EXHIBIT 4.3
SECOND SUPPLEMENTAL INDENTURE
This Second Supplemental Indenture (this "SUPPLEMENTAL INDENTURE"),
dated as of the 18th day of June 2003, among Architectural Floors, Inc., an Ohio
corporation, Carpet Services of Tampa, Inc., a Florida corporation, Interface
Teknit, Inc., a Michigan corporation, Interface TekSolutions, LLC, a Michigan
limited liability company, Interfaceflor, Inc., a Georgia corporation, Re:Source
Colorado, Inc., a Colorado corporation, Re:Source Minnesota, Inc., a Minnesota
corporation, Re:Source North Carolina, Inc., a North Carolina corporation,
Re:Source Oregon, Inc., an Oregon corporation , Re:Source South Florida, Inc., a
Florida corporation, Re:Source Southern California, Inc., a California
corporation, and Southern Contract Systems, Inc., a Georgia corporation (each a
"GUARANTEEING SUBSIDIARY"), all of which are Subsidiaries of Interface, Inc. (or
its permitted successor), a Georgia corporation (the "COMPANY"), the Company,
the Guarantors (as defined in the Indenture referred to herein) and Wachovia
Bank, National Association (formerly known as First Union National Bank), as
trustee under the Indenture referred to below (the "TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company and the Guarantors party thereto heretofore
executed and delivered to the Trustee an indenture (the "INDENTURE"), dated as
of January 17, 2002 providing for the issuance of 10.375% Senior Notes due 2010
(the "NOTES");
WHEREAS, the Indenture provides that under certain circumstances a
subsidiary which becomes a guarantor of any Indebtedness shall, and other
Subsidiaries may, execute and deliver to the Trustee a supplemental indenture
pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee
all of the Company's Obligations under the Notes and the Indenture on the terms
and conditions set forth herein (the "GUARANTEE"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, each
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
Section 1. Capitalized Terms.
Capitalized terms used herein without definition shall have the meanings
assigned to them in the Indenture.
Section 2. Agreement to Guarantee.
Each Guaranteeing Subsidiary signatory hereto hereby agrees as follows:
(a) Along with all other Guarantors, to jointly and severally
Guarantee to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective of the validity
and enforceability of the Indenture, the Notes or the obligations of the Company
hereunder or thereunder, that:
(i) the principal of, premium, if any, and interest (including
any Special Interest), on the Notes will be promptly paid in full
when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal, premium, if any,
of and interest on the Notes, if any, if lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder
or thereunder will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, that same will be
promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same
immediately.
(b) The obligations hereunder shall be unconditional, irrespective
of the validity, regularity or enforceability of the Notes or the Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder
of the Notes with respect to any provisions hereof or thereof, the recovery of
any judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor.
(c) The following is hereby waived: diligence, presentment, demand
of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever.
(d) This Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the Indenture.
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(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any custodian, Trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
(f) None of the Guaranteeing Subsidiaries signatory hereto shall not
be entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby.
(g) As between the Guarantors, including each Guarantor Subsidiary
signatory hereto, on the one hand, and the Holders and the Trustee, on the other
hand, (x) the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article 6 of the Indenture for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such obligations as provided in
Article 6 of the Indenture, such obligations (whether or not due and payable)
shall forthwith become due and payable by each Guaranteeing Subsidiary for the
purpose of this Guarantee.
(h) Each Guaranteeing Subsidiary shall have the right to seek
contribution from any non-paying Guarantor (including any other Guaranteeing
Subsidiary) so long as the exercise of such right does not impair the rights of
the Holders under the Guarantee.
(i) Pursuant to Section 10.02 of the Indenture, after giving effect
to any maximum amount and any other contingent and fixed liabilities that are
relevant under any applicable Bankruptcy or fraudulent conveyance laws, and
after giving effect to any collections from the Company and any of the other
Guarantors, the rights of each Guaranteeing Subsidiary signatory hereto to
receive contribution from or payments made by or on behalf of any other
Guarantor (including any other Guaranteeing Subsidiary) in respect of the
obligations of such other Guarantor under Article 10 of the Indenture shall
result in the obligations of each Guaranteeing Subsidiary under its Guarantee
not constituting a fraudulent transfer or conveyance.
3. Execution and Delivery.
Each Guaranteeing Subsidiary agrees that the Guarantees shall remain in
full force and effect notwithstanding any failure to endorse on each Note a
notation of such Guarantee.
4. Guarantors May Consolidate, Etc. on Certain Terms.
(a) No Guarantor may merge or consolidate with or into (whether or
not such Guarantor is the surviving Person), sell, assign, convey, transfer,
lease or otherwise dispose of all or substantially all of its properties and
assets, as an entirety, to any Person or Persons, other than the Company or
another Guarantor, unless:
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(i) immediately after giving effect to that transaction, no
Default or Event of Default exists; and
(ii) either:
(A) the Person acquiring the property in any such sale
or disposition or the Person formed by or surviving any such
consolidation or merger assumes all the obligations of that
Guarantor under this Indenture, its Guarantee and the
Registration Rights Agreement pursuant to a supplemental
indenture satisfactory to the Trustee, or
(B) the Guarantor is released pursuant to Section 11.07
and such sale or other disposition complies with Section 4.12
of the Indenture, including the application of the Excess
Proceeds therefrom.
(b) In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor corporation, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the Guarantee endorsed upon the Notes and the due and punctual performance of
all of the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor corporation shall succeed to and be substituted for
the Guarantor with the same effect as if it had been named herein as a
Guarantor. Such successor corporation thereupon may cause to be signed any or
all of the Guarantees to be endorsed upon all of the Notes issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Trustee. All the Guarantees so issued shall in all respects have the same legal
rank and benefit under the Indenture as the Guarantees theretofore and
thereafter issued in accordance with the terms of this Indenture as though all
of such Guarantees had been issued at the date of the execution hereof.
(c) Except as set forth in Article 4 and Article 5 of the Indenture,
and notwithstanding clauses (a) and (b) above, nothing contained in this
Indenture or in any of the Notes shall prevent any consolidation or merger of a
Guarantor with or into the Company or another Guarantor, or shall prevent any
sale or conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Company or another Guarantor.
5. Release of a Guarantor.
(a) Upon the sale or disposition of all of the Capital Stock of a
Guarantor by the Company or a Subsidiary of the Company, or upon the
consolidation or merger of a Guarantor with or into any Person (in each case,
other than to, with or into, as the case may be, the Company or an Affiliate of
the Company), such Guarantor shall be deemed automatically and unconditionally
released and discharged from all obligations under Article 11 of the Indenture
without any further action required on the part of the Trustee or any Holder;
provided, however, that each such Guarantor is sold or disposed of in a
transaction which does not violate Section 4.12 and Section 11.06 of the
Indenture;
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(b) The Trustee shall deliver an appropriate instrument evidencing
the release of a Guarantor upon receipt of a request of the Company accompanied
by an Officers' Certificate certifying as to the compliance with Section 11.06
of the Indenture. Any Guarantor not so released or the entity surviving such
Guarantor, as applicable, will remain or be liable under its Guarantee as
provided in Article 11 of the Indenture.
The Trustee shall execute any documents reasonably requested by the
Company or a Guarantor in order to evidence the release of such Guarantor from
its obligations under its Guarantee endorsed on the Securities and under Article
11 of the Indenture.
6. No Recourse Against Others.
No past, present or future director, officer, employee, incorporator,
stockholder or agent of the Guaranteeing Subsidiary, as such, shall have any
liability for any obligations of the Company or any Guaranteeing Subsidiary
under the Notes, any Guarantees, the Indenture or this Supplemental Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder of the Notes by accepting a Note waives and releases
all such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a
waiver is against public policy.
7. Governing Law.
NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
8. Counterparts.
The parties may sign any number of copies of this Supplemental Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
9. Effect of Headings.
The Section headings herein are for convenience only and shall not affect
the construction hereof.
10. The Trustee.
The Trustee shall not be responsible in any manner whatsoever for or in
respect of the validity or sufficiency of this Supplemental Indenture or for or
in respect of the recitals contained herein, all of which recitals are made
solely by each Guarantor signatory thereto and the Company.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
GUARANTEEING SUBSIDIARIES:
Architectural Floors, Inc.
Carpet Services of Tampa, Inc.
Interface Teknit, Inc.
Interfaceflor, Inc.
Re:Source Colorado, Inc.
Re:Source Minnesota, Inc.
Re:Source North Carolina, Inc.
Re:Source Oregon, Inc.
Re:Source South Florida, Inc.
Re:Source Southern California, Inc.
Southern Contract Systems, Inc.
each as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
Interface TekSolutions, LLC, as a Guarantor
By: INTERFACE FABRICS GROUP MARKETING, INC.,
its sole member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
TRUSTEE:
Wachovia Bank, National Association
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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