Notes being executed and
delivered on the Closing by the Borrowers shall be evidenced by
the records of the Multicurrency Agent and each such Lender and
by such Multicurrency Syndicated Notes payable to such Lender
completed in conformity with this Agreement.
(c) From and after the Closing Date, all references in
this Agreement to the Multicurrency Syndicated Loan Commitments
shall be deemed to include the Multicurrency Syndicated Loan
Commitments as increased by this Section 4.08 (subject, however,
to subsequent increases or decreases from time to time pursuant
to the provisions of this Agreement).
ARTICLE V.
GENERAL LOAN TERMS
Section 5.01. Funding Notices. Without in any way
limiting each Borrower's obligation to confirm in writing any
telephonic notice, each Co-Agent may act without liability upon
the basis of telephonic notice believed by such Co-Agent in good
faith to be from the respective Borrower, or from Interface
acting on behalf of any other Borrower, prior to receipt of
written confirmation. In each such case, each Borrower hereby
waives the right to dispute such Co-Agent's record of the terms
of such telephonic notice.
Section 5.02. Disbursement of Funds.
(a) Unless the Appropriate Co-Agent shall have been
notified by any Lender prior to the date of a Borrowing that such
Lender does not intend to make available to the Appropriate
Co-Agent such Lender's portion of the Borrowing to be made on
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such date, the Appropriate Co-Agent may assume that such Lender
has made such amount available to the such Co-Agent on such date
and such Co-Agent may make available to the respective Borrower a
corresponding amount. If such corresponding amount is not in
fact made available to the Appropriate Co-Agent by such Lender on
the date of Borrowing, the Appropriate Co-Agent shall be entitled
to recover such corresponding amount on demand from such Lender
together with interest at the customary rate set by the
Appropriate Co-Agent for the correction of errors among banks in
the applicable Currency. If such Lender does not pay such
corresponding amount forthwith upon the Appropriate Co-Agent's
demand therefor, the Appropriate Co-Agent shall promptly notify
the respective Borrower, and such Borrower shall immediately pay
such corresponding amount to the Appropriate Co-Agent together
with interest at the rate specified for the Borrowing which
includes such amount paid. Nothing in this subsection shall be
deemed to relieve any Lender from its obligation to fund its
Commitments hereunder or to prejudice any rights which any
Borrower may have against any Lender as a result of any default
by such Lender hereunder.
(b) All Borrowings under the Term Loans, the Domestic
Syndicated Loan Commitments and the Multicurrency Syndicated Loan
Commitments shall be loaned by those Lenders participating in
such Facilities on the basis of their Pro Rata Share of the Term
Loan Commitments, Domestic Syndicated Loan Commitments, or
Multicurrency Syndicated Loan Commitments, as the case may be.
No Lender shall be responsible for any default by any other
Lender in its obligations hereunder, and each Lender shall be ob-
ligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to fund its Commit-
ments hereunder.
Section 5.03. Interest.
(a) Interface agrees to pay interest in respect of all
unpaid principal amounts of the Domestic Revolving Loans and Term
Loans from the respective dates such principal amounts were
advanced to maturity (whether by acceleration, notice of
prepayment or otherwise) at rates per annum equal to the rates
indicated below as applicable to outstanding Advances in
accordance with the terms hereof:
(i) For a Base Rate Advance--The Base Rate
in effect from time to time;
(ii) For a CD Rate Advance--The relevant
Fixed CD Rate plus the Applicable Margin;
(iii) For a Eurodollar Advance--The relevant
Adjusted LIBO Rate plus the Applicable Margin;
(iv) For a Domestic Transaction Rate Advance-
-The relevant Domestic Transaction Rate quoted by
the Domestic Swing Line Lender and accepted by
Interface pursuant to Section 3.05(c); and
(v) For a Domestic Bid Rate Advance--The
relevant Accepted Domestic Bid Rate pursuant to
Section 3.06(c)(5).
(b) Each Multicurrency Borrower agrees to pay
interest in respect of all unpaid principal amounts of the
Multicurrency Revolving Loans made to such Multicurrency Borrower
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from the respective dates such principal amounts were advanced to
maturity (whether by acceleration, notice of prepayment or
otherwise) at rates per annum equal to the rates indicated below
as applicable to outstanding Advances in accordance with the
terms hereof:
(i) For a Base Rate Advance--the Base Rate
in effect from time to time;
(ii) For a Eurocurrency Advance--The relevant
Adjusted LIBO Rate (or Special Adjusted LIBO Rate
in the case of Eurocurrency Advances not being
repaid, continued or converted at the expiration
of an Interest Period as provided in
Section 4.02(e)) plus the Applicable Margin;
(iii) For a Multicurrency Transaction Rate
Advance--The relevant Multicurrency Transaction
Rate quoted by the Multicurrency Swing Line Lender
and accepted by or on behalf of the applicable
Multicurrency Borrower pursuant to Section
4.05(c); and
(iv) For a Multicurrency Bid Rate Advance--
The relevant Accepted Multicurrency Bid Rate
pursuant to Section 4.06(c)(5).
(c) Overdue principal and, to the extent not
prohibited by applicable law, overdue interest, in respect of the
Domestic Revolving Loans, Term Loans, and Multicurrency Revolving
Loans, and all other overdue amounts owing hereunder, shall bear
interest from each date that such amounts are overdue:
(i) in the case of overdue principal and
interest with respect to Multicurrency Revolving
Loans outstanding as Eurocurrency Advances (other
than in U.S. Dollars), at the Special Adjusted
LIBO Rate plus the Applicable Margin and an
additional one and one-half percent (1 1/2%) per
annum;
(ii) in the case of overdue principal and
interest with respect to all other Loans
outstanding as Euro Advances (in U.S. Dollars), CD
Rate Advances, Domestic Bid Rate Advances,
Domestic Transaction Rate Advances (to the extent
outstanding as Fixed Rate Advances), Multicurrency
Bid Rate Advances, and Multicurrency Transaction
Rate Advances (to the extent outstanding as Fixed
Rate Advances), at the rate otherwise applicable
for the then-current Interest Period plus an
additional one and one-half percent (1 1/2%) per
annum; thereafter at the rate in effect for Base
Rate Advances pursuant to Section 5.03(b)(i) (in
the case of Eurocurrency Advances (in Dollars),
Multicurrency Bid Rate Advances, and Multicurrency
Transaction Rate Advances under the Multicurrency
Revolving Loans) or Section 5.03(a)(i) (in the
case of all such other Advances) plus an
additional one and one-half percent (1 1/2%) per
annum; and
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(iii) in the case of overdue principal and
interest with respect to all other Loans
outstanding as Base Rate Advances and Domestic
Transaction Rate Advances and Multicurrency
Transaction Rate Advances (to the extent not
outstanding as Fixed Rate Advances), and all other
Obligations hereunder (other than Loans), at a
rate equal to the applicable Base Rate plus an
additional one and one-half percent (1 1/2%) per
annum;
provided that no Loan shall bear interest after maturity (whether
by acceleration, notice of prepayment or otherwise) at a rate per
annum less than one and one-half percent (1 1/2%) per annum in
excess of the rate of interest applicable thereto at maturity.
(d) Interest on each Loan shall accrue from and
including the date of such Loan to but excluding the date of any
repayment thereof; provided that, if a Loan is repaid on the same
day made, one day's interest shall be paid on such Loan.
Interest on all outstanding Base Rate Advances shall be payable
quarterly in arrears on the last calendar day of each fiscal
quarter of Interface in each year. Interest on all outstanding
Fixed Rate Advances, Domestic Transaction Rate Advances, and
Multicurrency Transaction Rate Advances shall be payable on the
last day of each Interest Period applicable thereto, and, in the
case of Fixed Rate Advances having an Interest Period in excess
of 90 days (in the case of CD Rate Advances, or Domestic Bid Rate
Advances or Multicurrency Bid Rate Advances, if quoted on the
basis of 180 days) or in excess of three months (in the case of
Euro Advances, or Domestic Bid Rate Advances or Multicurrency Bid
Rate Advances if quoted on the basis of six months), on each day
which occurs every 90 days or 3 months, as the case may be, after
the initial date of such Interest Period. Interest on all Loans
shall be payable on any conversion of any Advance comprising such
Loans into an Advance of another Type, prepayment (on the amount
prepaid), at maturity (whether by acceleration, notice of
prepayment or otherwise) and, after maturity, on demand.
(e) The Appropriate Co-Agent, upon determining
the Fixed CD Rate, Adjusted LIBO Rate or Special Adjusted LIBO
Rate for any Interest Period, shall promptly notify by telephone
(confirmed in writing) or in writing the respective Borrower and
the other Lenders participating in the respective Facility
thereof. Any such determination shall, absent manifest error, be
final, conclusive and binding for all purposes.
Section 5.04. Interest Periods. In connection
with the making or continuation of, or conversion into, each
Borrowing of Fixed Rate Advances, Domestic Transaction Rate
Advances and Multicurrency Transaction Rate Advances, the
respective Borrower shall select an interest period (each an
"Interest Period") to be applicable to such Advances, which
Interest Period shall (x) in the case of CD Rate Advances, or
Domestic Bid Rate Advances or Multicurrency Bid Rate Advances, if
quoted on the basis of such periods, be either a 30, 60, 90 or
180 day period, (y) in the case of Euro Advances, or Domestic Bid
Rate Advances or Multicurrency Bid Rate Advances, if quoted on
the basis of such periods, be either a 1, 2, 3 or 6 month period,
and (z) in the case of Domestic Transaction Rate Advances or
Multicurrency Transaction Rate Advances, be a period up to ten
days as requested by or on behalf of the respective Borrower and
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accepted by the Domestic Swing Line Lender or Multicurrency Swing
Line Lender, as the case may be; provided that:
(i) The initial Interest Period for any
Borrowing consisting of any such Advance shall
commence on the date of such Borrowing (including
the date of any conversion from a Borrowing
consisting of an Advance of another Type) and each
Interest Period occurring thereafter in respect of
such Borrowing shall commence on the day on which
the next preceding Interest Period expires;
(ii) If any Interest Period would otherwise
expire on a day which is not a Business Day, such
Interest Period shall expire on the next
succeeding Business Day, provided that if any
Interest Period in respect of a Euro Advance would
otherwise expire on a day that is not a Business
Day but is a day of the month after which no
further Business Day occurs in such month, such
Interest Period shall expire on the next preceding
Business Day;
(iii) Any Interest Period in respect of a Euro
Advance which begins on a day for which there is
no numerically corresponding day in the calendar
month at the end of such Interest Period shall,
subject to part (iv) below, expire on the last
Business Day of such calendar month;
(iv) No Interest Period shall extend beyond
any date upon which any principal payment is due
with respect to the Term Loans, or a prepayment is
required to be made in the Domestic Revolving
Loans or Multicurrency Revolving Loans, unless the
aggregate principal amount of Term Loans,
Multicurrency Revolving Loans, or Domestic
Revolving Loans, as the case may be, that are not
Fixed Rate Advances, or that have Interest Periods
which will expire on or before the date of the
respective payment or prepayment, is equal to or
in excess of the amount of any such principal
payments or prepayments to be made;
(v) The Interest Period for a Fixed Rate
Advance which is converted pursuant to
Section 5.09(b) shall commence on the date of such
conversion and shall expire on the date on which
the Interest Periods for the Fixed Rate Advances
of the other Lenders which were not converted
expires; and
(vi) No Interest Period with respect to the
Loans shall extend beyond the
Revolver/Multicurrency Maturity Date or Term Loan
Final Maturity Date, as applicable.
Section 5.05. Fees.
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(a) On the Closing Date, Interface shall pay to
the Domestic Agent, for the benefit of each Lender, an amendment
fee in an amount equal to $7500 for each such Lender.
(b) Interface shall pay to the Domestic Agent,
for the account of and distribution of the respective Pro Rata
Shares to the Domestic Syndicated Lenders, a commitment fee in
respect of the Domestic Syndicated Loan Commitments computed at a
per annum rate equal to the Applicable Commitment Fee Rate, for
each fiscal quarter, calculated on the average daily unused
portion of the Domestic Syndicated Loan Commitments of such
Domestic Syndicated Lenders, such fee being payable quarterly in
arrears on the last calendar day of each fiscal quarter of
Interface, and on the Revolver/Multicurrency Maturity Date. If
any Letters of Credit are or were outstanding at any time during
such fiscal quarter, the average daily Aggregate L/C Outstandings
thereunder shall constitute a usage of the Domestic Syndicated
Loan Commitments (thereby reducing the unused portion of the
Domestic Syndicated Loan Commitments by a corresponding amount)
for purposes of calculating such commitment fee. Solely for
purposes of calculating the fees due under this Section 5.05(b),
(i) no Domestic Bid Rate Loans shall constitute a usage of any of
the Domestic Syndicated Loan Commitments of the Domestic
Syndicated Lenders, and (ii) the aggregate principal amount of
the Domestic Swing Line Loans from time to time outstanding shall
constitute a usage of the Domestic Syndicated Loan Commitment
only with respect to the Domestic Swing Line Lender.
(c) The Multicurrency Borrowers shall pay to the
Multicurrency Agent, for the account of and distribution of the
respective Pro Rata Shares to the Multicurrency Syndicated
Lenders, a commitment fee in respect of the Multicurrency
Syndicated Loan Commitments computed at a per annum rate equal to
the Applicable Commitment Fee Rate, for each fiscal quarter,
calculated on the average daily unused portion of the
Multicurrency Syndicated Loan Commitments of such Multicurrency
Syndicated Lenders (based on the Dollar Equivalent of such unused
portion and calculated in the manner set forth in the second
sentence of Section 4.02(a)), such fee being payable quarterly in
arrears on the last calendar day of each fiscal quarter of
Interface, and on the Revolver/Multicurrency Maturity Date.
Solely for purposes of calculating the fees due under this
Section 5.05(c), (i) no Multicurrency Bid Rate Loans shall
constitute a usage of any of the Multicurrency Syndicated Loan
Commitments of the Multicurrency Syndicated Lenders, and (ii) the
aggregate principal amount of the Multicurrency Swing Line Loans
from time to time outstanding shall constitute a usage of the
Multicurrency Syndicated Loan Commitment only with respect to the
Multicurrency Swing Line Lender.
(d) The Borrowers shall pay to the Domestic Agent
and Multicurrency Agent, as the case may be, an administration
fee equal to $500 for each Domestic Bid Rate Quote Request and
Multicurrency Bid Rate Quote Request, as the case may be,
transmitted by a Borrower to such Agent pursuant to Section
3.06(c) or 4.06(c). Such administration fees shall be payable in
arrears on the last calendar day of each fiscal quarter of
Interface and on the Revolver/Multicurrency Maturity Date, for
any period then ending for which such fees, if any, shall not
have been previously paid.
(e) The Borrowers shall pay to each Co-Agent a
quarterly administrative fee, payable in advance in the
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respective amount previously agreed in writing by Interface with
respect to such Co-Agent.
Section 5.06. Voluntary Prepayments of
Borrowings.
(a) The Borrowers may, at their option, prepay
Borrowings consisting of Base Rate Advances, and Domestic
Transaction Rate Advances and Multicurrency Transaction Rate
Advances (in either case to the extent not outstanding as Fixed
Rate Advances), at any time in whole, or from time to time in
part, in amounts aggregating $250,000 or any greater integral
multiple of $1000, by paying the principal amount to be prepaid
together with interest accrued and unpaid thereon to the date of
prepayment. Those Borrowings consisting of Fixed Rate Advances
may be prepaid, at the applicable Borrower's option, in whole, or
from time to time in part, in the respective minimum amounts and
multiples set forth in Sections 2.01(b), 3.02(b), 3.05(b),
3.06(b), 4.02(b), 4.05(b), and 4.06(b), as applicable to the Type
of Advance, by paying the principal amount to be prepaid,
together with interest accrued and unpaid thereon to the date of
prepayment, and all compensation payments pursuant to
Section 5.12 if such prepayment is made on a date other than the
last day of an Interest Period applicable thereto. Each such
optional prepayment shall be applied in accordance with
Section 5.06(c) below.
(b) Each Borrower desiring to make a prepayment
pursuant to Section 5.06(a) shall give written notice (or tele-
phonic notice confirmed in writing) to the Appropriate Co-Agent
of any intended prepayment (i) not less than one Business Day
prior to any prepayment of Base Rate Advances, or Domestic
Transaction Rate Advances or Multicurrency Transaction Rate
Advances (to the extent outstanding as Fixed Rate Advances),
(ii) not less than two Business Days prior to any prepayment of
CD Rate Advances, and (iii) not less than three Business Days
prior to any prepayment of Euro Advances, Domestic Bid Rate
Advances, or Multicurrency Bid Rate Advances. Such notice, once
given, shall be irrevocable. Upon receipt of such notice of
prepayment, the Appropriate Co-Agent shall promptly notify each
Lender whose Advance constitutes a portion of such Borrowing of
the contents of such notice and of such Lender's share of such
prepayment.
(c) Each Borrower providing notice of prepayment
pursuant to Section 5.06(b) may designate the Types of Advances
and the specific Borrowings that are to be prepaid, provided that
(i) if any prepayment of Fixed Rate Advances of such Borrower
made pursuant to a single Borrowing shall reduce the outstanding
Advances made pursuant to such Borrowing to an amount less than
$1,000,000, such Borrowing shall immediately be converted into
Base Rate Advances; and (ii) each prepayment made pursuant to a
single Borrowing shall be applied pro rata among the Loans com-
prising such Borrowing. In the absence of a designation by the
respective Borrower, the Co-Agents shall, subject to the forego-
ing, make such designation in their sole discretion. All volun-
tary prepayments shall be applied to the payment of interest be-
fore application to principal and shall be applied against sched-
uled amortization payments in the inverse order of maturity.
Section 5.07. Payments, etc.
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(a) (i) Except as otherwise specifically
provided herein, all payments under this Agreement, the Letter of
Credit Agreement, and the other Credit Documents, other than the
payments specified in Section 5.07(a)(ii) below, shall be made
without defense, set-off or counterclaim to the Domestic Agent
not later than 11:00 A.M. (Eastern time) on the date when due and
shall be made in Dollars in immediately available funds at its
Payment Office.
(ii) Except as otherwise specifically provided
herein, all payments under this Agreement with respect to the
Multicurrency Revolving Loans and the fees payable to the
Multicurrency Agent pursuant to Section 5.05(c), (d) and (e),
shall be made without defense, set-off or counterclaim to the
Multicurrency Agent at the applicable Payment Office not later
than 11:00 A.M. (Eastern time, in the case of such Agent, or
11:00 A.M. local time in the case of the applicable FC Bank, as
the case may be) on the date when due and in immediately
available funds in the applicable Currency, or at any other
location of the Multicurrency Agent as the Multicurrency Agent
may specify in writing to the Borrowers not later than Noon
(Eastern time) on the Business Day prior to the Business Day such
payment is due. All payments of principal and interest with
respect to the Multicurrency Syndicated Loans shall be made in
the Currency in which the related Borrowing was made.
(b) (i) Any and all payments by the Borrowers
hereunder or under the Notes or the Letter of Credit Agreement
shall be made free and clear of and without deduction for any and
all present or future taxes, levies, imposts, deductions, charges
or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender, taxes imposed on or
measured by its net income, and franchise taxes and branch profit
taxes imposed on it (A) by the jurisdiction under the laws of
which such Lender is organized or any political subdivision
thereof and, in the case of each Lender, taxes imposed on or
measured by its net income, and franchise taxes and branch profit
taxes imposed on it, by the jurisdiction of such Lender's
appropriate Lending Office or any political subdivision thereof,
and (B) by a jurisdiction in which any payments are to be made by
any Borrower hereunder, other than the United States of America,
the United Kingdom, or The Netherlands or any political subdivi-
sion of any thereof, and that would not have been imposed but for
the existence of a connection between such Lender and the juris-
diction imposing such taxes (other than a connection arising as a
result of this Agreement or the transactions contemplated by this
Agreement), except in the case of taxes described in this
clause (B), to the extent such taxes are imposed as a result of a
change in the law or regulations of any jurisdiction or any
applicable treaty or regulations or in the official
interpretation of any such law, treaty or regulations by any
governmental authority charged with the interpretation or ad-
ministration thereof after the date of this Agreement (all such
excluded net income taxes, franchise taxes and branch profit
taxes collectively referred to as the "Excluded Taxes"; all such
non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being collectively referred to in
this Section 5.07(b) as "Taxes"). If any Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any Note or the Letter of Credit
Agreement to any Lender, (x) the sum so payable shall be
increased by such amount (the "Gross-up Amount") as may be neces-
sary so that after making all required deductions (including de-
ductions with respect to Taxes owed by such Lender on the Gross-
- 66 -
up Amount payable under this Section 5.07(b)(i)) such Lender
receives an amount equal to the sum it would have received had no
such deductions been made, (y) such Borrower shall make such
deductions, and (z) such Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(ii) Each Borrower will indemnify each Lender for
the full amount of Taxes (together with any Taxes or Excluded
Taxes owed by such Lender applicable to the Gross-up Amount
payable under clause (x) of Section 5.07(b)(i) or on the
indemnification payments made by a Borrower under this
Section 5.07(b)(ii), but without duplication thereof), and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or
such Excluded Taxes were correctly or legally asserted, so as to
compensate such Lender for any loss, cost, expense or liability
incurred as a consequence of any such Taxes. Payment pursuant to
such indemnification shall be made within 10 Business Days from
the date such Lender makes written demand therefor.
(iii) Within 30 days after the date of any
Borrower's payment of Taxes, such Borrower will furnish to the
relevant Lender, at its appropriate Lending Office, the original
or a certified copy of a receipt evidencing payment thereof.
(iv) Each Lender that is a foreign Person (i.e.,
a Person other than a United States Person as defined in the
Internal Revenue Code of 1986, as amended) hereby agrees that:
(A) it shall, prior to the time it becomes a
Lender hereunder, deliver to Interface:
(1) for each Lending Office located in
the United States of America, three (3)
accurate and complete signed originals of
Internal Revenue Service Form 4224 or any
successor thereto ("Form 4224"), and/or
(2) for each Lending Office located
outside the United States of America, three
(3) accurate and complete signed originals of
Internal Revenue Service Form 1001 or any
successor thereto ("Form 1001");
in each case indicating that such Lender, on the
date of delivery thereof, is entitled to receive
payments of principal, interest and fees for the
account of such Lending Office under this
Agreement, the Notes, and the Letter of Credit
Agreement free from withholding of United States
Federal income tax; provided, that if the Form
4224 or Form 1001, as the case may be, supplied by
a Lender fails to establish a complete exemption
from United States withholding tax as of the date
such Lender becomes a Lender, such Lender shall,
within 15 days after a written request from
Interface, deliver to Interface the forms or other
documents necessary to establish a complete
exemption from United States withholding tax as of
such date;
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(B) if at any time such Lender changes its
Lending Office or selects an additional Lending
Office, it shall, at the same time or reasonably
promptly thereafter (but only to the extent the
forms previously delivered by it hereunder are no
longer effective) deliver to Interface in
replacement for the forms previously delivered by
it hereunder:
(1) for such changed or additional
Applicable Lending Office located in the
United States of America, three (3) accurate
and complete signed originals of Form 4224;
or
(2) otherwise, three (3) accurate and
complete signed originals of Form 1001;
in each case indicating that such Lender is on the
date of delivery thereof entitled to receive
payments of principal, interest and fees for the
account of such changed or additional Lending
Office under this Agreement, the Notes, and the
Letter of Credit Agreement free from withholding
of United States Federal income tax.
(v) Each Multicurrency Lender hereby agrees that:
(A) it shall, prior to the time it becomes a
Multicurrency Syndicated Lender hereunder, deliver
to Interface with respect to each of its Lending
Offices, duly completed forms, or other evidence
reasonably satisfactory to Interface, establishing
that such Multicurrency Syndicated Lender, on the
date of delivery thereof, is entitled to receive
(i) payments of principal, interest and fees for
the account of such Lending Office under this
Agreement and the Notes without deduction and free
from withholding of any income taxes imposed by
The Netherlands, and (ii) payments of fees for the
account of such Lending Office under this
Agreement without deduction and free from
withholding of any income taxes imposed by the
United Kingdom; provided that if the forms or
other evidence supplied by the Multicurrency
Syndicated Lender fail to establish such a
complete exemption from withholding tax of The
Netherlands, or such a complete exemption from
withholding tax of the United Kingdom with respect
to payment of fees hereunder, as of the date such
Multicurrency Syndicated Lender becomes a
Multicurrency Syndicated Lender, such
Multicurrency Syndicated Lender shall, within
fifteen (15) days after a written request from
Interface, deliver to Interface the forms or other
documents necessary to establish such complete
exemption from withholding tax as of such date;
(B) it shall, as soon as practicable after
the date of this Agreement, file all appropriate
forms and take other appropriate action to obtain
a certificate or other appropriate document from
the United Kingdom Inland Revenue establishing
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that such Multicurrency Syndicated Lender, on the
date of delivery thereof, is entitled to receive
payments of principal and interest for the account
of its Lending Office under this Agreement and the
Notes without deduction and free from withholding
of any income taxes imposed by the United Kingdom;
provided that if the forms supplied by the
Multicurrency Syndicated Lender fail to establish
a complete exemption from withholding tax of the
United Kingdom as of the date of delivery thereof,
such Multicurrency Syndicated Lender shall, within
fifteen (15) days after a written request from
Interface, deliver to Interface the forms or other
evidence reasonably satisfactory to Interface to
establish a complete exemption from withholding
tax of the United Kingdom as of such date; and
(C) if at any time the Multicurrency
Syndicated Lender changes its Lending Office or
selects an additional Lending Office, it shall, at
the same time or reasonably promptly thereafter
(but only to the extent the forms previously
delivered by it hereunder are no longer
effective), deliver to Interface in replacement
for the forms previously delivered by it hereun-
der, such additional duly completed forms
establishing that such Multicurrency Syndicated
Lender is on the date of delivery thereof entitled
to receive payments of principal, interest and
fees for the account of such changed or additional
Lending Office under this Agreement free from
withholding of United Kingdom or The Netherlands
income tax (to the extent such forms are required
under the laws of the relevant jurisdiction to es-
tablish such exemption).
(vi) In addition to the documents to be furnished
pursuant to Section 5.07(b)(iv) and (v), each Lender shall,
promptly upon the reasonable written request of Interface to that
effect, deliver to Interface such other accurate and complete
forms or similar documentation as such Lender is legally able to
provide and as may be required from time to time by any
applicable law, treaty, rule or regulation of any jurisdiction in
order to establish such Lender's tax status for withholding
purposes or as may otherwise be appropriate to eliminate or
minimize any Taxes on payments under this Agreement, the Notes,
or the Letter of Credit Agreement. Each Lender furnishing forms
to Interface pursuant to the requirements of Section 5.07(b)(iv)
and (v), and this clause (vi), shall furnish copies of such forms
to the Appropriate Co-Agent at the same time delivery of such
forms is made to Interface.
(vii) No Borrower shall be required to pay any
amounts pursuant to Section 5.07(b)(i) or (ii) to any Lender for
the account of any Lending Office of such Lender in respect of
any United States withholding taxes payable hereunder (and a
Borrower, if required by law to do so, shall be entitled to
withhold such amounts and pay such amounts to the United States
Government) if the obligation to pay such additional amounts
would not have arisen but for a failure by such Lender to comply
with its obligations under Section 5.07(b)(iv), and such Lender
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shall not be entitled to exemption from deduction or withholding
of United States Federal income tax in respect of the payment of
such sum by any Borrower hereunder for the account of such
Lending Office for, in each case, any reason other than a change
in United States law or regulations or any applicable tax treaty
or regulations or in the official interpretation of any such law,
treaty or regulations by any governmental authority charged with
the interpretation or administration thereof (whether or not hav-
ing the force of law) after the date such Lender became a Lender
hereunder.
(viii) No Borrower shall be required to pay any
amounts pursuant to Section 5.07(b)(i) or (ii) to any
Multicurrency Syndicated Lender for the account of any Lending
Office of such Lender in respect of any United Kingdom or The
Netherlands withholding taxes payable hereunder (and a Borrower,
if required by law to do so, shall be entitled to withhold such
amounts and pay such amounts to the governments of the United
Kingdom or The Netherlands, as the case may be) if the obligation
to pay such additional amounts would not have arisen but for a
failure by such Multicurrency Syndicated Lender to comply with
its obligations under Section 5.07(b)(v), and such Multicurrency
Syndicated Lender shall not be entitled to exemption from de-
duction or withholding of United Kingdom or The Netherlands
income tax in respect of the payment of such sum by any Borrower
hereunder for the account of such Lending Office for, in each
case, any reason other than a change in United Kingdom or The
Netherlands law or regulations or any applicable tax treaty or
regulations or in the official interpretation of any such law,
treaty or regulations, by any governmental authority charged with
the interpretation or administration thereof (whether or not
having the force of law) after the date such Multicurrency
Syndicated Lender became a Multicurrency Syndicated Lender
hereunder.
(ix) Within sixty (60) days of the written request
of Interface, each Lender shall execute and deliver such
certificates, forms or other documents, which can be reasonably
furnished consistent with the facts and which are reasonably
necessary to assist in applying for refunds of Taxes remitted
hereunder.
(x) Each Lender shall use reasonable efforts to
avoid or minimize any amounts which might otherwise be payable by
Borrowers pursuant to this Section 5.07(b), except to the extent
that a Lender determines that such efforts would be
disadvantageous to such Lender, as determined by such Lender and
which determination, if made in good faith, shall be binding and
conclusive on all parties hereto.
(xi) To the extent that the payment of any
Lender's Taxes by any Borrower gives rise from time to time to a
Tax Benefit (as hereinafter defined) to such Lender in any
jurisdiction other than the jurisdiction which imposed such
Taxes, such Lender shall pay to such Borrower the amount of each
such Tax Benefit so recognized or received. The amount of each
Tax Benefit and, therefore, payment to such Borrower will be
determined from time to time by the relevant Lender in its sole
discretion, which determination shall be binding and conclusive
on all parties hereto. Each such payment will be due and payable
by such Lender to such Borrower within a reasonable time after
the filing of the income tax return in which such Tax Benefit is
recognized or, in the case of any tax refund, after the refund is
received; provided, however, if at any time thereafter such
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Lender is required to rescind such Tax Benefit or such Tax
Benefit is otherwise disallowed or nullified, the Borrower shall
promptly, after notice thereof from such Lender, repay to Lender
the amount of such Tax Benefit previously paid to the Borrower
and rescinded, disallowed or nullified. For purposes of this
section, "Tax Benefit" shall mean the amount by which any
Lender's income tax liability for the taxable period in question
is reduced below what would have been payable had the Borrower
not been required to pay the Lender's Taxes. In case of any
dispute with respect to the amount of any payment the Borrowers
shall have no right to any offset or withholding of payments with
respect to future payments due to any Lender under this
Agreement, the Notes, or the Letter of Credit Agreement.
(xii) Without prejudice to the survival of any
other agreement of the Borrowers hereunder, the agreements and
obligations of the Borrowers and the Lenders contained in this
Section 5.07(b) shall survive the termination of this Agreement
and the payment in full of the principal of, premium, if any,
interest, and fees hereunder and under the Notes and the Letter
of Credit Agreement.
(f) Subject to Section 5.04(ii), whenever any
payment to be made hereunder or under any Note or the Letter of
Credit Agreement shall be stated to be due on a day which is not
a Business Day, the due date thereof shall be extended to the
next succeeding Business Day and, with respect to payments of
principal, interest thereon shall be payable at the applicable
rate during such extension.
(g) All computations of interest and fees
hereunder and under the Notes and the Letter of Credit Agreement
shall be made on the basis of a year of 360 days for the actual
number of days (including the first day but excluding the last
day) occurring in the period for which such interest or fees are
payable (to the extent computed on the basis of days elapsed),
except that interest on Eurocurrency Advances outstanding in
British pounds sterling shall be computed on the basis of a year
of 365 days for the actual number of days. Interest on Base Rate
Advances, and Domestic Transaction Rate Advances and
Multicurrency Transaction Rate Advances (to the extent not
outstanding as Fixed Rate Advances), shall be calculated based on
the Base Rate, Domestic Transaction Rate, or Multicurrency
Transaction Rate, as the case may be, from and including the date
of such Loan to but excluding the date of the repayment or
conversion thereof. Interest on Fixed Rate Advances shall be
calculated as to each Interest Period from and including the
first day thereof to but excluding the last day thereof. Each
determination by either Co-Agent of an interest rate or fee
hereunder shall be made in good faith and, except for manifest
error, shall be final, conclusive and binding for all purposes.
(h) Payment by any Borrower to the Appropriate
Co-Agent in accordance with the terms of this Agreement or the
Letter of Credit Agreement shall, as to such Borrower, constitute
payment to the applicable Lenders under this Agreement or the
Letter of Credit Agreement, as the case may be.
Section 5.08. Interest Rate Not Ascertainable,
etc. In the event that the Appropriate Co-Agent shall have
determined (which determination shall be made in good faith and,
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absent manifest error, shall be final, conclusive and binding
upon all parties) that on any date for determining the Adjusted
LIBO Rate, Special Adjusted LIBO Rate or the Fixed CD Rate for
any Interest Period, by reason of any changes arising after the
date of this Agreement affecting the London interbank market or
the United States secondary certificate of deposit market, as the
case may be, or the Appropriate Co-Agent's position in such
markets, adequate and fair means do not exist for ascertaining
the applicable interest rate on the basis provided for in the
definition of Adjusted LIBO Rate, Special Adjusted LIBO Rate or
Fixed CD Rate, as the case may be, then, and in any such event,
the Appropriate Co-Agent shall forthwith give notice (by
telephone confirmed in writing) to Interface and to the Lenders
of such determination and a summary of the basis for such
determination. Until the Appropriate Co-Agent notifies Interface
that the circumstances giving rise to the suspension described
herein no longer exist, the obligations of the Lenders to make or
permit portions of the Domestic Syndicated Loans, Term Loans, or
Multicurrency Syndicated Loans to remain outstanding as CD Rate
Advances, Special Adjusted LIBO Rate or Euro Advances as the case
may be, shall be suspended, and such affected Advances shall bear
the same interest as Base Rate Advances.
Section 5.09. Illegality.
(a) In the event that any Lender shall have
determined (which determination shall be made in good faith and,
absent manifest error, shall be final, conclusive and binding
upon all parties) at any time that the making or continuance of
any Fixed Rate Advance has become unlawful by compliance by such
Lender in good faith with any applicable law, governmental rule,
regulation, guideline or order (whether or not having the force
of law and whether or not failure to comply therewith would be
unlawful), then, in any such event, the Lender shall give prompt
notice (by telephone confirmed in writing) to Interface and to
the Appropriate Co-Agent of such determination and a summary of
the basis for such determination (which notice the Appropriate
Co-Agent shall promptly transmit to the other Lenders).
(b) Upon the giving of the notice to Interface
referred to in subsection (a) above, (i) each Borrower's right to
request and such Lender's obligation to fund portions of CD Rate
Advances or Euro Advances, as the case may be, shall be
immediately suspended, and such Lender shall make a Loan as part
of the requested Borrowing consisting of a CD Rate Advance or
Euro Advance, as the case may be, as a Base Rate Advance, which
Base Rate Advance shall, for all other purposes, be considered
part of such Borrowing, and (ii) if the affected Fixed Rate
Advance is then outstanding, the applicable Borrower shall
immediately, or if permitted by applicable law, no later than the
date permitted thereby, upon at least one Business Day's written
notice to the Appropriate Co-Agent and the affected Lender,
convert the affected Lender's portion of such Advance into a Loan
of a different Type with an Interest Period ending on the date on
which the Interest Period applicable to the affected Fixed Rate
Advances expires, provided that if more than one Lender is
affected at any time, then all affected Lenders must be treated
the same pursuant to this Section 5.09(b).
Section 5.10. Increased Costs.
(a) If, by reason of (x) after the date hereof,
the introduction of or any change (including, without limitation,
any change by way of imposition or increase of reserve
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requirements) in or in the interpretation of any law or
regulation, or (y) the compliance with any guideline or request
from any central bank or other governmental authority or quasi-
governmental authority exercising control over banks or financial
institutions generally (whether or not having the force of law):
(i) any Lender (or its applicable Lending
Office) shall be subject to any tax, duty or other
charge with respect to its portion of a Fixed Rate
Advance or its obligation to fund a portion of a
Fixed Rate Advance, or the basis of taxation of
payments to any Lender of the principal of or
interest on its portion of a Fixed Rate Advance or
its obligation to fund a portion of a Fixed Rate
Advance shall have changed (except for changes in
the tax on the overall net income of such Lender
or its applicable Lending Office imposed by the
jurisdiction in which such Lender's principal
executive office or applicable Lending Office is
located); or
(ii) any reserve (including, without
limitation, any imposed by the Board of Governors
of the Federal Reserve System), special deposit or
similar requirement against assets of, deposits
with or for the account of, or credit extended by,
any Lender's applicable Lending Office shall be
imposed or deemed applicable or any other
condition affecting its portion of a Fixed Rate
Advance or its obligation to fund a portion of a
Fixed Rate Advance shall be imposed on any Lender
or its applicable Lending Office or the London
interbank market or the United States secondary
certificate of deposit market;
and as a result thereof there shall be any increase in the cost
to such Lender of agreeing to make or making, funding or
maintaining a portion of a Fixed Rate Advance (except to the
extent already included in the determination of the applicable
interest rate in effect for such portion of the Fixed Rate
Advance), or there shall be a reduction in the amount received or
receivable by such Lender or its applicable Lending Office, then
the Borrowers shall from time to time (subject, in the case of
certain Taxes, to the applicable provisions of Section 5.07(b)),
upon written notice from and demand by such Lender on Interface
(with a copy of such notice and demand to the Appropriate
Co-Agent), pay to the Appropriate Co-Agent for the account of
such Lender, within five Business Days after the date of such
notice and demand, additional amounts sufficient to indemnify
such Lender against such increased cost. A certificate as to the
amount of such increased cost, submitted to Interface and the
Appropriate Co-Agent by such Lender in good faith and accompanied
by a statement prepared by such Lender describing in reasonable
detail the basis for and calculation of such increased cost,
shall, except for manifest error, be final, conclusive and
binding for all purposes.
(b) If any Lender shall advise either Co-Agent
that at any time, because of the circumstances described in
clauses (x) or (y) in Section 5.10(a) or any other circumstances
beyond such Lender's reasonable control arising after the date of
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this Agreement affecting such Lender or the London interbank
market or the United States secondary certificate of deposit
market or such Lender's position in such markets, the Adjusted
LIBO Rate, the Special Adjusted LIBO Rate or the Fixed CD Rate,
as the case may be, as determined by the Appropriate Co-Agent,
will not adequately and fairly reflect the cost to such Lender of
funding its portion of a Fixed Rate Advance, then, and in any
such event:
(i) the Appropriate Co-Agent shall forthwith
give notice (by telephone confirmed in writing) to
Interface and to the other Lenders of such advice;
(ii) the Borrowers' right to request and such
Lender's obligation to make or permit portions of
the Loans to remain outstanding as a CD Rate
Advance or Eurocurrency Advance, as the case may
be, shall be immediately suspended; and
(iii) such Lender shall make a Loan as part of
the requested Borrowing consisting of a CD Rate
Advance or Euro Advance, as the case may be, as a
Base Rate Advance, which such Base Rate Advance
shall, for all other purposes, be considered part
of such Borrowing; provided however, in the event
that any Lender determines with respect to a
Eurocurrency Advance that while the Adjusted LIBO
Rate will not adequately and fairly reflect the
costs of such Lender but the Special Adjusted LIBO
Rate would adequately and fairly reflect such
costs, then such Lender's portion of such
requested Borrowing shall bear interest based upon
the Special Adjusted LIBO Rate, if available.
Section 5.11. Lending Offices.
(a) Each Lender agrees that, if requested by the
Borrowers, it will use reasonable efforts (subject to overall
policy considerations of such Lender) to designate an alternate
Lending Office with respect to any of its portions of Fixed Rate
Advances affected by the matters or circumstances described in
Sections 5.07(b), 5.08, 5.09 or 5.10 to reduce the liability of
the Borrowers or avoid the results provided thereunder, so long
as such designation is not disadvantageous to such Lender as
determined by such Lender, which determination if made in good
faith, shall be conclusive and binding on all parties hereto.
Nothing in this Section 5.11 shall affect or postpone any of the
obligations of any Borrower or any right of any Lender provided
hereunder.
(b) If any Lender that is organized under the
laws of any jurisdiction other than the United States of America
or any State thereof (including the District of Columbia) issues
a public announcement with respect to the closing of its lending
offices in the United States such that any withholdings or
deductions and additional payments with respect to Taxes may be
required to be made by any Borrower thereafter pursuant to
Section 5.07(b), such Lender shall use reasonable efforts to
furnish Interface notice thereof as soon as practicable
thereafter; provided, however, that no delay or failure to
furnish such notice shall in any event release or discharge the
Borrowers from their obligations to such Lender pursuant to
Section 5.07(b) or otherwise result in any liability of such
Lender.
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Section 5.12. Funding Losses. Each Borrower
shall compensate each Lender, upon its written request to
Interface (which request shall set forth the basis for requesting
such amounts in reasonable detail and which request shall be made
in good faith and, absent manifest error, shall be final,
conclusive and binding upon all of the parties hereto), for all
losses, expenses and liabilities (including, without limitation,
any interest paid by such Lender to lenders of funds borrowed by
it to make or carry its portions of Fixed Rate Advances, and any
amounts required to be paid by any Multicurrency Syndicated
Lender as a result of currency fluctuations of Currencies
borrowed by it to make or carry Multicurrency Syndicated Loans,
in either case to the extent not recovered by such Lender in
connection with the re-employment of such funds or Currencies and
including loss of anticipated profits), which the Lender may sus-
tain: (i) if for any reason (other than a default by such
Lender) a borrowing of, or conversion to or continuation of,
Fixed Rate Advances to such Borrower does not occur on the date
specified therefor in a notice given by any Borrower to either
Co-Agent as provided herein (whether or not withdrawn), (ii) if
any repayment (including mandatory prepayments and any
conversions pursuant to Section 5.09(b)) of any Fixed Rate Ad-
vances to such Borrower occurs on a date which is not the last
day of an Interest Period applicable thereto, or (iii), if, for
any reason, such Borrower defaults in its obligation to repay its
Fixed Rate Advances when required by the terms of this Agreement.
Section 5.13. Failure to Pay in Appropriate
Currency. If any Borrower is unable for any reason to effect
payment of a Multicurrency Syndicated Loan in the appropriate
Currency as required by Section 5.07(a)(ii) or if any Borrower
shall default in the payment when due of any payment in the
appropriate Currency, the Multicurrency Syndicated Lenders may,
at their option, require such payment to be made to the
Multicurrency Agent in the Dollar Equivalent of such Currency at
the Multicurrency Agent's Payment Office specified for payments
of Eurocurrency Advances outstanding in Dollars. In any such
case, each Borrower agrees to hold the Multicurrency Syndicated
Lenders harmless from any loss incurred by the Multicurrency
Syndicated Lenders arising from any change in the value of
Dollars in relation to such Currency between the date such
payment became due and the date of payment thereof.
Section 5.14. Assumptions Concerning Funding of
Fixed Rate Advances. Calculation of all amounts payable to a
Lender under this Article V shall be made as though that Lender
had actually funded its portions of relevant Fixed Rate Advances
through the purchase of deposits in the relevant market and
Currency, as the case may be, bearing interest at the rate
applicable to such Fixed Rate Advances in an amount equal to the
amount of its portions of the Fixed Rate Advances and having a
maturity comparable to the relevant Interest Period and, in the
case of Eurocurrency Advances, through the transfer of such
Eurocurrency Advances from an offshore office of that Lender to a
domestic office of that Lender in the United States of America;
provided however, that each Lender may fund its portions of each
of the Fixed Rate Advances in any manner it sees fit and the
foregoing assumption shall be used only for calculation of
amounts payable under this Article V.
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Section 5.15. Apportionment of Payments.
Aggregate principal and interest payments in respect of Loans and
payments in respect of Letters of Credit, facility fees,
commitment fees, and Letter of Credit fees shall be apportioned
among all outstanding Commitments, Loans and Letters of Credit to
which such payments relate, proportionately to the Lenders'
respective Pro Rata Shares of such Commitments and outstanding
Loans and Letters of Credit. The Appropriate Co-Agent shall
promptly distribute to each Lender at its primary address set
forth beside its name on the appropriate signature page hereof or
such other address as any Lender may request its share of all
such payments received by the Appropriate Co-Agent.
Section 5.16. Sharing of Payments, Etc. If any
Lender shall obtain any payment or reduction (including, without
limitation, any amounts received as adequate protection of a
deposit treated as cash collateral under the Bankruptcy Code) of
any obligation of any Borrower hereunder or under the Letter of
Credit Agreement (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) in excess of its
Pro Rata Share or L/C Pro Rata Share, as the case may be, of
payments or reductions on account of such obligations obtained by
all the Lenders, such Lender shall forthwith (i) notify each of
the other Lenders and the Co-Agents of such receipt, and
(ii) purchase from the other Lenders such participations in the
affected obligations as shall be necessary to cause such
purchasing Lender to share the excess payment or reduction, net
of costs incurred in connection therewith, ratably with each of
them, provided that if all or any portion of such excess payment
or reduction is thereafter recovered from such purchasing Lender
or additional costs are incurred, the purchase shall be rescinded
and the purchase price restored to the extent of such recovery or
such additional costs, but without interest unless the Lender
obligated to return such funds is required to pay interest on
such funds. Each Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 5.16
may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect
to such participation as fully as if such Lender were the direct
creditor of such Borrower in the amount of such participation.
Section 5.17. Capital Adequacy. Without limiting
any other provision of this Agreement or the Letter of Credit
Agreement, in the event that any Lender shall have determined
that any law, treaty, governmental (or quasi-governmental) rule,
regulation, guideline or order regarding capital adequacy not
currently in effect or fully applicable as of the Closing Date,
or any change therein or in the interpretation or application
thereof, or compliance by such Lender with any request or
directive regarding capital adequacy not currently in effect or
fully applicable as of January 9, 1995 (whether or not having the
force of law and whether or not failure to comply therewith would
be unlawful) from a central bank or governmental authority or
body having jurisdiction, does or shall have the effect of
reducing the rate of return on such Lender's capital as a
consequence of its obligations hereunder or under the Letter of
Credit Agreement to a level below that which such Lender could
have achieved but for such law, treaty, rule, regulation,
guideline or order, or such change or compliance (taking into
consideration such Lender's policies with respect to capital
adequacy) by an amount deemed by such Lender to be material, then
within ten Business Days after written notice and demand by such
Lender (with copies thereof to the Co-Agents), each Borrower
shall from time to time pay to such Lender additional amounts
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sufficient to compensate such Lender for such reduction (but, in
the case of outstanding Base Rate Advances, without duplication
of any amounts already recovered by such Lender by reason of an
adjustment in the applicable Base Rate). Each certificate as to
the amount payable under this Section 5.17 (which certificate
shall set forth the basis for requesting such amounts in
reasonable detail), submitted to Interface by any Lender in good
faith, shall, absent manifest error, be final, conclusive and
binding for all purposes.
Section 5.18. Benefits to Guarantors. In
consideration for the execution and delivery by the Guarantors
(other than Interface) of their Guaranty Agreement, the Borrowers
agree to make the benefit of extensions of credit hereunder
available to the Guarantors.
Section 5.19. Limitation on Certain Payment
Obligations.
(a) Each Lender or Agent shall make written
demand on Interface for indemnification or compensation pursuant
to Section 5.07 no later than 90 days after the earlier of
(i) the date on which such Lender or Agent makes payment of such
Taxes, and (ii) the date on which the relevant taxing authority
or other governmental authority makes written demand upon such
Lender or Agent for payment of such Taxes.
(b) Each Lender or Agent shall make written
demand on Interface for indemnification or compensation pursuant
to Sections 5.12 and 5.13 no later than 90 days after the event
giving rise to the claim for indemnification or compensation
occurs.
(c) Each Lender or Agent shall make written
demand on Interface for indemnification or compensation pursuant
to Sections 5.09 and 5.17 no later than 90 days after such Lender
or Agent receives actual notice or obtains actual knowledge of
the promulgation of a law, rule, order or interpretation or
occurrence of another event giving rise to a claim pursuant to
such sections.
(d) In the event that the Lenders or Agents fail
to give Interface notice within the time limitations prescribed
in (a) or (b) above, neither Interface nor any other Borrower
shall have any obligation to pay such claim for compensation or
indemnification. In the event that the Lender or Agents fail to
give Interface notice within the time limitation prescribed in
(c) above, neither Interface nor any other Borrower shall have
any obligation to pay any amount with respect to claims accruing
prior to the ninetieth day preceding such written demand.
Section 5.20. Application of Loan Proceeds to
Maturing Loans. Notwithstanding the provisions of Sections
3.02(d), 3.05(c), 3.06(d), 4.02(d), 4.05(c), and 4.06(d)
requiring the Lenders to make available proceeds of their
respective Loans to the Domestic Agent or Multicurrency Agent, as
the case may be, in connection with the Borrowing of Domestic
Revolving Loans and Multicurrency Revolving Loans, to the extent
that a Loan previously made by a Lender matures on the date of
any such Borrowing of a requested Loan, such Lender shall apply
that portion of the proceeds of the Loan it is then making
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sufficient to effect the repayment of principal of the maturing
Loan owing to it, with any excess proceeds to be made available
to the applicable Borrower as contemplated herein.
ARTICLE VI.
CONDITIONS TO BORROWINGS
The obligation of each Lender to make Advances to
the Borrowers hereunder is subject to the satisfaction of the
following conditions:
Section 6.01. Conditions Precedent to
Effectiveness of Second Amended and Restated Credit Agreement.
In order for this Second Amended and Restated Credit Agreement to
become effective on the Closing Date, all obligations of the
Borrowers hereunder incurred at or prior to such date
(including, without limitation, the Borrowers' obligations to
reimburse the reasonable fees and expenses of counsel to the Co-
Agents and any fees and expenses payable to the Co-Agents and the
Lenders as previously agreed with Interface), shall have been
paid in full, and the Co-Agents shall have received the
following, in form and substance satisfactory in all respects to
the Co-Agents:
(a) the duly executed counterparts of
this Agreement;
(b) the duly completed Notes;
(c) the Guaranty Agreements, Contribution
Agreement, and Indemnity Agreement;
(d) the Pledge Agreements accompanied,
to the extent relevant under applicable law, by
(i) all stock certificates representing the
Pledged Stock, (ii) stock powers for those shares
duly executed in blank, (iii) Uniform Commercial
Code financing statements relating thereto, and
(iv) any other documentation requested by the
Collateral Agent in order to assure the perfection
of a first priority lien in such Pledged Stock in
favor of the Collateral Agent for the benefit of
the Lenders;
(e) certificate of the Borrowers in
substantially the form of Exhibit F attached
hereto and appropriately completed;
(f) certificates of the Secretary or
Assistant Secretary of each of the Credit Parties
(or, in the case of any Foreign Subsidiary, a
comparable company officer)
attaching and certifying copies of the resolutions
of the boards of directors (or, in the case of any
Foreign Subsidiary, the comparable governing body
of such entity) of the Credit Parties, authorizing
as applicable (i) the execution, delivery and
performance of the Credit Documents, and (ii) the
granting of the pledges and security interests
granted pursuant to the Pledge Agreements and the
L/C Cash Collateral Assignment;
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(g) certificates of the Secretary or an
Assistant Secretary of each of the Credit Parties
(or, in the case of any Foreign Subsidiary, a
comparable company officer) certifying (i) the
name, title and true signature of each officer of
such entities executing the Credit Documents, and
(ii) the bylaws or comparable governing documents
of such entities;
(h) certified copies of the certificate or
articles of incorporation of each Credit Party (or
comparable organizational document of each Foreign
Subsidiary), together with certificates of good
standing or existence, as may be available from
the Secretary of State (or comparable office or
registry for each Foreign Subsidiary) of the
jurisdiction of incorporation or organization of
such Credit Party;
(i) examination reports from the Uniform
Commercial Code records of Xxxx County and Xxxxx
County, Georgia, the Georgia Superior Court Clerks
Cooperative Authority, and the Secretaries of
State of the States of California, Maine,
Michigan, Pennsylvania and Texas, in each case
showing no outstanding liens or security interests
granted by any Credit Party other than (x) Liens
permitted by Section 9.02, and (y) Liens in favor
of the Collateral Agent (whether acting under this
Agreement or the 1997 Term Loan Agreement);
(j) copies of all documents and
instruments, including all consents,
authorizations and filings, required or advisable
under any Requirement of Law or by any material
Contractual Obligation of the Credit Parties, in
connection with the execution, delivery,
performance, validity and enforceability of the
Credit Documents and the other documents to be ex-
ecuted and delivered hereunder, and such consents,
authorizations, filings and orders shall be in
full force and effect and all applicable waiting
periods shall have expired;
(k) certified copies of the Intercompany
Loan Documents;
(l) acknowledgments from each of X.
Xxxxxxxxx Xxxxxx, Xx. and Xxxxxxxxxx Xxxxxxxx LLP
as to their appointment as agent for service of
process for the various Credit Parties;
(m) the Letter of Credit Agreement, the
L/C Cash Collateral Assignment, the IRB Collateral
Documents, together with all certificates,
opinions, documents and instruments required to be
furnished to the L/C Issuer pursuant to Section
3.1 of the Letter of Credit Agreement;
(n) certified copies of indentures, credit
agreements, instruments, and other documents
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evidencing or securing Indebtedness of any
Consolidated Company described on Schedule 9.01(b)
or Schedule 9.01(j), in any single case in an
amount not less than $2,000,000 (or the Dollar
Equivalent thereof);
(o) [Intentionally omitted];
(p) certificates, reports and other
information as the Co-Agents may request from any
Consolidated Company in order to satisfy the
Lenders as to the absence of any material li-
abilities or obligations arising from matters
relating to employees of the Consolidated
Companies, including employee relations,
collective bargaining agreements, Plans, Foreign
Plans, and other compensation and employee benefit
plans;
(q) certificates, reports, environmental
audits and investigations, and other information
as the Co-Agents may request from any Consolidated
Company in order to satisfy the Lenders as to the
absence of any material liabilities or obligations
arising from environmental and employee health and
safety exposures to which the Consolidated
Companies may be subject, and the plans of the
Consolidated Companies with respect thereto;
(r) certificates, reports and other
information as the Co-Agents may request from any
Consolidated Company in order to satisfy the
Lenders as to the absence of any material li-
abilities or obligations arising from litigation
(including without limitation, products liability
and patent infringement claims) pending or
threatened against the Consolidated Companies;
(s) a summary, set forth in format and
detail acceptable to the Co-Agents, of the types
and amounts of insurance (property and liability)
maintained by the Consolidated Companies;
(t) the favorable opinions of (i) Xxxxxxxxxx
Xxxxxxxx XXX, Xxxxxx Xxxxxx counsel to the Credit
Parties, substantially in the form of Exhibit X-0,
(xx) Xxxxxxx & Xx., Xxxxxx Xxxxxxx counsel to
Europe Limited substantially in the form of
Exhibit G-2, and (iii) Xxxxx Dutilh, Netherlands
counsel to Scherpenzeel B.V. substantially in the
form of Exhibit G-3, in each case addressed to the
Co-Agents and each of the Lenders, and covering
such other matters as either Co-Agent or any
Lender may reasonably request;
(u) the favorable opinions of Xxxxxxxx
Chance, special counsel to the Co-Agents and the
Lenders, as to any matters relating to the Credit
Documents under the laws of the United Kingdom and
the Netherlands as may be requested by the Co-
Agents;
(v) the favorable opinion of Xxxxx, Xxxxx &
Xxxxxxx (or Allens Xxxxxx Xxxxxxxx), special
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Australian counsel to the Co-Agents and the
Lenders, as to any matters relating to the Credit
Documents arising under Australian law as may be
requested by the Co-Agents; and
(w) the favorable opinion of XxXxxxxx
Xxxxxxxx, special Canadian counsel to the Co-
Agents and the Lenders, as to any matters relating
to the Credit Documents arising under Canadian law
as may be requested by the Co-Agents.
In addition to the foregoing, the following conditions shall have
been satisfied or shall have existed, all to the satisfaction of
the Co-Agents, as of the time this Second Amended and Restated
Credit Agreement becomes effective:
(x) the Loans to be made on the Closing Date
and the use of proceeds thereof shall not have
contravened, violated or conflicted with, or
involved the Co-Agents or any Lender in a vio-
lation of, any law, rule, injunction, or
regulation, or determination of any court of law
or other governmental authority;
(y) all corporate proceedings and all other
legal matters in connection with the
authorization, legality, validity and
enforceability of the Credit Documents shall have
been reasonably satisfactory in form and substance
to the Required Lenders; and
(z) Interface shall have paid to the Domestic
Agent (i) from the proceeds of the 1997 Term Loan,
(A) $50,000,000 for application against the
outstanding Domestic Revolving Loans, and (B)
$25,000,000 for application against the
outstanding Term Loans, and (ii) interest accrued
and unpaid on the Loans paid as described in
clause (i) to the date of such payment, and all
compensation payments pursuant to Section 5.12.
Section 6.02. Conditions to Initial Loans to
Europe Limited. Prior to the making of the initial Multicurrency
Syndicated Loans to Europe Limited, Interface and the
Multicurrency Agent shall have received with respect to Europe
Limited the forms required to be furnished by the Multicurrency
Syndicated Lenders pursuant to Section 5.07(b)(v)(B) or such
other satisfactory evidence, in each case, establishing a
complete exemption for such Multicurrency Syndicated Lender from
United Kingdom withholding tax for payments of all principal and
interest from Europe Limited.
Section 6.03. Conditions to All Loans. At the
time of the making of all Loans (before as well as after giving
effect to such Loans and the proposed use of the proceeds
thereof), the following conditions shall have been satisfied or
shall exist:
(a) there shall exist no Default or Event of
Default;
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(b) all representations and warranties by
Interface contained herein, and all
representations and warranties by the other
Borrowers contained herein, shall be true and cor-
rect in all material respects with the same effect
as though such representations and warranties had
been made on and as of the date of such Loans
(except that the representation and warranty set
forth in Section 7.19 shall not be deemed to
relate to any time subsequent to the date of the
initial Loans hereunder);
(c) since the date of the most recent
financial statements of the Consolidated Companies
described in Section 7.14(a), there shall have
been no change which has had or could reasonably
be expected to have a Materially Adverse Effect
(whether or not any notice with respect to such
change has been furnished to the Lenders pursuant
to Section 8.07);
(d) there shall be no action or proceeding
instituted or pending before any court or other
governmental authority or, to the knowledge of any
Borrower, threatened (i) which reasonably could be
expected to have a Materially Adverse Effect, or
(ii) seeking to prohibit or restrict one or more
Credit Party's ownership or operation of any
portion of its business or assets, or to compel
one or more Credit Party to dispose of or hold
separate all or any portion of its businesses or
assets, where such portion or portions of such
business(es) or assets, as the case may be,
constitute a material portion of the total
businesses or assets of the Consolidated
Companies;
(e) the Loans to be made and the use of
proceeds thereof shall not contravene, violate or
conflict with, or involve the Co-Agents or any
Lender in a violation of, any law, rule,
injunction, or regulation, or determination of any
court of law or other governmental authority
applicable to any of the Borrowers; and
(f) Interface shall have given to the Co-
Agents with its notice of Borrowing written notice
of its intent to use any proceeds of any Loan then
being requested for the purchase or carrying of
any "margin stock" (as defined in the Margin
Regulations); and
(g) The Co-Agents shall have received such
other documents (including, without limitation,
any necessary Federal Reserve Form U-1 or other
similar form required by the Margin Regulations)
or legal opinions as the Co-Agents or any Lender
may reasonably request, all in form and substance
reasonably satisfactory to the Co-Agents.
Each request for a Borrowing and the acceptance by
each Borrower of the proceeds thereof shall constitute a
representation and warranty by such Borrower, as of the date of
the Loans comprising such Borrowing, that the applicable
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conditions specified in Sections 6.01 and 6.03 (and Section 6.02
with respect to Europe Limited) have been satisfied.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
Each of Interface (as to itself and all other
Consolidated Companies, whether or not Interface is a Borrower
hereunder) and each of the other Borrowers (as to itself and all
of its Subsidiaries) represents and warrants as follows:
Section 7.01. Organizational Existence;
Compliance with Law. Each of the Consolidated Companies is duly
organized, validly existing, and in good standing under the laws
of the jurisdiction of its organization, and each of the Credit
Parties has the corporate or other organizational power and
authority and the legal right to own and operate its property
and to conduct its business. Each of the Consolidated Companies
(i) other than the Credit Parties, has the corporate or other
organizational power and authority and the legal right to own and
operate its property and to conduct its business, (ii) is duly
qualified as a foreign corporation or other organization and in
good standing under the laws of each jurisdiction where its
ownership of property or the conduct of its business requires
such qualification, and (iii) is in compliance with all
Requirements of Law, where (a) with respect to those Consolidated
Companies that are not Credit Parties, the failure to have such
power, authority and legal right as set forth in clause (i),
(b) the failure to be so qualified or in good standing as set
forth in clause (ii), or (c) the failure to comply with
Requirements of Law as set forth in clause (iii), would rea-
sonably be expected, in the aggregate, to have a Materially Ad-
verse Effect. The jurisdiction of incorporation or organization,
and the ownership of all issued and outstanding capital stock or
other equity interests, for each Subsidiary as of the date of
this Agreement is accurately described on Schedule 7.01.
Section 7.02. Organizational Power;
Authorization. Each of the Credit Parties has the corporate or
other organizational power and authority to make, deliver and
perform the Credit Documents to which it is a party and has taken
all necessary corporate or other organizational action to
authorize the execution, delivery and performance of such Credit
Documents. No consent or authorization of, or filing with, any
Person (including, without limitation, any governmental
authority), is required in connection with the execution,
delivery or performance by any Credit Party, or the validity or
enforceability against any Credit Party, of the Credit Documents,
other than (i) such consents, authorizations or filings which
have been made or obtained (including without limitation, any
necessary consultations with any Credit Party's supervisory
board, works council ("Ondernemingsraad") or similar body), and
(ii) customary filings to perfect the Liens in favor of the
Collateral Agent granted in the IRB Collateral Documents.
Section 7.03. Enforceable Obligations. This
Agreement has been duly executed and delivered, and each other
Credit Document will be duly executed and delivered, by the
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respective Credit Parties, and this Agreement constitutes, and
each other Credit Document when executed and delivered will
constitute, legal, valid and binding obligations of the Credit
Parties, respectively, enforceable against the Credit Parties in
accordance with their respective terms, except as may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium,
or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity.
Section 7.04. No Legal Bar. The execution,
delivery and performance by the Credit Parties of the Credit
Documents will not violate any Requirement of Law or cause a
breach or default under any of their respective Contractual
Obligations.
Section 7.05. No Material Litigation. Except as
set forth on Schedule 7.05 or in any notice furnished to the
Lenders pursuant to Section 8.07(i) at or prior to the respective
times the representations and warranties set forth in this
Section 7.05 are made or deemed to be made hereunder, no
litigation, investigations or proceedings of or before any
courts, tribunals, arbitrators or governmental authorities are
pending or, to the knowledge of any Borrower, threatened by or
against any of the Consolidated Companies, or against any of
their respective properties or revenues, existing or future
(a) with respect to any Credit Document, or any of the
transactions contemplated hereby or thereby, or (b) which, if
adversely determined, would reasonably be expected to have a
Materially Adverse Effect.
Section 7.06. Investment Company Act, Etc. None
of the Credit Parties is an "investment company" or a company
"controlled" by an "investment company" (as each of the quoted
terms is defined or used in the Investment Company Act of 1940,
as amended). None of the Credit Parties is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal
Power Act, or any foreign, federal or local statute or regulation
limiting its ability to incur indebtedness for money borrowed,
guarantee such indebtedness, or pledge its assets to secure such
indebtedness, as contemplated hereby or by any other Credit Docu-
ment.
Section 7.07. Margin Regulations. No part of the
proceeds of any of the Loans will be used for any purpose which
violates, or which would be inconsistent or not in compliance
with, the provisions of the applicable Margin Regulations.
Section 7.08. Compliance With Environmental Laws.
(a) The Consolidated Companies have received no
notices of claims or potential liability under, and are in
compliance with, all applicable Environmental Laws, where such
claims and liabilities under, and failures to comply with, such
statutes, regulations, rules, ordinances, laws or licenses, would
reasonably be expected to result in penalties, fines, claims or
other liabilities (including, without limitation, remediation
costs and expenses) to the Consolidated Companies in amounts in
excess of $4,500,000, either individually or in the aggregate
(including any such penalties, fines, claims, or liabilities
relating to the matters set forth on Schedule 7.08(a)), except as
set forth on Schedule 7.08(a) or in any notice furnished to the
Lenders pursuant to Section 8.07(j) at or prior to the respective
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times the representations and warranties set forth in this
Section 7.08(a) are made or deemed to be made hereunder.
(b) Except as set forth on Schedule 7.08(b) or in
any notice furnished to the Lenders pursuant to Section 8.07(j)
at or prior to the respective times the representations and
warranties set forth in this Section 7.08(b) are made or deemed
to be made hereunder, none of the Consolidated Companies has
received during the period from January 1, 1983 through the date
of this Agreement, any notice of violation, or notice of any
action, either judicial or administrative, from any governmental
authority (whether United States or foreign) relating to the
actual or alleged violation of any Environmental Law, including,
without limitation, any notice of any actual or alleged spill,
leak, or other release of any Hazardous Substance, waste or
hazardous waste by any Consolidated Company or its employees or
agents, or as to the existence of any contamination on any
properties owned by any Consolidated Company, where any such
violation, spill, leak, release or contamination would reasonably
be expected to result in penalties, fines, claims or other
liabilities (including, without limitation, remediation costs and
expenses) to the Consolidated Companies in amounts in excess of
$4,500,000, either individually or in the aggregate (including
any such penalties, fines, claims or liabilities relating to the
matters set forth on Schedule 7.08(a)); provided, however, that
with respect to the period from January 1, 1983, through
December 31, 1986, such representation and warranty shall be
deemed to be made only with respect to notices known to and
disclosed by the Consolidated Companies in this Agreement and any
additional notices of which any Credit Party has actual knowledge
as of the date of this Agreement or hereafter.
(c) The Consolidated Companies have obtained all
necessary governmental permits, licenses and approvals which are
material to the operations conducted on their respective
properties, including without limitation, all required material
permits, licenses and approvals for (i) the emission of air
pollutants or contaminates, (ii) the treatment or pretreatment
and discharge of waste water or storm water, (iii) the treatment,
storage, disposal or generation of hazardous wastes, (iv) the
withdrawal and usage of ground water or surface water, and
(v) the disposal of solid wastes.
Section 7.09. Insurance. The Consolidated
Companies currently maintain insurance with respect to their
respective properties and businesses, with financially sound and
reputable insurers, having coverages against losses or damages of
the kinds customarily insured against by reputable companies in
the same or similar businesses, such insurance being in amounts
no less than those amounts which are customary for such companies
under similar circumstances. The Consolidated Companies have
paid all material amounts of insurance premiums now due and owing
with respect to such insurance policies and coverages, and such
policies and coverages are in full force and effect.
Section 7.10. No Default. None of the
Consolidated Companies is in default under or with respect to any
Contractual Obligation in any respect which has had or is
reasonably expected to have a Materially Adverse Effect.
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Section 7.11. No Burdensome Restrictions. Except
as set forth on Schedule 7.11 or in any notice furnished to the
Lenders pursuant to Section 8.07(p) at or prior to the respective
times the representations and warranties set forth in this Sec-
tion 7.11 are made or deemed to be made hereunder, none of the
Consolidated Companies is a party to or bound by any Contractual
Obligation or Requirement of Law which has had or would
reasonably be expected to have a Materially Adverse Effect.
Section 7.12. Taxes. Except as set forth on
Schedule 7.12, each of the Consolidated Companies have filed or
caused to be filed all declarations, reports and tax returns
which are required to have been filed, and has paid all taxes,
custom duties, levies, charges and similar contributions ("taxes"
in this Section 7.12) shown to be due and payable on said returns
or on any assessments made against it or its properties, and all
other taxes, fees or other charges imposed on it or any of its
properties by any governmental authority (other than those the
amount or validity of which is currently being contested in good
faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided in its
books); and no tax liens have been filed and, to the knowledge of
Interface or any other Borrower, no claims are being asserted
with respect to any such taxes, fees or other charges; excluding,
however, for purposes of the foregoing portions of this Section,
tax returns not filed or taxes not paid where the aggregate
amount of taxes involved does not exceed $2,500,000 in the
aggregate and the failure to file such returns or pay such taxes
has resulted from the Consolidated Companies being without
knowledge that the respective tax authorities are claiming such
taxes to be due.
Section 7.13. Subsidiaries. Except as disclosed
on Schedule 7.01, on the date of this Agreement, Interface has no
Subsidiaries and neither Interface nor any Subsidiary is a joint
venture partner or general partner in any partnership. After the
date of this Agreement, except as disclosed on Schedule 7.13 or
in any notice furnished pursuant to Section 8.07(q) at or prior
to the respective times the representations and warranties set
forth in this Section 7.13 are made or deemed to be made
hereunder, Interface has no Material Subsidiaries.
Section 7.14. Financial Statements. The
Borrowers have furnished to the Co-Agents and the Lenders (i) the
audited consolidated balance sheet of the Consolidated Companies
as at December 29, 1996 and the related consolidated statements
of income, shareholders' equity and cash flows for the 52-week
period then ended, including in each case the related schedules
and notes, and (ii) the unaudited balance sheet of the
Consolidated Companies as at the end of the first fiscal quarter
of 1997, and the related unaudited consolidated statements of in-
come, shareholders' equity, and cash flows for the period then
ended, setting forth in each case in comparative form the figures
for the previous fiscal year and first fiscal quarter, as the
case may be. The foregoing financial statements fairly present
in all material respects the consolidated financial condition of
such Consolidated Companies as at the dates thereof and results
of operations for such periods in conformity with GAAP
consistently applied. Such Consolidated Companies taken as a
whole do not have any material contingent obligations, contingent
liabilities, or material liabilities for known taxes, long-term
leases or unusual forward or long-term commitments not reflected
in the foregoing financial statements or the notes thereto.
Since December 29, 1996, there have been no changes with respect
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to such Consolidated Companies which has had or would reasonably
be expected to have a Materially Adverse Effect.
Section 7.15. ERISA. Except as disclosed on
Schedule 7.15 or in any notice furnished to the Lenders pursuant
to Section 8.07(k) at or prior to the respective times the
representations and warranties set forth in this Section 7.15 are
made or deemed to be made hereunder:
(a)(1) Identification of Plans. (A) None of the
Consolidated Companies nor any of their respective ERISA
Affiliates maintains or contributes to, or has during the past
two years maintained or contributed to, any Plan that is subject
to Title IV of ERISA, and (B) none of the Consolidated Companies
maintains or contributes to any Foreign Plan;
(2) Compliance. Each Plan and each Foreign Plan
maintained by the Consolidated Companies have at all times been
maintained, by their terms and in operation, in compliance with
all applicable laws, and the Consolidated Companies are subject
to no tax or penalty with respect to any Plan of such
Consolidated Company or any ERISA Affiliate thereof, including
without limitation, any tax or penalty under Title I or Title IV
of ERISA or under Chapter 43 of the Tax Code, or any tax or
penalty resulting from a loss of deduction under Sections 162,
404, or 419 of the Tax Code, where the failure to comply with
such laws, and such taxes and penalties, together with all other
liabilities referred to in this Section 7.15 (taken as a whole),
would in the aggregate have a Materially Adverse Effect;
(3) Liabilities. The Consolidated Companies are
subject to no liabilities (including withdrawal liabilities) with
respect to any Plans or Foreign Plans of such Consolidated Compa-
xxxx or any of their ERISA Affiliates, including without limita-
tion, any liabilities arising from Titles I or IV of ERISA, other
than obligations to fund benefits under an ongoing Plan and to
pay current contributions, expenses and premiums with respect to
such Plans or Foreign Plans, where such liabilities, together
with all other liabilities referred to in this Section 7.15
(taken as a whole), would in the aggregate have a Materially
Adverse Effect;
(4) Funding. The Consolidated Companies and,
with respect to any Plan which is subject to Title IV of ERISA,
each of their respective ERISA Affiliates, have made full and
timely payment of all amounts (A) required to be contributed
under the terms of each Plan and applicable law, and (B) required
to be paid as expenses (including PBGC or other premiums) of each
Plan, where the failure to pay such amounts (when taken as a
whole, including any penalties attributable to such amounts)
would have a Materially Adverse Effect. No Plan subject to Title
IV of ERISA has an "amount of unfunded benefit liabilities" (as
defined in Section 4001(a)(18) of ERISA), determined as if such
Plan terminated on any date on which this representation and
warranty is deemed made, in any amount which, together with all
other liabilities referred to in this Section 7.15 (taken as a
whole), would have a Materially Adverse Effect if such amount
were then due and payable. The Consolidated Companies are
subject to no liabilities with respect to post-retirement medical
benefits in any amounts which, together with all other
liabilities referred to in this Section 7.15 (taken as a whole),
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would have a Materially Adverse Effect if such amounts were then
due and payable.
(b) With respect to any Foreign Plan, reasonable
reserves have been established in accordance with prudent
business practice or where required by ordinary accounting
practices in the jurisdiction where the Foreign Subsidiary
maintains its principal place of business or in which the Foreign
Plan is maintained. The aggregate unfunded liabilities, after
giving effect to any reserves for such liabilities, with respect
to such Foreign Plans, together with all other liabilities
referred to in this Section 7.15 (taken as a whole), would not
have a Materially Adverse Effect.
Section 7.16. Patents, Trademarks, Licenses, Etc.
Except as set forth on Schedule 7.16 or in any notice furnished
to the Lenders pursuant to Section 8.07(p) at or prior to the
respective times the representations and warranties set forth in
this Section 7.16 are made or deemed to be made hereunder,
(i) the Consolidated Companies have obtained and hold in full
force and effect all material patents, trademarks, service marks,
trade names, copyrights, licenses and other such rights, free
from burdensome restrictions, which are necessary for the
operation of their respective businesses as presently conducted,
and (ii) to the best of the Borrowers' knowledge, no product,
process, method, service or other item presently sold by or
employed by any Consolidated Company in connection with such
business infringes any patents, trademark, service xxxx, trade
name, copyright, license or other right owned by any other person
and there is not presently pending, or to the knowledge of the
Borrowers, threatened, any claim or litigation against or
affecting any Consolidated Company contesting such Person's right
to sell or use any such product, process, method, substance or
other item where the result of such failure to obtain and hold
such benefits or such infringement would have a Materially
Adverse Effect.
Section 7.17. Ownership of Property. Except as
set forth on Schedule 7.17, (i) each Consolidated Company that is
not a Foreign Subsidiary has good and marketable fee simple title
to or a valid leasehold interest in all of its real property and
good title to, or a valid leasehold interest in, all of its other
property, and (ii) each Foreign Subsidiary owns or has a valid
leasehold interest in all of its real property and owns or has a
valid leasehold interest in, all of its other properties, in the
case of clauses (i) and (ii) as such properties are reflected in
the consolidated balance sheet of the Consolidated Companies as
of December 29, 1996, referred to in Section 7.14, other than
properties disposed of in the ordinary course of business since
such date or as otherwise permitted by the terms of this
Agreement, subject to no Lien or title defect of any kind, except
Liens permitted hereby and title defects not constituting
material impairments in the intended use for such properties.
The Consolidated Companies enjoy peaceful and undisturbed
possession under all of their respective leases.
Section 7.18. Indebtedness. Except as set forth
on Schedules 7.18 and 9.01, none of the Consolidated Companies is
an obligor in respect of any Indebtedness for borrowed money, or
any commitment to create or incur any Indebtedness for borrowed
money, in an amount not less than $1,000,000 in any single case,
and such Indebtedness and commitments for amounts less than
$1,000,000 do not exceed $5,000,000 in the aggregate for all such
Indebtedness and commitments of the Consolidated Companies.
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Section 7.19. Financial Condition. On the
Closing Date and after giving effect to the transactions
contemplated by this Agreement, the Letter of Credit Agreement,
and the other Credit Documents, including without limitation, the
use of the proceeds of the Term Loans, Multicurrency Revolving
Loans, and Domestic Revolving Loans as provided in Articles II,
III and IV (i) assets of each Credit Party at fair valuation and
based on their present fair saleable value (including, without
limitation, the fair and realistic value of (x) any contribution
or subrogation rights in respect of any Guaranty Agreement given
by such Credit Party, and (y) any Intercompany Loan owed to such
Credit Party) will exceed such Credit Party's debts, including
contingent liabilities (as such liabilities may be limited under
the express terms of any Guaranty Agreement of such Credit
Party), (ii) the remaining capital of such Credit Party will not
be unreasonably small to conduct the Credit Party's business, and
(iii) such Credit Party will not have incurred debts, or have
intended to incur debts, beyond the Credit Party's ability to pay
such debts as they mature. For purposes of this Section 7.19,
"debt" means any liability on a claim, and "claim" means (a) the
right to payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or
unsecured, or (b) the right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured.
Section 7.20. Intercompany Loans. The
Intercompany Loans and the Intercompany Loan Documents have been
duly authorized and approved by all necessary corporate and
shareholder action on the part of the parties thereto, and
constitute the legal, valid and binding obligations of the
parties thereto, enforceable against each of them in accordance
with their respective terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting creditors' rights generally, and by
general principles of equity.
Section 7.21. Labor Matters. Except as set forth
in Schedule 7.21 or in any notice furnished to the Lenders
pursuant to Section 8.07(p) at or prior to the respective times
the representations and warranties set forth in this Section 7.21
are made or deemed to be made hereunder, the Consolidated
Companies have experienced no strikes, labor disputes, slow downs
or work stoppages due to labor disagreements which have had, or
would reasonably be expected to have, a Materially Adverse
Effect, and, to the best knowledge of the Borrowers, there are no
such strikes, disputes, slow downs or work stoppages threatened
against any Consolidated Company. The hours worked and payment
made to employees of the Consolidated Companies have not been in
violation in any material respect of the Fair Labor Standards Act
(in the case of Consolidated Companies that are not Foreign
Subsidiaries) or any other applicable law dealing with such
matters. All payments due from the Consolidated Companies, or
for which any claim may be made against the Consolidated
Companies, on account of wages and employee health and welfare
insurance and other benefits have been paid or accrued as
liabilities on the books of the Consolidated Companies where the
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failure to pay or accrue such liabilities would reasonably be
expected to have a Materially Adverse Effect.
Section 7.22. Payment or Dividend Restrictions.
Except as set forth in Section 9.12 or described on
Schedule 7.22, none of the Consolidated Companies is party to or
subject to any agreement or understanding restricting or limiting
the payment of any dividends or other distributions by any such
Consolidated Company.
Section 7.23. Disclosure. No representation or
warranty contained in this Agreement (including the Schedules at-
tached hereto) or in any other document furnished from time to
time pursuant to the terms of this Agreement, contains or will
contain any untrue statement of a material fact or omits or will
omit to state any material fact necessary to make the statements
herein or therein not misleading as of the date made or deemed to
be made. Except as may be set forth herein (including the Sched-
ules attached hereto) or in any notice furnished to the Lenders
pursuant to Section 8.07 at or prior to the respective times the
representations and warranties set forth in this Section 7.23 are
made or deemed to be made hereunder, there is no fact known to
the Borrowers which has had, or is reasonably expected to have, a
Materially Adverse Effect.
ARTICLE VIII.
AFFIRMATIVE COVENANTS
So long as any Commitment remains in effect
hereunder or any Note shall remain unpaid, Interface (whether or
not it is a Borrower hereunder) and each other Borrower will:
Section 8.01. Organizational Existence, Etc.
Preserve and maintain, and cause each of its Material
Subsidiaries to preserve and maintain, its corporate or other
organizational existence, its material rights, franchises, and
licenses, and its material patents and copyrights (for the
scheduled duration thereof), trademarks, trade names, and service
marks, necessary or desirable in the normal conduct of its
business, and its qualification to do business as a foreign
corporation or other organization in all jurisdictions where it
conducts business or other activities making such qualification
necessary, where the failure to be so qualified would reasonably
be expected to have a Materially Adverse Effect.
Section 8.02. Compliance with Laws, Etc. Comply,
and cause each of its Subsidiaries to comply with all
Requirements of Law (including, without limitation, the
Environmental Laws subject to the exception set forth in
Section 7.08(a) where the penalties, claims, fines, and other
liabilities resulting from noncompliance with such Environmental
Laws do not involve amounts in excess of $10,000,000 in the
aggregate) and Contractual Obligations applicable to or binding
on any of them where the failure to comply with such Requirements
of Law and Contractual Obligations would reasonably be expected
to have a Materially Adverse Effect.
Section 8.03. Payment of Taxes and Claims, Etc.
Pay, and cause each of its Subsidiaries to pay, (i) all taxes,
assessments and governmental charges imposed upon it or upon its
property, and (ii) all claims (including, without limitation,
claims for labor, materials, supplies or services) which might,
if unpaid, become a Lien upon its property, unless, in each case,
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the validity or amount thereof is being contested in good faith
by appropriate proceedings and adequate reserves are maintained
with respect thereto.
Section 8.04. Keeping of Books. Keep, and cause
each of its Subsidiaries to keep, proper books of record and
account, containing complete and accurate entries of all their
respective financial and business transactions which are required
to be maintained in order to prepare the consolidated financial
statements of Interface in conformity with GAAP.
Section 8.05. Visitation, Inspection, Etc.
Permit, and cause each of its Subsidiaries to permit, any
representative of any Co-Agent or Lender to visit and inspect any
of its property, to examine its books and records and to make
copies and take extracts therefrom, and to discuss its affairs,
finances and accounts with its officers, all at such reasonable
times and as often as such Co-Agent or Lender may reasonably
request after reasonable prior notice to Interface; provided,
however, that at any time following the occurrence and during the
continuance of a Default or an Event of Default, no prior notice
to Interface shall be required. To the extent that any Co-Agent
or Lender thereby obtains possession of non-public information
constituting trade secrets, technology or other similar
proprietary information identified to the Co-Agent or Lender in
writing by Interface as being subject to confidential treatment
under this Agreement, such party shall treat such information as
confidential. In any event, such Co-Agent or Lender may, subject
to Section 12.06(e), make disclosure to any assignee or
participant, or to any prospective assignee or participant, in
connection with an assignment or participation permitted thereby,
or as required or requested by any governmental agency or
representative thereof, or as required to defend any legal action
or to exercise any rights, remedies or powers available to the
Agents or Lender under the Credit Documents or as otherwise
required by law or pursuant to legal process; provided, that,
unless prohibited by applicable law or court order, such Co-Agent
or Lender shall notify Interface as promptly as practicable after
receipt thereof of any governmental request, subpoena or court
order (other than any such request, subpoena or court order in
connection with an examination of the financial condition of such
Co-Agent or Lender by any governmental agency) for disclosure of
any such non-public information; provided, however, that no delay
or failure to provide such notice shall give rise to any claim,
defense or right of offset against such Lender or Co-Agent
hereunder. The foregoing shall not prohibit disclosure of such
information to the extent it has become public information other
than through a disclosure by a Co-Agent or Lender not otherwise
permitted herein.
Section 8.06. Insurance; Maintenance of
Properties.
(a) Maintain or cause to be maintained with
financially sound and reputable insurers, insurance with respect
to its properties and business, and the properties and business
of its Subsidiaries, against loss or damage of the kinds
customarily insured against by reputable companies in the same or
similar businesses, such insurance to be of such types and in
such amounts as is customary for such companies under similar
circumstances; provided, however, that in any event Interface and
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each other Borrower shall use their best efforts to maintain, or
cause to be maintained, insurance in amounts and with coverages
not materially less favorable to any Consolidated Company as in
effect on the date of this Agreement, except where the costs of
maintaining such insurance would, in the judgment of both
Interface and the Co-Agents, be excessive.
(b) Cause, and cause each of the Consolidated
Companies to cause, all properties used or useful in the conduct
of its business to be maintained and kept in good condition,
repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs,
renewals, replacements, settlements and improvements thereof, all
as in the judgment of Interface may be necessary so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent Interface from
discontinuing the operation or maintenance of any such properties
if such discontinuance is, in the judgment of Interface,
desirable in the conduct of its business or the business of any
Consolidated Company.
Section 8.07. Reporting Covenants. Furnish to
each Lender:
(a) Annual Financial Statements. As soon as
available and in any event within 120 days after
the end of each fiscal year of Interface, balance
sheets of the Consolidated Companies as at the end
of such year, presented on a consolidated and a
"line of business" basis, and the related
statements of income, shareholders' equity, and
cash flows of the Consolidated Companies for such
fiscal year, presented on a consolidated and a
"line of business" basis, setting forth in each
case in comparative form the figures for the
previous fiscal year, all in reasonable detail
and, except with respect to the financial
statements prepared on a "line of business" basis,
accompanied by a report thereon of BDO Xxxxxxx or
other independent public accountants of comparable
recognized national standing, which such report
shall be unqualified as to going concern and scope
of audit and shall state that such financial
statements present fairly in all material respects
the financial condition as at the end of such
fiscal year on a consolidated basis, and the
results of operations and statements of cash flows
of the Consolidated Companies for such fiscal year
in accordance with GAAP and that the examination
by such accountants in connection with such
consolidated financial statements has been made in
accordance with generally accepted auditing
standards;
(b) Quarterly Financial Statements. As soon
as available and in any event within 60 days after
the end of each fiscal quarter of Interface (other
than the fourth fiscal quarter), balance sheets of
the Consolidated Companies as at the end of such
quarter presented on a consolidated and a "line of
business" basis and the related statements of in-
come, shareholders' equity, and cash flows of the
Consolidated Companies for such fiscal quarter and
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for the portion of Interface's fiscal year ended
at the end of such quarter, presented on a
consolidated and a "line of business" basis
setting forth in each case in comparative form the
figures for the corresponding quarter and the
corresponding portion of Interface's previous
fiscal year, all in reasonable detail and
certified by the chief financial officer or
principal accounting officer of Interface that
such financial statements fairly present in all
material respects the financial condition of the
Consolidated Companies as at the end of such
fiscal quarter on a consolidated and "line of
business" basis, and the results of operations and
statements of cash flows of the Consolidated
Companies for such fiscal quarter and such portion
of Interface's fiscal year, in accordance with
GAAP consistently applied (subject to normal year-
end audit adjustments and the absence of certain
footnotes);
(c) No Default/Compliance Certificate.
Together with the financial statements required
pursuant to subsections (a) and (b) above, a
certificate of the president, chief financial
officer or principal accounting officer of
Interface (i) to the effect that, based upon a
review of the activities of the Consolidated
Companies and such financial statements during the
period covered thereby, there exists no Event of
Default and no Default under this Agreement, or if
there exists an Event of Default or a Default
hereunder, specifying the nature thereof and the
proposed response thereto, and (ii) demonstrating
in reasonable detail compliance as at the end of
such fiscal year or such fiscal quarter with Sec-
tion 8.09 and Sections 9.01 through 9.05;
(d) Excess Cash Flow Certificate. Together
with the financial statements required pursuant to
subsection (a) above, a certificate of the
president, chief financial officer or principal
accounting officer of Interface setting forth the
calculation of Excess Cash Flow in reasonable
detail for the fiscal year covered by such
financial statements;
(e) Auditor's No Default Certificate.
Together with the financial statements required
pursuant to subsection (a) above, a certificate of
the accountants who prepared the report referred
to therein, to the effect that, based upon their
audit, there exists no Default or Event of Default
under this Agreement, or if there exists a Default
or Event of Default hereunder, specifying the
nature thereof;
(f) Annual Budget. Within 120 days after
the beginning of each fiscal year, an annual
financial plan and forecasted balance sheets and
statements of income, shareholders' equity, and
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cash flows for such fiscal year for the Xxxxxxx-
dated Companies presented on a consolidated and
"line of business" basis;
(g) Notice of Default. Promptly after any
officer of Interface or any other Borrower has
notice or knowledge of the occurrence of an Event
of Default or a Default, a certificate of the
chief financial officer or principal accounting
officer of Interface specifying the nature thereof
and the proposed response thereto;
(h) Asset Sales. Together with the
financial statements required pursuant to
subsection (a) above, a certificate of the chief
financial officer or principal accounting officer
of Interface reporting all Asset Sales effected
by the Consolidated Companies during the fiscal
year covered by such financial statements which
involved Asset Values in excess of $1,000,000 in
any single transaction or related series of
transactions, including the Asset Value of such
assets and the amounts received by the
Consolidated Companies with respect to such sales,
and such other information regarding such
transactions as any Co-Agent or Lender may rea-
sonably request;
(i) Litigation. Promptly after (i) the
occurrence thereof, notice of the institution of
or any material adverse development in any
material action, suit or proceeding or any
governmental investigation or any arbitration,
before any court or arbitrator or any governmental
or administrative body, agency or official,
against any Consolidated Company, or any material
property of any thereof, or (ii) actual knowledge
thereof, notice of the threat of any such action,
suit, proceeding, investigation or arbitration;
(j) Environmental Notices. Promptly after
receipt thereof, notice of any actual or alleged
violation, or notice of any action, claim or
request for information, either judicial or
administrative, from any governmental authority
relating to any actual or alleged claim, notice of
potential responsibility under or violation of any
Environmental Law, or any actual or alleged spill,
leak, disposal or other release of any waste,
petroleum product, or hazardous waste or Hazardous
Substance by any Consolidated Company which could
result in penalties, fines, claims or other
liabilities to any Consolidated Company in amounts
in excess of $1,000,000;
(k) ERISA. (A)(i) Promptly after the
occurrence thereof with respect to any Plan of any
Consolidated Company or any ERISA Affiliate
thereof, or any trust established thereunder,
notice of (A) a "reportable event" described in
Section 4043 of ERISA and the regulations issued
from time to time thereunder (other than a
"reportable event" not subject to the provisions
for 30-day notice to the PBGC under such
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regulations), or (B) any other event which could
subject any Consolidated Company to any tax,
penalty or liability under Title I or Title IV of
ERISA or Chapter 43 of the Tax Code, or any tax or
penalty resulting from a loss of deduction under
Sections 162, 404 or 419 of the Tax Code, or any
tax, penalty or liability under any Requirement of
Law applicable to any Foreign Plan, where any such
taxes, penalties or liabilities exceed or could
exceed $1,000,000 in the aggregate;
(ii) Promptly after such notice must be
provided to the PBGC, or to a Plan participant,
beneficiary or alternative payee, any notice
required under Section 101(d), 302(f)(4), 303,
307, 4041(b)(1)(A) or 4041(c)(1)(A) of ERISA or
under Section 401(a)(29) or 412 of the Tax Code
with respect to any Plan of any Consolidated
Company or any ERISA Affiliate thereof;
(iii) Promptly after receipt, any notice
received by any Consolidated Company or any ERISA
Affiliate thereof concerning the intent of the
PBGC or any other governmental authority to
terminate a Plan of such Company or ERISA Af-
filiate thereof which is subject to Title IV of
ERISA, to impose any liability on such Company or
ERISA Affiliate under Title IV of ERISA or Chapter
43 of the Tax Code;
(iv) Promptly upon the filing thereof with
the Internal Revenue Service ("IRS") or the
Department of Labor ("DOL"), a copy of IRS Form
5500 or annual report for each Plan of any
Consolidated Company or ERISA Affiliate thereof
which is subject to Title IV of ERISA;
(v) Upon the request of the Co-Agents,
(A) true and complete copies of any and all
documents, government reports and IRS
determination or opinion letters or rulings for
any Plan of any Consolidated Company from the IRS,
PBGC or DOL, (B) any reports filed with the IRS,
PBGC or DOL with respect to a Plan of the
Consolidated Companies or any ERISA Affiliate
thereof, or (C) a current statement of withdrawal
liability for each Multiemployer Plan of any
Consolidated Company or any ERISA Affiliate
thereof;
(B) Promptly upon any Consolidated Company
becoming aware thereof, notice that (i) any
material contributions to any Foreign Plan have
not been made by the required due date for such
contribution and such default cannot immediately
be remedied, (ii) any Foreign Plan is not funded
to the extent required by the law of the
jurisdiction whose law governs such Foreign Plan
based on the actuarial assumptions reasonably used
at any time, or (iii) a material change is
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anticipated to any Foreign Plan that may have a
Materially Adverse Effect.
(l) Liens. Promptly upon any Consolidated
Company becoming aware thereof, notice of the
filing of any federal statutory Lien, tax or other
state or local government Lien or any other Lien
affecting their respective properties, other than
those Liens expressly permitted by Section 9.02;
(m) Domestication of Subsidiaries. Not less
than 30 days prior thereto, notice of any intended
domestication of any Foreign Subsidiary as a
United States corporation, whether by merger,
stock transfer or otherwise;
(n) Public Filings, Etc. Promptly upon the
filing thereof or otherwise becoming available,
copies of all financial statements, annual,
quarterly and special reports, proxy statements
and notices sent or made available generally by
Interface to its public security holders, of all
regular and periodic reports and all registration
statements and prospectuses, if any, filed by any
of them with any securities exchange, and of all
press releases and other statements made available
generally to the public containing material devel-
opments in the business or financial condition of
Interface and the other Consolidated Companies;
(o) Accountants' Reports. Promptly upon
receipt thereof, copies of all financial
statements of, and all reports submitted by,
independent public accountants to Interface in
connection with each annual, interim, or special
audit of Interface's financial statements,
including without limitation, the comment letter
submitted by such accountants to management in
connection with their annual audit;
(p) Burdensome Restrictions, Etc. Promptly
upon the existence or occurrence thereof, notice
of the existence or occurrence of (i) any
Contractual Obligation or Requirement of Law
described in Section 7.11, (ii) failure of any
Consolidated Company to hold in full force and
effect those trademarks, service marks, patents,
trade names, copyrights, licenses and similar
rights necessary in the normal conduct of its
business, the loss or absence of which could have
a Materially Adverse Effect, and (iii) any strike,
labor dispute, slow down or work stoppage as
described in Section 7.21;
(q) New Material Subsidiaries. Within
30 days after the formation or acquisition of any
Material Subsidiary, or any other event resulting
in the creation of a new Material Subsidiary,
notice of the formation or acquisition of such
Material Subsidiary or such occurrence, including
a description of the assets of such entity, the
activities in which it will be engaged, and such
other information as the Co-Agents may request;
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(r) Intercompany Asset Transfers. Promptly
upon the occurrence thereof, notice of the
transfer of any assets from any Credit Party to
any other Consolidated Company that is not a
Credit Party (in any transaction or series of
related transactions), excluding (i) sales or
other transfers of assets in the ordinary course
of business, where the Asset Value of such assets
is greater than $5,000,000, and (ii) sales of
accounts receivables or undivided ownership
interests therein pursuant to the terms of the
Accounts Receivable Facilities.
(s) Asset Sales. At any time that the
aggregate amount of Asset Sales made by the
Consolidated Companies after October 2, 1994
exceeds $10,000,000 (based on the Asset Values),
prompt notice of any additional Asset Sale or
related series of Asset Sales involving Asset
Values of $1,000,000 or more; and
(t) Other Information. With reasonable
promptness, such other information about the
Consolidated Companies as any Co-Agent or Lender
may reasonably request from time to time.
Section 8.08. Currency Contract.
The Borrowers shall maintain in full force and
effect Currency Contracts and Interest Rate Contracts pursuant to
the FNBC Currency Contract, subject to no changes of material
terms or conditions except as may be approved in writing by the
Co-Agents, and/or additional Currency Contracts and Interest Rate
Contracts pursuant to other interest rate and currency exchange
agreements, and in any event sufficient to protect the Borrowers
against fluctuations in interest and currency exchange rates with
respect to principal and interest payments on an aggregate no-
tional amount equal to $80,000,000 (or such lesser amount as
shall have been consented to in writing by the Co-Agents, such
consent not to be unreasonably withheld so long as such lesser
amount is at least $40,000,000) for an initial average maturity
of five (5) years (or such lesser initial average maturity as
shall have been consented to in writing by the Co-Agents, such
consent not to be unreasonably withheld so long as such lesser
initial average maturity is at least three years).
Notwithstanding the foregoing, the Consolidated Companies shall
determine to their own satisfaction whether Currency Contracts
and Interest Rate Contracts to which they are respective parties
are sufficient to provide protection against fluctuations in
interest rates and currency exchange rates, and to meet their
respective needs and (notwithstanding any approval, or failure to
approve, by the Co-Agents) neither the Co-Agents nor any Lender
shall have any obligation or accountability with respect thereto
or any obligation to propose, quote or enter into any Interest
Rate Contract or Currency Contract.
Section 8.09. Financial Covenants.
(a) Working Capital. Maintain as of the last day
of each fiscal quarter Adjusted Working Capital of at least
$110,000,000.
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(b) Interest Coverage. Maintain as of the last
day of each fiscal quarter, calculated with respect to the
immediately preceding four fiscal quarters, an Interest Coverage
Ratio not less than 2.25 to 1.00.
(c) Funded Debt Coverage. Maintain as of the
last day of each fiscal quarter, a maximum Funded Debt Coverage
Ratio as shown below for each fiscal quarter ending during the
periods indicated:
Maximum Funded
Debt Coverage
Period Ratio
------ -------------
January 9, 1995 through
June 29, 1997 4.75:1.00
June 30, 1997 and thereafter 4.50:1.00
(d) Senior Funded Debt to Total Capitalization.
Maintain as of the last day of each fiscal quarter a maximum
ratio of Senior Funded Debt to Total Capitalization, expressed as
a percentage, of no more than 50%.
(e) Leverage Ratio. Maintain as of the last day
of each fiscal quarter a maximum Leverage Ratio of sixty-five
percent (65%).
(f) First Fiscal Quarter Calculations. Sched-
ule 8.09 sets forth the calculation of the financial covenant
amounts, ratios, and percentages required by paragraphs (a)
through (e) of this Section 8.09 calculated as of the end of the
first fiscal quarter of Interface's 1997 fiscal year.
Section 8.10. Notices Under Certain Other
Indebtedness. Immediately upon its receipt thereof, Interface
shall furnish the Co-Agents a copy of any notice received by it
or any other Consolidated Company from the holder(s) of
Indebtedness referred to in Section 9.01(b), (c), (e), (g), (i),
(j) or (k) (or from any trustee, agent, attorney, or other party
acting on behalf of such holder(s)) in an amount which, in the
aggregate, exceeds $500,000, where such notice states or claims
(i) the existence or occurrence of any default or event of
default with respect to such Indebtedness under the terms of any
indenture, loan or credit agreement, debenture, note, or other
document evidencing or governing such Indebtedness, or (ii) with
respect to any Interface Control Debt, the existence or
occurrence of any event or condition which requires or permits
such holder(s) to exercise rights under any Change in Control
Provision. Interface agrees to take such actions as may be
necessary to require the holder(s) of Interface Control Debt (or
any trustee or agent acting on their behalf) to furnish copies of
all such notices directly to the Co-Agents simultaneously with
the furnishing thereof to Interface, and that such requirement
may not be altered or rescinded without the prior written consent
of the Co-Agents.
Section 8.11. Additional Credit Parties and
Collateral. Promptly after (i) the formation or acquisition of
any Material Subsidiary not listed on Schedule 7.13, (ii) the
transfer of assets to any Consolidated Company if notice thereof
is required to be given pursuant to Section 8.07(r) and as a
result thereof the recipient of such assets becomes a Material
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Subsidiary, (iii) the domestication of any Foreign Subsidiary
that is a Material Subsidiary, or (iv) the occurrence of any
other event creating a new Material Subsidiary (other than
Interface SPC which shall not be deemed to be a Material
Subsidiary for the purposes of this Section 8.11), Interface
shall execute and deliver, and cause to be executed and delivered
(x) a Pledge Agreement (or, in the case of Interface Heuga
Singapore Pte Ltd. or Interface Heuga Hong Kong Ltd., amendments
or supplements to the existing Pledge Agreement with respect to
the shares of such Subsidiary, or a new Pledge Agreement with
respect to such shares, as the Co-Agents may require pursuant to
the advice of their counsel) with respect to all capital stock of
such Material Subsidiary if it is not a Foreign Subsidiary, or
66% of the capital stock of such Material Subsidiary if it is a
Foreign Subsidiary directly owned by Interface or a Subsidiary
that is not, and is not directly or indirectly controlled by, a
Foreign Subsidiary, and (y) a Guaranty Agreement from each such
Material Subsidiary that is not a Foreign Subsidiary, together
with related documents of the kind described in Section 6.01(c),
(d), (f), (g), (h), and (t), all in form and substance satisfac-
tory to the Co-Agents.
Section 8.12. Accounts Receivable Facility. The
Accounts Receivable Facilities shall provide to Interface and
those Subsidiaries that are parties to the Receivables Transfer
Agreements financing for accounts receivable of an aggregate
amount outstanding at any time not to exceed $100,000,000.
ARTICLE IX.
NEGATIVE COVENANTS
So long as any Commitment remains in effect
hereunder or any Note shall remain unpaid, neither Interface
(whether or not it is a Borrower hereunder) nor any other
Borrower will or will permit any Subsidiary to:
Section 9.01. Indebtedness. Create, incur,
assume or suffer to exist any Indebtedness, other than:
(a) Indebtedness under this Agreement and
the 1997 Term Loan Agreement;
(b) The Senior Subordinated Notes and other
Indebtedness outstanding on the Closing Date and
described on Schedule 9.01(b);
(c) purchase money Indebtedness to the
extent secured by a Lien permitted by
Section 9.02(b) or 9.02(f);
(d) unsecured current liabilities (other
than liabilities for borrowed money or liabilities
evidenced by promissory notes, bonds or similar
instruments) incurred in the ordinary course of
business and either (i) not more than 90 days past
due, or (ii) being disputed in good faith by
appropriate proceedings with reserves for such
disputed liability maintained in conformity with
GAAP;
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(e) Indebtedness incurred with respect to
(i) the Letters of Credit issued for the account
of any Consolidated Company pursuant to the Letter
of Credit Agreement, and (ii) unsecured letters of
credit issued for the account of any Consolidated
Subsidiary in the ordinary course of business in
aggregate outstanding stated amounts not to exceed
$5,000,000;
(f) Indebtedness (other than liabilities for
borrowed money or liabilities evidenced by
promissory notes, bonds or similar instruments)
permitted under Section 9.02(c) or (d) or
Section 9.06, or permitted under Section 9.03 in
connection with the purchase, lease or other
acquisition of property or assets where such
Indebtedness is to the seller of such property or
assets and represents a deferral of payment for
such property or assets for a period not to exceed
the lesser of (i) normal trade terms for such
property or asset, or (ii) 180 days (commencing
from the date of delivery or, if applicable, the
date of installation of such property or asset);
(g) Subordinated Debt (other than the Senior
Subordinated Notes) in an aggregate principal
amount not to exceed $50,000,000;
(h) the Intercompany Loans described on
Schedule 7.20 and any other loans between
Consolidated Companies provided that (i) each loan
or other extension of credit made by a Guarantor
to another Consolidated Company that is not a
Guarantor hereunder shall be made payable on
demand and shall not be subordinated to other
obligations of such Consolidated Company and all
such loans and extensions of credit shall not
exceed $35,000,000 in the aggregate at any one
time outstanding (excluding Intercompany Loans
listed on Schedule 7.20 and other Intercompany
Loans made for the purpose of and used reasonably
concurrently for acquisitions permitted by Sec-
tion 9.03) unless otherwise agreed in writing by
the Required Lenders, (ii) each loan or other
extension of credit made to a Guarantor by another
Consolidated Company that is not a Guarantor
hereunder shall be made on a subordinated basis
consistent with the subordinated Intercompany
Loans in existence on the date of this Agreement
and no portion of the principal amount thereof
shall be payable prior to the Term Loan Final
Maturity Date or Revolver/Multicurrency Maturity
Date (whichever is last to occur), and (iii) such
loans or other extensions of credit are otherwise
permitted pursuant to the limitations of Section
9.05(c);
(i) Indebtedness under the Interest Rate
Contract(s) and Currency Contract(s) required to
be maintained pursuant to Section 8.08, or other
Currency Contracts entered into in the ordinary
course of business consistent with past practices;
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(j) Unsecured lines of credit, revolving
credit, and overdraft credit facilities described
on Schedule 9.01(j), and each extension, renewal,
and replacement of such credit facilities for
principal amounts not in excess of the respective
principal amounts shown on Schedule 9.01(j), and
having maturities in each case not longer than two
(2) years with annual renewals thereafter;
(k) Indebtedness, if any, owing by Interface
or Interface SPC pursuant to the Accounts
Receivable Facilities and Indebtedness, if any,
owing by any other Consolidated Company party to
the Receivables Transfer Agreements with respect
thereto;
(l) Indebtedness in an aggregate principal
amount not to exceed $15,000,000 under the
Distributor Credit Facilities (including, without
limitation, Indebtedness arising from any Guaranty
by Interface or its Subsidiaries required to be
given in respect of a portion of the Distributor
Credit Facilities in connection with the
acquisition of ownership interests in any retail
distributor), together with any extensions or
renewals of such Distributor Credit Facilities to
the extent that such extensions or renewals do not
increase the respective principal amounts that may
be outstanding under such Distributor Credit
Facilities; and
(m) other Indebtedness not to exceed $15,000,000
at any one time outstanding.
Section 9.02. Liens. Create, incur, assume or
suffer to exist any Lien on any of its property now owned or
hereafter acquired to secure any Indebtedness other than:
(a) Liens existing on the date hereof
disclosed on Schedule 9.02;
(b) any Lien on any property securing
Indebtedness incurred or assumed for the purpose
of financing all or any part of the acquisition
cost of such property, provided that such Lien
does not extend to any other property, and
provided further that the aggregate amount of
Indebtedness secured by all such Liens at any time
does not exceed $10,000,000;
(c) Liens for taxes not yet due, and Liens
for taxes or Liens imposed by ERISA which are
being contested in good faith by appropriate
proceedings and with respect to which adequate
reserves are being maintained;
(d) statutory Liens of landlords and Liens
of carriers, warehousemen, mechanics, materialmen
and other Liens imposed by law created in the
ordinary course of business for amounts not yet
due or which are being contested in good faith by
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appropriate proceedings and with respect to which
adequate reserves are being maintained;
(e) Liens incurred or deposits made in the
ordinary course of business in connection with
workers' compensation, unemployment insurance and
other types of social security, or to secure the
performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds
and other similar obligations (exclusive of
obligations for the payment of borrowed money);
(f) Liens (other than those permitted by
paragraphs (a) through (e) of this Section 9.02)
encumbering assets having an Asset Value not
greater than $2,000,000 in the aggregate;
(g) Liens (i) in favor of the Collateral
Agent securing the Obligations hereunder and the
"Obligations" as defined in the 1997 Term Loan
Agreement, and (ii) securing Indebtedness under
the Interest Rate Contract and Currency Contract
required to be maintained pursuant to Section 8.08
(which Liens may be pari passu with the Liens in
favor of the Co-Agents and Lenders securing the
Obligations hereunder and the "Obligations" as
defined in the 1997 Term Loan Agreement, provided
that the properties and assets subject to such
Liens, and the terms and conditions of all
agreements and instruments granting or relating to
such Liens, shall be subject to the prior written
approval of the Co-Agents);
(h) Liens on any property included in the
IRB Collateral as may be approved by the
Collateral Agent pursuant to the terms of the
Letter of Credit Agreement; and
(i) Liens, if any, that may be deemed to
have been granted by any Consolidated Company in
favor of SPARCC, the Bank Purchasers or their
respective agents, on accounts receivable and
related property of such Consolidated Companies as
a result of the sale and assignment thereof (or of
undivided ownership interests therein) to SPARCC,
the Bank Purchasers or their respective agents
pursuant to the Accounts Receivable Facilities.
Section 9.03. Mergers, Acquisitions, Sales, Etc.
Merge or consolidate with any other Person, or sell, lease, or
otherwise dispose of its accounts, property or other assets
(including capital stock of Subsidiaries), or purchase, lease or
otherwise acquire all or any substantial portion of the property
or assets (including capital stock) of any Person; provided,
however, that the foregoing restrictions shall not be applicable
to (i) sales of equipment or other personal property being
replaced by other equipment or other personal property purchased
as a Capital Expenditure item, (ii) other Asset Sales (but
excluding Asset Sales occurring as part of any sale and leaseback
transactions permitted by Section 9.06) where, on the date of
execution of a binding obligation to make such Asset Sale
(provided that if the Asset Sale is not consummated within six
(6) months of such execution, then on the date of consummation of
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such Asset Sale rather than on the date of execution of such
binding obligation), the Asset Value of Asset Sales occurring
after October 2, 1994, taking into account the Asset Value of the
proposed Asset Sale, would not exceed (A) during any fiscal
quarter where Interface's Leverage Ratio for the preceding fiscal
quarter is equal to or greater than 50%, $25,000,000 in the
aggregate, (B) during any fiscal quarter where Interface's
Leverage Ratio for the preceding fiscal quarter is less than 50%
but equal to or greater than 35%, $50,000,000 in the aggregate,
and (C) during any fiscal quarter where Interface's Leverage
Ratio for the preceding fiscal quarter is less than 35%, an
unlimited amount, and in any such case where the Net Proceeds of
any such Asset Sale are applied to the extent required by Sec-
tion 2.03, Section 3.04 and Section 4.04, (iii) sales of
inventory in the ordinary course of business, (iv) sales of
accounts receivable (or of undivided ownership interests therein)
pursuant to the Accounts Receivable Facilities as along as the
total "Investment" of the purchasers party to the Receivables
Backup Purchase Agreements and the Receivable Sale Agreements (as
such term is defined in each such agreement) shall not exceed
$100,000,000 in aggregate amount outstanding at any time, (v)
purchases or other acquisitions of all or any substantial portion
of the property or assets of any Person (including capital stock)
during any fiscal year, provided that such transactions (x) have
been approved in advance by a majority of the board of directors
of the seller, and (y) have been demonstrated to the satisfaction
of the Co-Agents, through the preparation and delivery by
Interface to the Lenders prior to the execution of a contractual
obligation to make such purchase, of pro forma financial
statements demonstrating the effect of such transaction (in such
detail and using such form of presentation of historical and
forecasted financial information as may be satisfactory to the
Co-Agents), not to adversely affect the continued compliance of
the Consolidated Companies with the terms of this Agreement,
(vi) Asset Sales occurring as part of any sale and leaseback
transactions permitted pursuant to Section 9.06, or (vii) The
1996 Reorganization Transactions; provided, however, that no
transaction pursuant to clauses (i), (ii), (v) or (vi) above
shall be permitted if any Default or Event of Default otherwise
exists at the time of such transaction or would otherwise exist
as a result of such transaction.
Section 9.04. Dividends, Etc. Interface shall
not declare or pay any dividend on its capital stock, or make any
payment to purchase, redeem, retire or acquire any of its
Subordinated Debt or capital stock or any option, warrant, or
other right to acquire such Subordinated Debt or capital stock,
other than:
(i) dividends payable solely in shares
of capital stock;
(ii) payments made by Interface to
repurchase any shares of Class A Common Stock
of Interface previously delivered as a
portion of the consideration paid in the
Prince Street Acquisition, as may be provided
in the Prince Street Acquisition Agreement;
and
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(iii) cash dividends declared and paid,
and all other such payments made, after
December 29, 1991 (but excluding any payments
made pursuant to clause (ii) above) in an ag-
gregate amount at any time not to exceed (x)
$10,000,000, plus (y) fifty percent (50%) of
Consolidated Net Income (or minus one hundred
percent (100%) of Consolidated Net Loss)
earned during Interface's 1992 fiscal year
and thereafter (such period to be treated as
one accounting period);
provided, however, no such payment may be made pursuant to clause
(ii) above, and no such dividend or other payment may be paid or
made pursuant to clause (iii) above, unless (x) the full amount
of the mandatory prepayment required by Section 2.03(b), Section
3.04 or Section 4.04 has been made, and (y) no Default or Event
of Default exists at the time of such declaration or payment, or
would exist as a result of such declaration or payment. Nothing
in this Section 9.04 shall prevent the conversion of the
Convertible Preferred Stock into the common stock of Interface.
Section 9.05. Investments, Loans, Etc. Make,
permit or hold any Investments in any Person, or otherwise
acquire or hold any Subsidiaries, other than:
(a) Investments in Subsidiaries that are
Guarantors under this Agreement and Investments by
Interface in Interface SPC in the form of the
Receivables Subordinated Notes;
(b) Investments made and simultaneously used
for the acquisition of the capital stock of any
Person, or all or any substantial portion of the
property or assets of any Person, in an
acquisition permitted pursuant to Section 9.03;
(c) Investments in Subsidiaries, other than
those Subsidiaries that are Guarantors under this
Agreement, made after October 2, 1994, in an
aggregate amount not to exceed $35,000,000 unless
otherwise consented to in writing by the Required
Lenders; provided, however, that no Investment may
be made at any time that a Default or Event of
Default has occurred and is continuing or would
exist as a result of such Investment;
(d) direct obligations of the United States
or any agency thereof, or obligations guaranteed
by the United States or any agency thereof, in
each case supported by the full faith and credit
of the United States and maturing within one year
from the date of creation thereof;
(e) commercial paper maturing within one
year from the date of creation thereof rated in
the highest grade by a nationally recognized
credit rating agency;
(f) time deposits maturing within one year
from the date of creation thereof with, including
certificates of deposit issued by, any office
located in the United States of any bank or trust
company which is organized under the laws of the
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United States or any state thereof and has
capital, surplus and undivided profits aggregating
at least $500,000,000, including without
limitation, any such deposits in Eurodollars
issued by a foreign branch of any such bank or
trust company;
(g) Investments made by Plans and Foreign
Plans; and
(h) Investments (other than those permitted
by paragraphs (a) through (g) above) in an
aggregate amount not to exceed an amount equal to
15% of Interface's Consolidated Net Worth.
Section 9.06. Sale and Leaseback Transactions.
Sell or transfer any property, real or personal, whether now
owned or hereafter acquired, and thereafter rent or lease such
property or other property which any Consolidated Company intends
to use for substantially the same purpose or purposes as the
property being sold or transferred, except for such transactions
occurring after the date of this Agreement (i) with respect to
properties first acquired by any of the Consolidated Companies
after the date of this Agreement with the intent at the time of
such acquisition that such properties be the subjects of such
transactions, and such transactions are actually consummated
within 60 days after the initial acquisition of such properties,
so long as the Asset Values of such properties do not exceed
$25,000,000 in the aggregate, and (ii) with respect to all other
properties in all such transactions, so long as the Asset Values
of such other properties do not exceed $5,000,000 in the
aggregate.
Section 9.07. Transactions with Affiliates.
(a) Enter into any material transaction or series
of related transactions which in the aggregate would be material,
whether or not in the ordinary course of business, with any Af-
filiate of any Consolidated Company (but excluding any Affiliate
which is also a Consolidated Company), other than on terms and
conditions substantially as favorable to such Consolidated
Company as would be obtained by such Consolidated Company at the
time in a comparable arm's-length transaction with a Person other
than an Affiliate.
(b) Convey or transfer to any other Person
(including any other Consolidated Company) any real property,
buildings, or fixtures used in the manufacturing or production
operations of any Consolidated Company, or convey or transfer to
any other Consolidated Company any other assets (excluding
conveyances or transfers in the ordinary course of business) if
at the time of such conveyance or transfer any Default or Event
of Default exists or would exist as a result of such conveyance
or transfer.
Section 9.08. Optional Prepayments. Directly or
indirectly, prepay, purchase, redeem, retire, defease or
otherwise acquire, or make any optional payment on account of any
principal of, interest on, or premium payable in connection with
the optional prepayment, redemption or retirement of, any of its
Indebtedness, or give a notice of redemption with respect to any
such Indebtedness, or make any payment in violation of the
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subordination provisions of any Subordinated Debt, except with
respect to (i) the Obligations under this Agreement and the
Notes, and Indebtedness arising under the 1997 Term Loan
Agreement, (ii) redemptions, purchases or other acquisition of
the Subordinated Debentures as previously permitted by this
Agreement, (iii) prepayments of Indebtedness outstanding pursuant
to revolving credit, overdraft and line of credit facilities
permitted pursuant to Section 9.01, (iv) permitted prepayments of
Indebtedness incurred in connection with industrial revenue bonds
upon the occurrence of a determination of an event of taxability
entitling the holder(s) thereof to receive a higher rate of
interest, (v) Intercompany Loans made or outstanding pursuant to
Section 9.01(h)(i) where demand for payment has been made in
accordance with Section 9.13, and (vi) Intercompany Loans made or
outstanding pursuant to Section 9.01(h)(ii) upon the prior
written consent of the Co-Agents.
Section 9.09. Changes in Business. Enter into
any business which is substantially different from that presently
conducted by the Consolidated Companies taken as a whole, except
where the aggregate Investment made, and other funds expended or
committed, with respect to such business does not exceed
$7,500,000.
Section 9.10. ERISA. Take or fail to take any
action with respect to any Plan or Foreign Plan of any
Consolidated Company or, with respect to its ERISA Affiliates,
any Plans which are subject to Title IV of ERISA or to
continuation health care requirements for group health plans
under the Tax Code, including without limitation (i) establishing
any such Plan, (ii) amending any such Plan (except where required
to comply with applicable law), (iii) terminating or withdrawing
from any such Plan, or (iv) incurring an amount of unfunded
benefit liabilities, as defined in Section 4001(a)(18) of ERISA,
or any withdrawal liability under Title IV of ERISA with respect
to any such Plan, or any unfunded liabilities under any Foreign
Plan, without first obtaining the written approval of the
Required Lenders, where such actions or failures could result in
a Material Adverse Effect.
Section 9.11. Additional Negative Pledges.
Create or otherwise cause or suffer to exist or become effective,
directly or indirectly, any prohibition or restriction on the
creation or existence of any Lien upon any asset of any
Consolidated Company, other than pursuant to (i) Section 9.02,
(ii) the terms of any agreement, instrument or other document
pursuant to which any Indebtedness permitted by Section 9.02(b)
or 9.02(g) is incurred by any Consolidated Company, so long as
such prohibition or restriction applies only to the property or
asset being financed by such Indebtedness, (iii) any requirement
of applicable law or any regulatory authority having jurisdiction
over any of the Consolidated Companies; and (iv) the terms of the
Accounts Receivable Facilities with respect to the accounts
receivable and related property transferred thereunder and the
stock and other assets of Interface SPC.
Section 9.12. Limitation on Payment Restrictions
Affecting Consolidated Companies. Create or otherwise cause or
suffer to exist or become effective, any consensual encumbrance
or restriction on the ability of any Consolidated Company to
(i) pay dividends or make any other distributions on such
Consolidated Company's stock, other than the restrictions on
payment of dividends on Interface's common stock imposed in
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connection with the Convertible Preferred Stock, or (ii) pay any
indebtedness owed to Interface or any other Consolidated Company,
or (iii) transfer any of its property or assets to Interface or
any other Consolidated Company, except any consensual encumbrance
or restriction existing under the Credit Documents or the 1997
Term Loan Agreement. Notwithstanding the foregoing, nothing in
this Section 9.12 shall be deemed to prohibit restrictions on
dividends and distributions payable by Interface SPC, set forth
in, or required by, the terms of any document executed in
connection with the Accounts Receivable Facilities.
Section 9.13. Actions Under Certain Documents.
Without the prior written consent of the Co-Agents (which consent
shall not be unreasonably withheld), modify, amend, cancel or
rescind the Intercompany Loans or Intercompany Loan Documents, or
Subordinated Debt or any agreements or documents evidencing or
governing Subordinated Debt (except that a loan between
Consolidated Companies as permitted by Section 9.01(h) may be
modified or amended so long as it otherwise satisfies the
requirements of clause (ii) of Section 9.01(h)), or make demand
of payment or accept payment on any Intercompany Loans permitted
by Section 9.01(h)(ii), except that current interest accrued
thereon as of the date of this Agreement and all interest
subsequently accruing thereon (whether or not paid currently) may
be paid unless an Event of Default has occurred and is
continuing. In addition to the foregoing, without the prior
consent of the Co-Agents, the Consolidated Companies shall not
enter into any amendment or modification of the documents
executed in connection with the Accounts Receivable Facilities
which changes the definition of "Investment" or "Event of
Termination" used therein or any other material provision
thereof.
Section 9.14. Designated Senior Indebtedness.
Without the prior written consent of the Co-Agents, cause any
Indebtedness of Interface or any of its Subsidiaries, other than
Indebtedness owing under the 1997 Term Loan Agreement, to become
"Designated Senior Indebtedness" as provided in the Senior
Subordinated Notes Indenture.
ARTICLE X.
EVENTS OF DEFAULT
Upon the occurrence and during the continuance of
any of the following specified events (each an "Event of
Default"):
Section 10.01. Payments. Any Borrower shall fail
to make promptly when due (including, without limitation, by
mandatory prepayment) any principal payment with respect to the
Loans, or any Borrower shall fail to make within five (5) days
after the due date thereof any payment of interest, fee or other
amount payable hereunder;
Section 10.02. Covenants Without Notice.
Interface or any Borrower shall fail to observe or perform any
covenant or agreement contained in Sections 8.07(g), 8.09, 8.12,
9.01 through 9.06, 9.08, 9.09, and 9.11 through 9.14;
Section 10.03. Other Covenants. Interface or any
Borrower shall fail to observe or perform any covenant or
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agreement contained in this Agreement, other than those referred
to in Sections 10.01 and 10.02, and, if capable of being
remedied, such failure shall remain unremedied for 25 days after
the earlier of (i) Interface's or any Borrower's obtaining
knowledge thereof, or (ii) written notice thereof shall have been
given to Interface by any Co-Agent or Lender;
Section 10.04. Representations. Any
representation or warranty made or deemed to be made by
Interface, any other Borrower or any other Credit Party or by any
of its officers under this Agreement or any other Credit Document
(including the Schedules attached thereto), or any certificate or
other document submitted to the Agents or the Lenders by any such
Person pursuant to the terms of this Agreement or any other
Credit Document, shall be incorrect in any material respect when
made or deemed to be made or submitted;
Section 10.05. Non-Payments of Other
Indebtedness. Any Consolidated Company shall fail to make when
due (whether at stated maturity, by acceleration, on demand or
otherwise, and after giving effect to any applicable grace
period) any payment of principal of or interest on any
Indebtedness (other than the Obligations) exceeding $2,500,000 in
the aggregate;
Section 10.06. Defaults Under Other Agreements.
Any Consolidated Company shall fail to observe or perform within
any applicable grace period any covenants or agreements contained
in any agreements or instruments relating to any of its
Indebtedness exceeding $2,500,000 in the aggregate, or any other
event shall occur if the effect of such failure or other event is
to accelerate, or to permit the holder of such Indebtedness or
any other Person to accelerate, the maturity of such
Indebtedness; or any such Indebtedness shall be required to be
prepaid (other than by a regularly scheduled required prepayment)
in whole or in part prior to its stated maturity;
Section 10.07. Bankruptcy. Interface or any
other Material Company shall commence a voluntary case concerning
itself under the Bankruptcy Code or applicable foreign bankruptcy
laws; or an involuntary case for bankruptcy is commenced against
any Material Company and the petition is not controverted within
10 days, or is not dismissed within 60 days, after commencement
of the case; or a custodian (as defined in the Bankruptcy Code)
or similar official under applicable foreign bankruptcy laws is
appointed for, or takes charge of, all or any substantial part of
the property of any Material Company; or any Material Company
commences proceedings of its own bankruptcy or to be granted a
suspension of payments or any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of
any jurisdiction, whether now or hereafter in effect, relating to
any Material Company or there is commenced against any Material
Company any such proceeding which remains undismissed for a
period of 60 days; or any Material Company is adjudicated
insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding is entered; or any Material
Company suffers any appointment of any custodian or the like for
it or any substantial part of its property to continue
undischarged or unstayed for a period of 60 days; or any Material
Company makes a general assignment for the benefit of creditors;
or any Material Company shall fail to pay, or shall state that it
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is unable to pay, or shall be unable to pay, its debts generally
as they become due; or any Material Company shall call a meeting
of its creditors with a view to arranging a composition or
adjustment of its debts; or any Material Company shall by any act
or failure to act indicate its consent to, approval of or
acquiescence in any of the foregoing; or any corporate action is
taken by any Material Company for the purpose of effecting any of
the foregoing;
Section 10.08. ERISA. A Plan or Foreign Plan of
a Consolidated Company or a Plan subject to Title IV of ERISA of
any of its ERISA Affiliates
(i) shall fail to be funded in accordance
with the minimum funding standard required by
applicable law, the terms of such Plan or Foreign
Plan, Section 412 of the Tax Code or Section 302
of ERISA for any plan year or a waiver of such
standard is sought or granted with respect to such
Plan or Foreign Plan under applicable law, the
terms of such Plan or Foreign Plan or Section 412
of the Tax Code or Section 303 of ERISA; or
(ii)is being, or has been, terminated or the subject
of termination proceedings under applicable law or the terms of such Plan or
Foreign Plan; or
(iii) shall require a Consolidated Company to
provide security under applicable law, the terms of such Plan or
Foreign Plan, Section 401 or 412 of the Tax Code or Section 306
or 307 of ERISA; or
(iv)results in a liability to a Consolidated Company under
applicable law, the terms of such Plan or Foreign Plan, or Title IV of
ERISA;
and there shall result from any such failure, waiver,
termination or other event a liability to the PBGC (or any
similar Person with respect to any Foreign Plan) or a Plan that
would have a Materially Adverse Effect.
Section 10.09. Money Judgment. A judgment or
order for the payment of money in excess of $2,500,000 or
otherwise having a Materially Adverse Effect shall be rendered
against Interface or any other Material Company and such judgment
or order shall continue unsatisfied (in the case of a money
judgment) and in effect for a period of 30 days during which
execution shall not be effectively stayed or deferred (whether by
action of a court, by agreement or otherwise);
Section 10.10. Ownership of Credit Parties. If
any Borrower (other than Interface) shall at any time fail to be
a wholly owned Subsidiary of Interface, either directly or indi-
rectly through another wholly owned Subsidiary of Interface, ex-
cept where all outstanding Loans made to such Borrower have been
paid in full and the Lenders shall have no further obligation to
extend additional credit to such Borrower;
Section 10.11. Change in Control of Interface.
(i) Any Change in Control shall occur or exist, or (ii) any event
or condition shall occur or exist which, pursuant to the terms of
any Change in Control Provision, requires or permits the
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holder(s) of Interface Control Debt to require that such
Interface Control Debt be redeemed, repurchased, defeased,
prepaid or repaid, in whole or in part, or the maturity of such
Interface Control Debt to be accelerated in any respect;
provided, however, that no Event of Default hereunder shall be
deemed to exist upon the occurrence of any event or condition
described in the foregoing clauses (i) or (ii) until thirty
(30) days after the first occurrence or existence of such event
or condition;
Section 10.12. Default Under Other Credit
Documents. There shall exist or occur any "Event of Default" as
provided under the terms of any other Credit Document (excluding
the IRB Collateral Documents), or any Credit Document (including
the IRB Collateral Documents) ceases to be in full force and
effect or the validity or enforceability thereof is disaffirmed
by or on behalf of Interface or any other Credit Party, or at any
time it is or becomes unlawful for Interface or any other Credit
Party to perform or comply with its obligations under any Credit
Document (including the IRB Collateral Documents), or the
obligations of Interface or any other Credit Party under any
Credit Document (including the IRB Collateral Documents) are not
or cease to be legal, valid and binding on Interface or any such
Credit Party;
Section 10.13. Default Under Interest Rate
Contract or Currency Contract. Any event or condition shall
occur or exist which causes, or permits any party thereto (other
than the Consolidated Company or Companies party thereto) to
cause, the termination or cancellation of the FNBC Currency
Contract or any other Interest Rate Contract or Currency Contract
(excluding any termination or cancellation effected at the option
of Interface in the exercise of Interface's business judgment or
any other termination or cancellation of such Interest Rate
Contract or Currency Contract not resulting from any breach of
such agreement or default thereunder by any Consolidated Company
or Companies), and as a result of such cancellation or termi-
nation, any of the Consolidated Companies would be required to
make net payments thereunder in excess of $2,500,000 in the ag-
gregate;
Section 10.14. Attachments. An attachment or
similar action shall be made on or taken against any of the
assets of any Consolidated Company with an Asset Value exceeding
$5,000,000 in aggregate and is not removed within 90 days of the
same being made;
Section 10.15. Accounts Receivable Facility.
There shall exist and continue for five (5) days any "Event of
Termination" as provided under the terms of any of the
Receivables Backup Purchase Agreements or the Receivables Sale
Agreements (collectively, the "Receivables Securitization
Agreements") other than an Event of Termination which arises
from: (i) the matters described in subsection 12.1(f) of the
Receivables Securitization Agreements; (ii) any reduction in
Interface's credit rating (or the imputed equivalent thereof);
(iii) the operation of a cross-termination provision in such
Receivables Securitization Agreements (that is, a provision in
such Receivables Securitization Agreements under which the
occurrence of any "Event of Termination" under any other
Receivables Securitization Agreement is also an Event of
Termination under such Receivables Securitization Agreements)
which is not otherwise an Event of Default hereunder; (iv) any
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Consolidated Company's failure to comply with, or its making of
any changes in or supplements to, its credit and collection
policies; (v) any failure by Interface to maintain the minimum
net worth required in Interface SPC under the terms of such
Receivables Securitization Agreements; (vi) any amendment of the
terms of any Consolidated Company's accounts receivable or any
contract relating thereto or any waiver by such Consolidated
Company of the terms and conditions of such contract; (vii) any
change in the character of the business of any of the
Consolidated Companies (which is not a violation of Section 9.09
hereof) or in their respective credit and collection policies;
(viii) Interface SPC's entering into or becoming a party to any
agreement or instruments incidental to its administration or
operation other than those expressly permitted under the terms of
such Receivables Securitization Agreement; (ix) any determination
that the payment by Interface SPC to any of the Consolidated
Companies of 100% of the net book value of the accounts
receivable does not constitute the "reasonably equivalent value"
of the accounts receivable and related rights sold by such
Consolidated Company to Interface SPC in connection with the
Accounts Receivable Facilities; (x) any change in the Certificate
of Incorporation or By-Laws of Interface SPC; (xi) any failure by
Interface SPC or Interface to comply with any of the affirmative
or negative covenants in such Receivables Securitization
Agreement which relate to the establishment and maintenance of
Interface SPC's separate legal identity; (xii) the past-due or
defaulted accounts receivable of any or all of the Consolidated
Companies exceeding any applicable limitations set forth in such
Receivables Securitization Agreement; (xiii) the aggregate
"Dilutions" (as such term is defined in such Receivables
Securitization Agreement) on any or all of the Consolidated
Companies' accounts receivable exceeding any applicable
limitation set forth in such Receivables Securitization
Agreement; or (xiv) the "Portfolio Turnover" (as such term is
used in such Receivables Securitization Agreement) exceeding any
applicable limitation set forth in such Receivables
Securitization Agreement; or
Section 10.16. 1997 Term Loan Agreement. There
shall exist or occur any "Event of Default" as provided under the
terms of the 1997 Term Loan Agreement.
ARTICLE XI.
THE CO-AGENTS; COLLATERAL AGENT
Section 11.01 Appointment of Co-Agents. Each
Multicurrency Syndicated Lender hereby designates FNBC as
Multicurrency Agent to administer all matters concerning the
Multicurrency Revolving Loans and to act as herein specified.
Each Domestic Syndicated Lender and Term Lender hereby designates
STBA as Domestic Agent to administer all matters concerning the
Domestic Revolving Loans (including, without limitation, the L/C
Subcommitments) and the Term Loans and to act as herein
specified. Each Lender hereby irrevocably authorizes, and each
holder of any Note by the acceptance of a Note shall be deemed
irrevocably to authorize, the Appropriate Co-Agent to take such
actions on its behalf under the provisions of this Agreement, the
Letter of Credit Agreement, the other Credit Documents, and all
other instruments and agreements referred to herein or therein,
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and to exercise such powers and to perform such duties hereunder
and thereunder as are specifically delegated to or required of
the Appropriate Co-Agent by the terms hereof and thereof and such
other powers as are reasonably incidental thereto. The Co-Agents
may perform any of their duties hereunder by or through their
agents or employees.
Section 11.02. Appointment of Collateral Agent.
(a) Each Co-Agent and each Lender hereby designates STBA as Col-
lateral Agent and hereby authorizes the Collateral Agent to
enter into each of the Security Documents substantially in the
form attached hereto and to the Letter of Credit Agreement, and
to take all action contemplated thereby. All rights and remedies
under the Security Documents may be exercised by the Collateral
Agent for the benefit of the Co-Agents and the Lenders and the
other beneficiaries thereof upon the terms thereof. The Co-
Agents and the Lenders further agree that the Collateral Agent
may assign its rights and obligations as Collateral Agent under
any of the Security Documents to any affiliate of the Collateral
Agent or to any trustee, which assignee in each such case shall
(subject to compliance with any requirements of applicable law
governing the assignment of such Security Documents) be entitled
to all the rights of the Collateral Agent under and with respect
to the applicable Security Document.
(b) In each circumstance where, under any
provision of any Security Document, the Collateral Agent shall
have the right to grant or withhold any consent, exercise any
remedy, make any determination or direct any action by the
Collateral Agent under such Security Document, the Collateral
Agent shall act in respect of such consent, exercise of remedies,
determination or action, as the case may be, with the consent of
and at the direction of the Required Lenders; provided, however,
that no such consent of the Required Lenders shall be required
with respect to any consent, determination or other matter that
is, in the Collateral Agent's judgment, ministerial or
administrative in nature; provided, further, that in no event
shall the Collateral Agent be required, and in all cases shall be
fully justified in failing or refusing, to take any action under
or pursuant to any Security Document which, in the reasonable
opinion of the Collateral Agent, (a) would be contrary to the
terms of any Security Document or would subject it or its
officers, employees, or directors to liability, unless and until
the Collateral Agent shall be indemnified or tendered security to
its satisfaction by the Lenders against any and all loss, cost,
expense or liability in connection therewith, or (b) would be
contrary to law, in each case anything herein or elsewhere con-
tained to the contrary notwithstanding. In each circumstance
where any consent of or direction from the Required Lenders is
required, the Collateral Agent shall send to the Lenders a notice
setting forth a description in reasonable detail of the matter as
to which consent or direction is requested and the Collateral
Agent's proposed course of action with respect thereto. In the
event the Collateral Agent shall not have received a response
from any Lender within five (5) Business Days after such Lender's
receipt of such notice, such Lender shall be deemed to have
agreed to the course of action proposed by the Collateral Agent.
Section 11.03. Nature of Duties of Agents. The
Agents shall have no duties or responsibilities except those
expressly set forth in this Agreement, the Letter of Credit
Agreement, and the other Credit Documents. None of the Agents
nor any of their respective officers, directors, employees or
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agents shall be liable for any action taken or omitted by it as
such hereunder or in connection herewith, unless caused by its or
their gross negligence or willful misconduct. The duties of the
Agents shall be ministerial and administrative in nature; the
Agents shall not have by reason of this Agreement or the Letter
of Credit Agreement a fiduciary relationship in respect of any
Lender; and nothing in this Agreement, express or implied, is
intended to or shall be so construed as to impose upon the Agents
any obligations in respect of this Agreement, the Letter of
Credit Agreement, or the other Credit Documents except as ex-
pressly set forth herein.
Section 11.04. Lack of Reliance on the Agents.
(a) Independently and without reliance upon the
Agents, each Lender, to the extent it deems appropriate, has made
and shall continue to make (i) its own independent investigation
of the financial condition and affairs of the Credit Parties in
connection with the taking or not taking of any action in
connection herewith, and (ii) its own appraisal of the
creditworthiness of the Credit Parties, and, except as expressly
provided in this Agreement or the Letter of Credit Agreement, the
Agents shall have no duty or responsibility, either initially or
on a continuing basis, to provide any Lender with any credit or
other information with respect thereto, whether coming into its
possession before the making of any Loans, or the issuance of any
Letters of Credit, or at any time or times thereafter.
(b) The Agents shall not be responsible to any
Lender for any recitals, statements, information, representations
or warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution,
effectiveness, genuineness, validity, enforceability,
collectibility, priority or sufficiency of this Agreement, the
Notes, the Guaranty Agreements, the Pledge Agreements, the Letter
of Credit Agreement, the L/C Cash Collateral Assignment, the IRB
Collateral Documents, or any other documents contemplated hereby
or thereby, or the financial condition of the Credit Parties, or
be required to make any inquiry concerning either the performance
or observance of any of the terms, provisions or conditions of
this Agreement, the Notes, the Guaranty Agreements, the Pledge
Agreements, the Letter of Credit Agreement, the L/C Cash
Collateral Assignment, the IRB Collateral Documents, or the other
documents contemplated hereby or thereby, or the financial
condition of the Credit Parties, or the existence or possible
existence of any Default or Event of Default; provided, however,
to the extent the Agents have been advised that a Lender has not
received any information formally delivered to the Agents
pursuant to Section 8.07, the Agents shall deliver or cause to be
delivered such information to such Lender.
Section 11.05. Certain Rights of the Agents. If
any Agent shall request instructions from the Required Lenders or
the Required Multicurrency Syndicated Lenders with respect to any
action or actions (including the failure to act) in connection
with this Agreement or the Letter of Credit Agreement, such Agent
shall be entitled to refrain from such act or taking such act,
unless and until the Agent shall have received instructions from
such Lenders; and the Agent shall not incur liability to any
Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever
against any Agent as a result of such Agent acting or refraining
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from acting hereunder in accordance with the instructions of the
Required Lenders or the Required Multicurrency Syndicated Lenders
where required by the terms of this Agreement or the Letter of
Credit Agreement.
Section 11.06. Reliance by Agents. The Agents
shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, statement,
certificate, telex, teletype or telecopier message, cable gram,
radiogram, order or other documentary, teletransmission or
telephone message believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person. The Agents
may consult with legal counsel (including counsel for any Credit
Party), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to
be taken by it in good faith in accordance with the advice of
such counsel, accountants or experts.
Section 11.07. Indemnification of Agents. To the
extent the Agents are not reimbursed and indemnified by the
Credit Parties, each Lender will reimburse and indemnify (i) each
Appropriate Co-Agent, ratably according to the respective
principal amounts of the Loans and participations in Letters of
Credit outstanding by each Lender under the Facilities
administered by such Agent of which such Lender is a part (or if
no amounts are outstanding, ratably in accordance with their
respective Commitments under the Facilities administered by such
Agent of which such Lender is a part), and (ii) the Collateral
Agent, ratably according to the respective amounts of the Loans
and Letters of Credit outstanding under all Facilities (or if no
amounts are outstanding, ratably in accordance with the Total
Commitments), in either case, for and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including counsel fees and
disbursements) or disbursements of any kind or nature whatsoever
which may be imposed on, incurred by or asserted against such
Agent in performing its duties hereunder, in any way relating to
or arising out of this Agreement or the other Credit Documents;
provided that no Lender shall be liable to any Agent for any
portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Agent's gross negligence or
willful misconduct.
Section 11.08. The Agents in their Individual
Capacity. With respect to its obligation to lend under this
Agreement, the Loans made by it and the Notes issued to it, and
its obligations pursuant to the Letter of Credit Agreement and
the reimbursement obligations to it thereunder, each Agent shall
have the same rights and powers hereunder as any other Lender or
holder of a Note and may exercise the same as though it were not
performing the duties specified herein; and the terms "Lenders",
"Required Lenders", "holders of Notes", or any similar terms
shall, unless the context clearly otherwise indicates, include
each of the Agents in its individual capacity. The Agents may
accept deposits from, lend money to, and generally engage in any
kind of banking, trust, financial advisory or other business with
the Consolidated Companies or any affiliate of the Consolidated
Companies as if it were not performing the duties specified
herein, and may accept fees and other consideration from the
Consolidated Companies for services in connection with this
Agreement, the Letter of Credit Agreement, and otherwise without
having to account for the same to the Lenders.
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Section 11.09. Holders of Notes. The Agents may
deem and treat the payee of any Note as the owner thereof for all
purposes hereof unless and until a written notice of the
assignment or transfer thereof shall have been filed with the
Agents. Any request, authority or consent of any Person who, at
the time of making such request or giving such authority or
consent, is the holder of any Note shall be conclusive and
binding on any subsequent holder, transferee or assignee of such
Note or of any Note or Notes issued in exchange therefor.
Section 11.10. Successor Agents.
(a) Any Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrowers and may
be removed at any time with or without cause by the Required
Lenders; provided, however, the Collateral Agent may not resign
or be removed except where the Collateral Agent is also resigning
or being removed and a successor Collateral Agent has been
appointed under this Agreement and the 1997 Term Loan Agreement
and shall have accepted such appointment. Upon any such
resignation or removal, the Required Lenders shall have the
right, upon five days' notice to the Borrowers, to appoint a
successor Agent; provided, however, that no Person shall be
appointed as a successor Collateral Agent by the Required Lenders
unless such Person is simultaneously being appointed as
Collateral Agent under the 1997 Term Loan Agreement. If no suc-
cessor Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days
after the retiring Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Agent, then, upon five
days' notice to the Borrowers, the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent, which shall (i) be a
bank which maintains an office in the United States, or a
commercial bank organized under the laws of the United States of
America or any State thereof, or any Affiliate of such bank,
having a combined capital and surplus of at least $100,000,000,
and (ii) in the case of a successor Collateral Agent,
simultaneously be appointed as Collateral Agent under the 1997
Term Loan Agreement.
(b) Upon the acceptance of any appointment as an
Agent hereunder and under the Letter of Credit Agreement by a
successor Agent, such successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations under this Agreement.
After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article XI shall inure to its
benefit as to any actions taken or omitted to be taken by it
while it was an Agent under this Agreement or the Letter of
Credit Agreement.
Section 11.11. Interests of FNBC and its
Affiliates. Each of the Lenders confirms and acknowledges that
FNBC has advised it that FNBC has engaged in other transactions
with, and performed financial advisory services for, Interface,
and further that certain affiliates of FNBC and a partnership
comprised of employees of an FNBC affiliate maintain ownership
interests in Bentley, as follows: (i) FNBC is party to certain
interest rate and currency exchange swap agreements and forward
rate agreements with one or more of the Consolidated Companies,
(ii) FNBC, through its Mergers and Acquisitions Group, served as
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financial advisor to Interface in connection with the Bentley
Acquisition, (iii) prior to the Bentley Acquisition, First
Chicago Investment Corporation, First Capital Corporation of
Chicago, and a partnership comprised of certain employees of
First Capital Corporation of Chicago (collectively, the "FNBC
Affiliates") owned, in the aggregate, a majority of the capital
stock of Bentley, and (iv) prior to the Bentley Acquisition, the
FNBC Affiliates elected a majority of the members of the Bentley
board of directors, including the member designated by the
Bentley board of directors to negotiate the sale of Bentley to
Interface. The FNBC Affiliates own a majority of the preferred
stock issued by Interface as a portion of the purchase price for
Bentley, and FNBC may continue to engage in other transactions
with, and perform financial advisory services for, Interface and
other Consolidated Companies. None of the foregoing
relationships or ownership interests shall preclude FNBC from
serving as Multicurrency Agent or Co-Agent hereunder or from
exercising all rights, privileges and remedies of a Lender under
this Agreement without regard to such relationships or ownership
interests.
ARTICLE XII.
MISCELLANEOUS
Section 12.01. Notices. All notices, requests
and other communications to any party hereunder shall be in
writing (including bank wire, telex, telecopy or similar
teletransmission or writing) and shall be given to such party at
its address or applicable teletransmission number set forth on
the signature pages hereof, or such other address or applicable
teletransmission number as such party may hereafter specify by
notice to the Co-Agents and the Borrowers. Each such notice,
request or other communication shall be effective (i) if given by
telex, when such telex is transmitted to the telex number
specified in this Section and the appropriate answerback is
received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid, (iii) if given by telecopy, when
such telecopy is transmitted to the telecopy number specified in
this Section and the appropriate confirmation is received, or
(iv) if given by any other means (including, without limitation,
by air courier), when delivered or received at the address
specified in this Section; provided that notices to the Co-Agents
shall not be effective until received.
Section 12.02. Amendments, Etc. No amendment or
waiver of any provision of this Agreement or the other Credit
Documents, nor consent to any departure by any Credit Party
therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Required Lenders, and then such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided
that no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders (or, in the case of any amendment or
waiver of Section 6.02, all the Multicurrency Syndicated Lenders)
do any of the following: (i) waive any of the conditions speci-
fied in Sections 6.01, 6.02 or 6.03, or in Sections 3.1 or 3.2 of
the Letter of Credit Agreement, (ii) increase the Commitments or
other contractual obligations to the Borrowers under this
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Agreement or the Letter of Credit Agreement, (iii) reduce the
principal of, or interest on, the Notes or any fees hereunder or
under the Letter of Credit Agreement, (iv) postpone any date
fixed for the payment in respect of principal of, or interest on,
the Notes or any fees hereunder or under the Letter of Credit
Agreement, (v) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the number or
identity of Lenders which shall be required for the Lenders or
any of them to take any action hereunder or under the Letter of
Credit Agreement, (vi) agree to release any of the Pledged Stock
from the Lien of the Security Documents, any funds in the L/C
Cash Collateral Account, or any collateral described in the IRB
Collateral Documents, to the extent securing the Obligations or
to release any Guarantor from its obligations under any Guaranty
Agreement (provided, that no agreement to any such release shall
be required from any Lenders in connection with the transactions
described in the proviso set forth in the definition of "Pledged
Stock" or in connection with a sale of Pledged Stock that is made
at a time when Interface has satisfied the requirements set forth
in Section 9.03(ii)(C) with respect to such sale), or (vii) amend
this Section 12.02 or Section 12.06. Furthermore, no amendment
or waiver of any provision of this Agreement or consent to any
departure by any Credit Party therefrom as set forth in
Section 4.02, 4.06 or 5.13 hereof, or to the definition of the
terms Currency, Payment Office, FCB Account or FC Bank, shall be
effective unless in writing and signed by at least Multicurrency
Syndicated Lenders holding at least 66 2/3% of the Multicurrency
Syndicated Loan Commitments and signed by the Appropriate Co-
Agent (the "Required Multicurrency Syndicated Lenders").
Notwithstanding the foregoing, no amendment, waiver or consent
shall, unless in writing and signed by the Co-Agents or the
Collateral Agent, as the case may be, in addition to the Lenders
required hereinabove to take such action, affect the rights or
duties of the Co-Agents or the Collateral Agent, as the case may
be, under this Agreement, the Letter of Credit Agreement, or
under any other Credit Document.
Section 12.03. No Waiver; Remedies Cumulative.
No failure or delay on the part of the Co-Agents, the Collateral
Agent, any Lender or any holder of a Note in exercising any right
or remedy hereunder or under the Letter of Credit Agreement or
any other Credit Document, and no course of dealing between any
Credit Party and the Co-Agents, the Collateral Agent, any Lender
or the holder of any Note shall operate as a waiver thereof, nor
shall any single or partial exercise of any right or remedy
hereunder or under the Letter of Credit Agreement or any other
Credit Document preclude any other or further exercise thereof or
the exercise of any other right or remedy hereunder or
thereunder. The rights and remedies herein expressly provided
are cumulative and not exclusive of any rights or remedies which
the Co-Agents, the Collateral Agent, any Lender or the holder of
any Note would otherwise have. No notice to or demand on any
Credit Party not required hereunder or under the Letter of Credit
Agreement or any other Credit Document in any case shall entitle
any Credit Party to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the
rights of the Co-Agents, the Collateral Agent, the Lenders or
the holder of any Note to any other or further action in any cir-
cumstances without notice or demand.
Section 12.04. Payment of Expenses, Etc. Each of
Interface and each other Borrower shall:
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(i) whether or not the transactions hereby
contemplated are consummated, pay all reasonable,
out-of-pocket costs and expenses of the Agents in
the administration (both before and after the
execution hereof and including advice of counsel
as to the rights and duties of the Agents and the
Lenders with respect thereto) of, and in
connection with the preparation, execution and
delivery of, preservation of rights under, en-
forcement of, and, after a Default or Event of
Default, refinancing, renegotiation or
restructuring of, this Agreement, the Letter of
Credit Agreement, and the other Credit Documents
and the documents and instruments referred to
therein, and any amendment, waiver or consent
relating thereto (including, without limitation,
the reasonable fees and disbursements of counsel
for the Agents), and in the case of enforcement of
this Agreement, the Letter of Credit Agreement, or
any Credit Document after an Event of Default, all
such reasonable, out-of-pocket costs and expenses
(including, without limitation, the reasonable
fees and disbursements of counsel), for any of the
Lenders;
(ii) subject, in the case of certain Taxes,
to the applicable provisions of Section 5.07(b),
pay and hold each of the Lenders harmless from and
against any and all present and future stamp,
documentary, and other similar Taxes with respect
to this Agreement, the Notes, the Letter of Credit
Agreement, and any other Credit Documents, any
collateral described therein, or any payments due
thereunder, and save each Lender harmless from and
against any and all liabilities with respect to or
resulting from any delay or omission to pay such
Taxes;
(iii) indemnify each Agent and Lender, and
their respective officers, directors, employees,
representatives and agents from, and hold each of
them harmless against, any and all costs, losses,
liabilities, claims, damages or expenses incurred
by any of them (whether or not any of them is
designated a party thereto) (an "Indemnitee")
arising out of or by reason of any investigation,
litigation or other proceeding related to any
actual or proposed use of the proceeds of any of
the Loans or the Letters of Credit, or any Credit
Party's entering into and performing of the
Agreement, the Notes, the Letter of Credit
Agreement, or the other Credit Documents,
including, without limitation, the reasonable fees
and disbursements of counsel (including foreign
counsel) incurred in connection with any such
investigation, litigation or other proceeding;
provided, however, the Borrowers shall not be
obligated to indemnify any Indemnitee for any of
the foregoing arising out of such Indemnitee's
gross negligence or willful misconduct, or the
violation by such Indemnitee of any law, rule or
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regulation, unless such violation occurs directly
or indirectly as a result of an action, inaction,
representation or misrepresentation by or on
behalf of any Credit Party or other Consolidated
Company; and
(iv) without limiting the indemnities set
forth in subsection (iii) above, indemnify each
Indemnitee for any and all expenses and costs
(including without limitation, remedial, removal,
response, abatement, cleanup, investigative,
closure and monitoring costs), losses, claims
(including claims for contribution or indemnity
and including the cost of investigating or
defending any claim and whether or not such claim
is ultimately defeated, and whether such claim
arose before, during or after any Credit Party's
ownership, operation, possession or control of its
business, property or facilities or before, on or
after the date hereof, and including also any
amounts paid incidental to any compromise or
settlement by the Indemnitee or Indemnitees to the
holders of any such claim), lawsuits, liabilities,
obligations, actions, judgments, suits,
disbursements, encumbrances, liens, damages
(including without limitation damages for
contamination or destruction of natural
resources), penalties and fines of any kind or
nature whatsoever (including without limitation in
all cases the reasonable fees, other charges and
disbursements of counsel in connection therewith)
incurred, suffered or sustained by that Indemnitee
based upon, arising under or relating to
Environmental Laws based on, arising out of or
relating to in whole or in part, the existence or
exercise of any rights or remedies by any
Indemnitee under this Agreement, the Letter of
Credit Agreement, any other Credit Document or any
related documents (but excluding those incurred,
suffered or sustained by any Indemnitee as a
result of any action taken by or on behalf of the
Lenders with respect to any Subsidiary of
Interface owned or controlled by the Lenders, the
Collateral Agent, or their nominees or designees,
as a result of their acquisition of Pledged Stock
pursuant to exercise of remedies under the Pledge
Agreements).
If and to the extent that the obligations of
Interface and each other Borrower under this
Section 12.04 are unenforceable for any reason,
Interface and each other Borrower hereby agree to
make the maximum contribution to the payment and
satisfaction of such obligations which is
permissible under applicable law.
Section 12.05. Right of Setoff. In addition to
and not in limitation of all rights of offset that any Lender or
other holder of a Note may have under applicable law, each Lender
or other holder of a Note shall, upon the occurrence of any Event
of Default and whether or not such Lender or such holder has made
any demand or any Credit Party's obligations are matured, have
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the right to appropriate and apply to the payment of any Credit
Party's obligations hereunder and under the Letter of Credit
Agreement and the other Credit Documents, all deposits of any
Credit Party (general or special, time or demand, provisional or
final) then or thereafter held by and other indebtedness or prop-
erty then or thereafter owing by such Lender or other holder to
any Credit Party, whether or not related to this Agreement or any
transaction hereunder.
Section 12.06. Benefit of Agreement.
(a) This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto, provided that the
Borrowers may not assign or transfer any of its interest
hereunder without the prior written consent of the Lenders.
(b) Any Lender may make, carry or transfer Loans
at, to or for the account of, any of its branch offices or the
office of an Affiliate of such Lender.
(c) Each Lender may assign all or a portion of
its interests, rights and obligations under this Agreement
(including all or a portion of any of its Commitments and the
Loans at the time owing to it and the Notes held by it) and the
Letter of Credit Agreement to any Eligible Assignee; provided,
however, that (i) the Co-Agents and Interface must give their
prior written consent to such assignment (which consent shall not
be unreasonably withheld; it being agreed that, in the case of
any assignment of an L/C Subcommitment or other obligations under
the Letter of Credit Agreement, such consent will be properly
withheld if such assignee does not then possess the "Minimum
Required Rating" as provided in the Letter of Credit Agreement
and has not been approved by the L/C Issuer in its sole
discretion), (ii) the aggregate amount of the Commitments and
outstanding Term Loans of the assigning Lender that are subject
to such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the
Co-Agents) shall not be less than $5,000,000, (iii) the assigning
Lender retains after the consummation of such assignment a
minimum aggregate amount of Commitments and Term Loans of
$10,000,000, (iv) the parties to each such assignment shall
execute and deliver to the Co-Agents an Assignment and
Acceptance, together with a Note or Notes subject to such
assignment and a processing and recordation fee of $2500, and (v)
if the assigning Lender is assigning all or any portion of its
interests, rights or obligations under this Agreement in respect
of such Lender's Term Loans, the assigning Lender shall also
assign to such Eligible Assignee a corresponding portion of its
interest, rights and obligations under the 1997 Term Loan
Agreement in respect of such assigning Lender's 1997 Term Loans;
provided, further, that in the case of any assignment made (x) at
any time there exists an Event of Default hereunder, (y) where
such assigning Lender is assigning the entire amount of its
Commitments and Term Loans hereunder, or (z) where such assigning
Lender is assigning to one of its Affiliates or to a Person that
is already a Lender under this Agreement prior to giving effect
to such assignment, then and in any such assignment described in
the preceding clauses (x), (y), or (z), the minimum amounts
specified in clauses (ii) and (iii) in this sentence shall not be
required. From and after the effective date specified in each
Assignment and Acceptance, which effective date shall be at least
five (5) Business Days after the execution thereof, the assignee
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thereunder shall be a party hereto and to the extent of the
interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement and the
Letter of Credit Agreement. Within five (5) Business Days after
receipt of the notice and the Assignment and Acceptance,
Interface and each of the other Borrowers, at its own expense,
shall execute and deliver to the Appropriate Co-Agent, in
exchange for the surrendered Note or Notes, a new Note or Notes
to the order of such assignee in a principal amount equal to the
applicable Commitments or Term Loans assumed by it pursuant to
such Assignment and Acceptance and new Note or Notes to the
assigning Lender in the amount of its retained Commitment or
Commitments or amount of its retained Term Loans. Such new Note
or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes,
shall be dated the date of the surrendered Note or Notes which
they replace, and shall otherwise be in substantially the form
attached hereto.
(d) Each Lender may, without the consent of
Interface, any other Borrower or the Agents, sell participations
to one or more banks or other entities in all or a portion of its
rights and obligations under this Agreement (including all or a
portion of its Commitments in the Loans owing to it and the Notes
held by it) and the Letter of Credit Agreement, provided,
however, that (i) no Lender may sell a participation in its
aggregate Commitments and Term Loans (after giving effect to any
permitted assignment hereof) in an amount in excess of fifty
percent (50%) of such aggregate Commitments and Term Loans,
except that no such maximum amount shall be applicable to any
such participation sold at any time there exists an Event of
Default hereunder, (ii) such Lender's obligations under this
Agreement and the Letter of Credit Agreement shall remain
unchanged, (iii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations,
and (iv) the participating bank or other entity shall not be
entitled to the benefit (except through its selling Lender) of
the cost protection provisions contained in Article V of this
Agreement, and (v) Interface, the other Borrowers and the Agents
and other Lenders shall continue to deal solely and directly with
each Lender in connection with such Lender's rights and
obligations under this Agreement, the Letter of Credit Agreement,
and the other Credit Documents, and such Lender shall retain the
sole right to enforce the obligations of Interface and the other
Borrowers relating to the Loans and the Letters of Credit, and to
approve any amendment, modification or waiver of any provisions
of this Agreement, the Letter of Credit Agreement, and the other
Credit Documents.
(e) Any Lender or participant may, in connection
with the assignment or participation or proposed assignment or
participation, pursuant to this Section, disclose to the assignee
or participant or proposed assignee or participant any
information relating to Interface or the other Consolidated
Companies furnished to such Lender by or on behalf of Interface
or any other Consolidated Company; provided that, prior to any
such disclosure of information designated by Interface as
confidential, the Lender proposing to make such assignment or
sell such participation shall obtain from such prospective
assignee or participant an agreement whereby such prospective
assignee or participant shall agree to preserve the
- 121 -
confidentiality of such confidential information consistent with
the provisions of Section 8.05.
(f) Any Lender may at any time assign all or any
portion of its rights in this Agreement and the Notes issued to
it to a Federal Reserve Bank; provided that no such assignment
shall release the Lender from any of its obligations hereunder.
(g) If (i) any Taxes referred to in
Section 5.07(b) have been levied or imposed so as to require
withholdings or deductions by any Borrower and payment by such
Borrower of additional amounts to any Lender as a result thereof,
(ii) any Lender shall make demand for payment of any material
additional amounts as compensation for increased costs or for its
reduced rate of return pursuant to Section 5.10 or 5.17 hereof or
Section 2.6(a) of the Letter of Credit Agreement, (iii) any
Lender shall decline to consent to a modification or waiver of
the terms of this Agreement, the Letter of Credit Agreement, or
the other Credit Documents requested by Interface, or (iv) any
Multicurrency Syndicated Lender shall fail to have delivered to
Interface by December 31, 1995, the certificate or other document
from the United Kingdom Inland Revenue as specified in
Section 5.07(b)(v)(B) unless such Multicurrency Syndicated Lender
shall otherwise establish, to the satisfaction of Interface, that
it is exempt from withholding taxes imposed by the United
Kingdom, then and in such event, upon request from Interface
delivered to such Lender and the Co-Agents, such Lender shall
assign, in accordance with the provisions of Section 12.06(c),
all of its rights and obligations under this Agreement and the
other Credit Documents to another Lender or an Eligible Assignee
selected by Interface, in consideration for the payment by such
assignee to the Lender of the principal of, and interest on, the
outstanding Loans accrued to the date of such assignment, and the
assumption of such Lender's Total Commitment hereunder, together
with any and all other amounts owing to such Lender under any
provisions of this Agreement, the Letter of Credit Agreement, or
the other Credit Documents accrued to the date of such
assignment.
Section 12.07. Governing Law; Submission to
Jurisdiction.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER AND UNDER THE NOTES SHALL BE CONSTRUED
IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW (WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF) OF THE STATE OF
GEORGIA.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
TO THIS AGREEMENT, THE NOTES, THE LETTER OF CREDIT AGREEMENT, OR
ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE SUPERIOR COURT OF
XXXXXX COUNTY, GEORGIA, OR THE SUPERIOR COURT OF XXXX COUNTY,
GEORGIA, OR IN ANY COURT OF THE UNITED STATES OF AMERICA FOR THE
NORTHERN DISTRICT OF GEORGIA, AND, BY EXECUTION AND DELIVERY OF
THIS AGREEMENT, EACH BORROWER HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVE TRIAL BY JURY, AND EACH BORROWER HEREBY IR-
REVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION,
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS.
- 122 -
(c) EACH BORROWER HEREBY IRREVOCABLY DESIGNATES
EACH OF X. XXXXXXXXX XXXXXX, XX. AND XXXXXXXXXX XXXXXXXX LLP,
EACH OF ATLANTA, GEORGIA, AS ITS DESIGNEE, APPOINTEE AND LOCAL
AGENT TO RECEIVE, FOR AND ON BEHALF OF SUCH BORROWER, SERVICE OF
PROCESS IN SUCH RESPECTIVE JURISDICTIONS IN ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE NOTES OR ANY
DOCUMENT RELATED THERETO. IT IS UNDERSTOOD THAT A COPY OF SUCH
PROCESS SERVED ON EITHER SUCH LOCAL AGENT WILL BE PROMPTLY
FORWARDED BY MAIL TO THE BORROWER AT ITS ADDRESS SET FORTH
OPPOSITE ITS SIGNATURE BELOW, BUT THE FAILURE OF THE BORROWER TO
RECEIVE SUCH COPY SHALL NOT AFFECT IN ANY WAY THE SERVICE OF SUCH
PROCESS. IF FOR ANY REASON SERVICE OF PROCESS CANNOT PROMPTLY BE
MADE ON EITHER SUCH LOCAL AGENT, EACH BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE BORROWER AT ITS SAID ADDRESS, SUCH
SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING.
(d) Nothing herein shall affect the right of the
Agents, any Lender, any holder of a Note or any Credit Party to
serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against the Borrowers in
any other jurisdiction.
Section 12.08. Independent Nature of Lenders'
Rights. The amounts payable at any time hereunder to each Lender
shall be a separate and independent debt, and each Lender shall
be entitled to protect and enforce its rights pursuant to this
Agreement and its Notes, and it shall not be necessary for any
other Lender to be joined as an additional party in any
proceeding for such purpose.
Section 12.09. Counterparts. This Agreement may
be executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which when so
executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
Section 12.10. Survival. (a) The obligations of
the Borrowers under Sections 5.07(b), 5.10, 5.12, 5.13, 5.17,
12.04 and 12.15 hereof shall survive the payment in full of the
Notes after the Revolver/Multicurrency Maturity Date and the Term
Loan Final Maturity Date. All representations and warranties
made herein, in the certificates, reports, notices, and other
documents delivered pursuant to this Agreement and the Letter of
Credit Agreement shall survive the execution and delivery of this
Agreement, the Letter of Credit Agreement, the other Credit
Documents, and such other agreements and documents, the making of
the Loans hereunder, the execution and delivery of the Notes, and
the issuance of the Letters of Credit.
(b) The obligations of the Co-Agents, the
Lenders, their assignees and participants under Sections 5.07(b),
8.05 and 12.06(e) hereof shall survive the payment in full of the
Notes after the Revolver/Multicurrency Maturity Date and the Term
Loan Final Maturity Date.
Section 12.11. Severability. In case any
provision in or obligation under this Agreement, the Letter of
Credit Agreement, or the other Credit Documents shall be invalid,
illegal or unenforceable, in whole or in part, in any
- 123 -
jurisdiction, the validity, legality and enforceability of the
remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be af-
fected or impaired thereby.
Section 12.12. Independence of Covenants. All
covenants hereunder shall be given independent effect so that if
a particular action or condition is not permitted by any of such
covenants, the fact that it would be permitted by an exception
to, or be otherwise within the limitation of, another covenant,
shall not avoid the occurrence of a Default or an Event of
Default if such action is taken or condition exists.
Section 12.13. Change in Accounting Principles,
Fiscal Year or Tax Laws. If (i) any preparation of the financial
statements referred to in Section 8.07 hereafter occasioned by
the promulgation of rules, regulations, pronouncements and
opinions by or required by the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants
(or successors thereto or agencies with similar functions) result
in a material change in the method of calculation of financial
covenants, standards or terms found in this Agreement, (ii) there
is any change in Interface's fiscal quarter or fiscal year, or
(iii) there is a material change in federal tax laws which
materially affects any of the Consolidated Companies' ability to
comply with the financial covenants, standards or terms found in
this Agreement, the parties agree to enter into negotiations in
order to amend such provisions so as to equitably reflect such
changes with the desired result that the criteria for evaluating
any of the Consolidated Companies' financial condition shall be
the same after such changes as if such changes had not been made.
Unless and until such provisions have been so amended, the
provisions of this Agreement shall govern.
Section 12.14. Headings Descriptive; Entire
Agreement. The headings of the several sections and
subsections of this Agreement are inserted for convenience only
and shall not in any way affect the meaning or construction of
any provision of this Agreement. This Agreement, the Letter of
Credit Agreement, the other Credit Documents, and the agreements
and documents required to be delivered pursuant to the terms of
this Agreement and the Letter of Credit Agreement constitute the
entire agreement among the parties hereto and thereto regarding
the subject matters hereof and thereof and supersede all prior
agreements, representations and understandings related to such
subject matters.
Section 12.15. Judgment Currency.
(a) The Credit Parties' obligations hereunder and
under the Letter of Credit Agreement and the other Credit
Documents to make payments in a particular Currency (the
"Obligation Currency") shall not be discharged or satisfied by
any tender or recovery pursuant to any judgment expressed in or
converted into any currency other than the Obligation Currency,
except to the extent that such tender or recovery actually
results in the effective receipt by the Co-Agents, the Collateral
Agent or a Lender of the full amount of the Obligation Currency
expressed to be payable to the Co-Agents, the Collateral Agent or
such Lender under this Agreement, the Letter of Credit Agreement,
or the other Credit Documents. If for the purpose of obtaining
or enforcing judgment against any Borrower or other Credit Party
in any court or in any jurisdiction, it becomes necessary to
- 124 -
convert into or from any currency other than the Obligation
Currency (such other currency being hereinafter referred to as
the "Judgment Currency") an amount due in the Obligation
Currency, the conversion shall be made, and the Currency
equivalent determined, in each case, as on the day immediately
preceding the day on which the judgment is given (such Business
Day being hereafter referred to as the "Judgment Currency
Conversion Date").
(b) If there is a change in the rate of exchange
prevailing between the Judgment Currency Conversion Date and the
date of actual payment of the amount due, the Credit Parties
covenant and agree to pay, or cause to be paid, such additional
amounts, if any (but in any event not a lesser amount), as may be
necessary to ensure that the amount paid in the Judgment
Currency, when converted at the rate of exchange quoted by the
Multicurrency Agent at its prevailing rate for such Currency
exchange on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the
amount of Judgment Currency stipulated in the judgment or
judicial award at the rate of exchange prevailing on the Judgment
Currency Conversion Date.
(c) For purposes of determining the Currency
equivalent for this Section, such amounts shall include any
premium and costs payable in connection with the purchase of the
Obligation Currency.
Section 12.16. Dollar Equivalent Computations.
Unless otherwise provided herein, to the extent that the
determination of compliance with any requirement of this
Agreement requires the conversion to U.S. Dollars of foreign
currency amounts, such U.S. Dollar amount shall be computed using
the Dollar Equivalent of the amount of such foreign currency at
the time such item is to be calculated or is to be or was
incurred, created or suffered or permitted to exist, or assumed
or transferred or sold for purposes of this Agreement (except if
such item was incurred, created or assumed, or suffered or
permitted to exist or transferred or sold prior to the date
hereof, such conversion shall be made based on the Dollar
Equivalent of the amounts of such foreign currency at the date
hereof).
Section 12.17. Amendment and Restatement; No
Novation. This Agreement constitutes an amendment and
restatement of the Existing Credit Agreement effective from and
after the Closing Date. The execution and delivery of this
Agreement shall not constitute a novation of any indebtedness or
other obligations owing to the Lenders or the Co-Agents under the
Existing Credit Agreement based on any facts or events occurring
or existing prior to the execution and delivery of this
Agreement. On the Closing Date, the credit facilities described
in the Existing Credit Agreement shall be amended and
supplemented by the Facilities described herein, and all loans
and other obligations of the Borrowers outstanding as of such
date under the Existing Credit Agreement shall be deemed to be
loans and obligations outstanding under the corresponding
facilities described herein, without further action by any
Person.
- 125 -
Section 12.18. References in Credit Documents. On
and after the Closing Date, each and every reference in the
Credit Documents to this Agreement, and to the capitalized terms
as defined in this Agreement (including, without limitation, the
terms "Loans", "Obligations", and "Facilities") shall be deemed
to refer to and mean this Agreement as herein amended and
restated, and such capitalized terms as defined and used in
this Agreement as herein amended and restated. The Borrowers
further confirm and agree that all such Credit Documents are and
shall remain in full force and effect on and after the Closing
Date.
- 126 -
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered in Atlanta,
Georgia, by their duly authorized officers as of the day and year
first above written.
Address for Notices: INTERFACE, INC.
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000 By: /s/ Xxxxxx X. Xxxxxxx
Attention: Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx
Senior Vice President
Telex No.:
Answerback:
Telecopy No.: 404/319-0070
Address for Notices: INTERFACE EUROPE B.V.
c/o Interface, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000 By: /s/ Xxxxxx X. Xxxxxxx
Attention: Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx
Attorney-in-Fact
Telex No.:
Answerback:
Telecopy No.: 404/319-0070
Address for Notices: INTERFACE EUROPE LIMITED
c/o Interface, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000 By: /s/ Xxxxxx X. Xxxxxxx
Attention: Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx
Attorney-in-Fact
Telex No.:
Answerback:
Telecopy No.: 404/319-0070
Address for Notices: SUNTRUST BANK, ATLANTA,
as Domestic Agent and Collateral
00 Xxxx Xxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
Telex No.: 542210
Answerback: TRUSCO INT ATL
By: /s/ Xxxxx X. Xxxxxx
Telecopy No.: 404/588-8833 Name: Xxxxx X. Xxxxxx
Title: Group Vice President
Payment Office:
00 Xxxx Xxxxx, X.X.
Xxxxxxx, XX 00000
Address for Notices: THE FIRST NATIONAL BANK OF CHICAGO,
as Multicurrency Agent
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Authorized Agent
Telex No.:
Answerback:
By: /s/ Xxxxxx St. Xxxxxxxx
Telecopy No.: 312/732-5296 Name: Xxxxxx St. Xxxxxxxx
Title: Authorized Agent
Administrative Office:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Payment Offices:
(See Schedule 4.01)
Address for Notices: SUNTRUST BANK, ATLANTA
00 Xxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Assistant Vice President
Telex No.: 542210
Answerback: TRUSCO INT ATL
By: /s/ Xxxxx X. Xxxxxx
Telecopy No.: 404/588-8833 Name: Xxxxx X. Xxxxxx
Title: Group Vice President
Domestic Lending Office:
Xxx Xxxx Xxxxx, X.X.
Xxxxxxx, XX 00000
Telex No.: 542210
Answerback: TRUSCO INT ATL
Eurocurrency Lending Office:
Xxx Xxxx Xxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Telex No. 542210
Answerback: TRUSCO INT ATL
PRO RATA
AMOUNT SHARE
TERM LOAN BALANCE: $ 3,250,000 13.00000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: 13,000,000 7.64706%
DOMESTIC SWING LINE
COMMITMENT: 5,000,000 100.00000%
L/C SUBCOMMITMENT: $ 3,058,824 7.64706%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: 10,500,000 13.12500%
TOTAL COMMITMENT $26,750,000 9.72727%
(EXCLUDING DOMESTIC
SWING LINE):
Address for Notices: THE FIRST NATIONAL BANK OF CHICAGO
Mail Suite 0324
One First Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Authorized Agent
Telex No.: 4330253
Answerback: FNBC UI
Telecopy No.: 312/732-5296
Administrative Xxxxxx
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx
Payment Offices:
(See Schedule 4.01)
PRO RATA
AMOUNT SHARE
TERM LOAN BALANCE: $3,250,000 13.00000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: 4,500,000 2.64706%
L/C SUBCOMMITMENT: 1,058,824 2.64706%
MULTICURRENCY LOAN
COMMITMENT: 19,000,000 23.75000%
MULTICURRENCY SWING LINE
COMMITMENT: 5,000,000 100.00000%
TOTAL COMMITMENT $26,750,000 9.72727%
(EXCLUDING MULTICURRENCY
SWING LINE):
/TABLE
Address for Notices: ABN AMRO BANK N.V.
Xxxxx 0000, Xxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Telephone: 770/000-0000 Title: Group Vice President
Telex No.: 682 7258
Answerback: ABNBANKATL
By: /s/ Xxxxxx Xxxxxxx
Telecopy No.: 770/395-9188 Name: Xxxxxx Xxxxxxx
Title: Vice President
Domestic Lending Office:
ABN AMRO Bank N.V., Atlanta Agency
Xxxxx 0000, Xxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Eurocurrency Lending Office:
ABN AMRO Bank N.V., Atlanta Agency
Xxxxx 0000, Xxx Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
PRO RATA
AMOUNT SHARE
TERM LOAN BALANCE: $ 0 0.00000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: 1,000,000 .58824%
L/C SUBCOMMITMENT: 235,294 .58824%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: 17,500,000 21.87500%
TOTAL COMMITMENT: $18,500,000 6.72727%
Address for Notices: THE BANK OF TOKYO-MITSUBISHI,
LTD., ATLANTA AGENCY
000 Xxxxxxxxx Xxxxxx, X.X.
0000 Xxxxxxx-Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Telephone: 404/000-0000 Title: Assistant Vice President
Telecopy No.: 404/577-1155
Telex No.: 6827300
Answerback: 6827300BOT ATL
Domestic Lending Office:
0000 Xxxxxxx-Xxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Eurocurrency Lending Office:
0000 Xxxxxxx-Xxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
PRO RATA
AMOUNT SHARE
TERM LOAN BALANCE: $ 1,600,000 6.40000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: 18,425,000 10.83824%
L/C SUBCOMMITMENT: 4,335,294 10.83824%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: 0 0.00000%
TOTAL COMMITMENT: $20,025,000 7.28182%
/TABLE
Address for Notices: CIBC INC.
Canadian Imperial Bank of
Commerce
Two Paces West
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000 By: /s/ Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000 Name: Xxxxxxx Xxxxxxxxx
Attention: Xxxxxxx Xxxxxxxxx Title: Director, CIBC Wood Gundy
Securities Corp. AS AGENT
Telephone: 770/000-0000
Telecopy No.: 770/319-4954
Domestic Lending Office:
Canadian Imperial Bank of
Commerce
Two Paces West
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Eurocurrency Lending Office:
Canadian Imperial Bank of
Commerce
Two Paces West
2727 Paces Ferry Road, Suite 1200
Xxxxxxx, Xxxxxxx 00000
PRO RATA
AMOUNT SHARE
TERM LOAN BALANCE: $ 2,100,000 8.40000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: 6,425,000 3.77941%
L/C SUBCOMMITMENT: 1,511,765 3.77941%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: $11,000,000 13.75000%
TOTAL COMMITMENT: $19,525,000 7.10000%
Address for Notices: XXXXXXXXXXXXX-XXXXXXXXXX
Xxx Xxxxxxx Xxxxx
Xxxxx 0000 By: /s/ Xxxx X. Xxxxx
Xxxxxxx, Xxxxxxx 00000 Name: Xxxx X. Xxxxx
Attention: Xxxx Xxxxx Title: Senior Associate
Telephone: 770/000-0000 By: /s/ Xxxxxx X. Xxxxxxxx
Telecopy No.: 770/390-1851 Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
Domestic Lending Office:
Two Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxx
Eurocurrency Lending Office:
Two Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
PRO RATA
AMOUNT SHARE
TERM LOAN BALANCE: $ 2,000,000 8.00000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: 22,750,000 13.38235%
L/C SUBCOMMITMENT: 5,352,941 13.38235%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: 0 0.00000%
TOTAL COMMITMENT: $24,750,000 9.00000%
/TABLE
Address for Notices: CREDIT LYONNAIS ATLANTA AGENCY
Credit Lyonnais Atlanta Agency
000 Xxxxxxxxx Xxxxxx, X.X. By: /s/ Xxxxx X. Xxxxxx
Suite 4400 Name: Xxxxx X. Xxxxxx
Xxxxxxx, XX 00000 Title: First Vice President &
Attention: Xxxxx Xxxxxx Manager
Telephone: 404/000-0000
Telecopy No.: 404/584-5249
Domestic Lending Office:
Credit Lyonnais Atlanta Agency
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000
Eurocurrency Lending Office:
Credit Lyonnais Atlanta Agency
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000
PRO RATA
AMOUNT SHARE
TERM LOAN BALANCE: $1,600,000 6.40000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: 18,425,000 10.83824%
L/C SUBCOMMITMENT: 4,335,294 10.83824%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: 0 0.00000%
TOTAL COMMITMENT: $20,025,000 7.28182%
Address for Notices: THE SUMITOMO BANK LIMITED
000 Xxxxxxxxx Xxxxxx, X.X. By: /s/ Xxxxx X. Xxxxxx
Suite 4420 Name: Xxxxx X. Xxxxxx
Xxxxxxx, XX 00000 Title: Vice President & Mgr.
Attention: Xxxxx Xxxxxx
Telephone: 404/000-0000
Telecopy No.: 404/523-7983 By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Domestic Lending Office: Title: Vice President
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Eurocurrency Lending Office:
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
PRO RATA
AMOUNT SHARE
TERM LOAN BALANCE: $ 1,600,000 6.40000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: 11,800,000 6.94118%
L/C SUBCOMMITMENT: 2,776,471 6.94118%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: 0 0.00000%
TOTAL COMMITMENT: $13,400,000 4.87273%
/TABLE
Address for Notices: FIRST UNION NATIONAL BANK OF
GEORGIA
000 Xxxxxxxxx Xxxxxx, X.X. By: /s/Xxxxxxxxx Xxxxxxx
9th Floor Name: Xxxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000 Title: Voce {resodemt
Attention: Xxxxxxxxx Xxxxxxx
Telephone: 404/000-0000
Telecopy No.: 404/827-7199
Domestic Lending Office:
000 Xxxxxxxxx Xxxxxx, X.X.
0xx Xxxxx
Xxxxxxx, XX 00000
Eurocurrency Lending Office:
000 Xxxxxxxxx Xxxxxx, X.X.
0xx Xxxxx
Xxxxxxx, XX 00000
PRO RATA
AMOUNT SHARE
TERM LOAN BALANCE: $ 2,100,000 8.40000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: 22,550,000 13.26471%
L/C SUBCOMMITMENT: 5,305,882 13.26471%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: 0 0.00000%
TOTAL COMMITMENT: $24,650,000 8.96364%
Address for Notices: FLEET BANK OF MAINE
00 Xxxxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxxxxxx
Xxxxxx, Xxxxx 00000 Name: Xxxx X. Buitenbuys
Attention: Xxxx X. Xxxxxxxxxx Title: Vice President
Telephone: 207/000-0000
Telecopy No.: 207/941-6023
Domestic Lending Office:
000 Xxxxxxxx Xxxxxx, X. X. Xxx 0000
Xxxxxxxx, Xxxxx 00000-0000
Eurocurrency Lending Office:
000 Xxxxxxxx Xxxxxx, X. X. Xxx 0000
Xxxxxxxx, Xxxxx 00000-0000
PRO RATA
AMOUNT SHARE
TERM LOAN BALANCE: $ 3,300,000 13.20000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: 13,025,000 7.66176%
L/C SUBCOMMITMENT: 3,064,706 7.66176%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: 0 0.00000%
TOTAL COMMITMENT: $16,325,000 5.93636%
/TABLE
Address for Notices: NATIONSBANK, N.A.
000 Xxxxx Xxxxx Xxxxxx
Mail Code NC1-007-08-11 By: /s/ Xxxxx X. Xxxxxxx
Xxxxxxxxx, XX 00000 Name: Xxxxx X. Xxxxxxx
Attention: Xxxxx Xxxxxxx Title: Vice President
Telephone: 704/000-0000
Telecopy No.: 704/386-1270
Domestic Lending Office:
One Independence Center
000 Xxxxx Xxxxx Xxxxxx
Mail Code NC1-001-15-03
Xxxxxxxxx, XX 00000
Eurocurrency Lending Office:
One Independence Center
000 Xxxxx Xxxxx Xxxxxx
Mail Code NC1-001-15-03
Xxxxxxxxx, XX 00000
PRO RATA
AMOUNT SHARE
TERM LOAN BALANCE: $ 2,100,000 8.40000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: 11,550,000 6.79412%
L/C SUBCOMMITMENT: 2,717,647 6.79412%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: 11,000,000 13.75000%
TOTAL COMMITMENT: $24,650,000 8.96364%
Address for Notices: PNC BANK, NATIONAL ASSOCIATION
One PNC Plaza
Fifth Avenue and Wood Street By: /s/ Xxxxxx Xxxxxxxx, Jr.
Xxxxxxxxxx, XX 00000 Name: Xxxxxx X. Xxxxxxxx, Xx.
Attention: Xxxxxx X. Xxxxxxxx, Xx. Title: Vice President
Telephone: 412/000-0000
Telecopy No.: 412/762-6484
Domestic Lending Office:
One PNC Plaza
Xxxxx Xxxxxx xxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Eurocurrency Lending Office:
One PNC Plaza
Xxxxx Xxxxxx xxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
PRO RATA
AMOUNT SHARE
TERM LOAN BALANCE: $ 0 0.00000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: 15,000,000 8.82353%
L/C SUBCOMMITMENT: 3,529,412 8.82353%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: 0 0.00000%
TOTAL COMMITMENT: $ 15,000,000 5.45455%
/TABLE
Address for Notices: WACHOVIA BANK, N.A.
(Formerly Wachovia Bank of
000 Xxxxxxxxx Xxxxxx, X.X. Georgia, N.A.
30th Floor By: /s/ Xxxxxxx X. Xxxxxxxxxx
Xxxxxxx, XX 00000 Name: Xxxxxxx X. Xxxxxxxxxx
Attention: Xxxx Xxxxxxxxxx Title: Vice President
Telephone: 404/000-0000
Telecopy No.: 404/332-6920
Domestic Lending Office:
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Eurocurrency Lending Office:
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
PRO RATA
AMOUNT SHARE
TERM LOAN BALANCE: $ 2,100,000 8.40000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: 11,550,000 6.79412%
L/C SUBCOMMITMENT: 2,717,647 6.79412%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: 11,000,000 13.75000%
TOTAL COMMITMENT: $24,650,000 8.96364%
