Exhibit 10.31
FIRST AMENDMENT AND LIMITED WAIVER TO
RECEIVABLES PURCHASE AGREEMENT
This First Amendment and Limited Waiver to Receivables
Purchase Agreement (this "Amendment") is entered into as of December 31, 2000,
by and among Interface Securitization Corporation, a Delaware corporation
("Seller"), Interface, Inc., a Georgia corporation ("Interface"), as initial
Servicer (the "Servicer" together with Seller, the "Seller Parties" and each a
"Seller Party"), Jupiter Securiti zation Corporation ("Company") and Bank One,
NA (Main Office Chicago), as Agent. Unless defined elsewhere herein, capitalized
terms used in this Amendment shall have the meanings assigned to such terms in
the Purchase Agreement (as defined below).
PRELIMINARY STATEMENTS
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Each of the parties hereto entered into a certain Receivables
Purchase Agreement, dated as of December 19, 2000 (as amended, restated,
supplemented or otherwise modified from time to time, the "Purchase Agreement").
Interface Americas, Inc. ("Interface Americas") desires to
become a party to the Transfer Agreement as an Original Seller as of the date
hereof upon the terms and conditions set forth therein and herein.
Prince Street Technologies, Ltd. and Bentley Xxxxx, Inc.
("Bentley"), each an Original Seller under the Transfer Agreement, desire to
merge, effective as of 11:59 p.m. on the date hereof, with Bentley being the
surviving corporation (the "Merger").
Originator desires to enter into a certain First Amendment and
Limited Waiver to Receivables Transfer Agreement of even date herewith (the
"Transfer Agreement Amendment") in order to permit the Merger and the addition
of Interface Americas as an Original Seller.
Buyer desires to enter into a certain Limited Waiver to
Receivables Sale Agreement of even date herewith (the "Sale Agreement Limited
Waiver") in order to permit the Merger and the addition of Interface Americas as
an Original Seller.
Under the terms of the Purchase Agreement, the consent of the
Agent and each Purchaser (collectively, the "Consenting Parties") is required in
order for Originator to enter into the Transfer Agreement Amendment, which
consent the Originator has requested, and for the Seller to enter into the Sale
Agreement Limited Waiver, which consent the Seller has requested.
In addition, each of the parties hereto now desires to amend
the Purchase Agreement in connection with the foregoing, subject to the terms
and conditions hereof, as more particularly described herein.
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. Consent. Subject to the terms and conditions set forth
herein and upon the effectiveness of this Amendment, the Consenting Parties
hereby consent to the Originator's execution and delivery of the Transfer
Agreement Amendment and the performance of its obligations thereunder and the
Seller's execution and delivery of the Sale Agreement Limited Waiver and the
performance of its obligations thereunder.
2. The Merger. Upon the effectiveness of the Merger and this
Amendment, the Purchase Agreement shall be deemed amended by the deletion of all
references to Prince Street Technologies, Ltd. therefrom.
3. Limited Waiver. Subject to the terms and conditions set
forth herein and upon the effectiveness of this Amendment, the Consenting
Parties hereby waive any Amortization Event or Potential Amortization Event that
may arise under Section 9.1(i) of the Purchase Agreement as a result of
Originator's waiver as set forth in Section 3 of the Transfer Agreement
Amendment or Seller's waiver as set forth in Section 2 of the Sale Agreement
Limited Waiver.
4. Amendment. The definition of "Original Sellers" is hereby
amended to insert "Interface Americas, Inc." in its appropriate alphabetical
order in the list of entities in such definition.
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5. Representations and Warranties. Each of the Seller Parties
represents and warrants, as of the date hereof, that after giving effect to this
Amend ment:
(a) all of the representations and warranties of such Seller
Party contained in the Purchase Agreement and in each other document or
certificate delivered in connection therewith (other than those that expressly
speak only as of a different date) are true and correct; and
(b) no Amortization Event or Potential Amortization Event has
occurred and is continuing.
6. Conditions to Effectiveness of Amendment. The effectiveness
of this Amendment is subject to the satisfaction of the following conditions
prece dent:
(a) Amendment. This Amendment shall have been duly executed
and delivered by each of the parties hereto.
(b) Officer's Certificate. Each of the Consenting Parties
shall have received a certificate, in the form of Exhibit A hereto, of each of
the Seller Parties certifying as to matters set forth in Sections 5(a) and (b)
of this Amendment.
(c) Waivers and Amendments. The Agent 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) UCC-3 Financing Statements. The Agent shall have received
duly executed proper financing statements for all jurisdictions as may be
necessary or, in the opinion of the Agent, desirable, under the UCC of all
appropriate jurisdictions or any comparable law in connection with this
Amendment.
(e) Interface Americas. The Agent shall have received each of
the documents set forth in Section 5(g) of the Transfer Agreement Amendment.
7. 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,
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waiver or modification of any other term or condition of the Purchase 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 each of the Consenting Parties may now have or may have
in the future under or in connection with the Purchase Agreement as amended
hereby or any other Transaction Document or any other instrument or agreement
referred to therein. Each reference in the Purchase Agreement to "the
Agreement," "herein," "hereof" and words of like import and each reference in
the other Transaction Documents to the "Purchase Agreement" or "Receivables
Purchase Agreement" shall mean the Purchase Agreement as amended hereby. This
Amendment shall be construed in connection with and as part of the Purchase
Agreement as amended hereby and all terms, conditions, representations,
warranties, covenants and agreements set forth in the Purchase 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.
(b) Each of the Seller Parties hereby jointly and severally
agrees to pay all reasonable costs, fees and expenses in connection with the
prepara tion, execution and delivery of this Amendment (including the reasonable
fees and expenses of counsel to the parties hereto).
(c) 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.
(d) Any provision contained in this Amendment that is held to
be inoperative, unenforceable or invalid in any jurisdiction shall, as to that
jurisdic tion, 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.
(e) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[SIGNATURE PAGES FOLLOW]
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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.
INTERFACE SECURITIZATION CORPORATION
By: s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President, Treasurer and
Assistant Secretary
INTERFACE, INC.
By: s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President, CFO,
Treasurer and Assistant
Secretary
JUPITER SECURITIZATION CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Authorized Signatory
BANK ONE, NA (MAIN OFFICE
CHICAGO), as a Financial Institution and
as Agent
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
