Exhibit 4.01(g)
WAIVER
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WAIVER (this "Waiver"), dated as of November 9, 1999, among U.S.A.
FLORAL PRODUCTS, INC., a Delaware corporation (the "US Borrower"), U.S.A. FLORAL
PRODUCTS GERMANY GMBH & CO. KG, a partnership organized under the laws of the
Federal Republic of Germany (the "German Borrower"), FLORIMEX WORLDWIDE B.V., a
company organized under the laws of the Netherlands (the "Dutch Borrower" and,
together with the German Borrower and the US Borrower, the "Borrowers", and each
a "Borrower"), the lenders party to the Credit Agreement referred to below (the
"Banks"), BAYERISCHEUND VEREINSBANK AG, as Syndication Agent (in such
capacity, the "Syndication Agent"), BANKBOSTON, N.A., as Documentation Agent (in
such capacity, the "Documentation Agent"), and BANKERS TRUST COMPANY, as
Arranger and Administrative Agent (the "Administrative Agent"). Unless otherwise
defined herein, all capitalized terms used herein and defined in the Credit
Agreement are used herein as so defined.
W I T N E S S E T H:
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WHEREAS, the Borrowers, the Banks, the Syndication Agent, the
Documentation Agent and the Administrative Agent are parties to a Credit
Agreement, dated as of October 16, 1997 and amended and restated as of October
2, 1998 (as further amended, modified or supplemented to, but not including, the
date hereof, the "Credit Agreement"); and
WHEREAS, subject to the terms and conditions of this Waiver, the
parties hereto agree as follows;
NOW, THEREFORE, it is agreed:
1. The Banks hereby waive any Default or Event of Default which may
have arisen or may arise solely as a result of the Borrowers failing to comply
with any of Sections 7.11(c), (d), (g), (i) or 8.09 of the Credit Agreement
during the period from October 1, 1999 through December 31, 1999, provided,
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however (i) that the Borrowers shall be required to be in such compliance with
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each such Section referred to above on and after January 1, 1999 and (ii) if the
Borrowers have not complied with the aforementioned requirements by January 1,
1999, an Event of Default under the Credit Agreement shall be deemed to have
occurred on such date.
2. Notwithstanding anything to the contrary contained in the Credit
Agreement or in paragraph numbered 2 of that certain Waiver, dated as of October
7, 1999, among the Borrowers, the Banks, the Syndication Agent, the
Documentation Agent and the Administration Agent, until such time as the
Required Banks otherwise agree in writing, the US Borrower shall not be
permitted to (x) incur and have outstanding Dollar Revolving Loans and/or
Swingline Loans in an amount in excess, when added to the aggregate amount of US
Letter of Credit Outstandings arising from the issuance of US Letters of Credit
on or after the date hereof, of (i) on or prior to November 14, 1999,
$156,786,000 and (ii) thereafter $159,000,000 or (y) have any US Letters of
Credit issued under the Credit Agreement on or after the date hereof the Stated
Amount of which, when added to the aggregate amount of Dollar Revolving Loans
then
outstanding and Swingline Loans then outstanding, exceeds (i) on or prior to
November 14, 1999, $156,786,000 and (ii) thereafter, $159,000,000.
3. This Waiver shall become effective on the date (the "Waiver
Effective Date") when (i) the Borrowers and the Required Banks shall have signed
a counterpart hereof (whether the same or different counterparts) and shall have
delivered (including by way of facsimile transmission) the same to the
Administrative Agent at the Notice Office and (ii) the US Borrower shall have
retained a financial advisory firm reasonably satisfactory to the Administrative
Agent.
4. In order to induce the Banks to enter into this Waiver, each
Borrower hereby represents and warrants that (i) the representations, warranties
and agreements contained in Section 6 of the Credit Agreement are true and
correct in all material respects on and as of the Waiver Effective Date, after
giving effect to this Waiver, and (ii) there exists no Default or Event of
Default on the Waiver Effective Date, after giving effect to this Waiver.
5. This Waiver is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
6. This Waiver may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the US Borrower and the Administrative Agent.
7. THIS WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
8. From and after the Waiver Effective Date, all references in the
Credit Agreement and in the other Credit Documents to the Credit Agreement shall
be deemed to be references to the Credit Agreement as modified hereby.
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WITNESS WHEREOF the parties hereto have caused their duly
authorized officers to execute and deliver this Waiver as of the date first
above written.
U.S.A. FLORAL PRODUCTS, INC.
By /s/ Robert J. Poirier
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Title:
U.S.A. FLORAL PRODUCTS GERMANY GMBH
& CO. KG
By /s/ Robert J. Poirier
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Title:
FLORIMEX WORLDWIDE B.V.
By /s/ Robert J. Poirer
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Title:
BANKERS TRUST COMPANY
Individually and as Arranger and
Administrative Agent
By /s/ David Bell
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Title: David Bell
Principal
BAYERISCHE HYPO-UND VEREINSBANK AG,
Individually and as Syndication Agent
By /s/ Erich Ebner V. Eschenbach
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Title: Erich Ebner V. Eschenbach
By /s/ Sylvia Cheng
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Title: Sylvia Cheng
Director
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LA SALLE BANK NATIONAL ASSOCIATION
By /s/ John C. Thurston
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Title: Vice President
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NATIONAL BANK OF CANADA
By
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Title: VP/MANAGER
By
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Title: VP
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