EXHIBIT 10.28
FIFTH AMENDMENT TO
RECEIVABLES TRANSFER AGREEMENT
This Fifth Amendment to Receivables Transfer Agreement (this
"Amendment") is entered into as of February 14, 2002, 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 Americas, Inc., a Georgia corporation ("Interface Americas"),
Interface Architectural Resources, Inc., a Michigan corporation ("Interface
Architectural"), Interface Flooring Systems, Inc., a Georgia corporation
("Interface Flooring"), Pandel, Inc., a Georgia corporation ("Pandel"), and
Toltec Fabrics, Inc., a Georgia corporation ("Toltec" and together with Bentley,
Chatham, Guilford, Intek, Interface Americas, Interface Architectural, Interface
Flooring and Pandel, the "Original Sellers" and, individually, an "Original
Seller"), and Interface, Inc., a Georgia corporation, as Originator
("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
Each of the Original Sellers and Originator are party to a certain
Receivables Transfer Agreement, dated as of December 19, 2000 and as amended,
restated, supplemented or otherwise modified from time to time and in effect
immediately prior to the date hereof (the "Transfer Agreement").
Each of the Original Sellers has requested certain amendments to
certain provisions of the Transfer Agreement and Originator desires to make such
amendments on the terms and conditions set forth herein, all as more fully
described herein.
AGREEMENT
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
FIFTH AMENDMENT TO
RECEIVABLES TRANSFER AGREEMENT
1. Amendment. Subject to the terms and conditions set forth
herein and upon the effectiveness of this Amendment:
(a) Clause (B) of the proviso contained in the last
sentence of Section 4.1(d) of the Sale Agreement is hereby amended and restated
in its entirety as follows:
"(B) such cost shall be born by such Original Seller not more
than twice per calendar year per Original Seller (although in no event
shall the foregoing be construed to limit Originator (and its assigns)
or their respective agents or representatives to two such examinations
and/or visits of such Original Seller during such calendar year
period)"
2. Representations and Warranties. Each Original Seller
represents and warrants, as of the date hereof, that both before and 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 are true and correct; and
(b) no Termination Event or Potential Termination Event
has occurred and is continuing.
3. Conditions to Effectiveness of Amendment. This Amendment shall
become effective as of the date hereof upon the satisfaction of the following
conditions precedent:
(a) Amendment. This Amendment shall have been duly
executed and delivered by each of the parties hereto.
(b) Officer's Certificate. The Originator shall have
received a certificate of each of the Original Sellers, in substantially the
form of Exhibit A hereto, certifying as to matters set forth in Sections 2(a)
and (b) of this Amendment.
FIFTH AMENDMENT TO
RECEIVABLES TRANSFER AGREEMENT
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4. Effect of Amendment.
(a) The amendments set forth herein are effective solely
for the purposes set forth herein and shall be limited precisely as written, and
shall not be deemed to (i) be a consent to any amendment, waiver or modification
of any other term or condition of the Transfer Agreement or of any other
instrument or agreement referred to therein, or (ii) prejudice any right or
remedy that the Originator, SPV, any Financial Institution, 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 instrument or agreement
referred to therein. Each reference in the Transfer Agreement to "this
Agreement," "herein," "hereof" and words of like import and each reference in
the other Transaction Documents to the "Transfer Agreement" or "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 and all terms, conditions, representations, warranties, covenants and
agreements set forth in the Transfer Agreement and each other instrument or
agreement referred to therein, except as herein amended, are hereby ratified and
confirmed and shall remain in full force and effect.
(b) This Amendment is a Transaction Document executed
pursuant to the Transfer Agreement and shall be construed, administered and
applied in accordance with the terms and provisions thereof.
(c) Each of the Original Sellers hereby jointly and
severally agrees to pay all reasonable costs, fees and expenses in connection
with the preparation, execution and delivery of this Amendment (including the
reasonable fees and expenses of counsels to the Originator and its assigns).
(d) This Amendment may be executed in any number of
counterparts, each such counterpart constituting an original and all of which
when taken together shall constitute one and the same instrument. Delivery of an
executed counterpart of a signature page hereto by facsimile shall be effective
as delivery of an originally executed counterpart of this Amendment; provided
that each party hereto agrees to deliver originally executed counterparts of
this Amendment on a timely basis.
(e) Any provision contained in this Amendment that is
held to be inoperative, unenforceable or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable or invalid without affecting
the operation, enforceability or
FIFTH AMENDMENT TO
RECEIVABLES TRANSFER AGREEMENT
3
validity of the remaining provisions of this Amendment in that jurisdiction or
the operation, enforceability or validity of such provision in any other
jurisdiction.
(f) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(SIGNATURE PAGES FOLLOW)
FIFTH AMENDMENT TO
RECEIVABLES TRANSFER AGREEMENT
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their duly authorized officers as of the date
hereof.
BENTLEY XXXXX, INC.,
as an Original Seller
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
CHATHAM MARKETING CO.,
as an Original Seller
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
GUILFORD OF MAINE MARKETING CO.,
as an Original Seller
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
INTEK MARKETING CO.,
as an Original Seller
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title Vice President
INTERFACE AMERICAS, INC.,
as an Original Seller
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
FIFTH AMENDMENT TO
RECEIVABLES TRANSFER AGREEMENT
INTERFACE ARCHITECTURAL RESOURCES,
INC., as an Original Seller
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
INTERFACE FLOORING SYSTEMS, INC.,
as an Original Seller
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
PANDEL, INC.,
as an Original Seller
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
TOLTEC FABRICS, INC.,
as an Original Seller
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
INTERFACE, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
FIFTH AMENDMENT TO
RECEIVABLES TRANSFER AGREEMENT
EXHIBIT A
OFFICER'S CERTIFICATE
I, , am the Assistant Secretary of each of Bentley
Xxxxx, Inc., a Delaware corporation, Chatham Marketing Co., a North Carolina
corporation, Guilford of Maine Marketing Co., a Nevada corporation, Intek
Marketing Co., a Nevada corporation, Interface Americas, Inc., a Georgia
corporation, Interface Architectural Resources, Inc., a Michigan corporation,
Interface Flooring Systems, Inc., a Georgia corporation, Pandel, Inc., a Georgia
corporation, and Toltec Fabrics, Inc., a Georgia corporation (each of the
foregoing, an "Original Seller", and collectively, the "Original Sellers"). I
execute and deliver this Officer's Certificate, dated as of February 14, 2002,
on behalf of each Original Seller pursuant to Section 3(b) of that certain Fifth
Amendment to Receivables Transfer Agreement (the "Amendment"), dated as of the
date hereof, by and among the Original Sellers and Interface, Inc., a Georgia
corporation, as Originator (the "Originator"), which Fifth Amendment amends
certain terms and provisions of that certain Receivables Transfer Agreement,
dated as of December 19, 2000, by and among the Original Sellers and the
Originator (as amended, restated, supplemented or otherwise modified from time
to time, the "Transfer Agreement"). Capitalized terms used in this Officer's
Certificate and not otherwise defined herein shall have the respective meanings
set forth in the Transfer Agreement.
I hereby certify, on behalf of each of the Original Sellers, that, both
before and after giving effect to the Amendment, (a) no Termination Event or
Potential Termination Event has occurred and is continuing and (b) the
representations and warranties of such Original Seller contained in the Transfer
Agreement and in the other Transaction Documents are true and correct as of the
date hereof.
By:
-----------------------------------------
Name:
Title: Assistant Secretary
FIFTH AMENDMENT TO
RECEIVABLES TRANSFER AGREEMENT
