Exhibit 99.3
FIRST SUPPLEMENTAL INDENTURE
This First Supplemental Indenture (this "SUPPLEMENTAL INDENTURE"), dated
as of January 10, 2005, among Interface Global Company, ApS, a corporation
dually incorporated under the laws of Denmark and the State of Delaware (the
"GUARANTEEING SUBSIDIARY"), a Subsidiary of Interface, Inc. (or its permitted
successors), a Georgia corporation (the "COMPANY"), the Company, the Guarantors
(as defined in the Indenture referred to herein) and SunTrust Bank, as trustee
under the Indenture referred to below (the "TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company and the Guarantors party thereto heretofore
executed and delivered to the Trustee an indenture (the "INDENTURE"), dated as
of February 4, 2004 providing for the issuance of 9.5% Senior Subordinated Notes
due 2014 (the "NOTES");
WHEREAS, the Indenture provides that under certain circumstances a
Material U.S. Subsidiary shall, and other Subsidiaries may, execute and deliver
to the Trustee a supplemental indenture pursuant to which the Guaranteeing
Subsidiary shall unconditionally guarantee all of the Company's Obligations
under the Notes and the Indenture on the terms and conditions set forth herein
(the "GUARANTEE"); and
WHEREAS, pursuant to SECTION 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
Section 1. CAPITALIZED TERMS.
Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.
Section 2. AGREEMENT TO GUARANTEE.
The Guaranteeing Subsidiary signatory hereto hereby agrees as follows:
(a) Along with all other Guarantors, to jointly and
severally Guarantee to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of the Indenture, the Notes or the obligations of
the Company hereunder or thereunder, that:
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(i) The principal of, premium, if any, and interest
(including any Special Interest), on the Notes will be promptly
paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal,
premium, if any, of and interest on the Notes, if any, if
lawful, and all other obligations of the Company to the Holders
or the Trustee hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof and
thereof.
(ii) In case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same
will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Guarantors shall be
jointly and severally obligated to pay the same immediately.
(b) The obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or the
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor.
(c) Notwithstanding anything in the Indenture or
Supplemental Indenture to the contrary, in relation to the Guaranteeing
Subsidiary as a corporation that is incorporated under the laws of the Kingdom
of Denmark as well as under the laws of the State of Delaware, all obligations
of Guaranteeing Subsidiary under the Indenture (as supplemented hereby) shall be
limited if and to the extent required to comply with Danish statutory provisions
on unlawful financial assistance, Sections 49(1) and (2) and Sections 50(1) and
(2) of the Danish Act on Private Limited Companies (Anpartsselskabsloven), and
accordingly shall not be construed as an indemnity for, guarantee of, or
security for any of the obligations of Guaranteeing Subsidiary's direct parent
corporation, Interface Overseas Holdings, Inc. ("OVERSEAS HOLDINGS"), which is
also a Guarantor under the Indenture, so long as Overseas Holdings remains a
Non-Qualifying Parent Company of Guaranteeing Subsidiary. A "Non-Qualifying
Parent Company" shall mean a company that is a direct parent company of an
entity organized under the laws of Denmark, which direct parent is not organized
under the laws any of the member states of the European Union or the European
Economic Area but is an entity to which the First Council Directive 60/151/EEC
of March 9, 1968 is attributable.
(d) The following is hereby waived: diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever.
(e) This Guarantee shall not be discharged except by
complete performance of the obligations contained in the Notes and the
Indenture.
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(f) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any custodian, Trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
(g) The Guaranteeing Subsidiary signatory hereto shall not
be entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.
(h) As between the Guarantors, including the Guarantor
Subsidiary signatory hereto, on the one hand, and the Holders and the Trustee,
on the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in ARTICLE 6 of the Indenture for the purposes of this
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (y) in
the event of any declaration of acceleration of such obligations as provided in
ARTICLE 6 of the Indenture, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guaranteeing Subsidiary for the
purpose of this Guarantee.
(i) The Guaranteeing Subsidiary shall have the right to seek
contribution from any non-paying Guarantor (including any other Guaranteeing
Subsidiary) so long as the exercise of such right does not impair the rights of
the Holders under the Guarantee.
(j) Pursuant to SECTION 10.02 of the Indenture, after giving
effect to any maximum amount and any other contingent and fixed liabilities that
are relevant under any applicable Bankruptcy or fraudulent conveyance laws, and
after giving effect to any collections from the Company and any of the other
Guarantors, the rights of the Guaranteeing Subsidiary signatory hereto to
receive contribution from or payments made by or on behalf of any other
Guarantor (including any other Guaranteeing Subsidiary) in respect of the
obligations of such other Guarantor under ARTICLE 10 of the Indenture shall
result in the obligations of the Guaranteeing Subsidiary under its Guarantee not
constituting a fraudulent transfer or conveyance.
3. EXECUTION AND DELIVERY.
The Guaranteeing Subsidiary agrees that the Guarantees shall remain in
full force and effect notwithstanding any failure to endorse on each Note a
notation of such Guarantee.
4. GUARANTORS MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(a) No Guarantor may merge or consolidate with or into
(whether or not such Guarantor is the surviving Person), sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all of its
properties and assets, as an entirety, to any Person or Persons, other than the
Company or another Guarantor, unless:
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(i) immediately after giving effect to that
transaction, no Default or Event of Default exists; and
(ii) either:
(A) the Person acquiring the property in any
such sale or disposition or the Person formed by or
surviving any such consolidation or merger assumes all
the obligations of that Guarantor under this Indenture,
its Guarantee and the Registration Rights Agreement
pursuant to a supplemental indenture satisfactory to the
Trustee, or
(B) the Guarantor is released pursuant to
SECTION 11.08 and such sale or other disposition
complies with SECTION 4.12 of the Indenture, including
the application of the Excess Proceeds therefrom.
(b) In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor corporation, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by the Guarantor, such successor corporation shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor corporation thereupon may cause to be
signed any or all of the Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee. All the Guarantees so issued shall in all respects
have the same legal rank and benefit under the Indenture as the Guarantees
theretofore and thereafter issued in accordance with the terms of this Indenture
as though all of such Guarantees had been issued at the date of the execution
hereof.
(c) Except as set forth in ARTICLE 4 and ARTICLE 5 of the
Indenture, and notwithstanding clauses (a) and (b) above, nothing contained in
this Indenture or in any of the Notes shall prevent any consolidation or merger
of a Guarantor with or into the Company or another Guarantor, or shall prevent
any sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Company or another Guarantor.
5. RELEASE OF A GUARANTOR.
(a) Upon the sale or disposition of all of the Capital Stock
of a Guarantor by the Company or a Subsidiary of the Company, or upon the
consolidation or merger of a Guarantor with or into any Person (in each case,
other than to, with or into, as the case may be, the Company or an Affiliate of
the Company), such Guarantor shall be deemed automatically and unconditionally
released and discharged from all obligations under ARTICLE 11 of the Indenture
without any further action required on the part of the
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Trustee or any Holder; PROVIDED, HOWEVER, that each such Guarantor is sold or
disposed of in a transaction which does not violate SECTION 4.12 and SECTION
11.06 of the Indenture;
(b) The Trustee shall deliver an appropriate instrument
evidencing the release of a Guarantor upon receipt of a request of the Company
accompanied by an Officers' Certificate certifying as to the compliance with
SECTION 11.07 of the Indenture. Any Guarantor not so released or the entity
surviving such Guarantor, as applicable, will remain or be liable under its
Guarantee as provided in ARTICLE 11 of the Indenture.
The Trustee shall execute any documents reasonably requested by the
Company or a Guarantor in order to evidence the release of such Guarantor from
its obligations under its Guarantee endorsed on the Securities and under ARTICLE
11 of the Indenture.
6. NO RECOURSE AGAINST OTHERS.
No past, present or future director, officer, employee, incorporator,
stockholder or agent of the Guaranteeing Subsidiary, as such, shall have any
liability for any obligations of the Company or the Guaranteeing Subsidiary
under the Notes, any Guarantees, the Indenture or this Supplemental Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of the Notes by accepting a Note waives and releases
all such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a
waiver is against public policy.
7. GOVERNING LAW.
NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
8. COUNTERPARTS.
The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
9. EFFECT OF HEADINGS.
The Section headings herein are for convenience only and shall not
affect the construction hereof.
10. THE TRUSTEE.
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or for or
in respect of the recitals contained herein, all of which recitals are made
solely by the Guarantor signatory hereto and the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
GUARANTEEING SUBSIDIARY:
Interface Global Company, ApS,
as a Guarantor
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
TRUSTEE:
SunTrust Bank
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
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