<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
/x/ Quarterly Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For Quarterly Period Ended July 2, 1995
Commission File Number 0-12016
------------------------------
INTERFACE, INC.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
GEORGIA 58-1451243
------------------------------- --------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2859 PACES FERRY ROAD, SUITE 2000, ATLANTA, GEORGIA 30339
---------------------------------------------------------
(Address of principal executive offices and zip code)
(404) 437-6800
----------------------------------------------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
Yes X No
--- ---
Shares outstanding of each of the registrant's classes of common stock at
August 8, 1995:
<TABLE>
<CAPTION>
Class Number of Shares
--------------------------------------------- ----------------
<S> <C>
Class A Common Stock, $.10 par value per share 15,238,355
Class B Common Stock, $.10 par value per share 3,011,998
</TABLE>
1
<PAGE>
<PAGE>
INTERFACE, INC.
Index
Page
----
Part I. FINANCIAL INFORMATION
Item 1. Consolidated Condensed Financial Statements
Balance Sheets - July 2, 1995 and January 1, 1995 3
Statements of Income - Three Months and Six Months
Ended July 2, 1995 and July 3, 1994 4
Statements of Cash Flows -
Six Months Ended July 2, 1995 and July 3, 1994 5
Notes to Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 8
Part II. OTHER INFORMATION
Item 1. Legal Proceedings 10
Item 2. Changes in the Rights of the Company's Security
Holders 10
Item 3. Defaults by the Company on Its Senior Securities 10
Item 4. Submission of Matters to a Vote of Security Holders 10
Item 5. Other Information 11
Item 6. Exhibits and Reports on Form 8-K 11
2
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
INTERFACE, INC. AND SUBSIDIARIES
Consolidated Condensed Balance Sheet
(Unaudited)
(In thousands) July 2, January 1,
---------------------------- 1995 1995
------ ---------
ASSETS
----------------------------
<S> <C> <C>
CURRENT ASSETS:
Cash and Cash Equivalents $4,856 $4,389
Escrowed and Restricted Funds 2,455 2,663
Accounts Receivable 143,522 133,536
Inventories 145,880 132,650
Deferred Tax Asset 3,767 3,767
Prepaid Expenses 18,928 15,110
-------- --------
TOTAL CURRENT ASSETS 319,408 292,115
PROPERTY AND EQUIPMENT, less
accumulated depreciation 162,440 152,874
EXCESS OF COST OVER NET ASSETS ACQUIRED 215,178 202,852
OTHER ASSETS 42,562 40,093
-------- --------
$739,588 $687,934
======== ========
LIABILITIES AND COMMON SHAREHOLDERS' EQUITY
-------------------------------------------
CURRENT LIABILITIES:
Accounts Payable $71,208 $59,702
Accrued Expenses 51,834 56,940
Current Maturities of Long-Term Debt 1,550 853
-------- --------
TOTAL CURRENT LIABILITIES 124,592 117,495
LONG-TERM DEBT, less current maturities 234,464 209,663
CONVERTIBLE SUBORDINATED DEBENTURES 103,925 103,925
DEFERRED INCOME TAXES 17,012 17,761
-------- --------
TOTAL LIABILITIES 479,993 448,844
-------- --------
Redeemable Preferred Stock 25,000 25,000
Common Stock:
Class A 1,881 1,871
Class B 304 308
Additional Paid-In Capital 3,971 93,450
Retained Earnings 142,370 136,343
Foreign Currency Translation Adjustment 13,815 (136)
Treasury Stock, 3,600
Class A Shares, at Cost (17,746) (17,746)
-------- --------
$739,588 $687,934
======== ========
See accompanying notes to consolidated condensed financial statements.
</TABLE>
3
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
INTERFACE, INC. AND SUBSIDIARIES
Consolidated Condensed Statements of Income
(Unaudited)
(In thousands except per share amounts)
---------------------------------------
Three Months Ended Six Months Ended
------------------------- ---------------------------
July 2 July 3, July 2, July 3
1995 1994 1995 1994
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Net Sales $202,818 $181,665 $394,145 $342,384
Cost of Sales 140,090 126,117 273,062 238,492
-------- -------- -------- --------
Gross Profit on Sales 62,728 55,548 121,083 103,892
Selling, General and Administrative Expenses 47,278 43,408 92,240 81,313
-------- -------- -------- --------
Operating Income 15,450 12,140 28,843 22,579
Other (Expense) Income - Net (7,262) (6,342) (14,179) (12,386)
-------- -------- -------- --------
Income before Taxes on Income 8,188 5,798 14,664 10,193
Taxes on Income 3,113 2,087 5,573 3,670
-------- ------- -------- --------
Net Income 5,075 3,711 9,091 6,523
Less: Preferred Dividends 437 437 874 875
-------- ------- -------- --------
Net Income Applicable to Common Shareholders $4,638 $3,274 $8,217 5,648
======== ======= ======== ========
Earnings Per Share
Primary $0.25 $0.18 $0.45 $0.32
======== ======= ======== =======
Fully Diluted <F1> $0.25 $0.18<F1> $0.45 $0.32<F1>
======== ======= ======== =======
Weighted Average Common Shares Outstanding
Primary 18,250 18,175 18,230 17,834
======== ======= ======= =======
Fully Diluted 26,086 26,010 26,065 25,670
======== ======= ======= =======
------------------------
<FN>
<F1> For the three months and six months periods ended July 3, 1994, earnings per share on a fully dilutive basis
were antidilutive.
</FN>
See accompanying notes to consolidated condensed financial statements.
</TABLE>
4
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
INTERFACE, INC. AND SUBSIDIARIES
Consolidated Condensed Statements of Cash Flows
(Unaudited)
Six Months Ended
--------------------------
July 2, July 3,
(In thousands) 1995 1994
------------- ---------- ----------
<S> <C> <C>
OPERATING ACTIVITIES:
Net income $9,091 $6,523
Adjustment to reconcile net income
to cash provided by operating activities:
Depreciation and amortization 14,308 14,357
Deferred income taxes (861) 70
Cash provided by (used for):
Accounts receivable (4,490) (4,385)
Inventories (4,295) (13,156)
Prepaid and other (2,582) 217
Accounts payable and accrued expenses 2,898 (10,455)
------- ---------
14,069 (5,929)
------- ---------
INVESTING ACTIVITIES:
Capital expenditures (12,881) (9,182)
Acquisitions of businesses (17,154) (643)
Other (2,710) 2,511
-------- ----------
(32,745) (7,314)
-------- ----------
FINANCING ACTIVITIES:
Net borrowing of long-term debt 21,434 12,734
Issuance of common stock 526 453
Dividends paid (3,064) (3,015)
-------- ---------
18,896 10,172
-------- --------
Net cash provided by operating,
investing and financing activities 220 (3,071)
Effect of exchange rate changes on cash 247 318
-------- ---------
CASH AND CASH EQUIVALENTS:
Net increase (decrease) during the period 467 (2,753)
Balance at beginning of period 4,389 4,674
-------- --------
Balance at end of period $4,856 $1,921
======== ========
See accompanying notes to consolidated condensed financial statements.
</TABLE>
5
<PAGE>
<PAGE>
INTERFACE, INC. AND SUBSIDIARIES
Notes to Consolidated Condensed Financial Statements
NOTE 1 - CONDENSED FOOTNOTES
As contemplated by the Securities and Exchange Commission instructions
to Form 10-Q, the following footnotes have been condensed and, therefore,
do not contain all disclosures required in connection with annual financial
statements. Reference should be made to the notes to the Company's year-end
financial statements contained in its Annual Report to Shareholders for the
fiscal year ended January 1, 1995, as filed with the Securities and Exchange
Commission.
NOTE 2 - INVENTORIES
Inventories are summarized as follows:
July 2, January 1,
1995 1995
------- ---------
Finished Goods $ 78,895 $ 74,542
Work-in-Process 28,482 20,250
Raw Materials 38,503 37,858
------ ------
$ 145,880 $ 132,650
========== =========
NOTE 3 - BUSINESS ACQUISITIONS
In June 1995, the Company acquired substantially all of the assets of
Toltec Fabrics, Inc., a North Carolina based company, for approximately
$13,280,000 (comprised of $7,530,000 in cash and $5,750,000 in notes).
The acquisition was accounted for as a purchase and, accordingly, the results
of operations are included in the Company's consolidated financial statements
from the date of acquisition.
NOTE 4 - EARNINGS PER SHARE AND DIVIDENDS
Earnings per share are computed by dividing net income applicable to common
shareholders by the combined weighted average number of shares of Class A and
Class B common stock outstanding during the particular reporting period.
The computation does not include a negligible dilutive effect of outstanding
stock options. Neither the Convertible Subordinated Debentures issued in
September 1988 nor the Series A Cumulative Convertible Preferred Stock issued
during June 1993 were determined to be common stock equivalents.
6
<PAGE>
<PAGE>
INTERFACE, INC. AND SUBSIDIARIES
Notes to Consolidated Condensed Financial Statements
NOTE 4 - EARNINGS PER SHARE AND DIVIDENDS (Continued)
In computing primary earnings per share, the preferred stock dividend
reduces income applicable to common shareholders. For the purposes of
computing earnings per share and dividends paid per share, the Company is
treating as treasury stock (and therefore not outstanding) the shares that
are owned by a wholly-owned subsidiary (3,600,000 Class A shares, recorded
at cost).
__________________________________________
The financial information included in this report has been prepared by the
Company, without audit, and should not be relied upon to the same extent as
audited financial statements. In the opinion of management, the financial
information included in this report contains all adjustments (all of which are
normal and recurring) necessary for a fair presentation of the results for the
interim periods. Nevertheless, the results shown for interim periods are not
necessarily indicative of results to be expected for the year.
7<PAGE>
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
RESULTS OF OPERATIONS. For the three month and six month periods ended
July 2, 1995, the Company's net sales increased $21.2 million (11.6%) and
$51.8 million (15.1%), respectively, compared with the same periods in 1994.
The increase was primarily attributable to (i) increased sales volume in
the Company's floorcoverings operations in the United States, United Kingdom,
Southeast Asia and Greater China, (ii) continued improvement in unit volume
in the Company's interior fabrics and chemical operations, (iii) sales
generated by Toltec Fabrics, Inc., which was acquired during June 1995,
and, (iv) the strengthening of certain key currencies (particularly the
British pound sterling, Dutch guilder and Japanese yen) against
the U.S. dollar, the Company's reporting currency. These increases were offset
somewhat by a decrease in floorcoverings sales volume in Japan, Australia and
certain markets within Continental Europe.
Cost of sales decreased as a percentage of sales for the three month and
six month periods ended July 2, 1995, compared with the same periods in 1994.
The decrease was due primarily to (i) a reduction of manufacturing costs in the
Company's carpet tile operations (particularly the U.S manufacturing facility)
as the Company implemented a make-to-order ("mass customization") production
strategy and "war-on-waste" initiative, leading to increased manufacturing
efficiencies, and an attendant shift in product mix to higher margin
products, (ii) the weakening of the U.S. dollar against certain key
currencies which lowered the cost of U.S. produced goods sold in export
markets, and (iii) decreased manufacturing costs in the Company's interior
fabrics business as a result of improved manufacturing efficiencies. These
benefits were somewhat offset by raw material price increases in the interior
fabrics and chemical operations and the acquisitions of Prince Street
Technologies, Ltd. and Toltec Fabrics, which, historically, had higher cost
of sales ratios than the Company.
Selling, general and administrative expenses as a percentage of sales
decreased to 23.3% and 23.4%, respectively, for the three month and six month
periods ended July 2, 1995, compared to 23.9% and 23.7% for the same periods
in 1994, primarily as a result of increased sales.
For the three month and six month periods ended July 2, 1995, the
Company's other expense increased $0.9 million and $1.8 million,
respectively, compared to the same periods in 1994, primarily due to an
increase in bank debt coupled with the increase in U.S. interest rates.
Due, by and large, to the aforementioned factors, the Company's net income
increased 41.7% to $4.6 million and 45.5% to $8.2 million, respectively, for
the three month and six month periods ended July 2, 1995, compared to the
same periods in 1994.
8<PAGE>
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES. The primary uses of cash during the
period have been (i) $12.9 million for additions to property and equipment
in the Company's manufacturing facilities, (ii) $14.0 million associated with
the acquisition of Toltec Fabrics, (iii) $2.4 million associated with the
Thailand joint venture, (iv) $1.2 million for business acquisitions in the
Company's architectural resources unit, and (v) $3.1 million for dividends
paid. These uses were funded by $21.4 million from long-term financing,
and $14.1 million in operating activities.
The Company, as of July 2, 1995, recognized a $14.0 million decrease
in foreign currency translation adjustment compared to that of January 1, 1995.
This improvement in translation adjustment was largely due to a significant
quarter-end strengthening of the British pound sterling and the Dutch guilder
compared to the U.S. dollar. The adjustment to shareholders' equity was
converted by the guidelines of the Financial Accounting Standards Board
(FASB) 52.
The Company employs a variety of off-balance sheet financial instruments
to reduce its exposure to adverse fluctuations in interest and foreign
currency swap agreements and foreign currency exchange contracts. At
July 2, 1995, the Company had approximately $45 million (notional amount)
of foreign currency hedge contracts outstanding, consisting principally
of forward exchange contracts. These contracts serve to hedge firmly
committed Dutch guilder, German mark, Japanese yen, French franc, British
pound sterling and other foreign currency revenues.
At July 2, 1995, interest rate and currency swap agreements related
to certain foreign currency denominated promissory notes effectively
converted approximately $23 million of variable rate debt to fixed rate
debt. At July 2, 1995, the weighted average fixed rate on the Dutch guilder
and Japanese yen borrowings was 7.43%. The interest rate and currency swap
agreements have maturity dates ranging from six to twelve months.
The Company continually monitors its position with, and the credit
quality of, the financial institutions which are counterparties to its
off-balance sheet financial instruments and does not anticipate nonperformance
by the counterparties.
In January 1995, the Company amended its existing revolving credit and
term loan facilities. The amendment provided for, among other things, (i) an
increase in the revolving credit facility from $125 million to $200 million
(including a letter of credit facility of up to $40 million), (ii) a decrease
in the secured term loans from approximately $135 million to $50 million, and
(iii) a new accounts receivable securitization facility of up to $100 million.
Additionally, the term of the agreement has been extended to June 30, 1999
for the revolving credit facilities, and December 31, 2001 for the term loans.
Management believes that the cash provided by operations and available
under long-term loan commitments will provide adequate funds for current
commitments and other requirements in the foreseeable future.
9<PAGE>
<PAGE>
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company is not aware of any material pending legal proceedings
involving it or any of its property.
ITEM 2. CHANGES IN THE RIGHTS OF THE COMPANY'S SECURITY HOLDERS
None
ITEM 3. DEFAULTS BY THE COMPANY ON ITS SENIOR SECURITIES
None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
(a) The Company held its annual meeting of shareholders on
May 18, 1995.
(b) N/A
(c) The matters considered at the annual meeting, and the votes cast
for, against or withheld, as well as the number of abstentions,
relating to each matter, are as follows:
(i) Election of the following directors:
<TABLE>
<CAPTION>
Class A For Withheld
------- --- --------
<S> <C> <C>
Carl I. Gable 11,122,123 13,426
Dr. June M. Henton 11,117,923 17,626
J. Smith Lanier, II 11,118,623 16,926
Leonard G. Saulter 11,117,823 17,726
David G. Thomas 11,118,623 16,926
Clarinus C. Th. van Andel 11,117,823 17,726
Class B For Withheld
------- --- --------
Ray C. Anderson 2,655,555 0
Brian L. DeMoura 2,655,555 0
Charles R. Eitel 2,655,555 0
David Milton 2,655,555 0
Royce R. Renfroe 2,655,555 0
Don E. Russell 2,655,555 0
C. Edward Terry 2,655,555 0
</TABLE>
10
<PAGE>
<PAGE>
(ii) Proposal submitted by a shareholder requesting implementation of
the MacBride Principles concerning employment practices of the
Company's subsidiary that has a facility in Northern Ireland.
For 1,166,530
Against 11,516,644
Abstain 890,110
ITEM 5. OTHER INFORMATION
None
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) The following exhibits are filed with this report:
Exhibit
Number Description of Exhibit
------- ----------------------
10 Amended and Restated Credit Agreement among the
Company, (and certain direct and indirect
subsidiaries), Trust Company Bank and the
First National Bank of Chicago dated
June 30, 1995
27 Financial Data Schedule
(b) No reports on Form 8-K were filed during the quarter ended
July 2. 1995.
11
<PAGE>
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
INTERFACE, INC.
Date: August 15, 1995 By: /s/ Daniel T. Hendrix
------------------------------
Daniel T. Hendrix
Vice President
(Principal Financial Officer)
12
<PAGE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
------ --------------------------------
10.1 Amended and Restated Credit Agreement
among the Company (and certain direct and
indirect subsidiaries), Trust Company Bank
and the First National Bank of Chicago
dated June 30, 1995
27 Financial Data Schedule
(for SEC use only)
13
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<PAGE>
<PAGE>
EXECUTION COPY
==================================================================
AMENDED AND RESTATED
CREDIT AGREEMENT
dated as of JUNE 30, 1995
among
INTERFACE, INC.,
INTERFACE SCHERPENZEEL B.V.,
INTERFACE EUROPE LIMITED,
THE LENDERS LISTED HEREIN,
TRUST COMPANY BANK
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Co-Agents,
and
TRUST COMPANY BANK,
as Collateral Agent
==================================================================
<PAGE>
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS; CONSTRUCTION . . . . . . . . . . . . 2
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . 2
Section 1.02. Accounting Terms and Determination . . . . . . . . 31
Section 1.03. Other Definitional Terms . . . . . . . . . . . . . 31
Section 1.04. Exhibits and Schedules . . . . . . . . . . . . . . 31
ARTICLE 2. TERM LOANS . . . . . . . . . . . . . . . . . . . . 32
Section 2.01. Amount of Term Loans; Use of Proceeds . . . . . . 32
Section 2.02. Notes; Repayment of Principal . . . . . . . . . . 32
Section 2.03. Mandatory Prepayments . . . . . . . . . . . . . . 33
ARTICLE 3. REVOLVING LOANS . . . . . . . . . . . . . . . . . 34
Section 3.01. Commitment; Use of Proceeds . . . . . . . . . . . 34
Section 3.02. Notes; Repayment of Principal . . . . . . . . . . 35
Section 3.03. Voluntary Reduction of Revolving Loan
Commitments . . . . . . . . . . . . 35
Section 3.04. Mandatory Reductions of Revolving Loan
Commitments . . . . . . . . . . . . 36
ARTICLE 4. MULTICURRENCY LOANS . . . . . . . . . . . . . . . 36
Section 4.01. Multicurrency Loan Commitments; Use of
Proceeds . . . . . . . . . . . . . 36
Section 4.02. Notes; Repayment of Principal . . . . . . . . . . 38
Section 4.03. Voluntary Reduction of Multicurrency
Loan Commitments . . . . . . . . . 38
Section 4.04. Mandatory Reduction of Multicurrency
Loan Commitments . . . . . . . . . 39
ARTICLE 5. GENERAL LOAN TERMS . . . . . . . . . . . . . . . 40
Section 5.01. Funding Notices . . . . . . . . . . . . . . . 40
Section 5.02. Disbursement of Funds . . . . . . . . . . . . . . 43
Section 5.03. Interest . . . . . . . . . . . . . . . . . . . . . 44
Section 5.04. Interest Periods . . . . . . . . . . . . . . . . 46
-i-
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<PAGE>
Section 5.05. Fees . . . . . . . . . . . . . . . . . . . . . . . 48
Section 5.06. Voluntary Prepayments of Borrowings . . . . . . . 49
Section 5.07. Payments, etc. . . . . . . . . . . . . . . . . . 49
Section 5.08. Interest Rate Not Ascertainable, etc. . . . . . . 56
Section 5.09. Illegality . . . . . . . . . . . . . . . . . . . . 57
Section 5.10. Increased Costs . . . . . . . . . . . . . . . . . 57
Section 5.11. Lending Offices . . . . . . . . . . . . . . . . . 59
Section 5.12. Funding Losses . . . . . . . . . . . . . . . . . 60
Section 5.13. Failure to Pay in Appropriate Currency . . . . . . 60
Section 5.14. Assumptions Concerning Funding of
Fixed Rate Advances . . . . . . . . 61
Section 5.15. Apportionment of Payments . . . . . . . . . . . . 61
Section 5.16. Sharing of Payments, Etc. . . . . . . . . . . . . 61
Section 5.17. Capital Adequacy . . . . . . . . . . . . . . . 62
Section 5.18. Benefits to Guarantors . . . . . . . . . . . . . . 62
Section 5.19. Limitation on Certain Payment
Obligations . . . . . . . . . . . . 63
ARTICLE 6. CONDITIONS TO BORROWINGS . . . . . . . . . . . . . 63
Section 6.01. Conditions Precedent to Initial Loans . . . . . . 63
Section 6.02. Conditions to Initial Loans to
Europe Limited . . . . . . . . . . . . 67
Section 6.03. Conditions to All Loans . . . . . . . . . . . . . 67
ARTICLE 7. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . 68
Section 7.01. Corporate Existence; Compliance with
Law . . . . . . . . . . . . . . . 68
Section 7.02. Corporate Power; Authorization . . . . . . . . . . 69
Section 7.03. Enforceable Obligations . . . . . . . . . . . . . 69
Section 7.04. No Legal Bar . . . . . . . . . . . . . . . . . 69
Section 7.05. No Material Litigation . . . . . . . . . . . . . . 70
Section 7.06. Investment Company Act, Etc. . . . . . . . . . . . 70
Section 7.07. Margin Regulations . . . . . . . . . . . . . . . 70
Section 7.08. Compliance with Environmental Laws . . . . . . . . 70
Section 7.09. Insurance . . . . . . . . . . . . . . . . . 71
Section 7.10. No Default . . . . . . . . . . . . . . . . . 72
Section 7.11. No Burdensome Restrictions . . . . . . . . . . . . 72
Section 7.12. Taxes . . . . . . . . . . . . . . . . . . . . . . 72
Section 7.13. Subsidiaries . . . . . . . . . . . . . . . . . 72
Section 7.14. Financial Statements . . . . . . . . . . . . . . . 73
Section 7.15. ERISA . . . . . . . . . . . . . . . . . . . . . . 73
Section 7.16. Patents, Trademarks, Licenses, Etc. . . . . . . . 74
Section 7.17. Ownership of Property . . . . . . . . . . . . . . 75
Section 7.18. Indebtedness . . . . . . . . . . . . . . . . . 75
-ii-
<PAGE>
<PAGE>
Section 7.19. Financial Condition . . . . . . . . . . . . . . . 75
Section 7.20. Intercompany Loans . . . . . . . . . . . . . . . 76
Section 7.21. Labor Matters . . . . . . . . . . . . . . . . . 76
Section 7.22. Payment or Dividend Restrictions . . . . . . . . . 77
Section 7.23. Disclosure . . . . . . . . . . . . . . . . . 77
ARTICLE 8. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . 77
Section 8.01. Corporate Existence, Etc. . . . . . . . . . . . . 77
Section 8.02. Compliance with Laws, Etc. . . . . . . . . . . . . 77
Section 8.03. Payment of Taxes and Claims, Etc. . . . . . . . . 78
Section 8.04. Keeping of Books . . . . . . . . . . . . . . . 78
Section 8.05. Visitation, Inspection, Etc. . . . . . . . . . . . 78
Section 8.06. Insurance; Maintenance of Properties . . . . . . . 79
Section 8.07. Reporting Covenants . . . . . . . . . . . . . . . 80
Section 8.08. Currency Contract . . . . . . . . . . . . . . . 85
Section 8.09. Financial Covenants . . . . . . . . . . . . . . . 85
Section 8.10. Notices Under Certain Other Indebtedness . . . . . 86
Section 8.11. Additional Credit Parties and Collateral . . . . . 87
Section 8.12. Closing of Accounts Receivable Facility . . . . . 87
ARTICLE 9. NEGATIVE COVENANTS . . . . . . . . . . . . . . . 88
Section 9.01. Indebtedness . . . . . . . . . . . . . . . . . 88
Section 9.02. Liens . . . . . . . . . . . . . . . . . . . . . 90
Section 9.03. Mergers, Acquisitions, Sales, Etc. . . . . . . . . 91
Section 9.04. Dividends, Etc. . . . . . . . . . . . . . . . 92
Section 9.05. Investments, Loans, Etc. . . . . . . . . . . . . . 93
Section 9.06. Sale and Leaseback Transactions . . . . . . . . . 94
Section 9.07. Transactions with Affiliates . . . . . . . . . . . 94
Section 9.08. Optional Prepayments . . . . . . . . . . . . . . . 95
Section 9.09. Changes in Business . . . . . . . . . . . . . . . 95
Section 9.10. ERISA . . . . . . . . . . . . . . . . . . . . . . .95
Section 9.11. Additional Negative Pledges . . . . . . . . . . . 96
Section 9.12. Limitation on Payment Restrictions
Affecting Consolidated Companies . 96
Section 9.13. Actions Under Certain Documents . . . . . . . . . 96
ARTICLE 10. EVENTS OF DEFAULT . . . . . . . . . . . . . . . 96
Section 10.01. Payments . . . . . . . . . . . . . . . . . 97
Section 10.02. Covenants Without Notice . . . . . . . . . . . . . 97
Section 10.03. Other Covenants . . . . . . . . . . . . . . . 97
Section 10.04. Representations . . . . . . . . . . . . . . . 97
Section 10.05. Non-Payments of Other Indebtedness . . . . . . . . 97
Section 10.06. Defaults Under Other Agreements . . . . . . . . . 97
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Section 10.07. Bankruptcy . . . . . . . . . . . . . . . . . . . 98
Section 10.08. ERISA . . . . . . . . . . . . . . . . . . . . . . 98
Section 10.09. Money Judgment . . . . . . . . . . . . . . . . . 99
Section 10.10. Ownership of Credit Parties . . . . . . . . . . . 99
Section 10.11. Change in Control of Interface . . . . . . . . . . 99
Section 10.12. Default Under Other Credit Documents . . . . . . . 100
Section 10.13. Default Under Interest Rate Contract
or Currency Contract . . . . . . . 100
Section 10.14. Attachments . . . . . . . . . . . . . . . . . 100
Section 10.15. Accounts Receivable Facility . . . . . . . . . . . 101
ARTICLE 11. THE CO-AGENTS; COLLATERAL AGENT . . . . . . . . . 101
Section 11.01. Appointment of Co-Agents . . . . . . . . . . . . . 101
Section 11.02. Appointment of Collateral Agent . . . . . . . . . 102
Section 11.03. Nature of Duties of Agents . . . . . . . . . . . . 103
Section 11.04. Lack of Reliance on the Agents . . . . . . . . . . 103
Section 11.05. Certain Rights of the Agents . . . . . . . . . . . 104
Section 11.06. Reliance by Agents . . . . . . . . . . . . . . . 104
Section 11.07. Indemnification of Agents . . . . . . . . . . . . 104
Section 11.08. The Agents in their Individual
Capacity . . . . . . . . . . . . . 105
Section 11.09. Holders of Notes . . . . . . . . . . . . . . . 105
Section 11.10. Successor Agents . . . . . . . . . . . . . . . 105
Section 11.11. Interests of FNBC and its Affiliates . . . . . . . 106
ARTICLE 12. MISCELLANEOUS . . . . . . . . . . . . . . . . . 107
Section 12.01. Notices . . . . . . . . . . . . . . . . . . . . 107
Section 12.02. Amendments, Etc . . . . . . . . . . . . . . . 107
Section 12.03. No Waiver; Remedies Cumulative . . . . . . . . . . 108
Section 12.04. Payment of Expenses, Etc. . . . . . . . . . . . . 109
Section 12.05. Right of Setoff . . . . . . . . . . . . . . . 111
Section 12.06. Benefit of Agreement . . . . . . . . . . . . . . . 111
Section 12.07. Governing Law; Submission to
Jurisdiction . . . . . . . . . . . 114
Section 12.08. Independent Nature of Lenders' Rights . . . . . . 115
Section 12.09. Counterparts 115
Section 12.10. Effectiveness; Survival . . . . . . . . . . . . . 115
Section 12.11. Severability 115
Section 12.12. Independence of Covenants . . . . . . . . . . . . 116
Section 12.13. Change in Accounting Principles,
Fiscal Year or Tax Laws . . . . . . 116
Section 12.14. Headings Descriptive; Entire Agreement . . . . . . 116
Section 12.15. Judgment Currency . . . . . . . . . . . . . . . 116
Section 12.16. Dollar Equivalent Computations . . . . . . . . . . 117
Section 12.17. Refinancing of Indebtedness . . . . . . . . . . . 118
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<PAGE>
SCHEDULES
----------
Schedule 4.01 List of Payment Offices/FBC Accounts
Schedule 7.01 Organization and Ownership of
Subsidiaries
Schedule 7.05 Certain Pending and Threatened
Litigation
Schedule 7.08(A) Environmental Compliance
Schedule 7.08(B) Environmental Notices
Schedule 7.11 Burdensome Restrictions
Schedule 7.12 Tax Filings and Payments
Schedule 7.13 Material Subsidiaries
Schedule 7.15 Employee Benefit Matters
Schedule 7.16 Patent, Trademark, License, and
Other Intellectual Property
Matters
Schedule 7.17 Ownership of Properties
Schedule 7.18 Refinanced Indebtedness
Schedule 7.20 Intercompany Loans
Schedule 7.21 Labor and Employment Matters
Schedule 7.22 Dividend Restrictions
Schedule 8.09 Financial Covenant Calculations
First Quarter 1992
Schedule 9.01(B) Existing Term Indebtedness
Schedule 9.01(J) Existing Lines of Credit, Revolvers,
and Overdraft Facilities
Schedule 9.02 Existing Liens
Schedule 10.11 Existing Shareholder Group
EXHIBITS
--------
Exhibit A - Form of Term Note
Exhibit B - Form of Domestic Syndicated Note
Exhibit C-1 - Form of Multicurrency Syndicated Note
(Interface Scherpenzeel B.V.)
Exhibit C-2 - Form of Multicurrency Syndicated Note
(Interface Europe Limited)
Exhibit D-1 - Form of Interface Guaranty Agreement
Exhibit D-2 - Form of Subsidiary Guaranty Agreement
Exhibit E-1 - Form of Interface Pledge Agreement
Exhibit E-2 - Form of Guilford Pledge Agreement
Exhibit E-3 - Form of Interface Europe Inc. Pledge
Agreement (Interface Scherpenzeel
B.V.)
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<PAGE>
Exhibit E-4 - Form of Interface Europe Inc. Pledge
Agreement (Interface Europe Limited)
Exhibit E-5 - Form of Interface Asia-Pacific
Pledge Agreement
Exhibit E-6 - Form of Interface Asia-Pacific
Pledge Agreement (Interface
Heuga Australia Pty Limited)
Exhibit F - Form of Closing Certificate
Exhibit G-1 - Form of Opinion of Kilpatrick & Cody
Exhibit G-2 - Form of Opinion of English Counsel to
Interface
Exhibit G-3 - Form of Opinion of Dutch Counsel to
Interface
Exhibit H - Form of Assignment and Acceptance
Exhibit I - Form of Contribution Agreement
Exhibit J - Form of Escrow Letter and Security
Agreement
Exhibit K - Form of
Exhibit L - Form of
Exhibit M - Form of Multicurrency Swing Line Note
Exhibit N - Form of Multicurrency Bid Rate Note
Exhibit O - Form of Domestic Bid Rate Quote Request
Exhibit P - Form of Invitation
Exhibit Q - Form of
Exhibit R - Form of
Exhibit S - Form of
Exhibit T - Form of
Exhibit U - Form of
Exhibit V - Form of
Exhibit W - Form of
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<PAGE>
AMENDED AND RESTATED
CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT made
and entered into as of June 30, 1995, by and among INTERFACE, INC., a
Georgia corporation ("Interface"), INTERFACE SCHERPENZEEL 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 ("Scherpenzeel 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 collectively herein as the "Bor-
rowers"), TRUST COMPANY BANK, a banking corporation organized under
the laws of the State of Georgia ("TCB"), 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 TCB, FNBC, or such other banks and lending institutions
which become "Lenders" as provided herein (TCB, FNBC, and such other
banks, lending institutions, and assignees referred to collectively
herein as the "Lenders"), TRUST COMPANY BANK, in its capacity as agent
for those Lenders having Revolving Loan Commitments or Term Loan
Commitments, or both, or having outstanding Revolving 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 11
hereof (the "Domestic Agent"), THE FIRST NATIONAL BANK OF CHICAGO, in
its capacity as agent for those Lenders having outstanding
Multicurrency Loan Commitments or having outstanding Multicurrency
Loans as provided herein, and each successor agent for such Lenders as
may be appointed from time to time pursuant to Article 11 hereof (the
"Multicurrency Agent"; the Domestic Agent and the Multicurrency Agent
referred to collectively herein as the "Co-Agents"), and TRUST COMPANY
BANK, 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 11 hereof (the "Collateral Agent");
W I T N E S S E T H:
-------------------
WHEREAS, Interface, Scherpenzeel B.V., Europe
Limited, the Lenders listed therein, Trust Company Bank and The First
National Bank of Chicago, as Co-Agents, and Trust Company Bank, as
Collateral Agent, are parties to a certain Credit Agreement dated as
of January 9, 1995 (the "Existing Credit Agreement");
WHEREAS, the Existing Credit Agreement provided
for (i) term loans to Interface in the aggregate principal amount of
$50,000,000, (ii) a domestic revolving credit facility for Interface
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<PAGE>
in the aggregate principal amount of $140,000,000, (iii) a letter of
credit facility for Interface and certain of its Subsidiaries in the
total aggregate amount of $40,000,000 as a sub-facility of the
$140,000,000 domestic revolving credit facility, and (iv) a
multicurrency revolving credit facility for Scherpenzeel B.V. and
Europe Limited in the aggregate principal amount of $60,000,000
(collectively, the "Existing Credit Facilities");
WHEREAS, Interface, Scherpenzeel B.V., and Europe
Limited have requested that the Existing Credit Agreement be modified
so as to (i) provide "swing line" credit facilities, each in the
amount of $5,000,000, as sub-facilities of the $140,000,000 domestic
revolving credit facility and the $60,000,000 multicurrency revolving
credit facility, respectively, (ii) provide for "competitive bid"
procedures pursuant to which Lenders desiring to participate therein
would offer to make extensions of credit under the $140,000,000
domestic revolving credit facility and $60,000,000 multicurrency
revolving credit facility on the basis of rates established through a
competitive bid process, and (iii) amend the Existing Credit Agreement
in certain other respects;
WHEREAS, the Lenders, the Co-Agents, and the
Collateral Agent have agreed to modify the Existing Credit Agreement
as aforesaid, subject to the terms, conditions and requirements set
forth in this Amended and Restated Credit Agreement;
NOW, THEREFORE, in consideration of the premises
and the mutual covenants herein contained, Interface, Scherpenzeel
B.V., Europe Limited, the Lenders, the Co-Agents and the Collateral
Agent agree as follows:
ARTICLE 1.
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).
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<PAGE>
"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 Scherpenzeel B.V. or Europe Limited pursuant to
Section 4.06(c)(5).
"ACCOUNTS RECEIVABLE FACILITIES" shall mean the
receivables financing facilities evidenced by the Receivables Transfer
Agreements, the Receivables Sale Agreements and the Receivables Backup
Purchase Agreements pursuant to which certain of the Consolidated
Companies shall sell accounts receivable to Interface, Interface SPC,
SPARCC and, under certain circumstances, to the Lenders.
"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
(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 ob-
tained 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 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
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.
"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 Office" for purposes of this
Agreement.
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<PAGE>
"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 defi-
nition, "control" (including with correlative meanings, the terms
"controlling", "controlled by", and "under common control with") as
applied to any Person, means the possession, 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 Amended and Restated
Credit Agreement, as the same may be further amended, restated, or
supplemented from time to time.
"APPLICABLE MARGIN" shall mean:
(i) with respect to all outstanding Domestic
Syndicated Loans and Multicurrency Syndicated Loans during any of
Interface's fiscal quarters from and after the Initial Closing Date,
the percentage determined for such fiscal quarter from the chart set
forth below based on Interface's Interest Coverage Ratio and Leverage
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<PAGE>
Ratio determined as of the last day of the second fiscal quarter
immediately preceding the then current fiscal quarter:
Interest Coverage Ratio
-----------------------
Less Than Greater Than Greater Than
or Equal 3.0:1.00 and Less or Equal
Leverage Ratio to 3.0:1.0 Than 5.0:1.0 to 5.0:1.0
-------------0 ---------- ----------------- ------------
Greater than or
equal to 50% 1.000% 0.875% 0.750%
Greater than 35%
and less than
50% 0.875% 0.750% 0.500%
Less than or
equal to 35% 0.750% 0.500% 0.375%
and (ii) with respect to all outstanding Term Loans during any of
Interface's fiscal quarters from and after the Initial Closing Date,
the percentage determined for such fiscal quarter from the chart set
forth below based on Interface's Interest Coverage Ratio and Leverage
Ratio determined as of the last day of the second fiscal quarter
immediately preceding the then current fiscal quarter:
Interest Coverage Ratio
Less Than Greater Than Greater Than
or Equal 3.0:1.00 and Less or Equal
Leverage Ratio to 3.0:1.0 Than 5.0:1.0 to 5.0:1.0
-------------- ---------- ----------------- -------------
Greater than or
equal to 50% 1.250% 1.125% 1.000%
Greater than 35%
and less than
50% 1.125% 1.000% 0.750%
Less than or
equal to 35% 1.000% 0.750% 0.625%
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<PAGE>
provided, however, if Interface fails to deliver its financial
statements for such second preceding fiscal quarter pursuant to
Section 8.07 prior to the first day of the then-current fiscal
quarter, the Applicable Margin with respect to Loans outstanding
during such current fiscal quarter shall be (i) 1.000% with respect to
Domestic Syndicated Loans and Multicurrency Syndicated Loans, and (ii)
1.25% with respect to Term Loans.
"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 Com-
pany, 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 receivable of a Consolidated Company pursuant
to the Accounts Receivable Facility.
"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.
"BANKRUPTCY CODE" shall mean The Bankruptcy Code
of 1978, as amended and in effect from time to time (11 U.S.C. Section 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):
-6-<PAGE>
(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 inter-
est at, above or below the Domestic Agent's prime lend-
ing rate.
"BASE RATE ADVANCE" shall mean an Advance made or
outstanding 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 Mills, Inc., a Delaware
corporation.
"BENTLEY ACQUISITION" shall mean the acquisition by In-
terface of all the capital stock of Bentley through the consumma-
tion of the transactions described in the Bentley Purchase Agree-
ment, other purchases of the capital stock of Bentley and, if
necessary, the merger of a Consolidated Company with and into
Bentley.
"BENTLEY ACQUISITION COSTS" shall mean the total
consideration (including, without limitation, the liquidation
value of the preferred stock described in Section 6.04(z) and all
payments made to retire Indebtedness of Bentley) paid by
Interface and each other Consolidated Company to effect the
Bentley Acquisition.
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<PAGE>
"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
Royce Renfroe, 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 (representing 85.8%) of the issued and
outstanding shares of Bentley's Class B Common Stock, together
with all additional shares of such capital stock 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, Scherpenzeel 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 Sec-
tions 5.09 and 5.10) or the continuation or conversion of an ex-
isting 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).
"CAPITAL EXPENDITURES" shall mean, for any period, the
sum of (i) expenditures (whether paid in cash or accrued as a li-
ability, including the portion of capital leases originally in-
curred during such period that is capitalized on the consolidated
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<PAGE>
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 ap-
proximately 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
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 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 re-
deemed, 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
-9-
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<PAGE>
of the capital stock of Interface or voting rights with respect
thereto.
"CLASS B SHAREHOLDERS' AGREEMENT" shall mean that cer-
tain Voting Agreement for Interface, Inc. Class B Common Stock
Shareholders dated as of April 13, 1993, by and among Ray C.
Anderson and approximately 38 other holders of Class B common
stock of Interface, pursuant to which Ray C. Anderson is entitled
to direct the voting of the shares of Class B common stock
subject thereto.
"COLLATERAL AGENT" shall mean TCB 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 TCB acting in such capacity,
and any successor collateral agent appointed from time to time
pursuant to Article 11.
"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,
Interface 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 pe-
riod of Consolidated Net Income (Loss) plus, to the extent sub-
tracted in determining such Consolidated Net Income (Loss),
provisions for taxes based on income, Consolidated Interest
Expense, and amortization of good will 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 Con-
solidated 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 Com-
panies 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 agree-
ment, instrument or undertaking under which such Person is obli-
gated or by which it or any of the property owned by it is bound.
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"CONTRIBUTION AGREEMENT" shall mean the 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.
"CONVERSION AMOUNT" shall mean, at any time, the ag-
gregate principal amount of outstanding Subordinated Debentures
of Interface which has been previously converted into common
stock of Interface subsequent to September 1, 1988 and which,
under GAAP, has been added to Shareholders' Equity of Interface.
"CONVERTIBLE PREFERRED STOCK" shall mean Interface's
Series A Cumulative Convertible Preferred Stock having an ag-
gregate 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 $14.7875 of "conversion value" of such Preferred Stock (as
defined in the Articles of Amendment of Interface executed with
respect to such Preferred Stock and subject to adjustments as
provided therein), and being subject to redemption at the option
of the holders thereof not earlier than June 1, 2003, on the
terms and conditions set forth in such Articles of Amendment.
"CREDIT DOCUMENTS" shall mean, collectively,
this Agreement, the Notes, the Letter of Credit Agreement, the
Guaranty Agreements, the Pledge Agreements, the L/C Cash
Collateral Assignment, the IRB Collateral Documents, and all
other Security Documents.
"CREDIT PARTIES" shall mean, collectively, each
of the Borrowers, the Guarantors, the L/C Account Parties, and every
other Person who from time to time executes a Security Document
with respect to all or any portion of the Obligations.
"CURRENCY" shall mean, with respect to the
Multicurrency Loan Commitments, Dollars, British pounds sterling,
Dutch guilders, French francs, German marks and Japanese yen, as
selected by the applicable Borrower.
"CURRENCY CONTRACTS" shall mean any forward contracts,
futures contracts, foreign exchange contracts, currency swap
agreements, and other similar agreements and arrangements entered
into by any Consolidated Company designed to protect any Consoli-
dated Company against fluctuations in foreign exchange rates.
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"DEFAULT" shall mean any condition or event which, with
notice or lapse of time or both, would constitute an Event of De-
fault.
"DOLLAR" and "U.S. DOLLAR" and the sign "$" shall mean
lawful money of the United States of America.
"DOLLAR EQUIVALENT" shall mean, with respect to any
monetary 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 TCB, acting in the manner
and to the extent described in Article 11, and any successor do-
mestic agent appointed pursuant to Article 11 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).
"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.
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"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.
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"DOMESTIC SWING LINE LENDER" shall mean TCB 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 hereof, 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.
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"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).
"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, lo-
cal and foreign statutes and codes or regulations, rules or ordi-
nances 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, generation,
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
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(i) the Clean Air Act (42 U.S.C. Section 7401 et seq.), (ii) the Clean
Water Act (33 U.S.C. Section 1251 et seq.), (iii) the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.),
(iv) the Toxic Substances Control Act (15 U.S.C. Section 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. Section 9601 et seq.), and (vi) all ap-
plicable 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 na-
tional 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 Secu-
rity Act of 1974, as amended and in effect from time to time.
"ERISA AFFILIATE" shall mean, with respect to any Per-
son, 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).
"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 Adjusted LIBO Rate as provided in
Section 5.03(a)(iii).
"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 10.
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"EXCESS CASH FLOW" shall mean, for any fiscal year of
Interface (A) the sum of the amounts for such fiscal year of
Consolidated Net Income (Loss), plus (to the extent subtracted in
determining such Consolidated Net Income (Loss)) depreciation ex-
pense, 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 Con-
solidated Net Income (Loss)), as determined in accordance with
GAAP, all as determined on a consolidated basis for the Consoli-
dated 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) 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 Ray C. Anderson shall be living and is performing the duties
of chairman and chief executive officer of Interface, Ray C.
Anderson and each other party to the Class B Shareholders' Agree-
ment, David Milton, Daniel T. Hendrix, Charles R. Eitel, Royce R.
Renfroe, Brian L. DeMoura, and David W. Porter, 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.
"FASB-52" shall mean Financial Accounting Standards
Board Statement No. 52, as in effect on the date of this Agreement,
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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
facilities 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.
"FACILITY FEES" has the meaning ascribed to it in
Section 5.05(a).
"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 or
hereafter may be amended, restated or supplemented from time to
time.
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"FIXED CD RATE" shall mean, with respect to each Inter-
est 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.
"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 ap-
plicable local law, is required to be funded through a trust or
other funding vehicle.
"FOREIGN SUBSIDIARY" shall mean each Consolidated Com-
pany 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
borrowed, 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 principal amount of all commercial paper issued in
respect of, and allocable to, accounts receivable sold by
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Interface SPC pursuant to the Accounts Receivable Facility (such
allocable amount to be determined based on the net investment
amount of SPARCC in such accounts receivable), (iii) the
aggregate outstanding balance of those accounts receivable sold
by Interface SPC pursuant to the Receivables Backup Purchase
Agreement plus (iv) any other amounts due and owing to the
Lenders under the Receivables Backup Purchase Agreement.
"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 prin-
ciples set forth in the opinions and pronouncements of the Ac-
counting 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 circum-
stances as of the date of determination.
"GUARANTORS" shall mean, collectively, Interface,
Guilford of Maine, Inc., Guilford (Delaware) Inc., Interface
Flooring Systems, Inc., Rockland React-Rite Inc., Interface Re-
search Corporation, Interface Europe, Inc., Pandel, Inc., Inter-
face Asia-Pacific, Inc., Bentley, Prince Street, and all other
Material Subsidiaries (excluding Interface SPC) that are not For-
eign 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, 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
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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
Guaranty Agreements executed by each of the Guarantors in favor
of the Lenders and the Co-Agents, substantially in the form of
Exhibits D-1 and D-2, 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-
merly Interface Heuga B.V.) and all Subsidiaries of Interface Eu-
rope 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; and (v) obligations or other liabilities
under Currency Contracts, Interest Rate Contracts, or similar
agreements or combinations thereof.
"INDEMNITY AGREEMENT" shall mean the Indemnification
Agreement dated as of January 9, 1995, as supplemented by the
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Supplemental Indemnity Agreement dated as of June 30, 1995, in
each case executed by Interface in favor of the Lenders and the
Co-Agents, as the same may be amended, restated, or supplemented
from time to time.
"INITIAL CLOSING DATE" shall mean January 9, 1995.
"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 Com-
pany 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.
"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, in-
terest 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
corporation, its successors and permitted assigns.
"INTERFACE SPC" shall mean the Consolidated Company or-
ganized as a special purpose corporation to acquire accounts re-
ceivable from Interface and/or other Consolidated Companies and
to sell such accounts receivable to SPARCC pursuant to the terms
of the Receivables Sale Agreement, 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 any Guaranty or
Security Document of Interface delivered pursuant to this
Agreement.
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"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, 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 Scherpenzeel B.V. or
Europe Limited 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 Agreement (and designated thereunder as the L/C Cash
Collateral Account) in favor of the Collateral Agent.
"L/C CASH COLLATERAL ASSIGNMENT" shall mean the L/C
Cash Collateral Assignment Agreement dated as of January 9, 1995,
among those Consolidated Companies that are parties to the Letter
of Credit Agreement and the Collateral Agent, as the same may be
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 Participat-
ing Lender, the sum, for all such Letters of Credit, of the prod-
uct of (i) the L/C Outstandings for each Letter of Credit, multi-
plied by (ii) such Lender's applicable L/C Pro Rata Share for
such Letter of Credit.
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"L/C ISSUER" shall mean Trust Company Bank, 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 per-
centage 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.
"LENDER" or "LENDERS" shall mean TCB, 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 is-
sued 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 Letter of
Credit Agreement dated as of January 9, 1995, among Interface,
Guilford of Maine, Inc., Interface Flooring Systems, Inc.,
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Bentley, Prince Street, Pandel, Inc., Interface Research Corpora-
tion, and Rockland React-Rite, Inc., Trust Company Bank, as L/C
Issuer, the Domestic Syndicated Lenders, the Domestic Agent, and
the Collateral Agent, as the same may be 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 Con-
solidated 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 the Reuters Screen LIBO Page 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 the Reuters Screen LIBO Page,
the rate shall be the arithmetic mean of such rates. If the
foregoing rate is unavailable from the Reuters Screen for
any reason, then such rate shall be determined by the
Domestic Agent from Telerate Page 3750 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;
in any such case rounded, if necessary, to the next higher 1/16
of 1.0%, if the rate is not such a multiple.
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"LIEN" shall mean any mortgage, pledge, security inter-
est, 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 part-
nership, 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 Sec-
tion 1.01, but excluding Guilford of Maine (Canada), Inc., Inter-
face 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 hereinafter 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 fixed 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
fixed assets).
"MATERIALLY ADVERSE EFFECT" shall mean any materially
adverse change in (i) the business, results of operations, finan-
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cial 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 11, and any succes-
sor multicurrency agent appointed from time to time pursuant to
Article 11 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 Scherpenzeel B.V. or Europe
Limited to the Multicurrency Agent accepting one or more
Multicurrency Bid Rate Quotes as provided in Section 4.06(c)(5).
"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 Scherpenzeel B.V. and Europe Limited 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 Scherpenzeel B.V. and Europe
Limited 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.
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"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 Scherpenzeel B.V. or Europe
Limited, as the case may be, 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 Scherpenzeel B.V. or
Europe Limited 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,
Scherpenzeel 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 Scherpenzeel B.V.
or Europe Limited, as the case may be, 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 Scherpenzeel B.V. or Europe
Limited to the Multicurrency Agent requesting a Multicurrency
Swing Line Advance as provided in Section 4.05(c).
"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.
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"MULTICURRENCY SWING LINE LOANS" shall mean,
collectively, the loans made to Scherpenzeel B.V. and Europe
Limited 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 Exhibit M 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 Scherpenzeel B.V. or Europe
Limited 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 Scherpenzeel B.V. or Europe
Limited 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 Scherpenzeel B.V. and Europe Limited as described in
Section 4.02(a).
"MULTICURRENCY SYNDICATED LENDERS" shall mean,
collectively, the Lenders extending the Multicurrency Syndicated
Loan Commitments to Scherpenzeel B.V. and Europe Limited 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 Scherpenzeel B.V. and Europe
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Limited 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 and
C-2 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
Scherpenzeel B.V. or Europe Limited, or to Interface on behalf of
Scherpenzeel or Europe Limited, as the case may be, as being
applicable to a Multicurrency Swing Line Loan requested by or on
behalf of Scherpenzeel B.V. or Europe Limited 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 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 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 receiv-
able 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,
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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.
"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 Scherpenzeel B.V. or
Europe Limited 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, in-
debtedness, liabilities, and obligations of the Credit Parties,
direct or indirect, absolute or contingent, liquidated or
unliquidated, now existing or hereafter arising, together with
all renewals, extensions, modifications or refinancings thereof.
"PBGC" shall mean the Pension Benefit Guaranty Corpora-
tion, or any successor thereto.
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"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 outstanding 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 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 per-
mitted 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 de-
fined in Section 3(3) of ERISA), including, but not limited to,
any defined benefit pension plan, profit sharing plan, money pur-
chase pension plan, savings or thrift plan, stock bonus plan, em-
ployee stock ownership plan, Multiemployer Plan, or any plan,
fund, program, arrangement or practice providing for medical (in-
cluding post-retirement medical), hospitalization, accident,
sickness, disability, or life insurance benefits, but shall
exclude any Foreign Plan.
"PLEDGE AGREEMENTS" shall mean, collectively, those
certain Pledge and Security Agreements, Agreement of Pledge, and
Deed of Pledge, executed in favor of the Collateral Agent,
substantially in the form of Exhibits E-1 through E-6, providing
for the grant of first-priority Liens on the Pledged Stock, as
the same may be amended, restated or supplemented from time to
time.
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"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 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, 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 Japan Ltd., 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; provided, however, that upon (A) the liquidation,
dissolution, or similar proceeding with respect to Interface
Heuga Japan Ltd. pursuant to which one of the Consolidated
Companies listed in clause (i) above succeeds to the assets and
business of Interface Heuga Japan Ltd. and (B) the Collateral
Agent's receipt of evidence reasonably satisfactory to it that
the events in the foregoing clause (A) have occurred, the term
"Pledged Stock" shall no longer include any capital stock,
warrants, stock options, or other purchase or conversion rights
with respect to the capital stock of Interface Heuga Japan Ltd.,
and the Collateral Agent shall execute such documents as it may
deem appropriate for the release of any pledge or security
interest therein previously granted to the Collateral Agent.
"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.
"PRINCE STREET ACQUISITION AGREEMENT" shall mean the
Acquisition Agreement dated as of December 3, 1993, among Inter-
face, Robert S. Weiner, Randall J. Hatch, Nancy O'Donnell, John
O'Donnell, Jacqueline A. Colando, Traccton Corp., Prince Street
Holding Company, Steven C. Andrade, and Robert D. Williams, as
amended.
"PRINCE STREET ACQUISITION COSTS" shall mean the total
consideration paid by Interface and each other Consolidated Com-
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pany to effect the Prince Street Acquisition (including cash pay-
ments 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).
"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, the Lenders, as purchasers, TCB and FNBC, as
co-agents, and FNBC, as documentation and collateral agent,
providing for the purchase by the Lenders of accounts receivable
from Interface SPC.
"RECEIVABLES SALE AGREEMENTS" shall mean the agreements
among Interface SPC, as seller, Interface, as collection agent,
SPARCC, as purchaser, and Canadian Imperial Bank of Commerce, as
servicing agent, providing for the sale by Interface SPC, and the
purchase by SPARCC, of accounts receivable originated by certain
of the Consolidated Companies.
"RECEIVABLES TRANSFER AGREEMENTS" shall mean, col-
lectively, (i) the agreements between Interface and certain other
Consolidated Companies providing for the sale by such
Consolidated Companies, and the purchase by Interface, of
accounts receivable originated by such Consolidated Companies,
and (ii) the agreement(s) between Interface, certain other
Consolidated Companies, and Interface SPC providing for the sale
by such Consolidated Companies, and the purchase by Interface
SPC, of accounts receivable originated by such Consolidated
Companies.
"REFINANCED INDEBTEDNESS" shall mean the Indebtedness
of the Consolidated Companies outstanding pursuant to the 1993
Credit Agreement.
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"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.
"REQUIRED LENDERS" shall mean at any time Lenders hold-
ing 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 4,
(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 ar-
ticles or certificate of incorporation and bylaws or other orga-
nizational 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) June 30, 1999, 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 provi-
sions of Article 10.
"SPARCC" shall mean Special Purpose Accounts Receivable
Cooperative Corporation, its successors and permitted assigns.
"SCHERPENZEEL B.V." shall mean Interface Scherpenzeel
B.V. (formerly Heuga Nederland B.V.), a "besloten vennootschap
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met beperkte aansprakelijkheid" (private company with limited li-
ability) incorporated and existing under the laws of The Nether-
lands with its registered seat in Scherpenzeel, Gld., The Nether-
lands, its successors and permitted assigns.
"SECOND CLOSING DATE" shall mean the date on or before
June 30, 1995 on which the conditions set forth in Section 6.03
are satisfied or waived in accordance with Section 12.02.
"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.
"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.
"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 an-
num as determined by the Multicurrency Agent (rounded, if neces-
sary, 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
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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 ap-
plicable 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 DEBENTURES" shall mean Interface's 8%
Convertible Subordinated Debentures due 2013 issued pursuant to
that certain Indenture dated as of September 15, 1988 by and
between Interface and The Citizens and Southern National Bank, as
Trustee (such bank having now been succeeded by NationsBank of
Georgia, N.A., as Trustee thereunder).
"SUBORDINATED DEBT" shall mean (i) Indebtedness out-
standing pursuant to the Subordinated Debentures, and (ii) other
Indebtedness of Interface subordinated to all obligations of In-
terface 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, cov-
enants, defaults, remedies, and subordination provisions, as evi-
denced by the written approval of the Co-Agents and Required
Lenders.
"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
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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 Jones 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 De-
posit 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 31, 2001, and (ii) the date on which all amounts
outstanding under this Agreement have been declared or have auto-
matically become due and payable pursuant to the provisions of
Article 10.
"TERM LOANS" shall mean, collectively, the term loans
in the aggregate principal amount of $50,000,000 made to
Interface by the Term Lenders on the Initial Closing Date
pursuant to Section 2.01(a).
"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 Swing Line Commitment, as
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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. Un-
less 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 9, 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.
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ARTICLE 2.
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 the
Initial Closing Date 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). 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 Ad-
vances or Eurodollar Advances shall be 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
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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 the Term Loans in two equal
annual installments, each in the aggregate principal amount of
$25,000,000, on December 29, 2000, and December 31, 2001. All
Term Loans, if not sooner paid, shall be due and payable in full
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 tak-
ing where the proceeds thereof are utilized so as to be excluded
from the definition of Net Proceeds, and (ii) Asset Sales occur-
ring as part of any sale and leaseback transactions permitted
pursuant to Section 9.06)). Whenever such Asset Values shall
have equaled or exceeded such amount, 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
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Sale by any Consolidated Company, the Term Loans outstanding
under Section 2.01 shall be prepaid by an amount equal to 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 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. 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).
(b) On the date occurring ninety (90) days after the
last day of each fiscal year of Interface, the Term Loans out-
standing under Section 2.01 shall be prepaid 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 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 Sec-
tion 2.03 if the amount under paragraph (a) or (b) is less than
$100,000 in any instance, and (ii) mandatory prepayment amounts
otherwise required under said paragraphs (a) and (b) 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 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
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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 3.
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 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
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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.
(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
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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 6.04 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
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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 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
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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 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.
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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 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
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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
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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
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
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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 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
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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
6 and 10, 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 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
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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
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(ii) of any Domestic Bid 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
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respect of which offers are permitted to be accepted
or 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; 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.
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(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.
ARTICLE 4.
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.
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
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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
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telephonic notice promptly confirmed in writing) of such
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
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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
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
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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, 1995, the certificate or
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,
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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
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
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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
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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
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).
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(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
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,
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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
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
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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
this Section 4.06 (each an "Invitation for
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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 6 and 10, 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
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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.
(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
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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 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
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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 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
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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.
ARTICLE 5.
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.
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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
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:
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(i) For a Base Rate Advance--The Base Rate in ef-
fect 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 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 ef-
fect from time to time;
(ii) For a Eurocurrency Advance--The relevant Ad-
justed LIBO Rate (or Special Adjusted LIBO Rate in the
case of Eurocurrency Advances not being repaid, contin-
ued 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
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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 Ad-
vances (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
(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
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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 (con-
firmed 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 accepted
by the Domestic Swing Line Lender or Multicurrency Swing Line
Lender, as the case may be; provided that:
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(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 Pe-
riod 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 Ad-
vance which begins on a day for which there is no nu-
merically 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 re-
spect 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 ex-
cess 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.
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Section 5.05. Fees.
(a) On the Initial Closing Date, Interface paid to the
Domestic Agent, for the benefit of each Term Lender, a facility
fee (collectively, the "Facility Fees") in an amount equal to
one-quarter of one percent (.25%) of the amount of such Term
Lender's Term Loan Commitment.
(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 for the period
commencing on the Initial Closing Date to and including the
Revolver/Multicurrency Maturity Date computed at a rate equal to
three-eighths of one percent (0.375%) per annum, 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 for the period commencing on the
Initial Closing Date to and including the Revolver/Multicurrency
Maturity Date computed at a rate equal to three-eighths of one
percent (0.375%) per annum, 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
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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, commencing on
the first calendar day of Interface's third fiscal quarter of
1995, and continuing on the first calendar day of each fiscal
quarter thereafter, in the 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 Borrow-
ings 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.
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(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.
(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 clause (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
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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-
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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 pay-
ments 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 com-
plete 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 de-
livery 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
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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;
(B) if at any time such Lender changes its Lending Of-
fice 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 ad-
ditional 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
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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 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 In-
terface 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 hereunder, 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).
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(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 pur-
suant 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 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
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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 Inter-
face, each Lender shall execute and deliver such certificates,
forms or other documents, which can be reasonably furnished con-
sistent with the facts and which are reasonably necessary to as-
sist 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 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
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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 agree-
ment 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.
(c) 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 Busi-
ness Day, the due date thereof shall be extended to the next suc-
ceeding Business Day and, with respect to payments of principal,
interest thereon shall be payable at the applicable rate during
such extension.
(d) 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.
(e) 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.
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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, 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, ad-
equate 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
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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 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
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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 this Agree-
ment 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 no-
tice (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
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(iii) such Lender shall make a Loan as part of the re-
quested 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 Bor-
rowers, 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.
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
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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 5 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;
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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 5.
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 limita-
tion, 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.
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Section 5.17. Capital Adequacy. Without limiting any
other provision of this Agreement or the Letter of Credit Agree-
ment, in the event that any Lender shall have determined that any
law, treaty, governmental (or quasi-governmental) rule, regula-
tion, 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 the Initial Closing Date (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
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 Obliga-
tions.
(a) Each Lender or Agent shall make written demand on
Interface for indemnification or compensation pursuant to Sec-
tion 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
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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 Sec-
tions 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 Sec-
tions 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 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 6.
CONDITIONS TO BORROWINGS
------------------------
The obligation of each Lender to make Advances to the
Borrowers hereunder is subject to the satisfaction of the follow-
ing conditions:
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Section 6.01. Conditions Precedent to Initial Loans.
At the time of the making of the Loans hereunder on the Initial
Closing Date, all obligations of the Borrowers hereunder incurred
prior to such Loans (including, without limitation, the
Borrowers' obligations to reimburse the reasonable fees and ex-
penses of counsel to the Co-Agents and any fees and expenses pay-
able 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 the Existing
Credit Agreement (as defined in the recitals to this
Agreement);
(b) the duly completed Notes (as defined in the
Existing Credit Agreement);
(c) the Guaranty Agreements, Contribution Agreement,
and the 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 ben-
efit of the Lenders;
(e) certificate of the Borrowers in substantially the
form of Exhibit F attached hereto and appropriately com-
pleted;
(f) certificates of the Secretary or Assistant Secre-
tary 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 Subsid-
iary, 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 Sec-
retary 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 organiza-
tional document of each Foreign Subsidiary), together with
certificates of good standing or existence, as may be avail-
able 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 Cobb County and Troup County, Georgia, show-
ing 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;
(j) copies of all documents and instruments, including
all consents, authorizations and filings, required or advis-
able 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 executed 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 Docu-
ments;
(l) acknowledgments from each of G. Kimbrough Taylor,
Jr. and Kilpatrick & Cody 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 Col-
lateral Assignment, the IRB Collateral Documents, together
with all certificates, opinions, documents and instruments
required to be furnished to the L/C Issuer pursuant to Sec-
tion 3.1 of the Letter of Credit Agreement;
(n) certified copies of indentures, credit agreements,
instruments, and other documents evidencing or securing In-
debtedness of any Consolidated Company described on
Schedule 9.01(b) or Schedule 9.01(j), in any single case in
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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 infringe-
ment claims) pending or threatened against the Consolidated
Companies;
(s) a summary, set forth in format and detail accept-
able to the Co-Agents, of the types and amounts of insurance
(property and liability) maintained by the Consolidated Com-
panies;
(t) the favorable opinions of (i) Kilpatrick & Cody,
United States counsel to the Credit Parties, substantially
in the form of Exhibit G-1, (ii) Paisner & Co., United
Kingdom counsel to Europe Limited substantially in the form
of Exhibit G-2, and (iii) Nauta 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 Clifford Chance, special
counsel to the Co-Agents and the Lenders, as to certain mat-
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ters relating to the Credit Documents under the laws of the
United Kingdom and the Netherlands;
(v) the favorable opinion of Allen, Allen & Hemsley,
special Australian counsel to the Co-Agents and the Lenders,
as to certain matters relating to the Credit Documents aris-
ing under Australian law; and
(w) the favorable opinion of McCarthy Tetrault,
special Canadian counsel to the Co-Agents and the Lenders,
as to certain matters relating to the Credit Documents
arising under Canadian law.
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 the initial Loans were made
hereunder:
(x) the Loans to be made on the Initial 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 violation of, any law, rule, injunction, or
regulation, or determination of any court of law or other
governmental authority; and
(y) all corporate proceedings and all other legal mat-
ters 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.
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 Precedent to Effectiveness of
Amended and Restated Credit Agreement. At the time of the
effectiveness of this Agreement on the Second Closing Date, all
obligations of the Borrowers hereunder incurred prior to such
date and being due and payable on or before the Second Closing
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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 Domestic Swing Line Note and
Domestic Bid Rate Notes;
(c) the duly completed Multicurrency Swing Line Note
and Multicurrency Bid Rate Notes;
(d) the Master Amendment of Credit Documents
substantially in the form of Exhibit U attached hereto;
(e) the Supplemental Indemnity Agreement substantially
in the form of Exhibit V attached hereto;
(f) the certificate of the Borrowers in substantially
the form of Exhibit W attached hereto;
(g) certificates of the Secretary or Assistant
Secretary of each of the Borrowers (or, in the case of any
Foreign Subsidiary, a comparable company officer) attaching
and certifying copies of the resolutions of the board of
directors (or, in the case of any Foreign Subsidiary, the
comparable governing body of such entity) of the Borrowers,
authorizing as applicable the execution, delivery and
performance of this Agreement and the promissory notes
described in paragraphs (b) and (c) above;
(h) certificates of the Secretary or an Assistant
Secretary of each of the Borrowers (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 this Agreement and the promissory
notes described in paragraphs (b) and (c) above, and (ii)
the bylaws or comparable governing documents of such
entities;
(i) certified copies of the certificate or articles of
incorporation of each Borrower (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
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or registry for each Foreign Subsidiary) of the jurisdiction
of incorporation or organization of such Borrower;
(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 Borrowers, in connection with
the execution, delivery, performance, validity and
enforceability of this Agreement and the promissory notes
described in paragraphs (b) and (c) above and the other
documents to be executed 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) the favorable opinions of (i) Kilpatrick & Cody,
United States counsel to the Borrowers, substantially in the
form of Exhibit X-1, (ii) Paisner & Co., United Kingdom
counsel to Europe Limited substantially in the form of
Exhibit X-2, and (iii) Nauta Dutilh, Netherlands counsel to
Scherpenzeel B.V. substantially in the form of Exhibit X-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; and
(l) the favorable opinions of Clifford Chance, special
counsel to the Co-Agents and the Lenders, as to certain
matters relating to this Agreement and the promissory notes
described in paragraphs (b) and (c) above under the laws of
the United Kingdom and the Netherlands.
In addition to the foregoing, all corporate proceedings and all
other legal matters in connection with the authorization,
legality, validity and enforceability of this Agreement and the
promissory notes described in paragraphs (b) and (c) above shall
be reasonably satisfactory in form and substance to the Required
Lenders.
Section 6.04. 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;
(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-
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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 state-
ments 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 Ad-
verse Effect (whether or not any notice with respect to such
change has been furnished to the Lenders pursuant to Sec-
tion 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 busi-
nesses or assets, where such portion or portions of such
business(es) or assets, as the case may be, constitute a ma-
terial portion of the total businesses or assets of the Con-
solidated 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) the Co-Agents shall have received such other docu-
ments 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
conditions specified in Sections 6.01, 6.03 and this Section 6.04
(and Section 6.02 with respect to Europe Limited) have been
satisfied.
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ARTICLE 7.
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. Corporate Existence; Compliance with Law.
Each of the Consolidated Companies is a corporation duly orga-
nized, validly existing, and in good standing under the laws of
the jurisdiction of its incorporation, and each of the Credit
Parties has the corporate 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 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 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,
for each Subsidiary as of the date of this Agreement is
accurately described on Schedule 7.01.
Section 7.02. Corporate Power; Authorization. Each of
the Credit Parties has the corporate power and authority to make,
deliver and perform the Credit Documents to which it is a party
and has taken all necessary corporate action to authorize the ex-
ecution, delivery and performance of such Credit Documents. No
consent or authorization of, or filing with, any Person (includ-
ing, 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
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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 Docu-
ment will be duly executed and delivered, by the 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(h) 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 "con-
trolled" 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 pro-
ceeds of any of the Loans will be used for any purpose which vio-
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lates, 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(i) at or prior to the respective
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(i) 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 Agree-
ment, 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 al-
leged 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 Con-
solidated Companies in this Agreement and any additional notices
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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.
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(o) 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 Sched-
ule 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 du-
ties, 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
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taxes, fees or other charges imposed on it or any of its proper-
ties 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 pur-
poses of the foregoing portions of this Section, tax returns not
filed or taxes not paid where the aggregate amount of taxes in-
volved 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(p) 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
(excluding Prince Street) as at January 1, 1995 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 1995, and the related unaudited consolidated
statements of income, 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 January 1, 1995, there have been no
changes with respect to such Consolidated Companies which has had
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or would reasonably be expected to have a Materially Adverse
Effect.
Section 7.15. ERISA. Except as disclosed on Sched-
ule 7.15 or in any notice furnished to the Lenders pursuant to
Section 8.07(j) at or prior to the respective times the represen-
tations 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 Con-
solidated 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 main-
tained by the Consolidated Companies have at all times been main-
tained, 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 Com-
pany 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 sub-
ject to no liabilities (including withdrawal liabilities) with
respect to any Plans or Foreign Plans of such Consolidated Compa-
nies 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 re-
spect to any Plan which is subject to Title IV of ERISA, each of
their respective ERISA Affiliates, have made full and timely pay-
ment 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,
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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 li-
abilities 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), would have a
Materially Adverse Effect if such amounts were then due and
payable.
(b) With respect to any Foreign Plan, reasonable re-
serves 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. Ex-
cept as set forth on Schedule 7.16 or in any notice furnished to
the Lenders pursuant to Section 8.07(o) 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 mark, 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.
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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 January 1, 1995, 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.
Section 7.19. Financial Condition. On the Second
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 2, 3
and 4 (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,
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"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 autho-
rized and approved by all necessary corporate and shareholder ac-
tion 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(o) at or prior to the respective times the repre-
sentations 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 stop-
pages due to labor disagreements which have had, or would reason-
ably 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
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 9.04 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.
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Section 7.23. Disclosure. No representation or war-
ranty 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 8.
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. Corporate Existence, Etc. Preserve and
maintain, and cause each of its Material Subsidiaries to preserve
and maintain, its corporate existence, its material rights, fran-
chises, 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 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.
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Section 8.03. Payment of Taxes and Claims, Etc. Pay,
and cause each of its Subsidiaries to pay, (i) all taxes, assess-
ments and governmental charges imposed upon it or upon its prop-
erty, and (ii) all claims (including, without limitation, claims
for labor, materials, supplies or services) which might, if un-
paid, become a Lien upon its property, unless, in each case, 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
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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
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
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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 Seidman 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 avail-
able 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 Consoli-
dated Companies for such fiscal quarter and 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
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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 Section 8.09 and
Sections 9.01 through 9.05;
(d) Auditor's No Default Certificate. Together with
the financial statements required pursuant to subsection (a)
above, a certificate of the accountants who prepared the re-
port referred to therein, to the effect that, based upon
their audit, there exists no Default or Event of Default un-
der this Agreement, or if there exists a Default or Event of
Default hereunder, specifying the nature thereof;
(e) Annual Budget. Within 90 days after the beginning
of each fiscal year, an annual financial plan and forecasted
balance sheets and statements of income, shareholders' eq-
uity, and cash flows for such fiscal year for the Consoli-
dated Companies presented on a consolidated and "line of
business" basis;
(f) 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 cer-
tificate of the chief financial officer or principal
accounting officer of Interface specifying the nature
thereof and the proposed response thereto;
(g) Asset Sales. Together with the financial state-
ments required pursuant to subsection (a) above, a certifi-
cate 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 ex-
cess of $1,000,000 in any single transaction or related se-
ries of transactions, including the Asset Value of such as-
sets and the amounts received by the Consolidated Companies
with respect to such sales, and such other information re-
garding such transactions as any Co-Agent or Lender may rea-
sonably request;
(h) 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
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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;
(i) 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 Consoli-
dated Company which could result in penalties, fines, claims
or other liabilities to any Consolidated Company in amounts
in excess of $1,000,000;
(j) 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 regulations), or (B) any other event which could
subject any Consolidated Company to any tax, penalty or li-
ability 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 alter-
native 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 re-
spect 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-
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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 re-
ports 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 becom-
ing 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 anticipated to any Foreign Plan that may have a
Materially Adverse Effect.
(k) Liens. Promptly upon any Consolidated Company be-
coming 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;
(l) 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;
(m) 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
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with any securities exchange, and of all press releases and
other statements made available generally to the public
containing material developments in the business or
financial condition of Interface and the other Consolidated
Companies;
(n) Accountants' Reports. Promptly upon receipt
thereof, copies of all financial statements of, and all re-
ports submitted by, independent public accountants to Inter-
face in connection with each annual, interim, or special au-
dit of Interface's financial statements, including without
limitation, the comment letter submitted by such accountants
to management in connection with their annual audit;
(o) 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 Con-
solidated 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 dis-
pute, slow down or work stoppage as described in Sec-
tion 7.21;
(p) 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 descrip-
tion of the assets of such entity, the activities in which
it will be engaged, and such other information as the
Co-Agents may request;
(q) 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 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;
(r) 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
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related series of Asset Sales involving Asset Values of
$1,000,000 or more; and
(s) 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.
(b) Interest Coverage. Maintain as of the last day of
each fiscal quarter, calculated with respect to the immediately
preceding four fiscal quarters, a minimum Interest Coverage Ratio
as shown below for each fiscal quarter ending during the periods
indicated:
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Minimum Interest Coverage
Period Ratio
------ -------------------------
Initial Closing Date through March 31,
1996 2.00:1.00
April 1, 1996 and thereafter 2.25:1.00
(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 in-
dicated:
Maximum Funded
Debt Coverage
Period Ratio
------ --------------
Initial Closing Date through
March 31, 1996 4.75:1.00
April 1, 1996 and
thereafter 4.25:1.00
(d) Senior Funded Debt to Total Capitalization. Main-
tain as of the last day of each fiscal quarter a maximum ratio of
Senior Funded Debt to Total Capitalization, expressed as a per-
centage, of no more than 50%.
(e) Leverage Ratio. Maintain as of the last day of
each fiscal quarter a maximum Leverage Ratio as shown below for
each fiscal quarter ending during the periods indicated:
Period Maximum Percentage
------ ------------------
Initial Closing Date through March 31,
1996 60%
April 1, 1996
and thereafter 55%
(f) First Fiscal Quarter Calculations. SCHEDULE 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 April 4, 1995.
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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(q) and as a
result thereof the recipient of such assets becomes a Material
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, 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 ad-
vice 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 satisfactory to
the Co-Agents.
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Section 8.12. Closing of Accounts Receivable Facility.
On or before September 30, 1995, the Receivables Sale Agreements,
Receivables Backup Purchase Agreements, and Receivables Transfer
Agreements shall have been executed and delivered by the respec-
tive parties thereto, and the Accounts Receivable Facilities
shall be in full force and effect providing to Interface and
those Subsidiaries that are parties to the Receivables Transfer
Agreements financing for accounts receivable up to an aggregate
amount outstanding at any time of $100,000,000. Within five (5)
Business Days after the closing of each Accounts Receivable
Facility, Interface shall deliver or cause to be delivered to the
Domestic Agent certified copies of each Receivables Sale
Agreement, Receivables Backup Purchase Agreement, Receivables
Transfer Agreement and other certificates, opinions, documents
and instruments required to be furnished by or on behalf of any
Consolidated Company thereunder as a condition precedent to
consummation of the transactions contemplated therein.
ARTICLE 9.
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;
(b) the Subordinated Debentures and other Indebtedness
outstanding on the date hereof and described on
Schedule 9.01(b) (excluding Refinanced Indebtedness);
(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 li-
abilities 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 li-
ability maintained in conformity with GAAP;
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(e) Indebtedness incurred with respect to (i) the Let-
ters 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 busi-
ness 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 connec-
tion with the purchase, lease or other acquisition of prop-
erty 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 Subordinated De-
bentures) 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 Section 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);
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(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 prac-
tices;
(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 Inter-
face SPC under the Receivables Sale Agreements or
Receivables Backup Purchase Agreements; and
(l) Other Indebtedness not to exceed $5,000,000 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 (excluding Liens securing Refinanced Indebt-
edness);
(b) any Lien on any property securing Indebtedness in-
curred 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
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contested in good faith by 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) (i) Liens in favor of the Collateral Agent
securing the Obligations hereunder, and (ii) Liens 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, 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 Col-
lateral 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 in favor of SPARCC or the Lenders on accounts
receivable or on interests in accounts receivable of any of
the Consolidated Companies as a result of the assignment
thereof to SPARCC or the Lenders 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
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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
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 interests in accounts receivable
pursuant to the Accounts Receivable Facility not to 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, or
(vi) Asset Sales occurring as part of any sale and leaseback
transactions permitted pursuant to Section 9.06; 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 de-
clare or pay any dividend on its capital stock, or make any pay-
ment to purchase, redeem, retire or acquire any of its Subordi-
nated Debentures or capital stock or any option, warrant, or
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other right to acquire such Subordinated Debentures 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
(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 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 or the Subordinated Debentures 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;
(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 Sub-
sidiaries that are Guarantors under this Agreement, made af-
ter October 2, 1994, in an aggregate amount not to exceed
$35,000,000 unless otherwise consented to in writing by the
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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 na-
tionally recognized credit rating agency;
(f) time deposits maturing within one year from the
date of creation thereof with, including certificates of de-
posit issued by, any office located in the United States of
any bank or trust company which is organized under the laws
of the 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 para-
graphs (a) through (g) above) in an aggregate amount not to
exceed an amount equal to 15% of Interface's Consolidated
Net Worth (excluding therefrom the Conversion Amount as of
any date of determination).
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 ag-
gregate, and (ii) with respect to all other properties in all
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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 indi-
rectly, 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 op-
tional 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
subordination provisions of any Subordinated Debt, except with
respect to (i) the Obligations under this Agreement and the
Notes, (ii) redemptions, purchases or other acquisition of the
Subordinated Debentures as permitted by Section 9.04,
(iii) acquisition by Interface of its Subordinated Debentures
pursuant to the conversion thereof to common stock of Interface
where no prior notice of redemption has been given,
(iv) prepayments of Indebtedness outstanding pursuant to
revolving credit, overdraft and line of credit facilities
permitted pursuant to Section 9.01, (v) 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, (vi) 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 (vii) Intercompany Loans made
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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 Com-
pany 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 de-
fined 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 In-
debtedness permitted by Section 9.02(b) or 9.02(g) is incurred by
any Consolidated Company, so long as such prohibition or restric-
tion applies only to the property or asset being financed by such
Indebtedness, and (iii) any requirement of applicable law or any
regulatory authority having jurisdiction over any of the Consoli-
dated Companies.
Section 9.12. Limitation on Payment Restrictions Af-
fecting 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
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
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any other Consolidated Company, except any consensual encumbrance
or restriction existing under the Credit Documents.
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.
ARTICLE 10.
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 manda-
tory 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(f), 8.09, 8.12, 9.01 through
9.06, 9.08, 9.09, and 9.11 through 9.13;
Section 10.03. Other Covenants. Interface or any Bor-
rower shall fail to observe or perform any covenant or agreement
contained in this Agreement, other than those referred to in Sec-
tions 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;
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Section 10.04. Representations. Any representation or
warranty made or deemed to be made by Interface, any other Bor-
rower or any other Credit Party or by any of its officers under
this Agreement or any other Credit Document (including the Sched-
ules attached thereto), or any certificate or other document sub-
mitted 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 af-
ter 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 acceler-
ate, 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 Ma-
terial 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
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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
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.
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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) So
long as the holders of Interface's Class B common stock are en-
titled to elect a majority of Interface's board of directors, the
Existing Shareholder Group shall at any time fail to be the "ben-
eficial owners" (as defined in Rule 13d-3 under the Exchange Act)
of a majority of the issued and outstanding shares of Interface's
Class B common stock; or (ii) 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
(A) any "person" or "group" (within the meaning of Sections 13(d)
and 14(d)(2) of the Exchange Act), other than the Existing
Shareholder Group, shall become the "beneficial owner(s)" (as
defined in said Rule 13d-3) of sufficient shares of the then
outstanding common stock of Interface entitled to vote for
members of Interface's board of directors so as to possess
effective control (as such term is defined in the second sentence
of the definition of "Affiliate" in Section 1.01) of Interface,
or (B) during any period of twenty-four (24) consecutive calendar
months, individuals who at the beginning of such period
constituted Interface's board of directors (together with any new
directors whose election by Interface's board of directors or
whose nomination for election by Interface's shareholders was
approved by a vote of at least two-thirds of the directors then
still in office who either were 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 directors then in office; or (iii) any event or
condition shall occur or exist which, pursuant to the terms of
any Change in Control Provision, requires or permits the
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
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described in the foregoing clauses (i), (ii) or (iii) until
ninety (90) 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 un-
der 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 Con-
solidated 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 termination, any of the
Consolidated Companies would be required to make net payments
thereunder in excess of $2,500,000 in the aggregate;
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; or
Section 10.15. Accounts Receivable Facility. There
shall exist or occur (i) any "Event of Default" as provided under
the terms of the Receivables Backup Purchase Agreement, or (ii)
any "Event of Termination" as provided under the terms of the Re-
ceivables Sale Agreement;
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then, and in any such event, and at any time thereafter if any
Event of Default shall then be continuing, the Co-Agents may, and
upon the written or telex request of the Required Lenders, shall,
by written notice to the Borrowers, take any or all of the
following actions, without prejudice to the rights of the
Co-Agents, any Lender or the holder of any Note to enforce its
claims against the Borrowers or any other Credit Party:
(i) declare all Commitments terminated, whereupon the pro rata
Commitments of each Lender shall terminate immediately and any
commitment fee shall forthwith become due and payable without any
other notice of any kind; and (ii) declare the principal of and
any accrued interest on the Loans, and all other Obligations
owing hereunder, to be, whereupon the same shall become,
forthwith due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by
Interface and each other Borrower; provided, that, if an Event of
Default specified in Section 10.07 shall occur, the result which
would occur upon the giving of written notice by the Co-Agents to
any Credit Party, as specified in clauses (i) and (ii) above,
shall occur automatically without the giving of any such notice.
ARTICLE 11.
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
TCB 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,
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.
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Section 11.02. Appointment of Collateral Agent. (a)
Each Co-Agent and each Lender hereby designates TCB as Collateral
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 ap-
plicable 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 contained 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
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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 agents shall be li-
able 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 expressly 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
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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
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 ex-
tent the Agents are not reimbursed and indemnified by the Credit
Parties, each Lender will reimburse and indemnify (i) each Ap-
propriate 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
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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.
Section 11.09. Holders of Notes. The Agents may deem
and treat the payee of any Note as the owner thereof for all pur-
poses 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 subse-
quent holder, transferee or assignee of such Note or of any Note
or Notes issued in exchange therefor.
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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 until a successor Collateral Agent has been
appointed 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. If no successor 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 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.
(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 11 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 ad-
vised 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 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")
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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 12.
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
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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
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
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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 In-
terface and each other Borrower shall:
(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, enforcement 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 coun-
sel), for any of the Lenders;
(ii) subject, in the case of certain Taxes, to the ap-
plicable 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
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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 respec-
tive 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 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 sub-
section (iii) above, indemnify each Indemnitee for any and
all expenses and costs (including without limitation, reme-
dial, 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,
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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
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.
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(c) Each Lender may assign all or a portion of its in-
terests, 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 amount of the Commitments, in the case of
the Domestic Syndicated Loan Commitments and the Multicurrency
Syndicated Loan Commitments, or Loans, in the case of assignment
of Term Loans, of the assigning Lender subject to each 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, and (iii) 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.
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
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. Notwithstanding the foregoing, the
assigning Lender must retain after the consummation of such
Assignment and Acceptance, a minimum aggregate amount of
Commitments and Term Loans of $10,000,000; provided, however, no
such minimum amount shall be required with respect to any such
assignment made at any time there exists an Event of Default
hereunder. 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 de-
liver 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.
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(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 5 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 and
the Letter of Credit Agreement.
(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
confidentiality of such confidential information consistent with
the provisions of Section 8.05.
(f) Any Lender may at any time assign all or any por-
tion 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.
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(g) If (i) any Taxes referred to in Section 5.07(b)
have been levied or imposed so as to require withholdings or de-
ductions by any Borrower and payment by such Borrower of ad-
ditional 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 Jurisdic-
tion.
(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 GEOR-
GIA.
(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
FULTON COUNTY, GEORGIA, OR THE SUPERIOR COURT OF COBB 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,
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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.
(c) EACH BORROWER HEREBY IRREVOCABLY DESIGNATES EACH
OF G. KIMBROUGH TAYLOR, JR. AND KILPATRICK & CODY, 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 par-
ties hereto on separate counterparts, each of which when so ex-
ecuted 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
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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
Maturity Date.
Section 12.11. Severability. In case any provision in
or obligation under this Agreement, the Letter of Credit Agree-
ment, or the other Credit Documents shall be invalid, illegal or
unenforceable, in whole or in part, in any jurisdiction, the va-
lidity, 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 affected or impaired
thereby.
Section 12.12. Independence of Covenants. All cov-
enants 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 state-
ments 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, stan-
dards 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 finan-
cial 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 de-
sired result that the criteria for evaluating any of the Consoli-
dated Companies' financial condition shall be the same after such
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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
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 pre-
vailing 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
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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 Second
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 Second 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.
Section 12.18. References in Credit Documents. On and
after the Second 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
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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 Second
Closing Date.
Section 12.19. Replacement of Form of Assignment and
Acceptance. On and after the Second Closing Date, the form of
Assignment and Acceptance attached to the Existing Credit
Agreement as Exhibit H shall be superseded and replaced by the
form of Assignment and Acceptance attached to this Agreement as
the new Exhibit H.
Section 12.20. References in Outstanding Notes to
Credit Agreement Terms. In addition to the provisions of Section
12.18, on and after the Second Closing Date:
(i) Each of the fourteen "Revolving Credit Notes"
dated January 9, 1995, made and delivered by Interface to
the "Revolving Lenders" pursuant to the Existing Credit
Agreement shall constitute the Domestic Syndicated Notes
payable to the Domestic Syndicated Lenders outstanding under
this Agreement, and all references therein to the terms
"Revolving Credit Note", "Revolving Loans", and "Revolving
Loan Commitment" shall be deemed to mean and refer to the
Domestic Syndicated Notes, Domestic Syndicated Loans, and
Domestic Syndicated Loan Commitment, respectively, under
this Agreement; and
(ii) Each of the seven "Multicurrency Notes" made by
Scherpenzeel B.V., and each of the seven "Multicurrency
Notes" made by Europe Limited, in each case dated January 9,
1995 and delivered pursuant to the Existing Credit Agreement
shall constitute the Multicurrency Syndicated Notes payable
to the Multicurrency Syndicated Lenders outstanding under
this Agreement, and all references therein to the terms
"Multicurrency Note", "Multicurrency Loans", and
"Multicurrency Loan Commitment" shall be deemed to mean and
refer to the Multicurrency Syndicated Notes, Multicurrency
Syndicated Loans, and Multicurrency Syndicated Loan
Commitment, respectively, under this Agreement.
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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.
------------------
2859 Paces Ferry Road
Suite 2000 By: /s/ Daniel T. Hendrix
Atlanta, GA 30339 _______________________
Attention: Daniel T. Hendrix Daniel T. Hendrix
Vice President
Telex No.:
Answerback:
Telecopy No: 404/956-9764
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Address for Notices: INTERFACE SCHERPENZEEL,
------------------- B.V.
c/o Interface, Inc.
2859 Paces Ferry Road
Suite 2000 By: /s/ Daniel T. Hendrix
Atlanta, GA 30339 ------------------------
Attention: Daniel T. Hendrix Name: Daniel T. Hendrix
Attorney-in-Fact
Telex No.:
Answerback:
Telecopy No: 404/956-9764
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Address for Notices: INTERFACE EUROPE LIMITED
-------------------
c/o Interface, Inc.
2859 Paces Ferry Road
Suite 2000 By: /s/ Daniel T. Hendrix
Atlanta, GA 30339 ------------------------
Attention: Daniel T. Hendrix Name: Daniel T. Hendrix
Attorney-in-Fact
Telex No.:
Answerback:
Telecopy No: 404/956-9764
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Address for Notices: TRUST COMPANY BANK,
------------------- As Domestic Agent and
Collateral Agent
One Park Place, N.E.
Atlanta, Georgia 30303 By: /s/ John K. Shoffner
Attention: John K. Shoffner ----------------------------
Name: John K. Shoffner
Title: Group Vice President
Telex No.: 542210
Answerback: TRUSCO INT ATL
Telecopy No.: 404/588-8833 By: /s/ Lauren J. Sanders
----------------------------
Name: Lauren J. Sanders
Title: AVP
Payment Office:
-------------
One Park Place, N.E.
Atlanta, Georgia 30303
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Address for Notices: THE FIRST NATIONAL BANK
------------------- OF CHICAGO, As Multicurrency
Mail Suite 0374 Agent
One First National Plaza
Chicago, Illinois 60670-0374
Attention: Al R. Chircop
By:/s/ Kevin J. Rooney
----------------------------
Name: Kevin J. Rooney
Title: V.P. Authorized Agent
Telex No.:
Answerback:
Telecopy No.: 312/732-3885
Administrative Office:
--------------------
One First National Plaza
Chicago, Illinois 60670
Attention: ___________________
Payment Offices:
---------------
(See Schedule 4.01)
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Address for Notices: TRUST COMPANY BANK
-------------------
One Park Place, N.E.
Atlanta, Georgia 30303
Attn: John K. Shoffner By: /s/ John K. Shoffner
----------------------------
Name: John K. Shoffner
Title: Group Vice President
Telex No.: 542210
Answerback: TRUSCO INT ATL
By: /s/ Lauren J. Sanders
----------------------------
Name: Lauren J. Sanders
Title: AVP
Domestic Lending Office:
----------------------
One Park Place, N.E.
Atlanta, Georgia 30303
Telex No.: 542210
Answerback: TRUSCO INT ATL
Eurocurrency Lending Office:
--------------------------
One Park Place, N.E.
Atlanta, Georgia 30303
Telex No.: 542210
Answerback: TRUSCO INT ATL
PRO RATA
AMOUNT SHARE
TERM LOAN COMMITMENT: $ 4,500,000.00 9.0000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: $ 11,400,000.00 8.1429%
DOMESTIC SWING LINE
COMMITMENT: $ 5,000,000.00 100.0000%
L/C SUBCOMMITMENT: $ 3,257,142.86 8.1429%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: $ 6,600,000.00 11.0000%
TOTAL COMMITMENT
(EXCLUDING DOMESTIC
SWING LINE): $ 22,500,000.00 9.0000%
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Address for Notices: THE FIRST NATIONAL BANK
------------------- OF CHICAGO
Mail Suite 0374
One First National Plaza
Chicago, Illinois 60670-0374
Attention: Al R. Chircop
By: /s/ Kevin J. Rooney
----------------------------
Name: Kevin J. Rooney
Telex No.: 4330253 Title: V.P. Authorized Agent
Answerback: FNBC UI
Telecopy No.: 312/732-3885
Administrative Office:
--------------------
One First National Plaza
Chicago, Illinois 60670
Attention: Al R. Chircop
Payment Offices:
---------------
(See Schedule 4.01)
PRO RATA
AMOUNT SHARE
------ -------
TERM LOAN COMMITMENT: $ 4,500,000.00 9.0000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: $ 3,000,000.00 2.1429%
L/C SUBCOMMITMENT: $ 857,142.86 2.1429%
MULTICURRENCY LOAN COMMITMENT: $ 15,000,000.00 25.0000%
MULTICURRENCY SWING LINE
COMMITMENT: $ 5,000,000.00 100.0000%
TOTAL COMMITMENT
(EXCLUDING MULTICURRENCY
SWING LINE): $ 22,500,000.00 9.0000%
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Address for Notices: ABN AMRO BANK N.V.
-------------------
Suite 1200, One Ravinia Drive
Atlanta, Georgia 30346
Attn: Patrick Thom By: /s/ Steven L. Hipsman
----------------------------
Name: Steven Hipsman
Telephone: 404/396-0066 Title: Vice President
Telecopy: 404/395-9188
Telex: 682 7258 By: /s/ Patrick Thom
---------------------------
Answerback: ABNBANKATL Name: Patrick Thom
Title: Assistant Vice President
Domestic Lending Office:
------------------------
ABN AMRO Bank N.V., Atlanta Agency
Suite 1200, One Ravinia Drive
Atlanta, GA 30346
Eurocurrency Lending Office:
----------------------------
ABN AMRO Bank N.V., Atlanta Agency
Suite 1200, One Ravinia Drive
Atlanta, GA 30346
PRO RATA
AMOUNT SHARE
------ -------
TERM LOAN COMMITMENT: $ 4,200,000.00 8.4000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: $ 1,800,000.00 1.2857%
L/C SUBCOMMITMENT: $ 514,285.71 1.2857%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: $ 15,000,000.00 25.0000%
TOTAL COMMITMENT: $ 21,000,000.00 8.4000%
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Address for Notices: BANK SOUTH, N.A.
P. O. Box 4387, MC71
Atlanta, Georgia 30302
Attn: George Hodges
Corporate Banking Officer By: /s/ George R. Hodges
---------------------------
Name: George R. Hodges
55 Marietta Street, MC71 Title: Corp. Banking Officer
Atlanta, Georgia 30303
Attn: George Hodges By:____________________________
Corporate Banking Officer Name:_______________________
Title:______________________
Telephone: 404/529-4810
Telecopy: 404/521-7309
Domestic Lending Office:
-----------------------
55 Marietta Street, MC71
Atlanta, Georgia 30303
Eurodollar Lending Office:
-------------------------
55 Marietta Street, MC71
Atlanta, Georgia 30303
PRO RATA
AMOUNT SHARE
------ --------
TERM LOAN COMMITMENT: $ 4,000,000.00 8.0000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: $ 16,000,000.00 11.4286%
L/C SUBCOMMITMENT: $ 4,571,428.57 11.4286%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: $ 0.00 0.0000%
TOTAL COMMITMENT: $ 20,000,000.00 8.0000%
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Address for Notices: THE BANK OF TOKYO LTD.,
------------------- ATLANTA AGENCY
5050 Georgia-Pacific Center
133 Peachtree Street, N.E.
Atlanta, Georgia 30303 By: /s/ Rodney J. Carson
Attn: Richard Davis ----------------------
Name: R. Carson
Title: V.P. and Manager
Telephone: 404/577-2960
Telecopy: 404/577-1155
Telex No.: 6827300
Answerback: 6827300BOT ATL
Domestic Lending Office:
-----------------------
5050 Georgia-Pacific Center
133 Peachtree Street, N.E.
Atlanta, Georgia 30303
Eurodollar Lending Office:
-------------------------
5050 Georgia-Pacific Center
133 Peachtree Street, N.E.
Atlanta, Georgia 30303
PRO RATA
AMOUNT SHARE
------ --------
TERM LOAN COMMITMENT: $ 3,200,000.00 6.4000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: $ 12,800,000.00 9.1429%
L/C SUBCOMMITMENT: $ 3,657,142.86 9.1429%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: $ 0.00 0.0000%
TOTAL COMMITMENT: $ 16,000,000.00 6.4000%
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Address for Notices: CIBC, INC.
-------------------
Canadian Imperial Bank of
Commerce
Two Paces West By: /s/ William C. Humphries
2727 Paces Ferry Road -------------------------
Suite 1200 Name: William C. Humphries
Atlanta, Georgia 30339 Title: Vice President
Attn: William C. Humphries
Vice President
Telephone: 404/319-4999
Telecopy: 404/319-4950
Domestic Lending Office:
-----------------------
Canadian Imperial Bank of
Commerce
Two Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, Georgia 30339
Eurocurrency Lending Office:
---------------------------
Canadian Imperial Bank of
Commerce
Two Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, Georgia 30339
PRO RATA
AMOUNT SHARE
------ --------
TERM LOAN COMMITMENT: $ 4,200,000.00 8.4000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: $ 9,000,000.00 6.4286%
L/C SUBCOMMITMENT: $ 2,571,428.57 6.4286%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: $ 7,800,000.00 13.0000%
TOTAL COMMITMENT: $ 21,000,000.00 8.4000%
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Address for Notices: CREDITANSTALT-BANKVERIEN
-------------------
Two Ravinia Drive, Suite 1680
Atlanta, Georgia 30346
Attention: Dan Lensgraf By: /s/ Joseph P. Longosz
----------------------------
Name: Joseph P. Longosz
Telephone: 404/390-1850 Title: Vice President
Telecopy: 404/389-1851
By: /s/ Daniel D. Lensgraf
----------------------------
Name: Daniel D. Lensgraf
Title: Senior Associate
Domestic Lending Office:
-----------------------
245 Park Avenue
New York, New York 10167
Eurodollar Lending Office:
------------------------
245 Park Avenue
New York, New York 10167
PRO RATA
AMOUNT SHARE
------ --------
TERM LOAN COMMITMENT: $ 4,000,000.00 8.0000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: $ 16,000,000.00 11.4286%
L/C SUBCOMMITMENT: $ 4,571,428.57 11.4286%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: $ 0.00 0.0000%
TOTAL COMMITMENT: $ 20,000,000.00 8.0000%
-167-
<PAGE>
<PAGE>
Address for Notices: CREDIT LYONNAIS NEW YORK
------------------- BRANCH
Credit Lyonnais Atlanta Agency
303 Peachtree Street, N.E.
Suite 4400 By: /s/ Robert Ivosevich
Atlanta, GA 30303 ----------------------------
Attn: Rainer Zeck Name: Robert Ivosvich
Title: Senior Vice President
Telephone: 404/524-3700
Telecopy: 404/584-5249 CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By: /s/ Robert Ivosevich
----------------------------
Name: Robert Ivosevich
Title: Senior Vice President
Domestic Lending Office:
-----------------------
Credit Lyonnais New York
1301 Avenue of the Americas
New York, New York 10019
Eurodollar Lending Office:
-------------------------
Credit Lyonnais Cayman Island
c/o 1301 Avenue of the Americas
New York, New York 10019
PRO RATA
AMOUNT SHARE
------ --------
TERM LOAN COMMITMENT: $ 3,200,000.00 6.4000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: $ 12,800,000.00 9.1429%
L/C SUBCOMMITMENT: $ 3,657,142.86 9.1429%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: $ 0.00 0.0000%
TOTAL COMMITMENT: $ 16,000,000.00 6.4000%
-168-
<PAGE>
<PAGE>
Address for Notices: THE DAIWA BANK, LIMITED
------------------
233 South Wacker Drive
Suite 5400
Chicago, Illinois 60606 By: E. B. Buchanan, Jr.
Attn: Operations Manager -----------------------------
Name: E. B. Buchanan, Jr.
Title: Vice President
Telephone: 312/876-0181
Telecopy: 312/876-1995
By: /s/ Katherine L. Babs
-----------------------------
Name: Katherine L. Babs
Title: Executive Officer
Domestic Lending Office:
-----------------------
233 South Wacker Drive
Suite 5400
Chicago, Illinois 60606
Eurodollar Lending Office:
------------------------
233 South Wacker Drive
Suite 5400
Chicago, Illinois 60606
PRO RATA
AMOUNT SHARE
------ ---------
TERM LOAN COMMITMENT: $ 3,200,000.00 6.4000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: $ 12,800,000.00 9.1429%
L/C SUBCOMMITMENT: $ 3,657,142.86 9.1429%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: $ 0.00 0.0000%
TOTAL COMMITMENT: $ 16,000,000.00 6.4000%
-169-
<PAGE>
<PAGE>
Address for Notices: FIRST UNION NATIONAL
------------------- BANK OF GEORGIA
999 Peachtree Street, N.E.
12th Floor
Atlanta, Georgia 30309
Attn: Michael S. Murphey By: /s/ Michael S. Murphy
Senior Vice President ----------------------------
Name: Michael S. Murphy
Telephone: 404/225-4004 Title: SVP
Telecopy: 404/225-4255
Domestic Lending Office:
-----------------------
999 Peachtree Street, N.E.
12th Floor
Atlanta, Georgia 30309
Eurodollar Lending Office:
-------------------------
999 Peachtree Street, N.E.
12th Floor
Atlanta, Georgia 30309
PRO RATA
AMOUNT SHARE
TERM LOAN COMMITMENT: $ 4,200,000.00 8.4000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: $ 16,800,000.00 12.0000%
L/C SUBCOMMITMENT: $ 4,800,000.00 12.0000%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: $ 0.00 0.0000%
TOTAL COMMITMENT: $ 21,000,000.00 8.4000%
-170-<PAGE>
<PAGE>
Address for Notices: FLEET BANK OF MAINE
-------------------
80 Exchange Street
Bangor, Maine 04401
Attn: Neil C. Buitenhuys By: /s/ Neil C. Buitenhuys
-------------------------
Name: Neil C. Buitenhuys
Title: Vice President
Telephone: 207/941-6140 or 6180
Telecopy: 207/941-6023
Domestic Lending Office:
-----------------------
511 Congress St., P.O. Box 1280
Portland, Maine 04104-5006
Eurodollar Lending Office:
-------------------------
511 Congress St., P.O. Box 1280
Portland, Maine 04104-5006
PRO RATA
AMOUNT SHARE
------ --------
TERM LOAN COMMITMENT: $ 2,400,000.00 4.8000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: $ 9,600,000.00 6.8571%
L/C SUBCOMMITMENT: $ 2,742,857.14 6.8571%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: $ 0.00 0.0000%
TOTAL COMMITMENT: $ 12,000,000.00 4.8000%
-171-
<PAGE>
<PAGE>
Address for Notices: NATIONSBANK, N.A. (CAROLINAS)
------------------- (formerly known as NationsBank
of North Carolina, N.A.)
100 North Tryon Street
Mail Code NC1-007-08-11
Charlotte, NC 28255 By: /s/ J. Lance Walton
Attention: Lance Walton -----------------------------
Name: J. Lance Walton
Title: Senior Vice President
Telephone: 704/386-6744
Telecopy: 704/386-1270
Domestic Lending Office:
-----------------------
One Independence Center
101 North Tryon Street
Mail Code NC1-001-15-03
Charlotte, North Carolina 28255
Eurocurrency Lending Office:
---------------------------
One Independence Center
101 North Tryon Street
Mail Code NC1-001-15-03
Charlotte, North Carolina 28255
PRO RATA
AMOUNT SHARE
------ -----
TERM LOAN COMMITMENT: $ 4,200,000.00 8.4000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: $ 9,000,000.00 6.4286%
L/C SUBCOMMITMENT: $ 2,571,428.57 6.4286%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: $ 7,800,000.00 13.0000%
TOTAL COMMITMENT: $ 21,000,000.00 8.4000%
-172-
<PAGE>
<PAGE>
Address for Notices: WACHOVIA BANK OF GEORGIA, N.A.
-------------------
191 Peachtree Street, N.E.
30th Floor
Atlanta, Georgia 30383
Attn: Doug Strickland By: /s/ Douglas W. Strickland
-----------------------------
Name: Douglas W. Strickland
Title: Vice President
By:____________________________
Name:_______________________
Telecopy: 404/332-1382 Title:______________________
Telex: 404/332-6920
Answerback: FNBAINTL
Domestic Lending Office:
-----------------------
191 Peachtree Street, N.E.
Atlanta, Georgia 30383
Eurocurrency Lending Office:
---------------------------
191 Peachtree Street, N.E.
Atlanta, Georgia 30383
PRO RATA
AMOUNT SHARE
------ --------
TERM LOAN COMMITMENT: $ 4,200,000.00 8.4000%
DOMESTIC SYNDICATED
LOAN COMMITMENT: $ 9,000,000.00 6.4286%
L/C SUBCOMMITMENT: $ 2,571,428.57 6.4286%
MULTICURRENCY SYNDICATED
LOAN COMMITMENT: $ 7,800,000.00 13.0000%
TOTAL COMMITMENT: $ 21,000,000.00 8.4000%
-173-
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from Form 10-Q
for the quarterly period ended July 2, 1995, and is qualified in its entirety by
reference to such financial statements.
</LEGEND>
<CIK> 0000715787
<NAME> INTERFACE, INC.
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-START> JAN-01-1995
<PERIOD-END> JUL-02-1995
<EXCHANGE-RATE> 1
<CASH> 7,211
<SECURITIES> 0
<RECEIVABLES> 150,023
<ALLOWANCES> 6,501
<INVENTORY> 145,880
<CURRENT-ASSETS> 319,408
<PP&E> 340,138
<DEPRECIATION> 177,698
<TOTAL-ASSETS> 739,588
<CURRENT-LIABILITIES> 124,592
<BONDS> 338,389
<COMMON> 2,185
25,000
0
<OTHER-SE> 232,410
<TOTAL-LIABILITY-AND-EQUITY> 739,588
<SALES> 394,145
<TOTAL-REVENUES> 394,145
<CGS> 273,062
<TOTAL-COSTS> 365,302
<OTHER-EXPENSES> (133)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (14,047)
<INCOME-PRETAX> 14,664
<INCOME-TAX> 5,573
<INCOME-CONTINUING> 9,091
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 9,091
<EPS-PRIMARY> 0.45
<EPS-DILUTED> 0.45
</TABLE>
