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EXHIBIT 4.2
$125,000,000
INTERFACE, INC.
9 1/2% Senior Subordinated Notes due 2005
PURCHASE AGREEMENT
November 16, 1995
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇, PIERCE, FENNER,
& ▇▇▇▇▇ INCORPORATED
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, INC.
WHEAT, FIRST SECURITIES, INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
c/o ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Interface, Inc., a Georgia corporation (the "Company"), proposes, upon the
terms and conditions set forth herein, to issue and sell to you, as the initial
purchasers (the "Initial Purchasers"), $125,000,000 aggregate principal amount
of its 9 1/2% Senior Subordinated Notes due 2005 (the "Notes"). The Notes will
be issued pursuant to the provisions of an Indenture, to be dated as of
November 15, 1995 (the "Indenture"), between the Company, as issuer, the
subsidiary guarantors listed on Schedule III hereto (the "Subsidiary
Guarantors"), and First Union National Bank of Georgia, as Trustee (the
"Trustee"). The Notes will be guaranteed, jointly and severally, on an
unsecured senior subordinated basis (the "Guarantees") as to principal,
premium, if any, and interest by the Subsidiary Guarantors.
The Company wishes to confirm as follows its agreement with the Initial
Purchasers in connection with the purchase and resale of the Notes.
1. Preliminary Offering Memorandum and Offering Memorandum. The Notes
will be offered and sold to the Initial Purchasers without registration under
the Securities Act of 1933, as amended (the "Act"), in reliance on an exemption
pursuant to Section 4(2) under the Act. The Company has prepared a preliminary
offering memorandum, dated October 31, 1995 (the "Preliminary Offering
Memorandum"), and an offering memorandum, dated November 16,
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1995 (the "Offering Memorandum"), setting forth information regarding the
Company, the Notes and the Guarantees. Any references herein to the
Preliminary Offering Memorandum and the Offering Memorandum shall be deemed to
include all amendments and supplements thereto. The Company hereby confirms
that it has authorized the use of the Preliminary Offering Memorandum and the
Offering Memorandum in connection with the offering and resale of the Notes by
the Initial Purchasers.
The Company understands that the Initial Purchasers propose to make offers
and sales (the "Exempt Resales") of the Notes purchased by the Initial
Purchasers hereunder only on the terms and in the manner set forth in the
Offering Memorandum and Section 2 hereof, as soon as the Initial Purchasers
deem advisable after this Agreement has been executed and delivered, (i) to
persons in the United States whom the Initial Purchasers reasonably believe to
be qualified institutional buyers ("Qualified Institutional Buyers") as defined
in Rule 144A under the Act, as such rule may be amended from time to time
("Rule 144A"), in transactions under Rule 144A, (ii) to a limited number of
other institutional "accredited investors" (as defined in Rule 501(a)(1), (2),
(3) and (7) under Regulation D of the Act) ("Accredited Investors") in private
sales exempt from registration under the Act and (iii) outside the United
States to persons other than U.S. persons in reliance upon Regulation S
("Regulation S") under the Act (such persons specified in clauses (i), (ii) and
(iii) being referred to herein as the "Eligible Purchasers"). As used herein
the terms "United States" and "U.S. persons" have the meanings given them in
Regulation S.
It is understood and acknowledged that upon original issuance thereof, and
until such time as the same is no longer required under the applicable
requirements of the Act, the Notes shall bear the following legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT) (AN "ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2)
AGREES THAT IT WILL NOT WITHIN THREE YEARS AFTER THE ORIGINAL ISSUANCE OF
THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE
ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR
THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND
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AGREEMENTS (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (D)
OUTSIDE THE UNITED STATES TO PERSONS OTHER THAN U.S. PERSONS IN OFFSHORE
TRANSACTIONS MEETING THE REQUIREMENTS OF RULE 904 UNDER REGULATION S UNDER
THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
It is also understood and acknowledged that holders (including subsequent
transferees) of the Notes will have the registration rights set forth in the
registration rights agreement (the "Registration Rights Agreement"), to be
dated as of the Closing Date (as defined herein), in substantially the form of
Exhibit A hereto, for so long as such Notes constitute "Registrable Notes" (as
defined in the Registration Rights Agreement). Pursuant to the Registration
Rights Agreement, the Company will agree (i) to file with the Securities and
Exchange Commission (the "Commission") under the circumstances set forth
therein, a registration statement on the appropriate form under the Act
relating to the resale of the Notes by certain holders thereof from time to
time in accordance with the methods of distribution set forth in such
registration statement and Rule 415 under the Act (the "Shelf Registration
Statement") and (ii) to use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective. This Agreement, the Indenture
and the Registration Rights Agreement are hereinafter referred to collectively
as the "Operative Documents."
Capitalized terms used herein without definition have the respective
meanings specified therefor in the Offering Memorandum.
2. Agreements to Sell, Purchase and Resell. (a) The Company hereby
agrees, subject to all the terms and conditions set forth herein and upon the
basis of the representations, warranties and agreements of the Initial
Purchasers herein contained, to issue and sell to the several Initial
Purchasers and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, the Initial Purchasers agree, severally and not
jointly, to purchase from the Company, at a purchase price of 97.25% of the
principal amount thereof, the principal amount of Notes set forth opposite the
name of the respective Initial Purchaser in Schedule I hereto.
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(b) Each Initial Purchaser has advised the Company that it proposes
to offer the Notes for sale upon the terms and conditions set forth in this
Agreement and in the Offering Memorandum. Each Initial Purchaser hereby
represents and warrants to, and agrees with, the Company that such Initial
Purchaser (i) is purchasing the Notes pursuant to a private sale exempt
from registration under the Act, (ii) will not solicit offers for, or offer
or sell, the Notes by means of any form of general solicitation or general
advertising or in any manner involving a public offering within the meaning
of Section 4(2) of the Act, and (iii) will solicit offers for the Notes
only from, and will offer, sell or deliver the Notes as part of its initial
offering, only to (A) persons in the United States whom such Initial
Purchaser reasonably believes to be Qualified Institutional Buyers, or if
any such person is buying for one or more institutional accounts for which
such person is acting as fiduciary or agent, only when such person has
represented to such Initial Purchaser that each such account is a Qualified
Institutional Buyer, to whom notice has been given that such sale or
delivery is being made in reliance on Rule 144A, in each case, in
transactions under Rule l44A, (B) to a limited number of Accredited
Investors that make the representations to and agreements with the Company
specified in Annex A to the Offering Memorandum in private sales exempt
from registration under the Act and (C) outside the United States to
persons other than U.S. persons in reliance on Regulation S. Each Initial
Purchaser has advised the Company that it will offer the Notes to Eligible
Purchasers at a price initially equal to 100% of the principal amount
thereof, plus accrued interest, if any, from the date of issuance of the
Notes. Such price may be changed by the Initial Purchasers at any time
thereafter without notice.
(c) Each Initial Purchaser represents and warrants that it has
offered and sold the Notes and agrees that it will offer and sell the Notes
(i) as part of its distribution at any time, and (ii) otherwise until 40
days after the later of the commencement of the offering of the Notes and
the Closing Date, only in accordance with Rule 903 of Regulation S or as
otherwise permitted pursuant to paragraph (c) above. Accordingly, each
Initial Purchaser represents and agrees that neither such Initial
Purchaser, its affiliates nor any persons acting on its or their behalf has
engaged or will engage in any directed selling efforts with respect to the
Notes, and it and they have complied and will comply with the offering
restrictions requirement of Regulation S. Each Initial Purchaser agrees
that, at or prior to confirmation of the sale of Notes other than a sale
pursuant to Rule 144A, it will have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration that
purchases Notes from such Initial Purchaser during the restricted period a
confirmation or notice to substantially the following effect: ``
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "Securities Act"), and
may not be offered and sold within the United States or to, or for
the account or benefit of, U.S. persons (i) as part of the
distribution at any time or (ii) otherwise until 40 days after the
later of the commencement of the offering and the closing date of the
sale, except in
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either case in accordance with Regulation S (or Rule 144A) under the
Securities Act. Terms used above and not otherwise defined have the
meaning given to them by Regulation S."
Each Initial Purchaser understands that the Company and, for purposes
of the opinions to be delivered to the Initial Purchasers pursuant to Sections 7
(c) (xvi) and 7 (f) hereof, counsel to the Company and counsel to the Initial
Purchasers will rely upon the accuracy and truth of the foregoing
representations and agreements and each Initial Purchaser hereby consents to
such reliance.
3. Delivery of the Notes and Payment Therefor. Delivery to the
Initial Purchasers of and payment for the Notes shall be made at the office of
▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, at 10:00 A.M., New
York City time, on November 21, 1995 (the "Closing Date"). The place of closing
for the Notes and the Closing Date may be varied by agreement between the
Initial Purchasers and the Company.
The Notes will be delivered to the Initial Purchasers against payment of
the purchase price therefor by certified or official bank check or checks
payable in New York Clearing House (next day) funds to the order of the
Company. The Notes will be evidenced by a single global security in definitive
form (the "Global Note") and/or by additional definitive securities, and will
be registered, in the case of the Global Note, in the name of Cede & Co. as
nominee of The Depository Trust Company ("DTC"), and in the other cases, in
such names and in such denominations as the Initial Purchasers shall request
prior to 1:00 p.m., New York City time, on the third business day preceding the
Closing Date. The Notes to be delivered to the Initial Purchasers shall be
made available to the Initial Purchasers in New York City for inspection and
packaging not later than 9:30 a.m., New York City time, on the business day
next preceding the Closing Date.
4. Agreements of the Company. The Company agrees with the Initial
Purchasers as follows:
(a) The Company will advise the Initial Purchasers promptly and, if
requested by them, will confirm such advice in writing, within the period
of time referred to in paragraph (e) below, of any change in the Company's
condition (financial or other), business, prospects, properties, net worth
or result of operations, or of the happening of any event which makes any
statement made in the Offering Memorandum (as then amended or supplemented)
untrue or which requires the making of any additions to or changes in the
Offering Memorandum (as then amended or supplemented) in order to make the
statements therein not misleading, or of the necessity to amend or
supplement the Offering Memorandum (as then amended or supplemented) to
comply with law.
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(b) The Company will furnish to the Initial Purchasers, without
charge, as of the date of the Offering Memorandum, such number of copies of
the Offering Memorandum as may then be amended or supplemented as they may
reasonably request.
(c) The Company will not make any amendment or supplement to the
Preliminary Offering Memorandum or to the Offering Memorandum of which the
Initial Purchasers shall not previously have been advised or to which they
shall reasonably object after being so advised, without delivering a copy
of such document to the Initial Purchasers, prior to or concurrently with
such filing.
(d) Prior to the execution and delivery of this Agreement, the
Company has delivered or will deliver to the Initial Purchasers, without
charge, in such quantities as the Initial Purchasers shall have requested
or may hereafter reasonably request, copies of the Preliminary Offering
Memorandum. The Company consents to the use, in accordance with the
securities or Blue Sky laws of the jurisdictions in which the Notes are
offered by the Initial Purchasers and by dealers, prior to the date of the
Offering Memorandum, of each Preliminary Offering Memorandum so furnished
by the Company. The Company consents to the use of the Offering Memorandum
(and of any amendment or supplement thereto) in accordance with the
securities or Blue Sky laws of the jurisdictions in which the Notes are
offered by the Initial Purchasers and by all dealers to whom Notes may be
sold, in connection with the offering and sale of the Notes.
(e) If, at any time prior to completion of the distribution of the
Notes by the Initial Purchasers to Eligible Purchasers, any event shall
occur that in the judgment of the Company or in the opinion of counsel for
the Initial Purchasers should be set forth in the Offering Memorandum (as
then amended or supplemented) in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
or if it is necessary to supplement or amend the Offering Memorandum to
comply with law, the Company will forthwith prepare an appropriate
supplement or amendment thereto, and will expeditiously furnish to the
Initial Purchasers and dealers a reasonable number of copies thereof. If
the Company and the Initial Purchasers agree that the Offering Memorandum
should be amended or supplemented, the Company, if requested by the Initial
Purchasers, will promptly issue a press release announcing or disclosing
the matters to be covered by the proposed amendment or supplement or such
document provided that such public announcement would not cause any
applicable exemptions under the Securities Act to become unavailable.
(f) The Company will cooperate with the Initial Purchasers and with
their counsel in connection with the qualification of the Notes for
offering and sale by the Initial Purchasers and by dealers under the
securities or Blue Sky laws of such jurisdictions as the Initial Purchasers
may designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such qualification;
provided that in no
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event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which
would subject it to service of process in suits, other than those arising
out of the offering or sale of the Notes, in any jurisdiction where it is
not now so subject.
(g) So long as any of the Notes are outstanding, the Company will
furnish to the Initial Purchasers (i) as soon as available, a copy of each
report of the Company mailed to stockholders or filed with the Commission,
and (ii) from time to time such other information concerning the Company as
the Initial Purchasers may request.
(h) If this Agreement shall terminate or shall be terminated after
execution and delivery pursuant to any provisions hereof (otherwise than by
notice given by the Initial Purchasers terminating this Agreement pursuant
to Section 9 or Section 10 hereof) or if this Agreement shall be terminated
by the Initial Purchasers because of any failure or refusal on the part of
the Company to perform its obligations hereunder, the Company agrees to
reimburse the Initial Purchasers for all out-of-pocket expenses (including
fees and expenses of its counsel) reasonably incurred by it in connection
herewith, but without any further obligation on the part of the Company for
loss of profits or otherwise.
(i) The Company will apply the net proceeds from the sale of the
Notes to be sold by it hereunder substantially in accordance with the
description set forth in the Offering Memorandum.
(j) Except as stated in this Agreement and in the Preliminary
Offering Memorandum and Offering Memorandum, the Company has not taken, nor
will it take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation
of the price of the Notes to facilitate the sale or resale of the Notes.
Except as permitted by the Act, the Company will not distribute any
offering material in connection with the Exempt Resales.
(k) From and after the Closing Date, so long as any of the Notes are
outstanding and are "Restricted Securities" within the meaning of the Rule
144(a)(3) under the Act or, if earlier, until three years after the Closing
Date, and during any period in which the Company is not subject to Section
13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), the Company will furnish to holders of the Notes and
prospective purchasers of Notes designated by such holders, upon request of
such holders or such prospective purchasers, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Act to permit compliance
with Rule 144A in connection with resale of the Notes.
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(l) The Company and the Subsidiary Guarantors each has complied and
will comply with all provisions of Florida Statutes Section 517.075
relating to issuers doing business with Cuba.
(m) The Company agrees not to sell, offer for sale or solicit offers
to buy or otherwise negotiate in respect of any security (as defined in the
Act) that would be integrated with the sale of the Notes in a manner that
would require the registration under the Act of the sale to the Initial
Purchasers or the Eligible Purchasers of the Notes.
(n) The Company and the Subsidiary Guarantors each agrees to comply
with all of the terms and conditions of the Registration Rights Agreement,
and all agreements set forth in the representation letters of the Company
to DTC relating to the approval of the Notes by DTC for "book entry"
transfer.
(o) The Company and the Subsidiary Guarantors each agrees that prior
to any registration of the Notes and Guarantees pursuant to the
Registration Rights Agreement, or at such earlier time as may be so
required, the Indenture shall be qualified under the Trust Indenture Act of
1939 (the "1939 Act") and will cause to be entered into any necessary
supplemental indentures in connection therewith.
(p) The Company shall, and shall use its best efforts to cause the
transfer agent with respect to the Notes to, refuse to register any
transfer of Notes sold pursuant to Rule 144A or Regulation S if it has
knowledge that such transfer is not made in accordance with the provisions
of Rule 144A or Regulation S.
(q) The Company shall not, without the prior consent of the Initial
Purchasers, offer, sell, contract to sell or otherwise dispose of any
securities that are similar in quality or nature to the Notes (other than
pursuant to an exchange offer for the Notes) for a period of 180 days after
the Closing Date.
5. Representations and Warranties of the Company. The Company
represents and warrants to each Initial Purchaser that:
(a) The Preliminary Offering Memorandum and Offering Memorandum with
respect to the Notes have been prepared by the Company for use by the
Initial Purchasers in connection with the Exempt Resales. No order or
decree preventing the use of the Preliminary Offering Memorandum or the
Offering Memorandum or any amendment or supplement thereto, or any order
asserting that the transactions contemplated by this Agreement are subject
to the registration requirements of the Act has been issued and no
proceeding for that purpose has commenced or is pending or, to the
knowledge of the Company, is contemplated.
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(b) The Preliminary Offering Memorandum and the Offering Memorandum
as of their respective dates and the Offering Memorandum as of the Closing
Date, did not or will not at any time contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
that this representation and warranty does not apply to statements in or
omissions from the Preliminary Offering Memorandum and Offering Memorandum
made in reliance upon and in conformity with information relating to the
Initial Purchasers furnished to the Company in writing by or on behalf of
the Initial Purchasers expressly for use therein.
(c) The Indenture has been duly and validly authorized by the
Company and, upon its execution, delivery and performance by the Company
and the Subsidiary Guarantors and assuming due authorization, execution,
delivery and performance by the Trustee, will be a valid and binding
agreement of the Company and the Subsidiary Guarantors, enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally and subject to the applicability of general principles of equity,
and conforms in all material respects to the description thereof in the
Offering Memorandum; no qualification of the Indenture under the 1939 Act
is required in connection with the offer and sale of the Notes contemplated
hereby or in connection with the Exempt Resales.
(d) The Notes have been duly authorized by the Company and, when
executed by the Company and authenticated by the Trustee in accordance with
the Indenture and delivered to the Initial Purchasers against payment
therefor in accordance with the terms hereof, will have been validly issued
and delivered, and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable in
accordance with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency or other similar laws affecting the enforcement
of creditors' rights generally, and the Notes will conform in all material
respects to the description thereof in the Offering Memorandum.
(e) The Guarantees have been duly authorized by the Subsidiary
Guarantors and, when the Notes and the Guarantees have been executed by the
Company and the Subsidiary Guarantors and authenticated by the Trustee in
accordance with the Indenture and delivered to the Initial Purchasers
against payment therefor in accordance with the terms hereof, will
constitute valid and binding obligations of the Subsidiary Guarantors
entitled to the benefits of the Indenture and enforceable in accordance
with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally and subject to the applicability of general
principles of equity, and the Guarantees will conform in all material
respects to the description thereof in the Offering Memorandum.
(f) All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued, are fully paid and nonassessable
and are free of any
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preemptive or, except as set forth in the Offering Memorandum, similar
rights and were issued and sold in compliance with all applicable Federal
and state securities laws; and the authorized capital stock of the Company
conforms to the description thereof in the Offering Memorandum.
(g) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Georgia with full corporate
power and authority to own, lease and operate its properties and to conduct
its business as described in the Offering Memorandum, and is duly
registered and qualified to conduct its business and is in good standing in
each jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification, except
where the failure so to register or qualify or be in good standing does not
have a material adverse effect on the condition (financial or other),
business, prospects, properties, net worth or results of operations of the
Company and its Subsidiaries (as hereinafter defined) taken as a whole (a
"Material Adverse Effect").
(h) All the Company's subsidiaries (as defined in the Act), exclusive
of the subsidiaries listed on Schedule II hereto (the "Inactive
Subsidiaries"), are referred to herein individually as a "Subsidiary" and
collectively as the "Subsidiaries." Each Subsidiary is a corporation duly
organized, validly existing and in good standing in the jurisdiction of its
incorporation, with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Offering Memorandum, and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register or
qualify or be in good standing does not have a Material Adverse Effect.
None of the Inactive Subsidiaries is engaged in any business activities or
operations or has any material assets or liabilities. All the outstanding
shares of capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable, and
(except for directors' qualifying shares or similar interests) are wholly
owned by the Company directly or indirectly through one of the other
Subsidiaries, free and clear of any lien, adverse claim, security interest,
equity or other encumbrance, except as described in the Offering
Memorandum.
(i) The Subsidiary Guarantors listed on Schedule III hereto are the
only Subsidiaries of the Company that (i) are incorporated in the United
States or any State thereof and (ii) are Material Subsidiaries. For
purposes of the preceding sentence, "Material Subsidiary" shall mean each
Subsidiary that has total assets in excess of $10,000,000, or holds any
fixed assets material to the operations or business of another Material
Subsidiary.
(j) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened, against the Company or any of the
Subsidiaries, or to which the Company or any of the Subsidiaries, or to
which any of their respective properties, is
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subject, that are not disclosed in the Offering Memorandum and which, if
adversely decided, are reasonably likely to cause a Material Adverse Effect
or materially affect the issuance of the Notes or the consummation of the
transactions contemplated by the Operative Documents. There are no
material agreements, contracts, indentures, leases or other instruments
that are not described in the Offering Memorandum or that are required to
be filed as an exhibit to any document filed under the Exchange Act that
are not so filed. Neither the Company nor any Subsidiary is involved in any
strike, collective job action or collective labor dispute with any group of
employees, and, to the Company's knowledge, no such action or dispute is
threatened.
(k) Neither the Company nor any of the Subsidiaries is (i) in
violation of its certificate or articles of incorporation or by-laws or
other organizational documents, or of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any of the
Subsidiaries or of any decree of any court or governmental agency or body
having jurisdiction over the Company or any of the Subsidiaries, except
where any such violation or violations in the aggregate would not have a
Material Adverse Effect or (ii) in default in any material respect in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
material agreement, indenture, lease or other material instrument to which
the Company or any of the Subsidiaries is a party or by which any of them
or any of their respective properties may be bound, except as may be
disclosed in the Offering Memorandum.
(l) Neither the issuance, offer, sale or delivery of the Notes, the
issuance of the Guarantees by the Subsidiary Guarantors, the execution,
delivery or performance of this Agreement, the Indenture or the
Registration Rights Agreement by the Company and the Subsidiary Guarantors
nor the consummation by the Company and the Subsidiary Guarantors of the
transactions contemplated hereby or thereby (i) requires any consent,
approval, authorization or other order of, or registration or filing with,
any court, regulatory body, administrative agency or other governmental
body, agency or official (except such as may be required in connection with
the registration under the Act of the Notes and the Guarantees in
accordance with the Registration Rights Agreement, the qualification of the
Indenture under the 1939 Act and except for compliance with the securities
or Blue Sky laws of various jurisdictions) or conflicts or will conflict
with or constitutes or will constitute a breach of, or a default under, the
certificate or articles of incorporation or bylaws, or other organizational
documents, of the Company or any of the Subsidiaries or (ii) conflicts or
will conflict with or constitutes or will constitute a breach of, or a
default under, in any material respect, any material agreement, indenture,
lease or other material instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their respective
properties may be bound, or violates or will violate in any material
respect any statute, law, regulation or filing or judgment, injunction,
order or decree applicable to the Company or any of the Subsidiaries or any
of their respective properties, or will result in
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the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of the Subsidiaries pursuant to
the terms of any agreement or instrument to which any of them is a party or
by which any of them may be bound or to which any of the property or assets
of any of them is subject.
(m) The accountants, BDO ▇▇▇▇▇▇▇, LLP, who have certified or shall
certify the financial statements included as part of the Offering
Memorandum (or any amendment or supplement thereto), are independent public
accountants under Rule 101 of the AICPA's Code of Professional Conduct, and
its interpretation and rulings.
(n) The financial statements, together with related schedules and
notes forming part of the Offering Memorandum (and any amendment or
supplement thereto), present fairly in all material respects the
consolidated financial position, results of operations and changes in
stockholders' equity and cash flows of the Company and the Subsidiaries on
the basis stated in the Offering Memorandum at the respective dates or for
the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; the assumptions used in preparing
the adjusted financial information and related notes included in the
Offering Memorandum are reasonable; and the other financial and statistical
information and data set forth in the Offering Memorandum (and any
amendment or supplement thereto) are accurately presented and, to the
extent such information and data are derived from the financial books and
records of the Company, are prepared on a basis consistent with such
financial statements and the books and records of the Company.
(o) The Company and the Subsidiary Guarantors each has all requisite
power and authority to execute, deliver and perform its obligations under
this Agreement and the Registration Rights Agreement; the execution and
delivery of, and the performance by each of the Company and the Subsidiary
Guarantors of its obligations under, this Agreement and the Registration
Rights Agreement have been duly and validly authorized by each of the
Company and the Subsidiary Guarantors, and this Agreement and the
Registration Rights Agreement have been duly executed and delivered by each
of the Company and the Subsidiary Guarantors and constitute the valid and
legally binding agreements of the Company and the Subsidiary Guarantors,
enforceable against the Company and the Subsidiary Guarantors in accordance
with their terms, except as the enforcement hereof and thereof may be
limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally and subject to the applicability
of general principles of equity, and except as rights to indemnity and
contribution hereunder and thereunder may be limited by Federal or state
securities laws or principles of public policy.
(p) Except as disclosed in the Offering Memorandum (or any amendment
or supplement thereto), subsequent to the date as of which such information
is given in the
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Offering Memorandum (or any amendment or supplement thereto), neither the
Company nor any of the Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in
the ordinary course of business, that is material to the Company and the
Subsidiaries taken as a whole, and there has not been any material change
in the capital stock, or material increase in the short-term or long-term
debt, of the Company or any of the Subsidiaries, or any material adverse
change, or any development involving or which could reasonably be expected
to involve a prospective material adverse change, in the condition
(financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries taken as a whole.
(q) Each of the Company and the Subsidiaries has good and marketable
title to all property (real and personal) described in the Offering
Memorandum as being owned by it, free and clear of all liens, claims,
security interests or other encumbrances except such as are described in
the Offering Memorandum, and all the property described in the Offering
Memorandum as being held under lease by each of the Company and the
Subsidiaries is held by it under valid, subsisting and enforceable leases,
with only such exceptions as in the aggregate are not materially burdensome
and do not interfere in any material respect with the conduct of the
business of the Company and the Subsidiaries taken as a whole.
(r) Except as permitted by the Act, the Company has not distributed
and, prior to the later to occur of the Closing Date and completion of the
distribution of the Notes, will not distribute any offering material in
connection with the offering and sale of the Notes other than the
Preliminary Offering Memorandum and Offering Memorandum.
(s) Each of the Company and the Subsidiaries has such permits,
licenses, franchises and other approvals or authorizations of governmental
or regulatory authorities ("Permits") as are necessary under applicable law
to own or lease their respective properties and to conduct their respective
business in the manner described in the Offering Memorandum except to the
extent that the failure to have such Permits would not have a Material
Adverse Effect; the Company and each of the Subsidiaries have fulfilled and
performed in all material respects, all their respective material
obligations with respect to the Permits, and no event has occurred which
allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such Permit, subject in each case to such
qualification as may be set forth in the Offering Memorandum and except to
the extent that any such revocation or termination would not have a
Material Adverse Effect.
(t) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to
assets is
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permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared
with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(u) Neither the Company nor any of the Subsidiaries nor, to the
Company's knowledge, any employee or agent of the Company or any Subsidiary
has made any payment of funds of the Company or any Subsidiary or received
or retained any funds in violation of any law, rule or regulation, which
violation would have a Material Adverse Effect.
(v) Except as disclosed in the Offering Memorandum, the Company and
each of the Subsidiaries have filed all tax returns required to be filed,
which returns are true and correct in all material respects, and neither
the Company nor any Subsidiary is in default in the payment of any taxes
which were payable pursuant to said returns or any assessments with respect
thereto, except where the failure to file such returns and make such
payments would not have a Material Adverse Effect.
(w) No holder of any security of the Company (other than holders of
the Notes) has any right to request or demand registration of shares of
Common Stock or any other security of the Company because of the
consummation of the transactions contemplated by this Agreement or the
Registration Rights Agreement, except as contemplated by the Operative
Documents. Except as described in or contemplated by the Operative
Documents or the Offering Memorandum, there are no outstanding options,
warrants or other rights calling for the issuance of, and there are no
commitments, plans or arrangements to issue, any shares of capital stock of
the Company or any security convertible into or exchangeable or exercisable
for capital stock of the Company.
(x) The Company and the Subsidiaries own or possess all patents,
trademarks, trademark registration, service marks, service ▇▇▇▇
registrations, trade names, copyrights, licenses, inventions, trade secrets
and rights described in the Offering Memorandum as being owned by any of
them or necessary for the conduct of their respective businesses, and the
Company is not aware of any claim to the contrary or any challenge by any
other person to the rights of the Company and the Subsidiaries with respect
to the foregoing.
(y) The Company is not and, upon sale of the Notes to be issued and
sold in accordance herewith and the application of the net proceeds to the
Company of such sale as described in the Offering Memorandum under the
caption "Use of Proceeds," will not be an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
(z) When the Notes are issued and delivered pursuant to this
Agreement, such Notes will not be of the same class (within the meaning of
Rule 144A(d)(3) under the Act) as any security of the Company that is
listed on a national securities exchange registered under
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Section 6 of the Exchange Act or that is quoted in a United States
automated interdealer quotation system.
(aa) Neither the Company nor any affiliate (as defined in Rule 501(b)
of Regulation D ("Regulation D") under the Act) of the Company has
directly, or through any agent (provided that no representation is made as
to any Initial Purchaser or any person acting on its behalf), (i) sold,
offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any security (as defined in the Act) which is or will be
integrated with the offering and sale of the Notes in a manner that would
require the registration of the Notes under the Act or (ii) engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D) in connection with the offering of the Notes.
(ab) The Company is not required to deliver the information specified
in Rule 144A(d)(4) in connection with the offering and resale of the Notes
by the Initial Purchasers.
(ac) Assuming that (i) the representations and warranties in Section
2 hereof are true, (ii) the Initial Purchasers comply with the covenants
set forth in Section 2 hereof and (iii) each person to whom the Initial
Purchasers offer, sell or deliver the Notes is a Qualified Institutional
Buyer, an Accredited Investor or a person other than a U.S. person outside
the United States in reliance on Regulation S under the Act, the purchase
and sale of the Notes pursuant hereto (including the Initial Purchasers'
proposed offering of the Notes on the terms and in the manner set forth in
the Offering Memorandum and Section 2 hereof) is exempt from the
registration requirements of the Act. None of the Company, its
Subsidiaries or affiliates or any person acting on its or their behalf
(other than the Initial Purchasers) has engaged in any directed selling
efforts (as that term is defined in Regulation S under the Act) with
respect to the Notes and the Company, its Subsidiaries or affiliates and
any person acting on its or their behalf (other than the Initial
Purchasers) have complied with the offering restrictions requirement of
Regulation S.
(ad) The execution and delivery of this Agreement and the other
Operative Documents and the sale of the Notes to the Initial Purchasers or
by the Initial Purchasers to Eligible Purchasers will not involve any
prohibited transaction within the meaning of Section 406 of ERISA or
Section 4975 of the Code. The representation made by the Company in the
preceding sentence is made in reliance upon and subject to the accuracy of,
and compliance with, the representations and covenants made or deemed made
by the Eligible Purchasers as set forth in the Offering Memorandum under
the sections entitled "Transfer Restrictions" and "ERISA Considerations."
(ae) The Company is not required to obtain shareholder consent or
approval pursuant to the rules of the Nasdaq National Market or any other
exchange or trading facility in connection with the offering and sale of
the Notes.
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(af) Except as disclosed in the Offering Memorandum and except as
would not individually or in the aggregate have a Material Adverse Effect,
(A) the operations of the Company and the Subsidiaries are each in
compliance with all applicable Environmental Laws, (B) the Company and the
Subsidiaries have all permits, authorizations and approvals required under
any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or threatened Environmental Claims
against the Company or any of the Subsidiaries, and (D) there are no
circumstances with respect to any property or operations of the Company or
the Subsidiaries that could reasonably be anticipated to form the basis of
an Environmental Claim against the Company or the Subsidiaries. For
purposes of this Agreement, the following terms shall have the following
meanings: "Environmental Law" means any United States (or other applicable
jurisdiction's) federal, state, local or municipal statute, law, rule,
regulation, ordinance or code and any judicial or administrative
interpretation thereof including any judicial or administrative judgment
and order or decree to which the Company or any Subsidiary is a party,
relating to pollution or protection of the environment or the release,
discharge or handling of hazardous or toxic substances or hazardous or
solid wastes. "Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, claims, liens, notices of
noncompliance or violation, investigations or proceedings relating in any
way to any Environmental Law.
6. Indemnification and Contribution. (a) The Company and the Subsidiary
Guarantors agree to indemnify and hold harmless each Initial Purchaser and each
person, if any, who controls such Initial Purchaser within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Preliminary
Offering Memorandum or Offering Memorandum or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity with the
information relating to the Initial Purchasers furnished in writing to the
Company by or on behalf of the Initial Purchasers expressly for use in
connection therewith; provided, however, that the indemnification contained in
this paragraph (a) with respect to the Preliminary Offering Memorandum shall not
inure to the benefit of any Initial Purchaser (or to the benefit of any person
controlling such Initial Purchaser) on account of any such loss, claim, damage,
liability or expense arising from the sale of the Notes by such Initial
Purchaser to any person if the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in the Preliminary
Offering Memorandum was corrected in the Offering Memorandum and such Initial
Purchaser sold Notes to that person without sending or giving at or prior to the
written confirmation of such sale, a copy of the Offering Memorandum (as then
amended or supplemented) if the
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Company has previously furnished sufficient copies thereof to such Initial
Purchaser on a timely basis. The foregoing indemnity agreement shall be in
addition to any liability which the Company and the Subsidiary Guarantors may
otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Initial Purchaser or any person controlling such Initial Purchaser in respect
of which indemnity may be sought against the Company or any Subsidiary
Guarantor, such Initial Purchaser or such controlling person shall promptly
notify the parties against whom indemnification is being sought (the
"indemnifying parties"), and such indemnifying parties shall assume the defense
thereof, including the employment of counsel and payment of all fees and
expenses. Such Initial Purchaser or any such controlling person shall have the
right to employ separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Initial Purchaser or such controlling person
unless (i) the indemnifying parties have agreed in writing to pay such fees and
expenses, (ii) the indemnifying parties have failed to assume the defense and
employ counsel, or (iii) the named parties to any such action, suit or
proceeding (including any impleaded parties) include both such Initial
Purchaser or such controlling person and the indemnifying parties and such
Initial Purchaser or such controlling person shall have been advised by its
counsel (in writing with a copy thereof furnished to the indemnifying parties
upon request) that representation of such indemnified party and any
indemnifying party by the same counsel would be inappropriate under applicable
standards of professional conduct (whether or not such representation by the
same counsel has been proposed) due to actual or potential differing interests
between them (in which case the indemnifying party shall not have the right to
assume the defense of such action, suit or proceeding on behalf of such Initial
Purchaser or such controlling person). It is understood, however, that the
indemnifying parties shall, in connection with any one such action, suit or
proceeding or separate but substantially similar or related actions, suits or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
only one separate firm of attorneys (in addition to any local counsel) at any
time for the Initial Purchasers and controlling persons not having actual or
potential differing interests with the Initial Purchasers or among themselves,
which firm shall be designated in writing by ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. The
indemnifying parties shall not be liable for any settlement of any such action,
suit or proceeding effected without their written consent, but if settled with
such written consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the indemnifying parties agree to indemnify
and hold harmless each Initial Purchaser, to the extent provided in paragraph
(a), and any such controlling person from and against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
(c) Each Initial Purchaser agrees to indemnify and hold harmless the
Company and each Subsidiary Guarantor, and their directors and officers, and
any person who controls the Company within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act to the same extent as the indemnity from the
Company and each Subsidiary Guarantor to the Initial
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Purchasers set forth in paragraph (a) hereof, but only with respect to
information relating to the Initial Purchasers furnished in writing by or on
behalf of the Initial Purchasers expressly for use in the Preliminary Offering
Memorandum or Offering Memorandum or any amendment or supplement thereto. If
any action, suit or proceeding shall be brought against the Company or any
Subsidiary Guarantor, any of their directors or officers, or any such
controlling person based on the Preliminary Offering Memorandum or Offering
Memorandum, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against the Initial Purchasers pursuant to this
paragraph (c), the Initial Purchasers shall have the rights and duties given to
the Company and the Subsidiary Guarantors by paragraph (b) above (except that
if the Company shall have assumed the defense thereof the Initial Purchasers
shall not be required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the Initial Purchasers' expense), and the Company and the
Subsidiary Guarantors, their directors and officers, and any such controlling
person shall have the rights and duties given to the Initial Purchasers by
paragraph (b) above. The foregoing indemnity agreement shall be in addition to
any liability which the Initial Purchasers may otherwise have.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and the Subsidiary Guarantors on the one hand and the Initial
Purchasers on the other hand from the offering of the Notes, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Subsidiary Guarantors on the one hand and the Initial Purchasers on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company and
the Subsidiary Guarantors on the one hand and the Initial Purchasers on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Initial
Purchasers, in each case as set forth in the table on the cover page of the
Offering Memorandum. The relative fault of the Company and the Subsidiary
Guarantors on the one hand and the Initial Purchasers on the other hand shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company and the
Subsidiary Guarantors on the one hand or by the Initial Purchasers on the other
hand and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
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(e) The Company, the Subsidiary Guarantors and the Initial Purchasers
agree that it would not be just and equitable if contribution pursuant to this
Section 6 were determined by a pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to in paragraph (d) above. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, liabilities and expenses referred
to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating any claim or defending
any such action, suit or proceeding. Notwithstanding the provisions of this
Section 6, the Initial Purchasers shall not be required to contribute any
amount in excess of the amount by which the total price of the Notes resold by
them in the initial placement of such Notes exceeds the amount of any damages
which the Initial Purchasers have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11
(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 6 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 6 and the
representations and warranties of the Company or of the Initial Purchasers, as
the case may be, set forth in this Agreement shall remain operative and in full
force and effect, regardless of (i) any investigation made by or on behalf of
the Initial Purchasers, the Company or the Subsidiary Guarantors or any person
controlling any Initial Purchaser, the Company or the Subsidiary Guarantors or
their directors or officers, (ii) acceptance of any Notes and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Initial Purchaser or any person controlling such Initial Purchaser, or to the
Company or any Subsidiary Guarantors, their directors or officers or any person
controlling the Company, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 6.
(g) No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
7. Conditions of the Initial Purchasers' Obligations. The obligations of
the Initial Purchasers to purchase the Notes hereunder are subject to the
following conditions:
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(a) At the time of execution of this Agreement and on the Closing
Date, no order or decree preventing the use of the Offering Memorandum or any
amendment or supplement thereto, or any order asserting that the transactions
contemplated by this Agreement are subject to the registration requirements of
the Act shall have been issued and no proceedings for that purpose shall have
been commenced or shall be pending or, to the knowledge of the Company, be
contemplated. No stop order suspending the sale of the Notes in any
jurisdiction designated by the Initial Purchasers shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending or,
to the knowledge of the Company, shall be contemplated.
(b) Subsequent to the effective date of this Agreement, there shall
not have occurred (i) any change, or any development involving a prospective
change, in or affecting the condition (financial or other), business,
properties, net worth, or results of operations of the Company or the
Subsidiaries not contemplated by the Offering Memorandum, which in the opinion
of the Initial Purchasers, would materially adversely affect the market for the
Notes, or (ii) any event or development relating to or involving the Company or
any officer or director of the Company which makes any statement of a material
fact made in the Offering Memorandum untrue or which, in the opinion of the
Company and its counsel or the Initial Purchasers and their counsel, requires
the making of any addition to or change in the Offering Memorandum in order to
state a material fact required by law to be stated therein or necessary in
order to make the statements therein not misleading, if amending or
supplementing the Offering Memorandum to reflect such event or development
would, in the opinion of the Initial Purchasers, materially adversely affect
the market for the Notes.
(c) The Initial Purchasers shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, counsel for the Company, dated the Closing Date
and addressed to the Initial Purchasers, to the effect that:
(i) The Company is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Georgia with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
the Offering Memorandum (and any amendment or supplement thereto);
(ii) Each of the Subsidiary Guarantors and each other
Significant Subsidiary (as defined in Section 1.02(v) of Regulation
S-X promulgated under the Act) incorporated in the United States is a
corporation duly organized and validly existing and in good standing
under the laws of the jurisdiction of its organization, with full
corporate power and authority to own, lease, and operate its
properties and to conduct its business as described in the Offering
Memorandum (and any amendment or supplement thereto); and all the
outstanding shares of capital stock of each of the Subsidiary
Guarantors and each other Significant Subsidiary have been duly
authorized and validly issued, are fully paid and nonassessable, and
(except for directors' qualifying shares or similar interests) to the
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knowledge of such counsel, are wholly owned by the Company directly,
or indirectly through one of the other Subsidiaries, free and clear
of any perfected security interest, lien, adverse claim, equity or
other encumbrance, except as described in the Offering Memorandum and
except for the shares of capital stock of such Subsidiaries pledged
to Trust Company Bank and The First National Bank of Chicago as
agents in connection with the Credit Agreements;
(iii) The authorized capital stock of the Company is as set
forth under the caption "Capitalization" in the Offering Memorandum;
and the Series A Convertible Preferred Stock of the Company conforms
in all material respects as to legal matters to the description
thereof contained in the Offering Memorandum under the caption
"Description of Certain Indebtedness and Other Obligations";
(iv) All the outstanding shares of capital stock of the
Company have been duly authorized and validly issued (without
expressing any opinion with respect to compliance with federal or
state securities laws) and no holder thereof is or will be subject to
personal liability by reason of being such a holder; and none of the
outstanding shares of capital stock of the Company was issued in
violation of any preemptive rights provided by statute or the
Company's articles of incorporation or bylaws, or, to the knowledge
of such counsel, any other preemptive rights of any shareholder of
the Company;
(v) The Company has corporate power and authority to enter
into this Agreement and the Registration Rights Agreement and to
issue, sell and deliver the Notes to be sold by it to the Initial
Purchasers as provided herein, and this Agreement and the
Registration Rights Agreement have been duly authorized, executed and
delivered by the Company;
(vi) Each of the Subsidiary Guarantors has corporate power and
authority to enter into this Agreement and the Registration Rights
Agreement and to issue the Guarantees, and this Agreement and the
Registration Rights Agreement have been duly authorized, executed and
delivered by each of the Subsidiary Guarantors;
(vii) The Indenture has been duly and validly authorized,
executed and delivered by each of the Company and the Subsidiary
Guarantors; no qualification of the Indenture under the 1939 Act is
required in connection with the offer and sale of the Notes
contemplated hereby or in connection with the Exempt Resales;
(viii) The Notes have been duly and validly authorized by the
Company and when executed by the Company in accordance with the
Indenture and, assuming due authentication of the Notes by the
Trustee, upon delivery to the Initial Purchasers against
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payment therefor in accordance with the terms hereof, will have been
validly issued and delivered;
(ix) The Guarantees have been duly and validly authorized by
each of the Subsidiary Guarantors and, when the Notes have been
executed by the Company in accordance with the Indenture and
delivered to the Initial Purchasers against payment therefor in
accordance with the terms hereof, the Guarantees will have been
validly issued and delivered;
(x) Neither the offer, sale or delivery of the Notes, the
issuance of the Guarantees by the Subsidiary Guarantors, the
execution, delivery or performance by the Company and the Subsidiary
Guarantors of this Agreement, the Registration Rights Agreement or
the Indenture, compliance by the Company and the Subsidiary
Guarantors with the provisions hereof or thereof nor consummation by
the Company of the transactions contemplated hereby or thereby
conflicts or will conflict with or constitutes or will constitute a
breach of, or a default under, in any material respect, the
certificate or articles of incorporation or bylaws or other
organizational documents of the Company or any of the Subsidiary
Guarantors or such other Significant Subsidiaries incorporated in the
United States or any material agreement, indenture, lease or other
material instrument to which the Company or any of the Subsidiary
Guarantors or such other Significant Subsidiaries is a party or by
which any of them or any of their respective properties is bound that
is an exhibit to any document filed under the Exchange Act or is
known to such counsel, or will result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any of the Subsidiary Guarantors or such other Significant
Subsidiaries pursuant to the terms of any material agreement or
instrument to which any of them is a party or by which any of them
may be bound or to which any of the property or assets of any of them
is subject that is an exhibit to any document filed under the
Exchange Act or is known to such counsel, nor will any such action
result in any violation in any material respect of any existing law,
or any regulation, ruling (assuming compliance with all applicable
state securities and Blue Sky laws and, in the case of the
Registration Rights Agreement, the Act and the Exchange Act and the
1939 Act), judgment, injunction, order or decree known to such
counsel, applicable to the Company, the Subsidiary Guarantors or such
other Significant Subsidiaries or any of their respective properties;
(xi) No consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency, or official
is required on the part of the Company or any Subsidiary Guarantor
(except as have been obtained under the Exchange Act, or such as may
be required under state securities or Blue Sky laws governing the
purchase and distribution of the Notes, and such as may be required
in connection with the performance by the Company and the Subsidiary
Guarantors of their obligations under the Registration Rights
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Agreement, as to which such counsel need not express an opinion) for
the valid issuance and sale of the Notes to the Initial Purchasers as
contemplated by this Agreement;
(xii) To the knowledge of such counsel, (A) other than as
described or contemplated in the Offering Memorandum (or any
amendment or supplement thereto), there are no legal or governmental
proceedings pending or threatened against the Company or any of the
Subsidiaries, or to which the Company or any of the Subsidiaries, or
any of their property, are subject, which are not disclosed in the
Offering Memorandum and which, if adversely decided, are reasonably
likely to cause a Material Adverse Effect or materially affects the
issuance of the Notes or the consummation of the transactions
contemplated by the Operative Documents and (B) there are no material
agreements, contracts, indentures, leases or other material
instruments, that are not described in the Offering Memorandum (or
any amendment or supplement thereto) or that are required to be filed
as an exhibit to any document filed under the Exchange Act that are
not filed as required;
(xiii) The Company and each of the Subsidiary Guarantors and
other Significant Subsidiaries incorporated in the United States have
full corporate power and authority to own their respective properties
and to conduct their respective businesses as now being conducted as
described in the Offering Memorandum and, to the knowledge of such
counsel, have all Permits as are necessary under applicable law to
own their respective properties and to conduct their respective
businesses as now being conducted as described in the Offering
Memorandum, subject to such qualifications as may be set forth in the
Offering Memorandum and except where the failure to have such
Permits, individually or in the aggregate, would not have a Material
Adverse Effect;
(xiv) The statements contained in the Offering Memorandum under
the captions "Risk Factors--Restrictions Imposed by Terms of
Indebtedness, --Subordination of the Notes; Holding Company
Structure, --Control of Election of Majority of Board, and
--Fraudulent Conveyance Considerations," "Security Ownership of
Management and Principal Holders--Class B Stock Voting Agreement,"
"Description of Certain Indebtedness and Other Obligations,"
"Description of the Notes," "Certain U.S. Federal Income Tax
Consequences," "Transfer Restrictions," and "ERISA Considerations,"
insofar as they are descriptions of contracts, agreements or other
legal documents, or refer to statements of law or legal conclusions,
are accurate in all material respects;
(xv) When the Notes are issued and delivered pursuant to this
Agreement, such Notes will not be of the same class (within the
meaning of Rule 144A(d)(3) under the Act) as any security of the
Company that is listed on a national securities exchange registered
under Section 6 of the Exchange Act or that is quoted in a United
States automated interdealer quotation system;
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(xvi) No registration of the Notes or Guarantees under the Act
is required for the sale of the Notes to the Initial Purchasers as
contemplated in this Agreement or for the Exempt Resales (assuming
(A) that any Eligible Purchaser who buys the Notes in the Exempt
Resales is a Qualified Institutional Buyer, Accredited Investor or a
person other than a U.S. person outside the United States in reliance
on Regulation S, (B) the accuracy of the Initial Purchasers'
representations and those of the Company in this Agreement regarding
the absence of general solicitation in connection with the Exempt
Resales and (C) the accuracy of the representations made by each
Accredited Investor who purchases Notes pursuant to an Exempt Resale
as set forth in the letter of representation executed by such
Accredited Investor in the form of Annex A to the Offering
Memorandum);
(xvii) The Company is not required to deliver the information
specified in Rule 144A(d)(4) in connection with the offering and
resale of the Notes by the Initial Purchasers; and
(xviii) Although such counsel have not undertaken, except as
otherwise expressly stated in their opinion, to determine
independently, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements in the Offering
Memorandum, such counsel have participated, solely in their capacity
as attorneys, in the preparation of the Offering Memorandum,
including review and discussion of the contents thereof with
officers of the Company, and nothing has come to the attention of
such counsel that has caused them to believe that the Offering
Memorandum, as of its date and as of the Closing Date, contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading or that any amendment or supplement to the
Offering Memorandum, as of its respective date, and as of the
Closing Date, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no statement with respect
to the financial statements and the notes thereto and the schedules
and other financial and statistical data included or incorporated by
reference in the Offering Memorandum and information furnished by or
on behalf of the Initial Purchasers).
The opinion of such counsel shall be limited to the laws of the
United States and the State of Georgia. In giving such opinion, such
counsel may rely, as to all matters governed by the laws of jurisdictions
other than the law of the State of Georgia and the federal law of the
United States, upon the opinions of counsel satisfactory to you. Such
counsel may also state that, insofar as such opinion involves factual
matters, they have relied upon certificates of officers of the Company and
the Subsidiaries and certificates of public officials; provided that such
certificates have been delivered to the Initial Purchasers.
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(d) The Initial Purchasers shall have received on the Closing Date
an opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General Counsel of the Company, dated the
Closing Date and addressed to the Initial Purchasers to the effect that:
(i) The Company is duly registered and qualified to conduct
its business and is in good standing as a foreign corporation in each
jurisdiction or place where the nature of its properties or the
conduct of its business requires such registration or qualification,
except where the failure so to register or qualify or to be in good
standing does not have a Material Adverse Effect;
(ii) Each Guarantor is duly registered and qualified to
conduct its business and is in good standing as a foreign corporation
in each jurisdiction or place where the nature of its properties or
the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify or
to be in good standing does not have a Material Adverse Effect;
(iii) Neither the Company nor any of the Guarantors is in
violation in any material respect of its respective certificate or
articles of incorporation or bylaws, or other organizational
documents or, to the best knowledge of such counsel obtained in the
ordinary course of such counsel's duties without special inquiry, is
in default in any material respect in the performance of any material
obligation, agreement or condition contained in any bond, debenture,
note or other evidence of indebtedness or in any material agreement,
indenture, lease or other material instrument to which the Company or
any of the Guarantors is a party or by which any of them or any of
their respective properties is expressly bound, except as disclosed
in the Offering Memorandum and except to the extent that any such
violation or default would not have a Material Adverse Effect; and
(iv) To the best knowledge of such counsel obtained in the
ordinary course of such counsel's duties without special inquiry,
neither the Company nor any of the Guarantors is in material
violation of any law, ordinance, administrative or governmental rule
or regulation applicable to the Company or any of the Guarantors or
of any decree of any court or governmental agency or body having
jurisdiction over the Company or any of the Guarantors, except to the
extent that any such violation would not have a Material Adverse
Effect.
In giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of
Georgia and the federal law of the United States, upon the opinions of counsel
satisfactory to you. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied upon certificates of officers of the
Company and the Subsidiaries and certificates of public officials; provided
that such certificates have been delivered to the Initial Purchasers.
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26
(e) The Initial Purchasers shall have received on the Closing Date
an opinion of ▇▇▇ ▇▇▇ ▇▇▇▇▇, Senior Vice President and Counsel to Interface
Europe, B.V., dated the Closing Date and addressed to the Initial Purchasers to
the effect that:
(i) Each of Interface Europe B.V., Interface Scherpenzeel
B.V. and Interface Europe Limited is duly organized and validly
existing under the laws of the jurisdiction of its organization, with
full corporate power and authority to own, lease, and operate its
properties and to conduct its business as described in the Offering
Memorandum (and any amendment or supplement thereto); and all the
outstanding shares of capital stock of each such Subsidiary have been
duly authorized and validly issued, are fully paid and nonassessable,
and to the knowledge of such counsel, are wholly owned by the Company
directly, or indirectly through one of the other Subsidiaries, free
and clear of any security interest, lien, adverse claim, equity or
other encumbrance, except as described in the Offering Memorandum and
except for the shares of capital stock of such Subsidiaries pledged
to Trust Company Bank and The First National Bank of Chicago as
agents in connection with the Credit Agreements;
(ii) Neither Interface Europe B.V., Interface Scherpenzeel
B.V. nor Interface Europe Limited is in violation in any material
respect of its respective certificate or articles of incorporation or
bylaws, or other organizational documents or, to the best knowledge
of such counsel obtained in the ordinary course of such counsel's
duties without special inquiry, is in default in any material respect
in the performance of any material obligation, agreement or condition
contained in any bond, debenture, note or other evidence of
indebtedness or in any material agreement, indenture, lease or other
material instrument to which any of such Subsidiaries is a party or
by which any of them or any of their respective properties may be
bound, except as disclosed in the Offering Memorandum and except to
the extent that any such violation or default would not have a
Material Adverse Effect;
(iii) To the best knowledge of such counsel obtained in the
ordinary course of such counsel's duties without special inquiry,
neither Interface Europe B.V., Interface Scherpenzeel B.V. nor
Interface Europe Limited is in material violation of any law,
ordinance, administrative or governmental rule or regulation
applicable to any such Subsidiaries or of any decree of any court or
governmental agency or body having jurisdiction over any such
Subsidiaries, except to the extent that any such violation would not
have a Material Adverse Effect; and
(iv) Neither the offer, sale or delivery of the Notes, the
issuance of the Guarantees by the Subsidiary Guarantors, the
execution, delivery or performance by the Company and the Subsidiary
Guarantors of this Agreement, the Registration Rights Agreement or
the Indenture, compliance by the Company and the Subsidiary
Guarantors with the provisions hereof or thereof nor consummation by
the Company of the
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27
transactions contemplated hereby or thereby conflicts or will
conflict with or constitutes or will constitute a breach of, or a
default under, in any material respect, the certificate or articles
of incorporation or bylaws or other organizational documents of
Interface Europe B.V., Interface Scherpenzeel B.V. or Interface
Europe Limited or any material agreement, indenture, lease or other
material instrument to which such Subsidiary is a party or by which
any of them or any of their respective properties is bound that is
known to such counsel, or will result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of any
such Subsidiary pursuant to the terms of any material agreement or
instrument to which any of them is a party or by which any of them
may be bound or to which any of the property or assets of any of them
is subject that is known to such counsel.
(f) The Initial Purchasers shall have received on the Closing Date
an opinion of Shearman & Sterling, counsel for the Initial Purchasers, dated the
Closing Date, and addressed to the Initial Purchasers, with respect to the
matters referred to in clauses (vii), (viii), (ix), (xvi) and (xviii) of the
foregoing paragraph (c) and such other related matters as the Initial Purchasers
may request. In giving such opinion, such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of New
York, the federal law of the United States and the General Corporation Law of
the State of Delaware, upon the opinions of counsel satisfactory to you. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and the Subsidiaries and certificates of public officials;
provided that such certificates have been delivered to the Initial Purchasers.
(g) The Initial Purchasers shall have received letters addressed to
the Initial Purchasers, and dated the date hereof and the Closing Date from BDO
▇▇▇▇▇▇▇, LLP, independent certified public accountants, substantially in the
forms heretofore approved by the Initial Purchasers.
(h) The Company and the Subsidiary Guarantors shall have executed the
Registration Rights Agreement in substantially the form of Exhibit A hereto.
(i) (i) There shall not have been any change in the capital stock of
the Company nor any material increase in the short-term or long-term debt of the
Company (other than in the ordinary course of business) from that set forth or
contemplated in the Offering Memorandum (or any amendment or supplement
thereto); (ii) there shall not have been, since the respective dates as of which
information is given in the Offering Memorandum (or any amendment or supplement
thereto), except as may otherwise be stated in the Offering Memorandum (or any
amendment or supplement thereto), any Material Adverse Effect; (iii) the Company
and the Subsidiaries shall not have any liabilities or obligations, direct or
contingent (whether or not in the ordinary course of business), that are
material to the
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Company and the Subsidiaries, taken as a whole, other than those reflected in or
contemplated by the Offering Memorandum (or any amendment or supplement
thereto); and (iv) all the representations and warranties of the Company
contained in this Agreement shall be true and correct in all material respects
on and as of the date hereof and on and as of the Closing Date as if made on and
as of the Closing Date, and the Initial Purchasers shall have received a
certificate, dated the Closing Date and signed by the chief executive officer
and the chief accounting officer of the Company (or such other officers as are
acceptable to the Initial Purchasers), to the effect set forth in this Section
7(g) and in Section 7(h) hereof.
(j) The Company shall not have failed at or prior to the Closing Date
to have performed or complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at or prior to the
Closing Date.
(k) The Initial Purchasers shall have received certificates dated the
date hereof and the Closing Date signed by the chief accounting officer of the
Company substantially in the forms heretofore approved by the Initial
Purchasers, respecting the Company's compliance with the financial covenants set
forth in the Credit Agreements.
(l) There shall not have been any announcement by any "nationally
recognized statistical rating organization," as defined for purposes of Rule
436(g) under the Act, that (i) it is downgrading its rating assigned to any
class of securities of the Company, or (ii) it is reviewing its ratings assigned
to any class of securities of the Company with a view to possible downgrading,
or with negative implications, or direction not determined.
(m) The Company shall have furnished or caused to be furnished to the
Initial Purchasers such further certificates and documents as the Initial
Purchasers shall have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
in form and substance to the Initial Purchasers and counsel for the Initial
Purchasers.
Any certificate or document signed by any officer of the Company and
delivered to the Initial Purchasers, or to counsel for the Initial Purchasers,
shall be deemed a representation and warranty by the Company to the Initial
Purchasers as to the statements made therein.
8. Expenses. The Company and the Subsidiary Guarantors agree to pay the
following costs and expenses and all other costs and expenses incident to the
performance by them of their obligations hereunder: (i) the preparation,
printing or reproduction of the Offering Memorandum (including financial
statements annexed thereto), and each amendment or supplement to any of them,
this Agreement, the Registration Rights Agreement and the Indenture; (ii) the
printing (or reproduction) and delivery (including postage, air freight charges
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29
and charges for counting and packaging) of such copies of the Offering
Memorandum, the Preliminary Offering Memorandum, and all amendments or
supplements to any of them as may be reasonably requested for use in connection
with the offering and sale of the Notes; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Notes, including
any stamp taxes in connection with the original issuance and sale of the Notes;
(iv) the printing (or reproduction) and delivery of this Agreement, the
Registration Rights Agreement, the preliminary and supplemental Blue Sky
Memoranda and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Notes; (v) the qualification of
the Notes for offer and sale under the securities or Blue Sky laws of the
several states as provided in Section 4(f) hereof (including the reasonable
fees, expenses and disbursements of counsel for the Initial Purchasers relating
to the preparation, printing or reproduction, and delivery of the preliminary
and supplemental Blue Sky Memoranda and such qualification); (vi) the
qualification of the Notes for trading in the PORTAL system and for trading in
the book entry system maintained by the Depository Trust Company; (vii) the
performance by the Company and the Subsidiary Guarantors of their obligations
under the Registration Rights Agreement; and (viii) the fees and expenses of the
Company's accountants, the fees and expenses of counsel (including local and
special counsel) for the Company and the fees and expenses of the Trustee under
the Indenture and its counsel. The Company hereby agrees that it will pay in
full on the Closing Date the fees and expenses referred to in clause (v) of this
Section 8 by delivering to counsel for the Initial Purchasers on such date a
check payable to such counsel in the requisite amount.
9. Effective Date of Agreement. This Agreement shall become effective
upon the execution and delivery hereof by all the parties hereto. Until such
time as this Agreement shall have become effective, to the extent that a party
hereto, but not the other parties hereto, has executed and delivered this
Agreement, such party executing and delivering this Agreement may rescind such
execution and delivery by written notice to the other parties hereto.
Any notice under this Section 9 may be given by telegram, telecopy or
telephone and shall be subsequently confirmed by letter.
10. Termination of Agreement. This Agreement shall be subject to
termination in the absolute discretion of the Initial Purchasers, without
liability on the part of the Initial Purchasers to the Company, by notice to
the Company, if prior to the Closing Date (i) trading in securities generally
on the New York Stock Exchange, American Stock Exchange or the Nasdaq National
Market shall have been suspended or materially limited, (ii) a general
moratorium on commercial banking activities in New York shall have been
declared by either Federal or state authorities, or (iii) there shall have
occurred any outbreak or escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial or economic
conditions, the effect of which on the financial markets of the United States
is such as to make it, in the judgment of the Initial Purchasers, impracticable
or inadvisable to commence or continue the offering of the Notes on the terms
set forth on the cover page of the Offering Memorandum or
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30
to enforce contracts for the resale of the Notes by the Initial Purchasers.
Notice of such termination may be given to the Company by telegram, telecopy or
telephone and shall be subsequently confirmed by letter.
11. Information Furnished by the Initial Purchasers. The statements set
forth in the stabilization legend in the first paragraph on page two, the last
paragraph on the cover page, under the caption "Private Placement" and the
second sentence under the caption "Legal Matters" in the Preliminary Offering
Memorandum and Offering Memorandum, constitute the only information furnished by
or on behalf of the Initial Purchasers as such information is referred to in
Sections 5(b) and 6 hereof.
12. Miscellaneous. Except as otherwise provided in Sections 4, 9 and 10
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company, at the office of the
Company at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Financial Officer, or (ii) if to the
Initial Purchasers, to ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: Manager, Investment Banking Division.
This Agreement has been and is made solely for the benefit of the Initial
Purchasers, the Company and the Subsidiary Guarantors, their directors,
officers and controlling persons referred to in Section 6 hereof and their
respective successors and assigns, to the extent provided herein, and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" nor the term "successors and assigns" as used in
this Agreement shall include a purchaser from the Initial Purchasers of any of
the Notes in its status as such purchaser.
13. Applicable Law; Counterparts. This Agreement shall be governed by the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
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Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Subsidiary Guarantors and the Initial Purchasers.
Very truly yours,
INTERFACE, INC.
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman, President and CEO
Each of the Subsidiary Guarantors
Listed On Schedule III
By INTERFACE, INC.
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman, President and CEO
Confirmed as of the date first
above mentioned.
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇, PIERCE, FENNER,
& ▇▇▇▇▇ INCORPORATED
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, INC.
WHEAT, FIRST SECURITIES, INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
By ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name:
Title:
32
SCHEDULE I
INTERFACE, INC.
Initial Purchaser Principal Amount
----------------- of Notes
----------------
▇▇▇▇▇ ▇▇▇▇▇▇ Inc................... $ 62,500,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated....... $ 43,750,000
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company, Inc. $6,250,000
Wheat, First Securities, Inc....... $6,250,000
First Chicago Capital Markets, Inc. $6,250,000
------------
Total...................... $125,000,000
============
33
SCHEDULE II
INTERFACE, INC.
Inactive Subsidiaries
Interface Architectural Resources, Inc. (GA)
Interface Leasing Inc. (GA)
Interface International, Inc. (Barbados FSC)
Future Step Technologies Inc. (CND)
KCI, Inc. (GA)
Interface Installations, Inc. (GA)
Interface Environmental, Inc. (GA)
Macro-Septic, Inc. (GA)
Interface Disc Corp. (GA)
IDISC, Inc. (GA Disc) (GA)
Intrinsic Systems, Inc. (GA)
Manchaug Reservoir Corp. (Mass.)
▇▇▇▇▇▇▇ River Reservoir Company (Mass.)
Interface Flooring Systems (AUS) Pty, Ltd.
Heuga Overseas Ltd.
Shelf Investments Ltd.
Carpet International Hong Kong Ltd. (Hong Kong)
Heuga Tile Corp. (U.S.)
Heuga Leasing Corp. (U.S.)
Heuga Research A.G. (Switz.)
Heuga Rohsag Scotland Ltd. (Scotland)
Interface Heuga Japan Ltd. (Japan)
34
SCHEDULE III
INTERFACE, INC.
Subsidiary Guarantors
Bentley ▇▇▇▇▇, Inc.
Guilford (Delaware), Inc.
Guilford of Maine, Inc.
Interface Asia-Pacific, Inc.
Interface Europe, Inc.
Interface Flooring Systems, Inc.
Interface Research Corporation
Pandel, Inc.
Prince Street Technologies, Ltd.
Rockland React-Rite, Inc.