Exhibit 10.24
SECOND AMENDMENT AND LIMITED WAIVER TO
RECEIVABLES TRANSFER AGREEMENT
This Second Amendment and Limited Waiver to Receivables Transfer
Agreement (this "Amendment") is entered into as of December 20, 2000 by and
among Bentley Xxxxx, Inc., a Delaware corporation ("Bentley"), Chatham Marketing
Co., a North Carolina corporation ("Chatham"), Guilford of Maine Marketing Co.,
a Nevada corporation ("Guilford"), Intek Marketing Co., a Nevada corporation
("Intek"), Interface Architectural Resources, Inc., a Michigan corporation
("Interface Architectural"), Interface Flooring Systems, Inc., a Georgia
corporation ("Interface Flooring"), Pandel, Inc., a Georgia corporation
("Pandel"), Prince Street Technologies, Ltd., a Georgia corporation ("Prince
Street"), and Toltec Fabrics, Inc., a Georgia corporation ("Toltec" and together
with Bentley, Chatham, Guilford, Intek, Interface Architectural, Interface
Flooring, Pandel and Prince Street, the "Original Sellers" and, individually, an
"Original Seller"), and Interface, Inc., a Delaware corporation, as Originator.
Unless defined elsewhere herein, capitalized terms used in this Amendment shall
have the meanings assigned to such terms in the Transfer Agreement (as defined
below) (or, if not defined in the Transfer Agreement, the meaning assigned to
such term in the Purchase Agreement).
PRELIMINARY STATEMENTS
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Each of the Original Sellers and Originator entered into a certain
Receivables Transfer Agreement, dated as of December 19, 2000 (as amended,
restated, supplemented or otherwise modified from time to time, the "Transfer
Agreement").
Each of the parties hereto has requested that the Transfer Agreement be
modified in order to replace Exhibit II and to allow the use of various
corporate names, assumed names or trade names by various Original Sellers.
AGREEMENT
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NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Amendment. (a) Section 2.1(n) of the Transfer Agreement is hereby
amended by deleting Section 2.1(n) in its entirety and substituting the
following Section 2.1(n) in lieu thereof:
"(n) Names. (i) Other than those corporate names,
trade names or assumed names listed on Exhibit II hereto, in
the past five (5) years, such Original Seller has not used any
corporate names, trade names or assumed names other than the
name in which it has executed this Agreement and (ii) other
than (x) the name in which it has executed this Agreement or
(y) corporate names, trade names or assumed names of such
Original Seller listed on Exhibit II hereto, such Original
Seller has not used any corporate names, trade names or
assumed names with respect to, or in connection with, any
Receivable arising after the Initial Cutoff Date. "
(a) The Transfer Agreement is hereby amended by replacing
Exhibit II with a new Exhibit II, which Exhibit II is attached hereto
as Exhibit B.
(b) The Transfer Agreement is hereby amended by adding the
following new Section 4.2(f):
"(f) Corporate Names, Trade Names and Assumed Names.
Such Original Seller will not use any corporate names, trade
names or assumed names other than the name in which it has
executed this Agreement with respect to, or in connection
with, the creation of any Receivable occurring after the
Initial Cutoff Date, provided, that such Original Seller may
use any corporate name, trade name or assumed name as
permitted by Section 2.1(n) hereof."
2. Limited Waiver. Subject to the terms and conditions set forth herein
and upon the effectiveness of this Amendment, Originator hereby waives any
Termination Event or Potential Termination Event that may have arisen on or
before the date hereof as a result of the failure of certain Original Sellers to
have disclosed of such Original Sellers' use of certain corporate, trade or
assumed names in contravention of the representation and warranty contained in
Section 2.1(n) of the Transfer Agreement.
3. Representations and Warranties. Each Original Seller represents and
warrants, as of the date hereof, that after giving effect to this Amendment:
(a) all of the representations and warranties of such Original
Seller contained in the Transfer Agreement, and in each other document
or certificate delivered in connection therewith (other than those that
expressly speak only as of a different date), are true and correct; and
(b) no Termination Event or Potential Termination Event has
occurred and is continuing.
4. Conditions to Effectiveness of Amendment. The effectiveness of this
Amendment is subject to the satisfaction of the following conditions precedent:
(a) Amendment. This Amendment shall have been duly executed
and delivered by each of the parties hereto.
(b) Officer's Certificate. The Originator shall have received
a certificate, in the form set forth in Exhibit A hereto, of each of
the Original Sellers certifying as to matters set forth in Sections
3(a) and (b) of this Amendment.
(c) Waivers and Amendments. The Originator shall have received
duly executed copies of (i) all consents from and authorizations by any
Persons and (ii) all waivers and amendments to existing credit
facilities, that are necessary in connection with this Amendment.
(d) Seller's Consent. The Seller shall have waived the
Termination Event that would otherwise have occurred pursuant to the
terms of Section 5.1(h) of the Receivables Sale Agreement as a result
of the Originator's waiver as set forth in Section 2 of this Amendment.
(e) Agent's Consent. The Agent shall have waived the
Amortization Event that would otherwise have occurred pursuant to the
terms of Section 9.1(j) of the Receivables Purchase Agreement as a
result of the Originator's waiver as set forth in Section 2 of this
Amendment.
(f) Lien Searches. The Originator shall have received each of
the following:
(i) State and federal tax lien, judgment lien and UCC
lien searches against Guilford Greige Manufacturing Inc. (a
corporate name of Guilford) from the following jurisdictions:
(1) Maine
(2) Maine-Piscataquis County
(ii) State and federal tax lien, judgment lien and
UCC lien searches against Interface Holding, Inc. (a corporate
name of Intek) from the following jurisdictions:
(1) Nevada
(2) Maine
(3) Maine-Piscataquis County
(4) North Carolina
(5) North Carolina-Xxxxx County
(iii) State and federal tax lien, judgment lien and
UCC lien searches against C-Tec, Inc. (a corporate name of
Interface Architectural) from the following jurisdictions:
(1) Michigan
(2) Michigan-Kent County
(iv) State and federal tax lien, judgment lien and
UCC lien searches against C-Co, Inc. (an assumed name of
Interface Architectural) from the following jurisdictions:
(1) Michigan
(2) Michigan-Kent County
(v) State and federal tax lien, judgment lien and UCC
lien searches against C-Tec of New Jersey, Inc. (an assumed
name of Interface Architectural) from the following
jurisdictions:
(1) New Jersey
(2) New Jersey-Xxxxxx County
(vi) State and federal tax lien, judgment lien and
UCC lien searches against Michigan C-Tec, Inc. (an assumed
name of Interface Architectural) from the following
jurisdictions:
(1) California
(2) California-Alameda County
(vii) State and federal tax lien, judgment lien and
UCC lien searches against InterfaceAR (a trade name of
Interface Architectural) from the following jurisdictions:
(1) Michigan
(2) Michigan-Kent County
(3) Maryland
(viii) State and federal tax lien, judgment lien and
UCC lien searches against IAR (a trade name of Interface
Architectural) from the following jurisdictions:
(1) Michigan
(2) Michigan-Kent County
(3) Maryland
(ix) State and federal tax lien, judgment lien and
UCC lien searches against Bentley Carpet Xxxxx (an assumed
name of Bentley) from the following jurisdictions:
(1) New York
(2) New York-New York County
(g) UCC-1 Financing Statements. The Originator shall have
received duly executed proper financing statements for all
jurisdictions as may be necessary or, in the opinion of Originator (or
its assigns), desirable, under the UCC of all appropriate jurisdictions
or any comparable law in connection with this Amendment.
5. Effect of Amendments. (a) The amendments and waivers set forth
herein are effective solely for the purposes set forth herein and shall be
limited precisely as written, and shall not be deemed to (i) be a consent to any
amendment, waiver or modification of any other term or condition of the Transfer
Agreement as amended hereby or any other Transaction Document or of any other
instrument or agreement referred to therein, except as set forth herein, or (ii)
prejudice any right or remedy that the Originator, Seller, the Financial
Institutions, the Company or the Agent may now have or may have in the future
under or in connection with the Transfer Agreement as amended hereby or any
other Transaction Document or any other instrument or agreement referred to
therein. Each reference in the Transfer Agreement to "the Agreement," "herein,"
"hereof" and words of like import and each reference in the other Transaction
Documents to the "Transfer Agreement" or the "Receivables Transfer Agreement"
shall mean the Transfer Agreement as amended hereby. This Amendment shall be
construed in connection with and as part of the Transfer Agreement as amended
hereby and all terms, conditions, representations, warranties, covenants and
agreements set forth in the Transfer Agreement as amended hereby and each other
instrument or agreement referred to therein, except as herein amended, are
hereby ratified and confirmed and shall remain in full force and effect.
(a) Each of the Original Sellers hereby jointly and severally
agrees to pay all costs, fees and expenses in connection with the
preparation, execution and delivery of this Amendment (including the
reasonable fees and expenses of counsel to the parties hereto).
(b) This Amendment may be executed in any number of
counterparts, each such counterpart constituting an original and all of
which when taken together shall constitute one and the same instrument.
(c) Any provision contained in this Amendment that is held to
be inoperative, unenforceable or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable or invalid without
affecting the operation, enforceability or validity of the remaining
provisions of this Amendment in that jurisdiction or the operation,
enforceability or validity of such provision in any other jurisdiction.
(d) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date hereof.
BENTLEY XXXXX, INC.,
as an Original Seller
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President,
Treasurer and
Assistant Secretary
Address: 00000 X. Xxx Xxxxxx Xxxx
Xxxx xx Xxxxxxxx, XX 00000
CHATHAM MARKETING CO.,
as an Original Seller
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and
Assistant Secretary
Address: P. O. Box 530
000 X. Xxxx Xxxxxx
Xxxxx, XX 00000
GUILFORD OF MAINE MARKETING CO., as an
Original Seller
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and
Assistant Secretary
Address: X.X. Xxx 000
Xxx Xxxxxx
Xxxxxxxx, XX 00000
INTEK MARKETING CO.,
as an Original Seller
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and
Assistant Secretary
Address: X.X. Xxx 0000
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
INTERFACE ARCHITECTURAL RESOURCES, INC.,
as an Original Seller
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and
Assistant Secretary
Address: 0000 00xx Xxxxxx
Xxxxx Xxxxxx, XX 00000-0000
INTERFACE FLOORING SYSTEMS, INC.,
as an Original Seller
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President,
Treasurer and
Assistant Secretary
Address: X.X. Xxx 0000
Xxxxxxx Xxxx Xxxx
XxXxxxxx, XX 00000
PANDEL, INC.,
as an Original Seller
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President,
Treasurer and
Assistant Secretary
Address: 00 Xxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
PRINCE STREET TECHNOLOGIES, LTD.,
as an Original Seller
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President,
Treasurer and
Assistant Secretary
Address: 0000 Xxxx Xxxxxx
X.X. Xxxxxx 0000
Xxxxxxxxxxxx, XX 00000
TOLTEC FABRICS, INC.,
as an Original Seller
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and
Assistant Secretary
Address: 0000 Xxxxx Xxxxx Xxxx,
Xxxxx 0000
Xxxxxxx, XX 00000
INTERFACE, INC.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President, CFO,
Treasurer and
Assistant Secretary
Address: 0000 Xxxxx Xxxxx Xxxx,
Xxxxx 0000
Xxxxxxx, XX 00000
